Forceable Theft of a Property – Hirabah

Section 25.      Forceable Theft of a Property – Hirabah

Anyone who, directly or indirectly, whether within the State or outside, attempts to take another person’s property by force or by threatening the use of force that results in taking a property, spreading public fear or killing of a human being is guilty of an offense and liable as described below:

1. If the actor kills and steals a property, the actor shall be executed and crucified as a deterrence for others.
2. If the actor kills another only, the actor shall be executed.
3. If the actor steals property and did not kill, the actor’s right hand and left foot shall be amputated.
4. If the actor while attempting to take a property by force or threat of force has terrified individuals but did not participate in killing or stealing a property, the actor shall be punished be imprisonment not less than … and not exceeding … and/or fine not less than ……and not exceeding …….

Section 25.1    Forceable Theft of a Property Offense – Methods of Proof 

1. Witness testimony:

1. If the defendant is a non-Muslim, at least two mature credible males collectively must testify that they witnessed the commission of the offense.
2. If the defendant is a Muslim, at least two mature credible Muslim males must collectively testify that they witnessed the commission of the offense.

2. Admission

A defendant’s non-retracted informed admission of all elements of the offense is required for conviction under this method of proof.

Section 25.3    Homicide and Theft Occurring During the Commission of Forceable Theft of a Property Prior to Repentance

1. The actor who satisfies the requirement of repentance under section 25.2 and had caused death to another during the commission of forceable theft of a property shall be liable for criminal homicide punishments under sections 5-8 of this code.
2. The actor who satisfies the requirement of repentance under section 25.2 and had stolen a property during the commission of forceable theft of a property shall return the property to the victim or pay its fair value to the victim if the property is unrecoverable.

Explanatory Notes

This offense is based on the verse “The punishment of those who wage war against Allah and his messenger and strive with might and main for mischief through the land is: execution, or crucifixion or the cutting off of hands and feet from opposite sides, or exile from the land: That their disgrace in this world, and a heavy punishment is theirs in the hereafter”.   Quran, Surah Al-Maidah, (5:33)

The offense definition was suggested by Imams Ahmed and Abu Hanifa see 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ at 90. See also 10 Ibn Qudamah, Al-Mughni wa al-sharh al-kabir at 302.

This section adopts the opinion of Malak, Shafi’i and Ahmed that the offense is punishable whether committed in the State or elsewhere.

The mental element required for conviction is the intention to take another person’s property by force or by threatening the use of force. According to Imams Abu Hanifa and Malak, no intention to kill or cause injury is required for conviction.  see 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ 96-97.

Property requirements in the offense of theft by Hadd must be satisfied to convict the actor under section 25 (c). Therefore, the stolen property must be legally recognized property (Mal Mutaqawwim) that is tangible personal property; it was kept in the safe keeping of another person (Hirz) and the value of the stolen property is not less than…. (niṣāb).

Punishments in this section was suggested by Ibn Abbas. The punishment for section 25 (A) was also suggested by Imams Shafi’i and Ahmed. The punishment for section 25 (B) was suggested by Imams Abu Hanifa and Shafi’i. The punishment for section 25 (C) was suggested by Imams Abu Hanifa, Shafi’i and Ahmed. The punishment for section 25 (D) was suggested by Imams Abu Hanifa and Ahmed.  Notably the majority of scholars have suggested that “exile from the land” stated in Qur’an verse 5:33 means imprisonment.

Imams Ahmed and Shafi’I correctly suggested that if the actor is punished under section 25(D) and he caused a bodily injury, he shall also be liable for the punishment of causing a bodily injury. See Ibn Qudamah, 10 Al-Mughni wa al-sharh al-kabir at 310.

Section 25.2 is based on The Holy Quran, Surah Al-Maidah, 5:34. For the requirements in section 25.2, (1) and (2) See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ 96.

Section 25.2    Excuses That Preclude the Execution of Punishment of Forceable Theft of a Property Offense.

When the actor who commits Forceable theft of a property – Hirabah – repents and;

1. Communicates his intention to give up committing forceable theft of a property –Hirabah – to the authorities and;
2. His intention to give up committing the offense of forceable theft occurred before being apprehended.

Then, the punishments listed in section 25 shall not be executed.