NOTE:

1. PLEASE MAKE FONT ARIAL 11 SPACING 1 AND HIGHLIGHT PROVISIONS IN

GREEN AND CASES IN YELLOW.
2. QURAN/HADITH/OPINION OF SCHOLARS AND PRACTICE DIRECTION IN
ORANGE OR SOMETHING SIMILAR
No. Topic Assigned ✓
(if done)

2 INTRODUCTION TO MAL PROCEDURE IN

THE SYARIAH COURT

3 COMMENCEMENT OF MAL PROCEEDINGS Wardia ✓

SERVICE OF DOCUMENTS

4 PLEADINGS Farida ✓

5 OUT OF COURT SETTLEMENT Umy ✓

INTERLOCUTORY PROCEEDINGS Umy ✓

INTERIM ORDER / INJUNCTION
EX-PARTE APPLICATION

6 HEARING Aishah ✓

JUDGEMENT Aishah ✓

7 APPEAL AND REVISION Muni ✓

ENFORCEMENT Iman ✓
EXECUTION Iman ✓

8 CRIMINAL PROCEEDINGS ✓
PRE-TRIAL PROCESS
INVESTIGATION

9 CONTINUED: INVESTIGATION ✓

10 PRESUMPTION OF INNOCENCE AND ✓

RIGHTS OF ACCUSED PERSON

COMPELLING APPEARANCE

11 FRAMING CHARGE AND PROSECUTION ✓

12 TRIAL Alyssa ✓

13 JUDGEMENT AND SENTENCING Jannah ✓

14 APPEAL AND REVISION Sal ✓

EXECUTION OF SENTENCE

1
RELEVANT STATUTES
Syariah Criminal Procedure Act:
http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_act_lib.nsf/858a07293
06dc24748257651000e16c5/61d29936a675a5cfc8256826002aaba1?OpenDocument
Syariah Criminal Offences Act:
http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_act_lib.nsf/858a07293
06dc24748257651000e16c5/bced11b697691518c8256826002aaa20?OpenDocument
Administration of Islamic Law Act:
http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_act_lib.nsf/858a07293
06dc24748257651000e16c5/50898866b7936120c82568a200176eb1?OpenDocument
Syariah Civil Procedure Act:
http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_act_lib.nsf/858a07293
06dc24748257651000e16c5/7ec9fcc6880b26d1482568160008745d?OpenDocument

QUESTIONS TO ASK MADAM

1. When to apply IFLA

TOPICS
COMMENCEMENT OF MAL PROCEEDINGS 6
Mode of Commencing Civil Procedure 7
SUMMONS 7
STATEMENT OF CLAIM 8
Application 8
Affidavit 9
PARTIES 10
Minor 10
Poor Person 11
Joinder Parties 12
Change of Parties 12
Misjoinder or nonjoinder of parties 12
Abatement of action 12
Peguam Syarie 13

SERVICE OF DOCUMENTS 14
Service Within Jurisdiction 14
Special Cases 15
Substituted Service 16
Proof of Service 17
Service Out of Jurisdiction (but still within Malaysia) 17
Service Outside of Jurisdiction (Outside of Malaysia) 17
Issuance of Warrant 18

SULH 18
Legality of sulh 19
Elements of sulh 19

2
 How to commence sulh? 21
Procedure for sulh 21
Record and enforcement of sulh 22

PLEADINGS 24
Introduction 24
Statement Of Claim 25
Statement Of Defence 25
Counterclaim 26
Defence To Counterclaim 26
Defence To Tender 26
Reply 27
Refusal to accept pleading 27
Amendment to Pleading 27
Cases 27

HEARING 29

INTERLOCUTORY PROCEEDINGS/ INTERIM ORDER / INJUNCTION/ EX-PARTE

APPLICATION 39
Procedure for Interlocutory proceedings 39
Service of Documents 40
Adjournment and non-attendance of parties 40
Setting aside an ex parte order 40
Ex parte order 41
Interim Order 41
Injunction 43

APPEAL 46
Authority 46
Jurisdiction of the Court 46
Who can appeal 47
Rationale 47
Matters need to be considered 47
Appellate Jurisdiction 47

ENFORCEMENT 53
Types of Judgment or Order 54
Enforcement 1: Payment of Money 54
Enforcement 2: Possession of immovable property 55
Enforcement 3: Delivery of movable property 55
Enforcement 4: To do or abstain from doing an act 56

EXECUTION 59
Types of Execution 60
TYPE 1: SEIZURE AND SALE 61
TYPE 2: HIWALAH 62
TYPE 3: SEIZURE AND DELIVERY (MOVABLE PROPERTY) 64

3
 TYPE 4: JUDGMENT DEBTOR SUMMONS 66
EXAMINATION OF JUDGMENT DEBTOR 67
If the Judgment Debtor fails to comply with the order? 67
ORDER OF COMMITTAL 68
CONTEMPT OF COURT 70

PRE-TRIAL PROCESSES 72
COMPLAINT TO A JUDGE 72
Examination of complainant 73
Postponement of issue of process. 73
Issue of Process 73
INFORMATION TO RELIGIOUS ENFORCEMENT OFFICER (REO) 73
Who is REO? 73
Powers of REO 74
​Duty of a Public 74
Procedure 74
Public to give information on certain matters. 74
What if REO received a call that something is happening now? 75
Procedure for Non-Seizable Offence 75
Non-seizable offence 76
Procedure where seizable offence suspected 76

INVESTIGATION (normally come out final exam) 77

Power 1: Power to Question a Witness 77
Statement made in front of REO 78
Does a statement include confession by the accused? 79
Power 2: Power to Arrest 79
How to conduct an arrest without warrant? 81
Arrest with warrant 81
Arrest by a judge 83
Re-arrest 83
Power 3: Power to detain 83
Power 4: Power to search 84
Search of body 84
Search of premises 85
Procedure 85
Power 5: Power to seize 88
What is the effect of non-compliance?​ 89
Cases on arrest 90

PRESUMPTION / RIGHTS OF AN ACCUSED PERSON 92

Right during investigation 93
Right of suspect in arrest based on the presumption of innocence 93
Right to know the ground of arrest 93
Right to Consult Counsel 95
Right to be released on bail 95

4
 Rights during trial 101
Right to be defended 101
Right to get interpreter 102
Right to attend proceedings 102
Right to know charge made against him 103
Right to ask for adjournment 103
Right to remain silent 103
Right to cross examine the witness of the prosecution 103
Right to be applied in front of unbiased judge 104
Right after judgement 104
Right to appeal judgement/sentence 104
Right to get compensation 105

COMPELLING THE APPEARANCE OF THE ACCUSED/ WITNESSES IN THE COURT 106

1. Summons to Appear 106
Procedure 106
Service 106
If personal service cannot be affected? 107
Proof of Service 107
Service Out of Jurisdiction 107
Effect of Non-Compliance 108
Summons For Production Of Documents Or Any Movable Property 108
Procedure 108
Non-Compliance 109
2. Warrant of Arrest 109
Procedure on Arrest of Person 110
Issue of warrant in lieu of or in addition to summons 110

CHARGE 111
Framing a Charge 112
Time, place and person 113
Manner of committing offence 113
Effect of Error 113
Amend or add to charge 113
Trial immediately after amendment or addition 113
Separate charges for distinct offence 114
Exceptions 114
Trial for more than one offence 114
Doubtful what offence has been committed 116
When a person charged with one offence can be convicted of another. 116
Person charged with an offence can be convicted of the attempt. 116
When an offence proved is included in the offence charged. 116
When more than one accused may be charged jointly 117
Omission to frame charge 117
Prosecution 117
Chief Syariah Prosecutor. 117

5
 Employment of Peguam Syarie 118

TRIAL 119

JUDGEMENT, SENTENCE AND EXECUTION 128

Types of Sentences given by the Syariah Court 128
Execution of Sentences 128
CONDITIONS OF BOND 130
RETURN OF WARRANT 131
POWER TO SUSPEND, REMIT OR COMMUTE THE PUNISHMENT 131
Other matters (mitigating factors) 131
CASES 132

APPEAL AND REVISION 133

PROCEDURE 133
Extension of Time 134
APPELLANT OF PRISON 134
APPEAL AGAINST ACQUITTAL 134
STAY OF EXECUTION 134
TRANSMISSION OF APPEAL RECORD 135
PROCEDURE AT HEARING 135
JUDGEMENT AND DECISION 136
DEATH OF PARTIES 136
APPEAL TO SYARIAH APPEAL COURT 137
PROCEDURE FOR SYARIAH APPEAL COURT 137
POWERS OF SHARIAH APPEAL COURT 137
REVISION 138
POWER TO ORDER FURTHER INQUIRY 139
STAY OF EXECUTION OF SENTENCE 139
ORDER ON REVISION 139

COMMENCEMENT OF MAL PROCEEDINGS

Governing Statute: Shariah Civil Court Procedure (FT) Act 1998

Overview/Outline ● Mode of commencing Civil Proceedings

○ Summon & Statement of claim
○ Application + affidavit
■ Special circumstances for application for divorce
● Parties
○ Minor
○ Poor person
○ Joinder Parties
○ Change of Parties
○ Misjoinder/non-joinder of parties
● Abatement of Action

6
 ● Peguam Syarie

Mode of Commencing SUMMONS

Civil Procedure
Section 7(1)
(1) SUMMONS ● Every civil proceeding shall be began by summons
(and SOC
cause Section 8
summons ● (a)Summons shall be in Form MS 2
must be paired
with SOC) ● (b) and accompanied by statement of claim, comply with S63
(statement of claim)

Section 9 - THREE COPIES

● summon against a single D shall be presented for filing in triplicate
(3 copies) and an additional copy shall be presented for every
additional D

Section 10
● Summon complete, upo examination that:
○ 10(1)(a) + Registrar satisfied that summons is in proper
form

○ 10(1)(b) paid prescribed fees

= the Registrar shall assign the serial number, seal, sign

and issue it

● if the summon is incomplete:

○ (10(2) > the Registrar may reject or direct it to be amended

- Period of validity
Section 11(1)
● Each summon shall be valid for the twelve months beginning with
the date of its issue.

- extension of time
Section 11(2)
● the P may apply to extend the validity of summon before expiry
date

- how much time can extend?

Section 11 (3)
● extend date shall not exceed twelve months at any one time,
beginning with the day next following on which it would expire.

- What happens if the summon is lost?

Section 12
● If summons is lost, the Court may order new summons to be issued
bearing the date of, and having the same effect as, the original
summons

7
 STATEMENT OF CLAIM

- Contents of SOC
Section 63(1)
● (a) a concise statement, in a numbered paragraph, of fact relied on
by the plaintiff, indicating his cause of action

● (b)sufficient particular of his claim

● (c)statement of relief claimed

● (d) particular of any other application.

If more than one COA, the ground shall be stated separately - 63(2)

Application Section 7(1)

● subject to (2) and any other written law
outline: ● E.g:
> general provision ○ Any other written law: Islamic Family Law Act

> application must be Section 7(2)

supported by affidavit ● Matters specified in 2nd schedule shall be begun by application
● 2nd schedule (example)
>contents ○ Appointment of Wali Am
○ Injunction restraining the taking of a child out of Malaysia,
> S9 -12 to apply to ○ Injunction against molestation by spouse or former spouse
application ○ Presumption of death
○ Appointment of guardian of property for minors
> Special
circumstances for
application for divorce - Contents of Application + must be supported by affidavit
Section 13
● (1) every application shall be made in Form MS3 and supported by
an affidavit sworn in accordance with the Act

● (2) every application shall state the nature of the order applied for,
in sufficient detail the facts, shal be served on all parties interested
therein.

● (3) the objector shall be referred as respondent

- Forms, issues and service, time of service, loss of summon

(Section 9 -12) for summon SHALL APPLY TO APPLICATION AS
WELL!!
Section 14

CASES

8
 Abdul Hamid Kamaruddin v Rohaya binti Mohamad (2007) JH 24/1, 27
● Maintenance

● where the appeal by the claimant was delayed as the case was
commenced by application and affidavit when it should have been
made by summons and statement of claim

= MUST start with Summons + SOC

Faridah binti Daud dan Seorang lagi v. Mohd Firdaus Abdullah @ Jettle
Francis [2002] 15 JH 25
● Application and affidavit- hadanah and maintenance

SPECIAL CIRCUMSTANCES FOR APPLICATION FOR DOVIRCE

Section 15
● an application for divorce shall be made in accordance with the
procedures laid down in the Islamic Family Law (Federal
Territories) Act 1984 [Act 303],

● and further proceedings in respect thereof shall be conducted in

accordance with that Act

CROSS-REFER:
Section 47. (1) of IFLA
● A husband or a wife who desires divorce shall present an
application for divorce to the Court in the prescribed form

Affidavit Section 112

● Shall be sworn-before any Syariah Court Judge or Registrar, or
before any Muslim officer of the Malaysian Embassy or High
Commission or Consulate or Permanent Mission thereat authorized
to administer oath

Section 113
● Shall be in Form MS 26

Section 114
● (1) Any copy to be used in conjunction with an affidavit shall
annexed as an exhibit

● (2)An exhibit to an affidavit shall be identified by a certificate of the

person before whom the affidavit is sworn, and such cert. shall be
in Form 27.

- Rejection of affidavit
Section 115
● Court has discretion to reject the affidavit

9
 - Amendment
Section 116
● Amendment can only be made for the purpose of correcting any
clerical mistake

- Cross examination @ deponent

Section 118
● Deponent can be cross-examined on the fact deposed to in the
affidavit –

PARTIES

GENERAL:

● All Muslims can sue or be sued in Syariah court

● Exception: person under disability must follow special procedure if they become a party to a
civil proceeding

● Who are person under disability?

○ Section 3
■ Infant
■ a person of unsound mind
■ a person prohibited from administering his property.

● What can they do? Their guardian ad litem can sue or be sued on their behalf
○ Section 24

Minor:
Minor
-Consent or waiver by guardian ad litem
Chapter 2 @ the Act Section 25
● consent or waiver on behalf of person under disability by guardian
ad litem with the approval of the Court shall be binding

Section 26
● (a)- no compromise shall be valid without the Court’s sanction
● (b)- all money or property recovered for the P, the action shall be
paid to the Court

- Irregular proceedings
Section 27
● any proceeding taken by or against a person under disability
contrary with the Act and hukum syarak, shall be dismissed, any
judgment may be set aside.

- Removal or Replacement of Guardian

Section 28
● (a) The Court may remove or replace the guardian ad litem

10
 ● (b)The Court may appoint its officer to be a guardian ad llitem.

- What happens if the minor plaintiff attains age of majority drawing

proceedings?
Section 29
● (1)-minor plaintiff on attaining majority during pendency of any
proceeding may withdraw the proceeding or adopt the proceeding

● (2)- no leave to withdraw shall require

● (3)- if the minor P withdraws his claim, he shall not be liable for
costs unless the Court orders.

● (4)- if >P, the minor P shall not be entitled to withdraw without leave
of the Court but may apply to remove his name, 0r make him as D
instead of P.

● (5)-if the minor P continue the proceeding, shall apply to amend the
title of the proceeding, and release his guardian ad litem.

> What happens if the minor defendant attains age of majority drawing
proceedings?
Section 30
● minor D attaining majority during pendency of proceeding, either
he or his guardian ad litem files an affidavit in proof of majority and
title of the proceeding shall be amended, guardian ad litem shall be
discharged

Poor Person
Section 31
● any person who is unable to pay the Court fees, may apply to the
Court for leave to sue or defend as poor person

● (2)- application Form MS4

● (6)- if the court not satisfied, shall dismiss the application, no

appeal.

Section 32
● the poor person shall not discontinue, settle or compromise the
proceeding without the leave of the Court.

Section 33
● no poor person shall be liable to pay the cost to any party or be
entitled to receive any costs other than the actual expenses
incurred in the court proceeding.

11
Joinder Parties Section18
● Two or more persons may be joined together in one action as P or
D with the leave of the Court

● (a) separate action were brought by or against each of them

● (b) all rights to relief claimed in the action in respect of the same
transaction

Change of Parties Section 19

● The Court may strike out, substitute, or add any party in the
proceeding on the application of any parties

Case
Faridah binti Daud dan Seorang lagi v. Mohd Firdaus Abdullah @ Jettle
Francis [2002] 15 JH 25
● Involves child custody and maintenance.

● P files an application and affidavit applies to the Court to add her

mother as the second P.

● In the affidavit the P states that it is necessary to include her

mother as the second P for custody.

● The Court allows the application.

Misjoinder or
nonjoinder of parties Section 20(1)
● (a) The Court may order any party to cease to be a party

● (b) order any party or whose presence before the Court is

necessary, to be added as a party.

● (2)No person shall be added as P without his consent

Abatement of action Section 22 - in the case of marriage, death or bankruptcy,

● (a) if the cause of action does not survive in accordance with

hukum syarak, the proceeding shall abate

● (b)- if the cause of action survives, the proceeding shall not abate

● (c) in case of death after the conclusion of trial before the judgment
is delivered, the proceeding shall not abate, judgment may be
delivered.

Case:
Siti Nurhayati Muhd Daud v Zaiton Mohd Din (2004) 17 JH 193

● P and D were wives of the deceased.

12
 ● P through her representative, applies for preliminary objection on
the application of JAP made by the D on the ground of lapse of
time, the property claimed by the D solely owned by the P, and in
contrary with hukum syarak.

● Court: Allow the preliminary objection , and dismissed the D’s

application under S58 of the Islamic Family Law Act 1984.

Peguam Syarie - Appointment/Wakalah

Section 34
● (1)- wakalah/ the appoinment of Peguam Syarie shall be
pronounced by the person who appoints, and accepted by the
Peguam Syarie

● (2)PUpon acceptance of his appointment, Peguam Syarie must file

a wakalah form in Form MS5

- Service of document to Peguam Syarie if she represents more than

one part
Section 35
● service of a single copy of any document on the Peguam Syarie
shall be served on all parties

- Change of Peguam Syarie

Section 36
● a party may change the Peguam Syarie by filing a notice of change
in Form MS6 and serve a copy to all parties

# 1 Wakalah for one proceeding

- Discharge of Peguam Syarie by Party

Section 37
● a party may discharge the Peguam Syarie- Form MS7 and serve a
notice to all parties

- Discharge by Peguam Syarie by way of Application

Section 38
● a Peguam Syarie may discharge the appointment- Form MS8 and
serve the copy of notice on the party he represented

- Death
Section 39
● the wakalah of Peguam Syarie shall be determine on the death of
the Peguam Syarie or the party he represented.

Code of Ethics of Peguam Syarie 2002 (Etika Peguam Syarie)-

standard of conducts to govern Peguam Syarie

● Peguam Syarie must observe the code of ethics and personal

moral responsibility for the consequences of their personal actions

13
 failing which may amount to the commission of professional
misconduct

Section 3
● Peguam Syarie shall preserve good behaviour, attitude and
character in carrying out his duty

Section 4
● Peguam Syarie to keep on going seeking knowledge in Shariah
and law to improve his competency and efficiency.

Section 15
● an advocate and solicitor and Peguam Syarie shall act with all due
courtesy to the tribunal before which he is appearing, fearlessly
uphold the interest of his client, the interest of justice and dignity of
the profession without regard to any unpleasant consequences
either to himself or to any other person.

Section 21
● lawyers at the time of his being retained to disclose to the client all
circumstances of their relation to the parties and any interest in
connection with the controversy which may influence the client in
the selection of counsel.

Section 31
● Lawyer shall refrain from any action for his personal benefit or gain,
or takes advantage of the confidence reposed in him by client.

SERVICE OF DOCUMENTS
OUTLINE
- Service Within Jurisdiction
- Special Cases
- Subsituted Service
- Proof of Service
- Service outside of Jurisdiction
- Issuance of Warrant

Service Within - Address for Service

Jurisdiction Section 40
● (1)- every P and other persons ordered by the Court shall
give an address for service in the FT.

● (2)- if Peguam Syarie represents the parties, the address of

the Peguam Syarie shall be the address for service

14
 - Personal Service
Section 41
● (1)-summon/ document shall be served personally to the
person to be served

● (2) a copy bearing seal of the Court and signature of the

Registrar shall be deemed to be original summon/ document

● (3) service of summon/ document shall be affected by an

officer of the Court or by any other person

- What happens if the person does not accept upon service?

Section 42
● if the person required to be served refuses to accept the
summon or document, it may be left near him and his
attention shall be directed to.

- Service on Peguam Syarie

Section 43
● a summon/document may be served to Peguam Syarie

- Service at address for service

Section 44
● (1)- a summons commencing an action shall be served not
less than 7 days before the days of appearance

● (2)- notice of all other proceeding shall be two clear days’s

notice

● (3) the day of appearance may be altered by the Registrar

S46(1)- service may be affected at any place, on any day and at any
time of day or night
(2)- after 4.00pm shall be affected on the following day
(3) after 12.00noon on the day proceeding, any time on weekly
holiday, or public holiday shall be effected on the following day

Special Cases Section 47

● (1)Person under disability, shall be served on guardian ad
litem

● (2)- upon application, the court may make an order of service

on other person (adult)
*(sebab the actual person tu persons under disability so
court boleh order untuk the service dihantar ke atas orang
lain)

● (3)- person in prison, serve on the officer in charge of the

prison

● (4) member of Armed Forces, serve on the commanding

officer or adjutant of his unit.

15
Substituted Service When summons/ document cannot be served in the ordinary way

Section 48
● (1) Affix a copy on the court’s notice board, conspicuous
(obvious) part of the building which the party to be served to
have last resided

● (2) Advertisement in the local newspaper

● (3) Effectual as personal service

*must have proof of absent but no provision

Case:
Halimah v. Mohamed Nasir (1976) 2 JH 292
Court allowed the substituted service on the D.

Azizah bt Ibrahim v Sufian bin Che Mud[2012] 4 SHLR 1

● The P was divorced from the defendant on 26 January 2010.

● The P was demanding the custody rights of the child.

● The case was referred to the Majlis Sulh ('Conciliation

Council') which had met on 19 September and 6 October
2010. The Conciliation Council failed because the D did not
turn up on the above two dates.

● The summons and statement of claim could not be served

personally on the D.

● The court had ordered that the said documents be delivered

to the respondent by substituted service via an
advertisement in a local Malay newspaper.

Rokiah v Maidin (1976) 2 JH 330

● Plaintiff filed for takliq divorce

● Husband did not appear

● Apply for substituted service- advertised in Utusan Malaysia

and all Khadis in Perak

● Held: Newspaper must be produced before the judge. Case

dismissed – conflicting evidence.

Tuminah v Arifin (1982) 4 JH 84

Wife applied for takliq as she claimed that her husband had
deserted her for over 4 years.

16
 Husband failed to appear

Advertised in newspaper and all Khadis court in Johor

Held: Takliq divorce was granted.

Proof of Service Section 49

● (1) By affidavit of the person who affected service, if the

service was personal and the person served was not
personally known to him, by the affidavit of the person who
identified the person to be served

● (2)The person shall sign an acknowledgement of service, but

refusal to do so shall not affect the validity of the service.

Service Out of Section 521(1) - 4 situations for service out of jurisdiction

Jurisdiction (but still
within Malaysia) ● (a) If the whole subject matter of the action relates to
immovable property situated within jurisdiction

● (b) If any relief is sought against any person domiciled or

ordinarily residing or carrying on business within the Federal
Territory

● ( c) If the action being properly brought against a person duly

served within the Federal Territories, a person out of the FT
is a necessary or proper party thereto

● (d) If any case arising from marriage, the residence of one of

the parties to the marriage is at the time of the application
within FT

MODE OF SERVICE

Section 54
● (1) Sent to any court having jurisdiction in the local area in
which the person to be served is said to beeg.
Example: Court in FT to Court in Kelantan to Defendant

● (2) Can also be served by post provided that a written

request for service signed by the Judge/Registrar

Service Outside of Section 52(2)

Jurisdiction (Outside Shall direct in what mode the service is to be effected and how such
of Malaysia) service may be proved

17
 eg. Through Embassy

Issuance of Warrant Section 51 - The court may issue a warrant of arrest if:
● Either before or after the issue of the summons but before
the time fixed for his appearance, the Court sees reason to
believe that he has absconded or will not obey the summons

● If at such time he fails to appear and the summons is proved

to have been duly served and no reasonable excuse is
offered for such failure

NOTE: the Syariah court is empowered to issue warrant of arrest in

order to ensure justice since Syariah court cannot give judgment in
default

Siti Zainab v Mohamad Ishak (1976) 2 JH 323

● The Wife claimed that her husband had deserted her for over
3 months. Although a registered letter was sent to the H and
an advertisement inserted in the newspapers he did not
attend court.

● The Wife give evidence and called 2 witnesses who could

not however support her story. Later she called 2 witnesses
who did so.

● The Wife claimed that she had remained in the matrimonial

home and had not left it and in this he was supported by the
witnesses.

● Held: The court asked her to take oath, to support her case.
After she had taken it, judgment was given in her favour. 1
talaq effected.

Siti Khadijah Abdul Rahman v Mohd Yatim Abu Bakar (2001) 14 JH

SULH
If question on sulh
● Definition
● Legality in quran and hadith
● Sulh rules
○ Include almost all rules
○ Explain the process of sulh rules from the
beginning until the end

18
 ○ Case
○ Application

Definition of sulh
● Article 1531 of Mejelle: A settlement is a contract concluded
by offer and acceptance, and consists of settling a dispute by
mutual consent.

Legality of sulh
1. Quranic verse
Al hujurat: 9
● If two parties among you falls in a quarrel, make peace
between them
● Sulh is one of the methods of making peace and Allah
encourages making peace pursuant to this verse.

2. Hadith

Hadith
● Sulh is permissible between men except sulh on matters
which prohibits what is halal and permits what is haram
● It is prohibited for you to lie except in 3 situations; a husband
lies to his wife to comfort her, lying in war and lying in order to
reconcile between two parties in dispute

3. Practice of sahabat

● Umar
○ “Settle the dispute between them, until they reconcile
for decision made in court will cause revenge.”
○ In other occasion, he said: “It is encouraged to settle
the dispute among parties by sulh as sometimes the
decisions of court may cause grudge.”

4. Opinion of ulama’
● It is agreed by the Ulama’ that sulh is recommended as
sometimes the decision may be made in favor of the wrong
person. A wrong decision may be made in the case where
one of the parties is more eloquent than the other one in fact
it is the latter’s right.

Elements of sulh

1. Parties
● Mukallaf and sane
● The parties should have the capacity to dispose his property
● If the person under disability, must be made through guardian
ad litem with the consent from the court- S 25 & 26 of SCCP

2. Offer and acceptance

19
 3. Subject matter in dispute
● Involves right of man.

4. Can sulh be substituted

● Only the right of man can be substituted with other
rights/things
● The property must exist, known and able to be delivered

Settlement can be divided into two parts:

i) renunciation of right: one person releases another person by
surrendering the whole of the claim or reduce a certain number of
them

Ii) admission of payment: a person admits that he had received what

was due to him from another person.

Application of sulh that occurs in syariah courts

Section 247 (c) SCCP
● Syariah Courts Rules Committee made a rule for the
procedure of sulh known as Syariah Court Civil Procedure
(Sulh) (FT) Rules 2004

A number of states in Malaysia has accepted the concept of sulh and

it is stated in the Procedural Act/ Enactment
Certain cases can be directed to sulh after registration at the Shariah
Court- Practice Direction No. 1 2010
Sulh can be conducted at any stage before the court passes
judgement
● Section 99 of SCCP: The parties to any proceedings may at
any stage of the proceedings hold sulh to settle their
dispute in accordance which such rules as may be prescribed
or in the absence of such rules in accordance with hukum
syarak.

