Raja Khushbakht-ur-Rehman Vs. Province of Punjab

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Raja Khuahbakht-ur-itehman, son of Late Mr. H.Mehboob Hasan, owner of Raja Agriculture & Stud Farm, village Mudwalla Khurd, Tehsil k district SJheikhupura, Syed Zawar Husain Shah, son of Late Syed Pahalwan Shah, Ohak Ho. 119-7 1).R, Tehsil chichawatni, District Sahiwal, ....Petitioners.

Versus

1.The province of the Punjab, through the Secretary, Law Department, Lahore, /Z, Lahore Race Club, Lahore, / through its Secretary.

/3. Jockey Club of Pakistan, / Race Course Karachi, through its Secretary. ,M 1 PETITION under Article 203(D) of the provisional Constitution Order 1981, to examine and decide the.question whether or not Section 2(d) of the Punjab Ordinance No.VII, 1978, in so far as it includes betting made itt respect of any horse, mare or gelding running in competition with any other horse, mare or gelding or of the rider thereof, is repugnant to the Injunction* of Islam,

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“*♦ Thnt the petitioners are oiti«en* q € Faki&ten and have been breeding and training horses and wares for the last many years. For this purpose the petitioners have been maintaining stud farms by spending huge amounts annually,

2.That the Breeders in Pakistan also JiaVO •. teen supplying horses and mares to the Pakistan Army. They have also been selling horses and mares to the foreign countries and thus have been earning considerable exchange for the country.

3.That a serious Plow has been struck on the Horse-Breeding industry by incorporating in Section 2(d) a prohibition against gaming, including betting that is made in respect of any Horse, Kara or Gelding running in competition with any other Horse, Mare or Gelding or of the rider thereof and thus making it an offence punishable under the provisions of the Punjab Prevention of Gambling Ordinance 1976, As a consequence Horse-Breeding in general, persons attendants upon or connected with Horses serving large establishment of various racing institutions in Pakistan that were catering to thousands of employees, persons connected with the racing profession, such as owners, trainers, jockeys, riding boys, apprentices, syces, breeders, including the Government Breeding Areas, riding Schools, staff etc. have been seriously affected.

4.That the petitioners have waited a ll this time hoping against hope, that Respondent Ho,1 would make suitable amendment in the Ordinance to regulate the inert. ...of. racing in conformity with the injunctions of Islam. Having been frusted in their rational'

expectations th'-'t existing laws would bti made oonsistant with the Injunctions of Islam the petitioners are constrained to file this petition in this Eo n ’ble Court so that this Ho n ’ble Qourt may examine and decide the question whether Section 2(b) of Punjab Ordinance VII of 1978 in so far as it includes betting made in respect of any Horae, Mare, or Gelding running in competition with any other H ors e , Mare, or Gelding or of the rider thereof, is repugnant to Injunctions of Islam, and if so, to give proper directions to law malting agencies in this connection,

5.That the breeding and training of horses has bc-en an important activity of every society, Muslim society included. It was till lately not only an important 'Instrument of War but also played a pivotal role in the day-to-day activities particularly of those societies where the problem of covering enormous diatanc-s in difficult mountainous terrains and undertaking landscape wns the point of principal concern. The climate of .Arabia was comparatively more suitable for the breeding of horses/mares uand the Arabs are still famous throughout the ttorld for their high quality of performance in this field of endeavour, Islam encouraged the Arabs not only to breed horses for their personal use but al9o for organising their export to other parts of the world.

6.That the sport of racing is a universally recognised passtime since time immemorial and has, over the years,ooroe to be termed as the ’Sing of all the Sports’. In Arabia, horse-racing was and is considered popular of all the sports. It need hardly be emphasised that this sport provided incentive for the proper breeding of high quality of horses.

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Arabs usually paid more heed to the breading- of'iwrs© than to any other activity. There are cases in classical Arabic literature that the Arabs sometime went to the extent of even depriving their children of their share of food in order to make it available to their horses. Ah old Arab saying is that the best place for man is the saddle of a swift horse and the best friend for him is the book.

7.That particularly during the Islamic period, where all forms of gamblingcano under severe scrutiny racing is a sport survived in its well recognized form over which ofcourse certain variations of insignificant nature, had been engraft ted. Thus the religion of Islam as such did not place any undue restriction on this love of Arabs for their horses.

Rather it encouraged horse breeding, by enhancing the value of the horse in Muslim Society,Even in the Holy Quran, Surah Al-Aadiat Verso 1 to 5 Allah Almighty vowed by the racing horses, English rendering of the verses of this Surah is reproduced as under*- "By the snorting coursers, Striking sparks of firej and scouring to the raid of dawn. Then, therewith, with their trail of dust OL'aving as one, the centre of the f oe“.

£ue to this emphasis the culture of Islam has laid great stress on the proper breeding of horses.

Amongst the factors that have been referred to explain the dazzling success of Muslim armies in their wars against those that confronting the spread of Islam and of Muslim Empire it

is to agility, strength and swiftness of the horse that not an insignificant role has been assigned by later Historians. The Holy Prophet (peace be upon him) took every possible measure for maintaining

the interest of Arabs in hors«* breeding, The Is»in»io concept of horse racing has also been enunciates through the precept/trnditions of the Holy prophet (peace he upon him) and since has duly been followed by Holy Prophet's followers. Some such ssying/precapts/traditions nlongwith their transla* tion are reproduced in the Brief Note marked ns innexura '..y.

8.That by the passage of time, the horse breeding has taken the shape of an industry. To encourage and promote the breeding end training of horses and ponies, the Government of Pakistan has been allotting .agricultural land to the interested persons under Horse Brt- ding Schemes.

9* That Jockey Club of Pakistan, Respondent No.3, is a stetutary body constituted by the Government of Pakistan to impart training for the horses of high quality and give licences to the trainees.

10, That similarly Respondent No.2, Lahore Race Club is a Company established for the purposes of encouraging and promoting horse breeding and :

to organize/regulnte races meetings. The objects of Respondent N o .2 inter alia, include?- a) To encourage and promote by every means the breeding and training of horses and ponies;

b) To promote, organize and control races meetings at Lahore and elsewhere within the Province of Punjab;

c) To provide facilities for persons attending such races, including all amenities such as totalizations, refreshments, accommo­ dation etc. usually associated with such meetings.

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To achieve these objectives, the Lahore Raos Clubs' of the country,;., has been maintaining huge staff. Besides, the Race- ciubs;.slso award prizes to the winning horses and their riders etc. All these expenses met from the money received through entry fee from the visitors who..come _t;q._the races.

11.Thus the Horse Races, so it would appear, have all along been considered essential by Jslam for the purpose of the proper breeding and growth of the Horses. Betting } in Horse Racing too was considered conducive to the development of this industry in Islamic Society as well.

It is reported in authentic Ahadith which have been reproduced in the Brief Note >oppanded herewith, thot' the Holy Prophet (peace be upon him) allowed betting on horses in addition to the races of camels and spear playing. Reliance in this connection is also placed upon Nail-al-Autar Volume Till, pages 61-82. In these Ahadith the word 'Sabqa' or Rahana has been used for such a bet winning horse race.

12.As already stated above, the horse played a pivotal role in the Arabian Society. In the Juhillah period of horse gambling was an evil habit of that Society. And historians of pagan Arabia tell us that in addition to other forms of gambling the Arabs gambled by having recourse to Horse-Racing as well. They usually betted on the horses, in which like any other form of gambling, on.--, pg.rt.v was always the loser while the other was the gainer. The Holy Prophet (peace be upon him) disallowed such types of betting. To make them lawful he decreed that if a third person without any betting entered the race then the betting entered into by different other parties would become lawful.This third person or party was •k i

given the title of "MohalliV which waj»ns vfa* one 1'-i'/f.

who makes the transaction relating to the contest lawful. Reliance in this connection is placed on Nail-al-AUtar♦ Volume VIII page 84 and 1Alfigsh-.^law ^ ggahib»aj.-Arha (an authentic book of Islamio Jurisprudence published by Al-^ g h a r University Cairo)* This book has been translated into Urdu by the Aut^auf Department,Government of province of Punjab.

The Shia Jurists have also held the same view. itelianpe is placed on Fiqah»al-*Itnam J affar Sadia. Volume IV, page 233.

13* 1 That a careful study of the Ahadith and the relevant books of Fiqah would tend to show quite clearly that there is consensus amongst the Jurists of Islam that Hprse Races are allowed in Islam with a kind of betting which does not fall under the conventional definition of gambling. The bet for rewarding the winning horse in the Horse Race, is only permissible if it is offered from one party of the race. If the partybetting the reward itself wins the race then it will retain the betting money, and the losing party would not have to pay anything.

The other valid form of this betting is that it offers a betting money for the winning horse. howeverT It will be illegal if both the parties equally betted fqr the purpose as in that event it would come under the definition of 'Gambling'. But if a third person or a party enters in this contest without any betting, then the whole transaction would become legal provided the horse of the third party is pf comparative excellence, against the horses of the first two parties..

In Islamic terminolpgy this third person or party is called ’Mohallil', i.e. one who makes the transaction

legal. If the horse of the H;QhallirS^/ins tbs race then nil the betting money would bo his^lllliijb-rand. if the other party wins they would not demand anything from the 'Mohallil'. However, if anyone from the original parties wine the race then it will take oil the betting money. In this contest the 'Kohnllil’ had to pay nothing. He gains if he wins but loses nothing in any case. Hov.'ver, his entry makes the betting fair and legal. Reliance in this connection is placed upon -4lr_H^.ah~ U. '-Mazahib-al- trba. Volume II, pages 8^,87 (Urdu Edition). A copy of the translation of the relevant passages is attached herewith marked ' J* *Jjt

14.That with a view to run the Races on permissible basis which is considered free from all illicit practices, and make it stri^.ctly in accord with the Injunctions of Islam, the Lahore Race Club, like other Race Clubs of tb- country, has framed Racing Mules, which inter-alia include Betting Rules.

15."' Under these rules the Members of the Race Club elect Steward whose purpose is to ensure that racing is clean consistent with Isl.cmic Injunctions and all horses which enter.races have an equal chance of winning. The horses are owned by private persons. In some oases the Remount Department leases out Government horses for racing to private individuals to test their spaed, stamina and agility for breeding purposes and the owners in return, pay the Government part of the stakes which the horses win. The horses are trained by expert persons, licenced by clubs. The jockeys gat special training and sometimes the clubs set up Schools for their training. However, they are not employees of the club. These licences can be withdrawn in case of misbehaviour of any trainee. To ensure that horses have an equal chance of winning a highly trained person is

.jugic!^ o c;e uandic*pper. l-i. allots hnnflip *tn# m% of the breeding -nd ti-e vtous record of the horse, Thes-1 handicaps are ebang.-. cl from race to race after studying the latest performance of the horses.

Handicapping means the minimum weight which the horse would carry in a race, /•. good horse carried more weight to equalise the chances of winning. These horses are also classified according to their merit so that they should compete with the horses of their standard.

Luring the races the stewards keep keen watch on the performance of the jockeys. Officials and stewards of the club go in a car to watch the race from olose by, to determine that no jockey is guilty of foul-ploy with any other participant of the race and that be has done his best to make the race competitive. Movie Cameras are used to help in judging the results of the race,

16.That when betting is permitted the public lays bets on the horses that it thinks has the best chance of winning or coming second or third, Following data is available to the public ^t the time of making the bets-

a) Tho breed of ■‘he horses.

b) The performance of its ancestors.

o ) Its previous performance in races which have already V e n run,( ,1special book is printed to show the previous results to guide the public. This also gives the

timings of the previous race and the

distance by which the horse won or lost).

d) The previous record of the trainer.

e) The previous record of the jookey.

f) The handicaps allotted to the horse for that particular rnce.

g) Condition of the racing track.

In view ol the d"tn available fo the parsons who places the bets, betting on racing is no more in question of chance or speculation but is a question of skill and knowledge. This has also been held so by the Court3 in other countries. The bets can be laid in two ways? either with book-makers who are licenced end declare the odds that they are giving on each horse, is there are generally many bookies, the backers are likely to get good odds,

17.That in most countries of the world, however, betting is now done through a machine called a 'Totalizator'. This machine is of the nature of a Computor which calculates efficiently and correctly the number of bets laid on a certain horses and then totals all money betted on th?-t and other horses. Since the time between the races for betting and the distribution of bidder prise money is very limited it correctly and quickly distributes the total amount along the persons who have backed the winning horse or those who have backed the horse which stand second or third in a pre-determined, pre-publicised ratio.

18.As no one makes any profit when this machine is used as the total money betted on a horse is distributed to persons who have laid bets on the winning horse, this system is known as 'pari-mutuel' i.e. thajpe is mutualty in the winnings and losses.

This system can safely be termed ns 'hohnllil' as in no way it loses if any of the horses in a particular raoe win, who has been subject to betting, but it forfeits the entire amount if a horse/horses wins which has not been backed by any person. { It may not be out of place to mention here that no bet is laid at least on half of the number of horses participating in any particular race and if there art-

only three horses participating in any race, one 1 1 #

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horse remains out of betting conventionally). It is,

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of course customary to deduct from this income Government taxes and a certain nominal charges for the managerial expenses.

19.That tho Pace clubs are non-profit making institutions and no Member or steward makes or drives out any profit. Whatever is earned by these btx . Qlubs es Mohallil /is spent on the promotion of good horse breeding.

20.That by including betting in respect of horse, mare or gelding running in competition with any other horse, mare or gelding or of the rider thereof in Section 2(d) of the Punjab ordinance VII of 1978, the industry of Hors-. Breeding in the country has been adversely affected. In fact it has s a u c e d the activity of Horse Hre ding to the state of virtual collaps. The Hors-- hncing_witn b^ts_ thereon to the extent as permitted by Islam, Is _the,- only inc entive for breeding good horses .and judging their valuer speedt stemna and agility.

Nobody is inter-sted just to keep t:>e horses and making heavy investments, Nor a meaningful competition can take place unless there is a risk involved.

21.That evwrsinoe 1978, when this ordinance was promulgated by .Respondent No,1, the Petitioners through different sources have b->en representing their case to the .Respondent Government for amending the Ordinance suitably, so that the kind of betting in respect of horses as outlined above does not com© within the mischief of the aforesaid Ordinance but the Government has not taken any decision in this behalf, with the result that the Petitioners and other lovers of the sport have to face manifold complications.

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22.That the matter being important and concerning the industry of Horse Breeding in Pakistan, which if not attended to without any further d<-lay would be '1 extinguished completely, the Petitioners approach this Hon'ble Court so that this Hon'ble Court may be pleased to examine and decide the question whether or not -Section 2(d) of the Punjab Ordinance VII of 1978, in so far as it includes betting made in respect of any horse, mare or gelding or of the rider thereof, is repugnant to the injunctions of Islam.

23.That in any event, in view of the Injunctions of Islam, some of which have been enunciated in the petition and its annexures, Section 2(d) of the Ordinance needs examination by this Hon'ble Court to bring it in conformity with the Injunctions of Islam as laid down in the Holy Quran :>nd Sunnah.

LRAVfN & PILED BY

(PAJ^Al-i-HUSAlN ) Advocate, 5-Turner Hoad, Lahore.

Senior Counsel, hr. a .K. Brohi, will present the argument? boforo this Hon'bio Court.

(PAZAL**i-HUSAIN) Advocate,

Dated: 28 -7-1982.

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IN THE FEDERAL SHARIAT COURT

C Original Jurisdiction 5"

PRESENT

Mr, Justice Gul Mohammad Khan CHIEF JUSTICE Mr.Justice Fakhr-e-Alam Mr.Justice Maulana Malik Ghulam Ali Mr.Justice Maulana Abdul Puddus Qasmi Mr.Justice Fakhruddin H. Shaikh -o —

SHARIAT PETITION No.6/1 OF 1983 Raja Khushbakht-ur-Rehman 8s-- Petitioners Syed Zawar Hussain Shah

Versus

The Province of Punjab, — Respondents Secretary Law Depart­ ment, Secretary Lahore Race Club and Secretary Jockey Club of Pakistan

Contd 2.

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Counsel for the 1 . Mr,A. K. Brohi, petitioners Senior Advocate.

2 . Mr.Fazl-e-Hussain , Advocate.

3 . Allama Khalid Mahmood,

Counsel for the -- Mr .Mohammad Khalil Ramday; Govt. of Punjab Additional Advocate General.

For the Govern- -- Mr.Saeed A. Shaikh, ment of Sind Advocate General.

For the Govern- -- Mian Mohammad Ajmal Khan, ment of N.W.F.P. Assistant Advocate General.

For the Federal -- Dr.Riazul Hassan Gillani, Government Deputy Attorney General, For the respon— -- Mr.Jjaz Hussain Batalvi, dents No.2 and 3, Senior Advocate, Dates of hearing -- 25-3-1985

JUDGMENT:

GUL MOHAMMAD KHAN, CHIEF JUSTICE.- The petitioners have challenged section 2(b) of the Punjab Prevention of Gambling Ordinance No.VII of 1978, on the ground that it violates a saying of the Holy Prophet (PBH) and therefore, is repugnant to the Injunctions of the Sunnah of the Holy Prophet (PBH). Section 2(b) referred to above reads as underl­ ie "Gaming" includes wagering or betting, including wager or bet made in respect of any horse, mare or gelding running in competition with any other horse, mare or gelding, or of the rider thereof;" This definition is followed by penal provisions entailing sentences of imprison­ ment and fine.

The case, in brief, of the petitioners is that as the Holy Prophet (PBH) had allowed betting on horses with a Mohallil ( ) (to be discussed in detail later), making it an offence under the corres­ ponding section of the same enactment is also not permissible.

2.The petitioners are citizens of Pakistan and have been breeding and training horses and mares for the last many years. They have been maintaining stud farms for the purpose and are said to have been spending huge amounts every year in that regard. It is urged that the breeders in Pakistan had been supplying horses and mares to the Pakistan Army and have also been selling them abroad to earn considerable foreign exchange. The breeding and training of horses, according to them, is an important activity of every society as till late a horse was not only an important instrument of war but

also played a pivotal role in the day-to-day activities, particularly, the transport and the carriage of material both in the plains and the difficult mountainous terrains. Islam also encouraged the horse breeding and the Arab horses are famous throughout the world for the quality of their performance in the fields mentioned above.

The learned counsel referred to a few sayings of the Holy Prophet (PBH) to say that horse was a favourite animal of the Holy Prophet (PBH) himself and that according to him a horse is said to be carrying blessing in its forehead till the day of judgment. In this view of the matter, it is submitted that the breeding and training of the horses is pursued in obedience of the Holy Prophet (PBH) and that horse racing is not only a popular sport but is thought necessary for the purpose of health, stamina and Jihad. The learned cotinsel referred also to classical Arab literature in this behalf to show that the Arabssometimes went even to the extent of depriving the children of their share of food in order to make it available to their horses.

3.It was further submitted that due to the love of Arabs for their horses and their dire need in Jehad, the religion of Islam did not place any undue restriction on horse racing. He referred to Surah al-Artfal, (ftx-:

6;hj. Surah-al-adiatf 10'C:1— 5)

which ordain that horses are recant for Jehad and the Muslims should muster all sorts of strength against their enemies and get as many as trained

and well fed horses as they can afford so as to cause fear in the minds of their known enemies and those of Allah and such others besides them whom they do not know and whatsoever they spend in the way of Allah, He will compensate them adequately for it and they will not be put to any loss.

4.Horse Racing,the learned counsel■ftriA.K-.'Srciii suMitte is one of the essentials of the horse breeding and training as without it the breeders can have neither encouragement nor incentive. The learned counsel for the respondents No.2 and 3 also submitted that the race-track is the only place where the speed, stamina, endurance and courage of a horse can be gua,ged properly and in the absence of constant tests on a race track,a horse becomes a doubtful commodity and cannot fetch a good price. Ih their view, therefore, the horse racing is the backbone of the horse breeding industry and the race courses are the only venue ..for •judging the worth of a horse.

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5.It is, however, admitted by all the learned counsel that neither the provisions of law impugned in this petition nor does any other law prohibit horse racing as such. In this view of the matter, the learned counsel were asked to explain further as to what was their difficulty in the absence of any such restriction? Their explanation is that it is very expensive to breed and train horses and the compensation comes either from the prizes won by a horse on a race-course or the handsome price that it may fetch on the basis of the results it

had shown on race-track. It is thus argued that without prize money there is neither encouragement or incentive nor is it possible in its absence to bear the burden of the huge expenditure on the horse-breeding. It was demonstrated that before the ban on horse-race-betting was imposed in 1977, there were 24 good horse breeding studs in the country,including 21 in the private sector. They were being run on commercial basis and catered for the need of the entire country. However, after the ban some twelve such studs closed before their blood-stock could come in the market. The number, of the studs has . been reduced to only 14 and they maintain hardly 300 thoroughbred brood-mares as against 800 before the ban. The situation so created, it was urged, has not only adversely affected the supply of the suitable horses to the Army but has also reduced the chances of foreign exchange earnings, through the sale of horses,to the minimum. The learned counsel also referred to the socio-economic 11 r : 1i r ; 1 1 1 m m t t t t

problems created by the ban, inasmuch' as, the bread and butter of a large number of families of riders, syces, trainers, coolies and malies etc., who were dependent on this industry have been adversely affected. It was also sought to be shown that a substantial reduction has taken place in the stake/ -i prize money per year as the same has fallen from

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about 95 lacs to 10 lacs resulting in huge losses to the Provincial exchequer also. The learned counsel went on to say that the revenue receipts from the race clubs, during 1973 to 1977, amounted

to about 11 crores in the four Provinces, while the same dwindled to only 11 lacs for the period of 1977 to 1983. The adverse effect on the price of a thoroughbred yearling was also brought in focus and stated that while the same brought upto Rs.80,000/- in a private sale before 1977, it fell to about Rs.10,000/- thereafter. The learned counsel, therefore, concluded that if the decline in the supply of adequate money to the breeder goes unchecked, the cause of breeding and maintenance of the quality horses will suffer and it also shall compel the conscious breeders to close down their studs.

6.The learned counsel relied on the opinion (fatawa) of 55 renowned Jurists (Ulama^Faqih .) from all parts of the country to submit that there was a legal way (Sharai way) to bet on horses and that the same having also been banned by section 2 (b) of the Ordinance referred to above, the repugnancy r

of the provision is manifest on the face of it. t m t t m

7.The case of the petitioners is that the n n i t m

horse-race-betting as organized and conducted at present is in conformity with the Injunctions of Islam and, therefore, the ban is unjustified. It is explained that with a view to run the races on

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-i permissible basis, free from illicit practices, «i|i ..Hi.

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the Race Clubs have framed Betting Rules, where- -n.

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under, the elected stewards make it sure that the racing is clean and consistent with the Islamic Injunctions. All the horses are owned by private

persons and it is ensured they have equal chances of winning. In some cases horses from the Govern­ ment Remount Department are leased out to private parties to test their speed, stamina and endurance.

The Jockeys are also licensed by the clubs and their licences can be revoked in case of foul play.

The officials and stewards of the club go in a car alongwith the horses so that no Jockey is guilty of foul play.

8.The learned counsel produced material and documents to show how the public, betting in the races, is aided and educated in assessing for themselves, the chances of winning of the parti­ cipating horses. In his view the betting on horses, in the presence of the data supplied, is no more a chance-game, but is a game of skill and knowledge as also held by some Courts of other countries. The bets are laid,either with the licensed book-makers who declare the odds, they are giving on each horse, On.

orAa computer called totalizator. As the number of book-makers is large the betting public gets good odds due to competition among them. The Totaliza­ tor calculates efficiently and correctly the number of bets laid on individual horses, totals up all that money and distributes it amongst the bettors who had backed the winning or the position- horses in a predetermined ratio. According to learned counsel no one makes profit when the Totalizator is used as the total money betted on a horse is distributed to persons who have laid

b e t s on the w i n n i n g horse. The sy s t e m is ca l l e d para-mutual i.e., there is mutuality in the winning and the losses. In his view this system can safely be termed as Mohallil ( ) for where a horse, which is subject of betting in a particular race wins, the bettors who betted on it get back proportionately the bet money. However, the entire amount is forfeited if the winning horse has not been backed by any person. The learned counsel laid much emphasis on his assertion that no bet is laid on at least half of the competing horses and if there are only three horses one horse out of them conventionally remains out of betting.

