P L d 2000 s c 225 (Riba prohibition stayed)

 

Without being unduly partial to any of the foregoing interpretations, we have, for this discourse, used those versions almost interchangeably. Relative to the diversity itself, however, one view projected before us is that the eminent jurists were really identifying the multifarious dimensions of the same thing, much as the on-lookers of a structure, from different angles, may be prone to do. Indeed, as above indicated, an excellent amalgam of such varying expositions is to be found in the definition of the generic term Riba itself, rendered by Abdur Rehman al Jaziri, who declares:

 

 

 

“…………in Fiqh terminology, Riba means an increase in one of two homogeneous equivalents being exchanged without such increase being accompanied by a return.”

 

 

 

11. Be that as it may, while the added guidelines as to all increases, also in exchanges of a large variety of chattel, but distinguished from the legal tender as such, remain operative with full force, the argument itself, some hold, is no longer as crucial as in the days of barter. However, all that, it, in essence, has signified in the past and signifies now is a redoubled emphasis on an embargo against unearned excess on identical articles exchanged, on the one hand and a like increase in deferred exchanges of dissimilar goods, on the other. What, therefore, emerges from the foregoing Ahadith is a preclusion to take anything in excess while exchanging gold for gold, silver for silver and so on (i.e., similar) or to conclude any such transaction except as a hand to hand transfer. The rule, however, alters .where gold is exchanged for silver or silver for dates or dates for wheat and so on (i.e., dissimilar), the rate of exchange instantaneously becoming discretionary, whilst the ready nature of the contract still holding. Because all the six items named in the Ahadith represented commodity money of the time, an obvious incident of the rule is „targeting the time honoured exchanges inter se between local and external currencies, which, though, on ready or hand to hand basis, may freely be transacted, according to market forces, yet any forward trading therein would immediately attract the sanction underlying the doctrine of Riba al-Fadl. This aspect of Riba has always featured as a bulwark against uncertainty or Gharar, as inclusive of speculation, emerging as a notable contributory to a just social order. Significance here, some say, also lies in things of value or of fundamental utility not being countenanced to suffer artificial scarcity on account of exposure for being loaned away or hoarded. As distinguished from this, however, Bai’ Mu’ajjal (sale against deferred payment) is clearly made permissible since, added to the foregoing, in all probability, the Prophet (s.a.a.w.s.) desired to encourage monetary transactions (even upon deferral) as against barter, the latter of which had the potential of degenerating into Riba. Another dimension of Riba al-Fadl may have subsisted in an intendment to forestall unwary citizens being taken in by sharp traders, the stipulated safeguard for exchange of similar goods being, like for like, weight for weight, measure for measure and hand to hand. The institution of Riba al-Fadl, therefore, has not been rendered toothless muchless having become a dead letter in economic terms by passage of time. Few seem to have noticed the Prophetic wisdom in reading Riba al-Fadl within the ambit of the Qur’anic prohibition yet that emerges as an unmistakable symbol against all unearned increases in the way of anything having the semblance of Riba. But for the preclusion of Riba al-Fadl and, by that token, broadly of all increases, while, bartering in similars or delving in futures, the ignorant or the motivated would, possibly, have succeeded in sheltering later day deviations, whereby the generalised Qur’anic concept of Riba could stand restricted only to non-productive, patently oppressive and purely unconscionable fixed returns on advances, thus, recklessly, neutralizing a basic economic expedient, so necessary for a welfare society.

 

 

 

