Justice Muftī Taqī ʿUthmānī
In the Shariat Appellate Bench of the Supreme Court of Pakistan, the question was examined as to what extent Sections 294-A and 294-B of the Majmūʿah Taʿzīrāt-e-Pākistān (Pakistan Penal Code) conform to or contradict Islamic teachings. According to these sections, government-run “lotteries” have been declared permissible. The detailed judgment authored by Sheikh Muḥammad Taqī ʿUthmānī on this issue is presented here.
I have studied the proposed judgment of my esteemed brother, Justice Shafīʿur-Raḥmān, in this case. I agree with his conclusions to a large extent. However, since the decision of the Honourable Federal Sharīʿat Court requires certain amendments, I deem it necessary to clarify a few fundamental issues related to the matter under discussion.
1.
The primary issue before us is whether Sections 294-A and 294-B of the Majmūʿah Taʿzīrāt-e-Pākistān conform to or violate the injunctions of the Qurʾān and Sunnah. Section 294-A criminalizes opening an office for issuing lottery schemes and prescribes punishment of six months’ imprisonment, a fine, or both. Yet the same section exempts government-issued lotteries from being classified as an offence, and also exempts any lottery permitted by a provincial government.
Section 294-B, on the other hand, states that issuing prize tickets or coupons for the promotion of trade, business, or the sale of any specific commodity, and distributing prizes based on those tickets, constitutes a criminal offence punishable by up to six months’ imprisonment and a fine.
2.
The Honourable Federal Sharīʿat Court, upon the petition of Advocate Sheikh Mushtāq ʿAlī, reviewed Section 294-A, and on its own motion (suo motu) reviewed Section 294-B. The Court held that these two sections do not take the injunctions of the Qurʾān and Sunnah into account, thereby permitting certain matters that are ḥarām and prohibiting other matters that are actually permissible.
The Court concluded that lotteries falling under the definition of qimār must be prohibited not only for the public but also for the government and for those authorized by the government. Conversely, lotteries that are permissible in Sharīʿah should not be criminalized.
3.
The remaining question is: Which types of lotteries are ḥarām on account of being included within qimār, and which types are permissible? The Honourable Federal Sharīʿat Court attempted to clarify this through several examples, but it did not present a comprehensive and definitive definition of qimār—one that could easily determine which forms fall within its scope and which fall outside it.
In our view, a sound and just resolution of the present case is not possible unless the reality and essence of qimār are clearly understood.
In Arabic, “qimār” and “maysir” are synonymous, translated in Urdu as jūʾā and in English as wagering / gambling. The Qurʾānic verses in which maysir has been declared impermissible or ḥarām are the following:
يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِنْ نَّفْعِهِمَا
They ask you about wine and gambling. Say: In both of them is great sin and [some] benefits for people; but their sin is greater than their benefit. (Sūrat al-Baqarah 2:219)
And in Sūrat al-Māʾidah:
يَا أَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنْصَابُ وَالْأَزْلَامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطَانِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ
O you who believe! Indeed, wine, gambling, sacrificial stones, and divining arrows are filth from the work of Shayṭān. So avoid them completely so that you may attain success. (Sūrat al-Māʾidah 5:90)
In both verses, the term used for gambling is maysir, which is synonymous with qimār. Hence, Sayidunā ʿAbdullāh ibn ʿUmar ʳᵃ states: “Al-maysir is al-qimār.”
5.
In addition, Muḥammad ibn Sīrīn, Mujāhid, Saʿīd ibn al-Musayyib, Saʿīd ibn Jubayr, Qatādah, al-Ḥasan al-Baṣrī, Ṭāwūs, ʿAṭāʾ ibn Abī Rabāḥ, as-Suddi, and aḍ-Ḍaḥḥāk have also declared maysir and qimār to be synonymous. (Reference: Tafsīr Ibn Jarīr al-Ṭabarī 2/358, Dār al-Fikr, Beirut, 1405 AH)
The Messenger of Allah ﷺ emphasised abstention from qimār (gambling) to such an extent that not only did he declare engaging in qimār to be ḥarām, but even expressing the intention to play it was deemed sinful. Furthermore, if someone invited another person to qimār, he was instructed to atone for this sin by giving charity.