9.The petitioners also placed on record, during the hearing, a Fatfwa of Mufti Ghulam Sarwar Qadri, (M.A. Islami University, Bahawalpur) of Jamia Ghausia, Main Market, Gulberg Lahore. According to him there was consensus of the jurists on the point that a horse-race with ’Mohallil' was valid. He relies on Al-Bahrul Raiq by Imam Ibn-e-Nujaim, Misri, Hanafi (died 970 Hijri) Vol:VII, pp.554, 555. The text has been taken from Kanzul-Daqaiq saying that bilateral betting on horse race was forbidden but unilateral betting was valid. The validity, with the introduction of 'Mohallil', has also been mentioned in it. It is further noted that the competition in every matter without a bet or compensation is valid but it is prohibited if there is any compensation or bet in contests other than, camel racing, horse racing and archery for it is gambling on the one hand and taking away the property by prohibited means, on the other.

10.The petitioners have also submitted a written statement of Brig (Retd) Mohammad Yousaf Khan, Ex- Director, Remount, Vety, & Farms, Government of Pakistan, stating that though it was for some-time believed that horses may be dispensed with, and the belief adversely affected the horse-breeding but it was soon discovered that the helicopters were in no position to replace the use of animal. So horse- breeding for army purposes was resumed and encouraged again. He referred to India where the Government was encouraging horse breeding despite the fact that they itself manufactured helicopters. He also supported the fact that the Holy Prophet (PBH) allowed and encouraged horse-racing and that the Remojants purchased mares and stallions from the civil market and individual breeders to meet the demand of animals for defence purposes i.e., for Jehad. In his view, the best breeding was not possible without testing horses on the race-track which determined their stamina and speed. The written statement goes on to say that the Government had to import horses from other countries at very high prices because of the deficiency of the good horses during the suspension of the races here.

11.The learned counsel also relied on a saying of the Holy Prophet (PBH) in 'Nail-Ul-Autar' Vol.VIII, page 81, which states that the Holy Prophet (PBH) observed that betting in every way other than the camel racing, horse racing and archery was invalid. It is argued that as horse racing with Wohallil1 is not gambling according to

the Holy Prophet (PBH) an Islamic State could not have gone against ' _ saying and could not have banned the same. Reliance was also placed on another saying of the Holy Prophet (PBH) (page 47 of the Prov.Govt.

report of the - /"How to encourage Horse Breeding." which shows that the Holy Prophet (PBH) arranged a horse race of trained horses upto Saniatul Wida ( and those of the untrained horses from Saniatul Wida ( ) to the mosque of Bani Zaraiq ( (Nail-al-Autar, vol.VIII, page 81). Similarly, he referred to yet another saying at page 83 of the same book to show that Hazrat Abdullah Bin Umar had mentioned that the Holy Prophet (PBH) arranged a horse-race and gave prizes to the winning horse. The most relevant of all the sayings referred to above is the one from Abu Huraira (page 50= wherein he stated that the Holy Prophet (PBH) observed that in a bilateral betting on the horses of a race, if a third horse lUliU lUillllll

of equal type be introduced, it will take the race out of the prohibited betting}

12.Reliance was also placed on extract? from the Essential Hanafi Hand book of Fiqh by Maulana Yusuf Talal Ali Al-Amriki, pp. 159-160 which read as under:-

"Masalah: Contests in archery, horse­ racing and the like are permitted by the Shariat. With regard to setting a prize for the winner of such contests the follow­ ing rules apply;

1.If the prize is to come from one side specifically (for example one of the two contestants says to the

other, "If you beat me then I will give you such and such. But if I beat you then I will take nothing from you") then it is permitted.

(The permission here is for the winner to take the prize agreed upon. This does not however, mean that it automatically becomes his property. If the loser refuses to give the prize and the winner takes him before a Qazi, the loser will not be ordered by the Qazi to give over the prize. Of course if the loser wants to give the prize in the spirit of friendly competition as it will be a gift the winner will be entitled to keep it as his own property).

2.If the prize is to come from either one of the two sides ("If I win, then you will give me the prize. But if you win, then I will give you the prize"), it is Harram, except that a third person step in and say, *If one of us finishes ahead of the other two, he will take so much as his prize". (Three people, for example, decide that if Zaid wins then Umar and Khalid will 1 1 1 1111 I 1 1 ttttt ttt

each give him a rupee. Then, if Zaid does not finish first, he will not receive a thing. The one among Umar and Khalid who lags behind the winner, will give the winner a rupee). If two people tie for first place (Umar and Khalid), then the third person (Zaid) will not have to give anything: but the two winners will have to take their prizes from each other.

The Book of Taqwa.

In this way this type of competition and awarding of prizes is Halal. However, the prize agreed upon for the

winner does not automatically become his property (as heretofore mentioned). Thus he is not entitled to take it without the loser's actually presenting it to him.

3.In the same way, an Amir (Or any non-participant) may tell a group of his soldiers (or any group of contestants) that the one of them who finishes first (in a certain competition) will receive so much (from the Amir) as his prize."

13.Support was also sought from Kitab 611-Fiq^h AlaJ Mazahib Al-prba^ Vol.II (Urdu Ed. pages 81 to 87). The discussion in the pages referred to also shows that there is a way by which there- can be betting on horses without the same being termed as gambling. The learned counsel also cited Fiqah Al-Imam Jafar Sadiq, Vol IV, page 233 (Urdu translation) . It shows that the word Sabaq ( ( y ) as- used- in various sayings of the Holy Prophet (PBH) means the prize money which is given to the winning horse and that the race is actually meant to judge a horse and that the horse racing is permitted both with and without betting under the direct authority of the Holy Prophet (PBH) as agreed to by all. Sharai Al-Islam Fiqah Islami Aljafari was also referred to. According to its brief (Urdu translation at page 74 it narrates usefulness of the horse racing and tent-pegging for it gives maturity, capability and determination in war and expertise against the enemy. The validity of the same is sought from the authority of the Holy

♦ Prophet {PBH) where it is stated that excepting tent-pegging, camel racing and horse racing betting on everything else is illegal. The Holy Prophet (PBH) is stated to have observed that even angels hate and call curse, on those who bet except on horse-racing, Camel-racing and tent­ pegging. The valid way of betting on horse-racing and other sports is also given,thefce to say that where a third person brings in his horse amongst the two bettors and he himself does not bet and is entitled to get the prize/stake money of others, if he wins but will have to pay nothing in case he loses, the betting will not be 'Haram'.

Mr.Brohi, the learned counsel for the petitioners also referred to Urdu translation of book by Ibn-e-Qayyam (Al-Faroosia) to state that Ibn-e-Qayyam in a very exhaustive discussion concluded that the horse-racing was valid with or even without a Mohallil.

14.The Provincial Government who is one of the respondents was represented by Mr.Khalil Ramday, the Additional Advocate General. He first of all, raised a preliminary objection about the maintainability of this peittion. He denied if the petitioners were horse breeders or had been selling horses to Pakistan Army or abroad. He

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also denied the allegation that livelihood of a

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I.ll- large number of persons had been adversely affected by the prohibition of betting on horse races. He termed the betting on horse-racing as defiance of the laws of Allah and stated that the Provincial Government had not banned horse-racing but have

regulatedifaccording to Injunctiongof Islam. He admitted that horse had been used in wars and also for transport in the past but pointed out the omission on the part of the petitioners to allege if their horses are being used or trained or even required for the same purposes even today. He joined no issue with regard to encouragement of horse breeding in Islam but stated that the same was not meant to run horses in the race-clubs to attract people for the purpose of laying bets and gambling. He argued that the gamblers deprived their children of their bread, their daughters of their dowry, their wives of jewellery and even their wearing apparls in order to lay bets in the race clubs. He submitted that many a family had been ruined by the bettors on horse-racing and this was a curse on any nation and a Muslim State is obliged to save the people of its disastrous effects.

15.The learned Additional Advocate General submitted that the verses of the Holy Quran quoted by the petitioners were not meant to permit horse-racing in the race clubs for the purpose of gambling and betting which was actually ruinous and disastrous activity and it had in fact destroyed families and their generations. According to him, the breeding and the training of horses in Islam is for use against the enemies of Islam and for their annihilation and not for the destruction of Muslims or to lure^Sto race-cluis and deprive them of the money meant for the subsistence, maintenance, upkeep,

teaching and training of their children. The plea of the learned Additional Advocate General was thot(L~ exceptional permission granted by the Holy Prophet (PBH) in respect of the horse-racing, camel-racing and archery was to be interpreted in its correct perspective and that it was in respect of 'FARS-LIL- RAHMAN' and not for 1FARS-LIL-SHAITAAN'. He also referred to the concept of 'Mohallil' and stated that as^exception was created to legalise what was illegal, the necessary conditions and qualifi­ cations attached to it are to be strictly applied and complied with. According to him, horses in respect of which the bets are made in the presence of the 'Mohallil' must be trained to participate in Jihad. He also pointed out that the Holy Prophet (PHH) never allowed the spectators to lay bets on horses and that 'he himself also did not lay any bet*with others, with money. The learned Additional Advocate-General also joined issue with the-petitioners and denied that the betting provided by the Race-Clubs was in accord with the Injunctions of Islam. He contested the plea that as every bettor has an equal and a fair chance of winning and l-osing with the introduction of Totalizator, the systemjito be termed as 'Mohallil1,so that it falls in the ambit of Islam. He vehemently controverted the suggestions of the petitioners that the Holy Prophet (PBH) had ever made any bet on horse-races in the sense in which we understand today and termed it as an indecent accusation.

16.As the Federal Government had not been made a party by the petitioners, we asked the Deputy Attorney General also to appear and make submissions.

He filed a written statement to state that Allama Ibn-e-Qayyim had retracted his earlier view given in his book 'Al-Fgroosia' and abided by the view of the majority that betting on horse-racing with the addition of the third horse as 'Mohallil1 was the only valid way. He sought support for this view from the book of Allama Ibn-e-Hajr, Vol III, page 403, and stated as a fact that no race with the addition of a Mohallil was being conducted at the time when the prohibition in section 2{b) was imposed by the Ordinance VII of 1978. He also produced photo copies of relevant pages of Franz Rosenthal's book 'Gambling in Islam'. The author has dealt with the subject elaborately and intensively and we shall be relying on it extensively in the following pages.

The learned Deputy Attorney General also referred&the written statement of the petitioners where they have prayed that the law should be brought in conformity with the saying of the Holy Prophet (PBH) and submitted that such a relief is beyond the jurisdiction of this Court. He also raised the same jurisdictional bar which the learned Additional Advocate General had urged as a preliminary objection.

17.We had also requested a number of Juris­ consults to appear and assist us in the determi­ nation of this important point. Mufti Muhammad Hussain Naeemi, admitted the necessity of breeding.

training and sale and purchase of such horses as were used in 'Jihad' and stated that the same was supported by all the authentic books. He, however, joined issue with the petitioners to say that the above could be true of horses which were run in the Race-Clubs. He, in a long written opinion, concluded that according to his knowledge and information the present method of horse-racing was 'Haram* in Islam and that a Government which is trying to enforce Islam in every walk of life could not permit such activities. He referred to 7 places in the Holy Quran where the mention of horses is made. The context of five of those verses pertains to war and Jihad whereas the two others refer to the social life in which use of horse was given. So far as the use of the horses in war and Jihad is concerned, the the learned Mufti, agreed that it is/duty of the Muslims to breld and train horses for it but submitted that the race-horses of the day had no relevance to the same. According to him, the race horses of today were being used in the way of : 'Satan-:1 and, therefore, that aspect is to,(eradicate<*or at least discouraged.

18.He also referred to a saying of the Holy Prophet (PBH) in this regard. He further submitted that the present day horse race was not only a pure and simple gamble but also a source of 'Haram' subsistence. He cited verses 90 and 91 of Surah Maida to state that all that was a work of the'Satan and therefore,the society has. to be saved fif the same. He also produced photo copies of few features published by the daily 'Nawa-i-Waqt'

wherein it was shown that despite the prohibition made by the impugned provision of law (section 2(b) of the Ordinance VII of 1978) Lahore Race Club was allowing betting without any let or hindrance. He also produced six receipts issued by certain book­ makers of the Club to supply a proof of the fact that the gambling in the form of betting on horse­ races was a very organized affair of the Race Club and that the same being un-Islamic should be stopped.

He took note of the saying of the Holy Prophet (PBH), made anchor-sheet of this case by the petitioners,to state that the permission of unilateral or bilateral betting with the introduction of a Mohallil was only allowed for such horses as are to be used in Jihad and that though 'Haram' remains always 'Haram' its justification could only be in case of a dire necessity. He further submitted that the betting on horses could only be by way of a reward and not for earning money and ta be made.only by those who have.a connection with the participating horses.

19.Hafiz Salahuddin Yusuf, Editor Weekly *Al-Iitisam', Lahore, also appeared and read his written opinion. He posed three questions for the purpose (1) Was the betting and horse-racing prevalent in the time of the Holy Prophet (PBH) or not, if not, can the betting of today be declared as valid? (2) Is the breeding and training of horses necessary today or not? (3) If the betting on horse racing is not permissible should the horse­ racing be banned or is there some way of its refor­ mation or not? As regards the first question he

found that there was evidence to show that betting on horse-racing was prevalent in the time of the Holy Prophet (PBH). However, that was a unilateral bet in which the prize was given to the winning horse.

There was also prevalent bilateral betting but it was in fact a type of gambling. However, the purpose of the betting was to encourage the horse breeding and training as the horses had to play a very important role in the wars of that day. He also referred to the saying of the Holy Prophet (PBH) which had been relied on by the petitioners and found nothing to disagree. In the view of this scholar there was no need or importance left today to bring up horses individually and consequently no horse racing from that point of view was necessary.

However, if there was some limited use of the horses then the bets could only be unilateral, by way of giving prizes to the horses which win and the prizes could be given by the Kin<^ or Ruler or other important persons as the Holy Prophet (PBH) had done in his time.

20.He also referred to the Hadith about 'Mohallil' and agreed with it but doubted if such ii betting was required in the changed conditions of the present times. In his view, the place of horse in war and Jihad has been taken by tanks, guns, aeroplanes and the fighters and there was thus no » i|- Mill. need to breed or train horses. Hafiz Sahib thinks Mill.'

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that the horse racing has been taken over by the snobs and aristrocrats not for waging war bat against the enemies of Allah b u t to hold themselves out as nobles or . notables and they are assisted by

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upstarts who are addicted to gambling in the vain hope of multiplying their easily gotten money. He also noted that the bet of today did not resemble the permissible betting with 1Mohallil1 as referred to in one of the sayings of the Holy Prophet )PBH).

According to him, a Race Course was a gambling den where gambling was being resorted to on a very large scale and that it was neither necessary to encourage horse-breeding nor could such gambling-places help the society in any other way. He further stated that according to verses Q. 9091 of Chapter V a restriction must be placed on such sort of betting. He relied on a portion-of the Book Albahrul Raiq by Allama ibn- e-Nujaim (died 970 H) where he stated that ^ and the saying of the Holy Prophet (PBH) that "whenever I order you to do something you obey as far as you can but when I prohibit you from doing a thing you immediately stop it". ^

The doct-rine is known as ( by the Jurists of Islam. The learned Scholar- applied this doctrine ilillillilll.jll.lll

to the case of horse and stated that it is permissible to place a restriction even on a 'Mustahab' or 'Mubah', if it had tendency to take people towards 'Haram' so as to save the people from that. He also referred to the action of Hazrat Umar whereby he ordered, the cutting of the tree under which 'bait-e-rizwan' took place, on being informed that the people had started going to see that tree and suspecting that it might create some sort of 'Fitna'." As regards the second question the learned author admitted the need of the breeding and training of the horses if

needed for war purposes and submitted that it should be done at the instance of the Government, sdrwidrar as the colonial government did through grant of lands for horse breeding. He further stated that the horse-racing was not^only way of breeding and training and an^irestrict ion thereon could not be a cause of the extinction of the horse specie. Reference was made by him to Nail-611- Autar, Vol.VIII, pages 241 to 242 (published by Muniria Press, Egypt) to say that horses were of three types and that those which were being bred and trained for sports like gambling etc were the horses of /Satan- , and, therefore, their training and breeding should rather be stopped.

21.Maulana Syahuddin Kaka Khail also gave a very learned discourse and filed with us his written work. He also made basis of his work the three questions based by Hafiz Salahuddin Yusaf.

He denied that the horses were being bred and trained today for Jihad or for the purpose for which it was done in the days of the Holy Prophet (PBH).

According to him, the horse-breeding or training today could only by a stretch of imagination be termed as ’Mubah’ but not beyond it. According to him, reliance by the petitioners on the verses of the Holy Quran or the Ahadith was not apt as same referred only to the horses meant for Jihad.

He also referred to the saying of the Holy Prophet (PBH) that the horses were of three types; one which is maintained for Jihad and the prize of which is

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lAjar' and other which is brought up for sport the price of which is 'sin' and third is for personal use which is helpful to man. He further stated that the horses with regard to which prizes were given were only meant for Jihad while the horse of today was only meant for game or personal use. According to him, the horse of today would only distract a person from the worship of Allah and even if its use was to be for some other good purposes it will only be brought in the category of ’Mubah'. However, the use of a horse for gambling or betting attracted such abnominal and disastrous results that horse breeding or training .even if it is 'Mubah'.shall have to.be declared invalid. The learned author thought that there was no need of horses in the wars of today which was to be fought by rockets, missiles, tanks, guns and ships. According to him the horses were being used only for the purpose of gambling.

22.He referred to'Fathul Bari, Sharah Bukhari' by Allama Ibn-e-Hajr Asqalani, Vol.14, pp 160-161, Nawawi / Sharah Sahih Muslim' Vol.II, page 122 and 'Nail-ttl-Autar' Xxx Sharah Muritaqal Akhbar' to say that if the bet was by payment of money it was a gamble and therefore prohibited. He also referred to the Ahadith relied on by the petitioners and stated that even they agreed that the bilateral betting on horse racing was un-Islamic. He, therefore, stated that the reliance on the Hadith of 'Mohallil* was not apt and that did not permit the persons other than those connected with the horses to bet. In this view of the matter he argued that as the purpose of the present day

racing was betting and collection of easy money and not encouragement of horse breeding for better and good purposes it was not permitted in Islam.

Mufti Syed S^hahuddin Kaka Khail also brought in the doctrine of ’Sadde-Dharai ’and relying on 'MtiwafSSfe Ashshatibi', volll pp. 173, 371, 375, 363, 364 and 270 stated that whenever a motive to do a thing is only to please onself and not to obey an Injunction of Almight7Allah, it is void and will not be termed as obedience of their religious tenets. He also pointed out that if the purpose of the law-giver was different from what the doer of act was resorting to under a device or a contrivance it will amount to defiance of the law-giver and contrivance adopted by him will be taken as detestable for the reason that the 'Munafiqoon' used to do the same way. Rather they considered as ridiculous the ordains of the Almighty Allah and the verses of the Quran. He, therefore, recommended that acting on the principle of 'Sadd-e- Dharai', the State should rather prohibit doing of such acts.

23.Maulana Sadruddin Alrafai from Rawalpindi, referred to verses 31 to 33 of Surah (j* and stated that the Allah Almighty has referred to the care and attention that Hazrat Suleman (PBH) had given to his horses. He also referred to verse 8 of Surah Anfal in that regard. The other sayings of the Holy Prophet (PBH) regarding the blessings and good luck in the forehead of the horses, horse racing conducted under the order of the Holy Prophet (PBH) from Hafia to Sanitul Wida and Sanitul Wida to the mosque of Bani Zuraiq were also referred to. He further stated that

the Holy Prophet (PBH) personally took part in the horse-racing and also placed bet as stated by Hazrat Abdullah bin Umar. Another saying of the Holy Prophet (PBH) that he was pleased when his own mare 'Sabah' won the race was cited. He also thought it the responsibility of any Muslim Government to introduce and encourage such sports which could inculcate courage and endurance. Reference was also made to Fatawa Ibn-e-Taymia, Vol 38, page 22 to say that it was unanimously accepted for a ruler in Islam to set apart money for horse-racing, camel­ racing and archery. Similarly, he stated that even the Holy Prophet (PBH) termed a man as sinner if he forgot Quran after remembering it by heart as also the archery. Another saying of the Holy Prophet (PBH) through Abdullah-bin-Umar was noted where the Holy Prophet (PBH) is said to have observed that Allah Almighty liked horse-racing, archery the most.

24.Dealing with the need, necessity and also the liking of the Holy Prophet (PBH) for horse-racing, jUUiUUU

the learned scholar said that the very object of Islam was to do away with the 'Munkarat' and

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■I 'Sayyiat' and to enforce and maintain the 'Hasanat' and 'Maaroofat'. He further stated that Islam wanted -ll-l x||w to filter away the pollution that had been mixed ..ill.

- i|- with the right things and enjoined their enforcement so that the Muslims were protected from sin. He then cited a saying of the Holy Prophet (PBH) that :::: the horses had been divided into three categories

i.e., a horse for Allah, a horse for Satan and a horse for man and stated that the horse which was being used for gambling was a horse of the Satan but the race with a 'Mohallil', however, would bring it out of the gambling. According to him, the Holy Prophet (PBH) had distinguished between the good and the bad part of a horse­ racing and whereas he wanted to do away with the one which pertained to gambling, he encouraged the right part of it. In his view the saying of the Holy Prophet (PBH), through Abu Huraira that if a third horse is introduced, it will take bilateral betting out of the discription of gambling is authentic. He also referred to the conditions of a valid race with ’Mohallil’ as reported by Imam Saeed Bin Almusayyab (15 Hijri to 93 Hijri) from the Holy Prophet (PBH) that there is no harm in bilateral betting in a horse-race with the introduction of a ’Mohallil', who could be entitled to take entire bet-money if he wins but would be

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liable to pay nothing if he loses. He also referred from •MuwatftaT ' Imam Malik translated by A1-Mustafa, Vol .II, page 154.

25.Allama al-Rifai also considered the question whether a race with 'Mohallil' was suitable in the prevailing circumstances and found that as the Holy Prophet (PBH) had taught that way of avoiding the gambling in horse-racing it should be encouraged. Second reason given was that love to breed and train horses should be kept alive

and as it needed some financial incentives, the betting on horses was necessary. In this connection he :explained the saying of the Holy Prophet (PBH) that the good luck in the forehead of the horse

meant financial benefit. He went on to say that if betting on horse-races was not allowed to continue with proper supervision and scrutiny the breeding and training of the horses would come to an end and result in the religious and national loss. He, therefore, thought it was the duty of an Islamic Government and Muslim social order that whenever, circumstances render compliance with the Islamic laws difficult, means and measures should be taken in hand to make them easier. He supported his argument by saying that the wisdom of reformatory system of Islam is that it looks towards the requirements and needs of life and intends that the undesireable methods should be eliminated and better means and measures may be adopted to fulfil those needs etc. The learned scholar was mindful of the abuses that might crop up in the system, if the betting with the introduction of 'Mohallil' was introduced but stated that injunction of Islam could not be discontinued or rejected for the simple reason that it will be abused. A particular reference was made by him to the permission of plurality of wives and the right of ’Talaq 'entrusted to the women but thought that though the right could be abused yet that reason provided no justification for taking those rights away.

26.Maulana Tajuddin Hyderi, founder of Darul Tabligh Al-imamia, Gujranwala (a Shia scholar) also sent his views on the point in writing. He also mentioned three verses from Surahs Al-Adiat, Al-Anfal and Al-Hashar about the horses and also the saying of the Holy Prophet (PBH) that there was blessing and good luck in the forehead of the horses. He further referred to three sayings of the Holy Prophet (PBH),about horse racing which are relied upon by the Ahl-e-Sunnat School of Thought and ten sayings of the Holy Prophet (PBH) as appearing in the books of 'Shiahs1. The first three showed that according to the Holy Prophet (PBH) there could be no betting except on the races of camels, elephants, horses and in the competition of archery and sword play. The 4th showed that the Holy Prophet (PBH) arranged the horse race I and gave silver coins as prize. The 5th referred to a permission given to Abu Qatada by the Holy I Prophet (PBH) to have a race contest of the horses after the enemy had retreated. In this context the Holy Prophet (PBH) led all of them. The 6th t saying refers to a race of trained-horses. It

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5 is reported that the Holy Prophet (PBH) arranged a : race from’Hafya’to the mosque 'Bani Zuraiq'. The : 7th saying of the Holy Prophet (PBH) shows that the angels •; hate.. betting-contests and curse ■ those who participate in them except for races of horses, camels, elephants and in archery : and tent-pegging. Reference in this saying is

also made to the horse-race in which the Holy Prophet (PBH) competed with Usama-bin-Zaid and arranged a contest of other horses. Similarly, the 8th saying is wherein an Arab is said to have requested for a competition of his camel with that of the Hol^Prophet (PBH). In the 9th also the Holy Prophet ,\had arranged horse races himself and given prize to those who led. The 10th saying refers to another horse-race wherein the Holy Prophet (PBH) had reserved seven coins of silver for the winner.

