' GUL MUHAMMAD KHAN, C. J.-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 (p. b. u. h.) and, therefore, is repugnant to the Injunctions of the Sunnah of the Holy Prophet (p. b. h.).
Section 2(b) referred to above reads as under:- " 'Gambling' 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 imprisonment and fine.
' The case, in brief, of the petitioners is that as the Holy Prophet (p. b. h.) had allowed betting on horses with a Mohallil {{URDU TEXT}} (to be discussed in derail later), making it an offence under the corresponding 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 norse 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 (p.b.h.) to say that horse was a favourite animal of the Holy Prophet (p.b.h.) himself and that according to him a horse is said to be carrying blessing in its forehead till the Day of Judgement. 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 (p.b.h.) and that horse-racing is not only a popular sport but is thought necessary for the purpose of health, stamina and Jihad. The learned counsel referred also to classical Arab literature in this behalf to show that the Arabs sometimes that 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 Jebad, the religion of Islam did not place any undue restriction on horse-racing. He . Referred to Surah al-Anfal, (8 : 60), Surah al Dial (100: 1-5) which ordain that horses are meant for Jelled 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 Mr. A. K. Brohi submitted 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 Nos. 2 and 3 also submitted that the racetrack is the only place where the speed, stamina, endurance and courage of a horse can be guaged properly and in the absence of constant tests on a race track, a horse becomes a doubtful commodity and cannot fetch a good price. In 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.
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. Is 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 minithum. The learned counsel also referred to the sozio-economic 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 as sought to be shown that a substantial reduction has taken place in the stake/prize money p.Er year as the same has fallen from 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 fro 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 up to 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 (Ulema, 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 of the provision is manifest on the face of it.
7. The case of the petitioners is that the 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 permissible basis, free from- illicit practices, the Race Clubs have framed Betting Rules, where 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 Government Remount Department are leaed 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 foulplay.
The officials and stewards of the club go in a car alongwith the horses so that no Jockey is guilty of foulplay.
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 participating 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, or on a computer called totalizator. As the number of book-makers is large the betting public gets good odds due to competition among them. The Totalizator calculates efficiently and correctly the number of bets laid on individual horses, totals up an 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 bets on the winning horse. The system is called para-mutual 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 Fatawa of Mufti Ghulam Sarwar Qadri, (M. A. Islami University, Bahawalpur) of Jamie 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), Volume, VII, pages 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 Wither 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.) Muhammad Yousaf Khan, Ex-Director, Remount, Vety, and Farms, Government of Pakistan, stating that though it was for sometime 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 suppoted the fact that the Holy Prophet (p. b. u. h.) allowed and encouraged horse-racing and that the Remounts 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 taces here.
11. The learned counsel also relied on a saying of the Holy Prophet (p. b. u. h.) in 'Nail-ul-Autar', Volume VIII, page 81, which states that the Holy Prophet (p., b. u. h.) 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 `Mohallil' is not gambling according to the Holy Prophet (p. b. u. h.) 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 (p. b. u. h.) (page 47 of the report of Provincial Government; "How to encourage Horse-Breeding" which shows that the Holy Prop let (p. b. u. h.) arranged a horse-race of trained horses up to Saniatul Wida{{URDU TEXT}}, and those of the untrained horses from Saniatul Wida {{URDU TEXT}}to the mosque of BanI Zaraiq {{URDU TEXT}} Nail-al-Autar, Volume 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 (p. b. u. h.) 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 (p b. u. h.) observed-that in a bilateral betting o the horses of a race, if a third horse of equal type be introduced, it will take the race out of the prohibited betting.)
12. Reliance was also placed on extracts-from the Essential Hanafi Handbook of Fiqh by Maulana Yusuf WO Ali Al-Amriki, pages 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 following rules apply ;
(1) If the prize is to come from one side specifically (for example one of the two contestants says to the other, 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).
(1) 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 1 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 it Zaid wins then Umar and Khalid will 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 beaind 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.
(1) 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 Al-Fiqah Ala Mazahib Al-Urba, Vol II (Urdu Edn., 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 {{URDU TEXT}} as used in various sayings of the Holy Prophet (p. b. u h.) 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 wish and without betting under the direct authority or the Holy Prophet (p. b. u. h.) 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 (p. b. u. h.) where it is stated that excepting tent-pegging, camel-racing and horse-racing betting on everything else is illegal. The Holy Prophet (p. b. u. h.) is stated to have observed that even angels hate and call curse, on those who bet except on horse-racing, camel-iacing and tent-pegging. The valid way of betting on horse-racing and other sports is also given there 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- Qayyim (Al-Faroosia to state that Ibn-e-Qayyim 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 Timidly, the Additional Advocate-General. He first of all, raised a preliminary objection about the maintainability of this petition. He denied if the petitioners were horse-breeders or had been selling horses to Pakistan Army or abroad. He also denied the allegation that livelihood of a 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 regulated it according to Injunctions of 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 appalls 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 Qur'an 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 them into race clubs 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 that the exceptional permission granted by the Holy Prophet (p. b. u. h.) 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 '1 ars-lil-Rahman' and not for 'Fars-lil-Shaitan'. He also referred to the concept of `Mohallil' and stated that as an exception was created to legalise what was the necessary conditions and qualifications attached to it are to be strictly applied and complied with. According to him, norses 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 (p. b. u. h.) never allowed the spectators to lay bets on horses and that he himself also did not lay any bets 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 losing with the introduction of Totalizator, the system is to be termed as `Mohallil', so that it falls in the ambit of Islam. He vehemently controverted the suggestions of the petitioners that tie Holy Prophet (p. b. u. h.) had ever made any bet on horse-races in the sense in which we understand today and termed it as an indecent accusation.
15. 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-Farooisa'. And abided by the view of the majority that betting on horse-racing with the addition of the third horse as `Mohallil' 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 to 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 (p. b. u. h.) 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.
16. We had also requested a number of Juris-consults to appear and assist us in the determination 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 not 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 Qur'an 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 learned Mufti agreed that it is the duty of the Muslims to breed 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 and, therefore, that aspect is to be eradicated or at least discouraged.
18. He also referred to a saying of the Holy Prophet (p. b. u, h.) in this regard. He further submitted that the' present day horse-race was not only as pure and simple gamble but also a source of 'Haram' subsistence. . He cited verses 90 and 91 of Suiah Maida to state that all that was a work of the Satan and, therefore, the society has to be saved of the same. He also produced photo copies of few features published by the daily 'Nawai-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 (p. b. u. h.)., 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 'Har remains always 'Haram' its justification could only be I n. 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 to 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 (Was the betting and horse racing prevalent in the time of the Holy Prophet (p b. u. h.) 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 reformation 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 (p. b. u. h). However, that was a unilateral bet in which the prize was given to the wining 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 (p. b. u. h.) which had been relied on by the petitioners and found notion 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 King or Ruler or other important persons as the Holy Prophet (p. b. u. h.) had done in his time.
20. He also referred to the Hadith about `Mohallir and agreed with it but doubted if such betting was required in the changed conditions of the. Present times. In is view the place of horse in war and Jilted has been taken by tants, guns, aeroplanes and the fighters and there was thus no need to breed or train horses. Hatiz Sahib thinits [no the horse-racing has been taken over by the snoods and aristrocrats not for waging war against toe enemies of Allah but to Hold themselves out as nobles or notables and they are assisted by 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 `Moballtl' as referred to in one of the sayings. Of the Holy Prophet (p. b. u. h.). According to him, a Race Course was a gamoling 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. 90, 91 of Chapter V a restriction must be placed on such sort of betting.. He relied on a portion of the Book Albahrul Raiq by Allem Ibn-e-Nujaim (died 970 H.) where he stated that {{URDU TEXT}}and the saying of ."the Holy Prophet (p. b. u..h.) 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 slop it. {{URDU TEXT}} The doctrine is known as {{URDU TEXT}}by the Jurists of Islam. The learned Scholar 'applied this doctrine 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 'Harem' so as to save Abe people from that: He also referred to the action of Hazrat 'Umer 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 scholar 'admitted the need of the breeding and training of tke horses if needed for war purposes. And submitted that it should be done at the instance of the Government, as the colonial Government did through grant of lands for horse breeding. He further stated that the horse racing was not the only way of breeding and training and any restriction thereon could not be a cause of the extinction of the horse specie. Reference was made by him to Nail-al-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 foi sports like gambling etc. Were the horses of Satan and, therefore, their training and breeding should rather be stopped. .
20. 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 breed and trained today for Jihad or for the purpose for which it was done in the days of the Holy Prophet (p b.u.h.). 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 nom, reliance by the petitioners on the verses of the Holy Qur'an 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 (p, b. u. h.) that the horses were of three types ; one which is maintained for Jihad and the prize-of which is 'Ajar' and other which is brought up for sport he 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=eHajr Asqalani, Vol. 14, pp. 160-161-, Nawawi, Sharah Sahih Muslim, Vol. II, p. 121 and 'Nail-al-Autar', `Sharah Muntaqal 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 `Mohallir 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 Syahuddin Kaka Khali also brought in the doctrine of `Sadde-Dharai' and relying on 'Muwafqat Ashshatibi', Vol. 11, pp. 173, 371, 375, 363, 364 and 270 stated that whenever a motive to do a thing is only to please oneself and not to obey an Injunction of Almighty Allah, 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 w111 amount to defiance of the law-giver and contrivance adopted by him will betaken '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 Qur'an. He, therefore, recommended 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 (e) and stated that the Allah Almighty has referred to the care and attention that Hazrat Suleman' (p. b. u, h.) had given to his horses. He also referred to verse 8 of Surah.Anfal in that regad. The other sayings of the Holy Prophet (p. b. u. h.) regarding the blessings and good luck in the forehead of the horses horse- racing conducted under the order of the Holy Prophet (p. b. u. h.) 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 (p.b.u.h.) personally took part in the horse-racing and also placed bet as stated by Hazrat 'Abdullah bin Umar. Another saying of the Holy Prophet (p.b.u.h.) that he was pleased when his own mare 'Sabah' won therace 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 lbn-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 Propnet (p.b.u.h.) termed a man as sinner if tie forgot Qur'an after remembering it by heart as also the archery. Another saying of the Holy Prophet (p.b.u.h.) through Abdullah-bin-Urnar was noted where the Holy Prophet (p.b.u.h.) is said to have observed that Allah Almighty liked horse-racing, archerythe most.
