Islamic Fiqh > Penalties (hudud) > Khamr and discretionary penalties (ta'zir) > The khamr drinker: punishment, blame and practical rulings
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The fuqaha agree that ta'zir through reproach and verbal blame is permissible, for it brings deterrence and restraint from crime, as is proclaiming his offense against him.
The Hanafis say: ta'zir is permissible through harsh words, slapping the neck, twisting the ear, the judge looking at him with a stern face, and insulting that stops short of qadhf (al-Bahr al-Ra'iq 5/44; al-Lubab 2/319).
The Malikis say: ta'zir takes place through imprisonment, beating with the dirra, the rod and the stick, striking the back of the neck with bare palms, blame and reproach, making him rise from the assembly and the gatherings, and removing his turban from his head.
Ibn Shas said: they used to punish a man according to his standing and the gravity of his offense: some were beaten, some imprisoned, some made to stand on their feet in the gatherings, some had their turban removed, some had their waist-wrapper loosened.
Ibn 'Arafa said: among the kinds of ta'zir whose practice is established is striking the back of the neck, uncovered and with bare palms.
'Iyad said: a man swore an oath of divorce in the council of Sahnun, and Sahnun ordered that the back of his neck be slapped (at-Taj wa al-Iklil 5/372; Sharh Mukhtasar Khalil 8/110; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/370; Tahbir al-Mukhtasar 5/403).
The Shafi'is say: ta'zir is permissible through imprisonment, exile, flogging, a slap with the palm, verbal reproach and turning away from him. The imam may limit himself to reproach if he sees an interest in it, and he may expose him publicly among the people in addition to the punishment; this is urged in the case of false testimony: he is exposed at the door of the mosque, in his market and in his tribe, and it is proclaimed about him: "This is a false witness, know him."
He may also strip the punished person of his clothes, apart from what covers the private parts.
And it is permissible, in the sounder of the two views, to blacken his face (al-Hawi al-Kabir 13/425; Rawdat at-Talibin 6/621; an-Najm al-Wahhaj 9/238 and 239; Mughni al-Muhtaj 5/516; Nihayat al-Muhtaj 8/25 and 26).
And whoever drinks an intoxicant during the day of Ramadan is given a ta'zir of twenty lashes in addition to the hadd, based on what Ahmad related (al-Mughni 9/148 and 149; Kashshaf al-Qina' 6/157; Sharh Muntaha al-Iradat 6/226 and 227; Manar as-Sabil 3/330; al-Bayan 12/533 and 534; Rawdat at-Talibin 6/620; an-Najm al-Wahhaj 9/241; Mughni al-Muhtaj 5/517; Nihayat al-Muhtaj 8/25; Tahbir al-Mukhtasar 5/403):
"Al-Najashi was brought to 'Ali, and he had drunk khamr in Ramadan: he inflicted the hadd on him plus twenty lashes, on account of his breaking the fast in Ramadan."hasan hadith; at-Tahawi 2/88
The Shafi'is, in one view, and the Hanbalis, in a possible reading of the words of Imam Ahmad and al-Khiraqi reported by Ibn Qudama, hold that no legally fixed hadd in its own kind is reached for every offense, while it is permissible to exceed the hadd fixed for another kind. On this basis, when the cause of the offense is intercourse, it is permissible to give one hundred lashes less one, so as to remain below the hadd of zina; when its cause is other than intercourse, the least of the hadds is not reached through it (Rawdat at-Talibin 6/620; al-Mughni 9/148).
The Shafi'is, in one view, hold that twenty lashes are not reached through it, for that is the hadd of the slave (al-Bayan 12/533 and 534; Rawdat at-Talibin 6/620; an-Najm al-Wahhaj 9/241; Mughni al-Muhtaj 5/517; Nihayat al-Muhtaj 8/25).
The fuqaha agree that it is permissible for the imam to apply ta'zir through imprisonment, for the purpose sought is deterrence, and that is achieved by it. He may therefore imprison whoever commits an act of disobedience
Al-Mawardi (may Allah have mercy on him) said: they differed on the maximum limit of his banishment and his removal. The apparent position of the school of ash-Shafi'i is that the maximum is set below the year, even if by a single day, so that it does not become equal to the year-long banishment for zina; and the apparent position of the school of Malik is that it is permissible to exceed the year in it, by whatever he sees of the causes of reform (al-Hawi al-Kabir 13/425; Tabyin al-Haqa'iq 3/174; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/370; Majmu' al-Fatawa 15/313).
The fuqaha differed on the ruling of ta'zir by taking money: is it permissible or not?
