JURISTIC APPROACH TO THE CONCEPT OF THEFT (SARIQAH) AND ITS PUNISHMENTS

                            

 Abstract

Islam as a religion which covers the whole of man’s aspects of life, aims at protecting the wealth of individual against thievery, robbery, and other violations on the sanctity of property and wealth. That is why it imposes strict punishments on the culprit(s) who proved guilty beyond any reasonable doubt. Thus, Islamic Shari’ah imposes the corporal punishment of cutting the hand of who steals the property of others which reach the Nisab. This paper attempts to discuss the Juristic Approach on the Concept of Theft and Its Punishment. The paper also highlights on the kinds of theft and its conditions, etc. It ends with conclusion and recommendations.

Keywords: Theft, Punishment, Juristic Approach. 

 BY
JA’AFAR AGAJI ABDULLAHI, Ph.D
DEPARTMENT OF ISLAMIC STUDIES
FACULTY OF HUMANITIES
FEDERAL UNIVERSITY, GUSAU,
ZAMFARA STATE.
08033120112, 07051432724
EMAIL: agajiajafar@gmail.com

AND

SHAFI’U NUHU

DEPARTMENT OF ISLAMIC STUDIES

FEDERAL COLLEGE OF EDUCATION, ZARIA.

KADUNA STATE

 Introduction

              It has been clarified that man is an erring creature; in the sense that at times he will be on the right path and at times fortunately or unfortunately he deviates and turn to the left. That is to say, man is like the thin tree, when  wind blows it swing or turn towards the  right and when it blows again, it swing towards the left side. It is therefore, of paramount importance that the religion of Islam to protects the personal wealth and property of an individual in the society and imposes penalties against thievery, robbery, banditry and other violations against the sanctity of wealth and property.   

 The Concept of Theft (Sariqah)

Islam protects personal wealth and imposes very strict penalties against banditry, thievery, robbery and any other violations against the sanctity of property. This is because private wealth and property are the basis of economy and livelihood of the members of the society. Therefore cheating, embezzlement, monopoly, hoarding and many other harmful practices are also prohibited. This is done with the intention of ensuring protection to the wealth and personal assets of the individuals. According to Abdul-‘Ati (1978), Islamic law imposes the corporal punishment of cutting the hand of the theft who steals the property of others, in accordance with the strict requirements and due process of law. And the Glorious Qur’an states:

ﭽ ﭟ  ﭠ  ﭡ   ﭢ  ﭣ  ﭤ  ﭥ         ﭦ  ﭧ   ﭨﭩ  ﭪ  ﭫ    ﭬ   ﭭ  ﭼ المائدة: ٣٨

 

 

Cut off (from the wrist) the (right) hand of the theft, Male or female, as a recompense for that which they committed, a punishment by way of Example from Allah, and Allah is Exalted in power full of wisdom (al-Ma’idah, 5:38).

 

Beside the afore-mentioned crimes, Islam has banned all types of transgression against private possessions, estate and law of ownership. This is based on the sayings of Allah (S.W.T) thus:

 

ﭽ ﮛ  ﮜ  ﮝ  ﮞ   ﮟ  ﮠ  ﮡ    ﮢ  ﮣ  ﮤ  ﮥ  ﮦ    ﮧ  ﮨ  ﮩ  ﮪ  ﮫ  ﮬ  ﭼ البقرة: ١٨٨

 

And do not eat up your property among yourselves for vanities, not use it as bat for the judges with intent that you may eat wrongfully knowingly a little of (other) people’ property (al-Baqarah, 2:188).

 

In his explanation on the above verse, Ali (1998-71) opines that, beside the three primal physical needs of man which are apt to make him greedy, there is a fourth greed in society, the greedy of wealth and property. Ordinarily, honest men are content if they refrain from robbery, theft and embezzlement.

Similarly, the Prophet (S.A.W.) was reported to have said:

Whosever unjustly takes any money or wealth of another- without a due right, Allah will meet such in a state of anger (Imam Ahmad Vol. 3, P. 337).

In another tradition, it was reported that:

 Whosever usurp a hand span of law Allah (S.W.T.) will have this oppressor to be surrounded with seven earths (around his neck) on the Day of Requital (Imam Ahmad Vol. 3, P. 339).

In the same vein, Imam Bukhari transmitted that:

Whosoever is killed defending his wealth is a martyr (Imam Bukhari Vol. 8, P. 519).

