Determining Therate Of diyat through the use of gold and silver: an analytical study.
The crime of injuring any part of the body of another person to the point of causing death comes into discussion under the topic of qisas. Qisas is the right of Allah s.w.t. as well as that of His servants, though it is largely given to the latter. This is because qisas is related to human rights in fighting for the justice and rights of the victim's family. Allah s.w.t. says in the Quran, in Surah al-Isra', ayat 33:
Meaning: And do not kill anyone whose killing Allah has forbidden, except for a just cause. And whoever is killed wrongfully (Mazluman intentionally with hostility and oppression and not by mistake), We have given his heir the authority [(to demand Qisas, Law of Equality in punishment--or to forgive, or to take Diya (blood--money)]. But let him not exceed limits in the matter of taking life (i.e he should not kill except the killer). Verily, he is helped (by the Islamic law) (33)
Islamic law is a comprehensive guide which offers solutions for all aspects of human life on earth. Islam takes all problems faced by the ummah seriously and aims to create peace among its people. Therefore, the provision of changing qisas punishments to the payment of diyat may help in creating peace and prosperity for human life and the whole world at large.
Gold and silver are considered a medium for the payment of diyat, in which both are used as currencies for dinar and dirham and have also been used during the time of Rasulullahs.a.w. and his companions up to the time of the fall of the Ottoman empire in 1924 AD.(Salmy Edawati. 2011. 1-3) Dinar and dirham are also known as syariah currency. This is based on many texts which mention or discuss its use. For example, dinar and dirham provide a basis for evaluating the execution of zakat, the payment of diyat, hudud cases and marriage. Dinar and dirham currently follows the standard implemented by Caliph Umar Al-Khattab, in which every dinar weighing 4.25 grams uses 24 carat gold and categorized as 916 while every dirham is equal to 2.975 grams of silver (www.dinardirham.com).
However, in this article the writer will only discuss several issues which involve the determination of the diyat payment rate through gold and silver. The first issue is related to the dispute or differences between the scholars in determining the rate and type of diyat. The second issue is related to the evaluation of gold and silver and whether they follow the current pricing value. The third issue relates to several cases involving the payment of diyat. This article aims to focus on the extent to which the payment of diyat through gold and silver is allowed, so as the answer the two questions provided above. Besides, this article also uses current issues such as the suitability of diyat payment on the offender as the topic of discussion, thus showing the simplicity and fairness of Islam in the execution of punishments. The emphasis on the responsibility of making the diyat payment also proves how Islam places good human relationship as a priority.
According to syariah terminology, diyat is a name for a compulsory form of payment that must be made in return for a crime which has caused the loss of life or inflicted wounds on any part of the body without the loss of life. Diyat is an alternate form of punishment in place of an execution (Muhammad Abdul Hamid. 2004. 51). Originally, the amount must be paid based on the value of camels or something similar in its place (Mustafa al-Khin, 2008, 1946). The origin for this law is based on verses from the Quran, as-Sunnah and the ijma' of the scholars. Allah s.w.t. says in Suratul Nisa' verse 92:
Meaning: 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.
Meanwhile, according to the Sunnah, there are records in which it is reported that Rasulullahs.a.w. sent a letter to the people of Yemen on the law of faraidh, his sunnah and diyat. Parts of the contents of the letter are as follows: "diyat for one life is equal to 100 camels ... and for those who can afford it may pay 1000 dinar." (Narrated by Al-Nasaie (8/57).
When the family of a victim who has been murdered (on purpose), lost or injured grants pardon to the offender, the punishment is replaced by diyat. Only the victim's family may grant this pardon and not the authorities or ruler.
The Disputes of Scholars in Determining Diyat:
Islamic law states that diyat must be based on the value of camels, in which the payment must be made in the number of camels or the current pricing of camels. However, there are several opinions on the determination of diyat and its rate. Scholars have proven to have different opinions on the matter in which they are divided into two groups; one which opines that diyat must be paid through the use if ibil only while the other group disagrees.
