Extract

from the Report of The Court of Inquiry constituted under Punjab Act II of 1954 to enquire in the Punjab Disturbances of 1953
[ ] Earlier we have pointed out that one of the doctrines on which the Musalmans and Ahmadis are at variance is that of jihad. This doctrine at once raises a host of other allied matters such as the meanings of ghazi, shahid, jihad-bis-saif, jihad fi sabilillah, dar-ulIslam, dar-ul-harb, hijrat, ghanima, khums and slavery, and the conflict or reconciliation of these conceptions with modern international problems such as aggression, genocide, international criminal jurisdiction, international conventions and rules of public international law. An Islamic State is dar-ul-Islam, namely, a country where ordinances of Islam are established and which is under the rule of a Muslim sovereign. Its inhabitants are Muslims and also non-Muslims who have submitted to Muslim control and who under certain restrictions and without the possibility of full citizenship are guaranteed their lives and property by the Muslim State. They must, however, be people of Scriptures and may not be idolaters. An Islamic State is in theory perpetually at war with the neighbouring non-Muslim country, which at any time may become dar-ul-harb, in which case it is the duty of the Muslims of that country to leave it and to come over to the country of their brethren in faith. We put this aspect to Maulana Abul Ala Maudoodi and reproduce his views : Q.is a country on the border of dar-ul-Islam always qua an Islamic State in the position of dar-ul-harb ? A.No. In the absence of an agreement to the contrary, the Islamic State will be potentially at war with the non-Muslim neighbouring country. The non- Muslim country acquires the status of dar-ul-harb only after the Islamic State declares a formal war against it. According to Ghias-ul-Lughat, dar-ul-harb is a country belonging to infidels which has not been subdued by Islam, and the consequences of a country becoming darul- harb are thus stated in the Shorter Encyclopaedia of Islam :

- On Jihad -

222 When a country does become a dar-ul-harb, it is the duty of all Muslims to withdraw from it, and a wife who refuses to accompany her husband in this, is ipso facto divorced.

Thus in case of a war between India and Pakistan, if the latter is an Islamic State, we must be prepared to receive forty million Muslims from across the border into Pakistan. In fact, Maulana Abdul Haamid Badayuni, President, Jamiat-ul-Ulama-i- Pakistan, thinks that a case for hijrat already exists for the Musalmans of India. The following is his view on this subject : Q.Do you call your migration to Pakistan as hijrat in the religious sense ? A.Yes. We shall presently point out why Mirza Ghulam Ahmads version of the doctrine of jihad is relied on as a ground for his and his communitys kufr, but before we do that it is necessary first to state how jihad has been or is understood by the Musalmans. There are various theories about jihad which vary from the crude notion of a megalomaniac moved by religious frenzy going out armed with sword and indiscriminately slaughtering non-Muslims in the belief that if he dies in the combat he becomes a shahid and if he succeeds in killing attains the status of a ghazi, to the conception that a Musalman throughout his life is pitted against kufr, kufr here being used in the sense of evil and wrong, and that his principal activity in life is to strive by argument a where necessary by force to spread Islam until it becomes a world religion. In the latter case he fights not for any personal end but because he considers such strife as a duty and an obligation which he owes to Allah and the only recompense for which is the pleasure of Allah. The Shorter Encyclopedia of Islam contains the following brief article on djihad : DJIHAD (A), holy war. The spread of Islam by arms is a religious duty upon Muslims in general. It narrowly escaped being a sixth rukn, or fundamental duty, and is indeed still so regarded by the descendants of the Kharidjis. This position was reached gradually but quickly. In the Meccan Suras of the Quran patience under attack is taught ; no other attitude was possible. But at Medina the right to repel attack appears, and gradually it became a prescribed duty to fight against and subdue the hostile Meccans. Whether Muhammad himself recognised that his position implied steady and unprovoked war against the unbelieving world until it was subdued to Islam may be in doubt. Traditions are explicit on the point ; but the Quranic passages speak always of the unbelievers who are to be subdued as dangerous or faithless. Still, the story of his writing to the powers around him shows that such a universal position was implicit in his mind, and it certainly

