Mufti Taqi Usmani - Fatwa PDF
Mufti Taqi Usmani - Fatwa PDF
Mufti Taqi Usmani - Fatwa PDF
Fataawa
i • *
Fataawa
By
JUSTICE MUFTI MUHAMMAD TAQI USMANI
This book is copyright under the Berne Convention. In terms of the Copyright Act 98 of
1978 no part of this book may be reproduced or transmitted in anyform or by any means,
electronic or mechanical, including photocopying, recording or by any information
storage and retrieval system, without permission in writingfrom the Publisher.
PUBLISHED BY
M. S. OMAR
BConun (Dbn Westvitte) LLB (Univ of Natal)
Certificaie in Tax Law am! Estate Planning fUNISA), Certificate in Islamic Law (Dami Vloom Karachi)
Atlornex of the Supreme Court of South Africa
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Contents
2. Introduction 1
3. Salah 9
4. Zakah 43
5. Fasting (Saum) 63
7. Family Law 75
8. Economics 89
Firstly, in solving a problem which did not specifically arise in earlier times, but in
the situation where considerable assistance may be derived from the writings of
the classical jurists. For example, the protection of intellectual property (e.g.
trademark, copyright, patent, goodwill, etc) is a modern-day phenomenon and is
regulated by the statutory law of almost every country. In seeking an answer to the
problem of protection of intellectual property, the true mi/fffwould examine how the
classical jurists had defined the concept of property, and whetherthe definition was
broad enough to encompass "intellectual property". In this examination and
anaylsis the mufti would examine and analyse all the writings of the recognised
and accepted jurists of all the recoginsed schools of interpretation (madhahib). In
this process the mufti would apply the principles elucidated by the classical jurists
to the problem at hand. For example, as regards intellectual property as deserving
of recognition and protection in the Shart'ah experts have drawn heavily on the
great and incisive writings of the classical jurists. For instance, they have applied
the following definition of property given by the celebrated Syrian jurist Ibn AbidTn
in his famous work RaddalMukhtar:
6 - i ^ * _ , .» * .a
Customs and Usage has scope in fixing certain rights to property. The characteristics
of property are established through the usage of people.
t t 1— *ULiJofl ^3 •
At this level, therefore, the muftT analyses the writings of the classical jurists,
identifies the correct principles, and applies those principles to the set of facts
(0
presented to him. In this way the Shari'ah is applied to new situations, not faced by
previous societies, in a manner which eliminates hardship and facilitates ease and
convenience.
The second level of analysis which is crucial to the application of Shari'ah to new
situations and circumstances, deals with the case where there is no precedent in
the writings of the classical jurists. This is an extremely complex matter, and the
mufti must be a scholar of great learning, if he were to attempt to solve the problem
at hand. In this case the mufti is forced to have regard to general principles of the
Oufan and Sunnah which are relevant to the factual situation before him because
he cannot derive any direct assistance from the writings of the classical jurists. In
this situation, the mufti would normally submit his arguments and conclusions to
other Shari'ah experts, with a view to arriving at a consensus opinion, having
regard to the complexity of the matter and in accordance with the hadith:
Consult with the scholars and the pious and do not rely on the opinion of an individual.
_)jljj5l
This process may involve a degree of ijtihad, hence the imperative need for proper
consultation with other Shari'ah experts to avoid falling into manifest error and
thereby causing confusion in the minds of the public.
For this reason the true mufti not only enjoys a deep and intuitive understanding of
Shari'ah, but also understands his society, and is aware of current developments
on an ongoing basis. The role of the true mufti is foundational to the development
of Muslim society itself, because he constantly seeks to find positive solutions,
within the parameters of Shari'ah in a way which encourages development and
progress at all levels of society. In short, the true mufti works from the premise that
the Shari'ah has the solution to the problem and provides a suitable alternative
where necessary. He therefore uses his acumen, intuition and abilities to solve
problems in a just and equitable manner.
MAHOMED SHOAIB OMAR
(ii)
1
Foreword (it)
(Hi)
2
Introduction
Page
1. THE ISLAMIC MESSAGE 1
2. THE PRINCIPLES OF FATWA 5
1.
The true test is the recognition of Allah in the unity of his essence,
and in the perfection of his essence and attributes, and as the true cause of
all actions and omissions, which flow from His absolute Wisdom.
Allah, in his infinite Wisdom, and to enable man to undergo this true
test, has endowed man with the special inner cognitive capacity known as
the soul which directly connects the human being to his Creator. The soul is
exposed, at the same time, to the inner impulse to do good or bad, and here
lies the true test: the person who resists and controls the inner impulse to
do bad, and at the same time, acts on the impulse to do good, has passed
the test: his or her soul is like a mirror which reflects the Divine Light,and
which has truly become connected with his or her Creator. That soul,
purified of the lower bad qualities, both inner and outer, has truly
recognised Allah.
This world is but a means for the soul's onward time-less journey
into the hereafter where it will return to its Lord and Creator.
1
manifested in the Holy Qur'an and the Prophetic life-model.
The essence of the Islamic teaching is that all the Divine commands
and prohibitions are based on benefits to the individual and to society.
What appears to be outwardly harmful ("SHARR") to an individual is, on
closer analysis, beneficial to society as a whole. Hence, capital
punishment for murder, although harmful to the perpetrator, is beneficial to
society in protecting and preserving it, and in preventing it from descending
into chaos. Similarly, the prohibition against drinking alcoholic beverages
is directed at protecting a greater societal interest, as opposed to individual
benefit in the form, for example, of commercial gain through trade therein.
Allah alone, Absolutely Wise, and Absolutely free of limitations and needs,
and Absolutely Merciful and Compassionate, decides for man what is truly
beneficial and what is truly harmful. In weighing benefits and harm, Allah is
the ultimate arbiter as to whether the social interest, in a specific case,
outweighs the individual benefit.
The individual must also understand that his deeds alone are not
sufficient for attaining the Divine Pleasure. Whilst the good deeds are
necessary means to attain the Divine Pleasure, the ultimate acceptability
thereof before Allah is based on His mercy and Fadl, as appears from the
Holy Qur'an and the Hadis.
3
2
Compiled and Written By M.S Omar based on the Arabic Lecture Notes
Of Justice Mufti Mohammad Taqi Usmani attended by the Writer
If there is only one juristic view on a question amongst all the Hanafi
jurists, then, that view is binding, unless there is cogent, textual evidence to
the effect that such a view is based on an underlying cause which is absent
in the particular case.
NOTE:
The aforegoing purports to be a brief summary. It is apparent that the
subject is complex. It is permissible in the case of genuine need to adopt
the rule of another mazhab in solving a problem, but identifying genuine
need in the correct factual context is the function of an eminent jurist who
has the requisite expertise.
EDITOR
8
3
Salah
Page
1. THE LANGUAGE OF THE KHUTBAH OF JUM'AH 11
2. WHEN A PERSON IS DOUBTFUL ON HOW MANY
RAK'AT HE HAS PERFORMED 11
3. SOME QUESTIONS ABOUT THE PRAYER OF
QUNOOT 12
4. DETERMINING THE DIRECTION OF THE QIBLAH 13
5. MEANING OF DHIKR 19
6. RELOCATION AND THE QASR SALAH 23
7. METHOD OF JOINING PRAYERS 24
8. CONGREGATIONAL PRAYER OF WOMEN 25
9. ON SALAH 27
10. THE TIME OF SALAH FOR WOMEN 29
11. THE NUMBER OF RAK'AT IN JUM'AH PRAYER FOR
MEN AND WOMEN 29
12. SAJDAH OF SAHW BY AN INDIVIDUAL PRAYING IN
CONGREGATION 30
13. CONGREGATIONAL SUPPLICATION 32
14. MISUSE OF LOUDSPEAKER 33
15. 40 PRAYERS IN MADINAH 36
16. JUM'AH PRAYER WHILE ON JOURNEY 37
Page
3
SOME QUESTIONS ABOUT THE PRAYER OF QUNOOT
12
prayers i. e. after finishing Fajr prayer?
A The forms of worship are prescribed by Allah Almighty and have
been conveyed to us through the Holy Prophet (S.A.W). No doubt,
every form or method of worship so prescribed has some wisdom behind it,
but that wisdom has not been expressly mentioned in the Holy Qur'an and
Sunnah in every case. We can attribute certain reasons for certain acts,
but it will be a hypothetical exercise which may or may not be correct,
because the real wisdom is best known to Allah alone. The number of
rak'ats in the Fajr prayer is two while it is four in Zuhr, Asrand Vsha'and
three in Maghrib. The reason for these different numbers in different
prayers is never mentioned in the Holy Sources of Islamic teachings. The
recitals of prayer also vary from act to act. We are directed to recite the
Qur'anic verses while standing in the prayer, but we have been forbidden
from doing so in the states of ruku' and sajdah, likewise, Tashahhud has
been prescribed in the qa'dah (state of sitting) and not in the ruku' or
sajdah. The exact reasons for these directions are not expressly
mentioned in the Qur'an or in the Sunnah, because the essence of worship
is nothing but to obey the divine commands and to follow the prophetic
practices even if their reasons are unknown.
Similar is the case of the du'a of qunoot. It has been prescribed in
the last rak'atoi w/frwithout giving any reason. Therefore, we must follow it
even though its exact reason is not known to us.
One can say that since the prayer of witr, is the last prayer
performed by a Muslim at night, a comprehensive du'a has been
prescribed in its last rak'atso that one's daily activities may end with this
prayer which encompasses all his needs, both in this world and in the
Hereafter.
But, as mentioned earlier, this is only a possible reason. Some other
person may adduce another reason, the real wisdom being known to Allah
alone.
(b) Yes, there is no harm against reciting this du'a after prayers also.
But it should not be recited during the Salah except in the witr prayer.
4
DETERMINING THE DIRECTION OF QIBLAH
Q. 1 Dear Moulana, your lecture on June 6, 1997 at MCA, increased
our knowledge andlman. May Allah give you great reward Ameen! I
would like to thank you for visiting MCA Santa Clara.
13
Dear Maulana, we need your Fatwa on the following three Fiqhi
issues:
1) The time ofSalah al-Zuhr (what is the beginning, the end of the
Zuhrtime and what is the definition ofZawal?)
2) The Qiblah's direction (Should the Qiblah be identified by the
strict directions West, East, North and South only? Are other directions
such as north-east and south-west also considered? Should the shortest
direction to Makkah be considered as a reference to define Qiblah?)
3) The means to measure the Salah time and the direction of Qiblah
(Is there any wrong in using Watches, Prayer Calendars and Compasses
to identify Salah time and Qiblah's direction?)
Your fatwa attached with opinions of the four Mazhabs and Ijmah is
highly apprecia ted.
A I received you faxed letter, with certain questions, the answers of
which are given below:
1) The time of Zuhr prayer begins immediately after Zawal, Zawal
means the decline of the sun towards the west during its daily orbit.
2) The Qiblah is not necessarily identified by the strict direction of
west, east etc. but it can also be in the north-east or north-west according
to the geographical position of each place. We should try to ascertain the
exact direction of Qiblah, however, an approximate direction may also
serve the purpose of Salah so much so that deviation from the exact
direction of Qiblah upto 45 degree is held to be negligible which means that
if somebody offers Salah to a direction which is within 45 degree from the
exact direction of Qiblah, Sa/ah willbe acceptable.
3) There is no bar against using watches, compasses or calendars
to identify Salah time and Qiblah's direction in so far as they are correctly
designed, and accurate.
Q.2 From the past few months, an issue of cloning arose and it
becomes a matter of life and death for our daily life as either it is
ethically right or wrong. I am sending a short note which is taken from
different magazines and newspapers.
Please, tell me what Islamic Shari'ah tells. If possible, explain
through Quranic and Hadith verses. (Naumann Farooq)
14
A This issue has been thoroughly discussed in the recent session of
the Islamic Fiqh Academy at Jeddah and it was unanimously
decided that the Human cloning through physical cells is not acceptable in
the Shari'ah. However, this process can be availed of in agriculture and
animals.
15
stranger.
(ii) Is it allowed to kiss hands of each other-(man and woman) ?
(Hi) Is it allowed to touch and kiss the legs of a saint, old man, Imam,
and scholar of Islam as done (by Hindus) andBangali Muslims too.
(iv) Is it allowed salutation by folded-hands by saying Namaste - A
Hindu practice of'Salaam'.
If all these practices (traditions) are not allowed in Islam (for-
bidden), please let us know whether any punishment or sin is committed by
■ such Muslim?
4) Whether a woman's Hajj or Umra is permitted without
accompanying permissible man-relative when that woman has no such
man relative available? What is the remedy for such a woman to perform
Hajj or Umra?
5) Please let us know if the Bid Kurbani-sacrifice of an animal is
wajib (essential) to sacrifice for each and every Muslim of any age, even
without going for Hajj ?
6) Many people go to Hajj and Umra every year (frequently), is it
necessary to do more than one Hajj? If someone is rich person, can he
send other poor people to perform Hajj instead of the rich man going every
year? Is Hallowed Haj at the expense of Govt. of Pakistan or Govt. of other
countries?
7) Are Muslim women allowed to go to the cemetery along with other
Muslim men/women to attend Janaza prayer, offer Fatihah and offer flower
- bouquets and spread flowers on the grave and put oil lamp on the head of
the grave?
Is it allowed under Islam to erect cement walls around the gra ve and
put name-plate made of marble and photo graphs of dead man or woman?
Are these practices forbidden under unnecessary waste of money?
(The above practices are very widely followed by Pakistani, Turkish
and Bosnian Muslims, which please note.)
I request you send your reply in English preferably a typed one on
your letter-head with your seal and signature.
(M.S. Mohammady London)
A 1) It is not permissible for Muslims living in non-Muslim countries to
bury their dead in the cemeteries of non-Muslims. However, if the
Muslims do not have any cemetary of their own, then it is permissible for
16
them to bury their dead in a non-Muslim cemetery. In such a situation,
every effort should be made to secure a portion of the cemetery specially
for Muslims that they may bury their dead together.
With regards to the Hadith mentioned in the question any comment
regarding that particular Hadith can only be made if the original text is
presented.
^^ J "i*) i" .iWl . ^ ^5 ^ ^3
(Jo * y* ^ I jl If I ^ jolio ^ ^3 ^
^ JJ b 1^ * j ■ ■o-1.. 11 * o•- * -'b
.( VT T i-iUJ JAj ^ S t
2) It is not permissible for a Muslim to attend the funeral services of a
non-Muslim, to go to the Church service, attend cremation, or to take part
in the prayer-service. Likewise, Fatiha, or making 'dua' for a non-Muslim is
also forbidden. The placing of a flower Sheet on a grave is not permissible
for a Muslim (grave) let alone a non-Muslim as it is an innovation and also a
practice of the Hindus. Likewise, the placing of bouquets of flowers is also
forbidden for Muslims as well, as it is an unnecessary extravagance.
17
avoided. However, if either party harbours any sexual desire, or a certain
amount of doubt exists that such is the case, then any physical contact is
Haram.
In all of the above, one who has reached near puberty is also
regarded as having reached puberty. Therefore, the same rule will apply.
5
MEANING OF DHIKR
QA non-Muslim studying Islamics at a university is writing a project on
the Tablighi Jamaat. Since I got to know him because of this, he
frequently asks a thing or two concerning his project. One question is this:
"As far as I know "Dhikr" is not used in the Tablighi Jamaat in the
same sense as Sufis use it, who use it often for mystical and spiritual
19
exercises to attain a state of ecstasy. What is meant by "Dhikr" in Tablighi
Jamaat and what is the difference between "Dhikr" and the prayer
(Salah)?"
The latter part of the question specially is beyond me. Could you
give me an answer as quick as possible?
A Dhikr is a special type of Islamic worship which means
remembrance of Allah Almighty. Although rememberance is an act
of heart, yet the recitation of some words or sentences glorifying the
names of Allah is also a part of Dhikr because such recitations may
ultimately inculcate an inner state of perpetual rememberance of Allah. It is
totally erroneous to presume that the Sufis undertake Dhikrlo attain a state
of ecstasy. In fact any kind of ecstasy is not an objective of any Islamic
worship, rather the acts of worship on their own are commendable
because they demonstrate one's total submission to the commands of
Allah Almighty. Whether or not a state of ecstasy is attained has no
importance with regard to Dhikrorany other type of worship.
The true Sufis as well as other Muslim scholars undertake Dhikr
only to demonstrate their submission to Allah and not to create ecstasy.
Those who claim that the basic purpose of Dhikr is to attain ecstacy are
either ignorant of the true teachings of Islam or have a confusion about it,
because they cannot fortify such a notion with any statement in the Holy
Qur'an or in the Sunnahof the Holy Prophet (S.A.W).
As for the difference between Dhikr and prayer, it can be
summarized by saying that Dhikns a general rememberance of Allah while
prayer in the meaning of Salah is a particular type of worship, and in the
meaning of supplication is to put one's request before Allah Subhanahu
Wa Ta'ala, and both of these are specific kinds of Dhikr.
Ql have been in the practice of making 4 Rak'at with one Taslim, I ask
if I forget to recite the Thana at the beginning of the third Raka'atand
start the recitation of Surah Fatihah and then remember, can I stop reciting
the Surah and recite the Thana and then recite the Surah? Or should I just
make Sujudu-Sahw?
2. Again concerning the making of 4 Raka'at with one Taslim, Jn the
first two Raka'at I recite Surah 111 and 112 is it permissible for me now to
recite 94 and 95 in the 3rd and 4th raka'at since these are considered two
new raka'at?
3. If one does not remember how many Sajdah he has made and
20
makes another not knowing whether it is the second or third should he
make Sujudus-Sahw or start the Salat afresh?
4. It is reported in Shamaa'il Tirmidhi Hadith (294) that the Sahabi
'Abdullah ibn 'Amr ibn 'Aas (Ft. A) made up his mind that he would strive to
intensify his devotions, and he did such by fasting each day and praying all
night. His father became upset about this and went to Sayyidna Rasullalah
(S.A.W) and complained. Sayyidna Rasullalah (S.A.W) called 'Abdullah
and asked him: "I have heard you always fast during the day, and stand in
prayer the whole night?" He replied: "Yes" thereupon Sayiddna Rasullalah
replied, "Do not do so, but fast sometimes, and abstain sometimes. In the
same manner do perform salat at night, and sleep too." Can you explain
what is meant by this underlined portion please.
5. Would it be Makruh to delay the Maghrib Salat till the stars begin
to twinkle?
6. During the time of the Sayiddna Rasullalah (S.A. W) was the urine
of camels considered to be pure or impure? I ask this question from a
hadith in Sahih Bukhari and Sahih Muslim, where a tribe was ordered by
the Sayiddna Rasullalah (S.A. W) to drink urine and milk to cure a ailment
that they suffered from. But in these days the kutub says that the urine is
najas.
7. If one stood up and realized that he had only made one sajdah
wha t should he do?
8. In what direction should one pray in from the United States, more
specifically Ohio?
9. Is Jumu'ah Salat valid in prison? If so could you provide me with
the dalilon this? (AbdulHakiymZakiy {U.S.A.})
A1) When you are praying four Raka'ats with one Tasleem you need
not at all recite Thana in the beginning of the third Raka'at.
Therefore, there is no question of any Sujoodus Sahw for not reciting
Thana. Even in the first Raka'at it is not Wajibto recite Thana. Therefore, if
some one missed to recite it he need not make any Sajdah of Sahw.
2) If you have recited Surah No. 111 and 112 in the first two Raka'ats
you should not recite Surah No. 94 or 95 in the last two Raka'ats, because
it is advisable to recite the Surahs of the Holy Qura'n in the existing order of
compilation. When you are performing four Raka'at with one Thasleem,
the second couple of Raka'ats is not a new Salah in this respect.
3) If one does not remember how many Sajdahs he has made, he
21
should try to recall the exact situation and act according to the most
probable possibility according to his own guess. However, if he is unable to
guess, both sides being equal, in that case he should perform another
Sajdahand he need not make a Sajdah ofSahw.
4) The meaning of the Hadith is more than clear. The Holy Prophet
(S.A.W) has emphasized on the fact that Islam has enjoined upon a
Muslim certain obligations and all of them should be fulfilled by him
simultaneously. It is not right to concentrate on one aspect only and ignore
all others. If some one fasts the whole year and stands up in prayer the
whole night, it is evident that he is not fulfilling the obligations towards his
wife and children. It is specifically mentioned in the said event about
Sayyidna Abdullah ibn Amr (R.A) that on a query made by the Holy
Prophet (S.A.W) from his wife, she told him that her husband does not
spare any time for her. It is in this context that the Holy Prophet (S.A.W)
stopped him from this practice and drew his attention towards fulfilling all
obligations, including the obligations towards his wife, children and other
individuals of the community.
5) Yes, it is makroohto delay the Maghrib prayer till the stars begin to
twinkle.
6) According to the Hanafi and Shafi'i schools the urine of camels is
impure. In the event stated by you some members of a particular tribe were
advised by the Holy Prophet (S.A.W) to use the urine and milk of camels as
a medication. It is not a general principle to allow drinking of urine or taking
it as pure.
7) In this case he should go back to perform the missed Sajdah and
should make Sujoodus Sahwa\ the end.
8) The direction of Qiblah from U.S. is to the south-east, However,
you may verify the correct direction from the Islamic centres in your own
city.
9) The answer to this question depends on certain clarifications; for
example, is the prison in a city or is it situated outside the city, how many
Muslim people are there in the prison, is the Jum'ah prayer offered
somewhere outside the prison, and is there any restrictions from the prison
authorities to offer prayers in the prison. Until you come back to me with the
answers to these questions you should not perform the Jum'ah prayer.
Rather, you should perform the Zuhr prayer.
22
6
Q Family 'A' (father, mother and 2 major married sons) had lived
permanently in Durban. The members of the family were born in
Durban. They had grown up in Durban and had always regarded Durban
as their permanent home. About 8 years ago, family A' moved to
Ladysmith, a town about 150 miles away from Durban. They settled in
Ladysmith primarily for business reasons - they had relocated their
manufacturing plant from Durban to Ladysmith in order to take advantage
of certain Government benefits and concessions arising out of such
relocation of their business. The family still owns a home and other
property in Durban and still runs an Office in Durban. The third son is
residing in Durban with his family and the brothers and sisters of the
parents and their respective family units all reside permanently in Durban.
Family A' wants to know:
a) Whether or not Family A' should perform QASR SALAH or full
salah in Durban;
b) Whether or not family A' should perform full salah or QASR
SALAH in Ladysmith. (M.S. Umar, Durban)
A If the family 'A' has gone to Ladysmith with the intention to settle
there for good and has no intention to come back to Durban as its
permanent residing place, its wattan has shifted from Durban to Ladysmith
and he will perform the full Salah in Ladysmith while he will enjoy the
concession of Qasr Salah whenever he travels to Durban for less than 14
days. If he has left one of his sons living in Durban with his family, it makes
no difference in this case, nor can permanent residing of his uncles or
nephews in Durban disturb this position. However, if the family 'A' has
gone to Ladysmith only to carry on its business with no intention to settle
there for ever, then his watan has not shifted from Durban and all the family
members will have to perform full sa/abin Durban whenever they go there.
One can also have two watans simultaneously but it is a situation where
one has some of his dependent family members in one place and some of
them in another, and in both the places he has his own house to live and
holds each of the two places as his permanent residing place, living in each
of them alternatively. In this situation both the places are his wafanand he
has to perform full salah in each of the two places. But in the situation
mentioned in your question, if family 'A' has settled in Ladysmith for ever
23
with all its dependent family members, this principle will not be applicable,
because they have not left any of their dependent members in Durban.
The son who is residing in Durban with his family is not a dependent
member of this family; therefore it does not make any difference.
O If one joins the congregational prayer late (i.e. in 3rd or 4th rakah)
what is the proper way to complete the prayer? In which rakah he
has to recite a surah and in which rakah he has to sit after sajdah?
(Abdul Sattar, Chicago)
A A person who has not joined a prayer in the first rakah is called a
'Masbuq'. He has to complete his prayer after the Imam has finished
his prayer. A 'Masbuq'has to observe the following rules while completing
hisprayer:-
1. He should not make salam with his Imam; rather as soon as Imam
completes his first salam he should stand up to complete his prayer.
2. By completing his own prayer, a 'Masbuq' shall perform all the
acts of prayers in the same manner as he has to perform while praying
individually.
3. In the matter of recitation of surah he shall follow his own number
of rakah i.e. if he has missed two raka'h with the Imam and has stood up to
complete these remaining raka'h, he will have to recite surah in both of
them because these raka'h will be deemed to be his first and second raka'h
and his performance with the Imam will be deemed to be third and fourth.
Likewise, if he has missed three raka'hand performed only one raka'hmXU
the Imam, then while performing the remaining three raka'h, he will recite
surah in the first two raka'h only and will not recite in the third.
4. However, in the matter of Qa'dah (sitting for Tashahhud), he will
follow the number of raka'h he has actually performed whether with the
Imam or on his own. Therefore, if he has missed three raka'h and has
performed only one raka'h with the Imam, then he will have to sit for Qa'dah
right in the first raka'h whike completing his own prayer, because this is
actually his second raka'h as combined with the one performed with the
Imam, and since Qa'dah is obligatory after every two raka'h he has to
make Qa'dah right there and he will not sit in the next raka'h because it is
24
actually his third raka'h.
In the light of aforesaid rules, if a person has missed three raka'h
and joined only in the fourth raka'h with the Imam, he will not follow the
Imam in his salam and will stand up to complete his remaining three raka'h
and in the first raka'h he will recite surah and after completing sajdah he will
sit down to recite tashahhud, then he will rise up and will recite the surah
again. He will not sit in this second individual raka'h. Then in the third, he
will not recite a surah and will sit down after sajdah to complete his
Tashahhudand salam.
I hope this will be enough to explain the way in which a 'Masbuq' has
to complete his prayer.
8
CONGREGATIONAL PRAYER OF WOMEN
25
Since the women of those days used to observe all the requirements of
Shari'ah including those of Hijab in the days of the Holy Prophet (S.A.W),
they were not forbidden from attending the congregational prayers.
However, the Holy Prophet (S.A.W) has made it clear that it is more
advisable for them to pray in their homes.
But Sayyidna 'Umar (R.A) felt in his days that the concession given
to the women is sometimes misused and it was apprehended that it would
be misused in the future even more. He was also aware of the fact that the
Holy Prophet (S.A.W) did not like the women leaving their homes for the
sake of prayers. Keeping all this in view he issued a directive that the
women should no longer attend the congregational prayer. This directive
was completely confirmed by all the Companions of the Holy Prophet
(S.A.W) available at that time. Sayyida Aisha (R.A) opined, that had the
Holy Prophet (S.A.W) been alive in those days he would have certainly
stopped the women from attending the mosque for prayers.
It is in this context that the Muslims jurists have been unanimous on
the point that it is not advisable for women to attend the congregational
prayers in a mosque, rather most of them have taken it as a prohibited act.
At the same time it should be kept in mind that even though the
participation of women in a congregational prayer is not advisable
according to the Shari'ah, yet, if they join a congregation at some occasion,
the prayer will be valid. In this case, they have to stand behind the rows of
the males and the Imam should have the intention that he is leading both
males and females in prayer.1
Similarly, the congregation of females only is held to be 'Makrooh'
by the Muslim jurists. However, if at some occasion, the women elect to
arrange their own congregation led by women, the female Imam should
stand in the centre of the first row and not in front of the followers as the
male Imam is supposed to do. As mentioned earlier, it is not advisable for
women to pray in the mosques. However, if they elect to do so, their
prayers will be valid according to the Shari'ah. In any case, the observance
of Hijab while joining a male congregation is mandatory which cannot be
dispensed with in any way.
