Source: Fiqhi Rulings and Issues in the Light of Quran and Hadith, Issues of Hudood and Ta'zirat: Volume 02: Page 430
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
"Maskar" is the active participle of "Iskar." Maskar refers to that which causes the drinker to become "sakran," meaning unconscious or intoxicated. Terminologically, "sukr" means the confusion or disturbance of the intellect, whether this state is caused by wine or any other intoxicating substance.
The use of khamr, that is intoxicating substances, is prohibited. Its prohibition is established by the Book of Allah and the Sunnah of the Messenger ﷺ, and there is consensus among the scholars of the Ummah on its prohibition. Allah Almighty says:
﴿يـٰأَيُّهَا الَّذينَ ءامَنوا إِنَّمَا الخَمرُ وَالمَيسِرُ وَالأَنصابُ وَالأَزلـٰمُ رِجسٌ مِن عَمَلِ الشَّيطـٰنِ فَاجتَنِبوهُ لَعَلَّكُم تُفلِحونَ ﴿٩٠﴾ إِنَّما يُريدُ الشَّيطـٰنُ أَن يوقِعَ بَينَكُمُ العَدٰوَةَ وَالبَغضاءَ فِى الخَمرِ وَالمَيسِرِ وَيَصُدَّكُم عَن ذِكرِ اللَّهِ وَعَنِ الصَّلوٰةِ فَهَل أَنتُم مُنتَهونَ ﴿٩١﴾... سورة المائدة
"O you who have believed! Indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful. (90) Satan only wants to cause between you animosity and hatred through intoxicants and gambling and to avert you from the remembrance of Allah and from prayer. So will you not desist?"
Reference: Al-Ma'idah
It is also narrated in Sunan Abu Dawood:
"مَا أَسْكَرَ كَثِيرُهُ فَقَلِيلُهُ حَرَامٌ"
"Anything that intoxicates in large quantities, its small quantity is also forbidden."
It is also narrated in Sunan Abu Dawood:
"مَا أَسْكَرَ كَثِيرُهُ فَقَلِيلُهُ حَرَامٌ"
"Anything that intoxicates in large quantities, its small quantity is also forbidden."
Reference: Sunan Abi Dawood, Al-Ashribah, Chapter on Intoxication, Hadith 3581.
And this ruling applies to "Khamr," meaning wine. Khamr, in whatever form it may be, whether obtained from grapes or prepared from something else, is forbidden.
Sayyiduna Umar (may Allah be pleased with him) said:
"أَنَّ الْخَمْرَ مَا خَامَرَ الْعَقْلَ"
"Whatever covers the intellect is called 'Khamr'."
Reference: Sahih al-Bukhari, Tafsir, Chapter on the statement "Indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of Satan" (Al-Ma'idah 5:90), Hadith 4619.
"This is also the consensus of the majority of linguists.
Sheikh al-Islam Taqi al-Din Ibn Taymiyyah, may Allah have mercy on him, says: "The correct view is that 'hashish' is an impure substance and it is forbidden, whether it causes intoxication or not. If it causes intoxication, then all Muslims unanimously agree on its prohibition. Furthermore, in some respects, its harms are even greater than those of 'khamr' (wine). It should be noted that the knowledge of 'hashish' and its properties emerged in the sixth century."
Reference: Majmoo' al-Fatawa by Sheikh al-Islam Ibn Taymiyyah 34/198. Adapted.
① Social Harms of Intoxicating Substances
The use of hashish, heroin, and other types of intoxicating substances has brought the young generation of Muslims to the brink of destruction. Our enemies are using these things as a weapon against us. The Jews and their agents are particularly active in spreading these substances among Muslims so that Muslims become weak, the young generation is ruined, and they are no longer capable of playing any constructive role in society. They will neither be able to perform jihad for their religion nor be capable of confronting the corruptors and enemies of the nation and homeland.
It is very unfortunate that due to the conspiracies of the disbelieving enemies, the situation has deteriorated to such an extent that a large number of young people have become addicted to drugs. They have either become a burden on society or are spending the rest of their lives in prisons. All these effects are due to the widespread availability of intoxicating substances in Muslim countries. May Allah protect Muslims from all those things that lead to human destruction. There is no power and no strength except with Allah.