Practice Direction No. 1 2010 states that sulh MUST be referred to in

the following situations
009 - Tuntutan Gantirugi Pertunangan
016 - Tuntutan Muta’ah
017 - Tuntutan Harta Sepencarian
018 - Tuntutan Nafkah Isteri
019 - Tuntutan Nafkah Kepada Pihak Tak Upaya
020 - Tuntutan Cagaran Nafkah
021 - Tuntutan Nafkah Eddah
022 - Tuntutan Mengubah Perintah Nafkah
023 - Tuntutan Tunggakan Nafkah
024 - Tuntutan Nafkah Anak
025 - Tuntutan Mengubah Perintah Hak Jagaan Anak/Nafkah Anak
026 - Tuntutan Mengubah Perjanjian Hak Jagaan Anak/Nafkah Anak
028 - Tuntutan Hadhanah
049 - Tuntutan Gantirugi Perkahwinan
059 - Tuntutan Hak Tempat Tinggal
060 - Tuntutan Perintah Supaya Suami Tinggal Bersama Semula

20
062 - Tuntutan Isteri Kembali Taat
063 - Tuntutan Mas Kahwin

2 Bagi kes-kes ex-parte (interim) tidak perlu melalui proses Sulh.

3. Bagi kes-kes yang telah melalui proses pengantaraan di Jabatan
Bantuan Guaman Malaysia tidak perlu dirujuk ke Majlis Sulh pada
peringkat pendaftaran
4. Arahan Amalan No. 1 Tahun 2000, No. 9 Tahun 2003, No. 14
Tahun 2004 dan No. 14 Tahun 2005 adalah berkaitan.

How to commence sulh?

PRACTICE DIRECTION NO 3 2002:
● When the case is registered, it must be referred within 21
days to the Chairman of Majlis sulh, whereby sulh notice
will be served to the parties involved to attend the sulh
session, and any agreement from the session should be
recorded and read again before the parties and forward it to
the judge for record.
● If sulh failed, the date for hearing will be given to the parties.

Section 94 of SCCP:
● Whereby an agreement by the parties an action has been
settled the court may at any time, by consent of the parties
record the fact of such settlement with the terms thereof and
the record of the settlement shall afford a defence by way of
res judicata to subsequent proceedings.

SCCP (SULH) (FT) RULES 2004

R1- The Rule is not applicable to an application for divorce under
IFLA

R.3- When a summons has been issued by the court, the Registrar
is of the opinion that there is reasonable possibility of a settlement
between the parties the Registrar shall fix a date, as soon as
practicable, for the parties to hold sulh; and shall serve the notice of
the date fixed for sulh on the parties.

R.4- Non appearance will be considered as failure of sulh, the case

therefore will go for trial/ considered as contempt of court in
accordance with s229 of SCCP.

Procedure for sulh

SCCP (SULH) (FT) RULES 2004

R 5. Procedure for sulh.

(1) Sulh shall be conducted in a majlis in the presence of the

parties to the action.

(2) Majlis Sulh shall be chaired by a Registrar or any public officer

appointed for such purpose by the Chief Syariah Judge.

21
(3) In a Majlis Sulh, every party shall appear in person and no
Peguam Syarie may appear or act as such for any party and no
party shall be represented by any person without the leave of the
Chairman.

(4) The Chairman shall, where possible, assist the parties to

resolve the dispute concerning the subject matter of the sulh and
shall give each party an opportunity to be heard.

(5) In a Majlis Sulh, the Chairman may take evidence from the
parties, accept any document submitted and may, if he thinks
necessary, adjourn the Majlis Sulh from time to time.

R6: Where the parties have reached an agreement to settle the

action, wholly or partly, the Chairman shall prepare a draft
agreement and submit it to the parties for their confirmation and
signature and, the Chairman shall transmit the draft agreement to the
Court to be recorded as a judgment

Rule 7: If the action is unable to be resolved in a Majlis Sulh, the

Chairman shall report the matter in writing to the Court

R8: The Court which receives a report under rule 7 shall fix a date
for hearing to continue the proceedings for the purpose of disposing
the case.

R9: No costs shall be allowed for Majlis Sulh

Record and enforcement of sulh

PRACTICE DIRECTION NO 4 2006

Where the parties have reached an agreement to settle the action,

wholly or partly, the Chairman shall prepare a draft agreement and
submit it to the parties for their confirmation and signature and, the
Chairman shall transmit the draft agreement to the Court to be
recorded as a judgment

The agreement of sulh shall be enforced without order of the

Court.

PRACTICE DIRECTION NO 5 2006

The effect of sulh agreement which had been recorded, and signed
by the Court cannot be withdrawn and cannot be appealed by the
parties.

What happens during sulh and what should the officer do during sulh
proceedings?

SULH WORK MANUAL, DEPARTMENT OF SHARIAH JUDICIARY

22
2001

Sulh officer should laid down the regulation which has to be followed
by the parties to Sulh. Among the regulations are:
1. The parties should be given a chance to speak
2. The other party should listen and pay attention and should
not interrupt
3. Should speak in a polite way
4. Should not communicate to each other except in the
presence of Sulh officer
5. Parties have to agree or comply with the regulation
6. S.O. should encourage the parties to cooperate in order to
reconcile
7. S.O. should inform the parties that all the information
gathered is a confidential one

Cases for sulh

Semek bt Mamat V Siti Zubaidah Yasim (1995) 11JH 153
Mother claimed for harta sepencarian against her daughter.
D agreed to settle by way of sulh.

Fatimah Hj Mohd Eusuf v Wan Shahrudin (2006) JH

● The parties reached a settement by way of sulh, whereby the
P agreed to release her right of JAP on a house located at
Kemensah Height, Ampang.

Eshah bt Abdullah, Fatamah bt Daud, Munah bt Daud, Abd.

Rahman bin Daud, Salleh bin Ibrahim v. Aminah bt. Abdul
Razak, Minah bt Awang, Kelsom Binti Mohamad [2003] 16 JH 51
● Ps claimed for jointly acquired property on a piece of land
belonged to Muhammad bin Abdullah against the Ds.
● The claim was settled by way of sulh

Azura Adna
● Confirmation of pronouncement of talaq
● P claim that she had been divorced by her husband twice. 1st
divorce in 1995, ruju’ a month later.
● In 1999, 2nd divorce witnessed by the D’s first wife, and a
man, no ruju’.
● Court order the P to claim any matter arising from the divorce
through sulh. But, sulh fails.
● Court: Application of mutaah, wife maintenance during iddah,
hadanah, child maintenance before the court.

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PLEADINGS

Introduction Definition

● Formal written statement in a civil action, usually drafted

by counsel, served by a party on his opponents, stating
allegations of fact upon which the part pleading was
claiming relief, but not the evidence by which the facts
were to be proved.

● It is a statement in the form of logic and legal.

Process
● Section 63-71 SCPA

Purpose
● To introduce the issues between the parties in order to
enable the court to decide the dispute.

● To inform in advance to the parties in the action about the

allegation that they have to encounter and allow them to take
necessary action.

Importance
● Court’s decision will be based on the pleading filed by the
parties
● The parties only required to prove the facts provided in the
pleading

Principles of pleadings
● Must be clear
● Parties are bound by their pleadings

Murshida Mustakim v Hassim Abdullah

● The parties shall plead the facts, and not evidence
● Plead the material fact
● Sufficient particulars in order
○ To avoid element of surprise
○ To save the unnecessary cost of the parties and the
court

Types of Pleading
1. Statement of claim
2. Statement of defense
3. Counterclaim

24
 4. Defense to counterclaim
5. Defense of tender
6. Reply

Zainuddin v Anita
● Both parties (Plaintiff and Defendant) should be given the
opportunity and time to file their pleading so that the Court
can see the pleading of all parties and determine their
disputed issues. No new issues can be raised in the full trial
except as stated in the original pleading of the parties.

Statement Of S.63 SCPA

Claim
(1)SOC shall be signed by the plaintiff of his Peguam Syarie and
should contains:
(a) concise statement, in a numbered paragraphs, of the fact relied
on by the plaintiff and indicating his cause of action
(b) sufficient particulars of the claim
(c) statement of relief claim
(d) particulars of any other application

(2) if more than 1 COA, the ground of each relief claimed shall be
stated separately

S16 SCPA

(1)the Court may allow any claim or defence to be made orally

provided that the Court shall record particulars of the claim or
defence having regard to the requirement of this Act relating to
summons or application.

(2) the Court shall serve a copy of the record on the party for whom
the claim or defence is recorded

(3) on receipt of the record, the party shall certify, sign or

thumbprint, serve a copy to every party

Statement Of S64(1) - The Defendant may

Defence
(a) serve the statement of defense on the P before the day of
appearance
(b) or appear on the day of appearance and dispute the P’s claim

(2) if the D appears in Court and disputed the P’s claim, the Curt
may order the D to serve a defence

(3) Form MS 16.

25
 Forms of Defence

S65(1)- Signed by the D or his Peguam Syarie

(a) Admit or deny every material allegation of the fact
(b) State concisely of any new facts on which the defendant relies
by way of defense
(c) Raise concisely and without argument any necessary matters of
law

(2) A denial shall not be evasive but shall answer the point of
substance

● Court can refuse to accept the statement of defence if it has

not answer the question and in evasive form

Counterclaim ● It is an opposite claim; especially a claim brought by the

defendant against the plaintiff in a legal action

S66
(1) Shall contain the like matter and particulars as statement of
claim and signed by the defendant or his Peguam Syarie

(2)A counterclaim shall not be made against any person not then a
party to the action, but if a cross action is brought, an order for
consolidation may be made by the Court

Defence To S67
Counterclaim (1)- the P shall defend the counterclaim, file and cause to be
served on the defendant a defense to the counterclaim within
the time as the court shall direct
(2) if the P fails to comply with (1), S16 shall apply as if the P
were a D.

Plaintiff may also appear and dispute the defendant’s

counterclaim

Defence To S68- If the defendant had made the defense of tender before
Tender action is raised, he shall pay into Court the amount alleged to
have been tendered

S72
(1)- A D may pay money into Court in satisfaction of the claim
and costs.

26
 (2) the D shall give the notice to the P of the payment into the
Court

S78
if payment is made with a defence of tender and is accepted,
the D shall be entitled to full costs of the action and the money
should not be paid out without order of the Court.

Reply S69- The Court may, for sufficient reason, grant leave to file and
deliver a reply to a defense, whether such defense is a defense
against a claim or counterclaim

Refusal to accept S70- the Court may refuse to accept pleading or may return for
pleading amendment to any pleading which does not comply with the
requirements.

Amendment to S71- If the pleading does not contain sufficient particular, the
Pleading Court may, of its own motion or on the application of any party,
order the party responsible to file and cause to be served further
and better particulars, and may stay all proceedings pending
compliance.

Procedure

● If before service, can be amended without order of the court

● If after the expiry of any limitation period specified, or after
service, get leave from the Court
● How amendment to be made? Filing a fair copy of the
amended document, indicate the amendment made, and
serve a copy of the amended document on the party/parties
(unless the amendment is ordered during the trial/hearing)
● Clerical mistakes or errors arising from accidental slips or
omissions may at any time be corrected by Court without
formality
● SS 80-84 of SCCP

Cases HASNAH BINTI OMAR v OTHMAN BIN YA @ ZAKARIA - 26

[2008] 1 JH 43

● Wife demands mut'ah of RM140,000.00 while the husband

offers a total of RM5,000.00.
● This offer is called as a defense of tender only when the
defendant filing its Defense, the Defendant / husband pays
into Court the amount allegedly offered. This does not seem
to be done by the husband. In this case the wife does not
agree with the husband's bid amount.
● The Kelantan Syariah High Court approved the amount of

27
 mut'ah amounting to RM10,000.00. The wife was not
satisfied and appeals to the Kelantan Syariah Appeal Court
which then orders that the amount of mut'ah RM15,000.00 to
be paid within 3 months and if it fails then the husband is
subjected under section 133 (1) Islamic family law (Kelantan)

MURSHIDA MUSTAKIM v HASSIM ABDULLAH

● H and W were married on 3rd Jan 1965.
● On 7th April 1990 the D divorced the P without reasonable
cause, out of Cout.
● The divorced was registered on 24th Nov 1990.
● P claim RM200,000.00 as for mut’ah.
● D claim he had retired and has no permanet income.

HC: Muta’ah to be paid RM 20,000.00 to the P.

COA: affirmed the decision made by the HC.

Tengku Puteri Zainah Iskandar v Dato’ Seri Najib Razak (2004)

CLJ (Sya) 340
● The P sued her ex-husband inter for the Mut’ah of RM5m
● The D in his statement of defence, offered to pay the P
RM36,000.
● P seeks to obtain the list of movable or immovable assets
belonging to Datuk Najib or in the name of his agents or
nominees and in the possession of his present wife, Datin
Seri Rosmah Mansor, with details of acquisition, including
dates of purchase, inheritance and other means. She also
seeks to obtain the list of monies or moveable assets which
were transferred out of Malaysia by Datuk Najib or on his
instruction from the date of their marriage.

Court: Reject the application of the P as she had no right to

the list and it is contrary to the objective of mut’ah.

Ahmad Shah Ahmad Tabrani V Norhayati Yusoff 18 [2004] 1 Jh

33

● the wife demands a mut'ah of RM250,000.00 from her former

husband (Appellant / Defendant). In his defense the
Husband said and claimed that he had paid mut'ah of
RM4,000.00 but failed to prove his claim. The wife on the
other hand said that the RM4,000.00 payment was paid as a
child's maintenance.
● The husband made an appeal because he was not satisfied
with the decision of the Syariah High Court which decided he
was required to pay mut'ah of RM70,000.00.
● Kelantan Syariah Court of Appeal: the Mut'ah amount was
RM50,000.00 and paid in installments of RM1,000.00 per

28
 month. Since the amount of RM4,000.00 alleged to have
been paid as a mut’ah does not have enough evidence, then
the wife was asked to take oath of denial receiving a
payment of RM4,000.00 and thereafter the Defendant /
Appellant take an oath, and RM4,000.00 was deducted from
the amount of RM50,000.00.

NORANI BINTI ABD RAHMAN v MD TAIB BIN HANAPI 17

[2004] 1 JH 27
● wife demanded a mut'ah payment of RM30,000.00. As a
defense the husband said that having provided a Kancil car
to the Plaintiff and the cost of purchasing the car that the
husband paid was over RM30,000.00.

● The Syariah High Court of Terengganu: The car is a gft from

the husband / Defendant to the wife / Plaintiff, not mut'ah
payment. After reviewing the evidence tendered by the
parties, the Court allowed a mut'ah claim amounting to
RM3,500.00.

30/3/2022
Attach exhibits with SOC

SOC
● Look at IFLA
● Which provision government that relief in IFLA
● Court will defendant to pay cost on this court
● If not represented by pegaum syarie, state something. If not,
state which is the lawyer
○ Must show wakalah. Each wakalah has fixed
registration number.
● Exhibit attach to SOC

HEARING

RIGHTS OF ● If the parties cannot settle outside court, the matters will be brought
PARTIES to court.
● Allah says in the Quran (An Nisa:58):
○ “God does command you to render back your trust whom
they are due and when you judge between man and man that
you judge with justice, verily how excellent is the teaching he
give you, for God is he who hears and sees all things”.

29
 ● Hadith:
○ “O Ali! If there are two disputing parties before you, do not
decide harshly until you have heard from the second person
just like you heard the first one. Verily, by that, you will make
a better decision.”

● It is important to note whether hearing is in the form of sulh or hakm

proceeding or hearing, the idea is that judges must listen to both
parties before making any judgment. Per the fundamental principle
mentioned in the letter of Umar to Abu Musa al Ash’ari that
judges must listen to both parties before making any judgment.

● Right of the both parties to be heard, to ensure the parties that come
to the court are sufficiently addressed.
● Exception in case or urgency (as discussed under interim,
interlocutory order or other injunctions) based on the hadith sahih
of Hindun bt Utbah (Riwayat al-Bukhari (2211) dan
Muslim(4574)):
○ Hindun went to complain to the Prophet that her husband
(Abu Sufyan) was a stingy person. He did not pay
maintenance to her and her children. Prophet knows who
Abu Sufyan is.
○ Hindun asked the Prophet whether she could take some
money outside his knowledge.
○ The Prophet replied; take what is sufficient for you and your
children. In arabic: khuzi ma yak tizi something (take what is
reasonable for you’).
○ It didn’t mention that prophet had asked abu sufyan or not,
this shows that maintenance is URGENT and needs to be
settled quickly.
○ This is Interim order, authorisation for one party. Provided
that the court is satisfied it is URGENT enough to issue an
order.
● It is the purpose of the judiciary to uphold justice, avoid hardship,
and help the person whose right has been deprived. Therefore, if the
court cannot make decision in the absence of the defendant, the
plaintiff may continuously living in hardship

PREPARATION ● Tell our clients what to expect from the process.

FOR HEARING ● Both must appear before the judge after summons have been
successfully served, make sure there is a summons served both in
and outside jurisdiction. Or even through substituted service. What is
important is that there is a summon served.
● The court must ensure that Wakalah has been taken/pronounced
before the registrar/judge or by lawyer or guardian ad litem for
disabled children per s.120 of SPC.
● All documents are in place:
○ SOC, SOD, and sometimes the court may not even receive
SOD yet but the court can request the defendant to provide
one. SOC must be there.
● Plaintiff will start the case:
○ if the plaintiff is represented, the lawyer will stand up and
address the court. Tell the court what the case is all about. In
cases about divorce by mutual consent, lawyers may be

30
 unnecessary.
● Sometimes the court will even ask for a lawyer's practising
certificate. Ensure that the cert is not expired or the case will be
postponed.
● Otherwise the plaintiff will address the court after the plaintiff's name
is called out by the court officers.

HEARING ● Section 119 of the Syariah Civil Procedure (SCP) - venue of the
hearing (except as otherwise provided in this act or in any other
written law), all proceedings begun by writ must be in an open court
while proceedings by way of application (interim, interlocutory,
injunction) hearing must be in Chambers due to the element of
urgency.
● Open court means accessible to the public except in case of
application for polygamy (by application). Polygamy will be in High
Court.
● Cases begin by summons like divorce, custody, hadhanah etc
generally are conducted in open court because the presence of both
parties are required for the litigation process.
● The question is, whether certain proceedings can be done in
chambers?
○ For etc in custody cases is a litigation process involving
father and mother. Mother was not in the country and the
court gave all custody to the father. The children were with
the father and conflict arose to a point that the maternal
grandparents were not allowed to see the children.
○ Grandparents made a claim to have access to the children.
In this context, under the law, access is generally for mother
and father. However when the grandparents want to see the
children, when it comes to the locus standi, the law does not
cover them much + mother is still abroad. In this situation if
the grandparents make an application to have access, the
question is litigation necessary?
○ Madam said not necessary and the judge should call the
grandparents to the chamber and ask the parents why they
are not allowed to see the children. *this case is based on
madam’s experience and not a reported case.
● The judge should have discretion to discuss in a closed
environment, especially when it comes to personal matters. Open
court is not always suitable for all cases. Madam suggests if cases
for custody, better settle in close court.
● As the law provides, this discretion is not easy for the judge to
practice.
● However there is a general provision of the SCP which puts hukum
syarak as the highest law. Judges may use this to exercise
discretion.
○ S 245 of SCP: any interpretation..which is inconsistent with
hukm syarak shall to an extent be void..and in lacuna, may
apply for hukm sharak.

LITIGATION ● S 121 of the SCP: Process of examination of witnesses,

PROCESS cross-examination and re-examination.
S 121 ● With the right questions asked, we may be able to avoid lengthy
processes and cause a lot of delay.
● This provision also talks about absence of parties. In case of

31
 absence, there are three circumstances under sub (1) para (a-c);

○ Both parties are absent- court may dismiss the claim, not
necessarily a must but subject to court’s discretion. If the
matter is urgent or involves heavy conflict such as abuse etc,
court may consider.
○ When defendant absents- the court may, subject to proof of
service (services done and served) hear and determine
matters in his absence. Court may proceed with the hearing
(not Judgment in default) to hear the statement of claim by
the plaintiff to prove their case- commonly used in fasakh and
takliq and maintenance
○ When plaintiff absents-court may dismiss the action and
proceed to hear and determine statement of defence and
counterclaim (if any)

● This show judge has a wide discretion to determine before the court.
May interfere when necessary.

PROCEDURE ● S 121 (1) (b) of SCP:

FOR S 121 (1) ● Case in Pasir Mas Kelate.
(b): where ○ Madam went to visit her friends there. What happened was
DEFENDANT IS there was a lady working as a rubber tapper and she got
ABSENT married with a man and they worked at the kampung. Then
the man left the wife as he went missing. After 5 years, the
wife married another man probably in Thailand because they
live near the border. After they got married, the husband
came and claimed his wife. The lady thought she was a
divorcee..in this situation the second marriage is not valid
cause her marriage has not been dissolved yet by way of
court or annulment of marriage or death of either party. The
proper procedure is she has to get divorce from the court
first, prove her case husband went missing for more than a
year and after iddah only she can get married. (case based
on madam’s experience to highlight on ignorance of law)
● Thus the principle is, in cases like takliq or fasakh, is it better for the
plaintiff if the defendant did not come either intentionally or not.
(higher chance for court to grant divorce) there will be no cross
examination or lengthy process. It is sufficient for the plaintiff alone
to prove their case.

● To apply this procedure, court has to ensure

○ Summons has been served by personal service
○ If failed, substituted service has been applied to inform the
defendant
○ Date will be set down for hearing

● If the defendant is still absent, the court can form an opinion that the
defendant is not interested and thus allowed to give the necessary
directions, such as by proceeding to hear the statement of claim by
the plaintiff and if the court is satisfied with the proof according to the
standard; the court shall;
○ S 121 (2) of SCP: before the court shall (compulsory) make
any judgment on plaintiffs claim under para (1) b or

32
 counterclaim by defendant under para c, order plaintiff or
defendant to take an oath or iztihar. (to strengthen the
position of the plaintiff and witnesses and to replace the
defendant’s of being absent & the defendant can also
take this oath to deny the plaintiff’s claim)
■ Take note that oath is the weakest form of evidence in
which it should not override a clear evidence
(bayyinah or syahadah)
■ Etc another case in KELATE by madam where the
lawyer of the wife said to madam: Wife has been
beaten by husband and there were police and
medical reports to substantiate her claim for takliq on
the grounds of being abused. Case went to court and
the husband came and wanted to take oath to deny
the plaintiffs claim, after he took the oath, the court
dismissed the claim. Madam said this is NOT the
right procedure. Madam said the bayyinah evidence
by the wife was supposedly sufficient because this is
a civil case and not criminal.
○ Proceed with the judgment either to grant the claim/divorce
or dismiss the claim.
○ Another issue is with regard to divorce pronounced outside
the court and the matter is brought by the wife and husband
being absent. Court said the husband must be there to
pronounce the lafaz and this might cause the wife a limbo.
Now based on the Practice Direction, the plaintiff is able to
bring witnesses who heard about the pronouncement. If over
the phone and loudspeaker is still accepted. The burden of
proof for civil should not be less than 70%.

ISSUES ● Extra caution when the court decided to proceed with the hearing in
RELATING TO the absence of one party, especially if there are abuse cases.
HEARING IN ● Date of hearing must be notified, service must be done and if cannot
THE ABSENCE must be through substituted service.
OF ● Noraini binti Hanipah v Nasruddin Shah Bhagjit Bin Abdullah
DEFENDANT [2007] 23 JH 173
○ The question is whether the court can proceed with the
hearing in the absence of the defendant when the defendant
was only absent ONCE. The defendant said on the last date
he failed to attend because of his confusion with the dates.
○ It was not proper for the court to decide on the basis that the
defendant did not come only once + confusion on his part.
These are good defences for the defendant to challenge the
dismissal.
● Mohd Hassan v Siti Saridza (2004)JH 17 269
○ Court awarded nafkah in the absence of the defendant. (a
matter of urgency).
○ The defendant appeared once throughout the proceedings.
○ Defendant appealed on the basis that the court awarded
nafkah in his absence. However, the appeal was rejected on
the reason that the defendant/appellant failed to show any
interest to resolve the problem.
○ The court was justified to give the order.
● Mohd Radzi Hj Che Daud v Khadijah Yaacob (2002) 15 JH 149

33
 ○ In this case, the Appellant (Mohd Radzi) has appealed
against the decision of the Special Qadhi Court of Tanah
Merah, Kelantan on the custody of two twin sons, namely the
grandson of the Respondent (Khadijah binti Yaacob).
○ The claim was made by the child’s grandmother (Claimant)
as their mother was still studying at UKM. The special Qadhi
Court has heard evidence from the Claimant and his
witnesses including the mother of the child on 18 September
1995. On that day the Defendant was present and ready to
testify by providing two witnesses. However, Qadhi adjourned
the trial of the case to September 24, 1995.
○ On the appointed day, the Defendant and his lawyer could
not attend because the defendant was abroad and his
lawyer was ill. The Qadhi had heard the evidence from the
Claimant and his witnesses as well as the evidence from a
witness of the defendant and the penggulugan by the
counsel of the Claimant.
○ The trial court had given its judgment for Claimant's claim
and ordered that she is entitled to the hadhanah of her two
grandchildren. The Defendant was also allowed to visit his
child at convenient times such as on weekends and public
holidays

SUBPOENA TO ● Ss 102-111 SCP

WITNESS ● A writ commanding a person to appear before the court or tribunal or
to produce document subject to a penalty for failing to comply
● Make a request in Form MS 20 to the court
● Court gives seal to the subpoena and issue it accordingly
● Subpoena shall be served personally, unless the court otherwise
orders
● A witness shall not be compelled to attend on a subpoena unless a
reasonable sum to cover his expenses is tendered to him.

NON-CONTENT ● For application of divorce under section 47 IFLA i.e. Divorce by

IOUS MATTER mutual consent where it requires that both parties must appear in
court.
● If defendant is absence- under practice direction the court may
accept testimony of reliable witness and oath
● Otherwise if the matter is complicated, we may ask the client to
change the ground for divorce.

AT THE END OF ● What is expected at the end of the proceeding is the court will give
THE an order pursuant to S. 130 of the SCP.
PROCEEDINGS ● If the order is based on mutual consent, then any agreement or
settlement that is considered as consent order (s 131 of SCP).
● Consent order applies when the parties settled the dispute by way of
sulh, or agreement or any form of settlement
● This consent order must be reflected in the order of the court. The
order will be the reference for future proceedings- ancillary claims or
appeal.
● That’s why a judge must write his judgement asap so that the parties
can use it for appeal or revision on the law. But revision cannot be
for aggrieved of the decision (this one must through appeal).

34
JUDGMENT & ORDER

INTRO ● It is the final stage of procedures involved in the proceeding

● The court shall deliver its decision on the matter in dispute
● It is considered as the most difficult but important stage
● Hadith Sunan Abi Dawud, Hadith: 3568, Sunan Tirmidhi:
there are three groups of judge :
○ Rasulullah (sallallahu ‘alayhi wa sallam) said: “There
are three types of Judges. One judge shall go to
Jannah and two to Jahannam. The judge who knows
what is right and judges accordingly shall be in
Jannah. The one who knows what is right but
intentionally judges unjustly will go to Jahannam and
so will the judge who rules without knowledge.”

