Is a captive who has a relative among the captors immediately freed upon capture?
General Chapter
Al-Mughni
Book of Jihad
Primary text
If a captive is a man, he is not freed because of the relationship with one of the captors. This is established by the precedent that Al-Abbas, the uncle of the Prophet (peace be upon him) and uncle of Ali, and Aqil, the brother of Ali, were among the captives of Badr, yet they were not freed for them. Furthermore, a man does not become a slave merely by being captured, even if he is enslaved. If the captive is a woman or a boy, he is freed to the extent of the captor's share, and the remaining portion is freed if the captor is wealthy (mu'sir). If the captor is insolvent (mu'sir), he is only freed to the extent of his ownership share in the spoils.
Supporting text
Al-Shafi'i holds that nothing is freed initially. This is also the implication of Abu Hanifa's position, as ownership is not established solely through capture. If the spoils are divided and the share is assigned to the relative, and the captor chooses to claim ownership, then emancipation occurs; otherwise, it does not. If a portion is assigned, and the captor chooses to own it, emancipation occurs for that portion, and the remainder is valued.