Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dlr. MUHAMMAD ASLAM KHAKI VS Respondent: FEDERATION OF PAKISTAN through Ministry of Justice and Parliamentary Affairs, IslamabadHonorable Justice Allama Dr. Fida Muhammad Khan
P L D 2010 Federal Shariat Court 191
P L D 2010 Federal Shariat Court 191
Before Haziqul Khairi, C.J., Allama Dr. Fida Muhammad Khan, Salahuddin Mirza and Syed Afzal Haider, JJ
Dlr. MUHAMMAD ASLAM KHAKI----petitioner
Versus
FEDERATION OF PAKISTAN through Ministry of Justice and Parliamentary Affairs, Islamabad---Respondent
Shariat Petition No.2/I of 2006, decided on 28th May, 2009.
Per Allama Dr. Fida Muhammad Khan, J, Haziqul Khairi, C.J. agreeing
(a) Islamic Jurisprudence---
----Prohibition of intoxicant drinks---Four specific Injunctions, regarding intoxicating drinks, which were gradually revealed detailed---Clear and decisive verdict is given on intoxicating drinks and gambling which have been equated with greatest sin like that of associating partners with God---Degree of prohibition of intoxicant drinks mentioned in Qur'anic Verses and Ahadith recorded.
(b) Islamic Jurisprudence---
---"Sin"-Meaning--Sin does not mean only "harm "---Muslims have been ordained to avoid sin in any form, whether open or secret.
(c) Islamic Jurisprudence---
----Prohibition of intoxicant drinks---Punishment---Hadd or Tazir---Whipping---Scope---"Khamr "---Literal meanings--- "Khamr" which was morally used for wine, literally means what obscures the intellect and thus it includes other intoxicant drinks made from wheat, barely, raisins and honey---Prohibition of wine was extended to all intoxicants in any form---Taking any intoxicant is a major sin in Islam and is, therefore, strictly prohibited-Islamic State was duty bound to enforce its prohibition and considering it a heinous offence inflict punishment by way of whipping or, in the alternative, imprisonment as provided by law---Whatever causes intoxication when used in large quantity was prohibited, even in a small quantity---If a large quantity of something caused intoxication, to drink even a palmful of it was prohibited---Court while convicting an accused is to take into consideration the overall condition of society at large, the quantity of intoxicant liquor (i.e. taking a sip or swallowing barrels), commission of other offences in drunk condition, like causing harassment in public, attempting to inflict damage to the persons/honour of other citizens, making nuisance, uttering abuses, using filthy language, being persistently habitual with previous history, causing collateral damage to the property or inflicting injury to some person, trespassing other's house, outraging modesty, committing rape and depending on the nature of proof required for Hadd/Tazir etc. award the punishment accordingly---Court could not remain oblivious to the overall attending circumstances and is therefore, duty bound to consider all conditions and, if any offence was established beyond any doubt, award Hadd or Tazir punishment accordingly.
Bukari, `Wudu', 71 `Maghazi', 60, `Ashribah',, 4, 10, `Adab', 8, `Ahkam', 22, Muslim, Ashribah, 67-9; Abu Da'ud `Ashribah', 5, 71; Ibn Majah; `Ashrihbah', 9, 13, 14; Darimi, `Ashribah', 8, 9; Muwatta", `Dahayat', 8: Ahmad b. Hanbal, Musnad, Vol. 1, pp.274, 289, 350, Vol. 2, pp.16, 158, 171, 185, 329, 501; Vol. 3, pp.66, 112, 119, 361, Vol. 4, pp.4, pp.41, 416; Vol. 6, pp.36, 71, 72, 97, 131 and 226-Ed); Abu Da'ud, `Ashribah', 5; Ibn Majah, Ashribah;, 10; Ahmed B. Hanbal, Musnad, Vol.2, pp.167, 179 and Vol. 3, p.343-Ed); Bukhari, Tirmidhi, Abdu Daud, Ibn Maja); Umdatul Qari, Tafheemul Qur'an, Al Thashriul Jinaee Vol. I) and Vol. I, p.437 of Encyclopedia Britannica ref.
(d) Islamic Jurisprudence---
----Crime and punishment---Sentence of whipping---Mode of execution--- Sentence of lashes in Shariah is not severe, its purpose is just to awaken in the convict a realization of his wrong so that he may repent his misdeeds---Shariah also makes sure that neither humiliation takes place nor it remains a permanent scar on him because the execution of sentence followed by repentence washes out the stigma and guarantees the purification of the convict and it is in this light that the sentence, which is obligatory in Islam in some cases, has to be seen.
