Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > Schools' disagreements on group theft
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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 jurists differed on the hypothesis that the share of each of them falls below the threshold: is the cutting due upon all of them together or not?
The Hanafis and the Shafi'is are of the view that no cutting is due upon any of them, because none of them has stolen a full threshold: his hand is therefore not cut off, just as if he had acted alone. The Shafi'is said: the legal effect of theft comprises two things, compensation and cutting. Since it is established that the compensation due from each of them is assessed independently, his cutting must likewise be assessed independently.
And since, when one person alone steals a threshold spread over three secured places, he is not cut off and one part of his act is not built upon another, then the inapplicability of the cutting to three persons who stole a threshold from one secured place is all the more warranted, and the act of one is not built upon the act of another, because each person is more directly concerned with his own acts than with the acts of others.
Their partnership differs from their partnership in killing for two reasons:
The first: if we did not impose retaliation upon them, partnership would become a means of dropping retaliation, unlike theft, where avoiding the cutting is not a means of dropping the fixed punishment. The difference between them is that partners in theft do not usually intend the theft of a single threshold, because of the small share that reaches each of them.
The second: retaliation is attached to an indivisible cause, which is the taking of life, so it is attributed to all of them, unlike theft, for the cutting is attached to a divisible cause, namely the taking of the threshold or its absence (al-Umm 6/149 ; see al-Hawi al-Kabir 13/297 and 298, al-Bayan 12/441, Rawdat at-Talibin 6/568, al-Ikhtiyar 4/127, al-Jawhara an-Nayyira 5/386, al-Lubab 2/324).
The Malikis are of the view that if a group jointly steals something worth a quarter of a dinar, they are cut off if it is something whose carrying requires cooperation, in accordance with the apparent meaning of the texts and the report of cutting the hand for a quarter of a dinar and above. And because they participated in something that, had each of them done it alone, would have entailed the punishment: their partnership is therefore like their acting singly. The case of reference is their partnership in a killing.
And because for injuries that entitle the taking of limbs, the group that participates in them incurs what the single perpetrator of the destruction of limbs incurs. The case of reference is the group that cut off a man's hand, or cut from him other than the hand. And because their joint participation in extracting the stolen item from the secured place requires the cutting of all of them, without regard to their individual extraction. The proof is that if they stole goods and loaded them upon a beast to take them out of the secured place, all of them are cut off.
If it is something a single person can carry alone, there are two reports in the school: cutting, or no cutting.
And if each of them took something on his own, none of them is cut off, unless the value of what he extracted reaches the threshold. What another extracted is not added to what he extracted, in accordance with the report, and because the theft of none of them has reached the threshold: the cutting is therefore not due upon him, as if he had acted alone (al-Istidhkar 7/556 ; see al-Ishraf ala Nukat Masa'il al-Khilaf 4/471 and 472, ad-Dakhira 12/169, Ahkam al-Quran 2/112).
The position of the Hanbalis is like that of the Malikis, in the first ruling only: if a group jointly steals something worth three dirhams, they are cut off, because reaching the threshold is one of the two conditions of the cutting, and when the group participates in it, it counts as one person, by analogy with the breach of the secured place. And because stealing a threshold is an act that entails the cutting: the single individual and the group are equal in it, like retaliation.
The Hanbalis do not distinguish between the stolen item being heavy, requiring the group to carry it together, and each of them extracting a part of it. Ahmad expressly stated this, because they participated in breaching the secured place and extracting the threshold: the cutting is therefore due upon them, as if it had been heavy and they had carried it. It differs from retaliation, for retaliation relies upon equivalence, and equivalence is found only when their acts cover all parts of the hand, whereas in our question the aim is deterrence, with no regard for equivalence, and the need to deter the extraction of wealth.
Whether they enter the secured place together, or one enters and extracts part of the threshold, then the other enters and extracts the remainder: they participated in breaching the secured place and extracting the threshold, and the cutting is due upon them both, as if they had carried it together (al-Mughni 9/120 and 121 ; see Sharh az-Zarkashi 3/134, al-Ifsah 2/273 and 274).
The Malikis, in one view, and the Shafi'is are of the view that if two people jointly breach a secured place, one of them enters, takes the goods and hands them to the other, who is outside the secured place, and he takes them, the cutting falls upon the one who entered, alone, to the exclusion of the one outside, because he is the thief, according to the word of Allah the Most High:
« The male thief and the female thief: cut off their hands. »
Surah al-Ma'ida, 38
The Malikis, in the relied-upon position of their school, and the Hanbalis are of the view that if the two of them breached a secured place, one of them entered and brought the goods near the opening, and the one outside inserted his hand and extracted them, the cutting falls upon them both, because they participated in breaching the secured place and extracting the goods: it is due upon them, as if they had carried them together and extracted them. And if he placed them in the opening and the other stretched out his hand and took them, the cutting falls upon them both (al-Mughni 9/121 ; see Sharh Muntaha al-Iradat 6/239 and 240, Matalib Uli an-Nuha 6/6 and 234).
The Hanafis are of the view that if he breached, inserted his hand and extracted the goods, or entered and handed the goods to another from outside, neither of them is cut off. As for the first, it is because the breach did not occur in its complete form, which is entry into the place: a presumption of nonexistence therefore remains in it, and the fixed punishment is not due. As for the second, it is because the one inside did not extract the goods, due to the intervention of a legally counted hand upon them before their exit, and the one outside committed no breach of the secured place: the theft is therefore not complete from either of them.
According to Abu Yusuf, the cutting applies in the first case, because the aim of theft is the extraction of wealth from the secured place, and this has occurred. It is as if he had inserted his hand into the money changer's chest and taken the dirhams out of it. In the second question, if the one inside took his hand out and handed the goods to the one outside, the one inside is cut off ; and if the one outside inserted his hand and took them from the hand of the one inside, both are cut off, this being built upon the first question.
