Section 38

A instigates B to commit qatl against C. B refuses to do so. A is guilty of abetting B to commit qatl.

D instigates E to commit qatl against F. E in pursuance of the instigation stabs F. F recovers from the wound. D is guilty of instigating E to commit qatl.

Syariah Penal Code

Explanation 3 — It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Illustrations

A, with a guilty intention, abets a person who is not baligh or a person of unsound mind to commit an act which would be an offence if committed by a person capable by law of committing an offence, and having the same intention as A. Here, A, whether the act be committed or not, is guilty of abetting an offence.

B, with the intention to commit qatl against C, instigates D, a person who is not baligh, to do an act which causes C’s death. D, in consequence of the abetment, does the act and thereby causes C’s death. Here, though D was not capable by law of committing an offence, B, is liable to be punished in the same manner as if D had been capable by law of committing an offence and had committed the offence of qatl, and B is therefore subject to the punishment of abetment of qatl.

E, with the intention to offering an intoxicating drink to F, instigates G, a person who is of unsound mind, to offer an intoxicating drink to F. In consequence of the abetment,

G does the act in the absence of E and thereby offers an intoxicating drink to F. Here, though

G was not capable by law of committing an offence, E is liable to be punished in the same manner as if G had been capable by law of committing an offence and had committed the offence of offering an intoxicating drink and E is therefore subject to the punishment of offering intoxicating drink.

A, intending to cause sariqah to be committed, instigates B to take property belonging to Z out of Z’s possession. A induces B to believe that the property belongs to A.

B takes the property out of Z’s possession, in good faith, believing it to be A’s property.

B, acting under this misconception, does not take dishonestly, and therefore does not commit sariqah. But A is guilty of abetting sariqah, and is liable to punishment of abetting sariqah.

Explanation 4 — The abetment of an offence being an offence, the abetment of such an abetment is also an offence.

Illustration

A instigates B to instigate C to commit qatl against D. B accordingly instigates C to commit qatl against D and C commits that offence in consequence of B’s instigation. B is liable to be punished for his offence with the punishment for qatl; and, as A instigate B to commit the offence, A is also liable to the punishment of abetment of qatl.

Explanation 5 — It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Syariah Penal Code 36

Illustration

A concerts with B a plan to commit qatl by using poison on Z. It is agreed that A shall administer the poison. B then explains the plan to C, mentioning that a third person is to administer the poison, but without mentioning A’s name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison. Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has died. C has therefore committed the offence defined in this section, and is liable to the punishment for abetment of qatl by using poison.