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223 developed immediately after his death, when the Muslim armies advanced out of Arabia. It is now a fard alal-kifaya, a duty in general on all male, free, adult Muslims, sane in mind and body and having means enough to reach the Muslim army, yet not a duty necessarily incumbent on every individual but sufficiently performed when done by a certain number. So it must continue to be done until the whole world is under the rule of Islam. It must be controlled or headed by a Muslim sovereign or imam. As the imam of the Shias is now invisible, they cannot have a djihad until he reappears. Further, the requirement will be met if such a sovereign makes an expedition once a year, or, even, in the later view, if he makes annual preparation for one. The people against whom the djihad is directed must first be invited to embrace Islam. On refusal they have another choice. They may submit to Muslim rule, become dhimmis (q. v.) and pay djizya and kharadj (q. v.) or fight. In the first case, their lives, families and property are assured to them, but they have a definitely inferior status, with no technical citizenship, and a standing only as protected wards. If they fight, they and their families may be enslaved and all their property seized as booty, four- fifths of which goes to the conquering army. If they embrace Islam, and it is open to them to do so even when the armies are face to face, they become part of the Muslim community with all its rights and duties. Apostates must be put to death. But if a Muslim country is invaded by unbelievers, the imam may issue a general summons calling all Muslims there to arms, and as the danger grows so may be the width of the summons until the whole Muslim world is involved. A Muslim who dies fighting in the path of Allah (fi sabil Allah) is martyr (shahid) and is assured of Paradise and of peculiar privileges there. Such a death was, in the early generations, regarded as the peculiar crown of a pious life. It is still, on occasions, a strong incitement, but when Islam ceased to conquer it lost its supreme value. Even yet, however, any war between Muslims and non-Muslims must be a djihad with its incitements and rewards. Of course, such modern movements as the so-called Mutazili in India and the Young Turk in Turkey reject this and endeavour to explain away its basis; but the Muslim masses still follow the unanimous voice of the canon lawyers. Islam must be completely made over before the doctrine of djihad can be eliminated.

The generally accepted view is that the fifth verse to Sura-i-Tauba (Sura IX) abrogated the earlier verses revealed in Mecca which permitted the killing of kuffar only in self-defence. As against this the Ahmadis believe that no verso in the Quran was abrogated by another verse and that both sets of verses, namely, the Meccan

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verses and the relative verses in Sura-i-Tauba have different scopes and can stand together. This introduces the difficult controversy of nasikh and mansukh, with all its implications. It is argued on behalf of the Ahmadis that the doctrine of nasikh and mansukh is opposed to the belief in the existence of an original Scripture in Heaven, and that implicit in this doctrine is the admission that unless the verse alleged to be repealed was meant for a specific occasion and by the coming of that occasion fulfilled its purpose and thus spent itself, God did not know of the subsequent circumstances which would make the earlier verse inapplicable or lead to an undesired result. The third result of this doctrine, it is pointed out, cuts at the very root of the claim that laws of Islam are immutable and inflexible because if changed circumstances made a new revelation necessary, any change in the circumstances subsequent to the completion of the revelation would make most of the revelation otiose or obsolete. We are wholly incompetent to pronounce on the merits of this controversy but what has to be pointed out is the result to which the doctrine of jihad will lead if, as appears from the article in the Shorter Encyclopaedia of Islam and other writings produced before us including one by Maulana Abul Ala Maudoodi and another by Maulana Shabbir Ahmad Usmani, it involves the spread of Islam by arms and conquest. Aggression and genocide are now offences against humanity for which under sentences pronounced by different International tribunals at Nuremburg and Tokio the war lords of Germany and Japan had to forfeit their lives, and there is hardly any difference between the offences of aggression and genocide on the one hand and the doctrine of spread of Islam by arms and conquest on the other. An International Convention on genocide is about to be concluded but if the view of jihad presented to us is correct, Pakistan cannot be a party to it. And while the following verses in the Mecca Suras contain in them the sublime principle which international jurists have only faintly begun to discover, we must go on preaching that aggression is the chief characteristic of Islam. : Sura II, verses 190 and 193 : 190. Fight in the Cause of God Those who fight you, But do not transgress limits ; For God loveth not transgressors. 193. And fight them on Until there is no more Tumult or oppression, REPORT OF THE COURT OF INQUIRY CONSTITUTED UNDER PUNJAB ACT II OF 224 1954 TO ENQUIRE INTO THE PUNJAB DISTURBANCES OF 1953

 And there prevail Justice and faith in God ; But if they cease, Let there be no hostility Except to those Who practise oppression. Sura XXII, verses 39 and 40:

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39. To those against whom War is made, permission Is given (to fight) because They are wronged; and verily, God is most Powerful For their aid 40. (They are) those who have Been expelled from their homes In defiance of right, (For no cause) except That they say, Our Lord Is God. Did not God Check one set of people By means of another, There would surely have been Pulled down monasteries, churches, Synagogues, and mosques, in which The name of God is commemorated In abundant measure. God will Certainly aid those who Aid His (cause);for verily God is Full of Strength, Exalted in Might, (Able to enforce His Will), The law relating to prisoners of war is another branch of Islamic law which is bound to come in conflict with International Law. As for instance, in matters relating to the treatment of prisoners of war, we shall have to be governed by Maulana Abul Ala Maudoodis view, assuming that view is based on the Quran and the sunna, which is as follows : Q.Is there a law of war in Islam? A.Yes. Q.Does it differ fundamentally from the modern International Law of war? REPORT OF THE COURT OF INQUIRY CONSTITUTED UNDER PUNJAB ACT II OF 225 1954 TO ENQUIRE INTO THE PUNJAB DISTURBANCES OF 1953