(e) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 8---Prohibition of intoxicant drinks-;-Punishment---Award of whipping eighty stripes as punishment to the one found guilty of "drinking" liable to "Hadd" when the requisite proof thereof was available before the court is not in conflict with Qur'an and Hadith.
(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Arts. 8 & 25---Constitution of Pakistan (1973), Art. 203-D---Articles 8 and 25 of Prohibition (Enforcement of Hadd) Order, 1979 being not in conflict with any Verse of Qur'an and Sunnah was not repugnant to Injunctions of Islam.
Per Haziqul Khairi, C.J., Salahuddin Mirza, J agreeing
(g) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 8, proviso---Constitution of Pakistan (1973), Art.13(a)---Proviso to Art.8, Prohibition (Enforcement of Hadd) Order, 1979 suffers from many ambiguities and defects: Firstly, it is presumed that in every case the convict shall prefer an appeal or apply for bail; in case he does not, he shall remain in prison till the time of filing of appeal expires; secondly, imprisonment shall operate as double punishment not provided for either in Qur'an or Sunnah and is in violation of Art.13(a) of the Constitution.
(h) Execution of Punishment of Whipping Ordinance (IX of 1979)---
----S. 4---"Whip"-Meaning.
12:25; 12:32; Black's Law Dictionary (8th Edn.) and BBC English Dictionary (First Edn. 1992) ref.
(i) Execution of the Punishment of Whipping Ordinance (IX of 1979)---
----S. 5---Whipping---Conditions and mode of execution of punishment of whipping detailed.
(j) Execution of the Punishment of Whipping Ordinance (IX of 1979)---
----S. 4---Constitution of Pakistan (1973), Art.203-D---Held, provision of S.4, Whipping Ordinance, 1979 is repugnant to Qur'an and Sunnah and accordingly the President of Pakistan was directed by Federal Shariat Court to take necessary steps for substitution of S.4, Whipping Ordinance, 1979 as "S.4: The whip shall be a stick of palm tree stripped of leaves with two branches"---Federal Shariat Court observed that in case S.4 of the Whipping Ordinance, 1979 was not substituted as directed, within six months hereof, the former shall deem to have been substituted and shall also become effective within six months.
(k) Prohibition (Enforcement of Hadd) Order (4 of 1979)---
----Art. 8-Constitution of Pakistan (1973), Art.203-D---Held, proviso to Art.8, Prohibition (Enforcement of Hadd) Order, 1979 is repugnant to Qur'an and Sunnah and accordingly the President of Pakistan was directed to take necessary steps for deletion; of the proviso to Art.8 of the Order---Federal Shariat Court observed that in case proviso to Art.8 of the Prohibition (Enforcement of Hadd) Order, 1979 was not deleted as directed, 'within six months hereof, the proviso shall deem to have been repealed and shall also become effective within six months---Federal Government was further directed by Federal Shariat Court to introduce a provision of law, whereby a person accused of taking intoxicating liquor under Hadd, shall be; entitled to get bail before the Trial Court and the Appellate Court avid in case Federal Government failed to do so, said directions shall deem to take effect on the expiry of six months hereof.
Per Syed Afzal Haider, J. agreeing with Dr. Fida Muhammad Khan, J "that Shariat Petition No.2/I of 2006 be dismissed" and adding his own reasonings.
Petitioner in person.
Sardar Abdul Majeed, Standing Counsel and Tariq Ali for the Federal Government.
Allama Shah Tafazul Ali, Maulana Sarfraz Mehmood, Maulana Ibrahim Musa, Muhammad Abdul Manan, Ibrahim Ishaque and Dr. Muharnmad Yousaf Farooqui: Juris-consults.
Dates of hearing: 29th January, 7th May, 27th August, 22nd October, 12th November, 2008, 14th and 15th January, 2009.
JUDGMENT
ALLAMA DR. FIDA MUHAMMAD KHAN, J.---Through this Shariat Petition the petitioner, Dr. Muhammad Aslam Khaki, has challenged Articles 8 and 25 of the Prohibition (Enforcement of Hadd) Order, 1979, (hereinafter referred as "the Order"), on the ground that these are violative of the injunctions and spirit of Islam. The impugned Articles read as under:---
"Article--8.
Drinking liable to Hadd.---Whoever being an adult Muslim takes intoxicating liquor by mouth is guilty of drinking liable to Hadd and shall be punished with whipping numbering eighty stripes."
Article-25.
