وَالَّذِينَ جَاءُوا مِن بَعْدِهِمْ يَقُولُونَ رَبَّنَا اغْفِرْ لَنَا وَلِإِخْوَانِنَا الَّذِينَ سَبَقُونَا بِالْإِيمَانِ وَلَا تَجْعَلْ فِي قُلُوبِنَا غِلًّا لِّلَّذِينَ آمَنُوا رَبَّنَا إِنَّكَ رَءُوفٌ رَّحِيمٌ [Al-Hashr : 10](59:10) (And it also belongs to) those who came after them, *20 and who pray: ‘Lord, forgive us and our brethren who have preceded us in faith, and do not put in our hearts any rancour towards those who believe. Lord, You are the Most Tender, the Most Compassionate.’ *21*20) In the injunctions laid down up to here, it has been ruled that; in the fai properties there arc the rights of Allah and His Messenger and the Messenger’s relatives an the orphans and the indigent and the wayfarers and the Emigrants and the Ansar and of the Muslim generations which will be born till the. Day of Resurrection. It is this important legal ruling of the Qur’an in the light of which Hadrat ‘Umar(may Allah be pleased with him) introduced the new system in respect of the lands and properties of the conquered territories of ‘Iraq, Syria and Egypt and of the possessions of the previous governments and rulers of those countries. When these countries were conquered; some of the distinguished Companions among whom were included prominent men like Hadrat Zubair, Hadrat Bilal, Hadrat ‘Abdur Rahman bin ‘Auf and Hadrat Salman Farsi, insisted that these should be distributed among the armies who had fought and conquered them. They thought that those properties did not come under “those upon which you have not rushed your horses and camels,” but the Muslims had conquered them by rushing their horses and camels on them. Therefore, except for those cities and territories which surnndcred without the war, all the rest of the conquered (ands carne under ghanimah for which the legal command is that onefifth of the lands and the people be given to the Public Treasury and the remaining four parts be distributed among the soldiers. But this opinion was not correct on the ground that the Holy Prophet (upon whom be Allah’s peace) had not distributed the lands and the people of any territory conquered by fighting in his time after the deduction of one-fifth, like the booty. Two of the most conspicuous precedents of his time were the conquest of Makkah and the conquest of Khaiber. Of these he handed over Makkah intact to its inhabitants. As for Khaiber, according to Hadrat Bushair bin Yasar, he divided it into 36 parts, of which he set aside 18 parts for collective benefits and requirements of the Muslims and distributed the remaining 18 among the army. (Abu Da’ud, Baihaqi, Abi ‘Ubaid: Kitab al-Amwal; Yahya bin Adam: Kitab al-Kharj Baladhuri: Futuh al-Buldan; Ibn Human: Fath a/-Qadir). This action of the Holy Prophet made it clear that the command in respect of the conquered lands, even if they might have been taken by fighting, is not the same as of the ghanimah otherwise he would never have given the whole of Makkah intact to the people of Makkah, and would have set aside exactly one-half of the properties of Khaiber for the common benefits of the Muslims instead of deducting its one-fifth for the Public Treasury. Thus, what was established on the basis of the Sunnah was: In respect of the territories conquered by fighting the ruler of the Muslims has the authority that he may take any decision that he dreams fit keeping in view the conditions of the time. He can distribute them if he so likes but if a territory has an unusual nature and importance, as Makkah had, he can also treat its inhabitants with favour, as the Holy Prophet treated the people of Makkah.