The majority of the fuqaha, the Hanafis according to the sound view among them, the Malikis, the Shafi'is within the school and the Hanbalis within the school, hold that ta'zir by taking money is not permissible.
The Hanafis say within the school: ta'zir by taking money is not permissible.
It is reported from Abu Yusuf that ta'zir by the authority through taking money is permissible: if the judge or the governor sees it, it is valid. Among its instances is the man who does not attend the congregational prayer: his ta'zir by taking money is permissible.
The meaning of ta'zir by taking money, according to those who uphold it, is withholding part of his wealth from him for a period so that he refrains, and then the ruler returns it to him; not that the ruler takes it for himself or for the treasury, as the unjust rulers imagine, for it is not permissible for any Muslim to take the wealth of anyone without a legal cause.
In al-Mujtaba the manner of this taking is not mentioned, and I am of the view that he take it and hold it; if he despairs of his repentance, he spends it on whatever he sees fit.
And in Sharh al-Athar: ta'zir by taking money existed at the beginning of Islam, then it was abrogated. End of quote.
The upshot is that the school concludes to the absence of ta'zir by taking money (Sharh Fath al-Qadir 5/345; al-'Inaya 7/302; al-Bahr al-Ra'iq 5/44; Hashiyat Ibn Abidin 4/61).
Al-Dusuqi the Maliki (may Allah have mercy on him) said: ta'zir by taking money is not permissible, by consensus. What is reported from Imam Abu Yusuf, the companion of Abu Hanifa, that he allowed the ruler ta'zir by taking money, means, as al-Bazzazi of the imams of the Hanafis said, that he hold the money with him for a period so that he refrains, then return it to him; not that he take it for himself or for the treasury, as the unjust rulers imagine, for it is not permissible to take the wealth of a Muslim without a legal cause, that is, like a sale or a gift (Hashiyat al-Dusuqi 6/370 and 371; al-Fawakih ad-Dawani 2/213; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 10/363).
And it appears in the gloss of al-'Umayra: it is not permissible, according to the later view, to apply ta'zir by taking money (Hashiyat al-'Umayra 4/505).
The Hanbalis say within the school: ta'zir by taking money or destroying it is forbidden, for the Law did not come with any of that from anyone who is to be followed, and because what is required of him is his discipline, and discipline does not come about through destruction (al-Mughni 9/149; Sharh Muntaha al-Iradat 6/228; Matalib Uli an-Nuha 6/224; Manar as-Sabil 3/330).
Imam Abu Yusuf of the Hanafis, as has preceded, the Shafi'is according to the earlier view, and the Hanbalis in one view, which is the choice of the shaykh of Islam Ibn Taymiyya and of Ibn al-Qayyim, hold that ta'zir by taking money is permissible.
Imam 'Ali ibn Khalil at-Trabulusi the Hanafi (may Allah have mercy on him) said: (Issue): ta'zir by taking money is permissible, and it is the school of Abu Yusuf; Malik said it as well. Whoever claims that financial punishment has been abrogated has erred against the doctrines of the imams, in transmission and in deduction alike, and the claim of its abrogation is no light matter.
The practice of the Rightly-Guided Caliphs and of the senior Companions in it after his death (peace and blessings of Allah be upon him) invalidates the claim of its abrogation. The claimants of abrogation have no sunna and no consensus authenticating their claim, except that one of them say: "the school of our companions does not allow it"; but the school of his companions is, in itself, powerless to ground either acceptance or rejection (Mu'in al-Hukkam, p. 195).
Imam Ibn Farhun al-Ya'muri the Maliki related that the Malikis allow ta'zir by taking money. He said (may Allah have mercy on him): the Malikis upheld ta'zir through money, and they have a detail of which I mentioned a part in the book of hisba. Of that: Malik was asked about adulterated milk: is it to be poured away? He said: no, but I think it should be given in charity if he is the one who adulterated it. He said the same of adulterated saffron and musk, whether little or much. Ibn al-Qasim differed with him regarding the large quantity and said: the musk and saffron are sold to someone who will not adulterate with them, and the price is given in charity, as a discipline for the adulterator (Tabsirat al-Hukkam 2/221).
Imam al-Damiri the Shafi'i (may Allah have mercy on him) said: according to the earlier view, ta'zir by taking money is permissible (an-Najm al-Wahhaj 9/240).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: ta'zir through money is lawful, by destruction and by seizure, and it runs on the principle of Ahmad, for his companions did not differ that the punishments in wealth are not all abrogated. As for the words of Shaykh Abu Muhammad al-Maqdisi, "it is not permissible to take the wealth of the punished person", they alluded to what the unjust rulers do (al-Fatawa al-Kubra 4/601; Kashshaf al-Qina' 6/159).
