Drinking
The punishment of drinking had been fixed at eighty
stripes by Hadhrat Umar during his period after he had consulted the members of
his shoorah. In the time of the Prophet (sws), this offence was punished by
punching and kicking the offender and by beating him by twisted sheets of cloth
and by the twisted pieces of trunk of date-palms. The Caliph Abu Bakr had
decreed that this crime be punishable by forty stripes and Hadhrat Umar in his
own times increased it to eighty stripes when he saw that people were not
desisting from it. In the words of Ibni-Rushd:
"The general opinion in this regard is based on the
consultation of Hadhrat Umar with his members of the shoorah. This session of
this shoorah took place during his period when people started indulging in this
habit more and more. Hadhrat Ali opined that, by analogy with the punishment of
qazf, its punishment should also be fixed at eighty stripes. It is say id that
while presenting his arguments on this he had remarked: when he (a person)
drinks, he will get intoxicated and once he gets intoxicated, he will utter
nonsense; and once he starts uttering nonsense, he shall falsely accuse other
people." ("Bidaayat-ul-Mujtahid", Vol 2, Pg 332)
It is evident from this that this punishment has not be
fixed by the Shariah. It is only the prerogative of the Prophet (sws) to regard
anything as Shariah and if he has done so in a particular case, Hadhrat Abu Bakr
or Hadhrat Umar can in no way alter it. It is clear that if the Prophet (sws)
punished such criminals by beating them, he did so not in the capacity of a
law-giver but in the capacity of a Muslim ruler. His successors punished such
criminals by whipping them with forty and eighty stripes respectively in the
capacity of rulers. Consequently, it can be safely said that the punishment of
drinking is not a hadd;
it is a taazeer,
which the parliament of an Islamic State can adopt and if needed legislate
afresh in this regard.
Apostasy
The prevailing concept about apostasy has arisen by not
understanding a hadith. This hadith has been narrated by Ibn-i-Abbaas in the
following way:
"Execute the person who changes his faith." (Bukhari:
Kitab Istatabatul-Murtaddeen)
Our jurists regard this verdict to have a general
application for all times upon every Muslim who renounces his faith. In their
opinion, this hadith warrants the death penalty for every Muslim who becomes a
disbeliever. In this matter, the only point in which there is a disagreement
among the jurists is whether an apostate should be granted time for repentance,
and if so what should be the extent of this period. The Hanafite jurists though,
exempt women from this punishment. Apart from them, there is a general concensus
among the jurists that very apostate, man or woman, should punished by death.
In our consideration, this opinion of our jurists is not
correct. The verdict pronounced in this tradition does not have a general
application but is only confined to the people towards whom the Prophet (sws)
had been directly assigned. The Qur’an uses the words mushrikeen and ummiyyeen
for these people. We now elaborate upon our view.
In this world, we are well aware of the fact that life has
been endowed to us not because it is our right but because it is a trial and a
test for us. Death puts an end to it whenever the period of this test is over,
as deemed by the Almighty. In ordinary circumstances, He fixes the length of
this period on the basis of His knowledge and wisdom. In special circumstances,
when a prophet is assigned towards a nation, the span is governed by another
Divine law which has been explained in the Qur’an in detail. It is based upon
certain premises which must be understood beforehand: A prophet is the final
authority on this earth about matters which pertain to faith. No other person
can illustrate and explicate the essentials of faith in a better manner. He uses
his extraordinary powers of intellect and reasoning to deliver and disseminate
the truth revealed to him. He exposes the truth in its ultimate form after which
a person can have no excuse but stubborness and enmity to deny it. We have
indicated before that God's purpose in endowing life to people is to test
whether they accept and uphold the truth when it comes to them. In these special
circumstances, the truth is unveiled to them in its purest form by no other a
personality than a prophet. If they then deny it, there is no possibility
whatsoever that a further extension in life can induce them to accept it. It is
at this juncture that the Divine law sanctions the death sentence for them.
