hold on to other people’s money, willingly accept imprisonment and treat it lightly so that they can devour people’s wealth and swallow it up is obligatory and may not be opposed—Allah willing. Umar ibn Abd al-Azīz said: “New judicial rulings arise for people in proportion to the wickedness they introduce.”
What Ibn al-Hindī related of Sahnūn’s words concerning Ibn Abī al-Jawād, whom he beat until he died—if the report is authentic—does not indicate that he abandoned his position. Rather, it indicates his steadfast adherence to it and clear conviction in it, alongside his scrupulous piety and virtue. For he said: “I did not kill him; rather, justice killed him.” Nevertheless, he felt the apprehension of a cautious believer who fears his Lord, lest he had overstepped in exercising his judgment. In this he followed the example of Umar ibn al-Khattāb, may Allah be pleased with him, who said: “If a lamb were to die of neglect on the banks of the Euphrates, I would fear that Allah would question me about it.”
Section
If someone detained for observation and investigation asks to provide a surety rather than be imprisoned while his circumstances are ascertained and his situation investigated, it is stated in al-Mudawwana concerning this case: “He is imprisoned, or a surety is taken for him.” It does not specify whether the guarantee concerns his appearance or the debt. Abū Ishāq al-Tūnisī said that, according to Ibn al-Qāsim’s position, it concerns his appearance, not the debt. He means a surety who undertakes to produce him when the period for which he should be detained to investigate his circumstances has expired. If the surety produces him then, the surety is discharged from liability. If the debtor is found to possess wealth, he is imprisoned until he pays. If he has not been found to possess wealth, he is released after swearing an oath. If the surety fails to produce him, the surety must pay, even if the debtor is found to be penniless, because the debtor must still swear the required oath.
If someone imprisoned for obstinate refusal to pay and on suspicion asks to provide a surety for his appearance until he establishes that he is penniless, he is not permitted to do so. He must be subjected to the restrictions of imprisonment because of the suspicion attaching to him, in the hope that he will pay. If he wishes to avoid imprisonment, he must provide a surety liable for the debt; that surety is not relieved of liability by establishing that the debtor against whom payment is sought is penniless. The same applies if the debtor presents evidence that he is penniless but the witnesses have not yet been accredited. This was stated by Sahnūn.
If, however, he has established that he is penniless and the claimant asks to be given an opportunity to challenge the witnesses who testified to that effect, then, if the debtor can provide a surety for his appearance, he is not imprisoned. The surety must produce him so that he may be returned to prison if the claimant successfully challenges the evidence, or required to swear an oath if the claimant fails to do so. Ibn al-Qāsim’s statement does not contradict Sahnūn’s statement in this case, nor does Sahnūn’s statement contradict