BASIC PRINCIPLE ● All cases have to be adjudged and decided as soon as all
matter involved have been settled and submitted to the
attention of the court.
● This applies to all simple cases where the court can easily
identify the party entitled to the rights in dispute from the
evidence adduced and duly admitted.
● If the court delays in giving the judgment without any valid
excuse, it will hamper and cause injustice to the party who is
entitled to get the right.

EXCEPTION

● In a complicated case, court may need more time before

giving a decision
● A complicated case: evidence shows that both parties are
entitled to the right, evidence is weak, inadequate knowledge
of the court.

GROUNDS OF ● The court has a duty to give reasons/grounds for judgment

JUDGMENT made at the end of each case.
● Parties in the dispute will be well-informed on the underlying
reasons for any decision.
● The ground of judgment is important esp. for the losing party
to know whether the case was rightly decided or not.

BASIS OF JUDGMENT ● Court has to refer to the sources of islamic law to determine
the law applicable to the dispute.
● Court also has to refer to the particular mazhab
● Court should follow the enacted law applicable to the dispute
– as long as it is not contrary to Islamic law

JUDGMENT ● Judge should give written judgment

● For the case determine in open court, the judgment should
be given in open court by the trial judge or another judge or
Registrar
● Judgment will form part of the record of the case
● S 130 of SCCP
● PD no 6 2001

35
FORMS OF ORDER ● Orders by the court
● Consent orders (S 131 of SCCP)
● Transfer of property- s.149 for immoveable property, may
also include faraid or hibah cases
● Payment of money in the context of nafkah, muta’ah, harta
sepencarian etc - (s 133 of SCCP)
○ lump sum payment
○ Installment
○ Method- bank account, payment into court, direct to
the plaintif, set off (one party takes one thing and
another takes another thing etc)
● Injunctions which are temporary-valid for 30 days
● Interim orders- valid until permanent order granted-s.201,
202 of SCCP
● Fail to enforce- s.229 of SCCP for contempt- jail for 6
months or less

FAMILY SUPPORT ● Enforcement agency established by the Federal Government

DIVISION (BSK) in 2008 and in operation fully in 2010 to enforce maintenance
order from the Syariah courts
● Situated in states’ Syariah courts and officers are from the
federal post.
● BSK officers are accorded the tauliah of peguam syarie in
most of the states except Selangor, Federal territories and
Johor.
● Now BSK widens the scope to include enforcement of orders
involving payment of money such as mut’ah.
● Every maintenance paid to children and wife should be kept
in separate account so that any default can be identified (new
consensus)

ENFORCEMENT AND ● Deduction of salary, Married Women and Children

EXECUTION (Enforcement of Maintenance)Act 1968- 13/14 sections
altogether on the power of court to order the employer to
- Enforcement is deduct the salary of the employee
method on how ○ Samiah Yasmin v Muhammad Taufik (2009) JH
we get it 28/1 91: Court recognises deduction of salary to
- Execution is the satisfy debt. The deduction of salary to satisfy debt for
actual failure to pay mut’ah for 100 months.
implementation ● Section 148- Syariah Civil Procedures 1998
○ Seizure and Sale- most of the times it will start with
judgement debtor summon first then only will resort to
seizure and sale. application for seizure and sale and
notice to enforce and execute- (moveable or
immovable property)
○ Garnishee proceeding (hiwalah)- the property or
money in the hand of a third party- for etc. Tabung
Haji, saving in banks, EPF, pension. If parties can
provide information to the court that the defendant
has money in the 3rd party, the court can order to
freeze the asset.
○ Committal order (s 148 (1) c of SCCP) but details
mentioned in section 151 of SCCP- show cause or
jail. Can be applied anytime, no need to start with any
action. If can show the person intentionally refuse to

36
 pay. Show cause why Judgment debtor has not paid
or dont want to pay as ordered by court per s 147 of
SCCP.
● Section 149 of SCCP- taking possession of immovable
property

GARNISHEE ● Unreported case in Negeri Sembilan Wan Dagang bt Wan

PROCEEDINGS Mahmud v. Samsuddin, order for mutah amounted to
RM12k+. To be paid in 8 instalments. JD paid only in 3
instalments and disposed of many properties to avoid
payment of mutah to the ex wife. The wife applied garnishee
proceedings against the trustee/nominee of the husband’s
assets in many companies.
● Finally, the husband agreed to transfer a piece of land
registered under the company and shares as a settlement

CONSENT JUDGEMENT ● Judgment or confession or sulh can be recorded by the court

at any time
● S 131 of SCCP: Judgment by confession or consent of the
parties, including sulh, may be recorded by the Court at any
time.
● & 94 of SCCP: Where by agreement of the parties an action
has been settled, the Court may at any time, by consent of
the parties, record the fact of such settlement with the terms
thereof, and the record of the settlement shall afford a
defence by way of res judicata to subsequent proceedings
from the same, or substantially the same, cause of action.

TERMS OF ● Court shall settle the terms of a judgment or order

JUDGEMENT ● If the term is unclear or has not been settled clearly may lead
to confusion and misinterpretation among the parties
● Ss 132 & 133 SCCP
● Datin Rohaya Hj Mokhsin v Dato’ Hj Jamian bin
Mohamad @ Mohd Semaal (2008) JH 25/2 245
○ Based on the order given by the court, only one of the
orders out of the 10 order sets the time period for the
order to be executed. For orders number 1, 3 and 5,
there is no specified period for the execution of the
order. The respondent has failed to execute the
orders as agreed. The Applicant therefore applied to
the court for an order as to the period of execution of
each order.
○ The Court ruled that the Applicant's application should
be allowed as there was no time limit in the consent
order and no execution of the order was proved since
the date of the order due to the lack of time limit
applied for by the Applicant. Plus, there was no
punctuality commitment was affirmed and proved by
the Respondent.

ORDER OF JUDGMENT ● If any order is made as regard to the payment, judgment

debtor can:
● A) apply the money to be paid by instalments
● B) pay the reduced instalments
● For the payment by instalments, it is deemed to be payable

37
 on the first day of the month unless otherwise order by the
court.
● If there is arrears more than one month, the istalment order
shall be deemed to be vacated and the judgment creditor can
execute the whole amount
● Ss 133 & 134 SCCP

DATE OF JUDGEMENT ● Every judgment shall be dated and take effect on the date on
ORDER which it was given or made
● s 136 of SCCP

JUDGMENT ON ● S 149 of SCCP

IMMOVABLE
PROPERTY (1) Subject to this Act, a judgment or an order for the giving of
possession of immovable property may be enforced by one or more
of the following means, that is to say-

(a) an order of possession;

● b) in a case in which section 151 applies, an order of

committal.

(2) An order for possession shall not be given unless it is shown that
every person in actual possession of the whole or any part of any
immovable property has received such a notice of the proceedings
as appear to the Court to be sufficient to enable him to apply to the
Court for any relief to which he may be entitled.

(3) An order for possession may include provisions for enforcing the
payment of any money adjudged or ordered to be paid by the
judgment or order which is to be enforced.

JUDGMENT ON ● A judgment for the delivery of movable property shall state

MOVEABLE PROPERTY the amount of money to be paid as an alternative if delivery
cannot be made
● S 137 SCCP

DOCTRINE OF STARE ● In making judgment, our Syariah Court is not following the
DECISIS doctrine of stare decisis.
● However, the lower court should respect the principle of case
decided by the higher court. It is as guideline only not
binding.
● PD no 7 2001:
○ decision of SAC shall be binding on the lower court in
the same state.
● PD no 1 2002:
○ decision of the higher court on the same fact and law
to be respected by the lower court.
(this is just for uniformity of the decision if the fact and the
law are same. It still allows the judge to exercise their own
ijtihad)

38
INTERLOCUTORY PROCEEDINGS/ INTERIM ORDER /
INJUNCTION/ EX-PARTE APPLICATION

Summary of
topic

Procedure for Interlocutory proceedings

Section 187 (1)

● Form MS 49- state the general nature of the order applied for
and grounds of the application, be heard in Chambers, unless
court otherwise directs.

Section 187 (2)

39
 ● Shall state the nature of the order applied for in general &
grounds of the application

Section 187 (3)

● May be made ex parte unless court otherwise order

Section 188(1)

● file notice of application, and sealed by the Registrar

Section 188 (2):

● cannot amend the application without the leave of the Court

Section 190

● Supported by an affidavit

Service of Documents
Section 189: Service of Application
● The application shall be served to the other parties not less
than 2 days before the date specified for hearing
● Application for extension can be made before the hearing

Section 190(2)
● affidavit shall serve to every other party of the filing

Adjournment and non-attendance of parties

Section 192: Adjournment
(1) the hearing can be adjourned

Section 193: Non-Appearance on hearing

(1): applicant absent on the hearing of his application: court dismiss

(2) any party to an application fails to attend on the first day or any
resumed hearing: Court may proceed with the hearing

(3) before proceeding in the absence of any party, court shall satisfy
that the application/ notice was served on that party

(4) if application has been dismissed without hearing reason for failure
of the applicant, the court may allow the application to be restored

(5) if the court hear the application in the absence of a party, that the
order made on the hearing has not been perfected, the court may
re-hear the application

Setting aside an ex parte order

S194(1): the court may on the application of any party, set aside an

40
order made ex parte

(2) application shall be made within 14 days from the date of the order
and be heard interparte
S195: Court may allow during the hearing of an application, allow any
application to be heard orally

Ex parte order

Cases that can be heard ex parte

1. Interim order for hadhanah
2. Interim maintenance for the child
3. Order to allow the claimant to move out from the matrimonial
house (in abuse case)
4. Injunction to restraint the abuse
5. Service of summons by substitute service

Interim Order
● Interim order as to hadhanah (custody)
● Interim order as to maintenance

Where is the application made?

● Section 196: Application at the Syariah High Court
● Section 197 (1): Shariah High Court has jurisdiction to grant
interim order
How do you make an application for an interim order?

● Section 197 (2): The application shall be made in form MS 50

and supported by an affidavit

It is temporary in nature until the actual decision is made by the court

Q: Can appeal be made against interim order?

● Section 198: No appeal against interim order

Section 205: where the application made before trial of a cause, if the
Court found that it is better to deal the dispute with an early trial
considering the merits of the application, the court may make an order
accordingly before the period of trial.

Rationale of granting interim order

● For preservation or custody of any property which is the
subject matter of the case.

Power of the Court to grant interim order

● Section 199 (1) SCCP-
● On the application of any party to a cause or matter, the Court
may make an order for the detention, preservation or custody

41
 of any property which is the subject-matter of the cause or
matter, or as to which any question may arise therein, or for
the inspection of any such property in the possession of a
party to the cause or matter.
● case: Wan Puziah Wan Awang V Wan Abdullah bin Muda
(2001) 16 JH 235
○ An injunction order was allowed to stop defendant from
making any transaction or withdrawal from Tabung Haji
Fund on the ground that the subject matter (saving in
Tabung Haji Fund) was an issue and the case was
pending and may lead to frustrated the heirs from
claimant the inheritance.

Section 201 (1) SCCP - power to grant interim order for hadhanah
(custody)
● subject to IFLA, in the application of any party for the
hadhanah in any cause, that circumstances require an interim
order to be made, the court may make such order which shall
have immediate effect, and continue to be in force until the
court makes a decision on the cause.

(2) in case of urgency, the application can be made before the action
has begun

(3) ex parte application, supported by affidavit, and contain:

(a) facts giving rise to the claims
(b) facts giving rise to the claim for an interim order
© fact relied to justify the application
(d) any facts known to the application which might lead the court not
to grat an interim order
(e) any previous similar ex parte application has been made to any
other judge
(f) relief

Section 202 SCCP - Interim order as to maintenance.

(1) Subject to the Islamic Family Law (Federal Territories) Act 1984
[Act 303], if the Court is satisfied, on the application of any party
entitled to maintenance in any cause or matter, that the circumstances
require an interim order for maintenance to be made against the
person liable under Islamic Law to pay maintenance, the Court
may make such an order which shall have immediate effect and shall
continue in force until the Court has made a decision on the cause or
matter.

(2) Where the application referred to in subsection (1) is in respect of

an interim order for the maintenance of a child, the Court shall not
make such an order unless it is satisfied that the father or the person
liable under Islamic Law for the maintenance of the child has the
capability to pay for the maintenance applied for.

42
Practice Direction No. 11( 2003)
● Applicable for ex parte application for interim order, content of
affidavit and certificate of urgency
● It can be filed at any situation where require an urgent order
from the court provided that if the principal case has not be
filed yet, it must be filed within 14 days from the date of
application
● Any temporary order shall be valid for maximum of 30 days.

Practice direction in verbatim

● interim orders extracted in relation to the ex-parte
application is only valid for the stipulated date as ordered
by the court which shall not exceed 30 days from the date
of the order or within 30 days from the date of the order in
the event no date is stipulated by the court unless the
court nullify or sets aside the Orders before the expiry of
the Order
● he contents of the interim order must amongst others contain
the following conditions:
○ i) In the event the affected party of an interim order
feel/claims that relevant facts are not disclosed or
wrongly disclosed, the parties are allowed to make an
inter parte application to nullify on seta side the interim
order;
○ ii) The hearing date for extension, variation or setting
aside of the interim order must be fixed within 30 days
from the date of the interim order;
○ iii) The applicant mousy duly serve the interim
order together with the copy of the application,
affidavit and certificate of urgency filed in support of
the ex-parte application to all parties concerned.

● The affidavit in support of the ex parte application for an

interim order must contain amongst others an undertaking
of the applicant to reimburse all damages assessed accruing
from the wrong interim order.

● Ex-parte application for interim orders must be supported also

with certificate of urgency duly signed by the Shariah lawyer of
the applica

Injunction
Section 200 (1) SCCP - Injunction
● an application can be made before or after the hearing of the
cause, court may grant injunction whether or not the claim for
injunction has been made in the summons

43
(2) application can be made before the action has begun if urgency

(3) ex parte supported by an affidavit, shall contain

(a) facts giving rise to the claim
(b) facts giving rise to the claim for injunction
© facts to justify the application being made ex parte including details
of any notice to the defendant or not,
(d) any answer od the defendant
(e) facts which might lead the court not to grant ex parte
(f) any previous similar ex parte application been made to any other
judge
(g) relief
(4) court shall not grant injunction in any proceedings which is against
the Government

Can a temporary order be cancelled? Yes

● at any affected party by the temporary order has right to apply
by way of inter partes to cancel or vary the order if the
application has not disclose the true/relevant fact of the case
● The date for inter partes must be within 30 days from the
temporary order was granted
● Applicant must give the order and copy of application, affidavit
and certificate of urgency to all the parties affected by the
order
HASLINDA BINTI ALIAS LWN. JOHDI MATTHEW BYRNE @
YAHYA BIN ABDULLAH.

The Plaintiff filed an ex parte application for :

(1) Interim custody for the children
(2) A restraining order
(3) An order to refrain the Defendant from taking the children outside
Malaysia

The trial judge stated that

● the term ex parte is not defined by the statute and a general
principle in all legal systems is that all parties should be given
the right to be heard before disposition of their cases to
ascertain justice for both sides. The law does not allow any
cases to be heard ex parte but there are exceptions provided
by the legal maxims.
● The judge was of the view that even though the court is not
allowed to decide the case without hearing from both sides,
there was an urgent need for the plaintiff to get the order ex
parte due to the fact
○ that the Defendant is the Philippine citizen and the
police report lodged by the Plaintiff.
○ If the application was served to the defendant it was
scared that the defendant will take the children out of
Malaysia before the court proceeding (divorce) begin.
○ The judge said that the existence of urgency is the
essence for the ex parte application.

RADZIAH V PETER R. GOTSCHALK 2 YUSOF BIN ABDULLAH

44
 ● A (Peter) and R (Radziah) married on 11/6/1994, had 1 child
named Julia Aida bt. Peter Rudolph Gottschalk, born on 27hb
November 1995.
● They were not living together. A living in Shah Alam, while the
R in Seremban.
● The Applicant was a Germany
● A’S life style was contradictingto Islam- drinking liquor, eat
pork, never fasting, never performing solah
● On 23/4/2007 the R filed an ex parte application of interim
custody supported with affidavit and the certificate of urgency
signed by the R’s peguam syarie.
● On 24/4/2007 the application was heard and determined by
the SHC Negeri Sembilan. SHC allowed the application
● On 7/5/2007 a copy of interim order had been served to the A.
A filed an application to set aside the interim order granted by
the SHC Negeri Sembilan, i.e. within the 14 days after the
order had been made.
● A also applied the right of custody over the child Julia Aida or
temporary right to access while waiting for full hearing of
custody.
● A also made an application that the school of the child shall
remain i.e. Germane International School, KL
● Judgement
○ SHC: A’s application to set aside the ex-parte Interim
order was set aside. The temporary custody order
remains with the wife to preserve the aqidah, and
welfare of the child.
○ Right to access was granted to the A once in a month,
accompanied by the R or relative, and must inform the
R earlier.
○ Ordered the PDRM and Malaysian Immigration Office
to blacklist travel pass of the kid
○ The R’s application to remain schooling at the
Germane International School was set aside, the court
allowed the child to choose any school with the
consent of the R, Radziah.
○ The R paid all costs

BADRUL HISHAM MOHD RAMLI V HAYATI NAZIR (2008)

● The Court granted an ex-parte order to the App based on
reasonable justification:
● R: her rights over the children and overnight with the children
were denied
● The R’s rights over the children were denied almost 1 month.
● R tendered 2 medical report about the injury on the children
body
● The application for ex-parte (custody) was filed on the basis
that the R was a biological mother of the children, worried
about the welfare and safety of the 3 children, and the right
over the children were denied without reasonable justification
under the Hukum Syara’.
● SHC:
○ Order temporary right of custody to the mother i.e. R,
and the father or the A has the right to access.

45
 ○ The father, made an inter-parte application to set aside
the order.
○ Court: Set aside the ex-parte order, and affirmed with
an agreement between the parties.

RAJA SUZANA RAJA KASSIM & ANOR V KASSIM OTHMAN &

ANOR (2008)
● R1 and R2 were the biological parents of A1, and father in law
and mother in law of A2.
● R1 and R2 claimed for lifetime maintenance and a house
against the daughter.
● There were statements in newspapers stated that, “bapa diusir
anak tuntut hak” (Berita Harian), and “saman anak, menantu?”
(Harian Metro) while the case was referred to sulh.
● Injunction application to stop the R, or R’s representative or
agent, to make any statements either in English or Malay
or other language which can be understood relating to the
court proceedings in the newspaper until the case
decided by the court.
● On 17/5/2007 Court granted the order of injunction to stop the
Rs and the representative/ agent to make any statements to
Harian Metro
● Court granted the order of injunction to stop the Rs to make
any stataments in Malay/English or any language that can be
understood in any media.
● On 10/7/2007 made another injunction application on the
same ground
● Court rejected the second ex parte application.

APPEAL

Authority ● Al-Anbiyaa’:78-79 – “And remember David & Solomon, when they

gave judgment in the matter of the field into which the sheep of certain
people had strayed by night: we did witness their judgment. To
Solomon we inspired the (right) understanding of the matter: to each of
them We gave judgment and Knowledge.
● The Prophet appealed to Allah to reduce the number of obligatory
prayer from 50 to 5 only.
● The case of Zabyah Al Asad or Trap of a Lion.

Jurisdiction of ● If the case was decided at the Subordinate Court, then the parties
the Court may appeal to the High Court.
(To Appeal) ● If the case was decided at the High Court, then the parties may
appeal to the COA.
● Section 139(1) of Syariah Court Civil Procedure (FT) Act 1998
(“FT Act”)
○ (1) An appeal against the decision of the Syariah Subordinate

46
 Court shall be made to the Syariah High Court, and the
decision of a Syariah High Court to the Syariah Appeal Court.

Who can ● Any party who is dissatisfied or aggrieved

appeal ○ Either Plaintiff or Defendant.

Rationale ● Other than consent orders, people are dissatisfied with the orders
delivered by the court.
○ Note: divorce cases are appealable.
● Wrong procedure in certain proceedings.
○ Parties realise the wrong procedure applied after the judgment
have been pronounced.
● Mistakes or errors either in law or fact.

Matters need ● In Shariah Court, it is different from Civil Court where permission from
to be the FCT is not required. However, the permission is required after the
considered expiration of the date.

Appellate ● Shariah High Court

Jurisdiction ○ Authority: Section 48(1)(b) and Section 49 of AILA
○ Section 48(1)(b)(c); situations;
■ Amount claimed not less than RM1k
■ Decision relating to personal status,
■ Decision relating to maintenance,
■ However, if other civil cases, only allowed to
appeal with leave from the Court.
● Cross-refer to Section 49 of AILA:
● (1) An appeal or application for leave to
appeal under paragraph 48(1)(c) shall
be made to the Syariah High Court in
such manner as may be prescribed, but
in any event within fourteen days from
the date of the judgment, order or
decision in respect of which the
application is made or, in the event that
the applicant was not at that date aware
thereof and could not by the exercise of
reasonable diligence have been so
aware, within fourteen days from the date
such judgment, order, or decision came
to his knowledge.
● (2) The Syariah High Court, on hearing
any application for leave to appeal, may
on special ground extend the time for
appealing, notwithstanding that it may
have expired.
○ Section 48(2)(b):
■ in a civil matter, confirm, reverse or vary the
decision of the trial Court, exercise any such
powers as the trial Court could have exercised,
make such order as the trial Court ought to have
made, or order a retrial.

● Shariah Appeal Court

○ Section 52 of AILA

47
 ■ Against any decision made by Shariah High
Court
■ Against the appeal from Shariah Subordinate
Court determined by Shariah High Court, with
leave from the Shariah Appeal court where it
involves public interest.

Authority ● Section 139(3) of Syariah Court Civil Procedure (FT) Act 1998
○ (3) An appellant may appeal against the whole or any part of a
decision.

○ “May appeal” = based on the discretion of the party

● Using Form 29 (Notice of Appeal)

○ Section 139(2) of FT Act.

○ Important things need to make sure:

■ Address

■ Name of the parties as stated in IC

■ Written judgment/order

■ Wakalah Peguam Syarie (if any)/ the parties may

appeal even without a Peguam Syarie.

○ Section 139(4) of FT Act

■ The notice need to be filed within 14 days from the

decision was pronounced, and shall state whether the
whole or a part of the decision is being appealed.

● The judge must provide written judgment within 6 weeks after the
notice of appeal is filed.

○ If the written judgment is not available, the appeal can be

delayed.

○ Within 1 month, the judge must be ready with the written

judgment.

○ There are officers preparing the written judgment.

Procedure *in a simplified order*

1. File a notice of appeal within 14 days to the court appeal from and the
respondent, and pay prescribed fee
2. Court appealed from: notify the appellant that certified copy of notes
of evidence and judgment is ready
3. Appellant: within 14 days deposit a sum of money which will cover the
cost of preparing a sufficient number of appeal records and lodge a
sum of money by way of security for the costs of the appeal.
4. Respondent: may file to the court hearing the appeal and appellant on
his intention to submit at the hearing that the decision appealed
against should be varied.

48
 5. Appellant: within 14 days after the receipt of the notification shall
lodge grounds of appeal in 5 copies addressed to the court hearing
the appeal.

Grounds of ● Section 141

Appeal
○ State briefly the substance of the judgment appealed against
and contains definite particulars of the point of law or fact in
respect of which the appeal is made.

○ Shall not rely on any ground other than those set out in the
ground of appeal unless court otherwise orders.

Process of ● If necessary, the appellant will apply for a stay of execution, which is
Appeal based on the discretion of the court.

○ S144: The filing of a notice of appeal shall not operate as a

stay of execution, but the Court may, on application and on
sufficient cause being shown, stay execution on such terms as
it may think fit.

○ Explanation:
■ It is the power of the court to grant the stay of execution.
○ Case:
■ Hamzah Zainuddin v Noraini
● The HCT have ordered the payment of
maintenance and mut’ah amounting to RM11
Million.
● The Husband appealed and the court order for
stay of execution.
● The payment involves money and 3rd party, the
children.
● It was criticised that when the judgment was
given, if a stay of execution is granted, thus, the
children would not get maintenance.
● After this case, there was a general Practice
Direction in the year 2007; a guideline for
maintenance.
● Practice Direction
○ Stay of Execution is not applied to
maintenance claims.
○ Notice within 14 days after the date of
the judgment/orders
■ So that is why it is important for
the judge to prepare the judgment
since the parties require the
orders to be submitted together
with the notice of appeal
○ If the duration of 14 days lapses, the
leave must be obtained From
subordinate court to the higher court.
■ Allow appeal beyond the 14
days? Leave may be granted due
to maslahah
■ Hence even if after 24 days the ct

49
 has power to give leave for the
appeal to be made – we also
have cases where the ct rejected
the appeal after 14 days lapse

Appeal ● Section 142

Record ● Documents for appeal
■ the pleadings
■ the notes of evidence
■ the grounds of judgment
■ the notice of appeal
■ the grounds of appeal
■ all documentary exhibits
■ the list of non-documentary exhibit, if any

● File 2 copies of the appeal record to the court appealed from within 6
weeks
● Serve the record of appeal to all the parties which has been served
with notice of appeal
● If not represented: Court appealed from shall prepare the appeal
record, notify the appellant and serve to the respondent and file to the
court appeal to.
● Appeal does not operates as a stay of execution unless otherwise
orders
● Grounds of judgment of appeal shall be prepared
● Court appeal from will execute the order.

Appearancee ● Both the appellant and respondent need to appear or be represented

by the Peguam Syarie.
● Section 121
○ It will follow the principles in the hearing

After the ● It is either the appeal is allowed or dismissed.

hearing ● Retrial in the case of procedural defects:
○ Case:
1. Mustafah Bacha v A Habeeba (1991) 7 JH 255
a. Issue: The pronouncement of talaq in one sitting related
to wrong procedures in certain proceedings.
b. Claimed that the pronouncement was not made
voluntarily, and it was under the influence of black
magic.
i. The lower ct actually decided that there was 3
talaq because they just focus on the
pronouncement. The previous judge failed to call
an expert to give opinion.
ii. This is why the Husband appealed, and during
the appeal, the issue of involuntariness is raised.
c. The Appeal Board ordered for a trial by a different
judge,
i. On appeal, set aside the decision and order to
re-trial.
ii. At the retrial level, the Court called the bomoh to
testify whether it is true he was under the black

50
 magic.

2. Siti Rohani v Sazali [1991] 2 MLJ I

a. Wrong law has been applied
b. Fasakh – where the husband failed to provide
maintenance for more than 3 months
c. Court adopt opinion, whether the husband is financially
not able or refuse or neglect
d. Court gives 1 or 2 months to see whether husband is
able to pay the maintenance or not.
e. The husband pays once but failed again to pay the
maintenance.
f. On Appeal, it was held that it is wrong to give one or two
months to see the ability of the husband, once there are
more than 3 months of failure to give maintenance, the
court should grant the divorce.

