Syariah Penal Code Order, 2013/Part IV Chapter III

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Chapter III
WITHDRAWAL OF SYAHADAH

Withdrawal of syahadah before pronouncement of punishment or sentencing, or making order or judgment.

184. When a syahid withdraws his syahadah before the courts pronounce the punishment, or makes an order or judgment, the withdrawal of such syahadah is acceptable and the Court shall not make such syahadah as proof for granting the claim or conviction, and such syahid, except in the case of zina, zina bil-jabar or liwat, is guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000, imprisonment for a term not exceeding 6 months or both.

Withdrawal of syahadah in mal case after order or judgment made.

185. When syahid in a mal case withdraws his syahadah after order or judgment is made by the Court, whether or not the order or judgment has been executed, the withdrawal is invalid and such syahid is guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months, and pay damages for the loss incurred by mahkum 'alaihi, if any, according to their respective shares.

Explanation 1— If both syahid withdraw their syahadah, the payment of one syahid withdraws his syahadah, he shall pay damages of one-half of the loss incurred by mahkum 'alaihi.

Explanation 2—If there are four syahid, two of them withdraw their syahadah, they are not liable. If three of the four syahid withdraw their syahadah, they shall pay damages of one-half of the loss incurred by mahkum 'alaihi.

Explanation 3—If the syahid consist of a male and two females, one of the female syahid withdraws her syahadah, she shall pay damages of one-fourth of the loss incurred by mahkum 'alaihi, and if both female syahid withdraw their syahadah, they shall pay damages of one-half of the loss incurred by mahkum 'alaihi, and if the male syahid withdraws his syahadah, he shall pay damages of one-half of the loss incurred by mahkum 'alaihi.

Explanation 4—If the syahid consist of a male and more than two females, all the female syahid withdraw their syahadah, they shall pay damages of one-half of the loss incurred by mahkum 'alaihi.

Withdrawal of syahadah after conviction, in cases of qisas and hadd other than zina, zina bil-jabar or liwat.

186. (1) In cases of qisas and hadd, except in cases of zina, zina bil-jabar or liwat, when a syahid withdraws his syahadah after the Court has passed its sentence and before execution of the punishment, the punishment of hadd or qisas shall not be executed and the syahid is guilty of an offence and shall be liable on conviction to a fine not exceeding $4,000, imprisonment for a term not exceeding one year or both.

(2) In cases of hirabah and qatlul-'amd, when a syahid withdraws his syahadah after the Court has passed its sentence and the punishment has been executed, causing death to mahkum 'alaihi, the syahid is guilty of an offence and shall be liable on conviction to—

(a) payment of diyat according to the respective shares as specified by the Court, if the syahid confesses that he gives his syahadah in good faith and he does not lie;

(b) death as qisas, if the syahid confesses that he gives his syahadah with the intention to lie.

(3) In cases of qatlu syibhil-'amd or qatlu-hata', or cases punishable with qisas or hadd except in the case of zina, zina bil-jabar or liwat, when a syahid withdraws his syahadah after the Court has passed its sentence and the punishment has been executed, but did not cause the death of mahkum 'alaihi, the syahid is guilty of an offence and shall be liable on conviction to—

(a) a fine not exceeding $28,000, imprisonment for a term not exceeding 7 years or both, if the syahid confesses that he gives his syahadah in good faith and he does not lie;

(b) the same punishment sentenced for mahkum 'alaihi as qisas or the payment of diyat or arsy according to the respective shares as specified by the Court, if the syahid confesses that he gives his syahadah with the intention to lie.

Withdrawal of syahadah in case of zina, zina bil-jabar or liwat.

187. (1) When some or all the syahid in the case of zina, zina bil-jabar or liwat withdraw their syahadah before the Court makes the conviction, the withdrawal of such syahadah shall be accepted and the Court shall not make such syahadah as proof to convict the offence and such syahid is guilty of an offence and shall be liable on conviction to whipping with 80 strokes for committing qazaf.