② Alcohol is forbidden in all circumstances
Alcohol, that is, khamr, is forbidden in all circumstances. Its use, whether for pleasure, as medicine, to quench thirst, or for any other purpose, is forbidden in every case.
③ Using alcohol and intoxicants for treatment is also forbidden
It is not permissible to use alcohol or other intoxicating substances even with the intention of treatment, because the Messenger of Allah, peace be upon him, said:
"إِنَّهُ لَيْسَ بِدَوَاءٍ وَلَكِنَّهُ دَاءٌ"
"Khamr is not a cure but a disease."
Reference: Sahih Muslim, Al-Ashribah, Chapter on the prohibition of treatment with khamr and clarification that it is not a cure, Hadith 1984.
Sayyiduna Ibn Mas'ud رضي الله تعالى عنه's ruling is:
" إِنَّ اللَّهَ لَمْ يَجْعَلْ شِفَاءَكُمْ فِيمَا حُرِّمَ عَلَيْكُمْ "
"Allah Ta'ala has not made healing in that which is forbidden for you."
Reference: Sahih al-Bukhari, Al-Ashribah, chapter on sweet drinks and honey after hadith 5613, as a Mu'allaq, while Hafiz Ibn Hajar رحمه الله mentioned it as Mawsul. See Taghleeq al-Ta'leeq 5/29.
④ Its use for quenching thirst is also impermissible
Similarly, using it to quench thirst is also haram, because the original purpose is not achieved; rather, the intensity of thirst and bodily heat increases even more.
⑤ Punishment for one who drinks intoxicating beverages
When a Muslim drinks an intoxicating substance, such as "Yoodi Clon" or an alcohol-mixed drink, and is aware of its intoxicating nature, it is obligatory to impose the hadd punishment on him, because the Messenger of Allah صلى الله عليه وسلم said:
"مَنْ شَرِبَ الْخَمْرَ فَاجْلِدُوهُ "
"Whoever drinks wine or similar, flog him."
Reference: (Weak) Sunan Abi Dawood, Hudood, chapter on consecutive drinking of wine: 4485.
⑥ The quantity for the hadd of khamr
The limit for alcohol punishment is eighty (80) lashes, because when Sayyiduna Umar رضي الله تعالى عنه consulted the people about the limit for alcohol, Sayyiduna Abdur Rahman bin Awf رضي الله تعالى عنه suggested that its minimum amount should be eighty (80) lashes. Accordingly, Sayyiduna Umar رضي الله تعالى عنه set it at eighty (80) lashes, then wrote this ruling and sent it to Khalid and Abu Ubaidah رضي الله عنهما, who were in Syria at that time.
Reference: Sahih Muslim, Hudood, Chapter on the limit of alcohol, Hadith 1706 and Sunan Abi Dawood, Hudood, Chapter on the limit of alcohol, Hadith 4479.
This punitive amount was determined in the presence of the Muhajireen and Ansar, the noble companions رضي الله عنهم أجمعين, and no one opposed it. The same viewpoint is held by Allama Ibn Qayyim رحمه الله عليه. He states: "Sayyiduna Umar رضي الله تعالى عنه equated the limit for alcohol to the limit of Qadhf, and all the noble companions رضي الله عنهم أجمعين supported it."
Reference: I'lam al-Muwaqqi'in 1/161.
Sheikh al-Islam, may Allah have mercy on him, says: "The punishment for alcohol according to the Sunnah of the Prophet ﷺ and consensus is clearly forty lashes; however, if people do not refrain from drinking alcohol and the ruler of the time increases the punishment to stop them, then this action is correct."
Reference: Majmoo' al-Fatawa 28/336 with variations.
⑦ Method of Establishing the Punishment for Alcohol
To impose the punishment for alcohol, it is necessary that the offender either confesses themselves or there is testimony from two trustworthy men.
⑧ Ruling in Case of Smell of Alcohol from the Mouth
There is a difference of opinion among scholars on whether the punishment should be imposed if a person’s breath smells of alcohol. One opinion is that the punishment should not be imposed, but rather a discretionary punishment (ta'zir) should be given. The second opinion is that the punishment should be imposed provided there is no doubt or suspicion. This second opinion is also reported from Imam Ahmad, may Allah have mercy on him, and Imam Malik, may Allah have mercy on him, and Ibn Taymiyyah, may Allah have mercy on him, have also adopted this second view.