There are several dalil which show that diyat is paid in accordance with the pricing and number of camels. Imam as-Syafi'i states that originally, the duty of the offender was to pay 100 camels if they could be easily obtained. The camels must be handed over to the victim's family in a good condition. Should it be difficult to obtain camels, the amount of payment to be made must be based on the pricing value of camels in that particular place or district (Wahbah al-Zuhaili. 2008, 284). However, if only a number of camels can be obtained, then that amount of camels must be used to pay the diyat with the rest of the amount to be paid in the form of the pricing value of the camels (Al-Jaziri.. 2004, 285). The basis for Imam Syafi'i's opinion differs from his first one, in which the original form of payment for diyat are camels, while gold, silver or the like can be used as an alternative but must be based on the pricing rate for camels. Therefore, it would seem that the value of gold would depend on the ups and downs of the price rate for camels. This replacement is not the original diyat. Imam Syafi'I provided his arguments based on the al-Zuhri hadith which stated that the diyat during the time of Rasulullahs.a.w. was 100 camels, with each camel being valued at 1 uqiyah. Later, this amount increased to one and a half uqiyah and later to two uqiyah. This phenomenon continued until Saidina Umar r.a. set the value at 10000 dirham or 400 dinar, as reported by 'Amru bin Syu'aib:
The scholars of Maliki also agree with Imam Syafi'i that anything other than camels such as cows, goats or clothing cannot be used as diyat (Al-Jaziri. 2004, 285). However, the Maliki scholars accept gold and silver as payment for diyat. Therefore, there have been disputes on the payment of diyat through the use of gold and silver. The meaning of compensation according to the syariah, is based on a hadith reported by Ahmad and Abu Daud which means, "For those who were killed partly-intentionally thorugh the use of wood, a stick or stone must be replaced with 100 camels." This hadith is used as the basis for the opinion of Imam Syafi'i and his followers in the matter of diyat payment. The Mazhab of Syafi'i only agrees on the payment of diyat through camels because Imam as-Syafi'i holds on to the concept of al-sulhand al-a'fu. If there are no camels of the number is too few, the al-sulh concept will be implemented. This opinion was made based on the understanding and logic of the Syafi'i scholars who put on an emphasis on the concept.
Apart from that, according to qadim opinions (of old) from the Syafi'imazhab, it is compulsory for offenders to pay 1000 gold dinar or 12 thousand silver dirham should there be no camels. This is based on the hadith of Rasulullahs.a.w.:
Which means: "Diyatfor gold owners are 1000 dinar and for silver owners are 12,000 dirham."
A number of scholars accept that camels were the original form of diyat. Therefore, payment made through the use of gold and silver must be based on the value of camels which in turn gave rise to the conclusion that gold and silver are not a replacement for the latter. The reason provided was that it would seem that both gold and silver seem have become the original value for diyat and is assumed as a replacement for what has been lost which is the life of the victim. Therefore, diyat in the form of gold or silver is characterised as one (wahidah) and that there is no advantage of one over the other (AbdQadir 'Audah.. 2009, 138).
Meanwhile, according to Imam Malik and Abu Hanifah, diyat is divided into three types which are camels, gold and silver. This opinion is shared by Imam Ahmad as well as two other scholars, Abu Yusof and Muhammad. The payment of diyat according the these three scholars are added to three other types of payment which are cows, goats and a complete set of clothing based on the practice of Saidina Umar al-Khattab in the implementation of diyat on an aqilah. Another report from Amru bin Syu'aib state that, "Umar has made it compulsory for gold owners to pay 1000 dinar, silver owners to pay 12,000 dirham, 200 cows for cow owners, 2,000 goats for goat owners and 200 complete sets of clothing for clothes owners.
Diyat paid in the form of money is calculated based on value such as 1,000 dinar pieces for gold and 12,000 dirham for silver. Dalil on diyat in the form of money was reported by al-Nasie from Abu Bakar bin Muhammad bin Amru bin Hazam from his father from his grandfather as follows:
"and for those who have gold (the diyat is) 1000 dinar."
Meanwhile, dalil on the use of silver for diyat is based on a report by 'Ikrimah from Ibnu Abbas: " A man killed, then the Prophet made him pay a sum of 12 thousand silver dirham."
