Series of Questions Addressed to Scholar Sheikh Ata Bin Khalil Abu Al-Rashtah,
Ameer of Hizb ut Tahrir through his Fiqhi Facebook Page

Question:

Assalaamu Alaikum Wa Rahmatullah Wa Barakaatuhu, May Allah protect you, I would like an explanation:

Why does "Ar-Rikaz" (Buried treasure) come under the chapter of Kharaj and not the chapter of Zakat? Is the fifth of Rikaz taken when it reaches the "Nisab"?

May Allah bless your efforts.

Answer:

Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu

It was extracted by Al-Bukhari and Muslim from Ibn Shihab, from Sa'eed Bin Al-Musayyiib, from Abi Salamah Bin Abdul Rahman, from Abu Hurairah (ra): That the Messenger of Allah (saw) said: «وَفِي الرِّكَازِ الخُمُسُ» "(Take) from the Rikaz (buried treasure) fifth (the amount)."

Rikaz is ancient treasures buried underground or vessels of limited amounts of metals... if it is discovered by someone in his property, whether a land or building, it will belong to the discoverer, but if the Rikaz or metal is found in someone else's land or building, the Rikaz or metal will belong to the owner of the property and not the finder of the Rikaz or metal... The fifth of the amount of the Rikaz is obliged to be paid the moment it is discovered to Bait ul-Mal and it is prohibited to delay.

As for whether the fifth (of the Rikaz) is Zakat or Fai' (booty) that is "state property", the answer is that it is not zakat but it is Fai', and from the evidences for this is what is narrated by Abu Ubaid from Mujalid from As-Sha'bi that:

أن رجلاً وجد ألف دينار مدفونة خارجاً من المدينة، فأتى بها عمر بن الخطاب، فأخذ منها الخمس مائتي دينار، ودفع إلى الرجل بقيّتها، وجعل عمر يقسم المائتين بين من حضره من المسلمين، إلى أن أفضل منها فضلة. فقال عمر: أين صاحب الدنانير؟ فقام إليه، فقال له عمر: خذ هذه الدنانير فهي لك

"A man found 1,000 Dinars buried in a place outside of Madinah so he came with them to ‘Umar ibn Al-Khattab who took a fifth, 200 Dinars, and returned the rest to that man. ‘Umar began dividing the 200 among the Muslims present before him until there remained a surplus. ‘Umar said: ‘Where is the owner of the Dinars?' So he stood before him and ‘Umar said to him: ‘Take these Dinars. They are yours."

From the hadith of As-Sha'bi, it is clear that the amount taken by ‘Umar (ra) from the whole Rikaz is only the fifth, and the remaining four fifth were returned back to the finder of the Rikaz; this fifth was not Zakat, but was considered as Fai', because if it was Zakat it would have been given to those eligible for Zakat, and ‘Umar (ra) would not have given it to the finder of the Rikaz because he was a wealthy man, and Zakat is not given to the wealthy.

This is why whatever the amount of the Rikaz is, four-fifth of it is given to its finder and the fifth is given to Bait ul-Mal. This is not conditional to a Nisab because it is not Zakat, whether the amount of the Rikaz reaches the Nisab or not, a fifth of it is paid to Bait ul-Mal of the Muslims. Currently the Muslims do not have Bait ul-Mal, so the finder of the Rikaz can pay the fifth to that which benefits the Muslims or the needy among them...he does what he sees best.

Your brother,
Ata Bin Khalil Abu Al-Rashtah

The link to the answer from the Ameer's Facebook page