Investigating the Jurisprudential Principles of Article 283 in Islamic Penal Code for Explaining Muḥāraba Punishment

Muḥāraba is considered as one of the crimes for which the holy shari‘a has set a limit for its punishment. Muḥārib commits murder, injury, looting property, and disowning security by pulling gun on people and his penalty is hanging, amputating hand and foot, and exiling. However, jurists had two different perspectives in selecting four types of crimes since long ago, some of which believe that a judge can select one of the four crimes, which is known as takhyīr approach, while others express that observing the proportion between crime and punishment determines the kind of penalty, instead of the judge's choice, which is known as tartīb (order) approach. Based on the article 283 in Islamic penal code, the judge can select each of the four cases. The results of the present study indicated that the harmonization between the tartīb (order) approach with the rule of justice and fairness, and unity of precedent by assessing the reasons of parties and using rational and narrative evidences, which can be a useful support for correcting Islamic penal code and a step for clarifying issued judicial rulings.