Islamic Fiqh > Penalties (hudud) > Maharaba: brigandage and public insecurity > The brigand's repentance and restitution
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The people of knowledge agree: the brigands see Allah's right fall if they repent before power is had over them, according to the word of Allah: « Except for those who repent before you gain power over them. Know then that Allah is Forgiving, Merciful » (Surah al-Ma'ida, verse 34): they turn back from what they did, regret it and resolve not to do the like of it in the future.
This noble verse shows that the highway robber who repents before being seized sees the penalty fall: his repentance consists in returning the property to its owner if he seized the property only, together with the resolve not to do the like again; the amputation falls from the root, and execution as a fixed penalty. Likewise if he seized property and killed: the imam may no longer kill him as a penalty, but hands him over to the heirs of the slain for retaliation. If he took nothing and killed no one: his repentance is regret for what he did and the resolve to leave its like in the future: he comes to the imam of his own will and shows his repentance; imprisonment falls, for imprisonment was only for repentance, and it has come: imprisonment has no meaning (Bada'i' as-Sana'i' 7/96).
The vizier Ibn Hubayra (may Allah have mercy on him): they agreed that whoever repents before power is had over him sees Allah's rights fall; Abu Ishaq nevertheless reported in at-Tanbih from al-Shafi'i two views on the falling of the hand amputation of the highway robber: one, the amputation of the hand falls like the rest that falls from him; the other, the amputation of the hand does not fall for him specifically. And they agreed that the rights of human beings, property, persons and wounds, are exacted from the brigands until remission is granted them (al-Ifsah 2/289).
Ibn Qudama: if they repent before power is had over them, Allah's penalties fall, and they are held to the rights of human beings, persons, wounds and property, save remission; he knows of no disagreement on this among the people of knowledge: Malik, al-Shafi'i, the people of opinion and Abu Thawr said it, and the origin of it is al-Ma'ida 34. There fall the mandatory execution, crucifixion, amputation and banishment; there remain retaliation for persons and wounds, the value of the property and the blood money where retaliation does not apply. If he repents after power is had over him, no penalty falls: Allah made the penalty due then excepted those who repented before capture: whoever is outside them remains under the general rule. For repentance before capture is apparently sincere, while after it the apparent sense is caution against the penalty being applied; and accepting repentance and dropping the penalty before capture encourages him to turn back from brigandage and corruption, which no longer serves after, for he has become incapable of corruption and warring (al-Mughni 9/129-130; Sharh al-Zarkashi 3/140).
Al-Qurtubi (may Allah have mercy on him): the verse excepts those who repented before capture and announces the falling of His right by His word: « Know then that Allah is Forgiving, Merciful »; retaliation and the rights of human beings do not fall; and whoever repents after capture: the apparent sense of the verse is that repentance does not benefit and the penalties are applied. Al-Shafi'i has a view that every fixed penalty falls through repentance; the sound position of his school: whatever a human right attaches to, retaliation or other, does not fall through repentance, even before capture. It was said: the exception concerns the polytheist who repents and believes before capture: his penalties fall; this is weak: for if he believes after capture, he is likewise not killed, by consensus. The reason for refusal after capture: the suspicion of lying and pretence in their repentance once the imam's hand reaches them; or because once they are overpowered, exemplary punishment is due regarding them and repentance is no longer accepted, like communities seized by punishment before us, or the one at the agony point who repents; repentance prior to capture carries no suspicion and it benefits (Tafsir al-Qurtubi 6/158).
Al-'Imrani: if the highway robber repents after the imam has power over him, nothing falls of the penalties of brigandage incumbent on him: the verse conditions forgiveness and the falling of the rulings of brigandage upon repentance before capture; once the brigand is in the imam's grasp, the application of the penalty is due, and repentance in that state is suspected of caution: it makes nothing fall. If he repents before the imam has power over him: there fall, by unanimity, the penalties specific to brigandage, which are the amputation of the foot, the mandatory execution and crucifixion, according to al-Ma'ida 34. The rights of human beings, the slander penalty, the value of property and retaliation, never fall through repentance, in any state, whether one is a brigand or not (al-Bayan 12/510-511).
