ISLAMABAD, June 17: The Supreme Court’s Shariat Appellate bench, hearing petition seeking reversal of Riba judgment, observed on Monday that the purpose of Shariat was not to create difficulties for the society rather Shariat was meant for the welfare of the people.
Justice Qazi Mohammad Farooq and Justice Dr Rashid Ahmad Jullandari observed that touchstone for interpretation of Islamic injunction was to facilitate, and not to create difficulties for the society.
Justice Munir A. Sheikh, another member of the bench, observed that if every transaction like sending of money orders, was declared repugnant to Islam, how the society would function.
The federal government has supported the review petition filed by United Bank and informed the court that apart from the fact that definition of Riba by the apex court was defective from Islamic point of view, it was also impossible to implement it in the present state of economy.
The Shariat Appellate Bench of Supreme Court in its judgment held that “any amount big or small, over the principal, in a contract of loan or debt is Riba prohibited by the Holy Quran, regardless of whether the loan is taken for the purpose of consumption or some productive activity.”
Dr Riazul Hasan Gillani, counsel for the federation, resumed his argument on Monday, with the contention that the Shariat Appellate Bench, by amalgamating the legal and moral aspects of Riba, had given a legal status to such forms of Riba which were not prohibited but were advised to avoid those if possible.
He said there were at least three kinds of Riba, and with the exception of one form, the remaining two were undesirable (makrooh) but not prohibited.
The three forms of Riba were Riba Uddain (debt); Ribaul Qarz (Loan) and Ribaul Fazal, the counsel said and added that the Holy Prophet (peace be upon him) prohibited Riba Uddain through a decree but did not enforce it on the two forms which were declared undesirable but not haram.
He elucidated his point by stating that under Islamic injunctions a woman’s demand for divorce was undesirable (makrooh) but if she insisted it could not be denied to her.
If somebody dealt in makrooh Riba, he was not committing a sin. The believers were advised to avoid makrooh Riba, but not prohibited as they were from Riba Uddain, he added.
The Supreme Court judgment, he stated, prohibited all kinds of Riba, even those which were not prohibited by the Holy Prophet (PBUH) himself.
Dr Gillani, who has done doctorate from Al-Azhar University, quoted Fatawa Alamgiry by Imam Abu Hanifa to show that there were certain kinds of Riba which were considered undesirable but not prohibited.
He said that a provision of law could not be struck down on the basis of such Riba which was not prohibited.
The counsel stated that the Federal Shariat Court dealt only with the legal aspects of Riba (Riba Uddain) but the Supreme Court could not distinguish between moral aspects and legal aspects of Riba which created utter confusion.
Justice Qazi Mohammad Farooq inquired about the status of savings schemes that whether those fell into the category of Riba or not. Justice Farooq observed that thousands of widows, orphans were benefiting from such schemes.
The counsel replied that savings schemes did not fall into the category of Riba at all, and quoted Sheikh Al-Azhar Dr Syed Mohammad Tantawi, a prominent modern-day jurist, who was of the opinion that these were investment schemes and not Qarz scheme.
The counsel said that Supreme Court by equating “Qarz” with loan, had created a confusion. The counsel stated that there was a difference between Qarz and Loan.
The Qarz, he said, was such a transaction which one believer advanced to another with the intention of helping him out, and not making money out of it. The Holy Quran commanded that Muslims should not charge on Qarz and even consider writing off the principal amount of Qarz if possible.
Justice Qazi Farooq inquired whether a system introduced for the welfare of the people could also be categorised as Riba, the counsel stated that the harmful part of undesirable (makrooh) Riba could be eliminated if it was for the welfare of the people.
When the counsel referred to a fatwa in which the mufti was quoted as saying that sending a money-order through government system fell into the category of undesirable Riba, Justice Munir A. Sheikh observed that how a system could run if sending money orders, drafts, travellers cheques were prohibited.
Justice Dr Rashid Jullandari observed that Maulana Ashraf Thanvi once issued a fatwa against the use of loudspeaker, but when Maulana Moududi wrote an article arguing that the use of loudspeaker was in the public interest, Maulana Thanvi withdrew his fatwa.
Justice Dr Rashid Jullandari observed that Shariat was meant for the welfare of the people and laws changed with the changing times.
Justice Qazi Farooq observed that the purpose of Islam was not to make the lives difficult and said that any interpretation of Islamic injunctions should be made on this touchstone.
Dr Riazul Hasan Gillani stated that Qarz was extended only when it was asked for, and investment in the savings schemes or deposits in the banks could not be declared Qarz.
The counsel further pointed out that Hadith which was relied upon by the Supreme Court, translated as that “Every Qarz which gives profit is Riba,” was misread and given wrong meanings.
He said that he would not like to go into the controversy whether the Hadith was authentic or not as there was a lot of material on the subject, but would only concentrate on the meanings given to the Hadith by the Supreme Court.
He said the Holy Quran prohibited only such Riba which included the element of exploitation. He said incorrect meanings of the Hadith had changed the whole complexion of the judgment.
Dr Gillani stated that Qarz was extended to help out the co-believers. He said that Qarz could be extended even for productive purpose, as one Muslim may like to help another Muslim to establish a business.
About indexation, which the Supreme Court declared un-Islamic, the counsel stated that Justice Wajihuddin Ahmad, a member of the Supreme Court, had declared Islamic when he was judge of Sindh High Court.
The Supreme Court, the counsel said, declared indexation un-Islamic without any support from the Holy Quran and Sunnah. The counsel quoted Maulana Ahmad Raza Beralvi to substantiate his point that Indexation was not un-Islamic.
About fixed rate of return, the counsel stated that it was not un-Islamic and it was possible due to expertise and specialised training. He quoted Syed Baqir Assadar, a scholar from Iraq, who held that fixed rate of return was not un-Islamic.
The counsel said that Supreme Court rejected the point of view of prominent modern day jurists without even reading their books.
He said that Dr Syed Mohammad Tantavi’s views were rejected without going through his book. He said Supreme Court expressed its opinion only after reading his fatwa.
The counsel said that he would demonstrate before the court on Tuesday that the so-called Islamic banking had nothing to do with Islam, and was in fact Heela Banking (pretence). He said that Islam prohibited element of Zulm but the so-called Islamic Banking was not devoid of that.
The counsel was asked by the court to complete his arguments on Tuesday as early as possi-ble.
The proceeding of the case started amid unruly scenes, but things have settled down, and now only few religious leaders led by Saleemullah Khan of JUP(N) and dismissed Maj-Gen Zaheerul Islam Abbasi are seen in the courtroom.