Final Element of Muḥāraba and the Relevant Mens rea

Article 279 of Islamic Penal Code regards “creating insecurity in the region” as result and final element of muḥāraba. According to the relevant jurisprudential principles, this phrase includes creating an atmosphere of fear and deprivation of public security. The legislature has laid down the “intention to kill, robbery, or rape, or intimidating people” as mens rea to that. Intimidating people is intention of a part of result intention. And the former three intentions are in fact specific motivations. In addition to the objections of writing the law, the legislature’s standpoint concerning the final element of muḥāraba is fundamentally criticized. Because according to Qur’anic and hadith evidences and some Shi’a jurists’ opinions, muḥārib must have at least stolen a property. The above-mentioned article has enjoined capital punishment for the one who has not committed murder, robbery or rape, regardless of the rule of “proving guilt beyond a reasonable doubt” (darā’) and “prudence in bloods“ (damā’) and based on confusion between the principles of Sheikh Mufīd and Sheikh Ṭūsī.