1. JUSTICE (RETD.) SALAHUDDIN AHMED, CHAIRMAN.--I have had the benefit of perusing the judgment proposed to be delivered by my learned brother, Aftab Hussain J. Member. I agree with the judgment.
2. I have no doubt that intoxicants including wine have been prohibited in the Holy Quran as well as in the Sunnah of the Holy Prophet (PEACE BE UPON HIM). The Quran has called them grievous sin, and put them in the same category as idols, games of chance and divining arrows, and called them as an infamy of Satan's handiwork. The Sunnah has characterised them as `mother of all evil, and has definitely prohibited them.
3. The language used in the Quran 2:219 and 5:93 and 94 is clear and unambiguous, and admits of no doubt. They are as follows;----- 2:219 "They ask the A. Yusuf A.I Concerning wine and gambling Say : "In them is great sin, And some profit, for men ; But the sin is greater Than the profit. : 5:93"O ye who believe.
4. A. Yusuf A.I Intoxicants and gambling, (Dedication of) stones, And (divination by) arrows, Are an abomination, Of Satan's handiwork : Eschew such (abomination).
5. That ye may prosper."
6. 5:94 "Satan's plan is (but)
7. A. Yusuf A.I-To excite enmity and hatred Between you, with intoxicants And gambling, and hinder you From the remembrance Of Allah, and from prayer Will ye not then abstain?
8. The prohibition is in unmistakable terms, and it would indeed be perverse to treat them as mere words of advise which may or may not be accepted. Allah has clearly warned us of the role of Satan and his nefarious designs to sow enmity and hatred among us and to turn us away from the remembrance of Allah and His worship by means of drink and games of chance. Experience has fully brought out the great truth of these assertions. The world is today plagued by the evil of drinking and at its wit's end how to get rid of the evil which has caused and has been causing devastation in society, socially, morally and economically Allah, Who is (Aleem) and (Baseer) had, therefore, for the benefit and welfare of man himself, asked us to beware of and desist from taking intoxicants and playing games of chance.
9. Fully consistent with these verses of the Quran are the Ahadith. It has been related on the authority of Abdullah Ibn-e-Umar that the Prophet (PEACE BE UPON HIM) said : "Wine (khamr) is the mother of mischiefs, the greatest sin, and that he who drinks wine he gives up prayers etc." vide Fiqh-us- Sunnah Vol. II, page 371 by Syed Sabiq printed at Beirut.
10. According to Jabir the Prophet (PEACE BE UPON HIM) said : "Indeed Allah has forbidden the purchase of wine, dead meat, pig and idols." See Muslims, Vol. II page 624 Hadith No. 1546 (Urdu translation, printed by Quran Mahal Karachi).
11. Abdullah Ibn-e-Amar says that the Prophet (PEACE BE UPON HIM) said: "Every intoxicant is wine and every wine is unlawful" (Tirmizi, Vol. I, page 302, Hadith No. 1922 printed by Quran Mahal, Karachi).
12. Jabir says that Prophet (PEACE BE UPON HIM) said : "What intoxicates in greater quantity is also unlawful in its smaller quantity." Vide Tirmizi Vol. I, page 804, Hadith No. 1926 printed by Quran Mahal, Karachi. Anas says that the Prophet (PEACE BE UPON HIM) cursed ten persons regarding wine, namely, one who squeezes it, one who is engaged in squeezing it, one who drinks it, one who carries it one to whom it is carried, one who gives it to drink, one who sells it, one who devour its price, one who purchase it and one from whom it is purchased. Vide Mishkat-ul-Masabih (English translation), Vol. II page 572 by Al-Haj Maulana Fazul Karim (printed by Law Publishing Co., Lahore).
13. Anas also says that the Prophet (PEACE BE UPON HIM) beat the drinker of wine with branches and shoes. Vide Muslim, Vol. II page 802, Hadith No. 1949, printed by Quran Mahal, Karachi.
14. We thus find that drinking, using and dealing with intoxicants are prohibited in the Quman as well as .In the Sunnah. This answers the petitioner's contention that is not prohibited for Muslims and that they are merely advised not to drink them.
15. Then remains the contention that this prohibition is not applicable to the non-Muslims of Pakistan.
16. It must be stated at the very outset that neither the Quran nor the Sunnah furnishes any basis for this proposition.
17. Allah is the Lord and Sustainer of the Worlds. He treats mankind as one family, and has, therefore, laid down guidance for the salvation and welfare of all mankind. It is another thing if some of them bears no Faith to Him and His Books and Apostles. In a Muslims State Muslims and non-Muslims are treated alike on the principle accepted by all juristswa alehim ma aiena lahum malna (For them is what is for us and on them what is on us). See Fiqhussunnah by Syed Sabiq, Vol. II, page 662 (printed at Beirut).
18. The aforesaid verses relating to prohibition of (khamar) read with 2:256 ---la akrah fi aldeen--- lead us to think that the prohibition is applicable to non-Muslims also as long as liquor is not a part of their religion. Consistent with this is the Hadith that the Prophet (PEACE BE UPON HIM) said: --- amarna tabko ham wa wama yadenoon--- (We have been ordered to allow them free in matters of their religion). Vide Attashriul Janaiyyaul Islami by Abdul Qadar Aada, Vol. II, page 500, printed by Darul Kitabul Arabi, Beirut.
19. The petitioner claims to profess Zoroastrian religion. He has failed to show that taking, using of or dealing in ---khamar--- including wine is part of hit religion.
20. This concession is, therefore, not applicable to him and his Co. Religionists. On the contrary the following passage from "The teachings of the Magi-A Compendium of Zoroastrian beliefs" by R. C.
21. Zaehner, published by Sheldin Press, London, pages 116-117 placed before us on behalf of the petitioner indicates that sobriety and to be free from inebriety are recom--mended. "But all men should become sober by drinking wine in moderation".
22. It is of interest to note that the evil of wine and intoxicants has now been fully realised throughout the World, irrespective of any religion. In 1919 the United States of America had amended Article 18 of the Constitu--petition to prevent the fabrication of any intoxicant or selling or transferring and exporting it. This law was subsequently amended for reasons not connected with the ethics of the ban. India, too, put a ban on drinking wine.
23. It is again of interest to note that a resolution passed at the 6 Session of the intoxicants held in Laussanne (Switzerland) from 29 November to 5 December, 1975, prepare by the International Council of intoxicants and International Organization for social defence, in which many Christian countries participated, begin as follows :- "(1) To benefit from the application of the Islamic Sharia and its ways to solve the problem of drinking intoxicants."
24. (Vide Al-Uquba by Muhammad Abu Zahra, printed by Darul Fikre Arabi, Cairo, pages 164-165).
25. The entire World, including Pakistan, is presently managed to control the evil of drugs and narcotics, and International Organizations are busy at work to devise means to control the spread of the evil, which has been plaguing humanity. We are not concerned with how far such bans are successful in controlling the use of wine and intoxicants. The fact remains that the evil of drinking and drugs has been realised, and efforts are being made to control it.