I hope that this will satisfy your question. I would like to emphasise
once again that the basic purpose of a Muslim, male or female, should be
to follow the dictates of Shari'ah and to seek the pleasure of Allah and not
to satisfy one's own desire. The congregation of the male Muslims has
1. There is a Hadith of the Holy Prophet (S.A.W) to the effect that women should not be prevented from
praying in the mosque, should they elect to do so. (EDITOR)
26
been held as a meritorious act for the simple reason that Allah Almighty
has declared it meritorious for the males but the case of women is totally
different. Here, the Messenger of Allah has expressly mentioned that it is
more meritorious for a woman to perform prayers in her home. Therefore,
Muslim women should not insist on going to the mosque for joining the
congregational prayers because the reward promised for a congregational
prayer shall be available forthem in their homes and not in the mosque.
9
ON SALAH
Some people look here and there while in salah. Is this permissible?
A For a person who stands to perform his salah, the masnun method is
to set his eyes on the spot where he is to perform his sajdah; and if
his eyes are not on that spot and he is looking towards what is in front of
him, this act is of his contrary to sunnah, but the salah will still be valid.
Now, if a person is looking towards his right or left and he has done it in a
manner that his neck has not turned towards either side, his salah will be
valid, although doing so unnecessarily is makrooh (reprehensible). And if
he intentionally looks towards his right and left having turned his neck then,
this is outright impermissible; and if anyone does this in a way that the
average onlooker finds it totally foreign to salah, then, the salah itself will
become invalid.
tomorrow"). So, all this formalism is wrong. Niyyah is the intention of the
heart. Therefore, anyone standing behind an Imam to offer his salah, for all
practical purposes, intends in his heart that he is going to follow the Imam.
QA person joins the congregation after the Imam has performed the
Ruku'and he stands in the row and waits for the Imam to rise for the
next raka'ah since he knows that he has lost the Ruku' and therefore, the
raka'ah too. Is this correct?
28
A No. He should go for sajdah after the Imam immediately. He should
not wait for the Imam to rise for the next raka'ah. This has been
explicitly prohibited in hadith.
10
THE TIME OF SALAH FOR WOMEN
Q"ls it necessary for a woman to wait for the call of Azan before she
can offer her prayers (salah) or can she perform her prayers as soon
as the time for that particular prayer becomes due?".
(Ibid)
A The ladies need not wait for the call of Azan. They can offer their
prayers soon after they are sure that the time for a particular salah
has arrived, no matter whetherthe call of Azan has been pronounced in the
musjidornot The HolyQur'an says,
11
THE NUMBER OF RAK'AT IN JUM'AH PRAYER FOR
MEN AND WOMEN
29
the sajdah ofsehw.
However, if the person has missed one or two rak'at from the
jama'ah and he is offering the missed rak'at on his own after the
congregational prayer is over, and he makes a mistake for this duration, he
will have to offerthe sajdah ofsehw, because, while completing the missed
rak'at, he is deemed to be a person who offers the prayer individually, and
the sajdah ofsehwls obligatory on him like any other individual.
31
All the rules mentioned above relate to the supplications offered in a
sajdah which forms part of satah. However, if someone makes a sajdahoul
of sa/ahforthe purpose of supplications only, there is no prohibition, nor is
it necessary to observe the conditions mentioned in (a), (b) or (c) above. In
such a position one can pray in whatever language one deems fit.
It is, therefore, permissible to make sajdah for the purpose of
supplication after the salah is over. However, this should not be made a
permanent practice after every salah, because the Holy Prophet (S.A.W.)
used to pray after salah in a sitting position, and it is in no way advisable to
leave this sunnah of the Holy Prophet (S.A.W.) forever.
13
CONGREGATIONAL SUPPLICATION
14
MISUSE OF LOUDSPEAKER
15
40 PRAYERS IN MADINAH
(OJIjj :A : 1 ^ ^3 ^ ^ o : T*
Whoever performs forty prayers in this mymasjid,
destined for him is the freedom from Fire and
redemption from the punishment, and he becomes
immune from hypocricy.
This saying of the Holy Prophet (S.A.W.) which is held by the
scholars of hadith to be authentic, mentions the excellent reward one can
enjoy by offering 40 prayers in the Masjid of the Holy Prophet (S.A.W.).
Therefore, every Muslim who finds an opportunity to stay in Madinah for
one week, he should not miss this remarkable gain. But, by no means can it
be said that it is mandatory for every visitor of Madinah.'
16
JUM'AH PRAYER WHILE ON JOURNEY
37
17
18
38
19
QASR AT THE AIRPORT
21
PERFORMING QADA' PRAYERS
Q"A person is regular in his daily five time prayers, but for some
reason one of his prayers becomes qada', and the time for next
prayer arrives. What should be the sequence of the performance of his
prayers, under such a situation?"
A The person who has never missed six prayers, or the number of his
qada prayers is less than six is termed as "sahib-ut-tartib".
Whenever a p'rayer is missed by such a person, he has to observe full
sequence between the prayers. He is bound to perform the qada' prayer
before the ada'prayers of the time. For example, if he has missed XheZuhr
40
prayer, then at the time of 'Asr, he must perform the qada'of Zuhrfirst, and
the acfa'of 'Asrafter it. If he performed 'Asr before the qada'of Zuhr, his
'^sr prayer will be void, and he will have to pray again.
Observance of sequence is necessary between the different qada
prayers also. All the qada prayers should be performed in the same order
in which they were missed. So, if a person has missed both the fa/rand the
Zuhr prayers, then, at the time of 'Asrhe must perform the qada of fa/rfirst
of all, then he should perform the qada of Zuhr, and then he should pray the
'Asr. If he disturbed this sequence, he will have to pray again observing the
due sequence.
The observance of sequence is obligatory on every Sahibut-tartib'm
normal conditions. However, if he, while performing 'Asr prayers, forgot
that his Zuhr prayer had been missed, and he prayed 'Asr under this
impression, his 'Asrprayer is acceptable and he need not pray it again.
Similarly if the time of 'Asr remains so short that, in case he prays
qada'firsf, the 'Asrtime will be over, then also he can pray 'Asr first.
All these rules relate to a person who is sahibut-tartib. But if a person
is not sahibut-tartib i.e. the number of qada prayers due on him is six or
more, the observance of sequence is not obligatory on him and he can
pray in whatever order he likes according to his convenience.
22
QURANIC PRAYERS DURING MENSES
23
CONGREGATIONAL PRAYERS FOR LADIES (Further questions^
Q"How far the ladies are allowed to offer their prayers in congregation
(jama'ah)? What is the most preferable and superior position in this
respect, as per Shariah? (Ibid)
A The ladies are always required to offer their prayers individually. It is
not advisable for them to offer prayers in congregation. Rather, it is
held to be a makrooh (disliked) practice. Unlike men, the individual prayer
of ladies carries more thawab. However, if some ladies insist on the
disliked practice of offering their prayers in congregation, the woman who
leads the prayer should not stand in front like a male Imam of salah.
Instead she should stand in the middle of the women who perform salah in
her leadership. But it is emphasized once again that the congregation of
ladies for prayers should always be discouraged.
42
4
Zakah
Page
1. HOW TO CALCULATE ZAKAH ON A BUSINESS? 45
2. PAYMENT OF SADAQATUL-FITR TO A NON-
MUSLIM 46
3. PAYING ZAKAH TO AN INDEBTED PERSON 46
4. ZAKAH ON UNQUOTED SHARES 48
5. ZAKAH ON THE TRUST FUNDS 49
6. ZAKAH ON THE EMPLOYEES' PROVIDENT
FUND 49
7. WHO IS ENTITLED TO RECEIVE ZAKAH? 50
8. ZAKAH ON AGRICULTURAL PRODUCE 51
9. CHANGE IN FINANCIAL STATUS AND ZAKAH 52
10. ZAKAH ON ZAKAATABLE ASSETS 53
11. VARIOUS ZAKAH QUESTIONS 56
12. ZAKAH ON DIAMONDS 60
1
HOW TO CALCULATE ZAKAH ON A BUSINESS?
Q(1) Is zakat payable on business? If so, how does one calculate the
amount? I have overdrafts and loans in business too, as well as
receivables outstanding.
(2) Is zakat payable on stocks? I have stocks from various periods
starting from 30 days to over365 days. There are certain stocks which are
not sellable anymore.
(M.G.Y. Karachi)
A First of all, you should set a particular date of a lunar month for the
valuation of your assets for the purpose of zakah. Better you choose
the first of Ramadaan for this purpose, because this is the date on which
the government also collects zakah from all the citizens. This date will be
your zakah valuation date for each year as long as you remain sahib-e-
nisab(\he one on whom zakah is obligatory).
Then, you should calculate the value your zakatable assets as it
stands at that valuation date. The zakatable assets are the following:
(i) Cash (including the balance of your bank deposits) at that date.
(ii) The market value of the shares of joint stock companies or NIT
units or mudaraba certificates held at that date.
(iii) Face value of the financial papers, like bonds, KDCS, NDSCS
etc.
(iv) The whole-sale value of the balance of stock-in-trade (including
raw material) at that date, irrespective of the period of their retention.
(v) Receivable amounts (book debts) as on that date. From the total
amount of the aforesaid assets, the following amounts may be deducted:
(i) Amounts payable to the suppliers of stock (including raw
material)
(ii) Amounts payable at that date a rent to the landlord or to the
lessor if equipment is acquired on lease.
(iii) The principal amount of loans borrowed from financial
institutions and employed in acquiring zakatable assets, or any personal
loans.
(iv) The amounts deducted by the government at source as zakah.
45
After the deduction of these amounts from the total value of the
zakatable assets, as mentioned above, the balance will be your zakatable
value. 2.5 percent of this zakatable value is payable as zakah.
The period of retention of the stock is not material. The balance
standing at the date of valuation shall be valued, no matter whether some
stocks are acquired some months ago, and some are acquired just one
day earlier. The completion of one year is needed only for the minimum
amount of nisab. If somebody has been owning the minimum amount of
nisab for the most parts of the year, he has to pay zakah on the balance
remaining with him, on the date of valuation. 'Retention for one year' is not
necessary in respect of each and every item. Therefore, whatever comes
or goes during the year has no bearing on the calculation of zakah. It is only
the balance remaining on the valuation date which is subject to zakah.
You have also asked about the stocks which are not "sellable any
more". If you mean that these stocks are kept for personal use or for
charitable purpose, they shall not remain zakatable any longer. But if you
mean that they are available for sale, but nobody comes forward to
purchase them, they are still zakatable. However, it should be
remembered that zakah can also be paid in kind, therefore you can pay
their zakah from those assets themselves i.e. you can give 2.5 % of those
stocks in kind to a person entitled to receive zakah.1
2
PAYMENT OF SADAQATUL-FITR TO A NON-MUSLIM
(XYZ Karachi)
A According to Imam Abu Hanifah, the Sadaqatul-fitr can be paid to a
needy non-Muslim resident in an Islamic country if he does not own
the nisab (a surplus amount equivalent to the value of 52.5 tolas of silver).
3
PAYING ZAKAH TO AN INDEBTED PERSON
Q"A businessman suffered a loss in his business. He sold all his
properties and paid his debts. He hired a house on rent and shifted
1. In valuing stock, the test of market value is as follows: What would a willing buyer pay to a willing seller if
all the stock were sold in bulk in a single transaction on the valuation date? (EDITOR)
46
from a posh locality to an ordinary locality in a far off area of the city and
joined a service. From appearance his standard of living still looks like his
previous one (although he is without a car, telephone and other luxuries).
He is still under the debt of approximately Rs. 2 million. He pays some
amount every month from his salary to his creditors. Now, the question is:
(a) Can his debts be clearedbyZakah money?
(b) If it is permissible, should we pay his debts directly to his
creditors, or should we pay him first and then ask him to payoff his debts?
Please also note that this businessman has to receive about Rs.
one million from other people which is being received by him in parts and
after long intervals.
(c)lsitnecassarytotellhimthatitistheZakahmoney or can wepay
him without any reference to Zakah, because he may feel humiliated if we
tell him that it is a zakah money?
(d) If he pays some or all of his debts byzakah money, then he again
becomes a rich man, should he return the money of Zakah to its original
owners, or can he pay it to other poor people, orhe neednotdoit?
(Ibid)
A (a) The principle is that if the debts of a person are equivalent to his
surplus assets (including his receivables) or are more than that, he is
entitled to receive Zakah. Likewise, if his surplus assets are sufficient to
clear his debts, but after paying his debts, his remaining surplus assets do
not reach the quantum of nisab he can also receive Zakah. However, if his
surplus assets are such that even after clearing all his debts, they are
equivalent to or more than the nisab, he cannot receive Zakah.
It is worth mentioning that the term "surplus assets" includes money and all
those household goods and properties which are not required for his day-
to-day needs.1
In the light of this principle, the businessman under question can
receive zakah, because his debts are 2 million while his surplus assets
(including his receivables) are less than that. Therefore, one can help him
in clearing his debts out of the Zakah.
(b) If his debts are intended to be paid out of Zakah, the creditors
t. But excludes assets covered by necessity, such as house, personal clothing, and one motor vehicle.
(EDITOR)
47
should not be paid directly. Instead, money should be given to the indebted
person who will pay it to his creditors, if he so wishes.1
(c) It is not at all necessary to tell the beneficiary of Zakah that he is
being helped out of Zakah. One can give him the amount as a gift or as a
present without referring to Zakah. The only condition is that while giving it
to him, one should have a clear intention in his heart to pay Zakah. Even if a
person gave money to the beneficiery as a qardor a loan, while in fact he
intended to pay Zakah and never intended to get it back from him, the
obligation of Zakah is discharged. However, if he comes thereafter to
repay the loan, he should refuse to accept it.
(d) Once a person has received Zakah while he was entitled to
receive it, he is not required to return it to the original payer,no matter how
rich he may become later... Therefore, if that businessman becomes rich
once again, he is not required to pay back the Zakah, neither to the original
owners, nor to other poor people. However, he will be required to pay this
own Zakah according to his assets owned by him at that time.
4
ZAKAH ON UNQUOTED SHARES
Q"How is zakah calculated and paid on the unquoted shares which
cannot be sold through stock Exchange?" (Nafesa Raja Hong Chik,
Malaysia).
A Zakah is obligatory on the market value of the shares of every joint
stock company. Although the market value of the unquoted shares
cannot be determined through the stock Exchange, yet there are two ways
to determine their value.
1. Some unquoted shares are sold and bought through "over the
counter" transactions i.e. by mutual agreement of the buyer and seller and
without the mediation of a stock Exchange. These "over the counter"
transactions may determine the market value of the unquoted shares.
2. If the market value cannot be ascertained in this way for some
reason, then the value of the unquoted shares should be calculated on the
basis of the balance sheet of the company.
it has already been explained in Albalagh (June 1990 p.20) that a
share holder can deduct from the Zakatable value a proportion equivalent
to that of the fixed assets of the company2. The same principle is
1. Alternatively, the recipient authorizes the zakah payer to pay the zakah directly to the creditor
concerned. (EDITOR)
2. In other words, non-zakatable assets such as plant and machinery, fixtures and fittings, are not taken
into account. (EoilOR) 45
applicable to the unquoted shares also.
5
ZAKAT ON THE TRUST FUNDS
49
A If 20% of the salary is deducted at source without giving this amount
to the employee, zakah is not payable on the amount kept in the
Employees' Provident Fund untl the same is received by the employee.
When an employee receives it on his retirement, the amount so received
shall form part of his zakatable assets of that year only, and such part of it
as is not spent before the valuation date shall be subject to zakah, and
zakah will be payable on the aggregate balance of his assets (including the
balance of the amount received from the Fund) on the valuation date.1
7
WHO IS ENTITLED TO RECEIVE ZAKAH?
1. In other words, the amount received from the Provident Fund must be held for one year before zakah is
payable thereon. If the recepient has existing zakatable assets equal to nisab, then the amount received
from the Provident Fund will be added thereon, and the whole amount, or the balance remaining (in case of
expenditure) will be subject to zakah of the next valuation date. For example, the zakah payer's valuation
date is 1 st day of Ramadaan each year, and he receives the lump sum from the Provident Fund two months
before that date. The lump sum will be added to his existing nisab, and he will pay zakah thereon on his
valuation date next, namely, 1 st day of Ramadaan. Because the amount paid to Provident/Pension Fund is
deducted at source, it is not owned by the employee and does not constitute a payment by the employee
from his own funds. Hence, what he receives upon retirement, may be treated as consideration for services
rendered, and therefore a legitimate gain. Although this amount is not fixed at the time of conclusion of the
contract of service, the failure to do so, as pointed out by Mufti Shafei (R.A) in his fatwa on the subject does
not lead to dispute. At best, the employee has a claim against the Provident/Pension Fund subject to its
rules as prescribed by Law but this claim is not converted into a strong debt ("QAWI"), hence no zakah is
payable for the years preceding the receipt thereof. There is no distinction between a compulsory and
voluntary pension fund in this regard. (EDITOR)
50
organization cannot be made out of the zakah money. However, if these
things are given to a poor person (entitled to receive zakah) by making him
the owner of a computer, or of the building, the obligation of zakah is
discharged.1
8
ZAKAH ON AGRICULTURAL PRODUCE
1. In other words, there must be an unconditional transfer of ownership from the zakah payer to the
recipient (natural person) who must be entitled to use or dispose of the property for his own benefit.
(EDITOR)
51
The initial input in the case of agriculture is lesser than the initial
investment in stocks, and the rate of output is greater in agriculture than in
stock. There may be some exceptions to it, but the rules are always framed
according to the normal conditions and not on the basis of exceptions.
A salary-earner has an advantage only when he does not invest his
money in any type of trade, nor does he keep the surplus with him. This can
only be imagined where the income is so little that he can neither save it nor
invest it in a profitable business, and his salary suffices only for his
personal needs. Zakah is not payable in such circumstances. He cannot
be compared with a farmer who cultivates land for productive purposes.
However, if the produce of a farmer is so little that there is no surplus after
providing food for his family, zakah is not payable according to the majority
of the Muslim jurists.1
1. Those who have shares in listed or unlisted companies may choose to pay zakah by determining the
actual zakatable assets and the value thereof by reference to the relevant companie's accounting records.
This may result in a saving, as compared to paying zakah on the market value of the shares themselves.
The zakatable assets of a trading company is normally represented by cash plus book debts plus stock in
trade, less, liabilites, calculated as at the valuation date. (EDITOR)
52
Nisab and he shall calculate his zakah on the basis of the valuation of his
assets on that date each year. For example, Mr. A became Sahib-e-Nisab
for the first time on the 1st of Muharram in 1408 A.H. Now, he shall
calculate his zakah on the 1 st of Muharram in 1409 A.H. if he is still Sahib-
e-Nisabon that date. Thus, the first of Muharram is his valuation date for all
the following years as long as he remains Sahib-e-Nisab. He will calculate
his zakah on the first of Muharram each year.
If he does not remain Sahib-e-Nisab on the first of Muharram in any
of the following years then the first of Muharram will cease to be his
valuation date. Therefore, if he acquires the nisab once again, the zakah
will be subject to the new valuation date i.e. the date on which he acquires
the nisab second time.
Consequently, in the above example if "A" remained Sahib-e-Nisab
upto Ramadaan 1410, then he lost the Nisab, he will not value his assets
for the calculation of zakah on the first of Muharram 1411, because he is
not a Sahib-e-Nisab. However, if he acquires the nisab once again on the
first of Rabi'ul-Awwal, 1411, and remains as such on the first of Rabi'ul-
Awwal 1412, he will value his assets on the first of Rabi'ul-Awwal 1412,
which will be his new valuation date. This new date will remain effective as
long as he remains Sahib-e-Nisab on this date each year, and will change
only when he ceases to be Sahib-e-Nisab on the first of Rabi'ul-Awwal in
all of the following years.1
10
ZAKAH ON ZAKAATABLE ASSETS
Q.2We have some stock in our shop along with some fixtures,
furniture, etc. We have some cash-in-hand, some bank balance,
1. Changes in value of nisaab during the year will not affect liability. (EDITOR)
2. What would a willing purchaser pay a willing seller for the stock if sold as a whole in one single
transaction on the valuation date. (EDITOR)
53
some receivable amounts and some payablo dobts. On whnt nr.sots out of
these categories should we payZakah and at what rato ?
A Zakah\s not payable on the fixtures and tlio fumiluro ol tho shop. You
f \ should pay Zakah only on the stock, cash-in-hand and on your bank
balance. The amounts receivable from your customors are also liable to
Zakah. You can pay Zakah on these receivable amounts either at the end
of each year or after you actually receive them from your dobtors. But in the
latter case if you receive these amounts after more than one year, you will
have to pay Za/rabforall the preceding years also. So, it is more advisable
to pay Zakah of all the receivable amounts each year together with the
other zakatable assets.
The rate of Zakah in all those assets (i.e. tho stock, tho cash in hand,
the bank balance and the receivable amounts) is 2.5 percent of their value.
As for the debts payable to creditors, you can deduct their total
amount from the value of your zakatable assets, Zakah not being payable
on these liabilities.
0.3What should be the basis of valuation of our stock for the purpose
of Zakah? Should we calculate the value on the basis of our cost
price or on the basis of the present market price?
A Zakah is always payable on the current market price of each
zakatable asset.2
Q.40n which of the following assets of an industry, Zakah is payable?
Land, building, machinery equipment, warehouse, raw material,
finished goods, cash in hand, bank balance, amounts receivable, transport
vehicles?
A The following assets of an industry are subject to the obligation of
Zakah:
a) raw material
b) finished goods
c) cash - in - hand
d) bank balance
e) amounts receivable, subject to the details given in answer to
the question no. 2.
1. This is the Hanafi view which in specific situations may result in the non-payment of zakah. Hence, the
learned author has adopted the Maliki view. Imam Zufar, a Hanafi jurist, is also of the same view. (EDITOR)
54
The following assets of an industry are not subject to Zakah unless
they are purchased with an intention of selling them again:
a) land
b) building
c) machinery/equipment/fixtures and fittings
d) warehouse
e) transport vehicles
Q.5Can the amount of loans taken by an industry from the banks be
deducted from the value ofzakatable assets?
A The general principle is that all the loans payable can be deducted
from the value of zakatable assets when calculating the amount of
Zakah.1 But in modern conditions, if the amount of the loan is utilized in the
construction of a building, or in the purchase of machinery or in the
purchase of any other asset exempt from Zakah, like fixture and furniture,
the amount of such a loan should not be deducted from the total value of
zakatable assets.
Q.6We have some export licences and some import permits. They
are either obtained from the government free of charge or
purchased from the market. These permits and licences have value in the
market which fluctuates according to the market forces. Should we pay
Zakah on the value of such licences or permits?
Zakah is not payable on export or import licences.
1. This view must be reconsidered because taxes which are due and payable on the valuation date are
debts, to the extent that if the relevant assessment is not paid, the government is given extraordinary
powers to recover the debt by obtaining judgement and levying execution against the assets of the
taxpayer. An ordinary creditor may waive his claim, but the government does not have the power to do so in
terms of income tax legislation. There must, however, be a valid assessment issued by the Revenue
Authority on the valuation date, for the amount thereof, to be deducted. The assessment is a genuine
demand for payment. (EDITOR)
56
Bungalow/House is purchased or built with the intention of
resale, then Zakah will be payable on it's market value.
b) A loan taken against the Bungalow/House can be deducted
from the Zakatable amount,provided the Bunglow/House is
for sale.
Q.2 Is 'Zakah' payable on Furnitures, Fixtures, such as Electric
Equipment, Airconditioners, Carpets, Crockery, Furniture, etc. ?
If payable, should it be on the Cost or on the Market Value?
A Zakah is not payable on furniture, electric equipment,
airconditioners, carpets, crockery, and other items that are for
household use.
Q.3 Is 'Zakah' payable on Bungalows/Houses or Flats which are
given on rent or which remain vacant.
If payable, should it be on the original cost or on the market value?
A Zakah will be paid only on the rent earned from the properties owned
. Zakah will not be paid for vacant property, unless procured for
resale purposes; more specifically, for the sale of such assets.
Q.4 Is 'Zakah' payable on the cost or the market value of an
investment made in open land (Residentialplot)?
A If the residential plot is purchased for the purpose of resale then
Zakah will be payable at the market value, but if the plot is acquired
lor purposes otherthan being resold then Zakah will not be payable.
.5JEWELLERY
58
company will be impermissible. He must refuse to accept such sums or
distribute it to those entitled to receive Zakah.
b) The "prize bond" and other investment instruments of the
NDFC are in direct conflict to the injunctions of Islam. Any returns earned
from such investments will resultantly be classified as impermissible.
Zakah will be paid on the face value of the bonds and certificates issued by
the NDFC (National Development Finance Corporation - Pakistan).
If Zakah is paid at maturity, then Zakah will have to be
discharged for the previous years as well.
Any profit, prize or interest received on these bonds or
certificates would be Haraam, hence not liable to Zakah. Yet the entire
amount of this profit, prize or interest should be given as Sadaqah to
anyone entitled to recieve Zakah.
c) The Zakah deducted on NIT Units (National Investment Trust
- Pakistan) each year, need not be re-given, provided that Zakah is
deducted on both the face value and the profit.
As for the Khas Deposit Certificate, profits given on them are
impermissible in Shariah. Zakah is therefore payable on the face value of
such certificates. Profits earned on them are of interest and should
therefore not be accepted. Anyone receiving such sums should distribute
them to those entitled to receive Zakah.
d) Yes, if Zakah has not been deducted by the company, you are
under obligation to pay Zakah on the market value of the shares. You can
deduct from the Zakatable Value a proportion equivalent to that of the fixed
assets of the company (which are non-zakatable). If it is difficult to
ascertain that proportion, then it would be advisable to pay Zakah on the
total market value of the share.
Q.7a) We have a firm which does import and export business. This
firm also invested in a Building. The building stands in the name of a
Partnership Firm. Part of the Building is given to a factory on rental basis.
b) Is 'Zakat'payable on the Building Value? Also whether on the
original cost of the Building, the Depreciated Value or the Current Market
Value?
A a) As mentioned earlier, if the building is not acquired or built
with an intention to re-sell it, then no Zakah will be payable.
Only such part of the rent shall be liable to Zakah which
stands in your balance on the Zakah valuation date of each year and which
59
has not been spent.
b) However, Zakah shall be paid on it's market value if the
building is acquired or constructed with a clear intention of re-sale. In which
event, it becomes stock-in-trade.
12
ZAKAH ON DIAMONDS
(V s® atf*j 'S
"There is no Zakah on a stone"
(1) Although some of the reporters of this hadith are not reliable, yet the report is corroborated by 'Ikrimah.
60
On the basis of the above, the overwhelming majority of the Muslim
jurists are of the view that precious stones are not subject to the levy of
zakah unless they are acquired for the purpose of resale.
There are, however, some jurists like Imam Ahmad who believe that
all precious stones are liable to zakah, even if they are kept for personal
use (2).
Therefore, if somebody pays zakah on the value of these stones, it
will be free from all doubts and will promise more reward. But so far as the
mandatory nature of the levy is concerned, the view of the majority is
supportive of non-obligation of zakah, because they are neither money nor
a universally accepted medium of exchange. Moreover, the value of
precious stones depends on their scarcity and rareness. They have no
intrinsic value. Therefore, they are like valuable antiques or manuscripts
which, on account of their rareness, sometimes have more value than
gold. Still, they are not subject to zakah unless they are purchased for
trade or resale.
Likewise precious stones may have more value than gold. Yet, the
obligation of zakah is not imposed if they are not meant for trade.
Fasting (Saum)
Page
1. THE FAST OF 15th SHABAAN 65
2. BLEEDING FROM THE THROAT DURING THE
FAST 69
1
THE FAST OF 15^ SHA'BAN
Ql have read the Sha'ban issue of your magazine AL-BALAGH
certain questions are bothering me with regard to fasting on the
15th of Sha'ban.
