Mandatory Ruling of Judicial Enquiry into the Evidentiary Suspicions subject to the Obviation Rule (Darʼ)

The rule of darʼ which obviates punishment in case of suspicion, is one of the most important criminal rules that has been considered more comprehensively by the legislator in the Islamic Penal Code of 2013. With regard to the application of the rule to suspicions which arise at the stage of proving the case of prescribed punishment before the judge, the question arises as to whether the punishment should be dropped at the same time that the suspicion arises, and the judicial authority is prohibited from conducting investigations to uncover the truth. Or the effect of the rule requires that suspicion remain despite the completion of the investigation and therefore the judge is obliged to investigate or basically, the decision in this regard is delegated to the judge. A descriptive-analytical study conducted in this article indicates that Islamic jurists do not agree on this issue, but the available hadiths and narrations indicate that the prescribed punishment is dropped provided that the research has been done. The expressions of the articles of the Islamic Penal Code in this regard has not been precisely regulated in such a way as to indicate the prohibition of the investigation, except in some exceptional cases where the removal of the prescribed punishment is subject to the completion of the investigation. Examining the background of the enactment of the provisions of the Code shows the inaccuracy of such an inference, which is in conflict with the jurisprudential principles.