Law of Qisas in Islam and its Legislation in Pakistan.

Qisas

Qisas is an  arabic term it means “Legal Retaliation," and follows the principle of an eye for an eye. This is the second type of punishment in Islamic Law.  This is where the perpetrator of the crime is punished with the same injury that he caused to the victim.  If the criminal killed the victim, then he is killed.  If he cut off or injured a limb of the victim, then his own limb will be cut off or injured if it is possible without killing the criminal. 

Allah Almighty says:

“O you who believe, retribution is prescribed for you in the case of murder...”[1]

Types of murder

 There are three types of killing:

·         Premeditated murder  (Intentional murder)

·         Quasi-premeditated murder (Quasi intentional murder)

·         Manslaughter (Murder by mistake)

Premeditated murder (Intentional murder)

In arabic it is called Qatl-al-amd. It means the murder in which one intentionally kills a human being while being aware that his blood is inviolable by attacking him with something fatal. 

Allah Almighty says:

“If a man kills a Believer intentionally, his recompense is Hell, to abide therein (for ever): and the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him.”[2]

 Conditions liable for Qisas:

·         Having the intention of killing

·         Being previously aware of the inviolability of the victim’s blood as a human being.

·         The weapons or the tool used is a fatal one, whether it is specified for killing or not.

Therefore, if these conditions are not present, the cases will not b regarded as premeditated murder.

Quasi-premeditated murder(Quasi intentional murder)

According to faqihs, quasi-premeditated murder occurs when someone kills anther with the intention of causing him harm or injury, not death. Such a cause is regarded as quasi-premeditated murder whether the murderer’s purpose is aggression or mere disciplinary punishment, as the offender exceeds the limits in doing so until results of death. It is called “quasi-premeditated murder” as the perpetrator just intends harm or injury, but he unintentionally kills the victim.

          Abu Hurayrah narrated:

“Two women from (the tribe of) Hudhayl fought with each other and one of them hit the other a stone that killed both her and the fetus she carries. The killer’s agnate relatives and those of the victim their case to the Prophet (PBUH) who judge that the diyah for the murderer women was to be paid by the murderer’s agnate relatives”

Manslaughter (Murder by mistake)

Manslaughter occurs when someone kills an inviolable human being by mistake while doing something permissible for him to do, such shooting or hunting.

If a Muslim kills a Muslim mistakenly in aware believing that heist one of the disbelievers, there will be nothing obligatory on him except for the expiation.

             Allah Almighty says:

It is not for a believer to kill a believer except (that it be) by mistake, and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and a compensation (blood money, i.e Diya) be given to the deceased's family, unless they remit it. If the deceased belonged to a people at war with you and he was a believer; the freeing of a believing slave (is prescribed), and if he belonged to a people with whom you have a treaty of mutual alliance, compensation (blood money - Diya) must be paid to his family, and a believing slave must be freed. And whoso finds this (the penance of freeing a slave) beyond his means, he must fast for two consecutive months in order to seek repentance from Allah. And Allah is Ever All-Knowing, All-Wise.[3]

Allah, Exalted be He, stated tow kinds of manslaughter:

First:  the first kind of manslaughter is that in which the expiation is obligatory on the murderer and the diyah on his agnate relative. This kind involves killing a believer unintentionally without mistaking him for a disbeliever in the battlefield. The same ruling applies to the case of unintentional killing of one those with whom Muslim have a peace treaty.

Second: the second kind of is that in which only the diyah is obligatory. This kind involves killing a believer unintentionally in the battlefield, mistaking him for one of the disbelieving enemies.

Qisas for Murder

Muslim scholars unanimously agree on the legality of qisas (legal retribution) for murder in the case of permeditated murder provided the conditions of such a murder are met.

   Allah Almighty says:

“O you who believe! Al-Qisas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female……..[4]

Allah Almighty says:

“And we ordained for them therein a life for life……”[5]

In addition Allah Almighty says:

“And there is for you in legal retribution (saving of) life, O you (people) of understanding, that you may become righteous.”[6]

The Sunnah states that the heir or legal representative of the murdered person would choose one of three choices: to seek qisas, to pardon the murderer in returned for the diyah, or to pardon him and give it up, which is considered the best thing to do.

Abu Hurayrah narrated that Holy Prophet (PBUH) said:

                   “Whoever suffers the murder of a relative, he has the choice between two options: either he may receive the payment of diyah (blood money) or he may choose qisas (legal retribution)”

Allah Almighty says:

But if the killer is forgiven by the brother (or the relatives, etc.) of the killed against blood money, then adhering to it with fairness and payment of the blood money, to the heir should be made in fairness. This is alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood money), he shall have a painful torment.[7]

Thus, both the verse and habith mentioned above indicate that the relative or the legal representative of the deceased has the right to choose between carrying out the qisas and receiving the diyat.

Allah Almighty says:

                    “…….And to forego it is nearer to righteousness…..”[8]

Abu Hurayrah narrates that Holy Prophet says:

“No person forgives an act of injustice (done to him) but Allah will add to his honor for it”

Conditions of Qisas:

The heirs or the legal representatives of the killed person do not have the right of qisas (legal retribution) unless the following four conditions are met:

·         The murdered person must be one of those whose blood is inviolable, as qisas was ordained person to save human lives. Thus, if a Muslim kills a disbeliever whose people are in a state of war with Muslims, or if he kills an apostate before the latter declares his repentance or an adulterer, there will be neither qisas nor diyah due on the part of   the perpetrator. Yet, he is to undergo discretionary punishment for arrogating to himself the ruler’s authority.

·         The murderer must be mature and sane, for qisas is a severe punishment that is not permissible to be applied to a minor or an insane.

Sayings of the Holy Prophet (PBUH):

“There are three (persons) whose actions are not recorded; until he awakes, a minor until he reaches puberty, and a lunatic until he comes to reason.”

·         They must be equal in religion, and freedom or slavery.

Sayings of the Holy Prophet (PBUH):

“No Muslim should be killed in qisas (legal retribution) for killing a disbeliever.”

·         The murdered person must not be one of the murderer’s children or descendents. [9]

Sayings of the Holy Prophet (PBUH):

“A parent is not to be killed (in qisas) for his/her child.”

Qisas for the Parts of Body and Wounds:

The qisas for the parts of body and wounds is stated in Quran and Sunnah and in the consensus of Muslim scholars. Allah says:

“And We ordained for them therein a life for life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wound is legal retribution…” (Quran: Al-Maidah: 45)

The Holy Prophet says:

“(The law prescribed in) the Book of Allah is qisas.”

Three conditions for the validity of the qisas for parts of the body:

First: There must be assurance that there will be neither injustice nor transgression.  That is, cutting off the part of the body in retaliation must be from a specific joint or to a certain point. Thus if there is no specific limit, retaliation will be impermissible. As for breaking someone’s tooth, the qisas can be accurately applied by rasping the tooth of the perpetrator until it becomes just like that of the victim broken by the former.

Second: There must be equivalence between the part of the body of the offender and that of the victim in both name and location. That is, a right organ is not to be cut off in retribution for cutting off a left one and vice versa; this applies to hands, legs, eyes, ears and the like. For example, a little finger is not to be cut off in retaliation for a ring finger, for each has a different name.

