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Petitioner: NOSHER RUSTAM SIDHWA VS Respondent: THE FEDERATION OF PAKISTAN
Court Name: Federal Shariat Court Judge(s): Aftab Hussain, Haider, Karimullah Durani Title: NOSHER RUSTAM SIDHWA vs THE FEDERATION OF PAKISTAN Case No.: Shariat Petition No. 1 of 1980 Date of Judgment:1981-04-26 Reported As: PLD 1981 F SC 245 Result: H.
JUDGMENT
JUDGMENT JUSTICE (RETD.) SALAHUDDIN AHMED, CHAIRMAN.--I have had the benefit of perusing the judgment proposed to be delivered by my learned brother, Aftab Hussain J. Member. I agree with the judgment. I have no doubt that intoxicants including wine have been prohibited in the Holy Quran as well as in the Sunnah of the Holy Prophet (PEACE BE UPON HIM). The Quran has called them grievous sin, and put them in the same category as idols, games of chance and divining arrows, and called them as an infamy of Satan's handiwork. The Sunnah has characterised them as `mother of all evil, and has definitely prohibited them. The language used in the Quran 2:219 and 5:93 and 94 is clear and unambiguous, and admits of no doubt. They are as follows;----- 2:219 "They ask the A. Yusuf A.I Concerning wine and gambling Say : "In them is great sin, And some profit, for men ; But the sin is greater Than the profit. : 5:93"O ye who believe. A. Yusuf A.I Intoxicants and gambling, (Dedication of) stones, And (divination by) arrows, Are an abomination,
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Of Satan's handiwork : Eschew such (abomination). That ye may prosper." 5:94 "Satan's plan is (but) A. Yusuf A.I-To excite enmity and hatred Between you, with intoxicants And gambling, and hinder you From the remembrance Of Allah, and from prayer Will ye not then abstain? The prohibition is in unmistakable terms, and it would indeed be perverse to treat them as mere words of advise which may or may not be accepted. Allah has clearly warned us of the role of Satan and his nefarious designs to sow enmity and hatred among us and to turn us away from the remembrance of Allah and His worship by means of drink and games of chance. Experience has fully brought out the great truth of these assertions. The world is today plagued by the evil of drinking and at its wit's end how to get rid of the evil which has caused and has been causing devastation in society, socially, morally and economically Allah, Who is (Aleem) and (Baseer) had, therefore, for the benefit and welfare of man himself, asked us to beware of and desist from taking intoxicants and playing games of chance. Fully consistent with these verses of the Quran are the Ahadith. It has been related on the authority of Abdullah Ibn-e-Umar that the Prophet (PEACE BE UPON HIM) said : "Wine (khamr) is the mother of mischiefs, the greatest sin, and that he who drinks wine he gives up prayers etc." vide Fiqh-us- Sunnah Vol. II, page 371 by Syed Sabiq printed at Beirut. According to Jabir the Prophet (PEACE BE UPON HIM) said : "Indeed Allah has forbidden the purchase of wine, dead meat, pig and idols." See Muslims, Vol. II page 624 Hadith No. 1546 (Urdu translation, printed by Quran Mahal Karachi). Abdullah Ibn-e-Amar says that the Prophet (PEACE BE UPON HIM) said: "Every intoxicant is wine and every wine is unlawful" (Tirmizi, Vol. I, page 302, Hadith No. 1922 printed by Quran Mahal, Karachi). Jabir says that Prophet (PEACE BE UPON HIM) said : "What intoxicates in greater quantity is also unlawful in its smaller quantity." Vide Tirmizi Vol. I, page 804, Hadith No. 1926 printed by Quran Mahal, Karachi. Anas says that the Prophet (PEACE BE UPON HIM) cursed ten persons regarding wine, namely, one who squeezes it, one who is engaged in squeezing it, one who drinks it, one who carries it one to whom it is carried, one who gives it to drink, one who sells it, one who devour its price, one who purchase it and one from whom it is purchased. Vide Mishkat-ul-Masabih (English translation), Vol. II page 572 by Al-Haj Maulana Fazul Karim (printed by Law Publishing Co., Lahore). Anas also says that the Prophet (PEACE BE UPON HIM) beat the drinker of wine with branches and shoes. Vide Muslim, Vol. II page 802, Hadith No. 1949, printed by Quran Mahal, Karachi. We thus find that drinking, using and dealing with intoxicants are prohibited in the Quman as well as .In the Sunnah. This answers the petitioner's contention that is not prohibited for Muslims and that they are merely advised not to drink them. Then remains the contention that this prohibition is not applicable to the non-Muslims of Pakistan. It must be stated at the very outset that neither the Quran nor the Sunnah furnishes any basis for this proposition. Allah is the Lord and Sustainer of the Worlds. He treats mankind as one family, and has, therefore, laid down guidance for the salvation and welfare of all mankind. It is another thing if some of them bears no Faith to Him and His Books and Apostles. In a Muslims State Muslims and non-Muslims are treated alike on the principle accepted by all juristswa alehim ma aiena lahum malna (For them is