 

It could simply be understood from the Ahadith that, the transgressor will be subjected to a tremendous and severe penalty in the day of requital. With regards to the second Hadith, Islamic law demands that oppressor will return the amount unjustly confiscated from other person(s), land or property. Alternatively, he should be forced to pay the value of such justly confiscated property. Furthermore, the oppressor in such a situation is subjected to a lashing penalty determined by the judge. In line with the third Hadith, Islam entitles the owner of wealth to defend all that he possesses. Even to the extent of killing the aggressor, if that is the only means of stopping the aggression. However, if the owner kills the aggressor he is not to be killed for killing him, if he can prove that he killed him while defending his ownership. But if the aggressor, on the other hand killed the defending owner(s), the aggressor is a murderer and the defending owner is a martyr.

Bambale (2003:53) comments that:

One of the three things which Allah has declared inviolable is properly. The protection to people’s property is guaranteed against any violation from other people. This is reflected in a number of injunctions of the Holy Qur’an and saying of the Prophet (S.A.W.) regarding the laws of inheritance, Zakat, use of property, charity and earnings.

 

He further continues to say that, for example the Glorious Qur’an states that:

And do not eat up your property among yourselves for vanities, nor use it as bait for the judges, with intent that ye may eat up wrongfully a little of (other) people’s property.

 

Similarly, al-Qaradawi (1984:326) points out that:

A Muslim is permitted to acquire wealth, as much as he desires, as long as he acquires it through lawful means and increases it through lawful investments. While in another religion it said, “It is easier for a camel to pass through the eye of a needle than for a rich man to enter the kingdom of God”.

In given the explanation on the above verse, Ibn Kathir (2007:366) is of the view that:

Allah, the Almighty prohibits His believing servant from illegally devouring each other’s property through various illegal (dishonest) mean such as usury, gambling and other wicked ways that would appear to be legal… While you are forbidden from using illegal ways and methods to get money, commercial transactions that are established between the buyer and the seller with mutual consent are made lawful for you as a means of earning your living.

 

The verse above and many others quoted before show that, it is strictly forbidden by Allah (S.W.T.) for His believing servant to acquire wealth illegally through dishonest or illegal means such as Sariqah. But people who fear Allah (S.W.T.) among His servants can acquire it (wealth) with the consent of the owner(s) either through gift or business transactions, so as to earn their living.

Definition of Theft (Sariqah)

The word Sariqah is defined in various ways by various scholars both from Western and Islamic perspectives. Sally, et’al (2005:1532) define theft as the crime of stealing something from a person or place. al-Maghribi (2008:313) defines Sariqah as “the secretly taking away of another’s property. In the language of the law Sariqah signifies the taking away the property of another in a secret manner, at a time when such property is in custody”.

El-Awa (1998:7) pointed out that, “Stolen property is property taken illegally from its owner. Owners usually keep goods in a proper place in which they are safe. The storage place, or the custody of the good, is known to Muslim jurists as hirz.

The primary meaning of Sariqah according to Sabiq (1996:358) is the taking of the thing in a hidden way. It means one listened in the secret i.e. he heard by a hidden way. It is said: One steals the looking at him, if he inattentively looks at him. Sabiq continues to state that, in the Glorious Qur’an, Allah (S.W.T.) says:

ﭽ ﭟ  ﭠ  ﭡ  ﭢ   ﭣ  ﭤ  ﭥ  ﭦ  ﭼ الحجر: ١٨

But any that gains a hearing by stealth, is punished by a flaming fire, bright to see (15:18).

 

He further stresses that, the son of Arafah said: The thief as to the Arabs: Is the one who comes hiding to a well-fortified place and takes away something which is not his property. So theft can be committed when the following three conditions are met:

1. The taking of the money of the others.

2. That the taking is by the way of hiding and in the secret.

3. That the money is in a well-fortified place.

It is therefore important to state that the definition of Sariqah above clearly indicates that, Sariqah can only be constituted or committed by taking of the money or property of others by way of hiding and in secret manner and the money or property is kept in a well-fortified place.

Doi (2007:254) discusses that, Sariqah or theft also is an illegal means of acquiring another’s property. Bambale (2003:54) postulates that:

Theft is an act of taking other people’s property without any lawful claim to it. It is also defined as the taking away of property recognized in law as belonging to another from where it is kept and carrying it with the intention of appropriating it without justifying one’s actions. It can be said that anybody who does this commits the crime of theft, provided the value of such stolen property can be legally appreciated.