3. Razimah Haneem v Yusof bin Hasbullah (1993) JH 9(2) 237

a. There was an ongoing proceeding for divorce under
Section 47(5) of IFLA.
b. Section 47(5): (5) Where the other party does not
consent to the divorce or it appears to the Court that
there is reasonable possibility of a reconciliation
between the parties, the Court shall as soon as
possible appoint a conciliatory committee
consisting of a Religious Officer as Chairman and
two other persons, one to act for the husband and the
other for the wife, and refer the case to the committee.
c. The Husband brought the case to the court, claiming the
pronouncement of talaq, but the Wife disagree. The
Wife claimed that she did not hear.
d. The conciliatory committee was appointed [Madam
cakap the process lambat]. So, the Husband decided to
pronounced divorce outside of the court.
e. The court decided to refer the matter back to the first
proceeding.

4. Ramli v Rohani [2010] 30 JH 95

a. Husband pronounce 3 talaq and the court confirm 3
talaq. Later, the husband appeal.
b. Court found 2 version of pronouncement
c. Issue: whether it is valid form of pronouncement
d. During appeal, it was argued that the judge has
mistaken on lthe aw as to the stage of mind of the
appellant
e. Issue: whether remorse is relevant or not
i. Hadith: “…has to produce two witnesses and
must have intention”
ii. In this case, “I divorce by 3 talaq”
iii. Who? Ambiguity and divorce who?
f. Held: divorce 1 talaq not 3 talaq.

51
Revision ● Revision is different from appeal as the appeal is based on
(General dissatisfaction with the judgment.
Overview)
○ Revision is based on the applicable law.

● Appeal is for the dissatisfaction of the parties against the judgment.

● Revision is to be heard at High Court or COA.

● When to revise?

○ At any stage of the proceedings

● The judge or applicant may apply for revision if there is a mistake of

law

○ Substantive law: Imposing the duty on the mother to pay

maintenance for the children

○ Procedural law: Taking evidence after the conclusion of the

proceedings for the custody of the child.

Related ● Power of the Shariah HC to make revision:

Provisions
○ Section 51. Supervisory and revisionary jurisdiction of the
Syariah High Court.

○ (1) The Syariah High Court shall have supervisory and

revisionary jurisdiction over all Syariah Subordinate Courts and
may, if it appears desirable in the interest of justice, either of its
own motion or at the instance of any party or person interested,
at any stage in any matter or proceedings, whether civil or
criminal, in any Syariah Subordinate Court, call for and
examine any record thereof and may give such directions as
justice may require.

○ (2) Whenever the Syariah High Court calls for t} records under
subsection (1), all proceedings in the Syariah Subordinate
Court on the matter or proceeding in question shall be stayed
pending further order of the Syariah High Court.

● Power of the Shariah COA to make revision:

○ Section 53 of Supervisory and revisionary jurisdiction of

the Syariah Appeal Court.

○ (1) The Syariah Appeal Court shall have supervisory and

revisionary jurisdiction over the Syariah High Court and may, if
it appears desirable in the interest of justice, either of its own
motion or at the instance of any party or person interested, at
any stage in any matter or proceedings, whether civil or
criminal, in the Syariah High Court, call for and examine any
records thereof and may give such directions as justice may
require.

○ (2) Whenever the Syariah Appeal Court calls for the records
under subsection (1), all proceedings in the Syariah High Court

52
 on the matter or proceedings in question shall be stayed
pending further order of the Syariah Appeal Court.

● Practice Direction No 4/2004

○ Judge cannot invalidate his own decision but should forward it
to the higher court for revision.

Who can ● Shariah Judge either the trial judge himself or the Judge of the Shariah
apply for High Court
revision ● The parties who have the right to appeal are not encouraged to apply
for revision.
● Practice Direction No 4/2004
○ http://www.esyariah.gov.my/portal/page/portal/BI2004AA/Practi
ce%20Direction%20-%20No%204%20Year%202004
● Practice Direction No 5/2004
○ http://www.esyariah.gov.my/portal/page/portal/BI2004AA/Practi
ce%20Direction%20-%20No%205%20Year%202004

Procedure 1. Practice Direction No 3 2007.

a. http://www.esyariah.gov.my/portal/page/portal/BI2007AA/Practi
ce%20Direction%20-%20No%203%20Year%202007

Example
1. Example given by madam Najibah about Question of law and Question
of Facts.
a. The question of law was raised, whereby the land was earlier
transferred to children of the couple before the divorce
proceeding.
b. A woman was given in marriage by the adopted father. She
thought that the adopted father is her biological father. Later
she got to know the actual situation. What is the status of her
marriage.

ENFORCEMENT

SUMMARY OF THE 1. Must know what is the judgment of the Court.

TOPIC a. Enforcement is only needed IF the defendant did
not comply with the Court order.
2. Must know when is the right time for the Plaintiff to apply
for enforcement
a. At least one month of non-compliance by the
Defendant, can seek Court’s assistance.
3. Which type of enforcement will depend on the judgement

53
 e.g. if judgment is about immovable property then it will
be through the method of immovable property.
a. Can also include ‘abstain or to do’ enforcement.

20.04.2022 General Principle

Section 147(1) SCCP
Once an order was given by the Syariah Court, it shall be
complied without demand.

Section 147(2) SCCP

A judgment debtor shall from time to time inform the Court of his
latest address of residence and failure to comply with the
requirement of this subsection shall be deemed to be a contempt
of Court.

Where there is a failure or refusal to comply with the order, it

becomes necessary to seek the assistance of the court to
enforce the judgment using one or more of the court process.

Types of Judgment or Order

1. Payment of money
2. Possession of immovable property
3. Delivery of movable property
4. To do or abstain from doing an act

Enforcement 1: Payment of Money

Court must specify how much is needed to be paid to judgment

creditor and whether it should be paid in instalments or lumpsum
and whether it will be paid by cash or through online transfer etc.

Section 148(1) SCCP

A judgment of order for the payment of money may be enforced

by one or more of the following means:

(a) An order of seizure and sale

● The property is seized then sold. The money from selling
the property will be paid to the judgement creditor.

(b) Hiwalah proceedings

● It involves a third party.

● The liability to pay the money is obtained from a third
party if the third party has possession of the money.

(c) Order of committal as per Section 151

Section 148(2) SCCP

A judgment or an order may be enforced by an order of
committal.

54
 ● The Court can have the judgment debtor detained in
prison until he/she makes the payment.

Section 148(3) SCCP

The court may commit to prison a person who makes default in
paying.

Enforcement 2: Possession of immovable property

Section 149(1) SCCP

A judgment or order for the giving of possession of immovable

property may be enforced by one or more means:

(a) Order of possession

(b) Order of committal under Section 151

● Usually the last resort when order of possession is not

complied with.

Section 149(2) SCCP

An order for possession shall not be given unless it is shown that
every person in actual possession of the whole or any part of any
immovable property has received such a notice of the
proceedings.

● For example, the plaintiff and defendant own a property.

The property is resided by a family renting the house. If
the plaintiff claims for it, this family must know about the
notice of proceeding which requires the defendant to pass
the possession of the property to the plaintiff. If the family
doesn’t know about the proceeding, the Court will not do
such enforcement until the unit is clear.

Section 149(3) SCCP

An order for possession may include provisions for enforcing the
payment of any money.

● In case in order to transfer the immovable property, it

requires a certain cost, then the Court may also order the
defendant to pay.

Enforcement 3: Delivery of movable property

Section 150(1) SCCP

If the judgment or order for the delivery of movable property or

order which does not give any alternative of paying the assessed
value of property:

(a) Order of specific delivery

● If there’s no alternative value of the property, then you
have to use this.

55
 (b) Order of committal under Section 151
● The Defendant will be detained in prison until the property
is delivered.

Section 150(2) SCCP

If there’s alternative - The judgment or order for the delivery of
movable property or payment of its assessed value:

● This means that instead of delivering the property, the

defendant gives money instead as an alternative.

(a) Order of delivery to recover the property or its assessed

value
● Can give either one, the property of the value of the
property.

(b) Order of specific delivery

(c) Order of committal under Section 151

Section 150(3) SCCP

Order or specific delivery or delivery of the movable property, or
its assessed value may include provision of enforcing the
payment of any money.

● If it incurs a certain cost, the Court may also enforce

payment of any money if necessary.

Section 150(4) SCCP

Judgment for the payment of assessed value of movable
property may be enforced the same means of order for the
payment of money.

● Applies if the delivery of movable property cannot be

done and they agree to pay the assessed value. How to
pay the money is the same way of how to enforce
payment of money as discussed earlier.

Enforcement 4: To do or abstain from doing an act

● Similar to injunction.

Section 151(1) SCCP

(a) If a person required to do an act within specified time,

refuses or neglects to comply with an order.

● To order someone to do a certain act.

(b) a person disobeys a judgment or order requiring him to

abstain from doing an act, the court may enforce by one
or more of the following:

● To order someone to abstain from doing a certain act.

56
 (i) (aa) With the leave of court, an order of committal

(ii) (bb) that person is a body corporate, order

committal against the body.

● In what situation does it involve body corporate?

○ E.g. For payment of money, order for payment
must be paid by the company to be transferred to
the account of children or wife.

Section 151(2) SCCP

Where a judgment or an order requires a person to do an act
within a time specified in the judgment or order and an order is
subsequently made under section 152 requiring the act to be
done within some other time.

Section 152 SCCP

Power of Court to fix time.

Section 151(3) SCCP

Where under any judgment or order requiring the delivery of any
movable property, the person liable to execution has the
alternative of paying the assessed value of the property, and the
judgment or order shall not be enforceable by order of committal
under subsection (1), the Court may make an order requiring the
person to deliver the property to the applicant within a time
specified in the order and that order may be so enforced.

● About to do or to deliver movable property and if the

delivery property has been completed, then he cannot be
enforced with order of committal.

Section 151(4) SCCP

An application under subsection (3) shall be made in Form MS
33 and supported by an affidavit and a copy of the application
and the affidavit shall be served on the person against whom the
order is to be enforced.

57
Section 152(1) SCCP
A judgment or an order requiring a person to do an act specifies
the time within which that act is to be done, the Court may make
an order requiring the act to be done within such time as may be
specified therein.

Section 152(2) SCCP

Where a judgment or an order requiring a person to do an act
does not specify the time within which the act is to be done, the
Court shall have the power subsequently to make an order
requiring the act to be done within such time as may be specified
therein.
● e.g. when the court doesn’t specify the time in the order
earlier, the court can later on include the time
specification to the Defendant.

Section 152(3) SCCP

An application for an order under this section shall be made in
Form MS 34 and copies of the application shall, notwithstanding
any other provisions of this Act, be served on the person required
to do the act in question.

● Court can proceed with this form when the enforcement of

58
 the delivery of the property does not specify time so the
Court can specify the time through this form.

Is it necessary for the Court to specify the time and date?

- It depends on the Plaintiff. Sometimes the Plaintiff needs
it to be delivered on certains, e.g. because she/he is only
available at that particular time.

Section 153 SCCP - Execution by or against person not being a

party
● Applies when the enforcement of the judgment relates to
another third party who is not a party.
● e.g. Court ordered uhsband to pay maintenance to wife
and ordered that husband’s salary be deducted and
transferred to wife. Thus, the company, who is a third
party, will enforce the order under this section.
● The third party will be as if they are a party and
non-compliance can be subjected to other actions such
as order for committal.

Section 153(1) SCCP

Any person, not being a party to a cause or matter, who obtains
an order or in whose favour an order is made, shall be entitled to
enforce obedience to the order by the same process as if he
were a party in the cause or matter.

Section 153(2) SCCP

Any person, not being a party to a cause or matter, against whom
obedience to any judgment or order may be enforced, shall be
liable to the same process as if he were a party in the cause or
matter.

EXECUTION

How to determine which type of execution is suitable?

1. Look at the type of enforcement
a. Whether it involves money or delivery of property
i. Money 159(1)(a) etc.
2. Identify what property the defendant has
a. Also look at whether the defendant has property or not
i. E.g. if you know the defendant has savings account then can also
apply to seize the money (not sell)
3. Also look at whether the property is under third party, then hiwalah applies

Note: Execution explains HOW to enforce the enforcement modes.

25.04.2022 Section 154(1) SCCP

An order for execution to enforce a judgment shall be issued
with the leave of the court:

59
 a) If the is Judgment/order is subject to any condition

b) After 6 years from the date of the order

c) Any change has take place by death or otherwise

parties liable to the judgment

● e.g. father died so the grandfather has to pay

the maintenance (father’s father)

d) Execution for some other person other than judgment

debtor (hiwalah)

e) Order of committal is outstanding

f) Order for payment by instalment is still in force

g) Execution has been stayed by the court

Section 154(3) SCCP

Application for execution can be made ex parte, however court
can direct notice to be served to the other party.

● Even without asking the Defendant why he did not

comply.

Section 155 SCCP

A judgment creditor shall submit form MS 35 to the Registrar
an order for execution, who shall sign, seal the order in
duplicate, file one copy thereof and deliver the other to the
bailiff for execution.

Types of Execution
● Depends on type of enforcement and depends on the
judgment.

Section 159(1) SCCP

(a) Seizure and sale of movable property under Sections

160 and 174

● When does this apply?

○ When the plaintiff wants monetary payment from
defendant but defendant fails to comply.

(b) Hiwalah proceeding under Section 161

● When the defendant cannot simply withdraw the money

and requires hiwalah proceedings. e.g. KWSP.

(c) Seizure and delivery under Section 163

(d) Attach the income of judgment debtor as per Married

Woman (Child Maintenance Act) 1950

60
Section 159(2) SCCP
Every order for execution -
(a) shall state by which methods as specified under
subsection (1) execution is to take place; and

● Must specify which type of execution is applicable.

(b) shall specifically describe the property to which the

order relates.

TYPE 1: SEIZURE AND SALE

Section 160 SCCP

(a) the bailiff shall -
(i) take the property and place it under his custody;

(ii) if the property consists of shares, stocks,

debentures or bonds not transferable by
delivery, in any loan or fund, serve on the
appropriate authority a copy of the order for
execution in Form MS 36 together with sufficient
description of the shares, stocks, debentures or
bonds seized, and thereafter no transfer of the
shares, stocks, debentures or bonds shall be
registered except with the leave of the Court,
and any interest or dividend in respect of the
shares, stocks, debentures or bonds shall be
paid into Court
● So long as the bailiff keeps this property
it cannot be sold or transferred etc.

(b) after seizure of property, any alienation or disposal of

the property seized, otherwise than with the leave of the
Court, shall be void against the bailiff, and such action
shall also be a contempt of Court;
● The property cannot be transferred or disposed
to anyone or else it will be contempt of court.
(c) at any time before sale, the judgment creditor may request
the bailiff to release any specified property, and such release
shall not be deemed to be abandonment of the execution as a
whole;

(d) at any time before sale, the judgment creditor may abandon
the execution, and the bailiff shall thereupon return the order
for execution to the Court;

● May obtain if the plaintiff has obtained money from the

defendant before the sale occurred.

(e) the bailiff shall, unless the property seized be money,

proceed to sell the property in accordance with this Part;

● Applies when the bailiff receive the property, the

61
 defendant never pays anything to plaintiff so the bailiff
can proceed with selling the property.

(f) the bailiff shall, on completion of the execution, make a

return relating to the execution and submit it to the Registrar.

● Once the seize and sale is completed, the bailiff will

need to submit report to the court saying that execution
has been completed.

Section 174 SCCP

All sales shall be by public auction during office hours and a
notice in Form MS 41 as to the date, time and place of the
intended sale shall be posted at the Court's Notice Board and
at the place of the intended sale not less than seven days
before such sale.

TYPE 2: HIWALAH
● Involves a third party who has control over the property.
e.g. property is kept by third party, in order for the third
party to release the property, it requires an order from
the court.

Section 161(1) SCCP

In this section, "property" includes a debt due by the muhal
'alaih to the judgment debtor.

● Must identify if property is under the possession of

muhal ‘alaih or defendant.

Section 161(2) SCCP

The following provisions shall apply where the execution is
ordered by attachment of property in the possession or control
of a muhal 'alaih:

(a) the bailiff shall serve on the muhal 'alaih a hiwalah

notice in Form MS 37, and the notice in Form MS 38
shall be used if the property is in the Court;

● If third party refused to oblige the Court then it

will amount to contempt of court.

(b) all property specified in a hiwalah notice shall be

attached as from the service of the notice on the muhal
'alaih to the extent or value therein mentioned, and any
alienation or disposal of the property contrary to the
terms of the notice, except with the leave of the Court,
shall be void against the bailiff, and such action shall
also be a contempt of Court;
● No transfer or disposal of property allowed or
else it will amount to contempt of court.

(c) the muhal 'alaih may pay to the bailiff the amount
claimed or may deliver to him the property attached;

62
 (d) if the muhal 'alaih does not make such payment or
delivery, the bailiff may serve on him a hiwalah
summons in Form MS 39 and the Court shall examine
him as to the property attached:

● Non-compliance then muhal ‘alaih can be

issued summons.

Provided that -

(i) no such summons shall be issued to a public servant in

respect of money or property in his possession in his
capacity as such, except with the leave of the Court and
the consent in writing from the Treasury; and

● For example, a HR needs authority from top

management to release the money.

(ii) no such summons shall be issued in the case of money,

investment funds or property in any Court;

● If the property has been seized and kept in court

then cannot issue the summons.

(e) the Court may hear other evidence on any hiwalah

summons;

● If the third party claims that he no longer kept

the property then he must give evidence on that.

(f) after hearing the summons, the Court may make an order
for payment or delivery and may order execution to be issued
against the muhal 'alaih for any property found to have been
lawfully attached in his hands, as if he were himself a judgment
debtor for the amount claimed against the original judgment
debtor, or for the amount or value of the property in the muhal
'alaih's hands, whichever is less;

● Applicable in situation after hearing the summons and

Court found that it is possible for the muhal ‘alaih to
transfer the property then the muhal ‘alaih must
observe the order.

(g) the Court -

(i) may order costs against the muhal 'alaih, and may
grant or refuse him his recourse therefor against the
judgment debtor;

(ii) may allow costs to the muhal 'alaih against the

judgment creditor, and may grant or refuse leave to
treat the costs as costs of the execution;

63
 ● If there is any delivery cost for the property then the
muhal ‘alaih must be paid for that purpose.

(h) if a debt due on a judgment and payable by instalments is

attached, the muhal 'alaih shall not be liable to pay except in
accordance with the order for instalments;

(i) payment by the muhal 'alaih under this section shall be a

valid discharge against the judgment debtor;

● Once the muhal ‘alaih has transferred, then the

judgment debtor is not longer obliged by the order of
the court.

(j) the bailiff may, at the request of the judgment creditor, and
shall, if so ordered by the Court, withdraw any hiwalah notice
or hiwalah summons;
● If the plaintiff requests to withdraw then the plaintiff shall
do so. But in what instances can the plaintiff do so?
○ When the judgment debtor pays the debt.

(k) a hiwalah notice shall be deemed to be vacated three

months after service, unless proceedings under the summons
are then pending or the Court otherwise orders.

TYPE 3: SEIZURE AND DELIVERY (MOVABLE PROPERTY)

Section 163 SCCP

Where execution is ordered by seizure and delivery of a chattel
(movable property)-

(a) the bailiff shall seize the chattel and upon payment of
all expenses due shall deliver it to the judgment
creditor;
● The bailiff will hold the property until the
enforcement and execution is completed.

(b) the order for execution may, if the judgment creditor so

desires, order that if the chattel cannot be found, the
value thereof, as found either in the original judgment or
on subsequent application to the Court, shall be levied;

● If it is impossible to deliver the chattel if cannot

be found, then alternatively, the judgment debtor
can pay money.

(c) an order under paragraph (b) shall not bar proceedings

for commitment.

Section 164(1) SCCP

The bailiff shall not be obliged to take any action under an
order for execution until the judgment creditor has deposited a
sum sufficient in the opinion of the bailiff to defray any
expenses of the execution, including those of keeping

64
possession for a period not exceeding fourteen days, and if the
bailiff has to remain in possession for more than fourteen days,
he may require a further deposit and may release the property
if such deposit is not furnished.

● However if there is any cost for the purpose of the bailiff

keeping the property, the judgment creditor must
deposit it to the bailiff.

Section 164(2) SCCP

The bailiff shall keep a record of all monies deposited with him
under subsection (1).

Section 169(1) SCCP

The bailiff shall make a return in Form MS 40 to every order for
execution as soon as he has completed the execution and
shall deliver a copy of the return to the judgment creditor and
the judgment debtor.

● For all type of execution, when the order has been

completed. The bailiff has to inform to the court by filing
form MS 40 to inform that the execution has been
completed and a copy of it has to be served to the
judgment creditor and debtor.

Section 169(2) SCCP

The judgment creditor shall have the right to inspect and copy
any inventory of property, sale account, voucher or other
documents relating to the execution which is kept or managed
by the bailiff.

Section 158 SCCP

Satisfaction

Where the Court is satisfied that the judgment debtor has

satisfied the judgment, the Court may, on the application of the
judgment debtor, record in the Register of Mal that the
judgment has been satisfied.

● Applies regardless if execution is completed or not, but

let’s say not completed the judgment debtor suddenly
complies with the court order. So the judgment creditor
has to inform the registrar.

Section 162 SCCP

Money and property in Court

Money, invested funds or other property of the judgment debtor

in or under the control of the Court which gives the judgment
may, if an order for execution has been made, be applied with
the leave of the Court towards satisfaction of the judgment
debt, and investment and property other than money may for

65
such purposes be ordered to be sold.

TYPE 4: JUDGMENT DEBTOR SUMMONS

Section 175 SCCP

● This chapter applies to the execution of any judgment
for the payment of money.
● e.g. if the order or judgment is about payment money
and you want to examine the the capability of the
judgment debtor to comply with court order for the
payment of money, then judgment debtor summons
apply.
● Court will examine the monthly income of the judgment
debtor etc.

Section 176(1) SCCP

Judgment Creditor may require judgment debtor to appear in
court to be examined orally of his capacity of paying or settling
the judgment debt and to get any property which may be used
for such payment.

Section 176(2) SCCP

An application by filing Form MS 42 signed by the applicant or
Peguam Syarie.

Section 176(3) SCCP

Where a judgment has been given against two or more
persons, the judgment creditor may require the judgment
debtor summons to be issued against each or any of the
persons liable under the judgment.
● For the purpose of examining the capability of the
judgment debtors to comply with the court order.

Section 177(1) SCCP

The Court will issue the judgment debtor summons in Form MS
43.

Section 177(2) SCCP

Must serve it not less than 7 days before the date fixed for the
hearing.

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EXAMINATION OF JUDGMENT DEBTOR
Section 178 SCCP
(1) Judgment debtor will be examined by the Court or other
witnesses on iqrar

(2) If the judgment debtor is not present,

(a) The court may issue order for arrest or
(b) make an order under subsection (3) against
judgment debtor.

(3) Court order judgment debtor to pay the debt

(a) immediately in a lump sum or within such time,
(b) or by instalment

If the Judgment Debtor fails to comply with the order?

Section 179(1) SCCP
If JD fails to comply with the order, the judgment creditor by
way of judgment notice request judgment debtor to appear in
court to show cause why he should not be committed to prison
for such refusal.

Section 179(2) SCCP

An application for a judgment notice shall be made and sworn
by the applicant in MS 44.

Section 180 SCCP

(1) the court shall issue the judgment notice in Form MS 45
(2) The judgment notice shall be served personally to the
judgment debtor at least 7 days before the date fixed
for appearance in which respect the order is made.

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ORDER OF COMMITTAL
Section 181 SCCP

(1) After hearing the judgment debtor, the court may make
order of committal for a period not exceeding 30 days
or vary the previous order as it thinks fit

(2) if the order of committal is made, the court may order

the execution of the order to be suspended with a

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 condition to enable the judgment debtor to pay the
amount as stated in the order.

● Basically can put conditions where if the

judgment debtor can settle the payment then the
court can suspend the order of committal until
he complies with the court order.

Section 182 SCCP

The order of committal shall be in form MS 46

Section 185 SCCP

Any order of committal shall contain the date on which the
order is made and shall be enforced for a period of one year
from that date.

Section 183 SCCP

Where an order of committal is made under section 181, the
judgment debtor may, at any time pay, the amount stated in the
order, and obtain his discharge.
● Payment by judgment debtor will discharge him from
the prison.
● e.g. during his detention was able to comply with the
Court order.

Section 184 SCCP

(1) if a judgment debtor is imprisoned under section 181 is
satisfied by payment or otherwise, the judgment creditor shall
lodge with the Registrar a certificate of satisfaction signed by
him in Form MS 47.

(2) If the judgment creditor makes default in lodging the

certificate referred to in subsection (1), the judgment debtor or

69
any person on his behalf may apply to the Court for an order
for his discharge, and the Court in making such order may
direct that the cost for such application be paid by the judgment
creditor.

● This is in the instance where the judgment creditor

forgot to inform the registrar/unintentionally forgot to
inform.

(3) An order under subsection (2) shall be in Form MS 48.

CONTEMPT OF COURT

Section 229 SCCP

If liable, can be committed to prison for a period not exceeding
six months or may impose a fine not exceeding RM 2,000

Contempt committed in court, it is not necessary to serve a

show notice but the Court shall ensure that the person alleged
understands the nature of the offence alleged and has the

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opportunity to be heard in his own defense, and the court shall
make a proper record of the proceedings.

● If the court happened in court then it is not necessary

for him to show notice to court. But the court must show
the person what was the wrong done to amount to
contempt of court.

Contempt committed outside court

Notice to show cause why an action or proceedings should not
be taken against him shall be served personally on the person
alleged to have committed such contempt.
MOHD ASRAF BIN SULTAN MOHAMAD V MUMTAJ BEBE
BINTI RAHMAT
The applicant obtained from the Shariah Subordinate Court
Shah Alam an order against respondent to vacate the house in
Shah Alam.

Respondent however ignored the order.

Applicant felt that the conduct of the respondent could amount

to contempt of court and applied to the court to issue a show
cause notice why committal proceedings cannot be taken
against her and applied for the respondent to be committed in
prison.

ROSLAILI BT ABDUL GHANI V AHMAD AZMAN BIN YACOB

Plaintiff obtained an order from the Shariah Subordinate Court
Hulu Selangor right to visit and take the children on weekends.
Plaintiff applied to the court for a show cause notice why the
defendant cannot be committed to the prison for failure to
comply with the order given by the court.

In this case the plaintiff was not allowed by the defendant to

visit the children.

NORAINI TAHA V RIZAL SAZALI OMAR

JD (the D) and JC were ex-Husband and ex-Wife.

They were married on 3rd April 1999 blessed with 3 children.

The judgement debtor pronounced divorce out of court on 16th

Feb 2006.

Court made an order with a mutual agreement by the parties

that D has to pay maintenance for 3 children (under the
custody of the JC) RM 3000.00 at the end of every year

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 However, the JD fails to pay, thus the JC filed a summons
against the JD.

In the form MS 42, JC stated that the JD owed RM28,000.00.

In the JDS, form MS43 amount of the debt was RM28,000.00

Judgment debtor claimed that he had paid RM 42,000.00 in

2006 through an ATM to the judgment creditor’s Maybank
account, but he has no evidence to support his claim.
On 30th April 2007, judgment creditor’s SL checked in the
account and found that the amount of RM 42,000.00 has been
deposited into the account.

The Court held that the judgment debtor owed RM 23,800.00

against the judgment creditor since August.

The judgment debtor must pay to the judgment creditor’s

account as follows:
1. RM500.00 per month for 46 months from August 2007
until May 2011, and RM800.00 for 47 months in June
2011
2. Judgment debtor’s default in payment amounts to
contempt of court.

