أو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points.
Article 13: In essence, one is innocent. No one should be punished without a court ruling. It is absolutely forbidden to torture anyone and whoever does this will be punished.
Explanation and evidences:
This article covers three issues: The principle of innocence, the prohibition of imposing a penalty without a judge’s sentence and the prohibition of torture.
As for the first issue, its evidence is derived from what Abu Dawood reported on the authority of Simak on that of Alqama Ibnu Wa’il Ibnu Hajr Al-Hadhrami on that of his father who said: “A man from Hadhramout and a man from Kindah came to the Messenger of Allah (saw) and the Hadhrami said: “O Messenger of Allah, this man has taken from a land which belonged to my father.” The Kindi said: “It is my land, it is in my possession and I am farming it. He has no claim over it.” the Messenger of Allah (saw) said to the Hadhrami: “Do you have any proof?” He said: “No.” Upon this the Messenger of Allah (saw) said: “In this case you have his oath.” He said: “O Messenger of Allah! He is a rebel, he does not care what he swears and he does not fear of anything.” He (saw) said: “You have no other rights over him but this.” Al-Tirmithi also reported on the authority of Ibnu Abbas who said: “The Messenger of Allah (saw) has decreed that the onus of the oath lies with the defendant.” Abu Issa said that this Hadith is Hassan and Sahih; the learned scholars, from among the Sahaba of the Messenger of Allah (saw) and others, have been acting upon it; notably that tha onus of providing the proof lies with the plaintiff and that of the oath lies with the defendant.” In the first Hadith, the Messenger of Allah (saw) commissioned the plaintiff with the proof, and this means that the defendant is innocent until proven guilty; and in the second Hadith, the Messenger of Allah (saw) explained that in essence, the proof should be provided by the plaintiff. This serves as evidence that the defendant is innocent until proven guilty.
As for the second matter, its evidence is derived from the saying of the Messenger of Allah (saw): “He whose wealth I have taken, here is my wealth, let him take from it, and he whose back I have lashed, here is my back, let him lash it.” The Messenger of Allah (saw) said this in his quality as ruler; it means that he who has been wrongly punished, let him retaliate against me; this serves as evidence prohibiting the ruler from punishing any of the subjects without establishing the charge for which he deserves such punishment. Also, Ibnu Maja reported in his Sunan on the authority of Ibnu Abbas who said: “The Messenger of Allah (saw) said: “If I were to stone anyone without proof I would stone such and such woman. For doubts have been raised over the way she speaks, the way she dresses and over the people who go to her.” This means that the Messenger of Allah (saw) did not stone her because there was a lack of proof despite the doubts raised over her behaviour. This understanding is confirmed by what Imam Ahmed reported in his Masnad on the authority of Abu-z-Zinad on that of Al-Qassim Ibnu Mohammed who heard Ibnu Abbas say: “The Messenger of Allah (saw) ordered a “Mula’ana” i.e. a sworn allegation of adultery between Al-Ajlani and his wife. He said: “and she was pregnant. Al-Ajlani said: “By Allah I did not approach her since we made Afr (i.e.sprinkle the soil with dust), an Afr means that the palm trees are watered two months after pollination. He said that her husband had thin legs and arms and had red hair; the one she was accused to have committed adultery with was Ibnul Samha’. She gave birth to a black boy who had frizzy hair and chubby arms. So Ibnu Shaddad said to Ibnu Abbas: “Is she the woman about whom the Messenger of Allah (saw) said: “If I were to stone anyone without proof I would stone such and such woman?” He said: “No, that was a woman who used to display vice after Islam.” Meaning that she used to be indiscreet but it was not proven neither through evidence, nor through admission. This means that the suspicion of adultery was there, and despite this, the Messenger of Allah (saw) did not stone her, for this has not been confirmed. He (saw) said: “If I were to stone anyone, I would stone such and such woman.” The conjunction “if” in the Arabic language denotes abstention due to the absence of something; thus the stoning was not carried out due to the absence of evidence. This serves as evidence that the ruler is forbidden from imposing a penalty on anyone from among the subjects, unless he or she perpetrates a crime which Shari'ah deems it to be a crime, and once his or her perpetration of the crime has been proven before a competent judge and in a judiciary court; because the evidence could not admissible unless it is established before a competent judge and in a judiciary court.
