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In modern criminal law, a crime is broken down int the actus reus, which is the objective act the crime consists of, and mens rea, which is the criminal intention with regard to committing the actus reus. A simple example: if John goes into someone else's house, takes money from the wallet, and leaves, then these actions are the actus reus of theft, while John's intention to steal the money is the mens rea.

At least with regard to the hudud, the sources I can find say the actus reus has to be proved beyond reasonable doubt for a punishment to be handed down by a qadi. This is based on a hadith that says "Ward off the hudud by means of ambiguities.", apparently found in the Musannaf of Ibn Abi Shayba (specific reference I can find without being able to verify it: Ibn Abi Shayba, Musannaf, XI, 70.), the Musnad of al-Harithi, and the Musnad of Musaddad ibn Musarhad.

From what i can find, the mens rea in sharia consists of

  • having the power to commit or not commit the actus reus (qudra)
  • knowing that the act was an offense ('ilm)
  • intending to commit the actus reus (qasd)

The problem that poses itself is that we can't look into someone's head to see what someone knew or intended. 'Ilm is probably a lesser problem in hadd; very few people will be unaware that the hadd offenses are offenses, and there probably is a presumption that anyone must know these.

Qasd seems more difficult to me. If John says "I thought it was my own house and my own money", does it have to be proven he didn't, or does he have to prove that he did?

Question: How is qasd proved, who has to prove what in a criminal case if the accused claims he didn't intend the crime?

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