The Jail Punishment
 Javed Ahmad Ghamidi

    The jail punishment must rank high among the barbarities that man has been able to invent for himself. No doubt, dark cells, underground dungeons and castle turrets have always existed in the known history of mankind. The Prophet Yousaf’s tale of imprisonment has been narrated both in the Qur’an and the Bible. The historian’s pen also bears witness to the tragic deaths of two great scholars of Islam, Imam Abu Hanifa (d: 767 AD) and Imam Ibni Taimyiah (d: 1327 AD), both of whom died in captivity. But it must be borne in mind, that before the eighteenth century jails were only used as temporary lock ups. Criminals were usually detained in them during the course of their inquiry and investigations, or when they awaited the infliction of punishment like whipping, execution and other similar sentences. The concept of confining an offender behind bars for two, four or ten years as a penalty for a crime, has originated and gained acceptance only in the past three centuries.  It is now a fairly common practice to punish most criminals in this manner.  
        Although various institutions akin to the prison existed in Europe in the fourteenth century like the Delle Stinche in Florence, it is generally believed that ‘The Walnut Street Jail’ set up in Philadelphia in 1790 was the first modern prison. Its antecedents are to be found in the reformatories and houses of correction established in London (1557), Amsterdam (1596), Rome (1704) and in Ghent (1773), an old city of Belgium. Subsequently, as the Western civilisation acquired ascendancy, prisons were established all over the world. Within the precincts of these inhuman institutions man is made to starve the personality within him for months and years; while his offsprings, unaware about the concepts of crime and punishment, spend their childhood helplessly watching him bear the agony of life.  
    The jail punishment is an atrocious crime that man has committed against himself. The whipping sentence is over in a while, hands are cut once and for all, crucifixion ends a criminals life after an extreme physical torture, and execution terminates irrevocably every string of his relation with this world; but it is this punishment in which the internal personality of a person is continually tormented. Some of his daily routines in which everyone has an unconditional freedom, become totally dependent on others. He sleeps and awakes upon the will of others. He sits and stands at the direction of others. His eating and drinking habits are governed by others, and even in a matter as personal as relieving one’s self, he has to seek permission from others. He is made to beg for a glass of water, a loaf of bread and even a puff at cigarette, and on many occasions must loose his self-respect to obtain them. He is deprived from the love and affection of his parents, wife and children, and is made to suppress some of his desires upon which the Almighty has posed no restriction even in the holy month of Ramadhaan, during which restraint and control are the keywords. In short, he faces a hell on earth, in which he neither lives nor perishes.  
     Also, it is not the criminal alone who has to endure this punishment. His family is made to suffer with him as well. The most affected among them is his wife. The extent of moral, psychological, social and economical problems she has to bear can only be estimated by the faithful wives who themselves have undergone this traumatic experience. The children also suffer an ordeal no less.  Everyone knows how adversely they are affected psychologically, when they observe their father being tortured and tormented for years and years. Whipping, cutting off hands, crucifixion and execution all are punishments which either mete out extreme physical suffering for a while or decide the fate of a criminal once and for all. But in case of imprisonment every time the children visit their father confined in the clutches of a murky cell, intense sentiments build up and strengthen in their minds, after which how can they be expected to have poised and balanced personalities. They can rightly question the society that upon what ethical grounds were they deprived from paternal care and affection, when the Almighty had blessed them with the means.  
     Consider also, that every society wishes that after being punished and chastised, a criminal should mend his ways and correct himself. It is quite evident that the most effective way to achieve this purpose is to keep him in a healthy company and a conducive environment. But oddly enough he is kept isolated from people who might have a good influence upon him. His family, clan and even the society are is no way given and opportunity to reform and rehabilitate him. He is put away for years in the company of criminals in such a manner that even I f he desires to reform himself, he is not given any chance to do so. Quite expectedly, during the period of confinement his association with other criminals becomes a perfect source for stimulating his evil instincts. His criminal tendencies develop further, as he begins to view everything on their basis. This companionship also provides him with an almost unlimited opportunity of discussing, planning and perfecting the art of breaching the law. He gets to know rare techniques and unique methods to hoodwink the law through the courtesy of an underworld specially provided to bestow him with these delicate skills. An omnipresent mafia is a source of perpetual inspiration for him to emulate the records set by the masterminds of the trade. With such a set up what good a society expects from such a highly qualified law breaker once he is injected back in the society is something beyond us.  
    It should also be kept mind that after flogging a criminal, amputating his hands and inflicting other similar punishments upon him, we have no means to know when he decides to change his ill-ways, an event that might occur anything during his life. Common sense demands that if a criminal intends to correct himself he should be readily provided with the opportunities to change himself and to lead a life of a responsible citizen. But of all the punishments it is this punishment in which the law fixes for him the time when he should actually change, even though it has to mans to ascertaining it.  
Due to all these evils and ill-effects, the Islamic Penal Code though understandably contains a provision for house arresting a criminal, it does not sanction in any way the incarceration of a criminal in a prison.  
    Consequently, Islam has prescribed the punishments of whipping, qisaas and diyat, and amputation of hands in case of the four big crimes: fornication, qazf, killing or wounding someone, and theft. We quote from the Qur’an:  

The man and the women for guilty of fornication, flog each of them with a hundred stripes and let not compassion move you in their case in the enforcement of the law of God, if you truly believe in God and the Last Day.’ [24:2]  

Those who accuse honourable women and bring not four witnesses as an evidence [for their accusation], inflict eighty stripes upon them, and never accept them testimony in future. They indeed are transgressors.’ [24:4]  

O ye who believe! you are decreed to take qisaas of the murdered, free for the free, slave for the slave, woman for the woman. But for whom there has been some remission from his brother he should follow [the remission] and pay Diyat according to the ma’ruf in a desirable manner.’ [2:178]  

As to the thief, male or female, cut off their hands as a reward of their own deeds, and as an exemplary punishment from God. For God is Mighty and Wise.’ [5:38]  

   The punishment prescribed for the criminals who create nuisance and disorder in the land are:  

The punishments of those who wage war against God and His Prophet and strive to spread disorder in the land are to execute them in an exemplary way, to crucify them, to cut off their hands and feet from alternate sides or to banish them from the land. [5:33]  

   A temporary commandment for habitual criminals of fornication is stated thus:  

And upon those of your women who habitually commit fornication, call in f our people among yourselves to testify over them; if they testify [to their guilt] confine them to their homes till death overtakes them or God finds another way for them. And the man and woman among you who commit fornication, punish them. IF they repent and mend their ways, then leave them alone. For God is Oft Forgiving and most Merciful.’ [4:15-16].  

    For all the remaining crimes, the Prophet (sws) had said:  

Except for the punishments ordained by God, if stripes are to be administered due to any other crime, then they should not exceed then. [Tirmizee, Kitab’ul Hadud, Chapter 30]  

  These are the punishments prescribed by the Islamic Panel Code, and quite evidently the jail punishment is no part of it. We call upon the people in authority to rid us from this savagery of the modern era.  


(Translated from Ghamidi's "Mizan" by Shehzad Saleem)