Ibn Qayyim رحمه الله علیہ says that Sayyiduna Umar رضي الله تعالى عنه and Sayyiduna Ibn Mas'ud رضي الله تعالى عنه had decided to apply the punishment on the person whose mouth smelled of alcohol, and none of the Companions رضوان الله عليهم اجمعين disagreed with this decision.
⑨ Dangers of Using Intoxicating Substances
There are many hidden dangers in the use of intoxicating substances. It is a satanic weapon through which Satan causes severe harm to Muslims. Allah تعالى says:
﴿إِنَّما يُريدُ الشَّيطـٰنُ أَن يوقِعَ بَينَكُمُ العَدٰوَةَ وَالبَغضاءَ فِى الخَمرِ وَالمَيسِرِ وَيَصُدَّكُم عَن ذِكرِ اللَّهِ وَعَنِ الصَّلوٰةِ فَهَل أَنتُم مُنتَهونَ ﴿٩١﴾...سورة المائدة
"Satan only wants to cause enmity and hatred between you through intoxicants and gambling and to hinder you from the remembrance of Allah and from prayer. So will you not desist?"
Reference: Al-Ma'idah 5:91
⑩ Khamr is the Mother of All Evils
Khamr is the mother of all evils. The Messenger of Allah صلى الله عليه وسلم cursed ten people in connection with it. Thus, it is stated:
"لَعَنَ اللَّهُ الْخَمْرَ وَشَارِبَهَا وَسَاقِيَهَا وَبَائِعَهَا وَمُبْتَاعَهَا وَعَاصِرَهَا وَمُعْتَصِرَهَا وَحَامِلَهَا وَالْمَحْمُولَةَ إِلَيْهِ "
"Indeed, Allah has cursed wine, the one who extracts it, the one for whom it is extracted, the one who drinks it, the one who gives it to drink, the one who carries it, the one for whom it is carried, the one who sells it, the one who buys it, and the one who consumes its price (all)."
Reference: Musnad Ahmad 2/71 and Al-Mustadrak Al-Hakim 4/144,145. Hadith 7228 and the wording is his.
Muslims should understand the reality of wine and other intoxicating substances, avoid their use, exercise complete caution, and bravely confront those who spread these things among Muslims, and they should be severely punished, because as a result of these things every evil becomes easy. A person awakens in the pit of disgrace and hope for good ends. May Allah protect Muslims from its evil and all dangers.
It is mentioned in the hadith that near the Day of Judgment some people will consider wine lawful and will drink it by changing its name, therefore Muslims should be cautious of such corrupt people.
Punishment Rules
The literal meaning of Ta'zeer is "to prevent," and it also includes the meanings of "to help" and "to teach manners," because through Ta'zeer, the oppressor is prevented from harming others. Allah Almighty has said:
﴿وَتُعَزِّروهُ وَتُوَقِّروهُ ...﴿٩﴾... سورة الفتح
"(So) you support him and teach him manners."
Reference: Al-Fath 48/9.
Therefore, Ta'zeer also means to honor and respect, and it also means to punish. In other words, this word is one of those that have two opposite meanings. In jurisprudential terminology, Ta'zeer means "to teach manners." This term is given to this category because through punishment a person refrains from wrongful acts, and in this respect, Ta'zeer also becomes a cause of respect, because when a person refrains from inappropriate actions as a result of punishment, he then regains dignity and honor.
① In which sins is Ta'zeer obligatory
In Islam, Ta'zir is obligatory for every sin whose commission does not entail a fixed Hadd punishment nor a Kaffarah. It can be due to committing a forbidden act or neglecting a compulsory duty. In Ta'zir, it is not necessary for the oppressed to demand punishment. The ruler can punish the oppressor even without a demand. The implementation of Ta'zir, or its increase or decrease, depends on the discretion of the ruler, because the nature of crimes varies; some crimes are major and some are minor.
② There is no fixed limit in Ta'zir
The correct view is that there is no prescribed limit in Ta'zir, but when the sin is of a type for which Shariah has prescribed a punishment, such as adultery and theft, then a Ta'zir punishment for a lesser degree of the crime will not reach the level of Hadd.
