Ghulam Nabi Awan Vs. the Federation of Pakistan

IN THE FEDERAL SHARIAT COURT

T—ORIGINAL JURISDICTIN )

PRESENT.

Mr. Justice Salahuddin Ahmed ' Chairman Mr. Justice Agha Ali Ryder ' Member i Mr. Justice Aftab Hussain Member Mr. Justice'Zakaullah Lodhi Member Mr. Justice Karimullah Durrani Member .

SHARIAT PETITION NO.1/L OF 1979

Mr. Ghulam Nabi Awan Petitioner Vs

The Federation of, _ Relporydent Pakistan.

For the Petitioner In Person For the Respondent Mr.,Riaz-u1-Hassan Gillani, Advocate.

SHARIAT PETITION NO.I8/K OF 1979

Syed Masood Ahmad Petitioner It

President of Pakistan Respondent For the Petitioner Mr.G.M. Saleem, Advocate.

For the Respondent Mr. Riaz-ul-Hassan Gillani, Advocate.

Date of hearing 16.11.1980

Date of decision 13.12.1980

IN THE FEDERAL SHARIAT COURT

JUDGMENT

S.P. I OF 79(L) AND S.P. 18 OF 79(K):

I have read the judgment proposed to be delivered by the learned Member, Aftab Hussain J. I agree with the order but wish to add the following.

From the verses of the Holy Ouran quoted by him the principle that can be inferred is that the use of the prohibited Article is permitted under compulsion of necessity; the use is bonafide; and there is no 'transgressing due limits'. Intention (L.z..:1'?) is the governing factor and only so much is permitted as is strictly necessary.

So far as medicine is concerned the physician is the best person to determine what is necessary for the cure of his patient; and if he prescribes • a medicine containing intoxicant and the patient ti bonafide uses it for his cure, and keeps to the limit, there is no blame on either. Every illness is serious unless attended to properly and in time. Even what we call ordinary cold may turn into consumption if allowed to go neglected and without medicine.

(Salandddin Ahmed) Chairman.

Fr

AFTAB HUSSAIN, MEMBER

This order will dispose of S.P.I of 79(L) and S.P.18 of 1979 (K). These petitions were not orally argued on behalf of the petitioners. Only the petitioner in the second petition submitted written arguments.

S.P.1 of 79 is quite/vague. It appears however, from its paragraph 1 that this petition has been filed to challenge the definition of the word 'Iztirar' in section 6 of the Prohibition (Enforcement of Hadd) Order, 1979. S.P.18 of 79 Karachi has also been filed with the same f.nd in view but in the written argument submitted by the petitioner, the petitioner has also made a reference to section 17 of the said Order which provides for issuance of Licences for the manufacture, import, transport, sale or possession or export of any intoxicant or article containing intoxicating liquor.

The definition of 'iztirar' to which exception has been taken in the two petitions is given in section 6, Explanation (b). It is necessary to reproduce sections 6 and 17 both for the proper appreciation of the points involved in the case. Section 6 "DrinkineL.Whoever, intentionally and without ikrah or iztirar, takes an. intoxicant by any means whatsoever, whether such taking causes intoxication or not, shall be guilty of drinking.

Explanation.- In this Article,-- "Ikrah" means putting any person in fear of injury to the person, property or honour of that or any other person; and

"Iztirar" means a situation in which a person is in apprehension of death due to extreme hunger or thirst or serious illness.

Section 17. "Licences for bona fide medicinal or other purposes.-, The Provincial Government, or subject to the control of the Provincial Government, the Collector, may issue licences to any person in respect of any institution, whether under the

management of Government or not:- 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 person 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; or for the export of any intoxicant or article containing intoxicating liquor& The Prohibition (Enforcement of Hadd) Order 1979, makes drinking except in certain cases and with few exceptions liable to Hadd or Tazir. The relevant exception is when a man drinks under Ikrah or IZtirar. Another exception is the consumption of liquor by a nons-Muslim citizen of Pakistan as a part of religious ceremony or by a non-Muslim foreigner. Liquor may also be required for medicinal, scientific, industrial or similar other purposes. For this reason section 17 allows its manufacture import, transport, sale or possession but subject to the control of the Provincial Government for which licences may be issued under the control of the Government.

There is no objection to the use of liquor by a non- Muslim citizen of Pakistan or by non-Muslim foreigner or its use for scientific, industrial or similar other purposes. The real objection is to its medicinal use. But this objection is not of any substance, $ince the word 'medicinal use' is to be primarily interpreted in relation to Iztirar. Virtually, therefore, the challenge in the two peitions should be taken to confined to the definition of 'Iztirar". Now as seen above Iztirar mean a situation in which a person is in apprehension of death due to extreme hunger or thirst or serious illness. The argument is that Iztirar may be a ground for eating what is haram (prohibited) at the time of extreme hunger when no other food is available, no such permission is granted by the Holy Quran or the Sunnah of the holy Prophet for the use of intoxicating liquor. As regards its use for medicinal purposes reliance is placed on the two traditions reproduced in Writ Petition 18 of 1979 which are as follows:-