27.The learned scholar next explains the view point of the 'Shia' Jurists and states that all of them accept betting on horse-racing as valid when the prize was to be given to the winner by a person other than those, who were participating.

He also considered as valid both the unilateral and bilateral betting whether a 'Mohallil' participated therein or not. He, therefore, concludes that the horse-racing was carried on in the time of the 1i ■ 1111111mm

Holy Prophet (PBH) with his permission and he himself also participated some times.

The rules conferring validity on horse­

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>4 1. the Ruler should give the prize money from his own pocket;

2.the ruler may fix the prize money and let it be paid from the national exchequer;

3.a non-participant person may also give the person prize money from his own pocket;

4.one of the participants or some of them or even all may fix the prize money and give it to those

who win.

He, however, categorically states that if persons other than participants offer bets to each other in respect of a horse-race, it was considered by all the Jurists invalid and prohibited being in violation of the injunctions of the Holy Quran which declares it a war against Allah, the Holy Prophet (PBH) and 'Aimma Tahireen' with parti­ cular reference to the horse-race in Pakistan he states that it was 'Ami-e-Shaitan1 (act of Satan) and should never be allowed to continue. However, if encouragement of such races was found necessary the State may give prizes to the winner and take steps to prevent non-participants betting thereon.

He goes on to say that the participation of horses in the wars of today was not likely though the horse-races can not be prohibited for that reason alone.

28.Allama Riaz-ul-Hassan Noori also presented- his written view on the point. According to him, the betting was a curse the society and had been declared not only indecent in the Quran but as 1Aml-e-Shaitan*. He referred to Wilkelm Stekel, the renowned socialogist, according to whom gambling is habit forming and,(addiction and that horse racing is a part of it. He also referred to Encyclopaedia of Social Sciences, Vol VI, page 55 and stated that the race-tracks abound

with false tips and spurious aids. He went tin to ) say that gambling is a source of crime and political corruption and.greedy and criminals money.

are befooling simpler people in the vain hope, of making/He quoted from the encyclopaedia that "distorted estimates of the true probabilities also result from erroneous information - a principle much utilized by shrewd proferranials. Thus race tracks abused with false tips and spurious "inside information" much of which is circulated by touts to mislead the fans and thus to skew the betting horse in some direction. It has been observed again and again that gamblers consistently over estimate their own skill or luck, and it has been demonstrated experimentally that subjects consistently over-estimate low probabilities" Allama Noori, therefore suggested that the Govern­ ment must ban the horse-racing and other games of chance.

29.He also referred to the verses of 'Surah Al- Adiat' and stated that in the modern time it was not the horse that be referred to tha:e but the Jet planes which may put the enemies in fear. He suggested that if the stud owners really had the love of the country at heart, let them sell horses and help the Government to purchase F.16s and the like. In his view the might of country today was measured not by the number and the quality of horses but by the number of aeroplanes, tanks, ships etc.

30.Allama Noori then dealt with the permission of horse racing in Islam as relied on by the petitioners and stated that it pertained to such horses which were used in Jihad and not for those which are meant for gambling or mere sports. In this connection he referred to the renowned Malikdte Jurist s Aldardir who opined that horse-racing is prohibited because it is a source of gambling and gaming and that the Holy Prophet (PBH) permitted it only for Jihad. (Al-.Dardir, Al-Shrahu (Saghir, Ala Aqrabul Masalik Matbua Misr, Vol:II page 323). In the view of Allama Riazul-ul-Hassan Noori the competition was allowed only in the camel-racing, horse-racing and archery and in no other games what to speak of gambling. He has particularly referred to the wars that had been fought with India recently, and stated that the horse was used in none of them. Coming back he stated that even the incident of prizes given in horse-races was confined to a few occasions as is clear from the book of history and Hadith. He referred to the reign of Hazrat Abu Bakr and stated that no incident is mentioned in his time. Only one incident is noted in the time of Hazrat Umar where the son of Amar-bin-Aas whipped the Zimmi when he led him in a race. This news reached Caliph Umar who asked Zimmi to take revenge. However, he noted that in none of the incidents the question of payment of money arose, despite the fact that the Holy Prophet (PBH) had permitted unilateral betting.

He added that the prize was either given by the Holy Prophet ('PBH) himsifelf or it was fixed by any one of the spectators but no betting was ever permitted inter-se the non-participants. No bilateral betting was permitted with or among non-participants for the purpose of financial benefits and the motive always was to encourage breeding and training of good horses for the purpose of Jihad.

31.Allama Noori also joined issue with others on the authenticity of the cited saying of the Holy Prophet (PBH) about the participation of ’Mohallil’ in a race. He-argued that how was the introduction of a ’Mohallil’ possible when the Holy Prophet (PBH) had called a curse on Mohallil in a tradition reported by Abu Baud, Tirmizi, Nisai, Ibn—e-Maja, Darmi etc which is as under:-

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Reference was also made to Musnad Ahmad (83:2) where Hazrat Ali narrated that the Holy Prophet (PBH) called curse on 10 persons i.e., the one who took interest who gave interest, who were witnesses to the transaction of interest, who did not pay zakat, and Mohallil etc. A second

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narration of Hazrat Ali is also about calling curse on'Al-mohallil wal MohalUl lahu' Vol.2, page 87 of Musnaa Ahmad. Similar traditions through different narrators at pages 93, 107, 121, 123, 158, 450 and 451 have also been referred to.

In this view of the matter, he argued that the Holy Prophet could not have introduced a Mohallil to legalize the forbidden act of gambling. He further stated that the tradition of 'Mohallil' is neither in 'Bukhari'nor 'Muslim' and according to Imam Nawa'wi if a tradition does not appear in Muslim and Bukhari then it must conform to the conditions laid down therein. He then noted this tradition of 'Mohallil' from Abu Daud (2579 and 2580) and stated that firstly Abu Daud does not vouch for their authenticity but collected in his book all such traditions which on had been relied/by any jurist. Allama Noori then pointed out that this Hadith was narrated by Abu Huraira and from him Saeed-bin-Al-musayyib and from him Zuhri etc. According to him, Zuhri is a renown 'MudalJis' and a 'Mudallis' narrator, howsoever,reliable cannot be accepted for the simple reason that he avoids telling the names of some of the persons from the unbroken chain of narrators. The reason is that he knows the names but does not disclose them as he is confident that no one will accept a version coming from them. Zuhri also did not mention some of the persons from whom he heard. It is said that Zuhri, being a 'Hafiz' could not have forgotten

the names and so with-held them for the fear that they were not reliable. (Zahbi Seer Ala-m- Alnobala, Vol.V pages 338, 339). He noted that Zuhri had mentioned the name only Ahl-e-Ilm but not a companion. He even did not name the companions and mentioned no other names. According to him two of the narrator -links of this tradition are missing and, therefore, it could not have been relied on. Allama Noori also gave the view of Imam Shokani about Zuhri, who stated that it could be thought of another narrator that he forgot^ the names but not of Zuhri as he was a Hafia and generally avoided the names of such narrators whom he thought, r were- considered unreliable.

In this view of the matter, Allama Noori opined that the tradition did not originate from Abu Huraira. He also quoted Ibn-e-Qayyim who also thought that the report by Zuhri was weak. Saeed-bin- Bashir who had narrated Zuhri is also stated to be un-reliable.

32.Ibn-e-Abi Hatam is said to have reported about from his father/Sufian - bin-Hussain that the 3 tradition of 'Mohallil*'could not be the saying of

H

■I

-I

-I

the Holy Prophet (PBH). Ibn-e-Qayyim thought thht

- H

- I -l -I-I the tradition of Mohallil may be of Saeed bin Bashir,

-I -

According to Allama Noori, Zuhri, Sufian-bin-Hussain, Ml|_

I.llw

-III—

Saeed-bin-Bashir and Waleed-bin-Muslim are all

..'I—

..III..

- II-

weak narrators with sorre of -them-being 'Mudall-is. Even Abu Daud is said to have observed that ten of the traditions reported by Waleed from Malik had no root. Zahabi- also thought that when Waleed reported from Ibne Juraij or Anzai.. by Ur ho ■Unho'

the tradition was not reliable as he used to avoid the names of certain known liars. Reference is made to Meezanul Al-AitidaJ, Vol.10, page 20 to say that Sufian-bin-Hussain was a weak narrator and Saeed-bin-Bashir was still at a lower level. The view of Imam Ahmad and Imam Ksai is also the same. Ibn-e-Numair - thought tha-t he was Munk-arul Hadith. Allama Riaz-ul-Hassan Noori has given many other reasons in support of his plea from Sunnan Baihaqi, Vol 10, page 20. Imam Malik also did not like a 'Mohallil' as reported by the petitioners from Sabq-e-Islami pages 13-14.

33.Before proceeding with the preliminary objection and the discussion at length of the case, it will be useful at this stage, to sum up the views of’Ulama' and the Juris-consults discussed in paras 9 to 12 and 17 to 32 above. In the 'Fatwa' of 55 Ulema' produced by the petitioners, two of them termed the betting on horse racing as ' one agreed with the majority but called for further deliberation on the point while, the other 52 were unanimous that the bilateral betting on horse racing was undoubtedly ( ) and so not permitted C ) and that all the Muslim Jurists were agreed on that. They added that if the participants were more than two but only two were betting, there was an escape way in it, but in the final analysis, the betting should be completely avoided and refrained from. In answer to the question if there was any exception to the above rule they relied on the 'Fatwa' of Mufti Mohammad Shafi that race

with a 'Mohallil' ( ) was valid. The same is the view of Mufti Ghul'ain Sarwar Qadri and Yousaf Talal Al-Amriki, Allama Nasirul Ijtihadi (Of the Shia sect) generally agreed with the above 'Fatawa' and added that winner may also be given prize by the State, or by a non-participant. Professor Zafar Hassan Zafar (Shia) was of the view that betting in horse racing, archery and camel racing was allowed according to the Holy Prophet (PBH) and the money could be given by the State, a non-participant, or one of the participants or even both and that too without a 'Mohallil' according to Imamia faith. A fatwa of Imam Khumiani and some other jurists has also been filed showing that if bets comply with the conditions of Sharia the betting on horse racing is permitted. However, the conditions have not been specified. Be that as it may, the consensus of all jurists is that all competitions except horse-racing camel-racing and archery and betting thereon are forbidden 'Haram1 and this exception to the general rule is permitted for the purpose of Jehad.

34.The views of the Juris-consults, first five of whom are from different demoniation of the 'Hanafi school' and fifth a shia, are also summarized in the following table:-

Mufti Hafiz Maul ana Maulana Maulana Maulana Muhammad Salahud Siahud- Sadrud- Riazul Tajuddin Hussain din din Kaka- din Hassan Haidri. jtfaee_milu Yusuf. khel. Arrifai Noori

“57 3. IT 5. IT 2Z

1.Was horse-racing Yes Yes Yes Yes Yes Yes prevalent in the days of Holy Pro­ phet?

not only Jehad

2.Purpose of Horse- Jehad Jehad Jehad but also phy-• Jehad Jehad racing then sical exer­ cise.

• Was betting on fes but not Yes Yes horses prevalent ri.th money Yes Yes Yes then?

4,Can non-partici­ fes if they :

No 'No- No pants bet? are partners No No with the participants.

rP , &

5.What about NatureJProhibitfid r (Prohibi­ (Prohibi­ Good if it as ( Prohibi­ IProhibits^ of gambling in ted.^ ted j for horse ted j horse-racing? breeding and training

6.1s betting neces­ sary for horse No No No Yes No No breeding and training?

7.Prize for the winner by the Yes Yes Yes Yes Yes Yes State or non­ participants.

8.1s Unilateral Yes Yes Yes Yes Yes Yes betting valid?

9.1s Bilateral bet­ Prohibi- Prohibi- Prohibi­ Prohibited Prohibited Valid even ting valid? ted with-ted with­ ted with­ without with out out out Muhallil Muhallil Muhallil Muhallil Muhallil

0.1s Bilateral bet­ Valid but!(Valid but Valid but Valid Void Valid ting valid with may be may be may be Muhallil? banned or banned on banned on preventiv a preven­ prevent­ basis. tive basis ive basis

1 What nab out Nature Satan's Satan's Satan's Good deed Satan's Valid but of betting in work work work work may be step horse-racing ped on today?

preventive measures.

2.Do the circum­ stances today Yes Yes Yes No Yes Yes require banning it?

35.Allama Riazul Hassan Noori opined that horse racing in Pakistan was Satan's work and was creating detestable addicts. According to him, the promoters of this evil encouraged people by supplying them mis-leading information so that they get ready to stake even what they cannot afford in the vain hope of getting rich quick. He stated that though there were some horse-races in the days of t he Holy Prophet, yet the purpose was not to make money but to encourage Muslims to have better horses for the purpose of Jehad. According to him, the history was reluctant to offer any instances of betting in the period of the guided caliphs and that, in any case, the people who had no connection with the horses were never permitted to bet. He even doubted the authenticity of the Tradition of 1Mohallil’ as discussed above and has cited various jurists and scholars to say that it is weak and unreliable.

36.To sum up»the Muslim jurists of all schools of thought, predominantly, are of the confirmed view that competition in every game or sport is forbidden except horse racing, camel racing and archery. The reason for this exception is that these sports were indispensable so far as Jehad was concerned and so they had to be encouraged as a necessity. They further held that betting is absolutely prohibited in Islam i.e. it is ’Haram'. They, however, admit for the supreme purpose of 'Jehad' unilateral betting on horse-races or priaes for the winners through the State or even the non-participants ,as valid. All this, has been discussed above.

37.Before discussing further the merit of this petition, it is proper, first of all, to consider the preliminary objection raised by the learned Additional Advocate-General (para 14 above) and the learned Deputy -Attorney- General (para‘>16). Both of them referred to Article 203-D(l) of the Constitution which reads as under:-

"The Court may either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Govern­ ment, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."

38.The plea raised is that as the 'Tradition' relied bn by the petitioners only suggested a method of validating, an ostensibly forbidden act of gambling, it is not an injunction of Islam and, therefore, this Court cannot go into the question whether section 2(b) of Ordinance VII of 1978 is or not repugnant to it. They further submitted that repugnancy of a law is to be checked on the touch stone of an Injunction or a dictate of the Quran and Sunnah and not on the basis of a suggested method of doing a thing in a particular situation, in a legal

■M w n w

(Sharai) way. To explain it further, they submitted that the Quran and the Holy Prophet forbid gambling and term it as 'Haram*. Any act, therefore, which amounts to gambling is forbidden and cannot be permitted to be done, with the result that section 2(b) is in accord with the Sharia. On the other hand, if the Holy Prophet (PBH) permitted bilateral betting on horse-races, with the introduction of a third horse of 'Mohallil’ under certain conditions, it is not an injunction of Islam but may only convert the act into - > (indifferent, permitted, not prohibited). In their view, therefore, the jurisdiction of the Court extends only to such provisions which are either mandatory or prohibitory in nature and not those which are merely recommended, permitted, indifferent or not prohibited. The stand taken on behalf of the petitioners was that all the * u P *J j y \j I < given in the Quran or found in the Sunnah of the Holy Prophet are Injunctions of Islam and no one has the right or authority to amend or repeal them so as, at least, to deny the advantage conferred on the Muslims. The controversy, as discussed above, thus rests on the meaning and

39.According to W.C. Burton: Legal Thesaurus, page 284, New York, 'Injunction * means: Ban, binding, command, command to go, undo wrong, denial, enjoin, imperative.

An ’Injunction’ is a judgment, or order, to do or refrain from doing a particular thing.

(Jolus James: Strouds' Judicial Dictionary, Vol:3, page 1369).

The World Book Dictionary, page 1087 says an Injunction is a command, order while according to the Lexicon Webster Dictionary' Vol.I, page 495 it is the act of ordering or directing; a command, admonition or precept.

The Oxford English Dictionary, page 301, Vol. 5, says ’Injunction is the action of enjoining or authoritatively directing; an authori­ tative or emphatic admonition or order.

'Injunction'

i f

Command, order, bid, enjoin.

He commanded, ordered, bade,

or enjoined, him to do that which behoved to do.

He counselled or advised him (Arabic English Lexicon, Part I, page 97).

to order, command, bid, instruct, commission, charge, entrust. (Cowan: A Dictionary of Modern Written Arabic, page 27).

" C/ 4

^ pi. 'Ia P\ Judgment, valuation, opinion, decision, verdict, regulation, rule, prorission, conviction, administration of justice, ordinance, decree, etc. (Cowan:

Dictionary of Modern Written Arabic).

According to Imam Raghib 'Amoor'

plural of 1Amr1 means obliging somebody to do something and it would encompass acts as well as utterances.

40.- The word 'Islam1 implies submission or obedience to the commands of Allah and this obedience itinmi

should be exclusive to God alone and not to be shared with other purported masters. This requirement of Islam is founded on the fundamental proposition that the basic condition in which God has permitted man to exist, is 'ibahah', the permission or liberty to do any act, as in VII:32 or XVI:116 on V:4. Ibahah, according to Shafii jurist Al-Amidi (d.631/1233) is the pronouncement of the law-giver of an option in doing an act. The Hanafia ibn-Abdin (d.1252/1836)

said on authority of Shafiite and Hanafite scholars that the things which are liable to be permitted or prohibited by 'Shar* are permitted (ala al-ibahah) before coming of shar, as ibahah (permission) is substantial (asl) in respect of things, Therefore, the man to whom 'shar’ did not reach is permitted to do whatever he desires. In this view of the matter any one who professes Islam, Covenants with Allah Almighty to act in accord with and be bound by 'Sharia* and any one who got the message will be answerable for his violations. Thus this provision of ’ibahah' is displaced only by definite evidence from 'Sharia' to the contrary. However, an act may move from being merely permissive or allowed through a Quranic Injunction, to being positively enjoined, either with punishment or without punishment, for neglect of it or similarly prohibited.

So an *amr' in sharia may make an act positive as in IV:58 i.e., 'kutiba* (prescribed) positively necessary (11:183, 178), 'Aqimu' (establish) a directive as in 11:43 or negative. Certain foods are prohibited ( in strong terms as in V:3. 'Nahy* is used in XVI:90 for lwedness, abomination and wickedness. 'La Yahillu* (avoid) is used in verses V :90-91 calling upon believers to abstain from strong drink, games of chance, idols and divining by arrows with reasons as given in the following verse:— 0 ye who believe!

Make not unlawful The good things which Allah Hath made lawful for you, But commit no excess:

For Allah loveth not Those given to excess. ^

Eat of the things which Allah hath provided for you Lawful and good:but fear Allah, in Whom ye believe.

imperative such as in 111:130 or 'la khayra7 (no good) in IV:114. There are then declaratory or informatory provisions as 'khyr(good) in 11:280, LVIII:12 on 11:220, of lesser intense quality of approval are phrases such as 'la junaha alaykum' (no blame on you), 'laysa harajun' and 'laysa junhun' in 11:235 and XXIV: 61 on 'la ithma alayhi' (no sin shall be upon him) as in 11:182.

41.So far we have been talking of specific acts as given in Quran. However equally important is another command of Almight Allah requiring of beli$ver£bey the Holy Prophet as in IV:59, IV:80.

It is ordained in Surah Hashr (LIX:7) that you may take what-ever is given to you by the Holy Prophet but refrain from doing what you are asked not to do.

Thus it is not only the Injunctions of Quran but also the Sunnah that are enjoined to be followed. We 'have seen that the Quran invests certain acts with T T T T I n 1! 1 ! 1 ! 1 1

certain values primarily in the personal sense to the individual likewise but simultaneously it lays emphasis on questions of group responsibility.

A great deal of what these values call for in concrete and detailed terms is inevitably left unsaid and has to be inferred or is implied or

-.III.II"

.ill.

-II"

requires examplification. This is the context in

.II.

•m which Muslims are called upon to obey the Prophet. .in.

-i"

See IV:64, IV:69, XXIV:62 in which he is described as bringing men from darkness to light and LXV:1; in which he is stated to have a greater

f .1 .................. *p - > - > ............... <!*'• ......

II*

claim on believers than themselves, XXXIII:6, in which he is to be consulted (LVIII:12); in which he is described as coming to settle differences amongst nations and a fortiori, amongst the Muslims themselves (11:213), and this is the context in which he is described as the excellent example

(XXXIII:21).

424 As said above, these Islamic values -or 'Ahkam' are to be found primarily in Quran and besides being confirmed in the Sunnah of the Holy Prophet, the Sunnah alone sets out other 1Ahkam1 of human acts. General references in Quran support the basic presumption of 'ibahah' or permission regarding any act or relationship and, therafter, specific references are made to specific acts and relationships which are stated to be good or bad. There are then degrees both in the good and the bad and a value attached to an act, by the Quran is frequently qualified by reference to the circumstances surrounding it.

For example, commission of certain acts which are disapproved or prohibited in very strong terms by the Quran are permitted, even enjoined, in certain circumstances and conversely certain acts or relationships which are strongly commanded or recommended are, in specific circumstances, merely permitted and sometimes even disliked or

-I

prohibited. Thus it is often impossible to determine the Quranic value in isolation. To under­ stand these Quranic values in this correct perspective,

claim on believers than themselves, XXXIII:6, in which he is to be consulted (LVIII:12)? in which he is described as coining to settle differences amongst nations and a fortiori, amongst the Muslims themselves (11:213), and this is the context in which he is described as the excellent example

(XXXIII:21).

o:

42 4 As said above, these Islamic values -or 'Ahkam' are to be found primarily in Quran and besides being confirmed in the Sunnah of the Holy Prophet, the Sunnah alone sets out other 1Ahkam1 of human acts. General references in Quran support the basic presumption of 'ibahah' or permission regarding any act or relationship and, therafter, specific references are made to specific acts and relationships which are stated to be good or bad. There are then degrees both in the good and the bad and a value attached to an act, by the Quran is frequently qualified by reference to the circumstances surrounding it.

For example, commission of certain acts which are disapproved or prohibited in very strong terms by the Quran are permitted, even enjoined, in certain circumstances and conversely certain acts or relationships which are strongly commanded or recommended are, in specific circumstances, merely permitted and sometimes even disliked or prohibited. Thus it is often impossible to determine the Quranic value in isolation. To under­ stand these Quranic values in this correct perspective.

good ones as well as the avoidance of bad ones, great care is required in any aspect which might affect this perspective and relationship.

Keeping the above situation in view, the jurists have divided the 'Ahkam' (Injunctions) broadly in five categories. They are -

(i)Obligatory ( -(j*S ) whose performance is rewarded and whose omission is punished.

(ii)Recommended (Mandoob are those whose performance is rewarded but whose omission is not punished.

(iii)permitted or indifferent ( for which there is neither reward nor' punishment for their performance or omission.

(iv)'disliked1 ( whose omission is rewarded but whose commission is not punished. According to Hanfia the prohibition established by uncertain authority ( ) is called 'Makruh' .

(v)’Prohibited^ ( ) whose omission is rewarded and whose commission is punished. i L i i n m t t t t t t

'Haram' according to Muhammad Abu Zhhrah., is an action prohibited by the law-giver categorically and positively irrespective of the fact that the authority ( ) which makes the action 'haram' ( ) is decisive ( 6 -U) or uncertain, conjectural

( ( P ’ >.

