Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > Special cases: what is not theft
Contents
Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
One who denies the borrowed item ('ariyah):
The jurists differed on the ruling of one who denies a borrowed item: is his hand to be cut off or not?
The Hanbalis held, as the position of the madhhab, that amputation is due from one who denied the borrowed item, because Aishah, may Allah be pleased with her, reported:
There was a woman from the Makhzum tribe who would borrow goods and then deny them. The Prophet, may the peace and blessings of Allah be upon him, ordered that her hand be cut off. Her family went to Usamah ibn Zayd to speak to him about it, and Usamah spoke to the Prophet, may the peace and blessings of Allah be upon him, about her. The Prophet, may the peace and blessings of Allah be upon him, said to him: "O Usamah, are you interceding regarding one of the limits prescribed by Allah, the Most High?" Then the Prophet, may the peace and blessings of Allah be upon him, stood up and delivered a sermon: "Those who came before you perished only because when the noble among them stole, they would leave him, and when the weak stole, they would cut off his hand. By the One in Whose hand my soul is, if Fatimah, the daughter of Muhammad, had stolen, I would have her hand cut off." So he had the hand of the Makhzumi woman cut off.
reported by Muslim (1688), Abu Dawud (4374) and Ahmad (25336)
This text is explicit that the amputation was for the denial of the borrowed item, and her being described as a "thief" in the Sahih is proof that one who denies a borrowed item is called a thief: what counts is the religious designation (2).
The majority of jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis in one narration, held that no amputation applies to one who denies a borrowed item, due to the hadith of Jabir ibn Abdullah, may Allah be pleased with both of them, that the messenger of Allah, may the peace and blessings of Allah be upon him, said:
There is no amputation for the betrayer of trust.
authentic hadith: reported by Abu Dawud (4391, 4392), al-Nasa'i (4973, 4974) and Ahmad (15112)
(1) Reported by Muslim (1688), Abu Dawud (4374) and Ahmad (25336).
(2) Al-Mughni (9/93, 94), Al-Kafi (4/174), Sharh al-Zarkashi (3/123, 124), Al-Mubdi' (9/155), Al-Insaf (10/253), Kashshaf al-Qina' (6/164), Manar al-Sabil (3/335).
(3) Authentic hadith: reported by Abu Dawud (4391, 4392), al-Nasa'i (4973, 4974) and Ahmad (15112).
Indeed, what is obligatory is the amputation of the thief, whereas the denier is not a thief: he is a betrayer of trust, so he is like one who denies a deposit entrusted to him.
As for the account of the Makhzumi woman, it does not indicate that amputation is due from the borrower when he betrays the trust, for it is not stated therein that he had her hand cut off because of her denial of the borrowed item; the mention of the denial serves only to identify her, for this was her habit to the point that she was known for it, and she was thus described by way of identification. It is established in the hadith reported from Aishah, may Allah be pleased with her:
The matter of the Makhzumi woman who stole preoccupied the Quraysh, and they said: "Who will speak to the messenger of Allah, may the peace and blessings of Allah be upon him, about her?" They said: "Who would dare speak to him about it except Usamah, the beloved of the messenger of Allah, may the peace and blessings of Allah be upon him?" Usamah spoke to him, and the messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Are you interceding regarding one of the limits prescribed by Allah?!" Then he stood up and delivered a sermon: "O people, those who came before you were destroyed only because when the noble among them stole, they would leave him, and when the weak stole, they would apply the penalty upon him. By Allah, if Fatimah, the daughter of Muhammad, had stolen, I would have her hand cut off."
reported by al-Bukhari (6406) and Muslim (1688)
This woman is the very one mentioned in the report as borrowing goods and denying them. These reports show that he had her hand cut off for her theft, not for her denial of the borrowed item, as indicated by his word, may the peace and blessings of Allah be upon him, to Usamah regarding her: "Are you interceding regarding one of the limits prescribed by Allah?", whereas Allah, the Most High, laid down no prescribed limit in His Book, nor in the established Sunnah of His Prophet, may the peace and blessings of Allah be upon him, concerning one who borrows goods and then denies them.
The hadith contains another proof, namely his word, may the peace and blessings of Allah be upon him: "Those who came before you were destroyed only because when the noble among them stole, they would leave him, and when the weak stole"
(1) Reported by al-Bukhari (6406) and Muslim (1688).
They also stated that if the fruits are brought to the drying ground (jarin) or the house, and someone steals them, and what he stole reaches the nisab of theft, amputation applies (1).
(1) Al-Muwatta' in the recension of Muhammad ibn al-Hasan (3/41), Al-Mabsut (9/155), Bada'i' al-Sana'i' (7/73), Al-Umm (6/133), Sharh al-Zarkashi (3/123).
The jurists differed on the ruling of one who steals a bird or game: is the penalty to be applied to him or not?
The Hanafis held, as the position of the madhhab, contrary to Abu Yusuf, that there is no amputation for stealing birds, whether falcons, sakers or other birds such as ducks, chickens and pigeons, nor for wild beasts among game animals, because birds are not ordinarily held as wealth. It is reported from our master Uthman and our master Ali, may Allah be pleased with both of them, that they said: "There is no amputation for a bird", and no contrary view is transmitted from anyone else, so it amounts to a consensus.
Yazid ibn Khudhayfah said: a man who had stolen a bird was brought before Umar ibn Abd al-Aziz, and he consulted al-Sa'ib ibn Yazid about it, who said: "I have never seen anyone impose amputation for a bird, and no amputation is due from him for that", so Umar ibn Abd al-Aziz let him go and did not have him amputated (2).
(2) Reported by Ibn Abi Shaybah in his Musannaf (5/522).
Indeed, this exists in its original form as freely available, it is not sought after, and its safekeeping is not ordinarily secured among people. The act constitutes, in one respect, hunting, and hunting is permissible; and the apparent meaning of the word of the Prophet, may the peace and blessings of Allah be upon him: "The game belongs to the one who takes it" gives rise to a doubt, and amputation is averted by doubt.
