Chapter 2 - Intoxication (Sakran) PDF

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Chapter 2: Drinking Liquor (Shirb Al-Khamr)Issue: Whether can be held liable for drinking liquor or intoxication, which is also known as Shirb Al-KhamrDefinition Al-Khamr carries the meaning of a drink containing intoxicating effects as through the drink, the person’s mental sanity may be removed, o...

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Chapter 2: Drinking Liquor (Shirb Al-Khamr) Issue: Whether can be held liable for drinking liquor or intoxication, which is also known as Shirb Al-Khamr Definition •

Al-Khamr carries the meaning of a drink containing intoxicating effects as through the drink, the person’s mental sanity may be removed, or their mind can be closed.

Prohibition of drinking liquors • • •

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At first, consuming liquor was a practice allowed as the Arabs often practiced this during the pre-Islamic period. The prohibition of consumption of alcohol was done in four gradual stages by Islam. Chapter 2, verse 219 of the al Quran states, “They ask you about wine and gambling. Say, "In both is great sin and [yet, some] benefit for people. But their sin is greater than their benefit.” When it comes to this stage, it was merely to enlighten people that consuming wine wielded more sins and such sins were outweighing the benefits which came with the consumption of wine. It was also to prepare people to accept the prohibition on alcohol. Chapter 4, verse 43 of the al-Quran states, “Believers! Do not draw near to the Prayer while you are intoxicated until you know what you are saying.” When it comes to this stage, rulings take a stricter turn, as it bans people from prayer activities when they are intoxicated. However, there was no full prohibition on wine yet as it was only prohibited for prayer activities. However, this caused people to change their routine of consuming alcohols during the time of day as they did not want to be intoxicated when it came for prayer time. Chapter 5, verse 90 of the al-Quran states, “Believers! Intoxicants, games of chance, idolatrous sacrifices at altars, and divining arrows are all abominations, the handiwork of Satan. So turn wholly away from it that you may attain to true success.” When it comes to this stage, alcohol is completely prohibited as the verse states that intoxicants are regarded as works of Satan and must be avoided. It was stated in a Hadith, “Every intoxicant is prohibited.” This means that any intoxicant is prohibited to be consumed by Muslims as it is regarded banned in Islam. Furthermore, another Hadith states, “Cursed is he who drinks, purchases or sells wine or causes to others to drink it.” This means people are prohibited from drinking, buying, or selling, liquor or causing others to drink liquor.

Types of Shirb Al-Khamr • •

In the early days, intoxicated drinks which were banned consisted of fermentation derived from grapes, dates, honey, wheat, and barley. It was stated by Imam Abu Hanifah that if a person were to consume intoxicated drinks fermented from grapes and dates, hudud punishment would be imposed upon such person. He further stated that if a person were to consume drinks fermented from that which is other than grapes and dates, such person will not be found liable for hudud punishment. However, if he consumes such a drink until he becomes intoxicated, such person will be found liable for hudud punishment.

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On the other hand, it was stated by Imam Malik, Imam Shafie and Imam Ahmad that if a person were to consume any beverage which causes intoxication, they will be found guilty regardless of how much quantity was consumed.

Elements 1. The mens rea of this offence is intention. • For example, a strong smell of liquor is present in a person’s mouth, or they were found drinking liquor at a café, intention can arise from such facts. 2. The actus reus of this offence is the act of taking liquor through his mouth. • When it comes to circumstances where liquor was inserted through the skin perhaps via an injection, it would not amount to a hudud offence as this does not constitute drinking liquor. Drinking liquor means having to be through the mouth. 3. It must be done voluntarily. • This means that no force must be involved when it comes to the act of drinking liquor. 4. He is an adult. • This means if the person who commits the offence is a minor, such person will not be liable for hadd punishment, but instead be liable for taazir punishment. 5. He is of sound mind. • This means if the person who commits the offence has an unsound mind, such person will not be held liable for hadd punishment, but instead be liable for taazir punishment. 6. The offender must be a Muslim. • This means the person who commits the offence cannot be a non-Muslim. 7. The offender must aware that his act of drinking liquor is unlawful. Evidence 1. Confession • For this, the confession has to come from the offender. a) Confession must be a clear, free, and willful confession by the accused • Confession can be said to be the statement of an individual that is made before the court to state that the individual had indeed committed the offence he has been accused of. • However, before a confession can be deemed valid, the accused must expressly state the facts of the offence is done. He must state this in an accurate manner. The words that are used by him to describe such act must be clear and not metaphoric so that all doubt can be removed and prove that the accused does indeed know how it is performed. b) Confessor must be adult and a good mental condition

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The individual who makes the confession must he capable of self-expression. Furthermore, such individual must be an adult and be in good mental condition. Due to such a requirement, an issue arises as to whether a confession from the deaf and dumb can be accepted. There are two such views pertaining to this issue. The first view is from Imam Abu Hanifa where he is of the opinion that the confession of the deaf and dumb is not acceptable even though the deaf and dumb individual is capable of writing his confession or making signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is not acceptable according to this view. The second view is from Imam Malik, Imam Shafie, and Imam Ahmad. According to then, they are of the opinion that the confession of the deaf and dumb can be accepted only if the deaf and dumb individual is able to write his confession or make signs in an intelligible manner before the court. Therefore, a confession from the deaf and dumb is acceptable only if a confession in writing or intelligible signs can be made by such an individual, according to this view.