Third: The body part of the perpetrator in question must be in the same condition as that of the victim regarding soundness and completion. So a sound, functional hand or leg is not to be cut off in retaliation for a paralyzed one. Likewise, a hand or leg with complete fingers is not to be cut off for a defective hand or leg. Similarly, a sound, articulate tongue is not to be cut off in retribution for a speechless one, due to the inferiority of the latter.

Contrarily, a defective organ can be cut off in retribution for a sound, complete organ. That is, a paralyzed limb can be cut off for a functional one, and a defective limb can be cut off in retaliation for a sound one. This is because the defective organ is similar to the sound organ in respect of the nature of creation, but they differ in quality. Moreover by cutting off the defective organ, the one who has the right of qisas receives part of his right, so there will be neither injustice nor excessiveness.

Qisas for Wounds:

The qisas is to be carried out for every wound that reaches the bones, as it can be exacted with neither injustice nor excessiveness, such as the wound of the head, face, upper arm, leg, thigh and foot. As Allah says:

                        “……and for wounds is legal retribution…..” (Al-Maidah: 45)

As for the wounds that do not reach the bones, it is impermissible to apply the qisas to them, even if they are head wounds or the like. To illustrate, there is no retribution applicable as regards the case of the wound ion the internal part of the abdomen, the chest or the upper part of the chest, as the depth of the wound cannot be specified so there is no assurance that there will be neither injustice nor excessiveness. In this regard, Ibn Majah related that the Prophet (PBUH) said:

“No qisas is to be executed in a skull-fracturing wound, an abdomen deep flesh-cutting wound, nor a bone breaking and dislocating wound.”

Moreover, Shaykh-Islam Ibn Taymiyah(may Allah have mercy on him)said: [10]

“The qisas for wounds is stated by the Noble Quran, the Sunnah and the consensus of Muslim scholars, provided that the retaliatory injury is just like the original one. That is, if the head of a person is fractured by someone, the injured person has the right to retaliate for in the same way, but if it is unattainable to exact just, accurate retribution as in the case of breaking an internal bone or any other kind of head fracture less in degree than a bone clearing wound, retribution becomes impermissible, and the diyah (indemnity) becomes obligatory instead.”

Moreover Ibnul-Qayyim(may Allah have mercy on him) said:

“The Shafi, Hanafi, Maliki, and late Hanbali scholars maintain that there is no retribution for a slape or strike. Some of them claim that there is a juristic consensus on this, exceeding the analogical deduction, the obligation stated in the legal texts (of the Quran and Sunnah) as well as the consensus of the Prophet’s companions. Moreover Allah Exalted be He, says, ‘And if you punish [an enemy, O believers], punish with an equivalent of that with which you were harmed…..’  (An-Nahl: 126)[11]

  Qisas when a Group Kills an Individual:

When a group of people premeditatedly and wrongfully kills an individual, the whole group is to be killed in qisas according to the most preponderant opinion adopted by the Muslim scholars (may Allah have mercy on him). This opinion is based on the general meaning of the Quranic verse in which Allah, Exalted be He, says:

“O you who have believed, prescribed for you is legal retribution for those murdered….. And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.” (Al-Baqarah: 178-179)

The aforementioned opinion is also the one unanimously maintained by the Prophet’s Companions. To illustrate, Sa’id Ibnul-Musayyab reported that ‘Umar Ibnul-Khattab (may Allah be pleased with him) had killed seven men of the people of Sana in retribution for killing one man. ‘Umar saif: “If all the people of Sana had acted together in killing him, I would have killed them all in qisas.” It is also stated that other companions were of the same opinion, and they would killed a group of people in retribution for killing one person; there was none who disagreed with them, so there was a consensus on this juristic view.

The great Muslim scholar Ibnul-Qayyim(may Allah have mercy on him) said: “The companions and the majority of faqihs unanimously agree on the ruling that a group of people are to be killed (in retribution) for killing one person, though it may appear to contradict the basic principle of qisas, namely saving of lives. They maintain so as not to let the non-application of the qisas to a group of murderers be the pretext for further conspiracy to shed blood.”

Moreover, Ibn Rushad said:

 “The wisdom behind the application of the qisas for murder   is to avoid further murder as stated in the Quran. Thus if a group of conspirators is not killed in retribution for killing an individual, people will band together in killing. Another reason is that retaliation and deterrence are not attained except through killing all the murderers (in qisas).”

Furthermore, if two persons conspired and premeditatedly killed someone unjustly, and one of the two does not meet the conditions for the application of the qisas, it is to be applied only to the other one who meets them (i.e. he is to be killed in qisas), as he has participated in a murder intentionally and wrongfully. That is, the qisas for murder, namely capital punishment, is not to be applied to his partner due to the absence of the conditions obligating the qisas on him, not due to absence of the reason for the qisas. Accordingly, the qisas is to be applied to the one who meets the conditions obligating it. In this connection, if someone holds a person for someone else to kill, the killer is to be killed in qisas, and the other, who has held the victim for him, is to be given life imprisonment.

The ruling applied to the group killing an individual is the same ruling applied in the case of injuries to parts of the body and wounds caused by a group to an individual. To clarify, if a group of people participates in damaging or cutting off a part of the body of a person or wounding him, the qisas (namely a similar injury) is applied to every member of the group, provided their actions in the crime are undistinguished from one another. For example, if they put a piaece of iron on the hand of a person and begin to press heavily on it until his hand is cut off, and then the hands of them all are to be cut off in qisas. This is based on the fact that two witnesses came to ‘Ali Ibn Abu Talib (may Allah be pleased with him) and testified against someone that he had stolen. Thereupon, ‘Ali ordered to amputate the hands of the thief (as a prescribed punishment). After that, they (tow witnesses) came to hi m along with another person and said, “This is the real thief, as we were wrong concerning the first one.” ‘Ali Ibn Talib rejects their testimony concerning the second man and obligated them to pay an indemnity to the first, and said to them: “If I thought you had intentionally testified against the first, I would have amputated your hands.” This incident indicates that the qisas, namely cutting their hands off, would have been applied if they had intentionally testified against the man. The qisas is estimated according to the consequences of the offence, whether the consequence is death or minor result. This is because the resulting effect of an offence is the actual crime. It is permissible to apply the qisas for an injury or a wound before it heals to verify that there is no further damage. This is due to the hadith narrated by Jabir in which he said:

“A man was wounded and he wanted qisas to be applied to the offended. However, the Prophet (PBUH) forbade applying qisas to the culprit until the wounded person was wholly recovered.”

This is surely in the best interest of the victim, as it verifies that the wound will neither affect the function of any other part of the body nor cause death. Therefore, if the claimer opposes this rulling and exacts the qisas before he whooly recover, and then his wound spreads the effects another part of the body, he has no right to seek any kind of qisas for the effects of the injury.

Hereby, Muslims come to know the virtues of their Shari’ah (Islamic law) and realize the perfect justice and the broad mercy it encompasses. True are the words of Allah, Who says:

“And the word of your Lord has been fulfilled in truth and in justice. None can alter His words, and He is the Hearing, the Knowing.”