The adult, sane slave is not stolen as such; he can only be deceived in some way, unless he is in a state of lost reason, through sleep or insanity, in which case his theft is valid and his thief is amputated.
If the one stolen while asleep or insane is a mother of a child (umm walad), there are two views on amputating her thief:
The first: he is not amputated, because she may not lawfully be sold, nor may ownership be transferred concerning her: she is like a free woman.
The second: he is amputated, because she is a slave guaranteed by her value: she is like the ordinary slave (qinn), and the ruling of the mudabbar slave is that of the ordinary slave, because he may lawfully be sold and is guaranteed by his value.
As for the mukatab (slave under a manumission contract), his thief is not amputated, because his master's ownership of him is not complete, since he owns neither his services, nor his use, nor the taking of compensation for an offense committed against him. If the master committed an offense against him, the compensation would be due to him; if he took his services by force, he would owe their recompense; if he imprisoned him, he would owe the hire of his like for the duration of the imprisonment, or to keep him waiting for a period equal to his imprisonment. Nor is amputation due on account of the mukatab's ownership of himself, for a human being does not own himself: he is like the free man. If someone steals from the mukatab's property, however, amputation applies, because the mukatab's ownership of his own property is established, unless the thief is his master, in which case there is no amputation, for he has a right and a doubt concerning his property that avert the penalty; and for that reason, if he had relations with his own female slave, the penalty would not be applied to him (1).
(1) Al-Mughni (9/96).
The majority of jurists stated that one who steals flowing water incurs no amputation thereby, even if the value of the stolen water reaches the nisab, and whether or not it is securely kept, because water is not ordinarily held as wealth. Imam Ibn Qudamah, may Allah have mercy on him, said: I know of no disagreement on this (1).
(1) Al-Mughni (9/97).
He also said, may Allah have mercy on him: if he steals pasture (kala) or salt, Abu Bakr said: there is no amputation for it, because it is among the things the Law has made shared by people, so it is like water.
Abu Ishaq Ibn Shaghala said: amputation applies to it (and this is the position of the Malikis) (2), because it is ordinarily held as wealth: it is like straw and barley.
(2) Tahbir al-Mukhtasar (5/346).
As for snow, al-Qadi said: it is like water, because it is solidified water, resembling ice; the more likely view is that it is like salt, because it is ordinarily held as wealth: it is like salt congealed from water.
As for earth: if it is of the kind desires hold in little regard, such as that prepared for mortar and building, there is no amputation for it, because it is not held as wealth; if it is of great value, such as Armenian clay prepared for medicine, or intended for washing or dyeing like ochre, two views are possible:
The first: no amputation, because it belongs to the category of what is not held as wealth: it resembles water.
The second: amputation applies, because it is ordinarily held as wealth and is carried to countries for trade in it: it resembles Indian aloes wood.
There is no amputation for stealing dung: if it is impure it has no value, and if it is pure it is not ordinarily held as wealth and desires in it are few: it resembles building earth.
What is made from earth, such as bricks and pottery, is subject to amputation, because it is ordinarily held as wealth (3).
(3) Al-Mughni (9/97).
And if it came from it and was specifically designated for spending, and we held the more correct view: "that it attaches in the manner of partnership", then there is no amputation, as with jointly owned property (1).
(1) Al-Bayan (12/470, 471), al-Najm al-Wahhaj (9/160), Mughni al-Muhtaj (5/466).
The jurists differed regarding the creditor who steals from his debtor's property: is he to be amputated or not? Is a distinction to be made between stealing the same type as his right or otherwise? Each madhhab has a detailed treatment.
The Hanafis held that when the creditor steals from the debtor, there are only two cases: either he stole from him the same type as his right, or he stole from him a type other than his right.
If he steals the same type as his right, by stealing ten dirhams from him while being owed ten by him: if his debt is immediately due, he is not amputated, because the taking is lawful for him, since he has laid hold of the same type as his right; whoever holds a right and lays hold of the same type as his right may lawfully take it, and by taking it he becomes one who has recovered his right. The same applies if he steals more than the amount of his right, because part of what is taken is his right in common ownership, and no amputation applies to it; likewise for the remainder, as when one steals jointly owned property.
If his debt is deferred, analogy requires that he be amputated, while according to juristic preference (istihsan) he is not amputated.
The basis of analogy: when the debt is deferred, he has no right to take before the due date; do you not see that the debtor may reclaim it from him? His case becomes as if a stranger had stolen it.
The basis of juristic preference: even if the right of taking is not established before the due date falls due, the cause establishing the right of taking exists, namely the debt, for the effect of deferral is postponement of the claim, not the extinction of the debt; the existence of the cause of its establishment gives rise to a doubt.
If he steals a type other than his right, by being owed dirhams and stealing dinars or goods from him: he is amputated if he does not say: "I took it on account of my right", for if he does not say so, he has taken property he had no right to take.
However, if he steals goods and then says: "I took it on account of my right", he is not amputated.
If he takes a sort of dirhams better or worse than his right, he is not amputated, because what is taken is of the type of his right in origin, differing only in quality.
If he steals silver jewelry while being owed dirhams, or gold jewelry while being owed dinars, he is amputated, because this only becomes compensation from his right through mutual consent, and it then constitutes sale and exchange: it resembles goods. If the thief has consumed the goods or the jewelry and its value is due from him, equal to what is due from him in currency, he is amputated as well, because compensations only take effect after consumption: this entails nothing besides amputation.
If he steals from a debtor who is his father or his child, he is amputated, because he has no right to it nor to seizing it, except when the debtor is his young child, in which case he is not amputated, because the right of seizure belongs to him as with a debt of his own (1).
(1) Bada'i' al-Sana'i' (7/71, 72).
