Rulings Governing Criminal Actions (4/7)

C. Concerning   the hadd for  drinking   wine:  any kind  of  wine  or  nabidh (date wine),  be it  a small  or a large amount,  which  causes intoxication,   is prohibited,   and the person  who  drinks  them  is given  the hadd-punishment, irrespective  of whether he becomes drunk  or not, although Abu Hanifah  says that the hadd is imposed  on anyone who drinks  wine  even if  he does not get drunk,   but  not on  someone  who  drinks  nabidh  unless  he gets  intoxicated from  it.

The hadd is that the person is beaten forty times with the hand and the ends of cloth, and he is severely rebuked with words of reprimand, as this has been narrated in a hadith; it has also been said that he is whipped with the lash, as with the other hadd-punishments. It is permitted  to go beyond  forty, up to as many  as eighty,  if the person does not learn his lesson:  'Umar,  may Allah be pleased  with him, used to give the hadd of forty  to someone  who had drunk wine until he saw how people were beginning  to drink in larger numbers,  and so he consulted  the Companions  about it, saying: "I see how more and more people  are taking  to drinking  wine - what is your opinion?" 'Ali then replied, may Allah  ennoble  his face: "I think that you should  give them a hadd-punishment  of eighty lashes, for if someone drinks wine he becomes drunk, and if he becomes  drunk, he talks irrationally,  and if he  talks irrationally,  he slanders -  so give him the hadd-punishment   of eighty  for slander."  'Umar for the rest of his life, and the imams who followed him, imposed this number.  'Ali  later said:  "I have  not  reproached   myself  for imposing the hadd-punishment   on anyone who has died as a result - except the wine-drinker,  for we have set the punishment   after  the  Messenger of Allah,  may  the peace  and  blessings  of Allah be upon him: thus if the wine-drinker  is given the hadd of forty and he dies as a result,  then his blood has been shed with impunity, but if he is given the hadd of eighty  and he dies, then there is liability  for him."  There are two opinions  as to what  this liability  amounts  to: the first, is that the full blood­ money  is to be paid  as the text  referring  to the hadd-punishment   has been exceeded;  the second,  is that half is to be paid, as a half of the hadd-punishment is contained  in the text, and the other half has been added.

There  is no hadd  against  anyone  who  is forced  to drink  wine,  or who drinks  it unaware that  it is  forbidden; if someone  drinks  it to quench  his thirst,  he suffers  the hadd,  as wine will not quench  thirst;  if he drinks  it for some  illness,  he does  not suffer the hadd, as sometimes  he may be cured by it; if a person  believes  that nabidh  is permitted  and drinks  it, he is given  the hadd although  he is still treated as a just person. The intoxicated  person is not given  the hadd  until he confesses to having drunk intoxicating  wine, or two witnesses testify  that he drank  it of his own  free will,  knowing  that  it was intoxicating. Abu ‘Abdallah az-Zubayri says that he is given the hadd for being intoxicated - but this is a mistake, as he might have been forced to drink something   intoxicating.

The ruling governing an intoxicated person who is convicted of acts of disobedience while drunk is the same as that governing a sober person;  however, he is excluded  from responsibility for an act of disobedience if he was forced  to drink  wine, or if he drank  it unaware  that it was intoxicating like someone  who temporarily   loses his senses.

There is a difference of opinion as to the definition of intoxication: Abu Hanifah considers that it refers to a person who no longer has his intellect, such that he cannot distinguish between the earth and the sky, and he cannot tell the difference between his slave-girl and his wife; ash-Shafi'i defines it as that which causes a person to talk disjointedly and unintelligibly, to move without coordination and to sway while walking - thus if his speech is affected both if he understands and communicates, and in the way his movement is affected in the way he walks and stands then he may be described as being intoxicated, and the worse his state is, the worse his degree of intoxication.

D. Concerning the hadd for slander, and mutual cursing: the hadd for slander alleging fornication is eighty lashes, there being a specific text sup­ porting this; there is a consensus about it, such that this number is not to be decreased or increased; it is one of the rights of man, and is applied in response to a demand, and is annulled if the person is pardoned. If five conditions are fulfilled regarding the person accused of fornication, and three regarding the accuser, then the imposition of the hadd becomes obligatory: thus the accused must be adult, of sane mind, Muslim, a free person and of moral character; if he is below age, or mad, or a slave, or a non-Muslim or someone whose moral character has been tainted by a previous hadd-conviction, then no hadd is imposed on the accuser, although he is given a discretionary punishment because of the harm he has caused and the looseness of his tongue. As for the accuser, he must be of age, of sane mind and free; if he is under age, or mad, then the hadd is not imposed and he is not given a discretionary punishment; if he is a slave, he is given the hadd-punishment of forty, half of that for a free man, because he is enslaved; the non-Muslim is given the hadd like the Muslim, and a woman is given the hadd like a man. The accuser's legal status is thus impaired and his testimony is not accepted thereafter; if he turns in tawbah, then his status is no longer impaired and his testimony is accepted, both before the imposition of the hadd and after it - although Abu Hanifah says that his testimony is accepted if he makes tawbah before the hadd, but not vice versa.