③ In some circumstances, Ta'zir can also include the death penalty
If a certain necessity demands, the punishment of killing can also be given as a discretionary punishment (ta'zir), for example, killing a spy, or killing a person who is causing discord and division among the Muslim community, or someone who is inviting people to something other than the Book of Allah and the Sunnah of the Messenger of Allah ﷺ, or any other crime for which the remedy is not possible without killing, then in such a case, killing as a discretionary punishment will be correct.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "This statement is based on justice and fairness. It is supported by the Sunnah of the Messenger of Allah ﷺ and the Sunnah of the Rightly Guided Caliphs, may Allah be pleased with them all. The Messenger of Allah ﷺ ordered one hundred lashes for a man who had intercourse with his wife’s slave girl with the permission of his wife."
Reference: See Sunan Abi Dawood, Hudood, chapter on a man committing adultery with his wife’s slave girl, Hadith 4451, and Jami` at-Tirmidhi, Hudood, chapter on what has been narrated about a man having intercourse with his wife’s slave girl, Hadith 1451.
Sayyiduna Abu Bakr, may Allah be pleased with him, and Sayyiduna Umar, may Allah be pleased with him, ordered one man and one woman to be given one hundred lashes each for being found under the same quilt. Similarly, Sayyiduna Umar, may Allah be pleased with him, severely flogged Sabegh. It should be noted that Sabegh was a person who used to spread religious doubts and suspicions among people by discussing the ambiguous verses of the Quran.
Reference: Majmu' al-Fatawa 28/108.
Sheikh al-Islam, may Allah have mercy on him, says: "When the objective is to prevent corruption and that is only possible by killing, then killing is permissible. For example, if a person is causing such corruption and mischief that he does not desist even after the prescribed punishments, then his punishment is death. Like if an attacker cannot be stopped except by killing, then it is permissible to kill him."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Hudood 5/530.
④ There is no minimum limit set for Ta'zir punishments
There is no minimum limit for ta'zir (discretionary punishment) either, because the nature of crimes varies according to circumstances and times. Some crimes are severe, while others are of a lesser degree. Therefore, the ruler will determine the punishment for such crimes based on his ijtihad (independent reasoning), necessity, and expediency. There can be many forms of ta'zir, such as punishing someone by beating, imprisoning, slapping, reprimanding, or dismissing from a government position, etc.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "Sometimes ta'zir is in the form of humiliation, for example, telling the offender: O oppressor! or O transgressor! or removing him from the assembly, or scolding him."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Hudood 5/530.
⑤ The Hadith about ten lashes in ta'zir
The Prophet Muhammad, peace be upon him, said:
"لا يجلد أحد فوق عشرة أسواط إلا في حد من حدود الله "
"No one should be flogged more than ten lashes except for one who violates the limits set by Allah."
Reference: Sahih al-Bukhari, Hudood, chapter on lesser ta'zir and etiquette? Hadith 6848, 6850 and Sahih Muslim, Hudood, chapter on the measure of lashes in ta'zir, Hadith 1708 and the wording is the same.
The scholars who have permitted more than ten lashes in ta'zir have responded to the above hadith by saying that it refers to the punishment for sin, not the prescribed limits (hudud), and in this chapter, the punishment for committing prohibitions is meant, which will be determined according to wisdom and the extent of the crime.
⑥ Mutilation and forbidden methods are not permissible in ta'zir
In ta'zir, cutting off a limb of the offender, injuring them, or shaving their beard is not permissible, because this is mutilation and mutilation is forbidden. Similarly, using forbidden methods in ta'zir is also not permissible, for example, making someone drink alcohol, etc.
⑦ Punishment for one who continuously harms people
A person who is notorious for continuously causing harm to people or damaging their property should be imprisoned until they either die there or repent.
Ibn Qayyim رحمه الله عليه says: "Such a criminal must necessarily be imprisoned. This is the opinion of many scholars on this issue, therefore it is not permissible to differ on it. It is for the welfare of the Muslims because it protects people from the oppression of the oppressor."
The Imam further states: "The secret to the success of the system of governance is that it is run with caution and wisdom. For this, rulers are needed who enforce the Shariah rulings and are not opposed to them. When signs of justice and fairness become evident in a state, then understand that the completion of Divine Shariah has taken place there. It is completely wrong to say that 'just politics' is against the instructions and intentions of the Shariah; rather, it is in accordance with the Shariah and is indeed one of its components. It is called politics because it is a term of the present era, otherwise in reality it is the Shariah itself."
