چکیده:
Retaliation (Qisas) is a punishment that has existed in human society since ancient times, and its prominent feature is the similarity between the crime and the punishment. In the Islamic Penal Code, if someone harms the life or a limb of another, they are sentenced to retaliation. One of the most important conditions for retaliation for a limb, on which scholars agree, is the similarity between the damaged limb of the victim and that of the perpetrator. Accordingly, when a person severs another's hand, they are sentenced to retaliation. But what should be done if the perpetrator does not have a hand to carry out the punishment? Imami jurists differ on this matter: the majority of them have ignored the similarity feature and ruled for the amputation of the perpetrator's leg in exchange for the victim's hand; conversely, a group has ruled for the dropping of retaliation and its conversion into blood money (Diya). The legislator of the Islamic Republic, in Article 275 of the Islamic Penal Code, has deemed the condition of equality in location necessary, and in the note to this article, following the majority of jurists, has ruled for the amputation of the perpetrator's leg in exchange for the victim's hand. In this article, after examining retaliation for a limb and the condition of similarity of the limb therein, the issue of amputating the leg in exchange for the hand has been investigated jurisprudentially. From the examination of the arguments of the proponents and opponents, considering that the only reason for the proponents is a narration that faces challenges in chain of transmission and implication, it has been concluded that their reasons are unable to prove this claim regarding the amputation of the perpetrator's leg in exchange for the victim's hand, and the note to Article 275 also requires amendment.
خلاصه ماشینی:
In this regard, Abu al-Salah al-Halabi has proposed a new viewpoint and, by departing from the two aforementioned theories, not only has deemed the retaliation of the leg in exchange for the hand permissible, but has also extended this ruling from the leg to other limbs and organs, stating: "Regarding the fingers of the hands and feet, as well as the teeth, if the perpetrator lacks a similar limb, other similar limbs can also be used for retaliation (Halab, 1403:389); just as the thumb can be used in retaliation against the index finger or vice versa, and also the upper teeth against the lower and the lower against the upper, through similar deficiency, whereas other jurists, because this ruling contradicts established principles and general rules, have settled for the same retaliation of the leg in exchange for the hand and have considered general rules to govern in other cases (Najafi, 1981, Vol. 42:353).
The first view, which is considered the famous one, states: The right and left foot of the perpetrator will be subject to qisas against the hands he has amputated, and if he has no hand or foot for qisas, the diya (blood money) will be his responsibility (Tusi, 1429, Vol. 5:193; Ibn al-Athir, n.
A small number of jurists have not accepted the famous view and have said: The foot of a perpetrator is never amputated in exchange for a hand; rather, in the aforementioned case, qisas is waived and replaced by diya (Ibn Idris, 1411, Vol. 3:396-397; Shahid al-Thani, 1415, Vol. 15:127; Fakhr al-Muhaqqiqin, 1389, Vol. 4:574 and Khoei, 1428, Vol. 2:154).
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