So, woe to those who replace the sacred Shariah was unjust, innovated, defective, imperfected laws. Allah Almighty says about such people and their innovated laws:

“….Wretched it is for the wrongdoers as an exchange.” (Al-Kahf)[12]

Legislation of Qisas in Pakistan’s Penal Code.(PPC).

Historical Development of the Enforcement of Qisas Law in Pakistan.

The incorporation of the Qisas law in Pakistan Penal Code, 1860 was initiated in 1990.the background of this law is that in the Gul Hassan case, the analysis of the provisions, relating to the offences against human PPC relating to the offences against human body including section 302, PPC are repugnant to Injunctions of Islam as enshrined in the Holy Quran and Sunnah and held that the decision of the court will be effective on 23^rd March 1990.

Two review petitions and miscellaneous petitions were field thereafter.In this context, the learned Attorney-General of Pakistan in the case of Federation of Pakistan and another v. N.W.F.P. Government and others made the statement that the Government is in the process of promulgating the ‘Qisas Ordinance,’ which will be promulgated by 5^th September, 1990 and he prayed that the review petitions may be disposed of in the light of his above statement, as these have become in fructuous. Accordingly the Court passed the orders, providing for the promulgation of a new ordinance with the provisions of Qisas, on 5^th September, 1990.

Pursuant to the above court’s order, the first Qisas Ordinance was promulgated vide Criminal Law (Second Amendment) Ordinance, 1990 on 5-09-1990 to be effective from 12 Rabi-ul-Awwal 1411 A.H. This ordinance caused amendment and substitution of the provisions of sections 53, 109 and 299 to 338. PPC, 1860, which were derived from British Common Law. Certain provisions of Pakistan Criminal Procedure Code were also amended to bring them in alignment with the amended provisions of Pakistan Penal Code

The provisions of Qisas were re-promulgated and enforced in the form of ordinance for 20 times from 1991 to 1996, each time with some changes.

The legislature ultimately accorded the approval to the ordinance No. CXIII of 1996containing provisions of 

Qisas on 11^th April 1997 as Act II of 1997 called the Criminal (Amendment) Act, 1997.III. A Quick Review of the Concept of Qisas Incorporated in the PPC. the provisions of Qisas law, as incorporated in the PPC, under Chapter XVI, in a nutshell deal with the offences affecting human body and life. They provide punishment of Qisas, which

“Means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-e-amd in exercise of the right of the victim or a wali.” 

The following four categories of murder have been specified in PPC:

1. Qatl Shibh-i-Amd.

 2. Qatl-e-khata

 3. Qatl-bis-Sabab 

 4. Qatl-e-amd 

Two types of abortions i.e. Isqat-i-Haml and Isqat-i-janin in addition to several categories of hurt/injury, both intentional and unintentional have also been defined. The basis of the above classification of murder, abortion and hurt/injury is Fiqh and not the Holy Qur’an except murder by mistake ( Qatl-e-Khata).

Disputed Provisions:

The review of Qisas provisions as included in the P.P.C., on the touchstone of Qur’an and Sunnah (precepts and actions of the Holy Prophet (PBUH) revealed that the provisions identified and reproduced here-in-below, are either contradictory to the injunctions of Islam or are not being enforced in the true spirit of Islam.[13]

“Section 302”. Punishment of Qisas for Qatl-e-amd:

Whoever commits Qatl-e-amd shall subject to the provisions of this chapter be;

·         punished with death or Qisas;

Proof of Offences:

i) “Section 304” Proof of Qatl-e-amd liable to Qisas, etc.

(1) Proof of Qatl-e-amd liable to Qisas shall be in any of the following forms, namely:

(a) The accused makes before a Court competent to try the offence, a voluntary and true confession of the commission of the offence.

(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No.10 of 1984).

Exemptions from Qisas:

 “Section 306” Qatl-e-amd not liable to Qisas.

 Qatl-e-amd shall not be liable to Qisas in the following cases, namely:

·         when an offender is minor and insane.

·         when the offender causes the death of his child or  grandchild how low-so-ever; and 

·          when any wali of the victim is a direct descendent, how low-so-ever, of the offender 

Section 307 Cases in which Qisas for Qatl-e-amd shall not be enforced:

Qisas for Qatl-e-amd shall not be enforced in the following case, namely:

·         When the offender dies before the enforcement of Qisas.

·         When wali voluntarily and without duress, to the satisfaction of the court, waives the right of Qisas under section 309 or compounds under section 310. And

·         When the right of Qisas devolves on the offender as a result of the death of the wali of the victim.

Ø  Concept of wali: 

·         “Section 299 (m)” “Wali” means a person entitled to claim Qisas

 “Section 305” Wali. In case of a qatl,

·         the wali shall be:

a)      The heirs of the victim, according to his personal law.

b)       The government, if there is no heir.

Compounding of Offences

“Section 309” Waiver-Afw of Qisas in Qatl-e-amd:

(1) In the case of Qatl-e-amd an adult sane wali may, at anytime and without any compensation, waive his right of Qisas. Provided that the right of Qisas shall not be waved:

a) Where the Government is the Wali.

b) Where the right of Qisas vests in a minor or insane.

(2) Where a victim has more than one wali, any one of them may waive his right of Qisas.

“Section 310” Compounding of Qisas (Sulh) in Qatl-e-amd:

(1)   In the case of Qatl-e-amd, an adult sane wali may, at anytime on accepting badl-i-sulh, compound his right of Qisas:

(2)   Provided that a female shall not be given in marriage or otherwise in badl-i-sulh.

“Section 313(b)” Right of Qisas In Qatl-e-amd:

(1)   Where there is only one wali, he alone has the right of Qisas in Qatl-e-amd but, if there is more than one, the right of Qisas vests in each one of them.

(2)    If the victim has no wali other than a minor or insane or one of the wali is a minor or insane, the father or if he is not alive the paternal grandfather of such wali shall have the right of Qisas on his behalf: Provided that, if the minor or insane wali has no father or paternal grandfather, how high-so-ever, alive and no guardian has been appointed by the court, the Government shall have the right of Qisas on his behalf.

Application of the provisions of Qisas on Non-Muslims:

The prevalent law is silent on the point of the application of the provisions of Qisas in P.P.C., on non-Muslims. However since the criminal law is applicable to all the citizens and residents at the relevant time alike, it can be concluded that it is applicable to the non Muslims also.[14]

---

[1] Al-Quran 2:178

[2] Al-Quran 4:93

[3] Al-Quran 4:92

[4] Al-Quran 2:178

[5] Al-Quran 5:45

[6] Al-Quran 2:179

[7] Al-Quran 2:178

[8] Al-Quran 2:237

[9] Dr.Salih Al-fawzan, “A Summery of Islamic jurisprudence” pp. 515-527.

[10] . Fawzan, Dr.Al.S. (2001). A summary of Islamic Jurisprudence.  Dawa Foundition. Vol:2 pp. 22-24.

[11] . An-Na'im, Abdullahi Ahmed An-Na'im. (1946). Toward an Islamic reformation. America: Library of Congress-cataloging in publishing data. P.161.