26. The agreements with non-Muslim made in the beginning of Islam like the one made with the Christians of Najran were matters of expediency. Abstinence from interference with the eating and drinking habits of some non-Muslims furnishes no reason to hold that the Injunctions of Islam granted the non --Muslims full freedom for such habits. Even then restrictions were put on drinking wine in public.
27. The Jurists are agreed that non-Muslims will be given freedom to profess practise their religion and they will be treated alike in an Islamic State. Non-Muslims, however, will not be allowed to violate any public law or to do an un-Islamic act openly. This freedom is given to the non-Muslims on the basis of the aforesaid Qur'anic verse ---la akrah fi allazi--- and on the principle accepted by the Sahaba, Tabieen and the Jurists ---lahum malna alehim wama aleena--- (Vide Almabsut-lil-Sarakhsi Vol. V, page 85.)
28. It is stated in Badaissanaifi Tartibish Sharai by Alauddin Abu Dakar Kasani, Vol. VII, page 113 : " .....So their (Zimmis) open trade in wine and pigs is a clear mischief and they will be prohibited to do so. And though these things are permissible according to their faith the open show of the prohibited things in a place reserved for the shoar (Signs) of Islam, cannot be permuted ............th th th Qazi Abu Yusuf in his book Kitabul Kharaj (Urdu) printed by Islamic Publications, Lahore at page 392 states; "Zimmis ---..Will not be allowed to deal openly with the business of wine and pigs.
29. And at page 432 he said; "In the cities built by the Arab they are not allowed to drink wine---.Openly"
30. Al-Marwardi in his book Al-Ahkamussul Tanayya (Urdu) page 239 states that there will be ordinary/usual conditions on Zimmis, who live with Muslims, and one of these conditions is not to drink wine openly.
31. "When a Zimmi drank the wine some say `Had' will be imposed on him and some say `Had' will not be imposed on him. This is when he drinks publicly and if he drinks secretly in his home he will not be prohibited from doing so."
32. A prominent Jurist, Syed Sabiq in his book Fiqhussunnah, Vol. II, page 899 writes; "The Christians and Jews who live with Muslims in a Muslim country and are permanent residents with them like the Copts in Egypt, and such as those of them who stay with the Muslims for a fixed period like foreigners in Egypt, on all of them `Had' will be enforced if they drank wine in an Islamic country. This is based on the formula for them is what is for us and on them is that is on us."
33. A well known Egyptian Scholar, Muhammad Abu Zahra has said; "As far as the 'Had' on wine taken by Zimmis or Mustamin is concerned, all the Jurists agree that `Had' will be' enforced on them on the principle "For them is what is for us, and on them is what is on us" ..........Moreover the prohibition of wine is based on the right of community to be secured from mischief and it is therefore, applicable to all those who live under the shelter of Islam. In addition the prohibition of wine is for the purpose of keeping the minds safe from pollution and impurity --- --- Vide Al-Uqubah by Abu Zabra printed by Darul Fikrul Arabi, Cairo, Egypt, page 170).
34. JUSTICE AGHA ALI HYDER, MEMBER.-The petitioner is a member of the Parsi Community. He has filed the petition with the prayer, that Articles 3, 4, 6, 11 (b), 12, 14 and 17 of the Prohibition (Enforcement of Hadd) Order, 1979, so far as these impinge on the rights of the non Muslim citizens of Pakistan, he declared to be repugnant to the Injunctions of Islam. The petition goes on to say that the Prophet, as evidenced by the Treatise of Madina and Najran, as also from his utterances and actions, had desisted from putting any fetter on the beliefs, practices and customs of the non- Muslims. This policy was scrupulously adhere to by the Righteous Caliphs, and with very rare exceptions even by the later Caliphs and Kings, in all climes and countries, wherever the Muslims held swa y. The founders of the various schools of jurisprudence, doctors of Lawn, and authors of books and treatises, enjoying the veneration of the believers never departed from this view, and his was always the law and the policy of the Muslim rulers in this sub-continent as is to be found from Fatawai Alamgiri, which had been compiled by 500 eminent Jurists during the days of Aurangzab.
35. Even the Prohibition Act of 1977 and the Punjab Prohibition Ordinances of 1948 and 1978, left their rights unim--paired. But as a result of the promulgation of the impugned order, referred to above, all that is open to them is to keep and use intoxicants "at about the ceremony prescribed by his religion for using it as a part of such ceremony." The right to manufacture, trade, or obtaining a licence for dealing in these articles has also been withdrawn from them. This curtailment of rights was in departure from the Injunctions of Islam and therefore it was liable to be struck down.
2. Mr. Riazul Hasan Gilani-learned counsel appearing on behalf of the respondents contended that wines and intoxicants being prohibited to the Muslims by Divine Decree, the Government is bound by the Constitution to prohibit its use even to the non-Muslims, on the principle enunciated by the maxim ---lahum malna alehim ma aleena--- (for them what is for us and on them is what is on us). The covenants and treatise, during the early days of Islam were valid for a particular situation and time, and enure no longer. The punishments of Hadd he submitted apply to all the citizens of a Muslim State. It is considered on a par with the maintenance of Public Order. To illustrate the point he urged, that though the personal law of the Muslims allowed them to have four wives at a time, yet they could not go through a second marriage for example in England and France, as it was in conflict with the laws of their land. The submission therefore was that if the territorial laws of other countries were above challenge, the promulgation of a law in Pakistan which was in obedience to Divine commandment, was hardly open to any exception. He submitted that it was consistently held by the Muslim Jurists, that the criminal and civil laws in a Muslim State applied equally to Muslims and non-Muslims. This was also the opinion of Muslana Mardoodi, as to be found in his address "Rights of non-Muslims in Islamic State". Some passages from imminent Jurists, past and present, were cited in support of this proposition. The proper course, therefore in my opinion, would be to see whether the drinking of wine and liquor is totally unlawful to the believers, according to the Injunctions of Islam. If the answer is in the negative, the case of non-Muslims will be no worse off.
3. The first revelation, in that context is to be found in 16:67 is as follows; And from the fruit Of the date-palm and the vine, Ye get out wholesome drink And food : behold, in this also is a Sign For those who are wise.
36. Then we come to 2:219.
37. They ask the Concerning wine and gambling.
38. Say: "In them is great sin, And some profit, for men ; But the sin is greater Than the profit."
39. They ask them how much They are to spend ; Say: "what is beyond Your needs."
40. Thus doth God Make clear to you Ye may consider- The next stage is reached in 4:43 O ye who believe Approach not prayers With a mind befogged.