Reference: A'lam al-Muwaqqi'in 4/349-350, adapted.
The Messenger of Allah, peace be upon him, imprisoned a suspicious person and punished someone based on suspicion because the evidence made him appear guilty.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says about charlatans: "The one who catches snakes, or enters fire, or engages in such trickery, is deserving of punishment."
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah al-Hudood 5/534.
⑧ The ruling on one who causes harm by certain words
Whoever harms a Muslim by calling him "Musalla" (one who prays), or calls a non-Muslim dhimmi "Haji Sahib," or calls and considers someone who has come from a shrine or Urs (death anniversary celebration) a "Haji," is deserving of punishment.
⑨ The punishment for false claims
If a claimant causes harm to the defendant through his claim, and it is then found that the claimant was lying, he is deserving of punishment. Also, whatever he took through oppression must be returned or compensated as ransom, because he caused injustice.
Explanation of the limit (punishment) for theft
Taking property secretly in such a way that the owner or his deputy is unaware of it. Then the person taking the property must be a Muslim or a Dhimmi subject to Islamic rulings, and the property must be of such value that it reaches the prescribed nisab, and the property must have been taken from a secure place, meaning it was not lying in a public street, and the owner must be such that the person taking the property has no doubt about his right to it. When these conditions are met, it will be theft, and on this basis, the hand will be cut off.
Allah Almighty says:
﴿وَالسّارِقُ وَالسّارِقَةُ فَاقطَعوا أَيدِيَهُما جَزاءً بِما كَسَبا نَكـٰلًا مِنَ اللَّهِ وَاللَّهُ عَزيزٌ حَكيمٌ ﴿٣٨﴾... سورةالمائدة
"Cut off the hands of the male and female thieves as punishment for what they have done, and as a deterrent from Allah. And Allah is Exalted in Might and Wise."
Reference: Al-Ma'idah:5/38.
And the Messenger of Allah (peace be upon him) said:
"لَا تُقْطَعُ يَدُ السَّارِقِ إِلَّا فِي رُبْعِ دِينَارٍ فَصَاعِدًا"
"The hand of a thief will be cut off if he steals a quarter of a dinar or more."
Reference: Sahih al-Bukhari, Hudud, chapter on the saying of Allah Almighty (And the male thief and the female thief, cut off their hands) (Al-Ma'idah 5/38), Hadith 6789, 6790.
In brief, it is unanimously agreed among Muslims that the hand of a thief must be cut off as an obligatory punishment.
① The thief is a corrupt element in society
A thief is a corrupt element in human society. If left free, his corruption will gradually spread throughout the body of the nation. Therefore, it is very necessary to stop him through appropriate punishment. For this reason, Allah Almighty has prescribed the cutting off of his hand. This oppressive hand reached out for something it was not permitted to reach. This hand caused destruction, not construction. This hand takes things, it does not give to others.
② When will it be called theft and in which cases will the hand be cut off
Now it will be explained in detail when the term theft applies and in which cases the hand of the offender will be cut off. If even one of these conditions is not met, the hand will not be cut off. These conditions are:
1. The property was taken secretly
A person must have taken the property secretly. If he did not take the property secretly, then his hand will not be cut off. For example, if a person robs and forcibly snatches someone's property or takes it openly, this will not be called theft, because the owner of the property could have caught the hand of the usurper or sought help from others against him. The limit of robbery will be mentioned later.
Imam Ibn Qayyim, may Allah have mercy on him, says: "The legal ruling of cutting off the hand applies to the thief, not to the usurper or looter, because it is not possible to protect property from a thief. He breaks into houses, unlawfully enters secure places, and breaks locked doors. If the hand of such a person is not cut off, then others will also start stealing each other's property, damages will increase, and troubles will intensify."
The author of "Al-Ifsaah" has written: "Scholars agree that although the crime of looting and usurping is severe, their hands are not to be cut off." However, such people should be punished to prevent oppression and injustice, either by being beaten, given long imprisonment, or a deterrent punishment.
2. The property must be valuable and lawful
For the hand to be cut off, it is also necessary that the stolen property be valuable and lawful. If it is not lawful property, then it is not valuable, and therefore there is no ruling to cut off the hand, for example, instruments of gambling, alcohol, pork, and carrion, etc. If it is lawful property but not valuable, then there is also no ruling to cut off the hand, for example, the property of a hostile disbeliever. It is even permissible to seize such a person's property or to kill them.