The person, who falsely accuses someone of sodomy, or of fornication with animals, is punished in the same manner as the one who accuses another of fornication; there is no hadd for someone who accuses another of kufr or stealing, but he is given a discretionary punishment because of the harm done. False accusation of fornication occurs when there is a clear statement to that effect such as someone saying, "O fornicator," or, "You have committed fornication," or, "I say you commit fornication;" if, however, he only says, "O dissolute one," or, "O corrupt one," or, "O Luti, (i.e. describing him with an adjective derived from the name of the Prophet Lut, peace be upon him. as he was the Prophet first to be confronted  with sodomites),' then this is metaphorical  by its ambiguity, and the hadd is not obligatory unless he meant to slander; if the person says, "0  whore," then this is metaphorical  according to some of the followers of ash-Shafi'i because of its ambiguity, while for others it is a clear statement,  because of the saying of the Prophet, may the peace and blessings of Allah be upon him: "The child is attributed to the bed (where it was conceived), and the stoning is for the whore." Malik, may Allah have mercy on him, considers that an allusion is to be treated as a clear statement with regard to the obligation of the hadd. An allusion may be made in a state of anger or dispute when the person says, "I have not committed fornication," thereby implying that. "You have committed  fornication;"  according to ash-Shafi'i and Abu Hanifah, may Allah have mercy on them, there is no hadd for allusion unless he confesses that he meant to slander thereby; if he says, "O son of fornicators," this is treated as slander of his parents. not of him, and he is given the hadd on their behalf if they demand it, or if one of them demands it - unless they are dead, in which case the hadd may be demanded by their inheritors, although Abu Hanifah says that it is not transferred to the inheritors; if the slandered person wants to come to be paid compensation  for dropping the hadd of the slanderer, this is not permitted; if a man slanders his father, he is given the hadd, but if he slanders his son, he is not; if the slanderer has not yet received the hadd-punishment, and the slandered person then commits fornication,  the hadd-punishment for his previous false accusation  is not annulled; Abu Hanifah, however, says that it is annulled; if a man slanders his wife with fornication, he is given the hadd-punishment,  unless he pronounces  the mutual curse (li'an). The li'an is that he says in the Friday Mosque on the minbar, or next to it, in the presence of the governor and at least four witnesses: "I bear witness by Allah that I am among the truthful when I accuse this, my wife, of fornication with such and such a person, and that this child is by fornication and not from me," - these last words if he wishes to deny that the child is his - and the former he repeats four times; the fifth time he says. "May Allah's curse be on me if I am among the liars when I accuse her of fornication with such and such a person (that is if he mentions the name of the person who fornicated with her) and that this child is from fornication and not from me." So if he says this, he has completed the li'an-cursing and the hadd for slander is not applicable to him, and the hadd for fornication must be imposed on his wife. unless she makes a counter- curse saying: "I bear witness by Allah that this husband of mine is one of the liars by accusing me of fornication with such and such a person, and that this child is from him and not from fornication," and she repeats this four times and on the fifth occasion, "and may the anger of Allah be on me if this my husband is of the truthful in accusing me of fornication with such and such;" if she completes this, the hadd is not applicable to her, and the child is banished from the husband, and there is a separation between them, and the woman becomes prohibited to her husband forever. The fuqaha differ as to the way the separation is effected: ash-Shafi'i considers that this separation occurs by the li'an of the husband alone, while Malik says that it occurs by their both declaring the Wan; Abu Hanifah says that the mutual li'an does not bring about separation until they are separated by the governor.

If a woman slanders her husband, she suffers the hadd and she does not make the declaration of Ii'an. If the husband retracts his statement after making the li'an, the child is recognised as his, and he is given the hadd-punishment for slander; his wife is no longer permitted for him according to ash­Shafi'i, while Abu Hanifah says that she is.

(Continued)