41. Until ye can understand All that ye say,-- Nor in a state Of ceremonial impurity (Except when travelling on the road), Until after washing Your whole body, If ye are ill, Or on a journey, Or one of you cometh From offices of nature, Or ye have been'
42. And ye find no water, Then take for yourselves Clean sand or earth, And rub therewith Your faces and hands.
43. For God doth blot out sins And forgive again and again
4. Let us contrast these verses with the terms and the language, used by the Holy Scripture, when the Divine will decreed something as unlawful. This takes us to 5:4 and 2:173: 5:4 Forbidden to you (for food)
44. Are : dead meat, blood, The flesh of swine, and that On which hath been invoked The name of other than God ; That which bath been Killed by strangling Or by a violent blow, Or by a headlong fall, Or by being gored to death ; That which hath been (partly)
45. Eaten by a wild animal ; Unless ye are able To slaughter it (in due form) ; That which is sacrificed On stone (altars)
46. (Forbidden) also, is the division (Of meat) by raffling With arrows : that is impiety. and Dead meat, and blood, And the flesh of swine, And that on which Any other name bath been invoked Besides that of God.
47. But if one is forced by necessity, Without wilful disobedience, Nor transgressing due limits, Then is he guiltless.
48. For God is Oft-Forgiving Most Merciful.
5. Look to the clarity and the directness of expression and the complete list of items, which has been declared unlawful to the Believers for all times to come, unless in circumstances of dire necessity.
6. Picking up the earlier thread, we come to 5:93 and 94 which are germane to the issue in question.
49. 5:93O ye who believe Intoxicants and gambling, (Dedication of) stones, And (divination by) arrows, Are an abomination, Of Satan's handiwork Eschew such (abomination), That ye may prosper 5: 94Satan's plan is (but)
50. To excite enmity and hatred Between you, with intoxicants And gambling, and hinder you From the remembrance Of God, and from prayer Will ye not then abstain?
7. It is reported that some outstanding companions were sitting with cup before them, when some one reproduced the contents of the said verses. Without a moment's thought the cups were cast aside and the wine thrown on the ground, never to be touched again by their lips.
8. As can be seen, the word used in the preceding two verses is ---ajtnabwa--- which means eschew, avoid or shun. It can never be on a par with unlawful. These words have been used in verses 4:36, 22:30, 49:12, 53:32, and 4:31. In verse 49:12, the call is only to avoid suspicion, in 22:30, at one place it is for shunning the word that is false. Similarly the word ---rajas--- in the said verses, have been used in verses 5:93, 22:30, 6:125, 7:71, 6:145, 9:95, 9:125, 33:33, 53:32 and 10:100. In the last verse and 9:125, it has been translated as doubt or obscurity. The Dote in Allama Abdullah Yusuf A.I's commentary and translation of Qur'an being Note No. 1482 reads as under: "Rijs from Rajisa, yarjasu or Rajusa, yarjusu) has various meanings e.g. (1) filth, impurity, uncleanliness, abomination as in 9:95 ;
(2) hence filthy deeds, foul conduct, crime, abomination, thus shading off into (1), as in 5:93 ; (3) hence punishment for crime, penalty as in 6:125 ; (4) a form of such punishment viz. Doubt, obscurity, unsettle--ment of mind, anger, indignation as in 9:125 and here (10:100) but perhaps the idea of punishment is also implied here."
9. Avoidance, shunning, or abstention from a thing does not per se connote the doing of that thing as an unlawful or abominable act. If it is the study time or the examination is at hand, any parent will advise his ward to avoid play and not while away his time at the T. V. Set or at a picture house.
51. Not that these activities are unlawful, or unworthy of him, but it is not the thing to do in a particular situation. Examples can be multiplied. It is also to be seen, that what was intended to be eternally prohibited by Divine Decree, was announced without any equivocation and in forth right terms.
52. Contract the same with the subject of drinks and intoxicants. The Scripture mention it, a wholesome drink, food at one place ; at another place it is said to be partly profitable and partly conducive to sin ; at a third place the ban is on going to the prayers, with befogged mind. Even this last self- denying ordinance is confined to a particular period of time. If the faculties are unaffected and you understand what you are doing or saying what you want to say, you are in order. Even in verses 5:93 and 94, the meaning of the contents apart, the banned drink is ---khamar--- (the wine extracted from grape.)
10. It is true that there are some traditions attributed to the Prophet in which the scope is widened. It is not necessary to, reproduce them, as the same have been detailed by the learned Chairman.
53. The authenticity of the traditions apart, the same do not make out clearly as to whether the offenders were in a State of inebriety or stupefaction or had just wetted their lips with a few draughts of wine other than of grapes. It cannot therefor be said that their being visited with 40 stripes, or receiving just a mil drubbing was for the mere breach of a standing principle, covering all vintages of wines.
(1) Khamar (the crude juice of the grape). According to the two disciples Imam Yusuf and Imam Muhammad, the juice becomes Khamar upon its fermenting and being spirituous without the condition of its gathering foam. Imam Abu Hanifa is of the view, that fermenta--petition is the commencement of the process by which liquor becomes spirituous and the process is completed only when it foams and settles. The prohibition has a reference to the completion of this process.
54. It mentions (Hamilton at page 618) that some of the learned allege that it is declared unlawful to drink after having become spirituous, purely from motives of cautions.
55. Further at page 619, it mentions, that "the first recited tradition is not perfectly authentic, Yahya ibn Mayeen having disputed it .... ....And with respect to the second quoted tradition the intention of it was merely to explain the law ---."
(2) Bazik (the boiled juice of the grape, when boiled away to one half). It is also called Monisaf.
56. Oozrai has however said (page 621 of Hamilton) that Monisaf is lawful, because it is good liquor or in other words, it is pleasing to the palate and also because it is not Khamar."
(3) Sakker (an infusion of dates) made by steeping fresh dates in water, until they take effect in sweetening it, when it is both unlawful and abominable. However Shareek ibn Abdullah alleges (Hamilton page 620) that "it is lawful, as God speaking of His bounty in the Quransays "Ye enjoy Sakker from the grape and the date," whence we may infer that it is allowable-as bounty cannot apply to anything unlawful."
(4) Nookoo Zabeeb (an infusion of raisins, steeped in water). According to Oozrai it is lawful, when it possesses merely a sweet quality and it prohibited only when it ferments and becomes spirituous.
57. It further mentions, that there is no punishment in drinking it unless one gets inebriated. Imam Abu Yusuf holds the sale of the aforesaid liquors, excepting Khamar to be lawful.
12. Muhammad in the Jamius Sagheer remarks (page 621) "that every sort of liquor excepting those above-mentioned is lawful-so any kind of strong liquor extracted from wheat, barley, honey or millet is lawful in the opinion of Haneefa, if not drank so as to occasion intoxication. In the abridgment of Kadoorsi, it is said, that the steeping of raisins or dried dates, when boiled a little even so as to become spirituous, may lawfully be drunk in such a quantity as not to inebriate, provided it be done without wantonness or joy. Mossilis, if used with a view to strengthen the Constitution is lawful."