Among the evidence of those who permit ta'zir through money is the saying of the Prophet (peace and blessings of Allah be upon him):
"For every pasturing herd of camels, at forty, a bint labun; camels are not to be separated from their reckoning. Whoever gives it seeking reward (Ibn al-'Ala, the transmitter of the hadith, said: seeking reward by it) has its reward; whoever withholds it, we shall take it and half his wealth, by a firm decree of the firm decrees of our Lord, the Mighty, the Exalted: nothing of it belongs to the family of Muhammad."hasan hadith; Abu Dawud 1575 and others
The hafiz Shams ad-Din Ibn al-Qayyim (may Allah have mercy on him) said in his gloss on the Sunan of Abu Dawud: his saying "we shall take it and half his wealth": most of the scholars hold that fraud in the zakat and in the spoils does not entail a monetary compensation, and they said: this was at the beginning of Islam, then it was abrogated.
Ash-Shafi'i argued for its abrogation with the hadith of al-Bara' ibn 'Azib concerning what his she-camel damaged: nothing is transmitted from the Prophet (peace and blessings of Allah be upon him) that he doubled the indemnity; only his ruling of liability was transmitted concerning it.
Some said: this is likely on the footing of a threat, so that the perpetrator of that may desist.
Some said: "the right is exacted from him without anything being left with him, even if half his wealth perishes; like a man who had a thousand sheep which perished until only twenty remained: ten sheep are taken from him for the zakat of the thousand, which is a portion of his remaining wealth, or half of it." This is far-fetched, for he did not say: we shall take half his wealth.
Ibrahim al-Harbi said: "it is only: and half of his wealth": his wealth is made into two halves, and the zakat collector chooses between them and takes the zakat from the better of the two halves, as a punishment for his withholding the zakat; as for what is not due on him, no.
Al-Khattabi said: I do not know this interpretation. This is the end of his words.
Al-Awza'i, Imam Ahmad and Ishaq ibn Rahawayh held by the literal wording of the hadith, according to what has been transmitted in detail from them. Ash-Shafi'i said, according to the earlier view: whoever withholds the zakat of his wealth, it is taken from him and half his wealth is taken as a punishment for his withholding, and he argued by this hadith. He said, according to the later view: nothing is taken from him but the zakat, nothing else, and he held this hadith abrogated, saying: that was at the time when the punishments fell on wealth, then they were abrogated. This is the end of his words.
Whoever says that Bahz ibn Hakim is trustworthy needs to excuse this hadith by what has preceded; as for whoever says that no argument is based on his hadith, he needs nothing of that. Ash-Shafi'i said of Bahz: "he is not a proof." It may be that this became apparent to him concerning him after his excusing of the hadith, or that he answered it on the assumption of its authenticity. Abu Hatim ar-Razi said of Bahz ibn Hakim: he is a shaykh whose hadith is written down but not argued with. Al-Busti said: he used to err a great deal.
As for Imam Ahmad and Ishaq, they both argue with him and transmit from him. A group of our imams abandoned him. Were it not for his hadith "we shall take it and half his wealth, by a firm decree of the firm decrees of our Lord", we would have counted him among the trustworthy; he is one concerning whom Allah was consulted, and He made his transmission of this hadith a barrier to counting him among the trustworthy. This is the end of his words.
'Ali ibn al-Madini said: the hadith of Bahz ibn Hakim, from his father, from his grandfather, is sound.
Imam Ahmad said: Bahz ibn Hakim, from his father, from his grandfather, is sound, and whoever rejects this hadith has no argument; the claim of its abrogation is a false claim, for it claims what has no proof.
Several hadiths of the Prophet (peace and blessings of Allah be upon him) establish the legality of financial punishments whose abrogation is not established by proof, and the caliphs acted by them after him. As for opposing it with the hadith of al-Bara' in the story of his she-camel, it is of the utmost weakness: the punishment is only valid if the one punished has transgressed by withholding an obligation or by committing a prohibition; as for what arises from other than his offense and his intention, no one permits his punishment for it.
The statement of whoever carries it upon the footing of a threat rather than a reality is of the utmost corruption; the speech of the Prophet (peace and blessings of Allah be upon him) is above the like of it. And the statement of whoever carries it upon taking the remaining half after the loss is void, for its great strangeness and its distance from the meaning of the speech, and because of his saying: "we shall take it and half his wealth." And al-Harbi's statement, "it is only washatrun, on the pattern of shughl", is of the utmost corruption, and no one among the people of hadith knows it; rather it is a misreading. As for the statement of Ibn Hibban: "were it not for this hadith of his"
The Hanbalis say: it is forbidden to apply ta'zir by shaving off his beard, because of the mutilation it involves (al-Insaf 10/248; Kashshaf al-Qina' 6/159; Sharh Muntaha al-Iradat 6/228).