The answer is that the complete violation of the sanctity of the secured place lies in entering it, which is possible and customary, and which did not occur here, unlike the chest, for what is possible in its case is inserting the hand into it without entering it (al-Ikhtiyar 4/127).
The jurists differed on the hypothesis that two people jointly violate a secured place, one of them enters and steals a threshold or more, then throws it to the one outside, and the one outside takes it: is the cutting due upon both of them, upon the one who entered alone, or upon neither of them?
The Hanafis are of the view that no cutting is due upon either of them, because the one who entered did not extract the goods, due to the intervention of a counted hand before their extraction, and the one outside committed no breach of the secured place: the theft is therefore not complete from either of them (al-Ikhtiyar 4/127).
The Malikis, the Shafi'is and the Hanbalis are of the view that if two people jointly made a breach, one of them entered, took the stolen item from the secured place and threw it outside, and the one who had not entered took it while he himself remained in the secured place, the cutting falls upon the thrower alone (al-Ishraf ala Nukat Masa'il al-Khilaf 4/476 and 477 ; see ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/351, Tahbir al-Mukhtasar 5/384 and 385, al-Ifsah 2/274, Sharh Muntaha al-Iradat 6/239 and 240, Matalib Uli an-Nuha 6/6 and 234, Rawdat at-Talibin 6/570).
The jurists differed on the hypothesis that two people breach a secured place, one of them enters and steals, brings the stolen goods near the opening, and the one outside stretches out his hand and takes them: are both of them cut off, or only the one outside?
The Hanafis are of the view that if two people jointly breach a secured place, one of them enters the secured place and then hands the goods to another from outside the house or the secured place, or he inserts his hand into a room and takes, he being called the cunning thief, the one who hands over and the one who receives are not cut off. Of the first, extraction did not occur, due to the intervention of a counted hand upon the wealth before its exit ; and of the second, no breach of the secured place occurred: the theft is therefore not complete from either.
The same applies if the one inside took his hand out and handed the goods to the one outside, or if the one outside inserted his hand and took them from the hand of the one inside: this is the apparent position of the school. Likewise, if he placed them in the opening, then went out and took them, he is not cut off according to the correct view (al-Ikhtiyar 4/127 ; see Hashiyat Ibn Abidin ala ad-Durr al-Mukhtar 4/100 and 101).
The Malikis and the Shafi'is are of the view that if two people jointly breach a secured place, one of them enters without the other entering, the one inside brings the goods near the opening and leaves them, then the one outside inserts his hand, stretches it out and takes them from the secured place, the cutting falls upon the one who extracted them from the secured place, because the cutting is due for the violation of the sanctity of the secured place and the extraction of the thing from it, and this was realized by the second: the cutting must therefore fall upon him.
The Malikis and the Shafi'is, in one view, said: if they met in the middle of the opening, both are cut off, that is, if he placed the goods in the middle of the opening and the other took them and extracted them, both are cut off together. And the most apparent of the two views according to the Shafi'is is that neither of them is cut off (al-Ishraf ala Nukat Masa'il al-Khilaf 4/476 and 477 ; see ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/351, Tahbir al-Mukhtasar 5/384 and 385, al-Hawi al-Kabir 13/295, Rawdat at-Talibin 6/569).
Al-Mawardi (may Allah have mercy on him) said: the case where two people jointly breach a secured place, one of them enters it, takes the stolen item with his hand without leaving the secured place, and the other takes it from him without entering, is to be examined. If the hand of the one who entered came out of the secured place with the stolen item, the one who entered is cut off, to the exclusion of the one outside, because he is the extractor from the secured place... And if the one outside inserted his hand into the secured place and took it from it, the one outside is cut off, to the exclusion of the one inside, because he is the one who extracted it from the secured place: the cutting therefore falls, in both situations, upon the one inside if he took his hand out, and upon the one outside if he inserted his hand (al-Hawi al-Kabir 13/295).
The Hanbalis are of the view that if two people breach a secured place, one of them enters and steals a threshold, then brings the stolen threshold near the opening, and the other inserts his hand and extracts it from the opening, both of them are cut off, because they participated in breaching the secured place and extracting the threshold, as if they had carried it together and extracted it. Likewise if he placed it in the middle of the opening and the one outside took it: both are cut off (al-Mughni 9/121 ; see Sharh Muntaha al-Iradat 6/239 and 240, Matalib Uli an-Nuha 6/6 and 234).
The jurists agreed that if two people participate in theft in that one breached the secured place and another extracted, while they were not cooperating, each acting on his own without agreement between them, as when another person happens to come and extracts, no cutting is due upon either of them.
They differed on the hypothesis that they were definitely cooperating: are both of them cut off, or is neither of them cut off?
The Malikis are of the view that if they participated in the theft in that one breached the secured place and another extracted, while there was cooperation and agreement between them, both are cut off (Ahkam al-Quran 2/112 ; see Tafsir al-Qurtubi 6/164).
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis, are of the view that if one breached alone and the other entered alone and extracted the goods, no cutting is due upon either of them, because the first did not steal and the second did not breach the secured place: he only stole from a secured place breached by someone else. He is like the case where a man made a breach and went away, and another came, found the secured place already breached and stole from it. One of them guarantees the wall, that is, the secured place, and the other what he took (al-Ikhtiyar 4/127 ; see Hashiyat Ibn Abidin ala ad-Durr al-Mukhtar 4/100 and 101, Rawdat at-Talibin 6/567, Asna al-Matalib 4/147, al-Mughni 9/121).