2. Qasmi, A. H.  (2006). International encyclopaedia of Islam. Published by Isha books. India: p. 9 .

[13] Zahra, syeda Arfa(2011) Pakistan review of Qisas and Diyat 2003.Pakistan: pp22-34

[14] Nizamai, M.M.Hassan.(1999) The Pakistan penal code with commentary and shriat criminal laws.Lahore: P.L.D Publishers. Pp 395 to 422

Introduction of Zakat:

Literal meaning of Zakah

 Zakah in language is an infinitive of the verb zakah. Zakah means to grow and to

increase.Consequently zakah is blessing, growth, cleanliness, and betterment. In Lisan al Arab it is said, "The root of the word zakah in Arabic means cleanliness, growth, blessing, and praise.

Importance

Zakat is a very important matter. It relates to one of the pillars of Islam. Allah describes the taking of Zakat in the following manner.Zakat is one of the foundations of Islam. If the foundation is weak, then this weak foundation will have ramifications for other aspects of our lives. The Messenger of Allah (peace be upon him) was ordered to fight the people until they made the Shahadah, established prayer and paid Zakat. Abu Bakr continued that teaching after him. What does that mean for us today? Does that mean that if they were alive today, we would be from those who would be fighting alongside them or would we be from those whom they would be fighting?

After Salat, comes Zakat, which in its broadest sense includes any act of service to other men. Being good to others is the fruit and therefore the proof o f the tree of faith. He is not truthful who harms men and yet claims to believe in and love God.  The wisdoms behind the legislation of Zakat are to purify of human soul from vices of stinginess,greed, envy and lustfulness. It is also to comfort the poor and fulfil the needs of the needy,distraught and deprived people. From a wider view, Zakat is to establish comprehensive benefits that the life of the Muslim community and its happiness depend upon. Clearly, Zakat also limits the inflation of wealth among the wealthy, and at the hands of the businessmen and merchants.This is so that the wealth will not be restricted solely to one limited group of people, nor controlledby only the wealthy.

 The Prophet Muhammad PBUH said:

“By the One Whom there is no (true) god besides Him, there is no man who has camels or cows or sheeps, and he does not pay their Zakat, except that they will be brought to him on the Day of Resurrection larger and fatter than they ever were. And they will trample him with their hooves and gore him with their horns. Every time the last of them passes, the first will be returned to him (to start over). This will continue until judgement is passed between all the people” (Al-Bukhari)^[1]

It also appears from the Torah that it was incumbent on the people of  Bani israil to give one tenth of the produce of cultivation of crops and breeding of animals [leviticus27:30-32].

It is also stated in the Bible that the one who repents of his sins is better than one who is hypocrite and gives his tenth (zakat)for show and pride [Luke18:9-14].In the same book Jesus Christ said that if a rich person deposits a large sum of money as his Zakat in the treasury of the temple, while in contrast a poor  widow deposits only two mites with sincerity of the heart ,the value of the latter’s zakat is far greater than that of the wealthy person [luke 21:1-4].^[2]

Zakat on Agriculture:

 In sura al An'am God said, "It is He who produceth gardens with trellises and

without, and palm-trees and tilth with produce of all kinds, and olives and pomegranates similar in kind and different in variety, eat of their fruit in their season but render the dues that are proper on the day the harvest is gathered but waste not by excess for God loves not the waster."

God brings to the attention of His servants that there is a prescribed right on the fruits of earth. This right should be paid on the day of harvest. Sa'id bin Jubair noted that "before zakah was revealed, a person was required to give out of the crops to orphans and indigents." This is a right that is not determined to be one-tenth or one half of a tenth. It is left to the sincerity of the farmer, and according to the need of the indigents. Later in Madinah the Messenger of God, (p), determined the rate of this right by making it one-tenth or one half of a tenth on crops that are in excessof five wasq.

On the other hand, it is because of this condition that scholars declare that zakah on

crops and fruits does not repeat every year. Once the ten percent zakah is paid on them,no more zakah is imposed even though these crops and fruits may remain owned in storage by the same owner for several years, because crops and fruits after being harvested do not grow anymore, and zakah is repeated yearly only on growing assets. In contrast, livestock is zakatable every a year because of its continuous growth. ^[3]

Usher:

Literally Usher means one tenth. Thus every single fraction of tenth is called usher.[4]

As an Islamic concept, however, usher is considered to be certain portion of agricultural products,, like zakat. It falls under the zakat heading.

Usher, the term given to the zakat of harvest obtained from land through cultivation.

Prophet PBUH states that:

There is an usher on crops that grow by rain water, stream or by themselves through absorbing water into their roots, and half usher is on irrigated crops.

Including a slight difference in minor details,all school are in agreement that crops grown effortelessly require a zakat of 1 tenth.and those grown with grater effort entail a zakat of 1 twentieth.

The hanif school, by virtue of taking into consideration the generalization of the judgment with in the verse, have laid down that usher can be acquired on all kinds of agricultural harvest, contrary to the opinion of Muhammad ibn idris al sjhfi, who suggest that crops that are able to be stored for a long time are subject to zakat. The maliki and Hanbali schools, almost in line with the hanif scholars, maintain that agricultural crops should all be considered for usher.

Evidently, the Hanfi School handle this issue with in a more extensive manner. Where upon crops that are become significant source of income in many countries such as cotton, linen, sugarcane and so on….., are effectively included in the process of usher collection, thus expediently balancing the number of rich and poor in the society.[5]

Zakkah on Crops and Fruits:

In the Qur'an:

            A. Allah says, "O ye who believe, give of the good things which ye have earned and of the fruits of the earth which We have produced for you, and do not even aim at getting anything which is bad in order that out of it ye may give away something, when ye yourselves would not receive it except with closed eyes." The obligation of zakah is inherent in this command to spend. Very often Qur'an uses the word "spending" for zakah. Al Jassas comments on this verse, "What is meant is zakah, especially since the following sentence forbids selecting bad goods as payment. Earlier and later generations agree that zakah is what is meant in this verse."

            B. Allah says, "It is He who produced gardens, with trellises and without, and dates and tilth with produce of all kinds, and olives and pomegranates, similar (in kind) and different (in variety). Eat of their fruit in their season but render the dues that are proper on the day that the harvest is gathered."

            Many of the predecessors interpret "dues" in this verse to be due zakah. Al Tabari reports that Anas interprets this verse to mean the obligatory zakah. He also reports from Ibn 'Abbas, through several chains, "it is the one-tenth and the half-tenth dues." Another version from Ibn 'Abbas say, "Dues means the prescribed zakah on the day when the quantity of the harvest is measured and known." It is also reported that Jabir bin Zaid, al Hasan, Sa'id, Muhammad bin al Hanafiyah, Taus, Qatadah and al Dahhak interpret the verse as the obligatory zakah i.e. the one-tenth or half-tenth dues." Al Qurtubi says that Ibn Wahb and Ibn al Qasim report the same from Malik. It is also the opinion of some of the disciples of al Shafi'i, and of Abu Hanifah and his disciples as well.

