Islam has not diminished the general human respect towards prisoners in all its teachings. From the Islamic point of view, every human being is born free from the womb of his mother, therefore, he should be given complete freedom in matters of his rights. However, sometimes a person gets involved in such activities that prove to be harmful to the general human community. On such occasions, it becomes necessary to protect the general human interests that the activities of that person be restricted, or a complete ban be imposed on him.
For this, imprisonment is required. During the era of the Holy Prophet (peace and blessings of Allah be upon him) and Hazrat Siddiq Akbar (may Allah be pleased with him), there was no formal prison or jail system, and the Holy Prophet (peace and blessings of Allah be upon him) never formally prescribed imprisonment for anyone. (Aqdah of the Messenger of Allah (peace and blessings of Allah be upon him) by Ibn Farah/11, Tasbirah Al-Hakam by Ibn Farahun, Al-Muwasa’ 16/284)
He ordered the temporary imprisonment of some accused persons for the sole purpose of investigating the situation, for example:
Once two men from the tribe of Banu Ghaffar were brought before the Prophet (peace and blessings of Allah be upon him) and they were accused of stealing two camels. The Prophet (peace and blessings of Allah be upon him) stopped one and ordered the other to search for the camels. Finally, the other man returned to the Prophet’s court with both camels and then both were released. (Musannaf Abdul Razzaq 10/216-217).
The system of imprisonment
It started with the Farooqi Covenant and the prison system was introduced due to necessity. On the orders of Hazrat Umar Farooq (may Allah be pleased with him), the governor of Mecca, Nafi’ bin Abdul Harith, bought the house of Safwan bin Umayyah for four thousand (4000) dirhams for this purpose. Similarly, Hazrat Ali established a regular prison in Kufa. (Al-Mabsut 20/89, Al-Tarqiq Al-Hikmiyyah 103, Al-Musawa 16/316)
Also, Hazrat Abu Musa Al-Ash’ari (may Allah be pleased with him) established prisons in Kufa and Hazrat Abdullah bin Zubair (may Allah be pleased with him) established prisons in Makkah during their respective reigns. (Tafsir Khazin 2/71, Zad La Ma’ad 2/74, Al-Musawaa 16/286)
Then in later periods, all Muslim rulers maintained this system, and Islamic judges prescribed imprisonment for various crimes – but all this was only tolerated under temporary and unavoidable necessity, that is why human respect was not ignored at any stage of imprisonment, Islam taught privileges and good treatment of prisoners, and in any case, it focused on the aspect that they are also human beings like you, they also have needs and requirements and they also have passions and feelings, and yesterday they were also free like you, the circumstances of the time have brought them to this state, so treat them with compassion.
Islamic Guidelines for Prisoners
After the victory in the Battle of Badr, the prisoners of war were presented before the Prophet Muhammad (peace be upon him), and the words that came from the tongue of the Prophet are the greatest gift of the Prophethood to the prisoners and the weak. The Prophet (peace be upon him) said:
O people! Allah has given you power over them today, and yesterday they were your brothers. (Majma’ al-Zawa’id 1/87).
want to know abouthttps://baitularqam.com/history-of-islamic-calendar/
Translation: O people! Allah has given you power over them today, and yesterday they were your brothers.
In the Holy Quran, treating prisoners well is considered an attribute of the righteous and the close:
And they feed the needy, the orphan, and the captive out of love and sincerity.
The Prophet (peace and blessings of Allah be upon him) gave this advice:
Advise the prisoners to be kind (Tabarani Kabir, quoting Seerah al-Mustafa, 1/579, Maulana Idris Kandhalvi)
Translation: Accept the advice to treat prisoners well.
Regarding the weak class of slaves, he said:
Feed them with what you eat and clothe them with what you wear.
He also paid full attention to their self-respect, and said:
Do not call them “slaves” or “slaves” but call them “my sons” and “my daughters”.
These teachings had the effect that in the early era, Muslims who had prisoners would first feed the prisoners and then eat themselves, and if there was no food left, they would content themselves with dates.
Hazrat Mus’ab bin Umair’s real brother Abu Aziz bin Umar also came back from captivity once. He states that the situation in the house where I was staying with the Ansar was such that they would feed me the little bread that was made in the morning and evening and they would eat dates themselves. I would feel ashamed and even though I insisted that you eat the bread, they would not agree and would say that the Messenger of Allah (peace and blessings of Allah be upon him) had ordered us to treat the prisoners well. (Majma’ al-Zawa’id 6/86).
