Parties Responsibilities

Section 3.7      Parties to Crime and Criminal Conspiracy

A person is guilty of an offense if:

1. He is a principal offender or direct participant (Shereek Mobasher):
2. He committed or omitted the prohibited act by himself or with aid of another, in full or in part; or
3. He directs a person who lacks criminal responsibility or forces another by duress or deception to commit the crime.
4. He is a partner in crime (Shereek Motasbab), if he:
5. Aids the commission of a crime, or
6. Instigates, incites, abets or encourages the commission of a crime, or
7. Conspires with the principle offender to commit a crime.
8. The punishment for a direct participant is the same as for the principal offender.
9. The punishment for a partner in crime is the same as for the punishment of the principal offender with respect to Ta’zir
10. The punishment for a partner in crime is not the same as the punishment for the principal offender in Hudud and Qisas crimes; it must be reduced to a Ta’zir
11. A direct participant (Shereek Mobasher) is liable for the consequences he intended to occur only.
12. The mental element required for conviction of a partner in crime is having knowledge of the crime ahead of time and a desire to aid, abet, incite, instigate or encourage the commission of the crime or alternatively conspiring with the principal offender to commit an offense coupled with a desire to effectuate the offense.
13. The partner in crime is liable for all foreseeable consequences of his participation even if he did not intend the consequence. If the partner in crime conspired for the commission of the crime but did not participate in the commission of the crime, he is liable for conspiracy only.
14. Any doubts with respect to the mental element or physical element in crime shall preclude the punishments of Hudud or Qisas.
15. Voluntary desistance of co-conspirator or the partner who intended the commission of the offense precludes the punishment if the crime is not committed.
16. Voluntary desistance of the partner in crime who instigates, incites, abets or encourages the commission of a crime precludes the punishment if the partner proves that he neutralized the effects of his participation in the crime.
17. Any defense to a party to a crime shall not affect the responsibilities of other parties.

Explanatory Notes

This section limits the application of Hudud and Qisas punishments to the principal offender and direct participant only because partnership in crime- as distinguished from principle offender or direct participant – actions trigger doubt that is sufficient to prevent the punishment for Hudud or Qisas. This approach is a direct application of a hadith that affirms that Hudud punishments should be averted by the slightest doubt or ambiguity.

Section 3.7.1.B adopts the opinion of the scholars Malek, Shafi’I and Ahmed.  See Ibn Qudamah, 9 Al-Mughni Wa Al-Sharh al-Kabir at 331.

Section 3.7.8 expands the scope of liability for a partner in crime, making him liable for actions of the principal offender even if he did not intend the action to occur. For example, the partner in crime who encourages another to only assault the victim, is liable for homicide if death occurs albeit the partner in crime did not intend death.

Section 3.8      Non-Governmental Artificial Entity Culpability

1. A non-governmental artificial entity may be convicted of an offense if the conduct is performed by an employee of the entity acting on its behalf within the scope of his employment and for the entity’s benefit regardless if the conduct was authorized, requested, performed or recklessly tolerated by the entity’s administration.
2. A non-governmental artificial entity’s liability does not preclude the employee’s liability. The entity’s employee remains personally liable for their actions irrespective if the employee’s conduct was done exclusively for the benefit of or to harm the entity.
3. A non-governmental artificial entity may be convicted of any offense listed in this code.
4. A non-governmental artificial entity is liable for deliberate bankruptcy which is intended to harm others.
5. The mental element required for convicting the entity is assumed when the entity’s employee intentionally, knowingly, recklessly or negligently caused harm to an individual or to society at large.
6. Depending on the gravity of the offense(s) committed by an entity, a judge may order the entity to pay a fine or restitution. A judge may also order an entity to be dissolved or to be broken down into multiple competitive entities if the societal welfare so requires.

Explanatory Note

Islamic law recognizes an artificial entity as an independent entity from those who administer it. Accordingly, the artificial entity can be liable and subject to criminal sanction such as fine or dissolution. This is especially true if an entity’s conduct causes harm to an individual(s) or society at large.