             Others claim that this order came before the specific zakah was prescribed. It was substituted by it when the one-tenth and the half-tenth dues were prescribed. Al Tabari reports from Ibn 'Abbas and from Ibrahim al Nakha'i "surah six is Makkan, and the order was later substituted by the one-tenth and the half- tenth dues. There is also a narration from Muhammad bin al Hanafiyah to the same effect. Sa'id bin Jubair and al Hasan are also reported to share this view. Al Suddi says, "They were taught to give to whoever comes to them on the day of harvest, then zakah was ordained in substitution of that, and God prescribed on what comes forth from the earth dues of one-tenth and one half-tenth. "A similar report is also narrated from Atiyah al 'Awfi.

            Al Tabari, after giving all these reports, concludes that the verse was super ceded later by zakah. He adds that zakah cannot be paid on the day of harvest because drying or cleaning the grain or fruit is necessary. This is surprising from al Tabari since he is usually very cautious about the super ceding of one verse by another. Throughout his commentary he denies many claimed super cedings and annulments. As a matter of principle, annulment of one text by another can only be resorted to when there is complete contradiction between their rulings, to the extent that both texts cannot be worked out together. The relation between the verse "and give its dues on the day of harvest" and the correct hadith that imposes the one-tenth and the half-tenth dues is not that of total contradiction but rather the relation of the general to the specific. It seems that the confusion is a matter of terminology, because the word 'annulment' in Arabic "naskh" is commonly used by predecessors, including many Companions, in a general meaning that covers not only strict elimination of the ruling of the text as defined by the scholars of jurisprudence, but also any restriction of a general text, limitation of an absolute, or details of global rule. In his al Muwafaqat, al Shatibi writes,

      "It seems that earlier scholars used the term "naskh" in more general meaning than the scholars of usul; limiting an absolute text, restricting a general text, providing details of a global one or removing some of the implications of an earlier text by a later one. All this used to be called annulment or naskh, since they all have some common element in their meaning." Ibn al Qayim adds, "Early scholars use the term 'annulment' sometimes in the meaning of eliminating the ruling completely, which is the only use of the term by later generations of scholars. But the former also used the same term to mean restricting or limiting a general or an absolute text."

            In commenting on the reports of substitution of the dues mentioned in the above verse by the later preseciption of zakah. Ibn Kathir says, "Calling this substitution an annulment is not granted, because we have something that was first made obligatory, then its details were provided, and the ratios and quantities were given later on. It is said these details were given in the second year of Hijrah."

            One can conclude that the "proper dues" in the verse are those whose details and descriptions were later given as one-tenth and half-tenth. As for the objection that the right due could not possibly be paid on the day of harvest because of the necessary operations of cleaning or drying, the reply is that the four kinds of produce mentioned in the verse- grain, dates, olives, and pomegranate - do not necessarily need drying and can be dispensed on the day of harvest. Additionally, a few scholars interpret the words "render the dues" as "be ready to pay it."

In Sunnah

            A. Ibn 'Umar narrates that the Prophet (p) said, " On that which is watered by the sky or by springs, one-tenth is obligatory, and on that which is irrigated by carried water a half-tenth is obligatory."

            B. Jabir narrates from the Prophet (p), "One tenth is obligatory on that which is watered by rivers or clouds, and half-tenth is obligatory on that which is watered through means of transported water."

            C. There are also several saying that determine nisab of grains and fruits and sayings that about sending collectors for zakah on agriculture.

      What should be given is food for human consumption, such as dates, wheat, rice or other kinds of food that humans eat. It is reported in al-Saheehayn from Ibn ‘Umar (may Allah be pleased with them both) that the Messenger of Allah (peace and blessings of Allah be upon him) made zakaat al-fitr, one saa’ of dates or one saa’ of barley, obligatory on the Muslims, slave and free, male and female,. (At that time, barley was one of the foods they ate). (Al-Bukhari, 1408)

In another hadith it is stated;

      Abu Sa’eed al-Khudri (may Allah be pleased with him) said: “At the time of the Messenger of Allah (peace and blessings of Allah be upon him), we used to give a saa’ of food on the day of Fitr.” Abu Sa’eed said: “And our food was barley, raisins, aqit (dried yoghurt) and dates.” (Reported by al-Bukhari, 1408).

In ijma'

            Muslims scholars have unanimously agreed on the obligation of the one-tenth or the half-tenth dues, although they may have differences about details.[6]

1. The view that zakah is obligated only on four food items:

            Ibn al-Qayyim (may Allah have mercy on him) said: “If it was said, ‘You must give a saa’ of dates everywhere, whether it is the staple food or not,’ this is a disputed matter which is subject to ijtihad. There are some people who say that it is obligatory, and others who say that in each country it is obligatory to give a saa’ of whatever is the staple food there, as the Prophet (peace and blessings of Allah be upon him) specified five types of food for zakat al-fitr, so in each country they can give the equivalent of a saa’ of their staple food. This is more correct, and is closer to the principles of share’ah, for how can you make it obligatory for people whose staple food is fish, for example, or rice or pearl millet, to give dates? … And Allah is the Source of strength. (I’laam al-Muwaqqa’een, part 2, al-Qiyas).[7]

            'Abd Allah bin 'Umar and a few Followers consider zakah obligatory only on wheat,

barley, date, and raisin . This is also reported from Musa bin Talhah, al Hasan, Ibn Sirin,

            al Hasan bin Salih, Ibn Abi Laila, Ibn al Mubarak, Abu 'Ubaid, and a report from Ahmad. Ibrahim adds a fifth item, corn. They provide the following documents in support of their view:

A. Ibn Majah and al Daraqutni report from Amr bin Shu'aib from his father from his grandfather that "The Messenger of God (p) only enacted zakah on wheat, barley, date, and raisin." Ibn Majah's version adds "corn."

B. A report narrated by Abu Burdah from Abu Musa and Mu'adh that the Messenger (p) sent them to Yemen to teach people and ordered them not to take sadaqah except from these four foods - wheat, barley, date, and raisin.

C. Al-Shaafa'i (may Allah have mercy on him) said: “If the staple food of a people is corn, pearl millet (dukhn), thin-husked barley (sult), rice or any grain on which zakat is obligatory, then they may give it as zakaat al-fitr. (Al-Shafa'i, al-Umm, part 2, Baab al-Rajul yakhtalifu qootuhu)

            Moreover, there is no text or known ijma that imposes zakah on other than these four products. Other crops are not as common as these four and must not be considered similar to them.

2. The view that imposes zakah on edible preserve-able items:

            Malik and al Shafi'i consider edibility and preserve-ability as the necessary conditions

for zakatability of agricultural products. Consequently, wheat, barley, corn, grain, and rice are all zakatable. By "edibility" they mean that the item should be a major foodstuff and not a secondary one, an item that people normally eat for subsistence. Consequently, almond, walnut, and pistachio are not zakatable although they can be stored, while apples pomegranates, pears, peaches, and plums are also not zakatable because they cannot be dried and stored. Malikites differ on the zakatability of figs.

            Malik himself is reported to have excluded figs, plums, pomegranates and all fruits from zakah, while some of his disciples consider figs zakatable because the two conditions of edibility and storability are fulfilled. Al Khurashi counts twenty zakatable food  items which include garbanzo beans, lentil, wheat, barley, rice, dates, olives, raisin, sesame, and others.