This is what the words of the Hanafis and the Malikis imply, though I have not come across an explicit statement from them.
The generality of the fuqaha have stated that if a person commits an act of disobedience toward Allah the Most High and then comes to Allah in repentance, he is not punished, based on what Ibn Mas'ud (may Allah be pleased with him) related:
"A man took a kiss from a woman. He came to the Prophet (peace and blessings of Allah be upon him) and informed him, and Allah sent down: 'And establish the prayer at the two ends of the day and in the early portions of the night: the good deeds drive away the bad deeds' (Surah Hud 114). The man said: O Messenger of Allah, is it for me? He said: for the whole of my community, all of them."al-Bukhari 503; Muslim 2763
And in a version of Muslim:
"A man came to the Prophet (peace and blessings of Allah be upon him) and mentioned that he had taken from a woman either a kiss, or a touch with the hand, or something short of the indecency."Muslim 2763
What is meant by the touch is intercourse, and its meaning is: I enjoyed her by the kiss, the embrace and the other kinds of enjoyment apart from intercourse (Sharh Sahih Muslim 17/80).
'Aisha (may Allah be pleased with her) related:
"A man came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: I am consumed. The Messenger of Allah (peace and blessings of Allah be upon him) said: why? He said: I had relations with my wife during the day of Ramadan. He said: give sadaqa, give sadaqa. He said: I have nothing. He ordered him then to sit, and there were brought to him two palm-fiber baskets containing food, and the Messenger of Allah (peace and blessings of Allah be upon him) ordered him to give it as sadaqa."Muslim 1112
Imam al-Bukhari (may Allah have mercy on him) said: chapter of whoever commits a sin below the hadd and informs the imam: no punishment upon him after repentance when he comes seeking a ruling. 'Ata' said: the Prophet (peace and blessings of Allah be upon him) did not punish him. Ibn Jurayj said: nor did he punish the one who had intercourse in Ramadan, and 'Umar did not punish the man of the gazelle; and there is concerning it, from Abu 'Uthman, from Ibn Mas'ud, from the Prophet (peace and blessings of Allah be upon him) (Sahih al-Bukhari 6/2500).
Imam Ibn Batal (may Allah have mercy on him) said: the scholars are agreed that whoever commits a sin in which there is a hadd, repentance does not lift it, and it is not permissible for the imam to pardon him once it reaches him; and among repentance, according to them, is that he purify himself and expiate through the hadd, except for ash-Shafi'i: Ibn al-Mundhir reported from him that he said: if he repents before the hadd is carried out upon him, it falls from him.
As for whoever commits a sin below the hadd and then comes in repentance, his repentance causes the punishment to fall from him, and the ruler has no right to object; rather he strengthens his insight into repentance and commands him to it, so that this spreads and the sinner repents. Do you not see that when the Prophet (peace and blessings of Allah be upon him) understood, from the man who had relations with his wife in Ramadan, his regret over his deed, from his frightened appearance and his saying "I am consumed", the Prophet (peace and blessings of Allah be upon him) neither punished him nor reproached him, but gave him the means of expiation. As for the hadith of Abu 'Uthman from Ibn Mas'ud, which al-Bukhari alluded to without mentioning, it is the clearest thing in this chapter (Sharh Sahih al-Bukhari 8/442).
Imam Badr ad-Din al-'Ayni (may Allah have mercy on him) said: and no punishment upon him after repentance, meaning: what he committed of sins that have no hadd falls from him, and the imam has no right to object to him; rather he strengthens his insight into repentance and commands him to it, so that this spreads and the sinner repents ('Umdat al-Qari 23/296).
This is when the act of disobedience concerns the rights of Allah; as for the rights of a human being, it is not permissible except through the waiver of the one holding the right.
The Malikis say: ta'zir devoted exclusively to the right of Allah the Most High falls from the one who deserves it if he comes in repentance, unlike ta'zir for the right of a human being, which does not fall through that unless the holder of the right pardons him (al-Sharh al-Kabir with the commentary of al-Dusuqi 6/370).