The Shafi'is held, in one view, that the Muslim is not cut off for stealing the property of a dhimmi, just as he is not killed for killing him (Rawdat at-Talibin 6/578 ; see an-Najm al-Wahhaj 9/186, Mughni al-Muhtaj 5/485).
The Shafi'is are of the view that the dhimmi is cut off, because of the commitment he has undertaken to abide by the rulings, whether he accepts our judgment or not. In another view, he is not cut off until they bring their dispute before us (Rawdat at-Talibin 6/578 ; see an-Najm al-Wahhaj 9/185, Mughni al-Muhtaj 5/485).
Abu Umar Ibn Abd al-Barr (may Allah have mercy on him) said: if a dhimmi steals from another dhimmi and they do not bring their dispute before us, the matter is not raised with us ; if they bring it before us, we judge among them by the judgment of Allah, for this is part of their mutual wrongs, which we are obliged to prevent when it is referred to us. And if a dhimmi steals from a Muslim, the judgment then belongs to us, and the cutting is due. The well-known hadith indicates that the Messenger of Allah (peace and blessings of Allah be upon him) only stoned the two Jews because they had referred their case to him (at-Tamhid 14/393).
The jurists differed regarding the mu'ahad (treaty-bound non-Muslim) or the harbi granted safe conduct: if he enters under a guarantee of safety and steals from the property of a Muslim or a dhimmi, is his hand to be cut off or not?
The Malikis, in the relied-upon position of their school, the Shafi'is in one view, and the Hanbalis in the relied-upon position of their school, are of the view that he is cut off if he steals, even if from a mu'ahad like himself, as the Malikis expressly stated. It is like the fixed punishment for slander and retaliation, because theft is part of corruption on earth, and the right to the cutting belongs to Allah the Most High: no one is exempted from it.
And because it is a fixed punishment that may be demanded of him: it is therefore due upon him like the punishment of slander. This is supported by the fact that the cutting is due as a protection for wealth, and the punishment of slander is due as a protection for honor: if one of the two is due from him, the other is due as well (Bada'i' al-Sana'i' 7/67 ; see ad-Dakhira 3/447 and 12/142, at-Taj wa-l-Iklil 5/359, Sharh Mukhtasar Khalil 8/102, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/354, al-Hawi al-Kabir 13/330, Rawdat at-Talibin 6/578, an-Najm al-Wahhaj 9/186, Mughni al-Muhtaj 5/485, al-Ifsah 2/285, al-Mughni 9/111 and 112, al-Kafi 4/174, al-Mubdi' 9/135, al-Insaf 10/281, Kashshaf al-Qina' 6/181).
Imam Abu Hanifa, Muhammad, the Shafi'is in the most apparent view, Ashhab among the Malikis and Ibn Hamid among the Hanbalis are of the view that he is not cut off, because he has undertaken no commitment: he is like the harbi remaining in enemy territory. And because he took it upon the belief that it was permissible, and he has not undertaken the rulings of Islam. And because it is a fixed punishment due to Allah the Most High: it is not carried out upon him, like the fixed punishment of fornication (Bada'i' al-Sana'i' 7/71 ; see Mukhtasar Ikhtilaf al-Ulama 3/450, Rawdat at-Talibin 6/578, an-Najm al-Wahhaj 9/186, Mughni al-Muhtaj 5/485, al-Mughni 9/111 and 112, Tahbir al-Mukhtasar 5/385).
...The Law gave no specification of it, so it is known that He referred the matter to the people of custom, for there is no way to know it except from them. Reference is therefore made to them, just as reference is made to custom to know seizure and separation in sale, and the like.
We find in custom and usage that secured places vary according to the kinds of wealth: this is therefore what is taken into account in the ruling of cutting (Ahkam al-Quran 4/64 and 65 ; see al-Qawanin al-Fiqhiyya, p. 236, al-Bayan 12/444, Asna al-Matalib 4/141, Mughni al-Muhtaj 5/468, al-Mughni 9/98).
The Hanafis said: the secured place is of two kinds: a place secured by itself and a place secured by other than itself.
The place secured by itself is any area prepared for the safekeeping of wealth, entry into which is barred except with permission, such as houses, shops, tents, canvas shelters, cabinets and chests.
The place secured by other than itself is any location not prepared for safekeeping, which one enters without permission and from which one is not barred, such as mosques and public roads. Its ruling is that of the desert if there is no guard there ; if there is a guard, it is a secured place. This is why it was called secured by other than itself: its becoming a secured place depended on the existence of something else, namely the guard.
What is secured by itself does not require the existence of a guard to become a secured place, and if one exists, his existence carries no weight: his presence and his absence are the same. Each of these two kinds of secured place counts by itself, independently of its owner, because the Prophet (peace and prayers of Allah be upon him) attached the cutting to the sheltering of the night enclosure (murah) and the drying yard (jarin), without making the existence of a guard a condition.
The following is reported from Safwan ibn Umayya:
« His cloak was stolen from under his head while he slept in the Mosque of the Prophet (peace and blessings of Allah be upon him). The thief was seized and brought to the Prophet (peace and blessings of Allah be upon him), who ordered his hand cut off. Safwan said: "Will you cut off his hand?!" He replied: "Why did you not leave him before bringing him to me?!" »Authentic hadith, reported by Imam Ahmad in al-Musnad (27644) and an-Nasa'i (4884)
No regard was given to the place being secured by itself: this proves that each of the two kinds of secured place counts by itself.
If one steals from the first kind, the hand is cut off, whether there is a guard or not, because the taking from the secured place has occurred. And whether the door is locked or there is no door at all, as long as the place is enclosed by construction, for construction is intended for safekeeping in whatever state.