Punishment for attempt to commit offence punishable under this Order.---Whoever attempts to commit an offence punishable under this Order to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall be punished, in the case of an offence punishable under Article 8, with rigorous imprisonment for a term which may extend to two years, and in other cases, with imprisonment for a term which may extend to one-half of the term provided for that offence, or with such whipping or fine as it provided for the offence or with any two of, or, all the punishments."
2. The petition was fixed for hearing on a number of dates. The petitioner was heard in person. He also filed his detailed comments. Since the question raised in this petition was highly important, therefore, some renowned scholars of the country namely Mufti Rafi Usmani, Allama Talib Jauhari, Allama Javed Ghamidi and Dr. Yousaf Farooqi were appointed, as juris-consults, and requested to assist the Court in this matter. Allama Talib Jauhari being out country could not respond. Allama Javed Ghamidi also did not appear. However, Mufti Rafi Usmani while regretting his personal attendance on account of various commitments deputed Maulana Shah Taffazzul Ali, along with a number of other scholars of Darul Uloom Karachi, and also endorsed the written comments filed by them. Dr. Yousaf Farooqi appeared in person and made detailed submissions. He also filed written comments. Sardar Abdul Majeed, Standing Counsel for the Federal Government also made submissions and filed written comments.
3. While supporting his petition, the petitioner contended that Islam has declared some specific offences as "Hadd"' which are heinous but the offence of drinking is not a heinous crime as the Holy Qur'an has attributed "benefit" along with some "harm" to the act of drinking. Therefore, he contended that the offence of drinking was not absolute "Haram" (prohibited). He relied on Verse No.229 of Surah Al-Baqara. The second ground taken by the petitioner in support of his contention was that the definition of "Hadd" given in the Order reveals that it is "the punishment prescribed by Holy Qur'an and Sunnah" but neither Qur'an nor Sunnah has prescribed any punishment for it. He added that even in the time of Holy Prophet (PBUH) there was flexibility in the punishment for drinking. He further submitted that the Sunnah reveals that the Holy Prophet (PBUH) never punished any person accused of drinking for more than forty stripes or lashes. The main thrust of his arguments was based on the definitions of "Hadd" as provided in the impugned Order as well as in other Hudood Ordinances, promulgated in 1979, which declare only those punishments as "Hadd", which are fixed/prescribed by Holy Qur'an and Sunnah. He also submitted that drinking is not one of the major sins or heinous crimes, but is only a minor sin or crime simpliciter. He further added that Article'25 of the impugned Order, is also violative of the Injunctions of Islam for the same reasons.
4. Sardar Abdul Majeed, Standing Counsel for the Federation strongly opposed the contentions of petitioner and submitted that injunctions regarding drinking wine have been mentioned in different places in the Holy Qur'an and it is considered a major sin for which specific prohibition is available in the Holy Qur'an and Sunnah. He placed reliance on Verse No. 219 of Surah Al-Baqara, Verse No.73 of Surah Al-Nisa, Verses Nos. 90 and 91 of Surah Al-Ma'idah, Verse No.178 of Surah Al-Imran, Verse No.2 of Surah Al-Ma'idah, Verses Nos. 62 and 63 of Surah al-Ma'idah and Verse No.12 of Surah Al-Anaam. The learned counsel submitted that the Shariat Petition may be dismissed.
5. Dr. Muhammad Yousaf Farooqi also vehemently opposed the instant Shariat Petition and contended that it should be dismissed forthwith. He quoted extensively from various books of Ahadith and submitted that the punishment provided by the Holy Prophet (PBUH) was 40 stripes with a stick having two branches and thus the 80 stripes punishment is established by authentic Hadith. He submitted a detailed research note to this effect. The term headed by Shah Muhammad Taffazzul Ali also made similar submissions and placed reliance on several "Fatawa", with complete references on the subject. He also submitted that the petition may be dismissed.
6. We have given our anxious considerations to the points raised by the petitioner, and Jurist-Consults as well as by learned counsel representing the Federation.
7. It would be appropriate to give necessary details of the four specific Injunctions, regarding intoxicating drinks, which were gradually revealed since the advent of Islam, in the following order:--
(a) verse No.67 of Surah 16-Al-Hahal (The Bee) revealed in Makkah:
"And from the fruit of date palms and vines you derive intoxicants as well as wholesome food "(16:67)".
This was the first indication to the Muslims whereby making them conscious of the actual position, intoxicants were placed in opposition to the wholesome sustenance. This first step was, however, no more than firing a shot in the right direction:
(b) Verse No.219 of Surah 2: Al-Baqra (The Cow), revealed in Madina which reads as follows:
"They ask you about intoxicants and games of chance. Say: In both there is great sin although they have some benefits for people; but their sin far exceeds their benefit." (2:219).