(i)"Tariq bin Suwaid Jofi asked the holy Prophet, about intoxicants. The holy Prophet, prohibited or disliked its manufacture, Tariq said "I manufacture it for medicine". The holy Prophet said, "It is, in fact a disease and not a medicine". (Sahih Muslim, Kitabul Ashralaa) (ii) "In another hadith, the holy •Prophet of Allah says, "Do not use any prohibited article for medicinal purposes". ((Rawahi Ibn 1 Daud)

In justification of the definition of "Iztirar" reference may be made to the following verses from the holy guran particularly the portions underlined therein: 2:173 "He hath only forbidden you 1/4_ Dead meat, and blood, And the flesh of swine, And that on which Any other name hath been invoked Besides that of Allah, But if one is forced by necessity, Without wilful disobedience, Not transgressing due limits,-- Then is he guiltless.

For Allah is, Oft, Forgiving, Most Oerciful".

5:4 • "Forbidden to you (for food) Are: dead Meat, blood, The flesh of swine, and that On which hath been invoked The name of other than Allah, That which hath 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) Eaten by a wild anitLl;

Unless ye are able To slaughter it (in due form

That which is sacrificed On stone (altars);

(Forbidden) also is the division (Of meat) by raffling With arrows: that is impiety.

' Bilt.,Jf any Is"lorted By hunget, With hOHintlination To trahsgression, Allah is "Indeed Oft-FOrgiving, Mdst Mercitul.".

6:119 "Why should ye not Eat of (meats) on which Allah's name hath been Pronounced, When He hath Explained to you in detail What is forbidden to you-- Except under compulsion Of necessity?

But many do mislead (men) By their appetites unchecked By knowledge. Thy Lord Knoweth best those who transgress.".

6:145 "Say: I find not In the Message received By me by inspiration Any (meat) forbidden To be eaten by one Who wishes to eat it, Unless it be dead meat, Or blood poured forth, Or the flesh Of swine,-- For it is an abomination-- Or; What is impious, (meat) On which 'a. name has been Invoked, other than Allah's.'t • But (Oven so), if a person Is forced by necesSity, Without wilful disobedience, Nor transgressing :due limits,— Thy Lord is Oft-Fotgiving, Most merciful."

16:115 "He has only forbidden you Dead meat, and blood, And the flesh of :twine, And any (food) over which The name of other than Allah Has been invoked.

But if one is forced by necessity, Without Wilful disobedience;

Nor transgressing due limits,-- Then Allah is Oft-Forgiving, Most Merciful.".

It is •clear from the underlined portions that God has permitted the use even of strictly prohibited things during necessity, for example when a person is starving to death. The holy Quran gives considerable sanctity to human life and allows for this reasons the use of prohibited things also to save life.

There is no reason why this principle should not be applied as a device to save life if the same can be saved by use of liquor either to quench thirst or as a medicine.

Mr. Riaz-ul Hassan Gillani the learned Counsel for the Federal Government read a passage from the Book of Dr. Wahab-uz-Zahili known as Nazariat-ul-Zarurat-ul-Sharia, page 77, according to which liquor can be given in iztirar. This is the view of Shias as well as Zaidias. The traditions referred to above which do not allow the use of liquor even for medicinal purposes are subject to the principle of iztirar. According to 'Ein-ul Hidiya' vol. IV, Kitabul Karahat, page 296, there is no harm in administering the urine of camel as a medicine. This is from Abu Yousuf, At page 242, is recorded the considered opinion of the Jurists that on the principle of haram becoming h alal in expediency, taking of liquor is also permissible in iztirar in order to save life. There is complete prohibition against a person not within the prohibited degree seeing any portion of the body of the woman except that which it is permissible for her to keep open. But where no woman be available to treat a female patient who is suffering from acute pain or is likely to die, it is permissible for a male doctor to examine, even those portions‘of the body which are kept concealed even from a person within the prohibited degrees (page 242 ibid). According to KitabuY Fiqha Ala Mazahib-il- Arbaa

by Abdur Rahman Aljq ri (Urdu translation) vol.V, page 56, t the Hanafi view is that during expediency for example when one is very thirsty and nothing else is available to quench thirst it is permissible to drink liquor. It is permissible to drink in order to save •life. The same is the view of Malikis and Hanblis. At page 57 it is recorded that some time on account of extreme cold there may be a danger to life and if the liquor may save a persons life it is per- missible to drink it.

Reference may also be made to page 42 of the book (ibid) where it is written that according to Hanafis liquor may be converted into vinegar. Similarly (vide )5/57 page 43) if the liquor loses its quality in some manner e.g., cooking it is not prohibited. Thus liquor used for flavouring bread at the time of baking is burnt and becomes innocuous though the bread becomes unholy. In the same manner liquor loses its quality by use in some medicine or by being mixed with meat before it is cooked. Similarly there is no harm if it •is used in enema. The use of liquor during iztirar is, therefore, not repugnant to the holy Quran or the Sunnah. Nor can, in view of what has been stated above, any objection fp be taken to the definition of iztirar in the Prohibition (Enforcement of Hadd) Order, 1979.

Both the petitions are, therefore without force and are dismissed.

Member-II

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