3. The property must be equal to the nisab
The stolen property must be equal to the prescribed nisab, that is, one-quarter of three dirhams or one dinar according to Islamic calculation, or the equivalent value in current currency, or the value of the stolen goods must be equal to this nisab, because the Messenger of Allah, peace be upon him, said:
"لا تقطع اليد إلا في ربع دينار فما فوقه"
"No hand should be cut off for theft less than one-quarter of a dinar."
Reference: Sahih Muslim, Hudood, Chapter on the Punishment of Theft and its Nisab, Hadith 1684.
It should be noted that at that time, i.e., during the Prophetic era, one-quarter of a dinar was equivalent to three dirhams.
③ Wisdom behind setting the nisab
The wisdom behind setting this nisab for cutting off the thief’s hand is that this amount of wealth is sufficient for a person with a moderate level of livelihood and those under his care to live for a period of time.
④ The greatness of the hand and the disgrace of betrayal
Just think! The hand that was worth five hundred dinars was cut off for a quarter of a dinar. The reason is that when that hand was trustworthy, it was valuable, and when it committed betrayal, it became worthless. For this reason, some atheists, like Al-Ma'arri and others, have objected to the punishment for theft by saying:
يدٌ بِخَمْسِ مِئِين عَسجد فُديت
ما بالها قُطّعت في ربع دينارِ
"The hand that was worth (as diyat) five hundred dinars, it is surprising that it was cut off for a quarter of a dinar."
Some scholars have responded to this objection by saying:
عز الأمانة أغلاها وأرخصها
ذل الخيانة فأفهم حكمة الباري
"O fool! Understand the wisdom of Allah! The honor of honesty made it very valuable, but the disgrace of betrayal made it cheap and worthless."
5. The property was stolen from a secure place
One of the conditions for cutting off the hand for theft is that the stolen property must have been taken from a secure place, for example, the item must have been kept behind closed doors of a house, shop, or secure building, or inside a locked room. It should be noted that methods of security may vary according to different regions. If the property was taken from a place that was not enclosed or secure, then in such a case, the hand will not be cut off.
6. There should be no doubt about entitlement
If someone believes that a certain property belongs to them, and due to this doubt they take it, then their hand will not be cut off, because the Messenger of Allah, peace be upon him, said:
"ادْرَءُوا الْحُدُودَ عَنْ الْمُسْلِمِينَ مَا اسْتَطَعْتُمْ"
"As far as possible, do not enforce hudood (punishments) on Muslims based on doubts."
Reference: (Weak) Jami' at-Tirmidhi, Hudood, Chapter on Repelling Hudood, Hadith 1424 and Sunan Ibn Majah, Hudood, Chapter on Concealing the Believer and Repelling Hudood by Doubts, Hadith 2545.
Therefore, if a son steals something from his father's property, or the father secretly takes something from the son's property, no one's hand will be cut, because each person has a right in the other's property, and this doubt nullifies the hadd punishment. Similarly, if a person has a right in another's property and then takes it without permission, he will not be considered a thief and his hand will not be cut. However, this act is certainly unlawful, for which he will be liable to ta'zir (discretionary punishment), and the property will be returned to its owner.
7. Method of Proving Theft
Along with the above conditions, it is also necessary that the theft be proven, and for this, the testimony of two reliable men must be present who clearly describe the circumstances of the theft and the condition of the stolen property, so that no doubt or suspicion remains about the truth of the incident. Or the criminal himself must confess to the theft twice. Accordingly, it is narrated in Sunan Abi Dawood that a thief was brought before the Messenger of Allah, peace be upon him. He confessed to the theft once, but the stolen property was not with him, so the Prophet, peace be upon him, said:
"مَا إِخَالُكَ سَرَقْتَ ؟ قَالَ بَلَى. فَأَعَادَ عَلَيْهِ مَرَّتَيْنِ أَوْ ثَلاَثًا فَأَمَرَ بِهِ فَقُطِعَ "
"I think you have not stolen." He said: Why not! (I have certainly done this.) The Prophet, peace be upon him, repeated his statement two or three times, and finally he gave the order and his hand was cut off."