24. Dealing with the need, necessity and also the liking of the Holy Prophet (p.b.u.h.) for horse- racing, the learned scholar said that the very object of Islam was to do away with the 'Munkarae and 'Sayyiat' and to enforce and maintain the `Hasanat' and Maaroofat'. He further stated that Islam wanted to filter away the pollution that had been mixed 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 (p.b.u.h.) 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 (p.b.u.h.) 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 (p.b.u.h.), through Abu Huraira that if a third horse is introduced, it will take bilateral betting out of the discription of gambling is authentit. He also referred to the conditions of a valid race with `Mohallil' as reported by Imam Saeed Bin Almusayyab (5 Hijri to 93 Hijri) from the Holy Prophet (p.b.u.h.) that there is no halm 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 liable to pay nothing if he loses. He also referred from Muwatta Imam Malik translated by Al-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 (p.b.u.h.) 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 be explained the saying of the Holy Prophet (p.b.u.h.) 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 `Mohallir 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 p.Urality 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 scaotai also sent his views on the point in writing. He also mentioned three verses from , Surahs Al-Adiat, Al- Anfal and AlHashar about the horses and also the saying of the Holy Prophet (p.b.u.h.) that there was blessing and good luck in the forehead of the horses. He further referred to three sayings of the Holy Prophet (p.b.u.h.) about horse-racing which are relied upon by the Ahl-e-Sunnat School of Thought and ten sayings of the Holy Prophet (p.b.u.h.) as appearing in the books of 'Shiahs' The first three showed that according to the Holy Prophet (p.b.u.h.) 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 (p.b.u.h.) arranged the horse-race and gave silver coins as prize. The Sib referred to a permission given to Abu Qatada by the Holy Prophet (p.b.u.h.) to have a race contest of the horses after the enemy had retreated. In this context the Holy Prophet (p.b.u.h.) led all of them. The 6th saying refers to a race of trained-horses. It is reported that the Holy Prophet (p.b.u.h.) arranged a race from `Hafya' to the mosque 'Bam Zuraiq'. The 7th saying of the Holy Prophet (p.b.u.h.) shows that the angels hate betting contests and curse those who participate in them except for races of horses, cameis, elephants and in archery and tent-pegging. Reference in this saying is also made to the norse-race in which the Holy Prophet (p.b.u.h.) 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 Holy Prophet (p.b.u.h.). In the 9th also the Holy Prophet (p.b.u.h.) had arranged horse-races himself and given prize to those who led. The 10th saying refers to another horse-race wherein the Holy Prophet (p.b.u.h.) had reserved seven coins of silver for the winner.
37. The learned scholar next explains the viewpoint of the 'Shia' Jurists and states that all of the 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 `Mohallir participated therein or not. He therefore, concludes that the horse-racing was carried on in the time of the Holy Prophet (p.b.u.h.) with his permission and he himseif also participated some times.
' The rules conferring validity on horse-racing as enunciated by him are -
(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 Qur'an which declares it a war against Allah, the Holy Prophet (p.b.u.h.) and `Aimma Tahireen' with particular reference to the horse-race in Pakistan he states that it was `Anil-e-Shaitan (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 cannot 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 on the society and had been declared not only indecent in the Quran but as Anil-e-Shaitan'. He referred to Wilkelm Stekel, the renowned socialogist, according to whom gambling is habi forming and an 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 on to say that gambling is a source of crime and political corruption and greedy and criminals are befooling simpler people in the vain hope of making money. 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 Government 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 there 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 Malikete Jurist Aldardir who opined that horse-raci g is prohibited because it is a source of gambling and gaming and that the Holy Prophet (p.b.u.h.) 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 arise, despite the fact that the Holy Prophet (p.b.u.h.) had permitted unilateral betting. He added that the prize was either given by the Holy Prophet (PBH) himself or it was fixed by any one of the spectators but no betting was ever permitted inter se the non- participants. No bilateral bettii,g was permitted with or among non-participants for the purpose of financial benefits and the motive always was to encourage bleeding 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 Pro het (p.b.u.h.) about the participation of `Mohallil' in a race. He argued that how was the introduction of a 'Mohallil' possible when the Holy Prophet (p.b.u.h.) had called a curse on Mohallil in a tradition reported by Abu Daud, Tirmizi, Nisai. Ibn-e-Maja, Darmi etc. Which is as under :-- {{URDU TEXT}} ' Reference was also made to Musnad Ahmad (83: 2) where Hazrat All narrated that the Holy Prophet (p.b.u.h.) 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 narration of Hazrat Ali is also about calling curse on 'Al-mohallil wal l`1 ~hallit lahu', Vol. 11, page 87 of Musnad Ahmad. Similar traditions though different narrators at pages 93, 107. 121, 123, 156, 450 and 451 have also been referred to. In this view of the matter, he argued that the Holy Prophet (p.b.u.h.) 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 Nawtawi 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 had been relied on by and 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 `Mudall is' 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 ersion 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 withheld 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 Hafiz and generally the views of the juris-consults, first five of whom are from avoided the names of such narrators whom he thought were considered unrelialbe. In this view of the matter, Mama Noori opined that the tradition did not originate from Abu Huraira. He also quoted Ibn-aQayyim who also thought that the report by Zuhri was weak. Saeed-binBashir who had narrated Zuhri is also stated to be unreliable.
32. Lbn-e-Abi Hatam is said to have reported from his father about Sufian-bin-Hussain that the tradition of Mohallir could not be the saying of the Hal Prophet (p.b.u.h.). Ibii-e-Qayyim thought that the tradition of may be of Saeed-bin-Bashir. According to Allama Noori, Zuhri. Sufian-bin-Hussain, Saeed-bin-Bashir and Waleed-bin-Muslim are all weak narrators. With some of them being Modallis. Even Abu Daud is said to have observed that ten of the traditions reported by Waked ft can Malik had no root: Zahahi also thought that when Waleed reported from Ibne Juraij or Auzai by `Unho, Unho' the tradition was not reliable as he used to avoid the names of certain known Lars.
Reference is made to Meezanul-Al-Aitidal, 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 Msat is also the same. Ibn-e-Numair thought that he was Munkarul 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 'Ulema' and the Juris-consults discussed in paras. 9 to 12 and 17 to 32 above. In the Tatwa' of 55 Ulema' produced by the petitioners, two of them termed the betting on horse-racing as{{URDU TEXT}} 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 way undoubtedly {{URDU TEXT}} and so not permitted {{URDU TEXT}}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 Muhammad Shafi that race with a 'Mohallil'{{URDU TEXT}} was valid. The same is the view of Mufti Ghulam Sarwar Qadri and Yousaf Talal Al-Amriki, Allama Nasirul Ijiihadi (of the Shia sect) generally agreed with the above 'Fatawa' and added that winner may also be given prize by the State, or r y a nonparticipant. Professor Afar Hassan Zafar
(Shia) was of the view that betting in horse-racing, archery and camel-racing was allowed according to the Holy Prophet (p.b.u.h.) and the money could he 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-tacing 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 'Hararis' and this exception to the general rule is permitted for the purpose of Jehad.
34. The view of juris-consults' first five whom are from different denominations of the `Hanafi School' and fifth a Shia, are also summarized in the following table ;- {{TABLE}} ANSWERS OF THE JURIS-CONSULTS APPEARED BEFORE THE COURT Questions Mufti Hafiz Maulana Mohd. Salah- Siah- Hussain ud-Din ud-Din Naeemi Yusuf Kaka- khel Maulana Maulana Maulana Sadr-ud-Din Riazul Tajuddin Arrifai Hassan Haidri Noori 1 2 3 4 5 6
1. Was horse- Yes Yes Yes Not only Jehad but Jehad Jehad Jehad also physical Jehad Jehad exercise. Racing prevalent Yes Yes Yes in the days of Holy Prophet (p.b.u.h.) ?
1. Purpose of horse-racing then
3. Was betting Yes Yes Yes but Yes Yes Yes on horses preva not with lent then ? Money 4.
5. No, Yes if they No
6. Are partners with the participants.
7. Rho r )
8. Prohibi- Good if it is Prohibi- Prohibi-
9. Ted) for horse ted ted 10. breeding and training
11. No, No,
12. r1.7.
