The Effect of the Absence of a Premeditated Murderer on the Punishment in Imamieh Jurisprudence (With a View on Article 435 of the Islamic Penal Code)

Abstract

One of the issues that have been raised in jurisprudence texts for a long time is the non-execution of qisas for the lack of the murdered due to his escape or sudden death. In this case, some believe in turning qisas into Diya and they have resorted to the principle of respect for Muslim blood, Authority verse and hadiths; however, these reasons have been criticized by others because according to these reasons, the avenger of blood are entitled to the murderer’s soul not his possessions. Therefore, they cannot be a reason for the necessity of Diya and the narrations are exempt from the assumption of their authenticity. Others reject qisas and Diya because the compromise of the parties is a prerequisite for converting qisas to Diya, which would not be possible if the murderer is absent. However, since the traditions of proof of the Diya have the necessary authority, they cannot be ignored and the Diya is not rejected. Therefore, in accepting the distinction between escape and sudden death because the conversion of qisas into Diya is contrary to the principle and in cases of contrast to the principle, it is necessary to refer to the subject of the hadith i.e. the escape of the murderer. Many of the jurisprudents might be considered in agreement with this statement because proponents of the Diya, affirm the Diya in the event of an escape and those who believe in voiding Diya, reject Diya in the event of death. However, since the Diya is intervening substitute, if the murderer comes back, the right to qisas is reserved for the avenger of blood. Finally, Article 435 of the Islamic Penal Code can be criticized and amended for the lack of distinction between escape and natural death as well as for the transmission of qisas to Diya for intentional non-murder crimes.