Theft Punishable by Hadd.
Section 22. Theft Punishable by Hadd.
Theft punishable by Hadd is the surreptitious taking of tangible personal property; and
- The property is a legally recognized property (Mal Mutaqawwim) that was kept in the safe keeping of another person (Hirz); and
- The value of the stolen property is not less than…. (niṣāb); and
- The actor has no right of ownership nor does he suspect that he may have the right of ownership and it has not been entrusted to him; and
- The actor has the intention of owning the property without the owner’s consent.
Explanatory Notes
Taking full possession of another’s property requires that the stolen property be removed from its safe keeping and possessed by the actor. See 10 Ibn Qudamah, Al-Mughni wa al-Sharh al-Kabir at 259. Thus, taking full possession does not occur if the stolen item did not depart its safekeeping location.
Tangible personal property means any property that is not real property or intellectual property.
Mal Mutaqawwim is a legally recognized property in Islam that can be traded at a price. Mutaqawwim property does not include perishable items such as fresh meat and fruit still on trees or items that are prohibited for Muslims to trade in; such as liquor and swine if the victim of theft is a Muslim. if the victim of theft is a non-Muslim and owned an item prohibited for Muslims such as liquor or swine, such property is mutaqawwim property.
The property must be in safekeeping meaning that fruit still on trees is not in safe keeping until stored in safe place. The property is considered in safe keeping if it was located in a place designed to keep the property inside it and is not open to the public, for example in houses, barns, or storage places. A property is also considered in safe keeping if it is located in a public place but guarded. Permission to enter a place, expressed or implied, indicates that the property is not in safe keeping for those who are permitted to enter. The majority of scholars have suggested that a wife’s theft from her husband is not punishable by Hadd punishment because she shares ownership of the husband’s property while a husband’s theft from his wife is punishable by Hadd.
The value of the stolen property (niṣāb) shall be determined by the parliament. However, it should not be less three silver coins.
Imams Malak, Ahmed and Shafi’i have suggested that the property’s stolen value is determined by its value at the time of theft. See 10 Ibn Qudamah, Al-Mughni wa al-Sharh al-Kabir at 278 and Sharh az-Zarqani ‘ala Muwatta al-Imam Malik.
If the property remains partially in its safe keeping place and has partially departed its safe keeping and has partially entered the actor’s possession, the value of the stolen property is determined by the value of the property that departed its safe keeping and entered actor’s possession.
Imam Ahamed’s opinion is worth endorsing; that the actor must be aware that the property stolen had reached the minimum amount required for conviction of theft punishable by Hadd.
According to Imam Abu Hanifa, the stolen property must be owned by another, who reported the theft to the authorities at the time of execution of the punishment. It follows that if the owner of the stolen property transferred ownership to the actor before the execution of the punishment, the execution will cease to exist. Imams Ahmed and Shafi’i have a different opinion, See Imam Al-Kasani, 7 Bada’i al-Sana’i fi Tartib al-Shara’I at 88-89. A trial for the crime of theft shall not proceed unless the owner of the stolen property is known and has reported the theft to authorities. An actor is not liable to theft punishment by Hadd if (a) the stolen property is publicly owned; or (b) the actor is a shareholder of the stolen property; or (c) the victim is descendant of the actor; or (d) the actor is a creditor who stole from the debtor who refused to pay providing that the creditor stole only the debts owed; or (e) the actor alleges ownership of the stolen property. Although the actor in the former cases is not liable to theft punishment by Hadd, he remains liable to theft punishment by Ta’zir. See 10 Ibn Qudamah, Al-Mughni wa al-Sharh al-Kabir at 284,286 and Sharh az-Zarqani ‘ala Muwatta al-Imam Malik.
Section 22.1 Theft Punishable by Hadd Offense – Methods of Proof
- Witness testimony:
- If the defendant is a non-Muslim, at least two mature credible males must collectively testify that they witnessed the theft.
- If the defendant is a Muslim, at least two mature credible Muslim males must collectively testify that they witnessed the theft.
- Admission
A defendant’s non-retracted informed admission of all elements of the offense is required for conviction under this category.
Explanatory Notes
In section 22.1 if less than two males witness the theft – for example, if one witness heard about the theft while the other witness saw the theft – Hadd punishment is not warranted.
Section 22.2 Punishment for Theft Punishable by Hadd
The punishment for theft punishable by Hadd is amputation of the right hand. A repeat offender shall be punished by imprisonment not less than… and not exceeding …….
Explanatory Notes
Right hand amputation shall be performed only if the left hand is in working order. If the left hand is not in working order, the punishment shall be substituted with imprisonment.