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what is for us and on them what is on us). See Fiqhussunnah by Syed Sabiq, Vol. II, page 662 (printed at Beirut). The aforesaid verses relating to prohibition of (khamar) read with 2:256 ---la akrah fi aldeen--- lead us to think that the prohibition is applicable to non-Muslims also as long as liquor is not a part of their religion. Consistent with this is the Hadith that the Prophet (PEACE BE UPON HIM) said: --- amarna tabko ham wa wama yadenoon--- (We have been ordered to allow them free in matters of their religion). Vide Attashriul Janaiyyaul Islami by Abdul Qadar Aada, Vol. II, page 500, printed by Darul Kitabul Arabi, Beirut. The petitioner claims to profess Zoroastrian religion. He has failed to show that taking, using of or dealing in ---khamar--- including wine is part of hit religion. This concession is, therefore, not applicable to him and his Co. Religionists. On the contrary the following passage from "The teachings of the Magi-A Compendium of Zoroastrian beliefs" by R. C. Zaehner, published by Sheldin Press, London, pages 116-117 placed before us on behalf of the petitioner indicates that sobriety and to be free from inebriety are recom--mended. "But all men should become sober by drinking wine in moderation". It is of interest to note that the evil of wine and intoxicants has now been fully realised throughout the World, irrespective of any religion. In 1919 the United States of America had amended Article 18 of the Constitu--petition to prevent the fabrication of any intoxicant or selling or transferring and exporting it. This law was subsequently amended for reasons not connected with the ethics of the ban. India, too, put a ban on drinking wine. It is again of interest to note that a resolution passed at the 6 Session of the intoxicants held in Laussanne (Switzerland) from 29 November to 5 December, 1975, prepare by the International Council of intoxicants and International Organization for social defence, in which many Christian countries participated, begin as follows :- "(1) To benefit from the application of the Islamic Sharia and its ways to solve the problem of drinking intoxicants." (Vide Al-Uquba by Muhammad Abu Zahra, printed by Darul Fikre Arabi, Cairo, pages 164-165). The entire World, including Pakistan, is presently managed to control the evil of drugs and narcotics, and International Organizations are busy at work to devise means to control the spread of the evil, which has been plaguing humanity. We are not concerned with how far such bans are successful in controlling the use of wine and intoxicants. The fact remains that the evil of drinking and drugs has been realised, and efforts are being made to control it. The agreements with non-Muslim made in the beginning of Islam like the one made with the Christians of Najran were matters of expediency. Abstinence from interference with the eating and drinking habits of some non-Muslims furnishes no reason to hold that the Injunctions of Islam granted the non --Muslims full freedom for such habits. Even then restrictions were put on drinking wine in public. The Jurists are agreed that non-Muslims will be given freedom to profess practise their religion and they will be treated alike in an Islamic State. Non-Muslims, however, will not be allowed to violate any public law or to do an un-Islamic act openly. This freedom is given to the non-Muslims on the basis of the aforesaid Qur'anic verse ---la akrah fi allazi--- and on the principle accepted by the Sahaba, Tabieen and the Jurists ---lahum malna alehim wama aleena--- (Vide Almabsut-lil-Sarakhsi Vol. V, page 85.) It is stated in Badaissanaifi Tartibish Sharai by Alauddin Abu Dakar Kasani, Vol. VII, page 113 : " .....So their (Zimmis) open trade in wine and pigs is a clear mischief and they will be prohibited to do so. And though these things are permissible according to their faith the open show of the prohibited things in a place reserved for the shoar (Signs) of Islam, cannot be permuted ............th th th
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Qazi Abu Yusuf in his book Kitabul Kharaj (Urdu) printed by Islamic Publications, Lahore at page 392 states; "Zimmis ---..Will not be allowed to deal openly with the business of wine and pigs. And at page 432 he said; "In the cities built by the Arab they are not allowed to drink wine---.Openly" Al-Marwardi in his book Al-Ahkamussul Tanayya (Urdu) page 239 states that there will be ordinary/usual conditions on Zimmis, who live with Muslims, and one of these conditions is not to drink wine openly. "When a Zimmi drank the wine some say `Had' will be imposed on him and some say `Had' will not be imposed on him. This is when he drinks publicly and if he drinks secretly in his home he will not be prohibited from doing so." A prominent Jurist, Syed Sabiq in his book Fiqhussunnah, Vol. II, page 899 writes; "The Christians and Jews who live with Muslims in a Muslim country and are permanent residents with them like the Copts in Egypt, and such as those of them who stay with the