One dinar piece weighs 4.25 grams while one dirham weighs 2.975 grams (Salmy Edawati 2011. 4). Therefore, diyat for victims of crime when paid with god amounts to 4250 grams (100 x 4.25) or 35700 grams of silver (12000 x 2.975). The scholars do not disagree when determining the rate of diyat unless it involves silver. This is due to the price exchange of the dinar. The Hanafiah scholars are of the opinion that 1 dinar equals to 10 dirham based on a hadith narrated by 'Ubaidah al-Sulmani. Meanwhile, the jumhur of ulama' concluded that 1 dinar equals to 12 thousand dirham,(WahbahZuhaili, 2008, 285) based on a hadith reported by Saidina Umar which told of how a man from Bani 'Adi had been killed, and Rasulullahs.a.w. set thediyat at 12 thousand dirham.
Based on the dalils stated, should the payment of diyat be based only on the value of camels, the rate of diyat would always change in accordance with the current pricing. This is because the value rate of camels always faces ups and downs based on market demand. According to an article on camel rearing in Jeddah, the market price of camels reached 1.800 to 4.000 riyal in 2009/1430 Hijri depending on the age of the camel. However, the rate that most suits the diyat payment is 3.000 riyal for a 3-year-old camel. Therefore, if the amount of diyat that a criminal must pay is 300.00 riyal (RM242,790), it may be impossible for him to fulfil the payment. This issue has sparked a debate among the scholars of Saudi Arabia who agreed that the amount was not relevant to the current value of camel pricing (http://tlts.wordpress.com/2009/11/29/harga-ternak-unta-di-pasar-jeddah).
Below is an example of how diyat is calculated:(Abdullah. 2004, 78).
1. Intentional and near-intentional murder:
30 hiqqah x 2275 = 68250
30 jaza'ah x 2450 = 73500
40 khalifah x 3425 = 137000
Total = 278750 riyal
2. Unintentional manslaughter : 20 bintumakhad x 1375 = 27500
20 bintulabun x 1675 = 33500
20 ibnlabun x 1650 = 33000
20 hiqqah x 2275 = 45500
20 jaza'ah x 2450 = 49000
Total = 188500
3. Calculations for payment made with gold and silver:
1 dinar = 4.25g =157, 25 riyal
1000 x 157, 25 = 157250 saudi riyal
1dirham =2.975g = 5.95 saudiriyal
12000 x 5, 95 = 71, 400 saudiriyal
Apart from this, the hadith of the Prophet Muhammad s.a.w. which set the diyat at one thousand dinar or twelve thousand dirham following the ever-increasing price of camels, the diyat payment would remain the same with no additional amount. Therefore, it would not be impossible for the payment to be fulfilled as the world currency today is in the form of paper money or fiat money that is not based on gold. Therefore, the currency rate throughout the world is different depending on the place. Should the whole world still use the gold and silver currency, the diyat payment would not change according to time and place but would in fact become fixed in which 1 thousand dinar would always be 1 thousand dinar whether in Malaysia or in any other place.
The Evaluation Of Gold And Silver:
Gold and silver are two syar'i currencies based on dinar and dirham which have been used before the coming of Islam. The second Caliph of Islam, Saidina Umar al-Khattab fixed the weightage of ten dirham as equal to seven mithqol which is the weight of a dinar piece while 1 dirham is equal to 1 mithqol. This was supported by Ibnu Khaldun in his book: :Know that the weight of 10 dirham is equal to seven mithqol (weight of a dinar piece) of gold." The weight of 1 mithqol of gold equals to 72 barley seeds, while a dirham is 7/10 from this weight which is 50 and 2/5 barley seeds. All this weight and measurements have been agreed upon by scholars (http://www.dinardirham.com/tag/harga-semasa-dinar-dirham).
The diyat rate commanded by Allah s.w.t. is 100 camels. For example, the rate for a diyatmukhoffah is fixed based on the hadith below:
Narrated by Abdullah bin Mas'ud from Rasulullahs.a.w. who said: In the matter of unintentional killings the diyat is 20 camels aged 3 years old, 20 4-year-old camels, 20 2-yearold female camels, 20 1-year-old female camels, 20 2-year-old male camels.(Reported by Abu Daud and Tarmizi), (Muhammad Abdul Hamid. 2004. 324).
