Wama afaa Allahu AAala rasoolihi minhum fama awjaftum AAalayhi min khaylin wala (surah Al Hashr: 6)

Tafseer Tafheem-ul-Quran by Syed Abu-al-A'la Maududi

(59:6) Whatever Allah has taken away from them and bestowed (as spoils) on His Messenger *11 for which you spurred neither horses nor camels; but Allah grants authority to His Messengers over whomsoever He pleases. Allah has power over everything. *12

Wa maaa afaaa`al laahu `alaaa Rasoolihee minhum famaaa awjaftum `alaihi min khailiinw wa laa rikaabinw wa laakinnal laaha yusallitu Rusulahoo `alaa many yashaaa`; wallaahu `alaa kulli shai`in Qadeer

*11) From here to the end of verse 10, Allah explains how the lands and properties that were restored bto the Islamic State after the exile of the Ban; an- Nadir, are to be managed and administered. As it was the first occasion that a land was conquered and included in the Islamic territory, and many more lands were destined to be conquered in the future, the law governing the conquered lands was enunciated at the outset. Here, a note-worthy point is that AIIah at this place has used the words: Ma af'-Allahu ala Rasuli-hi min-hum "whatever AIIah restored to His Messenger from them." These words clearly imply that the rebels of AIIah Almighty arc not entitled to own the earth and things existing on it. If they have become their owners and are appropriating them, their ownership and appropriation of these things is, in fact, in the nature of usurpation of a master's property by a dishonest servant. The real right of these properties is that these should be spent and used in the service and obedience of their real Master, AIIah, Lord of the worlds, according to His will, and their this use is possible only through the agency of the righteous believers. Therefore, the true position of the properties which pass from the ownership of the disbelievers into the hands of the Muslims as the result of a lawful war, is that their real Owner has withdrawn them from His disobedient and disloyal servants, and restored them to His obedient and loyal servants. That is why, in the terminology of the Islamic Law such properties have been described as Fai (restored properties).
*12) That is, "The restoration of these properties to the Muslims is not the result of the effort of the actual fighting army so that the army on that basis may have the right that the properties may be distributed among the soldiers, but its real nature is that Allah by His bounty has given dominance to His Messengers and the system that they represent over them. In other words, the passing of these properties into the Muslims' hands is not the direct result of the effort and struggle of the fighting army, but the result of the total strength that AIIah has bestowed on His Messenger and his community and the system established by him Therefore, these properties are quite different in nature from the spoils of war and so cannot be distributed among the soldiers as such.
Thus, the Shari ah has made a distinction between ghanimah (spoils of war) and fai (restored properties). The injunction :n respect of the ghanimah has been given in surah AI-Anfal: 41, and it is this "It should be divided in five parts, four parts of which be distributed among the fighting army and the fifth deposited in the Public Treasury (Bait al-Mal), and expended on the items mentioned in the verse." As for the fai, the injunction is that it should not be distributed among the army, but it should be reserved for the items of expenditure being stated in the following verse. The distinction between the two has been made plain by the words: "You have not rushed your horses and camels on them," which imply the military operations. Thus, the properties which are taken as a direct result of such operations are the ghnimah and those which arc not the result of these operations are the fai. The distinction between ghanimah and tai that has been brterty mentioned in this verse, has been explained in greater detail by the juristis of Islam. Ghanimah are only those transferable properties which are taken from the enemy durIng military action; other things than these, e.g. lands, houses and other transferable and nontransferable properties of the enemy, are excluded from the definition of ghanimah and are fai. The source of this explanation is the letter that Hadrat 'Umar (may Allah be pleased with him) had written to Hadrat Sa'd bin Abi Waqqas after the conquest of 'Iraq. In that letter he wrote: "Distribute the properties and goods which the soldiers of the army collected and brought to your camp among the Muslims who participated in the war, and leave the lands and the canals with those who work on them so that the proceeds thereof are used for the salaries of the Muslims." (Abu Yusuf. Kitab al-Kharaj, p. 24; Abu 'Ubaid, Kitab al-Amwal, p. 59; Yahya bin Adam, Kitab al-Kharaj, pp. 27-28, 48). On this very basis, Hadrat Hasan Basri says: "Whatever is taken from the enemy camp, is the right of those who won victory over it? and the lands are for the Mttslirns." Yahya bin Adam, p. 27). And Imam Abu Yusuf says: 'Whatever the Muslims take from the enemy troops, and whatever goods and arms and cattle they collect and bring to their camp, is ghanimah; from this one-fifth will be deducted and the rest distributed among the soldiers." (Kitab al-Kharaj, p. 18). The same is the opinion of Yahya bin Adam, which he has expressed in his Kitab al-Kharaj (p. 27). Even more than this, what makes the distinction between ghanimah and fai clearer is that after the Battle of Nahawand when the ghanimah had been distributed and the conquered lands had been included in the Islamic State. a tnan named Sa'ib bin Aqra' found two bags of jewels outside the fort. He was confused whether it was the ghanimah which should be distributed in the army, or the fai which should be deposited in the Bait al-Mil Consequently, he came to Madinah and put the matter before Hadrat 'Umar, who decided that it should be sold and the price deposited in the Bait-al-Mil. From this it becomes clear that ghanimah are only those transferable properties which are taken by the soldiers during the war. After the war is over, the transferable properties also, like the nontransferable properties, become fai. Imam Abu 'Ubaid relates this event and says: "The properties that arc seized from the enemy by the use of force, when the war is still in progress, are ghanimah and what is taken after the war is over, when the territory has become Dar al-Islam (abode of Islam), is fai, which should be reserved for the common people of the dar al-Islam; the law of the one-fifth (khums) will not be applicable to it. " (Kitab al-Amwal p. 2S4).
After defining ghanimah thus, the rest of the properties, wealth and lands, which pass from the disbelievers' ownership to the Muslims may be divided into two main kinds first those which are taken as a result of actual fighting f anwatan in Fiqh terminology); second, those which are taken by the Muslims as a result of the peace terms whether peace is concluded because of the pressure of the military power of the Muslims, or their dread and awe, and in this are also included aII those properties which pass into the Muslims' ownership in every other way than as a result of actual fighting The differences that have arisen among the jurists of Islam have been only concerning the first kind of the properties in order to determine their correct legal position, for they do not come under 'those upon which you have not rushed your horses and camels." As regards the second kind of the properties, aII agree that they arc fai, for the Qur'an has explicitly laid down the injunction about them. Below we shall discuss in dctail the legal position of the first kind of the properties.