Muslims for a fixed period like foreigners in Egypt, on all of them `Had' will be enforced if they drank wine in an Islamic country. This is based on the formula for them is what is for us and on them is that is on us." A well known Egyptian Scholar, Muhammad Abu Zahra has said; "As far as the 'Had' on wine taken by Zimmis or Mustamin is concerned, all the Jurists agree that `Had' will be' enforced on them on the principle "For them is what is for us, and on them is what is on us" ..........Moreover the prohibition of wine is based on the right of community to be secured from mischief and it is therefore, applicable to all those who live under the shelter of Islam. In addition the prohibition of wine is for the purpose of keeping the minds safe from pollution and impurity --- --- Vide Al-Uqubah by Abu Zabra printed by Darul Fikrul Arabi, Cairo, Egypt, page 170). JUSTICE AGHA ALI HYDER, MEMBER.-The petitioner is a member of the Parsi Community. He has filed the petition with the prayer, that Articles 3, 4, 6, 11 (b), 12, 14 and 17 of the Prohibition (Enforcement of Hadd) Order, 1979, so far as these impinge on the rights of the non Muslim citizens of Pakistan, he declared to be repugnant to the Injunctions of Islam. The petition goes on to say that the Prophet, as evidenced by the Treatise of Madina and Najran, as also from his utterances and actions, had desisted from putting any fetter on the beliefs, practices and customs of the non- Muslims. This policy was scrupulously adhere to by the Righteous Caliphs, and with very rare exceptions even by the later Caliphs and Kings, in all climes and countries, wherever the Muslims held swa y. The founders of the various schools of jurisprudence, doctors of Lawn, and authors of books and treatises, enjoying the veneration of the believers never departed from this view, and his was always the law and the policy of the Muslim rulers in this sub-continent as is to be found from Fatawai Alamgiri, which had been compiled by 500 eminent Jurists during the days of Aurangzab. Even the Prohibition Act of 1977 and the Punjab Prohibition Ordinances of 1948 and 1978, left their rights unim--paired. But as a result of the promulgation of the impugned order, referred to above, all that is open to them is to keep and use intoxicants "at about the ceremony prescribed by his religion for using it as a part of such ceremony." The right to manufacture, trade, or obtaining a licence for dealing in these articles has also been withdrawn from them. This curtailment of rights was in departure from the Injunctions of Islam and therefore it was liable to be struck down. 2. Mr. Riazul Hasan Gilani-learned counsel appearing on behalf of the respondents contended that wines and intoxicants being prohibited to the Muslims by Divine Decree, the Government is bound by the Constitution to prohibit its use even to the non-Muslims, on the principle enunciated by the maxim ---lahum malna alehim ma aleena--- (for them what is for us and on them is what is on us). The covenants and treatise, during the early days of Islam were valid for a particular situation and time, and enure no longer. The punishments of Hadd he submitted apply to all the citizens of a Muslim State. It is considered on a par with the maintenance of Public Order. To illustrate the point
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he urged, that though the personal law of the Muslims allowed them to have four wives at a time, yet they could not go through a second marriage for example in England and France, as it was in conflict with the laws of their land. The submission therefore was that if the territorial laws of other countries were above challenge, the promulgation of a law in Pakistan which was in obedience to Divine commandment, was hardly open to any exception. He submitted that it was consistently held by the Muslim Jurists, that the criminal and civil laws in a Muslim State applied equally to Muslims and non-Muslims. This was also the opinion of Muslana Mardoodi, as to be found in his address "Rights of non-Muslims in Islamic State". Some passages from imminent Jurists, past and present, were cited in support of this proposition. The proper course, therefore in my opinion, would be to see whether the drinking of wine and liquor is totally unlawful to the believers, according to the Injunctions of Islam. If the answer is in the negative, the case of non-Muslims will be no worse off. 3. The first revelation, in that context is to be found in 16:67 is as follows; And from the fruit Of the date-palm and the vine, Ye get out wholesome drink And food : behold, in this also is a Sign For those who are wise. Then we come to 2:219. They ask the Concerning wine and gambling. Say: "In them is great sin, And some profit, for men ; But the sin is greater Than the profit." They ask them how much They are to spend ; Say: "what is beyond Your needs." Thus doth God Make clear to you Ye may consider- The next stage is reached in 4:43 O ye who believe Approach not prayers With a mind befogged. Until ye can understand All that ye say,-- Nor in a state Of ceremonial impurity (Except when travelling on the road), Until after washing Your whole body, If ye are ill, Or on a journey, Or one of you cometh From offices of nature,
