** (Series of answers by the scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to questions from visitors to his Facebook page) **
To Duaa Al-Furqan
Question:
Our honorable Ameer, Assalamu Alaikum Wa Rahmatullah Wa Barakatuh, and may Allah grant victory at your hands.
It was mentioned in the book Al-Amwal (Funds in the Khilafah State) regarding the subject of fines, pages 123-124: (Likewise, taking half of his property from the one who withholds Zakat, in addition to the obligatory Zakat, as a discretionary punishment (tazir) for him. Abu Dawud and Ahmad narrated from the Prophet ﷺ: "...And whoever withholds it, then we will take it and half of his property").
It appears from what was mentioned that the adopted position is the permissibility of taking a fine from the one who withholds Zakat as a tazir punishment, despite the existence of many differences among the jurists regarding its legality. However, what I would like clarification on is:
1- The full Hadith used as evidence in terms of its chain of narration (isnad) and text (matn). I searched for it and only found a Hadith: narrated by Bahz bin Hakim from his father from his grandfather in a marfu’ form: "For every grazing camel, for every forty, one bint labun. Camels shall not be separated from their count. Whoever gives it seeking reward, he shall have his reward. And whoever withholds it, we shall take it from him and half of his camels (shatra ibilihi); it is an obligation from the obligations of our Lord, Jalla wa ‘Azza. Nothing of it is lawful for the family of Muhammad." Narrated by Ahmad.
And in Sunan Abu Dawud: Narrated by Bahz bin Hakim from his father from his grandfather that the Messenger of Allah ﷺ said:
فِي كُلِّ سَائِمَةِ إِبِلٍ فِي أَرْبَعِينَ بِنْتُ لَبُونٍ، وَلَا يُفَرَّقُ إِبِلٌ عَنْ حِسَابِهَا مَنْ أَعْطَاهَا مُؤْتَجِرًا - قَالَ ابْنُ الْعَلَاءِ مُؤْتَجِرًا بِهَا - فَلَهُ أَجْرُهَا، وَمَنْ مَنَعَهَا فَإِنَّا آخِذُوهَا وَشَطْرَ مَالِهِ، عَزْمَةً مِنْ عَزَمَاتِ رَبِّنَا عَزَّ وَجَلَّ، لَيْسَ لِآلِ مُحَمَّدٍ مِنْهَا شَيْءٌ
"For every forty grazing camels, one bint labun (a female camel in its third year) is due. No camel shall be separated from its count. Whoever gives it seeking reward – Ibn al-‘Ala’ said: seeking reward therein – he shall have his reward. And whoever withholds it, we shall take it and half of his property (shatra malihi); it is an obligation from the obligations of our Lord, the Mighty and Sublime. Nothing of it is lawful for the family of Muhammad." (Sunan Abu Dawud)
As for the wording "then I will take it and half of his property" (fa’ana akhidhuha wa shatra malihi), I did not find it.
2- What is meant by "half of his property" (shatra malihi)? Is it half of his entire wealth? Or half of the wealth for which he withheld Zakat? Or half of what is estimated to be paid as Zakat from his wealth? Or, as mentioned by some, that his wealth is divided into two halves and the Zakat collector chooses and takes the Zakat from the better of the two halves as a punishment for his withholding of Zakat? May Allah bless you and reward you with the best of rewards on our behalf.
