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 hadd1; it is a taazeer2, 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-Hujjat3 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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1. punishments ordained by Allah.
2. punishments legislated by the parliament of an Islamic State.
3. The unveiling of truth by a
prophet to the extent that no one has an excuse to deny it.