I would like to explain the reason for this question. Several months
ago a friend explained to me that there is no special significance of the fast
of the 15th of Sha'ban. However, he says this Hadith is absolutely weak to
such an extent that one of its narra tors was a person who was regarded by
some scholars of Hadith as a fabricator of Hadith and a liar. Hence, he says
that, until another reliable Hadith can be found the fast of the 15th of
Sha'ban has no special virtue. He also explained to me the following
points:
(1) He has not come across any of the Fuqaha having even mentioned
fasting specifically on the 15th of Sha'ban; whereas they have mentioned
the fasts of 'Aashura and the six fasts ofsha wwal etc.
(2) While it has been narrated in many authentic Ahadith that Rasulullah
(S.A W.) fasted for most of the month of Sha'ban, this cannot be used to
prove any special significance for the specific fast of the 15th of Sha 'ban.
He told me that those Ahadith must be explained as they are i.e. for the
entire month of Sha'ban - not the 15th of the month.
(3) The Hadith regarding visiting the graveyard on the 15th of Sha'ban is
much more authentic and reliable compared to the Hadith regarding
fasting on the 15th of Sha'ban. However, despite this the Ulema have
prohibited the people from making it a habit. Therefore, since a very great
number of people observe only the fast of the 15th of Sha'ban and regard it
as a sunnah, whereas the hadith in this regard is absolutely and totally
weak, the Ulema should stop the people from this also.
(4) When I suggested that what harm can there be if people observed this
fast even if in reality it is not sunnah or even Nafl, he stated: This is the way
many Bidat have started (though this practice is not a Bid'ah). Furthermore
this is a matter of "Aqeedah" and to regard something as Sunnah which in
reality is not Sunnah is a very dangerous and grave matter. Hence it is
necessary that either the act be proved Sunnah or else the people should
be stopped from this since, if they practice it they would do so regarding it
as a sunnah.
Hence I now wish to pose my questions.
65
(1) He has stated that this Hadith is "totally and absolutely weak" whereas
Mufti Sahib has stated that "the scholars of Hadith have some doubts
regarding the authenticity of this Hadith." Has he exaggerated in this claim
of "totally and absolutely weak"?
(2) Is it true that one of the narra tors was regarded as a fabrica tor and liar?
(3) Are his arguments in (1), (2), (3) and (4) above correct?
(4) On page 14 Mufti Sahib has written; "Although the scholars of Hadith
have some doubts about the authenticity of this report, yet it is mentioned
earlier that the fasts of the first half of Sha 'ban ha ve special merits. ..."I
have not found any narration in the article which explains the special
merits of fasting in the first halfofSha'ban. All the narrations deal with the
fasts of the FIRST HALFofSha'ban, please quote this forme.
(5) Mufti Sahib also stated the practice of the Salaf (elders). Who is meant
by "elders"?
(6) If it is accepted that one of the narrators was accused of being a
fabricator and a liar did the "Salaf" regard this Hadith as authentic "as is"
i.e. despite the condition of this narrator?
(7) Mufti Sahib has stated; "therefore, it is advisable to fast on the 15th of
Sha 'ban as an optional (nafl) fast" Most people regard this fast as
"sunnah "and not nafl. Is it incorrect to regard this fast as sunnah ?
(8) Is this nafl fast equal to keeping a nafl fast on any other day for
example, the 1st of January; whichever Islamic date that may fall on?
(exceptingRamadan, the W^ofMuharram, etc)?
I hope Mufti Sahib will quickly answer these questions and remove my
doubts and the doubts of many others here in this regard.
(Yousuf Desai, South Africa)
A I am grateful to you for your question which provided me with an
opportunity to revise my article and to study the subject in more
detail.
In fact, the fast of the 15^ of Sha'ban is based on a tradition reported by
Sayiddna' Ali. Its text runs as follows:
69
6
Page
1. SHAVING THE HEAD AFTER HAJJ OR UMRAH 73
2. PERFORMING UMRAH ON SOMEONE ELSES
BEHALF 73
3. HAJJ BECOMING MANDATORY AFTER
PERFORMING UMRAH 74
1
SHAVING THE HEAD AFTER HAJJ OR 'UMRAH
Q"ls it obligatory to shave all the hair of the head after performing Hajj
or 'Umrah, or a part of the hair can be cut? Please guide us with the
detailed information according to Fiqh-e-Hanafi."
(Muhammad Ashraf, Karachi)
Alt is not obligatory to shave one's head or to cut all his hair at the
conclusion of ihram in 'Umrah or Hajj. One can also cut his hair
instead of shaving it. The minimum requirement for coming out of ihram,
according to fiqh-e-Hanafi, is to cut one's hair at least to the measure of a
fingertip from all sides of one's hair. If one has cut his hair to this extent, he
can come out of ihram. However, if one's hair are too short, and he cannot
cut them to the measure of a fingertip, he will have to shave his head
without which he cannot come out of irham.
It should, however, be remembered that shaving the head is more
preferable and carries more thawab. It is reported by a number of
authorities that the Holy Prophet (S.A.W) has prayed to Allah thrice for
bestowing his mercy on those who shave their heads after performing Hajj,
while he prayed only once forthose who cut their hair.
2
PERFORMING UMRAH ON SOMEONE ELSE'S BEHALF
73
In fact, if a person wants to perform Umrah on his own behalf, he is
not under an obligation to perform another Umrah for any other person.
Similarly, if he wants to perform Umrah on behalf of some other person he
is not required necessarily to perform another Umrah on his own behalf,
neither before nor after the Umrah he performs for another person.
3
HAJJ BECOMING MANDATORY AFTER PERFORMING UMRAH
74
7
Family Law
77
(a) It is evident from a plain study of the relevant material found in
the Holy Quran and Sunnah that Islam treats the relationship of marriage
as a bilateral contract between husband and wife, each one of them having
some rights and obligations. The Holy Quran is very much clear on this
point when it says:
79
The Western countries are facing today a terrible situation of family-
break-down. Their leaders are mourning on this drawback, which is
caused by the lack of mutual cooperation between husband and wife and
their failure to determine the functions of the spouses according to their
natural, biological and religious requirements.
In short, a wife is not legally bound to render the household services,
however, it is advisable that she performs these functions as a measure of
cooperation with her family and an honorary service to the society as a
whole, for which she deserves great reward in the Hereafter.
• But at the same time, the husband should always remember that the
household work undertaken by his wife is not a legal duty obligated on her,
rather, it is a voluntary service she is rendering for the benefit of the family.
Therefore, a husband must always appreciate this goodwill of his wife and
should not treat it as a legal claim against her. Moreover, he should not
leave all the household works on her exclusively. The husband should
provide her with servants wherever possible, and should himself assist her
in performing these functions. It is reported in a number of authentic
ahadith that the Holy Prophet (S.A.W) despite his great outdoor
responsibilities, used to render many domestic services with his own
hands, like milking his she-goats, washing his clothes etc. We do not find
anywhere in his Sunnah that he ever ordered any of his wives to do such
works. However, his sacred wives used to render these services
voluntarily without any specific command from the Holy Prophet (S.A.W).
It is not correct that the books written on this subject stress upon the
obligations of a wife only. In fact all the books of Islamic jurisprudence
discuss the rights and obligations of both the spouses simultaneously. The
husband is required not only to provide maintenance, but he is also
required to treat his wife "fairly" as the Holy Quran has put it in express
terms, so much so that the Muslim jurists have observed that a husband
cannot travel for more than four months at one time without the permission
of his wife. But unfortunately many Muslims are not aware of the teachings
of their religion and, due to this ignorance, they commit errors in their
behaviour towards their wives.
2
SAVING FOR BURIAL EXPENSES
Q "Secondly, I see Muslims who save money to buy houses, cars,
vacation packages, send their children to the best colleges, and
afford the most elaborate Valimahs yet when Allah sends his angel of
80
death to retrieve their souls there is no money in their savings account to
pay for their funeral expenses. In fact most of the Muslims I ha ve spoken to
seem to believe it is the duty of the Ummah to bury its brother or sister or
child in Islam. Is this true? Are we not asked to save for our funeral
expenses?" (Ibid)
A This is not correct. The Muslims have been advised by the Shari'ah
not to be involved in any kind of extravagance. Moreover, the Holy
Prophet (S.A.W) has advised the Muslims that instead of spending all their
money in their life-time, they should leave a substantial part of it for their
inheritors, so much so that they cannot make any will for charitable
purposes in excess of 1/3 rd of their property. The Holy Prophet (S.A.W)
while explaining this rule of Shari'ah, has observed in the following words:
QAnd lastly, more and more Muslim brothers are marrying and cannot
afford to support a wife. Their families either become a ward of the
government or they experience a life of meagre subsistence. In fact we
know of one sister whose husband was injured on his job. he was awarded
a small sum of money on a monthly basis by the government. The money is
not enough to maintain his family. Yet! although he is not disabled to the
point where he cannot work - he refuses to look for a job to bring in
additional income to support his family. He claims he is doing Allah's work
since he is out to invite every person he meets to embrace Islam and will
not withdraw from Allah's work for the dunya. Whose duty is it, then, to
support his family? Or can the sister request a divorce based on her
husband's inability to support his family. (Ibid)
Every Muslim is duty bound to earn livelihood for himself and for the
81
dependant members of his family. This is not a mundane duty only, but it is
a religious obligation also. The Holy Prophet (S.A.W) has said:
Jju •LJvjS d JAswJI >— ■ .X
"To earn the lawful livelihood is a religious duty after the
religious obligations (like prayers, fasting etc.)
Since the dependant members of his family are entitled to get
maintenance from a Muslim head of the family, he cannot avoid his
economic responsibilities on the pretext that he is engaged in religious
work. He should provide his family with their necessary economic
requirements and then he can devote the rest of his time to the work of
Tabligh. If he fails to discharge his duty in this respect and the wife has no
other source of livelihood, she can approach a Muslim court1 for the
dissolution of her marriage from her husband who does not give her the
proper maintenance.
4
MARRIAGE WITH CHRISTIAN AND JEWISH GIRLS OR BOYS
5
ADOPTION OF A CHILD IN ISLAM
6
MARRIAGE ON TELEPHONE
1. Such a bequest to a non-heir is known as WASIYAH and must not exceed one-thirds of the estate after
payment of debts.
84
both offer and acceptance. This necessary condition cannot be fulfilled in a
telephone conversation.
However, if A wants to marry B without both being present at one
place, he can authorize any one of his friends or relatives living in Karachi
to contract his marriage and appoint him his agent to pronounce offer or
acceptance on his behalf. If, for example he selects C to be his agent for
this purpose, he should authorize him in the following words:
"I authorize you to contract my marriage with B, daughter of D, on a
sum of as dower."
Then, at the time of marriage ceremony in presence of at least two
male witnesses, the girl may pronounce her offer saying, "I married A, son
of Eon a sum of.... as dower." If there is a Qadi or a Nikah Khwan duly
authorized by the girl, he can also pronounce offer in the following words:
"I gave B, daughter of D in marriage with A on the sum of.... as
dower."
C, the agent of A, will say in reply, "I accepted this marriage on
behalf of A."
The offer can also be initiated by C as an agent of A. In this case he
will address B in the following words:
"Being a duly authorized agent of A, I marry A, son of G, to you on a
sum of as dower."
In this case B will reply, "I accepted this marriage."
In both cases, it will be a valid contract between A and B, whereafter
they will be treated as husband and wife duly wedded to each other
according to Shariah.
7
CAN A WOMAN BE MARRIED FOR HER BEAUTY?
8
THE USE OF LOOP AS A MEANS OF BIRTH CONTROL
87
against fertilization, it is similar to any other contraceptive and the rules
regarding 'AZAU (coitus interruptus) may be applied to the loop also, i.e.
its use is permissible in Shariah in cases of individual needs, like the
sickness or the weakness of the woman where pregnancy may endanger
her health.
In the second case, however, the rules of 'AZAL' cannot be applied,
because in that case it is not merely a preventive measure, but it expels the
fertilized ovum from the uterus after conception. Therefore, it acts as a
device to effect an abortion. Hence, the rules of abortion shall apply.
According to the Islamic rules, an abortion is totally prohibited, if it is
effected after the completion of 12 weeks1 after conception. But at an
earlier stage, abotion is permissible only for medical reasons and other
genuine needs.
As the loop expels the fertilized ovum within two weeks, its use
cannot be held as prohibited totally. However being a device of abortion, its
use is not advisable and it should be restricted to the cases of the real
medical needs only.
1. Should read 120 days after conception, when the foetus has developed into a human being. Some
contemporary jurists are of the view that the rule that abortion is totally prohibited after 120 days is subject
to one exception - if the life of the mother is in serious danger, then an abortion may be effected to save her
life. (EDITOR)
88
8
Economics
Page
1. EXCHANGE OF CURRENCIES AND DISCOUNTING
OF BILLS 91
2. THE LEGAL PROFESSION 95
3. PERMISSIBILITY OF CERTAIN FINANCIAL
CONTRACTS 96
4. FUTURES CONTRACTS ON STOCK EXCHANGE 96
5. THE ACCOUNTING PROFESSION 101
6. RIBA, ITS MEANING AND APPLICATION 108
7. THE DOLLAR JET GAME 110
8. INHERITANCE OF A RUNNING BUSINESS 112
9. DECREASING PARTNERSHIP AND HOUSE
FINANCING 115
10. AUTO FINANCE 115
11. CREDIT CARDS 115
12. WORKING IN HOTELS SERVING LIQUOR AND
PORK 118
13. A WILL OF MORE THAN ONE THIRD OF THE
PROPERTY 120
14. THE INSURANCE OF CARS 121
15. COPYRIGHT IN ISLAM 123
Page
(1) If the currencies are of the same country, they cannot be sold at a
rate different from their face value. However, if the currencies are of
different countries, they can be sold on spot at whatever rate agreed upon
91
between the parties which can be different from the market rate. However,
if the payment is deferred on either side, it must be in accordance with the
market rate. This condition is put to restrict the use of this transaction to the
genuine needs, otherwise it may be taken as a device to effect riba
transaction. The details of the rules regarding the transaction of currencies
are available in my Arabic bookAkhamAI-AuraqAI-Naqdiawhich has also
been translated.
(2) The discounting of bills of exchange even in different currencies
is not permitted in Shari'ah. The reason is that a Bill of Exchange stands for
the amount of the bill which is a debt payable by a seller. If it is sold or
purchased for cash, it means that two currencies are being exchanged
where the payment at one side is deferred and I have already mentioned in
answer to question No.1 that if the payment is deferred on either side, the
price should not be different from the market spot rate.
(3) The promise to sell/purchase is merely a promise. It does not
effect the contract of sale itself, therefore, no rights or obligations of a sale
can arise out of a promise only. Hence no party can ask for security or a
collateral for the fulfilment of a promise. Because the security or collateral
is justified only where a liability or a debt has actually come into existence
while in the case of promise no debt or liability is created. It is only an
undertaking to sell/purchase a commodity in future. When the actual sale
occurs on a deferred payment basis the debt will be created and at that
time it will be justified to ask for a security.
(4) If the bank has been made an agent to collect the amount of a Bill
of Exchange on behalf of its client it is permissible forthe bank to charge a
fee for this service. The fee may be determined by the parties on whatever
basis they agree upon. However, it should not be tied up with the period of
the maturity of the bill. With this condition this transaction will not,
hopefully, be instrumental to charge interest.
(5) In a Musharakah contract the parties may agree on a ratio of
profit different from the ratio of their investment with the only condition that
a partner who in expressed terms, relieves himself from the liability to work
for the partnership cannot claim a ratio of profit higher than the ratio of his
investment, for example, if'A' has invested 60% of the capital while 'B' has
invested 40% the parties can agree that 'B' will get 60% of the profit and 'A'
will get 40% of the profit. However, if 'B' has, in expressed terms, put a
condition in the contract of Musharakah that he will never work for the
enterprise, he cannot claim more than 40% of the profit.
(6.a) A lessee can sub-lease the property to a third party with the
92
permission of the lessor, if the rent charged by him from the sub-lessee is
equal to the rent payable by him to the original lessor. This sub-lease is
permitted with the consensus of all Muslim jurists. However, if the lessee
charges from his sub-lessee a rent more than the rent payable by him to
the original lessor, it is not permissible according to Imam Abu Hanifah, but
it is permissible according to other Imams.
(6.b) It is permissible to stipulate in a contract of Istisna that price
would be reduced by a specific amount per day upon delay in delivery by
the seller. The contemporary scholars of Islamic Jurisprudence have
allowed this type of contract on the basis of the following ruling given by the
classic Fuqaha:
L— ^3 "iM Jj JjJ
~ — (<Jl ^ jd -Obojj) . • ji
( Y a^ ^ • >' V I JsCji
1. Mudarabah is a distinct class of partnership in terms of which the one party, called the rabbul maal,
hands over capital to another, called the mudaarib, on the basis that the mudaarib trades with such capital
and the resultant profits (if any) are shared between them in pre-agreed proportions (such as two-thirds to
the rabbul maal and one thirds to the mudaarib).1
The essence of this class of partnership is that it is a partnership relating to profit only. The mudaarib is
entitled to profit in accordance with the agreed profit sharing ratio by reason of his labour, and the rabbul
maal is similarly entitled to profit as a return on his capital. It follows that ordinarily, in the absence of defined
negligence and/or breach of contract, the losses of the partnership will be offset against accrued profits,
and thereafter against capital. It also follows that the contract of mudaarabah will be void if the agreement
93
stipulates that the rabbul maal must work together with the mudaarib.2
Mudaarabah is a unique class of partnership in that it brings together both capital and labour and employs
them productively in business. A person has the capital but not the skills and expertise, whereas another
has the skills and expertise to conduct business but not the capital. There is therefore a genuine need to
recognise such a partnership which was prevalent at the time of the Holy Prophet (SAW). He confirmed its
validity and the noble companions (may Allah be pleased with them) transacted on the basis ol
mudaarabah. The jurists are accordingly unanimous (I JMA) in regard to its validity.3
The contract of mudaarabah itself is concluded by offer and acceptance, or by the use of words which
indicate that the parties intend to conclude a contract of mudaarabah. For example, the rabbul maal says
to the mudaarib: "Take this capital (e.g. R100,000.00) for the purposes of mudaarabah, and expend labour
on the basis that the resultant profits will be shared equally", or the rabbul maal says: "Take this cash and
treat it as capital, and the profits will be shared equally between us" and the mudaarib accepts the offer."
Upon conclusion of a valid mudaarabah contract, the following legal consequences arise and attach to the
mudaarib:
a) the mudaarib, in receiving the capital from the rabbul maal, is a trustee (AMEEN) in the
sense that he is not5ordinarily obliged to compensate the rabbul maal in the event of loss or
destruction thereof.
b) the mudaarib, in commencing his labours, is an agent of the rabbul maal in dealing with arc
disposing of the5 property because he does so on his (the rabbul maal's) instructions as the
ownerthereof.
c) the mudaarib, if he makes a profit, shares therein by reason of his labour, and because the
object of mudaarabah is to make a profit.
If, on the other hand, the contract of mudaarabah is void for any reason, then the mudaarib is entitled tc
remuneration for his labour equivalent to the market rate. If the mudaarib breaches a valid condition of the
contract of mudaarabah, then he is strictly liable to make good any loss because he has dealt with the
property of another without authorisation.7
The contract of mudaarabah may be general without any limitation as to duration, or class of business t:
be conducted, or place where such business is to be conducted, or otherwise as to the category c'
suppliers and merchants to be dealt with. The contract however may be limited as to any of those matters
The rule in this regard is that the rabbul maal may impose any condition in the contract which is beneficia
to him, and the mudaarib is bound to observe such condition otherwise he will be in breach of contract.
the condition is of no benefit to the rabbul maal, then the condition itself will be invalid without affecting the
validity of the whole contract.8 (EDITOR)
QYou are a Judge in the Federal Shariat Court and a well versed
person in Islamic Law and concepts. Considering this background
of yours I thought you could answer or help me out in following points:
1. Is the present profession of advocacy repugnant to the Islamic
Judicial System, because in that you need not pay fee or hire a lawyer to
conduct your case.
2. The same question with regard to legal consultancy/advisor.
3. Is it the govt. in an Islamic state who should provide full legal
assistance in respect of any matter.
4. Can the doctrine of necessity be extended in the above case
considering that legal system has gone complex or developed too much.
5. In view of above points is the profession of Advocacy etc. 'Halal'
or 'Haram' under Islamic Law.
Sir, these are the points which are agitating in my mind. I hope sir,
sparing some time you would throw some light on these points. I shall
really be thankful to you for this kind gesture. (Muhammad Subhan Butt).
A1 & 5. The profession of advocacy, in itself, is not prohibited. This is
a service rendered to the client for which an advocate can charge a
fee. However, this permissibility is subject to three conditions. Firstly, a
Muslim advocate is not allowed to plead the case of a person whom he
believes to be unjust. Therefore, if he knows that his client has committed
an offence he is not allowed to plead for his innocence. The Holy Qur'an is
very clear on this point where it says:
"And do not be an advocate for those who have committed breach of
trust."
Nevertheless it is not impermissible for an advocate to plead for any
concession given to the culprit under the law, for example, in the above
case it is not allowed to plead for the innocence of an offender, however, it
is permissible to plead for reduction of his sentence on the grounds of
genuine mitigating circumstances. Secondly, it is not allowed for a Muslim
advocate to help his client in claiming a right which is disapproved by the
Shari'ah, for example, if a person wants to sue his opponent for recovering
usury or interest, a Muslim advocate cannot plead his case to that extent.
Thirdly, a Muslim advocate is not allowed to use prohibited means to
95
advance the case of his client like false statement, forged documents etc.
Subject to these three conditions the profession of advocacy cannot be
termed as repugnant to the injunction of Holy Qur'an and Sunnah?
2. Whatever has been stated above with regard to the advocacy is
equally applicable to the profession of legal consultancy.
3 & 4. There is no doubt that one of the basic responsibilities of
Islamic state is that it provides justice to its citizens without undue cost. It is
also advisable for it to provide full legal assistance to the people when they
need it to acquire justice. However, if the resources of an Islamic state are
not sufficient to provide this facility free of charge private legal consultants
and practitioners may render their services by charging a fee from their
clients but of course all these are subject to the three conditions already
explained in answerto Question No.1.
3
PERMISSIBILITY OF CERTAIN FINANCIAL CONTRACTS
I have attempted to give examples of some financial contracts which
can be used for various purposes - for risk reduction or hedging and
speculation involving options, futures, and swaps; and direct and indirect
investment in equity. Kindly let me know to what extent these are
permissible under Islam.
4
FUTURES CONTRACTS ON STOCK EXCHANGE
1. On the contrary, a Muslim Lawyer who represents a client, whose complaint is just, will
be rewarded if he seeks to achieve justice for his client and recover his or her legitimate
entitlement. (EDITOR)
96
commonly held belief is that future contracts are prohibited when they are
used for speculation. Does this imply that futures contracts are permissible
when these are used for hedging?
A leading Islamic Bank's Annual Report shows that the bank
entered into futures transaction for hedging its foreign currency risk. One
view is that such hedging may be justified in view of extreme volatility in
currency markets, (in my correspondence with a top executive of the said
bank, I was given the reference of a book, Islamic Law and Finance by
Chibli Mallat, I still do not have access to this book).
2. An example of an option contract in shares:
i) Two individuals, A and B enter into a contract on 1 st January 1996
under which A grants a right to B without any obligation on B's part. B under
the contract, gets a right to purchase a share of Company X from A any
time on or before 30th June 1996 at a price of $100 (irrespective of the
market price on the day of purchase). B, however, does not have any
obliga tion to purchase.
A accepts a consideration of $5 from B for granting him his right
without obligations. This is called a call option in shares.
ii) A and B enter into a contract on 1st January 1996 under which A
grants a right to B without any obligation on B's part. B, under the contract,
gets a right to sell a share of Company X to A at any time on or before 30th
June 1996 at a price of $100 (irrespective of the market price on the day of
purchase). B, however, does not have any obligation to sell.
A accepts a consideration of $5 from B for granting him this right
without obligations. This is called a put option in shares.
Hi) A and B enter into a contract on 1st January 1996by which A sells
100 shares of Company X at a price of $100 per share. The transaction is
settled with exchange of cash for the shares. A also grants a right to B
under which B can sell back the shares to A on the expiry of six months,
that is, 30th June 1996 at a price of $120 per share. This right however, is
cancelled if the price of the share increases beyond $120 and remains at
that level for 21 consecutive days before 30th June 1996.
Unlike the previous two instances of transactions in pure options,
the above is a case of option as an additional feature of an equity sale and
purchase.
iv) If the object of transaction is any commodity, or gold, or silver, or
currency and not share as in the above three cases, in what way the
97
validity or otherwise of the contract is affected?
3. An example of an Islamic swap used by some Islamic banks:
Two banks enter into an agreement to exchange deposits for a
period of six months in different currencies on 1st January 1995 at the
prevailing exchange rate. Bank A exchanges Rupees 30 million with Bank
B for US Dollars one million, and the Rupee-Dollar exchange rate
prevailing on the date is 30:1. During these six months, each bank utilizes
the deposits it received at its own risk. At the end of six months, Bank A
pays back one million dollars to Bank B and receives Rupees 30 million
from it irrespective of the Rupee-Dollar exchange rate prevailing on June
30, 1995, for example, the Rupee-dollar exchange rate might have
become 35:1 or 25:1 on June 30, 1995. Is this contract Islamically
permissible?
4. Examples of direct and indirect investment in equity:
i) Company A raises funds by selling shares and interest-bearing
bonds and invests all funds in predominantly halaal and profitable
activities. Is it permissible to purchase shares of Company A for an
individual?
ii) Company B raises all its funds by selling shares and invests all its
funds in shares of Company A above and similar companies. Is it
permissible for an individual to purchase shares of Company B ?
Hi) Company X sells financial securities on which it promises
dividends at a rate of 10 per cent on its total sales during the year. Is it
permissible to purchase these securities where dividends are paid as a
predetermined proportion of sales revenue and not profits?
5
THE ACCOUNTING PROFESSION
Situation 1
Q(a) The client hands over his bank statements to the accountant.
From the bank statements the accountant records any interest
charged by the bank or credited by the bank to the client.
(b) What is the position of the auditorwho does not himself make the
entries but merely checks to see if they are correctly recorded and reports
thereon. The report of the auditor is to the shareholders and not to the bank
who may also use the financial statements to assess the financial position
of the business.
It should be noted that the transactions of interest have already
been concluded by the bank and the customer. The historical information
is then handed over by the customer to the accountant for the purpose of
compiling books of accounts. These books of accounts are necessary in
order inter alia to submit proper tax returns to the revenue authorities in
terms of the taxation laws of the country. The question arises whether the
accountant commits a breach of Islamic Law when he compiles the books
of account. Is he regarded as scribe / writer of interest in a situation where
he is not a party to the transaction of interest itself?
Situation 2
An accountant is working for a company. The company charges its
debtors interest on their overdue accounts. The accountant is instructed
by the directors, as part of his functions, to make appropriate entries in the
records of the company in terms of which interest is charged on certain
overdue accounts.
The question arises whether it is permissible in Shari'ah for such an
101
accountant to:-
(2.1) become involved in this manner in the charging, preceding
and execution of interest on overdue accounts.
(2.2) remain employed with such an employer who charges interest
on overdue accounts.
(2.3) receive a salary which is considered as halaal in Shariah from
such a company, a small portion of whose income is represented by
interest collected from debtors.
Situation 3
The accoutant working for a company writes out the cheques of the
company. At times the amount recorded on the cheque includes an
amount for interest.
(3.1) What is the position of the person who issues out such
cheques?
(3.2) Also what is the position of the signatories to such cheques?
It must be noted that the accountant himself was not an original
party to the transaction of loan which gave rise to the interest obligation.
In certain circumstances, even the signatory was not an original
party to the transaction.
Situation 4
A motor vehicle salesman sells a vehicle to a customer. The
customer finances the vehicle through the bank upon which he pays
interest. The salesman in most instances has to assist the customer in
completing the application for finance to the bank by filling in details on
behalf of the customer. Some application forms also have a place for the
signature of the person who assisted the customer in completing his
application. Will this assistance to the customer be impermissible? Does
the salesman also become a witness to this interest transaction merely by
assisting to complete the application? It should be noted that the
financing transaction is distinct from the sale transaction and it is solely
between the customer and the bank.