PRE-TRIAL PROCESSES

11.05.2022 ● Mode of commencement of criminal proceeding:

○ a) complaint to a judge

○ b) Information to REO

Section 2
"complaint" means the allegation made orally or in writing to a
Judge with a view to his taking action under this Act that
some person whether known or unknown has committed or is
guilty of an offence.

1. COMPLAINT TO A JUDGE

Section 72
(1) Subject to this Act, a Judge may take cognizance of an
offence-

(a) upon receiving a complaint as defined by this Act;

72
 (b) upon his own knowledge and with evidence to
support that such offence has been committed;

(c) upon any person being brought before him in

custody without process accused of having
committed an offence which such Judge has
jurisdiction to try.

(2) When a Judge takes cognizance of an offence under

paragraph (1)(b), the accused or, when there are several
persons accused, any one of them shall be entitled to
require that the case shall not be tried by such Judge
but shall be tried by another Judge.

Section 74
Examination of complainant
(1) When a Judge takes cognizance of an offence on
complaint, he shall at once examine the complainant
upon oath as in Form 6 of the Schedule, and the
substance of the examination shall be reduced into writing
and shall be signed by the complainant and also by the
Judge.

(2) This section shall not apply to a complaint of an offence

where a summons is applied for in a summons case
made by a Religious Enforcement Officer.

Section 75
Postponement of issue of process.

If the Judge has reasonable doubt as to the truth of a complaint

of an offence of which he is authorized to take cognizance he
may, when the complainant has been examined, record his
reason for doubting the truth of the complaint and may then
postpone the issue of process for compelling the attendance
of the person complained against and either inquire into the
case himself or direct a Religious Enforcement Officer to
make inquiries for the purpose of ascertaining the truth or
falsehood of the complaint and report to him the result of such
inquiries.

Section 77
Issue of Process
If in the opinion of a Judge taking cognizance of an offence there
is sufficient ground for proceeding, he shall issue a summons for
the attendance of the accused.

2. INFORMATION TO RELIGIOUS ENFORCEMENT

OFFICER (REO)

Who is REO?
- Appointed under JAWI (for KL)

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Section 58(4) AILA

REO to assist in the investigation of offences under the

Enactment or other law relating to the Islamic law offences.

Powers of REO
Power to investigate includes power to question, search, arrest,
seize.

​Duty of a Public
Duty of public to inform if there’s any criminal offences done by
the accused.

Al-Imran: 104
۬
‫ك ُه ُم‬ َ ‫ُون ِإ َلى ۡٱل َخ ۡي ِر َو َي ۡأ ُمر‬
َ ‫ُون ِب ۡٱل َم ۡعرُوفِ َو َي ۡن َه ۡو َن َع ِن ۡٱلمُن َك ِۚ‌ر َوُأ ْو َل ٰـٓ ِٕٮ‬ َ ‫َو ۡل َت ُكن مِّن ُكمۡ ُأم ٌَّة َي ۡدع‬
١٠٤( ‫ُون‬ َ ‫)ٱلمُفلِح‬ۡ ۡ

And there may spring from you a nation who invite to goodness,
and enjoin right conduct and forbid indecency. Such are they who
are successful.

Al-Maidah: 2
‌ٰۖ ‫َو َت َع َاو ُنو ْا َع َلى ۡٱل ِبرِّ َوٱل َّت ۡق َو‬
‌ِۚ ‫ى َواَل َت َع َاو ُنو ْا َع َلى ٱِإۡل ۡث ِم َو ۡٱلع ُۡد َو‬
‫ٲن‬
help ye one another unto righteousness and pious duty. Help not
one another unto sin and transgression

Hadith
1. Mukmin with another mukmin is like a building, they
strengthen each other.

2. Whoever sees a mungkar, should prevent it …

General principle: public has a duty to give information about the

crime committed, but at the same time, should observe other’s
right

It is not spying, different from spying.

As the hadith said:

If any person peeps at you without your permission and you poke
him with a stick and injures his eye, you will not be blamed.

Procedure

Section 9 SYARIAH CRIMINAL PROCEDURE ACT

Public to give information on certain matters.

Every person aware of the commission of or the intention of any
other person to commit any offence shall forthwith give
information to the nearest Religious Enforcement Officer or police
officer of such commission or intention.

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e.g. how to know if there’s intention? Look at the preparation of
the commission of the crime.

Section 54 Syariah Criminal Procedure Act

(1) Every information relating to the commission of an
offence, if given orally to a Religious Enforcement Officer,
shall be reduced into writing by him or under his
direction and be read over to the informant.

(2) Every such information shall be entered in Form 5 of the

Schedule to be kept by such officer, who shall append to
such entry the date and hour on which such information
was given, and whether given in writing or reduced into
writing as provided in subsection (1) shall be signed by
the person giving it.

Significance: to justify the investigation and will be admitted as

evidence. [the informer can be called as a witness.]

Q: If the person giving the information refused to be known?

Q: Can the REO initiate the investigation if there is information?

- yes

What if REO received a call that something is happening

now?
● REO will write it down.
● Does he have to call the informer to come to the office
now?
○ If very serious and grave then REO will have to
immediately respond then REO can just sign the
report as if the REO is the one.

Section 55 Syariah Criminal Procedure Act

Procedure for Non-Seizable Offence

(1) When the information referred to in section 54 relates to

the commission of a non-seizable offence, the officer to
whom it was given shall refer the informant to a Judge
of a Syariah Subordinate Court.

(2) No Religious Enforcement Officer shall, in a case

involving a non-seizable offence, exercise any of the
special powers in relation to investigations given by this
Chapter without the order of the Chief Syariah
Prosecutor. [It will amount to irregularity for the REO]

(3) Any Religious Enforcement Officer receiving such order

may exercise the powers in respect of the investigation
given under this Chapter except the power to arrest
without warrant.

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Section 2 Syariah Criminal Procedure Act

Non-seizable offence
Offence punishable with imprisonment for less than one year or
fine only for which a REO or PO may not ordinarily arrest without
warrant.

Examples:
● Section 14 of SCOA → failure to perform Friday prayer
● Offences under IFLA

Section 57 Syariah Criminal Procedure Act

Procedure where seizable offence suspected
(1) If from information received or otherwise a Religious
Enforcement Officer has reason to suspect the
commission of a seizable offence he shall, unless the
offence is of a character which the Chief Syariah
Prosecutor has directed need not be reported to him,
forthwith send a report of the information to the Chief
Syariah Prosecutor and shall proceed in person or shall
depute one of his subordinate officers to proceed to the
spot to inquire into the facts and circumstances of the
case and to take such measures as may be necessary for
the discovery of the offender:

Provided that

(a) when any information as to the commission of any

such offence is given against any person by name
and the case is not of a serious nature, the
Religious Enforcement Officer receiving the
information need not proceed in person or depute
a subordinate officer to make an inquiry on the
spot;

(b) if it appears to the Religious Enforcement Officer

receiving the information that there is no sufficient
ground for proceeding or further proceeding in the
matter he shall not do so.

(2) In each of the cases mentioned in paragraphs 1(a) and

1(b), the Religious Enforcement Officer receiving the
information shall state in his report, if any, his reasons for
not fully complying with subsection (1).

Section 2 Syariah Criminal Procedure Act

Seizable offence is an offence punishable with imprisonment for
one year or more, for which a REO or PO may ordinarily arrest
without warrant.

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INVESTIGATION (normally come out final exam)

HOW TO ANSWER
1. Identify whether seizable offence or non-seizable offence
2. Look at the power of the officer - who is the officer? REO,
Pegawai Masjid, Police officer?
a. If the person doing the investigation is pegawai
masjid, we have to refer to the administration of
islamic law act of who is pegawai masjid. Whether
imam naqib, bilal etc.
3. What are the investigation processes done by the person?
a. Are they doing raid?
b. Sometimes the exam question is raid: Discuss
about entering premises, whether a police officer
has authority to enter premises. And if yes,
whether they require a warrant or not?
4. Observe date and time of arrest by REO to determine
whether it exceeds 24 hours and whether hat’s lawful
5. Whether accused released by officer? Whether this
complies or not.

● When discussing power of REO

○ Discuss whether legally done
● Application

11.05.2022 Power of REO to investigate comprises:​

● Power to question a witness​

● Power to arrest​
● Power to detain​
● Power to search any premises or body​
● Power to seize or confiscate

Power 1: Power to Question a Witness

Section 2 Syariah Criminal Procedure Act

● witness exclude the accused​

Section 58 Syariah Criminal Procedure Act

● REO may require the attendance of a person within the
Federal Territories who appears to be acquainted with the
circumstances of the case-
● cross refer to Section 61(2)​ Syariah Criminal Procedure
Act
○ No inducement to be offered
■ (2) No Religious Enforcement Officer or
other person shall prevent or discourage by
any caution or otherwise any person from
making in the course of an investigation
under this Chapter any statement which he
may be disposed to make of his own free
will.

77
Failure to appear, Ct may issue a warrant of arrest.

Section 59 Syariah Criminal Procedure Act

● REO may examine a person orally and whenever possible
shall be reduce it into writing any statement made by
a person and after the person making such statement
read and correct it, sign it before two witnesses​
○ A person is legally bound to state the truth and
answer all the question​
○ However, the authority shall not make any
inducement, threat or promise to procure a
statement- Section 61(1)​
■ (1) No Religious Enforcement Officer or
person in authority shall offer or make any
inducement, threat or promise to any
person charged with an offence to induce
such person to make any statement having
reference to the charge against such
person.
○ Refusal to answer a question is an offence under S
215, giving false information is an offence under S
211​
■ Section 211
● Section 211. False information,
evidence or admission.
● Whoever wilfully gives any
information, evidence or admission
orally or in writing which is false in
any matter where he is required to
do so by this Act shall be guilty of
an offence and shall on conviction
be liable to a fine not exceeding two
thousand ringgit or to imprisonment
for a term not exceeding one year or
to both.
■ Section 215
● Section 215. Refusing to answer a
religious officer authorized to
question.
● Whoever, being legally bound to
state the truth of any subject to any
religious officer, refuses to answer
any question demanded of him
touching that subject by such officer,
in the exercise of the legal powers
of such officer, shall be guilty of an
offence and shall on conviction be
liable to a fine not exceeding two
thousand ringgit or to imprisonment
for a term not exceeding one year or
to both.

Statement made in front of REO

Section 60(1)

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 ● No statement made by any person to a Religious
Enforcement Officer in the course of an investigation
under this Chapter shall, save as herein provided, be
used as evidence
○ Exception:​
■ Impeachment of credit of a witness​
■ When a person is charged for a false
statement ​
● Section 60 (3)
○ When any person is charged
with any offence in relation
to the false statement made
by him to a Religious
Enforcement Officer in the
course of an investigation
under this Chapter, such
statement may be used as
evidence in such
prosecution.

WHY?
● to avoid falsification of evidence and in order to be
admissible, the statement must be made before a judge in
a court proceeding. Statement made outside the court is a
mere statement and does not bind the judge.

Does a statement include confession by the accused?

Section 62
● Any Judge, other than the Judge hearing the case, may
record in the presence of two witnesses any statement or
confession made to him at any time before the
commencement of the trial.
○ Explanation: confession may be recorded at any
time before the commencement of the trial. It must
be made before a judge (other than a judge
hearing the case) and two witnesses

Power 2: Power to Arrest

Who has the power to arrest?

● Police Officer​
● Judge​
● REO​
● Any other person​[who are authorised under SCCPA]

How can an arrest be made?

The Act does not define arrest, but provides the process for an
arrest​

Section 10 of SCCP-
● Subsection (1) must actually touch and confine the
body of a person to be arrested​
● Subsection (2) May use all means necessary to effect an
arrest if there is resistance or attempt to escape​

79
 ● Subsection (3) However, it will not give right to cause the
death to the person​

NOTE: If there is willful submission or surrender, the authority

making the arrest may not actually touch the person​

Section 14
● (1) The person arrested shall not be subjected to more
restraint than is necessary to prevent his escape.
○ Explanation: the person arrested shall not be
subjected to more restraint than is necessary to
prevent his escape

Arrest without warrant

● It MUST be a seizable offence

Who may affect an arrest without warrant? Section 18- REO, PO,
Pegawai Masjid​
● Without prejudice to the provisions of any other written
law, any Religious Enforcement Officer, police officer
or Pegawai Masjid may, without an order from a Judge
and without a warrant, arrest-
● (a) any person who has been concerned in any seizable
offence in the Federal Territories or against whom a
reasonable complaint has been made or credible
information has been received or a reasonable suspicion
exists that he has been so concerned;
● (b) any person who has committed or attempted to commit
in his presence any offence involving a breach of the
peace;
● (c) any person against whom a warrant issued under
this Act is still in force, although such warrant is not
in his possession

Who is a REO - any officer appointed under S 58(4) of

Administration of Islamic Law Act
● The Majlis may appoint from among the members of the
general public service of the Federation a Chief Religious
Enforcement Officer and Religious Enforcement Officers to
carry out the investigation of offences under this Act or
under any other written law prescribing offences against
precepts of the religion of Islam.

Police officer
● any member of the Royal Malaysia Police inc. Const,
Corporal, Sergeant etc​

Pegawai Masjid
● appointed under AILA incl. Naqib Masjid, Imam, Imam
Ratib, Bilal and Asst. Bilal​

Section 76 Administration of Islamic Law Act

80
(1) For every mosque in the Federal Territories there shall be
appointed a Naqib Masjid, an Imam, an Imam Ratib, a Bilal,
and a Pembantu Bilal.

(2) The posts of Naqib Masjid, Imam, and Bilal shall be posts in
the general public service of the Federation.

(3) The Naqib Masjid, Imam, and Bilal shall be appointed by the
Majlis from amongst persons serving in the Religious
Administrative service.

(4) The Imam Ratib and Pembantu Bilal shall be appointed by the
Majlis, on the advice of the Islamic Legal Consultative Committee,
from amongst the anak kariah.

How to conduct an arrest without warrant?

If arrest is done by pegawai masjid

● Section 20 Syariah Criminal Procedure Act - If arrest is
done by Pegawai Masjid
● shall without unnecessary delay hand over the
person so arrested to the nearest Religious
Enforcement Officer or Police Officer,
● or take to nearest Police Station and the
person arrested shall be re-arrested by PO or
REO​

If Arrest by REO or PO
Section 22 Syariah Criminal Procedure Act
● shall without unnecessary delay either release the
person on bail or take the person before a Judge of
Syariah Subordinate Court​

How long can a person be detained for?

● The person cannot be detained in custody for a longer
period than is necessary that is not exceeding 24 hours,
excluding the time necessary for the journey from the
place of arrest to the Court-
● Section 5(4) of Federal Constitution
○ (4) Where a person is arrested and not released he
shall without unreasonabledelay, and in any case
within twenty-four hours (excluding the time of any
necessary journey) be produced before a
magistrate and shall not be further detained in
custody without the magistrate’s authority:
● and Section 28 Criminal Procedure Code

When the person is produced before the court, the court shall
immediately hear the charge against him or adjourned the case.

Arrest with warrant

Who may direct a warrant?

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1. Chief Religious Officer, Enforcement Officer, Religious
enforcement
Section 34 of the Syariah Criminal Procedure Act
● Subsection (1) shall ordinarily be directed to the Chief
Religious Enforcement Officer and all other Religious
Enforcement Officers, and any such officer may execute
such warrant in any part of the Federal Territories.

2. Inspector General / other police officer / any other person by

name
Section 34 Syariah Criminal Procedure Act
● Subsection (2) may direct it to the Inspector General of
Police and all other police officers in the Federal
Territories or any person by name, not being a
Religious Enforcement Officer or police officer, and all
or any one or more of such persons may execute the
warrant.

NOTE: Section 10 Syariah Criminal Procedure Act must be read

together with Section 18 - These provisions essentially show that
any other person other than REO and Police Officer can arrest,
but it would be an arrest without warrant.
● Section 10
○ (1) In making an arrest the Religious Enforcement
Officer, police officer or other person making the
arrest shall actually touch or confine the body of
the person to be arrested, unless there be a
submission to the custody by word or action.
● Section 18
○ Without prejudice to the provisions of any other
written law, any Religious Enforcement Officer,
police officer or Pegawai Masjid may, without an
order from a Judge and without a warrant, arrest-
○ (a) any person who has been concerned in any
seizable offence in the Federal Territories or
against whom a reasonable complaint has been
made or credible information has been received or
a reasonable suspicion exists that he has been so
concerned;

What happens after you get a warrant of arrest?

● Form 3 of the Schedule, sign and seal by the Judge​
● The warrant will remain in force until it is executed or
cancelled​
● It can be directed that if the person executes a bond with
sufficient sureties for his attendance before the court, he
can be released on bond​
● The substance of the warrant shall be notified to the
person arrested​

Section 36

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 ● Person arrested shall be brought before the court without
unnecessary delay or release on bail​

Section 37
● If it is executed outside FT, produce him to the nearest
judge unless security is taken

Arrest by a judge
Section 24
● When any offence is committed in the presence of a
Judge within the local limits of his jurisdiction​
● He himself is authorised to arrest or he may authorize any
person arrest the offender​

Section 25
● a judge may make an arrest within the local limits of his
jurisdiction any person for whose arrest he is competent
to issue a warrant​

Re-arrest
Section 26 SCPA
● If a person in lawful custody escapes or is rescued, the
person from whose custody he escaped or was rescued
may immediately pursue and arrest him in any place,
either within or without the jurisdiction

Power 3: Power to detain

If the case is adjourned, the arrested can be released on bail or

can be remanded in prison or police custody​
● How long can he be remanded?
○ How long he can be remanded?​
○ Form 1 of the schedule and the Act itself are silent​
○ How? Refer to S 107 of the Syariah Criminal
Procedure Act, cross refer to Section 117(1) and
(2) of CPC​
■ Section 107(1) Syariah Criminal
Procedure Act
● If, it becomes necessary or
advisable to postpone the
commencement of or adjourn any
trial, the Court may, from time to
time, postpone or adjourn the same
on such terms as it thinks fit for
such time as it considers
reasonable and may, by warrant,
remand the accused if in custody:​
● Provided that no Judge shall
remand an accused person to
custody under this section for a term
exceeding eight days at a time:​
○ Section 117(2) of CPC: Detention of the accused
in custody not exceeding fifteen days in the
whole​

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 ■ (2) The Magistrate before whom an
accused person is produced under this
section may, whether he has or has not
jurisdiction to try the case, from time to time
authorise the detention of the accused in
such custody as the Magistrate thinks fit for
a term not exceeding fifteen days in the
whole. If he has no jurisdiction to try the
case and considers further detention
unnecessary he may order the accused
person to be produced before a Magistrate
having such jurisdiction or, if the case is
triable only by the High Court,before
himself or another Magistrate having
jurisdiction with a view to transmission for
trial by the High Court.

Juristic Opinions:
Two opinions:
1. Disagree with the detention during investigation – was not
a practice during the tie of the Prophet SAW and Abu
Bakar RA, detention amounted to ta’zir punishment and
should not be allowed.

2. Agrees based on the act of the Prophet SAW had

detained a person for a limited time.

How to answer question on detention

● Section 11 Syariah criminal procedure act
● Referring to cpc - cannot detain more than 15 days

Power 4: Power to search

Search of body

Section 12
● when a search of a place is lawfully made in respect of
any offence, any person found there may be searched,
and if the thing sought is in its nature capable of being
concealed upon the person, be searched for it.​

Search must be done by or in the presence of REO or PO not

below the rank of inspector​

Section 14(2) Syariah Criminal Procedure Act

● (2) Whenever it is necessary to cause a person to be

searched, the search shall be made by a person of the
same sex as the person being searched with strict regard
to decency.
● Explanation: Decency must always be observed- it must
be made by a person of a same sex

Section 15(1) Syariah Criminal Procedure Act

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 ● when a person is arrested with a warrant which does not
provide for the taking of bail or arrested without warrant
and unable to furnish bail, he may be search and all
articles other than necessary wearing apparel, may be
seized and be placed in safe custody until he is
discharged or acquitted​
○ Lecture
○ When you do search to the person, you can seize
whatever things which can help the officer/authority
to do the investigation EXCEPT apparel that he
wears.
○ All the seized items must be kept in safe custody

Section 17 (1) Syariah Criminal Procedure Act

● every person lawfully in custody, by reason of incapacity is
unable to give reasonable account for himself, may be
searched for the purpose of ascertaining his name and
place of residence.
○ Any person can also be searched for the purpose
of obtaining more information

Search of premises
General principle
No one is allowed to arbitrarily ransack to one’s house to search
for anything.​

Al-Nur: 27-29​
● O believers! Do not enter any house other than your own
until you have asked for permission and greeted its
occupants. This is best for you, so perhaps you will be
mindful.
● if you find no one at home, do not enter it until you have
been given permission. And if you are asked to leave, then
leave. That is purer for you. And Allah has ˹perfect˺
knowledge of what you do.
● There is no blame on you if you enter public places1
where there is something of benefit for you. And Allah
knows what you reveal and what you conceal.

However, for the sake of maslahah or public interest, in some

circumstances, search of premises is allowed.​

Purpose- search for a person to be arrested and search for

documents or things relevant for the investigation

Procedure

Section 11 Syariah Criminal Procedure Act

● Subsection (1) any person executing a warrant of arrest or
REO or PO has reason to believe that any person to be
arrested has entered into or is within any place, should
first demand free ingress. And the person residing or

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 in charge of the place should afford all reasonable
facilities for a search therein​
● Subsection (2) If free ingress cannot be obtained, the
officer can break open any outer or inner door or window
for the purpose of search

Search warrant: When is it needed?

Section 44- specifies the situation where a search warrant may
be issued.​
(a) any Court has reason to believe that a person to whom a
summons under section 42 has been or might have been
addressed will not or would not produce the property or document
as required;
(b) such property or document is not known to the Court to be in
the possession of any person;
(c) the Court considers that the purposes of justice or of any
inquiry, trial or other proceedings under this Act will be served by
a general search or inspection; or
(d) the Court upon information and after such inquiry as he thinks
necessary, has reasons to believe that an offence has been
committed in any place, the Court may issue a search warrant
and the person to whom such warrant is directed may search and
inspect in accordance therewith and with the provisions of this
Act.

Cross refer to S 63, S 64, 48​

Section 63. Search by Religious Enforcement Officer.

(1) Whenever a Religious Enforcement Officer making an

investigation considers that the production of any document or
other thing is necessary to the conduct of an investigation into any
offence which he is authorized to investigate and there is reason
to believe that-

(a) the person to whom a summons or order under section 42 has

been or might be issued will not or would not produce such
document or other thing as directed in the summons or order; or

(b) such document or other thing is not known to be in the

possession of any person,
such officer may search or cause a search to be made for the
document or other thing in any place.

(2) Such officer shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person and there is no other

person competent to make the search present at the time, he may
require any officer subordinate to him to make the search, and he shall
deliver to such subordinate officer an order in writing specifying the
document or other thing for which a search is to be made and the place
to be searched, and such subordinate officer may thereupon search for
such thing in such place.

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(4) The provisions of this Act as to search warrants shall, so far as may
be, apply to a search made under this section.

Lecture:
● If you dont know where the item is located, you can just
use the warrant to search for it
● Officer himnself can enter premise to do the search or
otherwise he may order any other person to do search.
Requires search warrant under subsection (4)

Section 64. Religious Enforcement Officer may require bond

for appearance of complainant and witnesses.

(1) If upon an investigation made under this Chapter, it appears to the

officer making such investigation that there is sufficient evidence or
reasonable ground of suspicion to justify the commencement or
continuance of criminal proceedings against any person, such officer
shall require the complainant, if any, and so many of the persons who
appear to such officer to be acquainted with the circumstances of the
case, as he thinks necessary, to execute a bond to appear before a
Court therein named and give evidence in the matter of the charge
against the accused.

Section 68. Accused triable in place where act is done or

where consequence ensues.

When a person is accused of the commission of any offence by

reason of anything which has been done or of any consequence
which has ensued, such offence may be tried by a Court within
the local limits of whose jurisdiction any such thing has been done
or any such consequence has ensued.

Search warrant are ordinarily directed to CREO and REO​

It may be directed to IGP and other police officer​

Section 48. Search for persons wrongfully confined.

If any Judge has reason to believe that any person is confined

under such circumstances that the confinement amounts to an
offence, he may issue a search warrant, and the person to whom
such warrant is directed may search for the person confined; such
search shall be made in accordance therewith and the person, if
found, shall be immediately taken before a Judge who shall make
such order as in the circumstances of the case seems proper.

Basically section 46, 47, 48 → is about circumstances court

can issue search warrant.
● Section 46 is more relevant compared to other
provisions.

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Section 45
● The court may restrict the search warrant to particular
place or part of it

Particulars of search warrant

● Search warrant shall be in form 4, signed by a judge and
bear the seal of the court​

How long is a search warrant valid?

● 7 days​

Notes:
● Judge can attend at the time of the execution of the
search warrant​
● Judge may order search to be made in his presence as if
search warrant has been issued​

Section 49
● Persons in charged of closed place shall allow this
search. If free ingress cannot be obtained, can make a
force entry​

Cross refer to Section 11(2):

● (2) If ingress to such place cannot be obtained it shall be
lawful for Religious Enforcement Officer or police officer to
enter such place and search therein, and, in order to effect
an entrance into such place, to break open any outer or
inner door or window of any place whether that of the
person to be arrested or of any other person if, after
notification of his authority and purpose and demand of
admittance duly made, he cannot otherwise obtain
admittance.

Presence of the occupant during search

Section 53
● the occupant or his representative shall be allowed to be
present during the search, and a copy of the list of the
thing seized prepared and signed shall be delivered to the
occupant or person at his request.
○ The owner of the hotel/someone who has authority
in handling the hotel must be there when the raid is
conducted.
○ If officer seized the blanket/pillow or so on, the list
of seized items must be given to the occupant of
the premises

Power 5: Power to seize

What is seizing ?
● It is an act of taking possession of any thing or property or
document by legal process.​

Section 15

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 ○ when a person is arrested, he may be searched
and any article other than wearing apparel can be
seized​
● List of articles seized shall be prepared by the officer
making the arrest and shall be signed by him

Section 16
● officer making an arrest, may seize any offensive
weapon on the arrested person and delivered all the
weapon to the police​

Section 52
● requires an officer making the search prepared list of all
article seized​

Q: Can the officer seize items believed to have been used in

other crime, not only crime covered in a search warrant?
● Lecture: The officer can seize other items even though it is
not listed in the search warrant.
● Even though the search warrant is not complied, the
non-compliance is merely an irregularity

What is the effect of non-compliance?​

● Non compliance is fine as long as it does not occasion a
failure of justice.

S 207: Subject to the provisions contained in this Chapter, no

finding, sentence or order passed or made by a Court of
competent jurisdiction shall be reversed or altered on account- ​

(a) of any error, omission or irregularity in the complaint,

summons, warrant, charge, judgment or other proceedings before
or during the trial under this Act; ​
● Explanation: If there is any irregularity, it will not effect any
judgment which is made by the court having jurisdiction
and hearing the case.

(b) of the want of any sanction required by law; or ​

(c) of the improper admission or rejection of any evidence, ​

unless such error, omission, improper admission or rejection of

evidence, irregularity, want of sanction or misdirection has
occasioned a failure of justice.

