A few years ago I performed Haj. On the second night of tashreeq we finished our tawaf al ziyarat very late, and stayed in Makkah, rather than attempting to return to Mina. It was midnight, and we had spent approximately 6-7 hours trying to do the tawaf and sa’i. At the time I asked a mutfi, what the status was. He said we had left the Sunnah by staying in Makkah, but that no dam [penalty sacrifice] was liable. Others have told me that if you do not stay in Mina these nights there is no harm if you are in the Haram, and the hotel we were in was in area that maybe part of the Haram, as the jamat of the salah used to go way further than our hotel.
Recently, someone who follows Hanbali fiqh has put doubt in my mind as to whether I should have done a penalty sacrifice or not for not being in Mina on the second night [i.e. 11th of Zul Hijjah].
Q1: Should I give a penalty for this?
Q2: Am I correct in thinking that this has to be given in Makkah or Mina if it needs giving now?
The great Hanafi jurist (faqih), Mulla Ali al-Qari (Allah have mercy on him) states in his excellent and one of the most reliable works on the topic of Hajj in the Hanafi School, al-Maslak al-Mutaqassit:
“When one completes the Tawaf al-Ziyarah, one should return to Mina…..One should not spend the night in Makkah or on the way (m: to Mina), because spending of the Mina nights (baytuta) in Mina is a Sunnah according to us (m: Hanafi School) and Wajib according to Imam Shafi’i (Allah have mercy on him). If one spent most part of the night in other than Mina, then this will be considered somewhat disliked (makruh tanzihan), but there will be no penalty necessary on such a person according to us. It is a Sunnah to spend the nights in Mina during the days of pelting (rami).” (See: Manasik of Mulla Ali al-Qari, P. 234-235)
Thus, in the Hanafi School, it is a Sunnah to spend the nights of Mina in Mina. To spend the nights elsewhere is Makruh Tanzihan, hence not doing so does not necessitate a penalty (dam).
However, one should remember that one should not take this Sunnah lightly. One should not leave the Sunnah of the Messenger of Allah (Allah bless him & give him peace) merely for the sake of little comfort. The nights spent in Mina are much more virtuous than a comfortable night in the hotels of Makkah.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK