Ibn `Umar relates that al-`Abbâs sought permission from Allah’s Messenger (peace be upon him) to stay in Mecca during the nights of Minâ in order to carry out his duties to provide water for the pilgrims. The Prophet (peace be upon him) granted him permission.
Al-`Abbâs asked the Prophet's to let him stay in Mecca during the nights of Minâ to provide water for the pilgrims. The Prophet agreed.
This is an authentic hadîth related in Sahîh al-Bukhârî (1634) and Sahîh Muslim (1315).
The meaning of the hadîth:
The sacred texts prescribe for the pilgrim to spend the nights of tashrîq in Minâ, This is in adherence to both the verbal command and actions of the Prophet (peace be upon him).
The Companions were agreed that whoever is able to find a suitable place in Minâ to spend the night is obligated to spend the night there. This is also the opinion of the vast majority of scholars.
During the time of the Prophet (peace be upon him) the people of Mecca carried out the duty of providing water for the pilgrims. Those who engaged in this duty carried it out during the night. They would fill large basins with Zamzam water and make them available to the pilgrims.
In order to carry out these duties, al-`Abbâs sought permission from the Prophet (peace be upon him) to remain in Mecca during the nights of tashriq, and the Prophet (peac be upon him) granted him permission.
Its legal implications:
An important question that comes up in these days of severe crowding is whether pilgrims who find no suitable place in Mina to spend the nights of tashrîq can spend those nights elsewhere. The alternative would be to spend the nights in the streets of Mina or other unsuitable places like under the bridges.
This hadîth of al-`Abbâs is pertinent to this question. Here we see permission being given to a pilgrim to forego spending the nights in Minâ so he can carry out a task providing water to other pilgrims, even though he could easily find a place to stay in Minâ. This concession is being given to those who provide water for the benefit of the people, even though others who are not making pilgrimage can easily carry out these duties.
If such a concession is being given in these circumstances, then the concession to spend the night outside of Minâ is even more applicable for a person who cannot even find a suitable place to spend the night in Minâ.
On this basis, we have the ruling that a pilgrim who cannot find a suitable place to spend the night in Minâ can spend the night anywhere he wishes, like Mecca or Muzdalifah or elsewhere. The person is exempted from the obligation to stay in Minâ under these circumstances and will not be required to offer any expiation.
The sides of the roads, under bridges, and on the sides of rocky outcroppings are not suitable places for people to spend the night.
There are other instances where the Prophet (peace be upon him) permitted pilgrims to spend the nights of tashrîq outside of Minâ. He permitted the camel herders to do so, and they would come to stone the jamarât on the Day of Sacrifice, and again on the next day and again on the two days following that. [Sunan al-Tirmidhî (955), Sunan al-Nasâ’î (3/273), Sunan Abî Dâwûd (1975), and Sunan Ibn Mâjah (3037)]
It is obvious that those who are unable to find a place to stay in Mina have more right to be exempted from doing so than camel herders.
It is related that Ibn `Abbâs used to say: “If a person has his provisions in Mecca and fears that it will be lost if he stays the night in Minâ, then there is no problem if he stays the night in Mecca with his provisions.” [Sunan Sa`îd b. Mansûr]
Scholars have extrapolated from this any other situation where a person fears that he will fail to secure his needs otherwise or a situation where he has to attend to someone who is sick.
Those who are unable to find a suitable place to spend the night in Minâ should not opt for sleeping in the streets or under the bridge. They have a greater right to be exempted from staying in Minâ than those mentioned in the texts. The same applies to a person who is returning from making the tawâf in Mecca, and due to severe crowding on the roads, is unable to return to Minâ before the night is over. In this case, his failure to spend the night in Minâ is due to outside circumstances that he can do nothing about and not to his own actions.
The roads are no place to sleep at night. Indeed, no one should be sleeping on the roads of Minâ. Whoever does so is doing something wrong and injurious to others. Indeed, it is feared that the person might even be incurring sin.
This is because the Prophet (peace be upon him) prohibited people from sitting on the roads. We can easily see how people sleeping on the roads expose themselves and others to injury and death. They are also in danger of having their private areas exposed to public view wile they are sleeping. They also bring about severe congestion and disrupt traffic, causing difficulties for everyone.
We cannot doubt that preservation of life and dignity have greater priority over the matters where we have direct textual evidence for people being exempted from spending the nights in Minâ. Indeed, the general welfare is to be given priority over the specific welfare of individual.
The severe congestion that now occurs in Minâ due to people sleeping under bridges in the streets causes difficulties for all of the pilgrims. The danger to life and health, as well as the disruption of traffic that it causes are the very kinds of harm that Islamic Law always endeavors to remove.
Moreover, the ignoble circumstances that result from this behavior presents an unsightly, negative image of Islam and its noble rites to the people of the world, because of that which the religion never demanded from the people in the first place.
Allah says: “And He has not placed upon you difficulty in the religion.”
And Allah knows best.