The rule of making an accusation
Indeed, Islam attaches great importance to the personal freedom and respect of every human being, and does not allow anyone to harm anyone’s freedom and self-respect, therefore, Islamic law does not allow anyone to be accused and undermine his status, nor is it permissible for an Islamic court to declare someone guilty based on mere accusation. The rule of making an accusation is that
Al-Baynah ‘Ali Al-Madd’i Wa’lim ‘Ali Min Ankar (Mutafaq ‘Alayhi: Naasb Al-Raya 4/95)
Translation: “It is the responsibility of the one making the claim to provide evidence, otherwise he will be declared acquitted by taking an oath by denying.”
In some cases, in case of not providing evidence, the plaintiff himself is declared guilty, and he is punished for the crime of making baseless accusations. For example, if a person accuses someone of “adultery” and cannot prove it according to the principle, then the hadd qazf is imposed on the accuser himself. This shows the concept of crime in Islam in the chapter of punishments that a “crime” is only that which can be proven. And what cannot be proven is only an “accusation”.
The problem of imprisoning the accused
No one can be punished based on a mere accusation, however, sometimes a situation may arise in which it may take some time to verify the accusation and provide evidence. What should be done with the accused during this interim period? While he is not yet guilty, can he be kept in “imprisonment” until the claim is verified? The opinions of the jurists differ on this subject.
(1) According to Qadi Shurayh, Imam Abu Yusuf, and Imam Al-Haramain, no one can be imprisoned on the basis of mere accusation without complete evidence. Qadi Shurayh acquitted the accused in a financial case by simply taking an oath in the absence of evidence. (Tabsarat Al-Hakam 1/407)
Imam Abu Yusuf demands a reliable guarantor in such a case, and if the guarantor is found, the accused is allowed to go home. (Kitab Al-Kharaj 190,191)
In this regard, an incident is narrated from Hazrat Umar ibn Al-Khattab that an accused was arrested and brought to him, and when evidence could not be provided, he released him. (Al-Muhahali, Ibn Hazm 11/131, authored by Abdul Razzaq 10/217)
(2) Some Hanafi, Shafi’i and Hanbali jurists are of the opinion that in cases where the punishment is imprisonment after proof of the crime, such as financial matters, it is not correct to keep the accused in prison without providing complete evidence.
Sahnoun and others are of the opinion that in cases where the punishment is not imprisonment, such as cases of hudud and qisas, the accused can be kept in prison until the completion of the judicial proceedings. (Hashiya al-Qalyuby 4/306, Darmukhtar ma’r-rad al-Muhtar 4/40, 5/299, al-Ana’iyah al-Bahirti 5/401, al-Mughni by Ibn Qudamah 9/328)
(3) The opinion of the majority of jurists is that if the accused is a well-known and virtuous person, and his personal life is considered to be above suspicion and clean, then it is not correct to imprison or punish such a person without proof. However, it is correct to imprison a person who is under investigation until further investigation. Or if the accused is a suspect and such accusations have been made against him, then it is correct and relatively better to imprison him. (Hashiya Ibn ‘Abidin 4/88, Hashiya al-Dus’uqi 3/279, al-Ahkam al-Sultaniyyah by al-Mawardi 219, al-Mughni by Ibn Qudamah 9/328 with reference to al-Musoo’ah 16/292).
Proof of imprisonment
The basis of the Jamahur is the following verses and hadiths:
The Holy Quran states:
And imprison them after the prayer, so that they swear by Allah (Al-Ma’idah: 106)
Translation: Imprison them after the prayer, so that they swear by Allah.
This justifies imprisonment until the payment of the debt.
Similarly, a hadith that has been mentioned before that “Two men from the tribe of Banu Ghaffar were brought to the court of the Prophet on the charge of stealing two camels. He detained one of them and ordered the other to bring the camel. Finally, the man went and brought both camels. (Musannaf Abdul Razzaq 10/216, 217, published by Majlis-e-Ilmiya Dabhil)
It is also narrated that after the incident of Khaibar, Ibn Abi al-Haqqiq was brought to the court of the Prophet. He was accused of hiding a treasure, while he claimed that the treasure had been spent, but the Prophet (peace and blessings of Allaah be upon him) rejected his claim due to his suspicion that the war had not been for many days and the wealth was very much. (Al-Ahd qarib wa’l-mal a’taar) and he ordered him to be kept in prison until further notice, and Hazrat Zubair bin Awwam (may Allaah be pleased with him) was assigned to hold the accused accountable and interrogate him.