(2) When some or all the syahid withdraw their syahadah—

(a) after the Court has made the conviction and the punishment has not been executed, the withdrawal of such syahadah has shall cause the punishment not be executed and such syahid is guilty of an offence and shall be liable on conviction to whipping with 80 strokes for committing qazaf;

(b) after the Court has made the conviction and the punishment of whipping has been executed, such syahid is guilty of an offence and shall be liable on conviction to whipping with 80 strokes for committing qazaf, a fine not exceeding $4,000 and payment of arsy for hurt to mahkum 'alaihi, if any, according to the respective shares as specified by the Court.

(3) When some or all the syahid withdraw their syahadah after the Court has made the conviction and the punishment of stoning has been executed, causing death to mahkum 'alaihi, such syahid is guilty of an offence and shall be liable on conviction to—

(a) payment of diyat according to the respective shares as specified by the Court, if the syahid confesses that he gives his syahadah in good faith and he does not lie;

(b) death as qisas, if the syahid confesses that he gives his syahadah with the intention to lie.

Withdrawal of syahadah ihshan by syahid.

188. (1) When any syahid who has given his syahadah for conviction of zina, zina bil-jabar or liwat and at the same time he has also given syahadah ihshan, withdraws his syahadah ihshan at the time the punishment of stoning is being executed, the Court shall cease forthwith the execution of the punishment and refer such case to a superior Court for revision. If mahkum 'alaihi is still alive—

(a) if mahkum 'alaihi is found to be a ghairu muhshan, he shall be liable to whipping with 100 strokes and the syahid who withdraw his syahadah ihshan is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both, and shall be liable to the payment of arsy for hurt to mahkum 'alaihi, if any, according to the respective shares as specified by the Court;

(b) if mahkum 'alaihi is found to be a muhshan, the punishment of stoning shall continue and the syahid who withdraw his syahadah ihshan is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both.

Illustration

A and B have been convicted of zina with the syahadah of C, D, E and F. At the same time, C and D are syahid ihshan against A and B. A and B are found to be muhshan and punished with stoning. During the execution of the punishment, C withdraws his syahadah ihshan. The Court shall cease forthwith the execution of the punishment and refer such case to a superior Court for revision. C has committed an offence under this section.

(2) When syahadah zina, zina bil-jabar or liwat and syahadah ihshan is given by different syahid, and syahid ihshan or syahid zina, zina bil-jabar or liwat and syahid ihshan withdraw their syahadah at the time the punishment is being executed, the Court shall cease forthwith the execution of the punishment—

(a) if those who withdraw the syahadah ihshan are syahid ihshan, the Court shall refer such case to a superior Court for revision—

(i) if mahkum 'alaihi is found to be a ghairu muhshan, he shall be liable to whipping with 100 strokes and the syahid ihshan who withdraw his syahadah ihshan is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both, and may also be liable to the payment of arsy for hurt to mahkum 'alaihi, if any, according to the respective shares as specified by the Court;

(ii) if mahkum 'alaihi is found to be a muhshan, the punishment of stoning shall continue and the syahid ihshan who withdraw his syahadah is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000, imprisonment for a term not exceeding 2 years or both;

Illustration

A and B have been convicted of zina with the syahadah C, D, E and F. G and H are syahid muhshan against A and B. A and B are found to be muhshan and punished with stoning. During the execution of the punishment, G withdraws his syahadah ihshan. The Court shall cease forthwith the execution of the punishment and refer such case to a superior Court for revision. G has committed an offence under this section.

(b) if syahid zina, zina bil-jabar or liwat and syahid ihshan withdraw their syahadah, the syahid zina, zina bil-jabar or liwat who withdraw his syahadah is guilty of an offence and shall be liable on conviction to whipping with 80 strokes for committing qazaf, and such syahid zina, zina bil-jabar or liwat and syahid ihshan shall be liable to a fine not exceeding $8,000, and may also be liable to the payment of arsy for hurt to mahkum 'alaihi, if any, according to the respective shares as specified by the Court.