However, the ruler reserves the right to take someone accused of a crime into custody before the charge is established, pending a court appearance to look into the charge brought against him. However, the detention should be for a limited period of time and it would be wrong to detained the accused for an indefinite period. This period must be short. Evidence about the permissibility of detaining the accused is derived from what Al-Tirmithi reported on the authority of Bahzi Ibnu Hakim on that of his father on that of his grandfather who said: “The Messenger of Allah (saw) did detain a person accused of a crime and then he released him.” It has also been reported on the authority of Bahzi Inbu Hakim that “The Messenger of Allah (saw) detained someone accused of a crime for a day and a night.” Evidence about the obligation of specifying the period of detention is that the Messenger of Allah (saw) detained him and then released him and that he detained him for a day and a night. Besides, this detention is not a penalty; it is rather a detention aimed at helping with the enquiries.
As for the third matter, it denotes the prohibition of imposing a penalty upon the accused before the charge against him has been established; it also denotes the prohibition of imposing a penalty which Allah (swt) had made a punishment in the hereafter, that is Hell fire; i.e. the prohibition of punishing by burning with fire. As for the prohibition of inflicting a punishment before establishing the charge, its evidence is derived from the Hadith of the Messenger of Allah (saw) in which he (saw) was reported to have said: “If I were to stone anyone, I would stone her..” Despite the fact that she was known to be an adulteress according to what Ibnu Abbas reported. If it were fitting to inflict punishment upon the accused in order to confess, the Messenger of Allah (saw) would have punished that woman to make her confess, knowing that she was indiscreet about her illicit behaviour. It is absolutely forbidden to punish the accused and it is absolutely forbidden to beat the accused before the charge has been established. It is also forbidden to insult him or to inflict upon him any punishment as long as his guilt has not been confirmed. This is backed by what Ahmed reported on the authority of Ibnu Abbas that the Messenger of Allah (saw) did not in one occasion impose a penalty for drunkenness. “Ibnu Abbas said that a man consumed alcohol and got intoxicated; he was spotted staggering in a mountain pass so he was taken to the Messenger of Allah (saw). As he neared the house of Abbas, he gave his escort the slip and entered Abbas’s house and hid behind him. They mentioned this to the Messenger of Allah (saw), so he laughed and said: “He did it.” Then he (saw) did not order them with anything regarding him.” The Messenger of Allah (saw) did not punish that man because he did not confess, nor were the charges against him established in his presence. This means that he was accused of drunkenness but this was not confirmed, thus he was not punished in order to make him confess, and no penalty was imposed upon him just for the mere accusation. Therefore, it would be wrong to inflict any punishment on the accused prior to the establishment of the charge before a competent judge and in a court of law. As for the reports of “Al-Ifk” (the lie) incident, stipulating that Ali ® did beat the slave-girl before the Messenger of Allah (saw), that slave-girl was not accused, thus it cannot be used as evidence denoting the permissibility of beating the accused. Besides the Hadith of Ali’s beating of Burayrah, the Messenger of Allah’s (saw) slave-girl, was reported by Bukhari and he said that Ali said the Messenger of Allah (saw): “Ask the slave-girl.” And it was the Messenger of Allah (saw) who did the asking. Bukhari did not mention that Ali had beaten the slave-girl. To quote from the Hadith: “O Messenger of Allah, Allah has not made it hard upon you and there are plenty of other women apart from her, and if you asked the slave-girl she would tell you the truth.” So the Messenger of Allah (saw) summoned the slave-girl and said: “O Burayrah!…” In another narration of Bukhari, it was reported: “The Messenger of Allah (saw) came to my house and asked about my slave-girl, so she said: “No by Allah, I do not know of any blemish, apart from the fact that she would sleep until the ewe would enter and eat her dough. One of his Sahaba did rebuke her and said: “Tell the truth to the Messenger of Allah…” Bukhari did not mention that Ali had beaten the slave-girl. However, in other reports, it was mentioned that Ali ® had beaten the slave-girl. Ibnu Hisham mentioned that he did beat her. In the Sirah of Ibnu Hisham it was reported: “As for Ali, he said: “O Messenger of Allah (saw) Women are plentiful and you can easily change one for another. Ask the slave-girl, for she will tell you the truth.” So the Messenger of Allah (saw) called Burayrah to ask her, and Ali got up and gave her a violent beating, saying: “Tell the