If one steals from the second kind, the hand is cut off if the guard is near, in a place from which he can watch it and where what is stolen is customarily kept. Whether the guard is awake in that place or asleep, for a person intends safekeeping in both cases, and the taking is possible only through his action. Do you not see that he (peace and blessings of Allah be upon him) had the hand of Safwan's thief cut off while Safwan was asleep?
And if the owner of a house permits a man to enter it and the permitted one steals something from it, he is not cut off, even if there is a guard in it or the owner of the dwelling is asleep upon it, for the house is secured by itself, not by the guard, and it has ceased, by the permission, from being a secured place: the existence of the guard is therefore not considered. And because, when he permitted him to enter, he came to be in the position of the people of the house: if he takes something, he is a betrayer. It is reported from the Messenger of Allah (peace and blessings of Allah be upon him) that he said:
« There is no cutting off of the hand for the betrayer. »Authentic hadith, reported by Abu Dawud (4391 and 4392), an-Nasa'i (4973 and 4974) and Ahmad (15112)
Likewise, if he steals from one of the rooms of the house he is permitted to enter while it is locked, or from a chest in the house, or from a chest in one of the rooms while it is locked, the room being part of the house he is permitted to enter, he is not cut off, for the single house is a single secured place, and by the permission granted to him it has ceased to be a secured place with respect to him, and the same applies to its rooms.
It is reported from Abu Yusuf that he said, about a man who was in a bathhouse or a caravanserai with his clothes under his head, and a thief stole them: no cutting is upon the thief, whether the man was asleep or awake. But if he was in the desert with his garment under his head, the hand of the thief is cut off.
The same is reported from Muhammad about a man who stole from a man while he was with him in the bathhouse, or stole from a man while he was with him on a ship, or about people who lodged in a caravanserai and some of them stole from others: no cutting is upon the thief. The same applies to the shop, for the bathhouse, the caravanserai and the shop are each a secured place by itself: when people are permitted to enter it, it ceases to be a secured place, the guard is not considered in it, and it does not become secured by the guard. This is why they said: if one steals from the bathhouse at night, the hand is cut off, because people are not permitted to enter it at night.
As for the desert or the mosque, even though entry is permitted, it is not secured by itself but by the guard, and no permission from the guard exists: the meaning of the secured place is therefore not voided in it (Bada'i' al-Sana'i' 7/73 and 74 ; see al-Jawhara an-Nayyira 5/384).
The Malikis said: the secured place is any place that is secured for its like according to custom and usage, and this varies according to people's habits in safeguarding their wealth.
In reality, it is anything such that the owner of the wealth is not, by usage, considered negligent of his wealth by placing it in it.
The pivot is the extraction of the threshold out of the secured place: no cutting is upon one who moved the threshold inside the secured place from one spot to another without extracting it, or who extracted it from a secured place that is not the like of its own. The only condition required is the extraction of the goods out of the secured place, even if the thief does not leave it, because the cause is realized. Whether the threshold remains outside the secured place or perishes through fire, or an animal destroys it, or it is glass that breaks, and the like.
The thief's entry into the secured place is not required: if he inserted, for example, a stick and pulled out a threshold with it, his hand is cut off.
Likewise, one who swallowed inside the secured place a pearl, a dinar or the like of what is not spoiled by swallowing is cut off when he left the secured place, because it is verified of him that he left the secured place with it. This is not like one who ate food inside the secured place: no cutting is upon him in that case, even if he left the secured place, but he guarantees it to its owner, as if he burned belongings inside the secured place, and he is disciplined.
Likewise is cut off one who anointed himself inside the secured place with something from which the equivalent of a threshold is obtained when taken from it, such as musk, butter and their like. The equivalent of taking is washing or skimming over the water.
Likewise is cut off one who gestured to a ewe or the like and brought it out of a secured place of its like, or gestured to a young boy or to a non-Arab until he brought him out.
Likewise is cut off one who stole the grave slab itself, which is the covering of the grave with which the deceased is sealed off, for the grave is a secured place for what is in it.
Likewise is cut off one who stole the tent or stole what is in it, whether his family is in it or not, whether in town or on journey, for the hair tent is a secured place for itself and for what is in it. And the word tent carries no restrictive implication: any place a person takes as a dwelling, leaves his belongings in and goes off for his needs, for example, and someone steals from it, his hand is cut off.
Likewise is cut off one who stole from a shop a threshold, or from the courtyard of the tent, or from the courtyard of the shop, or from the money changer's chest which he leaves, by night or day, built or not built, unless he carries it back with him every night: then no cutting. This is what Ibn Qasim said.
Likewise is cut off one who stole from the camel litter (mahmil) or from what is on the back of a riding animal, whether the animal is moving or standing, by night or by day.
Likewise is cut off one who stole dates or crops from the drying yard (jarin). Apparent meaning: even if it is far from the houses, and this is one of two views. And if the crop was carried to the drying yard and something was stolen on the way, the thief is cut off, because of the one with it.
Likewise is cut off one who stole from a courtyard or the courtyard of a house whose entry was barred. By "stranger" is meant other than the partner in the dwelling: he is cut off for whatever he stole from the courtyard, whether it is of what is usually placed there or not, like a garment. As for other than the stranger, he is cut off only if he stole from the courtyard what is placed there, like a riding animal, and nothing else.
As for theft from a room of the house: whoever takes it out of the room to its courtyard is cut off, whether he is a partner in the dwelling or a stranger, and this concerns the jointly owned house. As for the exclusively owned one, there is no cutting unless he takes it out of the entire house, whether he stole it from one of its rooms or from its courtyard, and whether what he stole from its courtyard is of what is customarily placed there or not.
