Surah Al-Maaida (5) — Ayah 38

(Ayah 38) ➊ {وَ السَّارِقُ وَ السَّارِقَةُ فَاقْطَعُوْۤا اَيْدِيَهُمَا …… :} In the previous verse, the punishment for those who wage war (who commit robbery and spread corruption) was mentioned; now in this verse, the legal punishment for theft is stated, that whether it is a man or a woman, their hands should be cut off. The details of this are found in the hadith; Aisha (may Allah be pleased with her) narrates that the Messenger of Allah (peace and blessings be upon him) said: "The hand of a thief should not be cut off except for a quarter of a dinar or more." [ مسلم، الحدود، باب حد السرقۃ و نصابھا : ۲؍۱۶۸۴ ]

➋ The thief can be pardoned before being brought to the ruler, but not after. A thief who had stolen a sheet was brought to the Messenger of Allah (peace and blessings be upon him), and he ordered his hand to be cut off. The owner of the sheet, Safwan (may Allah be pleased with him), said: "O Messenger of Allah! My intention was not (to have his hand cut off); my sheet is charity for him." The Prophet (peace and blessings be upon him) said: "Why did you not (give this charity) before bringing him to me?" [ ابن ماجہ، الحدود، باب من سرق من الحرز : ۲۵۹۵ قال الألبانی صحیح ] Some people have invented many tricks to nullify the legal punishment for theft; among them, there are two tricks in the presence of which no thief's hand can ever be cut off. One is that after going to court, if the owner of the stolen property gifts the stolen item to the thief or sells it to him, then the hand will not be cut off, even though this is in clear contradiction to the authentic hadith. The second is that if the crime of theft is proven against the thief with witnesses, the thief claims that the stolen property is his own, then his hand will not be cut off, even if he does not present any evidence of his ownership. The one who wrote this trick wrote that the objection from the opposing side is that in this way, no thief would be unable to make a false claim; every thief would claim to be the owner, and the legal punishment for theft would be abolished altogether. He answered this by saying that only scholars know this, thieves do not, so there is no worry about the punishment being abolished. The reality is that due to such tricks, the legal punishments of Allah were abolished in Muslim governments, as a result of which oppression and injustice increased beyond limits, and then foreigners became dominant over the Muslims. The remedy for this is the proper re-implementation of the legal punishments of Allah.

➌ {جَزَآءًۢ بِمَا كَسَبَا نَكَالًا مِّنَ اللّٰهِ:} This is both the punishment for his sin and a lesson from Allah Almighty, so that for the rest of his life, he serves as a deterrent and reminder for people to refrain from theft, that this is Allah Almighty's command regarding the thief. Even if he were killed, this lesson could not be achieved.

38. 1. According to some Zahiri jurists, this ruling of theft is general, whether the stolen item is small or large. Similarly, whether it is kept in a secure place or not, in every case the punishment for theft will be given. Whereas other jurists consider it necessary for there to be a secure place and a minimum threshold. Then, there is a difference among them regarding the determination of the threshold. According to the hadith scholars, the threshold is a quarter dinar or three dirhams (or an item of equivalent value); for theft of less than this, the hand will not be cut. Similarly, the hand will be cut from the wrist (the joint), not from the elbow or the shoulder, as some think. (For details, see the books of hadith, jurisprudence, and commentaries.)

As for the thief, whether male or female, cut off their hands [72] as a recompense for what they have earned and as an exemplary punishment from Allah [73]. And Allah is Mighty and Wise.

[72] After stating the punishment for ḥirābah or banditry, now the punishment for theft is being mentioned. In the punishment for theft, not both hands but only one hand is to be cut, and for the first theft, the right hand is to be cut off, and it is to be cut up to the wrist. (And all these matters are established from the Sunnah) so that he refrains from such an act in the future and others may take a lesson. And if the stolen property is recovered from him, it should be returned to the original owner. The following ahadith are useful to study in this regard:

1. Sayyidah Aisha ؓ narrates: A woman from the Makhzum tribe (Fatimah) committed theft, so the Quraysh became very concerned (about her hand being cut off). They said, "Who can speak to the Messenger of Allah about this? And who can dare except Usamah, who is beloved to the Messenger of Allah?" (So at the request of the Quraysh) Usamah spoke to the Prophet ﷺ, and the Prophet ﷺ said to Usamah ؓ, "Are you interceding regarding one of the limits set by Allah?" Then the Prophet ﷺ stood up to deliver a sermon and said, "O people! Those before you were destroyed only because if a noble person among them committed theft, they would let him go, but if a weak person committed theft, they would enforce the punishment on him. By Allah! If Fatimah, the daughter of Muhammad, were to steal, I would cut off her hand." (And in another narration) the Prophet ﷺ ordered that the woman's hand be cut off. After that, she used to come to me, and I would convey her needs to the Messenger of Allah. She repented, and her repentance was good.
[بخاری۔ کتاب الحدود۔ باب کراھیۃ الشفاعۃ فی الحد، نیز باب توبۃ السارق۔ مسلم۔ کتاب الحدود۔ باب قطع السارق الشریف]

2. Sayyiduna Abu Hurairah ؓ says that the Prophet ﷺ said, "May Allah curse the thief. He steals an egg, and his hand is cut off for it; he steals a rope, and his hand is cut off for it."
[بخاری۔ کتاب الحدود باب لعن السارق اذا لم یسم]

3. Sayyiduna Abdullah bin Umar ؓ says that the Prophet ﷺ cut off a hand for stealing a shield whose price was three dirhams.
[بخاری۔ کتاب الحدود۔ باب السارق والسارقۃ۔ مسلم۔ کتاب الحدود۔ باب حد السرقہ و نصابہا]