But as the conquests had not yet become comman in the Holy Prophet’s time and separate injunctions in respect of the different kinds of conquered territories had not yet become clearly known to the people, so when big countries were annexed to Islam in the tune of Hadrat ‘Umar, the Companions were faced with the problem whether the territories conquered by force were in the nature of ghanimah or fat. After the conquest of Egypt Hadrat Zubair demanded: “Distribute this, whole land just as the Holy Prophet had distributed Khaiber. ” (Abu ‘Ubaid). About the conquered territories of Syria and ‘Iraq, Hadrat Bilal insisted: “Distribute aII the lands among the fighting forces just as the spoils are distributed. ‘(Abu Yusuf, Kitab al-Kharaj On the other hand, Hadrat ‘AIi gave this opinion: “Leave these lands in possession of the peasants so that they continue to remain a source of income for the Muslims.” (Abu Yusuf, Abu ‘Ubaid,). Likewise, the opinion of Hadrat Mu’adh bin Jabal was; “If you distributed these lands, evil consequences would occur. Because of this distribution large properties will pass into the hands of those few people, who have conquered them. Then, when these people pass away and their properties pass on to their heirs and there is left only one woman or only one man from among them, nothing might remain for the future generations to meet their needs and even to meet the expenses of safeguarding the frontiers of the Islamic State. Therefore, you should so settle things that the interests both of the present and of the future generations are equally safeguarded.” (Abu `Ubaid, p. 59; Fath al-Bari, vol. vi, p. 138). Hadrat `Umar calculated and found that if the territories of `Iraq were distributed, each individual would receive two or three peasants on the average as his share, (Abu Yusuf. Abu ‘Ubaid). Thereupon he arrived at the judicious conclusion that those territories should not be distributed. Thus, the replies that he gave to those who demanded their distribution, were as follows:
‘Do you want that for the people who come afterwards there should remain nothing?” (Abu ‘Ubaid).
“What will happen of the Muslims who cane afterwards when they find that the land along with its peasants has been distributed and the people have inherited their forefathers? This is not at aII just. ” (Abu Yusuf.
“What will be left for the Muslims who cant after you? I am afraid if I distribute it, you would fight among yourselves over water. ” (Abu Yusuf.
“Had I no thought for those who would come afterwards, I would distribute every territory that I conquered just as the Messenger of AIIah had distributed Khaiber.” (Bukhari Muwatta, Abu ‘Ubaid),
“Nay: this is the real estate. I will withhold it so that the needs and requirements of the conquering forces and of the common Muslims continue to be met by it.” (Abu ‘Ubaid).
But the people were not satisfied with these replies, and they started saying that he was being unjust. At last, Hadrat ‘Umar convened a meeting of the consultative body of the Canpanions and put the matter before it. Here are some of the sentences of the speech that he made on this occasion: “I have given you this trouble so that you may join me in shouldering the trust that has been put in me for governing your affairs. I am one of you, and you are the people who affirm the truth today. Everyone of you has the option to agree to or differ from what I say. I do not wish that you should follow my desire. You have the Book of Allah, which states the whole truth. By God, if I have said something which I want to enforce, I have no object in view except the truth. You have heard those who think that I am being unjust to them and want to deprive them of their rights, whereas I seek Allah’s refuge that I should commit an injustice. It would be vicious on my part if I withheld from them something which actually belonged to them and gave it to another. But I can see that no other land after the land of the Chosroe is going to fall. Allah has given the properties of the Persians and their lands and their peasants in our possession. I have distributed the booty taken by our armies among them after the deduction of the khums (one fifth), and am thinking of distributing the rest which yet remains. But as for the lands my opinion is that I should not distribute them and their peasants, but should levy revenue on the lands and jizyah on the peasants, which they should always pay, and this should be the fai for the common Muslims and their children and the armies of today and for the generations yet to come. Don’t you see that we need the troops who should be appointed to protect these our frontiers? Don’t you see that in territories like Syria, AI-Jazirah, Kufah, Basra, Egypt we should station our troops, and they should be regularly for their services? So, if I distribute these lands along with their peasants, how shall we meet these expenses?”
The debate went on for two or three days. Hadrat `Uthman Hadrat ‘Ali, Hadrat Talhah, Hadrat `Abdullah bin `Umar and others concurred with Hadrat ‘Umar, but nothing could be decided. At last, Hadrat `Umar rose and said: “I have found an argument in the Book of Allah, which is decisive in this matter. Then, he recited these very verses of Surah AI-Hashr from Ma afaa’Allahu to Rabbana innaka Ra uf. ur-Rahim, and argued: “The people of this day only are not entitled to receive a share in these properties bestowed by Allah, but AIlah has joined with them also those people who will come after them. Then, how can it be that we should distribute the fai properties which are meant for all, only among the conquerors and leave nothing for the later generations? Moreover, Allah says: ‘…so that this wealth does not remain circulating among your rich people only.’ But if distribute it among the conquerors, it will remain circulating only among your rich and nothing would be left for others. ” This argument satisfied everybody and consensus was reached that aII the conquered territories should be declared fai for the common benefits of the Muslims, which should be left with those who work on those lands and they should be put under revenue and jizyah. (Abu Yusuf Kitab al-Kharaj, pp. 23-27, 35; AI-Jassas, Ahkam al-Qur’an).