The Hanbalis say: it is for the imam to carry out ta'zir when he sees it, and to leave it if the man comes repentant and confessing, showing regret and desistance, based on what Ibn Mas'ud (may Allah be pleased with him) related:
"A man came to the Prophet (peace and blessings of Allah be upon him) and said: I met a woman and obtained from her what falls short of having relations with her. He said: have you prayed with us? He said: yes. He recited to him then: 'the good deeds drive away the bad deeds' (Surah Hud 114)."al-Bukhari 526; Muslim 2763
And if it concerns the right of a human being who demands it, he is bound to answer him, and it does not fall except through the pardon of the holder of the right (Kashshaf al-Qina' 6/158; Manar as-Sabil 3/329).
The hadd is only due from one who drinks it knowing that a large quantity of it intoxicates; anyone else has no hadd upon him, for he does not know of its prohibition and does not intend disobedience by it: he resembles one to whom a woman other than his wife was presented. Ibn Qudama (may Allah have mercy on him) said: and this is the saying of the generality of the people of knowledge (al-Mughni 9/138; see also al-Insaf 10/231; Kashshaf al-Qina' 6/149; Manar as-Sabil 3/325; Mughni al-Muhtaj 5/507; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/366 and 367).
Most of the fuqaha, the Hanafis, Ibn Wahb of the Malikis, the Shafi'is and the Hanbalis, have stated that among the conditions of the hadd being due upon the drinker of khamr is that he know of the prohibition, with a detail among them. If he drinks it and then says: "I did not know it was forbidden", then if he grew up in the lands of the Muslims, his word is not accepted, the hadd is carried out upon him, and he has no excuse in this.
But if he was a disbeliever who converted and then drank khamr, or grew up in the desert and then said: "I did not know it was forbidden", there is no hadd upon him according to them, contrary to the relied-upon view of the school among the Malikis and to one view of the Shafi'is. The detail of that is what follows:
The Hanafis say: it is required that the drinker of khamr know of the prohibition, in actuality or by legal presumption through his being in our land by having grown up in it. If the harbi, a subject of the land of war, converts and comes to the land of Islam and then drinks khamr before knowing that it is forbidden to him, he is not given the hadd; but if he commits zina or steals, he is taken with the hadd and is not excused by his saying: "I did not know."
As for the one born in the land of Islam, if he drinks khamr when of age, the hadd is upon him and he is not believed that he did not know (Hashiyat Ibn Abidin 4/39).
The Shafi'is say: if his conversion is recent and he says: "I was unaware of its prohibition", he is not given the hadd, for that may be hidden from him, and the hadds are averted by doubts; this is evident regarding other than the one who grew up in the lands of Islam.
As for the one who grew up in the lands of Islam, mixed with the Muslims, converted and then claimed after that not to know that it is forbidden to the Muslims, there are two views in the school:
The first: his word is not accepted, for the apparent assumption is that he knows of its prohibition to the Muslims; it is the view of al-Adhra'i, chosen by al-Damiri, Ibn Hajar, ar-Ramli and others.
The second: there is no hadd upon him and his word is accepted; it was chosen by al-Khatib ash-Shirbini, who said: the apparent meaning of the words of the companions of the school is the unqualified formulation, and that is the evident one (Mughni al-Muhtaj 5/508; an-Najm al-Wahhaj 9/225; Tuhfat al-Muhtaj 11/95; Nihayat al-Muhtaj 8/14).
The Hanbalis say: whoever drinks khamr not knowing of its prohibition likewise has no hadd upon him, for 'Umar and 'Uthman (may Allah be pleased with them both) said: "no hadd except upon one who knows"; and because he does not know of the prohibition, he resembles one who did not know that it was khamr. If he claims ignorance of its prohibition, we examine: if he grew up in a town of Islam among the Muslims, his claim is not accepted, for this scarcely escapes the like of him.
The fuqaha of the four schools, the Hanafis, the Malikis, the Shafi'is within the school and the Hanbalis within the school, have stated that if a person is compelled to drink khamr, it is permissible for him to drink it, the hadd is not carried out upon him and no sin is upon him, whether he was compelled by threat and beating, or forced to drink it by his mouth being opened for it to be poured into him, because of the saying of the Prophet (peace and blessings of Allah be upon him):
"Allah has overlooked for my community error, forgetfulness and what they are compelled to."sound hadith; cited earlier
The Shafi'is, in one view, and the Hanbalis, in one transmission, hold that the hadd is due upon him (an-Najm al-Wahhaj 9/225; Tuhfat al-Muhtaj 11/94; Nihayat al-Muhtaj 8/14; Mughni al-Muhtaj 5/507; al-Insaf 10/230 and 231).