Ibn Rushd (1996:536) opines that, theft is the taking of the property of another by way of stealth, when the thief has not been entrusted with it. Sariqah as noted by al-Jaza’iri (2007:740) means “when somebody takes any kind of money while being hidden, as when he enters into a shop or a house and takes clothes, grains, gold, or the like from it”. Salim (2010:75) sees Sariqah literally as “taking what do not belong to a person in a secret manner and technically defines it as taking some body’s wealth (which is worth value) in secret manner without the consent of the owner”.

Uthaimin (2007:205) views Sariqah as ‘taken of wealth from its owner or his representative in a secret way’. He further expatiates the meaning of “taking of wealth” to exclude what is not a wealth such  as  a dog cannot be referred to as theft in Shari’ah, even though linguistically or literally he can be called thief. Similarly, the connotation has disregarded a person who steals from another thief, not to be subjected to Hadd punishment.

From the above definition therefore, it shows that theft (Sariqah) is the taking away of another person(s) property and this property may be money or something valuable by other person(s) who has not been entrusted with, in a secret manner. However, if the stolen property is something like fruits the hadd punishment should not be inflicted on the thief likewise anything unlawful to eat or drink. With regard to the stealing of hanged fruits, Malik (1982:336) expresses that:

عن عبد الله بن عبد الرحمن بن أبي حسين المكي أن رسول الله صلى الله عليه وسلم قال: لا قطع في ثمر معلق ولا في حريسة جبل فإذا آواه المراح أو الجرين فالقطع فيما بلغ ثمن المجن.

 

Abdullah bn Abdul-Rahman bn Abi Husain al-Makki reported that: the Messenger of Allah (peace be upon him) said: There is no cutting in hanged dates or the livestock on the mountain, but if one seeks a shelter on the field or the threshing floor then the cutting is in what reaches the price of the shield (Imam Malik, Vol. 2, p.336).

Kinds of Theft (Sariqah)

Scholars after given the various definitions of Sariqah, beside a person who breaks or enters the premises and takes property which does not belong to him and in a secret manner, have categorized them into three ( 3): The plunderer, the pick-pocketer and the snatcher.

The Plunderer

According to Sabiq (1996), the plunderer is one who steals things from a place, especially using force during a time of war.

The Pick-pocketer

This is a person who steals money or any valuable item from other people’s pockets. Ibn Rushd (1996:541) elaborates that, scholars have deferred on the nature of spick-pocketing , a group considered pick pocketing if a person  is caught putting his hand or tears the sleeve of another person  among them are Malik, al-Awza’i, abu Thawr and Al-Hassan the Son of al-Munthir. Others on the other hand maintained that, if the money were packed in the apparent phase of his sleeve and he thrusts it and he steals it, he should not be amputated. But if it was packed inside sleeve and one inserts his hand and he steals it, he is to be amputated.

The Snatcher

This is a situation when a person snatches something from the hand of somebody and runs away with it. Scholars have divergent opinions, some opined that the stolen amount if it reaches the minimum value (Nisab) of amputating hand the hand should be amputated because the stolen property is in the possession of the owner and under hirz. Others said that such a person should not be considered as a thief and hence hadd punishment should not be inflicted on him, instead Ta’zir should be applied. Similarly, Ibn Rushd (1996:541) adds that, scholars also have divergent views on the body- snatcher, a gravedigger who steals the coffins of the dead. In this regard, the majority are of the view that his punishment is by the cutting of his hand. This is because his action is an act of theft base on the fact that grave is a well-fortified place.

However, Abu-Hanifa, Muhammad, al-Awza’i and al-Thawri; have a contrary opinion gone to that the punishment of such a person is reproaching, because he is a body snatcher, and not a thief. Therefore, his judgment  should be like that of  a thief, because he has not steal from a property owned by anyone, since dead persons have no ownership and grave yard is not  a fortified place.

Conditions of Theft (Sariqah).

The foregoing sub-sections, have explained kinds of Sariqah as opined by various scholars. However, the scholars differ in opinions sin relation to elements which constitute theft. According to Imam Malik (2007:858), Ibn Rushd (1996:537) and Khalil (2004:340), theft is established when the following conditions are met:

1. The thief must be an adult of sound-understanding.

This simply means, the thief must be of an adult age and of sound-understanding. Hadd of amputation of a hand is not applicable to an infant and a person of unsound mind. The noble Prophet (S.A.W) says:

رفع القلم عن ثلاثة: عن الصبي حتى يبلغ، وعن النائم حتى يستيقظ وعن المجنون حتى يفيق.

