Chapter: The insane man and woman are not stoned. And 'Ali said to 'Umar: Do you not know that the pen is lifted from the insane person until he regains consciousness, from the child until he reaches maturity, and from the sleeper until he wakes up?
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The reciter: "Chapter: The insane man and woman are not stoned".
And 'Ali said to 'Umar (may Allah be pleased with him):.
The Shaykh : So the insane person is not stoned, nor is any hudud punishment carried out against him, because the pen is lifted from him. We are left with the intoxicated person: is the hudud of stoning or any other hudud carried out against him? And is qisas carried out against him? Is qisas a right belonging to the human being or to Allah?
It is a right belonging to the human being, due to the saying of Allah the Exalted:[Al-Baqarah 2:178] So the pardon is made for the human being.
So if this intoxicated person commits intentional murder, is qisas carried out against him? If this intoxicated person commits zina, is the hudud carried out against him?
There is scholarly disagreement on this matter. Some said: The hudud is carried out against him and he is killed by qisas, because the action of the intoxicated person is like the action of the sober person, unlike his words, regarding which there is disagreement, and even regarding the words of the intoxicated person there is disagreement.
And some said: He owes nothing, he owes no qisas, and he only owes the diyah in the case of killing, and he owes no hudud because he is insane. For this reason, the Prophet (peace and blessings be upon him) did not punish his uncle when he said to him: "Are you not but the slaves of my father?" and he did not hold him accountable for anything.
But the argument with this hadith, and the hadith of Hamzah, that the Messenger did not punish him and did not hold him accountable for anything, is that this was before the prohibition of khamr, and its consumption was permissible. But if its consumption is forbidden.
The others answered that there is no effect in whether the word or action is considered regarding the ruling of permissibility or prohibition. The important thing is that the intoxicated person does not know what he is saying, as Allah the Exalted said:[An-Nisa 4:43].
For this reason, we say: The middle opinion in this issue is that if he becomes intoxicated in order to do it, his ruling is the ruling of the sober person. And if he becomes intoxicated not in order to do it, but he did it, his ruling is the ruling of the insane person. So what the insane person guarantees, the intoxicated person guarantees. It is known that the insane person guarantees the rights of human beings, such as if he destroys something or encroaches on something, he guarantees it. This is the middle opinion, and it has a share of consideration, because the one who becomes intoxicated in order to do it has actually intended the action, but he made intoxication a means and a cover. So he is punished with the opposite of his intention. Unlike the one who becomes intoxicated and the action did not occur to his mind, but he did it; his ruling is the ruling of the insane person. The hudud is not carried out against him if he does what entails the hudud, and he guarantees what he destroyed of the rights of human beings, because the right of the human being does not require intention.
And 'Ali said to 'Umar (may Allah be pleased with him):
Do you not know that the pen is lifted from the insane person until he regains consciousness, from the child until he reaches maturity, and from the sleeper until he wakes up?
أما علمت أن القلم رفع عن المجنون حتى يفيق، وعن الصبي حتى يدرك، وعن النائم حتى يستيقظThe Shaykh : So the insane person is not stoned, nor is any hudud punishment carried out against him, because the pen is lifted from him. We are left with the intoxicated person: is the hudud of stoning or any other hudud carried out against him? And is qisas carried out against him? Is qisas a right belonging to the human being or to Allah?
It is a right belonging to the human being, due to the saying of Allah the Exalted:
But whoever overlooks from his brother anything
فمن عفي له من أخيه شيءSo if this intoxicated person commits intentional murder, is qisas carried out against him? If this intoxicated person commits zina, is the hudud carried out against him?
There is scholarly disagreement on this matter. Some said: The hudud is carried out against him and he is killed by qisas, because the action of the intoxicated person is like the action of the sober person, unlike his words, regarding which there is disagreement, and even regarding the words of the intoxicated person there is disagreement.
And some said: He owes nothing, he owes no qisas, and he only owes the diyah in the case of killing, and he owes no hudud because he is insane. For this reason, the Prophet (peace and blessings be upon him) did not punish his uncle when he said to him: "Are you not but the slaves of my father?" and he did not hold him accountable for anything.
But the argument with this hadith, and the hadith of Hamzah, that the Messenger did not punish him and did not hold him accountable for anything, is that this was before the prohibition of khamr, and its consumption was permissible. But if its consumption is forbidden.
The others answered that there is no effect in whether the word or action is considered regarding the ruling of permissibility or prohibition. The important thing is that the intoxicated person does not know what he is saying, as Allah the Exalted said:
do not approach prayer while you are intoxicated until you know what you are saying
لا تقربوا الصلاة وأنتم سكارى حتى تعلموا ما تقولونFor this reason, we say: The middle opinion in this issue is that if he becomes intoxicated in order to do it, his ruling is the ruling of the sober person. And if he becomes intoxicated not in order to do it, but he did it, his ruling is the ruling of the insane person. So what the insane person guarantees, the intoxicated person guarantees. It is known that the insane person guarantees the rights of human beings, such as if he destroys something or encroaches on something, he guarantees it. This is the middle opinion, and it has a share of consideration, because the one who becomes intoxicated in order to do it has actually intended the action, but he made intoxication a means and a cover. So he is punished with the opposite of his intention. Unlike the one who becomes intoxicated and the action did not occur to his mind, but he did it; his ruling is the ruling of the insane person. The hudud is not carried out against him if he does what entails the hudud, and he guarantees what he destroyed of the rights of human beings, because the right of the human being does not require intention.