13. Sharah-i-Shaafi mentions that if vinegar is mixed in liquor, it is lawful to use it (see Fatawa-i- Alamgiri, Vol.IX, Qanooni Kutub khana, Lahore at page 182).
58. It (Fatawa-i-Alamgiri) further says at page 184;
14. The stage of intoxication, according to Maulana Salamat A.I Khan's Islami Qanoon-i-Faujdari, translation of Kitab-ul-Akhtiar (Law Publishing Company, Lahore at page 139) reaches, when a man cannot differentiate between "the sky and the earth, and man and woman." According to the Sahebain (the disciples), it occurs, when "his talk becomes incoherent, and he starts raving and ranting."
15. There is thus considerable opinion of the Jurists led by Imam Abu Hanifa, and followed by later writers, that the point of prohibition except in grape wine reaches when one gets intoxicated and therefore disabled from distinguishing between lawful and unlawful, right and wrong. Where such an apprehension is removed or taken care of, the prohibition is lifted. In Nurul Anwar, Imam Abu Hanifa's opinion, as to be found in M. Munir's Jinnah to Zia, 2nd Edition, page 127 is as follows; "Khamar is the name of an intoxicant made from grapes, and by a parti--cular process. Therefore all other intoxicants made from figs, dates, wheat and barley are not Khamar and the Quraanic Ordinances relating to Khamar, cannot apply to them."
59. One has just to look at the picture of Heaven as described in the Holy Quran and the reward that awaits the true believer (See 76:12 to 76:19).
60. And because they were Reward them with a Garden And (garments of) silk.
61. Reclining in the (Garden)
62. On raised thrones, They will see there neither The sun's (excessive heat)
63. Nor (the moon's) excessive cold.
64. And the shades of the (Garden)
65. Will come low over them, And the bunches (of fruit)
66. There, will hang low And amongst them will be Passed round vessels of silver And goblets of crystal, Crystal-clear, made of silver : They will determine The measure thereof (According to their wishes).
67. And they will be given To drink there of a Cup (Of Wine) mixed with Zanjabil,- A fountain there, Called Salsabil.
68. And round about them Will (serve) youths Of perpetual (freshness) : If thou seest them, Thou wouldst think them Scattered Pearls.
16. Allama Abdullah Yusuf A.I, in his Note No. 4833, dealing with verse 17, referred to above has the following to say "In this symbolism, there are four kinds of drinks, and all kinds of fruits, and the summing up of all spiritual delights, in the "Grace from their Lord". The four kinds of drinks are ; (1) delicious, cool, pure water, not like earthly water, for it never suffers corruption ; (2) milk, which never turns sour, whose taste is like fresh warm milk drawn from the udder ; (3) wine, not like any wine on earth, for it leaves no headaches behind, and causes no intoxication, which is a kind of madness or poison, but is ever a joy to drink ; and (4) honey, pure and clear, with no admixture of wax or any foreign substance. These drinks, again speaking metaphorically, will cool the spirit, feed the heart, warm the affec--tions, and sweeten life.
17. Again the same picture is repeated in verses 20 to 22 of Chapter LXXVI, and verse 15 of Chap.
69. XLVII.
70. And when thou lookest, It is there thou wilt see A Bliss and A Realm Magnificent.
71. Upon them will be Green Garments of fine silk And heavy brocade, And they will be adorned With Bracelets of silver; And their Lord will Give to them to drink Of a Wine "Verily this is a Reward For you, and your Endeavour is accepted and recognised.
72. (There is) a Parable Of the Garden which The righteous are promised ; Of water incorruptible ; Rivers of milk Of which the taste Never changes ; rivers Of wine, a joy To those who drink ; And rivers of honey Pure and clear. In it There are for them All kinds of fruits And Grace from their Lord.
73. (Can those in such Bliss)
74. Be compared to such as Shall dwell for ever To drink, boiling water, So that it cuts up Their bowels (to pieces) ?
18. It will thus appear that wine, which is not heady and tempestuous does have a place in Heaven.
75. If used in moderation, it does not defile a believer in this world as well. But if some body uses it immoderately, and begins to rant and rave, and "cannot distinguish between the sky and the earth", he has to thank himself for the consequences. The chastisement comes, because he has over-stepped the mark, and not because he had merely moistened his lips with it. Qur'an would not call it wholesome drink and food for mankind, or a source of some profit, if a mere touch was unclean and sinful. Nor can we just brush aside the considered opinion of stalwarts like Imam Abu Hanifa in regard to its use as the amusing of an irreverent mind.
19. I am, therefore of the opinion that the activities of the Government, in the manufacture, import, transport, sale of wine or liquor, as to be found ' in Article 17(a) & (b) of the Order are not open to any challenge. Buy even here, the qualification clauses will be repugnant to the Injunctions of Islam.
76. In the light of the view. I have taken, the other Articles, mentioned in the Petition, will also be repugnant to the Injunctions of Islam.
77. JUSTICE AFTAB HUSSAIN MEMBER.-After the establishment of Pakistan prohibition was first introduced in the Province of Punjab by substituting subsection (4) of section 24 of the West Punjab Act XX of 1949. The new subsection authorised the Provincial Government to prohibit the possession or consumption of any intoxicant in respect of any person or persons or any class or classes of persons or restrict such possession or consumption in respect of any person or persons or any class or classes of persons by such conditions as it may prescribe. The Provincial Government in exercise of the power so conferred issued Notification No. 1407-E & T prohibiting the possession or consumption by a Muslim of liquor fit for human consumption and made the possession or consumption of liquor by a person other than a Muslim, subject to permit to be granted by the Officers of the Excise & Taxation Department enumerated therein. Similar law was enforced in N.-W.
78. F. P. Also.
79. The above enactments of 1977 and 1978 were repealed by Prohibition (Enforcement of Hadd) Order, 1979 (President's Order 4 of 1979). This enactment for the first time extended the prohibition to other intoxicants also and prohibited the use of intoxicants by all citizens of Pakistan except under Ikrah and Iztarar. Non-Muslims were allowed to consume a reasonable quantity of intoxicating liquor at the time of a ceremony prescribed by their religions. The non-Muslim foreigners were exempted from the operation of the Ordinance except to the extent of use of liquor in public places. Section 17 authorised the Provincial Government or the Collector subject to the control of the Provincial Government to issue licences to any person in respect of any institution for the manufacture, import, transport, sale or possession of any intoxicant or article containing intoxicating liquor on the ground that such intoxicant or article is required by such persons in respect of such institution, for a bona fide medicinal, scientific, industrial or similar other purpose or for consumption by a non- Muslim citizen of Pakistan as a part of a religious ceremony or by a non-Muslim foreigner.
80. The present petition has been filed by a follower of the Zoroastrian religion to challenge the provisions placing an embargo on possession and consumption of liquor. (Section 3-4) and the provisions about issuance of licences for import, manufacture, etc. To a person in respect of any Institution whether under the Management of the Government or not (section 17) Other sections to which challenge is thrown are sections 6, 11-B, 12 and 14.
