Fiqh and Usul

Fiqh and Usul

The Jurisprudential Foundations of Hearsay Evidence in Islamic Criminal Law: "A Critical Analysis of Article 189 of the Islamic Penal Code"

Articles in Press

Document Type : Original Article

Authors
Mohammad Zobdeh
Seyed Mohammad Hosseini
Department of Jurisprudence and Fundamentals of Law, Faculty of Theology, University of Tehran, Tehran, Iran.
10.22067/jfiqh.2026.97137.2122
Abstract
Derivative testimony (shahādat al-farʿ) as a branch of the "Book of Testimony" in Imami jurisprudence is accepted in principle, but its extension to ḥudūd (fixed penalties) and taʿzīrāt (discretionary punishments) has been contentious. The majority of jurists, relying on textual evidence, consensus, and the principle of darʾ, have deemed it invalid in this domain—a view reflected in Article 189 of the Islamic Penal Code. This article employs a descriptive-analytical method to re-examine these evidences and demonstrates that the cited narrations are weak in terms of chain of transmission, the recourse to the principle of darʾ is unfounded due to the absence of "legal doubt" (shubha), and the alleged consensus is of the derived (maddrakī) type and lacks independent authority. Moreover, the arguments for extending the ruling to taʿzīrāt are insufficient. Consequently, with the collapse of these evidences, the majority opinion and the current legal approach lack solid foundation. It is therefore necessary to revert to the primary principle and accept derivative testimony—subject to legal conditions—in proving ḥudūd and taʿzīrāt, thereby requiring an amendment to Article 189 of the Islamic Penal Code.
Keywords
Testimony upon Testimony
Secondary Testimony
Ḥudūd (Prescribed Punishments)
Taʿzīrāt (Discretionary Punishments)
Imāmī Jurisprudence
Subjects
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Fiqh and Usul

Articles in Press, Accepted Manuscript
Available Online from 28 June 2026

  • Receive Date 23 December 2025
  • Revise Date 08 May 2026
  • Accept Date 28 June 2026