Therefore, there came the question of whether diyat in the form of other than camels are allowed. This issue was answered by the opinion of Imam Malik and Abu Hanifah who stated that diyat must be paid in the form of one from three types of payment which are camels, gold or silver. If camels cannot be obtained from a particular area, criminals are allowed to pay a sum of money that equals the price of camels.(Abd Latif Muda & Rosmawati Ali, 1997. 319-320). Meanwhile, according to Ahmad, Abu Yusuf and Muhammad, diyat may be paid using camels, gold, silver, cows, goats or clothing. According to Imam Syafi'i there are two opinions. The old opinion is the same as that of Imam Malik and Abu Hanifah. Another opinion is that diyat may only be paid using 100 camels. Apart from this, Saidina Umar made it obligatory for criminals to pay 1000 dinar for those who have gold, 12 thousand dirham for those who own silver, 200 cows for cow owners, 2000gotas for those who own goats and 200 sets of clothing for those who have them. This is due to the fact that the price of camels during the time of the Caliph had increased (Muhammad Abdul Hamid. 2004. 324).
Diyat calculated based on the current value of gold and silver must be fixed accurately in order to avoid disputes among the general public. This must be done by using the methods implemented by Rasulullahs.a.w. and his companions during their time as a guideline. During their time, the payment of diyat was made with camels which was the most valuable form of property one could own. However, scholars agree that the diyat of 100 camels could also be paid using gold, silver or other forms based on the pricing val of camels in accordance with several hadith. The rate of gold was 1000 dinar and 12 thousand dirham for silver. A syar'i dinar piece equals to 4.25 of gold while a syar'i dirham piece equals to 2.975 grams of silver (O. Silihin. 2007. 224). A dalil on diyatthat is paid using gold was reported by an-Nasa'i as follows:
Narrated by Nasa'i from Abu Bakar bin Muhammad bin Amru bin HAzam from his father from his grandfather: "And for those who own gold (the diyat) is 1000 dinar."
Meanwhile, a dalil for diyat using silver was reported by Ikrimah from Ibnu Abbas: "A man who has committed murder was commanded by the Prophet s.a.w. to pay an amount of 12,000 dirham"
This can be seen more clearly through the latest exchange of Malaysian Ringgit in that 1 dinar piece weighing 4.25 grams of 22-carat gold equals to R < 164.47 for each gram. It can be concluded that for every dinar equals to RM 699.00; therefore, 1000 gold dinar would equal RM 699,000.00. Meanwhile, every dirham piece weighing 2.975 is priced at RM3.60 for each gram. Therefore, every dirham equals RM 10.71, totaling the sum of 12,000 dirham to equal RM 128,520.00 (http://www.publicgold.com.my/v1). In these times, there are many different types of gold and silver with different pricing values. Therefore, the question arises: Should diyat be calculated based on the type of gold or silver or only based on its weight? The answer can be found in the sunnah of the Prophet s.a.w. in which he never prohibited his people to use gold and silver as currencies, which continued until the end of the Uthmaniyyah ruling. They used dinar and dirham in accordance with the weight instead of looking at the nominal value in order to avoid cheating (IsrakAhmadsyah,M.Ec. 2004. 48).
Diyat is calculated as follows:
1 dinar= 4.25g = 699 MYR 1000dinarx699MYR = 699000 MYR
1gram of gold = 164.47 MYR
1 dirham = 2.975g = 10.71 MYR 12000 dirham x 10.71 MYR= 128520 MYR
Gold and silver are known as dinar and dirham in the history of Islam. Muslims were not the first perople to have used gold and silver. In fact, gold was used by the Byzantium and East Roman governments while dirham was used by the Persians. After Rasulullahs.a.w. became a messenger of Allah, gold and silver were widely used. Certain methods were used to avoid cheating, using certain weighing terms or methods such as auqiyah, nasy, nuwah, mitsqal, dirham, daniq, qirath, andhabbah. The table below shows the method for weighing and measuring the rate of gold and silver:
Weightage Calculations according to syara' 1 dirham 7/10 x 4.25 grams of gold 10 dirham 10 x 2.975 grams of silver 1 nasy 20 x 2.975 grams of silver 1 nuwah gram 5 x 2.975 grams of silver silver 1 daniksilver 1/6 x 2.975 grams of silver 1 auqiyah 40 x 2.975 grams of silver Weightage Weight in gold Details according to (grams) syara' 1 dirham 2.975 1 dirham= 7/10 mitsqal 10 dirham 29.75 10 dirham= 7 mitsqal 1 nasy 59.5 1 nays= 10 dirham 1 nuwah gram 14.875 1 nuwah= 5 dirham silver 1 daniksilver 0.495 1 dirham= 6 danik 1 auqiyah 119 1 auqiyah= 40 dirham Source: sigitpurnawanjati, seputar dinar dan dirham (Sigit, opcit. 126).
