Transliteration:( Wassaariqu wassaariqatu faqta'oo aidiyahumaa jazaaa'am bimaa kasabaa nakaalam minal laah; wallaahu 'Azeezun hakeem )
122. Definition of Theft:
A thief is defined as someone who secretly steals goods that are securely hidden. Therefore, stealing the belongings of a combatant non-believer is not considered theft because those goods are not secured. Similarly, if goods are stolen from an open mosque, it is not classified as theft, as the items may be in a safe place, but the location itself is not secure. The same applies to goods left on the road, in a garden, or on farmland. From this, numerous legal issues can be derived, indicating that such acts do not warrant the punishment of cutting off hands.
123. Punishment for Theft vs. Adultery:
While a thief may face the punishment of having their hands cut off, the reproductive organ of an adulterer is not severed to allow for procreation. Adultery involves the entire body, while only the hands are used for stealing. Hence, the punishment for adultery is more comprehensive. It should be noted that adultery is often driven by lust, which is typically more prevalent in women, hence the emphasis on women in this context. In contrast, theft is more associated with force, which is generally found more in men.
124. Liability for Stolen Goods:
It is understood that a thief will not be held liable for the security of goods that have been squandered, as Allah Almighty has determined that cutting off the hands of the thief serves as their complete punishment. However, if a thief is found in possession of stolen goods, those items must be returned to their rightful owner.
38. And (as for) the male thief and the female thief, cut off their hands as a recompense for that which both committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise. 39. But whosoever repents after his crime and does righteous good deeds, then verily, Allah will pardon him. Verily, Allah is Oft-Forgiving, Most Merciful. 40. Know you not that to Allah (Alone) belongs the dominion of the heavens and the earth! He forgives whom He wills and He punishes whom He wills. And Allah is able to do all things.
Allah commands that the hand of the thief, whether male or female, be cut off. During the time of Jahiliyyah, this was also the punishment for thieves, and Islam upheld this decree. In Islam, there are several conditions that must be met before this punishment is carried out, as will be explained, Allah willing. There are other rulings that Islam maintained after modifying these laws, such as that of blood money, for example.
It is recorded in the Two Sahihs that Abu Hurayrah said that the Messenger of Allah said:
**لَعَنَ اللهُ السَّارِقَ يَسْرِقُ الْبَيْضَةَ فَتُقْطَعُ يَدُهُ، وَيَسْرِقُ الْحَبْلَ فَتُقْطَعُ يَدُه**
(May Allah curse the thief who steals an egg and as a result his hand is cut off, and who steals rope and as a result his hand is cut off.) Al-Bukhari and Muslim recorded that `A’ishah said that the Messenger of Allah said:
**تُقْطَعُ يَدُ السَّارِقِ فِي رُبْعِ دِينَارٍ فَصَاعِدًا**
(The hand of the thief shall be cut off if he steals a quarter of a Dinar or more.) Muslim recorded that `A’ishah, may Allah be pleased with her, said that the Messenger of Allah said:
**لَا تُقْطَعُ يَدُ السَّارقِ إِلَّا فِي رُبْعِ دِينارٍ فَصَاعِدًا**
(The hand of the thief shall only be cut off if he steals a quarter of a Dinar or more.) This Hadith is the basis of the matter since it specifies that the least amount of theft that deserves cutting the hand is a quarter of a Dinar. Thus, this Hadith establishes the minimum value. Saying that it is three Dirhams is not a contradiction because the Dinar in question was equal to twelve Dirhams, so three Dirhams equaled a quarter of a Dinar. This way, it is possible to reconcile these two views. This opinion was reported from Umar bin Al-Khattab, Uthman bin Affan, and Ali bin Abi Talib—may Allah be pleased with them. It is also the view of Umar bin Abdul-Aziz, Al-Layth bin Sad, Al-Awzai, and Ash-Shafii and his companions. This is also the view of Imam Ahmad bin Hanbal and Ishaq bin Rahwayh in one of the narrations from him, as well as Abu Thawr, and Dawud bin `Ali Az-Zahari, may Allah have mercy upon them. As for Imam Abu Hanifah and his students Abu Yusuf, Muhammad, and Zufar, along with Sufyan Ath-Thawri, they said that the least amount of theft that deserves cutting off the hand is ten Dirhams, while a Dinar was twelve Dirhams at that time. The first ruling is the correct one: the least amount of theft is a quarter of a Dinar or more. This modest amount was set as the limit for cutting the hand, so that people would refrain from theft, which is a wise decision for those with sound understanding. Hence Allah’s statement:
**﴿جَزَآءً بِمَا كَسَبَا نَكَـلاً مِّنَ اللَّهِ وَاللَّهُ عَزِيزٌ حَكِيمٌ﴾**
(as a recompense for that which both committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise.) This is the prescribed punishment for the evil act they committed by stealing the property of others with their hands. Therefore, it is fitting that the tool they used to steal people’s wealth be cut off as punishment from Allah for their error. ﴿وَاللَّهُ عَزِيزٌ﴾ (And Allah is All-Powerful) in His torment, ﴿حَكِيمٌ﴾ (All-Wise) in His commands, what He forbids, what He legislates, and what He decrees.