43.Some of the jurists have given other finer sub divisions also but the above will suffice so far as the present context goes. All these categories are always subject to the following

over-riding provisions of Quran, ( ) as in 2:183, 5:3, 6:119, 6,145 or 16:106 and 6:152, 7:42, 23:62, 2:286, 65:7 2:23. Thus the eating of a forbidden food is prohibited normally but it can be permitted, even recommended or made obligatory if it was the only food left or available in order to save a human life. Same is the case of utterances if made under extreme duress. Again, prayer is obligatory but in face of a threat to safety of the community by an actual enemy attack, even prayer at such a time may be interrupted or even prohibited, if by its performance by the group in one lot, their safety was gravely endangered. Again, even the situations in respect of which an injunction is given has also to be understood. Explaining this aspect, Shafii, when asked what sort of 'Mubah' is prohibited, and this prohibition is different from 'Haram’ (prohibition proper) replied:

"It is like the Prophet's order of prohibition against wearing a single robe by a person who folds it on one side leaving uncovered a certain private area of his body, or when he asked a boy to eat what was placed in front of him and not from the top of the dish: he is reported to have prohibited - although it is not certain­ eating two dates together, exposing the inside of the date (prior to eating), and halting on the road for rest'.

Since the wearing of a single robe, the eating of food (as much as one desires), and (walking on) the earth (which belongs to God, and all men are equally entitled to use it) are all mubah(permitted, indifferent) acts, the Prophet's order of prohibition refers to particular acts which are different from those he permitted.

For the(Prophet's) order of prohibition (is limited) only to the wearing of the robe if it were folded in such a way thfet it leaves uncovered a certain part— the private parts— but if the private parts were covered by the cloth, the prohibi­ tion against uncovering the private parts should not include the wearing of a single robe, since one can wear it without uncovering the private parts. (Similarly) the Prophet's orders against the (boy's) eating of the food from the top of the dish, which is permissible, are merely orders of etiquette, for it is more appropriate on behalf of the host to observe them while eating with his table-companion, instead of eating voraciously. (The Prophet) prohibited eating from the top of the dish because God's blessing descends on the top and it should continue descending on it. He permits (yubihu) eating from the top once he has eaten from the sides. If one is permitted to walk along a road, ! he does so because it is permissible : (mubah) in principle, since nobody : owns it, to forbid others from passing; : but the Prophet prohibited halting for a i certain specific reason for he said, "It is the shelter of insects and a

I

passage for snakes’, not because halting is forbidden (muharram). He also prohibited halting on the road if the road -i| l il were narrow and crowded, for if one :j halts (for rest) one would encroach upon : ij '•il other's right of passing".

'i.il•i|

! 44. Consequently, before taking any action a '•'i

Muslim must ascertain whether any value is attached to ...il - hi

:: the intended act, say positively or negatively , ::: and also the underlying reason in terms of

Islamic norms. This' 1 requirement cuts across all lines of demarcation between the so called religious or spiritual or individual on the one hand and the secular, temporal or collective on the other.

The act intended to be done may have social/religious implications. It may concern one human being directly such as injuring someone, or affecting more than one, as killing some one or theft, by affecting the heirs as as well/who are financially dependent. Then comes the acts which affect the society such as drinking, reckless driving, counterfeiting currency, damaging public property etc. All these acts call for either the individual's retaliatory action or all-action by the society or the community, which may be a Government or a State. Quran clearly contemplates some such .organisations for its Divine purpose. See 111:103, (hold fast together) 111:104 (there should be a party among you who invite to good and forbid the wrong), V:8 (exorting to guide with and do justice), IX:71, and IX:112, and XXII:41 enjoining good and prohibiting evil. Collective manner in which people are responsible for their condition is set out in VIII:53 and XIII:11. InXXIV:55 God promises those who believe and do good that He will make them succeed (the present rulers) in the earth and that He will establish for them their religion.

The above verses clearly spell out the duties of the individuals and the Society and each has to pull his own weight.

45.= We have so far discussed that a Muslim is obliged to follow the dictates of Allah and the Holy Prophet (PBH) in all the spheres of his life,whether called religious, secular, temporal, or spiritual in his capacity both as an individual or a member of a social or political group. Care is thus required both by the individual and the society in determining the principle on which enforcement of these values by a w o r l d l y agency is justified or commanded and where, on the contrary, the enforcement is reserved by God either in this world or in the hereafter. However, the wrongful acts or omissions, violative of the rights of Allah (Huquq Allah) which are not capable of being made invalid and regarded as essential by the classical law, and which are capable of being subsummed under an enforceable worldly legal system are cognisable also here in this world by the society. Again the only places where the Quran calls for definitive enforcing action by the community are on those matters which clearly involve the rights of man whether single or in community whether it be theft, brigandage, open indecency, slander or gambling (taking property of others in manner not approved etc.)

46.While applying the above principle to gambling, there was agreement on all sides, that it is 'prohibited' and a Muslim State or an Islamic social order will not permit ft. However, the argument raised on behalf of the petitioners was that the Holy Prophet(PBH) excluded betting on horse-racing, arrow contests and camel-racing. The question

whether this permission was for ^-ptfrticular purpose or a situation or in general is to be considered later. Suffice it to say here that if the Holy Prophet had excluded betting on horse races from the prohibited category can the State restore it back to the prohibited category or is the society empowered or entitled for public good to take such preventive measures as may put an end to it or curtail or discourage such activities. This is what the Jurists call 'Sadd-e- Darai' ( ).

47.Alongwith it, the individual has also been vested with right to agitate against the orders or actions of the State or the society which he thinks are either in violation of ’Shariah * or that the State or the society is barred from enacting or doing those. Quran says in Surah Nisa

(IV:58-59):

L r _/—"®Vj <2UJ ) C-P l

58."Allah doth command you To .render back your Trusts l To those to whom they are due; I^ ) And when ye judge >S >

Between man and man, Then ye judge with justice:. ^- -c •& S .L 9& g. & i- . ^ / y -

Verily how excellent • O I Is the teaching which he giveth you! cUJ\ O I For Allah is He who heareth \fy> 4-* And seeth all things.

59."0 Ye who believe! J'r~.

U^fcJyVjj }\J Obey Allah, and obey the Apostle, ~^ ~^ And those charged c d O J ) With authority among you.

If ye differ in anything 9 ; U_f Cj Among yourselves, refer it ^ To Allah and His Apostle, If ye do believe in Allah And the Last Day:

That is best, and most suitable For final determination. >•

That is best, and most suitable for final determination."

The above verses cast a duty on the rulers, administrators or those having the authority, to deliver what is due to whomsoever and to act justly, fairly and equitably in doing so. Quran then addresses the individuals and requires of than to obey Allah, His Prophet (PBH) and those who rule or are vested with authority but it also entitles them, that if they find that the selection made, decision given or the order passed by the rulers or those in authority is not just, fair or right, to go to (not Ulil-Amr) but another authority which is further enjoined to settle the dispute between the rulers or those vested with authority on the one hand, and the aggrieved person on the other, in accordance with the law of Allah and the Prophet (PBH). In the modern terminology we may call it separation of judiciary from the executive and conferment of power of judicial review against administrative or legislative acts.

48.The situations discussed in the previous two paragraphs thus make it clear that it is the right of the petitioners to approach this court and the obligation of this Court is to decide the issue in accord with Sharia and the Constitution. It is to be noted that the objection raised is that the legislaturt has no authority to deprive the petitioners of something which the Holy Prophet (PBH) conferred on them in the form of permission to bet on horses with the addition of a 'Mohallil'. This raises a very important question i.e. permission is absolute and if the State has the authority to take away something which the Holy Prophet (PBH) gave and which the petitioners

are willing to enjoy. As said above, it is ordained in Sarah Al-Hashr (LIX:7) that you may take whatever is given to you by the Holy Prophet (PBH). This prima-facie, is a very valuable right and if it is absolute,ordinarily, no body can be clothed with the powers of taking it away unless there is shown either a mandate of the higher authority or at least of the some level. In this view of the matter, if we find that the Holy Prophet (PBH) did confer such a right and if the same is also available to the petitioners in the situation prevailing as of today, the onus shall lie on the State to prove that there was available to it a power or justification to denude a person of that right, under an equal or a higher authority.

Be that as it may, the situation obtaining does attract the jurisdiction of this Court to hear on merit this petition.

Consequently, we find no merit in the preliminary objection and the same is not sustainable.

49.The case of the petitioners on merit is that the horse is to retain good and blessing in its forehead, till the day of judgment, irrespective of jehad and it is the duty of every Muslim and particularly a Muslim State to encourage all that is necessary for its breeding and training. The Traditions of the Holy Prophet (PBH) quoted in this regard are as under:

Narrated Abdullah bin Umar Allah’s Apostle said, "Good will renain (as a permanent quality) in the foreheads of • A^I U jlJ ) cJ) horses till the Day of Resurrection."

Narrated Urwa bin Al-Ja'd:

The Prophet said, "Good will remain (as a permanent quality) >=^3 a JJ| I in the foreheads of horses till } cJ L* the Day of Resurrection."

A* UaJ ) _V (J I

i—W tw -W ir e -

Narrated Urwa Al-Bariqi: The Prophet said, "Good will renain Cas a permanent quality) in the foreheads of horses (for Jehad) till the day of Resurrection, for they bring JL-* \_-Zw ti' about either a reward (in-the \ Ml Hereafter) or beoty (in this world). - Jarir bin Abdullah reported: I saw the Holy Prophet twisting the fore­ lock of a horse with his finger and saying: As for horses, fortune, reward and booty are tied up with - ^ in d— >»L2J' their forelocks up to the Resurrec­ tion Day. er^J

The contribution of a horse in Jehad according to the Holy Prophet was twice over the Mujahid and so a horse was given double the share of a 'Mujahid' on foot.

Narrated Ibne Umar: Allah's Apostle ^ A...*-J r«| «JJjl fixed two shares ftSefiorse afd'cWinr- y . , the rider'(frcsn'the'.’vp_r booty ). . v

50.It is quite true and no one has disputed the fact about the good and blessing in the forehead of a horse' But this cannot be true for all kinds of horses as in some other Traditions sin is also attributed to them.

Narrated Abdullah bin Umar -: I heard ^ j C o * ^ 6 * the Prophet saying: "evil omen is in three things: The horse, the woman J and the house. (Bukhari Kitabul Jehad, Vol:II, page 74). t * t- o» Narrated Sahl bin Sa*d Sa’idi d^*- UJI O J-**- u* Allah’s Apostle said, "If there '■-o’ is any evil omen in any-thing, (p ^ then it is in the woman, the horse and the house," (ibid, p.75). (7S^

Further, the Holy Prophet (PBH) did not like a particular kind of horse as in the following Tradition:- Abu Hurairah reported that the Prophet <*«£»<>*•dXlicls~^ ov^JW’-C* dislike shikal in a horse and shikal K> *-1* means that a horse should have got L* whiteness ■ in its right foot W in its' * left.hoof/ or in its right arm and left -s- hoof. (Muslim).

51; There also appears to be no controvercy or contest on the point that the horse has been a very useful animal throughout the human history and the Muslims, particularly, liked it as it rendered a great assistance to them in the wars against the enemies of Islam. Certainly, it was in this view of the matter that Quran says in Surah Adiyat as under:-

. By the (Steeds) 0

That run, with panting C U- A3 C— li (breath) 0 Uv^ol^i^JU

And strike sparks of fire, 0 UJL a.

And push home the charge CCtfcj-a- ^jia— in the morning And raise the dust ( 5 - 1 /1 00) in clouds the while,

And penetrate forthwith

Into the midst (of the foe)

En masse; (100:1-5) tr;111 n ru m m t t t t

52.The importance of the horse is also of quite clear from another verse/tfieHoly Quran (Surah Anfal verse 60= which is in the following words Against them make ready o* Your strength to the utmosii J .t ✓ 5^ *5^ Of your power, including Otr”'> J Steeds of war, to strike terror j - 6 U ,j» Into (the hearts of) the enemies, 5*^ < ^g..1.% JJ1 Of Allah and your enemies, J--— ^ O- And others besides, whom U ^ys Ye may not know but whom 0 Allah doth know. Whatever ( 60/8 )

Ye shall spend in the Cause of Allah, shall be rapaid Unto you, and ye shall not a;

Be treated unjustly. (8:60).

53, The horse is mentioned in Quran in some other verses also and it will be useful to reproduce them:

And (He has created) horses, Mules, and donkeys, for you To ride and use for show;

And He has created (other) .

things of what ye have no tA{ ii> knowledge. (16:8).

Fair in the eyes of men Is the love of things they covet: Women and sons;

Heaped-up hoards I h -5 A* Of gold and silver; horses J Aj Branded (for blood and excellence) And (wealth of) cattle And well-tilled lahd.

Such are the possessions U jO ITfcfc— ^ 11 vio i* Of this world's life But in nearness to Allah Is the best of the goals up f r> (To return to). (3:14) What Allah has bestowed -xlslL.4* On His Apostle (and taken . tm \ % \ Away) from them — for this Ye made no expedition with either cavalry or camelry yxtom

But Allah skives power ( ^ \JnL> To His Apostles over Ur* U Any He pleases: and Allah Has power over all things.

(59:6) i't/Ci* )

Lead to destruction those Whom thou canst among them with thy (seductive) voice;

Make assaults on then With thy cavalry and thy JJrSM J Infantry: mutually share With them wealth and children;

And make promises to them. But Satan promises them 0*(V ‘ u> Nothing but deceit, Behold, there were brought

C^J

Before him, at eventide, ' Coursers of the highest breeding, / And swift of foot;(38:31) And he said, "Truly Do I love the love tWO-l Li 1 Of good, with a view v To the glory of ray Lord,"- Until (the sun) was hidden In the veil (of Night): (j* y i r

~-a9

"Bring than back to me."

Then began he to pass ooCfrUL> His hand over Ctheir) legs

And their necks.

54.According to the above verses, a horse is used for three purposes i.e. for showing off, transport and Jehad. However, the favoured and themost cherished purpose wftfi Allah is what achieves near-ness to H±n and not the Satan. The Holy Prophet also discussed the above three purposes in a different way in the following traditions' -

Narrated Abu Hurairahc c CUjC cJJ ) V* u? Io -* Allah's Apostle said,

"Horses are kept for one )(Ju> ^ of three purposes; for c-3 u i P J - > J )ciS some people they are a

source of reward, for JZ* Of I some others they are a

means of shelter and cfj$)U U

for some others they are {J W J a - U J f > > a j

‘ V 1

a source of sins. The one

for whom they are a source (J J V k U o J j ) , ^ ^ of reward, is he who «

& O I fO* keeps a horse for Allah's & J\ is \J^> Cause ('i.e. Jehad), tying it with a long

tether on a meadow or in a -V garden with the result thatt .

whatever it eats from the Ef^ W- \ ^ area of the meadow or the garden where it is tied will ^ be counted as good deeds for ."* his benefit, and if it should break its rope and .jumps over one or two hillocks then all its dung and its foot marks will be written as good deeds for him; and if it passes by a river and drinks water from it even though he had no intention of watering it, even then he will get the reward for its drinking. As for the man for whom horses are a source of sins, he is the one who 1 6 -yS o* keeps a horse for the sake of C i &• pride and pretence and showing enmity for Muslims: such a horse will be a source of sins for him.

Narrated Abu Hurairah:The Prophet said, "If somebody keeps a horse r -- - in Allah’s Cause motivated by his i V' faith in Allah and his belief in His promise then he will be rewarded (3 ^ o-3 on the Day of Resurrection for what , ^ « the horse has eaten or drunk and & z O'® for its dung and urine." (Bukhari, Kitabul Jehad,Volume,Tl, • Ui\ i3 pages 71-72). v5^ tr}

55, Men used horses particularly,

(i)for Jehad i.e., fighting with the enemies of Allah to advance His glory;

(ii)for fighting against the cause of Allah;

(iii)as a personal transport or a draught animal;

iv)for business, illegal gains and crimes

v)for show and the love of possession.

However, Allah. Almighty is only pleased with the horse that strikes terror into the hearts of the enemies of Islam, when it penetrates into the midst of the foes (of Allah) and when a horse of this type is kept, nourished, looked after and loved” To the same effect is the Tradition of the Holy Prophet (PBH) referred to above, Further, it is unthinkable that good and blessing should be in the fore-head of a horse which is used for wars against Islam, for dacoity, theft, gambling, snuggling or other anti- people or anti-Islamie activities.

The Holy Prophet, as said above also loved horses, himself rode them took part in racing contests and gave away prizes to the winners. All that was in furtherance of pro-jehad purposes. He also categorized horses into three types:- a) a horse for Rehman (Allah);

b) a horse for human being;

c) a horse for Satan.

A horse for Rahman is the one which is trained for the cause of Allah and is used in battle against the enemies of Allah (Jehad). A horse for human being is the one used by man for personal transport or transport of his goods for good and valid purposes. The horse for Satan is the one which is used against the cause of Islam or against the interest of people. This is given

in the following Tradition:-

Narrated Ibn-e-Masood, The Holy ' ^ . •}y \\r t j g\A*- Prophet said, "Horse is of three ^ * ' **i»\y7 kinds first is the horse for;_jt_i\^j Rehman (Allah), second is the

horse for human being and third

is the horse for Satan. So the

horse for Allah is the horse

which is trained for the \ cause of Allah (Jehad) and . . • •\ . U o <_r*» which is used in battle with

the enemies of Allah, and -9 the horse for the human being «

is the horse which he uses for loading and riding, and 2,1.1 Cf 2- ?-■-£?

the horse for Satan is the (2Ai~ 8 horse on which betting is

made. "(Taf sir Durr-e-Hansure, £ o ° ^ ^ ) Volume III, page 196) (Also

see Tafsir Ibn-e-Kasir, Vol:

II, page 321) .

57, The above verses of Ouran and the Traditions of the Holy Prophet (PBH) make it quite clear that only that horse shall carry blessing and goodness till the day of judgment which is bred and kept for the cause of Islam i.e., a horse for Rehman. However\ the petitioners did not subscribe to that restriction so far as breeding and training was concerned. They argued that all efforts must be made to breed and train horses till the Day of Judgment and that the only way to pursuade and encourage breeders is to do so is by permitting them financial gains. Their case in nutshell was that breeding of horses is a very expensive hobby and unless a horse brings back to the

Ul<

owner, a sufficient amount, in the form of price and prize, no one will be prepared to undertake breeding and this specie shall go extinct. The determination of price, they added, always depended on the performance of a horse, on the race track and a good prize will come only if a large number of people are prepared to participate and bet in the races. The question for consideration thus is, is the horse, we are talking of, the one which carries good and blessing in his forehead? Again is the horse racing and betting permitted in all sorts of cases or will it be restricted to such races as are meant to train horses for the cause of Rehman?

58.it may be explained here that all the ’Ularaa', Juris-consults and the lawyers were agreed on the proposition that betting, wagering and gambling of all sorts was prohibited ( ) in Islam. All of them further conceded that competition was allowed only in horse racing, camel racing and archery and that this exception was made because of the importance of these sports for Jehad in the situation obtaining in those days. For the same object even giving prize to a winning horse, was valid and the unilateral betting was also not un—Islamic. There was, however, a sharp conflict on bilateral betting .some 'Ulama' of 'Shiah* school were of the view that that it was valid while according to others it was ( ''O*- ) prohibited. All the ’Ulama* and the Juris-consults except Allama Riazul Hasan Noori agreed that betting on a race with 'Mohallil* was permitted. This Tradition which has been narrated ^ through two channels with slight variation of words, but with the same import, is as under;-

It has been related on the authority & of Abu Hurairah that Holy Prophet \ .. • , . , , said, "He who join; with a horse in the competition of two horse-racei5 and he o' was not sure that his horse will win, - There is not harm and if he was V sure that his horse will win, it is gambling, (ibid, page 84 ).

C s4 a

59.The view expressed by Mr.A.K.Brohi, the learned counsel for the petitioner, further was that the existing manner of horse-racing came to the standard of a race with 'Mohallil' and so the, restriction on betting as placed in the impugned provision was un-Islamic. He added that, in any case, the introduction of’Totalizator’ (a machine used for instant calculation and distribution of the money collected on bets) converts it into a race with t'Mohalltl' and so makes it lawful. The learned counsel for the Lahore Race Club, however, candidly conceded &"*.-that the present system of betting on horse racing was pure gambling but a race with 'Mohallil’ can be arranged and even the present non-participants allowed to bet if they share one of the copeting horses either as owners or as lessees. He also referred to Kitabul-ShLrkat' of Fatawa Alamgiri and pages 52-57 of Sabaq^i-r-Islami, Such a device, he thought, was necessary to encourage breeding and training of good horses and would also take the present manner of racing to a valid form.

60.The following questions, out of the above discussion, arise for determination:- i 1 Is horse-racing necessary for good breeding and training?

ii)Is betting also necessary for good breeding and training?

iii)What is the nature of betting in Islam?

iv)If betting is 'Haram' was it made 'Halal' in the Tradition of'Mohallil'.

v)What is the hasis if betting on horse­ racing is justified in Islam?

C

vi)Would the device of enabling the non­ participants to share in the ownership or lease of a horse be justified in the circumstances of today?

vii)Can a permitted act be banned by the State in any situation?

viilj Does the above principle apply even today?

ix)The conclusion.

I. IS HORSE-RACING NECESSARY FOR GOOD-BREEDING

AND TRAINING?______________________________

61.Throughout the known history, the horse has been man's partner and frierid, carrying him above fellow-men on foot and giving him power, speed and pride. It ploughed his fields, brought in his harvest, hauled goods and conveyed passengers. It carried combatants into battle and adventures. It has provided recreation, physical exercise and higher values to the men dealing with it. The terms chivalry, cavalier and cavalry connected with horses generally co.nnote honour, respect, good manners and straight­ forwardness. When alive, it serves man as a means of transport, haulage and sport and when dead its bones and cartilage are used to make glue,Antl-tetnus. (a 1‘ife saving anti-toxin) is obtained from its blood serum. A number of articles are made from horse-hide and hair including fine shoes, furcoats, upholstery and mattresses. There is thus no doubt in the usefulness of the horse even today and consequently, no issue be joined on the need of its good breeding and training in the relevant fields.

62.The guiding principle of breeding over the centuries has been to’breed the best and hope for the best'. However, the performance of the progeny has been the most reliable guide to what is best for breeding purposes. In many years, the stallion was regarded as the dominant partner in an individual mating but the modern thinking credits the mare, for approximately half the inherited quality of the off-spring. The case of the petitioners is that the desired qualities to be transmitted to an off-spring generally are speed, stamina, endurance agility and courage. According to them, the only place where those qualities can be tested is the race-track and, therefore, the horse-

racing of both the sire and the mare are necessary.

It is not disputed that the most successful breeders are those who apply the best-to-the-best formula, with expert common-sense and judgment, instead of mating just any top class sire to the top class mare. However, even in such a case the individual achievements of the mating partners must be known so as to apply the expert judgment and the common-sense. We, therefore, have no reason to differ with the plea that the race­ track results provide a very valuable aid to the breeding of horses.

63.. There can also be no cavil with the plea that the race-track is necessary for training of race­ horses. However, it has not been shown to us if the training required for a race-horse is necessary or sufficient even for a draught animal as also others which have to carry the riier or goods both in the vale®- and dales. Further, whether the speed, stamina, endurance agility or courage of a race-horse is equally necessary and transmissible to off-spring which is to be used for haulage, travel or sport/P’lve11?incTr^rom the Encyclo-paedia Britannica that the modern breeds are:

i)the light, fast, spirited, typified by the modern Arabian.

ii)the heavier, slower, and calmer working, typified by the Belgian and

iii)the intermediate typified by the thorough breeds.

iv)ponies i.e.horses other than Arabian that are shorter than 14.2 hands.

However, if all the breeds can be bred from only the race-horses has not been demonstrated. It is also not known whether the modern horse-tracks and the training of a race horse are the pre-requisites for the breeding and training of- the breeds 'other than-those of the first and the third categories. Yet, be that as it may, there is neither a complaint by the petitioners that the

Government is interfering with their breeding and training nor is there a grievance that the Government is annulling their breeding and training policies.

However, we agree with the petitioners that horse racing is necessary for breeding and training horses meant for races or heat/dash racing.

64.We have noticed above that there are four main breeds of horses and each one is meant to do a particular type of job. Again, it is not genetically a must that a racing horse with remarkable stamina and endurance may transnit only those characters to heavy breeds, meant to do haulage at a slow speed.

