خلاصة:
Regarding the punishment for intentional homicide and the extent of the powers of the legal heirs of the victim in its implementation, there are differences of opinion among the jurists of various Islamic schools. The famous view in Imami jurisprudence is that the punishment for intentional homicide is, primarily and inherently, Qisas (retaliation), and taking blood money (Diya) from the killer requires mutual consent between the legal heir and the killer. This theory, which some consider a requirement of the Imami school and claim consensus upon, is known as the 'theory of mandatory retaliation.' In contrast, some jurists believe that the legal heir has the choice between Qisas or pardoning the perpetrator and taking blood money, and can choose whichever they wish. This theory is also referred to as the 'theory of choice' (Takhyir). The present article examines and criticizes the scientific and jurisprudential foundations of each of these two theories in Imami jurisprudence and the Sunni schools, and has reached the conclusion that the theory of mandatory retaliation, given the weakness of its theoretical foundations on one hand and its negative effects and consequences on the other, does not possess the necessary scientific and practical validity. However, the theory of choice is a theory that has both strong theoretical support and can better provide for the rights of the legal heirs and society. Furthermore, due to the existence of stages such as being in accordance with the principle of precaution, consistency with the literal meaning of Quranic verses, and the context of revelation (Shan al-Nuzul) of these verses, it takes precedence over the theory of mandatory retaliation.
ملخص الجهاز:
The famous view in Imami jurisprudence is that the punishment for intentional homicide is, primarily and inherently, Qisas (retaliation), and taking blood money (Diyah) from the killer requires the mutual consent between the next of kin and the killer.
The famous Imami jurists believe that the punishment for intentional homicide is, primarily and inherently, Qisas, and taking Diyah requires the mutual consent of the next of kin and the killer.
Furthermore, proponents of this view, regarding the conditionality of the perpetrator's consent in paying the Diyah for intentional homicide, rely on verse 29 of Surah An-Nisa: «يا أيها الذين آمنوا لاتأکلوا أموالکم بينکم بالباطل إلا أن تکون تجاره عن تراض منکم » and say: God has prohibited taking the property of a Muslim without his consent and through means other than trade or similar methods (Ahkam al-Qur'an /185/1).
On the other hand, according to Article 257 of the Islamic Penal Code, the payment of diyah by the killer is based on the consent of both parties (theory of mandatory obligation) and cannot be received solely upon the demand of the next of kin.
However, if one of the next of kin of the victims takes matters into their own hands and kills the murderer, no right remains for the next of kin of the other victims, and they cannot demand diyah, because the subject of qisas has been eliminated and there is no longer the possibility of mutual consent between the next of kin and the killer (Shara'i al-Islam / 4 / 1004; Jawahir al-Kalam / 316 / 42; Mabani Takmilat al-Minhaj / 167 / 2).
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