The Malikis held that one who steals the amount of his right, even of a type other than it, or above it below the nisab, from the property of one denying his right, whether the denied right is a deposit or something else such as a debt arising from a loan or a sale, or whether he denied it or stalled him: no amputation applies. The basis for this is the hadith of Hind. This applies if the thief produces evidence that he has property with him and that he stalled him concerning it; otherwise he is amputated. The admission of the owner of the stolen item, that the property is his and that he denied it or stalled him over it, is not considered, because he is suspect.
Some of them restricted the absence of amputation to the stolen item being of the same type as the debt, saying: were he to steal of another type, he would be amputated.
Likewise, no amputation applies to one who steals from another three dirhams or more owed to him, while the attendance of witnesses proves impossible; then, when the victim produces evidence of the theft and amputation becomes due upon the thief, the thief produces evidence that the property is his and that the victim denied it to him.
The absence of amputation is thus tied to denial or stalling; as for when he acknowledges it and does not stall, he is amputated (1).
(1) Al-Taj wa al-Iklil (5/351), Sharh Mukhtasar Khalil (8/96), Al-Sharh al-Kabir with the hashiyah of al-Dasuqi (6/342), Tahbir al-Mukhtasar (5/371).
The Shafi'is held that one who steals from the property of his debtor who denies the immediately due debt or stalls him, and takes it with the intention of recovery, is not amputated, because he is then lawfully authorized to take it; property of a type other than his right is like it, that is, like the type of his right in this respect. Nor is he amputated for an excess above the amount of his right taken along with it, even if the excess reaches the nisab independently, because once he is able to enter and take, the property is no longer securely kept from him.
If the debt is not immediately due but deferred and its term has not fallen due, or he is not stalling, he is amputated, for he then has no doubt (1).
(1) Asna al-Matalib (4/140), Mughni al-Muhtaj (5/466).
The Hanbalis held that when the creditor steals from the property of one who owes him a debt, whether a usurper or the like, or a debtor, there are only two cases:
Either he is willing to pay and not refusing, or the owner was able to take his property but left it and stole from the offender's property outside the safekeeping of his own property, or stole from the debtor's property: amputation applies, for absence of doubt.
However, if the creditor is unable to recover it, or the injured party is unable to recover the compensation for the offense committed against him, and he steals the amount of his debt or of his compensation: there is no amputation, because some scholars allowed him this taking; the disagreement over the lawfulness of the taking is thus a doubt averting the penalty, like intercourse in a marriage whose validity is disputed.
If the creditor steals more than his debt, his case is like that of the victim of usurpation who steals more than his property: if the excess reaches the nisab and he took the excess from the very place where his property is, there is no amputation upon him, because the violation of the safekeeping committed to take his property renders the place not securely kept with respect to everything in it.
If he took the excess from somewhere other than the safekeeping containing his property, amputation applies, for absence of doubt.
Imam Ibn Qudamah, may Allah have mercy on him, said: if someone steals an amount reaching the nisab or usurps it and secures it, then the owner comes, breaks the safekeeping open and takes his property, there is no amputation upon him according to anyone, whether he took it by theft or otherwise, because he took his own property.
If he steals something else, there are two views:
The first: no amputation, because he has a doubt regarding the violation of the safekeeping and the taking of his property: he becomes like one stealing outside a safekeeping; and he has a doubt regarding taking the amount of his property, some scholars having held it lawful for a person to take the amount of his debt from the property of the one who owes it.
The second: amputation applies, because he stole an amount reaching the nisab from its safekeeping with no doubt in it; he may only take the amount of his property when unable to take his property, whereas here he was able to take his property, so it was not lawful for him to take other than it. The same ruling applies when he takes his property and also takes an amount reaching the nisab distinct from his property; if it is mixed with his property and not distinct from it, there is no amputation upon him, because he took his property, which he may take, and obtained the other by necessity of that taking: he ought not to be amputated for it; and he has a doubt in this taking, and penalties are averted by doubts.
As for when he steals other property from somewhere other than the safekeeping containing his property, or he is owed a debt by someone and steals from his property the amount of his debt from its safekeeping: consider; if the usurper or the debtor is willing to give what is due without refusing, or the owner was able to take his property but left it and stole the usurper's or the debtor's property: amputation applies, for he has no doubt in it; if he is unable to recover his debt or the compensation for his offense and steals the amount of his debt or his right: there is no amputation upon him.
Al-Qadi said: amputation applies, based on our principle that he may not take the amount of his debt.
Our argument: this is a matter of disagreement as to its lawfulness, so the penalty is not due upon it, like intercourse in a marriage whose validity is disputed; the unlawfulness of the taking does not prevent the doubt arising from disagreement, and penalties are averted by doubts. If he steals more than his debt, his case is that of the victim of usurpation who steals more than his property, as has preceded (1).
(1) Al-Mughni (9/102, 103), Kashshaf al-Qina' (6/182, 183), Sharh Muntaha al-Iradat (6/252, 253), Matalib Uli al-Nuha (6/244).
The jurists differed regarding the case where either spouse steals property from the other: is the penalty to be applied to him or not?
The Hanafis, the Shafi'is in one view and the Hanbalis in the position of the madhhab, with a detailed treatment among them all, held that if either spouse steals from the other's property: if it is not securely kept from him, there is no amputation; and if he steals what has been secured, there is likewise no amputation according to the Hanafis and the correct view of the madhhab among the Hanbalis, because of the word of Umar, may Allah be pleased with him, to Abdullah ibn Amr ibn al-Hadrami when he said to him: "My slave stole my wife's mirror": "Send him back; no amputation is due upon him; your servant took your belongings." If his slave is not amputated for stealing her property, the husband is a fortiori not. Each of them also inherits from the other without exclusion, their testimony for one another is not accepted, and each freely disposes of the other's property as a habit: they resemble parent and child.
Moreover, each spouse has a doubt in the other's property: the wife, because of her entitlement to maintenance from the husband's property; the husband, because he may place her under interdiction and prevent her from disposing of her property, according to some jurists; and custom is that neither spouse keeps his property secure from the other, and should one do so, it would be rare: the rare is annexed to the prevalent.