Situation 5
Advising on financial options
A client comes to the accountant seeking advice of the best option
with regards to undertaking a certain business venture or the acquisition /
purchase of an asset. Among the various options which the accountant
advises him is the option of financing via a bank whereupon he will be
102
charged interest.
(5.1) What is the position of advising with regards to such an option?
(5.2) If the client is a non-Muslim, will it make any difference?
(5.3) What is the position if the bank leases the asset and
profit/rental is based on a fluctuating rate of interest?
Situation 6
For the purpose of reducing the client's taxes, various schemes are
adopted. A simple practical example is where several persons (most often
immediate family members) are made partners in the business. Part of
their profits are accumulated in the business as further investments. For
tax purposes these investments are reflected as "loans" from the
respective people. Similarly, the net profit that is due to them on these
investments is also reflected as "interest" to such people. In reality there is
no loan or any interest. It is in fact the capital introduced and profit paid.
These are just merely terms adopted in order to save taxes and to comply
with the taxation laws of the country. What is the position of the accountant
with regards to the recording of such "interest in the light of the
aforementioned hadith ?
It must be noted that these are fictituous records whose source is
profit or rentals.
Situation 7
A person working for a non-Muslim company invests surplus funds
on instruction, in interest bearing securities. What is his position in relation
to the said hadith?
Situation 8
In South Africa most investments have some element of interest
particularly those controlled by non-Muslims. As an example a syndicate
of 50 people may purchase a property. The property is controlled and
administered by non-Muslims and a small portion of the income may be in
the form of interest - probably less than 5%. If one disposes of the
proportion of interest attributable to him, will he be absolved? Similarly,
how would one handle investment in a listed company on the Stock
Exchange which is engaged in Halaal activities but may be involved in
payment or receipt of interest as well.
Further Questions
1. With regards to those situations which clearly fall under the
prohibition of recording interest, is there any way out of this by avoiding the
103
prohibition and still getting the work done?
2. If the client's business activities are mostly of a nature which the
Shariah has declared forbidden, such as he sells liquor, or trades in meat
not slaughtered according to Islamic rites, can the Muslim accountant
undertake to do his books?
3. A Muslim accoutant works for a non-Muslim company which
deals generally in Halaal merchandise, but also sells some Haraam items,
such as liquor, etc. Is he committing any Shah' violation in recording the
transactions pertaining to the Haraam items?
4. Is it permissible to work as an accountant or auditor for the
revenue authorities of a country which is responsible for levying and
collecting taxes?
5. Is it permissible for a Muslim accountant to enter into a
partnership /association with a non-Muslim acountant?
6. What advice can you give to accountants in general pertaining to
their profession?
(Muhammad Shoaib Omar, South Africa)
Alt is true that according to a well-known hadith those who invoke the
curse of Allah with regard to a transaction of Riba (interest or usury)
includes a person "who has written the interest". However, this Hadith
refers to the scribe of the transaction i.e. a person who has written an
agreement or prepared the document to evidence the transaction. It does
not include a person who was not involved in the transaction itself in any
way, but while preparing the accounts of a person, has come across
reference of the Riba transaction and has recorded it as an event which
already happened without his involvement. This is how the scholars have
interpreted the Hadith. To quote Hafiz Ibn Hajar:
104
agreeable to it. However, if a person who has written the
interest as matter of fact or has witnessed the occasion to
testify the event as it occurred to facilitate a just action about
it, then this is a good intention and is not covered by the
warning mentioned in this Hadith. The reference in this Hadith
is only to a person who has helped the relevant party in the
transaction ofRiba by writing its agreement or being a witness
to it."
Al-Ubbi, the famous commentator of the Sahih of Muslim has
explained the Hadith in the following manner:
j ^^ JlSjb j
^ jj ^Vl (O ^ * J "i* ^^ 5*
(tv^ : 1
"By the word "writerof Riba" the Hadith intends the scribe of
the documents evidencing the transaction ofRiba, and by the
word "witness" it means a person who attended the occasion to
become a formal witness in support of the transaction... The
Holy Prophet (S. A. W) has held them all as equal in sin
because the transaction took place with their joint efforts."
It is evident from these references that it is the writing of the
document of Riba which invokes the curse of Allah and not its subsequent
recording in a statement of the facts already happened. Therefore, the
case of an Accountant of a firm or a company is different from the person
who is directly responsible for the operation of interest. So far as the
Accountant is not involved in initiating, proposing or helping in the
transaction itself, he will, hopefully, not invoke the curse of Allah by merely
recording the transaction in the books of account or in a financial
statement. As a matter of precaution a Muslim should as far as possible
avoid this type of recording also, however, it does not fall in the category of
the clear prohibition.
In the light of the above discussion all your questions are perhaps
answered. However, for the purpose of more clarity I give you a brief reply
to each question seriatim:
1. In both situations (a) and (b) the Accountant does not provide any
help to the transaction itself, rather he records the facts as they occurred or
checks the correctness of their recording. Therefore, it does not directly fall
within the ambit of the warning of the Hadith.
105
2. So far as the Accountant is not involved in charging interest,
claiming it from the debtor or pursuing him for that matter, merely making
entries in the books of account will not make him liable to fall within the
ambit of the prohibition stipulated in the Hadith. Unless the major part (at
least 51%) of the company is haram it is not prohibited to draw salary for
permissible services rendered to that company.
3. If the cheque is intended to be written or issued exclusively for the
payment of interest with a clear statement that this should settle the
amount of interest due on the issuer of the cheque, it is not permissible for
any person to write or issue such a cheque. However, if the cheque is
issued for the settlement of different liabilities of which interest is also a
part then the issuance or writing of such a cheque cannot be termed as
absolutely prohibited. This applies to both issuer and the signatories of the
cheque.
4. Of course, any assistance provided to the customer for obtaining
an interest bearing loan, including the filling of the application form for the
loan, is not permissible according to Shariah and it does fall within the
scope of the warning of the Hadith.
5. A Muslim cannot advise any one to opt for a financing based on
interest. According to the most authentic view, entering into a transaction
of Riba is prohibited, no matter whether the opposite party is Muslim or
non-Muslim. Therefore, the above ruling is applicable to that situation also
where the client is non-Muslim.
The ruling about the leasing transaction will differ from case to case.
The mere fact that the rental in a lease contract has been based on the
market rate of interest does not render the transaction unlawful. However,
there are certain other conditions which must be fulfilled for a valid lease
transaction that cannot be summarized in this letter.
6. It is the essence of the transaction only which is more important in
Shariah and not the nomenclature. Therefore, if investment is named as
"loan" or the profit is termed as "interest" it will in reality be neither loan nor
interest and therefore will not render the transaction unlawful. Specially,
when this terminology has been adopted to avoid or reduce taxes.
However, if the word "loan" is replaced by the word "finance" it will be more
appropriate according to Shariah, while no change is required in the word
"interest" because in a wider economic sense profit is included in interest
and the word "profit" can be used in that sense without being a false
statement. In view of the above there is no problem if an Accountant
records such amounts as interest or loans.
106
7. As mentioned earlier, direct involvement of a Muslim in a
transaction of interest is prohibited and comes under the purview of the
above Hadith. Therefore, it is not permissible for an employee of a non-
Muslim to invest his surplus funds, on his instruction, in interest-bearing
securities, because in this case the employee works as an agent for the
employer which is a direct involvement in the transaction of Riba.
8. If the interest is not among the main commercial activities of the
syndicate, rather it has accrued through interest-bearing deposits of the
surplus funds, it has the same status as that of shares of joint stock
companies. Therefore, it is permissible for a Muslim to become a part of
this syndicate provided that he tries his best to persuade the syndicate not
to be involved in any transaction of interest, and that the proportion of the
interest in the aggregate income of the syndicate is given by him to charity
without an intention of gaining Thawabthrough it.
107
6
RIBA. ITS MEANING AND APPLICATION
A I received your letter dated 27th January 1997 and apologize for the
delay in replying it. It was due to my overwhelming involvements
both here and abroad. I hope you will forgive me for this delay. The
questions you have posed have been discussed thoroughly in a number of
books written on the subject both in Urdu and English. If you wish to benefit
from Urdu writings I would advise you to read the following books:
" The Questions of Interest: Mufti Shafei (R.A.)"
" Islam & Modern Business: Mufti Tag/' Usmani"
You may also benefit from the book of Dr. Anwar Iqbal Qureshi,
titled "Islam and the Theory of Interest".
I think if you want to be very clear on this point you should at least
study these books. However, I am giving here very brief answers to your
questions:
1) The legal definition of any prohibited act is seldom given in the
Holy Qur'an itself. For example, wine has been prohibited but no definition
of wine has been given. Similarly, adultery, telling lies, back-biting and
bribery have been prohibited by the Holy Qur'an but the definitions of
these acts have not been provided. Reason for it is that all these concepts
were too clear in the minds of the addressees to need any such definition.
The same is the case of Riba. The concept of Riba was widely recognized
among the addressees of the Holy Qur'an and it is that concept which is
reflected in the legal definition provided for Riba either in the Hadith or in
the later literature of Islamic jurisprudence. According to this definition any
transaction of loan where the payment of an additional amount on the
principal is made conditional to the advance of such loan is called Riba.
2) There is no distinction in Shariah between advancing a loan to a
needy person or advancing it to a business concern. The principle is that
the person who advances money to another person should clearly decide
whether he wishes to assist him or he wants to share in his profits. In the
former case, he should withdraw from any claim of additional amount (in
the form of interest) while in the latter case he should share his loss also. It
is not permitted by Shariah that he claims profit but does not agree to share
his loss.
Another point which needs attention here is that the distinction
between a needy and a rich person in commercial matters is totally
109
irrelevant. If a Shopkeeper sells a commodity to a poor person with a
margin of profit which is not excessive nobody can say that this transaction
is Haram because of the poverty of the purchaser. One can say that it
would be more advisable for the Shop Keeper to give him the commodity
either as a charity or at cost without charging a profit but it cannot be said
that the marginal profit charged here is not Halal. If charging an additional
amount on a loan is not in itself Haram then the same analogy should have
been applied here meaning thereby that if a creditor charges a marginal
interest on the loan he has advanced to a poor person it should not be
condemned or declared as Haram, but even the modernists who hold the
commercial interest as Halal admit that this kind of transaction is Riba and
prohibited by the Holy Qur'an. It proves that the basis of the prohibition is
not linked to the poverty of the debtor. Had it been so, charging profit from a
poor person would also have been declared as Haram. Therefore, the only
basis for distinction between a sale and a transaction of Riba is that the
former relates to commodity while the latter relates to money.
3) There are several differences between interest and rent. The
basic principle of Shariah is that profit is justified where a person has
undertaken the risk of the thing given to another person. In a transaction of
loan, after advancing money, the creditor does not take any risk of the
money because if the money is lost in the hands of the debtor after he has
taken delivery thereof the debtor is bound to repay the loan. As the creditor
did not take any risk of it, therefore he cannot charge additional profit
thereon. While, in the case of a property leased out to the Lessee, the
Lessor has taken the risk of the property, If the property is destroyed, he
will bear the loss, therefore, it is justified for him to charge rent from the
Lessee. Another difference is that the property is always subject to
depreciation while money does not depreciate. Therefore, charging of rent
in the first case is justifiable while it is not so in the later case.
I hope that these brief answers will at least explain the basic
concepts. However, for greater details you should study the books I have
referred to above.
7
DOLLAR JET GAME : GAMBLING
Q There is a system called "Dollar Jet". Its procedure is as follows.
This system is world wide and thousands of people are participating
in this game. Please let us know whether it is lawful in Shari'ah.
RELAX AND GET RICH!
110
Gambling is expensive, but there's a recipe for success.
With it, you can earn capital assets of
US$ 30,000 (Thirty thousand)
without any financial engagement on your part in 4-6 weeks
This is made possible by the DOLLARJET SYSTEM
How does this system work?
The DOLLARJET SYSTEM is neither a lottery nor a game of chance
for which you have to buy tickets, but is based on a logical arithmetical
system which, consistently followed, leads to large gain for the
participants.
Everyone actively participates in the DOLLARJET system and
initiates his own personal circle of players. It is this activity that not only
gives you the chance, but the certainty of winning!
Lets assume you play along:
For your chance of winning $ 30,000, you first need a sum of $ 90
distributed as follows:
1. You buy this letter from the player listed in the fifth position for $
30.
2. You pay $30 to the player listed in the first position by postal order
(indispensable for correct procedure).
3. You pay $ 30 by postal order or cheque or cash to Commerce
Control AG (CCI). A-1121 Vienna, Box67.
4. After following Items 2 & 3, send the proofs of payment (item 2)
with the necessary advance payment (item 3) and the legibly completed
list of names to CCI Vienna.
You will be sent 4 letters from CCI, in each of which you will be
entered in fifth place in the list of the addresses. The player in first place on
the list sent in by you will on the other hand be omitted after he has received
# 30, not only from you, but from 1.023 other players, provided all other
players ha ve correctly followed the instructions.
You now sell these four new letters for $ 30 each to four new
acquaintances or relatives. Youearn$120. You thus not only recover your
outlay but an additional $ 30 for postage and telephone costs for your
acquisition of members.
You have thus recovered your entire stake!
The four new participants now follow the rules just like you and
now receive four letters each.
You are thus in fourth position in 16 letters.
Sixteen new players again receive four letters.
ill
Then in second position in 256 letters and finally in first position
in 1,024 letters.
Now every new purchaser of letters in which you are listed in first
position remits $ 30 to you.
You receive $ 30, 720 without financial engagement on your part!
A Participating in the play "Dollar Jet" is (Haram) unlawful, because it
is a gambling. At the very outset the sponsors have indicated that it is
gambling by saying "Gambling is expensive, but there's a recipe for
success". Any person who spends $ 90 is actually indulging in gambling
because the return is uncertain and may be any amount between zero
dollar and 30,000 dollars. The mechanism suggested by the sponsors
(CCI) is contingent upon the fact that all the forms will be sold as
contemplated and thousands of persons will purchase them at the given
price. The expected return is all imaginary and the person receiving the
forms may not be able to sell even one form and his investment of $ 90 will
be lost. Hence, it is unlawful in Shari'ah. Participating in this play is
unlawful if anyone has already spent $ 90 and has received money in
excess of $ 90 is also (Haram) and illegal property. He should return this
money to its lawful owner or his heir and if this is not possible, this should
be given in charity without expecting any reward (Thawab). Allah knows
best.
8
INHERITANCE OF A RUNNING BUSINESS
Q"Yousufhas a moderate sized business. Two of his sons assist him
full time in the business. Two daughters are married. Yousuf passed
away. The estate is not wound up immediately. Yousuf's two sons
continued with the business. Finally after ten years it is decided that the
estate should be wound up and each person given his/her respective
share. In the meantime, since Yousuf's demise the business which was
worth at Rs. 1,000,000/- is now worth two million.
1.1 From what amount will the shares be calculated? Will the heirs
who are not in the business be regarded as sleeping partners, whose
capital was employed for the ten years after Yousuf's demise, and
therefore be entitled to a share from the 2 million, or will their shares be
calculated only from theRs. 1,000,000/-, and be regarded as an Amanat in
the possession of the two brothers, in the business, for the past ten years ?
1.2 Will it make any difference if the heirs out of the business had
been demanding their shares constantly over the past ten years but no
112
attention was paid by those in the business (i.e. will the mas'ala be any
different in this situation compared to the situation where, after the demise
of Yousuf, no heir spoke any word about their shares on the inheritance,
and the first time this matter is touched on after ten years)?
1.3 What will be the mas'ala if the shares were worked out
immediately upon the death of Yousuf, but the heirs running the business
did not relinquish control and continued to run the business for the next ten
years, without having paid out of the shares of the other heirs, despite
having undertaken to do so upon the death of Yousuf?
2.1 Is the mas'ala in the following situation the same, one partner
"walks out" of the business without taking anything, and after ten years
demands to be given his shares. Will he be entitled to his share from the
value of the business at that time "walking out" or the present value ten
years later? (M.llyas Patel, Isipingo Beach South Africa)
Alt is a mandatory obligation of the heirs of a deceased person that
immediately after his death they divide all his estate among
themselves according to the shares prescribed by the Shari'ah. It is very
unfortunate that most of the Muslims today do not comply with the rules of
Shari'ah in this respect, and their negligence leads to serious disputes
between the heirs of the deceased, and by the passage of time the
problems become more complicated.
In the instant case it was the duty of the two sons of Yousuf that they
distribute the estate between the legal heirs of their father or at least they
should have affected a settlement with them, either by purchasing the
shares of the other inheritors in the business, or by affecting a partnership
with them, or by getting their permission to continue with the business on
specific terms and conditions. If they have not done so, as it appears from
the question, then it was not permissible for them to continue with the
business and to use the capital of other inheritors for their own benefit.
Therefore, all those profits which have accrued against the shares of other
inheritors are not Ha/a/ for them. They can enjoy the profits accruing
against their own shares, but they have to surrender all the profits relatable
to the shares of the rest of the heirs according to their respective
entitlement according to Shari'ah.
It does not make any difference whether the rest of the heirs had
demanded their shares or not, because it was the duty of these two sons
either to pay the share of each inheritor in the business or to make a
settlement with them, and it was not lawful for them to use their shares
without their permission.
113
However, it will be advisable for the benefit of both of the parties that
they effect a compromise between them by taking these two brothers as
active partners of the business and treating the rest of the heirs as the
sleeping partners. In this case, an additional proportion of the profit may be
allowed to the working partners against their labour, while rest of the heirs
get lesser proportion of the profit as a sleeping partner generally does.
In short, the standpoint of the two sons running the business that the
shares of other inheritors must be calculated only from one million is not
acceptable, neither from the point of view of Shari'ah nor on the basis of
justice and equity. The general principle of Shari'ah in this case is that they
deserve only that part of the aggregate profits which relates to their own
shares of inheritance, and the rest of the profits should be surrendered to
each of the inheritors according of his entitlement in the inheritance.
However, both the parties may effect a compromise by treating the
business as partnership between all the inheritors, whereby the
proportionate profit of the two working sons may be increased visa-a-vis
the other partners on account of their labour. Such a compromise will be
more advisable because it seems to be more equitable keeping in view the
circumstances referred to in the question.
The case of a partner who walks out of the business without taking
anything is different from the case of inheritance, because such a person
has terminated the contract of partnership through his own free will.
Therefore, he is entitled to those profits only which have accrued upto the
time of the termination of the partnership1. He was entitled to get these
profits at the time he left the business, but his failure to do so is a tacit
permission to the remaining partners for continuing the business and treat
his share of profit as trust with them. Therefore, he cannot claim the
additional profit accruing after he terminated the partnership. On the
contrary, in the case of inheritance the business after the death of the
original owner came into the joint ownership of the inheritors and no
inheritor can use the share of the other without his express permission,
and even if other partners remain silent it did not mean that they had
terminated their partnership with their free will. Therefore, the analogy of
regular partnership cannot be applied here.
1. The situation is different where the withdrawing partner, who "walks out", demands his share in the
partnership, but the remaining partners refuse or otherwise deliberately delay such payment of the share
of the withdrawing partner. The refusal to pay such share amounts to GASB, and/will confer an entitlement
in favour of the withdrawing partner to claim a share of the profits on his own capital for the period as from
date of dissolution until date of payment, according to certain jurists, eg. Shafei School. (EDITOR)
114
9
DECREASING PARTNERSHIP AND HOUSE FINANCING
Q.1The bank would purchase the land or property from the vendor
and sell it to the would be buyer on an instalment basis. Each
instalment would act as an increasing participation by the tenant in the
property until such time as all the instalments have been paid. At that time
the tenant would contractually be given ownership of the property. The
bank would profit from the sale of the land or property together with an
arrangement fee part of which would be rebateable conditional on the
buyer making the instalment of the purchase in accordance with the terms
of the contract.
Family security (Aman al-Osra) would form an integral part of this
product possibly on the basis of a group policy with collective participation.
This facility may also be used for the construction of new houses.
We have submitted that the type of product we have described
affords a strong social benefit to elements of society and at the same time
is consistent with the provisions of Islam. How does it seem to you?
For the bank to be able to undertake such a scheme it must obtain
special dispensation from the central bank.
10
AUTO FINANCE
11
CREDIT CARDS
115
the concept of decreasing partnership is acceptable in Shari'ah subject to
certain conditions. The general framework of this arrangement should be
on the following lines:
The land or property should be purchased jointly by the financier
and the ultimate beneficiary who may contribute to its price on whatever
minimum ratio. For example, he can contribute 10 per cent of the price.
The rest of 90 per cent shall be contributed by the financier and the
property will be owned jointly by the two parties, then the property should
be divided into different units e.g. each unit may be 5 per cent or 10 per
cent of the whole property. The ultimate beneficiary may use the 90 per
cent of the property owned by the financier for a specific rent charged by
him. At the same time the beneficiary can purchase the units owned by the
financier gradually within the agreed period. Whenever the beneficiary
purchases a unit from the financier, the rent is reduced to that extent. For
example, if he has purchased 5 units, the ownership of the financier will be
reduced to 85 per cent and he will pay a rent for this 85 per cent units only
and so on. In this way the ultimate beneficiary will be purchasing the units
owned by the financier gradually until all the units are purchased and
pwned by him, and the whole property becomes exclusively owned by the
ultimate beneficiary.
This arrangement is allowed in Shari'ah and can be usefully utilised
not in house financing only, but also in financing to acquire any other fixed
assets or vehicles. If you wish to know the details of this arrangement, as
well as the Shari'ah justification of such an instrument, you can consult my
Arabic Book : " Discussions on Contemporary Juristic Issues " in which I
have dealt with this instrument in detail.1
Your second question relates to the issue of Auto Finance. You
have suggested that it should be on the basis of hire purchase. The
concept of hire purchase is not fully in accordance with Shari'ah. The
acceptable form of such a finance should be either on the basis of leasing
where at the end of the period of lease the lessor would be at liberty either
to repossess the asset or sell it to the lessee himself or to any other party.
The price of the sale can be determined at that stage by mutual consent. It
1. House financing encompasses three separate contracts:
(a) the contract of joint ownership of the property between the financier and the ultimate
beneficiary in preagreed proportions;
(b) the contract of lease in terms of which the financier leases its proportionate undivided share in
the property to its co-owner (the ultimate beneficiary) at an agreed rental;
(c) the contract of sale in terms of which the one co-owner (the ultimate beneficiary) purchases fixed shares
of the other co-owner (the financier) over a period of time on agreed terms.
Each of these contracts, separately, are valid in Shari'ah by consensus of jurists. Each contract will be
concluded separately at the relevant time, to avoid the one beong conditional upon the conclusion of the
other. (EDITOR)
116
may be its depreciated value or a nominal value or whatever price they
may agree upon. The second acceptable form of Auto Finance may be on
the principle of decreasing partnership as explained in my reply to yourfirst
question. Your third question is about the Shari'ah ruling about the credit
cards. The credit cards prevalent in the market today are of different kinds.
If the card holder has an account in the bank, which has issued the card
and the bills of his purchases are directly debited to his account, there is no
problem with such an arrangement, because there is no possibility of the
charge of interest because the bank charges interest only in a case where
the card holder defaults in the payment of bills. In the case of direct debit
there is delay but if the card is not obtained on the basis of direct debit
system, some contemporary scholars are of the view that this type of card
should not be used by a Muslim for the reason that it may happen that the
card holder delays in the payment of the bill of the issuer of the card (the
financial institution) whereby he will be liable to pay interest. But in my
personal view as well as in the view of some other Scholars, if a card holder
is confident that he will pay the bills within the specified period without fail
he can avail of this credit card and should always be cautious to pay the bill
promptly before any interest is due thereon.
As for the initial fee or the annual fee charged by the issuer of the
card, it cannot be taken as interest because it has no relation with the
amounts of the bills actually paid by the bank. It is a service charge for
undertaking certain service facilities to the card holders, hence they are
permissible in Shari'ah. The third aspect of the credit card is that the issuer
of the card charges a certain discount from the merchant who accepts a
credit card. Some contemporary Scholars are of the view that it is
analogous to discounting of the bills of exchange but my view is different,
which is also supported by the view of many contemporary Scholars.
I feel that this discount or commission charged by the issuer of the
credit card is analogous to commission charged by a broker. It is evident
that the card facility brings a large number of customers to the merchants.
Had he not entered into such an arrangement with the issuer of the card,
those customers would have not come to him, therefore, the issuer of the
card is the basic cause for securing good customers for the merchant and
he can rightfully charge a commission on this service rendered to the
merchant.
This is my view about the general credit cards i.e. American
Express, Master Card etc.
I hope these explanations will answer your questions.
117
12
WORKING IN HOTELS SERVING LIQUOR AND PORK
Allah has cursed liquor and its drinker, its server, its seller, its
buyer, its squeezer and whoso it has been squeezed for, and its
carrier and whoso it has been carried to.
In Tirmidhi, a narration from Sayyidna Anas ibn Malik says:
-0 J 14] ^_S_)
118
bought.
The words of the hadith narrated by Sayyidna Anas (R.A) appear
almost identically in Ibn Majah as well:
The squeezer of liquor and the one who orders its squeezing and
the one for whom it has been squeezed, and its carrier and the
one for whom it is carried, and its seller and the one to whom it is
sold, and its server and the one who has been served with it.
Imam al-Bukhari and Imam Muslim; (R.A), have narrated the
following hadithUom Sayyidna 'A'ishah (R.A):
119
This is a report from 'Abd al-Rahman ibn Wa 'lah. He says: 'Once
I asked Sayyidna Ibn 'Abbas: "We live in an area where we own
vineyards and the major source of our income there is nothing but
liquor.' To this, Sayyidna Ibn 'Abbas replied, 'A certain person
came to the Holy Prophet (S. A. W) and presented a leather
bag full of liquor as a gift for him. Then, tohim, the Holy Prophet
(S.A. W) said: 'The one who has made the drinking of liquor
unla wful is the one who has also made its buying and selling
unlawful."
In the light of the ahadith quoted above, it becomes clear that the
business of liquor is also unlawful, as is its transportation from one place to
the other, or its offering for consumption. The ruling given by Sayyidna Ibn
'Abbas (R.A) also provides a clear answer to the situation in which the
distilling, and buying and selling of liquor may be common local practice,
still, there too, it will not be lawful for a Muslim to adopt dealing in wine as a
means of his livelihood.
And as far as I know, no Faqihtrom among the Muslim Jurists has
ruled it as permissible.
13
A WILL OF MORE THAN ONE THIRD OF THE PROPERTY
14
THE INSURANCE OF CARS
15
COPYRIGHT IN ISLAM
124
express provision in the Holy Qur'an or in the Sunnah which restricts
ownership to tangible objects only. There are several intangible rights
accepted and maintained by the Shariah, and there are several instances
where such intangible rights have been transferred to others for some
monetary consideration.
They contend that the concept of "intellectual property" does in no
way restrict the scope of knowledge, because the law of "copyright" does
not prevent a person from reading a book or from availing of a new
invention for his individual benefit. On the contrary, the law of "copyright"
prevents a person from the wide commercial use of an object on the
ground that the person who has invented it by his mental labour is more
entitled to its commercial benefits, and any other person should not be
allowed to reap the monetary fruits of the former's labour without his
permission. The author of a book who has worked day and night to write a
book is obviously the best person who deserves its publication for
commercial purposes. If every other person is allowed to publish the book
without the author's permission, it will certainly violate the rights of the
author, and the law of copyright protects him from such violation of rights.
Both of these views have their own arguments. I have analysed the
arguments of both sides in my Arabic treatise "Discussion of
Contemporary Legal Issues" and have preferred the second view over
the first, meaning thereby that a book can be registered under the
Copyright Act, and the right of its publication can also be transferred to
some other person for a monetary consideration.
This is an answerto your question no (i) and no (iii).