As for theft from a ship, there is a detail: if he stole in the presence of the owner of the goods, he is cut off, whether he left it or not, whether he was among those on it or not. If he stole in the absence of its owner: if the thief is a stranger, he is cut off if he left with it ; if he was among the passengers, no cutting, even if he left with it. And if he stole from the cabin or the like, he is cut off even if he did not leave it.
The caravanserai is a secured place for heavy things, such as large boats, loaded beasts of burden and the like: merely moving them from their place entails the cutting even without extracting them, when they are sold in it ; otherwise no cutting until he extracts them. And no cutting if one stole from it something light.
Likewise is cut off one who stole a riding animal from its standing place where it was stationed for sale, whether it is tied or not, and whether its owner is with it or not. Likewise if it was tied permanently in the alley and he stole it from its place: that is its secured place.
Likewise is cut off one who stole the ship itself while it lies at anchorage or on a bank. By the anchorage is meant the place where it dropped anchor while being fit for anchoring, whether prepared for that or not, near a town or not, near inhabited areas or not.
Likewise is cut off one who stole something in the presence of its owner, for he is a secured place for it even in a desert. Likewise is cut off one who stole from the grain of the underground silos in which wheat is stored, on condition that the silo be near the dwelling, such that its owner keeps awareness of it ; if it is far, no cutting, for he has not safeguarded his food in any way.
Likewise is cut off one who stole from the train of camels tied one to another, whether moving or standing. If the thief untied one of them and took it, he is cut off even if he did not depart with it. Like the train are camels or beasts driven to pasture without being roped in line.
Whoever removed the door of the mosque from its place, even without taking it, is cut off, for he removed it from its secured place.
Whoever entered the bathhouse for the purpose of theft and stole from it is cut off. But if he was permitted to enter it, entered and stole, no cutting is upon him. This is known from the surrounding indications. Likewise is cut off one who breached the bathhouse or climbed over it, went down into it and stole something worth three dirhams, when he is seized outside the bathhouse. As for mere breach, no cutting in it.
Likewise is cut off one who took from the clothes of the bathhouse without the attendant's permission to turn over the clothes ; but if he was permitted to turn over the clothes and took other than his own, no cutting is upon him, whether he entered for theft or not, for he is a betrayer. And when we say there is cutting, it is on condition that he does not claim he erred ; if he claims so, he is believed when his claim is plausible.
For the house whose entry is permitted to all people, like the house of the scholar, the house of the physician and the like: if someone steals from it a threshold and takes it out of the entire house, he is cut off.
No cutting upon one who stole from a place he is permitted to enter, like the person who hosts a guest and brings him into his house, or sends someone to his house to bring him something from one of its rooms, and the like: if he steals from a locked place that has been barred to him, even if he leaves the entire house, there is no cutting, for he is a betrayer, not a thief. This is according to the correct view of the school.
Sahnun said: he is cut off even if he did not take it out to the place he was permitted to enter. It has also been said: he is not cut off until he takes it out of the entire house.
Likewise, no cutting upon one who entered the secured place and moved the threshold from one spot to another within it without extracting it.
Likewise, no cutting upon one who stole the jewelry and clothes worn by the young boy, for the boy is not a secured place either for what he has with him or for what is upon him, unless there is with the boy someone guarding him, or he is in a secured place of his like: then the one who steals it is cut off. The same applies to the insane person.
Likewise, no cutting upon the person who entered the secured place, took the threshold from it and raised it in his hands to a person outside the secured place, who stretched his hand to the inside, took the threshold from the hand of the one inside and extracted it outside the secured place: the cutting falls rather upon the one outside, for it is verified of him that he alone extracted the threshold from the secured place. But if they met in the middle of the opening, both are cut off ; and if the handing over took place outside the secured place, the one inside is cut off (at-Taj wa-l-Iklil 5/351 and 357 ; see Sharh Mukhtasar Khalil 8/97 and 100, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/343 and 351, Tahbir al-Mukhtasar 5/371 and 382).
The Shafi'is said: the secured place varies according to circumstances and kinds of wealth, and reliance in the safeguarding and securing of wealth rests upon two things: the first is watching and monitoring ; the second is the strength and firmness of the place. If the place has no strength, like property placed in a desert, a mosque or a street, continuous watching is required. If it has strength, joined by the customary watching, that suffices, and its continuity is not required. Custom rules in this, and its detail is in several questions.
First: the stable is the secured place of mounts, despite their preciousness and high price, but it is not a secured place for clothes and money. The portico in front of the house, and its courtyard, are secured places for utensils and ordinary clothes, not for jewelry and money, for the custom is to keep these in storehouses. Likewise, valuable clothes are kept in houses, in the rooms of caravanserais and in well-protected markets. The straw shed is a secured place for straw, not for utensils and furnishings. What is a secured place for one kind is a secured place for what is beneath it, not for what is above it.
Second: if someone sleeps in a desert, a mosque or a street upon his garment, or pillows his travel chest or belongings, or leans upon them, and the garment is stolen from under him, or the chest, or the kerchief is taken from his head, the sandal from his foot or the ring from his finger, the cutting is due, because it is secured by his person. But if his head moved away from what he pillowed, or he turned over in sleep away from the garment and left it, no cutting for its theft. And if the thief lifted the sleeper off the garment before taking it, no cutting.
And if he placed his belongings or his garment near him in the desert or the mosque: if he sleeps, turns his back to it, or is distracted from it by some preoccupation, it is not secured. If he is awake, watching it, and the thief catches him unaware and takes the wealth, he is cut off according to the correct view. Is it required that there be no crowd of passers-by in the place? Two views: one of them: no, watching suffices, but the crowd requires extra monitoring and caution ; the more correct: yes, the crowd removes it from being secured. The two views were applied to the baker, the draper and others when crowds throng their shop.