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Or ye have been' And ye find no water, Then take for yourselves Clean sand or earth, And rub therewith Your faces and hands. For God doth blot out sins And forgive again and again 4. Let us contrast these verses with the terms and the language, used by the Holy Scripture, when the Divine will decreed something as unlawful. This takes us to 5:4 and 2:173: 5:4 Forbidden to you (for food) Are : dead meat, blood, The flesh of swine, and that On which hath been invoked The name of other than God ; That which bath been Killed by strangling Or by a violent blow, Or by a headlong fall, Or by being gored to death ; That which hath been (partly) Eaten by a wild animal ; Unless ye are able To slaughter it (in due form) ; That which is sacrificed On stone (altars) (Forbidden) also, is the division (Of meat) by raffling With arrows : that is impiety. and Dead meat, and blood, And the flesh of swine, And that on which Any other name bath been invoked Besides that of God. But if one is forced by necessity, Without wilful disobedience, Nor transgressing due limits, Then is he guiltless. For God is Oft-Forgiving Most Merciful. 5. Look to the clarity and the directness of expression and the complete list of items, which has been declared unlawful to the Believers for all times to come, unless in circumstances of dire necessity. 6. Picking up the earlier thread, we come to 5:93 and 94 which are germane to the issue in question. 5:93O ye who believe Intoxicants and gambling,
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(Dedication of) stones, And (divination by) arrows, Are an abomination, Of Satan's handiwork Eschew such (abomination), That ye may prosper 5: 94Satan's plan is (but) To excite enmity and hatred Between you, with intoxicants And gambling, and hinder you From the remembrance Of God, and from prayer Will ye not then abstain? 7. It is reported that some outstanding companions were sitting with cup before them, when some one reproduced the contents of the said verses. Without a moment's thought the cups were cast aside and the wine thrown on the ground, never to be touched again by their lips. 8. As can be seen, the word used in the preceding two verses is ---ajtnabwa--- which means eschew, avoid or shun. It can never be on a par with unlawful. These words have been used in verses 4:36, 22:30, 49:12, 53:32, and 4:31. In verse 49:12, the call is only to avoid suspicion, in 22:30, at one place it is for shunning the word that is false. Similarly the word ---rajas--- in the said verses, have been used in verses 5:93, 22:30, 6:125, 7:71, 6:145, 9:95, 9:125, 33:33, 53:32 and 10:100. In the last verse and 9:125, it has been translated as doubt or obscurity. The Dote in Allama Abdullah Yusuf A.I's commentary and translation of Qur'an being Note No. 1482 reads as under: "Rijs from Rajisa, yarjasu or Rajusa, yarjusu) has various meanings e.g. (1) filth, impurity, uncleanliness, abomination as in 9:95 ; (2) hence filthy deeds, foul conduct, crime, abomination, thus shading off into (1), as in 5:93 ; (3) hence punishment for crime, penalty as in 6:125 ; (4) a form of such punishment viz. Doubt, obscurity, unsettle--ment of mind, anger, indignation as in 9:125 and here (10:100) but perhaps the idea of punishment is also implied here." 9. Avoidance, shunning, or abstention from a thing does not per se connote the doing of that thing as an unlawful or abominable act. If it is the study time or the examination is at hand, any parent will advise his ward to avoid play and not while away his time at the T. V. Set or at a picture house. Not that these activities are unlawful, or unworthy of him, but it is not the thing to do in a particular situation. Examples can be multiplied. It is also to be seen, that what was intended to be eternally prohibited by Divine Decree, was announced without any equivocation and in forth right terms. Contract the same with the subject of drinks and intoxicants. The Scripture mention it, a wholesome drink, food at one place ; at another place it is said to be partly profitable and partly conducive to sin ; at a third place the ban is on going to the prayers, with befogged mind. Even this last self- denying ordinance is confined to a particular period of time. If the faculties are unaffected and you understand what you are doing or saying what you want to say, you are in order. Even in verses 5:93 and 94, the meaning of the contents apart, the banned drink is ---khamar--- (the wine extracted from grape.) 10. It is true that there are some traditions attributed to the Prophet in which the scope is widened. It is not necessary to, reproduce them, as the same have been detailed by the learned Chairman. The authenticity of the traditions apart, the same do not make out clearly as to whether the offenders were in a State of inebriety or stupefaction or had just wetted their lips with a few draughts of wine other than of grapes. It cannot therefor be said that their being visited with 40