Q: What happens if the REO misuse its power?​

● Whatever action done by REO that was done in good
faith, no action will be taken against REO

Section 209
● No proceedings shall lie against any Judge or other

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 officers for any act done in good faith in any judicial
proceedings under this Act or any other written law for the
time being in force relating to Islamic religion.​

Section 212
● Whoever wilfully gives any information, evidence or
admission orally or in writing which is false in any
matter where he is required to do so by this Act shall
be guilty of an offence and shall on conviction be liable
to a fine not exceeding two thousand ringgit or to
imprisonment for a term not exceeding one year or to
both.

Cases on arrest

Pendakwa Mahkamah Syariah Perak lwn Shah Pandak

Othman (1991) 8 JH 99​

● Accused was charged for spreading deviant teaching

under section 169(1) of Administration of Islamic Law
Perak ​
● The accused plead not guilty​
● Prosecutors witnesses: 6 ​
● Court: A guilty, convicted. Imprisonment 2 months.​
○ Upon receiving information from the public, Kadi,
Naib Kadi, Ketua Kampung, and Police Officer
went to the accused’s house.​
○ Accused admitted that;​
○ nikah batin with Robiah bt Nan​
○ He is Imam Mahdi​
○ Never perform jumaah prayer, never perform daily
prayer, never fasting in the month of Ramadhan,
never pay zakat, ​
○ received a tauliah yellow and red cloth, stated “Dari
Jibrail” at Gelanggang Silat in 1978.​
○ Teach silat at Kubang Ikan Titi Gantung. Name of
the court is Syahadat Seni Silat Shah Sulbatin
Maut.​
○ His position is higher than the Prophet Muhammad
because the word “Shah” is stated in Quran and
Shahadah.​

ZARINA MAHAMAD BUDI V KETUA PENDAKWA SYARIE

PULAU PINANG (SEPT, 2006) JH XXII/I AT 127​
​
● Acc was arrested in a raid conducted by the REO Pulau
Pinang, assisted by military forces ​
● Worked as Guest relations officer (GRO) / prostitute at
Golden Sky Lounge, in Penang​
● Found that the Acc is a Muslim, A gave the name and
NRIC to the REO​

PENDAKWA SYARIE KELANTAN V YUSUNDY B JOSAN AND

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ANOTHER ​(1994) 9 JH 206​

● Acc and another person on 10.11.89 at about 10.30pm

were charged for drinking liquor (Carlsberg and G.Stout),
at Kedai Dandan Rambut Sistera, Jalan Gajah Mati, Kota
Bharu, Kelantan.​
● Prosecutor: 5 witnesses- 4 witnesses stated that they saw
both accused drink Carlsberg, and the time, date, and
place were consistent.​
● Other evidence: 2 bottles of Carlsberg, 2 glasses, 1
receipt.​
● Accused merely denied, no other evidence.​
● Court: accept testimony of witnesses & bottles, glasses,
and receipt.​
● Both were liable, and convicted. Punishment- 6 months
imprisonment and 6 strokes of whipping.

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PRESUMPTION / RIGHTS OF AN ACCUSED PERSON

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23.05.2022 1. Right at pre trial stage
2. Right during trial
3. Right after trial

Right during investigation

● Every individual has Right to have privacy but there are
exceptions
○ I.e case of upholding justice
○ Amal ma’ruf nahi mungkar
■ Which requires necessity for authority to
enter the house. Especially if the permission
if is not given by owner, authority can still
enter
■ However, it must be proven that there are
reasonable grounds of suspicion. I.e
informer believes that accused committed an
offence / preparation of a criminal act going
to be done by the accused.

Right of suspect in arrest based on the presumption of

innocence
● Even if the suspect is arrested, he cannot be treated like a
person who is guilty
● Legal maxim:
○ Free from indebtedness is presumed
○ Burden of proof
■ which requires that al baiyinah al munkara,
in which, if the case is in ongoing
investigation, cannot treat the accused as a
person who is guilty

Right to know the ground of arrest

● Whenever the accused person is arrested, he must know
on what ground he was arrested

Section 35 Syariah Criminal Procedure Act’

Section 35. Notification of substance of warrant.

The Religious Enforcement Officer or police officer or other person

executing a warrant of arrest shall notify the substance thereof to
the person arrested and if so required shall produce and show him
the warrant or a copy thereof under the seal of the Court issuing
the warrant.
● Grounds of arrest

Section 14. No unnecessary restraint and mode of searching a

person.

(1) The person arrested shall not be subjected to more restraint

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than is necessary to prevent his escape.
● If REO manage to hold his hand, that is sufficient enough to
prevent him from escaping, don't put anymore restriction on
accused
● As long as accused understands that he is under arrest,
don’t need to put more restriction on the accused

Produce before a judge within 24 hours

Section 22. How person arrested is to be dealt with and
detention for more than twenty-four hours.

(1) A Religious Enforcement Officer or police officer making an

arrest without a warrant under this Act shall without unnecessary
delay and subject to the provisions of this Act as to bail or previous
release, take or send the person arrested before a Judge of a
Syariah Subordinate Court.
● Section 22 is applicable for offence which is seizable
offence in which the accused can be arrrested without
warrant.

2) No Religious Enforcement Officer or police officer shall detain in

custody a person arrested without a warrant for a longer period
than is reasonable under all the circumstances of the case.

(3) Such period shall not exceed twenty-four hours, exclusive of

the time necessary for the journey from the place of arrest to the
Court.

(4) When the person arrested is brought before the Court, the
Court shall immediately hear the charge against him or adjourn the
case.

Section 36. Person arrested to be brought before the Court

without delay.

The Religious Enforcement Officer or police officer or other person

executing a warrant of arrest shall, subject to section 33 as to
security, without unnecessary delay bring the person arrested
before the Court before which he is required by law to
produce such person.
● Explanation: Section 36 is applicable to remind REO /
police officer that accused person if he’s arrested must be
brought before the court
● This also complies with Section 5 (4) Federal
Constitution: No one is allowed to be detained more than
24 hours unless if he cannot be released on bail
● Cross refer to Section 28 (3) CPC
○ *(3) Such period shall not in the absence or after the
expiry of a special order of a Magistrate under
section 117 exceed
○ twenty-four hours exclusive of the time necessary

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 for the journey from the place of arrest to the
Magistrate’s Court.

Right to Consult Counsel

● Majority of fuqaha: It is allowed for the accused to get
access to counsel before, during trial and execution
● Surah Al Qasas verse 34
○ This explains that whenever you are not confident,
you can be represented by peguamsyarie
● Hadith: I’m only human being and you bring the case
before me
○ This shows that the accused may be represented by
peguam syarie if assistance of peguam syarie help
him in submitting his case

Right to be released on bail

● The accused can be released on bail especially if the
charge is not ready
● Accused person can be released on bail OR can be kept in
prison in custody until the charge is ready OR until the end
of the case

What is bail?
● A guarantee to produce accused when required
● As security

Bond
● Binds the person who executes it i.e money

When can bail be applied for?

● Bail can be used for all mal cases
● Criminal cases - as long as rights of individual
● Q: Can bail be for hudud offences?
○ Majority: bail for hudud cases is not allowed
■ Hadith: no bail in hudud case
○ Some fuqaha allowed for accused persons to be
released on bail
■ Hamzah bin omar:committing adultery to
appear before umar released on bail
● Discretionary power to give bail
○ Al ghadimiyah’s case: the woman came to see the
prophet four times and confessed she committed
zina but prophet did not detain her. Punishment was
postponed until she delivered a baby
○ This reflects that accused person can be released
on bail even without asking for security in terms of
money to secure presence of accused person

Types of bail
1. Personal bond without security - a promise that he will
appear before court
2. Personal bond with security - he agree to attend
whenever security with security/deposit of money as

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 security for his presence
3. Bond with sureties without security - a third party will
promise to the court that acc will appear before the court
without any deposit of money
4. Bond with sureties with security - a third party will
secure presence of accused person with deposit

Provision on bail and bond (find later)

Section 19 Criminal Procedure Act - bond with sureties

Section 19. Refusal to give name and residence.

(1) When any person in the presence of a Religious Enforcement

Officer or police officer commits or is accused of committing a
non-seizable offence and refuses, on the demand of such officer,
to give his name and residence or gives a name or residence
which such officer has reason to believe to be false, he may be
arrested by such officer in order that his name and residence may
be ascertained, and he shall, within twenty-four hours of the arrest,
exclusive of the time necessary for the journey from the place of
arrest, be taken before the nearest Judge of the Syariah
Subordinate Court unless before that time his true name and
residence are ascertained in which case such person shall be
forthwith released on his executing a bond for his appearance
before a Judge if so required.
● Explanation: Section 2 defines non seizable offence: less
than 1 year imprisonment
● If acc refuses to give his name/residence to officer, the
officer can arrest him and detian him not more than 24
hours
● If let’s say before the officer arrest him and the person
informs the officer of his name/residence, he will not be
arrested

(2) When any person is taken before a Judge of a Syariah

Subordinate Court under subsection (1), such Judge may either
require him to execute a bond, with a surety, for his
appearance before a Judge if so required, or may order him to be

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detained in custody until he can be tried.
● If he is arrested and the judge may require him to execute a
bond with surety by asking someone to becomea a surety
or
● May order him in custody until he is tried

(3) When any person in the presence of a Religious Enforcement

Officer or police officer commits or is accused of committing a
non-seizable offence and on the demand of such officer to give his
name and residence gives as his residence a place outside the
Federal Territories, he may be arrested by such officer and shall be
taken forthwith before the nearest Judge of a Syariah Subordinate
Court who may require him to execute a bond, with a surety, for his
appearance before a Judge if so required, or may order him to be
detained in custody until he can be tried.
● If he is arrested other than FT, he can be arrested in that state
and brought to the nearest shariah subordinate court
● The shariah subordinate court may order for him to be
released on bond with surety/order him to be detained until
he can be tried

NEXT PROCESS.. What happens after arrest?

Section 22. How person arrested is to be dealt with and

detention for more than twenty-four hours.

(1) A Religious Enforcement Officer or police officer making an

arrest without a warrant under this Act shall without unnecessary
delay and subject to the provisions of this Act as to bail or previous
release, take or send the person arrested before a Judge of a
Syariah Subordinate Court.

(5) If the case against the accused is adjourned, the accused shall,
unless he is released on bail, be remanded in prison or police
custody under a remand warrant issued by a Judge in Form 1 of
the Second Schedule.
● There are 2 ways after arrest
○ Either released on bail
○ Or remand in policy custody

Section 23. Release of person arrested.

No person who has been arrested by a Religious Enforcement

Officer or police officer under this Act shall be released except on
bond or bail or under the order in writing of a Judge or Chief
Religious Enforcement Officer or of a police officer not below the
rank of Inspector.
● This is MANDATORY
● He cannot be released except on bond or bail

Section 33. Court may direct by indorsement on warrant

security to be taken.

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(1) Any Court issuing a warrant for the arrest of any person may, in
its discretion, direct by indorsement on the warrant that if such
person executes a bond with sufficient sureties for his attendance
before the Court at a specified time and thereafter until otherwise
directed by the Court, the officer to whom the warrant is directed
shall take such security and shall release such person from
custody.
● Section 33 applies when the accused person is released on
BAIL WITH BOND WITH SURETIES
● Third party need to deposit sum amount of money
● In the indorsement, shall state the amount of sureties.

When a person may be released on bail

Section 185. When person may be released on bail.

When any person is arrested or detained without warrant by a

Religious Enforcement Officer or police officer or appears or is
brought before a Court and is prepared at any time while in the
custody of such officer or at any stage of the proceedings before
such Court to give bail, such person shall be released on bail by a
Religious Enforcement Officer or police officer in charge of a police
station or by any police officer not below the rank of Inspector or by
such Court.
● A person committing seizable offence can be released on
bail but the rank of police officer cannot be below Inspector
● Amount of bond shall be fixed by the court but it should not
be excessive
● The amount of bond cannot be punitive to be punishinig the
accused

Section 187. Bond to be executed.

Before any person is released on bail, a bond for such sum of

money as the Religious Enforcement Officer or police officer or
Court, as the case may be, thinks sufficient shall be executed by
one or more sufficient sureties, conditioned that such person shall
attend at the time and place mentioned in the bond, and shall
continue so to attend until otherwise directed by the Religious
Enforcement Officer or police officer or Court, as the case may be.
● If it require more than one sureties,the amount shall be
specified to be paid by the sureties

When will the person be released?

Section 188. When person to be released.

(1) As soon as the bond has been executed, the person shall be
released and if he is in prison, the Court admitting him to bail shall

98
issue an order of release to the officer in charge of the prison, and
such officer, on receipt of the order, shall release him.
● While waiting for surety to pay the bond, the accused
person is kept in police custody, as soon as the sureties
pay the deposit/pay the bond, the accused person must be
released

When warrant of arrest can be instituted for a person released on

bail
Section 189. When warrant of arrest may be issued against
person bailed.

If, through mistake, fraud or otherwise, insufficient sureties have

been accepted, or if they afterwards become insufficient, the Court
admitting him to bail may issue a warrant of arrest directing that
the person released on bail be brought before it, and may order
him to find sufficient sureties, and on his failing so to do may
commit him to prison.
● Accused person can be arrested again
● He must bring surety

Section 190. Sureties may apply to have bond discharged.

(1) Any sureties for the attendance and appearance of a person

released on bail may at any time apply to a Judge to discharge the
bond either wholly or in so far as it relates to the applicants.

(2) On such application being made, the Judge shall issue a

warrant of arrest directing that the person so released be brought
before him.
● What situation sureties apply to discharge the bond?
○ For example, suddenly the sureties decide not to
become the surety for the accused, then the surety
can inform to the judge and judge may order for the
accused person to be arrested and ask accused
person to find another surety

(3) On the appearance of such person pursuant to the warrant or

on his voluntary surrender, the Judge shall direct the bond to be
discharged, either wholly or in so far as it relates to the applicants,
and shall call upon such person to find other sufficient sureties,
and if he fails to do so may commit him to prison.
● Then the surety can be discharged

(4) A surety may at any time arrest the person for whose
attendance and appearance he is a surety and forthwith bring him
before a Judge, who shall thereupon discharge such surety's bond
and shall call upon such person to find other sufficient surety, and
if he fails to do so shall commit him to prison.

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 ● The surety can arrest the accused person and bring the
accused person to the court while waiting for court to allow
application to discharge himself from surety
○ Q: is there any other procedure other than this?
■ Can bring to police officer if the accused
tries to run away because police officer can
get a warrant to arrest
■ Q: What if surety wants to replace
himself? Dia taknak buat dah?
● Accused person has to find a new
surety

Section 198. Deposit instead of bond.

When any person is required by any Court or officer to execute a

bond, such Court or officer may, except in the case of a bond for
good behaviour, permit him to deposit a sum of money to such
amount as the Court may fix, in lieu of executing such bond.
● Beside bond for good behavior, court may ask to deposit
some amount of money to secure attendance of accused
person

Procedure for forfeiture of bond

Section 199. Procedure on forfeiture of bond.

(1) Whenever-

(a) it is proved to the satisfaction of the Court by which a bond

under this Act has been taken; or

(b) when the bond is for appearance before a Court, it is proved to

the satisfaction of the Court,that such bond has been forfeited, the
Court shall record the grounds of such proof and may call upon
any person bound by such bond to pay the penalty thereof or to
show cause why it should not be paid.
● This provision is about breach of the bond
● Must show cause why penalty should not be paid if there is
a berach of the bond

● (3) The Court may, at its discretion, remit any portion of the
penalty mentioned, and enforce payment in part only.
○ Discretionary power of court to impose penalty

Section 200. Appeal from orders.

All orders made under section 199 by the Syariah Subordinate

Court shall be appealable to the Syariah High Court, and to the
Syariah Appeal Court in the case of orders made by the Syariah
High Court.

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 ● Those who disagree with the order of penalty, may appeal
to the court

Condition of bonds

Besides releasing on bond, other conditions can be imposed

Section 130. Conditions of bonds.

When any person is required by any Court to execute a bond with

sureties, and in such bond the person executing it binds himself to
keep the peace or binds himself to be of good behaviour, the Court
may require that there be included in such bond one or more of the
following conditions, namely-

(a) a condition that such person shall remain under the supervision
of some other person named in the bond during such period as
may be therein specified;

(b) such conditions for securing such supervision as the Court may
think it desirable to impose;
● Any other conditions

(c) such conditions with respect to residence, employment,

associations, abstention from intoxicating liquors or drugs or with
respect to any other matter as the Court may think it desirable to
impose.

If accused person is released on bail, the accused person must

give address

Section 223. Person released on bail to give address for

service.

When any person is released on bail, he shall give to the Court or

officer taking such bail an address at which service upon him of all
notices and process may be made, and in any case where such
person cannot be found, or for other reasons such service on him
cannot be effected, any notice or process left for such person at
such address shall be deemed to have been duly served upon
him.

Rights during trial

Right to be defended

Section 104. Right of accused to be defended.

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Every person accused before any Court may of right be defended
by a Peguam Syarie.

Section 106. Case for prosecution to be explained by Court to

undefended accused.

(1) At every trial if and when the Court calls upon the accused for
his defence it shall, if he is not represented by a Peguam Syarie,
inform him of his right to take oath and its effect or of his right to
give evidence on his own behalf, and if he elects to give evidence
on his own behalf, shall call his attention to the principal points in
the evidence for the prosecution which tell against him in order that
he may have an opportunity of explaining them.
● Can take oath or produce any evidence that can assist
him/support his defence that he has not committed that
offence

(2) The failure at any trial of any accused to give evidence shall not
be made the subject of adverse criticism by the prosecution.

Right to get interpreter

Section 115. Interpretation of evidence to accused.

(1) Whenever any evidence is given in a language or gesture not

understood by the accused, and he is present in person, it shall be
interpreted to him in open Court in a language which he
understands.

Right to attend proceedings

Section 96 (e) the accused or his Peguam Syarie shall be allowed

to cross-examine all the witnesses for the prosecution through the
Judge;
● Looking at this, at face value takdela nampak right to
attend
● But it does show that since kena coss examine, the
accused must attend the proceedings

Section 111. Evidence to be taken in the presence of the

accused.

All evidence taken under this Act shall be taken in the presence of
the accused.

102
Right to know charge made against him

Section 96. Procedure in trials.

The following procedure shall be observed by Judges in trials:

(a) when the accused appears or is brought before the Court, a

charge containing the particulars of the offence of which he is
accused shall be framed, read and explained to him, and he shall
be asked whether he is guilty of the offence charged or claims to
be tried;
● Court will ask whether he understands the charge and
whether he wants to plead guilty or not

Right to ask for adjournment

● Letter of saidina umar to postpone the case if necessary

Section 107. Power to postpone or adjourn proceedings.

(1) If, from the absence of a witness or any other reasonable

cause, it becomes necessary or advisable to postpone the
commencement of or adjourn any trial, the Court may, from time to
time, postpone or adjourn the same on such terms as it thinks fit
for such time as it considers reasonable and may, by warrant,
remand the accused if in custody:

Provided that no Judge shall remand an accused person to

custody under this section for a term exceeding eight days at a
time:

Right to remain silent

Section 96 ©

(c) if the accused refuses to plead or does not plead or claims trial,
the Court shall proceed to hear the complainant, if any, and to take
all such evidence as may be produced in support of the
prosecution;
● If accused remains silent it means that he does not plead
guilty and the case will proceed to trial.

Right to cross examine the witness of the prosecution

Section 96 (L)
(l) if the accused applies to the Court to issue a summons for
compelling the attendance of any witness, whether he has or has
not been previously examined in the case, for the purpose of

103
examination or cross-examination or the production of any
document or other thing, the Court shall issue a summons unless it
considers that such application should be refused on the ground
that it is made for the purpose of vexation or delay or for defeating
the ends of justice; and such ground shall be recorded by it in
writing;
● This paragraph allows accused person to summon
witnesses / person who has possession of any documents,
for the purpose of examining the witness or cross
examination
● The court can allow his application provided that he has
justification to do that or it can help him in proving that he is
not guilty for the offence
● However, the court has authority not to allow application if
court believe that allowing application will actually delay the
matter / not significant at all to allow the application

Right to be applied in front of unbiased judge

Section 72 (2)
(2) When a Judge takes cognizance of an offence under paragraph
(1)(b), the accused or, when there are several persons accused,
any one of them shall be entitled to require that the case shall not
be tried by such Judge but shall be tried by another Judge.

● I.e someone lodged a complaint before judge, the judge

takes action, the judge cannot be the one who decides the
punishment/hear the trial.
● Or if the judge is a witness, cannot be the one to hear the
case and decide

Right after judgement

Right to appeal judgement/sentence

Right to ask mitigation of the punishment

● First time offender - section 129
○ if it appears to such Court that regard being had to
the character, antecedents, age, health or mental
condition of the offender or to the trivial nature of
the offence or to any extenuating circumstances
under which the offence was committed it is
expedient that the offender be released on
probation of good conduct, the Court may, instead
of sentencing him at once to any punishment, direct
that he be released on his entering into a bond with
sureties and during such period as the Court may
direct to appear and receive judgment if and when
called upon and in the meantime be of good
behaviour.
● Youthful offender section 128
○ (1) When any youthful offender is convicted before

104
 any Court of any offence punishable by fine or
imprisonment, such Court shall instead of awarding
any term of imprisonment in default of payment of
the fine or passing a sentence of imprisonment-
○ (a) order such offender to be discharged after due
admonition if the Court shall think fit; or
○ Or such offender be delivered to his parent
● Power to suspend or remit sentences - section 132
○ (1) When any person has been sentenced for an
offence, the Yang di-Pertuan Agong on the advice
of the Mufti may at any time, without conditions, or
with such conditions which the person sentenced
accepts, suspend or remit the whole or any part of
the sentence
● Power to commute punishment - section 133
○ The Yang di-Pertuan Agong on the advice of the
Mufti may, without the consent of the person
sentenced, commute any one of the following
sentences for any other mentioned after it, namely-
○ (a) whipping;
○ (b) imprisonment;
○ (c) fine

Right to get compensation

Section 99. Power to award compensation.

If in any case the Court acquits the accused and is of the opinion
that the complaint, information or charge was frivolous or vexatious
it may, in its discretion, either on the application of the accused or
on its own motion, order the complainant or the person on whose
information the complaint or charge was made to pay to the
accused, or to each or any of the accused where there are more
than one, such compensation, not exceeding one thousand ringgit,
as the Court thinks fit:
● If faulty information by informer, the court will ask informer
to pay the accused money, not exceeding RM1,000

Section 224. Compensation where charge is groundless.

Whenever any person causes a Religious Enforcement Officer or a

police officer to arrest another person, if it appears to the Judge
who takes cognizance of the case that there was no sufficient
ground for causing such arrest, the Judge may award such
compensation, not exceeding one hundred ringgit, to be paid by
the person so causing the arrest to each person so arrested for his
loss of time and any expenses incurred by him in the matter as the
Judge shall think fit.

105
COMPELLING THE APPEARANCE OF THE ACCUSED/
WITNESSES IN THE COURT
25.05.2022 1. Introduction: Compelling appearance refers to a process to
be taken by the court in ensuring the attendance of the
person to be accused in court to hear the criminal charge
against him.

2. Muslim jurists: The order of appearance should be made in

polite manner.

3. If the accused refuses to appear, the prosecutor may seek

an order from the court to ensure the accused appears.

4. The court may impose ta’zir punishment on the accused if

he refuses to comply with the court’s order.

5. The court may use two methods of compelling the

attendance of the accused, i.e.

a. issue a summons to appear or

b. a warrant of arrest

1. It is given to require the attendance of the accused person

before the Court.

2. To inform the accused on the charge made against him.

3. Summons can also be issued to compel the production of a

document to the court.

1. Summons to Appear
Procedure
Section 28 Syariah Criminal Procedure Act
(1) Summons to be appeared issued by court shall be in Form
2 and signed by the Judge and bear the seal of the Court

(2) State the general nature of the offence charges and the
provisions and the law under which it is punishable

(3) Shall ordinarily be served by an officer of the court but it

may be also be served by other person as the court think fit

Lecture: Summons must be served personally to the accused by

an officer of the court. But it must be to an adult.

Service
Section 29 Syariah Criminal Procedure Act
(1) Shall, if practicable be served personally on the person
summoned by showing to the person the original
summons and deliver to him a copy thereof under the seal
of the court
Lecture: officers of court must serve the accused. Must show

106
original summon but can leave a copy of the summon to the
accused.

(2) Every person on whom summons is so served, if required,

shall sign a receipt on the back of the original
summons

Lecture: officer of court will ask to accused or any other adult to

sign at the back

(3) If the person to be summoned cannot by exercise of due

diligent be found, the summons may be served by leaving
a copy thereof for him with some adult member of his
family or with his servant residing with him

If personal service cannot be affected?

Usual reasons for personal service failing:

1. The person cannot be found after exercise of due diligence
2. The person has no adult member of his family
3. No servant

Section 30 Syariah Criminal Procedure Act

Summons can be served by:
1. Affix a copy to some conspicuous part of the house

2. Or other place in which the person summoned ordinarily

resides

Lecture: After complying with section 30, its as though it was

served to the accused

Proof of Service
Section 31 Syariah Criminal Procedure Act

1. Through an affidavit made before the Registrar

2. If the accused fails to appear on the date specified, an

affidavit will become a proof that summons had be served
and can be the reason for the court to issue warrant of
arrest

Lecture
● If summon has been received by hand, officer will report in
affidavit.
● If summon cannot be served personally to the accused or
there is no adult person residing in the premise, then
Section 30 can apply. And it must be stated in the affidavit
Service Out of Jurisdiction

Section 39 Syariah Criminal Procedure Act

(1) Summons may be executed in any part of Malaysia

107
 provided that if it is served outside the local limit of
jurisdiction it must be marked with “For service out of
the jurisdiction” and the court is satisfied that there are
special grounds of doing so and had recorded such
grounds.

Lecture: For service out of jurisdiction, need not be personal

service. As long as it can be served to the accused.

Effect of Non-Compliance
Section 38 Syariah Criminal Procedure Act
A Court may, in any case in which it is empowered to issue a
summons for the appearance of any person, issue, after
recording its reason in writing, a warrant for his arrest-

(a) if, either before the issue of summons or after the issue of
the summons but before the time fixed for his
appearance, the Court has reason to believe that he
has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is

proved to have been duly served in time to admit of his
appearing in accordance therewith and no reasonable
excuse is offered for such failure.

Lecture: if the court believes there is an attempt of the accused to

run away and not to abide by summons, the court will issue a
warrant of arrest.

Summons For Production Of Documents Or Any Movable

Property

Section 42 Syariah Criminal Procedure Act

(1) If any document is necessary for the purpose of
investigation, inquiry, trial or other proceeding, the Court
may issue a summons or officers issue a written order
to the person in whose possession or power such
property or document is believed to be requiring him
to attend and produce it at the specified time and place

(2) If a person is only required to produce any property/

document, it is sufficient if he causes such document to be
produced without personally attending to produce the
document.