Allah said next:
**﴿فَمَن تَابَ مِن بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ ﴾**
(But whosoever repents after his crime and does righteous good deeds, then verily, Allah will pardon him. Verily, Allah is Oft-Forgiving, Most Merciful.) Therefore, whoever repents and returns to Allah after committing theft will be forgiven. Imam Ahmad recorded that Abdullah bin Amr said that a woman committed theft during the time of the Messenger of Allah, and those from whom she stole brought her and said, “O Allah’s Messenger! This woman stole from us.” Her people said, “We ransom her.” The Messenger of Allah said:
**اقْطَعُوا يَدَهَا**
(Cut off her hand.) They said, “We ransom her with five hundred Dinars.” The Prophet said:
**اقْطَعُوا يَدَهَا**
(Cut off her hand.) Her right hand was cut off, and the woman asked, “O Messenger of Allah! Is there a chance for me to repent?” He said:
**نَعَمْ أَنْتِ الْيَوْمَ مِنْ خَطِيئَتِكِ كَيَوْمَ وَلَدَتْكِ أُمُّك**
(Yes. This day, you are free from your sin just as the day your mother gave birth to you.) Allah sent down the verse in Surat Al-Ma’idah:
**﴿فَمَن تَابَ مِن بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللّهَ يَتُوبُ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ ﴾**
(But whosoever repents after his crime and does righteous good deeds (by obeying Allah), then verily, Allah will pardon him. Verily, Allah is Oft-Forgiving, Most Merciful.) This woman was from the tribe of Makhzum. Her story was narrated in the Two Sahihs from Az-Zuhri from Urwah from A’ishah. The incident caused concern for the Quraysh after she committed the theft during the time of the battle of the Conquest of Makkah. They said, “Who can talk to Allah’s Messenger about her matter?” They then said, “Who dares speak to him about such matters other than Usamah bin Zayd, his loved one.” When the woman was brought to the Messenger of Allah, Usamah bin Zayd talked to him about her, and the face of the Messenger changed color (because of anger), and he said:
**أَتَشْفَعُ فِي حَدَ مِنْ حُدُودِ اللهِ عَزَّ وَجَلَّ؟**
(Do you intercede in a punishment prescribed by Allah?) Usamah said to him, “Ask Allah to forgive me, O Allah’s Messenger!” During that night, the Messenger of Allah stood up and gave a speech, praising Allah as He deserves to be praised. He then said:
**أَمَّا بَعْدُ فَإِنَّمَا أَهْلَكَ الَّذِينَ مِنْ قَبْلِكُمْ أَنَّهُمْ كَانُوا إِذَا سَرَقَ فِيهِمُ الشَّرِيفُ تَرَكُوهُ، وَإِذَا سَرَقَ فِيهِمُ الضَّعِيفُ أَقَامُوا عَلَيْهِ الْحَدَّ، وَإِنِّي وَالَّذِي نَفْسِي بِيَدِهِ لَوْ سَرَقَتْ فَاطِمَةُ بِنْتُ مُحَمَّدٍ لَقَطَعْتُ يَدَهَا**
(I swear by Allah! If Fatimah, the daughter of Muhammad, were to steal, I would cut off her hand!) Thus, this clearly indicates the need for fairness and justice in the application of Islamic laws, regardless of social status.