Probably, no stud-owner will undertake such an experiment which may call for selection of the best and the suitable off-spring over generations. The breeding and training of the present stud-owners revolves round the production of off-spring which may show remarkable performance-^n the horse-racing of today. They have not shown to us that the Army is buying their horses for the racing purposes. Rather, the Punjab Government's report on "How to encourage Horse Breeding in Pakistan", at page 3 states that "3000 individual breeders under "Ghori Pal” Scheme cater for defence requirements and the surplus stock is available for private sector." As against that there were only 654 brood mares in the private studs at the peak period of 1977. (See page 12 of the same report). The above statistics- make it absolutely clear that the private studs are not filling any vaccum. Their own case rather is that "They have also been selling horses and mares to the foreign countries and thus have been earning considerable foreign exchange for the country.”

65 The petitioners had relied heavily on the report of the Punjab Government, referred to above, to show that the ban on betting imposed in 1977 affected

the stud farms as under'-

Brood mares. Stallions. No.of Studs. Average price _____________ _____________ vqt: a yearling. Before 1977 654 71 34 20,000

•The para 4(g) of the same report reads as under:- "Now the question arises as to how to encourage horse breeding and make the Race Clubs economically viable to solve this matter within the limits laid down by the Shariat. A deep study on the circumstances leading to the sharp and alarming decline in horse breeding reveals that in the absence of adequate prize money in consonance with the high cost of breeding and maintenance of quality horses, the breeders are reluctant in investing huge amounts in this industry. The price of quality colt or filly is directly linked with the amount of the prize money it can win. Under the existing circumstances, however, the financially crippled Race Clubs cannot afford to offer reasonable amounts as prize money to act as an incentive for breeders to take the same interest in this important industry as they used to take in the past," Even the grounds of petition also s£pw that what has caused loss to the petitioners is the ban on betting and nothing else,

II. IS BETTING ALSO NECESSARY FOR GOOD BREEDING

AND TRAINING._____

66, There will be no controversy on the point if we say that betting plays no direct part in the breeding and training. The case of the petitioners, as said somewhere else above, is that maintenance of a stud-farm is a very expensive venture and unless the yearlings or foals produced at the studs leave good price, the stud farms become highly uneconomical and must be abandoned. They have given statistics showing the falling prices of the off-springs but have not linked it with their main purpose i.e.betting on the races. Their case was that a race-track is necessary for a race but they have no complaint about it. They have the race-track and there is no restriction on horse­ racing either. They can thus test the speed, stamina, endurance and courage of a horse. They can also

maintain records on the basis of the performance of any horse on the track. We were told that records are being maintained satisfactorily by the Jockey Club of Pakistan, established under the patronage of the Government of Pakistan. Thus it has not been proved that betting.as such has anything to do with the good­ breeding or training of horses.

67, The report of the Punjab Government in its para 3(a) states that "superior horse breeding totally depends upon the existance of the race-courses". This is, however, not the complaint of the petitioner. The race-courses do exist and there is no ban on ther%. The report goes on to say that "people often ask what has racing to do with horse breeding. As already mentioned, racing is the back-bone of horse-breeding and the two are inter-dependant. One cannot exist without the other".

Even, about this fact there is no grievance. There are race-courses and there is no restriction on racing.

However, the report adds: "If there was no race without proper incentives, no body would take interest in the horse breeding." The report does not elaborate the word 'incentives'. It does not say what are those 'incentives' and how do they encourage interest in the horse-breeding. Of course, the further requirement stated in the report, about proper testing, is available and no attempt to breed good horses is likely to fail for lack of any of the ahove facilities.

• it is stated in para 4(d) of the report that the race clubs used to offer, on an average, Rs .95,07 384/- per year as stake/prize money, in addition to other facilities but that amount was reduced to a more Rs.

10,60,564/- after the ban. Most probably this prize money is the ’incentive' mentioned in para 3(a), referred to above. It further appears from para 3(c) of the said report that the price of a young horse

depends on its pedigree, its performance and the prize-money won by its forefathers. A bare look at this statement would convince any one that the mention of this prize money is a surplus-age, so far as the quality of a horse is concerned. The quality is to be measured not with the amount a horse earned but with the performance it gave, particularly, when the prize purses may differ from city to city, country to country and also community to community. So any one interested in a horse would look to the other data than the amounts it earned.

69.In any case, let us see where does the prize, money come from? The petitioners have not taken us into confidence about it. Even the Jockey Club of Pakistan (respondent No.3) and the Lahore Race Club (respondent % did not supply us the definite information though we inquired about it, in no uncertain terms. The report of the Punjab Government does mention the prize money but gives us no clear answer as to wherefrom this 'incentive' comes. The petitioners in para 16 of their petition, however, stated that when betting is permitted the public lays bets on the horses that it thinks have the best chances of winning or coming second or the third. The public is of course supplied the data, showing its breed, previous performance, performance of its ancestors and also about the jockey, the trainer and the condition of the track etc. The bet can be made either through a book-maker, who is specially licensed, by the relevant race club or a machine called the 'Totalizator'. Of course, a part of the bet-money so collected by the Book-maker or the 'Totalizator’ is deducted as Government taxes and for managerial charges but the exact percentage is not given. It is, however, asserted that the Race Clubs are non-profit making institutions and no member or steward derives any

profit. Rather, all that is earned by the Clubs is spent on the promotion of good horse breeding.

70.We, therefore, again go back to para 4(d) of the report of the Punjab Government and presume that the sum of Rs.95,07,384/-, which the Race Clubs offer on the average, as stake/prize money, in addition to the other facilities, to the winning horses, comes from the public-betting purse. We are also not informed if there is any bilateral or, as the case may be, multilateral betting by the owners or the lessees of the horses. Thus the facts on the record indicate that the entire prize-money and the entire or the most of the managerial expenses of the race clubs come from the public, either in the form of entry fee or as a portion of the betting money. It may also be presumed that it is this amount which the petitioners want to be secured as probably, this is the 'incentive' to the good-breeding of superior horses.

III. WHAT IS THE NATURE OF BETTING IN ISLAM?

71, We are, therefore, now required to know about the nature of betting in Islam. Betting according to Dictionary of English Law by Earl Jowitt means a form of wagering contract under which money or money's worth is made payable on the result of some uncertain event, such for instance, as a horse race, a football match or a boxing contest. A wager, on the other hand, according to the same dictionary, consists of mutual promises betwee two persons, that one will pay the other, a certain sum of money, if a certain event happens or is ascertained to have happened. Black's Law Dictionary also gives a somewhat similar definition. It further says that in a 'bet' or 'wager' money belongs to the person posting it, each of whom has a chance to win it, but in the case of a ’purse* or ’premium1, money belongs to the person offering it, and he has no chance to win it but is

certain to lose it. Gamble, according to Black's Dictionary is to 'play' or game for money or other stakes, hence to stake money or other thing of value on an uncertain event. It involves not only chance, but a hope of gaining something beyond the amount played. Betting is thus equivalent to gambling or wagering and is a sort of agreement among two or more persons.

72.The word equivalent to gambling in Arabic is 'qimar'. Its root is q-m-r. Its origin is not quite clear but the root consonants include such meanings as Qamar (moon) where colour and light efforts were of tremendous importance in Beduin life.

•Arabic Lexicographers tried to establish a connection between the gambling and moon in as much as the size and light efforts of moon change like the fate of a bettor. According to Mufti Mohammad Shafi,any transaction which oscillates between profit and loss in an uncertain event is known as 'qimar'. He quotes example that if a person says to another 'I will pay you Rs.1000/- if you led me in race and you will pay me the same amount if I led or if one says to another "if it rains today I will give you Rs.1000/- but if does not you will give the same amount. al-Jurjani (d.816/1413) states 'qimar’raeans "game with the condition that the winner (ghalib)of the two contestant gets something from the other (maghlu» . According to Ibn-al-Arabi (d543/1148) "Each one of the two contestants seeks to defeat his partner in an action or statement in order to take over property set aside for the winner." Allama Tahir Patani says in Majma-ul- Bihar Vol.II p.91)

i.e.fact of the bettor oscillates between loss and profit. Mnhaddifi Kahi r ili O o r i flpf i k i p s 'nimar'.

(3.2.1 - 32-* j. o 4 The above definition is favoured by Hamid Zin Qari

Shah Wali Ullah, Allama Tahir Jrafcani and Maulana 'Huhammad ’fean Nanotvi who represent the four schools of thought of Hanafisect. So the Muslim definition of gambling appears similar to the English. Both treat the transaction as a contract and both the Hanafi and the English Jurist say that such a contract is not enforceable in courts of law. They mean to deprive some of the parties of their money or money's worth on the happening or otherwise of an uncertain event. However, Islam has a sure concept as to how property should be acquired and distributed. It abhors easy money. So Islam is naturally inclined towards greater strictness in classifying acquisition of property and treats it gambling or illegal where the acquisition and the distribution of property took place outside the generally accepted categories. Reference be made to Q.4:29, 2:188, 4:161 and 9:34 enjoining not to devour each others property unlawfully. Similarly, it is enjoined to spend in the cause of Allah and not xx recklessly and in vain. Thus ways and means which involve exchange of monej or other valuables depending upon the uncertain outcome of an event or in an illegal manner are forbidden (haram) .

73.Gambling comes as close to being a universal trait as man's physical functions. In all major civiliza­ tions it was and is present in some fcrm or the other. In the west, gambling has become a favourite pas-time and vice of the rich and the powerful, of man and woman possessing the idea of success in politics, at court and within the military establishment. It appears to have spread there like an epidemic. It is a multibillion business of some but attracts probably the majority of the people towards it. The Protestant-Christians say gambling is fiddling around with gods of chance and implies lack of reverence for the stern dictates of Providence. Another objection expressed is that gambling means "lusting for bread without the attending *weat". As regards Muslims, gambling never achieved that false glory except when the lands of

Muslims were colonis ed by the west and some of them, in order to achieve a high position near the rulers, started following them in every way. Again, may be that gambling per-se is a vice of a rather minor personal significance or social consequence in Muslims but there being a prohibition in Quran, it cannot be ignored.

74.It appears that 'betting did exist even at the advent of Islam. It is reported by Musab bin Abdullah that Abu Lahab gambled with Al-As bin Hisham for ten camels on 7 occasions in succession and Al-As was defeated every time and ultimately stripped of his property. In the same series Abu Lahab made him his slave and sent him to fight for him in Badr. It is also reported from Ibn Abbas (not very authentic though) that Abu Bakr as-Siddiq made a bet (bayaa) with Ubayy b. Khalaf fo£ ten camels. The occasion was after the verses 1-4 of Surah 30 were revealed. They said that "The ByEhntines have been defeated in the nearest land, but after their defeat, they will be victorious in a few years." The polythesians are said to be partisans of the Persians, who having no revealed scripture, were not as close to Muslims as were Christian B^eantines. The bet was that the Quranic prediction of a Byzantine victory and Persian defeat would not come true. Abu Bakr asked for advice of the Holy Prophet. Abu Bakr had thought of three years but was advised to increase the term, because a few years as said in Quran, meant between three to nine. When Abu Bakr chose too short a time, the Prophet is said to have told him to double the bet (Khater) and extend the term between 4 to 7 years either before hand or at the expiration of the previous term. The polytheists agreed and lost. The amount of bet is indicated as ten young she-camels (qalus) on either side, raised to a hundred, probably. The prohibition of betting (rihan,qimar) came thereafter. Even in one version of this event- it is mentioned that after Hazrat Abu Bakr obtain/the bet, the Holy Prophet said to him that this is suht (i.e. Harm) so a i m it in ch a ri.tv .

75.Here we may refer to those verses of Quran which deal directly with the above subject 2:219, 5:90,91, 4:29,30, and whereby the gambling was forbidden.

They ask thee Concerning wine and gambling a 6 Say: In them is great sin, And some profit, for men;

But the sin is greater Than the profit.” > They ask thee how much They are to spend; ± '- Say. "What is beyond your needs. V>V» Thus dcth Allah Make clear to you ><* His Signs: in order that - Ye may consider— (2:219). '^ a . ','.U ,r ”” .> u ■'- 1 0 ye who believe!

Intoxicants and gambling (Dedication of) stones, 9 , S 3•> And (divination by) arrows, Are an abomination, Of Satan's handiwork:

Eschew such (abomination), ' “ -j That ye may prosper,(5;90) f Satan's plan is (but f y' To excite enmity and hatred > - y* ’ " JT» Z u * * > U*. Between you, with intoxicants ^ ^^ SL And gambling, and hinder you , /* ■ From the remembrance ^ ^ 1 Q 'v>*J' Of Allah, and from prayer .“ ' ''' c, r'- > \ ' >'t, fill^e Aot then abstain?

Q ye who believe! ^ Eat not up your property .».>•*✓ 3> '_ ~ * t '^ Among yourselves in vanities: But let there be amongst you * Traffic and trade »\V MV By mutual good-will: , , , Nor kill (or destroy) • .'i > ✓ Yourselves: for verily \ r {j*- 'g\y Allah hath been to you ^ Most Merciful!(4:29) If any do that -JLX 6 V* In rancour and injustice,-- ^ f Soon shall We cast them ^ >y•'**.. - /' '■»j ' ' >*■>* Into the Fire:and easy ■a V o V It is for Allah. (4:30) v *, i. ' ✓ ' .< - - ", f / “ , ■*.

76.The word'maysir'was taken to include all kinds of gambling. "Maysir'is qimar' was a statement ascribed to Ibn, Umar. It seems quite possible that 'maysir' game was not practiced around Prophet's time and the word referred to any gambling activity. The fact that the subsequent commentators knew nothing about the game ’maysir' also shows that either the people completely forgot the game because of the Quranic prohibition or the game did not exist in Prophet's time. Maulana Abdul Majid Daryabadi, while interpreting verse 2:219 says it includes any game of hazard or play of stakes or wager so that even the game of children with walnuts is included. Fakhr-ad-din ar-Razi (d.606/1209) had this to say in his Quran commentary:

"Fourth problem: There is a difference of opinion as to whether maysir is a designation for th^t specific kind of gambling (qimar, that is, the maysir game) or whether it is a designation for all kinds of gambling. It has been transmitted on the authority of Ibn Sirin, Mujahid, and Ata, everything involving a stake (khatar) belongs to maysir, even the walnut game of children.

Concerning chess, it has been transmitted on the authority of Ali: Nard and chess belong to maysir. Ash-Shafi says: Whenever chess is free from a stake (rihan), The tongue from iniquity, and prayer from forgetfulness, none is forbidden. Now, (chees) has nothing to do with maysir, since maysir is something that necessitiates paying out or obtaining property. This (chess) is nothing of the sort. Thus, it is neither maysir nor qimar. And God knows better.

Horse and camel racing is generally agreed upon not to belong to maysir, as is explained in the law books in the chapters dealing with racing and shooting. (Rosenthal page 77).

77.It is quite clear from the Quranic verses that the prohibition of liquor came gradually. As the 'maysir’

4 has been referred to together with liquor the commentators think that the prohibition of gambling was also gradual. As to wine, the assumption was that there was an intermediate stage making for a three- stage development: the occasional use of it because of its usefulness (2:219/216), the prohibition of wine drinking dur^tg prayer times (4:43/46), and its association with the abominable practices of maysir and the command to desist (5:90-91/92-93). Maysir had only the two stages indicated. It was considered debatable whether "sin" in 2:219/216 by itself indicated prohibition. On the basis of 7:33/31 where h-r-m and 'ithm' are juxtaposed, it was argued that this was indeed so. On the other hand, it could also be said that the choice of the word "sin" is evident for their being prohibited and that the "uses" mentioned refer to what could have been considered usefulness, before they were prohibited.

73.Rosenthall refers to another "vexing problem" of the commentators concerning clarification of the "uses" of wine and gambling. They had devoted much more space to enumerating the uses of wine than those of maysir. In this regard he found procedure of az-Zamakhshari as unusual when he treated the uses of both together:in one sentence to state "the pleasure gained from drinking wine and gambling, the emotional element (tarab) in them, the opportunity they provide for people to become friends and companions of noble youth (fityan) and to share in their allowances of food and drink, and the expropriation (salb) of property by means of gambling and the feeling of pride (when the gambler compares himself) with those Philistines too stingy to engage in gambling (abram).(Rosenthall-p .79) .

79.As a rule, two things are stressed as the uses of gambling. In the first place, gambling provides an opportunity to get something without work and effort.

In the second place, it was considered to have a charitable purpose. A thirteenth-century jurist, who wrote a long work on the comparative uses (manfa'ah) and kinds of harm (mafsadah)caused . by human actions, could seriously contend that the use of gambling resulted from "what the loser gets from the winner." However, he gives the impression of not putting much stress’on.’ that sort of usefulness. The Jurists’ interest in the "easy money" aspect of gambling as a possible explanation of its "usefulness" was better expressed by Ibn Taymiyah.

He has a long and remarkable discussion of the problem of the usefulness of both wine and maysir in its relationship to the general legal problem of benefit and harm. The uses of maysir may originally have been the gain of property and the pleasure of play, but it was realized that the losses resulting from gambling and the pain and harm caused by playing were greater.

According to him, the main reason for its prohibition is not merely the frivolous exchange of property attendant upon gambling but the effect it exercises upon the mind and heart. His view is that property sustains the body, and the body sustains the heart and so whatever affects the body has priority over what affects property.

He also had some inkling of the possibility that gambling could affect the physical constitution of the compulsive gambler.

80, On the minds of serious scholars, however, there was another problem that required consideration.

They felt obliged to ponder the historical circumstances that might have brought about the prohibition of wine and raaysir as expressed in 5:90-91/92-93. The reference to "hostility and hatred" appeared to them to provide a clue and they thought that the often resulting quarrels led to the prohibition of wine. As for ’maysir', at-Tabar offers only a vague statement about "men in the ’Jahiliyah who used to gamble for their women folk and property,

. MiyniM * * * ■ - » '» *

and then sit there penniless and deprived, seeing their property in somebody else’s hand, something:

that used to engender hostility and hatred among them.”

He then concluded:

"The Quran interpreters hold different opinions as to why this verse was revealed. It is possible that it was revealed because of 'Umar's prayer (for a clear divine decision^ with respect to wine. It is also possible that it was revealed because of what happened to Sa'd (b. Abi Waqqas) at that hands of that Ansari, when both were intoxicated with wine. Again, it is possible that it may have been because of the hostility and hatred that someone felt toward the person who played maysir with him and defeated him at gambling, so that he lost his property. We have no decisive information as to what it was. However, whatever it was, the legal import of the verse affects all responsible Muslims. If they do not know why this verse was revealed, it does not do them any harm. Wine, maysir', sacrificial stones, and divining arrows are an abomination wrought by Satan. It is duty of every responsible Muslim familiar with the verse to refrain from all those things, as God has said: ’Thus avoid it! Perhaps you may prosper." (Rosenthal- pages 83-84).

81 s In any case, the legal situation contemplated by the Quran with respect to 'maysir’was indeed unassailable.

It showed the way which all subsequent discussion of gambling had to take. 'Mays ir* is strictly forbidden, and all gambling is identical with'maysir'. It is true that the legal-religious term for "forbidden” (haraam) is not employed in the Quranic text. However, the reality and severity of the prohibition are indicated by context and phrasing in the manner carefully spelled out by az-Zamakhshari.

"The prohibition of wine and maysir is expressed in various ways. Thus, the verse (5:90/92) is introduced by Innama

(is 'indeed an abomination). Wine and 'maysir are tied to idol worship....... They are indicated to bet an 'abomination' a word which in the Quran 22:30,31 is used in relation to idols. They are indicated to be the work of Sitan from whom there comes nothing but pure evil. There is the command to 'avoid'. Also, avoidance is indicated to belong to prosperity, and if avoidance means prosperity, then commission means failure and absence of prosperity. The destructive result of wine and gambling is mentioned namely, the occurrence of mutual hostility and hatred among wine drinkers and gamblers, as is the fact that they lead to barring from the remembrance of God and the observance of the prayer times. And 'thus, would you not want to stop it' is the most effective way to express desisting. It is as if it were said: now that all the different kinds of impediments and restrictions affecting wine and maysir have been recited to you, would you not, in view of them, stop it or would you stick to your old ways as if you were not exhorted and warned?" 82, We may also refer to a Hadith of the Holy Prophet:

The Messenger of God has said- He who swear^and^ m doing so says} By Sllat and al-Uzzal? > should say, There is no god but God. And he who says to his companion let me gamble with you!, should make a contribution to charity (al-Bukhari, to surah 53; Concordance, V, 466a8-12).

The word ’haram' does also not occur in this hadith. It expressly used the word 'gambling'. This Tradition also does not leave any doubt that gambling was a sin whose gravity was under-lined again by mentioning gambling in the same breath with idolatrous talk, which constituted a grave sin. Here, we may also cite another Tradition which expressly said that any bet which was against Quran was void even if it is made hundred times.

<V-M C— llU C_&3Lt> b A*.

"Every condition (bet) which is against the Book of Allah is void even there are hundred bets" (Taisarul Bari, translation-Sahih Bukhari,Vol.Ill, Kitab al-Mashroot).

It has also been related that the Holy Prophet (PBH) said L &L q (J^f*_j**<Q) (Y^ "Every condition (bet) which is not in the Book of Allah is void even there are hundred conditions (bets). (Fiqhussunnah by Syed Sabiq, Vol.III, page 100).

83.Both Quran and hadith were explicit enough to make the task of jurists, who had to deal with

potential gambling activities, a comparatively simple one. A certain practical difficulty resulted from the fact that most activities could as well be undertaken without accompanying gambling but it was agreed that if a given activity could be declared to be, or in some way be defined as, 'qimar', it was clearly illegal. Again, if a game, with or without gambling had the potential to interfere with the proper behaviour of responsible Muslims and their proper performance of the religious duties or it affected their 'muruwah', character, and probity (addalah) making them unacceptable as witnesses, the consensus was that it was forbidden ( f*/'”’ ). Similar was the view in Judaism much earlier, that dice players as well as pigeon fanciers were not qualified to be witnesses or judges. Christian preachers denounced it as worldly and Council of the Church forbade it to ^he clergy for the reason that gambling habit infected purity. Even Hinduism took the same view. A famous hymn, of Rigveda (x.34) vividly sets forth woe of the ruined gambler. For Greece reference may be made to the picture of the ruined gambler presented by Alciphron.Lord Beacon-field spoke of it as a ’vast engine of national demoralization! (III-42)_.

The Germans, according to Tacitus (Germ.24), when they had dice in their hands, knew no bounds and were ready to gamble away even that which they valued above everything else in the world, their personal freedom.'* (Encyclopaedia of Religion and Ethics, Vol.6).

84.It continues in the above Encyclopaedia that "though it is in society that the temptation comes, gambling itself is anti-social. It is, as Herbert Spencer says, a kind of action by which pleasure is obtained at the cost of pain to another. The happiness of the winner implies the misery of the loser.

This kind of action, therefore, is essentially anti-social;

it sears the sympathies, cultivates a hard egoism, and so produces a general deterioration of character."

"The appeal to chance implies a negation of all the nobler powers of man-reason, skill, the sense of justice and responsibility. In the habitual gambler.these higher faculties, through disuse, become atrophied, and his life, out of touch with favourite passion, becomes besotted and depraved."

"The transfer of property, in one shape or another, i essential to the act. There are only three ways in which property can be legitimately acquired- by gift, by labour, and by exchange. Gambling stands outside all of these.

(b)its motive is, however, carefully disguised, covetousness It is an attempt to get property without paying the price for it. It is a violation of the law of equivalents. It is a kind of robbery by mutual agreement; but it is still robbery, just as duelling, which is murder by mutual agreement, is still treated as murder. It is begotten of covetousness; it leads to idleness."

"It is, moreover, an appeal to chance. If in any contest skill comes in, odds are given or handicaps arranged so as to equalize the chances as far as possible. To make chance the arbiter of conduct is to subvert the moral order and stability of life. It concentrates attention upon luck,, and thereby withdraws attention from worthier objects of life.

The above passages deal with the pleas of Mr.Brohi as to skill involved in this sport and equal chances with the Totalizator or the pari-mutual system. There is thus no doubt that every religion and system treats gambling as something abominable and detestable.

