The Necessity of Cutting Off the Hand of the Thief
In ayah 38, we return to the subject of the punishment of crimes under Islamic Legal Punishments. In this ayah, the punishment for theft has been mentioned. An interesting thing is that unlike other commands especially those related to Salah, Sawm, Zakah and Hajj where women have not been mentioned but it is implied that the command is for women as well; in this ayah Allah subhanahu wa ta’ala explicitly mentions women so that nothing is left under doubt.
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُواْ أَيْدِيَهُمَا
“And (as for) the male thief and the female thief, cut off their hands…..”
Allah subhanahu wa ta’ala commands and decrees that the hand of the male or female thief, be cut off. During the time of Jahiliyyah, this was also the punishment for the thief, and Islam upheld this punishment.
The word sariqh and sariqah are from the root letters seen-ra-qaf. The word saraqa means “to steal”. In the Shariah, “if anyone takes what belongs to someone else, from a secured place, without his or her permission” then this person is called a saraqa. The Shariah also emphasizes that in order to consider someone a saraqa, the following conditions must be met:
Being Legally-Owned: This means that what the person is taking is legally owned by some other person. The thief should not own anything from it, nor should there by any doubt of such ownership, not should there be things in it which the rights of come people are equal, such as, institutions of public welfare and their belongings.
This tells us that should someone take something in which he or she has ownership rights, or there is a doubt of such ownership, or in which the rights of common people are equal, then, the prescribed Islamic punishment will not be enfored against the stealer. However, the relevant authority of the time can enforce punitive punishment at his discretion.
Being Secured: It means that the stolen property must be secured as in a locked house or under a security guard. Property not in a secured place, if picked up by someone would also not render that person liable to be charged with the prescribed punishment. However, should there be even a doubt in the property concerned being secure, even then, the prescribed punishment will stand dropped. Considerations of sin and punitive punishment are a separate matter.
Being without Permission: If a person, who has been given the permission to take or pick up and use the property concerned, chooses to take it away for good, the prescribed punishment will not be imposed. And should there be even a doubt about the thief having such permission, the punishment will stand dropped.
Taking Clandestinely: This is because the looting of someone’s property openly is no theft. It is robbery, the punishment for which has already been stated. The point is if it is not by stealth, the Hadd of Saraqah will not be imposed on the person concerned.
These details convey us that theft as known to us carries a general and wide sense. Every single person who indulges in it is not legally liable to the punishment of chopping hands. The conditions stated above must be met before enforcing the prescribed punishment. By dropping the stated punishment, it doesn’t mean that the thief will go scot-free. The authorities will enforce punishment at their discretion. This punishment is known as tazeer. It also doesn’t mean that by not coming under the prescribed punishment certain type of robberies are legally permissible.
When does cutting the hand of the thief become necessary is recorded in the two saheehs that Abu Hurayrah radhiAllahu anhu said that the Messenger of Allah sallAllahu aalyhi wa sallam said,
لَعَنَ اللهُ السَّارِقَ يَسْرِقُ الْبَيْضَةَ فَتُقْطَعُ يَدُهُ، وَيَسْرِقُ الْحَبْلَ فَتُقْطَعُ يَدُه
“May Allah curse the thief who steals an egg and as a result his hand is cut off, and who steals rope and as a result his hand is cut off.”
Moreover, the stolen property must be equal to more than nisaab. Nisaab is the minimum amount on which zakat becomes due. If a person steals a penny, you’re not going to chop off his hands. The nisaab for theft is a quarter of a dinar. We learn about this in a hadeeth recorded by Bukhari and Muslim.
A’ishah radhiAllahu anha said that the Messenger of Allah sallAllahu aalyhi wa sallam said,
تُقْطَعُ يَدُ السَّارِقِ فِي رُبْعِ دِينَارٍ فَصَاعِدًا
“The hand of the thief shall be cut off if he steals a quarter of a Dinar or more.”
This hadeeth is the basis of the matter since it specifies (that the least amount of theft that deserves cutting the hand) is a quarter of a Dinar. So this hadeeth fixes the value. And saying that it is three Dirhams is not a contradiction. This is because the Dinar in question was equal to twelve Dirhams, so three Dirhams equaled a fourth of a Dinar. So in this way it is possible to harmonize these two views. This opinion was reported from Umar bin Al-Khattab and Uthman bin Affan, Ali bin Abi Talib radhiAllahu anhum, and it is the view of Umar bin Abdul-Aziz, Al-Layth bin Sa`d, Al-Awza`i, and Ash-Shafi`i and his companions.
This is also the view of Imam Ahmad bin Hanbal and Ishaq bin Rahwayh in one of the narrations from him, as well as Abu Thawr, and Dawud bin Ali Az-Zahari, may Allah have mercy upon them.
As for Imam Abu Hanifah and his students Abu Yusuf, Muhammad and Zufar, along with Sufyan Ath-Thawri, they said that the least amount of theft that deserves cutting off the hand is ten Dirhams, whereas a Dinar was twelve Dirhams at that time. The first ruling is the correct one, that the least amount of theft is one forth of a Dinar or more. This meager amount was set as the limit for cutting the hand, so that the people would refrain from theft, and this is a wise decision to those who have sound comprehension.
Towards the end of the ayah, Allah subhanahu wa ta’ala explains the logic behind pronouncing such a punishment,
جَزَآءً بِمَا كَسَبَا نَكَـلاً مِّنَ اللَّهِ وَاللَّهُ عَزِيزٌ حَكِيمٌ
“….as a recompense for that which both committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise.”
This is the prescribed punishment for the evil action they committed, by stealing the property of other people with their hands. Therefore, it is fitting that the tool they used to steal the people’s wealth be cut off as punishment from Allah for their error.
Allah subhanahu wa ta’ala is All-Powerful in His torment and All-Wise in His commands, what He forbids, what He legislates and what He decrees.
– We learn from this ayah that theft is a major sin. Any crime for which there’s a Hadd or Prescribed Punishment it’s a major sin. How lowly could someone be for the sake of some money, a bag, a mobile phone, someone is getting his hand cut off? When a person steals a small thing and is not caught or punishment, he goes on to steal something more valuable. Therefore, quarter of a dinar was set as a nisaab. If a crime is not stopped right there, the corruption will spread. From stealing things, he will one day start murdering other people.
As parents, we have a right to check what our children bring home. We must check their bags and pencil boxes to ensure they don’t bring someone else’s thing at home. We need to teach values to our children and make them conscious of their actions.
– The laws of Allah meet certain objectives. The objective of cutting someone’s hand is to protection of other people’s property. If we are supporting someone in a crime today, tomorrow we too will be inflicted by calamity. Secondly, this punishment stops the person from commiting further crimes. It also sets an example for other people. The accountability and punishment stop people from even daring to touch the property of another.
[SOURCE: Tafseer ibn Katheer, Maroof-ul-Qur’an by Mufti Muhammad Shafi Usmani]