226 A.These two systems are based on a fundamental difference. Q.What rights have non-Muslims who are taken prisoners of war in a jihad? A.The Islamic law on the point is that if the country of which these prisoners are nationals pays ransom, they will be released. An exchange of prisoners is also permitted. If neither of these alternatives is possible, the prisoners will be converted into slaves for ever. If any such person makes an offer to pay his ransom out of his own earnings, he will be permitted to collect the money necessary for the fidya (ransom). Q.Are you of the view that unless a Government assumes the form of an Islamic Government, any war declared by it is not a jihad? 226 A.No. A war may be declared to be a jihad if it is declared by a national Government of Muslims in the legitimate interests of the State. I never expressed the opinion attributed to me in Ex. D. E. 12: Raha yeh masala keh agar hukumat-i-Pakisten apni maujuda shukl-o-surat ke sath Indian Union ke sath apne muahadat khatm kar-ke ilan-i-jang bar bhi de to kya us-ki yeh jang jihad ke hukam men a-jaegi ? Ap ne is bare men jo rae zahir ki hai woh bilkul darust hai - Jab-tak hukumat Islami nizam ko ikhtiyar kar-ke Islami nah ho jae us waqt tak us-ki kisi jang ko jihad kehna aisa hi hai jaisa kisi ghair Muslim ke Azad Kashmir ki fauj men bharti ho-kar larne ko jihad aur us-ki maut ko shahadat ka nam dediya jae - Maulana ka jo mudda hai woh yeh hai keh muahadat ki maujudgi men to hukumat ya us-ke shehriyon ka is jang men sharik hona shar-an jaiz hi nahin - Agar hukumat muahadat khatm kar-ke jang ka ilan kar-de to hukumat ki jang to jihad phir bhi nahin hogi ta-an keh hukumat Islami nah ho jae. (Translation) [The question remains whether, even if the Government of Pakistan, in its present form and structure, terminates her treaties with the Indian Union and declares war against her, this war would fall under the definition of jihad? The opinion expressed by him in this behalf is quite correct. Until such time as the Government becomes Islamic by adopting the Islamic form of Government, to call any of its wars a jihad would be tantamount to describing the enlistment and fighting of a non-Muslim on the side of the Azad Kashmir forces jihad and his death martyrdom. What the Maulana means is that, in the presence of treaties, it is against Shariat, if the Government or its people participate in such a war. If the Government terminates the treaties and declares war, even then the war started by Government would not be termed jihad unless the Government becomes Islamic. ]

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About the view expressed in this letter being that of Maulana Abul Ala Maudoodi, there is the evidence of Mian Tufail Muhammad, the writer of the letter, who states: Ex. D. E. 12 is a photostat copy of a letter which I wrote to someone whose name I do not now remember. Maulana Abul Hasanat Muhammad Ahmad Qadris view on this point is as follows: Q.Is there a law of war in Islam? A.Yes. Q.Does it differ in fundamentals from the present International Law? A.Yes. 227 Q.What are the rights of a person taken prisoner in war? A.He can embrace Islam or ask for aman, in which case he will be treated as a mustamin. If he does not ask for aman, he would be made a slave. Similar is the opinion expressed by Mian Tufail Muhammad of Jamat-i-Islami who says: Q.Is there any law of war in Islamic laws? A.Yes. Q.If that comes into conflict with International Law, which will you follow? A.Islamic law. Q.Then please state what will be the status of prisoners of war captured by your forces? A.I cannot reply to this off hand. I will have to study the point. Of course ghanima (plunder) and khums (one-fifth) if treated as a necessary incident of jihad will be treated by international society as a mere act of brigandage. [ ]

