بَابُ الشَّفَاعَةِ فِي الْحُدُوْدِIntercession in Prescribed Punishments

¹ The statement: Do you intercede in one of Allah’s limits?: Intercession in a prescribed punishment is not permitted after reaching the judge. Before reaching or being proven before the judge, intercession is allowed for the one raising the case to release him, as the punishment’s obligation is not yet established. Obligation arises not from the act alone but upon proof before the Imam. (As in Fath al-Qadir)

² The statement: The Makhzumite woman borrowed goods and denied them, so the Prophet (ﷺ) ordered her hand cut: The intent is that she was cut for theft. Borrowing was mentioned to identify and describe her, as it was the cause. The amputation was for her theft, and denial was noted for identification. Muslim’s narrations explicitly state she stole and was cut for theft, so this narration aligns to reconcile them, as it is one incident. Some imams said this narration is irregular, contradicting most narrators, and irregular narrations are not acted upon. Scholars said: Theft was omitted here because the narrator’s focus was prohibiting intercession in limits, not reporting theft. Most scholars and jurists of the regions hold there is no amputation for denying borrowed goods and interpret this hadith accordingly. Ahmad and Ishaq said amputation is required, per al-Tayyibi and al-Nawawi.

In Al-Mirqat: They agreed intercession in a prescribed punishment is forbidden after reaching the Imam, per this hadith, and seeking intercession is forbidden. Before reaching, most scholars allow it if the person is not a habitual wrongdoer. For offenses requiring discretionary punishment, intercession is permitted whether it reaches the Imam or not, as they are weaker, and it is recommended if the person is not harmful, per al-Nawawi.

¹ The statement: The thief said: Yes, O Messenger of Allah, and he said: Take him, cut him, etc.: A thief’s hand is cut if he takes property with the conditions in fiqh books upon one confession. This is the view of Abu Hanifa, Muhammad, Malik, al-Shafi‘i, and most scholars. Abu Yusuf, Ahmad, Ibn Abi Layla, Zufar, and Ibn Shubruma said: No amputation, per Abu Umayya al-Makhzumi’s hadith, where he was not cut until repeated confessions. Abu Hanifa and others cite al-Tahawi’s narration from Abu Hurayra, where he was cut after one confession. The two hadiths conflict, requiring verification. The prior hadith is understood as the first confession being before Companions, who then told the Prophet (ﷺ): He stole, based on their witness. This reconciles the hadiths, removing contradiction, showing no need for multiple confessions. (Gathered from Fath al-Qadir, Al-Mirqat, and Kanz commentaries)

² The statement: A thief is not liable for compensation if the limit is enforced: If the thief is cut and the stolen item is intact, it is returned to its owner. If sold or gifted, it remains the owner’s property. There is no liability whether the item is destroyed or consumed, per Abu Yusuf’s narration from Abu Hanifa, the well-known view. Hasan narrated liability for consumption but not destruction. Al-Shafi‘i said: Liable in both. In detail: Amputation is obligatory for theft. If the stolen item exists, it must be returned. If destroyed or consumed, no liability per us, unlike al-Shafi‘i, as amputation and liability do not combine, though return is allowed. The property was protected for the person’s right, but theft made the limit a Sharia right, making the property protected for Sharia, not the person, so no liability. The limit is a complete recompense, so they do not combine. Objection: If true, the stolen item should not be returned if intact. Response: It is returned due to formal similarity and retained ownership, though protection shifts to Allah. For more, see usul books. Al-Shafi‘i objected: The verse “Cut off their hands” [Al-Ma’ida: 38] only indicates amputation, a specific term, not shifting protection to Allah, so you nullify the specific’s function and add with the hadith: No liability on the thief after his right hand is cut. Hanafis responded in usul books: Protection’s shift to Allah is from “As a recompense for what they earned” [Al-Ma’ida: 38], not “Cut off their hands”. Allah justified amputation as recompense, which, in legal punishments, means a right for Allah against the act. “Recompense” from “jaza” (to suffice, fulfill) indicates amputation is a complete, sufficient penalty for theft, achieved only if the crime fully violates Allah’s right, not a person’s, which is partial. Protection must shift to Allah for the act to be inherently forbidden. If protection remained with the person, it would not be inherently forbidden. This is from “As a recompense”, not “Cut off their hands”, as you claimed. Our school cites: The hadith A thief is not liable for compensation if the limit is enforced, and narrations from Ibn Sirin, al-Nakha‘i, al-Sha‘bi, Ata, al-Hasan, and Qatada against liability. In Al-Binaya: This is sound per “Cut off their hands as a recompense for what they earned” [Al-Ma’ida: 38], which does not mention liability, and if required, it would be stated. Objection: The hadith is flawed? Al-Daraqutni said: Its chain includes Sa‘id ibn Ibrahim, unknown, and all its chains are unreliable. If accepted, it may mean no torment in the Hereafter, or no payment to the executioner, or no liability initially in Islam. These possibilities prevent using it to deny liability. I say: No, al-Maraq’s claim is not accepted alone. They criticized the chain because narrated by al-Musawwar from Abd al-Rahman ibn Awf, whom he did not meet, making it mursal, but mursal is evidence. Al-Ayni in Al-Binaya said: Ibn Jarir al-Tabari narrated it in Tahdhiyb al-Athar with a connected, reliable chain. Al-Musawwar and his father meet Bukhari’s standards. His father was listed by Ibn Hibban among trustworthy Tabi‘i. Al-Zuhri narrated from Sa‘id ibn Ibrahim, per Abd al-Baqi, who said: This is authentic; he was a reliable Madinah judge. “Gharm” meaning executioner’s fee is unlikely, as the Prophet (ﷺ) used an indefinite “gharm” in negation, implying all liabilities. Abu al-Layth said: Muhammad ibn al-Hasan said: No liability in legal ruling, but in piety, liability is due. This is the better view and fatwa-worthy. In Fath al-Qadir and Al-Mabsut: Hisham narrated from Muhammad: Liability is dropped in ruling due to inability to equate. In piety, liability is issued due to the owner’s loss from the thief. Gathered from Al-Hidaya, Al-Durr al-Mukhtar, Radd al-Muhtar, Sharh al-Wiqaya, Umdat al-Ri‘aya, Al-Binaya, Kanz commentaries, Al-Tafsir al-Ahmadiyya, and Al-Mirqat.