 

Three types of persons are exempt from liability of amputation of a hand, a child till he attains maturity, a sleeping person till he gets up and an insane person till he regain his sense.

 

2. The property must be in proper custody of the man.

In this regard, Imam Malik (2007:858), Ibn Rushd (1996:540) and Khalil(2004:337-8) postulate that theft which calls for amputation of a hand shall be in  relation to such property which is in careful protection of a man. They further add that, Abdullah bn, ‘Abdur- Rahman bn Abi Husain al-Makki reported Allah’s Messenger (peace and blessings of Allah be upon him) as saying:

لا قطع في ثمر معلق ولا في حريسة جبل، فإذا آواه المراح والجرين فالقطع فيما بلغ ثمن المجن.

 

Hand is not to be cut off for fruit which is hung up outside the wall or for a sheep stolen by night from the mountain but when the sheep is in its fold or the fruit in the place where it is dried a hand is to be cut off for whatever reaches the price of a shield (Imam Malik, Vol. 2, P. 858).

 

3. The property must be taken out of the custody of another person in secret manner.

The third element which calls for amputation is that the property must be taken out of the custody of another person in a secret manner. Custody is of two kinds: 1^st, by place, for example, a house or a shop; and 2^nd, by personal guard, which is by means of a personal watch over the property. It is narrated by Imam Malik (2007:859):

أن صفوان بن أمية قدم المدينة فنام في المسجد وتوسد رداه فجاء سارق وأخذ ردائه فأخذه صفوان فجاء به إلى رسول الله صلى الله عليه وسلم فأمر أن تقطع يده فقال صفوان إني لم أرد هذا هو عليه صدقة فقال رسول الله صلى الله عليه وسلم فهلا قبل أن تأتيني به (إمام مالك Vol.2، P.859)

Safwan bn Umayya came to Medina and slept in the mosque, using his sheet as a pillow. A thief came and took his sheet. Safwan seized him and brought him to Allah’s Messenger (peace and blessing of Allah be upon him) who ordered that his hand should be cut off. Safwan then said: This was not my intention. I give it to him as Sadaqa. Allah’s Messenger (peace and blessings of Allah be upon him) said: why did you not do so before bringing him to me? (Imam Malik, Vol.2 P. 859).

 

 Therefore, Imam Malik and most of those who stipulate hirz are of the opinion that the thief’s hand is cut if he moves the property out of the room, while others like Abu-Yusuf and Muhammad said that amputation is not applied unless he moves it out of the house not out of the room (Ibn Rushd, 1996:541), (Abiy al-Azhariy, n.d:290).  

4. The thief must have obtained full possession of the stolen property.

The thief must have obtained full possession of the stolen property. It is not enough that the thief has taken away the property of another person. He must take its possession completely.

5. The property must be of some value which must not be less than the prescribed Nisab.                                                                                                                                                                                    

With regard to the amount of the value which constitutes theft, there are two divergent opinions among the jurists. First, the opinion of the jurists of Hijaz, Malik, and others. Secondly, the opinion of the jurists of Iraq. The jurists of Hijaz invoked amputation for property worth three silver dirhams or one-fourth of a gold dinar. They disagreed about the currency with which stolen property is to be evaluated. Malik in his well-known opinion, said that such valuation is to be under taken by means of dirhams and not with one-fourth of a gold dirhams. This is in case the value of three dirhams becomes different from one-quarter of a gold dinar, as for example, when a quarter of gold dinar drops to two and   one-half dirhams. But according to the jurists of Iraq the value of Nisab, because of which amputation becomes obligatory is ten dirhams and it does not become obligatory in an amount less than this. One group and among them are Ibn Abi Layla and Ibn Shubrama said that the hand is not to be amputated for less than five dirhams, while it is also said four dirhams. al-Batti was of the view that it is two dirhams. Imam Malik (2007:856) holds that, the sum of Nisab is three dirhams or its equivalent property that calls for amputation of a hand, based on the tradition narrated by A’ishah (R.A) thus:

عن عائشة عن النبي صلى الله عليه وسلم – قال لا تقطع يد السارق إلا في ربع دينار فصاعد  (البخارى، Vol. 8، P. 514).

 

‘Aisha (Allah be pleased with her) reported the Prophet (S.A.W) as saying: The hand of a thief shall not be cut off except for one-fourth of a dinar and upwards (Imam Bukhari Vol. 8, P.514).

