June 21, 2002	Friday	Rabi-us-Sani 9, 1423

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ISLAMABAD, June 20: The Supreme Court on Thursday observed that Holy Prophet Muhammad (peace be upon him) approved the payment of voluntary increase on borrowed money.

Justice Munir A. Sheikh, senior member of the apex court’s Shariat Appellate Bench, said it had been pointed out that the Prophet (PBUH), at the time of returning money, had voluntarily directed Hazrat Bilal to pay more on the principal amount.

The judge stated that it had been defined as “Husne Ada” and that the saying of the Prophet (PBUH) had the status of law for the Muslims. He said the counsel, defending the earlier judgment, which had declared all kinds of increase on the principal amount as Riba, should not attempt to minimize the act of the Prophet (PBUH).

The court indicated that hearing of the case might conclude on Friday, as Advocate Ismail Qureshi, member of the Jamaat-i- Islami, defending the judgment of the Shariat Appellate Bench, had been asked to complete his argument within half-an-hour on Friday.

Advocate Ismail Qureshi started the defence of the Riba judgment by arguing that the government had filed the petition after the time required under the Supreme Court rules had passed and thus the petition should be dismissed immediately.

The counsel was informed by the court that the review petition had been filed by UBL (United Bank) and that the government had supported it as a respondent.

Mr Qureshi stated that the Shariat Appellate Bench had invited prominent jurists and bankers of international repute before delivering the judgment, which should not be reviewed on the filing of affidavits by two bureaucrats — the finance secretary and the deputy governor of the State Bank of Pakistan.

He said that the government lawyers relied heavily on the writing of Sir Syed Ahmad Khan in support of their contentions. He said he would establish that the Ulema of the time had not recognized Sir Syed Ahmad as a religious scholar and that his interpretation of the Holy Quran and Sunnah was defective.

The counsel maintained that the government counsel were unable to fathom the sublimity of the Holy Quran and were attempting to interpret it with their worldly knowledge.

When the court asked him to explain whether increase charged on the principal amount was Riba or not, the counsel said it was Riba. He further stated that it could not be believed that money was only borrowed in Arabia for consumptional purposes before the advent of Islam. Makkah, he added, had been a trade centre from where traders would go to Syria and China.

According to the counsel, the people of Makkah and Madina were affluent and they did not need loans for consumptional purposes. All the loans extended, he said, had been for commercial purposes. He argued that there were two kinds of Riba —Riba-un-Nisa and Ribaul Fazal.

Mr Qureshi spent better time of the day, arguing that Sir Ahmad Khan could not be relied upon, as he had not been recognized a religious scholar by the scholars of his time.

The court asked him to be specific and explain whether the intrinsic value of the principal money was to be secured or not. The court also asked the counsel not to read verses of the Holy Quran in isolation.

The counsel argued that it was not correct that increase on the principal amount was prohibited in the cases of needy persons. He said it was not correct that only that increase which contained the element of exploitation was Riba.

Advocate Qureshi stated that Sir Syed Ahmad Khan had wrongly quoted Hazrat Umar, saying that some parts of Riba-ul-Fazal had not been clarified. The counsel said the “Riwait” was not authentic. Justice Dr Khalid Mehmood observed that if some element of a “Riwait” was missing, it might become “Zaeef” but not “Mouzoo” (fabricated).

Justice Munir A. Sheikh observed that if it was held that any increase, though voluntarily, was prohibited on the principal amount, the needy would not get any assistance from anywhere, even in case of distress.

He also observed that if somebody borrowed Rs200,000 and returned the amount after two years, nobody would extend the facility to anybody.

The counsel replied that it was the duty of the State to help the needy from Baitul Maal. The court, at the end of the proceedings, asked the counsel to reply to the government’s argument that moral and legal aspects of Riba had been amalgamated, leading to wrong conclusions.

The federal government argued that those forms which were declared as undesirable (Makrooh), which could not enforced as law, were mixed up by the Supreme Court with such forms of Riba which were prohibited.