چکیده:
In Islamic jurisprudence and law, Qasamah has been stated as one of the proofs of the lawsuit in crimes such as murder, wound, and amputation. Regarding the collection of the traditions of the infallibles and also the historical background about Qasamah, the doubt and the denial of any jurist and lawyer in this jurisprudential establishment, in which Qasamah is the reason of proof, seems unnecessary. Therefore, this research aims to examine the question of why the Imams (AS), while strongly emphasizing the consolidation of Qasamah and the expressing its irregular nature and the likelihood of establishing Qasamah as a legal reason, have been restricted Qasamah to specific cases. In addition, this research studies the evidences of Qasamah documentation and analyzes the possibility of the reason for its rejection, as well as further deduction in the traditions. It should also be mentioned that the research does not study the conditions of the lawth and the number of oaths necessary for murder, wound, and amputation of the organ. The result of the research shows that Qasamah is not a reason of proof. The problems and doubts about the implementation of Qasamah have been explained in this regard. Therefore, it is suggested that the legislator carries out the necessary examinations and makes the necessary changes in the Islamic Penal Code.
خلاصه ماشینی:
In Sahih Bukhari, it is narrated from Ibn Jurayh that he said: “The Messenger of God (PBUH) explained Qasama in the same way it was in the Jahiliyyah period, and he judged by Qasama in the case of the murder of one of the Ansar whose relatives accused the Jews of murder.
This exceptional ruling in Islamic criminal law is referred to as Qasama when just witnesses, as one of the evidences for proving the claim in specific cases, were not witnesses to the murder and no witness exists; However, it seems that based on the examination of narrations, Qasama is not against the rule, because the Prophet (PBUH) knew that the claimants would not take an oath; rather, he stated that the opposite party, i.
“And from him, from his father, from Ibn Abi Umair, from Burayd ibn Muawiyah, from Abu Abdullah (AS) he said: I asked him about Qasama, so he said: All rights, the evidence is upon the claimant and the oath is upon the defendant except in the case of blood specifically, for the Messenger of God (PBUH) was in Khaybar when the Ansar lost one of their men and found him killed.
Considering this point, it can be understood that the Prophet (PBUH) was seeking to deny the claim and ultimately pay the blood money from the Bayt al-Mal. Jurists point out that: “In Qasama, it is a condition that those taking the oath must swear based on knowledge, and suspicion is not sufficient” (Khomeini Mousavi, 1390, vol.
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