The Imam (ash-Shafi'i) said: if the belongings are placed in a street and a group watches them, the number of watchers stands against the number of passers-by, like one watcher in the desert against one passer-by. It is required that the watcher be able to prevent, if he spies a thief, either by himself or by calling for help. If he is weak, such that the thief disregards him, and the place is far from help, it is not a secured place: rather the person is exposed with his wealth. And there should be no distinction between the desert being waste land or not.
Know that the first pillar of a place being secured is watching: the strength of the place does not suffice, in principle, without watching, to the point that the detached house at the edge of town is not a secured place, however fortified, and likewise the well-built fortress. However, with strength, continuous watching is not needed, unlike what we mentioned for the desert.
And if someone inserted his hand into another's pocket or sleeve and took the wealth, or tore open his pocket, that is, split it, and took the wealth, he is cut off, for it is secured by his person. Whether he tied it from inside the sleeve or from outside, or did not tie it.
And if he took it from a kerchief worn on a head: if its wearer had bound it tightly upon it, the hand is cut off, otherwise not.
Third: the house detached from other buildings, being in the countryside, in the ruined streets of the town or in a garden, is not a secured place if there is no one in it, whether the door is open or shut. If its owner or another guard is in it, it is examined: if he is asleep and the door is open, it is not secured ; if it is shut, two views: one: it is secured ; the second: it is not. If the one inside is awake, the belongings in it are secured, whether the door is open or shut ; but if he is of those who are disregarded and the place is far from help, the ruling is as we mentioned for the watched item, exactly like the case of the weak one in the desert.
And if the house is attached to the houses of his family, it is examined: if the door is shut and its owner or another guard is in it, it is a secured place for what is in it, night and day, the guard being awake or asleep. If the door is open and the one inside is asleep, it is not secured at night certainly, nor by day according to the more correct view ; it has been said: it is secured by day in a time of safety from pillage and the like.
And if the one inside is awake but does not keep full watch, moving about the house, and someone catches him unaware and steals, there is no cutting according to the correct transmitted view, because of the shortcoming in neglecting the watch with the door open. And if he used to be extreme in watching, such that safekeeping is achieved by its like in the desert, and the thief seized the opportunity, he is cut off without disagreement.
And if the owner of the house opened its door and permitted people to enter, like the purchase of his goods, as the one who bakes in his house does, two views, for the crowd distracts. As for the case where no one is in it, the school's position is that if the door is shut it is secured by day in time of safety, and not in time of fear nor at night ; if it is open, it is not secured at all.
And if the thief claimed that the owner of the house was asleep, or neglected what is in it and turned away from watching, al-Ghazali said: the cutting falls upon his mere claim, as in the claim of ownership.
Imam an-Nawawi (may Allah have mercy on him) said: know that all of this matter is built upon the prevailing custom in safekeeping. Upon this principle the companions of the school said: cash, jewels and clothes are not secured except by shutting the door upon them. As for the goods of the perfumers, the grocers and the pharmacists, if he leaves them at the door of the shop and sleeps in it or is absent: if he gathered some of them to some and tied them with a rope, or hung a net over them, or placed two planks across the door of the shop crossing each other, that suffices as safekeeping by day, for the neighbors and passers-by look at them. If he left them scattered and did none of what we mentioned, they are not secured. As for the night, they are not secured except by a guard... (Rawdat at-Talibin 6/553 and 556 ; see al-Bayan 12/444 and 448, an-Najm al-Wahhaj 9/162 and 173, Mughni al-Muhtaj 5/468 and 473, Nihayat al-Muhtaj 7/517 and 525).
The position of the Hanbalis is close to that of the Shafi'is. They said: the secured place varies according to wealth, countries, the justice or injustice of the ruler, his strength or weakness, for the thief is more hidden in the large town, because of the extent of its quarters, than in the small one. Likewise the ruler: if he is just and establishes the fixed punishments, thieves grow few, and people need no extra protection ; if he is unjust, joins those who seek refuge with him and defends them, their power grows strong, and the owners of wealth need extra vigilance. The same applies with his strength or weakness.
The secured place for coin, jewels and cloth is in the houses and shops of populated areas, behind doors and firm locks. The chest in the market is a secured place when there is a guard, for that is the custom ; if there is no guard, the chest is not a secured place. If the doors are not locked and there is no guard, it is not secured. And if in the house with open doors there are locked cabinets, the cabinets are a secured place for the wealth in them, and what is outside the cabinets is not secured when the doors of the house are open.
As for the houses in gardens, streets and the desert: if there is no one in them, they are not secured, locked or open. If their occupants or a watchful guard are in them, they are secured, locked or open. If a sleeper is in it and it is locked, it is secured ; if it is not locked, it is not secured unless the guard is awake.
Likewise a tent, a kharkah (felt tent) and their like, such as the hair tent: if someone is in it, even asleep, it is secured together with what is in it, for that is how it is customarily secured ; if no one is in it, but a guard is beside it, it is secured as well ; if there is no guard beside it and no one in it, no cutting upon its thief, for it is not secured by custom.
And if someone is wearing a garment, or pillowing it under his head, asleep or awake, or spreading it beneath him or leaning upon it, in whatever place, town or open country, it is a secured place, for the Prophet (peace and blessings of Allah be upon him) had the hand of the thief of Safwan's cloak cut off in the mosque while he was pillowing it. Or if he was asleep on the back of his mount without having dismounted, or his sandal was on his foot, it is a secured place, for that is how it is kept. If the sleeper rolled away from the garment, the securing is gone: no cutting upon the thief then.
And if the garment or other belongings are in front of him, like the cloth of the drapers, the goods of the sellers and the bread of the baker, so long as he watches and looks at it, it is a secured place, for that is the custom. If he sleeps or is absent from the place of watching, it is not secured. And if the draper or the like placed the goods in sacks and marked them, that is, tied them, with a thread or the like, such as a rope or a strap, and there is a guard watching them, they are secured, in accordance with custom ; if there is then no guard watching them, they are not secured.