Lecture:
● Subsection (1) for section 42, it does not need to be
produced to accused, but can be served to anyone to
produce the document

Procedure
Form MS 2 in Schedule 2 - Summons to appear

108
Note: Section 43 then also cross-refer to Sections 28-31 in relation
to summons.

Non-Compliance
Section 44 Syariah Criminal Procedure Act
Court may issue search warrant to discover such item, the
person directed may search and inspect
(a) if the person to whom a summons has been addressed will
not produce the document

(b) the property or document is not known to the court to be in

possession of any person

(c) the court consider that trial or proceedings will be served

by a general search or inspection

(d) the court believes that an offence has been committed in

any place

Lecture
● If court already ask for summon to produce document but
person fail to comply such summons, court may issue
search warrant to search for such document

2. Warrant of Arrest
● A person can be forced to appear by way of arrest.

● Warrant of arrest is a writ directing someone to make an

arrest and bring the arrested person to the court.

Lecture: non compliance with the summons will result in the

accused be given a warrant of arrest

Section 32 Syariah Criminal Procedure Act

(1) form of arrest in Form 3, signed by the Judge, seal of the

court

(2) every warrant shall remain in force until it is cancelled by

the Court

Section 33 Syariah Criminal Procedure Act

Any court issuing the warrant has discretion that if the person
executes a bond with sufficient sureties for his attendance
before the court at a specified time, the officer whom the
warrant is directed shall take the security and release the
person from custody [He can be released with some sureties e.g.
with certain payment of money or not]

Lecture: If the person fail to comply with summons, and court dah
issue warrant of arrest, he can be released with sureties.

109
Section 34 Syariah Criminal Procedure Act
Warrant of arrest shall be directed to the Chief Religious
Enforcement Officer, Religious Enforcement Officers, Inspector
General of Police and all Police Officers in the FT, or any person
who may execute the warrant.

Lecture: gives power to REO/officer gives authority to arrest the

person who fail to comply with the summons

Section 35 Syariah Criminal Procedure Act

The REO or PO shall notify the substance to the person arrested,
shall produce and show the warrant, or a copy under the seal of
the court

Lecture: the person who’s about to be arrested because he fail to

comply with summons, the REO must tell him that the arrest is
BECAUSE he failed to comply with summons (grounds of arrest)

Section 36 Syariah Criminal Procedure Act

The REO or PO shall without unnecessary delay bring the person
to the court.

Lecture: If offence is bailable he can be released on bail if not he

will be detained at the end of the proceeding

Section 37 Syariah Criminal Procedure Act

Procedure on Arrest of Person

(1) Warrant executed outside the local limits of the jurisdiction,

the person shall be brought before the nearest Judge or
a Syariah Subordinate Court

(2) if the person arrested appears, the judge shall direct his
removal in custody to the Court named in warrant

(3) if the offence is bailable, and the person is willing to give

bail, or direction is given under Section 33 that the person
is willing to give the security, the judge shall take such
bond and security [if not bailable he must be detained until
the end of proceeding]

(4) a REO and PO are not prevented from taking security

under Section 33

Lecture: subsection (4), even though there is ALREADY surety, it

is also allowed for REO to ask additional sum of money as security

Section 38 Syariah Criminal Procedure Act

Issue of warrant in lieu of or in addition to summons

110
 A Court may, in any case in which it is empowered to issue a
summons for the appearance of any person, issue, after
recording its reason in writing, a warrant for his arrest-

(a) if, either before the issue of summons or after the issue of
the summons but before the time fixed for his appearance,
the Court has reason to believe that he has absconded
or will not obey the summons; or

(b) if at such time he fails to appear and the summons is

proved to have been duly served in time to admit of his
appearing in accordance therewith and no reasonable
excuse is offered for such failure.

Lecture: court may issue warrant of arrest in addition to summons

in two situation
1. There is an attempt for accused to run away / escape or
not to attend OR
2. if the accused person did not attend as stated in the
summons

Section 40 Syariah Criminal Procedure Act

If the accused is present in the court, the court may require the
person to execute a bond with sureties for his appearance in that
court.

Section 41 Syariah Criminal Procedure Act

If the person who is bound by any bond does not appear, the court
may issue a warrant directing such person be arrested and
produced before it.

● Warrant of arrest depends on circumstances. If there is an

attempt or the court believe that accused will not obey
summons, court can issue warrant of arrest

CHARGE
25.05.2022 ● When the accused is arrested, the prosecution will prepare
the charge.
● The purpose of the charge is to inform the accused on the
offence he had committed.
● Example of a charge:

○ “That you Rashid bin Rusydan [IC], on 17th

November 2020 at about 5.00 a.m. in a room No 3,
Hotel Selesa, Lorong Hj Taib, Jalan Chow Kit, Kuala
Lumpur, was found together with one Rasyidah Binti
Rusydi I/C no 111222 who was not your wife or your
mahram under circumstances which may give rise to

111
 suspicious that you were engaged in immoral acts.
Such act is an offence of khalwat under sec 27(a) of
Syariah Criminal Offence(FT) 1997 and punishable
with the same section”

If khalwat, zina sumbang mahram, must insert the name and IC of

co-accused

PENDAKWA SYARIE NEGERI SELANGOR V KHALID BIN

ABDUL SAMAD [2019] 3 SHLR 39
That you, on 16 August 2011, between 10.00p.m to 11.30 pm, have
taught matters of Islam without a tauliah in a surau Taman Seri
Sementa, Jalan Taman Seri Sementa, 42100, Klang District in the
State of Selangor. Therefore, you are accused of teaching of
religion of Islam without tauliah granted under section 119 (1) of the
Administration of the Religion of Islam (State of Selangor)
Enactment 2003 and if convicted can be punished with a fine not
exceeding RM3000.00 or imprisonment for not more than two
years or both under the same section and enactment.

Bahawa kamu, pada 16 Ogos 2011, pada antara jam 10.00 hingga
11.30 malam, telah mengajar perkara-perkara tentang Agama
Islam tanpa tauliah di dalam sebuah surau Taman Seri Sementa,
Jalan Taman Seri Sementa, 42100, Daerah Klang dalam Negeri
Selangor. Maka dengan itu, kamu dituduh melakukan kesalahan
mengajar tanpa tauliah di bawah seksyen 119 (1) Enakmen
Pentadbiran Agama Islam (Negeri Selangor) 2003 dan jika
disabikan kesalahan boleh dihukum dendan tidak melebihi
RM3000.00 atau dipenjarakan selama tidak melebihi dua tahun
atau kedua-duanya di bawah seksyen dan enakmen yang sama.

In exam, draft in english not malay

Framing a Charge
Section 78 Syariah Criminal Procedure Act

(1) the charge made must be clear stating the offence with
which the accused is charged

(2) If there is a specific name, use that name only

(3) If no specific name of the offence, the definition of the

offence must be stated [describe or explain what the
accused had done which allows him to be charged by that
particular provision]

(4) The law and provisions of the law shall be mentioned in the
charge

(5) The charge is made is equivalent to a statement that every

legal condition required by law to constitute an offence was
fulfilled

How to determine whether offence has a name?

112
 ● Some provisions have the name of offence at title
● Yang takde, you can explain

Section 79 Syariah Criminal Procedure Act

Time, place and person

The charge shall contain such particulars as to the time and place
and the person, if any, against whom or the thing, if any, in respect
of which it was committed as reasonably sufficient to give the
accused notice of the matter with which he is charged. [Only put
the name of the particular person unless if it is done in a group then
put all their names]

Section 80 Syariah Criminal Procedure Act

Manner of committing offence
If notice in Sections 78 and 79 do not give the accused sufficient
notice, charge shall also contain such particulars of the manner in
which the alleged offence was committed as will be sufficient for
that purpose.

Section 82 Syariah Criminal Procedure Act

Effect of Error
Any error is immaterial unless the accused was in fact misled
by such error.

Example of Acceptable Errors: Typographical errors in the name

etc.

Example of Material Errors: Accused was not there or the

charge does not reflect the actual act of the accused. e.g. the
accused was charged with committing zina when the accused
actually committed khalwat.

Section 83 Syariah Criminal Procedure Act

Amend or add to charge
The Court may amend or add to any charge at any time before
judgment is pronounced and it shall be read and explained to the
accused. [Accused will be asked whether to plead guilty or not]

Section 84 Syariah Criminal Procedure Act

Trial immediately after amendment or addition
(1) If amendment is made to a charge, the court will call the
accused to plead and ask whether he is ready to be tried on
such amended or added charge

(2) if the accused is not ready, the court shall consider the
reason, if proceeding immediately does not prejudice the
accused, the court may proceed with the trial as if the
amended or added charge had been the original charge

KPS V AMZ [2018] 4 SHLR 41

The accused was charged for an offence under s 26 of the
Selangor Syariah Criminal Enactment 1996 as on 31 January 2009

113
at about 6.15pm at Hotel Flamingo in Ampang for committing
sexual intercourse with a woman named NE.

The evidence relating to the time of the arrest was contradictory

and did not consistent with time stated in the charge sheet for the
current case.

First witness: at cross examine 5.00pm.

Second witness: at examination in chief: 6.00pm, at cross-examine

6.15pm.
The charge against the accused was required to be amended
and the time for the arrest should be amended.

Section 88 Syariah Criminal Procedure Act

Separate charges for distinct offence

General rule: For every distinct offence there must be separate

charge, and every such charge shall be tried separately.

Exceptions
Where more than one offence can be charged and tried together in
one trial as provided in Sections 89, 90, 91 and 95.

Section 89 Syariah Criminal Procedure Act

Three offences of the same kind within twelve months may be
charged together.

(1) Offences of the same kind committed within twelve months

from the date such offence was first committed, whether in
respect of same person or not

(2) Same kind means they are punishable under the same
provisions of any law for the time being in force

e.g. committed khalwat in april then committed khalwat in may.

Pendakwa Mahkamah Kadi Perak v Jaffary and Hasliza (1991)

8 JH 105
In this case, both man and woman were accused for the crime of
adultery under section 155(2) and (3) of the Perak Administration of
Islamic Law Enactment 1965. The case was ruled solely based on
the fact that a child was born out of wedlock. Based on the ta’zir
punishment, both of the defendants were penalized with a fine of
RM1,000 or in default, a year of imprisonment.

Section 90 Syariah Criminal Procedure Act

Trial for more than one offence
(1) Series of acts so connected together as to form the same
transaction, the person accused of them may be charged
with and tried in one trial for every offence.

114
e.g: False doctrine-series of act- exercise nikah batin, prayer just
by intention, declares himself as immune.
● If one declares himselfas nabi terakhir
● One declares as prayer with intention
● One declares something else yang merapu
● All 3 can be tried together.

(2) Acts alleged constitute two or more separate definitions of

offences, the person may be charged and tried and one
trial for each offence [The accused can be tried
separately]

e.g: Receiving zakah without tauliah, religious teaching without

tauliah.
● For these offences if done together, can be tried separately

(3) Several acts, one or more would by itself constitute an

offence, or constitute when combined a different offence,
the accused may be charged and tried at one trial.
[together]

e.g.: Non-payment of zakat fitrah, failure to perform Friday prayer,

exercise nikah mut’ah = False doctrine
● If the accused does not pay zakat, does not pray and
exercises nikah mut’ah, but the root of the problem is false
doctrine, then he can be charged for exercising false
doctrine.

PENDAKWA v ABD TALIB HARUN (1996) 10 JH 150

The accused was charged with 7 offences, i.e. practicing mutaah
marriage, performing Jumaat prayer without tauliah, teaching
religion of Islam without tauliah, teaching false doctrine, accepting
zakat without tauliah, living together with 6 women (he claimed they
were his wives) without marriage, committing sexual intercourse.

The second accused and the accused’s four wives were charged
with abetment of the offences.

All charges were tried together as all offences were committed in

one transaction.

Note: all this actually falls under false doctrine.

ABDUL KAHAR BIN AHMAD V KETUA PENDAKWA SYARIE

NEGERI SELANGOR [2016] 4 SHLR 55

The accused was charged with five counts of offences relating

(1) to false doctrine under Section 7 Syariah Criminal Enactment

(Selangor) 1995.
(2) making false allegations under Section 8 and
(3) making derogatory allegations or caused Islam to be viewed
disdainfully under Section 10.
(4) contempt against Islamic religious authorities under Section 12

115
(5) expressing views contrary to the fatwa under Section 13

All offences were tried together.

Section 91 Syariah Criminal Procedure Act

Doubtful what offence has been committed

If a single act or series of acts is of such a nature that it is doubtful

which of the several offences the facts which can be proved will
constitute, the accused may be charged with having committed
all or any of such offences and any number of such charges
may be tried at once.
● Accused can be charged with ALL offences and tried once

Section 92 Syariah Criminal Procedure Act

When a person charged with one offence can be convicted of
another.

If 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, he may be convicted of the offence which he is
proven to have committed although he was not charged with it.

e.g. accused charged with committing khalwat but at trial it was

later found that he was committing zina. So he can be charged for
committing zina.

Section 93 Syariah Criminal Procedure Act

Person charged with an offence can be convicted of the attempt.

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.

Section 94 Syariah Criminal Procedure Act

When an offence proved is included in the offence charged.

(1) When a person is charged with an offence consisting of

several particulars, a combination of some only of which
constitutes a lesser offence, and such combination is
proved but the remaining particulars are not proved, he
may be convicted of the lesser offence though he was
not charged with it.

[e.g. he was charged for zina, however, since they are about to
commit zina, they will be in a suspicious place, difficult to prove that
both persons commit zina, accused can be charged and convicted
for khalwat which is lesser than zina.]

(2) When a person is charged with an offence and facts are

proved which reduce it to a lesser offence, he may be
convicted of the lesser offence although he is not
charged with it.

116
 ● Same explanation as above even if the charge states
difference offence
● But in practice court amends charge from zina to khalwat

Section 95
When more than one accused may be charged jointly
More than one person are accused of the same offence or of
different offences committed in the same transaction, or when
person is accused of committing an offence and another of
abatement of or attempt to commit the same offence, they may be
charged and tried together or separately as the Court thinks
fit.

Section 206
Omission to frame charge

No finding or sentence pronounced or passed shall be deemed

invalid merely on the ground that no charge was framed unless, in
the opinion of the appellate Court, a failure of justice has been
occasioned.

If the appellate court thinks that a failure of justice has been

occasioned by the omission to frame a charge, the court shall
order that a new trial be had.

● If accused prosecuted for an offence but there is no charge

against him,it will not affect the accused if he is found guilty
for that offence unless the accused can prove that he
suffered from omission of framing the charge

Prosecution

Section 181
Chief Syariah Prosecutor.
The Chief Syariah Prosecutor shall have the control and direction
of all criminal prosecutions and proceedings under this Act.
[Basically, the prosecution will have the power to charge and how
to charge.]

Section 182
In any appeal the Chief Syariah Prosecutor shall appear personally
or be represented by the Syariah Prosecutor. [normally the latter]

Section 183
(1) Any prosecution before the Syariah High Court shall be
conducted by the Chief Syariah Prosecutor or a Syariah
Prosecutor.

(2) Prosecution before the Syariah Subordinate Court may be

conducted by-

(a) the Chief Syariah Prosecutor or a Syariah

117
 Prosecutor;

(b) a Religious Enforcement Officer authorized in writing

by the Chief Syariah Prosecutor to act on his behalf;
or

(c) a complainant as permitted by the Court.

Section 184
Employment of Peguam Syarie
(1) With the approval of the Majlis, a Peguam Syarie may be
appointed by the Chief Syariah Prosecutor to conduct
any prosecution, or to appear on any appeal on behalf
of the Chief Syariah Prosecutor.

(2) A Peguam Syarie appointed under subsection (1) shall be

paid out of public funds such remuneration as may be
sanctioned by the Majlis, and while conducting such
prosecution or appeal the Peguam Syarie shall be deemed
to be a public servant.

118
 TRIAL

Jurisdiction of the Court SYARIAH CRIMINAL PROCEDURE ACT

Sections 67 - 71 (OF THE JURISDICTION OF COURTS IN TRIALS)

Mainly focuses on place of commission of offence
Kena also tengok nature of the offence & punishment so ni specific to
the act its governed under such as IFLA

S67: tried by a court within the local limits of whose jurisdiction it was
committed (this is a general geo jurisdiction)

S68: tried by a Court within the local limits of whose jurisdiction any
such thing has been done or any such consequence has ensued (a
more specific one regarding geo jurisdiction)
*an example can be marriage solemnised in Thailand without
permission of the Court

S69: when an act is an offence by reason of its relation to any other

act which is also an offence a charge of the first mentioned offence
may be tried by a court within the local limits of whose jurisdiction either
act was done
*illust: charge of abetment may be tried either by the court in which the
jurisdiction THE ABETMENT WAS COMMITTED or by the court in
which the jurisdiction the OFFENCE ABETTED was committed

S70: if uncertain the scene of offence since:

- there are several local areas
- partly in one place and partly in another
- its a continuing offence which continues to be committed in
more local limits of jurisdiction than one
then may be heard by court in ANY of the said jurisdictions

S71: when doubt arises, Chief Syariah Judge may decide

ADMIN OF ISLAMIC LAW (Fed Territories) ACT 1993

Sections 46 & 47 (**TAKE NOTE ONLY APPLICABLE IN FED
TERRITORIES)

S46: (1) A Syariah High Court shall have jurisdiction throughout the
Federal Territories and shall be presided over by a Syariah Judge.
*subs (2) lists down criminal & civil jurisdiction

S47: A Syariah Subordinate Court shall have jurisdiction throughout the

Federal Territories and shall be presided over by a Judge of the Syariah
Subordinate Court.
- Criminal: any offence against precepts of religion of which
MAXIMUM PUNISHMENT DOES NOT EXCEED RM2K OR
IMPRISONMENT FOR A TERM OF ONE YEAR OR BOTH
- Civil: hear and determine all such actions & proceedings the
SHC is authorised to hear and determine in which the amount
or value DOES NOT EXCEED RM50K or is not capable of
estimation in terms of money

119
PRINCIPLES OF TRIAL Surah As Sod (38):26
UNDER ISLAMIC LAW “...We have made you a vicegerent on earth, therefore pronounce
judgment with justice among men (in accordance with the sacred law
which has been revealed to you)...

An Nisa (4): 58-59

“...and Allah commands you whenever you have to judge between
people, to pass judgment upon men with fairness

Sahih al-Bukhari:
“I am only human being and you bring your disputes to me. Some of
you are more eloquent in their arguments than others so that I might
(end up) ruling in their favour. Whenever I decide for anyone and
transfer to him which by right belongs to his brother, let him not take it,
for I would be granting him only a portion of Hell.

PROCEDURE Mainly governed by section 96 of Syariah Crim Procedure Act

(i will summarily list down but pls tengok the section for proper wording.
Numbering is NOT according to the section its just for ease of flow)

1) charge shall be framed, read, and explained to accused

2) he shall be asked whether he is guilty of the offence charged or

claims to be tried

3) If PLEAD GUILTY — plea shall be recorded & may be convicted

(but court must ascertain that the accused understands the
nature & consequences of his plea etc)
○ facts of the case will also be read and explained to the
accused to ask whether her agrees with the fact or not
and if agreed baru court will convict
○ Prosecutor will ask court to pass sentence & court will
give accused chance to ask for mitigation before the
court passes sentence

CASES

Rusidah Abd Ghani v Pendakwa JAWI 7 JH 207

- Accused pled guilty for charge of indecency, sentenced to fine +
imprisonment
- Prosecution managed to prove that the accused committed
khalwat with a man who is not her husband or her mahram in
accordance with Islamic law
- Having read & understood the charges, she pled guilty for the
offence

Pendakwa Syarie NS v Jaafar Sudin and another 7 JH 253

- Both the accused pleaded guilty for charge of indecency
- Judge acquitted them before hearing prosecution’s arguments
- Held on appeal that the court has no power to discharge the
accused without hearing the prosecution’s case against them &
witnesses, retrial was ordered

120
PS v SNS [2020] 3 SHLR 11
- Accused charged w khalwat offence, pleaded guilty
- Accused had pleaded guilty after the charge was heard,
understood, and had understood the effects and consequences
of guilty plea for each of the offences charged + the plea was
made voluntarily/without coercion

4) If CLAIM TRIAL — court shall proceed to hear the

PROSECUTION & to take all evidence as may be produced in
support of the prosecution

5) Court will obtain and summon people that are acquainted with
the facts of the case to give evidence

6) DEFENCE COUNSEL shall be allowed to cross examine all the

witnesses for the prosecution

7) If through all the evidence the court finds no case against the
accused then court shall record AN ORDER OF ACQUITTAL
(ref pendakwa syarie v jaafar above, mesti dengar argument +
witness dulu baru order of acquittal can be made)

8) However court may discharge the accused at any previous

stage of the case if considers the charge to be groundless

CASE: Mohd Sabu v Pendakwa Syarie Kelantan 1997 11 JH 61

- Accused charged with indecency
- Court only heard testimony of two witnesses, some evidence,
and submission of the defence counsel and prosecutor but
ordered the accused be discharged without calling his defence
due to lack of evidence

9) If the court feels that there are grounds to presume the accused
has committed the offence charged or some other offence the
charge shall be recorded or amended as necessary and the
amended charge shall be read to the accused and he shall be
again asked whether he is guilty or has any defence to make

10) IF PLEAD NOT GUILTY to charge (whether amended or not)

then accused shall be called upon to enter his DEFENCE,
produce his EVIDENCE and shall at any time while he is making
his defence be allowed to recall and cross examine any witness

11) At this point, if the court finds the accused NOT GUILTY, the
court shall record an ORDER OF ACQUITTAL

12) If the court finds the accused GUILTY or A PLEA OF GUILTY

HAS BEEN RECORDED (as per 9 above) the court shall PASS
SENTENCE according to the law

121
POWERS OF THE S 97 — POWER OF THE COURT TO DISCHARGE CONDITIONALLY
COURT OR UNCONDITIONALLY

● If the charge is proved but the court finds that it is expedient to

inflict any punishment other than a normal punishment OR that it
is expedient to release on probation, the court may:

○ Dismiss charge/complaint after caution to the offender

○ Order the offender to be detained in a welfare house not

exceeding 6 months

○ Discharge the offender conditionally on his entering into

a bond w sureties to be of good behaviour for a period
not exceeding 3 years and to appear when called upon
any time during the period for the conviction to be
recorded and for any sentence

○ In addition to the order, order the offender to pay such

compensation for injury or for loss not exceeding RM1K
or to pay costs of the proceedings

● THIS IS CONDITIONAL UPON:

○ Character
○ Antecedents
○ Age
○ Health
○ Mental condition of the person charged
○ Trivial nature of offence
○ Extenuating circumstances under which the offence was
committed

*if the offender has failed to observe any of the conditions of his bond, a
warrant may be issued for his apprehension. when apprehended on the
warrant, he must be brought before the court and the judge may
remand him until the time at which he is required by bond to appear for
judgement OR admit him to bail with a sufficient surety conditioned on
his appearing for judgement. When remanded, he may be committed to
prison

**kiranya judge akan discharge dia and like keep an eye on him for a
period of time before dia kena panggil balik for judgement

S 99 — POWER TO AWARD COMPENSATION

● If the court ACQUITS the accused and is of the opinion that the
complaint/information/charge was frivolous/vexatious the court
may order the complainant to pay to the accused such
compensation not exceeding RM1K provided that the court
considers any objections which the complainant may raise + the
court must record its reasons for allowing the order for
compensation

122
 Cross refer:
● S 220 (for convicted person to pay compensation to victim)
● S 221 (court’s discretion on the particulars of the payment such
as time, payment by instalments etc)
● S 224 (if no sufficient grounds for causing arrest, compensation
to be paid by complainant not exceeding RM100)

OTHERS S 100 — RECORDS OF PROCEEDINGS

● The court shall keep a record of each case

Cross refer to s 222

● If the complainant or the accused or any person affected by a
judgement passed or made by the court desires to have a copy
of the judgement, he shall apply with payment of reasonable
sum unless the Court for some special reason thinks fit to give
free of charge
● An application for a copy of the record may be made at any time
by the Prosecutor by whom no fee shall be payable

S 101 — TRANSFER OF CASES

If the subordinate court is of the opinion that the case ought to be tried
by a Syariah HC, it can be transferred and the judge shall record such
order

Cross refer
s 203
● Banyak conditions so yall tengok je la the section HAHSHSH
● But if the conditions are met, the judge may order:
○ The criminal case to be transferred to and tried bfr the
HC
○ That an accused person be tried in another syariah sub
court
S 204
● Any application for transfer must be supported by an affidavit
● Shall be made before the trial has been concluded

*Syarie Prosecutor of Selangor v Mohd Asri bin Zainul Abidin @

Abdul Talib [2010] 3 SHLR 190

● The accused, a former mufti, was charged for teaching the

religion without tauliah (offence under the administration of
religion of islam enactment 2003)
● Accused pleaded not guilty and asked for trial
● Chief syarie prosecutor applied for stay of proceedings and
requested for the case to be transferred to Syariah High Court
● Reasons: it would involve the application of law and procedure
that necessitates interpretation and opinion of a more
experienced judge + case had received wide publicity due to
accused being an influential person
● HELD: application dismissed due to reason to transfer the case

123
 was based on individual interest and case was not complicated
that it required strict interpretation.

GENERAL PROVISIONS S 102 — PROCEDURE WHERE THERE ARE PREVIOUS

(chapter 5 of the syariah CONVICTIONS
criminal procedure act)
S102: where the accused is charged with an offence committed after a
previous conviction for any offence:

● The part of the charge stating the previous conviction shall not
be read out in Court nor shall the accused be asked whether he
has been previously convicted unless and until he has either
pleaded guilty to or been convicted of the subsequent offence
(for the court to consider history of the accused before
sentencing)

● If he PLEADS GUILTY or is convicted of the subsequent

offence, he shall THEN be asked whether he has been
previously convicted as alleged

● If he says that he has been PREVIOUSLY CONVICTED, the

court may proceed to pass sentence on him accordingly but if he
DENIES or REFUSES to answer then the court can inquire

cross refer to s 195 on HOW PREVIOUS CONVICTION OR

ACQUITTAL MAY BE PROVED

● A prev conviction or acquittal may be proved:

○ By an extract of the sentence or order certified of the
court in which such conviction or acquittal was decided

○ In the case of conviction, either by a certificate signed

by the officer in charge of the prison in Malaysia in which
the punishment was inflicted or by production of the
warrant of commitment under which the punishment was
suffered

○ Ada lagi kena baca the section HAHA

S103 — PROSECUTOR MAY DECLINE TO PROSECUTE FURTHER

AT ANY STAGE

● At any stage of any trial, before the delivery of the judgement,

the Prosecutor may if he thinks fit inform the court that he does
not propose further to prosecute the accused and thus all
proceedings may be stayed by leave of court and the accused
shall be discharged of and from the charge — NOT AN
ACQUITTAL

*Mohd Fakry bin Sidek lwn Mohamad Kusini bin Johari dan
lain-lain [2015] 9 MLJ 437
● The plaintiff was accused and charged with khalwat (in a prev

124
 conviction)
● However The Syariah High Court of Putrajaya had struck off the
charge against the plaintiff as the Syariah Prosecutor had
withdrew the charge and did not plan to proceed with the charge
against the plaintiff.
● the plaintiff claimed against defendants (pegawai JAWI) jointly
and individually for, inter alia, general, exemplary and
aggravated damages
● One of the issues frm the Plaintif is the claim that the defendants
act of accusing and charging him and then withdrawing the
charge was considered as malicious prosecution
● HELD: prosecution has power to withdraw charges/decline to
prosecute further, no element of malice

S104 — RIGHT OF ACCUSED TO BE DEFENDED

S105 — COURT MAY PUT QUESTIONS TO THE ACCUSED

● The court may at any stage of the trial for the purpose of
enabling the accused to explain any circumstances appearing in
the evidence against him, put such questions to him
● The answers will be taken into consideration in the trial and put
in evidence for or against him
● Shall be recorded etc read the section HAHA

S106 — CASE FOR PROSECUTION TO BE EXPLAINED BY COURT

TO UNDEFENDED ACCUSED

*Pendakwa Syarie v A Mohad a/l Sahab bin Husin [2013] 3 SHLR 33

● the accused was charged for an offence in connection with the
sanctity of the religion of Islam and its institutions namely, being
in the premises of the Sports Toto, a gaming house
● the issue for the determination was whether a prima facie case
was established to convict the accused
● Once the court was satisfied that the prosecution had proved
beyond reasonable doubt, the court used this section to call the
accused to enter his defence since he was undefended.