Ibn Taymiyya: the scholars agreed, as far as I know, that the highway robber, the thief and their like, raised to the holder of authority and then repenting, do not see the penalty fall: it must be applied despite their repentance; if they are sincere in repentance, the penalty is their expiation, and enabling them in it is of the completion of repentance, like restoring rights to their holders and enabling retaliation in the rights of human beings (Majmu' al-Fatawa 28/300).
Ibn Rushd opens the question of what repentance causes to fall (Bidayat al-Mujtahid 2/342-343). Is the brigand's repentance accepted? Two views: it is accepted, and this is the most famous, according to al-Ma'ida 34; it is not, say those who hold that the verse did not come down about brigands. The brigand concerned by accepted repentance: three views: the one who joins the land of war; the one who has a band; the one who is in whatever state: band or none, joined the land of war or not. And if the brigand holds out and the imam grants him safe conduct to come down: the safe conduct holds and the penalty of brigandage falls; or: he has no safe conduct, for safe conduct is granted only to the polytheist.
The description of repentance: three views. Ibn al-Qasim: it occurs in two ways: leaving his state without coming to the imam; or laying down his weapon and coming to the imam willingly. Ibn al-Majishun: it consists in leaving his state, staying in his place and showing himself to his neighbours; if he is brought to the imam before his repentance becomes manifest, the penalty is applied. Third view: repentance is only the coming to the imam: mere leaving drops no ruling if he is seized before coming. In sum: coming to the imam before capture; or repentance manifest before capture only; or both together.
What repentance causes to fall: four views. The first: it causes only the penalty of brigandage to fall: the rest, Allah's rights and the rights of human beings, remain; this is the view of Malik. The second: it causes the penalty of brigandage and all Allah's rights to fall: fornication, wine, the amputation of theft; the rights of human beings, property and blood, are pursued, save pardon by the heirs of the slain. The third: it causes all Allah's rights to fall; he is held for blood, and for property only what is found in their hands, without pursuing their liabilities. The fourth: it causes all Allah's rights and the rights of human beings to fall, blood and property, except existing property in kind in his hand.
The people of knowledge agreed: whoever incurs a penalty of Allah, such as fornication, the act of the people of Lut, theft or drinking wine, then repents after power over him has been had, is not cleared of it: none of these penalties falls, it is applied. Ibn Hubayra: the scholars agreed that whoever commits a sin carrying a fixed penalty does not see it lifted by repentance, and it is not permitted to the imam to pardon it once it reaches him (Sharh Sahih al-Bukhari 8/442). Ibn Taymiyya: agreement of the scholars, as far as I know (Majmu' al-Fatawa). Ibn al-Qayyim: the penalties do not fall through repentance after capture, by agreement (I'lam al-Muwaqqi'in 3/131).
The jurists differ over repentance before capture, for fornication, slander, theft or wine.
The Hanafis: only the penalty of theft falls if one repents before being seized; one remains held to the other penalties despite repentance before capture. If the thief repents before being caught and returns the property to its owner, the amputation falls; the other penalties do not fall through repentance. The distinction: the claim (khusuma) is a condition of minor as of major theft, for the place of the offence is a pure right of Allah's servants; now the claim ends with repentance, and repentance is completed by returning the property to its owner: once the property has reached its owner, no right of claim remains against the thief; the other penalties do not have the claim as a condition, its absence does not prevent their application; as for slander, the claim is a condition there, but it is not voided by repentance: what voids it, the return of the property, is not found there (Bada'i' as-Sana'i' 7/96).
