Imam ash-Shirāzi, may Allah have Mercy upon him said:

And it is not offensive to pray in these times in Makkah, due to what is narrated by Abū Źar, may Allah be pleased with with who said: I heard the Messenger of Allah, Allah’s Salutation and Peace upon him said: {There is no prayer after Śubh until the sun rises, and there is no prayer after ‘Ásr, except in Makkah}. This is because the Messenger of Allah, Allah’s Salutation and Peace said: { The tawāf in the House is prayer }. There is no khilāf that the tawāf is permissible, therefore similarly prayers.

Commentary

Imam an-Nawawi, may Allah have mercy upon him in the commentary of the above said:

The Hadith

The hadīth of Abū Źar is dhaīf (weak) narrated by ash-Shāfi’ī, Ahmad, ad-Daruqutni and al-Baihaqi who considered it to be weak. It is however supported by he hadīth of Jabīr Bin Mut’im may Allah be pleased with him that the Messenger, Allah’s Salutation and Peace upon him said {Oh the children of ‘Abdu Manāf! Do not prevent anyone from making tawāf in this House and pray at any time he wishes in the night or the day}. Narrated by Abū Daud and at-Tirmiźi in the Book of Haj, an-Nasāie, Ibnu Majah and others in the Book of Prayers. This is the phrasing of at-Tirmiźi in which he said this hadīth is hasan śahīh. Al-Baihaqi said: There is ihtimāl (an implying) here, that the intended prayer is the prayer of tawāf specifically and this is more similar to the athār (transmissions). There is also ihtimāl that it refers to all prayers. I say: the former is strengthen by the narration of Abū Daud: {Do not prevent anyone from making tawāf in this house, praying at any time he wants in the night or day}. As for the hadīth { the tawāf in the house is prayer }, it is narrated by Ibn Abbās from the Prophet, Allah’s Salutation and Peace upon him. It is also narrated as a mawqūf hadīth from Ibn Abbās, and this is aśah (relied upon). This is mentioned by al-Hāfiż and at-Tirmiźi mentioned this at the end of the Book of Haj from ‘Atha’ bin Sāib from Tāwus from Ibn ‘Abbās that the Messenger, Allah’s Salutation and Peace said : {The tawāf around the house is similar to the prayer, except that you may speak while performing it. Hence, whoever speaks, do not speak except goodness.} at-Tirmiźi said “It was narrated from Ibnu Tāwus and others, from Tāwus, from Ibnu Abbas as a hadīth mawqūf. He said: We do not know it to be marfū’ except for the narration of ‘Àtha’ bin Sāib. I say: ‘Àtha’ is dhaīf, hence, this narration is not a hujja. Allah knows best.

The Ruling

As for the ruling of the matter, our ashāb said prayer is not offensive in Makkah at these times, whether it is the prayer of tāwaf or not. This is śahīh, masyhūr in their opinion. With regard to this is a wajh (opinion of the ashāb) that only the prayer of tāwaf is permissible narrated by the Khurāsānis and a group of ‘Irāqis. Amongst them is ash-Sheikh Abū Hāmid, al-Bandaniji and al-Māwardi. The author of al-Hāwi narrated from Abū Bakr al-Qaffāl ash-Shāshi: The maźhab is the former. The author of al-Hāwi then said: ” This is the opinion of Abū Ishāq al-Marwazi and the jumhūr of our ashāb. The intended meaning of Mecca: the city and the entire Haram that surrounds it. In a wajh, it refers to the city, excluding the rest of the Haram. The third wajh as narrated by the author of al-Hawi from al-Qaffāl ash-Shāshi, that it is permissible only within the mosque that surrounds the Ka’ba, and it does not include anything else from the houses of Mecca or the rest of the Haram. The śahīh opinion is the first as considered by the aśhāb and narrated by the author of al-Hāwi from Abū Ishāq al-Marwazi. This is the detailed exposition of our maźhab.
Mālik, Abū Hanīfa and Ahmad said “It is not permissible to pray at these times in Mecca due to the generality of the hadīths. Our proof is the hadīth of Jabīr. Allah knows best.

Haram or Makruh?

Imam an-Nawawi, may Allah have mercy upon him, further said:
Our ashāb differed on whether or not, in these times the offensiveness is makrūh or harām. The first wajh it is makrūh. This is the opinion affirmed by a group clearly. Amongst them is al-Bandaniji at the end of the chapter on prayer with filth. The second, which is the aśah is that it is harām due to the establishment of the hadīths of its prohibition as thābit and the legal maxim is: the aśl (origin) of prohibition is it’s forbiddance (harām).

Al-Mawardi in his book al-Iqnā’ , the author of aź-Źakhāir and others had previously affirmed clearly of it being haram.

Is Prayer Accepted?

Secondly, if it is haram to pray the offensive prayers in these times, with regards to its in’iqād (fulfillment), there are two wajhs (opinions of the ashāb) related by the Khurāsānis. The aśah (relied upon) according to them is that there is no in’iqād, just like fasting on the day of ‘ēid. The second is that there is in’iqād, just like praying where the camels lie down around the water (a’tān al-ibl) or the hot baths (hammām). This is because during these times, a number of prayers are accepted, unlike the day of ‘ēid.

ash-Sheikh Abū ‘Amr bin Śalah, may Allah have mercy upon him, said

The basis of the two wajhs is whether the prohibition is attributed to the prayer itself or an external matter. He said this does not predicate us into saying that : this is makrūh tahrīm. This is because it is contrary to what it’s generality indicates. Similarly, that: this is tanzīh prohibition, also, opposing its śiha (acceptedness) when it refers to the prayer itself. This is because if it is śiha, then it is an enjoined worship while amr (enjoinment) nahy (prohibition) referring to something itself is conflicting. This is as what is stated in uśūl fiqh.

If one makes naźr (vow) to specifically pray in these times, if we say: the ‘aqd of the prayer is fulfilled, his vow is śah (accepted), otherwise it is not accepted. If his bow is śah, the more appropriate (awla) is that he prays at others times. However if he prays during this period, it suffice just like one who makes naźr to sacrifice a sheep, slaughtering it with an inappropriate (maghśūb) knife, his naźr is śah and he slaughters with other than the maghśūb knife. If he does so, he has committed a sin, but his sacrifice suffices.

If he naźr to make prayer in general, for this, he should pray in these times without khilāf because there is sabab (reason) for it.

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