6. The Property must be Movable.

The subject of theft must be movable. It is an essential element because theft means taking away the property of another. It is possible in the case of movable property only. The land and things attached to the earth or permanently fixed to anything which is attached to the earth cannot be taken away from the possession of one person to another and hence these cannot be stolen, as Imam Malik (1982:345) said. The thief`s hand is cut if he moves the property out of the room.

7. Dishonest intention to take the Property.

This is the most important part of the definition. It is the intention of the taker which must determine whether the taking or moving of a thing is theft or not. Where there is no intention to take it dishonestly, there is no theft.

In his attempt to explain the elements which will confirm the establishment of Sariqah, Orire (2007:302) adds that, the theft must not be out of necessity, i.e. hunger, etc. Similarly, Bambale (2003:54) while discussing the conditions which make the act of theft complete as to the thief himself, says, the thief must have committed the act of theft voluntarily. If he was forced, it nullifies responsibility; hence the Hadd punishment is not inflicted.

As regards to the stolen property also, where it says: ‘the property must be owned by someone’, Bambale (2003:55) points out that:

The stolen property must be lawful. For the theft of things that are unlawful like wine, pork, etc., neither had nor is Ta’zir inflicted. But if the thing stolen belongs to a non-Muslim, they should be returned or its value and Ta’zir punishment is inflicted. But the things stolen belong to a Muslim, they are never returned to him, instead they should be destroyed and the thief would not be punished at all. As to the theft of things which every being has a right over it, no Hadd punishment is imposed. But if anyone becomes the owner of a thing, its theft will warrant the infliction of the Hadd punishment.

 

Similarly, as to theft of thing which every being has a right over it, Imam Malik (1982: 346) says:

Every human being has a right over these things, but once any part of these things are secured by an individual and kept in a proper custody, it becomes his own fare and if it is stolen and the value reaches Nisab, Hadd is applicable.

 

Furthermore, in relation to the theft of things which every being has a right over it, Imam Malik (2007:864), Ibn Rushd (1996:543) and Muhammad (1989:136) elaborate that:

In case of an ascendant stealing from his descendants no hadd punishment of cutting the hand is to be inflicted. However, if a descendent steals from ascendant its punishment is with hadd. Similarly, theft between husband and wife is not punishable by hadd, unless the husband keeps the property away from the ordinary place of their place (residence).

This Hadith of the noble Prophet (S.A.W.) shows that if an ascendant steals from his descendant, hadd punishment should not be inflicted on him. But if the descendant steals from the ascendant, hadd punishment should be inflicted on him. A typical example here could be made with a father who steals or takes his son’s property; he will not be punished. But if the son steals from his father’s property he is liable to Hadd punishment. Similarly, theft between the husband and wife is not punishable by Hadd, unless if the husband keeps the thing away from their resident. Thus, reference could be made here to the Hadith of the Prophet (S.A.W.) where he ordered Hind to take what suffices her and her children from the wealth of her husband

In his discussion, al-Sheha (n.d. P.32) noted that the process of amputating the hand of a thief is only implemented with strict conditions which include the following:

i. The stolen item(s) or valuable must be in a preserved area whereby the thief gets into. If a thief steals an item that is left outside negligently or not cared for, there is no punishment by amputation. The thief in this case may be subjected to the penalty of snatching, wherein the authorities determine the appropriate penalty or Ta’zir.

ii. The theft committed must not involve food for survival from hunger. Because the second Caliph Umar (R.A.) during the year of famines did not apply the punishment for stealing due to the conditions of widespread of hunger.

iii. The value of the stolen item(s) must reached or be within the range or above the value set for stealing that obligates amputation of the hand. These physical punishments are not to be carried out unless there is irrefutable audience (i.e. no doubt that the crime has been committed) and that, it is punishable by Islamic law.

While explaining the conditions which confirm the establishment of Sariqah, Imam Malik as in Ibn Rushd (1996:543), Tantawi (2009) and Isma’il (1997) adds that the thief must not have been compelled to steal, because compulsion or enforcement nullifies the punishment; likewise lack of freedom (slavery). They further explain that, the thief must not have a share in the property stolen, if he has, then Hadd punishment should not be applied unto him. It is like a father to take the money of his son or a mother to take that of her daughter, as the Prophet (S.A.W.) was reported to have said:

لقول الرسول الله صلى الله عليه وسلم للإبن الذي جاء يشكو أباه أنه يأخذ ماله، فقال رسول الله صلى الله عليه وسلم: "أنت، ومالك لأبيك"  (البخارى، Vol. 8, P 154)

As the Prophet (S.A.W.) said to a son who came to him crying saying that his father took his money. The Prophet (S.A.W.) then said to the son: “You and your wealth are under the control of your father” (Imam Bukhari Vol. 8, P. 514).