It is narrated from 'Ali (may Allah be pleased with him) that his governor of Basra wrote to him: « Haritha ibn Zayd has waged war against Allah and His Messenger and striven after corruption in the land. » 'Ali wrote back to him: « Haritha has repented before you had power over him: do not approach him except with good. » And if the highway robber repents after power over him has been had, the penalty does not fall: repentance in theft works through the return of the property to its owner, and after the seizure there is no return but forced recovery: the penalty does not fall; and if he took no property, he is suspected, after the seizure, of merely displaying repentance: his repentance is not established.
The Malikis: repentance causes no penalty at all to fall: the thief, the slanderer and the fornicator, once they repent and then the testimony stands over them, have their penalties applied. The proof: the saying of the Prophet (may the peace and blessings of Allah be upon him) about the woman of the Juhayna tribe:
She repented with a repentance which, if it were divided among seventy of the people of Madina, would cover them. And what repentance is more excellent than one that gives her very self to Allah, exalted is He?Muslim 1696
And his saying about the woman of the Ghamid:
She repented with a repentance which, if the collector of unlawful taxes were to make it, he would be forgiven.Muslim 1695
The application of the penalty by the Messenger of Allah upon these two women despite their repentance is decisive proof that the falling of the penalty through repentance is the privilege of the brigands alone (Sharh Sahih al-Bukhari 8/443; Ahkam al-Qur'an of Ibn al-'Arabi 2/115; Tafsir al-Qurtubi 5/91; Bidayat al-Mujtahid 2/329). Al-Qurtubi's nuance: the drinkers, fornicators and thieves who repent, reform, and whose it is known, then are raised to the imam: it is not fitting that he punish them; but if they are raised to him and say: « we have repented », they are not left: they are then like vanquished brigands, and Allah knows best (Tafsir al-Qurtubi 6/158).
The Shafi'is in the more correct view, and the Hanbalis in one view, like the Malikis and the Hanafis for other than theft: the brigand and the non-brigand who incurs a penalty not specific to brigandage, fornication, slander, wine or theft, then repents, does not see the penalty fall, according to: « The fornicatress and the fornicator: flog each of them a hundred strokes » (Surah an-Nur, verse 2); « The thief and the thieftess: cut off their hands » (Surah al-Ma'ida, verse 38); and the saying of the Prophet:
Whoever drinks wine ... flog him.Abu Dawud 4485; at-Tirmidhi 1444; an-Nasa'i 5661
No distinction is made there between the repentant and the unrepentant; and it is a penalty not specific to brigandage: it does not fall through repentance, like the slander penalty.
The Shafi'is in the view opposite the more correct, which al-'Imrani prefers and holds to be the sounder, and the Hanbalis in the second view: the penalties fall through repentance before capture. Al-'Imrani details (al-Bayan 12/511, 513): the penalties due to Allah's right and not specific to brigandage, such as fornication, the act of the people of Lut, wine and theft: do they fall through repentance? Two views. The first: they do not fall, so said Abu Hanifa, according to the verses and the wine hadith already cited, without distinction. The second: they fall, and this is the sounder: al-Ma'ida 34 announces that the brigand who repents before capture is forgiven all that came from him; al-Ma'ida 38-39: « The thief and the thieftess: cut off their hands as a recompense for what they earned » then « But whoever repents after his wrongdoing and reforms, Allah will accept his repentance »; an-Nisa 16: « If they repent and reform, leave them alone »; and the prophetic saying:
Repentance wipes out what preceded it.Ahmad 17812; the received text is: « Islam wipes out what preceded it, and emigration wipes out what preceded it »
And the hadith of the man who came seeking the application of the penalty:
I was with the Prophet (may the peace and blessings of Allah be upon him) when a man came and said: Messenger of Allah, I have committed a sin carrying a penalty, apply it to me. He did not question him about it. The prayer came in and he prayed with the Prophet; when the Prophet had finished the prayer, the man stood up and repeated his request. He said: Did you not pray with us? He said: Yes. He said: Allah has forgiven you your sin, or: your penalty.Al-Bukhari 6437; Muslim 2764
The apparent sense is that the penalty fell only through the reform of the deed. On this view: the penalties incurred during the state of brigandage fall through repentance, without requiring the reform of the deed for their fall; and those incurred outside brigandage fall only once the reform of the deed is joined to repentance. The difference: the brigand displays acts of disobedience: if he repents, the apparent sense of his state is that he did not repent for form's sake, but turned back from what he was upon; the other does not display them: his repentance is suspected of being for form, so his repentance is not judged established until reform accompanies it, and reform is required of him for a duration in which his repentance is trustworthy.