Coming to the question no (iii), I would like to add that if the law of
copyright in a country prevents its citizens from publishing a book without
the permission of the copyright holder, all the citizens must abide by this
legal restriction. The reasons are manifold.
Firstly, it violates the right of the copyright holder which is affirmed by
the Shariah principles, according to the preferable view, as mentioned
earlier.
Secondly, I have mentioned that the views of the contemporary
scholars are different on the concept of "intellectual property" and none of
them is in clear contravention of the injunctions of Islam as laid down in the
Holy Qur'an and Sunnah. In such situations, an Islamic state can prefer
one view over the other, and if it does so by specific legislation, its decision
is binding even on those scholars who have an opposite view. It is an
accepted position in the Islamic jurisprudence that the legislation of an
125
Islamic state resolves the juristic dispute in a matter not expressly
mentioned in the Holy Qur'an or in the Sunnah. Therefore, if an Islamic
state promulgates a law in favour of the concept of "intellectual property"
without violating any provision of the Holy Qur'an and Sunnah, the same
will be binding on all its citizens. Those who have an opposite view can
express their standpoint in academic discussion, but they cannot violate
the law in practice.
Thirdly, even if the government is not a pure Islamic government,
every citizen enters into an express or a tacit agreement with it to the effect
that he will abide by its laws in so far as they do not compel him to do
anything which is not permissible in Shariah. Therefore, if the law requires
a citizen to refrain from an act which was otherwise permissible (not
mandatory) in Shariah, he must refrain from it.
Even those scholars who do not accept the concept of "intellectual
property" do not hold that it is a mandatory requirement of Shari'ah to
violate the rights recognized by this concept. Their view is that it is
permissible for a person to publish a book without it's author's permission.
Therefore, if the law prevents them from this "permissible" act, they should
refrain from it as their agreement (of citizenship) requires them to do so.
Therefore, it is necessary for every citizen to abide by the law of
copyright unless it compels a person to do an impermissible act, or to
prohibit him from performing a mandatory act under the Shari'ah.
16
INTEREST IN A NON-MUSLIM COUNTRY
Q2. "Can Motor cars and Machinery be leased to the clients on the
following basis:
a) Leasing only.
b) Leasing with an option to purchase at the price at which the
vehicle was initially purchased.
b. 1) Cars leased will be provided only if a stated percentage of
either 20% or 30% (as mutually agreed) of the vehicle, or equipment or
machinery value is left as a guarantee and would be returned at the end of
the lease period. (Ibid)
A Leasing is permissible in Shariah subject to the condition that the
leased assets are owned by the Lessor and he will have to bear the
risk relatable to the Corpus of the leased assets. Therefore, if the leased
asset is destroyed due to some unavoidable natural calamity, the owner
will have to suffer the loss. Any condition to the contrary, as in vogue in the
contemporary financial leases, will render the contract of lease void in
Shariah. It is not permissible in Shariah to link the Contract of lease with a
contract of sale at the end of the leased period. The contract of lease
should be independent, and it will be open to both the parties at the end of
the lease period to enter into the contract of sale or not to enter into it. If the
contract of lease is subject to the condition that the owner shall sell the
leased asset at the end of the lease period to the Lessee, the contract shall
not be valid according to some jurists, while some other jurists take it as
permissible. Therefore, this condition should be avoided as far as
possible.
The Lessee can be asked to deposit with the Lessor a certain
amount as security for the prompt payment of the periodical rent. This
amount shall remain as a deposit with the Lessor and shall be refundable
to the Lessee at the end of the lease period.
127
Q3. "In our country, the drivers of the vehicles that meet an accident
are immediately sent to Jail until a court case is held. This can take
six months, one year or more. If the accident causes injury to any person,
the driver is sent to prison till the injured person recovers.
Can we, therefore, take insurance cover to prevent ourselves from
the above inconveniences since the regulations of our country allow an
insured party that is involved in an accident to be prevented from
imprisonment.
AMI the methods of insurance in vogue in our times are unfortunately
based on interest and qimar, therefore they are not permissible
according to Shariah. However, in the situation referred to in this question
one can take an insurance cover in order to avoid inprisonment only, but if
the Insurance Company pays to him some amount, he cannot utilise it
except to the extent of the premium actually paid by him to the Insurance
Company.1
Q6. The Finance Company buys cars, Machinery, equipment etc and
sells the same to the clients. Sometimes the clients:
a) Return the goods.
b) Cannot pay for the goods.
Can the Finance Company retake the goods at a price less than that
at which the goods were originally sold to him.
A In a case where the buyer could not pay the price of the goods sold to
him, it is not permissible for the seller to repurchase the same goods
from the buyer at a lesser price. However, if the commodity has been
subjected to depreciation, the seller can repurchase it at a depreciated
price according to the market valuation.
129
Q"l am an Indian Muslim Business-man, staying in Saudi Arabia,
since 9 years, and a regular reader of Al-Balagh International. May
Allah reward you in full, for your service to the Umma. I have few Questions
in mind, I would be grateful if you answerthem.
1. Can we take loan from Government, Banks, Financiers, (in India)
forthe purpose of doing business, or constructing a house, and we have to
pay interest. Heard some Muftees in India have permitted the business-
men to take loan. Is this allowed, in case of Dar-ul-Harb? The permission is
given on the basis, that if Muslim takes loan and does big business, he will
employ a big number of Muslim staff, and many unemployed Muslims can
get job, and it is a matter of thawab. If we don't do it, the Non-Mulsims are
doing it, and all big business will be only in the hands of Kafirs. This is
practical problem. Could you Please comment?
2. If No is the answer to my above question, Can you please let us
know the way to do big business in India, without taking loan? I think it's
impossible, and when I studied this carefully, I found more than 95% of
Muslim Industrialists, Exporters, and big Trading Groups, do take loan,
just to be safe from the Govt.
As you cannot declare your white money, if you do, you ha ve to pay
heavy taxes. So the best way to show the source of income or cash money
is loans from Bank, and to pay tax on this money is easy. I am really
confused, and this is the main reason, I have never started business in
India. Can you please solve this problem? Jazakallah Khair.
(H.R. Salman, Saudi Arabia)
A According to the overwhelming majority of the Muslim jurists, there
is no difference between Darul-lslam and Darul-harb in the
prohibition of riba. A transaction of riba is totally prohibited, no matter
whether the other party to the transaction is a Muslim or a non-Muslim.
Although Imam Abu Hanifah has allowed interest in a non-Muslim country
with certain conditions, yet this view has not been approved by the majority
of jurists, including a large number of Hanafi jurists themselves.1
1. Imam Abu Hanifah (R.A) was of the view that any "transaction" between a Muslim and non-Muslim in
Darul-Harb did not give rise to Riba because the acquisition was an original one, the property of the non-
Muslim being a permissible original acquisition, not arising from contract but ISTILA
(t ^I). Hence, it did not fall within the ambit of the verses prohibiting interest or riba. Muslims living
as minorities in non-Muslim countries enjoy constitutional rights and protections, within a secular state in
common with other citizens. Their status appears to be different from Darul-Harb, literally, a state of
ongoing military conflict between Darul-lslam and Darul-Harb. There is a need to properly define Darul-
Harb in the context of the modern state to determine whether Imam Abu Hanifah's view has any application
at all. (EDITOR)
130
In the early days of the Holy Prophet (S.A.W) many Muslims used to
enter into riba transactions with non-Muslims, but when riba was
prohibited, they stopped this practice totally. The verses of the Holy Quran
which prohibited riba did not differentiate between a Muslim and non-
Muslim. Similarly there is no example in the days of the Sahabah (RA)
where any one of the Sahabah entered into a riba transaction with a non-
Muslim afterthe prohibition was enforced.
Therefore, one cannot be advised to take an interest-bearing loan,
even in a non-Muslim country. I have heard of some Indian Muslims (in
Bombay) who are trying to establish an Islamic bank or a financial
institution to be run on the basis of Islamic modes of financing. You should
approach them for your financial requirements. They may help you in this
respect.
17
THE ANNUAL FEE CHARGED ON A CREDIT CARD
131
It is thus clear that the annual fee for the credit card is neither
interest nor any impermissable charge according to Shari'ah, and it is a
valid charge for the services rendered. Therefore, it will not be permissible
in Shari'ah to offset this annual fee against the interest accrued to the card
holder in the same bank. The reasons are twofold.
Firstly, it is not permissible in Shari'ah to open an interest bearing
account. Surplus money should always be deposited in a current account
where no interest is receivable.
Secondly, if somebody has deposited his money in an interest
bearing account erroneously he cannot use the amount of interest for his
own benefit nor can he use it to settle any rightful claim against him. Since
the annual fee of a credit card is a rightful claim against the card holder, he
cannot set it off by the amount of interest earned on his account.
18
INSTALMENT SALES OF HOUSES
Q'The Fiqh Academy has also allowed installment sales. Does this
mean that I can now buy a house in UK or USA on installments
bearing in mind that each installment includes repayment of "principal"
and "interest".
A Sale on installment should never be confused with a transaction of
interest bearing loan. In a sale transaction subject matter of contract
is a commodity which should necessarily be owned by the seller at the time
of sale and should be in his possession. But in the case of loan the subject
matter of the transaction is money which is advanced to the borrower. The
house financing schemes generally practiced in the Western countries are
based purely on interest. The banks advance money for the purchase of
the house and charge interest on it. The house is mortgaged as a security
for the repayment of loan. This transaction has nothing to do with a
transaction of sale on installments. The house is never purchased by the
bank, nor does the bank sell the house to the customer. The customer
purchases the house from a third party and owes its price to him. The bank
comes in only to finance the buyer on the basis of interest. Therefore, this
transaction is a riba transaction which is strictly forbidden and cannot be
justified on the presumption that it is a transaction of sale on installments.
However, if the seller himself sells the house on installments and
charges a price higher than the cash price, or the bank itself purchases the
house from the seller, and after having its ownership and possession
132
resells it at a higher price to the customer on installments, the transaction
may be valid in Shariah, if the necessary conditions of sale are fully
observed as mentioned in the resolution of the Fiqh Academy. But the
transaction generally in vogue in the Western countries is not based on the
concept of sale. It is an interest transaction pure and simple, and a Muslim
is not allowed to enter into such transactions.
It is thus clear that your understanding of the resolution of the Fiqh
Academy is not correct.
19
THE ADJUSTMENT OF INTEREST TO THE LOSS OF CAPITAL
20
FURTHER QUESTIONS RELATING TO THE
CONSUMER CREDIT CARD
133
1. It is correct that on the basis of written documentation the
relationship between the company and the customer is shown as one of
the lender and borrower. The amount of the loan which is inserted by the
merchant on the "Acceptance note" (Form 2), designated as the "invoice
amount" is the price of the goods. If, for example, a customer purchases
goods for R100,00 then the amount of the loan purportedly advanced by
the company to him is reflected as R100,00 which is paid in 6 monthly
instalments together with interest theron at the present rate of 9.5%. In
fact, the amount lent is not the price of the goods (R 100,00) but the price
less the agreed discount of 20% to the merchant (R80,00). If the
transaction between the Company and the customer was one of pure loan,
then the principal amount of the loan should equal the actual payment by
the Company to the merchant and not the price of the goods. In your view,
the difference between the price of the goods and the actual amount paid
to the merchant (R 100,00 less R80,00) must be ascribed to additional
interest but this does not accord with the terms of the written
documentation on which your opinion is based.
Furthermore, in some cases, the customer as "the borrower" is
required to pay a deposit of 30% to the Company upon conclusion of the
' transaction and this payment also is contrary to the essence of a pure loan
transaction. Hence, your statement that "the Company pays to the
merchant the price owed by the customer/consumer" is not strictly correct
because what is paid is the price less the agreed discount (presently 18%).
2. On the assumption that the transaction between the company
and the customer is a loan, that transaction is separate from the sale
between the merchant and the customer. In your view, the merchant has
sold goods to the customer at the marked selling price. The sale viewed
separately is valid according to Shari'ah and the principle does not appear
to apply here. The fact that as agent themerchant is obliged to pay interest
in case of default in accounting to the company does not affect the
customer, (non-Muslim), just as the payment of interest by the (non-
Muslim) customer to the company does not affect the merchant. In South
Africa, in any event, a debtor who fails to pay a debt on time is
automatically by law (under the prescribed Rate of Interest Act, 1975)
obliged to pay interest thereon at a rate prescribed by the minister in the
official gazette from time to time.
3. As regards the agreement between the company and the
merchant, you are of the view that agreement amounts to a "complex
relationship which is totally against the parameters of the Shari'ah". The
provision relating to payment of interest in case of late payment operates
134
as deterrent. In the absence of such a provision, some merchants would
deliberately use the company's money in their own business as working
capital for periods of time to the financial prejudice of the company. In any
event, the company will agree to delete that provision (clause 4) in the case
of Muslim merchants, but the provisions of the prescribed Rate of Interest
Act, 1975 would in any event apply by operation of law. Consideration
should also be given to the question as to whether that provision (clause 4)
is void in itself and therefore severable from the rest of the contract
because it does not appear to be contrary to the essence of the contract as
to render the whole contract void.
Consideration should be given to the real nature of the transactions
concerned without placing undue emphasis on the literal wording of the
documents. From this viewpoint, the transactions are analogous to
Murabaha on the basis set out in the initial question, although not
satisfying all the requirements of Murabaha, such as possession. If, in the
light of the foregoing, then please give us your suggestions as to how to
validate the transactions concerned according to Shariah. The majority of
black people in South Africa, being the underprivileged, purchase their
goods in instalments over 6 months. The over whelming majority of
Muslim merchants do not have the financial resources to sell goods on
credit over 6 months. The effect of your opinion would be that Muslim
business, which funds the religious and educational institutions of the
community, would be even further weakened, and Muslims would continue
to be dominated by white conglomerates. In an endeavor to avoid interest,
some Muslim merchants have agreed to grant the company a bigger
discount (eg. from 18% to 25%), so that the company in turn has agreed
not to charge the customer any interest.
6. Your statement that American Express does not charge interest in
its cards is incorrect. All companies throughout the world charge interest to
cardholders in case of late payment. Hence, applying the interest principle
which appears to be the basis ofyourFATWA, most transactions would be
rendered null and void causing great hardship to Muslims living particularly
in non-muslim countries. (M.S. Omar, Durban, South Africa)
A After receiving your objections on my opinion about the Consumer
Credit Card scheme which appeared in Albalagh (Rajab 1412/Feb.
1992), I reviewed the matter and studied the scheme and the relevant
documents once again giving due consideration to the points raised by
you. But, I am sorry to say, I could not agree with your contentions.
You basic argument is that the transaction involved in the Consumer
135
Credit Card is analogous to the agreement of Murabaha: You say that
although the words used in the documents are different, but we should
treat the transaction as a Murabaha sale, because:
"Consideration is given to the substance of the transaction and not
its form"
It is true that the intention is more important in a contract than the
words used to express it, but the intention should be clearly established
either by the context of the agreement or through other external sources.
Do you really think that the Company (CCC) intends to purchase the
commodity from the Merchant and then sell it to the Customer? Is there
any indication to prove that the CCC wants to effect a purchase and sale? I
think there cannot be two opinions in that the CCC does not intend to
purchase or sell any commodity. If it is assumed that the CCC intends to
purchase the commodity and sell it to the customer, it will logically mean
that the CCC will be liable to the warranties attached to the commodity. If
the customer finds a defect in the commodity, he should lay his claim
against the CCC. But neither of these consequences can be said to have
emerged out of the transaction under discussion. The CCC never accepts
itself to be the seller of the commodity nor does it accept any one of the
liabilities consequent to the contract of sale. Rather it is expressly provided
in clause 4 of the agreement of CCC with the customer that CCC shall not
be liable to any such claim.
Although this nature of the transaction is quite evident, yet, to be
more certain, one can ask the CCC whether they intend to purchase the
commodity and sell the same to the customer through the Merchant as
their agent. I am sure they wil answer in negative.
The correct position therefore, is that:
(i) The words used in the agreement clearly purport to effect a
transaction of interest-bearing loan.
(ii) There is not a slightest indication, neither in the agreement nor
anywhere else, that the CCC intends to effect a transaction of sale.
(iii) The CCC clearly denies that any sale has been effected by it.
How can we, in these circumstances, insert the concept of sale in
the transaction or inject an idea which is totally foreign to their actual
intention. The principle of does not mean to impose an
arbitrary construction or interpretation of a contract irrespective of the
expression used and the objective intended. What the principle actually
means is that the literal meaning of the words used in a contract may be
136
dispensed with where there is a clear indication through other sources that
the real intention of the parties is different from what their expression
apparently purports. But before applying this principle, one should
establish the real intention of the parties concerned through an evidence
which is more forceful than the words used in the agreement. It is obvious
that no such evidence exists here.
You have laid much emphasis on the discount the CCC charges
from the Merchant. You insist that this discount indicates that the CCC has
purchased the commodity from the Merchant on a discounted rate, then
has sold it to the customer for its full price on which the CCC charges
interest. But, I am afraid, this is not the intention of the parties. The discount
is not charged by the CCC because the CCC has purchased the
commodity. Ratherthis discount may be interpreted in two different ways:
(a) This is a discount analogous to the discount normally charged by
a bank while accepting a bill of exchange. However, it is an extra-ordinary
situation where the CCC charges interest from two different persons for the
same amount of money and the same period of time, because it charges
discount from the Merchant and at the same time it charges interest from
the Customer.
(b) There may be another interpretation of this discount. It is
possible that it is similar to the commission normally charged by the
brokers from the merchants. This brokerage may be justified on the ground
that the facility provided by the CCC to the card-holders attracts them to
those merchants only who accept such cards. In this way the CCC works
for increasing the number of customers dealing with the Merchant, and
thus claims a discount/commission from him.
In my humble view, no other interpretation can be ascribed to this
discount, and I am sure that no court would interpret it to mean that the
CCC has purchased the commodity on a discounted rate.
There is another reason for not treating this transaction a
murabaha. The agreements clearly prove that they are not restricted to the
purchase of goods only. They are used for the services rendered by the
Merchants as well. How can a murabaha work in the case of services?
Now, there are three parties involved in this transaction:
(i) The CCC (the company who issues the card)
(ii) The Customer (the person who holds the card)
(iii) The Merchant (who accepts the card and sells the goods and
137
services to the customer)
As for the relationship between the CCC and the customer, it is
clearly a relationship of borrowing on the basis of interest. Hence, it is not
allowed for a Muslim to become a party to this relationship.
But the case of the third party i.e. the Merchant is different. When a
Merchant accepts this card, it means that he has accepted the hawalah
(transfer) of the debt of his customer which the customer has owed to him
by virtue of the sale concluded between them. The price of the goods will
now be paid to him by the CCC. There is no violence of any principle of
Shariah so far. The discount allowed by him to the CCC can also be treated
as a commission to the broker, as explained earlier. Therefore, the
discount can also be justified on this ground, just as it has been justified in
the case of ordinary credit-cards issued by the American Express etc. But
the problem arises when the merchant agrees to become an agent of the
CCC for the collection of all the amounts owed by the customer to the
CCC, including the amount of interest. It is established in Shariah that
agency in a transaction of interest is also not allowed. This is the sole
reason, in my humble opinion, for which it does not seem permissible for a
Muslim Merchant to sign this agreement with the CCC. However, if the
Muslim merchants can avoid the element of agency through a special
arrangement With the CCC, it seems to be lawful for them to accept such
cards, and to sell the commodities to such card-holders, because the
Merchant is not a party to the agreement between the card-holder and the
CCC.
You have also asked as to what measures can be adopted in order
to bring this transaction within the parameters of Shariah. Coming to this
question I would suggest two alternatives:
Firstly the contract can be modified so as to make it a clear
murabaha transaction with all its implications. This will require radical
changes in all the forms and agreements, but, at the same time it will
validate the whole transaction and the Muslim will be at liberty to issue
such cards, to use them and to accept them . However, it seems difficult
that the CCC will accept the implications of murabaha.
Secondly, the element of agency for the collection of the dues from
the Customer may be eliminated from the agreement signed by the
Merchant. It may, however, be provided in the agreement that the
Customer either pays his dues directly to the CCC, in which case the
Merchant will not be involved in the payment, or he deposits the amount
with the Merchant wherefrom the CCC will arrange to colllect it. In this case
138
the Merchant will act as a trustee for the Customer, and not as an agent of
the CCC.
Another alternative may be that the Merchant sells the goods to the
Customer at a higher rate which may be equal to the amount he has to pay
to the CCC over a period of six months. But it should be a fixed amount
finally settled at the time of sale and should not be increased later on. Then
the CCC may also claim a brokerage commission from the Merchant on
the increased price at a higher rate. In this case the CCC advances a loan
to the Customer which is free of interest, and a Muslim Merchant can work
as an agent for the CCC to collect the amount of loan.
I think that if the CCC is not agreeable to the first alternatives, this
method can be adopted as a last resort. But before applying this method
other Ulama should also be consulted because I am not fully confident
about it.
Before concluding this discussion, I would like to clarify another
point you have raised in the last paragraph of your question. You say,
"Your statement that American Express does not charge interest on
its cards in incorrect. All companies throughout the world charge interest to
card-holders in case of late payment..."
Actually, I was aware that the Credit Card Companies do charge
interest in the case of late payment, but the major difference between
normal credit-cards (like American Express etc.) and the Consumer Credit
Card (under question) is that the former ones do not charge any interest for
the initial period which extends in some cases to three or four months. It is
only in case of default after the prescribed period that they charge a
penalty interest. Therefore, their basic transaction perse does not have an
element of interest. The penalty-interest is an additional condition imposed
by them which does not render the whole transaction invalid. Therefore, if
a Muslim subscribes to such credit cards with a clear intention that he will
always pay the bills of the company promptly and he has good reason to
believe that he will never become a defaulter, and will never have to pay
interest, it will be permissible for him to use such Cards.
The case of Consumers Credit Card is totally different. Here every
card-holder is bound to pay interest from the very beginning. He has to pay
interest for each and every day. So, the whole transaction is based on
interest. It was this major difference for which I had distinguished the case
of normal-credit cards from the Consumer Credit Card under discussion.
This will clarify another misconception also. It was not the clause of
139
penalty-interest that formed the basis of my opinion. In fact, the nature of
the transaction is such that it cannot be distinguished from an interest-
bearing loan, and I have already elaborated the basic reasons for its
impermissibility for each one of the three parties.
21
THE CONSUMER CREDIT SCHEME
141
it to his customer on deferred payment basis.
On the contrary, the "Company" in the case of consumer credit card,
does not purchase the commodity. It simply gives a loan to the customer /
consumer on interest, but instead of giving the loan to the customer
himself, it settles the invoice value of the commodities purchased by him
from the merchant the retailer. In other words, the company pays to the
merchant the price owed by the customer/consumer. This is clear from the
very first sentence found in the "merchant agreement" form which reads as
follows:
"Consumer Credit corporation ltd. (CCC) undertakes to provide
finance to the merchant's customers and settle the Merchant's invoice
value less the discount due to CCC directly to the Merchant..."
Thus the relationship between the Company and the customer /
consumer is one of creditor and borrower. There is no sale affected
between them. That is why the customer has been named a "borrower" in
form I side B, which is a form of agreement between the company and the
customer. It is then evident from both of the forms that the company
advances a loan to the customer and charges interest thereon (see clause
5 of form I side B). However, the company has made the retailer liable for
collecting the installments of repayment from the customer and for paying
the same to the company within twentyfour hours. The retailer has also
been made liable for interest if he delays in payment after receiving the
amount from the customer. But all these conditions do not change the
relationship of a borrower and lender between the company and the
customer.
Asforthe relationship between the Company and the merchant, it is
a complex relationship according to the agreement which includes the
relationship of agency, indemnity and, in certain situations, of money
lending on the basis of fixed interest. Such a complex relationship is totally
against the parameters of Shariah. Moreover, the provision of interest in
case of late payment renders the whole transaction invalid according to
Shariah.
Therefore, the scheme of the consumer credit card, as envisaged in
the annexed agreement forms in undoubtedly an interest bearing scheme
which cannot be held as valid according to Shariah, nor can it be validated
on the analogy of the murabahah transaction, because there are a number
of basic differences between the two transaction. So, I have no doubt in my
mind that it is not permissible in Shariah to become a party to this
transaction.
142
This "Consumer Credit card" is substantially different from the
general credit cards issued by several companies like American express,
visa etc, where no interest is charged by the company from the card -
holder. So, the "Consumer Credit card" in question should not be confused
with the general credit cards issued by American express etc. which can
be permissible subject to certain conditions.
22
144
Ql have recently been told that it is permitted for a Muslim to deal in
interest in America or UK i.e. a Muslim can open interest bearing
savings bank account in America or UK. The interest received from the
bank should then be given to poor and needy Muslims in Pakistan or India.
I am told that this ruling is based on the facts that non-Muslims should not
benefit from the "interest" not taken by us. I am also given to understand
that perhaps you have approved this ruling.
I must say that in America or UK I maintain Current accounts only
and thus the question of interest does not arise. The same thing I have tried
to do, wherever possible. My idea is based on the fact tha t a Muslim should
have no dealings in the interest, be it as a receiver, writer, or giver.
Please comment on this aspect of "interest" and if your ruling is
different for different regions, please advise your ruling for the major
regions of the world, such as America, UK, Asia, Saudi Arabia.
(Muhammad Saleem Desai, Al Khobar, Saudi Arabia)
A The correct position is that dealing in interest is haram, both in a
Muslim or a non-Muslim country. Some jurists have opined that
interest bearing loans can be given to a non-Muslim citizen of a non-
muslim country, and the interest charged from him is ha/a/for a muslim. But
this view has not been endorsed by the majority of the jurists. So, the
correct view is that charging interest is not permitted in any case, no matter
whether the debtor is a citizen of a Muslim country or not.
As for opening a saving account in a non-muslim country with
intention to distribute its interest among the poor, I have never
recommended or approved of it. I always advise the Muslims to keep their
money in the current account. However, if somebody has opened a
savings account, either due to his ignorance about the Shariah injunctions
or because of his negligence, then, in that case only, he should give the
amount of interest to the poor persons in order to dispose of this unclean
money, and not to earn the thawab of sadaqah. But it does not mean that
he should deliberately open an interest bearing account for the
disbursement of its interest among the poor.
In fact, opening an interest bearing account amounts to entering into
a transaction of interest which in itself is a clear sin. The one who has
already committed this sin is advised to atone for it by giving the interest
money to the poor, but one cannot be advised to commit a sin in order to
atone for it by helping the poor. Taking bribe, for example, is a sin. If a
person has earned some amount through bribes and he is unable to return
145
it back to the original owners, he is advised to give that amount to the poor
in order to atone for his sin to the best possible extent. But one cannot be
advised to accept bribe with the intent of giving the money to the needy
persons. The same principle is fully applicable to the interest transactions
also.
147
Shariah. Although they have now stopped the purchase of PTCs, yet the
PTCs held by them in the past are still current and they form a small
proportion of theirannual income.
Despite these shortcomings, most of their transactions are lawful
according to Shariah, and they have provided a facility to the people who
want their income to be free from any element of interest. In their
membership form they have mentioned all the heads of their income and it
has been left to the member to mention in the form that he does not wish to
receive the income of some particular Heads.
Therefore, if a person states in the form that he does not want to
receive the income of PLS accounts and of PTCs, he can do so, in which
case his dividend will not consist of the income of these two heads, and the
dividend received by him can be treated as halal.
2. There are certain Mudarabas floated by different Mudarabah
companies registered under the Mudarabah Ordinance. According to the
Ordinance, no Mudarabah can be floated unless it has obtained a
certificate from the Religious Board to confirm that the proposed business
of the Mudarabah is not in conflict with the Injunctions of Islam. This
Religious Board, of which I am a member, examines various aspects of the
proposed business and brings amendments where necessary, and
certifies after satisfying itself with its conformity with Shariah. As a member
of this board, I had an opportunity to examine the main Schemes and the
model agreements of most of Mudarabas floated in the market, except for
two Mudarabahs, namely, Grindlays Mudarabah and BRR Mudarabah. So
far as these two Mudarabahs are concerned, I cannot opine about them
objectively. But the rest of the Mudarabahs I can say that their business, if
run in accordance with their prospectus and the model agreements
approved by the Board, is in conformity with the precepts of Shariah, and
one can buy these Mudarabah shares and enjoy the dividend distributed
against them as halal.