12. I tend to disagree here with the observation of the Federal Shariat Court that Riba al-Fadl, in the context of lawfulness or otherwise of interest or usury in Islam, did not concern the Court. Having already dilated upon the continuing efficacy of Riba al-Fadl, down to our own times, I would only broadly state my reasons for disagreeing with such stance of the Federal Shariat Court: Firstly, it was Riba, in all and sundry manifestations thereof, which had come up for appraisal before the FSC and, therefore, the FSC had little choice of drawing a distination in the matter. Significantly, there is little warrant for later day’s jurists in equating Riba al-Nasi’ah with the generic term Riba, employed in the Qur’an, questionably terming that alone as Riba al-Qur’an on the ground that only Riba al-Nasi’ah was previously known to the Arabs whereas Riba al-Fadl was introduced by the Prophet (s.a.a.w.s.). In the first place, the assertion is factually incorrect since it is empirically established that the Arabs. used to exchange inferior quality commodities for superior ones of the same kind, e.g., one Saa’ of good quality dates for two Saa’ of the inferior ones or bartered in heterogeneous items e.g., barley for wheat etc. Additionally, this is to deny the Qur’an and Sunnah as inseparable and the latter as a live commentary of the former. While the Qur’an is the revealed message for all times and all peoples, the Prophet (s.a.a.w.s.) provided the details of things already ordained therein, the juristic difference in the Qur’an and Sunnah being that the first was the inspired message from the Almighty alongwith its revealed phraseology whereas the, latter was likewise inspired but in words chosen by the Prophet (s.a.a.w.s.) himself. Whenever and wherever, therefore, one is called upon to interpret Qur’anic doctrines one must advert to the Ahadith (words, deeds and even meaningful silence) of the Prophet (s.a.a.w.s.) more as elaborative of something, which is complete rather than innovative in regard to something, which needs to be complemented or perfected. Thus, the Prophet (s.a.a.w.s.) indiscriminately dilated upon Riba al-Nasi’ah and Riba al-Fadl, never distinguishing between their consequences and none of the early doctors identified Riba al-Nasi’ah as the sole equivalent of Riba in the Qur’an. Such, apparently, inadvertent references started with Ibn Rushed, a Spanish jurist and continued with Imam Razi, as aptly identified in “The Concept of Riba and Islamic Banking” by Imran Ahsan Khan Niazi. The Qur’an, accordingly, uses the term Riba in the broadest of senses so as to encompass all its forms, then known and practised, as also such as may thereafter evolve. Interpreting the Qur’an is, to cite an inferior example, like interpreting a written constitution, commensurate with a requirement to meet all conceivable exigencies of time, space and the like. Secondly, during the lifetime of the law-giver, the Sharae, there was no currency, as such, of the Muslim State and the function of legal tender had largely devolved on the Persian and Roman currencies. This was besides barter, which also was substantially in vogue. Hence, inter alia, as above-hinted, the apparent necessity of including common items of barter, so as to preclude Riba enveloping barter deals. Misgivings, genuine or otherwise, on this score were not unlikely because barter also constituted Bai (trade) and bai was freely permissible whereas only Riba was, literally, prohibited. The prohibition in the way of Riba al-Fadl was, therefore, a direct consequence of Bai, in contradistinction to Riba, having explicity been approved in the Qur’an. Approaching the matter from this angle, the object of deducing Riba al-Fadl from the Qur’anic concept of Riba (for, as said, I am not inclined to think that Riba al-Fadl was either supplemental or complemental to what was ordained or was an innovation of the Shariah) may also have been to preclude Ribawi contracts being introduced through the back-door of barter deals. Efficacy of the caution can immediately be seen when it is realised that such circumvention is practised even now, e.g., trading in futures when trade through barter, in effect, stands forsaken. However, so great was the impact of the Qur’anic prohibition of Riba and its al-Fadl aspect that at the advent of Islam, well-into the days of Caliph Omer and much after, the followers would not pay or take anything in excess of the gold or silver contents in the purchase of gold or silver artifacts in lieu of Dinars (gold coins) or Dirhams (silver coins) respectively even though (possibly) manufacturing costs thereof could warrant for more. All this, as reflected below, far fear of involuntarily transgressing the Qur’anic commandment:

 

 

 

“This narration is from Abu Qelabah. He told that he was sitting in Syria in a circle that also included Muslim bin Yasaar. There came Abul Ash’ath. According to Abu Qelabah, everybody exclaimed: “Abul Ash’ath! Abul Ash’ath!” Abul Ash’ath joined the circle. Abu Qelabah asked him to narrate the Hadith of Obadah B. Samett (r.a.a.) for a brother there. Abul Ash’ath agreed. His narration is as follows:

 

 

 