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,
Regarding the Hadith you mentioned: «فَإِنَّا آخِذُوهَا وَشَطْرَ مَالِهِ»
1- Abu Dawud extracted from Bahz bin Hakim, from his father, from his grandfather, that the Messenger of Allah ﷺ said:
فِي كُلِّ سَائِمَةِ إِبِلٍ فِي أَرْبَعِينَ بِنْتُ لَبُونٍ، وَلَا يُفَرَّقُ إِبِلٌ عَنْ حِسَابِهَا مَنْ أَعْطَاهَا مُؤْتَجِرًا - قَالَ ابْنُ الْعَلَاءِ مُؤْتَجِرًا بِهَا - فَلَهُ أَجْرُهَا، وَمَنْ مَنَعَهَا فَإِنَّا آخِذُوهَا وَشَطْرَ مَالِهِ، عَزْمَةً مِنْ عَزَمَاتِ رَبِّنَا عَزَّ وَجَلَّ، لَيْسَ لِآلِ مُحَمَّدٍ مِنْهَا شَيْءٌ
"For every forty grazing camels, one bint labun is due. No camel shall be separated from its count. Whoever gives it seeking reward – Ibn al-‘Ala’ said: seeking reward therein – he shall have his reward. And whoever withholds it, we shall take it and half of his property, it is an obligation from the obligations of our Lord, the Mighty and Sublime. Nothing of it is lawful for the family of Muhammad." (Sunan Abu Dawud)
2- Ahmad and An-Nasa'i extracted, and the wording is according to Ahmad, from Bahz bin Hakim, from his father, from his grandfather who said: I heard the Prophet of Allah ﷺ say:
فِي كُلِّ إِبِلٍ سَائِمَةٍ. فِي كُلِّ أَرْبَعِينَ ابْنَةُ لَبُونٍ. لَا تُفَرَّقُ إِبِلٌ عَنْ حِسَابِهَا. مَنْ أَعْطَاهَا مُؤْتَجِرًا فَلَهُ أَجْرُهَا، وَمَنْ مَنَعَهَا فَإِنَّا آخِذُوهَا مِنْهُ وَشَطْرَ إِبِلِهِ عَزْمَةً مِنْ عَزَمَاتِ رَبِّنَا لَا يَحِلُّ لِآلِ مُحَمَّدٍ مِنْهَا شَيْءٌ
"For every grazing camel, for every forty, one bint labun. Camels shall not be separated from their count. Whoever gives it seeking reward, he shall have his reward. And whoever withholds it, we shall take it from him and half of his camels; it is an obligation from the obligations of our Lord. Nothing of it is lawful for the family of Muhammad." (Musnad Ahmad)
• This Hadith is subject to different understandings among the jurists:
Some of them argue for abrogation (naskh), stating that nothing but Zakat is taken. Others say the narration of "shatra" is not as such with a sukun on the ta, but rather it is in the passive voice «شُطِّر» (shuttira), meaning his wealth is divided into two halves and the Zakat collector chooses from which half he takes. Others say the narrator was mistaken (wahima), and it is actually "we take it from a portion of his property" (min shatri malihi) or "from a portion of his camels" (min shatri ibilihi)...
• What I find most correct in the matter is the following:
A- Regarding the issue of the passive voice, the narrator's error, and abrogation, I exclude all of that:
The passive voice is excluded because the word «شطر» in all the reliable narrations of the Hadith is mentioned without being in the passive voice.
As for the error (wahm), it is likewise excluded because the narration is not «فإنا آخذوها منه شطر ماله» for it to be said that the "ha" in «منه» is an error by the narrator. Furthermore, an error here is unlikely because it is improbable for a narrator proficient in Arabic to say «منه شطر ماله». So how can it be when the letter waw (and) follows «منه»? If it is said he erred in the phrase «منه وشطر» instead of «من شطر», this is highly improbable.
This is regarding the passive voice and the error. As for abrogation, it is also excluded because the chronology is unknown, the evidence for abrogation is not clear to them, and the general evidences for Zakat do not abrogate the specific evidence for Zakat regarding the punishment of the one who withholds it.
B- What I find most correct is that the first Hadith: «فَإِنَّا آخِذُوهَا وَشَطْرَ مَالِهِ» indicates that Zakat is taken from the withholder by force, and he is fined half of his property. It is possible to understand from it the half of all his property, i.e., that which Zakat was due upon and other properties that did not reach the nisab (minimum amount) for Zakat, such as gold, silver, camels, cows, sheep, wheat, barley, dates, raisins, and trade goods.
C- The other Hadith: «فَإِنَّا آخِذُوهَا مِنْهُ وَشَطْرَ إِبِلِهِ» after mentioning the Zakat of camels «فِي كُلِّ إِبِلٍ سَائِمَةٍ...», means that the half is added to the camels he owns. That is, the Zakat of his camels is taken, plus half of the camels. To put it more clearly, if he had forty grazing camels, their Zakat is one bint labun, then another fine is taken from him, which is half of the forty.
D- The second Hadith specifies the Hadith that preceded it, meaning he is not fined half of all his wealth, but rather half of the specific property subject to Zakat.
E- As for the meaning of shatr, whether it is the half or a part, it is stated in Al-Qamus al-Muhit: (Ash-shatr: half of a thing and its part). Therefore, this is left to the adoption of the Khalifah regarding the one who withholds Zakat: either he takes the Zakat and half of the wealth subject to Zakat, or he takes from him the Zakat and a part of the wealth subject to Zakat, as a fine for his withholding of Zakat... Though I incline towards it being half because it is a fine, and a fine carries the meaning of punishment and severity. And Allah knows best and is most wise.
For your information, we have mentioned this subject in the evidences for fines (gharamat), meaning that taking half of his property is a fine, as stated in the book Al-Amwal and the book Nizam al-'Uqubat (The Penal Code).
Your brother, Ata Bin Khalil Abu Al-Rashtah
Link to the answer from the Ameer's Facebook page