The jail punishment is not merely a punishment; it is in fact a barbarity that man has invented for himself. It is therefore not expected from an Islamic government to include it in its penal code. No doubt, dark cells, underground dungeons and castle turrets have always existed in the known history of mankind. The Prophet Joseph’s tale of imprisonment has been narrated both in the Qur’an and in the Bible. The historian’s pen also bears witness to the tragic deaths of two great scholars of Islam, ImamAbu Hanifah (d. 767 AD) and ImamIbn Taymiyyah (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 investigation, or when they awaited the infliction of punishments 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 civilization 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 offspring, unaware about the concepts of crime and punishment, spend their childhood helplessly watching him bear the agony of life.

The whipping sentence is over in a while, hands are cut once and for all, crucifixion ends a criminal’s life after an extreme physical torture, and execution severs irrevocably every string of his relation with this world; but it is this punishment in which the inner 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 of a cigarette, and on many occasions he is made to lose 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 Ramadan, 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 entire family is made to suffer with him as well. The most affected among them is his wife. The extent of moral, psychological, social and economic problems she has to bear if her husband is jailed for nine or ten years 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 about the ethical grounds on which they were deprived of paternal care and affection when the Almighty had blessed them with it.

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 healthy company and in a conducive environment. Oddly enough, through this punishment he is kept isolated from people who might have a good influence upon him. His family, clan and even the society are in no way given the opportunity to reform and rehabilitate him. He is put away for years in the company of criminals in such a manner that even if 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. 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 quite beyond imagination.

It should also be kept in 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 anytime 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 no means of ascertaining it.

Owing to all these evils and ill-effects, the Islamic Penal Code though understandably contains a provision for house arresting a criminal or exiling him with his family if needed, it does not sanction in any way the confining of a criminal in a prison for years.

(Javed Ahmed Ghamidi)

(Translated by Dr Shehzad Saleem)