It is pertinent to state here that in the case of the property stolen which  belongs to Bait al-Mal, it will be presumed that the thief has a share in it, or a wife taking from her husband’s property or a father or mother taking away from a son’s property. In all these cases, the property will not be deemed to have been taken from Hirz, so it is only Ta’zir that would be applied but not Hadd because it is doubtful that it is really belonged to someone.

The Punishment of Theft (Sariqah)

Theft is considered to be a serious crime or offence and gravious sin in Islam. It deprives a man of one’s hard-earned money and or property. Theft is an encroachment upon the property of a man without any justifiable reason and it causes unrest in a society. Islam therefore wants to build a healthy society in order to establish peace and stability in it. So with a view to put the thieves under guard, strict measures have been ordained by the Creator - Allah (S.W.T). The Glorious Qur’an stresses that:

ﭽ ﭟ  ﭠ  ﭡ   ﭢ  ﭣ  ﭤ  ﭥ         ﭦ  ﭧ   ﭨﭩ  ﭪ  ﭫ    ﭬ   ﭭ  ﭼ المائدة: ٣٨ 

 

As the thief, male or female, cut off his or her hand: a retribution for their deed and exemplary punishment from Allah, and Allah is Exalted in power, full of Wisdom (al-Ma’idah, 5:38).

 

While giving an explanation on the above verse, Imam Malik (2007:860) shows that this punishment (of cutting the hand) was practiced by the Holy Prophet (S.A.W.) himself. He cut off a thief’s hand and also ordered the amputation of a female thief’s hand as reported in both Bukhari Vol. 8, P.516-17 and Muslim Vol.3 P. 910).

In order to show how the punishment of theft is to be carried out, Sabiq (1996:378) says: If the crime of the theft is confirmed then the establishment of the punishment is enjoined on the thief, and his right hand is cut from the joint of the palm. It is the elbow, as to His saying (The Exalted):

ﭽ ﭟ  ﭠ  ﭡ   ﭢ ﭭ  ﭼ المائدة: ٣٨

 

The thief male and female cut their hands (al-Ma’idah, 5:38).

He further states that forgiveness on the above stated crime is not permissible by anyone even by a leader other than the victim. Likewise, it is not permissible to exchange the stipulated punishment with another punishment, lighter to it or delaying its execution to break it down. Contrary, the Shi’ites agreed that the amputation of hand of a thief can be forgiven. Similarly, Shi’ites believed that it is the obligation of the Imam to execute the punishment of theft; however, he has the right to forfeit the punishment base on the welfare. This view of the Shi’ites has definitely contradict the instruction of the Prophet (S.A.W.) as stated in the following narration:

تعافوا العقوبة بينكم، فإذا انتهى بها إلى الإمام فلا عفا الله عنه إن عفا (إمام مسلم، Vol. 3 P. 106 – 109).

Forgive the punishment amongst yourselves that if it reaches the Imam, there is no forgiveness on it by Allah, if one forgives (Imam Muslim, Vol. 3 P.109-10).

 

In his commentary on the punishment of theft, Imam Malik (2007:860) remarked that, if thief committed theft for the first time, his right hand shall be cut off, and if committed for the second time, one foot shall be cut off, and if for the third time, the second hand shall be cut off and for the fourth time, the other foot shall be cut off. He based his opinion on the following Hadith:

عن أبي سلمة عن أبي هريرة أن رسول الله صلى الله عليه وسلم قال: في السارق إن سرق فاقطعوا يده ثم إن سرق فاقطعوا رجله ثم إن سرق فاقطعوا يده ثم إن سرق فاقطعوا رجله (إمام مالك Vol.2 P.860).

 

Abu-Salamah quoted Abu-Huraira’s authority to the effect that Allah’s Messenger (peace and blessings of Allah be upon him) said regarding a thief, “If he steals cut off his hand, if he steals again cut off his foot, and if he steals again cut off his hand and if he steals again cut off his foot (Imam Malik, Vol. 2, P. 860).

So it is clear from the above narrations that, whoever steals a property whose value is worth Nisab, kept under hirz and that thing is not among the things which amputation is not to be incurred, his hand should be amputated for the first time. And for the second time his leg, then for the third time is the next hand and for the fourth time is the second leg.  

