Section 109
Recall of witness when charge amended
of Syariah Courts Criminal Procedure Code
When a charge is amended by the Syariah Court after the commencement of the trial. the prosecutor and the accused shall be allowed to recall or re-summon and examii~e. with reference to the amendment, any witness who have been examined, and may also call any further evidence which may be material.
Effect of material error 110.
(1)
If any appellate Syariah Court is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge, or by an error or amendment in the charge, it may direct a new trial to be had on a charge framed in whatever manner it thinks fit.
(2)
If the Syariah Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Separate charge for distinct offences 111.
For every distinct offence of which any person is accused, there shall be a separate charge.
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Trial of offences 112.
Subject to the provisions of this Code. charges for inore than one offence may be tried at one trial.
Trial for more than one offence 113.
(1)
A person may be charged with and tried at one trial on any number of charges which are founded on the same facts or form or are a part of a series of offence of the same or a similar character.
(2)
If the acts alleged constitute an offence falling within two or more separate definitions of any law in force by which offences are defined or punished, the person accused of the offences may be charged with and tried at one trial for each of such offences.
(3)
If several acts of which one or more than one would by itself or themselves constitute an offence, when combined constitute a different offence, the person accused of the offences may be charged with and tried at one trial for the offence constituted by such acts when combined, or for any offence constituted by any one or more of such acts.
(a)
A enticed Muslim married woman to leave the matrimonial home determined by her
OlOUS husband and hid her in a house. When a search with warrant was conducted by a Reli,'
Enforcement Officer, A obstructed the officer from entering and carrying out his duty. A may be charged with and tried for the offence of enticing Muslim married woman to leave the matrimonial home and obstructing the Religious Enforcement Officer.
(b)
B drank liquor or intoxicating drinks during the fasting hours in public during the month of Ramadhan. B may be charged and tried with the offence of drinking liquor or intoxicating drinks and disrespecting the month of Ranzadhan.
(c)
C enticed and persuaded D, a female Muslim to leave the custody of her parents. C delivered D to E, a man for any purpose that is contrary to Hukum Syara7 and encouraged any indecent behaviour. C may be charged separately and convicted with offences under sections 197(2), 202 and 205 of the Syariah Penal Code Order, 20 13 (S 69/20 13).
Where it is doubtful what offence has been committed 114.
If a single act or series of acts is of such a nature that it is doubtfbl which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of the offence, and any number of such charges may be tried at once, or he may be charged in the alternative with having committed any one of the offences.
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A commits an act amounting to propagating religion other than religion of Islam, distributing for the purposes of sale any publication contrary to Hzikurn S))ura' and expounding any doctrine relating to the religion of Islam in manner contrary to Hzlkum
S'ara '. A may be charged with propagating religion other than religion of Islam, distributing for the purposes of sale any publication contrary to Hukzirn Syura' and expounding any doctrine relating to the religion of Islam in manner contrary to Hukzitn S'ara ', or he may be charged with propagating religion other than Islam, or distributing for the purposes of sale any publication contrary to Hzikurn Syaru', or expounding any doctrine relating to the religion of Islam in manner contrary to Hzlkun~ Svara '.
When person charged with one offence may be convicted of another offence 115.
If in the case mentioned in section 114 the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged under the provision of that other offence, he may be convicted of the offence which he is proved to have committed although he was not charged with it.
A is charged with instigating a Muslim woman to neglect her duties towards her husband.
It is proven that A had caused the wife of a Muslim to leave the matrimonial home determined by her husband. A may be convicted with the offence of causing Muslim married woman to leave the matrimonial home although he was not charged with the offence.
Person charged with offence may be convicted of attempt 116.
When the accused is charged with an offence, he may be convicted of having attempted to commit that offence although the attempt is not separately charged.
Person charged with offence may be convicted of another 117.
(1)
Where a person is charged with an offence and facts are proved which constitute another offence, he may be convicted of that other offence although he was not charged with it.
A is charged with the offence of expounding any doctrine relating to the religion of Islam in manner contrary to Hukurn S'lara'. The facts show that A refers to or addresses any person other than the Holy Prophet Muhammad (Sallallahu 'Alaihi Wa Sallam) by the title
"Sallallahu 'Alaihi Wa Sallurn". A may be convicted for the offence of misuse of titles for
Muslims reserved for specific persons although he was not charged with the offence.
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(2)
Where a person is charged with an offence which is to be proved either by ikrar or syahudah in accordance with Hukum Syara' and the offence is proved by evidence other than by ikrar or syahadah in accordance with Hukuln Syara ', he may be convicted of the offence which he is proved to have committed although he was not charged with it.
///us trat ions
(a)
A is charged with the offence of sariqah under section 55(1) of the Syariah Penal
Code Order, 20 13 (S 69/20 13). Only the syahadah of one syahid is admitted in evidence by the Syariah Court. A may be convicted for the offence of sariqah punishable under section 55(3) of the Syariah Penal Code Order, 201 3 (S 691201 3) although he was not charged with it.
(6)
B is charged with the offence of hirabah under section 63(1) of the Syariah Penal
Code Order, 201 3 (S 691201 3). During the trial, his ikrar was not admitted in evidence by the Syariah Court. The Syariah Court may convict him for the offence of hirabah under section 63(2) of the Syariah Penal Code Order, 201 3 (S 691201 3) if such offence is proved by other evidence although he was not charged with it.
When persons may be charged jointly 118.
When more than one person are accused of the same offence or of different offences committed in the same transaction, or when one person is accused of committing an offence and another of abetment or of attempt to commit the same offence. they may be charged and tried together or separately as the Syariah Court thinks fit, and the provisions contained in this
Chapter apply to all such charges.
(a)
A and B are accused of committing qatl. A and B may be charged and tried together with the offence of qatl.
(6)
C and D are accused of cohabitation in a house and during such time C drank liquor.
C and D may be charged and tried together for committing the offence of kl~alwat and C may also be charged for drinking liquor.
(c)
E is charged for the offence of teaching any doctrine relating to the religion of Islam in manner contrary to Hukum Svara '. F cooperated with E by gathering students to be taught by E. E and F respectively may be tried together or separately for the offence of teaching any doctrine relating to the religion of Islam in manner contrary to Hukum Svara' and charged for abetment.
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Withdrawal of remaining charges on conviction on one of several charges 119.
(1)
When more than one charge are made against the same person and when a conviction has been had on one or more of them, the prosecutor coilducting the prosecution may, with the consent of the Syariah Court.
withdraw the remaining charge or charges, or the Syariah Court of its own accord may stay the inquiry into or trial of such charge or charges.
(2)
Such withdrawal or stay shall have the effect of an acquittal on such charge or charges, unless the conviction is set aside, in which case the
Syariah Court may, subject to the order of the Syariah Court setting aside the conviction, proceed with the inquiry into or trial of the charge or charges so withdrawn or not proceeded with.