Messenger of Allah the truth.” To which She replied: “I know only good of her.” Assuming that this report is sound, it however does not stipulate the permissibility of beating the accused, because the slave-girl Burayrah, was not accused in this case and it cannot be said that she was a witness. She was not beaten for being a witness because the Messenger of Allah (saw) did ask other people but did not beat them. He (saw) asked Zaynab Bintu Jahsh nad he did not beat her, despite the fact that her sister Hamna Bintu Jahsh used to spread rumours about Aysha; Bukahri reported in the Hadith of Al-Ifk: “..And her sister Hamna set about fighting her battle, so she perished alongside those who perished.” Hence, Zaynab was suspected of knowing something and she was quizzed, but she was never beaten. Therefore, it would be wrong to say that Burayrah was beaten in her quality as a witness; she was rather beaten in her quality as the slave-girl of the Messenger of Allah (saw). The Messenger of Allah (saw) is entitled to beat his slave-girl and to order her beating. The Messenger of Allah (saw) did ask his slave-girl and he asked others as well, at the same time, he kept silent over Ali’s beating of the slave-girl and over the reprimand of the Sahaba; but he (saw) did not beat any other person, nor did he keep silent over the beating of any other person, which indicates that he (saw) permitted her beating because she was his slave-girl; and one is entitled to beat his slave-girl in order to discipline her or to investigate a matter. Therefore, this Hadith cannot be used as evidence about the permissibility of beating the accused and the evidence pertaining the prohibition of his beating stands; this is reflected in the saying of the Messenger of Allah (saw): “If I were to stone anyone I would stone so and so..” Therefore, it is absolutely forbidden to beat, insult, reprimand, or torture the accused. It is however permitted to detain him because there exits an evidence about this.
This is as far as the prohibition of inflicting a penalty upon the accused prior to establishing the charge is concerned. As for the prohibition of inflicting a punishment which Allah (swt) has made a punishment in the Hereafter, its evidence is reflected in what Bukhari reported on the authority of Ikrimah who said: “A group of apostates were brought to the Amir of the believers Ali ® so he burnt them; Ibnu Abbas heard of this and said: If I had been him, I would not have burnt them because the Messenger of Allah (saw) has prohibited this by saying: “Do not punish with the punishment of Allah.” I would have killed them because the Messenger of Allah (saw) said: “He who changes his Deen must be killed.” Bukhari also extracted on the authority of Abu Hurayrah ® who said: “the Messenger of Allah (saw) sent us in an expedition and said: “If you find so and so, burn them with fire.” As we were about to set off the Messenger of Allah (saw) said to us: “I had ordered you to burn so and so, and only Allah punishes with fire, so if you find them kill them.” Abu Dawood extracted from the Hadith of Abdul-Rahamn Ibnu Abdullah on that of his father who said: “We were with the Messenger of Allah (saw) on a journey, and while he (saw) went to the privy we came across a hen with two chicks; we its two chicks so it came and started spreading out its wing. Then the Messenger of Allah (saw) came and asked: “Who grieved this hen with its offspring? Give it back its offspring.” He (saw) also saw a colony of ants which we had burnt, so he asked: “Who burnt this?” We said: “Us.” He said: “No one should punish with fire except the Creator of fire.” Therefore, if the accused were proven to be guilty before a competent judge and before a court of law, he should not be punished by fire, nor by that which is similar, such as electricity, nor by anything which Allah (swt) punishes with. Furthermore, it is forbidden to inflict any punishment from among those not decreed by the Legislator. This is so because the Legislator has determined the penalties to be imposed upon the guilty parties. These are killing, lashing, stoning, banishment, cutting, imprisonment, destruction of property, imposing a fine, vilification and branding any part of the body. Apart from these, it is forbidden to inflict upon anyone any other type of punishment. Hence, no one should be punished by burning with fire, though it is permitted to burn his property, nor should anyone be punished by pulling his nails, nor by pulling his eyebrows, nor by electrocution, nor by drowning, nor by pouring cold water over him nor by starving him, nor by letting him go cold, nor by anything similar. Punishing the accused should be confined to the penalties decreed by Shari'ah and apart from these, the ruler is forbidden from applying any other form of punishment. Therefore, it is absolutely forbidden to torture anyone, and who does so will be violating Shari'ah. If it is established that someone has tortured anyone else, he will be punished. These are the evidences of this article.