The suggestion herein is very clear; since the sin of this particular act is far greater than its benefit, it is better to abandon it altogether. Actually there is hardly anything which is totally devoid of benefit, but its permissibility or prohibition depends on how far its evil outweighs its benefit.
This was the second step taken addressing the Muslim Community to awaken and motivate their moral and religious consciousness through legislative logic.--
(c) The third step broke the habit of drinking and put it incompatable with attending, to obligatory prayers. Here we have the Verse No.43 of Surah 4: (Women): revealed in Madina. It reads as under: ---
"Believers, do not attempt to pray when you are drunk, (but wait) until you know what you are saying." (4:43).
Since Muslims have to offer five obligatory prayers every day, with a close time-range between them, this instruction practically restricted the times available for drinking as the time in-between prayers was too much insufficient to get drunk in and then regain sobriety to be able to offer the mandatory prayers. This, in fact, put an end to the habits of mid-morning and mid-afternoon drinkings, which were daily routine of people of pre-Islamic Arabia. In this way, it became practically impossible for a Muslim to attend to his prayers on time, and also to keep on drinking at his usual times.
(d) The fourth and final stage was the categorical prohibition which was promulgated after people had become fully prepared to accept it. It needed only a clear specific order and the Muslims were then sure to obey it in letter and spirit, without any least hesitation. This prohibition is contained in verses Nos.90 and 91 of Surah No.5, (The Table) revealed in Madian. These Verses read as mentioned hereinunder:--
"(90) Believers! Intoxicants, games of chance, idolatrous' sacrifices at alters, and divining arrows are all abominations, the handiwork of Satan. So shun wholly away from it so that you may attain to true success.
(91) Satan seeks only to stir up enmity and hatred between you by means of intoxicants and games of chance, and to turn you away from the remembrance of Allah and from Prayer. Will you not, then, desist?"
As soon as Hazrat Umar heard these verses, he immediately responded "We do desist, our Lord! We do desist" (Hdit related by al-Nasai, Abu Dawud, al-Tirmidhi and Ibn Majah).
The verse at S.No.(b); above, was the first injunction concerning intoxicating drinks and gambling. As is evident, drinking was not prohibited thereby forthwith but was impliedly disapproved severely, by declaring it as "great sin" which was described comparatively greater than the benefit contained therein. Here we may point out that (sin) does not mean only "Haram", as stated by the petitioner, but it Is translated as "sin" and regarding "sin" verse No.120 of Sura 6 Al-Anaam (i.e. The Cattle) is very clear and implicit. It reads as mentioned hereinunder: ---
"Abstain from every sin, be it open or secret. Indeed those who commit sins shall surely be requited for all they have done."
Similarly, Verses No. 2, Nos. 62 and 63 of Sura Al-Ma'idah besides so many other verses on the subject clearly establish that Muslims have been ordained to avoid sin in any form, whether open or secret.
8. We may mention that it was within the context of legislation, permissibility and prohibition, as well as the moulding of the Muslim community in Madina, and purging it from all remaining traces of past traditions of the dark days, that a clear and decisive verdict is given on intoxicating drinks and gambling which have been equated with greatest sin like that of associating partners with God.
9. Drinking, gambling, idols worship and divining arrows were important aspects of pre-Islamic Arabia. They were closely related in both practice and tradition: The Arabs used to drink and considered in their vanity that drinking was a prestigious act which afforded the people great distinction. They often mentioned drinking in their poetry as a practice to be proud of or to praise others with.
10. It is notable that Islam did not address such traditions in the beginning, because they were based on mistaken beliefs. To try to reform them at the surface level before establishing the right foundation of faith was bound to be a wasted effort. Islam began its reform with the paramount question for every human being, namely, faith. It alone could uproot the very basic ideological concepts of ignorance in order to put in its place the Islamic concept, which is in complete harmony with human nature. It explains to people how grossly mistaken their concepts of God are and guides them to recognize their true Lord and creator. Once they knew him (God) and His attributes and got aware of their accountability to Him, only then they begin to listen with 'great attention to find out what pleases and displeases their Lord. Prior to this they are not even ready to listen or obey an order or commandment.