IV. IF BETTING IS "HARAM" WAS IT MADE 'HALAL’ (PERMISSIBLE)

BY THE HOLY PROPHET IN CERTAIN SITUATIONS._____________

85.We have seen above that gambling of all sorts is (haram) forbidden in Islam and this fact is not disputed by any one. According to some Jurists, even such sports and games, which have the potential of interference

with the proper performance by Muslims of their religious duties or adversely affect their proper behaviour, 'muruwah', character or probitv, are c ) "Worthless frivolity", though there is no gambling involved in them.. This is based on the principle embodied in verse Q.4;29,33. The situation summed up by az-Zarkashi is that there are four possible ways of looking at the matter:

i)’Nard’ (a game of chance) is disapproved and, therefore, be avoided (makruh, karahat at tanzih) but not forbidden (Haram);

ii)it is a minor sin;

iii)it is haram and a major sin and;

iv)regional differences have to be acknowledged, i.e., where it is considered a grave matter, a person becomes unacceptable as a witness for playing it just once. Where this is not so this is not the case, (p.95 Gambling in Islam by Rosenthal).

86.Some Jurists argued that if games affected performance of religious duties then sleep and commerce also did the same and they should also be considered *,bat±l’. The reply given, however' is that commerce and sleep were no amusements and they did not cause hostility and hatred which are the crucial reasons for the prohibition of games. Again both sleep and commerce are regulated by other provisions and they are considered necessary. Likewise there is, an of the express exception even with regard to some/sports such as horse-racing, camel racing, shooting and archery.

Oqbah bin-Amer reported; I heard the Messenger of Allah say; Every thing with which _ , ‘ * > - a man plays is unlawful - - except his shooting with *• A_- -> his arrows, his training - e_ _ 3 ^ x Cr6 of his horse and his sporting with his wife, because these 1 r cs j are truths. (Mishkat Vol.II, page 374) . > i

The Holy Prophet (TEH) liked horses very much and was himself a great rider. Once he rode a horse named 'Mandub' and found it very fast. At another occasion he liked a mare *Sabha^ very much when it led a race* Hazrat Jabir bin Abdullah narrated as above that he saw the Holy Prophet (PBH) making curls of the fore­ lock of a horse and saying that blessing was secured in the forehead of a horse and the one who kept horses will get reward and booty till the day of Judgment.

The following Traditions may be quoted in this regard Narrated Anas bin Malik: Once »

the people of Madina were V" Ag? uA' o' frightened, so the Prophet

rode a horse belonging to

Abu Talha and it ran slowly, y AIs ^ ■) .Jcxlul -Jo t was of narrow paces. When ^ \r ^ he returned, he said, "I found cl) your (i.e.Aby Talha’s) horse very fast. After that the £8 l- horse could not be surpassed in

running......(ibid,pages 80-81)

Narrated Anas bin \falik:Once L if if* there was a feeling of fright w ^ oA O in Madina, so the Prophet V- _Cb\ tH” 1 borrowed a horse belonging to

us called Mandub (and he rode ^ Vj away on it).(When the Prophet

returned) he said, "I have not

seen anything of fright and I

found it (i.e.this horse)very fast

37.Even competition -\'as allowed in the above sports.

Abu Hurairah reported that the V ** J» •> Messenger of Allah said: There ^ ^ ^ JU-_, Jb \^ is no competition except in '-1 archery, or in camel-driving,

or in horse-racing, (Nailul Au£ar by Shaukani, Vol.II, (

g * i ^ d V w S ^<. ^11t page 81). oVcAa^ •5H6y><5e.-■s-^r It has been related on the ^ a a\j ,\ ^ u*~ authority Abu Abdullah that Abu Qatada said to the Prophet/ - t-Ji5V -_A ij \» "The enemy has returned Should crv _■ we race the horses now? Prophet &Xr 2 ^ V**?*-*'^ i said, "Yes" Then they raced the horses and the Prophet won the 't*--a5rx' . race, (ibid). ( 3>A6 u* *■ ?■

It has been related on the autho— rity of Muhammad BinAH bib Bussain ^ tj iy ^ -H* that Imam Sadiq said, "Indeed angels hate competitions with . ^ prize and curse who do it except V-> in the camel-race, horse-race y. . - y\ , and archery competitions. The Holy . £■,

A - - » ^

Prophet took part in horse-race ., . , .. W J . ' o * .

with Usama Rin-e-Zai’d and raced a “ ‘ . II. . .— . j,y£^s2-? rw"*-? VJ'*J horse. (Man 1^/iizir ul IFM&Sxn., v . * Volume TI page 216). ( ^ 7 o'*2-?■**?->'<=>* ^ It has been related on the authority 'srt^ v of Abdullah who said that a Villager came to the Prophet and said, M0h ^ \ yg j r-t ^ Prophet will you compete with me in _5 «uu«\r-b-^ horse-race? Abu Abdullah said that - y‘&-» Holy Prophet raced (with him). o-*>c-iV •—»Q j " \s_\ M * u* j-

88.It is contended by- some jurists that the above exception was made by the Holy Prophet before people started gambling in connection with those sports. This, however, does not have much force as some of the Traditions pertain to the period after the prohibition of gambling had been proclaimed. So the obvious reason for the above exception appears to be the military usefulness of those sports. Since war was understood to be an activity devoted against the enemies of Allah,those games were considered necessary, as servexffg, the’ cause of Islam. This view is supported from another angle.

The games of chance inculcate the habit of taking

risks. The Muslims however, did not favour taking risks. This was not permissible even about the worldy possessions on the basis of verse $).4:29,33. The risk of life was particularly frowned upon. One of the exceptions to it was that risk of life was permissible if it meant glorification of Islam. This is how ’Jehad’ became a duty of the Muslims to fulfil.

The duty to protect life in other cases may be demonstra­ ted from the verse of Quran (2:173) which permits Muslims to eat of even pig if it meant to save life. It will thus be seen that the purpose of a thing is a very important factor in its permission or prohibition. Here we may also refer to Shafii as discussed in para 43 above.

89.Addition of gambling to sports only provided a further thought. At-Tabari lumped gambling together with usu _ry and such general matters as faulty pricing, wrong-doing (zulm or ghasb) or acquisition by force etc.

(p.139-Rosenthal) . "Batil'* as in (4:29,33) was similarly, characterised as gambling, usu-ry, wrongful appropriation of property of others (ghasb), cheating (khida) the denial of just claims (Jehdal-huquq) and profits resulting from illegal activities. The view finds support from the verses of the Holy Quran prohibiting Muslims from earning their livelihood in an unapproved manner (see 0 ,2 :188,4 *161, 9:34). So to sum up, the reasons for the prohibition of gambling appear to be that it causes, hostility and hatred, promotes illegal earning, adversely affects ’muruwah ’, character, probity and proper behaviour as a Muslim and also interferes with performance of religious duties.

90, We, however, find that the Holy Prophet not only participated in the horse racing, camel racing and archery but also encouraged these games by awarding prizes:

Narrated (Abdullah) bin Umar ^ U * 0? ' ^ The Prophet arranged for a <s^L* 4 > 1^ ^ 1 horse race amongst the horses ^ \ V- O*

s'

that had been made lean to take place between Al-Hafya and <£ 1 <> Thaniyat Al-Wada (i,e.names of two places) and the horses which ur.j y\ c) fc'->jM had not been made lean from Ath- Thaniyat to the mosque of Banl Zuraiq I was also amongst those who took part in that horse-race.

Sufyan a sub-narrator, said, i oX- "The distance between A-Hafya and Thaniya Al-Wada is five or six miles and between Thaniya and jt, \d « n the mosque of Zuraiq is one mile.

It has been related on the autho­ rity of Ibn-e-Umar that Holy - ml

Prophet raced the horses and gave

prize (to the winner, (ibid,page 22 ); i (jf J \X< ^ J Hazr at Anas was asked whether they O l o— " iV° were giving prize to the winner in «xi*ajiv<£■***ul^cij*- the horse-race competition in the eJOl'd^-*aJj\ 6 W*\-*-i— period of the Holy Prophet and l*t>*Ur -fc-i-*_**^ru whether Prophet himself was A*^dJ JC i c r ^ o ® 'v o il practicing so. He answered ’yes’ CJ< CX-~° Prophet put up prize for a horse name Ssiffcak who won the race and Prophet wondered and delighted with it. (ibid).

It has been related on the autho- f Lc-*' ? <>*** rity of Ali Ibn-e-Hussain that ^ Holy Prophet raced the horses and oojds 6* <j\-»'wV* gave some Uqiyas of silver ( ir» <34*1* if: -tee to the winner.

It has been related on the autho­ cr* o'-X8- (> C>* rity of Jaafar who relates from <i>**'**‘o' f '*ii— HVal*

- M1I

his father that Holy Prophet raced ilr*. ^ among the horses and gave prizes «— ~ cj ) U s to the winner from his own pocket. (.■‘iJ. uiS>V_, S}\ w ^ > y oix It has been related on the autho- O' f ii— Jl Cr J-* "O* rity of Ali Bin-e-Hussain that Holy ^aoJ' iy. O4/s 1j V cJ^* Prophet raced horses and fixed prize _ . jr ‘ cVu. ^ U- Mr^ J*J of seven auqias of silver for the * ^ i ty» x £• winner.

91.Apparently, the offer.of prizes ,to encourage good breeding or training posed no problems as generally the prizes came from either the Holy Prophet or the non-participants. The problem of major concern to the jurists in connection with

these sports was to know where does the existence of the prizes all are stakes proper and permissible?

Three possibilities were regularly considered in this behalf.

1.The prize is put up by a non-participant.

ii)It comes from one participant.

iii)It comes from both participants.

There were many different words for the prize in old times such as 'Sabaq', Khatar', Nadab, qura' and 'Wajab1. Sometimes ’Khasal’ and 'nadab' were restricted to shooting competitions. 'Rahn' was used for racing stakes. Terms Iwad (compensation) and ij ara (hire) were also preferred in legal discussion.

Shafi-ite al-Imrani gave a very lucid exposition of the stake problems and they correspond with those of Hanafite ash-Shaybani. His view is that it is permissible if 'Sultan gives prizes from public funds of or out^his own pocket and supported it by referring to the prizes given by the Holy Prophet. He added that as such monies are spent to encourage horseman­ ship and greater power in waging ’Jehad' the expenditure is in public interest (Masabhah). He also thought valid a prize set up by one of the two participants with the agreement that if the other defeated him he would give him so much but he owe him nothing if he defeated him. He relied on the Tradition already quoted above.

92.Ibe Taymiyah also thought valid a prize given Rosenthal quotes a passage from 5th Chapter of 'Fadl al-Khayl’ of ad-Dimyati as under "Ibn Banin has mentioned in his book that the Messenger of God raced horses with garments that had come to him from the Yemen as stakes He gave the winner (sabiq) three, the second

horse (musalli) two, the third horse one, the fourth horse one dinar, the fifth horse one dirham, and the sixth horse a rod (qasabah). He said: May God bless you and all of you, the winner (sabiq) and the loser (fiskil).

Abtil-Hasan Ahmad b. Yahya b.Jabir al- Baladhuri - Ibn Sa'd"~al-Waqidt - 'Abd-al- Muhaymin b. 'Abbas b.Sahib, Sa'd - his father (Abbas), his grandfather (Sahfe, who said: (Once) when the Messenger of God raced horses, I was riding on his horse az-Zarib. He gave me a Yemenite cloak. He (Abd-al- Muhaymin?) said: I have found a piece of it in our house.

He (al-Baladhuri) said: I have been told by Muhammad b.Sa’d, al-Waqidt, Sulayman b. al-Harith, az-Zubayr b, al-Mudhir b.Abi Ysayd, who said: Abu Usayd as-Saidi raced on the Prophet's horse Lizaz, and he gave him a Yemenite garment.

Al-Khuttali reports in his book a tradition of Ibe Lahiah Bakr b. 'Amr, Ibrahim b.Muslim, Abu 'Alqamah, the client of the Banu Hashim (stating) that the messenger of God had ordered the horses to be raced, and he put up as prizes for them (sabbaqaha) three bunches of dates from three palm trees. He gave one bunch to the winner, one to the second horse, and one to the third horse. They were fresh dates."

In these cases, the Prophet was apparently thought of as the only person to put up prizes for jockeys riding their own horses. However, it has been erroneously construed that it was ( A A ) betting in the sense of gambling.

93.The situation was different where the ruler or the person giving the prize had also a horse, participating in the competition. According to ad- Dimvati, most Ulama permit participation of the donor in the race, on the condition that he will donate the prize to the charity, if he wins. The donor could be a ruler or even a private person might volunteer to

offer a prize. However, if the prize was offered by one of the two contestants, the prize would go to the other if he won but if the donor was the winner the prize would go to the spectators or to the second horse if the contestants were more than two.

(Al-Faroosia page 20# Rosenthall, page 100). According to Qazi Sanaullah of Panipat the unilateral betting on a horse race was valid, but. prohibited ( f t > ) if it was bilateral (132-33 ). The

distinction appears to be that the former is consider­ ed a prize or compensation (iwad) or hiring charges (ijara) while the latter is gambling as there are mutual promises and each one is bound to win or lose.

94.The case of the petitioners was that the Holy Prophet not only gave prizes but set up bets for the winner in the races in which he participated. Reference was made to the Tradition:

<d,A.g «jjj\ o' df 1a-* ^ .JjjtJ? Or*

( 3 S CfS Z^s

Reliance is placed on the word 'rahan' ( ) and argued that this word is used when there is a competition between two and therefore, there is a bilateral offer to pay to the other the agreed valuables. The two Traditions, however, do not appear to represent cases of bilateral betting but of prizes. It is to be appreciated that the word ( l ) in respect of the above two Tradition is misplaced. Gambling is betting or staking of something of value.

with consciousness of risk and hope of gain, on the outcome of a game or a contest on an uncertain event , the result of which may be determined bv chance or accident or have an unexpected result by reason of better's miscalculation (Encylopaedia Brittanica).

To the same effect is the Islamic definition. No such

factor is involved where a person offers to give a valuable to winner without expecting any gain to himself. It may only be a gift or'sadaqah’. The petitioners then quoted another Tradition in which the Holy Prophet offered to give a goat for goat to Abu Rakana in a contest of wrestling:

However, it is not certain if this incident occured before or after gambling was prohibited. But it is sure that Abu Rkkana had not embraced Islam till then.

He repeated his bet a number of times and lost all the goat. He then repented on which the Holy Prophet returned all his goat to him. He thereat embraced Islam.

There is rather a different version given in al-Faroosia (p.20). No companion of the Holy Prophet has narrated even a single incident in which he offered any bet. No such incident is attributed even to any of the Companions either. Imam Jurjani ' on the other hand, states in his book "Al-Mutarjam" that Amr- bin Dinar told him that a man sitting in the company of Jabir bin Zaid said that the companions of the Holy Prophet felt no harm in introducing a Mohallil in the horse races.

Jabir bin Zaid corrected him and said that they never indulged in that It is further said at page 21 of Al-Faroosia1 that the Muslims abided by their premises except a promise by which 'halal' would be made 'haram' and vice versa.

95.The petitioners had also relied on a Tradition reported through Abu Huraira by Saeed bin Mosayyib that the Holy Prophet said that a third horse be introduced in a bilateral betting and that horse should have the equal capability and opportunity to win, so that if the third horse (Mohallil) defeats the other two, he will get the prize but if he loses he will pay nothing and get nothing. Such a transaction, it was stated,

takes the betting out of the ambit of gambling (Qimar) and will be perfectly valid. The Tradition runs as under:

It has been related on the <duu 0» authority of Abu Hurairah that cK*' y Holy Prophet said, "He who join V o* with a horse in the competition c-C^‘^ 0?-^ ^ t 0*j of two horse-racer and he was not sure that his horse will win, there is not harm and if he was ^ >-■ ' U sure that his horse will win, it ^ ^ ^ ^ j* & Wq ** 1t is gambling, (ibid, page 84).

It will be seen that the Tradition as quoted by the petitioners from ’Nail-ul-Autar Vol.VIII page 84 does not say that introduction of a third horse of comparable quality will take the contest out of gambling. Some of the Traditions produced before us contained the words " ^ " at the end but that must have been added later to make the sense clear ( <£. ) . It is stated in 'al-Faroosia page '2-S. .that the wording of the Tradition does not necessarily say that the 'Mohallil’ take the transaction out of gambling.

96.This Tradition has already been referred to above with the clarification that whereas all the juris-consults and the lawyers accepted its authenticity, Allama Riazul Hasan Noori said, it was too weak to be relied upon. He -gave V very weighty reasons as mentioned above. Ibn Qayyim has also discussed at length the reasons given by the disciples of Malik attempting to prove that this tradition was f - arguntiea.'t# weak. He seeroastt'. to-be very much influenced 'by.thetr/' More surprisingly, the strict Hanbalite Ibn Taymiyah also did not approve of the Mohallil and defended his theory very vigorously. The Shafi'ite as-Subki pointed out in rejecting Ibn Taymiyah's view that Ibn Taymiyah considered first as sound, but then as

% weak, the mohallil hadith as transmitted by Sufyan b. Husayn ibn Shihab, az-Zuhri, Said b. al-Musayyab and Abu Hurairah. He said there is another more defective chain of transmitters, which also includes the well-known az-Zuhri.

97.Mr.Riazul Hassan Gilani, the learned Deputy Attorney-General had stated that the Hanblite Ibn Qayyim al-Jawziyah had later retracted his view given in 'Al-Faroosia1 that a race even without a 'mohallil ’ was valid. The following passage taken from Rosenthal, page 104 supports the position.

”Ibn Taymivah’s known disapproval of the device of the Mohallil caused some trouble to the Hanbalite Ibn nayyim al—Jawzivah in the year 746/1345. He had written a treatise on the subject and apparently found much sympathy for this view, especially among the powerful Turks (because, we can be sure, it enabled then to race without those troublesome outsiders, while at the same time not worrying about the gambling problem) . He was forced by the Shafi’ite authorities to accedes! to the majority opinion. A very lengthy discussion (Furusiyah, 20-61, 74) does indeed make it quite clear that he shared Ibn Taymiyah’s view on the subject. Only about five pages of it are devoted to what could perhaps create the impression of favouring the Mohallil, and these few pages are placed right in the middle of many pages of obviously negative comment. It would be impossible for anyone to misunderstand Ibn Qayyim al-Jawziyah's intention, which was to make a convincing - case against the mohallil in behalf of Ibn Taymiyah and his followers.

98.Mr.Rosenthal has also referred to a manuscript which provides additional information to the a b 4 S > v e .

He says:- f "Five folios in Ms.Yale L-774 provide additional information in this connection. The title-page (fol.45a) has the title Juz fi muhallil al-mus (abaqah). The treatise is incomplete at the end. The slightly damaged first lines of the beginning inform us that the treatise was a response from Damascus to one on the subject from Egypt”- It contains a detailed discussion of the individuals concerned with the transmission of the mohallil hadith and stresses their weakness. The main argument is that if the hope for gain and the fear of loss characterize gambling, the presence of the mohallil adds to both. Thus, instead of eliminating the danger of gambling, it in fact makes it greater. The incidence of loss is greater, because each one of the two contestants loses, if the mohallil is the winner, and for each of them the chance of being defeated is greater when running against two, the other contestant and the muhallil, than when running against one. The chance of gain is smaller, since a contestant would have to defeat only one opponent in order to win, if there is no mohallil, while he has to defeat two opponents, if there is a mohallil. This, together with the weakness of the hadith and the strange arrangement that there is someone who like the muhallil stands only to gain at the expense of others and has nothing to lose, appears, in the view of the author, to do away with the mohallil as a helpful device for elimina­ ting the gambling quandary."(Rosenthal pages 104 and 105).

The author of this manuscript is not known but Rosenthal suspects that he may be no person other than Ibn Qayyim al-Jawziyah himsel 99 This tradition of 'Mohallil ’ is, however, available in Sunan Abi Baud' and Sunan Ibn Majah. Abu Daud has narrated it without any comments. The author of ’Sabaq-i- Islami V-**) thinks that silence on the part of Abu Daud leads to its authenticity. 100 . This ’hadith' has been narrated by

i)Abu Daud and Ibn-e-Maja in their Sunan and both of them are among the six accurate books ) of 'ahadith'. After relating

this hadith Abu Daud has not said", something about it and muhaddisin ( ) know that when Abu Daud remains silent about a hadith, it is authentic according to them. In this connection Abu Daud has written in the preface of his book:oe>i(>*£f ) ^ Ws

"when I remain silent about a hadith, it is authentic and some of them are more authentic than others". (Muqaddama Abu Daud page 6).

Hafiz Shamsuddin Zahabi has declared this hadith as authentic ( ). (Talkhisul Mustadsak Volume II page 114).

ii)Afzaluttabii** Imam Saeed-Bin-Musayyib said: G ^ Ji

"There is nothing wrong in the horse-race competition provided a muhallil enters in it with the condition that if he wins he will take the prizes and if he loses, he will not pay something." (Muwatta Imam Malik,page 481).

iii)Imam Malik has titled this chapter in his book "Muwatta" in these words:

"When a Mohallil enters in the competition of two participants who have fixed prizes for the winner, it is no longer gambling.m (Muwatta Imam Malik with translation (Musaffa) Volume II, page 154).

iv)Imam Baihaqi (died 456-H) has titled this chapter with the words:

gjj

3 <*-) \ U o W"^JJL*^ V~gs-^— *^ u' "This chapter is about the two persons who fix prize for the winner in their horse-race competition and then a muhallil enters in them with the condition that if he wins then he will get the prizes fixed by both of them and if any one of them wins, he will only get the prize fixed by his co-sharer and also saved his own prize." (ftled1'* 124-H). (Assunanul Kubra by Bachaqi, Vol. X, page 20).

Imam Zuhri and Imam Abuz Z&nad (died 131-H) have explained that with the entry of Mohallil, the contract of horse-race does not remain a contract of gambling."

v)Allama Ibn-e-Hazam (died 457-H) writes:

hi Jb_S-5 ^ hi' ^ ~> < ^ f i U*'"* " If the prize is tqtoe put by both the parties in a race competition, it is not valid except in horse-race competition provided a mohallil i.e. a third racer on horse join with them."

(Al-MuhaHa, Volume VII, page 354).

vi)Ibn-e-Hajar Asqalani (died 852-H) writes, " Majority of the Ulama has validated the horse­ race competition if the prize is to be put up by one of the parties and similarly it is valid if the prize is to be put up by both the parties

and there is a mohallil with them who will not fix any prize for the winner so that the contract will not be based on gambling."

(Fathal Bari Vol.VII, page 354).

vii)Sheikhul Islam Allama Aini (died 855-H) writes: “ ............j o l - X

"It is unanimously void if the prize in horse-race competition is to be put up by both the parties except when a mohallil enters in them with the condition that if he wins he will get the prizes put up by both of them and if he fails he will not pay some­ thing. Ashhab asked Imam Malik about it he replied "I do'not like it." We base our view on the tradition of the Holy Prophet which has been related on the authority of Abu Haraira that Holy Prophet said "He who joined, (with a horse in the competition of two horse-racers and he was not sure that his horse will definitely win it is not gambling." (Umdatul Qari by Badruddin Aini, Volume XIV, page 161).

viii)Allama Mohammad Bin-e-Hussain writes: ............cU 1

"The word gambling ( u - W ) has been derived from Qamar (moon). The moon sometimes increases and sometimes decreases. Similarly, in gambling everyone expects either to get the money of his opponent or lose his own money and these two chances are available there and this is why it is called Qimar ( ) and it is prohibited by the 'nass', but when the prize is to be put up by one of t|

parties, then the matter does not remain gambling and as such it is permissible as has been related in tradition. And if the prize is to be put up by both the parties but they have got a third horse-racer entered with them and not it was ^ure about his horse that it will definitely win it is valid as the Holy Prophet also said, in the above tradition that if a horse-racer entered in the competition of two horse-racers and there was possibility of winning of his horse, it is not gambling. Imam Ahmad, Abu Daud and other Muhaddisin have also related this tradition. The entry of Mohallil will be that the first two will say to the third "If you win you will get the prizes put up by defeated us and if you are_7 ,-Iyou will not pay something.