            Al Qurtubi says that al Shafi'i believes in no obligatory zakah on fruits except dates and grapes, because the Prophet (p) took zakah on these two products, as primary preservable foods in Hijaz . On the other hand, walnuts and almonds are not zakatable although they are non-perishable, because they were not primary foodstuff in Hijaz, but were used only as fruits. Al Shafi'i continues, "olives are also not zakatable because they are associated with pomegranates in a verse, "and olive and pomegranate" and since the pomegranate is not zakatable, neither must the olive be." There is, however another report from al Shafi'i that olives are zakatable. Which is the opinion of Malik too. Al Qurtubi continues, "They both agree that pomegranates are not zakatable, while according to the verse quoted at the beginning of this chapter, pomegranates must be zakatable."

            Their argument is based on two points. The first is a saying narrated by Mu'adh which reads, "Cucumbers, watermelons, pomegranates, sugarcane , and vegetables are exempt : the Messenger of God (p) exempted them", reported by al Baihaqi in al Sunnan Al Kubra. He also reports a few other sayings and comments, "All these sayings are mursal but there are several narrations of them which must strengthen each other." This is further supported by statements of some Companions such as 'Ali, 'Umar, and 'A'ishah. And the second is that foodstuffs are highly useful, like livestock, so they must likewise be zakatable. Both of these two points do not stand up against the sweeping generalization of the text in Qur'an and Sunnah which indicate that the obligation of zakah is on all that comes from the earth or is watered by the sky.

3. The view that non-perishable crops that can be dried and measured are zakatable:

            Ahmad is reported in al Mughni to have said that these three conditions must be met for zakatability, whether the crop is a food item or otherwise. Thus grain, cotton, sesame, some vegetables and many fruits are included. However, some fruits like apple, pear, peach, and apricot and some vegetables like cucumber, eggplant, and carrot are all not zakatable.

            This view is based on the generality of the saying: "There is one tenth obligatory on that which is watered by the sky " and the Prophet's order to Mu'adh: "Take grain out of grain,"  and the saying: "There is no zakah on grain or date that are less than five wasq"  reported by Muslim and al Nasa'i. This last saying means that for zakatability the measurability is a required condition.

4. The view that anything that stems from the soil is zakatable:

            According to Abu Hanifah anything that is planted and harvested with the intention of making a profit, is zakatable. Natural forests, bushes and plants that grow on their own are not zakatable except when the owners intend to use the land for lumber or fodder plantation. In this case those products become zakatable. Abu Hanifah does not consider any of the conditions of edibility, driability, non-perishability, or measurability.

            Daud and his zahiri disciples go along with Abu Hanifah on this issue. This is also reported to be the view of 'Umar bin Abd al Aziz, Mujahid, Hammad and a report from al Nakha'i.  Abu Yusuf and Muhammad do not agree with their teacher Abu Hanifah on the zakatability of vegetables.

            According to Abu Hanifah and his two disciples, sugarcane, safran, cotton, and other fibers, all fruits, and spices are zakatable. So are vegetables, in his view only. Abu Hanifah uses the following in support of his opinion. Firstly, he says the general terms of the verse in surah al Baqara "and from what We have produced for you from the earth" make no exception of any agricultural products.  Secondly, the verse "and render its right dues on the day of its harvest" comes after the mention of several kinds of trees and fruits. If zakah should cover fruits it must also cover vegetables because the latter are easier to produce and to transfer to the poor and needy, even more so than grains. Thirdly, the saying "A due of one-tenth is obligatory on that which is watered by the sky and half-tenth is required on that which is watered by carried water" does not distinguish between edible or non-edible, perishable or non-perishable, measurable or non-measurable crops.[8]

5. The type of zakah on which it is necessary to pay zakah:

            It is reported on the authority of Abu Musa Al-Ash’ari (R.A) and Mu’az (R.A) that the Holy Prophet (PBUH) said to them;

            “Do not take Sadaqah (i.e. Zakah) except from these four kinds (of produce): barley, wheat, raisins and dates.” (Al-Hakim 1/401)

6. The Nisab on Plants is five Awsuq:

            It is reported on the authority of Abui Sa’eed Al- Khudri (R.A) that he said: “The Messenger of Allah (PBUH) said;

            “There is no Sadaqah(i.e. Zahak) on less than five camels and also there is no Sadaqah (i.e. Zakah) on less than five Awaq (of silver). And there is no Zakah on less than five Awsuq.” (Bukhari. 1447, Muslim. 979)

Ooqiyah (plural = Awaq): 40 Dirhams.

• 5 Awaq: 200 Dirhams.
• Wasq: 60 sa’ in dry measure.
• Sa’: 4 Amdad (sing = Mudd) in dry measure.
• Mudd: 544 grams of wheat.
• A Wasq, therefore, is 60 x 4 x 544 =130,560 grams = 130.56 Kilograms.
• And 5 Awsuq is 130.56 x 5= 652.8 Kilo grams.

7. 10% must be paid on crops which are watered by rain, and 5% must be paid on crops which are irrigated with a Saniyah:

            It is reported on the authority of Jabir Ibn Abdillah (R.A) that he heard the Prophet (PBUH) saying;

            “On what is watered by rivers and rain, 10% is due and on what is irrigated by a Saniyah, 5% is due” (Muslim. 981)

            It is reported on the authority of Abdillah Ibn Umar (R.A) that he said: The Messenger of Allah (PBUH) said:

            “The Zakah due on honey is one Ziqq for every ten Azuqq” (At-Tirmizi. 629) [9]

S.No	Type of property	Amount	Amount of Zakat
1	Wheat	Approximately 847 Kilograms	1/10 in the event that the crops were irrigated with rain water and water from a river. 1/20 in the event that the crops were irrigated by hand watering, or by a jug, or by a water pump. 3/40 in the event that the crops were irrigated by both methods.
2	Barley	Approximately 847 Kilograms	1/10 in the event that the crops were irrigated with rain water and water from a river. 1/20 in the event that the crops were irrigated by hand watering, or by a jug, or by a water pump. 3/40 in the event that the crops were irrigated by both methods.
3	Dates	Approximately 847 Kilograms	1/10 in the event that the crops were irrigated with rain water and water from a river. 1/20 in the event that the crops were irrigated by hand watering, or by a jug, or by a water pump. 3/40 in the event that the crops were irrigated by both methods.
4	Rice	Approximately 847 Kilograms	1/10 in the event that the crops were irrigated with rain water and water from a river. 1/20 in the event that the crops were irrigated by hand watering, or by a jug, or by a water pump. 3/40 in the event that the crops were irrigated by both methods.

Miscellaneous rulings:

1872. Zakat on wheat, barley, dates and raisins becomes obligatory when their quantity reaches the taxable limit which is 300 saa' and it is said that it equals 847 kg.

1873. If a person and members of his family consume the grapes, dates, barley and wheat, on which payment of Zakat has become obligatory, or if, for example, he gives these things to a poor person without the intention of paying Zakat, he should give Zakat on the quantity used.