11. It may be pertinent to point out that it was for this reason that Islamic method of reform did not start at the outset with abruptly correcting the customs, conventions, deviations and abominations of the dark ages, or Jahiliyyab. First of all, it addressed the question of faith, beginning with the declaration that there is no deity save God alone Who is the Creator, Ruler and Lord of the whole universe and He alone deserves to be worshiped at all levels and to Whom everyone shall be accountable on the Day of Resurrection. It took around 13 years to establish this concept of God's oneness, with all that it entails, in the hearts of the early Muslims. In that period, the only aim was its indoctrination, so that people could know their Lord and submit themselves to His authority. When faith was clearly established in their heart and they recognized that they could have no choice other than what has been chosen for them by God, then the next phase of outlining their duties, including worship, began. This was combined with the process of eradicating the social, economic, moral and behavioural traces of ignorance. It began in effect at the moment when God's order could be obeyed without hesitation because people realized that God alone could order them to do what is good for them. Once the Gordian knot of unbelief had been cut, it was easy to unfasten the other knots that bound them. Once the Prophet had opened their hearts to Islam, he did not have to struggle at each step to make them reject the Wrong and accept the Right. They had entered into the new faith with devotion and dedication and submitted themselves without demur to what the Prophet decreed. It is remarkably astonishing to note that they unhesitatingly confessed before the Prophet even such crimes, entailing severe capital punishment, as were not known to anyone but themselves. If they committed any crime, they voluntarily submitted themselves for punishment.
12. Thus as mentioned above, the prohibition of intoxicants and games of chance did not come as a surprise. As stated above, before this categorical prohibition, some steps were taken to loosen and break the hold of such social traditions which were closely intertwined with personal moral habits as well as with economic 'practices. Indeed, this was the third or fourth step which Islam took to solve the problem of intoxicant drinks. The under-mentioned verses of Surah Almaida were the last verses that finally prohibited the intoxicating liquor:--
"Believers, intoxicants, games of chance, idolatrous practices and divining arrows are abominations devised by Satan. Therefore, shun them so that you may be successful Satan seeks only to stir up enmity and hatred among you by means of intoxicants and games of chance, and to turn you away from the remembrance of God and from prayer. Will you not, then desists? (Sura Almaida Verse 90-91)."
These two verses which make intoxicants absolutely forbidden were revealed in the third year of the Islamic calendar, shortly after the Battle of Uhud, when the Islamic State was fully established and the prohibition did not require anything more than sending some one around the places of people's gathering just to announce: "All intoxicants are forbidden." The announcement had marvelous reaction in the public to the extent that everyone who had taken up a glass of wine in his hand, to drink, threw it and everyone who was in the actual process of drinking threw out what was in his mouth and, strangely enough, as reported, those who had swallowed a portion thereof forced their fingers in the throat to get that vomited as much as was possible. Barrels and bottles of wine and other intoxicants were broken into pieces and the streets of Madina were observed overflowing with the intoxicating liquor. The whole matter was thus over and it seemed as if the people had never before drunk any intoxicant.
This consequently followed the decisive statement on the nature of those practices which admit no counter argument: "Intoxicants, games of chance, idolatrous practices and divining arrows are abominations devised by Satan." (Verse 90). These are, then, foul practices and cannot be included among good and wholesome things which God has permitted. Moreover, they have been devised by Satan, man's old enemy. It is sufficient for a believer to know that something devised by Satan was to make it totally repugnant to him.
At this point, the prohibition is issued, but is combined with the prospect of attaining success, which .itself has its profound effect on the human mind: "Therefore, turn away from them so that you may be successful," (Verse 90). The Qur'anic verses go on to further expose Satan's scheme behind the devising of these abominations. "Satan seeks only to stir up enmity and hatred among you by means of intoxicants and games of chance, and to turn you away from the remembrance of God and from prayer." (Verse 91) Satan's aim and the purpose of his scheming are thus exposed before every Muslim. Satan seeks nothing except the stirring up of enmity and hatred among believers so as to turn them away from their worship. What a wicked scheme!
Satan's aims can easily be recognized in our practical life after we have accepted them as true, since God has stated them so. It does not take anyone with an open mind long to recognize how Satan actually stirs up enmity and hatred, utilizing for this purpose intoxicants and gambling. Intoxicants weaken one's consciousness and self-control, heighten tempers and stir up whims and impulses. Gambling all games of chance leave people with a sense of loss and grudges. It is natural that a losing gambler nurses a strong grudge against the winner who takes away his money from under his nose and leaves him empty handed. It is only natural that such matters stir up enmity and hatred, regardless of the impression of happiness they initially give off.
The fact that intoxicants and gambling do turn people away from their remembrance of God and from prayer…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.