3. The third financial institution which is based on an interest free system is
'Faisal Islamic Bank'. The Pakistani branches of this bank have restricted
themselves to the Islamic modes of finance like Murabaha, leasing and
Musharakah only. I have gone through their model agreements and found
them, by and large, in conformity with Shariah. One can also avail of the
profits distributed by this bank to its PLS and investment accounts.1
Before parting with this question, I emphasize that what has been
1. This opinion was expressed in January 1991 and is subject to change based on the Bank's adherence or
non-adherence to Shariah. (EDITOR)
148
said above is based on my personal knowledge about the currrent state of
affairs in these institutions. But two points should always be kept in mind:
Firstly, a person like myself can only examine the main scheme of a
business and the broad principles underlying it. No outsider can scrutinize
each and every transaction going on in actual practice. Therefore, the
aforesaid comment on the business of these institutions is based on the
basic principles adopted by them in their scheme and their model
agreements. If they contravene any of these principles in their actual
practice, the ruling may be different. But so far as they claim to abide by
these principles, a person can proceed on the presumption that they are
following the correct principles unless otherwise proved.
Secondly, each of these institutions always remain subject to
changes, alterations and modifications. What is mentioned above is based
on their current position. If some substantial change takes place in their
procedure, the Shariah ruling about them may also change. It is
necessary, therefore, that their current position be ascertained each year
by consulting a Shariah expert acquainted with such problems.
24
149
Q/4s you know, in Saudi Arabia, Magreb prayers are usually offered
ten minutes after the call for prayers. I have recently seen one
Hadith which can be rendered into English as "No one should sit in the
mosque until he has offered two rakah. "Agreed by all. Also, I have heard a
Hadith which can be rendered into English as "Supplication between the
azan and the call for the prayers is always answered."
Does that mean that we should or we can offer two Rakah prayer
after the call for the Magreb prayer but before the congregation starts and
suplicate? (Ibid)
A The Holy Prophet (S.A.W.) has emphasized in a number of ahadith
that the maghrib prayer should be offered as soon after the sunset
as possible. On this basis the Hanafi jurists are of the view that the maghrib
prayer should be offered immediately after adhan without any intervening
prayer as nafl. However, other jurists are of the opinion that it is advisable
to offer two ra'katas naff before the maghrib prayer. The present practice
in Makkah and Madinah is based on this latter view. Now, when the gap of
about ten minutes is, in any case, available for every person who prays in
the haram, one can avail of this opportunity by praying two rak'ats before
the jama'ah, and there is no bar against it in Shari'ah, even in the Hanafi
school, because they prefer to avoid any nafl before the maghrib prayer
only to refrain from delaying the obligatory prayer. But when the obligatory
prayer is bound to be delayed, according to the current practice in haram, it
is pointless, to avoid the nafl prayer. So one can offer naff before maghrib
while praying in haram.
25
ON FISCAL LAWS
Q What is the deifinition ofRiba (\^j) according to the Holy Quran and
Sunnah of the Holy Prophet (S.A. W.). Does it cover the simple and
compound interest existing in the present day financial transactions ?
A The word, Riba as understood from the Holy Qur'an and Sunnah, is
any extra payment received over and above the principal amount,
regardless of the fact that that extra amount is significant or insignificant.
Islam, therefore, considers the Riba Haram, in all of its forms
The Fuqaha have given two interpretations of the word, Riba,: Riba-
al-Nasia ( ) and Riba al Fadl( i;j ).
Riba al-Nasia is defined as,
150
Which is translated as:
"Any lending arrangement that obligates the
borrower to pay a certain extra amount over
and above the payment of the principal amount
against the specified deferment".
Similarly, Imam Baihaqi reports the interpretation of Riba by Hazrat
Fuzalah Ibni Ubaid (R.A):
b ^31 J . • ya jz>-
"Any lending arrangement which results in
some benefits to the lender, is one of the kinds
of Riba". It is important to note that the Ayahs of
Holy Qur'an prohibiting interest relate to
Riba al-Nasia.
"O Ye who believe, fear Allah and give up what
remains of your demand for usury, if Ye are
indeed believers" (a\-Baqara278).
"If Ye do it not, take notice of war from Allah and
his Apostle, but if you desist, Ye shall have your
capital sum: Deal not unjustly, and Ye shall not
be dealt with unjustly". (al-Baqara, 279)
At the time of revelation of the above Ayahs, the prevalent form of
Riba was Riba al-Nasia. Therefore, the companions of the Holy Prophet
(S.A.W.) understood the meaning of these Ayahsin terms of Riba al-Nasia.
Thus Riba al-Nasia was categorically regarded Haram in matters of Qarz.
(Loan transactions :QARD)
Riba al-Fadloccurs in those commodity exchange contracts where
a contract provides payment of any extra quantity of the commodity.
For instance, one kilogram of wheat is exchanged for more than one
kilogram of wheat, regardless of quality consideration. What matters is,
that a given quantity is to be exchanged for the same quantity. In this case,
the Hadith of the Prophet (S.A.W.),
151
Sell gold by gold, silver by silver, dates by
dates, wheat by wheat, salt by salt, and barley by
barley like for like and equal for equal so he who
made an addition or who accepted an addition,
committed the sin of taking interest. But sell gold
for silver as you like but hand to hand and sell
barley for dates as you like but hand to hand.
Though the above Hadith mentions the incidence of Riba in six
things but the Fuqahah have extended the application of this Hadith to all
commodity transactions characterized by the same underlying reason.
Whenever the same commodity is exchanged for more (Quantity), the
Riba a/-Fad/wiII arise.
In the light of above explanation, it is clear that the word 'Interest' as
commonly understood in context of banking/financial pertains to the Riba
al-Nasia. Therefore, any extra payment specified in Qardrelating contract
over and above the principal amount, falls under the definition of Riba, al-
Nasia, irrespective of the rate/amount of the extra payment. Hence, both
the Simple and the compound interest are prohibited as being Riba al-
Nasia.
Some people, perhaps have misunderstood the
meaning of the verse, "Oye who believe, devour
not usury doubled and multiplied but fear Allah
that Ye may (really) prosper" (3:130)
And have tried to argue the permissibility of the simple interest. This
is totally wrong conclusion.
As a matter of fact, the Holy Qur'an wants to root out an interest
mentality as appears from verse (2:279). Ibn-e-Jareer has reported the
interpretation of Hazrat Qatada (R.A.) in his tafsir.
V ^ ' j) ^ • Op ^ ' ya - ' ilTLa
27
BANKS AND THE BORROWERS/INVESTORS:
Three situations can arise here:
i) Consumption loans: Bank will extend interest-free loans for
genuine consumption purposes.
ii) Borrowing for Investment: The banks will enter into Mudaarabah
and Mushaarakah agreements with the borrowers of the fund for
investment purposes. The agreement will specify the proportions
according to which profits/loss will be shared between the investor and the
bank. After charging the administrative expenses, the bank will distribute
the profits among the share holders and depositors according to the terms
of agreement.
154
ii) The question is two dimensional. The first relates to the effect of
devaluation on the internal loans. In such loans, the same amount of loan
will be repayable as before the devaluation. In this case, Imam Istijabi
reports the consensus of Fuqahah on the point that, if there is any change
in the value of currency, then the same amount of currency units will be
repaid as were loaned.1
As far as the payment of the external loans is concerned, the
devaluation will involve extra payment proportional to the rate of
devaluation on such loans.
iii) The answer here is essentially related to the above answer. A
given sum borrowed before inflation will be repaid in the same amount,
after the inflation. The inflation tends to reduce the real burden of the loan.
From this angle, it tends to favour the borrower against the lender. To
protect the lender, the indexation of loan is not allowed because the
indexation while protecting lender, hurts the borrowers.
Real answer to the problem of inflation is the introduction of the
Islamic Economic System in totality. An important feature of this system in
the monetary sector is prevalence of a relatively constant value of money.
1. Loans which are free of interest, and are advanced solely in order to assist the borrower. (EDITOR)
156
The above-mentioned insurance scheme may be Islamically
accepted as it is purged of the elements of gambling and interest.
(1) Mufti Muhammad Shafi, "provident Fund Par zakat Aur Sood Ka Mas'ala" Darul-lshaat, Karachi,
pi 8-20.
157
A The business activity will be financed through legitimate means, like
Mudarbah and Musharkah and also some of the other instruments
outlined in the answer to question. The consumption loan will be available
as Qarz-e-Hasana through Islamic banking system.
Qlf interest is fully abolished, what would be the inducements in an
Islamic Economic System to provide incentives for saving and for
economising the use of capital?
Alt is very well recognised that interest is not the primary or otherwise
an important factor for the saving. The overall savings in the
economy primarily depend upon the level of income. Some of the basic
motivating factors for saving are:
a) meeting future exigencies,
b) providing forold age, and,
c) bequests.
Since these factors will remain even after the elimination of interest,
therefore, it is most likely that the overall rate or level of saving will not be
affected significantly (after the abolition of Ribafrom the economy).
Muslim economists have suggested a wide range of saving
instruments which will be available to the potential savers in an interest
free economy.1 These instruments vary in terms of liquidity, risks and
returns so as to match preferences of the savers. Apart from existing
profit-based instruments like shares of joint stock company, N.l.T. Units,
ICR Mutual Funds and Investors Deposit Account and Participation Term
Certificate, new saving instruments compatible with Shariah, can be
brought into being. Among them, Mudarbah bonds floated by the
Government as well as by the private concerns can play important role.
Similarly, a variable dividend security issued by the State Bank can serve
as an important instrument. The holders of this security will participate in
its profits. This will provide a low risk medium of investment for the private
investors. Also, it can serve as a substitute for Government Bonds and
Treasury Bills for Investment of the surplus funds of the banks and other
financial institutions.
Lastly, the Government Bonds bearing no interest can be issued
when the holders may enjoy tax concessions.
As regards the role of interest as a discounting factor, it is pointed
(1) See for example, "Report of the workshop on elimination of interest from government transactions".
HIE, Pakistan, p 11-13.
158
out that even in the Western countries, the pure rate of interest is
considered to be an inadequate measure as a discount factor. It is usually
adjusted for a risk-premium.
In an Islamic Economy, the rate of return on real investment can play
the role of discount factor. Practically, it can be approximated by the return
on NIT Units.
QCan an Islamic State impose any tax on its subject other than zakat
andUshr?
A There has been two views among the scholars about this question.
The first view explicitly recognizes the sanctity of private property
and therefore does not allow an Islamic state to use taxes other than Zakat
and Ushr. The second and more dominant view is based on the recognition
that an Islamic state has to perform many socio-economic functions of
Amar Bil-Maaruf wa Nahi-An-al-Munkar, and defence. Among these
functions, alleviation of poverty, economic growth, social welfare services
and social justice are important. Achievement of these goals may
necessitate more revenue than can be available from Zakat and Ushr.
Therefore, an Islamic state can impose other taxes to be able to perform its
multifarious functions.
28
THE DISPOSAL OF INTEREST MONEY
1. The author is now inclined to the view that interest may also be paid for general welfare purposes, based
on the writings of classical jurists. (EDITOR)
2. In the case of interest which accrues on bank deposits, the obligation to pay that interest to charity arises
because the payers of that interest cannot be ascertained. If the payers are ascertained, then the interest
must be paid to them. (EDITOR)
161
29
PARTNERSHIP ON A FIXED PROFIT
Q Kindly throw some light on the use of credit cards, which are floating
in the market. Majority of these cards belong to professional
banking institutions, such as American Express, City Gold Card etc.
However, some cards are issued by companies such as Diners club etc,
which are not themselves banking institutions. Please explain the ruling of
Shariah about both these cards. In your reply please cover both the
aspects of using credit cards, first as holders of the card, used to offset the
purchase price and second, when we accept these cards as sellers.
(Muhammad Salman, Karachi)
A The use of credit card by a purchaser is allowed in Shariah, no
matter whether the card is issued by a banking institution or some
162
other company. However, the following points must be borne in mind in this
respect:
(i) The best way of using these cards is to open an account
wherefrom all the amounts owing are debited by the issuing company to
aviod the possibility of default which may in some cases, carry the risk of
interest.
(ii) If the system of direct debit is not arranged, one must always be
careful that he pays the bills within the stipulated time without fail, so that
interest may not be imposed upon him.
(iii) The annual fee paid by a card-holder to the card-issuing
company is not interest, rather it is a fee charged for certain services
rendered by the company for the benefit of the holder. That is why it is
charged irrespective of the amount actually spent by the holder.
The second question is whether it is permissible for a seller to
accept credit card. This question has been a point of debate between the
contemporary scholars of Islamic jurisprudence. Some of them are of the
view that the amount charged by the card-issuing company to the shop-
keeper is analogous to interest. They say that it is equal to discounting a bill
of exchange, hence not allowed in Shariah.
However, some other scholars are of the opinion that it is not
interest. On the contrary, it is a fee charged by the company for certain
efforts undertaken by it. Firstly, the company has to do a lot of work for the
benefit of the seller. Therefore, the commission charged by it is similar to
the commission of a broker which is undoubtedly permissible. This
commission is different from discounting a bill of exchange, because the
rate of discount in a bill of exchange is always tied up with the period of its
maturity, while the commission charged by the company from the
merchant is not so linked. This commission is determined irrespective of
the time on which the card-holder shall pay the amount to the company.
Therefore, it is just like a commission charged for brokerage services.
In my personal opinion, the second view seems to be more
preferable.
31
SEVERAL QUESTIONS ABOUT INSURANCE AND INTEREST
163
** Injuries that may be suffered by workers (company employees)
due to accidents in the course of their work.
***within the company's premises.
***whilst tra veiling in company vehicles.
***injuries that may be suffered by innocent parties involved in
accidents within the company's premises or in company vehicles.
In the case of motor insurance it is a statutory requirement that
vehicles owners must obtain an insurance policy to cover third party risks
and the company complies with this requirement. This is the only form of
insurance cover that the company now takes.
(2) Is it jaiz to take out an insurance policy to cover the anticipated
medical expenses of the employees of the company?
(3) Most companies offer to meet the medical expenses of the
empoyees of the company?
(4) There are circumstances in which the bank charges us interest
when our current account goes into overdraft due to circumstances
outside our control — mainly due to non-realization of cheques issued to
us by our debtors.
Is it jaiz for us to recover such interest from the debtor concerned?
(Rafiq Qasim, Colombo)
A(1) The permissibility or otherwise of an insurance policy depends on
the nature of the insurance scheme and on the terms and conditions
of the transaction. But, leaving aside the mutual insurance schemes, all
the insurance policies available with the traditional insurance companies
run on commercial basis have an element of interest or qimar or both.
Hence, they are not allowed in Shari'ah. So, it is not permissible to take an
insurance policy from a conventional insurance company in any one of the
firstfoursituations mentioned in yourquestion.
The prevalent third party insurance also does not conform to the
rules of Shari'ah. However, being a necessary legal requirement for the
use of a motor car, it is allowed on the basis of necessity only in those
countries where this kind of insurance is compulsory.1
(2) The same reply is also applicable here.
1. In certain countries, the state establishes a road accident fund by raising a levy from its citizens. This
fund is then used to compensate persons who suffer damage as a result of the negligent driving of
vehicles. Such afund has nothing to do with insurance. (EDITOR)
164
(3) A company may create a mutual insurance fund of its own for this
purpose. But it is not permissible in Shari'ah to take a policy from a
traditional insurance company.
(4) If the interest is charged by the bank without your knowledge or
without your having entered into an agreement with them for an interest-
bearing transaction, you cannot be held responsible for the sin of paying
interest. But of the same time, you cannot claim the amount of interest from
your debtor, because in that case you will be entering into a transaction of
interest deliberately.
32
ENTITLEMENT TO DEATH BENEFITS PAYABLE
BY PENSION FUNDS
166
A In the light of the rules of the Pension Funds Act 1956 mentioned by
you it appears that the grants given to the dependents of a deceased
person from the Pension Fund are not subject to the rules of
inheritance. The amounts deducted at source from the salaries of the
employees are to be treated as a subscription to the Fund which no longer
remain in the ownership of the deceased person and perhaps he has no
right to claim it back during his life time. The principle is that only those
properties of a deceased person are subject to inheritance rules which
he can claim rightfully during his lifetime. Since he does not have the
right to claim any amount from the fund, therefore, it is not to be taken as
left-over property. The fund being a legal entity it can decide to pay this
grant to whomever it deems fit from the family of the deceased. In the
terminology of Islamic Fiqh this grant is a voluntary gift (Tabarru'),
therefore, it is not necessary that it is to be distributed among all the legal
heirs according to their prescribed shares in the inheritance.
167
9
Page
171
appointing a mutawalli shall pass on to the Islamic State or judge
authorized by the State. If the waqf is created in a non-muslim country, or
in a muslim country where the State does not carry out the administration
of the waqf the Muslim residents of the relevant area are entitled to appoint
a mutawalli. It is preferable for them to select a mutawalli from among the
descendants of the founder of the waqf, provided that he is qualified to
work as such. However, this is not a universal principle. The Islamic state
or the inhabitants of the area may appoint any other person from outside,
specially when he is more capable to carry out the functions of the waqf.
A mutawalli of a mosque should always be an adult Muslim, fully
capable of administering the affairs of the mosque in a trust-worthy
manner using the funds with honesty for the betterment of the wag/only.
He should also be a practicing Muslim. If he lacks any of these conditions,
he is liable to be removed, even if he is the maker of the waqf himself or if
he is one of his descendants or any other person. In this case he must be
substituted by another person fully qualified for the purpose.
The administration of a waqf or a mosque can be entrusted to a
committee also, in which case the committee, as a whole, shall be the
mutawalli of the mosque having the same rights and obligations as those
of an individual mutawalli. The members of this committee should, as far
as practicable, have all the qualities mentioned above for a mutawalli of a
mosque.1
These are the basic principles underlying the rules of the
administration of a mosque. In the light of these principles the answers to
your questions can be understood easily. However, a brief answer to each
question is given belowforyourconvenience:
1. Most probably you have used the word "Jama'ah of a mosque"\n
the sense of its executive committee. There is no particular number
prescribed for its members, nor a particular locality from which they may
be selected. The main requirement is that they should have the qualities of
a mutawalli as mentioned above.
2. If the descendants fulfil the aforesaid requirements, they can
continue to be the members of the committee. Otherwise, they should be
substituted by capable persons.
3. "Trustee" is a legal term, different in connotation from the Islamic
term "Mutawalli". The qualifications of a mutawalli have been explained
earlier. If the executive committee has been formed after creating a legal
trust, each member of the Board of Trustees can be regarded as a trustee,
and his qualifications are the same as mentioned with reference to the
memberof the executive committee.
172
2
SOME QUESTIONS ABOUT INHERITANCE
174
with minute details in clear words, and one should not determine the
shares of the inheritors on the basis of his own analogy, unless it is
confirmed by some scholar familiar with the subject.
The normal course for replying a vague question about inheritance
is to refer it back to the person who asked the question for further query,
and to answer it only after the necessary details are obtained from him. But
as you are very far from us, and the required explanation would have taken
much time, we preferred to mention the rules for all the possible situations
which might be imaginable within the scope of your question.
2. In this case the married daughter of the deceased lady shall get
one half of the estate. Then, if she has a brother, or a son of a brother or a
paternal uncle or a son of an uncle he will get the other half. But if she has
none from the relations listed above, the other half shall go to all the
children of her daughters, no matter whether their parents are alive or
dead. The one half in this case shall be distributed among all of them in
such a way that every male shall receive twice more than a female. For
example, if the children of her daughters are ten, five male and five female,
the one half shall be divided into fifteen shares, out of which every male
shall get two shares, and every female shall receive one share.
3. If the deceased lady had made a wassiyyah (a will) that Hajf-e-
Badal should be performed out of her estate, then her heirs are under an
obligation to perform Hajj-e-badalon her behalf, provided that the amount
required for Hajjdoes not exceed one third of the total property left by her.
But if the deceased lady had made no wassiyyah for this purpose,
her successors are not under any obligation to perform Hajj-e-Badal for
her.1 However, the adult heirs may perform Hajj-e-badal from their own
shares, if they so desire.
Likewise, if the amount required for Hajj\s more than one third of the
property, the adult and sane heirs of the deceased lady may either
contribute from their own shares, or may choose to send somebody for
Hajj-e-badal from a place nearer to Makkah so that one third of the
property may be sufficient for Hajj.
1. This is the Hanafi Law. According to the other schools, the obligation constitutes a debt in the estate,
which must be discharged like any other debt. (EDITOR)
175
10
General / Miscellaneous
Page
1. THE ENTRY OF NON-MUSLIMS IN MAKKAH
AND MADINAH 179
2. THE WAY TO CONVERT TO ISLAM 181
3. CELEBRATING EID-UL-ADHA ACCORDING TO
THE HAJJ DATES IN SAUDI ARABIA 183
4. THE MEANING OF SHAHEED 186
5. TRANSLATION OF THE HOLY QUR'AN AND
RULING OF IT 187
6. ON JIHAD AND SHAHADAH 188
7. IS BANK EMPLOYMENT PERMISSIBLE? 189
8. ON RECITATION OF THE HOLY QUR'AN AND
ITS TRANSLATION 190
9. RECITING THE QUR'AN WITH REASONABLE
LOUDNESS WHEN PRAYING INDIVIDUALLY 192
10. SUSPICIONS CONCERNING WHETHER MEAT
IS HALAL 192
11. MEANING OF HAJJ-E-AKBAR 193
12. FUR GARMENTS AND THEIR USE 194
13. MACHINE SLAUGHTERING OF CHICKENS 194
14. PURCHASING PROPERTY THROUGH A BANK 196
Page
15. ATTENDING PARTIES FEATURING PROHIBITED
PRACTICES 197
16. WOMEN SHAKING HANDS WITH MALE STRANGERS 197
17. MARRIAGE CEREMONIES IN MASAJID 198
18. TRAVELING WITHOUT A LEGAL MAHRAM 198
19. A WOMAN STAYING ALONE IN A NON-MUSLIM
COUNTRY 199
20. ON EMIGRATION TO A NON-MUSLIM COUNTRY 199
21. MINIMUM REQUIREMENT FOR ENTERING JANNAH 203
22. THE RULING PERTAINING TO THE FOUR RAKA'AT
BEFORE THE PRAYER OF 'ISHA' 205
23. HADITH RELATED TO THE DIFFERENCES OF THE
UMMAH 206
24. THE MEANING OF THE WORD MUJADDID 208
25. WHAT IS 'AL-MASJID-AL-AQSA'? 210
26. WAS SALAH OBLIGATORY ON THE PREVIOUS
UMMAHS? 211
27. WHAT IS THE REWARD FOR RECITING THE QUR'AN
ON A TAPE RECORDER? 211
28. SOME QUESTIONS ABOUT TRADITIONAL
MADRASAHS 212
29. TAQLEED OR FOLLOWING AN IMAM ON MATTERS
OF SHARIAH 215
30. FOLLOWING ONE PARTICULAR IMAM IN EVERY
JURISTIC ISSUE 220
31. TRANSLATION OF THE HOLY QUR'AN AND RULING
OF IT 224
32. DOES ISLAM PERMIT DONATIONS FROM NON-
MUSLIMS FOR AN ISLAMIC CAUSE? 225
33. THE METHOD OF SPELLING THE NAME OF
PROPHET (S.A.W.) 226
1
THE ENTRY OF NON-MUSLIMS IN MAKKAH AND MADINAH
180
Keeping in view the context of the verse of Surah al-Bara'ah and this
historical background, Imam Abu Hanifah has not taken the verse as a
prohibition against the entry of non-muslims into the limits of Haram or into
the Holy Mosque, but has confined the prohibition to the performance of
Hajj or 'Umrah only. It means that non-muslims cannot perform Hajj or
'Umrah.
2
THE WAY TO CONVERT TO ISLAM
Q"What is the procedure for a Christian to convert to Islam in order to
marry a Sunni Muslim girl? Which reputable institution in Karachi
arranges for such a conversion and Nikah, so that it is widely accepted in
oursociety?"
(Anonymous)
Alt is not a correct practice to embrace Islam for the sake of marrying a
Muslim girl only. Islam is a composition of certain beliefs and acts. It
is a way of life. It is a matter of faith and conviction. In order to become a
Muslim, it is necessary to accept all its basic teachings with one's heart and
soul. If one's real purpose is only to marry a Muslim girl, and he wants to
register himself as a Muslim only because he cannot marry that girl without
it, while he does not have faith in the basic beliefs of Islam, he cannot be a
Muslim in reality.
Therefore, one should know at the first instance that conversion to
Islam is not meant for marrying Muslim girls. One should, first, study the
basic Islamic beliefs and teachings, and if he is convinced that they are
worth accepting, he should accept Islam for its inherent rightfulness and its
intrinsic merits, and not only because he wants to marry a girl.
Now, the basic beliefs one is required to accept while entering into
Islam are the following:
(i) God is One. He has neither a partner, nor a son or daughter. He is
One in the true sense of the word which has no room for the concept of
Trinity, or for any other form of camouflaged monotheism or a disguised
polytheism.
(ii) The Holy Prophet Muhammad (S.A.W) is the Last Messenger of
Allah after whom no messenger or prophet of Allah (in any sense of the
word) will come.
181
(iii) The Holy Qur'an is the last of the divine books revealed on the
Holy Prophet (S.A.W) and all its contents are true.
(iv) The life Hereafter is the eternal life one has to live after his death
where he will have to face the fate of his good and evil deeds.
(v) All the teachings given by the Holy Qur'an or by the Holy Prophet
(S.A.W) in absolute and unambiguous terms are true, acceptable and
binding.
Once a person accepts all these fundamental beliefs as true, both
verbally and with his heart, he becomes a Muslim.
Conversion to Islam has no particular procedure, like baptism etc.
As soon as a person accepts the aforementioned beliefs with his heart and
soul and professes them verbally, he enters the fold of Islam. It is not
necessary that he seeks the mediation of a saint or priest, nor is it a
prerequisite to go to a mosque or to an institution for accepting Islam. One
can accept Islam on his own. However, it is advisable to go to a learned
Muslim who can inform him about the basic beliefs of Islam and can teach
him the concise and comprehensive words to express his acceptance to
those beliefs.
Normally following sentences are used for that purpose:
©lX-c ^' jI *UJi ^*1 *01
"I bear witness that there is no god but Allah, and I bear witness that
Muhammad (S.A. W) is His slave and messenger."
I have believed in Allah and His Angels and His Books (as they were
originally revealed on His Prophets) and in His messengers and in the Last
Day and in the fact that all the good and bad destinies come from Allah and
in being raised alive after death."
A further requirement for a convert Muslim is to free himself from
those beliefs of his former faith or religion which are not in line with the
Islamic beliefs. For example, a Christian must proclaim that he does no
more believe Jesus Christ as the Son of God or a part of the Godhead.
Instead, he accepts that he was a revered messenger of Allah, and was no
more than a messenger, having all the human attributes.
There is a large number of Muslim institutes in Karachi which can
help a non-Muslim to do the needful for accepting Islam. Here are the
addresses of some of them:
182
1. Daurl-Uloom Korangi "K" area Karachi.
2. Jamiatul-Uloom-al-lslamiyyah, BinnoriTown, Karachi.
3. Jamia Farooqi, Shah Faisal Colony, Karachi.
3
CELEBRATING EID-UL-ADHA ACCORDING TO THE
HAJJ DATES IN SAUDI ARABIA
Q1. Is it all right for me to follow the Jamia Mosque for Eid-ul-Adha
celebration although I do not agree with this decision to celebrate it
with Hajj day in Saudi Arabia (i. e. next to Hajj day).