Thus, it is narrated in Ṣaḥīḥ al-Bukhārī that the Messenger of Allah ﷺ said:
“Whoever says to another: ‘Come, let me gamble with you,’ then he must give charity.” (Ṣaḥīḥ al-Bukhārī)
6.
The reality of qimār among the Arabs was so well-known that every individual understood its meaning. Any transaction in which wealth was placed on an uncertain outcome—where one party might lose their wealth entirely, while the other might gain an equal or greater amount without providing any compensation—was termed qimār. This was also called mukhāṭarah (mutual risk-staking), meaning that both parties would place their wealth at stake.
Sayidunā ʿAbdullāh ibn ʿAbbās ʳᵃ explained maysir in the verse of Sūrat al-Baqarah as follows:
“Maysir refers to qimār. In the Age of Jāhiliyyah, a man would put at stake his wealth and even his family. Whoever defeated the other in qimār would take possession of his opponent’s family and wealth.” (Reference: Tafsīr Ibn Jarīr 2/358)
7.
From this statement of Sayidunā ʿAbdullāh ibn ʿAbbās ʳᵃ, it becomes clear that in the Jāhiliyyah form of qimār, it was not only wealth that was gambled, but at times men would even put their wives at stake. One form of gambling is that which Sūrat al-Māʾidah refers to as “the arrows of gambling.” Its details are as follows:
In the Age of Jāhiliyyah, people would slaughter a camel and divide it into portions—large and small. Each portion was assigned a name and that name was written on an arrow. All the arrows were mixed with a number of blank arrows (those that represented no share of the camel). The arrows were then drawn among the participants—each person receiving one arrow. Whoever received an arrow with a portion written upon it would receive that portion. Whoever received a blank arrow not only received no portion of the camel but was obliged to pay the full price of the camel.
This practice was known in Arabic as istiqsām bi-l-azlām, and the Qurʾān has declared it ḥarām in several verses.
Similarly, gambling existed in horse-racing. Two individuals would race their horses and agree that the loser would pay a sum of money to the winner. The Messenger of Allah ﷺ classified this as qimār and declared it ḥarām. (Reference: Sunan Abī Dāwūd, Kitāb al-Jihād, Bāb fī al-Muḥallil)
8.
Gambling also existed in various games among the Arabs in the form of wagers based on victory or loss. The Qurʾānic verses cited earlier declared all such forms of qimār to be ḥarām.
9.
Keeping these various forms of qimār in view—and its widely recognised and well-established reality—there has never been any difference of opinion within the Ummah regarding the prohibition of qimār, nor has there been any ambiguity concerning its nature. However, when articulating its reality in precise wording, the jurists have formulated various definitions.
The most famous and widely accepted definition among the jurists is:
تعليق التمليك بالخطر و المال من الجانبين
“To make ownership of wealth contingent upon an uncertain event, with wealth being at stake from both sides.”
Sheikh Muftī Muḥammad Shafīʿ ʳʰ has explained this most clearly in his Maʿārif al-Qurʾān. He writes:
“Qimār is defined as a transaction in which the transfer of ownership of wealth is made conditional on an event whose occurrence or non-occurrence is equally possible, and based on which either party may incur total loss or total gain. For example, it is equally possible that the liability may fall on Zayd or on ʿUmar. All forms and manifestations of such arrangements—whether those prevalent in earlier times, those existing today, or those that may emerge in the future—are included within maysir, qimār, and gambling.” (Reference: Maʿārif al-Qurʾān 1/533, under Sūrat al-Baqarah 2:218)
10.
When all the above forms and definitions of qimār (gambling) are considered together, it becomes clear that the necessary ingredients of qimār are the following:
- Qimār is a transaction between two or more parties.
- In this transaction, each party places some of its wealth at stake with the hope of acquiring the wealth of another.
- The acquisition of the other party’s wealth is dependent upon an outcome that is both uncertain and uncontrolled, such that its occurrence and non-occurrence are equally possible.