A little discipline of Hazrat Zubair (may Allaah be pleased with him) Only after the action did he point out the treasure. (Then ordered Al-Zubayr to touch him with the punishment until the treasure was revealed) (Abu Dawood 3/408, Tahqiqah Izzat Ubaid Daas, Fath Al-Bari 5/328, published by Al-Salafiya, Tabsarat Al-Hikam 2/114)
It is narrated about Hazrat Ali (may Allah be pleased with him) that he ordered the two accused to be detained until they confessed. (Tasrat Al-Hikam 2/140)
These hadiths and sources show that the position of the majority of jurists is stronger in this regard. This is also a matter of conjecture, because in some situations the accused may flee to avoid his bad fate, and thus the judicial proceedings may be delayed, and it is also possible that if the accused remains outside, he may face some abuse from the plaintiff.
Therefore, the safest option for both the accused and the plaintiff is to keep the accused in custody, and arrangements for his protection until the judicial proceedings are completed. However, if the accused is a well-known and unsuspected person, there is no fear of his escape and there is no threat to his personal safety, then the court can trust him. Similarly, it is important to consider that the suspected accused, whom the court orders to be imprisoned until the completion of the proceedings, will live in prison like an ordinary citizen and will not be subjected to any kind of mental or physical torture.
Duration of imprisonment
Most jurists are of the opinion that there is no fixed period of imprisonment for the suspected accused, it is dependent on the discretion of the judge and the relevant circumstances, there is scope for keeping him in prison for as many days as the situation improves. Allama Ibn Taymiyyah has attributed this opinion to Imam Malik, Imam Ahmad and the Hanafi scholars. (Fatawa Ibn Taymiyyah 35/397, footnote Ibn Abidin 4/88)
While the Maliki school of thought also states that a person who is under arrest cannot be detained for a long period, according to them, a long period is defined as more than one year. (Tabsarat Al-Hikam 1/266, with reference to Al-Musawaa 16/294)
Some jurists believe that a person who is under arrest cannot be detained for more than one day, some have set two or three days, and some have extended this to allow up to one month. (Hashia Ibn Abidin 4/88, Tabsarat Al-Hikam 2/148, Al-Mughni to Ibn Qudamah 9/328)
However, the apparent view of the Hanafi, Maliki, Shafi’i and Hanbali schools is the same as mentioned above, that there is no limit to the period, it depends on the relevant circumstances and the opinion of the judge. The same opinion is also quoted from Hazrat Umar bin Abdul Aziz. (Al-Ahkam al-Sultaniyyah al-Mawardi 220)
The jurists have permitted the detention or imprisonment of people who are not accused of any crime, but who are likely to harm the public interest. The jurists have mentioned as an example those who are seen. (Hashiya Ibn Abidin 6/364, Hashiya al-Qalyuby 4/162, Fath al-Bari 10/205)
Similarly, it is permissible to detain criminals whose guilt has been proven and the court has declared them punishable, but the punishment cannot be imposed on them due to illness or any other reason, until the cause is eliminated, provided that the criminal is one who is likely to escape, otherwise he should be kept free and await the elimination of the cause. (Darmukhtar Ma’r-Rid al-Muhtar 4/16, al-Maduna 5/206).
Rights of Prisoners
Those who are found guilty and sentenced to imprisonment by the court will be kept in prison as a punishment, but under normal circumstances they will not be deprived of their basic human rights, and their basic needs will be fully taken into account. Islamic jurists have shed light on these issues in detail, for example:
“Religious matters”
Prisoners will have complete freedom in their religious affairs, they will be able to perform worship etc. according to their religion, they will be provided with food according to their religion, jurists have made it clear that it is not right to prevent Muslim prisoners from performing ablution and prayer etc. (Darmukhtar with Radd al-Muhtar 5/378, 379, Al-Qalyubi’s note 4/205)
If Friday and Eid prayers are arranged in a prison, and the conditions for Friday prayers are also present, then prisoners will be allowed to pray Friday and Eid prayers in prison. The Hanafi view indicates that Friday prayers are permitted for prisoners, and if Friday prayers are not arranged, then prisoners will pray Zuhr alone. (Hidayah 1/63, Al-Mabsut 2/36)
Some Hanbalis are of the opinion that if Friday and Eid prayers are not arranged in a prison, prisoners will be allowed to go out. This is the opinion of Baghwi (may Allah have mercy on him) and Bubati among the Shafi’is, and of Saraksi among the Hanafiis. (Al-Masoo’ah al-Fiqhiya 16/321, with reference to Ghaayat al-Muntahi al-Karkhi 1/206, Rawda al-Talibeen 4/140)
However, the majority of jurists of the four schools of thought are of the opinion that prisoners are not allowed to go out for Friday and Eid prayers, however, if the judge does not consider it a hardship for some prisoners, then there is no problem. (Al-Masoo’ah al-Fiqhiya 16/321, with reference to Hashiya Ibn ‘Abidin 5/377, Al-Mabsut 20/90, Al-Mughni 2/339, etc.)