The amputation of the hand for seizure of property in brigandage divides the companions of al-Shafi'i. Abu Ishaq: it is not specific to brigandage, for it is due only for a seizure reaching the threshold: it is like the amputation of theft. Abu 'Ali ibn Abi Hurayra and Abu 'Ali at-Tabari: it is specific to brigandage, for the verse attaches the cutting of hand and foot, both together, to warring; and it is due for a seizure by open force, unlike theft, a taking by stealth from its place of safekeeping. On Abu Ishaq's view: two views on whether the amputation falls if the highway robber repents before capture. On the view of the two Abu 'Ali: it falls through repentance before capture, by a single view. Al-Mas'udi in al-Ibana: if he repents before being seized, the correct position is that what is a right of Allah, like amputation, falls, and what is a right of a human being, like mandatory retaliation, does not fall; it was said that retaliation falls too: it is nothing; and if he repents after being seized: two views, from which the companions derived the two views on fornication and wine (al-Bayan 12/511, 513; an-Najm al-Wahhaj 9/213; Mughni al-Muhtaj 5/501).
Ibn Qudama: whoever, outside the brigands, incurs a penalty then repents and reforms: two narrations. The first: it falls, according to an-Nisa 16: « If they repent and reform, leave them alone », and al-Ma'ida 39, and the saying of the Prophet: « The one who repents of sin is like the one who has no sin » (Ibn Majah 4250, hasan hadith), and whoever has no sin has no penalty; and the Prophet said of Ma'iz, when told of his flight: « Why did you not leave him to repent, so that Allah would accept his repentance? »; and it is a pure right of Allah: it falls through repentance like the brigand's penalty. The second: it does not fall; it is the view of Malik, Abu Hanifa and one of al-Shafi'i's two views: an-Nur 2 is general over the repentant and the others; al-Ma'ida 38; and the Prophet stoned Ma'iz and the Ghamidiyya and cut the hand of the one who confessed theft, though they came repentant, seeking purification through the application of the penalty, and the Messenger of Allah named their deed repentance by his saying about the woman: « She repented with a repentance which, if it were divided among seventy of the people of Madina, would cover them »; and 'Amr ibn Samura came to the Prophet and said:
Messenger of Allah, I stole a camel belonging to the sons of so-and-so: purify me.Ibn Majah 2558; weak chain
And the Messenger of Allah applied the penalty upon them; and the penalty is an expiation: it does not fall through repentance, like the expiation of an oath and of killing; and power is had over him: repentance no more clears him than the brigand after capture. If one says it falls through repentance: through repentance alone, the apparent sense of our companions' view, for it is a repentance that makes the penalty fall, like the brigand's before capture; or with the reform of the deed, according to an-Nisa 16 and al-Ma'ida 39: then a period elapses in which the sincerity of his repentance and the uprightness of his intention are known, without a determined duration; some companions of al-Shafi'i said: its duration is a year: this is a setting of time without proof, it does not hold (al-Mughni 9/130-131).
Ibn al-Qayyim (I'lam al-Muwaqqi'in 2/97-98): as for considering only the brigand's repentance before capture to the exclusion of others, it is said: where in the Lawgiver's texts is this distinction? Rather, His text on considering the brigand's repentance before capture is an indication, a fortiori, of considering that of others: if his repentance repels from him the penalty of his brigandage, despite the severity of its harm and its transgressive character, repentance repels all the more what is below the penalty of brigandage, with stronger reason; Allah said: « Say to those who disbelieve that if they cease, what has previously occurred will be forgiven them » (Surah al-Anfal, verse 38); and the Prophet said: « The one who repents of sin is like the one who has no sin »; Allah made the penalties a punishment for the authors of crimes, and He lifted punishment from the repentant, in law as in decree: there is, in Allah's law nor in His decree, no punishment of a repentant at all.
