‘Do not curse him, for he loves Allah and His Messenger.’”
He thus forbade cursing this particular man and testified that he loved Allah and His Messenger, even though he had cursed wine-drinkers in general. This is among the strongest arguments that the command to put the wine-drinker to death on the “third” and “fourth” occasions was abrogated, since this man was brought before him three times. The greatest imams have struggled to answer this hadith.
However, abrogating the obligation does not rule out permissibility. It may therefore be argued that he may be put to death if the ruler considers that doing so serves the public interest. For lashes beyond forty, up to eighty, do not constitute a fixed prescribed punishment according to the sounder of the two scholarly views. This is the position of al-Shāfi‘ī and of Ahmad according to one of the two reports from him. Rather, increasing the number beyond forty, up to eighty, is left to the ruler’s judgment: he does so when it serves the public interest, as with other forms of discretionary punishment. The same applies to the manner of beating: a wine-drinker may be flogged with palm stalks, sandals, and the ends of garments, unlike someone guilty of unlawful sexual intercourse or of making an unsubstantiated accusation of it. It may therefore be argued that putting him to death on the fourth occasion falls into this category.
Furthermore, Allah, Glorified is He, said:
“If two groups of believers fight one another, make peace between them. But if one of them transgresses against the other, fight the transgressing group until it returns to Allah’s command. If it returns, make peace between them with justice and act equitably. Indeed, Allah loves those who act equitably. The believers are but brothers, so make peace between your two brothers.”
He thus described them as believers and brothers, and commanded us to make peace between them. When the matter of the Khawārij became widely known throughout the Muslim community, the Companions spoke about them and narrated from