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stripes, or receiving just a mil drubbing was for the mere breach of a standing principle, covering all vintages of wines. (1) Khamar (the crude juice of the grape). According to the two disciples Imam Yusuf and Imam Muhammad, the juice becomes Khamar upon its fermenting and being spirituous without the condition of its gathering foam. Imam Abu Hanifa is of the view, that fermenta--petition is the commencement of the process by which liquor becomes spirituous and the process is completed only when it foams and settles. The prohibition has a reference to the completion of this process. It mentions (Hamilton at page 618) that some of the learned allege that it is declared unlawful to drink after having become spirituous, purely from motives of cautions. Further at page 619, it mentions, that "the first recited tradition is not perfectly authentic, Yahya ibn Mayeen having disputed it .... ....And with respect to the second quoted tradition the intention of it was merely to explain the law ---." (2) Bazik (the boiled juice of the grape, when boiled away to one half). It is also called Monisaf. Oozrai has however said (page 621 of Hamilton) that Monisaf is lawful, because it is good liquor or in other words, it is pleasing to the palate and also because it is not Khamar." (3) Sakker (an infusion of dates) made by steeping fresh dates in water, until they take effect in sweetening it, when it is both unlawful and abominable. However Shareek ibn Abdullah alleges (Hamilton page 620) that "it is lawful, as God speaking of His bounty in the Quransays "Ye enjoy Sakker from the grape and the date," whence we may infer that it is allowable-as bounty cannot apply to anything unlawful." (4) Nookoo Zabeeb (an infusion of raisins, steeped in water). According to Oozrai it is lawful, when it possesses merely a sweet quality and it prohibited only when it ferments and becomes spirituous. It further mentions, that there is no punishment in drinking it unless one gets inebriated. Imam Abu Yusuf holds the sale of the aforesaid liquors, excepting Khamar to be lawful. 12. Muhammad in the Jamius Sagheer remarks (page 621) "that every sort of liquor excepting those above-mentioned is lawful-so any kind of strong liquor extracted from wheat, barley, honey or millet is lawful in the opinion of Haneefa, if not drank so as to occasion intoxication. In the abridgment of Kadoorsi, it is said, that the steeping of raisins or dried dates, when boiled a little even so as to become spirituous, may lawfully be drunk in such a quantity as not to inebriate, provided it be done without wantonness or joy. Mossilis, if used with a view to strengthen the Constitution is lawful." 13. Sharah-i-Shaafi mentions that if vinegar is mixed in liquor, it is lawful to use it (see Fatawa-i- Alamgiri, Vol.IX, Qanooni Kutub khana, Lahore at page 182). It (Fatawa-i-Alamgiri) further says at page 184; 14. The stage of intoxication, according to Maulana Salamat A.I Khan's Islami Qanoon-i-Faujdari, translation of Kitab-ul-Akhtiar (Law Publishing Company, Lahore at page 139) reaches, when a man cannot differentiate between "the sky and the earth, and man and woman." According to the Sahebain (the disciples), it occurs, when "his talk becomes incoherent, and he starts raving and ranting." 15. There is thus considerable opinion of the Jurists led by Imam Abu Hanifa, and followed by later writers, that the point of prohibition except in grape wine reaches when one gets intoxicated and therefore disabled from distinguishing between lawful and unlawful, right and wrong. Where such an apprehension is removed or taken care of, the prohibition is lifted. In Nurul Anwar, Imam Abu Hanifa's opinion, as to be found in M. Munir's Jinnah to Zia, 2nd Edition, page 127 is as follows; "Khamar is the name of an intoxicant made from grapes, and by a parti--cular process. Therefore all other intoxicants made from figs, dates, wheat and barley are not Khamar and the Quraanic Ordinances relating to Khamar, cannot apply to them."
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One has just to look at the picture of Heaven as described in the Holy Quran and the reward that awaits the true believer (See 76:12 to 76:19). And because they were Reward them with a Garden And (garments of) silk. Reclining in the (Garden) On raised thrones, They will see there neither The sun's (excessive heat) Nor (the moon's) excessive cold. And the shades of the (Garden) Will come low over them, And the bunches (of fruit) There, will hang low And amongst them will be Passed round vessels of silver And goblets of crystal, Crystal-clear, made of silver : They will determine The measure thereof (According to their wishes). And they will be given To drink there of a Cup (Of Wine) mixed with Zanjabil,- A fountain there, Called Salsabil. And round about…
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