81. The main argument of the learned counsel for the petitioner as regard the ban on consumption of liquor by non-Muslims was based upon Verse 90 of Chapter V (5:90). He urged that it was addressed to Muslims only. In addition he referred to the treaties of Medina and Najran during the life time of the Holy Prophet which made no reference to liquor or its use or possessions although in the later treaty restrictions were placed on riba. It should be taken to mean, the learned counsel argued, that the use of liquor was permitted for the Ion-Muslims. He further made a reference to the covenants of the first two Caliphs, in some of which there is a specific permission to the non- Muslim convenanting parties to use liquor without any restriction from the State.
82. As regard Manufacture and sale of liquor, the learned counsel argued that they are completely prohibited to Muslims. Section 17 was therefore, repugnant to these prohibitory commands since it allows the Government or non-Governmental Institutions to apply for licences for manufacture, import etc. Of liquor not only for medicinal, industrial or scientific use but also for non-Muslim foreigners, and non-Muslim citizens of the country who require it for use as a part of their religious ceremony: The learned counsel submitted that at least the Muslims or Institutions having majority of Muslims should not be allowed to Manufacture and import liquor for the use of non-Muslim foreigner and for its exceptional use by non-Muslims of this country. One of the arguments of the learned counsel was that where a particular religion like the Zoroastrian religion does not prohibit the use of liquor but allows its use in moderation, any restriction imposed by the State would amount, to interference, with the Zoroastrian's religious creed.
83. The learned counsel for .The petitioner on the other hand submitted;
(1) The argument that verse 5 : 90 is addressed to Muslims does not mean that the restriction therein cannot be, applied to non-Muslims. The provisions in Verses 2:178, 4:1 S, 24:2, 2:38, 5:1 and 3:121, which relate to the prohibition of adultery, highway robbery, sedition, contracts and usury all are stated .To be addressed to Muslims. If the argument be that they cannot be applied to non- Muslim an `anomalous situation,' will arise that Civil and Criminal Laws of Muslim and non-Muslim will have to be separated.
(2) No privilege has been given in respect of liquor to non-Muslims.
(3) In respect of his argument the learned counsel for the petitioner has not quoted any text of the Holy Qur'an or any tradition in support of any alleged repugnancy between the provision of law which have been challenged with the Qur'an and the Sunnah:
(4) There is no repugnancy even with the Zoroastrian religion which does not make it incumbent upon its follower to possess or consume liquor.
(5) The Imamias, Malikees, Hanblis, and Shafe'ies are in favour of Hadd being administered on non- Muslims also, only the Hanafis differ on the point. The conduct of the Companions of the Holy Prophet also shows that they had stopped the non-Muslims from storing, selling or drinking liquor.
84. The Injunctions of the Holy Qur'an consist of Verses 2:219,.4:43; 5:90, 5:91 which are as follows;-- 2:219. "They question the about liquor and games of chance. Say: 4:43. "O ye who believe ; Draw not near unto prayer when ye are drunken, till ye know that which ye utter, . . . . . ."
85. 5:90. "O ye who believe ! Liquor and games of chance and idols and divining arrows are only an infamy of Satan's handiwork. Leave it aside in order that ye may succeed." .
86. 5:91. Satan seeketh only to cast among you enmity and hatred by means of liquor and games of chance, and turn you from remembrance of Allah and from (His) worship. Will ye then have done ?
87. There is no specific provision in regard to non-Muslims either permitting them to or prohibiting them from using liquor. In these circumstance the challenged provision cannot be held to be repugnant to the Holy Qur'an.
88. No Hadith in support of his claim was cited by the learned counsel for the petitioner. The argument of the learned counsel is based upon the treaty of Najran and of Medina and treaties of Caliphs succeeding the Holy Prophet.
89. The reference to treaties is not conclusive or even very material because no treaty to which the Holy Prophet was a party, makes any specific reference to permission to non-Muslims to consume liquor. Such a reference is found in the Covenants of Hazrat Umar, vide A. S. Tritton's "The Caliphs and the Non-Muslim Subjects," pages 5-17, but these Covenants were agreements between the parties and can be interpreted only as permitting Caliph or Muslim ruler by whatever name be is called, to allow the non Muslims to drink wine. It does not create any obligation on the ruler no to make any law of prohibition affecting non-Muslim subjects with who there is no treaty. According to Almabsoot by Sarakhsi as also Aljarim by Abu Zahra, p. 365 any condition in a treaty which is repugnant to the Book of Allah is void.
90. The permission by the Caliph Umar to non-Muslims to drink wine which is incorporated in the treaty can only mean that such permission to non-- Muslims is not repugnant to the Book of Allah. All the same distinction must be drawn between mere permission and an obligation. The award of permission is discretionary while obligation cannot suffer the exercise of discretion. These covenants were relied upon by the learned counsel in support of his contention about obligation only and are consequently irrelevant.
91. On the other hand there are cases in which Hazrat Umar as well Hazrat A.I have practically prohibited the non-Muslims from preparing alcohol or selling it. This point has been discussed at pages 231-233 of Kitab-ul-Amwal, Vol. I by Imam Abu Obaid-ul-Qasim, translation by Abdulrehman Tahir Soorti.
92. Following two incidents are revealing :
(1) Abu Amar Shebani says that on receipt of information that among the residents of Iraq a person had grown rich in the trade of liquor, Hazrat Umar wrote (to the Governor) : "Every thing belonging to him which may be within your reach, may he broken, his cattle may be taken in possession and beware that nothing remains sheltered".
(2) Rabia bin Zuka says that Hazrat A.I son of A.I Talib enquired about Zurara as to which place it was. The people said that a settlement was known as Zurara. The corrupt assembled there and liquor was sold to them. Hazrat A.I enquired about the path reaching to the settlement. The people replied that the path was from the entrance to the bridge. A person offered that he would take the Caliph to that place across the river in a boat. Hazrat A.I did not accept this, since it would amount to subjecting people to forced labour. He directed them to lead him through the entrance of the bridge. When he reached the settlement he directed it to be set fire to, because filthy (things) eat up one another. It is related that the settlement was set fire to, tilt the fire reached the garden of Khawasta Bin Jabruna.
(3) The 3 incident about Rowaishad is also related which pertains to the period of Hazrat Umar.
93. But according to Abu Ubaid, Rowaishad was a Muslim of Medina while the above two incidents related to Ehle Sawad who were Zimmis. He was further of the view that wherever restrictions were placed upon the Zimmees in respect of synagogues of the Jews or other places of worships or on the use of liquor and pork, the persons affected were Zimmis of settlements mostly inhabited by Muslim. Abu Ubaid relates in support of this clarification a Hadith of Ibne Abbas which is as follows: "Ikrama relates that Hazrat Ibn Abbas said that in cities settled by Arabs, the Zimmis have no right to construct places of worship to sell wine, to breed pigs or to ring bells, except in cases in which the Zimmis are living there since long. It is only then that it becomes the duty of the Muslims to fulfil their treaty obligations towards them."