4. Sayyidah Aisha ؓ says that the Prophet ﷺ said, "The thief's hand should be cut off for a quarter dinar or more."
[بخاری۔ کتاب الحدود۔ باب السارق والسارقۃ]

5. Sayyiduna Abdullah bin Umar ؓ says that the Prophet ﷺ was asked about the theft of hanging fruit. The Prophet ﷺ said, "If a person is hungry and eats but does not take it away, there is no hadd punishment for him. But if someone leaves with his garment full, then double the price should be taken from him and he should be punished. And if someone steals fruit after it has been stored in a secure place, and the price of the fruit reaches the price of a shield, then his hand should be cut off. And if the price is less than that of a shield, then double the price should be taken and he should be punished."
[ابو داؤد۔ کتاب الحدود۔ باب مالایقطع فیہ]

6. The Prophet ﷺ said, "There is no hand-cutting punishment for the treacherous, the robber, and the snatcher."
[ترمذی۔ ابواب الحدود۔ باب ماجاء فی الخائن و المختلس]

7. The Prophet ﷺ said, "During war (on the battlefield), the punishment of hand-cutting should not be given."
[ابو داؤد کتاب الحدود۔ باب السارق یسرق فی الغزو]

And the likely reason for this is that in the battlefield, everyone is armed, and if the one being punished acts rashly in anger, it is quite possible. In this way, there is a risk of chaos within one's own army. Therefore, not only the punishment for theft but every crime deserving of ḥadd or taʿzīr is postponed. Also, Sayyiduna Umar suspended the punishment of hand-cutting for theft during the days of famine, and his reasoning was based on this incident: In the time of the Prophet ﷺ, ʿAbad bin Sharjeel took some grain from a field. The owner of the field caught ʿAbad bin Sharjeel, beat him, and even took his clothes. Then he brought him to the Messenger of Allah ﷺ. The Prophet ﷺ said to the owner, "If he was ignorant, why did you not teach him? And if he was hungry, why did you not feed him?" Thus, the Prophet ﷺ did not have any punishment given to the hungry thief. On the contrary, the owner returned his clothes and, in exchange for the beating, gave him a lot of grain.

8. When the theft of a thief is proven in court, his hand must be cut off, and before the case reaches the court, if the owner forgives the thief, it is permissible, but after it reaches the court, he cannot forgive. Thus, Sayyiduna Safwan bin Umayyah ؓ once made his cloak a pillow and slept in the mosque with it under his head. A man came and quietly pulled the cloak from under his head. Safwan bin Umayyah ؓ woke up and caught him, then brought him to the Messenger of Allah. The Prophet ﷺ ordered his hand to be cut off. (At this, Safwan ؓ felt pity for the man) and said, "O Messenger of Allah! I have forgiven his fault." The Prophet ﷺ said, "O Abu Wahb (this is the kunyah of Safwan bin Umayyah ؓ), why did you not forgive him before bringing him to us?" Then the Prophet ﷺ had his hand cut off.
[نسائی۔ کتاب قطع السارق۔ باب الرجل یتجاوز للسارق]

Also, Sayyiduna Abdullah bin Amr bin al-As ؓ says that the Messenger of Allah ﷺ said, "Forgive each other regarding the limits among yourselves. But when a case reaches me, the ḥadd becomes obligatory."
[ابو داؤد۔ نسائی بحوالہ مشکوۃ کتاب الحدود۔ فصل ثانی]

9. Sayyiduna Abu Salamah ؓ says that the Messenger of Allah ﷺ said, "When a thief commits theft (for the first time), cut off his right hand. Then (if he steals a second time), cut off his (left) foot. Then (if he steals a third time), cut off his (left) hand. Then (if he steals a fourth time), cut off his (right) foot."
[شرح السنہ بحوالہ مشکوٰۃ۔ کتاب الحدود۔ قطع السرقتہ۔ دوسری فصل]

[73] This punishment of hand-cutting is given to him in return for committing theft. As for the stolen property, there are different opinions about it. The preferred opinion is that if the stolen property is recovered from the thief or he is able to pay its value, then it should be taken from him and given to the original owner.

Are Islamic Punishments Inhumane?

Nowadays, the so-called civilized nations of Europe consider Islamic punishments to be uncivilized and barbaric, and they equate corporal punishments with inhumane treatment and oppression. In Europe, one of Allama Iqbal's friends said to him that the punishment for theft in Islam is very uncivilized. Allama Iqbal replied, "Do you think the thief is 'civilized'?" Based on this very notion, these people have declared such punishments to be inhumane treatment in the United Nations Charter of Fundamental Rights and have instructed that such punishments be abandoned. Who can deny the fact that the claimants of this ideology inflict such painful tortures and corporal punishments on political prisoners in closed rooms in their own governments that the very thought of them makes one's soul tremble? And observation shows that giving such punishments in closed rooms only makes criminals more hardened in their behavior. Then it is also a common observation that wherever corporal punishments have been suspended in courts, crimes have only increased. We are astonished that if an operation on a boil to save the human body is not only permissible but considered an act of compassion, then how does giving corporal punishment to criminals to save society from oppression and corruption become inhumane treatment? And why is disorder in society tolerated by showing mercy to thieves and criminals? And why do the sympathies of so-called civilized nations arise for such people? Is this not in itself inhumane and oppressive treatment of society? Then it is also worth considering how successful these champions of inhumane treatment have been in establishing peace in their own countries. Nowadays, in Saudi Arabia, where the Shariah punishments are enforced, the number of crimes has decreased to an astonishing extent. In contrast, in America, the most civilized country, the number of crimes is hundreds of times higher. In our view, the only reason for this support of the criminal element is that in the current democratic era, these "champions of inhumane treatment" themselves are dependent on the mercy of the criminal elements and come to power through their mediation, so how can such people tolerate corporal punishments for their helpers in public?