- In qimār, the wealth placed at stake either goes to the other party without compensation, resulting in a net loss for the one who placed it at risk; or the person gains wealth from the other party without compensation, resulting in a net loss for the opponent.
Any transaction in which these four elements are found is qimār and therefore ḥarām. Although numerous forms of such transactions exist, qimār manifests in two prominent categories.
11.
The first category of qimār is where neither party is under any definite obligation to pay anything. Rather, the obligation of each party depends entirely on an uncertain event.
For example, if A and B compete in a race and agree beforehand that whoever loses will pay the winner a thousand rupees.
12.
In this example, payment by either party is uncertain, as it hinges on the uncertain event of winning or losing. Similarly, wagers based on other uncertain outcomes fall under this category. For instance, Zayd says to ʿUmar: “If X wins the match, I will give you a thousand rupees; but if Y wins, then you must give me a thousand.”
This too is qimār, because payment from each side depends solely on an uncertain condition.
13.
However, for a transaction to fall into this category of qimār, payment must be stipulated from both sides. If the payment is unilateral, it is not qimār. For example, if Zayd says to ʿUmar: “If X wins, I will give you a thousand rupees,” but in the case of X losing, no payment is required from ʿUmar—this is a unilateral condition, not qimār.
14.
The second category of qimār is where one party’s payment is definite and predetermined, while the other side’s payment is uncertain. The party making the definite payment effectively places its wealth at risk in such a way that it may either lose its stake without compensation or gain much more wealth without compensation.
15.
Included in this second category are lotteries, raffles, and similar schemes in which participants must initially pay a sum of money—whether as a fee, as the purchase of tickets, or through some other payment. Thereafter, prizes are distributed based on a draw among the participants.
If one’s name is not selected, the money paid initially is lost without compensation. But if one’s name is drawn, he receives a much larger sum without giving any compensation. This is qimār.
16.
Considering both these categories, if we attempt to define qimār with precise legal wording, it may be expressed as follows:
“Qimār is a contract between two or more parties in which each party places some of its wealth at stake—either through immediate payment or through a promised payment—based on an uncertain event, such that either the staked wealth goes to the other party without compensation, or the other party’s wealth comes to the first party without compensation.”
17.
It must be clearly understood that drawing lots (qurʿah) and qimār are not the same thing. However, in certain situations, drawing lots is used as an instrument for qimār. Therefore, only that drawing of lots will be qimār which fulfils the above definition.
Where the reality of qimār is absent, and drawing lots is used to achieve a legitimate purpose, it cannot be considered qimār. For example, if the government intends to distribute residential plots among homeless persons, but the number of applicants exceeds the available plots, drawing lots to decide distribution is unquestionably permissible, because none of the essential elements of qimār exist here.
18.
Another important point is that an essential element of qimār is that if the uncertain event does not occur, the wealth placed at stake must transfer to the other party without compensation.
Therefore, if compensation is guaranteed in all cases, then it cannot be claimed that the money was staked or put at risk. Since such risk is an inseparable component of qimār, any transaction free of this risk cannot be classified as qimār.
19.
For this reason, the promotional schemes of many merchants—where prizes are distributed through a draw based on coupons or numbers printed inside packages—cannot automatically be classified as qimār. The correct distinction is as follows:
If customers are charged the normal market price for the product—i.e., the same price charged even without the promotional scheme—then such a prize draw is not qimār.
For example, if the standard retail price of a tea box is thirty rupees, and the same box is sold for thirty rupees during the prize promotion, and it is announced that whoever finds a certain numbered coupon inside the box will receive a prize—this is not qimār.
The reason is that the buyer receives full compensation for his thirty rupees in the form of the tea box. If he does not win the prize, he suffers no loss, since he has received the full value of what he paid for.
Since qimār requires that the losing party’s money passes to the other party without compensation, and in this case the buyer has received full compensation, the prize is merely a unilateral gift from the seller. It is not qimār.
Therefore, the ruling of the Federal Sharīʿat Court that treated this arrangement as qimār does not correctly reflect the principles of Sharīʿah.
20.