In his explanations on the immediate quoted verse and the immediate quoted Hadith above, Uthaimin (2007:205) said:

The verse says cut off their hands it does not mean to cut off the whole hand, it means to cut off from the wrist (to the fingers) only. Thus, if we refer to the verse that talks on Tayammam where Allah (S.W.T.) says:

فامسحوا بوجوهكم وأيديكم

 

Then take for yourselves clean sand or earth, and rub therewith your faces and hands.

 

So it is the palm we use to rub our faces and hands with, so it should not exceed there in the amputation of hand. And it should be the right hand to be amputated because most of the work is done with the right hand and the Prophet (S.A.W.) amputated the right hand a thief when he steals for the first time.

Uthaimin (2007:205-206) further elaborates that:

 

If he steals for the second time his left leg should be amputated (from the ankle) so that the amputation of two joints will not be at one side and this is in line with the saying of Allah (S.W.T.):

 

ﭽ ﮊ  ﮋ   ﮌ  ﮍ  ﮎ  ﭼ المائدة: ٣٣

 

…the cutting off of hands and feet from opposite side (al-Ma’idah, 5:33).

 

If he steals for the third time his left hand should be cut off (from the wrist) as it was done on the right one. If he then steals for the fourth time, then his right leg should be cut off.

 

In his attempt to explain the meaning of the verse

ﭽ ﭟ  ﭠ  ﭡ   ﭢ  ﭣ  ﭤ  ﭥ         ﭦ  ﭧ   ﭨﭩ  ﭪ  ﭫ    ﭬ   ﭭ ﭼ

Tantawi (2008) highlights that, Allah (S.W.T.) is telling the judges (leaders) that if it is confirmed that a thief male or female steals after all the conditions are met, it is then ordain unto you to cut off the hand of the culprit for the ugly act he or she committed until it became deterrent and lesson to others. Similarly, the Prophet (S.A.W.), his Companions and their successors did the same as well as the scholars unanimously did same.

According to Mu’sir (2010), it could be deduced from Q.5:38 above that, the wisdom behind the amputation of the hand of a thief is that it is necessary that the society must live in peace and their wealth should be protected, and indeed, it is among the wisdoms and mercy of Allah (S.W.T.)

Tantawi further states that the situation is not like that as to regard the saying of the Prophet (S.A.W.) that:

لا تقطع يد السارق إلا في ربع دينار فصاعد (البخارى  Vol. 8 P. 514)

Do not amputate the hand of a thief unless the stolen property reaches nisab or what is above that (Imam Bukhari, Vol. 8, P. 514).

 

The above narration clearly stated that rub’u dinar or what is equivalent to it, is the stipulated amount that could warrant the amputation of the hands of a thief. Thus, the narration serves as the basis of the opinion of   Umar bn Khattab, Uthman bn Affan and Ali bn Abi-Talib. Similarly, Umar bn Abdul-Aziz, Layth, Abu-Thawr and Malik supported the view. Imam Malik (R.A.) has used the following narration to substantiate his view:

تقطع اليد في ربع دينار أو في ثلاثة دراهم، فإن سرق درهمين وهو ربع دينار لإنحطاط الصرف لم تقطع يده فيهما (البخارى  Vol. 8 P. 516)

 

Cut off the hand (of a thief) who steals up to ¼ of Dinar or that which is 3 Darahim, but if he steals 2 Dirham which is ¼ of Dinar because of devaluation of the currency, his hand should not be amputated in that (Bukhari, Vol. 8, P. 516).

In his Tafsir of the above verse (Q.5:38), Ibn Kathir (2007:446) remarks that Allah, the Almighty commands and decrees that hand of thief, male or female be cut off by saying “Cut off (from the wrist joint) the (right) hand of the thief, male or female…” .

قال رسول الله صلى الله عليه وسلم: لعن الله السارق يسرق البيضة فتقطع يده، ويسرق الحبل فتقطع يده (البخارى، Vol. 8, P. 509)

The Messenger of Allah (S.A.W) said: May Allah curses 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 (Bukhari, Vol. 8, P. 509).

Qutb (2003:97-104) in his explanation on the reasons for imposing such a stern punishment for theft in the land and the suitability of this punishment to the crime of theft, he says:

When someone thinks of stealing, he actually thinks of increasing what he own at the expense of someone else. He feels that what he earns legitimately is too little for him and, therefore, he wishes to add to it in an illegitimate way. In short, the motive for stealing is to increase one’s income or one’s wealth. When a thief is punished according to Islam, his ability to show off is greatly curtailed and his need to work hard is much greater. And When a thief is punished, his hand is cut off up to the wrist. If he commits theft again, then his left foot is cut off up to the ankle. In the case of a third or fourth theft, Scholars have different views as to what is cut off.

