سزائے قید کی تعزیری حیثیت کے بارے میں فقہاء کے اختلافی مباحث کا تحقیقی جائزہ

Abstract

The cruelty in its various forms in implementation of imprisonment
in different parts of the world have raised a number of questions
about Islamic legal position of this very common t'azir punishment. The
Muslim jurists of past and present have expressed their serious
reservations on the ways in which imprisonment usually implemented
and declared it un-Islamic. This article clarifies Islamic legal position
of imprisonment by furnishing evidence from the Qur'?n, the Sunnah
of the Prophet Mu?ammad (peace be on him) and the practice of his
righteous companions as well as by analyzing arguments of the Muslim
commentators and jurists. The discourse among the Muslim jurists
emerged on the subject when Q??i Ab? Y?suf (113-182 H/731-798 A.D)
highlighted the cruel treatment of the prisoners and severe violation
of their human rights which were guaranteed by Islam. The article
shows that the Muslim jurists have duly focused on different issues
involving malpractice in imprisonment. Some jurists tried to limit this
punishment to only eight crimes and some emphasized on whipping
instead of imprisonment because it does not negate free movement of
someone who commits a minor crime, while some other argued that
even the construction of prisons is un-Islamic because there was no
prison in the period of the Prophet (peace be on him). The paper
analyses their critique along with their arguments and reaches at the
conclusion that the Muslim jurists, in fact, have considered
imprisonment and prisons to be legal but they condemned all forms of
malpractice in imprisonment, ranging from depriving prisoners the basic
human rights to excessive powers of rulers to imprison the alleged
people without fair trial and the due legal process.