Section 19

if the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;

if the consent is given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

if the consent is given by a person who is not baligh.

Acts which are offences independently of harm caused to person consenting, are not within the exceptions in sections 16, 17 and 18 20.

The exceptions in sections 16, 17 and 18 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given.

Illustration

Causing miscarriage, unless caused in good faith for the purpose of saving the life of the woman, is an offence independently of any harm which it may cause, or be intended to cause, to the woman. Therefore, it is not an offence by reason of such harm, and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act.

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Act done in good faith for benefit of person without consent 21.

Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit:

Provided that this exception does not extend to —

the intentional causing of death or the attempting to cause death;

the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or hurt or the curing of any disease or infirmity;

the voluntary causing of hurt or the attempting to cause hurt, for any purpose other than the preventing of death or hurt;

the abetment of any offence, to the committing of which offence it would not extend.

Illustrations

A is thrown from his horse, and is insensible. B, a surgeon, finds that A requires to be trepanned. B, not intending A’s death, but in good faith, for A’s benefit, performs the trepan before A recovers his power of judging for himself. B has committed no offence.

C is carried off by a crocodile. D fires at the crocodile knowing it to be likely that the shot may kill C, but not intending to kill C, and in good faith intending C’s benefit.

D’s shot gives C a mortal wound. D has committed no offence.

E, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child’s guardian.

E performs the operation in spite of the entreaties of the child, intending, in good faith, the child’s benefit. E has committed no offence.

F is in a house which is on fire, with a child. People below hold out a blanket.

F drops the child from the house-top, knowing it to be likely that the fall may kill the child but not intending to kill the child, and intending, in good faith, the child’s benefit. Here, even if the child is killed by the fall, F has committed no offence.

Explanation — Mere pecuniary benefit is not benefit within the meaning of sections 17, 18 and 21.

Syariah Penal Code

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Communication in good faith 22.

No communication made in good faith is an offence by reason of any harm to the person to whom it is made if it is made for the benefit of that person.

Illustration

A, a surgeon, in good faith, communicates to a patient in his opinion that he cannot live.

The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient’s death.

Act to which person is compelled by threats 23.

Except committing qatl, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence:

Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.

Explanation 1 — A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of robbers, knowing their character, is not entitled to the benefit of this exception on the ground of his having been compelled by his associates to do anything that is an offence by law.

Explanation 2 — A person seized by a gang of robbers, and forced, by threat of instant death, to do a thing which is an offence by law for example, a smith compelled to take his tools and to force the door of a house for the gang-robbers to enter and commit hirabah, is entitled to the benefit of this exception.

Act causing slight harm 24.

Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

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Right of private defence

Nothing done in private defence etc. is offence 25.

Nothing is an offence which is done in the exercise of the right of private defence and the right of a person.

Right of private defence of body and property 26.

Every person has a right, subject to the restrictions contained in section 28, to defend —

his own body, and the body of his wife and descendant, against any offence affecting the human body;

the property of himself, the property of his wife or descendant, whether movable or immovable, against any act which is an offence falling under the definition of sariqah or hirabah, or which is an attempt to commit sariqah or hirabah.

Right of private defence against act of person of unsound mind etc.