THEFT AT A GLANCE UNDER SHARI’AH LAW

Theft or Sariqa defined,

One of the legal punishments under Shari’ah rulings is the crime of theft. Generally, it prescribed the cutting-off-the-hands of the offender. The Arabic term for theft is “sariqa”, under Islamic jurisprudence sariqa or theft is categorized as hadd, means a punishment in which it is divinely fixed by the Supreme. In other words, the crime and punishment for sariqa or theft under Shari’ah ruling cannot be altered and modified in a sense as to subrogate its primary injunction.   

According to Muslim scholars, sariqa had been defined as the surreptitious removal of legally recognized property in the safe keeping of another person, that amounts to a specific minimum to which the thief has no right of ownership and which has not been entrusted to him, (Olaf Kondogen, p. 269, 2018). Sariqa may be defined as clandestine taking of things not entrusted to the taker and belonging to someone else, (Alauya, p. 225, 1999).

General rule

In Islam, to steal is absolutely haram or prohibited even a slightest pick of atom be taken without prior consents or permission from the owner. The well-known rulings of theft under Shari’ah have been legislated from its primary source. For instance, in verse 38, Surah al Maidah, it provides that: 

وَٱلسَّارِقُ وَٱلسَّارِقَةُ فَٱقْطَعُوٓا۟ أَيْدِيَهُمَا جَزَآءًۢ بِمَا كَسَبَا نَكَـٰلًۭا مِّنَ ٱللَّهِ ۗ وَٱللَّهُ عَزِيزٌ حَكِيمٌۭ

As for male and female thieves, cut off their hands for what they have done—a deterrent from Allah. And Allah is Almighty, All-Wise

The hadd punishment on sariqa in this verse is general in nature. If anyone is responsible for stealing saved items, his or her hand will be chopped off. It does not specify as to which hands of the offender be severed, and up to what extent. This is where the authentic hadith, or traditions of Prophet Mohammed (PBUH) be applied as interpretation to the primary sources of Muslim law. Meanwhile, it has to be noted that when the Supreme legislates His divine law, such is proceeded with wisdom. 

Apparently, this general law on amputation serves as exemplary, and as to forewarn the potential offender of the same crime in the future.  The phrase “كَسَبَا نَكَـٰلًۭا مِّنَ ٱللَّهِ ” (a deterrent from Allah) within the verse is the reason why law on amputation is prescribed.

Exception to the Rule

Under Islamic jurisprudence, there are two main divisions of mandatory law; the Azima and Rukhsa. Azima means determined, while Rukhsa means concessions. Rukhsa is the complete opposite of the former.  Azima refers to mandatory and strict compliance of the law or fulfilment of a duty. In Azima principle, there is no way out not to perform the obligations under which is mandated by the law Giver.  However, due to recognized circumstances beyond the control of humans which affect his non-performance of the duties, the Azima principle such as imposition of Law on Amputation may be suspended. Thus, Rukhsa will attend to address the burden and hardships. When there is:

• 1.  Widespread of famine, during the reign of Caliph Umar Bin Khataab, the law on sariqa was suspended by him due to the extensive starvation.

• 2.    Things may be decay or go to waste as such fruits, milk, fish, and the liked are not subject to law on amputation because of the hadith: 

لاَ قَطْعَ فِي ثَمَرٍ مُعَلَّقٍ وَلاَ فِي حَرِيسَةِ جَبَلٍ‏ فَإِذَا آوَاهُ الْمُرَاحُ أَوِ الْجَرِينُ فَالْقَطْعُ فِيمَا يَبْلُغُ ثَمَنَ الْمِجَنِّ

 

“The hand is not cut off for fruit hanging on the tree and for sheep kept in the mountains. So when they are taken from the fold or the place where the fruit is dried, a hand is cut off for whatever reaches the price of a shield.” (Sunan Abu Dawud, Book 17, Hadith No. 37).

• 3.       Less than the cost of the shield, the offender would not be subject to law on amputation if the value of the stolen item were less in value. Based on the hadith:

 

لاَ تُقْطَعُ يَدُ السَّارِقِ فِيمَا دُونَ الْمِجَنِّ

 

“The hand of the thief is not to be cut off for anything less than a shield." (Sahih Bhukari. Book 5, Hadith. No. 4939).

• 4.    The owner of the property pardons the offender after restoration, the Prophet (PBUH) permitted the non-enforcement of the cutting-off of the hand if it established that the offender had repented and reformed himself, provided that property stolen is restored.  

 

فَمَن تَابَ مِنۢ بَعْدِ ظُلْمِهِۦ وَأَصْلَحَ فَإِنَّ ٱللَّهَ يَتُوبُ عَلَيْهِ ۗ إِنَّ ٱللَّهَ غَفُورٌۭ رَّحِيمٌ

 

“But whoever repents after their wrongdoing and mends their ways, Allah will surely turn to them in forgiveness. Indeed, Allah is All-Forgiving, Most Merciful.” (Q5:39)

Essential elements of the crime of sariqa or Theft

Under Islamic law, the perpetrator in the crime of sariqa must be of the following: al Baligh or adult, al Aql or sane person (sound mind), and an intention of stealing, that is, he cannot be acted under foreign force. These three elements are necessary to establish the crime of sariqa. Moreover, it must be attested by at least two credible witnesses.

وَأَشْهِدُوا۟ ذَوَىْ عَدْلٍۢ مِّنكُمْ وَأَقِيمُوا۟ ٱلشَّهَـٰدَةَ لِلَّهِ

“And call two of your reliable men to witness and let the witnesses bear true testimony for the sake of Allah.” (Q65:2)

To appreciate the punishment for theft, the offender must be a sane adult who knows that theft is forbidden, the crime has to be proven either by confession or the testimony of two reliable witnesses as required from quoted verse, the stolen item has to be of value and taken secretly from a safe place, and the owner has to claim it. Otherwise, there shall be no amputation.

 

The Value for which, if it is stolen, the (Thief's) Hand is to be cut off

The minimum value of stolen property to appreciate the imposition of amputation is ranging from three (3) Dirhams or more, and/or its equivalent.

Numerous provisions from the hadith on this matter. For instance, in one narrated by Ibn Umar, the Prophet Mohammed (BPUH) cut off the hand of a thief for stealing a shield that was worth three Dirhams. (Sahih Bukhari, Book 86, Vol. 8, Bk. 81, Hadith No. 788-791).