اسلامی بینکاری میں ضمان و ملکیت کے معاملات: مرابحہ، شرکتِ متناقصہ، اجارہ، سلم، استصناع اور تورق کا شریعتِ اسلامیہ کی روشنی میں جامع و تنقیدی جائزہ

Abstract

Islamic banking has emerged as a significant and rapidly growing sector within the contemporary financial system, offering an alternative to conventional interest-based banking by adhering strictly to Shariah principles. The core objective of Islamic finance is to promote ethical, equitable, and interest-free economic transactions, avoiding prohibited elements such as riba (interest), gharar (uncertainty), and maysir (gambling). This research critically examines the application of key Islamic financial contracts—Murabaha, Diminishing Musharakah (Musharakah Mutanaqisah), Ijarah, Salam, Istisna, and Tawarruq—focusing particularly on the concepts of liability (Dhaman) and ownership (Milkiyah), which form the foundation of all Shariah-compliant financial transactions. The study reveals that while these contracts are designed to comply with Shariah, practical implementation often deviates from Islamic legal requirements. In Murabaha, lack of actual possession and guarantee by the bank transforms the transaction into a form resembling interest-based lending. In Diminishing Musharakah, although joint ownership is established, banks sometimes fail to assume real possession and responsibility, disrupting the balance of risk and reward. Ijarah contracts are frequently executed before banks acquire full ownership of the leased asset, violating Shariah conditions. Salam contracts often involve deferred payment or installment-based collection, undermining the contract’s validity, while in Istisna, responsibility for defects and ownership transfer is sometimes improperly allocated. Tawarruq transactions similarly suffer from lack of actual possession, reducing transparency and risking non-compliance with Shariah. The findings highlight critical gaps in the practical application of Islamic banking principles, particularly concerning the transfer of ownership and assumption of liability, which can lead to unethical profit-making practices if unregulated. The study recommends implementing clear policies regarding possession and liability, ensuring transparency through documented procedures, strengthening Shariah supervisory mechanisms, and providing comprehensive training for both bank personnel and customers. These measures aim to enhance the compliance, transparency, and ethical foundation of Islamic banking, thereby ensuring that financial operations are genuinely aligned with Shariah principles and promote equitable economic justice.