We (i.e., Abul Ash’ath and his collqagues) were on a military mission under the command of Mo’aawiyah. We gained a lot of spoils of war. Among them, there was a silver utensil. Mo’aawiyah directed a person to auction it against the salary due in favour of the soldiers. People showed great interest in the auction. When the news reached Obadah bin Samett, he stood up and said: “I heard the Prophet (s.a.a.w.s.) forbidding the sale of gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates and salt for salt except on Sawa’amm-bi-sawaa’ (equal) and Ainamm-bi aim (like for like) basis. The Prophet (s.a.a.w.s.) further said that if someone gave more or took more, he entered into Riba”. As soon as the people heard this, they withdrew from the auction. When the news reached Mo’aawiyah, he got, up and addressed the people as follows: “What is the matter with the people that they attribute to the Prophet (s.a.a.w.s.) the Ahadith that we did not hear even though we also saw the Prophet (s.a.a.w.s.) and kept his company?” Obadah stood up and repeated the whole thing. He then angrily said: “We will narrate what we heard from the Prophet (s.a.a.w.s.) even though it might be unpleasant for Mo’aawiyah (or, he said: even if it is against the will of Mo’aawiyah).” Obadah further said: “I don’t care even if it (i.e., contradicting Mo’aawiyah) costs me my stay with Mo’aawiyah’s army on this very dark night.”

 

 

 

According to Abu Qelabah, Hammad told the above or something more or less like it.----The compiler of the source book for this Hadith further states that he also heard it from Ishaq B. Ibrahim and Ibne Abi Omar both of whom narrated it on the authority of Abd alWahab Thaqfi who, in turn, reported Ayub. At Ayub, the chain of narrators becomes the same as that for this Hadith.

 

 

 

(Muslim, 2969).

 

 

 

The tradition, just quoted, signifies, in the first place, that the transaction in question offended the rule that all exchanges, whether of gold for silver or of wheat for dates or of barley for wheat and the like (i.e., in dissimilars), even though they may not be Mithlamm-bi-mithl (like for like) and Waznamm-bi-waznlsawa’amm-bi-sawaa’ (equal in weight/measure), had still to follow the other rule of Yadamm-bi-yad (hand to hand or on the spot). This arose because the auction price of the utensil under reference was to be paid the salary of men, which till then still remained to be disbursed and in exchanges, upon deferment (delivery and/or payment), one is prone to agree to give more than strictly justified, partaking an element of Riba. In such context, the objection was and remains valid. Secondly, the other condition of like for like together with equality in weight/measure, may also have had the prospect of being infringed because the troops were paid salary in silver coins and the auction may have produced an unequal exchange between the silver content of the utensil and that in the Dirhams (silver coins). There is only one aspect, however, in relation to which the caveat may (perhaps) have evoked some reservations and that consisted in the fact that the utensil, put to auction, also carried fabricating costs for which an added consideration may have been required. According to some reports because manufacturing costs of gold and silver utensils, as possibly distinguished from ornaments of those metals, were inadmissible, the reason being a prohibition against the use of precious metals in eating/drinking articles) this ground as well was not recognized by Caliph Umer, when the matter was brought to his notice. Even so, the first two objections, indisputably, remain valid and as to the third, touching ready but lawful transactions, jurists have found an answer, based on another Hadees of the Prophet (s.a.a.w.s.) namely, that the difference in cost or quality may be made up by an express stipulation in the price paid (in dinars, of gold, in this case because the urn was of silver, as distinct from a like for like exchange), thereby encouraging Bai’ in preference to barter and ensuring that Riba did not sneak into commercial transactions through one artifice or another. Such Hadees runs thus:

 

 

 

“This Hadith is from Yahya. He said that he heard it from Oqbain b. Abdul Ghafer who, in turn, heard it from Abu Saeed Khudri (r.a.a.). Abu Saeed Khudri said that once Bilal (r.a.a.) brought to the Prophet (s.a.a.w.s.) some burney (good quality) dates. The Prophet (s.a.a.w.s.) inquired as to where ‘he got those dates from. Bilal replied: “We had some radl (inferior) dates. I sold two Saa’ (measure of volume) of them for one Saa’ of burney dates in order to give them to the Prophet (s.a.a.w.s.) to eat.’ Upon hearing this, the Prophet (s.a.a.w.s.) exclaimed: `Oh no! That is Riba. That is exactly Riba Don’t do that again. If you want to buy (good) dates for (inferior) dates next time, first sell your dates, and then buy the new ones with the sale proceeds’.” (Bukhari, 2145).

