The punishment of drinking liquor was fixed at eighty lashes by ‘Umar (rta) after he in his capacity of a caliph had consulted the members of his shura. In the time of the Prophet (sws), this offence was punished by punching and kicking the offender, and by beating him with twisted sheets of cloth or with twisted pieces of date-palms. The caliph Abu Bakr (rta) had decreed that this crime be punishable by forty lashes, and then the caliph ‘Umar (rta) in his own times increased it to eighty lashes when he saw that people were not desisting from it. In the words of Ibn Rushd:[1]

فعمدة الجمهور تشاور عمر والصحابة لما كثر في زمانه شرب الخمر واشارة علي عليه بان يجعل الحد ثمانين قياسًا علي حد الفرية فانه كما قيل عنه رضي الله عنه إذا شرب سكر وإذا سكر هذى وإذا هذى افتري

The general opinion in this regard is based on the consultation of ‘Umar(rta) with the members of his Shura. The session of this Shura took place during his period when people started indulging in this habit more frequently. ‘Ali (rta) opined that, by analogy with the punishment of Qadhf , its punishment should also be fixed at eighty lashes. It is said that while presenting his arguments, he had remarked: “When he [– the criminal –] drinks, he will get intoxicated and once he gets intoxicated, he will utter nonsense; and once he starts uttering nonsense, he will falsely accuse other people.”

It is evident from this, that the punishment of drinking is not part of the shari‘ah. It is only the prerogative of the Prophet (sws) to regard anything as part of the shari‘ah, and if he has done so in a particular case, Abu Bakr (rta) or ‘Umar (rta) can in no way alter it. Had this punishment been part of the shari‘ah, neither would have Abu Bakr (rta) replaced it with forty lashes, nor would ‘Umar (rta) have increased it to eighty lashes. 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 lashes respectively in their capacity as rulers. Consequently, it can be safely said that the punishment of drinking is not a hadd;[2] it is a ta‘zir [3] which the parliament of an Islamic State can adopt and if needed legislate afresh in this regard.

(Javed Ahmed Ghamidi)

(Translated by Dr Shehzad Saleem)

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[1]. Ibn Rushd, Bidayah al-Mujtahid, vol. 2, 332.

[2]. Punishments ordained by God.

[3]. Punishments legislated by the rulers of an Islamic State.