Islamic Fiqh > Penalties (hudud) > Khamr and discretionary penalties (ta'zir) > The establishment of the proof of wine
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Updated on 27 September 2026 at 3:52 AM
The hadd of the wine drinker only becomes due once proof is established before the judge. The mawsu'a sheets examine the three debated channels: confession, the trace of smell, and witnessed drunkenness or vomiting of wine. They then set who incurs the hadd, the basis of the prohibition in the Book, the Sunna and the consensus, the manner of inflicting the penalty and its disputed quantum.
The scholars agree that whoever confesses twice before the imam that he drank intoxicating wine, and does not retract his confession, undergoes the hadd on account of it; if he retracts, his retraction is accepted and no hadd is inflicted on him. Imam Ibn Hazm reported their agreement: if he confesses twice, as was said regarding the confession of zina, it is established that the hadd is inflicted on him.
They differed over a single confession: is it accepted or not? Most scholars, against Abu Yusuf, hold that a single confession suffices. Ibn Qudama explains: it is a hadd that does not involve the destruction of property, so it resembles the hadd of qadhf; and if he retracts his confession, his retraction is accepted, because it is a hadd of Allah, like the other hudud; the presence of a smell is not taken into account alongside the confession either.
Abu Hanifa was reported as saying: "no hadd upon him unless a smell is found". This does not hold: confession is one of the two proofs of drinking, so a smell is not required alongside it as testimony is; besides, he may confess after the smell has faded; and it is a confession of a hadd, so one is content with it as with the other hudud.
A preliminary note from the sheet: in our issue only the intoxicant is called muskir; the witness therefore need not specify its kind, nor mention the absence of coercion or the drinker's knowledge that it intoxicates, because the presumption is choice and knowledge, and whatever goes beyond them is rare and remote. None of this was taken into account in the attestations: not by Uthman in the testimony against al-Walid ibn Uqba, not by Umar in the testimony against Qudama ibn Maz'un, nor in that against al-Mughira ibn Shu'ba; had they testified to a manumission or a divorce, the mention of choice would not have been required either.
The jurists differed: is the hadd of drinking established by the trace of the smell of wine on his mouth? The Malikis and Imam Ahmad in one narration affirm it: if two witnesses testify that his mouth smells of wine, the hadd is inflicted on him; likewise if two trustworthy witnesses testify to a smell of intoxicant and two others testify that it is not the smell of an intoxicant, because the testimony that establishes prevails over the one that negates, and this one is a testimony that establishes.
They rely on what Imam Malik reported from Ibn Shihab, from al-Sa'ib ibn Yazid, who informed:
Umar ibn al-Khattab came out to them and said: I have smelled on so-and-so the smell of drink; he claimed it was tila (cooked grape juice); I shall inquire about what he drank: if it intoxicates, I shall flog him; Umar then flogged him the full hadd.
reported by Malik in the Muwatta (1532) and an-Nasa'i (5708), with an authentic chain
For the smell indicates drinking: it therefore follows the same course as the confession.
The majority of jurists, the Hanafis, Shafi'is and Hanbalis according to the madhhab, deny that the hadd is established by the smell alone, by the word of Allah:
And do not pursue that of which you have no knowledge.
Surah al-Isra 34
The smell yields no verified knowledge, so no judgment is passed by it. Moreover he may have rinsed his mouth with wine and spat it out without drinking it; he may have been coerced into drinking it; the smell of wine is shared: its like may be found in eating nabq or some fruits, and it occurs in many lawful drinks such as apple juice, quince juice or fruit syrups, whereas seeing the very body of the thing removes the doubts of attribution, which the smell does not. Once the doubt is possible, the hadd, which is averted by doubts, does not become due. The report of Umar is an argument for the majority instead: he did not subject him to the hadd on the mere presence of the smell, and had it been due, Umar would have hastened to it.
The jurists differed over the one found drunk or vomiting wine: is the hadd inflicted on him? The Malikis and the Hanbalis according to the madhhab inflict it, likewise if one trustworthy witness testifies that he drank it and another that he vomited it. They rely on what Muslim reported from Hudhayn ibn al-Mundhir, Abu Sasan:
I testified before Uthman ibn Affan when al-Walid was brought to him, having prayed two raka at dawn and then said: shall I add more for you? Two men testified against him, one of them, red-skinned, that he had drunk wine, and another that he had seen him vomit it. Uthman said: he did not vomit until he had drunk it. Then he said: Ali, get up and flog him. Ali said: get up, Hasan, and flog him. Hasan said: let the one who took charge of its freshness take charge of its burning heat; and it seemed he had felt the whip himself. He said: Abdullah ibn Ja'far, get up and flog him. Abdullah flogged him while Ali counted, up to forty. He said: stop. Then he said: the Prophet flogged forty, Abu Bakr forty, Umar eighty; each of these deeds is a sunna, and this is dearer to me.
reported by Muslim (1707)
The affair took place before a circle of learned and leading Companions and no one disapproved of it: it was therefore a consensus. Moreover it suffices, in the testimony, to attest that he drank it: one does not vomit it and does not get drunk on it without drinking.