 

 

 

Lastly, the objective considerations for the institution of Riba al-Fadl are of such an overriding nature that without its continued prohibition a Riba-free economic system cannot possibly be conceived. The concept was designed, essentially, to foster justice in trade and commerce, as aptly described by M. Umer Chapra:

 

 

 

“The prohibition of Riba al-Fadl is, thus, intended to ensure justice and remove all forms of exploitation through `unfair’ exchanges and to close all back-doors to Riba because, in the Islamic Shari’ah, anything that serves as a means to the unlawful is also unlawful. The Holy Prophet (peace be upon him) equated with Riba even the cheating of an unsophisticated entrant into the market and the rigging of prices in an auction with the help of agents (Ahadith C.9 and C.10) implying thereby that the extra money earned through such exploitation and deception is nothing else but Riba-al-Fadl. Since people may be exploited or cheated in several different ways, the Prophet warned that a Muslim could indulge in Riba in a number of ways (Hadith A.5). This is the reason why the Prophet, (peace be upon him); said: `Leave what creates doubt in your mind in favour of what does not create doubt’, and Caliph `Umar was inspired to say: `Abstain not only from Riba but also from Ribah’ (Hadith C.1). Ribah is from rayb which literally means ‘doubt’ or `suspit’°lon’ and refers to income which has the semblance of Riba or which raises doubts in the mind about its rightfulness. It covers all income derived from injustice to, or exploitation of others.

 

 

 

Thus, Riba al-Nasi’ah and Riba al’Fadl are both essential counterparts of the verse “God has allowed trade and prohibited Riba (2:275). While Riba al-Nasi’ah relates to loans and is prohibited in the second part of the verse, Riba al-Fadl relates to trade and is implied in the first part. Because trade is allowed in principle, it does not mean that everything is allowed in trade. Since the injustice inflicted through Riba may also be perpetuated through business transactions, Riba al-Fadl refers to all such injustices or exploitations. It requires absence of rigging, uncertainty or speculation, and monopoly or monopsomy. It demands a fair knowledge of the prevailing prices on the part of both the buyer and the seller. It necessitates the elimination of cheating in prices or quality, and in measurements or weights. All business practices which lead to the exploitation of the buyer or the seller or to a restriction of fair. competition must be effectively prohibited. “

 

 

 

13. Now may be taken up the question as to when the final verdict on Riba was descended and, correspondingly, when was Riba al-Fadl identified and enforced. Contextually a purported declaration, attributed to Caliph Umar, is cited, which is reported in the following terms:

 

 

 

“The last of what was revealed was the verse on Riba and the messenger of Allah departed before he could elaborate upon it. So give up Riba together with all doubt. “

 

 

 

It has been argued before us that one of the narrators of this Ahadis, Saeed bin Al-Musaib, suffering from confusion and a faulty memory, is weak and untrustworthy. That apart, as urged by Hafiz Abdur Rehman Madani, Director, Institute of Higher Studies (Shariah and Qada), there are at least two Ahadis, one from Abu Huraira (r.a.a.) etc., regarding the Prophet’s (s.a.a.w.s.) appointee at Khyber, who presented high quality dates to the Prophet (s.a.a.w.s.) and upon the latter’s query disclosed that he had exchanged a large quantity of inferior dates with a smaller return in superior ones, meeting a similar response as Bilal (r.a.a.), above-quoted and the other from Fuzaila bin Ubaid, who, on the day of Khyber, had purchased a gold necklace (apparently, otherwise than -for its user as an ornament, for, if that were the case, there should have been no occasion to break it up) for 12 Dinars (gold coins) which, when dismantled, produced a large gold content than in the Dinars, also meeting the disapproval of the Prophet (s.a.a.w.s.), who observed that this was nothing but Riba and required that such transactions, of like for like, may be concluded upon opening up of the contents, each of the Ahadis suggesting that Riba al-Fadl was in the prohibition at least as early as the battle of Khyb6t (7 A.H.) and negating the plea that the advent of Riba al-Fadl was close to the end of the Prophet’s wordly life or even that the Qur’anic doctrine of Riba, in its multidimensional facets, was perfected only that late in the day for, if Riba alFadl was identified around Khyber, the broader prohibition should, arguably, have preceded that. According to Riazul Hasan Gilani, learned counsel for the Federation, similar conclusions are, inter alia, shared by Allama Muhammad Hussain Taba Tabai, Ibne Majah, Allama Shibli Naumani and Suleman Mansoorpuri. Indeed, the imputed report from Hazrat Umar (r.a.a.), is also contradicted directly by another quote from the second Caliph himself, where he is reported to have said:

 

 

 

“You think that we are unacquainted with some forms of Raba. By God, knowledge of such forms, in my view, is even dearer than Egypt and its districts. Then, of Ribawi dealings, some are not hidden from any-one, such as forward purchase of gold for silver or purchase of fruit while still on trees and not yet ripe and Bai Salam concerning animals.” (Al-Musanif Abdur Razzaq, Vol.8, p.26, Hadees 14161). .

 

 

 

The above is a complete answer that the Companies did not fully comprehend Riba al-Fadl, the Prophet (s.a.a.w.s.) having, purportedly, departed before he could expand upon the same. All that seems to have been their refrain consisted of the fact that Riba was prone to taking ever changing forms, some of which may not have readily been encountered. Even so, the quoted passage makes it clear that the concept of Riba was fully understood and appreciated by the interlocutor. In so far as the Qur’anic revelations, touching Riba, are concerned, it is further obvious that the final word must have descended before the sermon of Hajjat-tul Wida (the last or farewell pilgrimage, below quoted) because such emphatic renunciation, as in that sermon, could not have come about without that having already been accomplished. I have already quoted the likely dates of the various revelations on the subject but, analysed as above, the last one should have been if not closer to Khyber at last around the time of the bloodless entry to Makkah (8 A.H.) and, therefore, substantially prior to the sermon. For more of this see the main judgment, where the time sequence is extensively dilated upon. Reverting those, who succumb to the caveats, hinged on the quoted alleged  lament of the Caliph, remain unmindful of the Almighty’s declaration, near the end of the Prophet’s (s.a.a.w.s.) wordly sojourn; “Today, I (Allah) have completed for you your deen (faith), perfected My blessings and chosen Islam as the deen for you,” an intimation which instantly made the followers apprehensive that the Prophet’s (s.a.a.w.s.) days, thenceforth, were numbered, his assignment having been completed. Correspondingly, they remain oblivious, also, to the simple logic that, if the Prophet (s.a.a.w.s.) had descended with a message and mission, he could not have left without accomplishing it, including duly clarifying the fundamental of Riba. Thus, and even though the alleged protestation of Caliph Umar may have been quoted by some jurists of note that fact, in itself, is not enough to lend authenticity thereto. Indeed the adversaries had, even during the days of the first two Caliphs, become active in fabricating false Ahadees and one of the most effective methods of fraudulent coinage of sayings, facts or events is to mix, ex facie, commendable portions with falsely invented ones, such as saying that the concept of Riba could not be explained, because of the Prophet’s (s.a.a.w.s.) being taken away, and that the best course was not only to give up Riba but also al-reebia (doubt), meaning everything having the semblance of it. Assuming, however, that the Prophet, in fact, did not have time to fully elaborate upon all Shari’ah forms of Riba, even though he did not depart for 81 days after the Hajjat-ul-Wida and no serious commentator doubts that the last revelation had already come at least at that juncture, Dr. M. Umer Chapra clinches the issue, when he counters the outcome, thus:--

 

 

 

“However, this (Prophet’s elaboration) was not necessary. The whole Qur’an and his Sunnah are there to help the Ummah do so. This the ongoing challenge to all Muslims-to examine their economic practices continually in the light of Islamic teachings and to eliminate all shades of injustice. This is a more difficult task than eliminating Riba al-nasi’ah. It requires a total commitment, an overall restructuring of the entire economy within the Islamic framework to ensure justice. This was, and is, the unique contribution of Islam. While Riba al-nasi’ah was well-known in the Jahiliyyah (pre-Islam period) the concept of Riba al-Fadl was introduced by Islam and reflected the stamp of its own unflinching emphasis on socio-economic justice.”

 

 

 

14. Here may, explicity, be addressed the query, whether small and gratuitous additions to a principal sum lent, also claimed to have, at times, been added by the Prophet of Allah (s.a.a.w.s.) himself are or are not permissible. The answer is furnished by the following caution of the Prophet (s.a.a.w.s.):--