The securing of ships on the bank is by tying them, for custom runs so. The securing of vegetables, pulses, cooked dishes with their pots and pottery is by pressing some of it to some with a rope or otherwise, when there is a guard in the market, for custom runs to securing them so.
The securing of flocks in pens, singular subra, which is the sheep pen, and their securing at pasture is by the shepherd and his watching them when the shepherd sees them most of the time, for custom secures them so. Whatever animal the shepherd slept away from or ceased to watch has left the secured place: no cutting upon its thief.
The securing of clothes in a bathhouse is by a guard, and the guard guarantees what is lost through his negligence, even if the owner of the goods did not explicitly entrust them to him, in accordance with custom.
Whoever stole from the fruit of a tree, or from palm flower clusters, before their admission into the secured place, like taking them from the tops of the palms and trees of the orchard, is not cut off, even if there is a wall and a guard, and he guarantees twice its value, because of the hadith of Rafi ibn Khadij that the Prophet (peace and blessings of Allah be upon him) said:
« There is no cutting for fruit nor for palm flower clusters. »Authentic hadith, reported by Abu Dawud (4388), at-Tirmidhi (1449), an-Nasa'i (4960), Ibn Majah (2593) and Ahmad (3/463)
And because of the hadith of Amr ibn Shu'ayb, from his father, from his grandfather:
« A man from Muzaynah came to the Messenger of Allah (peace and blessings of Allah be upon him) and said: "O Messenger of Allah, what is your view of mountain livestock?" He said: "Restitution of it and its like, plus exemplary punishment. There is no cutting for any livestock except what the night enclosure has sheltered and that reaches the price of a shield: for it the hand is cut off ; what does not reach the price of a shield, its compensation is twice its value and lashes of exemplary punishment." He said: "O Messenger of Allah, what is your view of hanging fruit?" He said: "Restitution of it and its like with it, plus exemplary punishment. There is no cutting for hanging fruit except what the drying yard has sheltered. What is taken from the drying yard and reaches the price of a shield entails the cutting ; what does not reach the price of a shield, its compensation is twice its value and lashes of exemplary punishment." »Good hadith (hasan), reported by Abu Dawud (1710), at-Tirmidhi (1289), an-Nasa'i (4959), Ibn Majah (2596) and Ahmad (6683)
And because fruit is customarily within reach of the hand: it was therefore allowed that its value be made double against its thief, as deterrence and rebuke, unlike other things.
And whoever stole a threshold after its admission into the secured place, like a drying yard and the like, or stole a threshold of fruit from a tree in a secured garden, is cut off, because of the preceding hadith. Likewise livestock stolen from pasture without being secured is guaranteed by twice its value, with no cutting, like fruit and palm flower clusters.
Everything else, that is, other than fruit, palm flower clusters and livestock, is guaranteed by its value once if it has appraised value, or by its like if it is fungible, for the doubling in these is contrary to analogy and rests upon the text: one does not go beyond the locus of the text.
And if the guest stole from the wealth of his host, from the place where he lodged him or from a place not secured from him, he is not cut off, because he did not breach a secured place. And if the guest stole from a place secured against him: if the host had refused him his hospitality food and he stole to its measure, he is not cut off, because he took what was due to him: he is like the wife and the close relative when they take what is due to them. And if the host did not refuse him his due hospitality food, he is cut off if he stole a threshold, for the guest then has no latent claim upon the host's wealth (al-Mughni 9/98 and 102 ; see al-Insaf 10/270 and 275, Kashshaf al-Qina' 6/172 and 178, Sharh Muntaha al-Iradat 6/243 and 250, Manar as-Sabil 3/339).
The jurists differed on the ruling of one who steals from waqf wealth: is his hand to be cut off or not?
The Hanafis are of the view that one who steals from waqf wealth is not cut off, because if the waqf is for the general public, its wealth is like the public treasury, and if it is for a defined group, it is because of the absence of a true owner ; and whether the thief is among them or not.
It has been said: he is cut off at the request of the waqf administrator. Its basis, as Ibn Abidin (may Allah have mercy on him) says, is that the waqf remains, by legal construction, the property of the founder according to the Imam, and this concerns the principal of the waqf.
As for the yield, they expressly stated that it belongs to the beneficiaries. Yet it should be said: if the thief has a right in the yield, he is not cut off for stealing from it, whether it is a waqf for the general public or for a defined group, because of the established co-ownership. The same applies to the waqf of the mosque when the thief holds a function in it, unlike his stealing of its mats and lamps, for his right is in the yield, not in the mats (Hashiyat Ibn Abidin 4/94 ; see al-Bahr ar-Raiq 5/60).
The Shafi'is are of the view that if the waqf is for people in general or for a general purpose, and someone steals from it, he is not cut off, even if a dhimmi, for he is among the people, and because it follows the interests of the Muslims.
And if the waqf is for a specific purpose, like the poor and the destitute, and a poor or destitute person stole from its yield, he is not cut off, for he is among the beneficiaries of the waqf. The same if he has a latent claim of entitlement, as when the father of the beneficiary or his son steals. If a rich person stole from it, he is cut off according to the more correct view, for he is not among the beneficiaries of the waqf, and the same for everyone who is among neither those entitled nor those with a latent claim of entitlement.
In the view opposite the more correct one, he is not cut off if one who is not among the beneficiaries of the waqf steals, for if it belongs to Allah the Most High, it is like things free for common use, and if it belongs to the beneficiary or the founder, it is because of the weakness of ownership (al-Bayan 12/472 ; see an-Najm al-Wahhaj 9/161 and 162, Mughni al-Muhtaj 5/467 and 468).