The Hanafis said: it makes no difference whether he steals from the house they both occupy or from another house, because each of them enters the other's dwelling and benefits from the other's property as a habit, and this entails a defect in the safekeeping and in ownership as well (1).
(1) Bada'i' al-Sana'i' (7/75, 76), Tabyin al-Haqa'iq (3/220), Al-Jawharah al-Nayyirah (5/397, 398), Al-Lubbab (2/328), Al-Muhadhdhab (2/281), Al-Bayan (12/475, 477), Rawdat al-Talibin (6/551), al-Najm al-Wahhaj (9/159), Mughni al-Muhtaj (5/446), Al-Mughni (9/117), Al-Kafi (4/179), Kashshaf al-Qina' (6/181), Manar al-Sabil (3/340).
The Malikis, the Shafi'is in the more preponderant view and the Hanbalis in one narration, as well as Abu Thawr and Ibn al-Mundhir, held that either spouse is amputated when stealing from the other, because of the generality of the verse, and because this is a legally responsible person who stole property securely kept from him with no doubt in it: he resembles a stranger; marriage entails no partnership in property, nor any doubt in it: it is merely a contract over benefits (1).
(1) Al-Ishraf ala Nukat Masa'il al-Khilaf (4/487), Al-Muhadhdhab (2/281), Al-Bayan (12/475, 477), Rawdat al-Talibin (6/551), al-Najm al-Wahhaj (9/159), Mughni al-Muhtaj (5/446), Al-Mughni (9/117), Al-Kafi (4/179).
The Shafi'is, in a third view, held that the husband is amputated but not the wife, because he has no right to any of her property; and the wife is not to be amputated for stealing the husband's property, because the wife has a right in his property (2).
(2) Al-Muhadhdhab (2/281), Al-Bayan (12/475, 477), Rawdat al-Talibin (6/551), al-Najm al-Wahhaj (9/159), Mughni al-Muhtaj (5/446).
This preceding disagreement concerns the case where marriage subsists. If separation occurs, or he divorces her before consummation, the Hanafis give a detailed treatment: if a woman steals from her husband, or a man steals from his wife, and he then divorces her before consummation so that separation takes effect without a waiting period, neither of them is amputated, because the taking, at the time of its occurrence, was not constituted as a cause of amputation due to the subsistence of marriage, and it is not constituted at separation, because separation supervenes; the principle is that what supervenes is not deemed concomitant in the ruling, because of the contradiction with reality it would entail, except when taking it into account entails dropping the penalty at the time of assessment; here taking it into account entails establishing the penalty, so it is not considered.
If he steals from his divorced wife while she is in her waiting period, or his divorced wife steals from him while in her waiting period, neither of them is amputated, whether the divorce is revocable, irrevocable or a triple divorce, because marriage, during the waiting period, subsists in one respect, or its effect subsists, namely the waiting period. The subsistence of marriage in every respect prevents amputation, so its subsistence in one respect, or the subsistence of its effect, gives rise to a doubt.
If a man steals from a marriageable woman and then marries her, there are only two cases: either he marries her before amputation is ruled against him, or he marries her after it has been ruled. If he marries her before the ruling, he is not amputated, without disagreement, because this is an impediment supervening upon the penalty, and a supervening impediment in penalties is like a concomitant one, for penalties are averted by doubts: the supervention of marriage thus becomes a doubt preventing amputation, like its concomitance.
If he marries her after amputation has been ruled, he is not amputated according to Abu Hanifah, may Allah have mercy on him, because execution in the domain of penalties is part of adjudication, so the doubt arising before execution is like that arising before judgment. Do you not see that if a man slanders another with fornication and the penalty is ruled against him, and the slandered man then commits fornication before the penalty is executed upon the slanderer, the penalty falls from the slanderer, and the fornication supervening upon the penalty is treated as existing at the time of the slander? Thus it is known that what supervenes upon penalties before execution has the status of what exists before judgment.
The majority of jurists of the four madhhabs stated that any property other than these is subject to amputation, whether food that does not perish quickly, garments, animals, stones, reeds, game, lime, gypsum, orpiment, spices, pottery, glass or anything else.
The jurists differed regarding fresh food that perishes quickly, such as fruits and watermelon: is one who steals from it an amount reaching the nisab to be amputated or not?
The Hanafis held, as the position of the madhhab, that no amputation applies to the thief of fresh food that perishes quickly, such as fresh fruits, cooked dishes, meat, milk and watermelon, because of the word of the messenger of Allah, may the peace and blessings of Allah be upon him:
There is no amputation for fruit nor for kathar (palm heart).
authentic hadith: reported by Abu Dawud (4388), al-Tirmidhi (1449), al-Nasa'i (4960), Ibn Majah (2593) and Ahmad (3/463)
The kathar is the palm heart, and it has also been said: the young date palms, meaning the small palm trees. This food is also exposed to ruin: it resembles what is not securely kept.
If he steals a slaughtered sheep, or slaughters it himself and then takes it out, he is not amputated, because it has become meat, for which there is no amputation.
Fresh fruits, such as grapes, quinces, apples, pomegranates and the like, are not subject to amputation even if gathered in an enclosure with a locked door, because these things are not ordinarily held as wealth, even if fit for immediate use: they do not tolerate storing and keeping until the time when future needs arise; their weight in people's eyes is therefore small and they are trifling.
(1) Authentic hadith: reported by Abu Dawud (4388), al-Tirmidhi (1449), al-Nasa'i (4960), Ibn Majah (2593) and Ahmad (3/463).
As for dry fruits, such as walnuts and almonds, amputation applies to them when they are securely kept.
There is no amputation for leafy vegetables, eggplant or basil.
Amputation applies to henna and wasmah, because they do not perish quickly (1).
(1) Al-Mabsut (9/153), Bada'i' al-Sana'i' (7/69), Al-Hidayah (2/120), Sharh Fath al-Qadir (5/384), Al-Jawharah al-Nayyirah (5/388, 389).
