Nasai

Benefits and Issues:
The benefit derived from these ahadith is that everything has its (harz), i.e., its secure place, according to what is appropriate for it, and this matter is known by custom (‘urf).
The garment of a sleeping person which is under his head is considered to be in its secure place.

Benefits and Issues:
➊
By “secure place” is meant such a place where, generally, a person keeps something safely.
And for different types of property, the “secure place” also differs, for example:
For animals, their pen; for clothes, a chest, etc.; and for grain, the place where it is dried is considered its secure place (ḥirz).

➋
Outside the house, the presence of the owner itself is considered the secure place (ḥirz) for his belongings.

➌
The owner can pardon the thief.

➍
Once the matter is presented before the ruler, it cannot be pardoned after the crime; however, in the case of murder, the heirs of the victim can pardon the murderer until the execution of the death penalty.

(1) When a matter that is liable for a prescribed punishment (hadd) is presented before the ruler (hakim), then it can no longer be pardoned. However, it is possible to pardon it before it is brought to the ruler. Nevertheless, in those matters which the Shari‘ah has made an exception, pardon is possible even after being brought before the ruler, such as the heirs of a murdered person (maqtool) being able to pardon the killer (qaatil) even afterwards.

(2) Islamic and legal punishments are by no means barbaric; rather, they are indispensable and life-giving for the formation of an enviable society. Through the implementation of Shari‘ah punishments, not only are evils eradicated, but society becomes a cradle of peace and tranquility.

(3) “Was cut off” means that the order for cutting was given.

(1) There are two narrators who report this narration from Ikrimah: one is Abdul Malik bin Abu Basheer and the other is Ash’ath bin Sawar. When Abdul Malik narrated this narration, he said: “Haddathani Ikrimah ‘an Safwan bin Umayyah.” When Ash’ath narrated the same narration, he said: “From Ikrimah, from Ibn Abbas,” meaning that Ash’ath made it from the chain of Ibn Abbas instead of Safwan bin Umayyah. But it should be noted that Ash’ath’s contradiction does not harm Abdul Malik’s narration because he is a trustworthy (thiqah) narrator, whereas Ash’ath is weak (da‘eef), as Imam al-Nasa’i rahimahullah himself has explicitly stated in the following narration reported by Ash’ath. And Allah knows best.

(2) The purpose of the chapter is that if a thief steals a protected (mahfuz) item, his hand will be cut off; if he steals an unprotected (ghayr mahfuz) item, he will be considered a thief but his hand will not be cut off. As a disciplinary measure (ta’zir), some other punishment may be given. By “protected” is meant, for example: either the owner has the item with him and has kept it safely with himself, whether he is asleep or awake, or the item is in a closed place, for example: the door of the room is closed. But if an item is lying outside the house and the owner is not present, it will be considered unprotected. Or if it is in a place open to everyone, for example: a mosque, office, school, etc., and the door is also open, and the owner is not present, then it will also be considered unprotected. In the mentioned incident, Safwan radi Allahu anhu had folded the sheet and placed it under his head. Clearly, this was protected. By stealing it, the thief made himself deserving of the punishment of having his hand cut off.

Takhrij:
«أخرجه أبوداود، الحدود، باب في من سرق من حرز، حديث:4394، والنسائي، قطع السارق، حديث:4882، وابن ماجه، الحدود، حديث:2595، والحاكم:4 /380، والترمذي: لم أجده.»©Explanation:
➊ The incident of theft is as follows: Safwan bin Umayyah radi Allahu anhu was lying down in Batha or in the Sacred Mosque (Masjid al-Haram) when a man came and pulled the cloak from beneath his head. He was apprehended and brought before the court of the Prophet sallallahu alayhi wa sallam, and you (the Prophet) ordered that his hand be cut off. At this, Safwan radi Allahu anhu said: I have forgiven him and overlooked (the matter). You (the Prophet) said: "Why did you not do this before bringing him to me?" Then you had the man's hand cut off.
➋ From this hadith, the ruling is established that when a case reaches the court and the judge, then there remains no room for pardon.