2. What is the true significance of the details given in the attached
brochure on the light of the Fiqh followed in different schools?
3. Does it agree with the decision taken by Fiqh council of Saudi
Arabia which has members from all over the Muslim world.
(A Canadian Muslim)
A I have gone through the article enclosed with your letter and
published in the Newsletter of the Islamic Society of North America,
Vol.2 No.2. With my utmost respect to the sentiments of muslim unity
expressed in the article, I am forced to say that the view explained in the
article is in total disagreement with the teachings of the Holy Qur'an, the
Sunnah of the Holy Prophet (S.A.W) and with the Shari'ah position
recognised throughout the centuries. This is an unprecedented view which
has never been adopted by any of the Muslim jurists during the past 14
hundred years, and it has a number of intrinsic defects and anomalies,
some of which are summarized hereunder:
1. The article states that the celebration of Eid-ul F/'frshould be tied
up with the sighting of the moon in each relevant country and should not be
linked with the celebration of Eid-ul-Fitr in Saudi Arabia. But at the same
time the article argues for the celebration of Eid-ul-Adha according to the
Saudi Calendar. In the first place, I am unable to understand how can this
scheme work reasonably? Suppose, the American Muslims have declared
1st of July as 28th of Zulqa'dah according to their local sighting of the
moon. But the Saudi authorities have announced the same date to be the
first of Zulhijjah. If the American Muslims follow the Saudi declaration, as
proposed by Isna in the said article, it will mean that the month of Zulqa'dah
will end up on the 27th or 28th day, which is an absurd position on the face
183
of it, because an Islamic month cannot have less than 29 days, as it is
expressly mentioned by the Holy Prophet (S.A.W) in the well-known
ahadith. The other alternative possibility in such a situation would be to run
the calendar according to the Saudi calendar irrespective of the local
dates. But this option will be even worse, because it will mean that Eidul-
Adha is being celebrated in America on 8th or 9th of Zulhijjah and not on
the 10th. One can easily appreciate that this option is more un-acceptable
than the first one, because Eid-ul-Adha can only be celebrated on 10th of
Zulhijjah.
It is thus clear that the theory proposed in the article is not
practicable in any way.
2. The article has laid much emphasis on the concept of the unity of
Muslim Ummah which cannot be denied by anyone. But at the same time
one must appreciate that the unity does not mean that the whole Muslim
Ummah throughout the world should perform their acts of worship at one
time and at the same time, because it is not possible at all. It is evident that
when the people offer their Fajr prayer in Saudi Arabia, the Muslims of
America offer their 'Isha prayer of the previous day, and when the people
offer their Fajr prayer in Los Angeles, the Muslims of Pakistan and India
offer their Maghrib or the 'Isha prayers of the same day. If it is made
obligatory on all the Muslims of the world to offer their acts of worship at
one time for the sake of unity, this type of unity can never cbme into
existence. It is, therefore, obvious that the difference of time while offering
acts of worship can in no way disturb the concept of Muslim unity. What the
concept of Muslim unity does actually mean is that all the Muslims should
treat each other with brotherly sympathy and affection and should not
spread disorder and dissension among them, nor should they invent new
ideas foreign to the Holy Qur'an and Sunnah which may divide the Muslims
and raise quarrels between them.
It is also astonishing that the article takes the celebration of Eid-ul-
Adha in different days as against the concept of unity, while in the matter of
the celebration of Eidul F/'frthis concept of unity is not applied. It is not
understandable that if the celebration of Eid-ul-Fitr\r\ different days does
not harm the concept of unity, how can it be said to harm the unity in the
case of Eid-ul-Adha?
3. It is true that the Eid-ul-Adha falls immediately after the day of
Arafat in Saudi Arabia, but it is not necessary that the Muslims of every
country should follow the same dates in their respective areas. Hajj is, no
doubt, tied up with a particular place, but the celebration of Eid-ul-Adha is
184
not confined to that place alone. It is celebrated everywhere in the world.
Therefore, it cannot be held as a celebration which should in any case
conform to the Saudi calendar, as suggested in the article.
4. It is admitted in article itself that the celebration of Eid-ul-Adha in
other countries was never linked with its celebration in Saudi Arabia
throughout the 14 centuries of our past. But, according to the author of the
article, it was due to the lack of communication between the countries,
because in the absence of telecommunication, the people living outside
Saudi Arabia could hardly know the exact date on which the Hajj was being
performed in Saudi Arabia. The author of the article argues that this
phenomena has totally changed with the progress of telecommunication
and other scientific resources, and it is now known to everybody on what
date the Hajj is being performed in Arafat, therefore, the celebration of Eid-
ul-Adha can easily be tied up with its celebration in Saudi Arabia.
But this argument itself is a clear admission on the part of the author
to the effect that it is not obligatory according to the Holy Qur'an and
Sunnah to celebrate Eid-ul-Adha according to the Saudi Calendar. Had it
been so, the Muslims would have tried their best to know the exact date of
Hajj in Saudi Arabia. It is not correct to say that it was not possible in those
days for the people living outside Saudi Arabia to know the exact date of
Hajj, because the date of Hajj is normally determined on the very first night
of Zulhijjah, and the Hajj is performed after a period of nine days was more
than sufficient to acquire the correct information about the exact date of
Hajj. But no single jurist has ever stressed upon collecting such
information in order to celebrate Eid-ul-Adha according to the dates of
Saudi Arabia.
Moreover, if this argument of the author is accepted, and it is held
that the real intention of the Holy Qur'an and Sunnah was to link the
celebration of Eid-ul-Adha with the Saudi dates, as a mandatory provision
for all the Muslims of the world, it will mean that the Shari'ah has stressed
on a principle which was not at all practicable for more than 1300 years. Is it
not against the Qur'anic declaration that Allah does not make a thing
mandatory unless it is practicable for the human beings?
If the author means to say that the celebration of Eid-ul-Adha was
not linked with the dates of Makkah in our past, but it has now become a
mandatory requirement of Shari'ah, then the question arises who has
abrogated the previous principle and on what basis? There is no provision
in the Holy Qur'an or in the Sunnah which orders the Muslims to celebrate
Eid-ul-Adha according to their local dates upto a particular time and to link
185
it with the dates of Makkah thereafter. Whoever considers this and similar
other questions arising out of this unprecedented theory advanced by the
author of the article can easily appreciate its fallacy.
At the end, I would like to inform you that the question of sighting of
the moon in each lunar month including Zulhijjah was thoroughly
discussed in the annual session of the Islamic Fiqh Academy (held in
Jordan between 11 th and 16th October 1986) consisting of more than 100
outstanding scholars of Shari'ah and the resolution adopted by the
Academy has recommended all the Muslim countries to determine all the
lunar months including Zilhijjah on one basis (and not to have one basis for
Eid-ul-fitr and another for Eid-ul-Adha). This resolution represents the
consensus of the Muslim jurists throughout the world. But the proposal
given by the author of the article is totally against this consensus.
Before parting with the subject, I would like to emphasize that such
unprecedented proposals can never advance the cause of Muslim unity,
rather, they may create a new point of disunity and dissension among the
Muslims. Before issuing such opinions as a definite Yafwa'they should be
discussed at some reliable international forum of contemporary Muslim
jurists like International Islamic Fiqh Academy of Jeddah. I would propose
to refer this matter to the Academy and to wait for its answer before
implementing this proposal.
4
THE MEANING OF SHAHEED
QThe word 'Shaheed' has been frequently used in the books,
newspapers and magazines for different type of people. I am sure
that this word should have a specific connotation in the Islamic
Terminology. I will be grateful if you please explain the true meaning of this
word and the categories of persons for whom this terms may be applied in
Shari'ah.
(Abdul Sattar, Chicago)
A In fact 'Shaheed', is a specific term, used in the Holy Qur'an and
Sunnah. It has certainly a specific meaning and one should be
careful before applying this term to a person and you should ascertain
whether he is really qualified to be called a Shaheed.
According to Islamic jurisprudence 'Shaheed' is of two kinds:-
1. Shaheedin the real sense.
186
2. Shaheed'm the constructive sense.
Shaheed 'm the real sense is a Muslim who has been killed during
'Jihad' or has been killed by any person unjustly. Such a person has two
characteristics different from common people who die on their bed. Firstly,
he should be buried without giving him ritual bath. However, the prayer of
Janazah shall be offered on him and he shall also be given a proper kafan.
Secondly, he will deserve a great reward in the Hereafter and it is hoped
that Allah Almighty shall forgive his sins and admit him to the Jannah. It is
also stated in some of the traditions that the body of such a person remains
in the grave protected from decay and decomposition.
As compared to this kind of 'Shaheed', a Shaheed\r\ a constructive
sense is a person who has been promised by the Holy Prophet (S.A.W) to
get a reward of Shaheedln the Hereafter but is not taken as Shaheed with
regard to the rules of burial. It means that his dead body has to be bathed
like a dead body of any other person. The Holy Prophet (S.A.W) has
included in this kind of Shaheed a large number of persons such as a
person who has died in Plague or who has died in an accident, like fire or
traffic accident or has been drowned in the water or a woman who has died
during the delivery of her child etc.
Allama Jalaluddin al Suyuti, a well-known scholar of Islamic
disciplines, has collected all the Hadiths relating to this kind of Shaheed
and has come to the conclusion that there are thirty categories mentioned
by the Holy Prophet (S.A.W) who deserve to be called Shaheed in this
sense. But in the normal course, the word 'Shaheed'\s applied only for the
first kind. However, it is not prohibited to use the word for a person who falls
in any one of the categories mentioned in the second kind.
It is evident from the above discussion that the word 'Shaheed' can
only be used for a Muslim and it cannot be applied to a non-Muslim at all.
Similarly, the term cannot be used for a person who has been rightly killed
as a punishment for his own offence.
5
TRANSLATION OF THE HOLY QUR'AN AND RULING OF IT
Q There are a number of books which contain the full translation of the
Holy Qur'an without giving the Qur'anic text in Arabic. Please
explain whether reading of such translations has the same reward as the
recitation of the Arabic text of the Holy Qur'an is supposed to have.
Moreover; can one touch such translation in a state of impurity and if
187
somebody reads the translation of the verse of 'Sajdah' is it incumbent
upon him to perform the sajdah oftilawat?
(Anonymous)
A'Ulama have clarified that it is not allowed in Shar'iah to print or
publish the translation of the Holy Qur'an without its Arabic text. It
may be observed that the people of other religions have published the
translation of their Holy Books without their original text and consequently
the translations have spread so widely that the original text was totally
ignored and it is not available today. In order to avoid such consequences it
was held by the Muslim jurists that the translation of the Holy Qur'an should
always be accompanied by the Arabic text of the Holy Book.
However, it is generally observed that many people in our times do
not observe this important ruling of the Muslim jurists and a number of
translations have been published without the original text. Such
translations cannot be held as the Holy Qur'an nor can the injunctions
relating to the Holy Qur'an be attributed to these translations. If somebody
goes through such translations he may have the reward of studying the
Holy Qur'an yet the reward specified for its recitation cannot be achieved
except by reciting the original text of it. Similarly such translations
published without the original texts can be touched without wudu and if
someone reads the translation of the verse of Sajdah it is not incumbent
upon him to perform the Sajdah of Tilawat because the translations of the
Holy Qur'an do not carry the status of the Holy Qur'an itself and the rules
regarding the Holy Qur'an cannot be attached to such translations.
6
ON JIHAD AND SHAHADAH
Q\Ne hear a lot of talk about Jihad these days, like the Afghanistan
Jihad, the Kashmir Jihad. Then, we have the proliferation of
shaheeds in our society with political parties and activist groups claiming
shahadah for those dead from among their ranks. All this is very confusing.
We seem to have lost the yard-stick which could help us distinguish
between Jihad or bilateral hostility, shahadah or natural or crime-
orientated death and straight self-ruination. Please help us with your
advice.
A The first subject requires a larger frame of discussion where we have
to determine what becomes Jihad, and when, and what conditions
are binding therein. It is difficult to cover all these aspects within the scope
188
of this discussion. The best course is to isolate the inquiry to a particular
case of Jihad and try to find out whether or not it is Jihad. As for Shahadah,
the rule is that one who lays down his life fighting in the way of Allah is
Shaheed. Then, anyone killed 'zulman'or unjustly is a shaheed. But, here
are two Muslims fighting each other for no reason whatsoever or for the
wrong reason, while one of them kills the other, that is, for no reason, then
as the hadith states, the killer deserves Hell and so does the killed. Both
must go to Hell because the one killed, had he managed to lay his hands on
the killer, he would have been the one to have killed his killer.
Q Please overlook the digression. I wanted to find out about the nature
of Afghan resistance. What is Jihad?.
A After the Russian armies invaded there, the resistance put up by the
Muslims of Afghanistan will certainly be termed as Jihad. There is no
doubt that those who laid down their lives in this valiant effort are shaheed.
7
IS BANK EMPLOYMENT PERMISSIBLE?
1. In other words, the deceased, if given the opportunity, would have sought to kill his killer. (EDITGH)
189
What if he can not find a suitable job?
2 i lUSjl J
that is, teach them the Book, explain to them its meanings. So, the
recitation of the Qur'an stands established as one of the objectives of the
190
mission of the noble Prophet (SAW); and the explaining of its meanings
has been identified as yet another. The reality is that both are necessary -
the recitation of the Holy Qur'an as well as its teaching and learning. As for
those who say why should they recite like parrots when they are not going
to understand the meaning, they end up missing the very taufiq of
understanding. This much about Tilawah, the recitation of the Qur'an.
Teaching and learning come next. Let us keep in mind that the recitation of
the Qur'an is a standing obligation, a definite and on-going objective, an
Ibadah, act of worship in its own right, and a source of rewards and
blessings. Just imagine that the Holy Prophet (S.A.W) is teaching his
Companions, all of them Arabs, the meanings of Qur'anic words, of
course, but, at the same time, he is telling them how to pronounce the
words after him. He is teaching them the method of reciting the Qur'an. So,
the method that he taught was most faithfully passed on to the generation
following the Companions, the Tabi'in, and the generation which followed,
the Taba'Tabi'in, and so on and so forth right upto our own time with a
concern for authenticity that remains unmatched in human history. This
tells us that the proper and correct recitation of the Holy Qur'an is a
constant objective. It is our duty to recite the words of the Holy Qur'an
correctly and nicely. It is for this reason that it has been said in hadiththai
there is a reward with Allah on every letter recited from the Holy Qur'an.
Now, if there is some one still looking for a 'rationale' for this frankly
though, I do not believe in 'rationales', especially concerning the 'ahkam'
(injunctions) of Allah Ta'ala - but, for one who prefers to see only from that
angle, I would say that, it is through this method that Allah Almighty has
taken the responsibility of keeping the text of the Holy Qur'an preserved for
all times to come.
Just imagine how comprehensively that responsibility has been
fulfilled: not one part of a letter, not one dot and not one single word of the
text of the Holy Qur'an has ever been changed during the last 1400 years.
The phenomenon of the preservation of the Holy Qur'an is something Allah
Almighty has manifested at the hands of the Muslim ummah itself, through
its children, through its young people who do not understand the meaning
of the Holy Qur'an. God forbid, if there were some one who succeeds in
burning all the existing copies of the Qur'an, and eliminates the printed
version from the face of the earth, even then, the whole Qur'an could be
written again from the memory banks of small Muslim children. This is so
because the men and women of this ummah held the Qur'an dear to their
hearts in unmatched esteem. They revered the words of the Qur'an in the
same manner as they held its learning and teaching in esteem; it was a
191
total effort in devotion to the recitation, learning its meanings and
teachings, understanding its message and perfecting in their deeds.
So, the excuse that the words of the Qur'an can be bypassed in
favour of translated readings is a product of gross misunderstanding.
However, one should not stop at the simple recitation of the Qur'an. One
should go further, move towards the understanding of its meanings, see for
himself, through tafasir (explanations), the message Allah Almighty has
given therein. The point is that recitation alone should not be taken as
sufficient. Making an effort to understand its meanings and message must
follow. However, the attitude of leaving out the learning of the words of the
Qur'an, that is, its correct recitation, as if it was something useless, is
totally wrong. They ultimately remain deprived of the very ability to
understand its meaning and message.
9
RECITING THE QUR'AN WITH REASONABLE
LOUDNESS WHEN PRAYING INDIVIDUALLY
Q"Can one recite the Holy Qur'an with moderate loudness, when one
is offering not in congregation (jama'ah) please elaborate the
sorrect position in the context of Shari'ah".
(Muhammad Yousuf Ghani, Karachi)
A Yes, it is permissible, rather advisable, to recite the surah al fatihah
and other verses of the Holy Qur'an with moderate Loudness, when
one is offering individually, the salah offajr, maghrib and Isha'bul it is not
allowed to recite loudly in the zuhrand 'Asrprayers. Loud recitation is also
advisable in the nafl salah which is offered in the night hours, like tahajjud
or Awwabin. As for the nawafil offered in daytime , it is also permissible ,
though not advisable.
10
SUSPICIONS CONCERNING WHETHER MEAT IS HALAL
Q'We in North America buy our food stuff, including meat, from a
Muslim's store. He tells us that the meat is duly slaughtered by a
Muslim according to Shariah, but we do not know whether he is correct in
his statement or not. Some people become suspicious about his statement
on the ground that they themselves have not seen the animal being
slaughtered and the possibility cannot be ruled out that the seller is
192
claiming the meat to be halal only to attract the customers who strictly
follow Shariah.
What should be a Muslim's attitude in this case?"
(Yusuf Ghani, New York)
A If a Muslim informs you about a particular meat that it is slaughtered
by a Muslim in complete conformity with the Islamic injunctions, and
there is no apparent reason to disbelieve him, you trust his statement and
take the meat as halal. On should not indulge in baseless suspicions about
a Muslim's statement. We have been directed to presume a Muslim's
statement as true unless the contrary is proved.
However, it one suspects his statement on reasonable grounds, for
example, he has himself seen him purchasing the meat from a non-Muslim
dealer who deals in haram meat, or he has found him too careless in these
matters to be relied upon, then he should not rely on his statement except
after enquiry, and the meat of his store should not be purchased or used
unless one is fully satisfied that it is halal.
11
MEANING OF HAJJ-E-AKBAR
193
any other day. The word "akbar" (greater) is used only to distinguish it from
Umrah which is a minor hajj.
12
FUR GARMENTS AND THEIR USE
13
MACHINE SLAUGHTERING OF CHICKENS
194
slaughter house was that the throat of the chicken was cut by a machine
while a Muslim standing nearby recited BismillahiAllahu Akbar.
It was observed that this recitation did not coincide with the
slaughter of each and every chicken, while it is one of the fundamental
requirements of Shari'ah that the Name of Allah be recited on each act of
slaughtering an animal. Moreover, the machine goes on slaughtering
without any break while the person who recites the name of Allah may
have some break. The only solution to this problem is that instead of one
person, three Muslims be employed to cut the throats of chicken manually.
They can slaughter the hanging chicken, alternatively. The speed of the
machine need not be slowed down, nor the production needs be reduced.
Each one of these three persons will cut the throats of chickens by reciting
the name of Allah. This procedure has been practised in a number of
countries where the objective of mass production was never harmed or
adversely affected. In the same Maple Lodge slaughter house, we had
seen a number of jobs being done manually by persons standing by the
railing on which the chicken pass continuously. The same method can
easily be applied at the stage of slaughtering also. This will require only two
or three more persons to be employed which should never be a problem for
such a big firm.
You have referred to the manual slaughter vis a vis the mechanical
slaughter. But I feel that the basic purpose is the mass production of Halal
animals. If this objective is achieved, one should not insist on its being
manual or mechanical. In the way I had suggested, all the process of the
mechanical production will remain as it is. The only act to be done
manually is the act of cutting the throat without slowing down the machine.
You can see that the separation of liver and some other parts of chicken is
still being done manually, while it does not in any way, slow down the
process. The same method is suggested for cutting the throat also.
195
b) If it is permissible then should we pray in the same place, i.e.
same Mehrab and Mimber?
Because of severe weather conditions and Government
regulations, prayer can not be performed outside the Masjids.
A As for performing Juma'ah prayer more than once in the same
masjid, mvprima facie view is that it should be permissible subject to
two conditions: First, this method should be adopted only in an extreme
necessity where one masjid cannot accommodate all the Muslims praying
there. Second, the masjid, in the first jama'atshould be used to its optimum
capacity in the sense that no place should remain vacant while the first
jama'at\s being performed. However, as I had mentioned earlier, this is my
prima facie view. I have drafted question and answer to this effect to seek
the opinion of other Ulama. After getting their answer, I shall send it to you
in the form of a formal Fatwa, Inshallah.
196
A The transaction mentioned above, being based on interest, is
impermissible and unlawful. However, Muslims should make efforts
to adopt other permissible methods in accordance with the Shari'ah of
Islam as opposed to this interest-based transaction. For example, the
Bank could itself sell things pointed out in the question on instalments. In
other words, the Bank should first buy from the original seller, add an
appropriate profit, then sell it onwards to the customer, and then realize its
total price in instalments. (Murabahah)
15
ATTENDING PARTIES FEATURING PROHIBITED PRACTICES
197
A Women shaking hands with male strangers and men shaking hands
with female strangers is not permissible under any circumstances.
This position is fully supported by clear statements in the noble Ahadith
and all jurists concur on this being impermissible.
17
MARRIAGE CEREMONIES IN MASAJID
198
of a woman's total maintenance on her father before her marriage, and on
her husband after the marriage, and has not allowed women to leave the
house without some urgent or pressing need. Therefore, this mode of
travelling for education and employment without a Mahram is not
permissible.
However, in the case of a woman who has neither husband nor a
father, nor does she have some other relative who could support her
financially, nor does she have enough funds to take care of her needs, it
would, under this situation, become permissible for her to go out of the
house under legal hijaband earn her living to the extent of her need. Now,
when this purpose can be easily achieved while living in one's own country
or city, there is no need to travel to a non-Muslim land. (Please see: Mughni
I'ibn Qadamah, p.190, v.3)
19
A WOMAN STAYING ALONE IN A NON-MUSLIM COUNTRY
20
ON EMIGRATION TO A NON-MUSLIM COUNTRY
Q.1What is the ruling regarding adoption of the nationality of a non-
Muslim country? Many people who adopt the nationalities of these
countries, or wish to do so, insist that they do so only because they are
199
persecuted in their own countries, through imprisonment, threats and
intimidation or confiscation of their property etc. Others see no difference
between their own countries, which though Muslim, have no Shar'iah, and
those of the West. They contend that whilst both are equal in having no
Islamic laws, their personal rights, property and honour are safer in their
adopted country, and they will not be imprisoned or persecuted without
reason.
A They issue of emigration to a non-Muslim country and permanent
settlement there, is one on which the ruling would differ according to
the situation, and the reasons for the emigration.
a) If a Muslim is forced by his circumstances to emigrate, e.g. he is
persecuted in his country or imprisoned, or his property is confiscated etc.,
without his having committed any crime, and he sees no way other than to
emigrate to a foreign country, then he would be permitted to do so in such a
case without any Karahat (abhorrence) whatsoever, as long as he
resolves to protect his faith, and keep himself away from the widespread
evil found there.
b) Similarly, if a Muslim is forced to emigrate due to his financial
situation, i.e. he cannot find the necessary means of subsistence despite
extensive effort and he sees no alternative other than emigration to a non-
Muslim country, then he is permitted to emigrate subject to the above
conditions. Earning a livelihood through permissible means is also a duty
for a Muslim, after his other Fardh duties, and the Shari'ah has not
specified a certain place for it, Allah Ta'ala says:
^ • \A
.11
"He is the one who has made the earth manageable for you. So
traverse ye through its tracts, and enjoy of the sustenance which he
furnishes; And unto him is the resurrection." (Surah AIMulk, v. 15)
c) If a Muslim adopts the nationality of a non-Muslim country for the
purpose of calling its people towards Islam, or to convey Islamic laws to the
Muslims residing there, and to encourage them to stay firm on their faith,
then this is not only permissible, but also a source of reward. Many of the
Sahabah and Tabi'een settled in distant Kuffar lands for this very purpose,
and this action of theirs is counted amongst their virtues and points of
merit.
200
d) If a person has enough means of livelihood available to him in his
native country to be able to live according to the (average) standard of its
people, but he emigrates in order to raise his standard of living and live a
life of luxury and comfort, then emigration for such purpose has at least
some degree of Karahatm it, because such a person is throwing himself
into a storm of evil, and endangering his faith and moral character without
there being any necessity for it. Experience shows that the people who
settle in non-Muslim countries for luxury and comfort find their religious
restraint diminishing in the face of the many temptations of evil.
Therefore, it is reported in ths ahadith that one should not live with
disbelievers unnecessarily.
Abu Dawood narrates from Samrah bin Jundub (R.A) that the Holy
Prophet (S.A.W) said: "He who mingles with a disbeliever and dwells with
him is like him. "Abu Dawood and Tirmidhi also report that the Holy Prophet
(S.A.W) said: "lam free (i.e. I disavow myself) from every Muslim who lives
with disbelievers" .The Sahabah asked: "Why, O Messenger of Allah?" He
replied: "The fires of the two cannot co-exist." Khattabi says in his
commentary on this hadith that it has several meanings. One is that the two
(a Muslim and a Kafir) are not equal in Hukm (ruling) - they both have
different rules. Some scholars take this view. Others explain the meaning
as being that Allah has differentiated between the lands of Islam and Kufr-
and consequently it is not allowed for a Muslim to live amongst disbelievers
in their lands, because when the Kuffar light their fires he will be seen as
one of them. The scholars also derive from this ruling that one should not
stay in the lands of the Kuffar when visiting for trade etc. (Khattabi,
Ma'alim-As-Sunan, K. Jihad, 473:iii).
Abu Dawood relates from Makhoolin his 'Maraseel' that the Prophet
(S.A.W) said: "Do not leave your children amongst enemies (i.e. Kuffar).
(Tahzeeb As-Sunan, Ibnul Qayyim, 437:iii)
For this reason, some scholars say that living in Kaffrcountries, and
increasing their numbers solely for material wealth, is an action which
damages ones 'Adala (integrity). (Takmila Raddul-Mukhtar, p.101, v.1)
Finally, if a person adopts a non-Muslim nationality solely for the
purpose of increasing his standing in society, and as a matter of pride, or in
preference to a Muslim nationality, or in imitation of the Kuffar, then all such
actions are Haram without exception, and there is no need to cite evidence
for this.
201
Q.2 For the Muslims living in the West, bringing up their children in
such an environment has its drawbacks and disadvantages, and it
also has its benefits. There is a strong possibility of these children picking
up habits from Christian and Jewish children with whom they play and mix.
This is especially so in those cases where the parents neglect their
childrens' upbringing due to their work etc., or where one or both of the
parents have passed away. What would be the effect of this presumed
harm on the ruling regarding emigration to a non-Muslim country? At the
same time, many Muslims who live there contend that in the non-Muslim
countries their children run the risk of being led away from Islam through
mixing with atheist and communist groups etc., especially when in some
non-Muslim countries these groups are supported by the authorities, their
beliefs and doctrines are included in the educational syllabuses, the minds
of common people are poisoned with them, and those who oppose them
are tortured and imprisoned. In such circumstances, living in that country is
more dangerous for our childrens'faith and their beliefs.
A Bringing up children in a non-Muslim country is a serious issue, and
is a matter that is fraught with danger, and therefore, should be
abstained from as far as possible in those cases where emigration to and
residence in a non-Muslim country has been termed Makroohor Haram.
However, in those cases where adopting a foreign nationality and
living there is allowed without Karahat (abhorrence), since a valid reason
exists, the same ruling would apply to bringing up one's children in that
country. Such a person should then attend to the upbringing of his children
with special attention, and the Muslims living there should create an
environment in which newly arriving Muslims can properly protect and
preserve their beliefs, actions and moral character.