He continue to remark that, Allah, who is the Most Compassionate of all those who exercise mercy says:

ﭽ ﭡ   ﭢ  ﭣ  ﭤ  ﭥ         ﭦ  ﭧ   ﭨﭩ  ﭭ  ﭼ المائدة: ٣٨

Cut off their hands in requital for what they have wrought, as an exemplary punishment ordained by Allah (al-Ma’idah: 38).

It is therefore a stern punishment that could serve as deterrent to others not to steal. To deter someone from committing crime is an act of mercy to that person, because he is prevented from committing a crime. It is also an act of grace to the whole community, because it ensures peace and security. No one may claim to be more merciful to people than Allah who created them except one with a blind mind and a dull soul. Practical evidence shows that this punishment was not enforced except in a handful of cases during a period approaching a whole century at the beginning of Islam. This is because Islamic society, with its own system and severe punishments and the safeguards it puts in place, did not witness less crimes.

al-Qayrawani (1994:211) and al-Maliki (2008:373-4) in their contributions on the punishment of a thief shows that:

He who steals a quarter of a dinar of gold or its equal, or the weight of three dirhams of silver, then his hand should to be cut if he steals from well-fortified place. And there is no cutting in the secret. The hand of the man and the woman and the slave is cut in that, then if he steals his left foot is cut, then if he steals his hand is cut, then if he steals then his foot, then if he steals he is lashed and prisoned.

al-Maliki (2008:375) further discusses that, if one steals another time, his foot is cut. Then if he steals for the third one, his left hand is cut, then if he returns back, his right foot is cut. Then if he steals he is reproached and prisoned.

On the severance of the hands of the thief if it were cut, Al-Maliki(2008:375)  postulates that, the hand of the thief is severed after the cutting, that it is cauterized with the fire, or it takes a way if is not exposed to the decay and the distraction. He then reported that:

أتى بسارق قد سرق شملة فقالوا: يا رسول الله، إن هذا قد سرق، فقال رسول الله عليه وسلم: ما أخاله سرق، فقال السارق: بلى يا رسول الله، فقال: اذهبوا به فاقطعوه ثم أخمسوه، ثم ائتوني به، فقطع فأتى به فقال: تب إلى الله. قال: قد تبت إلى الله. فقال تاب الله عليك (رواه الدار قطني، والحاكم والبيهقي وابن حبان).

 

A thief was brought to the Messenger of Allah (Peace be upon him) stole a clock. Thereupon they said: O Messenger of Allah said: I don’t think that you have stolen. The thief then said: Yes, indeed I have stolen O Messenger of Allah. He said: Take him, cut him and severe him, then bring him back to me. The man was then cut and brought back to him. The Messenger of Allah then said: Repent to Allah. He said: I have repented to Allah. Thereupon, the Messenger of Allah said: Allah (The Exalted) has forgiven you (ad-Daraqutni, al-Hakim, al-Baihaqi, and the son of Hibban, narrated as in Sabiq Vol.3, P. 375).

 

Based on the above Ahadith together with the explanations given by the scholars, it is enough for one to say that, the hand of the culprit male or female should be cut off after having or satisfied all the conditions and knowing that theft is forbidden and having no reasonable need to lay his hands on the property of others, he commits a crime for which he has no justification. Hence, no mercy should be shown on him or her once he or she is proven guilty.

Finally, on the issue of theft, Imam Malik is of the view that, the punishment to be meted for stealing property whose value is three (3) darahim of Silver or one-quarter (1/4) of dinar as A’isha (R.A.) was reported that:

أن رسول الله صلى الله عليه وسلم قطع فى مجن ثمنه ثلاثة دراهم (إمام مالك، 1982:347)

 

The Nobel Prophet (S.A.W) used to cut off the hand of a thief if the value of the property stolen was one over four (1/4) of a dinar (Imam Malik, 1982: 347).

Conclusion

It has been printed in the paper that Islam is a religion that protects wealth and property of an individual in the society and imposes severe punishment against thievery and robbery as well as banditry on them. It has been pointed also that one cannot be called thief and be punished, unless all the conditions stipulated by the Shari’ah are fulfilled. Thus, the problem of theft, banditry as well as robbery, can only be solved by enjoining what is good and prohibiting evils, giving sound religious education and by applying its punishment according to the dictates of the Shari’ah