94. This Hadith appears in Ilaussunan by Maulana Ashraf A.I Thanvi-- Vol. 12, page 369 though the narrator is Suleman who beard it from Hanash. Baihaiqi is of the view (vide his Altalkhis-ul-Habeer, Vol. 2, p. 380) that Hanash is not a very reliable narrator but Hakim considers him pious (ride Almustadrak, Vol. 1, p. 275). According to Abu Mobsan, he was a truthful man. Buzar (see Al Tahzib, Vol. 2, p. 365) is of the opinion that Hanash narrated many traditions. Maulana Ashraf A.I Thanvi relies upon the view of Imam Ahmad (Almughni, Vol. 10, p. 610) that the tradition is reliable.
95. These traditions are also relied upon by Hafiz Ibn Qayyum Aljauzi in his Ehkam-i-Ahl-Uzzimma, --- ahkam ahal alzma--- Vol. 2, page 727 with commentary by Dr. Sabeh Saleh, pages 727 and 728, Alkbaraj by Imam Abu Yousuf (Arabic), pages 177, 178.
96. According to Abu Ubaid the phrase 'cities settled by Arabs' in the above version of Ikrama includes places the residents whereof accepted Islam for example Medina, Taif, Yemen as well as cities which were not in existence but which were settled by Muslims like Koofa, Bassara and other border areas. They also include areas conquered by Muslim in which their own residents are not allowed to reside as was done in Khyber. In such places Zimmis will not have any (special) concession.
97. Al Babar-ul-Zakhar Vol. VI, pp. 460, 461 by Ahmad Ibn Yahya bin Al Murtaza (d. 840 H.) it is reported that one of the conditions of the treaty with the Christians of Syria was that "we shall not sell liquor".
98. It is thus evident that distinction yeas drawn by the renowned Companions of the Holy Prophet i.e. Hazrat Umar, Hazrat A.I and Hazrat Ibn Abbas in respect of inter alia permission to non-Muslim to use liquor, between places which were inhabited primarily by non-Muslims since before their conquest and places to which the Muslims flocked or which were converse into Muslim settlements. In the first category of cases permission to us liquor was given while in the second category of cases this permission was withheld. Same distinction is noticable in Badaiul-Sanaifi Tartibish-sharai by Alauddin Abu Bakara (died in 578 Hijra) Vol. 7, page 113, a Hanafi Jurist. In Fiqahussunna Vol. 2, pages, 398, 399 it is stated that freedom and Islam are not the necessary conditions for Hadd. All the people of the Book viz. Jews and Christians who resides in the Islamic Countries or Copts who have obtained their citizenship in Egypt and likewise foreigners who visit these countries on Visa for a fixed period, all will be subjected to Hadd if they drink liquor; on therd principle ---anhum malna alehim maleena--- (for them is what is for us and on them is what is on us) Abdul Qadir Auda say in Al Tashri-ul-Janai-ul-Islami Vol. 2, page 500; "The Muslim Jurists have a rule that liquor is permitted to the non-Muslims for so long as their religion does not prohibit its drinking This is on the basis of the dictum laid down by the Holy Prophet who said : "We have been ordered to allow them free in matters of their religion. But since intoxication is prohibited in all religions, some of the Jurists have adopted the view that a non- Muslim shall also be subjected to Hadd in case of intoxication While others are of the view that he will be punished by way of Tazir. There is no opposition of the point that if a non-Muslim drinks liquor in public he will be subjected to Tazir punishment though he may not be intoxicated. This is despite the taking of wine being permissible to him. The reason is that in the rules of Sharia there is nothing which can prohibit the imposition of prohibition on non-Muslims in case of apprehension of collective mischief. The drinking of wine may not be prohibited by their religion but (permission to drink) does create mischief since on account of it the liquor will be available in the cities and the Muslims will be persuaded to drink it. This reason is sufficient for banning the use of wine by them.
99. And if the Christians and the Jews can impose prohibition on their subjects irrespective of the fact whether they be Christians, Jews or Muslims the rulers of Islamic Countries should have a better right to impose prohibition on all irrespective of their religion." ---mukhtar alftava almasriya--- by Sheikh-ul-Islam Ibne Taimiya, page 503, the Fatawa is as follows;--- "And if a Zimmi drinks liquor some have said that he is not liable to Hadd while others take the view that he will be liable to Hadd in case of intoxication or if he drinks in the presence of Muslims but if he drinks in the privacy of his own house by which no harm is caused to the Muslims his conduct will not be objected too. But if without imposition of prohibition it be not possible to prohibit him from drinking in public or to stop the Muslims from being supplied wine or from its sale or purchase, the prohibition can be extended to Zimmis also and they can be punished whether the punishment amounts to breaking the Covenant or not."
100. The opinion of Imam Malik is reproduced in Imdatul Qari Sharah Sahee Bukhari, Vol. 23, page 295. It is to the effect that if the Zimmi commits fornication or drinks liquor no objection shall be taken to it by the Imam except when they do so in a country inhabited by Muslims. This is in order to remove mischief by non-Muslims since display of sale of liquor amounts to manifestation of corruption --- fasq---. This shall be prohibited.
101. Reference may lastly be made to the opinion of Professor Abu Zahra in Falsafat-ul-Aqubah fil fiqh Islami (1963 Edn., pages 189, 190). It is stated that "the majority of the interpreters of law state that Zimmis and Mustamin are liable to Hadd on the principle of `what is for us is for them and what is on us is on them' And drinking of wine is prohibited in all the religions of the people of the book -- -.And prohibition is for the common benefit and favouring drinking is mischief. This (prohibition) is good for all those who live under the shadow of Islamic rule. And prohibition appeals to reason and to support reasonableness is commanded to all the rulers among Muslims. They are concerned with rules which necessarily apply to all and benefit all".
102. "In Islam the punishments with reference to places (place of occurrence) are of two kinds. The first punishment is the one fixed by the Book of Allah and the Sunnah. This punishment is common for all whether the country be Islamic or not and can be enforced on all persons living in an Islamic country without distinction whether they be Muslims or non-Muslims . . . . . . . Imam Abu Hanifa has legalised drinking of wine and eating of pork for non-Muslims, since in his view the drinking of wine by Zimmis is not an offence making him liable to punishment. But Imam Shafee is opposed to this on the well-known principles that `for them is what is for us, and on them is what is on us'. And (since) drinking of wine is a culpable crime for Muslims, it will also be a culpable crime for Zimmis particularly when drinking is prohibited in all revealed religion---.Moreover these are limits imposed by Allah for the good of the Ummah.