However, the use of silver and gold as a currency ended after the fall of the Ottoman empire. This was followed by the emergence of the paper currency system. However, dinar and dirham continued to be used especially by the European communities. For example, it has been reported that the use of dinar and silver pieces were used as trading tools or payment by Indonesia. Currently, a lot of effort has been into making gold and silver as the main currency. For example, according to Malik Abdulhaq Dwito Hermanadi, dinar and dirham have been produced in Indonesia since 1999 (Sabili, Opcit. 90-92). More effort has been made in reusing gold and silver as a currency, an example of which can be seen through the proposal made by the former Malaysian Prime Minister Tun Dr Mahathir Mohamad who insisted on the importance of using dinar as a tool for trading business. Malaysia has signed an agreement on exporting and importing Iranian products, using dinar as the medium of exchange. Tun Mahathir asserts that if all Muslim countries were to follow these efforts, dinar and dirham could potentially go up against the use of paper money (Israk-Ahmadsyah, M.Ec. 2004. 57). Dinar and dirham have higher values compared to dollar, peso and Euro. However, these efforts must be made gradually and wisely. It is hoped that the use of dinar will grow in accordance with our community's consciousness on the value of gold and silver, as well as the demands of syariah and the aim of maqasidsyariah (IsrakahmadSyahM.Ec. 2004. 59).
Efforts in bringing back the use of the gold dinar were made based on several factors, some of which are as follows: (IsrakAhmadsyahM.Ec. 2004.
1. It's consistent and fixed value. Gold is set at a similar value rate throughout the world. A dinar piece would always be valued at 4.25 grams (22-carat) while a dirham piece would always weigh 2.975.
2. Gold is universal in nature. Its value remains the same in New York, Singapore or in any parts of the world. Its use also lessens certain burdens as there is no concept of additional costs.
3. Has the potential to minimise inflation. Gold and silver pieces are only produced in extreme need and there are only two options, the first being to make a loan from another country or to print new paper money. The government has no difficulty in printing new paper money but during a time when the market of money exchange is high, the price of products will go down. However, gold and silver pieces are immune towards inflation even a century after it has been produced.
Cases in the Payment of Diyat:
Only a small number of countries implement the laws of Allah as provided in the Quran, and some even go overboard in making these implementations. Saudi Arabia is known as a country which implements the hudud law. The majority of major or minor crimes will usually be dealt with immediately after a detailed and thorough investigation has been carried out. Only then will the punishment be pronounced upon the criminal.
One example of a case involving diyat was reported to have happened (http://www.bnp2tki.go.id/berita) to an Indonesian worker who was freed from execution. His name was Hafidz bin Kholil Sulam and he was freed from being beheaded in Saudi Arabia after receiving pardon from the victim's family. He later paid a diyat of 400,000 riyal or Rp 9956 million instead of taking the punishment.
The details of the case enclosed that Hafidz had killed his brother Mohamadbn Husin Ali Mukalim by plunging a knife into his neck and the back of his head. He was then imprisoned in Mecca from 1999 to 2011. After obtaining pardon from the victim's family, Hafidz was given a period of seven months by the Saudi Arabia court in a tanazul session, to pay an amount of 400.00 riyal as diyat, beginning from May 2011. It was reported that he had made this payment on November 2011. The rate of diyat in this case was based on the pricing rate for camels.