A preliminary point from the sheet: the Hanafis, Shafi'is and Hanbalis in the second narration hold that no hadd is inflicted on the one found drunk, because of the suspicion that he may have been coerced or did not know that it intoxicates; and the hadd is averted by doubts.
The jurists differed over how to strike the offender for wine: is he beaten with the hands, the shoes and the edges of garments, or is he flogged? The Shafi'is according to the madhhab and some Hanbalis hold for the hands, the shoes and the edges of garments, by what Abu Hurayra reported:
A man who had drunk was brought to the Messenger of Allah. The Messenger of Allah said: flog him. Among us were those who beat with the hand, those who beat with the shoe and those who beat with the garment. When he left, some said: may Allah disgrace you! The Messenger of Allah said: do not say that; do not help the devil against him; rather say: may Allah have mercy on you.
reported by al-Bukhari (3695), Abu Dawud (4476), Ahmad (7973) and Ibn Hibban (5730)
For the hadd of wine, lighter than the others in number, must be lighter than them in manner.
The majority of jurists, the Hanafis, Malikis, Shafi'is in another wording and Hanbalis according to the madhhab, hold for the whip: the Prophet said: "if he has drunk wine, flog him", and from the unqualified "strike" only the whip is understood; he ordered his flogging as Allah ordered the flogging of the zani, so it proceeds like it, with the whip; and the rightly guided caliphs struck with whips, as did others after them: it was therefore a consensus. The hadith of Abu Hurayra belongs to the beginning of the affair; then the Prophet flogged and matters settled: it is authenticated that the Prophet flogged forty, Abu Bakr forty, Umar eighty, and that Ali flogged al-Walid ibn Uqba with forty. In the report of the flogging of Qudama when he drank, Umar said: bring me a whip; Aslam, his freedman, brought him a fine small whip; Umar took it, rubbed it with his hand, then said to Aslam: I shall teach you a lesson: you invoked his kinship with your family; bring me another whip; he brought him a full one, and Umar ordered that Qudama be flogged.
Ibn Qudama concludes: the whip must be middling, neither new so as to wound, nor worn out so as to remove the pain, by what was reported: a man confessed zina before the Messenger of Allah; he asked for a whip to be brought; a broken one was brought and he said: above this one; a new one whose tip had never been broken was brought and he said: between these two. Malik reported it from Zayd ibn Aslam in mursal form, and it was reported from Abu Hurayra in musnad form. Ali was reported as saying: "a striking between two strikings and a whip between two whips". The strike must therefore be middling: neither so violent as to kill, nor so weak as to fail to deter; neither exalted out of measure nor abased to the point of causing no pain.
The scholars agree that whoever has drunk wine, being a Muslim, sane, adult and acting by his own choice, incurs the hadd, whether he drank little or much, whether he became drunk or not, by the word of the Prophet:
Whoever has drunk wine, flog him; if he drinks again, flog him; if he drinks again, flog him; then if he drinks again, kill him.
reported by Abu Dawud (4484), at-Tirmidhi (1444) and an-Nasa'i (5661), authentic hadith
Al-Nawawi reported the Muslims' agreement on the prohibition of drinking, on the obligation of the hadd for little or much, and on the fact that the drinker is not put to death even if he repeats, an agreement reported by at-Tirmidhi and others. Al-Qadi Iyad reported from an aberrant group that they said: he is killed after four floggings, on account of the hadith in question; this statement is null and contrary to the consensus of the Companions and those who followed them, who hold that he is not killed even if he repeats more than four times; and this hadith is abrogated: some scholars said that his words "the blood of a Muslim is lawful only in three cases: the killed for the killer, the married adulteress and the one who abandons his religion and separates from the community" abrogated it.
