بَابُ قَطْعِ السَّرَقَةِAmputation for Theft

² The statement: No amputation except for ten dirhams: Theft linguistically is taking another’s property secretly, regardless of what it is. Legally, conditions were added: the thief must be sane, as Allah called amputation a deterrent, a punishment requiring a crime, which needs sanity and puberty. The stolen item must be valued, owned property from a secure place (hirz) with no doubt. If taken openly, or not property (e.g., intoxicants), or from an insecure place (e.g., a relative’s house, spouse’s house, host’s house), or by cutting a purse from outside, or unowned property (e.g., waqf), or less than ten dirhams, amputation is not required. The thief must return the item if it exists or compensate its value if destroyed. The ruling: Amputation deters, needed for property valued by people. Value is subjective, varying by custom, so the Sharia specified it. A hadith states: No amputation except for the price of a shield. Its value differed: per us, ten dirhams; al-Shafi‘i, a quarter dinar; Malik, three dirhams. Due to disagreement on the shield’s value but consensus on its specification, we take the highest to be certain, as no one denies amputation for ten dirhams, while lesser amounts are disputed, so amputation is not required due to doubt, to avert punishment. The ten-dirham narration is from a jurist. In sum: Consensus holds amputation for ten dirhams; below that, scholars differ due to varying hadiths, creating uncertainty, so it is not required, as punishments are averted by doubts and require certainty. Ibn al-Humam said: Some, like Hasan al-Basri, Dawud, the Khawarij, and Ibn Bint al-Shafi‘i, said amputation applies to any amount, per the verse’s generality and the Prophet’s (ﷺ) saying: Cursed is the thief who steals an egg and his hand is cut, or a rope and his hand is cut. Most jurists of the regions hold it requires a specific amount. Our school and some Tabi‘in say ten dirhams; al-Shafi‘i, a quarter dinar; Malik and Ahmad, a quarter dinar or three dirhams. Companion consensus is cited, restricting the verse. Reason: Trivial items lack desire, like a wheat grain, included in the verse’s generality, and cannot be taken secretly, failing theft’s condition of secrecy. Thus, the rope and egg hadith is interpreted as a ten-dirham rope, an iron egg, or pre-specification when the verse was revealed vaguely, later clarified, or abrogated, as amputation initially had no minimum. Gathered from Uqud al-Jawahir, Al-Tafsir al-Ahmadiyya, Al-Kawkab al-Durri, Badhl al-Majhud, Al-Ta‘liq al-Mumajjad, Al-Mirqat, and Kanz commentaries.

¹ The statement: No amputation for fruit or palm pith: In Sharh al-Sunna, Abu Hanifa followed this hadith’s apparent meaning, not requiring amputation for stealing fresh fruits, whether secured or not, and analogized to meat, milk, and drinks. Others required amputation if secured, per Malik and al-Shafi‘i. In Al-Hidaya: No amputation for perishable items like milk, meat, or fresh fruits, per: No amputation for fruit or palm pith. Palm pith is the palm’s core or sap. The Prophet (ﷺ) said: No amputation for food, meaning perishables prepared for eating, like meat or fruit, as amputation applies to wheat and sugar by consensus. Al-Shafi‘i said: Amputation applies, per: No amputation for fruit or palm pith, but if stored in a granary, amputation applies. We say: He followed custom, where granary-stored fruit is dry, subject to amputation. In Al-Mirqat: They conflict on secured fresh fruit; in punishments, the view preventing punishment prevails to avert it. In Al-Lam‘at: No amputation for fruit on trees or unharvested crops due to lack of security. For harvested, secured fruit, al-Shafi‘i requires amputation; Ahmad, in one narration, if from a guarded orchard or tree in a secured house with a nisab stolen. In our view, no amputation for perishables like milk, meat, or fresh fruits, per: No amputation for fruit or palm pith, meaning perishables prepared for eating.

¹ The statement: No amputation for a betrayer, plunderer, or snatcher: In Al-Hidaya: No amputation for a betrayer, male or female, due to insufficient security, nor for a plunderer or snatcher, as they act openly. The Prophet (ﷺ) said: No amputation for a snatcher, plunderer, or betrayer.