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, as well as Abu Yusuf among the Hanafis, held that amputation applies, because of the generality of the word of Allah, the Most High:
As for the thief and the female thief, cut off their hands.
Surah Al-Ma'idah, 38
Amr ibn Shu'ayb reported from his father, from his grandfather, that the messenger of Allah, may the peace and blessings of Allah be upon him, was asked about hanging fruit; he mentioned the hadith and then said:
Whoever steals anything from it after the drying ground has sheltered it, and it reaches the value of a shield, is subject to amputation.
good hadith (hasan): reported by Abu Dawud (1710), al-Tirmidhi (1289), al-Nasa'i (4957) and Ibn Majah (2596)
It is also a consensus of the Companions, may Allah be pleased with them. Amrah bint Abd al-Rahman reported "that a thief stole a citron in the time of Uthman, may Allah be pleased with him; it was valued at three dirhams, at the rate of twelve dirhams to a dinar, and he ordered his hand cut off". None of the Companions contradicted him. This is moreover property ordinarily held as wealth and desired: its thief is amputated when the conditions are met, like dried produce; and what entails amputation when worked entails it before working, like gold and silver.
(1) Al-Mabsut (9/153), Bada'i' al-Sana'i' (7/69), Al-Hidayah (2/120), Sharh Fath al-Qadir (5/384), Al-Jawharah al-Nayyirah (5/388, 389).
(2) Good hadith: reported by Abu Dawud (1710), al-Tirmidhi (1289), al-Nasa'i (4957) and Ibn Majah (2596).
By analogy: it is a type of property, so amputation must be due for stealing it as for all other property; what entails amputation when dry entails it when fresh, like cotton and garments; and fresh food is tastier and more appetizing, souls being more inclined to consume it: amputation is thus more deserving in its case.
As for his words: "There is no amputation for fruit nor for kathar", they concerned what is not securely kept, for their fruits used to be left exposed, and that is why he said: "When the drying ground shelters it, amputation applies to it."
As for their argument: "it is exposed to perishing", there are two answers:
The first: it is exposed to use rather than to being given away, just as dry food is used; the shortness of its remaining does not entail lifting amputation, like the sick sheep, for which amputation is due even though it does not last long.
The second: it is an analogy combining what is secured and what is not, while the two differ regarding the obligation of amputation, because safekeeping is a condition (1).
(1) Al-Tamhid (23/309), Al-Hawi al-Kabir (13/274, 275), Al-Mughni (9/97).
Imam Ibn Rushd, may Allah have mercy on him, said: the scholars agreed that every appropriable thing not endowed with speech, whose sale and taking of compensation is lawful, entails amputation when stolen, except fresh edible things and things whose origin is freely available, concerning which they differed. The majority held that amputation applies to everything held as wealth whose sale and taking of compensation is lawful
Imam Abu Bakr al-Jassas, may Allah have mercy on him, said: there is no disagreement among the jurists of the great cities that safekeeping is a condition for amputation, and its basis from the Sunnah is as we have described (1).
Ibn Qudamah, may Allah have mercy on him, said: this is the view of most of the people of knowledge, and it is the position of Ata, al-Sha'bi, Abu al-Aswad al-Du'ali, Umar ibn Abd al-Aziz, al-Zuhri, Amr ibn Dinar, al-Thawri, Malik, al-Shafi'i and the adherents of personal opinion; we know of none among the people of knowledge who contradicts them, except a view transmitted from Aishah, al-Hasan and al-Nakha'i that one who gathers the goods without taking them out of the safekeeping is subject to amputation; from al-Hasan a view like that of the majority is also transmitted; and it is transmitted from Dawud that he does not require safekeeping, because the verse contains no detail. These are anomalous views, not established from those from whom they were transmitted.
Ibn al-Mundhir said: there is on this topic no established report nor any statement of the people of knowledge except what we have mentioned: it is therefore like a consensus, and consensus is an authority against whoever contradicts it (2).
(1) Ahkam al-Qur'an (4/66).
(2) Al-Mughni (9/98).
The majority of jurists stated that the determining criterion in safekeeping is custom (urf), for it varies with the variation of properties, circumstances and times: a thing may be safely kept at one time and not at another, according to the soundness or corruption of people's affairs and the strength or weakness of the authority. It has no definition in the Law or in language; and what has no definition in the Law or in language is referred, for its definition, to custom and usage, because, since its consideration is established in the Law without
The people of knowledge unanimously agreed on the prohibition of theft and on the obligation of cutting off the thief's hand when the conditions of theft are met in him. They supported this with the Quran, the Sunnah and consensus.
As for the Quran: the word of Allah, the Most High:
As for the thief and the female thief, cut off their hands as a recompense for what they earned, an exemplary punishment from Allah. Allah is Almighty, All-Wise.
Surah Al-Ma'idah, 38
As for the Sunnah, it is abundant:
Among it is what Abu Hurayrah, may Allah be pleased with him, reported from the Prophet, may the peace and blessings of Allah be upon him:
May Allah curse the thief: he steals an egg and his hand is cut off, he steals a rope and his hand is cut off.
reported by al-Bukhari (6401) and Muslim (1687)
From Ibn Umar, may Allah be pleased with both of them:
The messenger of Allah, may the peace and blessings of Allah be upon him, cut off the hand of a thief who had stolen a shield worth three dirhams.
reported by Muslim (1686)
From Aishah, may Allah be pleased with her, the messenger of Allah, may the peace and blessings of Allah be upon him, said:
The thief's hand is not cut off except for a quarter of a dinar or more.
reported by Muslim (1684)
As for consensus: a large number of scholars transmitted the consensus on the obligation of cutting off the thief's hand when the conditions making the penalty of theft due upon him are met.
Imam Ibn Hazm, may Allah have mercy on him, said: amputation for theft is obligatory by the text of the Quran, the text of the Sunnah and the consensus of the community (1).
