Bail in Had (Prescribed Punishment) and Ta zir (Discretionary Punishment)

The aim of bail in a civil action is to ensure the presence of the defendant at trial. In criminal cases, bail means to ask from the accused or the offender to designate someone who guarantees his appearance at trial or his presence for implementation of the punishment. Acording to some Islamic narrations (ahadith) it is prohibited to stand bail in criminal cases. These narrations have often been construed as referring to had in its idiomatic sense, i.e. prescribed punishment as opposed to discretionary punishment.
Through analyzing the jurisprudential evidences of the decree, the author concludes that first, due to ambiguity of the evidences it is hard to consider such a decree among the jurisprudential rules. Secondly, the prohibition of bail is not limited to had. Some kinds of bails like those that undermine the certainty of the punishment, or imply unjustified delay in the execution of the punishment, or require unnecessary obligations for the offenders or the accused are not allowed, be the punishment had or ta’zir. Thirdly, obtaining some expediency or avoiding an evil may make the bail acceptable or even necessary. Accordingly, the decrees of bail are not a cause for differentiation between had and ta’zir. This article also implicitly compares bail in civil and criminal cases.