c) Confession must be voluntary • When it comes to such confession, it must be voluntary. • It is said to be voluntary if it had been made with the free consent of the confessor, who did not face any pressure, force, temptation, or coercion. If he had made a confession under such circumstances, the confession made by him is said to not be valid. d) Confessor must explicit as to committing of the offence • This means that the confessor has to make a clear and direct confession in order to be considered explicit. The standard of explicit has two different views on how it can be achieved. • The first view is from Imam Abu Hanifah and Imam Ahmad who are of the opinion that the confessor has to make four separate confessions before the court in order for it to count as the confessor being explicit, and only then can such confession become sufficient proof. • The second view is from Imam Malik and Imam Shafie who are of the opinion that the confessor only has to make a one-time confession in order for the confessor to be considered explicit and such one-time confession is enough to be considered as sufficient proof. 2. Two eyewitnesses • • •

The witness must be adult and sane. Therefore, a minor would not be able to be considered a witness and is not allowed to provide a testimony to the court. Furthermore, the witness has to be a Muslim. It is agreed by all jurists that evidence of a non-Muslim is not acceptable. Also, according to the majority of the jurists, the witnesses must be male. They believed that a woman is not allowed to provide evidence when it comes to matters of hudud and that such evidence is not acceptable. As such, a woman cannot act as a

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witness in hudud matters. It should be noted though, that this is a juristic view and not based on the al-Quran or the Sunnah. In addition, a witness must be adil. The definition of adil is a Muslim who refrains himself from major sins, does not commit any minor sins, has visible good deeds which are more than his evil deeds, and is moderate in his works and sayings. Generally, the jurists have agreed that adil is a Muslim who is considered as reliable in the society and does not behave notoriously. However, there are two views pertaining to the credibility of witness. o The first view comes from Imam Abu Hanifah. He is of the opinion that every witness is to be considered credible and should not have their credibility questioned unless there is a challenge by the opposite party on such credibility. Therefore, there is to be an assumption that every witness is credible unless challenged otherwise. o The second view comes from Imam Shafie and Imam Ahmad. They are of the opinion that a witness has to fulfil the condition of credibility of witness as laid down in the al-Quran regardless of whether or not such credibility has been challenged by the other party. This means the witness must not have committed small sins or big sins as stated accordingly in the al-Quran.

3. Circumstantial evidence • Examples of what would be considered circumstantial evidence are the smell of liquor from the mouth of the offender, the presence of bottles found on the offender, or a bill of buying liquor that is found on the offender. Possible Defences There are several possible defences available to be used against punishment. 1. Minor • The defence of minor is based upon a specific Hadith. • The Hadith states, “Three persons are exempted from any liability, namely, minor until he attains puberty, the sleeping person until he awakes; and insane until he attains sanity.” • Therefore, according to the Hadith it can be seen that a minor should be exempted from liability. Thus, if it can be proven that the accused is a minor, he or she can escape punishment in following the principle of this Hadith. 1. Mistake, forgetfulness, or coercion. This means if the offender mistakenly, or was forced to consume liquor, or he became forgetful due to a disease like dementia, he may raise such circumstance as a defence. This is supported by the Hadith which states, “My umah is exempted from liability if mistake, forgetfulness, and coercion.” 2. Unsound mind

This means if a person having an unsound mind consumed liquor, he can raise his unsoundness of mind as a defence. This is supported by the Hadith which states, “Among the person who are exempted from liability are insane person until he becomes sane.” Punishments •

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During Prophet Muhammad’s time, there was no fixed punishment for drinking liquor. Instead, there were a lot of different punishments given to an offender who drank liquor, such as beating him with shoes, kicking him, throwing a blow at him, or trashing him with sticks. When it comes to lashes imposed, the maximum lashes that can be imposed for offenders who consume liquor is 40 lashes, as can be seen in the Hadith of Anas which states, a man who had drunk wine was brought to the Prophet (peace and blessings of Allah be upon him), and he had him flogged forty times with two palm branches that had been stripped of their leaves.” However, while such punishment of 40 lashes was imposed on individuals who consumed alcohol during the time of caliphate Saidina Abu Bakar, during the time of Saidina Umar, 80 lashes was imposed as punishment instead. This can be proven from a Hadith which states, “when Saidina ‘Umar was the caliph, he consulted the people and ‘Abd al-Rahmaan said, “The minimum punishment is eighty,” so that is what ‘Umar commanded. It is Imam Abu Hanifah, Imam Malik, and Imam Ahmad’s view that 80 lashes would be imposed as punishment on offenders who consume liquor. On the other hand, it is Imam Shafie’s view that 40 lashes would be imposed as punishment on offenders who consume liquor, and that the number of lashes may be increased to suit the situation. However, such increased lashes are considered taazir punishment....