Allah concludes this verse with a statement that emphasizes His dominion and authority over everything:
**﴿أَلَمْ تَعْلَمْ أَنَّ لِلَّهِ مُلْكَ السَّمَاوَاتِ وَالْأَرْضِ ۖ يَغْفِرُ لِمَن يَشَاءُ وَيُعَذِّبُ مَن يَشَاءُ ۗ وَكَانَ اللَّهُ عَلَى كُلِّ شَيْءٍ قَدِيرًا ﴾**
(Know you not that to Allah (Alone) belongs the dominion of the heavens and the earth! He forgives whom He wills and He punishes whom He wills. And Allah is able to do all things.) This serves as a reminder that Allah is the ultimate authority over the heavens and the earth, and He is the one who has the right to forgive or punish as He wills.
(5:38) As for the thief -male or female – cut off the hands of both.[60] This is a recompense for what they have done, and an exemplary punishment from Allah. Allah is All-Mighty, All-Wise.
60. The injunction is to cut off one not both hands. There is consensus among jurists that in the event of the first theft the right hand should be cut off. This punishment has been laid down for theft alone. The Prophet (peace be on him) declared: “There is no cutting off of a hand for he who embezzles.’ (Abu Da’ud, ‘Hudud’, 14; Tirmidhi, ‘Hudud’, 18; Ibn Majah, ‘Hudud’, 36; Nasa’i, ‘Qat’ al-Sariq’, 13 – Ed.) This shows that the punishment prescribed for theft does not cover acts involving embezzlement and other dishonest practices. It is applicable only to acts involving the seizure, by stealth, of someone else’s property.
The Prophet (peace be on him) also instructed that the punishment of cutting off a hand should not be applied in cases where the value of the article stolen is less than that of a shield. In the time of the Prophet (peace be on him) according to a tradition from Ibn ‘Abbas, this was ten dirhams; according to a tradition from Ibn ‘Umar, it was three dirhams; according to a tradition from Anas b. Malik, it was five dirhams; and according to another tradition from A’ishah, it was a quarter of a dinar. Owing to this discrepancy, there is disagreement among jurists regarding the minimum value of the goods stolen which merits the punishment of cutting off a hand. This value, according to Abu Hanifah, is ten dirhams whereas according to Malik, Shafi’i and Ahmad b. Hanbal, it is one quarter of a dinar (three dirhams). (For traditions on objects and amounts of things on which the hand of the thief is to be cut off, see Bukhari, ‘Hudud’, 13; Muslim, Hudud’, 1-7; Abu Da’ud, ‘Hudud’, 12, 13; Tirmidhi, ‘Hudud’, 16; Nasa’i, ‘Qat’ al-Sariq’, 5, 8-10 – Ed.)
Moreover, there are several things the theft of which would not necessitate cutting off a hand. The Prophet (peace be on him) directed, for instance, that no hand should be cut off if the stolen article was food. According to a tradition from ‘A’ishah: ‘(The hand of) the thief was not cut off during the time of the Messenger of Allah for the theft of trivial things.’ (Ahmad b. Hanbal, Musnad, vol. 3, p. 464; Darimi, ‘Hudud’, 4, 7 – Ed.) Furthermore, ‘Ali and ‘Uthman gave the judgement – and none of the Companions disagreed with it – that a person’s hand should not be cut off for stealing birds. ‘Umar and ‘Ali did not cut off the hands of those who had stolen from the public treasury, and on this question no disagreement on the part of any Companion has been reported. On these grounds the founders of the schools of Islamic Law exempted certain things from the application of this penal injunction.
According to Abu Hanifah a man’s hand should not be cut off for stealing vegetables, fruit, meat, cooked food, grain which is not stored in a barn, and instruments of music and play. Likewise, he is of the opinion that a hand should not be cut off for either stealing animals grazing in the forest or for stealing from the public treasury. The founders of the other schools of Islamic Law have also exempted the stealing of certain things from the punishment of cutting off a hand. But this exemption does not mean that the guilty parties should receive no punishment at all. (See the commentaries of Ibn Kathir, Ibn al-‘Arabi, Qurtubi and Jassas on this verse. See also Ibn Rushd, Bidayat al-Mujtahid, vol. 2, pp. 441 ff. – Ed.)
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