The fuqaha of the four schools, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, are agreed that whoever is driven by necessity to drink khamr in order to push down a choking, if he finds no liquid other than it, may do so, because Allah the Most High said in the verse of prohibition: "whoever is compelled, without being rebellious or transgressing, no sin is upon him" (Surah al-Baqara 5); and because removing the choking with khamr is obligatory if he fears destruction for himself and finds nothing else, for it preserves the keeping alive of souls.
Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that whoever chokes on a morsel, fears death and finds nothing to push it down with except khamr, it is permissible for him to push it down with it (al-Ifsah 2/295).
The fuqaha have differed, however: is it permissible to drink it for lethal thirst or for hunger, or not? With a detail among them.
The Hanafis, and the Shafi'is in one view, hold that it is permissible for him to drink khamr on account of lethal thirst (Hashiyat Ibn Abidin 4/39).
The majority of the fuqaha, the Malikis, the Shafi'is and the Hanbalis, with a detail among them, hold that it is not permissible to drink khamr for thirst or hunger.
The Malikis say: it is not permissible to drink khamr out of fear of death from hunger or thirst. Drinking khamr was only permitted in order to push down a choking, and it was not permitted out of fear of death from hunger or thirst, because the choking is removed by khamr, with certainty or strong presumption, unlike hunger and thirst: these two are not removed by it, rather they increase, because of the heat and the digestion in its nature.
In one view chosen by Ibn al-'Arabi and others, it is permissible to drink khamr for thirst and hunger if it repels from him the hunger and the thirst, for it brings an alleviation of that on the whole, even if for a moment (at-Taj wa al-Iklil 5/369; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/368; Tahbir al-Mukhtasar 5/401).
The Shafi'is say, in the sounder view: it is not permissible to drink khamr for thirst or for hunger as long as the matter does not reach destruction through it, because of the generality of the prohibition and because part of it calls to part; if the matter does reach destruction, partaking of it becomes obligatory, like partaking of carrion for the one under necessity, and there is no hadd upon him in either case.
And in a view opposite the sounder one: it is permissible to drink it for hunger and thirst, just as drinking urine and blood is permissible for that, and just as one is treated with impure substances, like the flesh of the snake, the crab and the paste in which there is khamr (Rawdat at-Talibin 6/613 and 614; an-Najm al-Wahhaj 9/227; Mughni al-Muhtaj 5/509; Tuhfat al-Muhtaj 11/97 and 98; Nihayat al-Muhtaj 8/16).
The Hanbalis say: if he drinks khamr for thirst, then if it is mixed with something that quenches thirst, it is permitted for repelling it at the point of necessity, just as carrion is permitted at famine, and just as it is permitted for pushing down the choking, because of what is in the hadith of 'Abd Allah ibn Hudhafa:
"The Byzantines took him captive, and their tyrant imprisoned him in a room in which there was water mixed with khamr and roast pork flesh, for him to eat it and drink the khamr; he left him three days and he did not do it. They then brought him out when they feared his death, and he said: by Allah, Allah had indeed made it lawful for me, for I was under necessity; but I was not going to let you gloat over the religion of Islam."cited in al-Mughni 9/137 and 138
And if he drinks it pure, or mixed with a small amount that does not quench thirst, or drinks it for treatment, that is not permitted him and the hadd is upon him (al-Mughni 9/137 and 138; Kashshaf al-Qina' 6/149; Sharh Muntaha al-Iradat 6/217).
The shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: likewise, khamr is permitted for pushing down the choking, by agreement, and is permitted for repelling thirst in one of the two sayings of the scholars; whoever does not permit it says: "it does not repel thirst", and this is the starting point of Ahmad. The matter therefore rests on its repelling thirst: if he knows that it repels it, it is permitted beyond doubt, just as the flesh of pork is permitted for repelling famine; and the necessity of the thirst that he sees will destroy him is greater than the necessity of hunger; for this reason drinking impurities at thirst is permitted without dispute; if the thirst is repelled, well and good, otherwise there is no permission in any of that (Majmu' al-Fatawa 14/471).
His claim is not accepted regarding it. If, however, he is of recent conversion, or grew up in a desert far from the towns, it is accepted from him, for what he says is possible (al-Mughni 9/138; al-Insaf 10/231; Kashshaf al-Qina' 6/149; Sharh Muntaha al-Iradat 6/220; Manar as-Sabil 3/325).
The Malikis say: whoever drinks khamr among those who do not know of its prohibition, like the non-Arab who entered the land of Islam knowing nothing, or who, being a bedouin, has not read the Book and does not know it, and whose like is ignorant of that: the hadd is not lifted from him on that account, for Islam has spread, and no one is ignorant of any of its limits (at-Taj wa al-Iklil 5/367; Sharh Mukhtasar Khalil 8/108; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/367; Tahbir al-Mukhtasar 5/399 and 400; Manh al-Jalil 9/350; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 10/353).