However, if the price of goods sold under a prize scheme is set higher than the market price, then such a scheme falls into qimār. For example, if a tea box normally sells for thirty rupees, but under a prize scheme the same box is sold for forty, then the extra ten rupees are being placed at stake for the sake of the prize. The buyer can obtain the tea box for the regular market price of thirty rupees; therefore, the additional ten rupees are risked solely in the hope of winning the prize. If he does not win, these ten rupees are lost without compensation. Thus, this scenario meets the definition of qimār, and such a prize scheme—being a form of qimār—is ḥarām.
21.
Now that the definition and reality of qimār have been clarified, I move to the relevant provisions of the Majmūʿah Taʿzīrāt-e-Pākistān which are under consideration in this case.
22.
Section 294-A declares all lotteries to be prohibited by law, except those lotteries initiated by the government itself or those permitted by a provincial government. Such lotteries are exempted from the prohibition of this section.
23.
The Majmūʿah Taʿzīrāt-e-Pākistān does not provide any definition of the term “lottery.” Therefore, to ascertain its meaning, one must refer to dictionaries. However, English dictionaries provide varying definitions of the term. For instance, Chambers Dictionary defines “lottery” as:
“An arrangement for distribution of prizes by lot; a matter of chance.”
24.
If this definition is adopted, then the term “lottery” would cover both qimār and permissible drawing of lots (qurʿah). This is because the definition does not differentiate between prize distributions based on purchasing lottery tickets or those conducted without any purchase. According to this broad definition, both would constitute a “lottery.”
From a Sharīʿah perspective, if the distribution of prizes occurs on the basis of purchasing tickets, then it constitutes qimār, because the reality of qimār—explained earlier—exists within it. However, if a person, without selling tickets or taking any payment, voluntarily wishes to distribute a few prizes among many people, and uses drawing lots merely to select the limited recipients, then such a process—though falling under “lottery” in the dictionary sense—is not qimār.
In this judgment, we shall refer to such an arrangement as voluntary drawing of lots (qurʿah riḍāʾiyyah).
It is on the basis of such broad dictionary definitions that the Honourable Federal Sharīʿat Court held that some lotteries may be permissible and others impermissible. However, although this meaning appears in some dictionaries, in common usage the word “lottery” is seldom used for voluntary drawing of lots. Rather, it is predominantly used for a scheme in which participants must purchase tickets or make some form of payment to gain a chance of winning a prize—thus entering the realm of qimār.
This is the sense clarified in Webster’s Dictionary, which states:
“A distribution of, or scheme for distributing prizes as determined by chance or lot, especially where such chances are allotted by sale of tickets. Hence, any chance disposition of any matter.” (Webster, 1977, vol. 2, pp. 753–754)
This definition explicitly notes that although “lottery” may linguistically apply to voluntary drawing of lots, its primary usage refers to a scheme in which the chance of winning is purchased.
Because the word “lottery” is rarely used to mean voluntary drawing of lots, several concise dictionaries do not even mention that meaning. For instance, the Pocket Oxford Dictionary defines “lottery” as:
“Arrangement for distributing prizes by chance among purchasers of numbered tickets.” (Pocket Oxford Dictionary, 6th ed., 1978, p. 516)
25.
Accordingly, when the term “lottery” is used in law, it carries this restricted meaning, which does not include voluntary drawing of lots (qurʿah riḍāʾiyyah). When we turn from general English dictionaries to legal dictionaries, we find that they usually define “lottery” in a way that excludes voluntary drawing of lots.
In Black’s Law Dictionary, “lottery” is beautifully and concisely defined as:
“A chance for a prize for a price.”
That is to say, obtaining an opportunity to win a prize in exchange for payment.
Analyzing this definition, the dictionary further explains:
“Essential elements of a lottery are consideration, prize, and chance; and any scheme or device by which a person, for a consideration, is permitted to receive a prize—or nothing—as determined predominantly by chance.” (Black’s Law Dictionary, 5th ed., p. 853)
Meaning: A lottery necessarily involves three elements—
(1) Consideration (the money put at stake);
(2) A prize;
(3) Chance.
A lottery is any scheme in which a person, after giving some form of monetary consideration, receives either a prize or nothing, and this outcome is determined predominantly by chance.
26.