² The statement: The hadith of Safwan has inconsistency, etc.: If the victim gifts or sells the stolen item to the thief before the judge’s amputation ruling, amputation is dropped without dispute, as the dispute ends. After the ruling but before execution, Abu Hanifa and Muhammad say it is dropped; Abu Yusuf and al-Shafi‘i say it is not. Their evidence is Safwan’s hadith: He was sleeping in the Prophet’s (ﷺ) mosque with his cloak as a pillow. A thief stole it. Safwan caught him and brought him to the Prophet (ﷺ), who ordered amputation. Safwan said: Cut his hand for my cloak? I gift it to him. The Prophet (ﷺ) said: Why not before bringing him to me? This suggests gifting after the ruling does not drop amputation. We say: Execution completes the judge’s ruling in punishments. Before execution is like before the ruling. If owned before the ruling, no amputation; so too before execution. In Fath al-Qadir: In Mishkat, Safwan said: I sell it to him and forgive its price, and he was silent. Many narrations omit this, only saying: I did not intend this, or: Is an Arab’s hand cut for thirty dirhams? It is not confirmed he gifted it. The incident is one, so this addition is inconsistent, causing weakness. His saying: It is charity for him may have been after delivery, not ownership without possession. In Al-Mabsut: Some narrations say: I forgave him. The hadith narrates a specific case, not general. The Prophet’s (ﷺ) saying: Why not before bringing him to me? means to avoid exposing him. His face changed, and Safwan said: It seems to distress you. He replied: How could it not, when you aid devils against your Muslim brother? This shows he disliked exposure. It is not famously narrated that he amputated after the gift. If narrated, the thief may not have accepted the gift, and since his cover was exposed, the Prophet (ﷺ) purified him with the punishment, rejecting the gift. In our view, if the thief rejects the gift, amputation is not dropped. In Badhl al-Majhud: Safwan’s hadith is not evidence, as he said: It is charity for him, possibly meaning the stolen item or waiving amputation, which does not drop the punishment. Some narrations say: I gifted the amputation. It may mean he gifted the item but it was not received, and amputation is dropped only with gifting and possession.

¹ The statement: Establish Allah’s limits in residence and travel: Travel here is general, including warriors or others, so punishments apply in battle. Our jurists permit enforcing punishments in camps. The hadith of Basr ibn Artah: No cutting hands in battle, is weak per some, followed by al-Awza‘i but not our jurists or most, who see no difference between war and other lands, requiring punishments for offenders, like obligatory worship in Muslim or war lands. Some say: In battle means war spoils before division, as the thief has a share. (Gathered from Al-Kawkab al-Durri’s margin, Nayl al-Awtar, and Al-Mirqat)

¹ The statement: If a thief steals, his right hand is cut, etc.: Scholars agree that for the first theft, the right hand is cut; for the second, the left foot. For a third theft after losing hand and foot, al-Shafi‘i and followers say the left hand is cut, then the right foot for a fourth, then discipline and imprisonment, per Abu Salama and Jabir’s hadith. Abu Hanifa and his companions say: For a third theft, he is imprisoned until he repents, not cut, but disciplined with beating and imprisonment, as amputation no longer applies, leaving deterrence. Our evidence: Companion consensus, as Ali argued: I am ashamed before Allah to leave him without a hand to act or a leg to walk, and none cited a raised hadith, indicating its absence. Al-Tahawi said: We traced these narrations and found no basis. No killing for a fifth theft. If al-Shafi‘i’s narration of killing is authentic, it is policy or abrogated, as the Prophet’s (ﷺ) saying for a fifth theft: If he repeats, kill him, is policy by consensus. In Fath al-Qadir and Al-Mabsut: The hadith is not authentic, or if accepted, abrogated, as early Islam had severe punishments, like the Urayna tribe’s hands, feet, and eyes. In Fath al-Qadir, citing Ali, Ibn Abbas, and Umar’s view: This is firmly established. It is unlikely the Prophet (ﷺ) cut four limbs then killed, unknown to Ali, Ibn Abbas, and Umar, close Companions who would know by custom. Ali’s refusal suggests the narration’s weakness or that it was not a fixed punishment but the Imam’s discretion, seeing corruption or incorrigibility, allowing killing as policy, meaning figurative killing. This aligns with killing as policy for the third theft. (As in Radd al-Muhtar)

² The statement: Cut him, then cauterize him, etc.: Cauterization is recommended per al-Shafi‘i, obligatory per us, as the hadith’s apparent command implies obligation, with no diversion from its literal meaning, especially since neglecting it risks death, and punishment deters, not destroys, making it obligatory otherwise. (Gathered from Al-Durr al-Mukhtar, Nayl al-Awtar, and Al-Hidaya)

¹ The statement: Hung around his neck: Ibn al-Humam said: Al-Shafi‘i and Ahmad hold it is recommended to hang the hand around the neck, as the Prophet (ﷺ) ordered it. In our view, it is at the Imam’s discretion if he sees fit, and it is not established for every amputee to be a Sunna.