103. Another reason is that wine is the mother of vices and its mischief is not for those who drink it but it also extends to others. For this reason Imam Shafee has considered Hadood and Qissas to be common punishments applicable to all residents of a country."
104. At page 339 it is stated that; "There are two opinions in respect of drinking and its Hadd for non---Muslims living under the banner of Islam. The general view is that Zimmis can be prohibited from drinking as well as from eating pork. In my view this is more compatible with policy, since prohibition is to stop mischief in the entire body of Muslims and not among individuals only. For this reason Allah has included it in Hudood and has not left it to the ruler to fix the punishment according to his will. He has been authorised only to impose the sentence. During our time the opinion of the Jurists is that Islam is for common benefit. Apart from this to impose prohibition on a non-Muslim and to punish him for its violation is to close the source (of evil), since if a non-Muslim drinks in the neighbourhood of a Muslim he virtually persuades him to drink wine and in order to close this source (of implied persuasion) it is necessary to prohibit him in the same manner as to prohibit a Muslim."
105. The basic principles, as seen above, involved in the imposition of a general prohibition are two. The first is to plug all loopholes which may tempt the Muslims to disregard the Islamic injunctions of prohibitions against drinking liquor and the second is the dictum-and this is the main principle--- that `for them is what is for us and on them is what is on us'. This age---old principle of the earlier Jurists framed over twelve hundred years ago is the same principle as that of equality before law and equal protection of law. The dictum clearly means that the rights and liabilities of Muslims T and non-Muslims should be the same including the right of each to follow his own religions i.e. To do what is ordained to him, and to refrain from doing what he is prohibited from doing. Except to the extent of their religious creeds the laws concerning Muslims and non-Muslims in a Muslim State shall be common and shall be equally applicable to all. Every body shall be afforded equal protection of law and will be accorded equality of law whatever may be his religion or profession.
106. The Prohibition is not unknown to a Secular or to a non-Muslim society : "Some attempts at prohibition were made in Aztec society; ancient China, feudal Japan, the Polynesian Island, Iceland, Finland, Norway, Sweden, Russia, Canada and India but only a few countries experimented with national prohibition. Finland, for instance, adopted it in 1919 and repealed it in 1931". And the United States adopted it in 1919 and repealed it in 1931. See Encyclopaedia Britannica on "Prohibition".
107. The view that there are advantages and disadvantages both in drinking is not confined to the Holy Qur'an only (Verse 2:219), its disadvantages have been proclaimed in the modern age by Doctors and Scientists. In Encyclonaedia Britannica (on 'Prohibition') it is further stated that "in United States, the ascetic Strain in Protestanism') which placed value on self-mastery, industry, thrift and moral conduct, has been interpreted as the motivating force behind prohibition attempts. In northern European countries on the other hand liquor control has reflected concern for the prevention of alcoholism. The Finnish prohibition outlawed the sale of spirits in an attempt to restrict the population towards greater consumption of beer (with lower alcoholic content). Sweden experimented with the aim of limiting the individual use of liquor". (Encyclopaedia Britannica, Vol. 8, page 234).
108. "The Prohibition of wine may, however also be looked upon from a wider aspect, as Islam is not the only monotheistic religion which has taken a negative attitude towards wine. It is well known that according to the Old Testament (Numbers VI, 3-4) the Nazarite who had already devoted himself to Yahweh had to abstain from wine and spirits, just as the priests before administering the sacred rites (Lev. X, 9). The Nabateans, according to Diodorus Siculuss (XIX, 94-- 3) likewise abstained from wine and one of their gods is called in their inscriptions 'the good god who drinks no wine' likewise, absten--petition from wine belonged to the rule of many Christian monks. All this has its roots in remote Semitic antiquity which ascribed a demoniac character to wine and spirits. ."
109. Dr. Anwar Kamal Professor of the Islamic University who is also a Judge of a superior Court in Egypt also addressed the Court on this question and supported the views of the Jurists in favour of extending prohibition to non-Muslims also.
110. If the non-Muslim States can impose prohibition in order to end the mischief of drinking liquor by non-Muslims I do not see any prohibition on a Muslim society to impose similar restriction on non- Muslims living in an Islamic country. The utmost that the learned counsel succeeded in placing before us was that followers of the Zoroastrian religion are permitted to take wine in moderate quantities it is not obligatory. To stop them from taking wine is not thus an interference with their religion. Such interference could be inferred only if what is obligatory upon them was prohibited and what is prohibited to them was enjoined upon them. The argument of the learned counsel to this extent is devoid of merit.
111. Faced with this point the learned counsel at the end of his argument addressed in reply to the argument of the learned counsel for the respondent when no new point could be raised, urged that taking of wine in not prohibited even to Muslims.
112. The learned counsel relied, upon the opinion of Imam Abu Hanifa in Hedayat by Hamilton page 621 and Ehkam-ul-Sultania by Mawardi, page 358. He also submitted that the word, (Ijtanebu) in Verse 5:90 does not have the sense of complete prohibition.
113. The three injunctions in the Holy Qur'an regarding liquor (Verses 2:219, 4:43, 5:90, 91) have already been reproduced. Historically speaking the first injunction is in Chapter 2, the second in Chapter 4 while the last one in Chapter 5. The first injunction is meant to merely dissuade Muslims from taking wine. For these reasons emphasis were laid on its sinfulness being greater than its utility. The second is a prohibition of offering prayer while in a state of intoxication. There could be no sense in the last injunction if it had not been aimed at complete prohibition. It is for this reason that liquor and idol worship have been equated and both of them are stated to be "infamy and Satan's handiwork (5:90). What follows this injunction indicates liquor the be a thing to be shunned. After describing that liquor creates hatred among you and turns you from remembrance of Allah and from (His) worship, the question is put, will you be dissuaded from it o give it up. The words of this question are fahal antum minthoon. The word is used in the sense of "prohibition, interdict, Veto".
114. The word is therefore, used in the sense of complete dissuasion from taking wine.
115. I am not impressed by the argument based on. Verse 5 :3; "Forbidden unto you are carrion and blood and swine-flesh, and that which hath been dedicated unto any other than Allah, and the strangled, and the dead through falling from a height and that which hath been killed by the (the goring) horns, and the devoured of wild beasts. . "
116. It was argued that if it was the divine intention to forbid the taking of wine, the word ---hurmat alekum--- should have been used as in the above Verse 5:3, This argument is difficult to accept.
117. The use of different language conveying the same meaning cannot slash the scope of the language. No legislation is expected to use for similar circumstances exactly similar language Sometimes the language is changed in the interest of beauty of the diction while often it is changed in order to avoid repetition. Nothing therefore turns on the change of language.