204
22
THE RULING PERTAINING TO THE FOUR RAKA'AT
BEFORE THE PRAYER OF 'ISHA'
205
again corresponds to the number of 4 obligatory Rak'ats of 'Asr. On this
analogy, the said scholars have preferred to perform 4 Rak'at before 'Isha',
because it will correspond to the four obligatory Rak'at to be performed
after this Nafl Prayer. It should, however, be kept in mind that the number of
these 4 Rak'at should not be taken as determined by the Holy Prophet
(S.A.W), nor should it be taken as a specific Sunnah. Instead, if one
performs 2 Rak'at only, one should also get the reward contemplated in the
Hadith of Sahih Al-Bukhari quoted above.
23
HADITH RELATED TO THE DIFFERENCES OF THE UMMAH
206
However, the sense conveyed by it can be held as true to some
extent, because the difference of opinion in the interpretation of the verses
of the Holy Qur'an or the Traditions of the Holy Prophet (S.A.W) which
occurred between the Companions of the Holy Prophet (S.A.W) and
between the authentic scholars of Islamic jurisprudence was based on
their sincere efforts to discover the truth. Therefore, the ruling of each one
of them is based on the sacred source of the Holy Qur'an and the Sunnah.
All such findings are possible interpretations of the Shar'iah. Therefore, in
the case of a genuine collective need arising out of the changing
circumstances, the view of any of the authentic scholars can be adopted to
solve a common problem of the Muslim Ummah and it is in this sense that
such differences between the scholars are nothing but a Divine blessing
for the collective cause of the community. But it is true only in relation to the
sincere differences of interpretation which have occurred between the
competent scholars of the Shar'iah who are called the 'mujtahids'. It does
not apply to the sectarian differences which have done nothing but to
divide the Ummah between several groups and sects each one
reproaching the other and waging continuous war without a sincere effort
to find out the real intention of the Holy Qur'an and Sunnah. This type of
differences can never be taken as a blessing, rather they are a curse for
the community which should be eliminated as far as possible.
Ql have learned from one of my relatives who has learned Arabic that
most of the arguments propounded by Imam Abu Hanifa are based
on the weak narrations ofAhadiths. I would like to know the correctness or
otherwise of this statement."
(A.B. Siddique, Mauritius)
Alt is a totally wrong allegation that all the rulings given by Imam Abu
Hanifa are based on the weak Ahadith. This baseless propaganda
has been in vogue since a number of centuries and the honest Scholars of
Hadith and Fiqh have vehemently refuted it on very solid grounds. Even
the Scholars of other schools of Fiqh, for example, the Shafi'i School have
admitted this in a number of their writings. Imam Al-Sha'rani has devoted a
separate chapter in his Book 'Al-Mizaan Al-Kubra' to establish this fact -
that the rulings are taken by Imam Abu Hanifa on the Holy Qur'an and
authentic Ahadith and on the practice of the noble companions of the Holy
Prophet (S.A.W).
Although the arguments on which the views of Imam Abu Hanifa are
based have been explained by numerous scholars, yet Maulana Zafar
207
Ahmed 'Usmani, a well-known scholar of the Sub-Continent of Indo-
Pakistan, has written a voluminous book on the very subject under the title
I'laussunan which has been published in 20 volumes, each comprising at
least 300 pages. The whole book is dedicated to explain the strength of
arguments advanced by Imam Abu Hanifa and his followers. One can
differ from some of the arguments given by Hanafi jurists but the same
applies to other views also and it does not mean that the whole Madhab of
Imam Abu Hanifa is based on weak arguments.
24
THE MEANING OF THE WORD MUJADDID
Q"l would like to learn the meaning of the words Mujaddid and
Tajdeed.
i) How have these words been used in Hadith?
ii) Is it true that a Mujaddid will appear at the beginning of every
century a fter Hijrah ?
Hi) Can there be more than one Mujaddid in a century? If yes, then, is
there a pattern of geographical dispersion of Mujaddids, or time
dispersion?
iv) Can Mujaddid be identified by common Muslim ? By scholars ? If
yes how?
(Irfan AH Hyder, Karachi)
A The word Mujaddid has been derived from a well-known hadith
reported by Imam Abu Dawood in his sunan, one of the six Authentic
Books of Hadith. The text of the Hadith is as follows:
Surely, Allah will send for this ummah at the advent of every one
hundred years a person (or persons) whp will renovate its religion for it"
One of the narrators of this hadith is slightly doubtful about whether
this hadith is reported by Sayyidna Abu Huraira as a Saying of the Holy
Prophet (S.A.W.) or as his own saying, though he affirms it as a saying of
the Holy Prophet (S.A.W.) "to the best of his knowledge". But even if it is
208
held to be a saying of Abu Hurairah himself, he could not have predicted
this happening with such certainty unless he had learnt it from the Holy
Prophet (S. A.W). For this reason the scholars of hadith have taken it as an
authentic hadith.
The act of "renovation of the religion" mentioned in this hadith has
been referred to by the word Tajdeed. It means the restoration of the
original beliefs and practices after their being changed, distorted or
forgotten. The hadith indicates that some circles from within the Ummah
may forget the original teachings of the Holy Qur'an and Sunnah, and
some foreign elements may creep into the original beliefs and practices.
But the distorted version of Shariah, based on such foreign elements will
not achieve the universal acceptance among the Muslims, and even if it
succeeds in attracting a large number of people, Allah will send a person or
a number of persons who will correct the error, restore the original beliefs
and practices and explain the true intent of Shariah. This act of renovation
is called Tajdeed, and those who carry out this remarkable work are named
as mujaddid (renovator)
It is mentioned in the hadith that such people normally appear at the
advent of a new century. The Arabic word used for the time of their
appearance may also admit the possibility of their appearance at the end
of a century, but the first meaning seems to be more probable in the context
of the hadith. The word 'advent does not necessarily mean that they
appear in the very first year of a new century. No such definite time has
been given in the hadith. They can appear in the first or second decade of a
century. The construction of the hadith has two possibilities with regard to
the number of the renovators. There may be only one person who
undertakes the task at the beginning of a century, and there may be more
than one person whose combined efforts, may be termed as the efforts of
tajdeed. They may work in different geographical divisions without having
a formal relation between them or, possibly, without knowing each other.
Still the work carried out by them can be termed as Tajdeed.
In order to avoid some dangerous misconceptions, the following
points must always be kept in mind in relation to the term Mujaddid:
1. Mujaddid is not a formal designation like prophet or messenger.
There is no particular authority in this world who declares him as a
mujaddid. It is only through his work that he is recognised as such. This
recognition also is not as certain as the recognition of a prophet. Therefore,
opinions may differ about his being a mujaddid.
2. Atrue mujaddid does not claim to be a mujaddid with certainty, nor
209
does he invite others to believe in him as such.
3. Even if the majority of the Muslims is of the opinion that a
particular person is a mujaddid, there is no religious obligation on the
others to believe in him as a mujaddid. In other words, the recognition of a
mujaddid is not a part of the necessary religious beliefs.
4. A mujaddid does not receive any authentic revelation from Allah
like a prophet, nor does he make any such claim. He does not bring any
new teachings regarding the religion. Rather, he tries to revive the original
teachings of the Holy Qur'an and Sunnah.
5. It is not necessary that a mujaddid knows himself to be a
mujaddid, let alone laying any claim to this effect.
6. A mujaddid is not infallible in his sayings and acts like a prophet.
His sayings and acts normally conform to the Islamic teachings, but they
are not treated like the sayings and acts of a prophet.
Keeping these points in view, one can easily understand that a
mujaddid is always identified through his work. Normally the scholars of
Shariah recognize him but their recognition cannot be held as certain and
definite as the recognition of a prophet. There may be difference of opinion
in this matter, and in fact, there has been difference in opinion about the
identification of mujaddids in different centuries.
In fact, the hadith quoted above, while foretelling the appearance of
mujaddids in every century, does not intend to make it compulsory to
recognize such mujaddids. It is, rather, a consolation for the Muslims of the
coming generations that, despite all the distortions or innovations which
may creep into the Muslim society, the ummah shall not be deprived of the
pious persons who shall never be influenced by such distortions, and shall
follow the original teachings of the Holy Qur'an and Sunnah and invite the
people to this respect. The Muslims of the coming generations are,
therefore directed by this hadith to follow only those persons who dwell
upon the original teachings of the Holy Qur'an and Sunnah and practices
which have not been derived from these original holy resources.
25
WHAT IS 'AL-MASJID - AL - AQSA?
210
correct? Is the present Masjid built on the same plot? And who has built it
first? (A.S. Naviwala, Karachi)
A This is not correct. What we call al-Masjid-al-Aqsa today was
originally built by Sayyidna Dawood (A.S) and by Sayyidna
Sulaiman (A.S.). It was in the form of a mosque even in the days of the Holy
Prophet (SAW). Imam Baghawi reports that when the Holy Prophet
(S.A.W) informed the infidels of Makkah that he has been taken by Allah to
al-Masjid-al-Aqsa, they did not believe it and started asking him about the
details of the building of the mosque, and the Holy Prophet (S.A.W) gave
them full account of the building. They asked him about the minute details
of the structure of the mosque and the Holy Prophet (S.A.W) answered all
their questions correctly. (See al-Tafsir al-Mazhari v.5 p.402).
It is thus clear that al-Masjid al-Aqsa was not merely a vacant plot of
land. There was a mosque built over it.
As mentioned earlier, the Masjid was orginally erected in the days of
Dawood and Sulaiman (A.S). Then, it has been renovated several times.
According to some reports this Masjid was destroyed when Sayyidna
'Umar (R.A) took its charge. He built it again, then Abdul-Malik ibn Marwan
was the first Muslim ruler who had renovated it after Sayyidna Umar (R.A).
26
WAS SALAH OBLIGATORY ON THE PREVIOUS UMMAHS?
Q"The five times Salah (namaz) is obligatory on the Muslims. Was it
also obligatory on otherummahs? (S.A. Naviwala, Karachi)
Alt is evident from the study of the Holy Qur'an and Sunnah that the
Salah (prayer) was also obligatory on all the previous prophets and
their followers, but there is not authentic record available to show the exact
form of prayers enjoined upon different prophets. Similarly, it cannot be
said with certainty as to how many times in a day they were ordered to
perform prayers. There are some reports giving some details in this
respect, but they are too weak to be relied upon.
27
WHAT IS THE REWARD FOR RECITING THE QUR'AN
ON A TAPE RECORDER
Ql have been told that the recitation of the Holy Qur'an on a cassette
does not carry any thawab (reward) for the listener, but it is only a
source of Barakah. Could you please comment? (I. Khan LANCS,
211
England)
A What you have been told is not correct in my opinion. It is true that the
effects of the recitation of the Holy Quran on a cassette are a little
different from those of the recitation of a real living person, but as far as the
thawab of listening to the Holy Qur'an is concerned, there is no big
difference between the two situations. There is no evidence to show that
listening to the holy Qur'an on an audio cassette has no thawab at all.
The opinion referred to in your question may have been based on
the fact that if a person listens to a verse of saj'dah from a cassette the
sajdahot tilawah does not become obligatory on him, according to the view
of the majority of contemporary scholars. Perhaps it is inferred from this
ruling that the recitation heard from cassette is not deemed to be tilawa in
the strict sense, hence, it carries no reward.
But this inference, in my opinion, is not well-founded. The Sajdah of
Tilawah becomes obligatory only when the verse is recited by a person
who himself is required to offer sajdah after his recitation. If the person
reciting the verse is not required to offer a sajdah how can a listener be
asked to offer it? That is why a sajdah is not obligatory on hearing a verse of
sajdah from a sleeping person or from a bird like a parrot. That is why the
sajdah is not obligatory on hearing the recitation from a cassette.
But it does not mean that listening to the cassette of a tilawah does
not carry any reward. The reward of listening to the Holy Qur'an is based
on the listening of the words of the Holy Qur'an, which is undoubtedly
present in the case of listening to a cassette.
Therefore, such listening cannot be devoid of thawab inshaallah,
though it may have greater reward to listen the tilawah'from a real living
person.
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SOME QUESTIONS ABOUT TRADITIONAL MADRASAHS
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(Hi) What syllabi are being used? Is there a standard syllabus or a
standard set of subjects used all over the Muslim world.
(iv) Are students exposed to subjects like history, geography,
mathematics, literature, economics, etc. at any stage?
(v) What degrees are conferred on students who complete various
le vels of educa tion ?
(vi) What is the significance and meaning of the following words:
Farigh ul-tehseel, aalim, mufti, maulana, maulvi, sheikh ul-hadith.
(Irfan AH Hyder, Karachi)
A(i) The word 'Maktab' is generally used for a small institute of
religious education in which the children learn the recitation of the
Holy Qur'an (which is called the nazirah education, or they memorize the
text of the Holy Qur'an by heart. At the same time, some elementary
Islamic principles are also taught in such institutes.
The word 'Madrasah' is a wider term. In early history, the word was
used for an institute of higher education. This institution was generally
used for all the levels of education known in the contemporary terminology
as secondary, higher secondary and graduation. In some cases, even the
specialized, courses were also held in the same madrasah'. Thus the term
sometimes was applied for an institute of secondary level only, and
sometimes for higher secondary and graduation levels also.
As for Darul-Uloom, it was originally a proper noun for a madrasah
giving education at all levels, like a university. But later, it was used for
every madrasah of a higher level.
'Jami'ah' is a modern term which is not found in our early history.
Actually, this is an Arabic translation of the English word 'University'. When
the word 'madrasah' has been adopted as a substitute for the English word
'School' which is generally restricted in modern usage for an institute of
secondary, education only, some people in the traditional madrasahs'
started using the word jami'a'for their educational institutes in order to
avoid the impression that their institute is of secondary level only.
However, a large number of traditional religious institutes continue to use
the traditional word 'madrasah'.
(ii) The prescribed books studied in our traditional 'madrasahs' are
mostly in Arabic. Some preliminary books, however, are in Urdu or Persian
also. But the teacher always delivers his lecture in the local language. In
some 'madrasahs' the Arabic language has been adopted as a medium of
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instruction forthe lectures of the teachers also.
(iii) & (iv) The exact syllabus of the traditional 'madrasahs' differs
from country to country, but the subjects of study are, by and large, the
same. Their main emphasis is on the subjects of Tafsir (Exegesis of the
Holy Qur'an), the science of Hadith, the Fiqh or Islamic jurisprudence and
theology. Since these institutes are meant for those special fields of study,
their main objective is to specialize the students included in the curriculum
to the extent of their necessity for the intensive study of the main subjects.
For example, the extensive knowledge of Arabic language, literature and
criticism is a pre-requisite for a competent study of the Holy Qur'an and
Sunnah. Therefore, all the relevant Arabic subjects are a necessary part of
the curriculum. Similarly, a brief introduction of logic and philosophy is also
necessary for a better understanding of Islamic theology and for the study
of comparative theology. So, these subjects are also included in the
curriculum. Mathematics, Geography and History are also taught to some
extent. Economics, as a separate discipline is not a subject of study in
these 'madrasahs'. But various economic problems are dealt with in other
branches of knowledge.
(iv) The titles of the degrees conferred to the students at different
levels vary from country to country. The standard, name of the final degree
conferred by a full-fledged madrasah in our country is Shahadah-al-
'alimiyyh'wh\ch is now recognised officially as an equivalent to the M.A. in
Islamic Studies.
(v) Fariqh-ul-tahseel means a person who has obtained the final
degree from a traditional 'madrasah'. The words Alim and Fad//are also
used for the same person. The word Mufti means a person who after
obtaining the final degree of alim, has specialized himself in the Islamic
jurisprudence and is thus competent to give Fatwa (explaining a Shari'ah
ruling in a particular situation).
The word Molvi was a synonym to Alim in the past Moulana is
neither a degree nor a designation. It is a word of honour normally used to
respect an Alim. Literally it means "Our master".
"Shaikul-Hadith" is a person who is appointed as a senior-most
professor of the science of Hadithin a madrasah.
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29
TAQLEED OR FOLLOWING AN IMAM ON
MATTERS OF SHARIAH
Q "There are some people who say that Taqleed, following the
madhhab of one imam is haram (prohibited) in shariah. They insist
that only the Quran and sun nah should be followed by a true Muslim, and it
is tantamount to the shirk that some human being is being followed in the
matters of Shariah. They also claim that all the madhahib formed as
Hanafi, Shafi'i, Maliki and Hanbali schools are created two hundred years
after the Holy Prophet (S.A.W) and they are bidah (an invention not
warranted by the Quran and Sunnah). They also maintain that a muslim
should seek guidance directly from the Quran and sunnah, and no
inten/ention of any Imam is needed for the knowledge of Shariah. Please
explain how far this view is correct. (Hussain Ahmad, London).
A This view is based on certain misconceptions arising out of a
superfluous treatment of the complex issues involved. The full
clarification of these misconceptions requires a detailed article. However, I
would try to explain the basic points as briefly as possible.
1. It is true that "obedience", in its true sense, belongs to Allah
Almighty alone. He is the only One who deserves our obedience, and we
are not supposed to obey any one other than Him. This is the logical
requirement of the doctrine of "Tawhid" (belief in the Oneness of Allah).
Even the obedience of the Holy Prophet (S.A.W) has been prescribed for
us only because he is the Messenger of Allah who conveys to us the divine
commandments. Otherwise he has no divine status deserving our
obedience per se. We are ordered to obey and follow him only because
Allah's pleasure has been epitomised in his sayings and acts.
We are, therefore, required to follow the Holy Quran, being the direct
commandment of Allah, and the Sunnah of the Holy Prophet (S.A.W.)
being an indirect form of the divine commandments.
But the point is that the interpretation of the Quran and Sunnah is not
an easy job. It requires an intensive and extensive study of both the sacred
sources of Shariah, which cannot be undertaken by every layman. If it is
made obligatory on each and every muslim to consult the Holy Quran and
the Sunnah in each and every problem arising before him, it will burden
him with a responsibility which is almost impossible for him to discharge,
because the inference of the rules Shariah from the Quran and sunnah
requires a thorough knowledge of the Arabic language and all the relevant
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material which a layman is not supposed to have. The only solution to this
problem is that a group of persons should equip themselves with the
required knowledge of Shariah, and the others should ask them about the
injunctions of Shariah in their day-to-day affairs. This is exactly what the
Holy Qur'an has ordained forthe muslims in the following words:
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tuhr). Both meanings are possible in the verse and each of them has
different legal consequences. The question that requires juristic effort is
which of the two meanings are intended here. While answering this
question, the juristic opinions may naturally differ, and have actually
differed. Imam Shafi'i interprets the word 'Qur' as the period of tuhr (purity)
while Imam Abu Hanifah interprets it as 'the period of menstruation.' Both
of them have a number of arguments in support of their respective views,
and no one interpretation can be rejected outright. It is in this way that the
differences among certain madhahib have emerged.
2. Sometimes there appears some sort of contradiction between
two traditions of the Holy Prophet (S.A.W.) and a jurist has to reconcile
them or prefer one of them over the other. In this case also, the viewpoints
of the jurists may differ from each other.
For example, there are two sets of traditions found in the books of
hadith attributing different behaviors to the Holy Prophet while going for
ruku in prayer. The first set of ahadith mentions that he used to raise his
hands before bowing down for ruku while the other traditions mention that
he did not raise his hands except in the beginning of the Salah.
The muslim jurists, while accepting that both methods are correct,
have expressed different views about the question which of the two
methods is more advisable. This is another cause of difference between
various madhahib.
3. There are many problems or issues which have not been
mentioned in the Holy Quran and Sunnah in specific or express terms. The
solution to such problems is sought either through analogy or through
some expressions found in the Holy Sources which have an indirect
bearing on the subject. Here again the jurists may have different
approaches while they infer the required solution from the Holy Quran and
Sunnah.
Such are the basic causes of difference between the madhahib.
This difference is in no way a defect in Shariah; rather, it is a source of
dynamism and flexibility.1
A muslim jurist who has all the necessary qualifications for ijtihad is
supposed, in the aforesaid situation, to exert the best of his efforts to
discover the actual intention of the Holy Quran and Sunnah. If he does this
to the best of his ability and with all his sincerity, his obligation towards
Allah is discharged, and nobody can blame him for violating the Shariah,
even though his view seems to be weaker when compared to the other
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ones.
This is a natural and logical phenomenon certain to be found in
every legal system. The enacted laws in every legal framework do not
contain each and every minute detail of the possible situations. The
expressions used in a statute are often open to more than one
interpretation, and different courts of law, while applying such provisions to
the practical situations, often disagree in the matter of their interpretation.
One court explains the law in a particular way while the other court takes it
in a quite different sense. Nobody ever blames any one of them for the
violation of the law.
Not only this, if the former court is a High Court, all the lower courts
and all the people living within the jurisdiction of that High Court are bound
to follow the interpretation laid down by it even though their personal
opinion does not conform to the approach of the superior court. In this
case, if they follow the decision of the superior Court nobody can say that
they are not following the law, or that they are holding the Court as the
Sovereign authority instead of the real legislator, because, in fact, they are
following the decision of the Court only as a trust-worthy interpreter of law,
and not as a legislator.
Exactly in the same way, the madhab of a muslim jurist is nothing but
a credible interpretation of the Shariah. Another competent jurist may
disagree with this interpretation, but he can never accuse him of the
violation of Shariah, nor can anyone blame the followers of that particular
madhhab for following something other than Shariah, or for committing
shirk by following the imam of that madhhab instead of obeying Allah and
His Messenger, because, they are following the madhhab as a credible
interpretation of Shariah, and not as a law-making authority.
The next question which may arise here is what a layman should do
with regard to these different madhahib, and which one of them should be
followed. Answer to this question is very simple. All of these madhahib
being sincere and competent in their efforts to discover the true intention of
Shariah, all of them are equally true, and a layman should follow the
madhhab of any one of the recognized imams whom he believes to be
more knowledgeable and more pious. Although the muslim jurists who
have undertaken the exercise of ijtihad are many in number, yet the
madhahib of the four jurists are more comprehensive well-arranged and
well-preserved even today, and the muslim ummah as a whole has taken
them as the most reliable interpretations of Shariah. These four madhahib
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another madhhab, he should adopt it in full in the same way and he should
not 'pick and choose' between different views for his individual benefit.
The consequence of the correctness of all the madhahib, is that one
can elect to follow any one of them, but once he adopts a particular
madhhab, he should not follow another madhhab in a particular matter in
order to satisfy his personal choice based on his desire, not on the force of
argument.
Thus the policy of allegiance to a particular madhhab was a
preventive measure adopted by the jurists to prevent anarchy in the matter
of Shari'ah. But obviously, this policy is meant for the people who cannot
carry out ijtihadthemselves, or cannot evaluate the arguments advanced
by every madhhab in support of their respective views. Such people have
no option but to follow a particular madhhab as a credible interpretation of
Shari'ah.
But the people equipped with necessary qualifications of ijtihad
need not follow a particular madhhab. They can derive the rules of Shari'ah
directly from their original sources. Similarly, the persons who are not fully
qualified for the exercise of ijtihad, yet they are so well-versed in the
Islamic disciplines that they can evaluate the different juristic views on pure
academic grounds without being motivated by their personal desires are
never forbidden from preferring one madhhab over the other in a particular
matter. There is a large number of Hanafi jurists who, despite their
allegiance to Imam Abu Hanifah, have adopted the view of some other
jurist in several juristic issues. Still, they are called 'Hanafi'.
This partial departure from the view of Imam Abu Hanifah was
based on either of the following grounds: sometimes they, after an honest
and comprehensive study of the relevant material came to the conclusion
that the view of some other Imam is more forceful. Sometimes, they found
that the view of Imam Abu Hanifah is based on pure analogy, but an
authentic Hadith expressly contradicts that view and it is most likely that
the hadith was not conveyed to Imam Abu Hanifah, otherwise he would not
have adopted a view against it.
In some other cases, the jurists felt that it is the requirement of the
collective expedience of the Ummah to act upon the view of some other
imam, which is an equally possible interpretation of Shari'ah, and they
adopted it not in pursuance of their personal desires, but to meet the
collective needs of the Ummah and in view of the changed circumstances
prevailing in theirtime.
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These examples are more than enough to show that the followers of
a particular madhhab have never taken it as a substitute of Shari'ah or as
its sole version to the exclusion of every other madhhab: In fact, they have
never given a juristic madhhab a higher place than it actually deserved
within the framework of Shari'ah.
Before parting with this question, I would like to clarify another point
which is extremely important in this context: some people having no
systematic knowledge of Islamic disciplines often become deluded by their
superficial information based on self-study, and that too, in most cases,
through translations of the Holy Qur'an and ahadith. By virtue of this kind of
cursory study, they presume themselves to be the masters of the Islamic
learning, and start criticizing the former Muslim jurists. This attitude is
totally wrong and devoid of any justification. The inference of juristic rules
from the Holy Qur'an and Sunnah is a very meticulous exercise which
cannot be carried out on the basis of a superficial study. While studying a
particular juristic subject one has to collect all the relevant material from
the Holy Qur'an and from the ahadith found in different chapters and
different books, and has to undertake a combined study of this scattered
material. He has to examine the veracity of the relevant ahadith in the light
of the well settled principles of the science of hadith. He has to discover the
historical background of the relevant verses and traditions. In short, he has
to resolve a number of complicated issues involved. All this exercise
requires very intensive and extensive knowledge which is seldom found in
the contemporary 'Ulama, whoare specialists themselves in the subject,
let alone the common people who have no direct access to the original
sources of Shari'ah.
The upshot of the above discussion is that all the four madhahib
being based on solid grounds, it is permissible for a competent Hanafi 'alim
to adopt another juristic view, if he has the required knowledge and ability
to go into the merits of each madhhab on the basis of adequate academic
research without pursuing his personal desires. But the people who do not
fulfill these conditions should not dare to do so, because it can lead to a
dangerous state of anarchy in the matter of Shari'ah.
31
TRANSLATION OF THE HOLY QUR'AN AND RULING OF IT
Q There are a number of books which contain the full translation of the
Holy Qur'an without giving the Qur'anic text in Arabic. Please
explain whether reading of such translations has the same reward as the
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recitation of the Arabic text of the Holy Qur'an is supposed to have.
Moreover, can one touch such translation in a state of impurity and if
somebody reads the translation of the verse of 'Sajdah' is it incumbent
upon him to perform the sajdah oftilawat?
(Anonymous)
A'Ulama have clarified that it is not allowed in Shar'iah to print or
publish the translation of the Holy Qur'an without its Arabic text. It
may be observed that the people of other religions have allowed to publish
the translation of their Holy Books without their original text and
consequently the translations have spread so widely that the original text
was totally ignored and it is not available today. In order to avoid such
consequences it was held by the Muslim jurists that the translation of the
Holy Qur'an should always be accompanied by the Arabic text of the Holy
Book.
However, it is generally observed that many people in our times do
not observe this important ruling of the Muslim jurists and a number of
translations have been published without the original text. Such
translations cannot be held as the Holy Qur'an nor can the injunctions
relating to the Holy Qur'an be attributed to these translations. If somebody
goes through such translations he may have the reward of studying the
Holy Qur'an yet the reward specified for its recitation cannot be achieved
except by reciting the original text of it. Similarly such translations
published without the original texts can be held in hands without wudu and
if someone reads the translation of the verse of Sajdah it is not incumbent
upon him to perform the Sajdah of Tilawat because the translations of the
Holy Qur'an do not carry the status of the Holy Qur'an itself and the rules
regarding the Holy QUr'an cannot be attached to such translations.
32
DOES ISLAM PERMIT DONATIONS FROM NON-MUSLIMS
FOR AN ISLAMIC CAUSE
Q(2) Can one accept a donation for the above cause from a muslim
whose source of income is absolutely illegitimate (haram) and at the
same time one can verify it? (Dr. Zakaullah, New York)
A As mentioned in the case of a non-muslim donor, one is not required
to enquire into the source of income of a donor, and unless it is
evidently clear that the source is haram, one can presume that the money
is halal. However, if it is absolutely clear, even without an enquiry, that the
donation has come out of a haram source, then it is not allowed to accept
such a donation.
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