Accordingly, the real position of the conquered lands that came to be established was that the Muslim people in their collective capacity are their owners; the people who were already working on them would be recognized as cultivators on behalf of the Muslim people; they would continue to pay the prescribed revenue to the Islamic government on those lands, their rights as cultivators would pass from generation to generation as heritage, and they would even be allowed to sill those rights, but they will not be the real owners of the land, but its real owners will be the Muslim community. Imam Abu `Ubaid in his Kitab al-Amwal has stated this legal position, thus:
“Hadrat `Umar left the lands of the territory of `Iraq in the hands of its people; he levied tax on their lands and jizyah per head on the people.” (p. 57).
When the head of the Islamic government leaves the lands in the hands of the people of the conquered territories, they would be allowed to pass the lands on as heritage and would also be allowed to sell them. ” (P. 84).
In the time of `Umar bin `Abdul `Aziz, Sha’bi was asked: “Is there a treaty with the people of the territory of `Iraq.” He replied: “There is no treaty, but when the revenue was accepted from them, it amounted to a treaty with them. ” (Abu `Ubaid, p. 49; Abu Yusuf, p. 28).
In the time of Hadrat `Umar, `Utbah bin Furqad purchased a piece of land by the Euphrates. Hadrat `Umar asked him from whom he had purchased the land. He replied that he had purchased it from its owners. Hadrat `Umar said: “Its owners are these people, i. e. the Emigrants and the Ansar. ” Thus, `Umar held the opinion that the real owners of those lands were the Muslims. (Abu `Ubaid, p. 74).
Accordingly, the properties of the conquered countries which were declared as the collective property of the Muslims were the following:
(1) Those lands and territories which come under the control of the Islamic government in consequence of a peace treaty.
(2) The ransom or revenue or jizyah which the people of a territory may have agreed to pay, without fighting, in order to seek refuge from the Muslims,
(3) Those lands and properties which the owners might have abandoned and fled.
(4) The properties the owners of which were slain and no survivor was left to own them.
(5) The lands which were not under any ownership previously.
(6) The lands which wen already in the ownership of the people, but were Ieft with their previous owners and they were put under jizyah and revenue,
(7) Estates of the previous ruling dynasties.
(8) Properties of the previous governments.
(For details, see Bada-i as-Sanai, vol. vii, pp. 116-118; Yahya bin Adam Kitab aI-Kharaj. pp. 22, 64; Mughni al-Muhtaj, vol. iii, p. 93; Hashiyah ad-Dusuqi ala-sh-Sharah al-Kabir, vol. ii, p. 190; Ghayat al-Muntaha, vol. i, pp. 467-471).
Since these properties were declared as fai with the consensus of the Canpanions, the jurists of Islam also have agreed in principle on their being regarded as fai. However, they have differed in certain matters, the details of which arc briefly as follows:
The Hanafis say that as regards the lands of the conquered territories the Islamic government (Imam in juristic termnology has the option that it may distribute them among the forces of conquest after deduction of the khums (onefifth), or may leave them with the former owners and put the owners under jizyah and the lands under revenue. In this case the land will be regarded as a ‘legacy for the Muslims. (Badai’ as-Sanai AI-Jassas, Ahkam al- Qur’an; Sharah al-Anayah al al-Hedayah; Fath al-Qadir). The same view has `Abdullah bin Mubarak cited for Imam Sufyan Thauri. (Yahya bin Adam; Abu ‘Ubaid, Kitab a!-Amwal).
The Malikis say that as soon as the lands have been conquered they automatically become a legacy for- the Muslims. It does not need the Imam’s ruling or the willingness of the Muslim soldiers to declare them a legacy. Besides, the well known view among the Malikis is that not only the lands but the houses and buildings of the conquered territories also are, as a matter of fact, a legacy for the Muslims. However, the Islamic government will not charge the rent for them. (Hashiyah ad-Dusuqi
The Hanbalis agree with the Hanafis that the Imam has the option to distribute the lands among the soldiers or to declare them as a legacy for the Muslims, and with the Malikis that although the houses of the conquered territories are included the legacy, no rent will be levied on them. (GhayatalMuntaha which is a collection of the legal rulings of the Hanbali School of juristic thought and a source book for Iegal rulings since the 10th century).
The Shafe’i I viewpoint is that all the transferable properties of the conquered territory are ghanimah, and all the non-transferable properties (lands, houses, etc.) fai. (Mughni al-Muhtaj).
Some jurists have expressed the opinion the if the Imam wants to declare the lands of the territory taken by fighting as a legacy for the Muslims, he must first obtain the willingness of the conquering forces. For this they cite this argument: Hadrat ‘Umar, before the conquest of Iraq, had promised Jarir bin ‘Abdullah al-Banali, the people of whose tribe constituted one-fourth of the army, which fought the Battle of Qadisiyah, that they would be given one-fourth of the conquered territory. Thus, they retained this territory for two or three years. Then Hadrat ‘Umar said to them: “Had I not been responsible and answerable in the matter of division, I would have left with you whatever has been given to you. But now I see that the people have grown in numbers; therefore, my opinion is that you return it to the common people.” Hadrat Jarir acceded to this, and Hadrat ‘Umar gave him SO dinars as a prize. (Abu Yusuf, Kitab al-Kharaj; Abu ‘Ubaid, Kitab al-Amwal From this they argue that Hadrat ‘Umar had decided to declare the conquered territories as a legacy for the Muslims only after obtaining the willingness of the conquerors. But the majority of the jurists do not admit this argument, For in respect of alI the conquered territories no such willingness of the conquerors ever was taken. Only in the case of Hadrat Jarir bin ‘Abdullah this was done because Hadrat `Umar had made a promise with him prior to any collective decision about the conquered lands. Therefore, he had to obtain his willingness only in order to be free from the obligation of the promise. This cannot be cited as a general law.
Another section of the jurists says that even after declaring the lands as a legacy the government retains the option that it may redistribute the lands among the conquerors. For this they argue from this tradition: Once Hadrat ‘AII said to the people in an address: “Had not there been the apprehension that you would fight among yourselves, I would have distributed the suburban lands among you. ” ( Abu Yusuf, Kitab al-Kharaj; Abu `Ubaid, Kitab al-Amwal). But the majority of jurists do not admit this argument either. They are unanimous that when the people of the conquered territory have once been allowed to retain their lands and put under jizyah and revenue, the decision can never be changed later. As for the tradition attributed to Hadrat ‘Ali Abu Bakr al-Jassas has discussed it at length in his Ahkam al-Qur an and proved it to be not authentic.