The Hanbalis said: if he stole from the waqf or from its yield while being among its beneficiaries, such as being destitute and stealing from the waqf of the destitute, or from defined people upon whom a waqf rests, no cutting is upon him, for he is a partner ; and if he was from other than them, he is cut off, for he has no right in it.
Ibn Qudama (may Allah have mercy on him) said: if it is said: but you said "no cutting for theft from the public treasury", without distinguishing rich from poor, why do you distinguish here? We answer: because the rich person has a right in the public treasury, and this is why Umar (may Allah be pleased with him) said: "There is no one but that he has a right in this wealth", unlike the waqf of the destitute, for the rich person has no right in it (al-Mughni 9/117 and 118).
As for the Malikis, I have not come across a position from them, though the implication of their words is that he is cut off.
The jurists differed on the ruling of one who steals from the public treasury: is he cut off or not?
The Malikis and the Shafi'is, in one view which is also the view of Ibn al-Mundhir, are of the view that whoever steals from the public treasury a threshold is cut off, whether in an orderly manner or not. It is stated in al-Mudawwana: (I said): What do you think of one who steals from the public treasury, is he cut off? (He said): Malik said to me: yes, he is cut off. (I said): What do you think of one who steals from booty while being among those entitled to that booty? (He said): Malik said to me: he is cut off. (I said): Why did Malik cut him off while he has a share in it? (He said): Malik said to me: what then is his share of it? (al-Mudawwana al-Kubra 16/295 ; see at-Taj wa-l-Iklil 5/350, Sharh Mukhtasar Khalil 8/96, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/341, Tahbir al-Mukhtasar 5/370, al-Bayan 12/470 and 471, Mughni al-Muhtaj 5/466).
The majority of jurists, the Hanafis and the Shafi'is in the relied-upon position of the school, according to a detail of theirs, and the Hanbalis, are of the view that no cutting is upon one who steals from the public treasury if he is a Muslim, because it is wealth belonging to all Muslims collectively and he is one of them, because of what is reported from Ibn Abbas (may Allah be pleased with him and his father):
« A slave from the slaves of the fifth stole from the fifth. The matter was raised to the Prophet (peace and blessings of Allah be upon him), and he did not cut off his hand, saying: "The property of Allah: part of it stole part of it." »Weak hadith, reported by Ibn Majah (2590)
And because of what is reported that Ali (may Allah be pleased with him) was brought a man who had stolen a helmet from the fifth, and he saw no cutting upon him, saying: "He has a share in it." Waki reported, from al-Masudi, from al-Qasim, that a man stole from the public treasury: Sa'd wrote to Umar about it, and Umar wrote back to him: no cutting upon him, for he has a share in it. None of the Companions contradicted them in these two, so it was a consensus (reported by Ibn Abi Shayba in his Musannaf 29156).
Moreover, since his right in it and the right of the rest of the Muslims are equal, he is like one who steals wealth held jointly between himself and another: he is not cut off. And because the rights in the public treasury are general, the thief is included among them, and the cutting drops in it.
The Shafi'is and the Hanbalis expressly stated that the dhimmi, if he steals wealth from the treasury of the Muslims, is cut off, for he has no right in it (Ahkam al-Quran 4/77 ; see al-Ikhtiyar 4/131, al-Jawhara an-Nayyira 5/395, al-Lubab 2/328, al-Hawi al-Kabir 13/350, al-Muhadhdhab 2/281, al-Bayan 12/470 and 471, an-Najm al-Wahhaj 9/160, Mughni al-Muhtaj 5/466, al-Mughni 9/117, al-Mubdi' 9/134, Kashshaf al-Qina' 6/180, Sharh Muntaha al-Iradat 6/251).
However, the Shafi'is have a detail concerning theft from the public treasury. They said: whoever steals the wealth of the treasury, if it is set aside for a group, such as the relatives of the Prophet's household and the destitute, and he is among them, or is their ancestor or descendant, no cutting. If it is set aside for a group he is not among, he is cut off without disagreement, for he has no latent claim in it.
And if it is not set aside for a group, in that he stole from what is not set aside for them, the more correct view is that if he has a right in what is stolen, like wealth for public interests with respect to a poor Muslim definitively, or a rich one according to the more correct view, and like charity while he is poor, or indebted to reconcile people, or on campaign, no cutting in the two questions. As for the first: because he has a right even if rich, as has passed, for it may be spent on the upkeep of mosques, frontier posts and bridges, from which the rich and the poor among the Muslims benefit, for that is specific to them, unlike the dhimmi, who is cut off for it, with no regard to the leader's spending upon him in time of need, for the leader spends upon him only out of necessity and on condition of restitution, as he spends upon the person in dire need on condition of restitution. His benefit from bridges and frontier posts is incidental, in that he is a resident of the abode of Islam, not because of a specific right in them.
As for the second: because of his entitlement, unlike the rich person, who is cut off for lack of entitlement, unless he is on campaign or indebted to reconcile people: then he is not cut off.
And if he has no right in it, he is cut off, because of the absence of a latent claim. In the view opposite the more correct one there are two views: one: he is not cut off in any case, rich or poor, whether he stole charity wealth or public interest wealth, for it is designated for need: the poor are supported from it and the rich are given from it what is incumbent upon him because of a liability he carries. The second: he is cut off in any case, as with all other wealth.
Whoever is not cut off for stealing treasury wealth: his ancestor, descendant or slave is likewise not cut off for stealing it from it. And by the public treasury is excluded the case of one entitled to zakat who steals from the wealth of the one upon whom it was obligatory: if what is stolen is of a different kind than that in which it was obligatory, his hand is cut off,