Preventive Detention in Islamic and Pakistani Legal Frameworks: Principles, Challenges, and Reforms

Abstract

This study explores the legal and ethical dimensions of preventive detention in light of Islamic jurisprudence and Pakistani law, with a particular focus on imprisonment based on allegations. The research offers a comparative and applied analysis, highlighting the theoretical underpinnings, practical applications, and areas of convergence and divergence between the two legal systems. In legal terms, imprisonment (Arabic: qaid) signifies the deprivation of personal liberty through detention, confinement, or restriction of movement. Depending on its purpose, imprisonment may take various forms—such as punitive detention, remand (pre-trial) custody, enforcement detention for the recovery of dues, or incarceration following judicial conviction. This paper specifically addresses remand or pretrial detention, which refers to the custody of an accused person before conviction when a legal claim or allegation is made against them. In Islamic law, the foundation for such detention can be found in the Prophetic Sunnah, where the Prophet Muhammad is reported to have temporarily detained individuals based on accusations pending verification. One such narration from Abu Hurairah notes that the Prophet detained a man due to an allegation and released him once the matter was resolved. These precedents indicate that Islamic jurisprudence permits preventive detention under certain conditions, primarily as a precautionary and justice-preserving measure. By examining these principles in both Islamic and Pakistani legal frameworks, this study aims to identify challenges and propose reforms for ensuring that pretrial detention remains a tool of justice, not oppression.