Ghulam Kibria Versus The State

IN THE FEDERAL SHARTAT COU RT

PRESENT

Mr.Justice(Retd)Salahuddin Ahmed Chairman Mr.Justice Agha Ali Ryder Member-I Mr.Justice Aftab Hussain Member-II Mr.Justice Karimullah Durrani Member-III

I . SHARIAT'PETITION NU.Q-IY1981

Ghulam Kibria Petitioner

Versus

The State Respondent

For the Petitioner In person

For the Respondent Nemo

Date of hearing 13th April, 1981.

APIA'S HUSSAIN,: MEMBER

On the 20th June, 1980 an Ordinance Known as The Zakat and Ushr Ordinance, 1980 (XVIII of 1980) was promulgated making provisionS relating to the assessment, collection and disbursement of Zakat and Ushr and matters connected therewith ..or incidental thereto. Section 3 of this Ordinance provides for charging and collecting on compulsory basis Zakat for each Zakat year at the rate and in the manner mentioned in the 1st schedule which deals with the compulsory levy of zakat, through deduction at-source for credit to the Central Zakat fund at the rate determined in that schedule i.e. 2.5%.

The petitioner has challenged the levy of Zakat as being repugnant to the Qurgn on the following grounds:-

I)In accordance with verse 41 of Chapter XXII of the Holy Quran, the government was required to disburse Zakat and not to recover it.

2)What is recoverable is not Zakat but is Sadaqah only, the provision for disbursement of which is made in Verse 60 of Chapter IX (Surah Taubah). The government should therefore undertake to recover and collect Sadaqat and not Zakat and should amend the name of the Ordinance accordingly.

The petitioner argued the case in person and laid emphasis on the Meaning of Zakat:_that it connotes 'increase', 'growth' or. 'development'.

The 41st Verse of Chapter XXII is As follows :- "(They are) those who; if we establish them in the land, establish Regular prayer and give Regular charity, enjoin the right and forbid wrong:

With Allah rests the end (And decision) of (all) affairs".

There is no justification for holding that the verse describes the functions of the state. It really deals with the duties of individual Muslims that they shall establish .regular prayers and give 'Zakat and enjoin the right and forbid the wrong. The argument based upon this verse is extremely fallacious.

In order to draw a distinction between Zakat and Sadaqat the petitioner emphasised that the recovery of Sadaqat was made compulsory after the Hijra of the Holy Prophet, while there are a number of verses in the Holy Quran relating to Payment of Zakat which had been revealed before Hijra from Mecca. He therefore, submitted that Zakat should be treated to be something different from Sadaqat. He further submitted that the Holy Prophet had fixed the rate of Sadaqat and mentioned the properties from which they were recoverable. The above traditions do not apply to Zakat.

It is correct that many of the verses pertaining to the payment of Zakat were revealed at Mecca (See 27:3, 30)39, 31:4, 23:4, 7:156, 41:7, 87:14). There is also no doubt that the rates of Sadaqat or the category of property were fixed and mentioned by the Holy Prophet in the second year of Hijra and its compulsory recovery was directed after the victory of Mecca in the 9th year of'Hijra but this by itself is not sufficient to support the contention of the petitioner. The word Zakat not only means grOwth or development or increase but also purification. There are quite a number of verses in the Holy Quran in which the order to pay. Zakat immediately follpws the order to offer the prayers (salat). Thus while salat “isloodily worship, Zakat deals with the Ubadat(worship) concerning property or wealth. According to the Ulema it is the third important fundamental of Islam, belief in the oneness of God and Prophethood of Muhammad (PBUR) being the first

and Salat or prayer being the second. Now Sadaqa is of two types. One is the payment of alms which is obligatory and the other is the payment which is discretionary. The obligatory Sadaqa and Zakat have throughout been used in the Holy Quran and the Sunnah of the Holy. Prophet as synonymous with one another (See Al-Ehkam-us-Sultania by Mawardi Chapter II Page 192), This point has been discussed in detail by Yusuf Alqarzavi in his book Fiqah-uz- Zakat Vol,I pages 40-42. The word Zakat was generally used in that sense even before the advent of Sharia. Observation of Mawardi to this effect is found at page 38 of the above book. The author himself sums up at page 39 that the word "Zakat" is used in the Quran in. the meanings which were well known to the Muslims from the beginineof the Meccan period. It is for this reason that Verse 60 of Surah Taubah which provides that Sadaqat should be spent on (1) the poor and the needy. (2) those who are liable to administer the funds of the alms• (3) those whose hearts have been recently reconciled to the truth. (4) those who are in bondage and in debt, (5) the wayfarers and (6)- in the oar of Allah, is held to apply to the compulsory or obligatory charity namely the Zakat. In the traditions of the Holy Prophet also sometimes the work "Sadaqat" and sometimes the word "Zakat" has been used for obligatory alms. • It is not necessary to reproduce these traditions since they have been collected in Mishkat and can be seen in Al-Hadis by AlTHaj Maulana Fazlul Karim Vol.II pages It is also fallacious to interpret the Work "Zakat" as development or growth of property.

According to Immn-Ibne Taimiyya," it is the development or growth of the (Spiritual quality) of persons paying the Zakat (page .88.:iFigh-uz-Zakat by Yousuf Al-Qarzavi).

The verses revealed in Mecca cannot be interpreted äo as to give a meaning different from obligatory Sadaqat. At that stage the order of payment of Zakat was not hedged by any limitation and it was.left to the good sense •of believer to take care of poor among themselves (page 61 abid). Such instances of a revelation preceding the actual- order are given tin Alitqan-fi-Uloom-ul-Quran(Urdu translation) by Jalaluddin Suyuti Chapter 12 pages 89 to 91,. wherein are quoted the views of Ibne Al-Hassar that Allah mentioned Zakat in. Meccan revelation which means that Almighty would fulfill this promise and would give a strength to Islam and would make namaz (prayer), Zakat and other orders of Sharia obligatory on the Muslims.. It is also stated at page 91 that .it appears that the object of the Meccan revelations was to initiate the Muslims in the use of Zakat before its payment was made obligatory.

The verses which referred to the establishment of Salat and payment of Zakat simultaneously have been interpreted to mean that prayer(sulat) of one, who does not ay Zakat, will not be accepted. This is on the authority of Abdullah bin Masood and Ibn Zaid at. page 64 of Fiqhuz Zakat by Yousuf Qarzavi.

An exception was also taken during the argument to the legislation making the payment of Zakat compulsory to the institution appointed by the

Government. This argument is without force, since verse 60 of Surah Taubah which deals with the items on which the obligatory alms are to . be spent inter- alia status that it shall be spent.:on-those who are employed to administer the alms which means those who are appointed for its recovery and disbursement. This in itself- is sufficient indication of the Government's liability to recover Zakat. It would, therefore, follow that where the Zakat is recoverable by the government, any payment directly made by a person liable to pay Zakat to any other individual would not be effective and despite t is payment, the government can recover again the amount of Zakat from that person. In a pamphlet Ehkam-u1,2akat by Maulana Mufti Mohammad $hafi it is stated at page 23 that it is the duty of the government to recover Zakat from Amwal-e-Zahirah andit is a,Shariah rule that if the person liable to Zakat makes a claim that he had paid it to the needy directly, his claim will not be effective and the Zakat shall be recovered from him again since ,he had no right to pay Zakat directly.

The petition is without force and is dismiS ad,

Sd/- Member -II Sd/- Chairman Sd/, Member TI Sd/- Member -III