The fuqaha of the Malikis, the Shafi'is and the Hanbalis, and it is what the words of the Hanafis imply, have stated that whoever knows that khamr is forbidden but is ignorant that the hadd is due for drinking it is flogged, for if he knows of its prohibition, what is incumbent upon him is to refrain from it (at-Taj wa al-Iklil 5/367; Sharh Mukhtasar Khalil 8/108; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/367; Tahbir al-Mukhtasar 5/399 and 400; Manh al-Jalil 9/350; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 10/353; an-Najm al-Wahhaj 9/226; Tuhfat al-Muhtaj 11/95; Nihayat al-Muhtaj 8/14; Mughni al-Muhtaj 5/508; Sharh Muntaha al-Iradat 6/219).
The people of knowledge are agreed that whoever confesses upon himself twice before the imam that he drank intoxicating khamr and does not retract his confession has the hadd carried out upon him by virtue of his confession; if he retracts, it is accepted from him and the hadd is not carried out upon him.
Imam Ibn Hazm (may Allah have mercy on him) said: they agreed that if he confesses twice, as we said regarding his confession of zina, it is established that he is flogged (Maratib al-Ijma', p. 133).
They have differed: is it accepted if he confesses once, or not?
The generality of the people of knowledge, contrary to Abu Yusuf, hold that a single confession suffices. Ibn Qudama (may Allah have mercy on him) said: it is in the view of the generality of the people of knowledge, for it is a hadd that does not involve destruction, so it resembles the hadd of qadhf; and if he retracts his confession, his retraction is accepted, for it is a hadd of the right of Allah, glorified be He, so his retraction in it is accepted like the rest of the hadds; and the presence of a smell is not required together with the confession.
It is reported from Abu Hanifa: "no hadd upon him unless a smell is found"; and this does not hold, for it is one of the two proofs of drinking, so the presence of the smell is not required with it, like testimony; because he may confess after the smell has departed from him; and because it is a confession of a hadd, so it suffices, like the rest of the hadds (al-Mughni 9/138; al-Hidaya 2/111; Sharh Fath al-Qadir 5/312; al-Jawhara an-Nira 5/353; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/368; Tahbir al-Mukhtasar 5/400; an-Najm al-Wahhaj 9/232; Mughni al-Muhtaj 5/511).
In our question, what does not intoxicate is not called intoxicant, so there was no need to mention its type; nor does the testimony require mentioning the absence of compulsion, or mentioning that he knew it intoxicates, for the apparent assumption is choice and knowledge, and anything besides those two is rare and far-fetched, so there was no need to state it. Hence that was not considered in any of the testimonies: 'Uthman did not consider it in the testimony against al-Walid ibn 'Uqba, nor did 'Umar in the testimony against Qudama ibn Maz'un, nor in the testimony against al-Mughira ibn Shu'ba; and if the two of them had testified to a manumission or a divorce, mention of choice would not have been required; likewise here (al-Mughni 9/139; al-Hidaya 2/111; Sharh Fath al-Qadir 5/312; al-Jawhara an-Nira 5/353; Sharh Mukhtasar Khalil 8/109; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/368; Tahbir al-Mukhtasar 5/400; an-Najm al-Wahhaj 9/232; Mughni al-Muhtaj 5/511).
The fuqaha have differed on the hadd for drinking khamr: is it established by the presence of the smell of khamr on his mouth, or not established?
The Malikis, and Imam Ahmad in one transmission, hold that if two witnesses testify that the smell of his mouth is khamr, he is flogged; likewise he is flogged if two upright witnesses testify that the smell of his mouth is the smell of an intoxicant, and two other upright witnesses testify that it is not the smell of an intoxicant, for the affirming testimony is given precedence over the negating one, and this testimony is affirming.
This is based on what Imam Malik related from Ibn Shihab from as-Sa'ib ibn Yazid:
"'Umar ibn al-Khattab went out to them and said: I have found on so-and-so the smell of a drink; he claims that it is tila drink. I shall ask about what he drank: if it intoxicates, I shall flog him." And 'Umar flogged him the full hadd.sound chain; related by Malik in al-Muwatta 1532 and by an-Nasa'i 5708
And the smell indicates his drinking of it, so it runs like the confession in that regard (al-Istidhkar 8/3 and 4; Sharh Mukhtasar Khalil 8/109; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/368; Tahbir al-Mukhtasar 5/400).