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[The following extract is from page 194 to 196 of the Report] The third difference between the two parties [Muslims and Ahmadis] arises out of the scope of the doctrine of jihad, the texts relating to which are to be found in Sura XXII verses 39 and 40, Sura II, verses 190 to 194, Sura LX, verse 8, Sura IV verses 74 and 75, Sura IX, verse 5, and Sura XXV, verse 52, which are as follows : Sura XXII, verses 39 and 40 : 39. To those against whom war is made, permission is given (to fight) because they are wronged;and verily, God is most Powerful for their aid; 40. (They are) those who have been expelled from their homes in defiance of right,(for no cause) except that they say, Our Lord is God. Did not God check one set of people by means of another, there would surely have been pulled down monasteries, churches, synagogues, and mosques, in which the name of God is commemorated in abundant measure. God will certainly aid those who aid His (cause);for verily God is Full of Strength, exalted in Might, (able to enforce His Will). Sura II, verses 190 to 194 : 190. Fight in the Cause of God those who fight you, but do not transgress limits; for God loveth not transgressors. 191. And slay them wherever ye catch them and turn them out from where they have turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque, unless they (first) fight you there: but if they fight you, slay them. Such is the reward of those who suppress faith. 192. But if they cease, God is Oft-forgiving, Most Merciful. 193. And fight them on until there is no more tumult or oppression, and there prevail justice and faith in God; but if they cease, let there be no hostility except to those who practise oppression. 194. The prohibited month for the prohibited month,and so for all things prohibited,there is the law of equality. If then any one transgresses the prohibition against you, transgress ye likewise against him. But fear God, and know that God is with those who restrain themselves. Sura LX, verse 8: God forbids you not, with regard to those who fight you not for (your) Faith nor drive you out of your homes, from dealing kindly and Justly with them : For God loveth those who are just. REPORT OF THE COURT OF INQUIRY CONSTITUTED UNDER PUNJAB ACT II OF 194 1954 TO ENQUIRE INTO THE PUNJAB DISTURBANCES OF 1953

 Sura IX, verse 5:

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But when the forbidden months are past, then fight and slay the Pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war); but if they repent, and establish regular prayers and practise regular charity, then open the way for them: for God is Oft-forgiving, Most Merciful. Sura IV, verses 74 and 75: 74. Let those fight in the cause of God who sell the life of this world for the Hereafter, to him who fighteth in the cause of God, whether he is slain or gets victorysoon shall We give him a reward of great (value). 75. And why should ye not fight in the cause of God and of those who, being weak, are ill-treated (and oppressed)? Men, women and children, whose cry is: Our Lord ! rescue us from this town, whose people are oppressors; and raise for us from Thee one who will protect; and raise for us from Thee one who will help Sura XXV, verse 52 : Therefore listen not to the Unbelievers, but strive against them with the utmost strenuousness, with the (Quran). As to the doctrine of jihad, the Ahmadi view is that what is called jihad-bis-saif is permissible only in self-defence and that in stating his own view on this question Mirza Ghulam Ahmad merely expounded a doctrine which is based on, and directly follows from, the several texts in the Quran and that he did not profess to repeal or abrogate any rule or injunction of the Quran. The contention of the other parties, however, is that the words in which Mirza Sahib expressed himself on this point clearly show that he was not merely expounding a Quranic doctrine but was repealing an existing law of the Quran. In this connection reliance is placed on such expressions as Main ek hukam le-kar ap logon ke pas aya hun woh yeh hai keh ab se talwar ke jihad ka khatima hai (I have brought a commandment for you people; it is that henceforth jihad by sword is forbidden). Ab jihad din ke liye haram hai (Now jihad for the sake of religion is prohibited.) REPORT OF THE COURT OF INQUIRY CONSTITUTED UNDER PUNJAB ACT II OF 195 1954 TO ENQUIRE INTO THE PUNJAB DISTURBANCES OF 1953

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Din ke tamam jangon ka ab ikhtitam hai (All wars for religion have now been forbidden.)

Masih ke ane-ka yeh nishan hai keh woh din ki laraiyan khatam kar-dega (The sign for the advent of Messiah is that he will stop wars for religion.)

Main ne jihad ki mumanaat ke bare men nihayat muassir taqriren kin (I made effective speeches in support of prohibition of jihad.)

Main ne jihad ke khilaf sad-ha kitaben tehrir kar-ke Arab aur Misr aur Bilad-i- Sham aur Afghanistan men Government ki taid men shae ki hain (I have written hundreds of books against jihad and published them in Arabia, Egypt, Syria and Afghanistan in support of the Government.)

Masih mauud ke waqt qat-an jihad ka hukam mansukh kar-diya gaya (The injunctions relating to jihad were abrogated in toto during the time of the promised Messiah.)

Ab zamin ke fasad band kiye gaye (Tumult on earth has, henceforth, been stopped.)

Ab jo din ke liye, talwar uthata hai aur ghazi nam rakh-kar kafiron ko qatl karta ai woh Khudawand-taala aur ua-ke rasul ka na-farman hai (He who draws his sword and, claiming to be a ghazi, kills infidels, disobeys God and His Prophet.)

Mere firqe men jis-ka Khuda ne mujhe imam aur rah-bar muqarrar farmaya hai talwar ka jihad bilkul nahinYeh firqa is bat ko qat-an haram janta hai keh din ke liye laraiyan ki jain (Jihad with sword is totally prohibited for my community, for whom God has appointed me imam and guide. This community considers it totally prohibited (haram) to fight wars in the name of religion

Islam men jo jihad ka masala hai meri nigah men us se badtar Islkam ko badnam karne wala aur koi masala nahin (In my opinion, no doctrine defames Islam more than the doctrine of jihad.)

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