ISLAMABAD, June 18: The Supreme Court was informed by the federal government’s counsel on Tuesday that Pakistan’s religious scholars were, in fact, main hurdle in the Islamisation process in the country.
Quoting Maroof Dawalibi, former Syrian prime minister, Dr Syed Riazul Hasan Gillani told the Shariat Appellate Bench of Supreme Court, hearing UBL’s review petition seeking reversal of judgment declaring all kinds of interest-based banking un-Islamic, that Pakistan’s religious scholars were a hurdle in the way of Islamisation in the country.
Maroof Dawalibi, who is adviser of the Saudi Royal family, had written the concept paper which is the basis of modern Saudi Arabian banking system.
The expert, the counsel said, once visited Pakistan and after meeting religious scholars, gave his opinion that the religious scholars were in fact a hurdle in the way of Islamisation in Pakistan.
The counsel stated that the so-called present-day Islamic banking was in fact un-Islamic due to high level of exploitation in these obsolete banking instruments which were being portrayed as Islamic.
The present day Islamic banking was based on inefficient and obsolete instruments, being circumscribed to exploit the religious sentiments of innocent Muslims, the counsel stated.
Dr Syed Riazul Hasan Gillani, who resumed his arguments on Tuesday, stated that Supreme Court’s Shariat Appellate Bench, without defining the word Qarz, declared that any amount big or small, over the principal, was Riba, prohibited by the Holy Quran.
He said there was a great difference between Qarz and loan. The word Qarz is close to charity as it was extended to the needy and financially-oppressed citizens of Islamic state.
The counsel stated that the word Qarz was used five times in the Holy Quran, in Sura Baqra, verse 245; Sura Al-Maida, verse 12; Sura Al Hadid, verse 18; Sura Tughaban, verse 17; and Sura Muzamil, verse 20.
The counsel stated that wherever the word Qarz was used in the Holy Quran, it was used in connection with the financially-oppressed members of the society.
The counsel stated that the Holy Prophet (PBUH) defined Qarz as the amount which was extended with the sole purpose of earning “Sawab”. The Qarz is a kind of debt (Udhar), which is extended with the sole purpose of helping a Muslim brother.
The counsel said that if an excess amount was charged on Qarz, the principal amount of Qarz also got polluted with Riba.
He said the court failed to distinguish between Qarz and loan, which created great confusion. The loan, he said, had wider meanings, including debt and investment.
Dr Gillani stated that jurisdiction of the Federal Shariat Court and Shariat Appellate Bench of the Supreme Court was limited to examining the laws whether those were in conformity with Islamic injunctions or not.
Under the Islamic concept of Qarz, the counsel said, the borrowers was not to be pestered for repayment and it was beneficial for the lender to absolve of the liability.
The counsel stated that borrower, however, was under instruction to make best possible efforts for repayment and the Holy Prophet (PBUH) refused to lead funeral prayer of a borrower who did not return the money despite having capacity to do so.
Justice Qazi Mohammad Farooq sought the views of the counsel on the status of business in stock exchanges, as under the existing Supreme Court judgment it was un-Islamic.
The counsel expressed his inability to respond by saying that he did not know much about the stock market business.
On a court inquiry, the counsel stated that if a borrower failed to meet the deadline, and he was forced to agree to pay more for extension in time, it would be restructuring of Qarz.
He said the term rescheduling was used for performing loans. The counsel referred to the writing of Shah Waliullah, Syed Shah Kashmiri and Mufti Shafi to show that only that amount was prohibited which was charged on Qarz extended to the needy person.
Dr Gillani stated that Justice Khalilur Rehman, who had headed the bench which upheld the Federal Shariat Court order, had rejected the view that only that amount charged on Qarz for extension in deadline for repayment was Riba, on the logic that if excess amount was Riba, how in-built excess, provided in the contract was not Riba. The counsel stated that opinion was contrary to the Islamic Injunctions.
The counsel stated that Supreme Court judgment also prohibited non-Muslims from dealing in Riba, which was contrary to Islamic injunctions.
The counsel stated that the Holy Prophet (PBUH) did not prohibit the non-Muslim citizens of the first Islamic state from dealing in Riba, as they had not been prohibited from the use of alcohol and pork.
Non-Muslim citizens were entitled to approach the courts under the writ jurisdiction, claiming that their fundamental right to do business was violated, he said.
Dr Gillani said that under no law, non-Muslims could be prohibited from dealing in Riba and if the present judgment was not reversed, the entire banking sector would go into the hands of non-Muslims.
The counsel said that all the jurists of Fiqah Jaferia were unanimous in their view that the non-Muslim citizens of a Islamic state were not prohibited from dealing in Riba.
He said that the Holy Quran was clear that it was applicable only to the Muslims as the Surah which prohibits dealing in Riba, addresses “Momineen”.
The counsel was still on his feet when the court rose to assemble again on Wednesday.
The Shariat Appellate Bench, hearing UBL’s review petition, comprises Chief Justice Sheikh Riaz, Justice Munir A. Sheikh, Justice Qazi Mohammad Farooq, Justice Dr Allama Khalid Mehmood and Justice Dr Rashid Ahmad Jullandari.