The Islamic Jurisprudential Assessment of Lawfulness of Issuing Writ in Condition of Evidences

One of the provisional remedies is writ which is one of precautious policies to avoid infringing on the rights of quarreling parties. In the civil procedure of Iran, based on writ and for guaranteeing the right of Plaintiffs, the defendants’ property itself or equal to it has been seized and avoided to transfer. In the criminal procedure, after informing the accused and the enough evidences for protecting the possibility rights of one of quarreling parties, the writ is issued during the procedure. Forfeiture of recognizance, bail and imprisonment of defendant are those of its cases. In the texts of Islamic jurisprudence of Kitab al-Qada’ (the Book of Judgment), it has been pointed to the obligation of surety and imprisonment of defendant in the condition of evidences which it should be stated as the Islamic jurisprudential principle of writ. In the civil procedure, one of the provisions for issuing writ is that the claim (a legal demand) should be definite and absolute. According to this, the question is asked if it is lawful (permitted) or not for judge to issue writ during lawsuits and preparing witness and during presenting Muslim witness till the righteousness of them. This research with analytic and descriptive way has presented this theory that if the witness is absence, the primary law is lawlessness of issuing writ. But in the rational fear of plaintiff’s loss, the primary law is set aside and the issuance of writ is lawful and perhaps necessary. In the condition of the ignorance to the justice of witnesses, the issue is the case of interference of rights and should be issued writ to be considered less loss for both quarreling parties.