S107 — POWER TO POSTPONE OR ADJOURN PROCEEDINGS

● If from absence of witness or any other reasonable cuase it
becomes necessary or advisable to postpone/adjourn any trial
the court may postpone/adjour on such terms and may, by
warrant, remand the accused if in custody provided that the
accused is not remanded for a term exceeding 8 days at a
time
● Can also use this section to remand the accused and postpone
proceedings if there is sufficient evidence that raises a suspicion
that the accused may have committed the offence and further
evidence may be obtained by a remand jugak

S108 — CHANGE OF JUDGE DURING HEARING

S109 — DETENTION OF OFFENDERS ATTENDING IN COURT
S110 — WEEKLY/PUBLIC HOLIDAYS

125
MODE OF TAKING & S111 — EVIDENCE TO BE TAKEN IN THE PRESENCE OF THE
RECORDING ACCUSED
EVIDENCE IN TRIALS
All evidence taken under this Act shall be taken in the presence of the
accused

Cross refer w S196 — RECORD OF EVIDENCE IN ABSENCE OF

ACCUSED
● If its proved that an accused person has absented himself, the
court competent to try such person for the offence complained of
may in his absence examine the witnesses produced on behalf
of the prosecution and record their depositions
● The depositions may be given in evidence against the accused
at the trial once he is arrested

S112 — RECORDING OF EVIDENCE

S113 — RECORD IN ALL CASES
S114 — MODE OF RECORDING EVIDENCE

● Evidence taken under S113 shall be taken in the form of

NARRATIVE not q&a but judge may in his discretion take down
any particular question & answer (considered as part of record
of proceedings as notes of evidence)

S115 — INTERPRETATION OF EVIDENCE TO ACCUSED

● Whenever evidence given in language or gesture not

understood by the accused it shall be interpreted to him in open
court in a language which he understands
● When the documents are of formal proof, it shall be the
discretion of the court to interpret as much as necessary

S116 — REMARKS AS TO DEMEANOUR OF WITNESS

● In recording evidence of witness judge may record remarks that
he thinks material like the demeanour of such witness whilst
under examination

S117 — OTHER PERSONS MAY BE AUTHORISED TO TAKE DOWN

NOTES OF EVIDENCE

**SPECIAL**
S192 — PROCEDURE WHEN PERSON TO GIVE MATERIAL
EVIDENCE IS DANGEROUSLY ILL
● Whenever a person who is able to give material evidence is
dangerously ill, the judge may take the deposition of such
person at any place after reasonable notice has been given to
the accused and prosecutor
● The evidence taken can be used as evidence in the trial if the
deponent is dead or for sufficient cause his attendance cannot
be procured

S193 — PERSON BOUND TO GIVE EVIDENCE INTENDS TO LEAVE

MALAYSIA
● Whenever any witness bound to give evidence in order to

126
 escape, intends to leave Malaysia and it would defeat the
purpose of justice, upon the application of the prosecutor or
accused, a judge can commit such person to civil prison until the
trial or until he shall give satisfactory security that he will give
evidence at the trial

S194 — REPORTS OF CERTAIN PERSONS (cam expert opinion)

S196 — RECORD OF EVIDENCE IN ABSENCE OF ACCUSED
(mentioned earlier in reference to evidence must be in presence of
accused)
S197 — DEFENCE OF ALIBI

127
JUDGEMENT, SENTENCE AND EXECUTION
JUDGEMENT S.118
- Shall be pronounced in open court and in the presence of the
accused or Peguam Syarie
- Either immediately or at some subsequent time
- Notice shall be given to the parties or their Peguam Syarie

S.119
- Judgement shall be explained to the accused
- A copy of a judgement shall be given to him (esp if not
represented by Peguam Syarie)

S.120
- Judgement shall be part of the records of proceeding

SENTENCES - Judge must look to the factors that may lead to either light/heavy
punishment
- Look at the nature of the case, the background of the accused

Factors to LIGHT punishment

- Plea of guilty
- Underage offender
- Effect of such punishment on the accused and to the society
- Good record
- First offender

Factors to HEAVY punishment

- Bad record/previous conviction
- Not first offence
- Married person (in khalwat and zina case)
- Status of the offender in the community

Types of 1. Imprisonment - up to 3 years

Sentences given 2. Fine - up to RM5000
by the Syariah 3. Whipping - up to 6 strokes
Court 4. Good behaviour
5. Detain in welfare house/rehabilitation centre

- Cross refer Syariah Criminal Offences Act on the specific offences

to know the maximum sentences.

Execution of S.124
Sentences - Issuance of warrant for execution of any sentences either by a
judge who passed the sentence or by his successor or other
judge acting in his place

Execution: Imprisonment
- S.121
- Court shall forward a warrant to the prison in which the
offender is to be confined and forward him to the prison

128
 with the warrant
- Warrant shall be directed to the officer in charge of the
prison/place where the prisoner is to be confined
- The sentence will take effect from which it was passed
unless ct otherwise orders

- S.127 - commencement of sentence of imprisonment on prisoner

already undergoing imprisonment
- When to start imprisonment for the syariah offences? After
he has completed the previous offence sentence or it can
be commenced immediately. Depends on the warrant
issued by the court.

Execution: Fine
- S.122
- S.122(1)(a) - discretion of the court
- Ct can allow time for payment of the fine,
- pay by instalments,
- issue warrant for a levy of the amount by distress and sale
of any property belonging to the offender
- and order that in default of payment the offender shall
suffer imprisonment

- S.122(1)(b) - the period for which the court directs the offender to
be imprisoned in default of payment of fine shall not exceed the
scale:

- s.122(1(b)(i) - if the offence is punishable with

imprisonment:
​
Where the max term of The period shall not exceed –
imprisonment –

Does not exceed 6 months The max term of imprisonment

Exceeds 6 months but does not 6 months

exceed 2 years

Exceeds 2 years One quarter of the max term of

imprisonment

- s.122(1)(b)(ii) - if the offence is not punishable with

imprisonment:

Where the fine – The period shall not exceed –

Does not exceed RM200 1 month

Exceeds RM200 but does not 2 months

exceed RM500

Exceeds RM500 6 months

129
 Imprisonment in Default of Payment of Fine
- Must follow scale in S.122(b)
- Imprisonment shall terminate whenever the fine is either
paid/levied by the process of law
- Can be suspended for 15 days

Whipping
- S.125
- S.125(2)
- Whipping rod must be made either from small branch of
tree w/o segment or joint and its length not more than
1.22m and thickness not more than 1.25cm
- S.125(3)
- The offender will first be examined by the govt MO
- Sentence will not be executed to pregnant woman until 2
month after delivery or miscarriage
- Sentence must be executed in the presence of the govt
MO in the place the court direct or fixed for that purpose
- The person who execute the sentence must be ‘adil and
mature person
- Whipping rod must be used without lifting his hand over
the head
- Lift the upward and not pull it
- Whipping may be inflicted on all parts of the body
EXCEPT face, stomach, chest or private parts
- The offender shall wear clothes according to Islamic law
- MALE offender: whipping shall be inflicted in a standing
position. FEMALE: sitting position
- If during the execution of the whipping the govt MO
certifies that the offender can no longer receive the
strokes, the whipping shall be postponed
- S.125(4)
- In the case where the offender is sentenced to whipping
only, he will be put in prison until the sentence is executed
- S.125(5)
- If the offender, due to old age, illness or any other reason
is unable to undergo the whipping sentence, the case shall
be referred to the court
- S.126
- Sentence will not be inflicted if an appeal is made and until
the sentence is confirmed by the appeal court
- Whipping shall be inflicted as soon as practicable and in
case of an appeal, as soon as practicable after the receipt
of the order of the appropriate appeal court confirming the
sentence

CONDITIONS OF - Require to execute a bond with sureties

BOND - Binds himself to be of good behaviour
- Court may include other conditions (consider background
of the case and the accused)
- Such person shall remain under the supervision of
some other person named in the bond
- if the offender failed to observe any of the conditions of his bond, he can
be arrested and court will determine to impose new punishment

130
RETURN OF S.131
WARRANT When a sentence has been fully executed, the officer executing it shall
return the warrant to the Court from which it was issued with an
indorsement under his hand certifying the manner in which the sentence
has been executed

POWER TO S.132
SUSPEND, - YDPA, on the advice of the Mufti, may at any time, w/o conditions
REMIT OR or conditions, suspend/ remit the whole or any part of the
COMMUTE THE sentence
PUNISHMENT - YDPA also may cancel such remission or suspension

S.133
- YDPA may also commute any sentence for any other mentioned
after it ie whipping, imprisonment, fine

Case: Kartika Sari

- At trial court, whipping punishment has been imposed
- Ada yang argue it is inappropriate for women to be imposed
whipping
- Among the comments were; the sentence was rather ‘cruel,
inhumane, degrading and prohibited by the international human
right laws’; its administration was rather cruel against women;
corporal punishment for Shariah offences must be the last resort
against women; as a first time offender, she should not have
received the maximum sentence; imposition of fine together with
whipping was inappropriate and that canning does not deter
misbehaviour.

- The Sultan has ordered the sentence to be commuted from

whipping to community service only.

Other matters 1. Youthful Offenders

(mitigating a. S.2 - “youthful offenders” means an offender above the
factors) age of 10 and below the age of 16 years
b. S.128 -
i. If any youthful offender is convicted, instead of
imposing the punishment provided for such
offence, the court may:
1. Order such offender to be discharged after
due admonition
2. Order the offender to be delivered to his
parent/guardian/adult relatives/ other
person - executed a bond with sureties - will
be responsible for a good behaviour of the
offender for at least 12 months
ii. Order the offender to of good behaviour for a term
not exceeding 2 years
iii. Held a summary inquiry on the parent and if
satisfied that the parent has neglected their duty to
take proper care of their child which conducted to
the misconduct of such offender, inflict on the

131
 parent a fine not exceeding RM200
iv. Parent should be given an opportunity of being
heard and adduce evidence

2. First Offenders
a. S.129

CASES 1. Pendakwa Syarie Kelantan v Yusundy Josan

a. Drinking intoxicating drink
b. Court: 6 strokes of rattan & 6 months imprisonment

2. Pendakwa Syarie WP v Siti Nurazniza binti Kamaruddin

a. Accused: 15 years old
b. Committed illegal sexual intercourse
c. Held:
i. RM2700 fine
ii. Bond of good behaviour with one surety among her
family for 6 months
iii. Under the supervision of Pegawai Sulh on any
development as to the character in every 3 months
3. Abd Razak Othman v Pendakwa Syarie Melaka (2007) JH 215
4. Nor AzliSham v Ketua Pendakwa Syarie NS (2002) 15 JH 165
5. Pendakwa Syarie v Jalil Embong & Zaleha Endut (2004) 17(1) JH
93.
6. Pendakwa Syarie Melaka v Muhamad Faris Ismail & Shahidah A.
Wahab [2011] JH 32, 62
7. —Ketua Pendakwa Syarie Jab. Hal Ehwal Agama Terengganu v
Nur Thuraiya Salleh

132
APPEAL AND REVISION

Introduction After the court determines whether to convict or acquit the accused in
criminal proceedings, can the accused appeal to the said decision at
Shariah appeal court that has the jurisdiction to hear?

● Yes but it depends whether the accused plead guilty or claim

trial. If the accused plead guilty, he can only appeal to the
extent of the sentencing (if dissatisfied w punishment)

● if claim trial: raise any defence, he can appeal for the conviction
as well as sentence

- Prosecutors can also appeal the conviction if the accused is

acquitted by the court. If convicted and prosecutor dissatisfied
w sentencing also can.

If the original case is heard at sub court then brought to HC, if heard at
HC then appeal to Shariah Appeal Court (highest for criminal)

PROCEDURE NOTICE OF APPEAL

Section 138 (1) of (SCPA)

● Any person who is dissatisfied with any judgement etc in which
he is a party may appeal within FOURTEEN DAYS from the
time of the judgement being passed or made with the Assistant
Registrar of such Syariah Subordinate Court a notice of appeal
in five copies addressed to the Syariah High Court.

Section 138 (2) of (SCPA)

● For the purpose of submitting any docs necessary, every notice
of appeal shall contain an address at which any notice or
document connected with the appeal may be served upon the
appellant or upon his Peguam Syarie.

Section 138 (3) of (SCPA)

● When a notice of appeal has been lodged, the Court appealed
from shall make a signed copy of the grounds of decision in the
case and cause the ground of decision to be served upon the
appellant or his Peguam Syarie by leaving that copy at the
address mentioned in the notice of appeal or by posting it by
registered post addressed to the appellant at such address.

Section 138 (4) of (SCPA)

● Within ten days after the copy of the grounds of decision has
been served pursuant to subsection (3), the appellant shall
lodge with the Assistant Registrar of the Syariah Subordinate
Court at which the trial was held a petition of appeal in five
copies addressed to the Syariah High Court.

133
 PETITION OF APPEAL

Section 138 (6) of (SCPA)

● Every petition of appeal shall state shortly the substance of the
judgment appealed against, and shall contain definite
particulars of the points of law or of fact in regard to which the
Court appealed from is alleged to have erred.
● Appellant must specify on what ground they want to appeal,
mistake of fact or law or both

Section 138 (9) of (SCPA)

● If a petition of appeal is not lodged within the time prescribed by
this section, the appeal shall be deemed to have been
withdrawn and the trial Court shall enforce its sentence …
● After received grounds of judgement, fail to file petition of
appeal, it is as if he withdrawn the appeal

Extension of Time Section 140

● The judge of SHC may, on application of any person desirous
of appealing who may be debarred from so doing, permit an
appeal upon such terms and enlarge any period of time
prescribed (discretion of the court)

APPELLANT OF Section 139(7)

PRISON ● If the appellant is in prison, he shall be deemed to have
complied with the requirements of this section if he gives to the
officer in charge of the prison either orally or in writing notice of
appeal and the particulars required to be included in the petition
of appeal within the time prescribed by this section and pays
the prescribed appeal fee.
● He must get assistant form officer, inform orally or writing his
intention and the petition (the grounds)

● (8) The officer in charge of the prison shall forthwith forward

such notice and petition or the purport thereof to the Assistant
Registrar of the Syariah Subordinate Court at which the trial
was held.

APPEAL AGAINST Section 145

ACQUITTAL ● When an appeal is presented against an acquittal, the Judge of
the Syariah High Court may issue a warrant directing that the
accused be arrested and brought before him, and may admit
him to bail pending the disposal of the appeal.
● At trial court, judge acquit but there’s appeal on acquittal, then
the accused can be arrested until the end of judgement

STAY OF Section 141

EXECUTION No appeal shall operate as a stay of execution unless the court
otherwise ordered.

- Even if there's an appeal made, not automatically regarded as

stay on execution of punishment EXCEPT WHIPPING. Will stay

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 until confirm judgement.
- ( s126)- whipping shall not be inflicted if appeal is made until
sentence is confirmed by appropriate appeal court, (2)
immediately after court order new judgement.
- Otherwise need to make an application for stay

TRANSMISSION Section 139

OF APPEAL ● When the appellant has complied with section 138, the Court
RECORD appealed from shall transmit to the Syariah High Court and to
the Chief Syariah Prosecutor and to the appellant or his
Peguam Syarie a signed copy of the record of the proceedings
and of the grounds of the decision together with a copy of the
notice and of the petition of appeal.
● When appeal made, after SBC received a copy of notice of
appeal, they have to serve etc

Section 142(1)
● On receipt of the documents mentioned in section 139, the
Registrar of the Syariah High Court shall number the appeal
and enter it on the list of appeals to be heard and give notice to
the parties that the appeal has been so entered.

● (2) As soon as such date has been fixed, the Registrar shall
give to the parties notice of the date of hearing of the appeal.

● (3) In any case the Judge of the Syariah High Court may, of his
own motion or on the application of a party concerned and with
reasonable notice to the parties, accelerate or postpone the
hearing of an appeal.

PROCEDURE AT Section 142(1)

HEARING ● (1) When the appeal comes on for hearing, the appellant shall
be first heard in support of the appeal, the respondent shall be
- Non heard against it, and the appellant shall be entitled to reply.
appearance
● (2) If the appellant does not appear to support his appeal, the
Court may consider his appeal and may make such order
thereon as it thinks fit:

● Provided that the Court may refuse to consider the appeal or to

make any such order in the case of an appellant who is out of
the jurisdiction or who does not appear personally before the
Court in pursuance of a condition upon which he was admitted
to bail, except on such terms as it thinks fit to impose.

-appellant start with grounds, resp then called to submit their case.
After that, the appellant replied. However, if at trial appellant did not
turn up, court may dismiss the appeal or if court found out they do not
have jurisdiction, may dismiss

Non-appearance of respondent
Section 144

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 ● If, at the hearing of the appeal, the respondent is not present,
the Court shall not make any order in the matter of the appeal
adverse to or to the prejudice of the respondent, but shall
adjourn the hearing of the appeal to a future day for his
appearance, and shall issue the requisite notice to him for
service through the Registrar.
● If the appellant fails to appear; dismiss. But if resp absent, court
may postpone

Section 147(1)
● In dealing with any appeal under this Chapter, the Syariah High
Court, if it thinks additional evidence to be necessary, may
either take such evidence itself or direct it to be taken by the
Syariah Subordinate Court. -if necessary court may hear
evidence from both parties

JUDGEMENT AND Section 146(pls refer act)

DECISION - SHC may deliver judgement in open court
- Either dismiss the appeal or may direct that the accused be
retried, or find him guilty and pass sentence to him
- Acquit or discharge the accused, alter the finding, maintaining
the sentence, reduce or enhance the sentence or alter the
nature of the sentence

Power to SHC to determine decision after hearing the appeal case,

they are not bound with decision made by sub court

Certificate and consequence of judgement

Section 146
● (1) Whenever a case is decided on appeal by the Syariah High
Court under this Chapter, it shall certify its judgment or order to
the Court by which the finding, sentence or order appealed
against was recorded or passed.

● (2) Whenever an appeal is not dismissed, such certificate shall

state the grounds upon which the appeal was allowed or the
decision of the Syariah Subordinate Court was varied.

● (3) The Court to which the Syariah High Court certifies its
judgment or order shall thereupon make such orders as are
conformable to the judgment or order of the Syariah High Court
and, if necessary, the record shall be amended in accordance
therewith.

SHC prepares certificates in regards to its judgement and the grounds

of which appeal is allowed or dismissed.

DEATH OF Section 150

PARTIES
● Every appeal under section 137 shall finally abate on the death
of the accused, and every other appeal under this Chapter shall
finally abate on the death of the appellant.

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 Before appeal court decides the case, then died, appeal end the
moment accused died

APPEAL TO Section 152

SYARIAH APPEAL
COURT (1) The Syariah Appeal Court shall have jurisdiction to hear and
determine any appeal by any person convicted or otherwise found
guilty or by the Chief Syariah Prosecutor against any decision made by
the Syariah High Court in the exercise of its original criminal jurisdiction
subject to this Act or any other written law regulating the terms and
conditions upon which criminal appeals may be brought.

(2) Where an accused person has pleaded guilty and been convicted
on the plea, there shall be no appeal except as to the extent or legality
of the sentence.

(3) Notice of any appeal by the Chief Syariah Prosecutor shall be given
by, or with the consent in writing of, that officer only.

(4) An appeal may lie on a question of fact or a question of law or a

question of mixed fact and law.

(5) The Syariah Appeal Court shall also have jurisdiction to hear and
determine matters brought before it in accordance with section 166 or
167.

PROCEDURE FOR It has the same procedure and requirements like appeal to Shariah
SYARIAH APPEAL High Court, refer to s153-165
COURT
How to determine which court has the jurisdiction for appeal?
- Look at the facts, if stated decision made in Subordinate Court
then appeal to SHC
- But if silent? Look at the nature of the punishment which the
court has jurisdiction over. If nature of punishment can only be
heard at sub then appeal to SHC, if beyond sub then decision
must be from SHC so appeal to SAC
- Then discuss the whole process of appeal based on to SHC
OR SAC (section 153-165), do not mix provisions

*madam skip sebab sama just refer sections

POWERS OF Section 162

SHARIAH APPEAL ● (1) At the hearing of an appeal, the Syariah Appeal Court shall
COURT hear the appellant or his Peguam Syarie if he appears and, if it
thinks fit, the respondent or his Peguam Syarie, if he appears,
- Judgement and may hear the appellant or his Peguam Syarie in reply and
the Syariah Appeal Court may thereupon confirm, reverse or
vary the decision of the trial Court, or may order a retrial or may
remit the matter with the opinion of the Syariah Appeal Court
thereon to the trial Court, or may make such other order in the
matter as to it may seem just, and may by that order exercise
any power which the trial Court might have exercised.

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 - It gives power to shariah appeal court to hear appeal
case decided by SHC, either to change, maintain etc

JUDGEMENT
Section 164
● (1) At the end of the hearing of any appeal, the Syariah Appeal
Court shall, either at once or later on a date appointed for the
purpose of which notice shall be given to the parties, deliver
judgment in open Court.

JUDGEMENT TO BE CERTIFIED TO TRIAL COURT

Section 165
● Whenever a case is decided on appeal, the Syariah Appeal
Court shall certify its judgment or order to the trial Court. On
ground of judgement

ABD RAZAK OTHMAN V KETUA PENDAKWA SYARIE NEGERI

MELAKA (2007) 23 JH

A was arrested on 5/4/2004 for drinking liquor (s50 syariah criminal

offences malacca). On 5/4/2005 he was then convicted and guilty.

Trial court: fine rm3k and imprisonment (3 months), if default in

payment imprisonment for another 3 years and bond will be regarded
as fine. A appealed. Court reaffirmed the decision of the trial court.
- No change concerning punishment

AZMI ARIFFIN & MAIMON ABDULLAH V PENDAKWA MAHK.

SYARIAH MELAKA (1990) 7 JH 80

A were charged for committing zina, both pleaded guilty. Both were
punished with;
Azmi; 2 months imprisonment
Maimon; 6 weeks imprisonment

Appeal:
1. The punishment imposed by the learned court for an offence of
committing zina was lenient
2. The punishment was increased to another 2 ½ months
imprisonment on Azmi and 2 months imprisonment on Maimon.

REVISION Which court has jurisdiction? SHC and SAC.

Section 168
● (1) Where any Judge of the Syariah Subordinate Court after
delivering his decision is of the opinion that his decision is in
error, he may refer his decision to the Syariah High Court for
revision; and any Judge of the Syariah High Court may similarly
do so, to the Syariah Appeal Court.

● (2) Notwithstanding subsection (1), the Syariah High Court may

call for and examine the records of any proceedings before a

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 Syariah Subordinate Court for the purpose of satisfying itself as
to the correctness, legality or propriety of any finding, sentence
or order recorded or passed and as to any regularity of any
proceedings of such Court; and the Syariah Appeal Court shall
likewise have such revisionary jurisdiction in respect of any
proceedings or matter before a Syariah High Court.

POWER TO Section 169

ORDER FURTHER ● On examining any record under section 168, the Court
INQUIRY exercising such revisionary jurisdiction may direct the relevant
Court to make, and that Court shall make, such further inquiry
as may be directed.

- Whatever has been supplied by sub court or high court is not

sufficient then the court having jurisdiction may require further.

STAY OF Section 170

EXECUTION OF ● (1) Where in the exercise of its revisionary jurisdiction, the
SENTENCE Court called for the record of the proceedings or such record is
referred to it, the Court may exercise any of the powers
conferred by sections 141, 145, 146 and 147.

● (2) No order under this section shall be made to the prejudice of

the accused unless he has had an opportunity of being heard,
either personally or by Peguam Syarie, in his own defence.

- If court passed judgement and sub court realise that they need
to forward the case to SHC for revision then execution of
judgement PENDING

HEARING Section 171

● No party has any right to be heard, either personally or by
Peguam Syarie, before any Court in the exercise of its
revisionary jurisdiction but the Court may, if it thinks fit, hear any
party either personally or by his Peguam Syarie.

- No hearing for parties, they will look at records of proceedings

prepared by the trial court, but if necessary to call parties they
must be informed.

ORDER ON Section 172

REVISION ● When a case is revised under this Chapter, the Court making
such revision shall certify its decision or order to the Court by
which the finding, sentence or order revised was recorded or
passed stating, where such finding, sentence or order has been
varied, the grounds for such variation; and the Court to which
the decision or order is so certified shall thereupon make such
orders as are conformable to the decision so certified and, if
necessary, the record shall be amended in accordance
therewith.

- Based on the revision, HC must certify their findings and inform

sub court(where original case from)
- Inform parties any changes

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 - Sub court then can amend judgement and inform parties

Practice Direction No. 7 2014

Rules on revision at HC/SAC from trial court

- Any mal/criminal cases

- How? Applicants must file Notice of application and affidavit
within 30 days of judgement- filed by parties.
- Parties may opt for revision instead of appeal.
Sometimes when the case is still ongoing and the party
realises that there is a mistake in regards to the
proceeding then they can apply for revision.
- If completed they can file for revision: Cases that can apply for
revision:
1. order/ judgement/ decision against hukum syarak
(quran, hadith, ijmak etc)
2. order/ judgement/ decision against the
Acts/Enactments.
a. Punishment exceed what stated in the act
3. Mistakes by trial court- technical, record, procedure,
evidence
4. Decision based on information of the facts without
relying to other evidence
5. Mistake done by trial judge due to the statement or
admissions by both parties

This practice direction can be applied for both criminal and civil cases.

But how to differentiate/determine to advise parties to go for appeal or

revision?
- Look at the facts of the case, if the party is dissatisfied with the
judgement or order, go for appeal. If the court realised there
was a mistake done by him, e.g. he ignored eye witnesses, did
not rely on documents etc then advised the judge for revision.
- If the case is ongoing and the party realised there is a mistake
in proceeding then revision.
- If judgement is made and dissatisfied, advise parties to go for
appeal.

Question: appeal for criminal and civil is different, but the purpose of
petition of appeal is similar for both civil and criminal?
- Yes, and content of notice of appeal and petition is different.

If question ask about appeal, procedures and grounds

- Procedures, look at which provisions relevant, which court has
jurisdiction, grounds of appeal (identify the mistake done by trial
court, there must be mistakes in the facts), then look at
provisions govern that matter and highlight what is the correct
procedure in which the court made the mistake.

- E.g. the case was decided by the court in the absence

of the defendant, so court did not comply with section
121 of syariah civil procedure act, court proceed case

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but did not ask plaintiff to take yamin istizhar before
passed the judgement
- Mention the section …, which para court did not
follow the exact procedure.

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