1874. If the owner of wheat, barley, dates and grapes dies after Zakat on it has become obligatory, that quantity of Zakat should be paid from of his estate. However, if he dies before Zakat becomes obligatory, each one of his heirs, whose share reaches the taxable limit, should pay Zakat from his own share.

1875. A person, who has been appointed by the Mujtahid to collect Zakat, can demand it at the time of harvest when wheat and barley are threshed and chaff is separated from grains, and when the dates and grapes become dry. And if the owner of these items does not give Zakat, and they perish, the owner should compensate for it.

1876. If payment of Zakat becomes obligatory on date tree and grapes or the crop of wheat and barley after one becomes its owner, one should pay Zakat on them.

1877. If a person sells the crop and trees after Zakat on wheat, barley, palm-dates and grapes becomes obligatory, the seller should pay the Zakat on them, and if he pays, it will not be obligatory on the buyer to pay anything.

1878. If a person purchases wheat or barley or dates or grapes, and knows that the seller has paid Zakat on them, or doubts whether or not he has paid it, it is not obligatory on him (i.e. the buyer) to pay anything. But if he knows that he (the seller) has not paid Zakat on them, he should pay Zakat himself. But if the seller cheats him by telling him that he has not paid Zakat, he can reclaim from the seller the Zakat, if he has paid it.

1879. If the weight of wheat, barley, dates and grapes is about 847 kilograms when they are wet, and reduces when they become dry, payment of Zakat on it is not obligatory.

1880. If a person disposes of wheat, barley and dates before the time of drying up, and if they reach the taxable limit after they have dried up, he should pay Zakat on them.

1881. There are three kinds of dates:

1.       Those which are dried up. Rules regarding the Zakat payable on them have already been explained above.

2.       Those which are eaten when they are ripe.

3.       Those which are eaten before they are ripened.

As for the second kind, if its weight comes to 847 kilograms after having dried up, Zakat on it becomes obligatory as a recommended precaution. And as for the third kind, Zakat on it is not obligatory.

1882. If a person has paid Zakat once on wheat, barley, dates and raisins, no further Zakat is payable on it, even if they remain with him for a few years.

1883. If wheat, barley, dates and grapes are watered with rain or river, or if they benefit from the moisture of the land, like in the case of Eygptian crops, the Zakat payable on them is 10% and if they are watered with buckets etc. the Zakat payable on them is 5%.

1884. If wheat, barley, dates and grapes are watered with both rain water as well as water supplied with buckets etc. and if it is commonly said that they have been irrigated with bucket water etc. the Zakat payable on them is 5% and if it is said that they have been irrigated with river and rain water, the Zakat payable on them is 10%; and if it is commonly said that they have been irrigated jointly with both, the Zakat payable on them is 7.5%.

1885. If a person doubts about the common impression, not able to determine whether the crop was watered by rain alone, or by rain and buckets together, it will be sufficient for him to pay 7.5% Zakat.

1886. If a person doubts and does not know whether it will be customarily held that the land was irrigated both ways, or that it has been watered with buckets etc. it will be sufficient for him to pay 5%. And the position will be the same if the common opinion would probably be that it was irrigated with rain water.

1887. If wheat, barley, dates and grapes are irrigated with rain and canal water and, although they did not need bucket water, yet it was also supplied, with no helpful result for the crop, the Zakat on them is 10%. And if they are watered with bucket water, without having any need of canal and rain water, but are also supplied with canal and rain water without being helpful to the crop, the Zakat on them is 5%.

1888. If a crop is watered with bucket etc. and in the adjoining land he raises a crop which benefits from the moisture of that land (which is irrigated with bucket water etc.) and does not need extra watering, the Zakat of the crop which is watered with bucket is 5% and the Zakat of the crop in the adjoining land, as a precaution is 10%.

1889. A person cannot deduct the expenses incurred by him on the production of wheat, barley, dates and grapes from the income obtained from them, in order to determine the minimum taxable limit. Hence if the weight of any one of them, before calculating the expenses, was about 847 kilograms, he should pay Zakat on it.

1890. A person who has used seeds for farming, whether he owned them or he bought them, cannot deduct their value from the total harvest for calculating the minimum taxable limit. Rather, he should calculate the taxable limit taking into account the entire crop.

1891. It is not obligatory to pay Zakat on what government takes away from the goods or wealth itself. For example, if the harvest is 2000 kilograms, and government takes 50 kilograms from it as taxation, it is obligatory to pay zakat on 1950 kilograms only.

1892. As an obligatory precaution, a person cannot deduct from the harvest the expenses incurred by him before Zakat became due, paying Zakat on the balance only.

1893. As for the expenses incurred after Zakat becomes obligatory, a person cannot deduct them from the amount of the Zakat liable on him, even if, as a precaution, he may have sought permission from the Mujtahid or his Wakil.

1894. It is not obligatory for a person to wait till wheat and barley pile up for threshing, and the grapes and dates become dry, before paying Zakat. It is permissible that as soon as payment of Zakat becomes due, he should calculate the amount of Zakat and pay.

1895. After Zakat becomes payable, a person can hand-over the standing crops, or dates or grapes, before their being harvested or picked, to the deserving poor, or to the Mujtahid or his Wakil, on the basis of joint ownership, and then make them share the expenses.

1896. When a person hand-overs Zakat of crops or dates or grapes in their essential forms to the Mujtahid or his Wakil, or to the deserving poor person, it is not necessary for him to look after those things as a joint owner, free of charge. He can charge them rental as long as these things remain on his land for harvesting and drying up.

1897. If a person owns wheat, barley, dates and grapes in various cities, where the time of ripening of crops and fruits differ from one another, and they are not all received at one time, if all of them are considered to be the harvest of one and the same year, and if the thing which ripens first reaches the taxable limit i.e. 847 kilograms (approx.), he should pay Zakat on it at the time of its ripening and should pay Zakat on the remaining crops when they are received . 
But if the crop which is ready first, does not reach the minimum taxable limit, he should wait till other crops are ready. If they totally reach the taxable limit, Zakat on them will be obligatory, otherwise Zakat will not be obligatory on them.

1898. If a date tree or vine bears fruit twice in a year, and when combined they reach the minimum taxable limit, it is obligatory as a precaution, to pay its Zakat.

1899. If a person has a quantity of dates or grapes which have not dried up, and which would reach the taxable limit when dried up, he can replace them with fresh fruits (i.e. dates and grapes) with the purpose of giving Zakat, provided that, if they were dry they would be equal to the obligatory amount of Zakat.

1900. If it is already obligatory on a person to pay Zakat on dry dates or raisins, he cannot replace it with fresh, green dates or grapes. And, if he calculates the value of Zakat and gives green grapes or dates or other dry raisins or dates against that value, it is a matter of Ishkal. 
Also, if it is obligatory on a person to pay Zakat on green dates or grapes, he cannot pay it with dry dates or raisins, And, if after calculating the value of Zakat, he pays it from other dates or grapes, it will be a matter of Ishkal even if the other dates and grapes were green and fresh.

1901. If a person dies with a debt, and has a property on which Zakat has become due, it is necessary that, in the first instance, the entire Zakat should be paid out from that property, and thereafter pay his debt.

1902. If a person dies with a debt and also has wheat, barley, dates or grapes, and, before Zakat on these things became obligatory, his heirs paid his debt from other property, the heir, whose share equals to 847 kilograms (approx.) should pay Zakat. And if the debts of the deceased was not paid before Zakat on these things became obligatory, and if his estate just equals his debt, it is not obligatory for the heirs to pay any Zakat. 
And if the property of the deceased is more than his debt, and if the debt calls for payment from a quantity of wheat, barley ,dates and grapes, then whatever is paid towards the debt will have no liability of Zakat. In the residue, whoever from the heir receives a share equal to the minimum taxable limit, should pay Zakat.

1903. If wheat, barley, dates and raisins, on which Zakat has become obligatory, are of good quality and inferior quality, the obligatory precaution is that Zakat for each of the two categories should be given separately from its respective type.[10]

Discussion and analysis:

            The view of Abu Hanifah seems to be the strongest. It suits the general objectives of zakah and the justice of its implementation as expressed in the texts of Qur'an and Sunnah. We must also remember that this is the opinion of several great scholars such as 'Umar bin Abd al Aziz, Mujahid, Hammad, Daud, and al Nakha'i. The few sayings that talk about four food items are either munqati' (interrupted) or weak. Even if one were to accept the sayings, the restriction to the four items can be interpreted as a mere reference to items present at the time of the Prophet. It is remarkable that none of the four schools of thoughts took such limitation for granted.

            On the other hand, a Malikite like Ibn al 'Arabi supports the position of Abu Hanifah in his Ahkam al Qur'an.  He also writes in the commentary on Al Tirmidhi, "The strongest view is that of Abu Hanifah, because it is more advantageous to the needy, most supported by the general terms of the texts and more appropriate as an expression of gratitude for Gods' grace."

            In his explanation of the verse "and give its right dues . . . ", Ibn al Arabi says " Abu Hanifah hits truth in obligating zakah on foodstuff and other crop, as implied by the general terms of the Prophet's saying, 'and one-tenth is obliged on what the sky waters'. Ahmads' opinion depends on a weak argument in mistakenly interpreting the saying 'there is no zakah on what is less than five wasq' to mean there is a condition of measurability, instead of a minimum for zakatability that applies to all crops, measurable or not. The edibility condition of the shafi'ites is baseless. God reminds of His grace in providing food and fruits and obligates dues on both, in spite of differences in kinds of crops or in the way a given crop is used, such as using oil extracted from a crop for light to enjoy the grace of vision and the removal of darkness. How could anyone claim that zakah is not obligated on vegetables because they usually are distributed fresh and not dried knowing that fresh date and fresh grape are both zakatable without any need for drying.

            Fresh fruits are an essential part of the bounties God bestows on us. He even mentions them as some of the enjoyments offered in Heaven as in the verse 'in them will be fruits and dates and pomegranates,' and also the verse, 'for that We pour forth water in abundance, and we split the earth in fragments, and produce therein grain, and grapes and nutritious plants, and olives and dates, andenclose gardens dense with lofty trees, and fruits and fodder'. Ibn al Arabi continues,'One may argue that we have no report that the Prophet (p) collected zakah from thevegetables in Madinah and Khaibar. My answer to this is that lack of evidence that hecollected zakah is not evidence that zakah is not required, especially since we have sufficient proof in the Qur'an itself.'

            The saying that reads "No zakah is obligated on vegetables" has a weak chain and does not help as evidence. Al Tirmidhi indicates the chain of this saying is incorrect: nothing authentic is reported from the Prophet (P) on this issue.  Some Hanafi jurists tend to understand this saying as a reference to the perishability of vegetables and an advice to zakah collector not to collect vegetables because they cannot be preserved. Those jurists require that producers of vegetables distribute their zakah directly although some suggest that zakah be assessed and collected in value instead of in kind. It is reported by Yahya bin Adam from al Zuhri that "anything other than wheat, barley, date, grape and olive should be zakated in value ."

            'Ata says, "Vegetables, walnuts, almonds and fruits are not subject to the one-tenth due. But whatever is sold of them is subject to zakah if the value is two hundred dirhams or more." Similar opinion is reported from al Sha'bi.56 Abu 'Ubaid attributes similar views to Maimun bin Mahran, al Zuhri and perhaps al Awza'i.56 Al Zuhri and Maimun apply here the nisab and rate applicable to silver.56 Abu 'Ubaid further reports that Malik applies the same to fresh date, grape and olive. The latter adds, however, another condition, that the crop must be five wasq or more.

            The idea of calculating zakah of perishable vegetables and fruits on the basis of value is very practical but I tend to differ with the above scholars on the nisab and ratio, since changing the mode of payment from in kind to value does not necessitate a change in the rate and nisab of zakah. I believe that the rates and nisab of agriculture must still be applicable. We have on hand a report from Al Sha'bi that the value of grapes is  zakated at the rate of one-tenth or one half-tenth. Ibn Abi Zaid in al Risalah mentions that "Olives are subject to zakah if the crop is five wasq or more, and zakah can be paid out of the olive oil or the proceeds of sale." And in his comments al Risalah, Ibn Naji adds "this is also reported from Malik. The generally accepted opinion in the Maliki school is that zakah on olive oil is paid in oil, while zakah on olives sold un-squeezed is paid in value."[11]

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[1] The Importance of Zakat “Friday Khutbah 05 July 2002”retrieve from ,http://saifulislam.com/wp-content/uploads/2008/07/khutbah050702.pdf.retrieve at,14jan,2012

[2] Nomani,Allama shibli and Nadvi,syed suleman, “Worship in islam”,Darul ishaat (1994),Karachi.pg-155

[3]  al Qardawi,Dr. Yusuf, “ Fiqh al Zakah” King Abdulaziz University

Jeddah, Saudi Arabia (Vol. I),pg- 61

[4] Senturk, O.(2007)  Charity in Islam. USA: light inc. P 6.

[5] The zakat handbook. The zakat org. Retrived from: http://books.google.com.pk/books?id=JlCHo0YOwh0C&pg=PA57&dq=zakat+of+crops+and+fruits&hl=en&sa=X&ei=b5YRT8L4IoPOhAevsoStAg&ved=0CDcQ6AEwATgK#v=onepage&q=zakat%20of%20crops%20and%20fruits&f=false p.57

[6] Dr. Qardawi Al Yusuf, Fiqh Al Zakah, Jeddah: Scientific Publishing Centre King Abdulaziz University, (1980) vol. 1,  p. 175,176

[7] Retrieved from. www.kalamullah.com/Books/fiqhalzakah_vol2.pdf, Retrieved at 10/1/12

[8] Dr. Qardawi Al Yusuf, op. cit  p. 176

[9] Hallaq. M. Subhi. B. H, Fiqh According to the Qur’an and Sunnah, Riyadh: Darussalam, (2007), Vol. 1, p. 617-619

[10] Khoda, Bandhahaya .Islamic prayers. Retrieved from. http://books.google.com.pk/books?id=V9ASyRWODgMC&printsec=frontcover#v=onepage&q&f=false

[11] Dr. Qardawi Al Yusuf, op.cit  p. 180-182