This dictionary records many additional definitions of “lottery,” taken from various Western laws and judicial decisions. All these definitions share the essential element that the person expecting to win a prize must put some money at stake, and none of them accommodate voluntary drawing of lots. They all fall within the domain of qimār.
Therefore, although in the English language the term “lottery” may linguistically include voluntary drawing of lots, once the word “lottery” is used as a legal term, it applies only to those schemes described in Black’s Dictionary—schemes that clearly fall within the definition of qimār.
27.
Therefore, the word “lottery” used in Section 294-A of the Majmūʿah Taʿzīrāt-e-Pākistān is used in this legal sense, as explained above through Black’s Law Dictionary.
A clear indication of this is that if a person were to conduct a drawing of lots to distribute gifts among poor residents of an area using his own money, or if a drawing of lots were used to distribute prizes among students who passed an examination—without charging any fee from the participants—such actions could not be deemed an offence under Section 294-A.
Nor is it the intention of the law to criminalize such acts.
This makes it abundantly clear that Section 294-A does not employ the broad dictionary meaning of “lottery” that includes voluntary drawing of lots. Rather, the meaning intended here is the legal meaning—which applies only to schemes in which a person must purchase a ticket or otherwise pay money in order to obtain a chance at winning a prize.
Since every such scheme falls within qimār, Section 294-A refers only to those lotteries that are also prohibited in Sharīʿah. Therefore, the view of the Honourable Federal Sharīʿat Court—that the “lottery” mentioned in Section 294-A includes both permissible and impermissible types—is incorrect.
28.
Since the type of lottery mentioned in Section 294-A is entirely ḥarām and has no permissible form in Sharīʿah, it is prohibited for the general public, and equally prohibited for the government. Under Islamic law, the government has no authority to initiate such a lottery, nor to permit others to do so.
Therefore, the wording in Section 294-A:
“not being a state lottery or a lottery authorized by the Provincial Government”
—through which the federal or provincial government is legally empowered to run or authorize such lotteries—stands in clear contradiction to the injunctions of the Qurʾān and Sunnah.
29.
Before discussing Section 294-B, another point requires clarification: although every lottery described under Section 294-A constitutes qimār and is ḥarām in Sharīʿah, the term qimār has a much broader meaning than “lottery.” Not every form of qimār is a lottery, and qimār can occur outside the lottery context.
Based on the reality of qimār that has been explained from paragraphs 10 to 16 of this judgment, qimār may occur in many forms besides lotteries. For example, if two people wager on a game such that whoever loses must pay the winner one thousand rupees, this arrangement—although not a lottery—is still qimār and therefore ḥarām.
Hence, if the intention of Section 294-A is to prohibit all forms of qimār, then it would be more appropriate and more consistent with the injunctions of the Qurʾān and Sunnah to use the term qimār instead of “lottery.” However, in that case, the law would need to include a comprehensive legal definition of qimār based on the principles explained in paragraph 16 of this judgment.
Additionally, Section 294-A currently prescribes a maximum punishment of six months’ imprisonment for conducting a lottery. But qimār is a major sin, mentioned in the Qurʾān alongside idolatry and intoxicants. Some forms of this offence can be extremely serious. Therefore, it would be appropriate to increase the maximum punishment for qimār.
30.
I now turn to Section 294-B of the Majmūʿah Taʿzīrāt-e-Pākistān. The section reads:
“Whoever offers, or undertakes to offer in connection with any trade or business for the sale of any commodity, any prize, reward or other similar consideration, by whatever name called, whether in money or kind, against any coupon, ticket, number or figure, or by any other device as an inducement or encouragement to trade or business or to the buying of any commodity, or for the purpose of advertisement or popularizing any commodity, and whoever publishes any such offer, shall be punishable with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”
The essence of this section is that merchants who, for promotional purposes, distribute prizes based on coupons or tickets issued to buyers are engaging in an act that the law declares prohibited.
31.
In its decision, the Honourable Federal Sharīʿat Court held that if a merchant, along with the sale of a product, gives another item free of charge as an incentive, then this is permissible in Sharīʿah. However, if a concealed number is placed inside a product and a prize is announced for anyone who finds that specific number—since this involves chance—the Court held that it constitutes qimār and is therefore impermissible.