Ibn Hubayra reported their agreement: wine is forbidden, little and much, and the hadd is inflicted in it. Al-Amrani writes: whoever drinks of it, a Muslim, sane, adult and free in his choice, incurs the hadd, little or much, drunk or not; the killing at the fourth relapse is abrogated, by what Qubaysa ibn Dhu'ayb reported: a man who had drunk wine was brought to the Prophet; he flogged him; he was brought to him a second time having drunk, and he flogged him; a third time, he flogged him; a fourth time having drunk, he flogged him and did not kill him. The hadith is weak, mursal, reported by Abu Dawud (4485), and the community agrees on this. Ibn Abd al-Barr reported their agreement: the little of grape wine carries the hadd like the much, drunkenness not being taken into account. Al-Kasani confirms it by the consensus of the Companions.
Ibn Qudama: the hadd is due on whoever drinks little or much of an intoxicant; no disagreement is known concerning uncooked grape juice; they differed over the rest. Our imam (Ahmad) equalized grape juice and every intoxicant, like al-Hasan, Umar ibn Abd al-Aziz, Qatada, al-Awza'i, Malik and al-Shafi'i; a group of scholars subjects only the drunk man to the hadd, among them Abu Wa'il, al-Nakha'i and many Kufans and partisans of reasoned opinion. Abu Thawr says: whoever drinks believing in its prohibition is flogged; whoever drinks with an interpretation incurs nothing, because the matter is disputed, like marriage without a guardian.
The answer: the hadith "whoever has drunk wine, flog him" covers the little and the much, since every intoxicant is wine; it is a drink of vehement intensity, so the hadd is due for the little as for wine; and the disagreement over a thing does not prevent the hadd when the drinker himself believes in its prohibition, unlike marriage without a guardian and what resembles it among disputed matters. Umar indeed flogged Qudama ibn Maz'un and his companions even though they believed lawful what they had drunk. The sheet finally notes two differences with the other disputed cases, which it details next: here the act leads to what the prohibition is unanimous about, and the Sunna on its prohibition is so abundant that no one is left any excuse to deem it lawful.
Wine is forbidden by the Book, the Sunna and the consensus. As for the Book:
They ask you about wine and gambling. Say: in both lies great sin and profits for people, but their sin is greater than their profit.
Surah al-Baqara 219
Allah informs that in them lie profit and sin, and that the sin is greater than the profit, which indicates the prohibition. Then come the two verses of Surah al-Ma'idah, in which the sheet counts seven proofs:
O you who believe, wine, gambling, stone altars and divining arrows are only a defilement, the work of the devil: avoid it, that you may succeed. The devil only wants to cast enmity and hatred between you through wine and gambling, and to turn you away from the remembrance of Allah and from prayer: will you not then desist?
Surah al-Ma'idah 90-91
Surah al-A'raf adds: "Say: my Lord has only forbidden indecencies, open and hidden, and sin..." (Surah al-A'raf 33), and "the sin" designates wine, as the poet said: "I drank the sin until my mind wandered; such is the sin, it carries off the minds."
As for the Sunna, it counts many, among which nine that the sheet lists:
As for the consensus, the community is unanimous on the prohibition of wine, and a great number of scholars reported it. Ibn al-Mundhir: they agreed on its prohibition. Ibn Hazm: the unanimity covers the little as well as the much. Ibn Abd al-Barr: the verse contains the prohibition of wine, unanimously acknowledged. Ibn al-Arabi: its prohibition was established by the agreement of the imams. Ibn Hubayra: they agreed that wine is forbidden, little and much, that the hadd is inflicted in it, and that whoever deems it lawful is judged an unbeliever. Ibn Juzayy: wine, little and much, is forbidden by consensus, meaning grape juice when it intoxicates; when not intoxicating, it is lawful by consensus; as for the other intoxicating drinks made from raisins, dates, honey, wheat or barley, they are like wine for the two imams and for Ibn Hanbal. Al-Amrani: the Companions and the Muslims after them were unanimous on its prohibition.
The jurists differed over the number of strokes: forty or eighty lashes? The Shafi'is and the Hanbalis in one narration hold forty lashes for the drinker, which may not be reduced; whatever is added up to eighty is a ta'zir left to the imam's judgment, which may also be reduced. They rely on the hadith of Uthman and al-Walid already cited: Ali counted up to forty strokes, then Uthman said: the Prophet flogged forty, Abu Bakr forty, Umar eighty; each of these deeds is a sunna, and this is dearer to me. This proves that the Prophet flogged only forty, as did Abu Bakr and Ali; Umar's increase was a ta'zir left to the imam's judgment, who does as he sees fit in doing it or leaving it: Umar saw it good and did it, whereas the Prophet, Abu Bakr and Ali did not see it and left it. This is al-Shafi'i's statement: the increase belongs to the imam's judgment. The forty constitute the fixed hadd without which one cannot do; had the increase been a hadd, the Prophet and Abu Bakr would not have left it, nor Ali after Umar's deed. That is why Ali said: "each of these deeds is a sunna", meaning: limiting oneself to the hadd of wine is a sunna, and adding the ta'zir to it is a sunna.