It is obvious that this generally includes respect for their religious books, because the purpose of imprisonment is discipline and reformation, insulting or provocative behavior is never permitted, because this creates a reactionary mentality, and the purpose of reformation is not achieved.
As for the work of calling to religion among other prisoners; So it should be left to the discretion of the ruler because da’wah is not included in his basic or religious needs, and da’wah work can sometimes create groupings among prisoners, and the da’i prisoner can also gain power in this way, so his permission will depend on the opinion of the ruler. If the personal circumstances of the da’i prisoner are felt to be positive, the ruler can allow him to do da’wah work, otherwise not.
“Physical Needs”
It is also necessary to take into account the physical needs and basic comfort of prisoners, for example: adequate food and clean drinking water will be provided. If exercise and recreation are needed for health reasons, it will be permitted. It is not right to keep prisoners in such cramped places, where there is no air and light, or where it is not possible to stand or lie down with your legs spread out, where there is a feeling of suffocation, or in a place where there is smoke, or in a very hot or very cold place where life is difficult, or under the open sky where the body becomes ill due to heat or cold.
It is not permissible to keep prisoners in such places. The jurists have made it clear that if a prisoner is kept in such cramped places, or if proper food and water are not provided, and he dies, then his blood money is obligatory on the person whose negligence caused the prisoner to die. In fact, some jurists have made qisas obligatory. (Al-Ahkam al-Sultaniyyah al-Mawardi 239, Hashiyyah Ibn Abidin 2/421, Fatawa al-Hindiyyah 3/414, Al-Musawaa’ 16/327).
“Medical facilities”
Medical facilities will also be provided to prisoners, and if these facilities are not available in the prison, the Shafi’is and Malikis allow them to be taken out of the prison, however, according to the Mufti, the Hanafis impose the restriction that a reliable guarantee is a condition for taking sick prisoners out. The interaction of the Muslim caliphs and rulers in this regard has been from the beginning that full attention was paid to the physical health and medical facilities of the prisoners. Hazrat Umar bin Abdul Aziz had directed all the officers of the state to pay special attention to this through a regular decree. During the time of the Caliph Muqtadir, special services of doctors were obtained for sick prisoners and a complete system of medical treatment was established. These doctors would visit the prison every day, examine the prisoners and prescribe treatment. (Hashiya Ibn Abidin 5/378, Fatawa Hindiya 4/418, Sharh Adab Al-Qadi Lal-Khasaf 2/375, Hashiya Al-Qaliubi 2/292, Tabaqat Ibn Saad 5/356, Al-Musawaa 16/321).
The opinions of the jurists regarding the relationship with the wife differ
(1) An opinion that has been adopted by most Hanafis, and the Hanbali school of thought is also that a prisoner will be allowed to see his wife provided that such a place of solitude is available there, because the hunger of the private parts is a necessity like the stomach, so he will not be prevented by this necessity. (Al-Mughni 7/34,35, Hidayah 3/231, Fath al-Qadir 5/471, Fatawa al-Hindiyyah 3/218)
(2) The second opinion, which is called the Maliki school of thought, is that it is not permissible to meet the wife alone because sexual intercourse is not included in the basic needs like eating, and preventing the prisoner from such pleasures will discourage the prisoner, and he will pay more attention to improving his condition. (Al-Sharh al-Kabeer….. 3/281, Tabsarat al-Hikam 2/205, Al-Musawaa’ al-Fiqhiya 16/324)
(3) And some of the Shafi’is are of the opinion that this too is subject to the discretion of the ruler, if he considers it expedient, he should allow it, otherwise not. (Hashiya al-Qalyubi 2/392, Al-Musawaa’ al-Fiqhiya 16/324).