So far we are concerned if one of us wins he will get the prize fixed by the other. "So in this contract the third is out of the chance of loss and profit but on the otherside he is sure that he will not lose, and as such with the entry of third person, this contract does not remain the contract of gambling. Similarly, if a person fixed a prize for the winner among many horse- racers or between two horse-racers, it is also valid. So horse-racers contests are of four kinds, three are valid and one is void. (Al-Ba&ru Rais, Vol.VIII, page 559).

ix)^ Allama Tahir F&tni (died 986-H) writes: oJ T M ^ Or*

"Any with the entry of mohallil the contract gets out from gambling because in gambling everyone has to be hanging in getting and losing something and this does not be the situation when mohallil enters in the competition" (Ma.jmaul Bihar Varl.II, page 91).

x)Mulla Ali Qari (died 1014-H) writes: ^ J u V'-'u \

"And if the prize is to be put up by both of the parties, one said to other, "If you win, I will pay you a fixed amount." And other said to him, "If you win I will give you a fixed amount.” So such contract of competition is not valid without mohallil.

In case of mohallil if he wins he will take both the prizes and if he fails he will pay nothing. It is called mohallil on the ground that it makes the prize taken by the winner permissible and as such with the entry of mohallil, the competition does not renain based on gambling because gambling means a competition (or contract) in which everyone must either get benefit or bear loss and in case of mohallil, the case does not remain so. If mohallil wins he will take the prize of both the parties, and if both of them were equal even then no one will pay something, and if the mohallil alongwith other were equal i.e. they won simultaneously they will share the prize of the one party which loses equally (Mirqat Volume VII, pages 320, 321).

xi)The Ulama belonging to the different schools of thought have also favoured this conception.

For example;

a) The commentator of Abu Daud Shamsul Haque Azim Abadi writes':

"And with the entry of mohallil the contract does not remain based on gambling." (Aunul Maabud Volume II, page 334).

b) The commentator of Tirmizi writes:

"In case of mohallil, the contract is no longer based on gambling." (Tuftfatul Ah^azi, Volume V, page 351).

c) Qazi Sanaullah Panipatti writes:

"If prize is to put up for the winner by one of the parties, it is permissible. And if it is to be put up by both of the parties, it is not permissible but if a third person (mohallil enters their competition with the condition that if he wins he will get the prizes but if he does not win he will not pay something. But if one of them wins he will get the prize fixed by the other. In this way, the horse­ race competition and prizing in it is permissible." (Ma la budda minha, page 132, other

101.The names of/Ulama who accepted this hadith are as under

Imam Ahmad in his Musnad Volume II page 505, Abu Daud in his Sunan Volume II, page 378, Imam Tahawi in Mushkilul Asar Volume II, page 367, Allama Fakhruddin Zaibai (died 743 H) in the commentary of Kan^ Volume VI page 32,.Hafiz Zahabi (died 848-H) in Talkhisul Mustadrak Volume II, page 114, Hafiz Ibn-e- Hajar Asgalani (died 852-H) in Fathul Bari Volume VI, page 55, Sheikhul Islam Allama Aini (died 855=H) in Umdatul Qari Sha^h Sahif,s Bukhari Volume VI, page 611, Volume XIV, page 161, Qazi Shaukani in Nailul Autar Volume VIII, page 84, Shah Waliullah Muhaddis of Delhi in Al-Musaffa Volume II, page 154, Allama Ibn-e- Abidin Shami in Raddul Muhtar Volume V, page 258, Fatawa Alamgiri Volume IV, page 95, .SJtarh Auimil Maabud Volume II, page 334,

Allama Mubarakpuri in Tuhfatul Ahwazi, Volume V, page 351, and many other Ulama have recognised this hadith. They all belong to differnet schools of thought and they have unanimously recognised this hadith and when a hadith gets the general recognition c<3 ) it is considered authentic in the terminology of muhaddisin. In this connection a famous book of Usul-e-Hadith writes: - . , ...

1 cis* « * r G * <->’ tr \U y* ^

^ —r k • V«A.— J S T - i i O( «- \

<=3 V)

V*

"When a hasan( o-*-*- ) hadith is related by different sources and channels, it reaches the position of Sahih (authentic) ’hadith'.

Similarly, the 'hadith' which is accepted by Ulama, then some of them declare it as authentic ( ^ ) and the people accept it though its channel ( oG-'w ) is not correct, it is taken as valid. (Tadriburrawi, page 15).

102.In view of the above discussion it is quite clear that Abu Hanifa, Shafie, Ahmad and a disciple of Malik, Abul Mowaz accept that the Tradition of Mohallil is either correct or is generally accepted so.

This Tradition has been followed throughout the ages and, therefore, we do not find ourselves so placed so as to take a different view as advocated by Allama Riazul Hassan Noori. We, therefore, with respect take the Tradition as operative.

103.We have discussed above that gambling is forbidden ( r ' v * ). We have also seen that while unilateral betting and prizes given by a ruler or even a stranger or one of the contestants is perfectly valid bilateral betting falls in the ambit of gambling

and is, therefore, forbidden. However, in case of a bilateral betting the introduction of a third horse of a comparable quality will make it valid if the third horse participates in the given conditions. If it wins it gets the bet set up by the other two but has to pay nothing, if it is defeated. The question to be considered is whether this Tradition of 'mohallil' legalises what was forbidden or does it temporarily take it out of the sphere of gambling. A reference to verse 32 of Chapter VII of the Holy Quran will show that only Allah Almighty can declare a thing as 'halal' or 'harara'. A warning is thus, administered in verse 116 of Chapter XVI so that no one should declare 'halal' or ’haram’.

Similar* is the provision in verse 59 of Chapter X.

Restriction is again pronounced in verse 87 of Chapter V that do not treat 'haram’ what has been declared as 'halal' by Allah. Even the Holy Prophet had been asked not to declare something as 'haram' which had been declared as 'halal' by Allah. It is said in Chapter 66 verse 1 "0 Prophet! why makest thou unlawful that which Allah hath made lawful unto thee, seeking the good-will of thy wives. And Allah is Forgiving, Merciful." It is also clear from the life of the Holy Prophet that he neither declared anything lawful which Allah has declared unlawful nor did he declare anything unlawful which Allah has declared lawful. It is narrated that:

"The Prophet was asked about ghee and other eatable things, he said ’halal' is what Allah has made 'halal' and 'haram' is what Allah has made ’haram’ and, on which He is silent is forgiven."

Qurtubi writes in the explanation of verse 16:116,114

I ,M

( < * * * , * » ) that this verse means that only Allah has the sole authority to declare a thing lawful or unlawful and no one else can say or declare like that.

104.The petitioner also admit at page 32 of " (3 V--> " that only Almighty Allah has power to

declare and Kharam' and the Prophets are only meant to propogate and further explain the same.

Their contention also is that the race with a 'mohallil* has been taken outside the ambit of the gambling and therefore, no ruler can bring it back to the previous position. The view taken by Maulana Siahuddin Kaka Khail and Hafiz Salahuddin Yousaf was that the validation granted by the Holy Prophet in respect of a race with ’Mohallil' is at the most a 'Mubah1 and the same could be withdrawn by the State in the interest of the public, (Mas<.laha) , They have given instances about it to show that the gambling has destroyed the character of the people and socially and economically ruined families. The gamblers neglect their duty to their families and also to Allah and the Holy Prophet, In this view of the matter, they suggested that the horse racing in any way be banned.

The petitioners, however, differed with the view and stated ’Mubah'' could not be forbidden only if it was meant to forbid what is otherwise permitted. It is argued that when the Holy Prophet permitted doing of a thing in a particular way a ruler could not prohibit it for any expediency and it will amount to interference in the religious affairs.

105.It may be appreicated that though no one can make ’halal’ what is ’haram’ but if the Holy Prophet declares ’halal* something which was previously 'haram1 then it is the duty of every Muslim to accept it as declared. He will also find out that permission granted is justified under some other Injunction of Qtiran. This view is in obedience to verse 7 of Surah al-Hashr i,e, "Take whatsoever the Apostle gives you and refrain from whatever he forbids". It may be appreciated that haram is permissible in dire necessity.

The permission will last till the necessity lasts and it

f

comes to an end Immediately thereafter with the result that haram continues to be haram and it is permissible no more. Reference may be made to Q.2:173, Q.5:3, 0.6:146 and 0.16:115 in this context. A further exception to the general rule is contained in another verse of the Holy Quran:

Q. 2:286 3 \J\ \. . A _\.\ \ v ^

"Allah does not burden any human being with a responsibility heavier than he can bear." This verse also allow deviation an Injunction may be avoided in a given situation by the man concerned or the State. Umar, the second of the guided Caliphs availed this provision when he suspended the sentence of amputation of hand on theft of eatables during famine. Even the Holy Prophet (PBH) allowed his army to break fast before time as they would not be able to endure it during the arduous journey. Again, the apostles are destined to follow the dictates of Allah and they are never false to their trust, Q.3:262. "The Holy Prophet Muhammad is also no more than an apostle (0.3:194) and brings only the message revealed (x.15:16)". He is to deliver revelation entirely as it gives to him: 11:12-14, $:9 and Allah is witness to his mission 13:43, 29:52,

V. WHAT IS THE BASIS, IF BETTING IS JUSTIFIED

WITH MOHALLIL. ______________________ vj 106 We are now quite clear in taking the view that only Allah Almighty can declare ’halal* and ’haram’ and even the Holy Prophet has so clarified his position.

In this view of the matter, the word ’Mohallil’ appears to be misplaced and it must be so when it has not been used as such, in the Tradition itself. This word carries the concept that something which was forbidden in a particular form is now permissible in a changed form. We have also seen above that Allah Almighty has permitted

’haram' only when there Is dire necessity specifically, to save life and that the forbidden be permissible also when one is not in a position to physically bear or cope with it. So the Tradition of fMohallilK may be placed in one of the following categories:— a) Is the race with mohallil not a ’qimar' as defined?

b) If it is, has it been justified under the doctrine of necessity ( ) or the incapacity or to advance the cause of Islam?

The two versions of this Tradition are as follows:- It is common to both the Traditions that it is gambling if the third contestant is sure of his success but they differ in another aspect. One says it is not gambling if he is not sure of his success while the other says there is no harm in that situation. We have already seen that gambling and eating each others properties in an unjustified manner is prohibited because:-

i)it amounts to taking one's property without a valid cause;

ii)it encourages risking one's property;

iii)it encourages venturing in uncertain events;

iv)it creates hate and hostility;

v)it interferes with the proper performance by mnslims of their religious duties;

vi)it adversely affects proper behaviour, muruwah', character and probity;

v ii) i t stimulates urge for easy moBey by unapproved means;

viii)it is habit-forming.

Therefore, if we come to the conclusion that a race even with a ’mohallil' retains any of the above characters it will remain forbidden under the general standards of Islamic law, arid we shall have to place its justification under some exception. Let us, therefore, look at the nature of betting with a ’mohallil’

107.It is a race with ’mohallil' when a third horse of a comparable quality is brought in the two contending parties. The agreement is that if anyone of the contending parties wins, the bet money of the winner and the other shall go to the winner. If the mohallil wins he takes the bet money of both the contenders. If two of the three participants finish equal and one of them is ’mohallil' he takes the money of the one who was defeated. In none of the situations, the mohallil shall have to pay if he loses. The transaction is included in the category of contract but according to Hanafities it is not enforceable in law. The case of the petitioners is that the introduc- tion of 'mohallil out of ’qimar’ i.e., gambling or 'haram*. It is thus to be seen that if a transaction between the two contestants is ’haram’, how can it be converted to 'halal' with the mohallil?. One answer given at page 21 of ’Al-Faroosia’ that 'liquor is haram but if it is converted into vinegar by the addition of another substance, the resultant will be ’halal*.

As a matter of fact the reply is quite valid but is it the case here? It cannot be denied that the nature of the transaction between the two original contenders does not change and remains at it was before. Therefore, let us see if the mohallil in this contract is a party or not. There can be three situations.—

a) The agreement is between the contenders on one side and the mohallil on the other.

b) The agreement is between the two contenders and the ’mohallil*' has been brought in by the two on hire.

c) The agreement is tri-lateral. In case of (a) the nature of the transaction inter-se the two contenders does not change. They wagered on the outcome of an uncertain event and one will deprive the other of his property. ’Mohallil’ who has also agreed with others gets easy money which is forbidden. Again, if he loses he gets nothing and is put to all that expense of bringing the horse and wasting his time for nothing. This is also not valid. So the situation in the first category remains ’haram’ in any case, In case of (b) the agree­ ment is again void as 'mohallil’ should get only the hiring charges and nothing more whether he wins or loses. This however, is not hire that he gets the bets of both the contestants if he wins but nothing if he loses. This is not even a prize as he knows about the bilateral betting between the other two,

108.The other way of looking at it is that the ’mohallil’ is introduced and paid as if it is his compensation. True, the bet money of the other two contenders may be his compensation if he wins but what about his position of defeat. If it is a compensation, it is for his bringing the horse, joining the contest and putting in all the time and labour. The position, thus, should not change irrespective of the fact he loses or wins. The 'mohallil ’ and his horse do the same thing in both the cases, and so he will be entitled to an equal compensation in both the cases. Thus the fact that he compensation in case of loss makes the _ s whole transaction void. Similarly, if it is a compensa­ tion for 'mohallil' why not an equal amount to others.

'Mohallil' is not doing them any favour. Rather, he stands there just to deprive them of their money. Then why should ’mohallil' not pay to them their compensation. It is to be noted that the prohibition of gambling (maysier) in Quran, is for the reasons already given above in para 106. 'Maysir’ is equated there with

liquor. No one has so far attempted to develop a mohallil for the liquor. On the other hand, as seen above, the transaction of gambling does not change its character with the introduction of mohallil. In the words of Allah Almighty in gambling there is more sin than usefulness. (2:219) and it is an abomination wrought by Satan as he wants to cause hostility and hatred among the participants. (5:90-91). Why then should it be resorted to without a valid cause. No debate on this topic will be due even if it is (c) category. The ’mohallil* being a party to a void agreement will be participating in a forbidden act at the best as an abettor*, if not as an equal party. The only change the mohallil has made is that he has varied the odds or decreased the chance-percentage of the other two contestants. Previously, any one of them had 50% chance to win which it decreased to 33-1/3% with the introduction of ’Mohallil’. Thus the nature of the transaction is not altered by the introduction of mohallil.

109.Another objection noted in Al-Faroosia, page 22 is that the introduction of ’mohallil• in the horse racing is like introduction of one, (i) for the xarriase of a woman who has received three 'talacs' or fii' to do so in order to exact more orice in a sale or loan or (iii) to adopt devices with a ’mohallil' to avoid the restriction of interest (riba). The objection is that when the purpose is only either to circumvent sharia or to defeat the law of Allah then it is not permitted and it has much force. The acts and deeds of a man are to be judged by the intention with which they are performed. It may be noted that even prayers and alms may not be rewarded if the purpose is just to show off or to satisfy one’s own vanity, . See 0.4:142, 2:264,

and 107:1-6. Therefore, If the intention is .just to contrive to take a transaction out of its forbidden field with the introduction of a mere device it will not be condoned or approved. Reference may be made to verse 37 of Chapter IX, which says:

Verily the transposing (Of a prohibited month Is an addition to Unbe The Unbelievers are le' To wrong thereby: for It lawful one year, And forbidden another In order to adjust the Of months forbidden by And make such forbidde Lawful. The evil of th Seems pleasing to them,__ ____ Guideth not Those who reject Faith.

Thus the introduction of a ’Mohallil* for any of the invalid purposes is void, unless the device changes the very character of the transaction.

110.It may further be appreciated that the very basis of an Islamic society is justice (adl).

Transgression is 'haram' in Islam. So all the transac­ tion and dealings are to be based on the justice arid fair play. Consequently, if the two contestants are to pay to the 'mohallil * if he wins, why should he not pay to than if they win. Thus as long as mohallil stands to deprive the other two of their property without being prepared to pay them also if he loses,his position will rest on an unjust and unfair plane. Again, it is necessary that if a person wants to spend his money he should be able to do so voluntarily and with his free will. The two contestants were doing inter-se that way.

They- are, however, obliged to introduce a third person who will not only be reducing their chances of success but will take away the money of both of them, if he wins. His presence is, therefore, not a question of

happiness to any one of the two and they will be doing it under a oompulsion despite the fact that the individual stance of both of them is not changed. Thei?

bet between them stays as it was. They act both hoping to .gain or lose in an uncertain event . The transaction thus retains the same character with or without 'mohallil'

111.The argument in favour of 'mohallil' is that the main purpose of those, who bet in horse-racing, was not to earn money but to encourage, inspire and stimulate each other in order to take good care of their horses and to tend and train them so that they prove more useful in a holy war and create terror for the enemies. The introduction of 'mohallil* in such a situation only reduces their sure chance of getting money so that their intention and will to inspire each other for a pious cause is not overtaken by the greed for money. It is to be presumed that the very object of betting in a race of horses meant for jehad was not earning easy money but it was for the pious purpose of Jehad. Secondly the introduction of mohallil may further stem any hope, taking root for earning easy money, in future. On the other hand as gambling as such is generally undertaken with a view to make easy money, the introduc­ tion of mohallil is a warning that horse of mohallil being of a comparable quality is likely to win and he may take away all the money posted by both the contestants The mohallil thus dispenses discouragement to all those ■who md-glft be tenpted to..make money where the bst.ensib.-le purpose of bettfng i-s not to make money "but to'spend money so as to inculcate in Muslims an urge of surpassing each other in keeping and training horses for Jehad. Again, if the very purpose of competition was not for a sharai cause the very contest will be 'haram’ whether with or without bet and the addition of mohallil will make it worse for the reason he takes away the money of both of them if he wins and gives them nothing dm defeat. The

situation so arising creates hatred and hostility, as is mentioned in verse 5:90-91. The uesition is graver when one heats his real contender but loses to the 'mohallil' not only his money but even the pride and happiness which he would have otherwise got had the mohallil not been there. 'Mohallil* thus instead of encouraging the contenders and advancing the purpose of the contest, frustrates the participants so that their zeal and pride may touch the lowest mark. The result would be that what the Holy Prophet and Quran wanted to advance, gets a set back. Realising the above situation, some of the Hanfi jurists opined that if mohallil wins he would not get the bet money and if he loses he will bear the loss. This is so stated in Maimal- ul-Bahrain ( <— Lg ) by lb- Saati in Sharah Mukhtar ) by Ibe Badhi.

VI. WOULD THE DEVICE OF ENABLING THE NON­

PARTICIPANTS TO SHARE IN THE OWNERSHIP

OR LEASE OF A HORSE BE VALIDLY CALLED

FOR IN THE CIRCUMSTANCES OF TODAY.

112.In any case it is an undisputed position that even in a race with 'mohallil' the persons who are mere spectators or who have no connection with the participat­ ing horses cannot bet. Thus the financial incentive which is being sought for through these proceedings will' in any event, be not available. The case advanced by Mr.A.K.Brohi the learned counsel for the petitioners was that the introduction of the machine named "Totalizator" has arranged the distribution of money of all the betters, including the spectators, in such a way that no one makes any profit. In simple terms it would mean that the money advanced by a better is returned to him as such so that no one makes profit and no one loses. However, if the sele purpose of betting is to give back their money to those who backed the winning horse then the entire exercise

is useless. Same would be the position if one horse owner is to pay to the other. The fact is that those who win take away the bet money of not only their own bet but of all others also. In this way, some are bound to lose while others profit at their cost. The Totalizator only arranges quick and fair distribution of the bet money to those who win but it will not restore their amounts to those who lost. Thus the sport retains the gambling character. Again, the contention that the clubs are non-profit making bodies may sound very noble but they also prosper at the cost of those who lose. These clubs own large properties and confer pride and pretense on those who run it. After all who is paying for the properties made and the facilities extended to the spectators, officials of the clubs and the horse-keepers. In final analysis, loss is caused only t the poor spectator who, God knows how arranges the entry fee and stake money. Thus the object of the petitioners appear to be to continue the practice by which the spectators somehow remain tied down to the pegs of the racing club and the stud-owners so that he brings money for their necessary up keep and encouragement.

113, The petitioners have suggested ways and means in the "Sabaq Islamic" as to how they intend to do so once they are shown the green light. Firstly, they quote Allama Abdul Rahman Al—Jaziri who says that it is not necessary that the owner should ride his horse in a contest. According to him, the services of a orofessional rider can be secured for the purpose. This may be quite correct in case of a horse-race but certainly it will net apply to a horse being trained for Jehad. There, the training is not only of the horse but of the ’mujahid’ also. Thus in the case of a professional jockey only half of the purpose may be achieved. They, however, proceed further to say that even a horse can be taken

on lease or hire and the lessees may be more than one persons or groups of people. Support Is sought from Noorul Hidaya part III, page 151 to say that even the Holy Prophet got on hire a horse. We have no cavil with the proposition as advanced as it only makes possible that all the spectators or the intending bettors are sold a minor share of the hire rights so that they can claim an interest In a running horse on which they want to bet.

114.The question for consideration is What is the object of this device. If the purpose is pious the device is wel—come. If on the other hand the purpose is to do something forbidden the device is to be condemned. Quran in verse 9:37 says:

Verily the transposing

(Of a prohibited month)

Is an addition to Unbelief:

The Unbelievers are led

To wrong thereby:for they make

It lawful one year,

And forbidden another year

In order to adjust the number

Of months forbidden by Allah

And make such forbidden ones

Lawful. The evil of their course Seems pleasing to them.

But Allah guideth not o fc

Those who reject Faith.

Maulana Abdul Majid Darvabadi explains that verse to say "This was an invention or innovation of the idolators whereby they avoided keeping a sacred month, when it suited not their convenience, by keeping a profane month instead, transferring for example the observance of Muharram to the succeeding month." We have already

concluded above that the purpose of the horse races today is not Jehad but it propagates and multiplies gambling. Rosenthal refers to a saying of al-Ohazzali which speaks about "the broke gambler who gets much joy and pleasure out of his gambling..... although gambling may deprive him of his property; destroy his house and have him bankrupt, (page 142), Rosenthal gives a concrete case of an Alid gambler whose wife and children were destitute because he gambled away everything he was able to earn. Heavy gamblers not only faced the risk of not only losing but additional danger of incurring debts in order to go on gambling.

115.Rosenthal has come across some interesting features of gambling and it may not be out of place to reproduce those here:

"Gambling figures in some lists of despicable activities and occupations. Astonishment was expressed that human beings could actually derive pleasure from something that brought only disaster to themselves and theirfami].-ies» , a remarkable phenomenon to be observed not only in connection with gambling but also other vulgar and harmful activities. The hero of a burlesque of low life in a large city around the turn of the first millennium associated with gamblers, nabidh sellers, effeminate persons, moneky men, and he mentioned his gambling activities in connection with his homo-sexual inclinations. Nard playing, together with many other gambling activities, is listed in a fictitious hadith of the Prophet as the work of the people of Lot. If a boys’s mother was a whore, he quite naturally started out as a gambler at a tender age. At-Tifashi (d.651/ 1253) learned that, when he was writing his N&zhat al-albab in Damascus. As he tells the story, he saw a little boy sitting near the water naked and weeping, while other, older boys were swimming; his clothes had

been stolen, he said, and his mother would kill him, if he came home naked. Passers-by were touched by his plight and gave him money, so that he would be able to buy himself clothes. At-Tifashi was about to take out his handkerchief from his sleeve (al-mandil min kummi) and give him something when a young man warned him not to do it, since there was nothing to the boy’s story. It was the custom of that ’’gambling bastard, the son of a whore and procuress" (’ilq muqamir ibn qahbah qawwaddah), to play that trick on strangers all the time. He would use the money he collected for gambling with the other boys."

116.Allama Riazul Hassan Noori had produced photo copies of an American book "The Sociology of Social Problems" 5th Ed.by Paul B.Horton which makes a very instructive reading. It will be useful to reproduce a small passage from pages 548-549 here-under.

"Proponents argue that the propensity to gamble is so deeply rooted in human nature that it cannot be eliminated. The only question, they say, is whether the huge proceeds-up to £10 billion per year-should continue to flow into the coffers of organized crime, corrupting hordes of public officials and policemen along the way. Opponents of legalized gambling use essen­ tially the same facts to reach opposite conclusions. They argue that legalization not only will not halt corruption’ it will cause it to grow worse. They also point out that, as a form of indirect taxation, gambling is very regressive, hitting the poor far harder than the wealthy’

"There is little reliable knowledge as to why seme persons become chronic, compulsive gamblers, We do know that with some people the pattern takes hold with an emotional force akin to those involved in alcoholism and drug addiction. Winning becomes very important .^he stakes get larger and larger, and everything is subordinated to the need to gamble. In the

ai6-

long run, of course, the odds are against the gambler and he loses. Home, job, family, and respectability may be sacrificed in the process.”