118. Even under the modern law no presumption can be raised by the change of language about the difference of meaning. This point is thus stated at p. 286 of Maxwell on the Interpretation of Statutes (12th Edn.); "Just as the presumption that the same meaning is intended for the same expression in every part of an Act is not of much weight, so the presumption of a change of intention from the change of language-- which is of no great weight in the construction of documents-seems entitled to less weight in the construction of a statute than in any other' case, for the variation is sometimes to be accounted for by the draftsman's concern for the 'graces of the style' and his wish to avoid the repeated use of the same words---------------Hadley v. Parks (1866) L R 1 Q B 444 (457) same principle is at p. 135 of Craies on Statute Law (5th Edn.).
119. The word ajtanbwa is used not only in Verse 90 of Chapter V but in other verses also. The reference to two other verses Will he advantageous. In Verse 16:36 it is enjoined ---ina abdallah wa ajtanbwa alta ghoot--- (Serve Allah and desist from the worship of false gods). Clearly the word wajtanbwa is used in the sense of prohibition, since Islam does not countenance idol worship.
120. Another Verse is 22:30 "The cattle are lawful unto you save that which hath been told you. So shun the filth of idols, and shun lying speech."
121. Here also the injunction is to shun the filth of idols. It appears that the word wajtanbwa has been used in this verse as an antonym of the word ---ahlat--- (are made lawful). The antonym of lawful is unlawful which has the sense of something not permitted or absolutely prohibited. In support of this argument; I may also refer to the use of another similar antonym of ---ahal--- in Verse 2:275 - --wa ahal allah albeh wa jurm alrabo--- (Allah permitted trading and forbade usury). The word -- -haram--- (unlawful, forbidden) has clearly been used as an antonym of ahal. If the word in 5:90 is, interpreted in the sense of vesting of discretion; it will create an anomaly and it will have to be held 'that it, is not obligatory to shun idol worship. Clearly this interpretation will be opposed to the divine intention. There is a tradition also equating "the drinker of liquor with worshiper of idol sharab alkhamar kabdalwasin (one who drinks wine is like one who worships an idol).
122. Then according to the accepted interpretation the word ---rajas--- is itself a strong word and connotes, extremity of evil. The words ---rajas man amle alshetan--- (infamy of Satan's handiwork) are much stronger and could not have been used except in the sense that no Muslim should go near it.
123. The best interpreter of the Holy Qur'an is the Holy Prophet who had according to the generally accepted traditions of Hazat Aisha and Ibn Abbas said that ---kal muskr haram--- (anything which intoxicates is prohibited).
124. Alkharam alkhabaes (Liquor, is the mother of evils, i.e. Worst of the evils) or alkharam alkhabaes wal akbar alkabaer (Liquor is the mother of evils and the greatest sin).
125. It is also established, that when the Verses 2:90 and 2:91 were revealed a number of Companions of the Holy Prophet were drinking. When they heard about the revelation they flowed their liquor on the floor.
126. It is reported by Humary from Abu Huraira that a person came to the Holy Prophet after hearing about the prohibition of drinking. The Prophet (p. b. h.) said ---utha qad harmat--- (It has been prohibited). The person enquired from him if he could sell it. The Holy Prophet said ---harm beenha innalazi haram sharbha--- (whoever has prohibited its drinking had also prohibited its selling) A similar tradition is reported in Muslim and Nasace from Ibne Abbas with some difference in language (Tafseer-i-Manar by Rashid Raza, Vol. 7, page 7.4). In Kitabul Fiqh, Vol. 5, page 68 is recorded a tradition.
127. (Allah has prohibited sale of liquor . . . . . . .).
128. The view of Abu Hanifa as relied upon by the learned counsel that only the wine prepared from grapes or dates is included in the word an consequently any other preparation in the nature of liquor from any other commodity i.e. Wheat, olive rice, barley maize or honey is not and not as such prohibited until the stage of intoxication is reached. I haw already referred to the sayings of the Holy Prophet that anything which creates intoxication is prohibited. The Hadith is a complete answer to' the argument of the learned counsel.
129. It is also not correct that the word is used in connection with the preparation of liquor form dates and grapes. In another Hadith related by Bukhari and Muslim it is stated that "Umar gave an address from the pulpit of God's Messenger saying "the prohibition of (liquor) has bee enjoined and it comes from five things i.e. Grapes, dates, wheat, barley an honey". The View of Imam Abu Hanifa is not therefore, acceptable no has it been accepted during the last 12 Centuries by any other Jurist of renown.
130. Though the petition fails on the question of prohibition against non-Muslim being repugnant to Qur'an and Sunnah; there is substance in the argument of the learned counsel on section 17 of the Prohibition Order. It has already been noticed that law does allow the use of wine (1) by Muslim in Ikrah and Iztirar, (2) by non-Muslim citizens of this country as a part of religious ceremony, (3) by non-Muslim foreigner, and (4) for other medicinal, scientific, industrial or similar other purposes: In order to make room for manufacture, import, transport, sale or possession of any intoxicating liquor for the aforesaid purposes, section 17 authorises the. Provincial Government, or subject to its control the Collector, to issue licences to any person in respect of any Institution whether under the Management of the Government or not. Issuance of licence is for the purpose of regulating the manufacture, import, transport, sale or possession of intoxicants. The question however is whether in view of the bar on Manufacture or possession etc. Of intoxicating liquor placed by the Sunnah on Muslims, any Muslim whether member or employee of an Institution, Governmental or otherwise or similar Institution manned by Muslims, can carry on the trade of liquor. The principle that what cannot be done directly, cannot be allowed to be done indirectly solves the issue. The bar being against the Muslims any Institution whether under the Management of the Government or not if manned by any number of Muslims, would be hit by the embargo. In my view section 17 to this extent is liable to be declared repugnant to the Holy Quran and the Sunnah of the Holy Prophet. The repugnancy would b resolved by providing for issuance of licence for the purposes enumerated in section 17 by, Institutions including Corporations under the non-Muslims exclusive Management, even though the Government may consider setting up for this purpose of such an Institution which may be manned by, non Muslim only, and profits of which are shared by them. I allow this petition to this extent and declare section 17 to be repugnant to the Sunnah of the Holy Prophet to the extent, mentioned above. The necessary amendment in the law should be made by the 30th of June, 1981.
131. ORDER OF THE COURT By a majority of three to one it is held that the extension of the Prohibition, in the Prohibition (Enforcement of Hadd) Order, 1979, to a non-Muslim is not repugnant to the Holy Quean ' and the `Sunnah of the Holy Prophet. The petition is dismissed to this exent. It is, however accepted in regard to the contention against the legality of section 17 of the Order, and it is declared that the provision in that section allowing an Institution whether under the Management of the Government or not, if manned by Muslims is repugnant to the Holy Qur'an and the Sunnah in view of the ban imposed by the Sunnah of the Holy Prophet on possession or sale of liquor by Muslims. It is directed that necessary amendment in section 17 be made by the 30th of June, 1981 to allow only such Institutions as are entirely manned by non-Muslims and profit of which are shared by them, to manufacture, import, transport, sale or possess liquor for the purposes enumerated in clause (a) of section 17 or for its export; as provided in cause (b) thereof: