38. This is to show that they will be honored like the kings and chiefs who used to wear ornaments of gold and jewelry in the period the Quran was revealed.
39. “Purest of the speeches”: though it may imply every pure thing, here it refers to the basic articles of the faith.
40. As already stated in the introduction, the portion of the Surah, which was revealed at Makkah, comes to an end here. Though its style is clearly that of the Makki Surahs and there is nothing to indicate that any part (or the whole) of it was revealed at Al-Madinah, yet the words, “these are the two parties”, have given rise to the misunderstanding that this verse was revealed at Al-Madinah. Some commentators are of the opinion that the two parties referred to were the parties who met in the Battle of Badr, but there is nothing in the context to support this opinion. On the other hand, from the context in which these words occur, it becomes obvious that the two parties referred to were the believers and the disbelievers. For the conflict between belief and disbelief has always been going on ever since the creation of man and will go on upto the Day of Resurrection.
Incidentally, this latter view helps prove that the Quran is a continuous whole and every part of it is closely connected with the other: whereas the comments mentioned earlier would imply that there is no continuous theme in the Quran but different parts of it have been put together without rhyme or reason.
41. “Those who disbelieved” were the people who rejected the message of the Prophet (peace be upon him). The subsequent theme clearly shows that they were the disbelievers of Makkah.
42. That is, they debarred the Prophet (peace be upon him) and his followers from performing Hajj and Umrah.
43. That is, this is not exclusively the property of any person or family or clan but is meant for all mankind alike. Therefore none has any right to debar others from it.
In this connection, two questions have arisen among the Jurists of Islam:
(1) What is meant by the Sacred Mosque? Does it mean the mosque itself or includes the whole Inviolable Place of Makkah?
(2) What is meant by equal rights of its dwellers and the outsiders?
According to some jurists it means the Sacred Mosque itself and not the whole of Inviolable Makkah. They base this opinion on the apparent wording of the Quran, and say that by equal rights is meant equal rights only in regard to worship in it. They cite a tradition of the Prophet (peace be upon him) to support their opinion. He said: O children of Abd Manaf, those of you who will have authority over the affairs of the people, should not stop anybody from moving round the Kabah or from offering prayers in it at any time of the day or night.
Imam Shafai and others who support this view are of the opinion that it is wrong to conclude from this verse that the rights of the dwellers and the outsiders are equal in every respect, but they are equal only in regard to the right of worship and in nothing else, for the people of Makkah owned the lands and the houses of Makkah before Islam and also after it. So much so that during the time of Caliph Umar, the house of Safwan bin Umayyah was actually purchased from him for the purpose of making a prison in Makkah.
The others who hold that the Sacred Mosque refers to the whole of the Inviolable Place of Makkah derive their authority from (verses 196 and 217 of Surah Al-Baqarah). They argue that Hajj is not performed only in the Kabah (the Sacred Mosque), but the pilgrim has to visit Mina, Muzdalifah, Arafat, etc. for the performance of Hajj rites. Thus, they hold that equality is not merely in regard to worship in the Sacred Mosque, but in regard to all other rights in Makkah. As this place has been appointed for Hajj by Allah for all alike, none has any right of ownership in it. Anyone can stay anywhere he likes and none can prohibit him from doing so. They cite many traditions in support of their opinion.
(1) Abdullah bin Umar reports that the Prophet (peace be upon him) said: Makkah is the place where travelers have to stay: therefore its lands cannot be sold nor can anyone charge rent for its houses.
(2) According to Ibrahim Nakhai, the Prophet (peace be upon him) said: Makkah has been made an Inviolable Place by Allah: therefore selling its land and charging of rent for its houses is unlawful. Mujahid has also reported a tradition almost in similar words.
(3) Alqamah says: During the time of the Prophet (peace be upon him), and of the first three Caliphs, the lands of Makkah were regarded as common property and one could live there or allow others to live therein.
(4) Abdullah bin Umar says: Caliph Umar had ordered that no resident of Makkah should close the door of his house during the Hajj season. According to Mujahid; Caliph Umar had ordered that the people of Makkah should not put doors to enclose their courtyards but keep them open so that anyone who liked might come in and stay there. The same has been related by Ata with the addition that Suhail bin Amr was the only exception to this rule, who was allowed to put a door in his courtyard in order to safeguard his camels in connection with his trade.
(5) Abdullah bin Umar also says that the one who receives rent for his house in Makkah fills his belly with fire.
(6) Abdullah bin Abbas says that Allah has made the whole of Makkah the Sacred Mosque where all have equal rights. Therefore the people of Makkah have no right to charge rent.
(7) Umar bin Abdul Aziz sent an order to the governor of Makkah to this effect: No rent should be charged for the houses of Makkah because it is unlawful.
On the basis of the above traditions, quite a few of the followers of the companions and also, Imams Malik, Abu Hanifah, Sufyan Thauri, Ahmad bin Hanbal and Ishaq bin Rahawayah from among the Jurists, are of the opinion that it is unlawful to sell a piece of land and to charge rent, at least during the Hajj season, in Makkah. However, the majority of the Jurists are of the opinion that people can own houses in Makkah and can sell them as buildings but not as land. In my opinion, this last view seems to be the right one because it conforms with the Quran and the Sunnah and the practice of the rightly guided Caliphs. It is obvious that Allah has not made Hajj obligatory for the Muslims of the whole world in order to provide a means of income for the people of Makkah. As Allah has set apart the Inviolable Place for the benefit of all the believers, that land is not the property of anyone and every pilgrim has the right to stay anywhere he can find room for himself.
44. It does not imply any specific act, but means every act that deviates from righteousness and falls under the definition of iniquity. Though all such acts are sins at all times and places; their commission in the Inviolable Place makes them all the more heinous; so much so that the commentators are of the opinion that even taking of an unnecessary oath brings it under the same category.
Besides common sins, there are certain other things whose commission in the Inviolable Place brings them under the same category. For instance.
(l) It is prohibited to take legal action even against a murderer, etc. who takes shelter within the Inviolable Place: so much so that he cannot be arrested as long as he retrains therein. This sanctity of the Inviolable Place is being observed since the time of Prophet Abraham (peace be upon him). The Quran says: Whoso even enters it, he becomes safe and secure. (Surah Aal-Imran, Ayat 97).
(2) The consensus of opinion is that there can be no retribution within the Inviolable Place for the crimes committed outside it. Hadrat Umar, Abdullah bin Umar and Abdullah bin Abbas declared: We will not take any action in it even against the murderer of our fathers.
(3) It is unlawful to wage war or shed blood within it. On the second day of the conquest of Makkah, the Prophet (peace be upon him) declared: O people, Allah has made Makkah a Sanctuary since the very creation of this world, and it will remain so by Allah’s ordinance up to the Day of Resurrection; therefore, it is not lawful for any man, who believes in Allah and the Day of Resurrection, to shed blood here. Then he added: Suppose a man legalizes bloodshed here on the basis of the precedent that I waged war here, tell him, Allah made it lawful for His Messenger and not for you. It was made lawful for me for a short interval of the day. Then it was again made Inviolable as before.
(4) It is unlawful to cut naturally growing trees or uproot the grass which has grown there. It is also prohibited to hunt birds and animals within the boundary or to drive them out from the Inviolable Place for hunting. It is, however, lawful to kill a serpent, a scorpion and other harmful animals and to uproot dry grass and izkhir which is a kind of grass.
(5) It is prohibited to pick up anything that has fallen to the ground. In a tradition, reported by Abu Dawud, the Prophet (peace be upon him) prohibited people to pick up, anything belonging to a pilgrim that had fallen to the ground.
(6) It is unlawful for a pilgrim who comes with the intention of performing Hajj or Umrah to enter therein without Ihram. However, there is a divergence of opinion in regard to the entry of others than the pilgrims without Ihram. According to Abdullah bin Abbas, no one is allowed to enter therein without Ihram in any case, and this has been supported by a saying each of Imam Ahmad and Imam Shafai. According to other sayings of Imams Ahmad and Shafai, those people who have to visit the Inviolable Place frequently in connection with trade and business, are excepted. Imam Abu Hanifah, however, holds the view that the person who lives within the limits of the appointed Miqats can visit Makkah without Ihram but the outsiders cannot enter it without Ihram.