Conflict of istiṣḥāb and dar` rule in criminal jurisprudence and Islamic Punishment Code 2014

Dar` rule is one of the important rules of the criminal jurisprudence. Based on this rule, the punishments are removed with the mistake or doubt. In criminal jurisprudence and Islamic Punishment Code, the cases can be raised in that the content of dar` rule conflics with istiṣḥāb principle. This contradiction occurs when the istiṣḥāb implies to establish the punishment, while the implication of dar` rule is removal of the punishment. But since this rule is a ijtihādi evidence, it precedes the practical principle of istiṣḥāb which is jurisprudential reason. Nevertheless, as to qisās (retaliation), according to istiṣḥāb principle, some jurisprudents and lawyers have ruled to establishment of the penalty in the conflict of this principle and dar` rule, and they have not regarded the latter. In contrast, based on the dar` rule, some other of them have ruled to remove the punishment. This contradiction is due to inclusion of this rule in accordance with their viewpoint. If implication of the dar` rule is proven on all the punishments (hodud, qisas and ta`zir punishments), the dar` rule precedes the istiṣḥāb principle in all the punishments. According to considerations, it seems that inclusion of this rule on the absolute punishments has advantages.