Imam Ibn Hubayrah, may Allah have mercy on him, said: they agreed on the obligation of amputating the thief and the female thief in general when they combine specific characteristics, among them: the stolen item being of the kind for which amputation applies, the nisab of theft, the thief being of specific characteristics, the theft being of specific characteristics, and the place stolen from being of a specific kind (2).
Imam al-Nawawi, may Allah have mercy on him, said: the Muslims unanimously agreed on amputating the thief in general, though they differed over its branches (3).
Imam Ibn Qudamah, may Allah have mercy on him, said: the Muslims unanimously agreed on the obligation of amputating the thief in general (4).
Imam al-Mawsili, may Allah have mercy on him, said: there is consensus of the community on the obligation of amputation, though they differed over the amount of the nisab (5).
The thief was already amputated in pre-Islamic times, and the first to rule for amputation in pre-Islamic times was al-Walid ibn al-Mughirah; Allah commanded amputation in Islam, and the first thief whose hand he had cut off
(1) Al-Muhalla (11/319).
(2) Al-Ifsah (2/270, 271).
(3) Sharh Sahih Muslim (11/181).
(4) Al-Mughni (9/93).
(5) Al-Ikhtiyar (5/123, 124).
Theft is established by one of two means, the first of which is confession to theft:
The people of knowledge agreed that whoever confesses to theft while free, adult and uncoerced: his confession is accepted and the penalty is applied to him, because of what Ibn Majah reported from Thawlabah al-Ansari:
Amr ibn Samurah ibn Habib ibn Abd Shams came to the messenger of Allah, may the peace and blessings of Allah be upon him, and said: "O messenger of Allah, I stole a camel belonging to the Banu so-and-so: purify me." The Prophet, may the peace and blessings of Allah be upon him, sent word to them, and they said: "We have indeed missed a camel of ours." The Prophet, may the peace and blessings of Allah be upon him, then ordered his hand cut off. Thawlabah said: I watched him as his hand fell while he was saying: "Praise be to Allah, who purified me of you; you sought to make my body enter the Fire."
weak hadith: reported by Ibn Majah (2588)
Imam Ibn Hazm, may Allah have mercy on him, said: they agreed that whoever confesses against himself to a theft as we mentioned, in two different sittings according to what we set out regarding confession of fornication, and persists in his confession, or brings what he stole: amputation is due upon him as long as he does not retract (2).
Ibn Rushd, may Allah have mercy on him, said: they agreed that theft is established by two upright witnesses, and that it is established by the confession of a free person (3).
(1) Weak hadith: reported by Ibn Majah (2588).
(2) Maratib al-Ijma', p. 136.
(3) Bidayat al-Mujtahid (2/340).
The jurists differed, however: is it sufficient that he confess once, or are two confessions required?
The Hanafis in the madhhab, the Malikis and the Shafi'is held that one time suffices: he is amputated if he confesses, even once, that he stole, because it is a right established by confession, so repetition is not required in it, like the right of a human being (1).
(1) Al-Jawharah al-Nayyirah (5/385), Al-Lubbab (2/324), Al-Taj wa al-Iklil (5/359), Al-Sharh al-Kabir with the hashiyah of al-Dasuqi (6/355), Tahbir al-Mukhtasar (5/385), Al-Ifsah (2/277), Al-Bayan (12/482, 483), Rawdat al-Talibin (6/581), Mughni al-Muhtaj (5/486).
The Hanbalis, as well as Abu Yusuf and Zufar among the Hanafis, held that his confession and acknowledgment of the theft twice are required, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:
A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or three times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."
weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)
Had amputation been due at the first instance, he would not have delayed it.
Sa'id reported from Hushaym, Sufyan, Abu Ahwas and Abu Mu'awiyah, from al-A'mash, from Abd al-Rahman ibn al-Qasim, from his father, who said: "I witnessed Ali: a man came to him and confessed to theft, and he turned him away"; in one wording: "he rebuked him"; in another: "he ignored him". And others than these: "he drove him away, then he returned after that and confessed, and Ali said to him: you have testified against yourself twice, and he ordered his hand cut off"; in one wording: "you have confessed against yourself twice" (1); in one wording: "the thief is not amputated until he testifies against himself twice" (2). A report of this kind becomes widely known and is not denounced. Moreover, it involves a destruction within a penalty, so repetition is a condition of it, like the penalty for fornication; and it is one of the two proofs of amputation, so repetition is required in it, like testimony. It differs from the right of a human being, for his right is built on tenacity and narrowness, and his retraction from it is not accepted, unlike our case.
It is also required that he mention in his confession the conditions of theft: the nisab, the safekeeping, and his taking it out of it (3).
(1) Weak hadith: reported by Abd al-Razzaq in his Musannaf (18783).
(2) Authentic hadith: reported by al-Tahawi (2/97) and al-Bayhaqi (8/275).
(3) Al-Mughni (9/119), Sharh al-Zarkashi (3/133), Sharh Muntaha al-Iradat (6/246), Manar al-Sabil (3/341, 342).
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed on taking it from him if it is found in kind (1).
Imam Ibn Qudamah, may Allah have mercy on him, said: the people of knowledge do not differ on the obligation of returning the stolen item in kind to its owner if it still exists (2).
(1) Bidayat al-Mujtahid (2/339).
(2) Al-Mughni (9/113).
The jurists differed regarding the case where the stolen item perishes with the thief: is liability due from him if he is amputated, or is it not due from him, so that indemnification is not combined with amputation?
The Hanafis held that indemnification and amputation are not combined in a single theft: thus if the stolen item perishes in the thief's hand after amputation or before it, no liability is upon him. The proof for this is the Quran, the Sunnah and reason.
As for the noble Quran: the word of Allah, glorified be He:
As for the thief and the female thief, cut off their hands as a recompense for what they earned.
Surah Al-Ma'idah, 38
Argument from the verse proceeds in two ways:
The first: Allah, glorified be He, called amputation a "recompense", and recompense is built on sufficiency; were liability added to it, amputation would not be sufficient and would not be a recompense, and Allah, transcendent and magnified, is above any contravention in His report.