13. Prohibi Prohibi-
14. Ted ted
15. Eb I j.
16.No Yes No No
17. Can non-participants bet ?
18. What about nature of gambling in horse-racing ?
19. Is betting 20. necessary for horse-breeding and training ?
4. Yes
4. Yes Yes Yes
4. Yes Yes Yes Yes Yes Yes
4. Yes Yes
4. Prize for the winner by the State or nonparticipants.
5. Is Uniteral betting valid 9 MONO 1 2 3 4 5 6 7
9. Is bilateral 10. betting valid ?
11. Is bilateral betting valid with Muhallil ? Prohibi- Prohibi- Prohibi- Prohibited Prohibi- Valid ted with- ted ted without ted even out without without Muhallil without Muhallil Muhallil Muhallil Muhallil Valid Valid Valid Valid Void Valid but may but may but may be banried be be on pre- banned banned ventive on pre- on pre-basis ventive ventive basis basis
11. What about nature of betting in horse-racing today ?
12. Do the circumstances to- day require banning it ?
Satan's Satan's Satan's Good deed Satan's Valid work work work work but may be stopped on preventive measures Yes Yes Yes Yes Yes Yes {{TABLE}}
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 misleading 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 the Holy Prophet (p.b.u.h.) yet the purpose was not to make money but to encourage Muslims to have better horses for the purpose of Jebad. 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 `Mohallir 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. Admitted for the supreme purpose of `Jehad' unilateral betting on horse-races or prizes 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 (1) 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 Government, examine and decide the question whether or not any Jaw or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.), hereinafter referred to as the Injunctions of Islam."
38. The plea raised is that as the 'Tradition' relied on 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 touchstone of an Injunction or a dictate of the Qur'an and Sunnah and not on the basis of a suggested method of doing a thing in a particular situation, in a legal (Sharai) way. To explain it further, they submitted that the Qur'an and the Holy Prophet (p.b.u.h.) 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(h) is in accord with the Sham. On the other hand, if the Holy Prophet (p.b.u.h.) permitted bilateral betting on horse-races, with the introduction of a third horse of `Mohallir under certain conditions, it is not an Injunction of Islam but may only convert the act into {{URDU TEXT}} (indifferent, permitted, not prohibited). In their view, therefore, the jurisdiction of the Court extenus only to such provisions which are either mandatory or prohibitory in nature and not those which are merely recommended, permitted, indifferent or not prohibited. Tne stand taken on behalf of the petitioners was that all the {{URDU TEXT}}given in the Qur'an or found in the Sunnah of the Holy Prophet (p.b.u.b.) 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 them caning and import of the words `Injunctions of Islam'.
39. According to W. C. Burton : Legal Thesaurus, p. 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 particular thing. (Jolus James : Strouds' Judicial Dictionary, Vol. 3, p. 1369).
' The World Book Dictionary, p. 1087 says an Injunction is a command, order while according to the Lexicon Webster Dictionary, Vol. I, p. 495 it is the act of ordering or directing ; a command, admonition o precept.
' The Oxford English Dictionary, p. 301, Vol. 5, says `Injunction is the action of enjoining or authoritatively directing; an authoritative or emphatic admonition or order.
'Injunction' {{URDU TEXT}} Command, order, bid, enjoin. {{URDU TEXT}} He commanded, ordered, bade, or enjoined, him to do that which behoved to do. He counselled or advised him (Arabic-English Lexicon, Part 1, p. 97). rl to order, command, bid, instruct, commission, charge, entrust. (Cowan : A Dictionary of. Modern Written Arabic, p. 27). {{URDU TEXT}} {{URDU TEXT}}Judgment, valuation; opinion, decision, verdict, regulation, rule, condemnation, conviction, administration of justice, ordinance, decree, etc. (Cowan : Dictionary of Modern Written Arabic). ; According to Imam Raghib 'Amoor' plural of 'Amr' means obligin somebody to do something and it would encompass acts as well as utterances.
40. The word 'Islam' Implies submission or obedience to the commands of Allah and this obedience should be exclusive to God alone and no to be shared with oth-r 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. Thahatt 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 lobe permitted or prohibited by 'Shar' are permitted (ala al-lbahah) before coming of Shar, as Ibahah (permission)' is substantial (As1) 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 `lbahah' is displaced only by definite evidence from `Sharia' to the contrary. However, an act may move from being merely permissive or allowed through a Qur'anic 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 ie. 'kutiba' (prescribed) positively necessary (II : 183, 178), 'Aqimu' (establish B a directive as in II : 43 or negative. Certain foods are prohibited {{URDU TEZXT}} in strong terms as in V : 3. `Nahy' is used in XVI : 90 for lewdness, abomination and wickedness. 'La Yahillu' (avoid) is used in verses V : 88 calling upon believers to abstain from strong drink, games of chance, Idols and divining by arrows with reasons as given in the following vase :- {{URDU TEXT}} 0 ye who believe ! Make not unlawful The good things which Allah Hath made lawful for you, But commit no excess : For Allan loveth not Those given to excess. {{URDU TEXT}} Eat of the things which Allah bath provided for you, Lawful and good : but fear Allah, in'Whom ye believe.
' Another way of construing is by the negative of the imperative such as in III : 130 or 'la khayra' (no good) in IV:
114. There are then declar itory or informatory provisions as `khyr' (good) in II : 280, LVIII : 12 on II: 220 of lesser intense quality of approval are phrases such as 'la junaha alaykum' (no blame on you), 'laysa harajun' and 'laysa junhun' in II : 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 Qur'an. However, equally important is another command of Almighty Allah requiring of believer to obey the Holy Prophet (p.b.u.h.) as in IV : 59, IV :
80. It is ordained in Surah Hashr (LIX : 7) that you may take whatever is given to you by the Holy Prophet (p.b.u.h.) but refrain from doing what you are asked not to do. Thus, it is not only the Injunctions of Qur'an bu also the Sunnah that are enjoined to be followed. We have seen that th Qur'an invests certain acts with 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 b inferred or is implied or requires exemplification. This is the contex in which Muslims are called upon to obey the Prophet. See IV : 64, IV : 69, XXIV : 62 in which he is described as bringing men from darknes to light and LXV : 1 ; in which he is stated to have a greater claim o 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 (H : 213), and this is the context in which he is described as the excellent example (XXXIII : 21).
42. As said above, these Islamic values. Or `Ahkam" are to be found primarily in Qur'an and besides being confirmed in the Sunnah of the Holy Prophet, the Sunnah alone sets out other `Ahkam' of human acts. General references in Qur'an support the basic presumption of 'ibahah' or permission regarding any act or relationship and, thereafter, specific references are made to specific acts and relationships which are stated t be good or bad. There are then degrees both in the good and the bad and a value attached to an act, by the Qur'an is frequently qualified by reference to the circumstances surrounding it. For example, commission o certain acts which are disapproved or prohibited in very strong terms b the Qur'an 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 Qur'anic value isolation. To understand these Qur'anic values in this correct perspective, thereby, invoking in believer singly or collectively, the very necessary impulse of obedience towards the 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 th 'Ahkam' (Injunctions) broadly in five categories. They are:
(i) Obligatory {{URDU TEXT}} whose performance is rewarded and whose omission is punished.
(ii) Recommended (Mandoob{{URDU TEXT}} are those whose performance rewarded but whose omission is not punished.
(iii) permitted or indifferent {{URDU TEXT}} for which there is neither reward nor . Punishment for their performance or omission.
(i) 'disliked'{{URDU TEXT}} whose omission is rewarded but whose commis sion is not punished.
According to Hanfia the prohibition estabiished by uncertain authority {{URDU TEXT}} is called `Makruh'.
(ii) 'Prohibited{{URDU TEXT}} whose omission is rewarded and whose commission is punished.
'Harem' according to Muhammad Abu Zahrah, is an action prohibited by the law-giver categorically and posai irrespective of the fact that the authority{{URDU TEXT}} which ma.Ses the action 'Harem' {{URDU TEXT}}s decisive{{URDU TEXT}} or uncertain, conjectural {{URDU TEXT}}
43. Some of the jurists have given other finer sub-divisions als but the above will sutfLe so far as the present context goes. All this categories are always subject to toe following overriding provisions of Qur'an{{URDU TEXT}} as in 2 : 183, 5 : 3, 6 : 119, 6 : 145 or 16: 106 and 6 ; b2, 7 : 42, 23 ; 62, 2 : 286, 65 : 7, 2 :
23. Thus, the eating, of a for- bidden food is prohibited normally but it can be permitted, even recom mended 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 ma be interrupted or even prohibited, if by its performance by the group is one lot, their safety was gravely endangered. Again, even the situations in respect of which an injunction is given has also to be understood. Explaiaing this aspect, S wnen asked what sort of 'Mubah' is prohibited, and this prohibition is different from 'Hamm' (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 refeirs 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 that it leaves uncovered a certain part-the private parts-but if the private parts were covered by the cloth, the prohibition 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 (p.b.u.b.) prohibited halting for a certain specific reason for be said. 'It is the shelter of insects and a passage for snakes', not because halting is forbidden (Muharram), He also prohibited halting on the road if the road were narrow and crowded, for if one halts (for rest) one would encroach upon other's right of passing."
44. Consequently, before taking any action a Muslim must ascertain whether any value is attached to the intended act say positively or negatively and also the underlying reason in terms of Islamic norms. This requiremetr` cuts across all lines of demarcation between the so-called religious or spiri tual or individual on the one hand and the secular, temporal or collectiv 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 someone or theft, by affecting the heir as well as 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 an action by the society or the community, which may be a Government or a State. Qur'an clearly contemplates some such organisations for its Divine purpose.' See III : 103; (hold fast together) III : 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 se out in VIII : 53 and XIII :
11. In XXIV : 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 verse 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 (p. b. u. h.) in all the spher of his life, whether called religious, secular, temporal, or spiritual in hi capacity both as an individual or 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 worldl 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 Qur'an 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 De 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 it. However, the argument raised on behalf of the petitioners was that the Holy Prophet (p. b. u. h.) excluded betting on horse- racing, arrow contests and camel-racing. The question whether this permission was for a particular purpose or a situation or in general is to be considered later. Suffice it to say here that if the Holy Prophet had excluded bating 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-Darar {{URDU TEXT}}
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. Qura'n says in Surah Nisal (IV : 58-59) {{URDU TEXT}} "58. Allah doth command you To render back your Trusts To those to whom they are due ; And when ye judge Between man and man, Then ye judge with justice : Verily how excellent Is the teaching which he giveth you !