Illustration

A and B have been convicted of zina with the syahadah C, D, E and F. G and H are syahid ihshan against A and B. A and B are found to be muhshan and punished with stoning. During the execution of the punishment, C withdraws his syahadah zina and G withdraws his syahadah ihshan. The Court Shall cease forthwith the execution of the punishment. C and G have committed an offence under this section.

(3) When the withdrawal of syahadah zina, zina bil-jabar or liwat and syahadah ihshan is made at the time the punishment of stoning is being executed and mahkum 'alaihi has died, those syahid who withdraw their syahadah is guilty of an offence and shall be liable on conviction to—

(a) payment of diyat according to the respective shares as specified by the Court, if the syahid confesses that he gives his syahadah in good faith and he does not lie;

(b) death as qisas, if the syahid confesses that he gives his syahadah with the intention to lie.

Illustration

A and B has been convicted of zina with the syahadah of C, D, E and F. G and H are syahid ihshan against A and B. A and B are found to be muhshan and punished with stoning. C withdraws his syahadah zina and G withdraws his syahadah ihshan during the execution of the punishment, and A and B died. C and G have committed an offence under this section.

(4) In this section, "syahadah ihshan" means a true statement before the Court using the lafaz "asyhadu" to conclude that the accused is muhshan in case of zina, zina bil-jabar or liwat.

Withdrawal of syahadah in cases liable to punishment other than hadd, qisas, diyat or arsy.

189. When a syahid in cases liable to punishment other than hadd, qisas, diyat or arsy withdraws his syahadah—

(a) after the Court has made the conviction and passed sentence but the punishment has not been executed, the withdrawal of such syahadah is acceptable and the punishment shall not be executed and the syahid who withdraws his syahadah is guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000, imprisonment for a term not exceeding 6 months or both;

(b) after the Court has made the conviction and passed sentence and the punishment is being executed, the withdrawal of such syahadah is acceptable and the Court shall forthwith cease or suspend the execution of the punishment and shall refer the case to a superior Court for revision, and if—

(i) it is found that no conviction is made, mahkum 'alaihi shall be released and the syahid who withdraws his syahadah is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000 or imprisonment for a term not exceeding 2 years, and shall be liable to pay of damages for the loss incurred by the mahkum 'alaihi, if any, according to the respective shares as the Court thinks reasonable;

(ii) it is found that the conviction is made, the punishment shall be upheld and the syahid who withdraws his syahadah is guilty of an offence and shall be liable on conviction to a fine not exceeding $8,000 or imprisonment for a term not exceeding 2 years.

Withdrawal of syahadah by syahid furu' in mal case.

190. (1) When a case is proved by way of syahadah ala al syahadah, the withdrawal of syahadah after the Court has made its order or judgment, whether before or after execution, is invalid, and the syahid furu' who withdraws his syahadah is guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or imprisonment for a term not exceeding 6 months and shall be liable to pay damages for the loss incurred by mahkum 'alaihi, if any, according to their respective shares as the Court thinks reasonable.

(2) In this section—

"syahadah ala al syahadah" has the same meaning assigned to it under the Syariah Courts Evidence Order, 2001 (S 63/2001);

"syahid furu'" has the same meaning assigned to it under the Syariah Courts Evidence Order, 2001 (S 63/2001).

False information by muzakki.

191. (1) If a muzakki, after order or judgment has been made or sentencing by the Court and after execution, confesses that he has given false information regarding the tazkiyah al syuhud, that muzakki is guilty of an offence and shall be liable on conviction to the same punishment as judgment made or sentencing to a syahid who has given false syahadah as provided under section 233(3).

(2) In this section, "muzakki" has the same meaning assigned to it under the Syariah Courts Evidence Order, 2001 (S 63/2001).