The second: He made amputation the entirety of the recompense, for He, magnified be He, mentioned it and mentioned nothing else; were we to make liability due, amputation would become part of the recompense, which would amount to abrogating the text of the noble Quran.
As for the Sunnah: what is reported from our master Abd al-Rahman ibn Awf, may Allah be pleased with him, from the messenger of Allah, may the peace and blessings of Allah be upon him:
The thief is not charged with indemnification when the penalty is executed upon him.
weak hadith: reported by al-Daraqutni (3446)
Indemnification (ghurm) in language denotes what one is obliged to discharge: this is an explicit text on the question.
As for reason, it comes in two ways: one is construction, the other is foundation.
The way of construction: guaranteed things, according to us, are acquired upon payment of the guarantee or upon choosing it, effective from the time of taking; were we to make the thief liable for the value of the stolen item or its like, he would own the stolen item from the time of taking, so it would appear that he was amputated for his own property, which is impermissible.
The way of foundation: liability is due only for taking protected property whose protection is established as a right of the owner; the guaranteed thing must therefore bear this quality to constitute aggression by its equivalent in the indemnification of aggressions. The guaranteed thing, at the moment of theft, has ceased to be protected as a right of the owner, as shown by the obligation of amputation; had it remained protected as a right of the owner, it would not be due. What is established as the right of a servant is established to repel his need, and the thief's need is like the victim's need: the doubt of permissibility thus takes hold, and it prevents the obligation of amputation, while amputation is obligatory: liability is necessarily negated. However, returning the stolen item is required while it subsists, for the obligation of return depends on ownership, not on protection. Do you not see that one who usurps a Muslim's wine is commanded to return it to him, because his ownership of it subsists, while if it perishes in the usurper's hand no liability is upon him, for absence of protection? It does not follow from the fall of the protection established as a servant's right that his ownership of the object ceases: here ownership subsists, so he is commanded to return it, and protection has fallen, so it is not guaranteed against perishing.
Several questions are derived from this principle:
If the thief consumes the stolen item after amputation, he is not liable for it according to the apparent narration of the doctrine; al-Hasan reported from Abu Hanifah, may Allah have mercy on him, that he is liable. The basis of this narration: the stolen item after amputation remains the property of the victim; do you not see that its return to the owner is obligatory? The thief's taking is not a taking that generates liability: the stolen item is in his hand in the position of a trust, and if he consumes it he is liable for it.
The basis of the apparent narration: the protection of the object established as the owner's right has fallen with respect to the thief, out of necessity of making the obligation of amputation possible; it does not return except through restitution to the owner; before that it is not protected, so it is not guaranteed.
If another man consumes it, he is liable for it, for protection fell only with respect to the thief, not with respect to others: he is therefore liable. And if amputation falls away due to a doubt, he is liable, for what prevents liability is amputation, and the impediment has ceased.
If the thief sells the stolen item to someone, or the acquirer obtains it from him by one of the means: if it subsists, its owner may take it, for it is his property in kind; and the acquirer may claim from the thief the price he paid, for claiming the price does not entail liability of the thief upon the stolen item itself, since he claims from him the price of the stolen item, not its value, so that this would not make the thief owner of the stolen item.
If it perished in his hand, no liability is upon the thief nor upon the taker; thus it is reported from Abu Yusuf. As for the thief, because amputation negates liability; as for the buyer, because were the owner to make him liable, he could claim that liability from the thief, so it would be as if the owner had made the thief liable, and his amputation negates liability from him.
If the taker consumed it, the owner may hold him liable for the value, because he took his property without his permission and it perished in his hand; and the buyer may claim the price from the thief, for claiming the price is not an imposition of liability.
If someone usurps it from the thief and it perishes in his hand after amputation: no liability for the thief nor for the victim; as for the thief, because he is not the owner; as for the owner, because the protection established as his right has been voided.
All this is after amputation. If the owner says before amputation: "I hold him liable for it", he is not amputated, for this entails his withdrawal from the claim of theft to a claim of property. The owner thus has the choice before amputation: if he wishes, he chooses amputation and does not charge him for the property; and if he wishes, he charges him for the property and there is no amputation (1).
(1) Bada'i' al-Sana'i' (7/84, 85), Sharh Fath al-Qadir (5/413), Al-Ikhtiyar (4/134).
The Malikis held that if he is solvent, amputation is due upon him and he is charged the value of the stolen item; if he is insolvent, he is not pursued for it as a debt, nothing is upon him, and he is amputated (2).
(2) Al-Tamhid (14/384), Bidayat al-Mujtahid (2/338, 339), Al-Ifsah (2/277).
The Shafi'is and the Hanbalis held that if the stolen item perishes with the thief or is sold, the thief pays its value and is amputated, whether the payment precedes amputation or follows it, and whether he is solvent or insolvent, because of the word of Allah, the Most High:
As for the thief and the female thief, cut off their hands.
Surah Al-Ma'idah, 38
The apparent meaning requires his amputation even if he is charged, and as one who usurps a female slave and fornicates with her: the penalty is due upon him, and he returns her if she subsists and returns her value if she has perished, so penalty and indemnification combine upon him; likewise in theft.
Its precise formulation by analogy: the penalties of Allah, the Most High, do not entail the lapse of indemnification, like fornication with the usurped female slave; and every item for which amputation is due together with its return is such that amputation is due together with the return of its substitute: as when the thief sells it and consumes its price, he is amputated together with the return of the substitute of the price, just as he is amputated together with the return of the price; likewise in respect of the right of ownership. And amputation is due for taking it out of the safekeeping, while indemnification is due for its consumption; and every two rights due for two different causes may be combined, like the killing of owned game, in which expiation and value combine (1).
(1) Al-Hawi al-Kabir (13/342, 343), Al-Ifsah (2/277, 278), Al-Mughni (9/113), Al-Mubdi' (9/144), Kashshaf al-Qina' (6/189), Matalib Uli al-Nuha (6/250).