117.Wilhelm Stekel, M.D, author of another book "Peculiarities of Behaviour” Vol.II says at page 234;

"I attended a horse race but once and on that occasion I indulged in light betting. But I felt that under certain circumstances, if I had no other interests more strongly at heart, I might become a victim of the gambling mania. Others have told me sane thing about themselves." Talking of traits that dev elope with gambling this author remarks at page 235 "The kind hearted individual turns into a sadist, teasing his antagonist over his own good luck and making fun of him .

The taciturn becomes loquacious, the game like alcohol, unloosening his tongue," The out of luck fellow "bewails his lack of luck, sears he will never play again; but next day he again sits at the gambling table. Spends thrifty persons become greedy and tremble over the loss of trivial sums of money to which under other circumstances they pay no attention. They regard the loss a defeat.”

At page 236 he observes

"Gambling for money is a proof of man*s incorrigible optimism. Deliberation shows that the chances of winning equal the chances of losing. Each side has fifty per cent of the chance either way. Nevertheless optimism inspires the gambler on each side of the table with the belief that his chances of winning are the stronger;

implicatively he thus holds himself out as the better man. In the larger games of chance the gambler’s individuality plays almost no role; his only driving power is his optimism. We always find that gamblers who have plunged deeply, to their loss, feel impelled to keep on, in the hope of retrieving their losses. The greater the losses and the more hopeless the gamblerfs pecuniary state, the stronger and the rosier also is his never-failing optimi&n, the hope that his "luck will suddenly turn.”

A few lines from page 239 are as follows:- "The true gambler with a passion for playing often risks everything on the outcome of a game. It is a play with fear. Depressive and manic states succeed one another. Malicious joy (Shadenfreude) over the other’s loss (sadism) interchanges with torturing self-reproaches ("It serves you right! "you don't deserve better!").

We have already discussed this aspect of gambling in paras ^above which may also be referred. It is thus a historic truth that gambling is destructive and disastrous and no social order, what to speak of Islam, will permit that.

VII. CAN AN ACT PERMITTED BY THE HOLY PROPHEi;

BE BANNED BY THE STATE

_ ‘ ■— .... B i l l .

I II ll

118.We have already seen above that gambling of all sorts is forbidden in Islam. It is equated with wine and it also amounts to devouring substances and possessions of others in falsehood, vanity and unlawfully. (2;188, 4:29, 4:161, and 9;34). It also detracts Muslims from the right path set for than.

Therefore, betting only by the contestants was permitted, only in case of necessity of Jehad. Thus the permission granted by the Holy Prophet is not general and absolute but any one who wants to take advantage of it has to establish the requisite conditions before a claim for the appropriation of it can be made. On the other hand, we would like to agree with the petitioners on technical plane that any Injunction granted by the Holy Prophet cannot be withdrawn by State if it confers an absolute right or is obligatory. It is to be noted that Quran did not place some relations in the prohibited degree of marriage but the Holy Prophet included them therein on analogy. No one can, therefore, withdraw these restrictions. Similarly, the Holy Prophet fixed

24% of wealth.as the quantum of zakat and this concession also cannot be varied by the State though it may levy other taxes to meet its financial require­ ments. As said above, the demand by the Holy Prophet to join 'mohallil' was meant to discourage the lust for money as it always reminded the betters that the money posted by both of them may be taken away by a 'mohallil'. So it was not to be taken as a source of earning. Even this reminder was to those Muslims who were betting with a purpose of training their horses for Jehad.

The practice of Islam, as stated in the discussion of Islam, wovvftfarfaBekxiHxjili i ^ B x of the preliminary objection, is that unless an express provision is made for something, every-thing else is permitted. However, the State can pass certain orders in respect of such matters as are not covered by the 'obligatory' field if it thinks the same in the interest of public. It is to be noted that the jurists of Islam have said a lot on this proposition.

119.Mufti Siahuddin Kaka Khail and Hafiz Salahuddin Yousaf have explained in their thesis that betting on a horse-race with a 'Mohallil’ is valid but it may be prohibited under the principle of Sadduz Zari'ei for the reason that gambling does much more damage than any good. Literally the word Zara'ei ( ) means mediums, instruments or devices. It means in the present context anything or act which becomes a means or serves as an instrument of another unlawful thing or becomes instrument for the occurrence of commission of an unlawful thing. Applying this principle the jurists have allowed to prohibit something lawful which becomes a source of the commission of an unlawful thing. This principle finds its support from

the very verses prohibiting wine and gambling on the ground that their disadvantages are much more than their advantages. According to Hafiz Salahuddin ^ousaif: that something permitted by Sharia can be prohibited by the ruler or the State on the ground that its continuance would do more harm than good. He admitted that no one, not even the Holy Prophet had the authority to declare 'halal' as 'haram ’ but prohibition in such a situation was not covered by it. He referred to "Alamul Mowaqqin by Allama Ibne Qayyim ( V o l . m page 205- as researched by Abdul Rehman al-Wakeel) to say that according to Ibne Qayyim about 1/4 of the injunction of Islam were covered by that concept,Hafiz Sahib illustrated his view by saying that if a ruler or State observed that people were prostrating before a l' certain grave they could ban visits to that gra^e to stop this anti-Islamic practice for prostration was only allowed before Allah and no one else. He also relied on Sahih Bukhari and Muslim through ’Mishkat-Kitab-jal-Ieman page 13 and stated that in the beginning the Holy Prophet had asked Muslim not to use four types of utensils as they were usually used for wine. Even visits to graves were stopped in the beginning but allowed later when the Muslim acquired firm faith. Similarly, the storage of sacrificial meat was for more than 3 days was prohibited in the beginning so that the surplus was divided amongst the poor Muslims. The following Tradition of the Holy Prophet through Burauclah may be cited:

— ^ V*\ Vi v w '— V*js» * \s O ’- '—

This aspect was also dealt with by Maulana Kakakhel also. He relied on Ilxie ^ )

144, 145, 255, 256, 257, Vol:4 page 1-116) to say devices adopted to treat or declare 'haram' as ’halal*• are forbidden and they must be exterminated and made ineffective by the State. A small portion of it may be given here; It is discussed in Fatawa Kubra Volume-in, under the topic of invalidity of devices and concluded that these devices are deception with Allah and are strictly prohibited, (Fatawa Kubra, Volume III, page 113). At page 141 of the same it is stated that all these traditions are consistent that in contract the purpose and objects are to be seen and these devices should not be allowed to camouflage the substance and that the consequences and aims sought to be achieved in actions and habits xx equivalent to those in worships.” (ibid, page 141). Reference is also made to a hadith where the squeezer of the juice of grapes has also been cursed in the same way as drinker of the wine who was doing with the intention of making wine from it, th-ough the squeezer might change his miiid later and juice -may or mav\>not:be converted so. His liability,however, with his intention, on the on same principle is based_/fche injunction that sale of arms to infidels, opponents, dacoits is prohibited, (ibid, page 145).

Ibn-e-Qayyim has also related a Hadith which has been reported on the authority of Imam Ahmad that Holy Prophet prohibited the sale of aims in emergency or in the time of mischief. (Aalamul Muwaqqeen, Vol.III, page 135.)

120 . We have discussed above that 'mohallil' as such does not convert the betting into a valid transaction. We have also seen that gambling in any form

is disastrous to a nation and Quran has prohibited it.

However, it is reported that the Holy Prophet wrestled on a bet with Abu Rfefkana without a ,mohallil,> Rather, they say that it is impossible to have a mohallil in wrestling. CAl-Faroosia pages 33-34). Ibn Qayyim states that in fact the wrestling of the Holy Prophet and the bet of Abu Bakr as-Sadd±q with polytheists was Jehad by which Allah Almighty gave success to his servants and the betting in such matters is lawful. This bet of Abu Bakr is mentioned also in Al-Faroosia and it is stated that Abu Bakr received the bet from the unbelievers after the prohibition against wine and gambling had been proclaimed (page36). It will thus be seen that betting on horses meant for Jehad is condoned on the same principle that its purpose was to establish superiority of Quranic revelation. The plea that Abu Bakr had given the bet receipts in charity would not make any difference so far as the setting up of bet and its validity goes. On the other hand, if purpose of such a contest is to make money or to show one'es own superiority or to take pride in oneself, it is a sin and the bet will be forbidden. Allah Almighty does not approve any one taking that attitude for his personal glory. Satan was condemned for a o similar pasture. (2:34, 7:13). Reference be also made to Q.40:35, 40:60. It is to be noted that it was after that the above-mentioned wrestling bouts that Abu Rttkana became Muslim. It is for that reason of Jehad that Imam Shafei and Ahmad uphold the betting Cn carrier pigeons used for sending messages during Jehad. On the same principle all other contests wh-ich are helpful in Jehad are permitted by them.

ft 1'21v We may look at the three sports approved for competition, from another angle. The passion for these sports may be either to prepare oneself to defeat or overawe the enemies of Islam or to make money. If the intention or the purpose is the former, then jurists have approved it irrespective of the fact that some betting is also involved. The very Tradition of the Holy Prophet taking the three given sports out of the general restriction about games and sports also proves the point that it is their use in Jehad which made the difference. This view is supported by Allama Aini (Umdatul Qari,Vol.l4 page 160) and the Shia Fiqh (Kitabul-Ahkam by Momin Sabzwari, Masabkul-Afhan by Zainuddin Shaheed Thani, Sharah Irshadut-azhan, Ila Ahkamul Je:.an by Hassan Ibn Yousaf Halb and Fiqh as-Sadiq, Sayyed Sadiq Roohani, Vol.15 page 169 (published Qum. Iran). The reason appears to be that the conduct is covered by the rule of necessity as it was the dire need to Muslims at that time to prepare themselves for war so as to defeat the enemies of Islam. It is this principle which has been applied and by one opinion of Malik Ahmad and Shafei even betting on the races of mules and donkeys is permissible. Similarly, some disciples of Abu Hanifa and Shafei have approved betting on pigeons, elephants and cow races. Some disciples of Ahmad have approved betting on races of such pigeons which convey messages. Some Hanfi and Shafie jurists have held permissible betting on foot-racing though Malik, Ahmad and Shafie have not approved it. Similarly, 12 instances of various games are given in Al-Faroosia at page 65 containing opinions approving or disapproving them. As said above, the approval in every case is based on the principle that betting will encourage that sport to help in the war against

unbelievers. It will be of great interest to note that some disciples of Abu Hanifa and Ibn Taymia approved betting on memorising Quran, Hadith,Fiqh and other useful subjects while Ahmad, Shafie and disciples of Malik forbid doing so.

122* The sum and substance of the above discussion is that approval by the Holy Prophet of the three games i.e., horse racing, camel racing and archery is not to be taken literally but objectively. The principle to be derived is that where-ever it is proved that a particular game or sport will benefit the objects of Islam, particularly Jehad, it is to be encouraged even if betting to that effect is necessary. However, the charm for money must be reduced, as by the introduction of a mohallil, so that the urge to earn easy money through betting or other unapproved means does not take root, On the other hand, if any game or sport, including the above three, is being used for objects alien to Islam or detrimental to the character of a Muslim and they ar likely to interfere with his duties to his Maker or the fellowmen that must be forbidden. It has already been amply discussed and supported above. What is important is the object and purpose for which horses are to be bred and trained. It is therefore not correct to say that attention be focussed on the multiplication of the specie only. We have also noted above 7 verses of Quran and 26 Traditions concerning the horse. The horse is not only praised therein but also declared evi This position is sufficient to put man on guard so that he can keep the horse which has earned praise and destroy or at least shun the evil. It was argued before us that as horse, according to the Holy Prophet carries

good and blessing till the Day of Judgment in his forehead it will remain a sacred duty of Muslims to keep and train such horses. The petitioners, however, <y.d not point out that horse.

There is a horse with bandits. There are horses of the enemies of Islam trying to undo what the Holy Prophet achieved. There are horses with snugglers and black marketers to such, the blood of the community.

Would anyone anywhere in the world encourage such "Un­ horses? Even a horse kept,, pride and pretense trying to establish false superiority of man over man is not the approve^ one. Undoubtedly, Allah Almighty or his Prophet never priased such a horse. It is such a horse which is Satan’s horse and under his command causing hostility and hatred and interfering with the religious and social duties of man to his Maker and the mankind. Such a horse will be the cause of torment to his keeper. According to the Holy Prophet only those horses carry good and blessing in their forehead as are used in the cause of Islam* It is such a horse the keeping of which will earn the keeper good deeds and even its dung and footmarks will be written as good deeds in his account. And it is only on that horse that betting is allowed if the purpose is to inspire and persuade other owners of such horses to make them better and fitter for the purpose of Jehad. As for those who keep horses for pride and prelyise and to cause pain, misery and loss to Muslims of- cause of Islam they shall be possessing source of sins.

423.Here we may also seek support from some of the ’Fuq^ha'CJurists) for the conclusions that we have reached. It will be appreciated that the touchstone of validity adopted in each case is Jehad, Ve find a sufficiently clear and comprehensive exposition by al-karani in this regard. After discussing two different views as to legality of elephant racing

and dismissing mule and donkey racing as not permitted, because it has no military value, he continues at pages 106 of Rosenthal as follows:- "Foot racing without compensation (iwad) is permitted, because it has been reported that Aishah said: 'I raced the Prophet twice. The first time I defeated him, but when I grew stout, he defeated me'.

There are two views as to whether foot racing for a compensation is permitted. According to one of them, held by the 'Iraqians, it is permitted, because the foot-soldier needs it in battle, just as he needs it on the way to the battle(?) According to the other, it is not permitted* This is based on textual evidence, and it is the view held by Ibn Hanbal, because the Prophet has said: "There is no prize (sabaq) except for arrows (nasi), or camels (khuff), or horses (hafir).

Pigeon (tayr) racing without compensatior is permitted. There are two views as to whether pigeons racing for a compensation is permitted. According to one of them, (it is permitted), because pigeons are used as an auxiliary in war for carrying messages (al-kutub bilfakhbar). According to the other, it is not permitted ( inview of the hadith just cited).

Boat (sufun) racing without compensation is permitted. There are two views as to whether boat racing for a compensation is permitted. According to one of them, it is permitted, because boats are used for fighting on the sea, just as horses are used for fighting oniland. According to the other, it is not permitted, because of the textual evidence mentioned and because they are not an instrument for war, but war takes place within them.

Wrestling (musaraah) without compensa­ tion is permitted. There are two views as to whether it is permitted for a compensation. According to one of them, held by the

'Iraqians, it is permitted, because it is reported that the Prophet wrestled with Yazin b. Rukanah for a sheep. The Prophet defeated him, although he wias not used to wrestling. Then Yazin b. Rukanah-:wrestled the Prophet again, and the Prophet defeated him again. He did it a third time, and again the Prophet won. Thereupon, he became a Muslim, and the Prophet returned the sheep to him. According to the other view, it is not nennitted, because of the textual etfidfefiCe ifleart'ioried ‘an wrestled because they are not instrunaitof war. The Prophet/with Yazi b. Rukanah, because he wanted him to become a Muslim. Therefore, when he became a Muslim, he returned his sheep to him.

Competition with Arab bows and non-Arab bows is peimitted with and without compensa­ tion, because of the Prophet's statement.

Competition with mazariq is permitted, because they have arrow heads (nasi) and are used for fighting. They are comparable to arrows (siham).

There are" two views as to whether competition with spears (rumh), swords (sayf) and clubs (amud) are all right (sahha). According to one of them, held by Ibn Hanbal, it is not permitted, because of the Prophet's statement. According to the other, it is permitted, for ash-Shafi'i has said in the Kitab al-Umm that (competition is permitted) with everything by which the enemy may be hurt, such as swords, spears, and mazariq, and because they are weapons used in fighting. They are comparable to arrows (nushshabah).

There are two views, reported by at-Tabari in the ’Uddah, as to whether throwing stones from a slingshot (miqla) for a compensation is permitted. According to one of them— the only one reported by Ibn as-Sabbagh--, it is not in the public interest (s-l-h), since it is not an instrument of war. According to the other— the- only one reported in the Muhadhdhab, it i is in the public interest, because it is an

instrument of war. It is comparable to arrows (mushshab).

The competition with anything that is not an instrument of war, such as hitting polo balls, lifting (raf) stones, and playing the ring game, and the like, is not permitted for a compensation, because there is no use in it for war."

124 We may further draw on Rosenthal and reproduce his findings in this respect:

"Other Shaffites such as an-Nawawi and ar-Rafii also classified the games according to their usefulness, or the lack of it, for military preparedness. Horse racing and shooting are classified as preferred (mustahabb), or even lazim "necessary". (Others consider the classification of necessary as a community duty.) The better view on racing elephants, mules, and donkeys for money is that it is permitted, whereas pigeon flying and wrestling are not. Money may be spent on competitions with mazariq, spears, stone throwing, mangonel shooting, and other things, as being "useful in way". It may not be spent on polo, (clay) pellets (banadiq), swimming, chess, the ring game, standing upon one foot, and the knowledge of what is in the other's hand. Representatives of Malikism approved of foot races, boat races, pigeon flying, stone throwing, spear and sword play, and wrestling as activities promoting military prowess (in the case of courier pigeons, improved communications). All of it meant discomfort for the enemy and therefore was useful for the Muslims. However, if it was merely a competition for winning and glory, with no serious training purpose behind it, it was, with or without stakes (jul) , immoral, gambling.

The criterion of usefulness in war was an ingenious invention. It eliminated once and for all the bane of batil. It could be extended to encompass practically every kind of sport, if this seemed to be desirable. Even beyond the effective sway of Shafi'ism, there.

was no real obstacle to holding competitions and playing games for prizes, with some minor precautions in order to avoid the appearance of gambling. Gambling by non­ participants was of course, completely illegal under any circumstances. It was a major sin, as was participatory gambling." It will be seen that invariably the touch­ stone for permission is the use of that particular sport or game in battle against the enemies of Islam.

■We are thus of the firm view that horse racing competition and even bets thereon according to some Jurists were allowed only if the purpose was to train the horses for a holy war.

VIII. DOES THE ABOVE PRINCIPEE APPLY EVEN TODAY?

We have seen above that betting on horses and for that matter on other games i.e.archery and camel race is permissible if the sole object is to encourage and develope that sport or game for the glory of Allah and for the cause of Islam. This prnciple is permanent and shall remain so till the last day on this earth, alongwith the other laws of God. On the other hand, it has not been shown to us that the petitioners or other stud owners have either been assigned the job of horse-breeding and training for Jehad or they breed and train them for sale to the Government which buys them for the purpose of Jehad. Punjab Government report referred to already above shows in para 4(a) that there were 3000 individual breeders under the "Ghori Pal" Scheme which cater for defence require­ ments and the surplus stock is available for private sector. The position thus supported even by the petitioners is that the private studs are neither called upon to make any contribution to the require­ ments of the Government nor in fact is there any demand on them. Even the petitioners stated that

some of the persons took horses on lease from the Government, for the purpose of racing and that if the betting on races is banned the Govern­ ment will suffer in tax and also foreign exchange which is being earned through export of stud- bred horses.

12-6Y It had also been vehemently contended by most of the juris-consults that no horse is needed for the defence of the country or wars of today, They rather went to the extent of saying that the mention of horses in verses 100:1,5,8:60 may mean aeroplanes, helicoptors, tanks and ships of today, as the pattern of warfare and its requirements have totally changed. They have gone further to say that Pakistan faced two wars in the recent past and it cannot be shown by anyone that any horses were used or their owners or keepers were called upon to join and help the war effort.

^27.; The case of the petitioners thus rests on the foundation of personal losses and gains and on the threat to the employment of the persons who are associated with the horse breeding and horse-racing. However, both these issues are not such that the rules of necessity as embodied in Quran bp invoked to ameliorate their sad plight, if any. These ordinary recurrences of life and the situations arising thereunder, can be set right either by the State or the affected persons themselves by resorting to alternate fields of earning. The loss caused to the whole industry in term of money as given in para 4(d) of the report of the Punjab, Government comes to Rs,84,36,820, which is very insignificant as compared to the National or the Provincial revenues. The aid that the Central

Government or even the Provincial Government is giving to many useful institutions in the country may be many times more. So if the Government thinks that the stud farms are necessary for the breeding :

and training of horses it may either add to its own effort already being made through ’Ghori Pal' scheme or dish out grants to present stud farms so that the economic drain on their resources is not strong enough to compel them to close down their farms. In any case, there appears no justification to allow betting on this sport if it is not meant to advance the cause of Jehad.

128.Here we may refer to some other viewsalso.

It has been related that Umar bin-e-Abdul Aziz pro­ hibited horse-racing without justification. (Seerat-e- Umar bin-e-Abdul Aziz by Abu Mohammad Abdullah bin-e- Abdul Hakam,page 56).

In Fatawa Al-Islamiyya published by Ministry of Auqaf, Arabic Republic of Egypt the prevalent horse­ race in Egypt has been declared prohibited . and un- Islamic. In volume-X it has been discussed in these words

"Such betting on horses as is prevalent in our times is neither for a Shariah purpose noi is based on the provision laid down by the Shariah as mentioned in ahadith of the Holy Prophet and all of its kinds come under the gambling which is prohibited in Shariah, as it is covered by 'mays#r' which was declared by Allah in verse 5:90 of Holy Quran as an abomi­ nation of Satan's handiwork".

(Al-Fatawa Al-Islamiyya, volume-X, page 3579)

Allama Rashid Raza writes in this connection "there is no difference of ooinion among the jurists that every kind of gambling is prohibited except what shariah has allowed such as betting in horse-race and archery when they enhance the capability for Jehad. But the horse-race prevailing in our time is not like that. Rather it is the worst kind of gambling and all of its varieties amount to eating the pro­ perty of others by illegal means". (Tafseer al-Manar, volume II, page 256).

129.The upshot of the above discussion is that there is neither a complaint of the petitioners nor is it a fact that the present state of law or the policv of the Government is in any way, directed aginst horse-keening, its breeding or training or against race tracks, race-courses or competition of horses. Even giving of prizes by the State, the third parties, the horse lovers or any of the competitors is not disallowed.

130.The only restriction placed by law is of betting on horses which admittedly,in the present form, is gambling. The opinion (fatwa) of 55 'Ulama' relied upon by the petitioners expressly says, in answer to auestions Nos.l and 2, that bilateral betting is gambling and so forbidden according to all the Jurists of Islam. They have cited an exception based on the Tradition of 'Mohallil' but that too is proved only in case of horses being trained for Jehad. They dll, however, have struck a note of cautioi that even betting with 'mohallil' be avoided. All the

Juris-consults except Maulana Rifai are also of the view that the Tradition of 'mohallil' is not available to allow gambling.

131.On the other hand, there has been no difference of opinion throughout the ages on the position of spectators. They, in any case, were never permitted by the Jurists of Islam to bet in the horse-race competitions. We have also seen that betting is not only forbidden in Quran but also by every other religion or social order. No contri­ vance can thus be allowed to operate to achieve a forbidden result. Even the petitioners do not condone gambling but call, betting on horses to their aid, only on the basis of the above-quoted Tradition of the Holy Prophet. It has, however, been fully discussed and demonstrated that horse races and the other few competitions have been excepted, from the general restriction, only because of their need and necessity in the Jehad against the enemies of Allah and Islam. We have also seen that the horse of today is not needed in the wars of today and in any event, ^ it has not been shown that either the petitioners' studs made any such contribution or they were called upon by the State to do so, in any of the wars, fought by Pakistan against the enemies of Allah or Islam. Again, the grievance of the petitioners and others has boiled down to a shortfall of Rs.84,36,820/- only in their purse due to ban on betting. This stun, however, is too trivial to justify injection of germs j of a cancer like gambling in the body of a religio- social order, the sole aim of which is extermination of such maladies. On the other hand, if absence of this amount is likely to result in the closure of stud- farms and the Government is of the view that it will cxz

national loss, it may provide the required sum through valid resources.

131.We thus find no fault with the impugned provision of law (i.e. section 2(b) of Ordinance VII of 1978) and dismiss this petition.

CHIEF JUSTICE

JUDGE-I JUDGE-EV/T

JUDGE

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