By analogy again: drinking is a cause that calls for a hadd; the hadd must therefore be specific to a number that no other cause shares, like zina and qadhf. If it is objected that it should then not have been fixed at forty, like zina and qadhf, the sheet answers: the hudud were fixed at different amounts because of the difference of their causes; comparison between them therefore holds for gradation, but not for identity; the hudud are scaled according to the gravity of the crime: zina, a graver crime because shared, carries a graver hadd; qadhf, which wrongs only one person, is lighter than zina, but its hadd remains higher than that of wine, which wrongs no one but its author and therefore had to be lighter than qadhf. For the free man; for a slave, twenty strokes are due, because it is a hadd that is divided: it is half of the free man's, like the flogging of zina.
Al-Amrani: if the imam judges it good to subject the free man to more than forty, up to eighty, the excess being a ta'zir, or the slave to more than twenty, up to forty, it is permitted, by what Abu Wabra al-Kalbi reported: Khalid ibn al-Walid sent me to Umar, with Uthman, Ali, Abd al-Rahman ibn Awf, Talha and az-Zubayr present. I said: Khalid conveys to you his greetings and says: the people have sunk deep into wine and cheapened its punishment. Umar said: what do you see? Ali said: when he drinks, he becomes drunk; when he becomes drunk, he raves; when he raves, he fabricates lies: let him undergo the hadd of the liar. Umar said: convey to your companion what he said; Khalid flogged eighty and Umar flogged eighty. Umar, when the man hardened in drink was brought to him, flogged him eighty; when the weak man who had slipped once was brought to him, he flogged him forty. The hadith is judged weak, reported by al-Hakim in al-Mustadrak (8131), ad-Daraqutni (3321) and al-Bayhaqi in as-Sunan al-Kubra (17317). Ali's words in this report: "the Messenger of Allah flogged forty, Abu Bakr forty, Umar eighty, and both deeds are sunna, this is dearer to me" mean: limiting oneself to the hadd of wine is sunna, and adding the ta'zir is sunna. If it is objected that the ta'zir cannot reach forty, the sheet answers: it is not permitted to reach forty for a single lapse; in the case of repeated lapses nothing prevents reaching it, and those lapses include raving and lying.
The majority of jurists, the Hanafis, Malikis and Hanbalis according to the madhhab, hold that the hadd of the free man who drank wine knowingly, by his own choice, a Muslim and adult, is eighty lashes, and forty if it is a slave; this is what the consensus of the Companions settled on, and the Prophet's deed did not have the value of fixing the hadd. Anas ibn Malik reported that the Prophet used to flog for wine with palm branches and shoes; then Abu Bakr flogged forty; when Umar saw the people streaming in from the countryside and the villages, he said: what do you think about the flogging of wine? Abd al-Rahman ibn Awf said: I think you should make it the lightest of the hudud, eighty; Umar then flogged eighty (reported by Muslim, 1706, Abu Dawud, 4479, and at-Tirmidhi, 1443). The decision was taken before a circle of Companions who agreed on it: it was a consensus.
The sheet adds the hadith of Abu Wabra and draws from it: the fixing of the hadd of wine at eighty took place in Umar's time with the unanimity of the Companions; they may therefore not be contradicted, for their consensus is preserved from error, just as they agreed on the mushaf of Uthman and set aside others. Among further considerations: it is a hadd that binds the free man, so it is not fixed at forty like qadhf; and the hadd of qadhf is lighter while that of drinking is graver, because of the pull it exerts on souls and the strength of the desire that carries it; if it cannot be increased, it is more fitting not to decrease it; and the increase beyond forty, if it were a ta'zir, could not reach forty, because the ta'zir cannot equal a hadd.
This chapter shows that the penalty for wine, like that of theft, is closed by proof far more than it is opened: a retractable confession, a contested smell, doubts over coercion and over knowledge. The figures forty and eighty divide the schools around the deeds of the Prophet, Abu Bakr, Umar and Ali; the attributions reported here are those of the mawsu'a sheets, to be checked in the cited sources.