Imam Ibn Rushd, may Allah have mercy on him, said: they differed over whether indemnification is combined with amputation.
One group said: indemnification is due from him along with amputation; this is the view of al-Shafi'i, Ahmad, al-Layth, Abu Thawr and a group.
One group said: no indemnification is due from him if the victim does not find his goods in kind; among those who said this were Abu Hanifah, al-Thawri, Ibn Abi Layla and a group.
Malik and his companions differentiated, saying: if he is solvent, the thief is pursued for the value of the stolen item; if he is insolvent, he is not pursued, even if he later becomes rich; and Malik required, as Ibn al-Qasim transmitted from him, the continuance of solvency until the day of amputation.
The pillar of those who combine the two: two rights met in theft, a right of Allah and a right of a human being, and each right required what it obligates; moreover, since they agreed on taking it from him when found in kind, it follows, when it is not found in kind with him, that it is under his liability, by analogy with the other obligatory properties.
The pillar of the Kufans is the hadith of Abd al-Rahman ibn Awf that the messenger of Allah, may the peace and blessings of Allah be upon him, said: "The thief is not charged with indemnification when the penalty is executed upon him." This hadith is weakened among the scholars of hadith; Abu Umar said: because it is, according to them, disconnected; he said: some of them connected it, and al-Nasa'i transmitted it.
The Kufans say that the meeting of two rights in a single right contradicts the principles, and they say that amputation is a substitute for indemnification; hence they hold that if someone steals something and is amputated for it, then steals it a second time, he is not amputated for it.
As for Malik's differentiation, it is juristic preference outside analogy (1).
(1) Bidayat al-Mujtahid (2/338, 339).
The Book of Highway Robbers
The jurists of the four madhhabs agreed, according to the correct view among them, that whoever confesses against himself to theft and then retracts his confession: his confession is accepted and the penalty of amputation is not executed upon him, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:
A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or three times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."
weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)
Were amputation not lifted by retraction, the Prophet, may the peace and blessings of Allah be upon him, would not have hinted to him about retraction. It is also a right of Allah, the Most High: it is therefore lifted, like the penalty for fornication.
Penalties are also averted by doubts, and his retraction is a doubt, because of the possibility that he lied against himself in his acknowledgment; and it is one of the two proofs of amputation: it is voided by retraction, like testimony; and the proof of amputation ceased before its execution: it therefore falls away, as when the witnesses retract. It differs from the right of a human being, which is built on tenacity and narrowness (2).
Abu Umar Ibn Abd al-Barr, may Allah have mercy on him, said: Malik, al-Shafi'i, Abu Hanifah and his companions agreed that the retraction of one who confesses to fornication or wine drinking is accepted; likewise theft: if the thief confesses to it concerning a man's property and safekeeping, and that man gives him the lie without claiming theft, and the thief then retracts his confession, his retraction is accepted according to Malik and those we mentioned with him (3).
Imam al-Imrani, may Allah have mercy on him, said: if he retracts his confession, amputation falls away from him; and this is the view of most of the people of knowledge (4).
Ibn Qudamah, may Allah have mercy on him, said: this is the view of the majority of jurists (5).
(2) Al-Bayan (12/483), Mughni al-Muhtaj (5/486), Al-Mughni (9/119).
(3) Al-Istidhkar (7/502).
(4) Al-Bayan (12/483).
(5) Al-Mughni (9/119).
Ibn al-Humam, may Allah have mercy on him, said: if he confesses to theft and then retracts, saying: "I did not steal; it is my property", he is not amputated, by consensus (1).
The Shafi'is, in one view, held that his retraction is not accepted (2).
Some Malikis, such as Ashhab and Ibn al-Majishun, said that it is accepted only if he retracts based on a doubt (3).
The jurists of the four madhhabs, Hanafis, Malikis, Shafi'is and Hanbalis, stated that if one confesses to stealing someone's property and then retracts, saying: "I did not steal", his retraction is not accepted regarding the property: he owes compensation of the property to the one to whom he confessed, even if he confessed only once according to the Hanbalis, because it is a right of a human being (4).
(1) Sharh Fath al-Qadir (5/408).
(2) Al-Bayan (12/483), Rawdat al-Talibin (6/581), Mughni al-Muhtaj (5/486).
(3) Al-Taj wa al-Iklil (5/360), Al-Sharh al-Kabir with the hashiyah of al-Dasuqi (6/355, 356), Tahbir al-Mukhtasar (5/386).
(4) Bada'i' al-Sana'i' (7/233), Sharh Fath al-Qadir (5/408), Al-Taj wa al-Iklil (5/360), Al-Sharh al-Kabir with the hashiyah of al-Dasuqi (6/355, 356), Tahbir al-Mukhtasar (5/386), Rawdat al-Talibin (6/581), Mughni al-Muhtaj (5/486), Al-Mughni (9/119).
The jurists of the four madhhabs agreed that it is permissible, in the case of one who has confessed against himself to a theft entailing the penalty, for the imam to prompt him toward retraction by way of allusion, saying to him for instance:
"I do not think you stole", or "perhaps you took it from outside a safekeeping", or something of that sort, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:
A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or three times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."
weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)
It is reported from Umar, may Allah be pleased with him: "A man was brought to him, and he said: 'Did you steal? Say: no.' He said: 'No', and he let him go" (2).
Imam Ibn Qudamah, may Allah have mercy on him, said: Ahmad said: there is no harm in prompting the thief to retract his confession, and this is the view of the generality of jurists (3).
Imam al-Nawawi, may Allah have mercy on him, said: the prompting of retraction from confession to penalties came from the Prophet, may the peace and blessings of Allah be upon him, from the rightly guided caliphs and from those after them, and the scholars agreed upon it (4).
(2) Weak hadith: reported by Abd al-Razzaq, al-Musannaf (10/224), no. (18920), whose chain of transmission is interrupted between Ikrimah ibn Khalid and Umar ibn al-Khattab.
(3) Al-Mughni (9/120).
(4) Sharh Sahih Muslim (11/195).