“Social Rights”
Prisoners will be allowed to read newspapers, listen to the radio, learn education and skills, keep in touch with friends and relatives, and meet other prisoners under normal circumstances. However, if for some reason the judge considers it against the interests of some prisoners, he can impose a ban on this, as some Shafi’i have explicitly quoted. (See Hashiya al-Qalyubi 2/392, Rasni al-Mutalib with Hashiya al-Ramli 2/188, al-Musawaa’ al-Fiqhiya 16/324)
Just as the judge is allowed to sentence a particular criminal to solitary confinement in the context of his crime, where he is not allowed to meet anyone, the jurists have also explicitly stated this. (Al-Mabsut 20/90, Fatawa Ibn Taymiyyah 15/310, Al-Mughni 8/124, Al-Musawa’ 16/319).
“Moral matters”
The jurists have suggested creating separate prisons or separate sections in prisons according to crimes. Imam Abu Yusuf (may Allah have mercy on him) has established a chapter on this topic in his book “Al-Kharaj”, and has divided the criminals into three main categories:
1- Those who commit immorality: i.e. sins that are related to moral corruption.
2- Those who commit theft: i.e. things like theft, etc.
3- Those who commit crimes: i.e. things that are related to oppression and excess.
Some other divisions of this kind are also found in the works of some other jurists. The purpose of these divisions is to prevent the spread of crime among prisoners, because the tendency of crime spreads very quickly, and one type of criminal is very quickly affected by another type of criminal, but if all types of criminals are separate, then there is a greater chance of their being protected from other crimes. (Kitab al-Kharaj 161, Ibn ‘Abidin 5/370, al-Musaw’ah 16/319)
Similarly, in order to avoid moral corruption, it is also necessary that men and women be kept separate, all jurists agree on this, and even the officer in charge of the women’s section should be a woman. If such a woman is not available, then a person renowned in wisdom and piety should be chosen. (Mabsut 20/90, Fatawa Hindiya 3/414, Jawahir al-Aklil lillaabi 2/93, al-Musawaa 16/317)
Sometimes minor boys also participate in some crimes along with adults. Can such minor boys be imprisoned or not?
The Maliki and Shafi’i schools of thought are that only disciplinary action will be taken, not imprisonment, whether it is a financial matter or not. However, the Hanafi jurists are of the opinion that it is permissible to imprison minor boys for both financial and non-financial crimes only for the purpose of discipline and warning (not as punishment), so that the general public is protected from their harm, and these children are also warned. However, in such a case, the jurists have made it obligatory that they be kept in a place separate from adults, where they have a suitable guide and educator, so that they can be protected as much as possible from the evil of adults. (Darmukhtar 4/253, Fatawa Ibn Taymiyyah 34/179, Hashiya al-Dusooqi 3/280, Mu’een al-Hikam 187, al-Musawaa 16/317,318).
The method of accountability
It is a fact that if there is no evidence to prove the crime, the criminal does not easily confess his crime, for this a little harshness is needed, an example of this is the incident of Ibn Abi al-Haqiq during the Prophetic era, who had hidden a treasure, and was not confessing it. When Hazrat Zubair ibn al-Awwam was harsh with him on the orders of the Holy Prophet (peace and blessings of Allaah be upon him), he confessed it. (Narrated by al-Bukhari, Fath al-Bari 5/328)
Based on this tradition, the jurists have generally permitted harshness with criminals, and although confession in a state of coercion and compulsion is not valid, the later Hanafi jurists have recognized its usefulness in view of changing circumstances, and have considered confession in this state to be valid to some extent. Under the discussion of theft, al-Haskafi writes:
So cut off if he approaches it once obediently and confesses it as something he dislikes, which is invalid. And among the later ones who issue an fatwa It is healthy and it is dissolved by the multiplication of the word. (Darmukhtar 6/106).
For the criminal, there is no other option than whipping or imprisonment.
Therefore, no action that goes beyond human limits and causes serious physical harm to the criminal can be permitted. The jurists have even forbidden brutal acts in prison as punishment, even during the accountability stage. While the sentence is yet to be decided.
Therefore, the following actions are not permitted as punishment or for confession:
Making prisoners stand in the sun Pouring oil on their heads Shaving their beards Letting dogs, scorpions or any other wild animal loose (Kitab al-Kharaj 135, al-Mughni 7/641, Tasbirat al-Hikam 2/147, al-Musawaa 16/328) because it is both against the Sharia and causes physical harm.