The sentence is enforced upon them in one of the two ways
depending upon the situation which arises. In the first case, after performing
Itmaam-i-Hujjat
upon his nation, a prophet and his companions not being able to achieve
political ascendancy in someother territory migrate from their people. In this
case, Divine punishment descends upon them in the form of raging storms,
cyclones and other calamities which completely destroy them. Historically
speaking, the tribes of Aad and Thamud and the people of Noah and Lot besides
many other nations met with this dreadful fate, as has been mentioned in the
Qur’an. In the second case, a prophet and his companions are able to acquire
political ascendancy in a land where after performing Itmaam-i-Hujjat upon their
people they migrate. In this case, a prophet subdues his nation by force, and
executes them if they do not accept faith. It was this situation which had
arisen in the case of the Prophet (sws). On account of this, the Almighty bade
him to declare that the people among the ummiyyeen who will not accept faith
until the day of Hajj-i-Akbar (9th Hijra) will be given a final extension by a
proclamation made in the field of Arafaat on that day. According to the
proclamation, this final extension would end with the last day of the month of
Muharram, during which they must accept faith, or face execution at the end of
this period. The Qur’an says:
"When the forbidden months are over, slay the idolators
wherever you find them. Seize them, surround them and every where lie in ambush
for them. But if they repent and establish regular prayers and pay zakat, then
spare their lives. God is oft-forgiving and ever merciful." [9:5]
A hadith illustrates this law in the following manner:
"I have been ordained to fight against these people until
they testify to the oneness of God and assent to my prophethood, establish
regular prayers and pay zakat. If they accept these terms, their lives will be
spared except if they commit some other violation that demands their execution
by Islamic law." (Bukhari: Kitab-ul-Imaan)
This law, as we have stated before, is specifically meant
for the ummiyyeen or the people towards whom the Prophet (sws) had been directly
assigned. Apart from them, it has no bearing upon any other person or nation. So
much so, that even the people of the Book who were present in the Prophet's
times were exempted from this law by the Qur’an. Consequently, where the death
penalty for the ummiyyeen has been mentioned in the Qur’an, adjacent to it has
also been stated in unequivocal terms that the people of the Book shall be
spared and granted citizenship if they pay Jizya. The Qur’an says:
"Fight against those among the people of the Book who
believe not in God nor in the Last Day, and who do not forbid what God and His
Prophet have forbidden and do not accept the religion of truth as their own
religion, until they pay Jizya out of subjugation and lead a life of
submission." [9:29]
There is a natural corollory to this Divine law as obvious
as the law itself. As stated above, the death penalty had been imposed upon the
ummiyyeen if they did not accept faith after a certain period. Hence, it follows
that if a person among the ummiyyeen after accepting faith reverts to his
original state of disbelief, he must face the same penalty. Indeed, it is this
reversion about which the Prophet (sws) has said ‘Execute the person who changes
his faith.'
The relative pronoun ‘who' in this hadith qualifies the
ummiyyeen just as the words ‘the people' (An-naas) in the hadith quoted earlier
are specifically meant for the ummiyyeen. When the basis of this law as narrated
in these Aahadith exists in the Qur’an with a certain specification, then quite
naturally this specification should also be sustained in the corollory of the
law. Our jurists have committed the cardinal mistake of not relating the
relative pronoun ‘who' with its basis in the Qur’an as has been done in the case
of ‘the people' (An-naas). Instead of interpreting the tradition in the light of
the relationship between the Qur’an and Sunnah, they have interpreted it in the
absolute sense, totally against the context of the Qur’an. Consequently, in
their opinion the verdict pronounced in the tradition has a general and an
unconditional application. They have thereby incorporated in the Islamic Penal
Code a punishment that has no basis in the Shariah.
There is no doubt whatsoever that this death penalty was
prescribed only for the ummiyyeen who lived during the Prophethood of Mohammad
(sws), be they the idolators or others like Warqah Ibni Nofal, a cousin of the
Prophet's wife, Khadijah, who was originally among the ummiyyeen and had later
accepted Judaism or Christianity. It is absolutely evident that now if a Muslim
becomes an apostate and is also not a source of nuisance for an Islamic State,
he connot be administered any punishment merely on the basis of apostasy.
(Adapted from Ghamidi's "Meezaan")
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