32.
It is not possible to agree with the Court’s position. As explained earlier when clarifying the reality of qimār, not every prize distributed on the basis of an uncertain event constitutes qimār. Rather, for qimār to exist, it is essential that the individual seeking the uncertain prize has placed some amount of money at stake, such that if he does not win, that money is lost without compensation.
Furthermore, as established in paragraphs 18 and 19, if the buyer receives full and guaranteed value for the price paid, then any prize distributed through drawing lots or concealed numbers does not fall under qimār.
However, if the price of the goods in such a prize scheme is set higher than normal, for example, if an item whose market price is thirty rupees is sold for forty rupees under the prize scheme, then the additional ten rupees are being staked purely for the chance of winning the prize. In this case, the scheme falls under qimār and becomes ḥarām.
33
Therefore, from the perspective of the Qurʾān and Sunnah, the correct Sharīʿah position is not the one expressed by the Honourable Federal Sharīʿat Court in paragraph 22 of its judgment. Rather, the correct Sharīʿah position is that when a merchant or manufacturer announces a prize scheme linked to the purchase of their goods, the decisive factor is whether the price charged to buyers matches the normal market price (or is reasonably close to it).
If the price set under the prize scheme is noticeably higher than the normal price, then such a scheme is impermissible in Sharīʿah, as it enters into qimār. However, if the price has not been raised above the normal level, the prize scheme is Sharʿī-wise permissible—regardless of whether the prize is distributed through drawing lots (qurʿah), or through a ticket, coupon, or a number found inside a package.
34.
Thus, Section 294-B effectively renders even those prize schemes unlawful which are Sharʿī-wise permissible and do not fall within qimār. Since the prohibition is imposed in a context associated with “lottery,” it may be assumed that these prize schemes also constitute qimār or unlawful lottery—thereby creating ambiguity in the Sharʿī definition of qimār.
For this reason, Section 294-B does not fully conform to Islamic injunctions, because it prohibits those prize schemes in which goods are offered to buyers at their normal market price, and the prize is given solely as an additional incentive.
Results of the Discussion
- In Section 294-A of the Majmūʿah Taʿzīrāt-e-Pākistān, only the following words conflict with the injunctions of the Qurʾān and Sunnah:
“not being a state lottery or a lottery authorised by the Provincial Government.”
Apart from these words, nothing else in the section contradicts the Qurʾān and Sunnah. However, it would be more appropriate for this section to use the term “qimār” instead of “lottery,” and to prohibit qimār entirely—whether it appears in the form of a lottery or in any other form. A legal definition of qimār should also be added, based on the principles set out in paragraph 16 of this judgment.
- Although Section 294-B prohibits certain prize schemes that are not impermissible in Sharīʿah, Islamic teachings require that the scope of this prohibition be restricted only to those schemes in which the seller charges buyers a price higher than the normal market price, thereby selling the chance of winning a prize.
- Regarding prize bonds, the remarks made by the Honourable Federal Sharīʿat Court were expressed at a time when review of the prize bond law did not fall within its jurisdiction. Therefore, those remarks are not an operative part of the Court’s decision in the present case; they constitute an obiter observation, not a binding ruling.
- Since gambling (qimār) is a major sin, and some of its forms can be extremely serious, it is appropriate that the maximum punishment be increased beyond what is currently prescribed—namely, six months’ imprisonment under Section 294-A.
Accordingly, this appeal is partially accepted only to the extent of these amendments, and in all other respects, the appeal is dismissed. This judgment shall take effect on 30 June 1992, after which the portions of Sections 294-A and 294-B that have been declared contrary to the Qurʾān and Sunnah shall cease to have legal effect.
Taken from ʿAdālātī Faislay 2/237
Justice Muftī Taqī ʿUthmānī
Disclaimer:
The above article has been prepared under the full oversight and approval of the respected Muftī Ṣāḥib. The author may have utilized AI assistance for the purposes of language refinement, structural clarity, and improved coherence in English. However, the religious content and conclusions reflect the Muftī’s authoritative guidance.