The majority of the fuqaha, the Hanafis, the Shafi'is, the Hanbalis within the school and others, hold that the hadd for drinking khamr is not established by the presence of the smell of khamr on his mouth, because of the saying of Allah the Most High: "do not pursue what you have no knowledge of" (Surah al-Isra 34); and he has no verified knowledge through the smell, so it is not permissible to judge by it.
Because it is possible that he rinsed his mouth with khamr and then spat it out without drinking it, so its smell found on his mouth does not prove his drinking of it; because he may have been compelled to drink it; because the smell of khamr is shared, and the like of it may occur in the rind of the jujubes and in some fruits, so no conclusion is drawn by it concerning this; and because the smell of khamr is sometimes found in many permitted drinks, like apple drink, quince drink and fruit syrups, it is therefore not permissible to conclude by the smell concerning it when it has been seen, for the sighting of its very body removes from it the suspicions of resemblance; in this there is a proof and a distinction.
When that is possible, the hadd, which is averted by doubts, is not due; and the hadith of 'Umar is a proof for us, for he did not flog him on the strength of the presence of the smell, and had that been due, 'Umar (may Allah be pleased with him) would have hastened to it (Bada'i' as-Sana'i' 5/113; al-Hawi al-Kabir 13/409; Mughni al-Muhtaj 5/511; al-Mughni 9/138 and 139; Sharh Muntaha al-Iradat 6/219; Kashshaf al-Qina' 6/151).
The fuqaha have differed on the one found drunk or vomiting khamr: is the hadd carried out upon him, or not?
The Malikis and the Hanbalis within the school hold that whoever is found drunk or vomiting khamr is flogged, likewise if a single upright witness testifies that he drank it and another that he vomited it, based on what Muslim related from Hudayn ibn al-Mundhir Abu Sasan:
"I witnessed the scene with 'Uthman ibn 'Affan: al-Walid was brought to him, having prayed the dawn as two rak'as and then said: shall I add for you? Two men testified against him, one of them Humran, that he drank khamr, and another testified that he saw him vomiting. 'Uthman said: he did not vomit until he had drunk it. He said: O 'Ali, rise and flog him. 'Ali said: rise, O al-Hasan, and flog him. Al-Hasan said: let whoever took charge of its coolness bear its heat. 'Ali, as it were feeling aggrieved with him, said: O 'Abd Allah ibn Ja'far, rise and flog him. He flogged him while 'Ali counted until he reached forty, then said: withhold. He then said: the Prophet (peace and blessings of Allah be upon him) flogged forty, and Abu Bakr flogged forty, and 'Umar eighty, and each is Sunna, and this is more beloved to me."Muslim 1707
And this took place in the presence of the scholars among the Companions and their leading figures, and it was not disapproved of, so it was a consensus. And it suffices in the testimony against him that he drank it, for he does not vomit it, nor does he become intoxicated from it, until he has drunk it (Sharh Mukhtasar Khalil 8/109; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/368; Tahbir al-Mukhtasar 5/400; al-Mughni 9/139; Sharh Muntaha al-Iradat 6/219; Kashshaf al-Qina' 6/151).
It is possible that drinking it beyond three days, when it has not been boiled, is disliked without being prohibited, for Ahmad did not explicitly declare it prohibited, and he said in one place: "I dislike it." That is because the Prophet, may the peace and blessings of Allah be upon him, would not drink it after three [days]. Abu al-Khattab said: "It is my view that Ahmad's words on this subject apply to a juice which, in the prevalent case, ferments within three days."
Issue: he said: ("The same applies to nabidh.")
He means that nabidh is permissible as long as it has not been boiled and three days have not elapsed. Nabidh is that in which dates, raisins or the like are dropped so that the water becomes sweet and loses its flatness: there is no harm in it as long as it has not been boiled and three days have not passed, based on what we have narrated from Ibn Abbas, and Abu Hurayra said:
"I knew that the Messenger of Allah, may the peace and blessings of Allah be upon him, was fasting, so I watched for his breaking of the fast with a nabidh I had prepared in a gourd. I brought it to him, and it was fizzing. He said: Throw it against this wall, for this is the drink of one who does not believe in Allah and the Last Day."
Authentic hadith, reported by Abu Dawud (3716), al-Nasa'i (5610) and Ibn Majah (3409)
Because when it reaches that point it becomes intoxicating, and everything that intoxicates is prohibited (al-Mughni 9/144, al-Kafi 4/231, Sharh al-Zarkashi 3/150-151, Kashshaf al-Qina' 6/152-153, Manar al-Sabil 3/325-326).