For Allah is He who heareth And seeth all things. {{URDU TEXT}}
59. 0 Ye who believe !
Obey Allah, and obey the Apostle, And those charged With authority among you. If ye differ in anything 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 havi the authority, to deliver what is due to whomsoever and to act justly, fairly and equitably in doing so. Qur'an then addresses the individual and requires of them to obey Allah, His Prophet (p. b. u. h.) and those who rule or are vested with authority but it also entitles them, that if the 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 UlilAmr) 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 (p. b. u. h.). In the modern terminology we may call it separation of judiciary from the executive and conferment of power o judicial review against administrative or legislative acts.
48. The situations discussed in the previous two paragraphs thu 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 legislature has no authority to deprive the petitioners of some thing which the Holy Prophet (p. b. u. h.) conferred on them in the for of permission to bet on horses with the addition of a `Mohallil'. This raises a very important question i. e., whether the permission is absolut and if the State has the authority to take away something which the Holy Prophet (p. b. u. h.) gave and which the petitioners are willing to enjoy. As said above, it is ordained in Surah AI-Hashr (LIX : 7) that you ma take whatever is given to you by the Holy Prophet (p. b. u. h ). Thi 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 sam level. In this view of the matter, if we find that the Holy Prophet (p. b. u. h.) 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 t denude a person of that right, under an equal or a higher authority. 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 Judgement, 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 (p. b. u. h.) quoted in this regard are as under : {{URDU TEXT}} Narrated Abdullah bin Umar Allah's Apostle said, "Goodwill remain (as a permanent quality) in the foreheads of horses till the Day of Resurrection " {{URDU TEXT}} ' Narrated Urwa bin' Al-Ja'd : The Prophet said, "Goodwill remain (as a permanent quality) in the foreheads of horses till the Day of Resurrection." {{URDU TEXT}} ' Narrated Anas bin Malik Allah's Apostle said, "There is a blessing in the foreheads of horses." {{URDU TEXT}} ' Narrated Urwa Al-Bariqi : The Prophet said, "Goodwill remain (as a permanent quality) in the foreheads of horses (for Jehad) till the Day of Resurrection, for they bring about either a reward (in the Hereafter) or booty (in this world). {{URDU TEXT}} ' Jarir bin Abdullah reported : I saw the Holy Prophet twisting the forelock of a horse with his finger and saying : As for horses, fortune, reward and booty are tied up with their forelocks up to the Resurrection Day.
' The contribution of 'a horse in Jehad according to the Holy Prophet (p. b. u. h.) was twice over the Mujahid and so a horse was given double the share of a 'Mujahid' on foot. {{URDU TEXT}} ' Narrated Ibne Umar : Allah's Apostle fixed two shares for horse and one for the rider (from the war booty).
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 inds of horses as in some other Traditions sin is also attributed to them. {{URDU TEXT}} ' Narrated Abdullah bin Umar : I heard the Prophet saying :. "Evil omen is in three things : The horse, the woman and the house. (Bukhari Kitabul Jehad, Vol. II, p. 74). {{URDU TEXT}} {{URDU TEXT}} ' Narrated Sahi bin Sa'd Sa'idi Allah's Apostle said, "If there is any evil omen in any thing, then it is in the woman, the horse and the house." (Ibid., p. 75)
Further, the Holy Prophet (p. b. u. b.) did not like a particular kind of horse as in the following Tradition {{URDU TEXT}} ' Abu Hurairah reported that the Prophet disliked Shikal in a horse and Shikal means that a horse should have got whiteness in its right foot and in its left hoof, or in its right arm and left hoof.
(Muslim).
51. There also appears to be no controversy 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 Qur'an says in Surah Adiyat as under :- {{URDU TEXT}} ' By the (Steeds)
' That run, with panting (breath) {{URDU TEXT}} ' And strike sparks of fire, {{URDU TEXT}} ' And push home the charge in the morning {{URDU TEXT}} ' And raise the dust in clouds the while, And penetrade forthwith Into the midst (of the foe)
En masse ; (100 : 1-5)
51. The importance of the horse is also quite clear from another verse of the Holy Qura'n (Surah Anfal, verse 60 which is in the following words :- {{URDU TEXT}} ' Against them make ready Your strength to the utmost Of your power, including Steeds of war, to strike terror Into the hearts of) the enemies, of Allah and your enemies, And others besides, whom Ye may not know but whom Allah doth know. Whatever {{URDU TEXT}} ' Ye shall spend in the Cause of Allah, shall be repaid Unto you, and ye shall not Be treated unjustly.
(8 : 60).
53. The horse is mentioned in Qur'an in some other verses also and it will be useful to reproduce them {{URDU TEXT}} {{URDU TEXT}} ' 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 knowledge. (16 : 8). {{URDU TEXT}} Fair in the eyes of men Is the love of things they covet ; Women and sons ; Heaped-up hoards Of gold and silver ; horses Branded (for blood and excellence) ; And (wealth of) cattle And well-tilled land. {{URDU TEXT}}.
' Such are the possessions Of this world's life But in nearness to Allah Is the best of the goals (To return to). (3 : 14). {{URDU TEXT}} What Allah has bestowed On His Apostle (and taken Away) from them - for this Ye made no expedition with either cavalry or camelry {{URDU TEXT}} But Allah gives power ' To His Apostles over Any He pleases and Allah Has power over all things. (59 6) {{URDU TEXT}} ' Lead to destruction those Whom thou canst among them with thy (seductive) voice ; Make assaults on them With thy cavalry and thy Infantry : mutually share With them wealth and children ; And make promises to them. But Satan promises them Nothing but deceit.
(17 : 64)
(vi : rA) 0 j lea) I ' Behold, there were brought Before him, at eventide, Coursers of the highest breeding, And swift of foot ; (38 : 31) {{URDU TEXT}} (VT :.f/t)
And he said, "Truly Do I love the love Of good, with a view To the glory of my Lord,"- Until (the sun) was hidden In the veil (of Night) : (38 : 32). {{URDU TEXT}} "Bring them back to me." Then began he to pass His hand over (their) legs And their necks.
(38 : 33)
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 the most cherished purpose with Allah is what achieves nearness to Him and not the Satan. The Holy Prophet (p. b. u. h.) also discussed the above three purposes in a different way in the following traditions :- {{URDU TEXT}} ' Narrated Abu Hurairah : Allah's Apostle said, "Horses are kept for one of three purposes ; for some people they are a source of reward, for some others they are a means of shelter and for some others they are a source of sins. The one for whom they are a source of reward, is he who keeps a horse for Allah's Cause ti. e. Jehad), tying it with a long tether on a meadow or in a garden with the result that whatever it eats from the 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 bad 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 keeps a horse for the sake of pride and presence and showing enmity for Muslims s such a horse will be a source of sins for him". {{URDU TEXT}} ' Narrated Abu Hurairah The Prophet said, "If somebody keeps a horse in Allah's Cause motivated by his faith in Allah and his belief in His promise then he will be rewarded on the Day of Resurrection for what the horse has eaten or drunk and for its dung and urine."
(Bukhari, Kitabul Jebad, Volume, II, pages 71-72).
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 (p. b. u. h.) referred to above. Further, it is unthinkable that good and blessing should be in the forehead of a horse which is used for wars against Islam, for dacoity, theft, gambling, smuggling or other anti-people or anti-Islamic activities.
56. The Holy Prophet (p. b. u. h.) 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 {{URDU TEXT}} ' Narrated Ibn-e-Masood, The Holy Prophet said, "Horse is of three kinds first is the horse for 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 which is used in battle with the enemies of Allah, and the horse for the human being is the horse which he uses for loading and riding, and the horse for Satan is the horse on which betting is made." (Tafsir Durr-e-Mansure, Volume 111, page 196) (Also see Tafsir Ibn-e-Kasir, Vol : II, page 321).
57. The above verses of Qur'an and the Traditions of the Holy Prophet (p. b. u. h.) make it quite clear that only that horse shall carry blessing and goodness till the Day of Judgement 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 Judgement 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 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 `Ulema" Juris-consults and the lawyers were agreed on the proposition that betting, wagering and gambling of all sorts was prohibited {{URDU TEXT}} in Islam.
All of them further conceded that competition was allowed only in horse-racing, camel-racing and archery and that this exception was mane 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 Ulema' of `Shiah' school were of the view that that it was valid while according to others it was {{URDU TEXT}}) prohibited. All the `Ulema' 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 :- {{URDU TEXT}} ; It has been related on the authority Prophet said, 'He who joins with a two horse-racers and he was not sure is not harm and if he was sure that his (Are {{URDU TEXT}} of Abu Hurairah that Holy horse in the competition of that his horse will win. There horse will win, it is gambling.
(Ibid., page 84).
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 `Mohallil' 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 competing horses either as owners or as lessees. He also referred to Kitabul-Shirkat' of Fatawa A)amgiri and pages 52-57 of Sabaq-i-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) 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 basis if betting on horse-racing is justified in Islam ? {{URDU TEXT}}
(v) 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 ?
(v) Can a permitted act be banned by the State in any situation ?
(vi) Does the above principle apply even today ?
(vii) 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 friend, carrying him above fellowmen on foot and giving him powers 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 connote honour, respect, good manners and straightforwardness. 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. Anti- tetnus (a life 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 offspring. The case of the petitioners is that the desired qualities to be transmitted to an offspring 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 commonsense and judgment, instead of mating just any top class sire to the top class mare. However, even in such a case the individual achievem:nts of the mating partners must be known so as to apply the expert judgment and the commonsense. 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 rider or goods both in the vales and dales Further, whether the speed, stamina, endurance agility or courage of a race- horse is equally necessary and transmissible to offspring which is to he used for haulage, travel or sport is also not certain. We find from the Encyclopaedia 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 prerequisites for the breeding and training of the breeds other than those of the first and the third categories. 1 et, 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 must that a racing horse with remarkable stamina and endurance may transmit 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 offspring over generations. The breeding and training of the present stud-owners revolves round the production of offspring which may show remarkable performance in 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 require- 65. ments 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 vacuum. 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".
66. 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 :- {{TABLE}} Brood mares. Stallions. No'. Of Studs. Average price of a yearling Before 1977 654 71 24 20,000 1983 309 30 14 10,000 {{TABLE}} ' 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 show 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 existence of the race-courses". This is, however, not the complaint of the petitioner. The race-courses do exist and there is no ban on them. 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 interdependent. 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, nobody 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 above facilities.
68. 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 fore-fathers, A bare look at this statement would convince any one that the mention of this prize money is a surplusage, 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 No, 2) 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 Glubs offer on the average, as stake/prize money, in addition to the other facilities, to the winnmg 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 ?
69. 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 footaball match or a boxing contest. A wager, on the other hand, according to the same dictionary, consists of mutual promises between 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 press posting it, each of whom has a chance to win it, but in the case of a 'purse' or 'premium', money belongs to the person offering it, and he has 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.
70 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 effects were of tremendous importance in -Beduin life. Arabic Lexicographers tried to establish a connection between the gambling and moon inasmuch as the size and light effects of moon change like the fate of a bettor. According to Mufti Muhammad 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, 1,000 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, 1,000 but if does not you will give the same amount, al-Jurjani (d. 816/1413) states 'qimar' means "game with the condition that the winner (Ghalib) of the two contestants get something from the other (Maghlub).
According to Ibn-al-Arabi (d. 543/1148) "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 th winner" Allama Tahir Fatani says in Majma-ul-Bihar, Vol. II, p. 91 {{URDU TEXT}} e. Fact of the bettor oscillates between loss and profit. Mohaddis Kabir Ali,Qari defines 'qimar': {{URDU TEXT}} ' The above definition is favoured by Hamid Zin Qari Shah Wali Ullah, Allama Tahir Fatani and Maulana Muhammad Ahsan Nanotvi who represent the four schools of thought of Hanafi sect. So the Mush 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 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 recklessly and in vain. Thus, ways and means which involve exchange of money pi other valuables depending upon the uncertain outcome of an event or in an illegal manner are forbidden (Haram).
71. Gambling comes as close to. Being a universal trait as man's physical functions. In all maser civilizations it was and is present in some form 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 sweat". As regards Muslims, gambling never achieved that false glory except when the lands of Muslims were colonized by the west and some of tnem, 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 ale prohibition in Qur'an, it cannot be ignored.
72. 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 'od 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 nght for him in Badr. It is also reported from Ibn Abbas (not very authentic though) that Abu Bakar as-Siddtq made a bet (Bayaa) witb Ubayy b.
Khalaf for ten camels. The occasion was after the verses 1-4 of Suran 30 were revealed. They said that "The Byzantines have Ian 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 Byzantines. The bet was that the Qur'anic prediction of a Byzantine victory and Persain deeat would not come true. 'Abu Bakr asked for advise 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 Qur'an, 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 and 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 Hazrat Abu Bakr obtained the bet, the Holyl Prophet (p. b. u. h) said to him that this is suht (i. e. Harm) so give it hoe charity.
75. Here we may refer to those verses of Qur'an which deal directly with the above subject 2 : 219, 5 : 90, 91, 4 : 29, 30, and whereby the, gambling was forbidden: {{URDU TEXT}} They ask thee Concerning wine and gambling 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 need;. {{URDU TEXT}} Thus doth Allah Make clear to you His Signs; in order that Ye may consider-(2 : 219) {{URDU TEXT}} 0 ye who believe! intoxicants and gambling (Dedication of) stones, And (divination by) arrows, Are an abomination,- Of Satan's handiwork: Eschew such (abomination). That ye may prosper. (5 : 90) . {{URDU TEXT}} Satan's plan is (but To excite enmity and hatred Between you, with intoxicants And gambling, and hinder you From the remembrance Of Allah, and from prayer Will ye not then abstain. (5 : 91). {{URDU TEXT}} Co ye who believe!
Eat not up your property Among yoursekes in vanities: But let there be amongst yo i. Traffic and trade By mutual goodwill: Nor kill (or destroy) Yourselves: for verily Allah hall' been to you Most Merciful ! (4 : 29) {{URDU TEXT}} If any do that In rancour and injustice,--- Soon shall We cast them Into the Fire: and easy It is for Allah. (4 : 30)
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 practised 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 Qur'anic prohibition or the game did not exist in Prophet's time.
Maulana Abdul Majid Daryabadi, while interpreting serse 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-Rani (d. 606/1209) had this to say in his Qur'an commentary.
"Fourth problem: There is a difference of opinion as to whether Maysir is a designation for that 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-Shaft says: Whenever chess is free from a stake (Rihan), The tongue from iniquity, and prayer from forgetfulness, none is forbidden. Now (chess) has nothing to do with Maysir, since Maysir is something that necessitates 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 Qur'anic verses that the prohibition of liquor came gradually. As the `Maysir' 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 during 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 Hrm 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.
78. Rosenthal 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). (Rosenthal; 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 comparati.e 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 1bn 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 bad some inkling of the possibility that gambling could affect the physical constitution of the compulsive gambler.
79. 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 Maysir as expressed in 5 : 90-91/92-93. The reference to "hostility and hatred" appeared to them to provide a clue and they thougnt that the often resulting quarrels led to the prohibition of wine. As for 'Maysir', at-Tabari offers only a vague statement about "men in the `Jahiliyah' who used to gamble for their womenfolk and property, 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 Qur'an 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 of 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).
79. In any case, the legal situation contemplated by the Qur'an with respect to `Maysir' was indeed unassailable. It showed that why which ails subsequent discussion of gambling had to take. `Maysir' 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 Qur'anic text. However, the reality and seveiity 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 Qur'an 22 : 30, 31 is used in relation to idols. They are indicated to be the work of Satan 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 (p. h, u h.): ' The Messenger of God has said: He who swear and in doing so says, By Allat and al-Uzzal should say, There is no god but God. And he who says to his companion let me gamble with you 1, should make a contribution to charity (al-Bukhari, to Surah 53; Concordance, V, 466a 8-12).
' 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 underlined 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 Qur'an was void even if it is made hundred times. {{URDU TEXT}} "Every condition (bet) which is against the Book of Allah is void even there are hundred bets"
(Taisarul Bari, translation-Sahih Bukhari, Volume III, Kitab al-Mashroot).
' It has also been related that the Holy Prophet (p. b. u. b.) said : {{URDU TEXT}} "Every condition (bet) which is not in the Book of Allah is void even there are hundred conditions (bets). (Fiqhussunnah by Syed Sabiq, Volume III, page 100).
82. Both Qur'an 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 (leaned 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 {{URDU TEXT}} "Similar was the view in Judaism much earlier, that, dice players as well as pigeon fanciers were not quaked to be witnesses or judges. Christian preachers denounced it as worldly and Council of the Church forbade it to the 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'. (111-42). 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, a. Herbet Spencer says, a kind of action by which pleasure is obtained a 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 tie sympathies, cultivates a hard egoism, and so produce 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 habitua gambler, these higher faculties, through disuse, become atrophied, and his life, out of touch with favourite passion, becomes besotted an depraved."
"The transfer of property, in one shape of another, is essential t the act. There are only three ways in which property can be legitimate V 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 violation of the law of equivalents. It is a kind of robbery by mutaa agreement ; but it is still robbery, just as duelling, which is murder b 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 com in, odds are given or handicaps arranged so as to equalize the chances a far as possible. To make chance the arbiter of conduct is to subvert th 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 Lnd 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 anyone. 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 effect their proper behaviour, `Muruwah', character or probity, are {{URDU TEXT}} "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 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 'Buil'. 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 pronibition of games. Again both sleep and commerce are regulated by other provisions and they are con sidered necessary. Likewise there is, an express exception even with regard to some of the sports such as horse-racing, camel-racing, shooting.
And archery. {{URDU TEXT}} Oqbah bin-Amer reported : I heard the Messenger of Allah say : Everything with which a man plays is unlawful except his shooting with his arrows, his trai..Ing of his horse and his sporting with his wife, because tnese are truths. (Mishkat, Vol. II, page 374).
' The Holy Prophet (p. b. u. h.) liked horses very much and 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 (p. b. u. h.) making curls of the forelock 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 Judgement. The following Traditions may be quoted in this regard {{URDU TEXT}} ' Narrated Anas bin Malik : Once the people of Madina were frightened, so the Prophet rode a horse belonging to Abu Talha and it ran slowly, or was of narrow paces. When he returned, he said, "I found your (i,e, Aby Talhas) horse very fast. After that the horse could not be surpassed in running. .. . (ibid., pages 80-81) {{URDU TEXT}} ' Narrated Anas bin Malik : Once there was a feeling of fright in Madina, so the Prophet borrowed a horse belonging _to us called Mandub (and he rode away on it). (When the Prophet returned) he said, "I have not seen anything of freight and I found it (i,e, this horse) very fast.
87. Even competition was allowed in the above sports. {{URDU TEXT}} ' Abu Hurairah reported that the Messenger of Allah said : There is no competition except in arcnery, or in camel-driving, or in horse-racing, (Nailul Autar by Snauxani, Vol. 11, page 81). {{URDU TEXT}} ' It has been related on the authority Abu Abdullah that Abu Qatada said to the Prophet, "The enemy has returned should we race the horses now ? Prophet said "Yes". Then they raced the horses and the Prophet won the race. (ibid). {{URDU TEXT}} ' It has been related on the authority of Muhammad Bin Ali bin Hussain that Imam Sadiq said, "indeed angels hate competitions with prize and curse who do it except in the camel-race, horse- race and archery competitions. The Holy Prophet took, part in horse-race with Usama Bin-e Zaid and raced a horse. (Man Lakhzir ul Faqaih, Volume II, page 216). {{URDU TEXT}} {{URDU TEXT}} ' It has been related on the authority of Abdullah who said that a. Villager came to the Prophet and said, "Oh Prophet will you compete with me in horse-race ? Abu Abdullah said that Holy Prophet raced (with him).
88. It is contended by some jurists that the above exception was made by the Holy Propoet (p.b.u.h.) 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 serving, the cause of Islam. This view is supported from another angle. The games of chance inculcate the habits of taking risks. The Muslims, however, did not favour taking risks. This was not permissible even about the world 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 demonstrated from the verse of Qur'an (2 : 173) which permits Muslims to eat of even pig if meant to save life. It will thus be seen that the purpose of a thing is very important factor in its permission or prohibition. Here we may also refer to Shafii as discussed in para. 43 above.
88. Addition of gambling to sports only provided a further thought. At-Tabari lumped gambling together with usury 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, usury, 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 Qur'an prohibiting Muslims from earning their livelihood in an unapproved manner (see Q. 2 : 188, 4 : 161, 9 : 34). So, to sum up, the reasons for the prohibition of gambling appear to be that r 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.
88. We, however, find that the Holy Prophet (p.b.u.h.) not only participated in the horse-racing, camel-racing and archery but also encouraged these games by awarding prizes : {{URDU TEXT}} ' Narrated (Abdullah) bin Umar: The Prophet arranged for a horse-race amongst the horses that had been made lean to take place between Al-Hafya and Thanivat Al-Wada (i,e, names of two places) and the horses which had not been made lean from Ath-Thaniyat to the mosque of Bani Zuraiq I was also amongst those who took part in that horse-race. {{URDU TEXT}} ' Sufyan a sub-narrator, said, "The distance between Al-Hafya and Thaniya Al-Wada is five or six miles and between Thaniya and the mosque of Zuraiq is one mile. {{URDU TEXT}} ' It has been related on the authority of Ibn-e-Umar that Holy Prophet (p.b.u.h.) raced the horses and gave prize (to the winner). (ibid., page 22). {{URDU TEXT}} ' Hazrat Anas was asked whether they were giving prize to the winner in the horse-race competition in the period of the Holy Prophet and whether Prophet himself was practising so. He answered 'yes'.
Prophet put up prize for the horse name Sabkak who won the race and Prophet wondered and delighted with it. (ibid). {{URDU TEXT}} ' It has been related on the authority of Ali Ibn-e-Hussain that Holy Prophet raced the horses and gave some Uqiyas {{URDU TEXT}} of silver to the winner. {{URDU TEXT}} ' It has been related on the authority of Jaafar who relates from his father that Holy Prophet raced among the horses and gave prizes to the winner from his own pocket. {{URDU TEXT}} ' It has been related on the authority of Ali-Bin-e-Hussain that Holy Prophet raced horses and fixed prize of seven Auqias of silver for the 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 indicate forbidden gambling and where if at all are stakes proper and permissible ?
' Three possibilities were regularly considered in this behalf.
(i) 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 `Wajab'. Sometimes `Khasar and `Nadab' were restricted to shooting competitions. 'Rahn' was used for racing stakes. Terms Iwad (compensation) and Ijara (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 ashShaybani. His view is that it is permissible if 'Sultan gives prizes from public funds or out of 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 horsemanship 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 by the ruler from the public funds. He said : {{URDU TEXT}} ' Rosenthal quotes a passage from 5th Chapter of 'Fadl al-Khay' 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).
' Abul-Hasan Ahmad b. Yahya b. Jabir al-Baladhuri-Ibe Sa'd-alWaqidt-'Abd-al-Muhaymin b.
'Abbas b. Sahib, Sa'd his father (Abbas), his grandfather (Sahl), 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. Sad'd, alWaqidt, 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 'Alaqamah, 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 then% (Sabbaqaha) three bunches of dates from three. 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 {{URDU TEXT}} 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-Dimyati, 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, p. 20, Rosenthal, p. 100). According to Qazi Sanaullah of Panipat the unilateral betting on a horse-race was valid, but rohibited {{URDU TEXT}} if it was bilateral (132-33 (133-132{{URDU TEXT}} The distinction appears to be that the former is considered 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 (p.b.u.h.) not only gave prizes but set up bets for the winner in the races in which he participated. Reference was made to the Tradition: {{URDU TEXT}} ' Reliance is placed on the word 'Rahan'{{URDU TEXT}} 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 bilatera betting but of prizes. It is to he appreciated that the word {{URDU TEXT}} in respect of the above two Traditions 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 he determined by chance or accident or have an unexpected result by reason of bettor's miscalculation (Encylopaedia Brittanica). To the sam effect is the Islamic definition. No such factor is involved where a person offers to give a valuable to winner without expecting any gain t himself. It may only be a gift or Sadaqah. The petitioners then quot another Tradition in which the Holy Prophet offered to give a goat for god to Abu Rakana in a contest of wrestling : ' However, it is not certain if this incident occurred before or aft; gambling was prohibited. But it is sure that Abu Rakana had not embrac Islam till then. He repeated his het a number of times and lost 311 goat. He then repented on which the Holy Prophet returned all his goat to him. He thereat embrased Islam. There is rather a different version given in al-Faroosia (p. 20). No companion of the Holy Proyhet (p.b.u.h.) 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 "AI-Mutarjam" that Amr bin Dinar told him that a man sitting in the company of Jabir bin Zaid said tnat 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 {{URDU TEXT}}It is further said at page 21 of Al- Faroosia' that the Muslims abided by their promises 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 (p.b.u.h.) 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 : {{URDU TEXT}} ' It has been related on the authority of Abu Hurairah that Holy Prophet (p.b.u.h.) said: "He who join with a horse in the competition of two horse-racer and he was not sure that his horse will win, there is not harm and if he was sure that his horse will win, it 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 {{URDU TEXT}}" at the end but that must have been added later to make the sense clear {{URDU TEXT}}. It is stated in `al- Faroosia. p. 25 that the wording of the Tradition does not necessarily say that the `Mohallil' take the transaction out of gambling.
95. 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 very weighty reasons as mentioned above. Ibn Qayynn has also discussed at length the reasons given by the disciples of Malik attempting to prove that this tradition was weak. He seemed to be very much influenced by their arguments. 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 Taymiyan'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 bad later retracted his view given in 'Al-Faroosia' that a race even without a `Mohallil' was valid. The following passage taken from Rosenthal, p. 104 supports the position: "Ibn Tamiyah's known disapproval of the device of the Mohallil caused some trouble to the Hanbalite Ibn Qayyim al-Jawziyah in the year 7 6/1345. 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 them to race without those troublesome outsiders, while at the same time not worrying about the gambling problem). He was forced by the Shafi authorities to acceded 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 oh 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.
97. Mr. Rosenthal has also referred to a manuscript which provides additional information to the above. He says :- "Five folios in Ms. Yale L-774 provide additional information in this connection. The title-page (fol.
45a) has the title Juz fi al-mus (Abaqah). The treat se is incomplete at the end. The slightly damaged first lines of the beginning inform us that the treatise was a response from Demascus 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 Mohallil, 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 Mohallil 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 eliminating 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-Jawziyab himself.
97. This tradition of 'Mohallil' is, however, available in `Sunan Abi Daud' and Sunan Ibn Majah. Abu Daud has narrated it without any comments. The author of `Sabaq-i-Islami {{URDU TEXT}}) 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 int heir Sunan and both of them are among the six accurate books{{URDU TEXT}}Ahadith'. After relating this Hadith Abu Daud has not said something about it and muhaddisin {{URDU TEXT}}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 {{URDU TEXT}} "When I remain silent about a Hadith, it is authentic and some of them are more authentic than others". Muqaddarna Abu Daud, p.
6. Hafiz Shamsuddin Zahabi has declared this Hadith as authentic {{URDU TEXT}} Talkhisul Mustadsak, Volume II, p.
114.
(i) Afzaluttabire Imam Saeed-Bin-Musuyyib said : {{URDU TEXT}} "There is nothing wrong in the horse-race competition provided a Mohallil 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, p.
481.
(iii) Imam Malik has titled this chapter in his book "Muwatta" in these words : {{URDU TEXT}} "When a Mohallil enters in the competition of two participants who have fixed prizes for the winner, it is no longer gambling." Muwatta Imam Malik with translation (Musaffa, Volume II, p. 154).
(iii) Imam Baihaqi (died 456-H) has titled this chapter with the words : {{URDU TEXT}} "This chapter is about the two persons who fix prize for the winner in their horse-race competition and then a Mohallil enters in them with the condition that if he wins then he will get the prizes fixed by both of them and if anyone of them wins, he will only get the prize fixed by his co-sharer and also saved his own prize" (Died 124-H). Assunanul Kubra by. Bachaqi, Vol. X, p.
20. Imam Zuhri and Imam Abuz Zinad (died 131-H) have explained that with the entry of Mohallil, the contract of horse-race does not remaip a contract of gambling." .
(iii) Allama lbn-e-Hazam (died 457-H) writes ; {{URDU TEXT}} "If the prize is to be 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-Muhalla, Volume VII, page 354.
(vi) Ibn-e-Hajar Asqalani (died 852-H) writes, {{URDU TEXT}} "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, p.
354. Sheikhul Islam Allama Aini (died 855-H) writes : {{URDU TEXT}} "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 it' he wins he will get the prizes put up by both of them and if he fails he will not pay something. Ashhab asked Imam Malik about it he replied 'I do'not like it'. We base our view on the traoition of the Holy Prophet which has been related on the authority of Abu Haraira that Holy Prophet (p.b.u.h.) 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 Muhammad Bin-e-Hussain writes : {{URDU TEXT}} "The word gambling {{URDU TEXT}} has been derived from Qamar (moon). The moon sometimes increases and sometimes cecreases. 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 {{URDU TEXT}}and it is prohibited by the 'Miss', but when the prize is to be put up by one of the 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 by both the parties but they have got a third horse-racer entered with them and it was not sure about his horse that it will definitely win it is valid as the Holy Prophet (p.b.u.h.) 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 us and if you are defeated you 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 other side 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-Bahrur Riaz, Vol. VIII, p.
555.
(ix) Allama Tahir Fatni (died 986-H) writes : {{URDU TEXT}} "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". Majmaul Bihar, Volume II, page 91.
(x) Mulla Ali Qari (died 1014-H) writes :, {{URDU TEXT}} "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 remain 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.
(x) 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).
(a) The commentator of Tirmizi writes : "In case of Mohallil, the contract is no longer based gambling." Tuhfatual A hwazt, Volume V, p.
351.
(a) Qazi Sanaullah Panipatti writes "If prize is to put up for the winner by one of the parties, it ;s permissible. And if it is to he 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, pages 132, 133.
"101. The names of other Ulama who accepted this Hadith are as :ander : ' 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 Kanz, Volume VI, page 32, Hafiz Zahabi died 848-H) in Talkhisul Mustadrak, Volume II, page 114, Hafiz Ibti-e-Hajar Asgalani (died 852-H) in Fathul Bari, Volume VI, page 55, Sheikhul Islam Allama Aini (died 155-H) in Umdatul Qari Sharh Sahih 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, Sharh Aumul Maabud, Volume 11, page 334, Allama Mubarakpuri in Tuhfatul Ahwazi, Volume V, page 35,, and many other Ulama have recognised this Hadith.. They all belong to different schools of thought and they have unanimously recognised this Hadith and when a Hadith gets the general recognition (J. It it is considered authentic in the terminology of Muhaddisin. In this connection a famous book of Usul-e-Hadith writes {{URDU TEXT}} "When a Hasan {{URDU TEXT}} 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{{URDU TEXT}} and the people accept it though its channel 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 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 ha 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 tempo rarily take it out of the sphere of gambling.
A reference to verse 32 o Chapter VII of the Holy Qur'an will show that only Allah Almighty can declare a thing as 'Halal' or 'Haram'. A warning is thus, administered 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 (p.b.u.h.) 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 makes thou unlawful that which Allah hath made lawful unto thee, seeking the goodwill of thy wives. And Allah is Forgiving, Merciful." It is also clear from the life of the Holy Prophet (p.b.u.h.) tha, 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 {{URDU TEXT}} 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 "{{URDU TEXT}}" that only Almighty Allah has power to declare 'Halal' and 'Haram' and the prophets are only meant to propogate and further explain the same. Their contention also is that the race with a `Mohallir 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, Hafiz Salahuddin Yousaf was that the validation granted by the Holy Prophet E(p.b.u.h.) in respect of a race with `Mohallir is at the most a 'Mubah' and E the same could be withdrawn by the State in the interest of the public (Maslaha). 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 (p.b.u.h.). In this view of the matter, they suggested that the horse-racing in any way be banned. The petitioners, however, differred with the view and stated 'Mubah' could not be forbidden only it was meant to forbid what is otherwise permitted. It is argued that when Holy Prophet (p.b.u.h.) permitted doing of a thing in a particular was a ruler could not prohibit it for any expediency and it will amount to interference in the religious affairs.
105. It may be appreciated that though no one can make 'Halal' what is 'haram' but if the Holy Prophet (p.b.u.h.) declares 'Halal' something which was previously 'Haram' 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 Qur'an. This view is in obedience to verse 7 of Surah-al-Hashr 1. 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 comes to an end immediately thereafter with the result. That Haram continues to be Haram and it is permissible no more. Referenc may be made to Q. 2:173, Q. 5:3, Q. 6:146 and Q. 16 115 in this context.
A further exception to the general rule is contained in another verse of th Holy Qur'an : Q.2:286 "Allah does not burden any human being with a responsibility heavier than be can bear." This verse also allow deviation from an Injunction 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 (p. b. u. h.) 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 never6 false to their trust, Q.3:262. "The Holy Prophet Muhammad (p. b. u. h.) 6 is also no more than an apostle (Q.
3:194) and brings only the message revealed (X.15:16)". He is to deliver revelation entirely as it is given to him ; 11:12-14, 6:9 and Allah is witness to his mission 13:43, 29:52, 46:8.
V. What is the Basis, if Betting is justified with Mohallil.
106. We are now quite clear in taking the view that only Allah Almighty can declare 'Halal' and 'Harem" and-even the Holy Prophet (p.b.u.h.) 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 premitted 'Haram' H only when there is dire necessity specifically, to same life and that theH forbidden be permissible also when one is not in a position to physically bear or cope with it. So, the Tradition of `Mohallil' 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 : {{URDU TEXT}} ' 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 01 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 manlier 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 Muslims of their religious duties ;
(vi) it adversely affects proper behaviour Muruwah', character and probity ;
(vii) it stimulates urge for easy money by unapproved means ;
(viii) it is habit forming.
' Therefore, if we come to that 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, and 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 Hanafites it is not enforceable in law. The case of the petitioners is that the introduction of 'Mohallil' is 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 as 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 cas of (b) the agreement 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 time and labour. The position, thus, should not change irrespective of the fact he loses or wins. The `Mohallil' and his hor 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 is deprived of hi compensation in case of loss makes the whole transaction void. Similarly, if it is a compensation for `Mohallil' why not an equal amount to others. `Mohallil is not doing them any favour; Rather, he stand 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 (Maysir) in Qur'an, 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, a 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 th participants. (5:90-91), Why then should it be resorted to without by 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 o decreased the chance-percentage of the other two contestants. Previously, any one of them had 50% chance to win which it decreased to 3.33% 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 introduc tion of 'Mohallil' in the horse- racing is like introduction of one, (i) for the marriage of a woman who has received three 'Talaqs' or
(ii) to do s in order to exact more price in a sale or loan or (iii) to adopt device 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 act and deeds of a man are to be judged by the intention with which they ar 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 -Q.4:142. 2:264 and 107:1-6. Therefore, if the intention is just t 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 ma be made to verse 37 of Chapter IX, which says: {{URDU TEXT}} 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 on s Lawful. The evil of their course Seems pleasing to them. But Allah 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 Islami society is justict. (Adl).
Transgression is 'Haram' in Islam. So. All th transaction and deplings are to be based on the justice and fairplay. Consequently, if the two contestants are to pay to the 'Mohallil' if which should be not pay to them if they win. Thus, as long as stand to deprive the other two of their property without being prepared to pay them also it 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 compulsion despite the fact that the individual stance of both of them is not changed. Their 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 bettin 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 ma further stem any hope, taking root for earing easy money, in future. On the other hand as gambling as such is generally undertaken with a view t make easy money, the introduction of Mohallil is a warning that horse o Mohallil being of a comparable quality is likely to win and he may tak away all the money posted by both the contestants. The Mohallil thu dispenses discouragement to all those who might be tempted to mak money where the ostensible purpose of betting is not to make money but t 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 o 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 worn for the reason he takes away the money of both of them if he wins an gives them nothing on defeat. The situation so arising creates hatred an hostility, as is mentioned in verse 5 .90-91. The position is graver when on beats 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 th Mohallil not been there. 'Mohallil' thus instead of encouraging the con tenders and advancing the purpose of the contest, frustrates the participant so that their zeal and pride may touch the.Lowest mark. The result would be that what the Holy Prophet and Qur'an wanted to advance, gets a set back. Realising the above situation, some of the Hanfi jurists opined that if Mohallil wins be would not get the bet money and if he loses be will bear the loss. This is so stated in Majmal-nl-Bahrain{{URDU TEXT}} by Ib-Saati in Sharah Mukhtar{{URDU TEXT}} by Ibe Badhi.
IV. 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 participating 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 "totaliza-tor" 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 sole 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 ana 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. ##TE#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. Afterall who is paying for the properties made and the facilities extend to the spectators, on cials of the clubs and the horse- keepers. In final analysis, loss is caused only to 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 upkeep and encouragement.
113. The petitioners have suggested ways and means in the "Sabaq Islamic" as to bow they intend to do so once they are shown the green light. Firstly, they quote Allam 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 professional rider can be secured for the purpose. This may be quite correct in case of a horse-race but certainly it will not apply to a horse being trained for Jehad. There the training is not only of the horse but of the 'Mjahd' 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 (p. b u.h.) got on hire a horse. We have no cavil with the proposition as advancad 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 welcome. If on the other hand the purpose is to do something forbidden the device is to be condemned. Qur'an in verse 9 : 37 says: {{URDU TEXT}} 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 guided not Those who reject Faith.
' Maulana Abdul Majid Daryabadi 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 horse-races today is not Jehad but it propagates and multiplis gambling. Rusenthal refers to a saying of al-Ghazzali 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. (p.
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 their families, 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, Nabdih sellers, effeminate persons, money men, and he mentioned his gambling activities in connection with his porno-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 boy's mother was a whore. He quite naturally started out as a gambler at a tender age. At-Tifashi (p. 651;1253 learned that when he was writing his Nazhat al- lbab in Demascus. As he tells the story, he siy 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 skin 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 pro-curess' 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 hereunder : "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 essentially 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 some 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 the stakes get larger, and everything is subordinated to the need to gamble. In the long run, of course, the odds are against the gambler and he loses. Home, job, family and responsibility may be sarcificed in the process'."
117. Wilhelm Stekel, M. D., author of another book "Peculiarities of Behaviour", Vol. II says at p. 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 hear, I might become a victim of the gambling mania. Others have told me same thing about themselves." Talking of traits that develop with gambling this author remarks at p. 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 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, spend-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 be 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 belies 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 gambler's pecuniary state, the stronger and rosier also is his never-failing optimism, 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 others' loss (sadism) interchanges with torturing self-reproaches ("It serves you right ! "you don't deserve better I").
We have already discussed this aspect of gambling in paras. (83.84) 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 Prophet (p.b.u.h.) be banned by the State ?.
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 them. Therefore, betting only by the contestants was permitted, only in case of necessity of Jehad.
Thus, the permission granted by thee Holy Prophet (p.b.u,h.) is not general and absolute but anyone who want to take advantage of it has to establish the requisite conditions before a claim for the appropriation of it can he made. On the other hand, we would I like to agree with the petitioners on technical plane that any Injunction granted by the Holy Prophet (p.b.u.h.) cannot be withdrawn by State if it confers an absolute right or is obligatory. It is to be noted that Qur'an did not place some relations in the prohibited degree of marriage but the Holy Prophet (p.b.u.b.) included them therein on analogy. No one can, therefore, withdraw these restrictions. Similarly, the Holy Prophet (p.b.u.h.) fixed 24% of wealth as the quantum of Zakat and this concession also can not be varied by the State though it may levy other taxes to meet its financial requirements. As said above, the demand by the Holy Prophet (p.b.u.h.) to join "Mohallil' was meant to discourage the lust for money as it always reminded the betters that the money posted by both of the 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, of the preliminary objection, is that unless an express provision is made for something, everything else is permitted. However, the State can pas certain orders in respect of such matters as are not covered by the 'obliga-tory' filed 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 'Mohaihl' is valid but it may be prohibited under the principle of Sadduz Zari'ei ({{URDU TEXT}}, for the reason that gambling does much more damage than an good. Literally the word Zara'ei {{URDU TEXT}}A means mediums, instruments 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 Yousaf that sometning 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 (p.b.u.h.) had the authority to declare 'Halal' as 'Haram' but prohibition in such a situation was not covered by it. He referred to "Alamo!
Mowaqqin by Allama Ibne Qayyim (Vol. III, p. 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 postrating before a certain grave they could ban visits to that grave 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-ul-Ieman, p. 13 and stated that in the beginning the Holy Prophet (p.b.u.h.) 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 (p.b.u.h.) through Buraudah may be cited : {{URDU TEXT}} ' This aspect as also dealt with by Maulana Kaka Khel also. He relied on Ibne Tamiya {{URDU TEXT}}, Vol. III, pp. 113, 141, 143, 144, 145, 255, 256, 257, Vol. 4, pp. 1-116) to say devices adopted 4 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 given here. It is discussed in Fatawa Kubra, Vol. III, under the topic o B invalidity of devices and concluded taat these devices are deception with B Allah and are strictly prohibited. Fatawa Kubra, (Vol. III, p. 113). At p. 141 of the same it is stated tnat all these traditions are consistent that in contract the purpose and oojects are to be seen and these devices should not C be allowed to camouflage the substance and that the consequ nces and C aims sought be achieved in actions and habits equivalent to those in worships." (ibid., p. 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, though the squeezer might change his mind later and juice may or may not be converted so. His liability, however, with his intention on the same principle is based on the injunction that sale of arms to infidels, opponents, dacoits is prohibited, (ibid., p. 145)
' Ibn-e-Qayyim has also related a Hadith which has been reported on the authority of Imam Abmad that Holy Prophet I p.b.u.h.) prohibited the sale of arms in emergency or in the time of mischief. (Aalamul Muwaqqeen, Vol. III, p. 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 Qur'an has prohibited it. However, it is reported that the Holy Prophet (p.b.u.h.) wrestled on a bet with Abu Rukana without a `Mohallil'. Rather, they say that it is impossible to have a Mohallil in wrestling. (Al- Faroosia pp. 33-34). Ibn Qayyim states that in fact the wrestling of the Holy Prophet (p.Li.u.h.) and the bet of Abu Bakar as-Saddiq 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 Bakar is mentioned also in Al-Faroosia and it is stated that Abu Bakar received the bet from the unbelievers after the prohibition against wine and gambling had been proclaimed (p. 36). 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 Qur'anic revelation. The E plea that Abu Bakar had given the bet receipts in charity would not make E 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's 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 similar posture. (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 Rukana became Muslim. It is for that reason of Jehad that Imam Shafei and Ahmad uphold the betting on carrier pigeons used for sending messages during Jehad. On the same principle an other contests which are helpful in Jehad are permitted by them.
121. 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 (p.b.u.h.) 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 Aioi (Umdatul Qari, Vol. 14, page 160) and the Shia Fiqh (KitabulAhkam by Momin Sabzwari, Masabkul- Afhan by Zainuddin Shabeed Thani, Sharah Irshadut-azhan,IIa Ahkamul Jean 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 Hanafi 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 lbn Taymia approved betting on memorising Qur'an, Hadith, Fiqh and other useful subjects while Ahmed, Shiarie and disciples of Malik forbid doing so.
122. The sum and substance of the above. Discussion is that approval by the Holy Prophet (p.b.u.h.) 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 wherever 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 mean 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 are 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 thus 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 o Qur'an and 26 Traditions concerning the horse. The horse is not only praised therein but also declared evil. 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 (p.b u.h.) carries good and blessing tilt Day of Judgment in his forehead it will remain a sacred duty of Muslims to keep and train such horses. The petitioners, however, did 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 (p.b.u.h.) achieved. There are horses with smugglers and black-marketers to suck the blood of the community. Would anyone anywhere in the world encourage such horses? Even a horse kept for pride and pretense trying to establish false superiority of man over man is not the approved one. Undoubtedly, Allah Almighty or his Prophet never praised 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 hi keeper. According to the Holy Prophet (p b.u.h.) only those horses carry good and blessing in their forehead as are used in The cause of Islam. It I such a horse the keeping of which will earn the keeper good deeds and eve its dung and foot-marks 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 fort pride and pretense and to cause pain, misery and loss to Muslims or cau of Islam they shall be possessing source of sins.
123. Here we may also seek support from some of the 'Fuqahe (Jurists) for the conclusions that we have reached. It will be appreciated that the touchstone of validity adopted in each case is Jehad.
We find a sufficiently clear and comprehensive exposition by al-Imrani 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 page 106 of Rosenthal as follows :- "Foot-racing without compensation (Iwad) is permitted, because it has been reported that Aishah said : raced the Prophet twice. The first time I defeated him, but whea 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 (Nasl), or camels (Khuff), or horses (Hafir).
' Pigeon (tayaracing without compensation 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 bil-Akhbar). According to the other, it is not permitted (in view 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 on land. 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 compensation 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 was 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 permitted, because of the textual evidence mentioned and because they are not instrument of war. The Prophet wrestled 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 permitted with and without compensation, 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 #s 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-Shafiri 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 bees use they are weapons used in fighting. Tney are comparable to arrows (Nushshattah).
' There are two views, reported by at-Tabari in the `Uddah, as to whetner throwing stores 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 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 fortne 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 touchstone 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 bet thereon according to some Jurists were allowed only if the purpose was to train the horses for a holy war. VIII. Does the above principle apply even today?
125. 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 objects is to encourage and develop that sport or game for the glory of Allah and for the cause of Islam. This principle 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- bleeding 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 requirements 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 requirements 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 be Government will ser in tax and also foreign exchange which is being earned through export of studbred horses.
126. It had also been vehemently contended by most of the jurisconsults 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 : t0 may mean aeroplanes, helicopters, 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.
127. 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 Qur'an be 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 studfarms 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 studfarms so that the economic drain on their resources is not strong enough to complete their 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 views also. It has been related that Umar bin-e-Abdul Aziz prohibited horse-racing without justification. Seerat-e-Umar bin-e-Abdul Aziz by Abu Muhammad Abdullah bin-e-Abdul Hakam, page 56).
' In Fatawa 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: {{URDU TEXT}} "Such betting on horses as is prevalent in our times is neither for a Shariah purpose nor is based on the provision laid down by the Shariah as mentioned in Ahadith of the Holy Prophet (p.b.u.h.) and all of its kinds come under the gambling which is prohibited in Sharjah, as it is covered by `Maysir which was declared by Allah in verse 5 : 90 of Holy Qur'an as an abomination Satan's handi-work."
(Al-Fatawa Al-Islamiyya, Volume X, page 3579) Allama Rashid Raza writes in this connection : {{URDU TEXT}} "there is no difference of oriron among the jurists that every kind of gambling is pronibited 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 properly 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 policy of the Government is in any way, directed against horse-keeping, its breeding or training or against race tracks, racecourses 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 questions Nos. 1 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 all, however, have struck a note of caution 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 Qur'an but also by every other religion or social order. No contrjsance 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 (p.b.u.h.). 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 sum, however, is too trivial to justify injection of germs of a cancer like gambling in the body of a religion-social order, the sole aim of which is extermination of such maladies. On the other band, if absence of this amount is likely to result in the closure of studfarms and the Government is of the view that it will cause 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.