who sold it.” There is agreement that he is not to be punished.

Mālik’s followers and others said: “The rightful owner swears that it is his property and has not passed out of his ownership, and then takes it back.” They hold that the defendant is not required to swear an oath. They then differed over whether the accuser should be punished.

Mālik and Ashhab said: “The claimant is not to be disciplined unless he intended to harm, discredit and insult the defendant, in which case he is to be disciplined.”

Asbagh said: “He is to be disciplined whether or not he intended to harm him.” Likewise, scholars generally hold that defendants are not required to swear oaths concerning the prescribed punishments that are Allah’s rights. Once the rightful owner has recovered his property, no claim remains against those possessing it except one concerning the prescribed punishment, and no oath is required.

The second category

The accused may be someone whose character is unknown, who is known neither for righteousness nor for wickedness. According to the generality of Muslim scholars, such a person is detained until his circumstances become clear. The explicit position of most leading scholars is that both the judge and the governor may detain him. This was expressly stated by Mālik and his followers; it is also the explicit position of Imam Ahmad and the most discerning scholars among his followers, and was mentioned by the followers of Abū Hanīfah.

Imam Ahmad said: “The Prophet, may Allah bless him and grant him peace, detained someone on suspicion.” Ahmad said: “That is until his circumstances become clear to the judge.” This is based on the report narrated by Abū Dāwūd in his Sunan, al-Khallāl and others, from Bahz ibn Hakīm, from his father, from his grandfather:

“The Prophet, may Allah bless him and grant him peace, detained someone on suspicion.”

Al-Khallāl also narrated from Abū Hurayrah:

“The Prophet, may Allah bless him and grant him peace, detained someone on suspicion for a day and a night.”

The principles agreed upon by the leading scholars support this. They agree that when a claimant requests the appearance of a defendant whose attendance must be compelled, the judge must bring him to the session of