² The statement: If a slave steals, sell him, even for a pittance: In Badhl al-Majhud: Mawlana Muhammad Yahya noted: This is mentioned to indicate the Imam may add what he deems appropriate beyond the punishment, as a form of discipline. Selling for a pittance or less than his value is a humiliation, like hanging the hand around the neck.

³ The statement: He cut him: In Al-Bahr al-Raiq, Al-Mirqat, and Al-Hidaya: If a slave steals from someone other than his master or his master’s wife, he is cut, whether fugitive or not, per this report and the verse: “As for the thief, male or female, cut off their hands” [Al-Ma’ida: 38], which does not distinguish between free and slave. Halving the punishment between free and slave is infeasible, so it is fulfilled to protect people’s property. This is the view of Abu Hanifa, Malik, and al-Shafi‘i (may Allah have mercy on them).

⁴ The statement: No amputation, etc.: Ibn al-Humam said: If one spouse steals from the other, or a slave from his master or master’s wife, there is no amputation, as customary permission to enter disrupts security. (As in Al-Mirqat)

¹ The statement: No amputation for a grave robber: Grave robbing is taking a corpse’s shroud after burial. No amputation for it is the view of Abu Hanifa and Muhammad, whether the grave is in a locked house or open land, and whether the taken item is the shroud or else. The reason: Grave robbing is not theft due to lack of security, as the dead do not secure themselves, and a grave is not a secure place. Ownership is doubtful, as the dead have no true ownership, nor do heirs, as the deceased’s needs for burial precede inheritance rights. As in Hidaya’s notes. Ibn Abbas’s saying: No amputation for a grave robber, narrated by Ibn Abi Shayba, supports this. Al-Zuhri said: Marwan was brought people robbing graves, beat and exiled them, with many Companions present. Abd al-Razzaq narrated it, adding: And paraded them. Abu Yusuf and al-Shafi‘i hold amputation is required, following Ibn al-Zubayr, who cut a grave robber, per Bukhari’s History. Umar did similarly, per Abd al-Razzaq. The hadith: Whoever robs a grave, we cut him, narrated raised by al-Bayhaqi, supports them. Hidaya’s denial of its being raised is baseless, as is dismissing the hadith: No amputation for a grave robber as insignificant. Abu Hanifa’s response to: Whoever robs a grave, we cut him: First, its chain includes an unknown narrator, so it is not considered. Second, it is understood as policy, supported by some narrations adding: Whoever drowns, we drown him. No hadith in this matter is narrated with a chain suitable for evidence on amputation or its absence. Companion disagreement hinges on whether grave robbing is theft. Those deeming it theft ruled for amputation; those seeing no theft due to lack of security or ownership ruled against it, except as policy. The truth likely aligns with this unless a hadith with a valid chain proves otherwise. The case of pickpocketing, taking another’s property while they are awake, present, and intent on guarding it by exploiting a moment of inattention, is also not theft, like grave robbing. Why then is a pickpocket’s hand cut but not a grave robber’s? Ibn Malik in Sharh al-Manar and other usulis explain: The theft verse implying amputation applies to secretive taking, but for pickpockets and grave robbers, we assess if secrecy adds or detracts. For pickpockets, secrecy enhances, as pickpocketing, though distinct, exceeds theft, taking openly with inattention. For grave robbers, secrecy detracts, as grave robbing is lesser than theft. Thus, amputation applies to pickpocketing but not grave robbing, as a ruling for the lesser extends to the greater, not vice versa. (As in Umdat al-Ri‘aya)

¹ The statement: As a recompense for what they earned: This indicates that amputation is the full consequence of the act, as the term “recompense” implies completeness. If we required compensation alongside it, amputation would not be the full consequence, contradicting the text. Abd al-Rahman ibn Awf (may Allah be pleased with him) narrated that the Prophet (ﷺ) said: No liability on the thief after his hand is cut. The meaning: Amputation is a punishment averted by doubts, while compensation is a liability established with doubts, so they are not combined for one act, like retribution with blood money. (As in Al-Mabsut)