The Saudi Arabia law has determined the type of diyat to be based on the value of camels, based on a case referred to by the High Court of Saudi Arabia from 1412-1423 Hijri, in which two men were murdered. Originally, the family of the second victim made claims for qisas, while the family of the first victim granted pardon and claimed diyat. After several negotiations, the murdered was finally pardoned and ordered to pay 110,000 riyal as diyat to the victims' families.
The second case also took place in Saudi Arabia, in which the court ordered the offender to pay compensation to the victim's family for unintentionally or mistakenly causing the victim's loss of life due to a traffic accident. The offender paid a sum of 100,000 riyal to the victim's family.
The payment of diyat through the use of gold and silver is rarely heard of in Saudi Arabia as diyat is determined based on the value of camels, in accordance with the fatwa made by the mufti of Saudi Arabia, the honourable Syeikh Muhamad Ibrahim Rahimahullah on 15/1/1374, in which it is stated that the rate for diyat is based on the value of camels, in which the life of a free Muslim is equal to 100 camels.
In conclusion, diyat payment using gold and silver is a relevant alternative for application. However, its application requires examination on the value and rate of the diyat. In further explanation, the authors provide an example of diyat using camels by providing a number of case studies from countries which currently implement qisas. This proves that the payment of diyatusing camels has been widely received. However, the use of gold and silver needs more research in order to show that they may be used for payment based on a number of hadith. The weight of the gold or silver must be used as the basis for the payment of diyat, instead of its nominal value.
The payment of diyat through the value of gold and silver is an alternate form of payment to the use of camels especially for areas or countries in which such animals are difficult to be found, though some scholars still disagree on the matter. The assertion of the scholars regarding the rate of thediyat payment proves that it is a responsibility that must be fulfilled by the offender to the family of the victim, should they claim it.
After close scrutiny of the above writing, it can be concluded that diyat is still made through the use of camels in countries such as Saudi Arabia. The evaluation and calculation of diyat through gold or silver exists but is not implemented. Should diyat be evaluated through gold and silver in the current days, it would mean that the pricing for these valuable metals also go through the ups and downs as it would for camels. This is not the same as it was during the Prophet s.a.w.'s time in which the currency was based on gold and silver, which therefore sets the diyat payment at 1000 gold dinar. In fact, should this be changed to the currency rate of our time, the amount would reach RM 700, 00 which is a large sum of money.
Therefore, it is suggested that gold and silver are once again made as the primary currency or at least as an alternative to the current mode of currency. Besides aiding the stability of the world economy, it will also help offenders to pay compensation or diyat to the family of the victim. This is based on the hadith of Rasulullahs.a.w. in which diyat is set at 12,000 dirham and 1,000 dinar which will always remain at the same rate with no additional charges. The rate of gold and silver will always be static and stable at any place. Should diyat still be evaluated based on the value of camels, the amount of diyat payment will increase, making it harder for offenders to complete the payment.
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Ahmad Bin Muhammad Husni, Anwar Fakhri Omar, Muhammad Nazir Alias, Mohd Al-Adib Samuri & Nurhayati Binti Che Omar
Fellow of Institute of West Asian Studies (IKRAB) & Lecturer at Department of Syariah, Faculty of Islamic Studies, UKM. Malaysia.
Ahmad Bin Muhammad Husni, Anwar Fakhri Omar, Muhammad Nazir Alias, Mohd Al-Adib Samuri & Nurhayati Binti Che Omar: Determining Therate Of Diyatthrough The Use Of Gold And Silver: An Analytical Study
Corresponding Author: Dr. Ahmad Bin Muhammad Husni, Fellow of Institute of West Asian Studies (IKRAB) & Lecturer at Department of Syariah, Faculty of Islamic Studies, UKM. Malaysia.
E-mail: email@example.com; firstname.lastname@example.org
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|Title Annotation:||Original Article|
|Author:||Husni, Ahmad Bin Muhammad; Omar, Anwar Fakhri; Alias, Nazir Muhammad; Samuri, Mohd Adib Al-; Omar, N|
|Publication:||Advances in Natural and Applied Sciences|
|Date:||Jan 1, 2013|
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