Stripping prisoners, because the veil is necessary. (Hashiya Ibn Abidin 4/13, Al-Ahkam Al-Sultaniyyah by Al-Mawardi 239)
Starving and thirsty * Burning a part of the body with fire or giving an electric shock * Immersing in water. (Al-Siyasah Al-Shari’ah by Ibn Taymiyyah 152, Fath Al-Bari 6/150)
Putting ice cubes in extreme cold.
Forcing him to stay awake continuously and arranging for bright light or loud noise in his place of residence for this, Hitting him on the face Putting an unbearable burden on his neck Beating him by lying him on the ground, etc. (Fatawa al-Hindiyah 3/414, Ahkam al-Sultaniyyah for al-Mawardi 239)
Abusing or cursing the family of a prisoner (Bada’i al-Sana’i 7/64)
Cutting or breaking the nose, ear or any part of the body is a sin and is strictly prohibited, etc. (Bada’i al-Sana’i 7/20) and any act that is against the Sharia or that causes total or partial damage to the body.
“Chasing a prisoner”
Prisoners can be chained to prevent them from escaping, they can also be handcuffed. They can also be shackled, as when a suspect was brought before Hazrat Umar (may Allah be pleased with him) handcuffed. (Musannaf Abdul Razzaq 10/217) Also, Hazrat Umar bin Abdul Aziz said about a suspect (who was accused of theft and he used to say that he bought it) فاشدده في السجن وساقا ولا تحله هتي ياتية امر الله, tie him up tightly in prison and do not open him until the matter is investigated. (Al-Muhaali by Ibn Hazm 11/131)
However, it is permissible to do this temporarily, it is not correct to keep these things continuously, because in these situations it becomes difficult to meet even basic needs. The jurists have not permitted preventing prisoners from relieving themselves, nor have they allowed them to be kept in such a narrow place where there is no privacy from each other, or Requirements such as ablution and prayer cannot be fulfilled. (Al-Sharh Al-Kabeer…… 3/282, Darmukhtar with footnotes 5/378,379).
Solitary confinement
If the judge has the opinion, a criminal can be given solitary confinement in the context of his specific crime. Al-Mousu’ah, citing Mabsut Saraksi, Ibn Abidin, Fatawa Hindiya Hashiya Dasooqi, Hashiya Qalyubi and many other books, states:
It is permissible for the judge to remove the prisoner and confine him alone in a room with its door closed, if it is in your interest. (Al-Mousu’ah Al-Fiqhiya 16/319).
“Forcing prisoners to work”
(a): The Shafi’i and Hanbali jurists have permitted prisoners to work for wages, so that they can manage their household expenses or pay off debts, etc. (Al-Masoo’ al-Faqih 16/321, with reference to Rasi al-Matalib with footnote al-Ramli 2/188, al-Mughni 4/495, al-Hindiyyah 3/418)
(b): But the Hanafi school of thought, the authoritative one and other jurists, is that prisoners should not be allowed to work for pay, otherwise the whole meaning of the prison will be lost, the prison will become like a shop or a factory for them, and the purpose of imprisonment will be lost. (Ibn Abidin 5/278, Fatawa al-Hindiyyah 3/418)
(c) The third opinion, which has been adopted by the Kuwaiti Committee of Jurists, is that it is left to the discretion of the ruler. (Al-Mawsoo’ah al-Fiqhiya 16/322)
The second and third opinions seem to imply that if the ruler so wishes, forced labor without pay may be required of convicted prisoners, provided that the work is not beyond their capacity and is in accordance with their abilities and tastes. However, the case of prisoners whose cases are still under trial should be exempted from this.
The period of imprisonment of the accused”
Keeping the prisoners under trial for so many days before the verdict is the actual punishment for the crime charged against the young man, is not correct, some Hanafi, Shafi’i and Hanbali jurists do not allow the accused to be imprisoned in cases where the final punishment can be imprisonment, because there is no justification for punishment before the verdict and sentence, but those jurists (and this is the opinion of most jurists) who allow imprisonment, provided that the accused is unknown and not known for his righteousness and piety, most of them have left the period of imprisonment before the verdict to the opinion of the judge, but some have fixed its period at one month (Rad al-Muhtar 6/108), some have fixed it at one day, some have fixed it at two or three days, and the Malikis have fixed it at less than one year. (Al-Mawsoo’ah al-Fiqhiya 16/294, 295)
In fact, this period is to facilitate the judicial proceedings, no court has this right at all It is to take revenge for its negligence and failure from the innocent accused, and to leave the accused helpless and helpless in prison for years due to its slow action, while there is also a possibility that the accused will be proven innocent as a result.