*21) In this verse although the real object is only to pouts out that in fai not only the people of the present generation but .he Muslims of the later periods and their future generations also have a share, yet, besides, the Muslims have also been taught an important moral lesson that they should never have any malice’ against other Muslims in their hearts, and they should continue to pray for the forgiveness of the Muslims who have gone before them instead of cursing and abiusing them. The bond that binds the Muslims together is that of a common Faith. If a person values his Faith as the most important thing in his heart, inevitably he would be a well-wisher of all those people who are his brethren-infaith. He can have ill-will and malice and hatred towards them in his heart only when the value of the Faith decreases in his sight and he starts valuing other things more. Therefore, it is the requirement of Faith that a believer’s heart should be free from every trace of malice and hatred against the other believers. In this matter the best lesson is given by a Hadith which Nasa’i has related from Hadrat Anas. According to him, once it so happened that for three days continuously the Holy Prophet (upon whom be Allah’s peace) declared in his assembly that a person was going to appear before them who belonged to the dwellers of Paradise, and every time it would be a certain person from among the Ansar. At this Hadrat ‘Abdullah bin `Amr bin `As became curious as to what deeds the person concerned performed on the basis of which the Holy Prophet had repeatedly given the good news of his admission to Paradise. Thus, he made an excuse and spent three consecutive nights in his house to see how he performed his worship, but during the night he did not sec any thing unusual. At last, he asked him directly as to what special acts and devotions he performed on the basis of which the Holy Prophet had given the great good news about him. He replied: ‘You have seen how I perform my worship, but there is one thing which might have carved me this reward: I do not harbor any malice or evil design against any Muslim, nor fuel jealous of him on account of any good that Allah might have bestowed on him. “
This does not mean that if a Muslim finds an error in another Muslim’s word or deed, he should avoid calling_ it an error. Faith dces not demand this. Rut to describe an error as a mistake on the basis of an argument and to state it to be so in a polite and decent manner is one thing and toharbour malice and hatred and resort to invective and abuse quite another. It is wrong if one resorts to this in respect of one’s contemporaries, but worse if one resorted to this in respect of the dead people of the past. For the person indulging in such a thing would be a most filthy person for he is not even inclined to forgive the dead. And the worst would be that a person should resort to invective and abuse in respect of those illustrious people who had done full justice to the Holy Prophet’s companionship in a period full of extreme tribulations and hardships and had struggled with their lives to spread the light of Islam in the world and enabled us today to be blessed with the Faith. One can hold and opinion if one thinks that such and such party of them was in the right and such and such in the wrong in its viewpoint in the differences that arose between them, and can even express his opinion in a reasonable and decent way, but to resort to exaggeration in support of one party so that the heart is filled with spite and hatred against the other is an evil which no God-fearing person would commit. Those who indulge in such a thing against the clear teaching of the Qur’an, generally present the excuse that the Qur’an forbids to bear malice towards the believers and the ones towards whom they bear the malice were not believers but hypocrites. But this allegation is even worse than the sin in defence of which the excuse is presented. For these very verses of the Qur’an in the context of which Allah has taught the Muslims of the later generations not to bear malice towards the Muslims who have gone before them and to pray for their forgiveness, arc sufficient to refute this allegation. In these verses three groups have been mentioned, one after the other, who are entitled to receive a share in far. the Emigrants, the Ansar and the Muslims coming after them; and the Muslims of the later periods have been enjoined that they should pray for the forgiveness of the Muslims who had embraced the Faith before them. Obviously, in this context those who had embraced the Faith before them could not be any other than the Emigrants and the Ansar. Then Allah in vv. 11-17 of this Surah AlHashr itself has. also told us who were the hypocrites. This makes it absolutely clear that the hypocrites were the people who had encouraged the Jews on the occasion of the battle of the Bani an-Nadir; as against them, the believers were those who were on the side of the Holy Prophet (upon whom be Allah’s peace) in this battle. After this, can a Muslim who has any fear of God in his heart, have the boldness to deny the Faith of the people to whose Faith Allah Himself has borne the testimony
Imam Malik and Imam Ahmed arguing from this verse, have expressed ‘ the opinion that there is no share in fai for the people who malign the Companions of the Holy Prophet. (Ibn al-Arabi, Ahkam al-Quran; Ghayat al-Muntaha). But the Hanafis and the Shafe’is have not concurred with this, the reason being that Allah while declaring the three groups to be entitled to fai, has praised a conspicuous quality of each group but none of these qualities is a condition which may determine whether a group should or should not be given a share in fai. About the Emigrants it has been said: “They seek Allah’s bounty and His goodwill, and are ever ready to succour Allah and His Messenger. ” This does not mean that an Emigrant who lacks this quality, is not entitled to have a share in fai. About the Ansar it has been.said: “They love those who have migrated to them and entertain no desire in their hearts for what is given to them and prefer others about themselves even though they be needy themselves. ” This also does not mean that a member of the Amar who has no love for the Emigrants and who is desirous of getting for himself what is being given to them, has no share in fai. Therefore, the quality of the third group that “they pray for the forgiveness of those who embraced the Faith before them and they pray that they should not have any malice in their hearts towards any other believer”, is also no condition to make one entitled to fai, but this is in praise of a good quality and an instruction as to what should be the attitude of the believers towards the other believers and especially in respect of those believers who have gone before them