In the two Sahihs, from Anas, the hadith of the man who came seeking the penalty, already cited: coming of his own accord, unlooked for, Allah forgave him and the penalty he had confessed was not applied; this is one of the two views of the question, one of the narrations from Ahmad, and it is the correct one.
If it is objected: Ma'iz came repentant, the Ghamidiyya came repentant, and the penalty was applied to them both, it is answered: no doubt they came repentant, and no doubt the penalty was applied: on them the holders of the other view rely. I asked my shaykh, who answered, in substance: the penalty purifies and repentance purifies; they chose purification by the penalty over purification by repentance alone, and they would accept nothing but purification by the penalty; the Prophet acceded to them and pointed to choosing purification by repentance over purification by the penalty, saying of Ma'iz: « Why did you not leave him to repent? »; were the penalty due after repentance, leaving it would not be permitted; rather the imam chooses between leaving it, as he said to the one who confessed a penalty: « Go, Allah has forgiven you », and applying it, as he applied it to Ma'iz and the Ghamidiyya when they chose its application and would accept nothing but purification by it; that is why the Prophet turned them away repeatedly while they refused that it not be applied to them. This path is middle between the way of those who say: its application is not permitted after repentance at all, and the way of those who say: repentance has no effect at all in making it fall; and if you examine the Sunna, you find it indicates only this middle view, and Allah knows best.
The jurists of the four schools agree: brigands who took property and had Allah's penalties applied upon them, if the property still exists, it is returned to its owner, who takes it wherever he finds it: in the brigand's hand, or in the hand of whoever received it from the brigand by sale, gift or otherwise.
They differ over destroyed or non-existent property: is compensation due or not? It is the divergence already set out at the end of the questions of theft. The Shafi'is and Hanbalis: compensation is due; it lies upon the taker, not the helper, for the existence of compensation is not a fixed penalty: it does not attach to other than its direct author, like usurpation and plunder; even if the brigands repent before capture, the rights of human beings attaching to them, retaliation and compensation, specialize to the direct author, not the helper; and were compensation due in theft, it would attach to the direct author, not the helper (al-Hawi al-Kabir 13/342-343; al-Ifsah 2/277-278; al-Mughni 9/131-132).
The Hanafis: if the property changed, by increase or decrease, or the item perished or was consumed, compensation is not due, for compensation and amputation do not combine when the stolen item perishes; from Abu Hanifa: compensation is due in case of destruction; their detailed exposition is in the chapter of theft (Bada'i' as-Sana'i' 7/84-85, 97; Fath al-Qadir 5/413; al-Ikhtiyar 4/134; al-Fatawa al-Hindiyya 2/184).
The Malikis: brigands who took property and had the penalty applied guarantee the property absolutely, whether the taking remains or not, and whether the brigand comes repentant or not. Each of them is a guarantor of the property taken by his act and by his companion's act: they are like joint sureties (hamala): whoever of them is reached pays the totality of what he took and what his companions took, for they strengthen one another; and whoever pays more than he took has recourse against his companion; likewise thieves, usurpers and rebels. If a penalty of brigandage is applied to the brigand, he is pursued for his taking on condition of solvency between the brigandage and the application of the penalty; if the penalty of brigandage was not applied to him, having come repentant before capture, he is pursued absolutely, as is the case of the thief (at-Taj wa-l-Iklil 5/365-366; Sharh Mukhtasar Khalil 8/106-107; ash-Sharh al-Kabir with the Hashiyat ad-Dusuki 6/363; at-Tahbir 5/395-396).
Contemporary applications of this chapter depend on legislation; this page restores the textual foundation shaped by the jurists.