“The accused if proven innocent”
If the accused under trial was kept in prison, and later the court declared him acquitted, then he is not entitled to claim compensation for mental anguish and financial loss suffered during the period of imprisonment, provided that the period of imprisonment is in accordance with well-known principles, and no ill-treatment was done to him during this time, because the extent of imprisonment that the jurists have allowed has been given keeping these losses in mind, and therefore the period of imprisonment has been reduced or increased depending on the circumstances of the accused.
“Prisoner allowed to communicate”
The prisoner has the full right to communicate with the lawyer and present his defense in relation to his cases, because the purpose of detention is investigation. If the prisoner is not given the right to communicate and present his defense in his case, how can the truth be clear? Rather, if the prisoner has some other cases, he will be allowed to leave for court proceedings either in person or through a lawyer, only until the relevant proceedings of the case in question are completed. (Darmukhtar with the rejection of Al-Muhtar 5/378, 499, Lisan Al-Hikam by Ibn Al-Shannah 251, Tabbarat Al-Hikam 1/304, Al-Mughni 9/207, Al-Musawaa’ Al-Fiqhiya 16/326).
Infants of female prisoners
Female prisoners are allowed to keep infants with them in prison who cannot live without their mothers. This is the requirement of the Sharia principles, because there is no justification for depriving children of their mother’s affection due to the mother’s crime. In addition, the separation of children will also cause continuous mental anguish for the female prisoners themselves. Some hadiths and sources provide sufficient light in this regard.
The Prophet (peace and blessings of Allah be upon him) said (about women who were captured in war and had small children with them):
Let not a mother be separated from her child (Narrated by Al-Bayhaqi, Nasab Al-Ra’iyah 3/266)
Translation: A mother should not be separated from her child.
In a narration, the noble saying is narrated as follows:
Whoever separates a mother from her child, Allah will separate him from his friends on the Day of Resurrection (Bayhaqi 9/126, Daraqutni 3/67)
Translation: Whoever separates a mother from her child, Allah will separate him from his friends on the Day of Resurrection.
Hazrat Ubadah Ibn Al-Samit narrated that:
The Messenger of Allah (peace and blessings of Allah be upon him) forbade separating a mother from her child. He said: Until the boy reaches puberty and the girl menstruates. (Sunan Darqutni 3/67)
Translation: The Messenger of Allah (peace and blessings of Allah be upon him) forbade separating a mother from her child. It was asked, “O Messenger of Allah, how long?” He said, “Until the boy reaches puberty and the girl menstruates.”
It was narrated from Imran bin Hussain (may Allah be pleased with him) that the Messenger of Allah (peace and blessings of Allah be upon him) said:
Cursed is the one who separates a mother from her child. (Hakim 2/55, Darqutni 3/67)
Translation: Cursed is the one who separates a mother from her child.
It was narrated from Ali (may Allah be pleased with him):
The Messenger of Allah (peace and blessings of Allah be upon him) gave the two slaves of brothers, so he sent one of them. The Messenger of Allah (peace and blessings of Allah be upon him) said, “O Ali, what did your slave do?” He told him and said, “Reject him.” (Abu Dawud Hadith No. 2696, Tirmidhi Hadith No. 1284, Hakim 2/55, Darqutni 3/66)
Translation: The Messenger of Allah (peace and blessings of Allah be upon him) gave me two slaves who were brothers, and I sold one of them. The Messenger of Allah (peace and blessings of Allah be upon him) asked me about slaves one day, so I told him about selling them, and he said, “Return them.”
A famous hadith also sheds light on this. The Messenger of Allah (peace and blessings of Allah be upon him) said:
Whoever does not show mercy to our young ones and does not respect our elders is not one of us (Musnad Ahmad 1/257, Tirmidhi Hadith 1921)
Translation: Whoever does not show mercy to our young ones and does not respect our elders is not one of us.
The implication of these hadiths is that captive women should not be separated from their infants.
2 thoughts on “Prisoner issues from an Islamic perspective”