Reference: (Weak) Sunan Abi Dawood, Hudood, Chapter on Instruction in Hudood, Hadith 4380.
Before cutting off the hand of the criminal, it is necessary that his confession be clear and explicit, leaving no room for doubt, suspicion, or possibility. It may be that he took the property in a situation where he believed that cutting off the hand was obligatory, although in reality it was not a case warranting hand amputation. Similarly, the ruler must also be aware of whether the mentioned conditions are met or not.
The person whose property has been stolen is obligated to demand the return of his property from the thief once he becomes aware of it. If he does not do so, then cutting off the thief’s hand will not be obligatory, because the owner’s permission may make the property lawful for the accused. When there is no demand, the possibility arises that he has allowed the thief to take the property, and this doubt prevents the implementation of the punishment.
⑤ Method of cutting off the hand
When the mentioned conditions and requirements are fulfilled, the criminal's right hand will be cut off, because it is narrated from Sayyiduna Ibn Mas'ud (may Allah be pleased with him) in the recitation:
"فَاقْطَعُوا أَيْمَانهمَا"
"Cut off the right hand of both (man or woman)."
Reference: Tafsir al-Tabari Al-Ma'idah 5/38. Number 9308.
The right hand will be cut off at the wrist joint, because this was the part used as the instrument of theft, and therefore the punishment is to remove it. Cutting up to the wrist joint is sufficient because the word "hand" (يد) when used absolutely generally refers to the hand up to this limit. After cutting the hand, proper treatment of the wound will be done to stop the bleeding so that it does not result in death.
Statement on the Punishment for Highway Robbery
Allah Almighty wants that on His earth, Muslims live together in peace and tranquility for mutual interests and exchange of benefits, increase in wealth, maintaining ties of kinship, cooperation in goodness and piety, and especially consider each other's interests during the journey of Hajj. They should live with love and affection so that they can perform great acts of worship like Hajj and Umrah in a good manner.
Whoever creates difficulties in the lives of Muslims, blocks their paths, and spreads fear and terror during travels, Allah Almighty has prescribed a severe punishment to stop such a person. Thus, it is stated:
﴿إِنَّما جَزٰؤُا۟ الَّذينَ يُحارِبونَ اللَّهَ وَرَسولَهُ وَيَسعَونَ فِى الأَرضِ فَسادًا أَن يُقَتَّلوا أَو يُصَلَّبوا أَو تُقَطَّعَ أَيديهِم وَأَرجُلُهُم مِن خِلـٰفٍ أَو يُنفَوا مِنَ الأَرضِ ذٰلِكَ لَهُم خِزىٌ فِى الدُّنيا وَلَهُم فِى الءاخِرَةِ عَذابٌ عَظيمٌ ﴿٣٣﴾ إِلَّا الَّذينَ تابوا مِن قَبلِ أَن تَقدِروا عَلَيهِم فَاعلَموا أَنَّ اللَّهَ غَفورٌ رَحيمٌ ﴿٣٤﴾... سورة المائدة
"Those who wage war against Allah and His Messenger and strive to spread corruption in the land, the punishment for them is that they be killed or crucified, or that their hands and feet be cut off from opposite sides, or that they be exiled from the land. This is their disgrace in this world, and in the Hereafter, they will have a severe punishment. (33) But those who repent before you overpower them, then know that Allah is Forgiving and Merciful."
Reference: Al-Ma'idah 5/33-34.
① Who are meant by the term "Muharibeen" (those who wage war)?
The "Muharibeen" mentioned in the verse refers to those people who try to create corruption and disorder in the land. They set up checkpoints on roads and rob people, or come in front of people in deserts or cities and snatch their property. This is not theft but openly taking and snatching people's wealth.
② Condition for proving the limit of robbery
The hadd punishment will be applied to a person when he snatches property equal to the nisab of theft or takes it from a secure place, or robs a person in a caravan, and his robbery is proven by his own confession or by the testimony of two trustworthy men.
③ The punishments for robbers vary according to their crime
The punishments for robbers will vary due to the different nature of their crimes:
◈ 1. Whoever commits robbery involving murder and also steals property must be killed and publicly crucified so that people may take heed. There is absolutely no excuse to pardon him. According to Allama Ibn Mundhir, may Allah have mercy on him, scholars are unanimous on this issue.
◈ 2. Whoever only commits murder without stealing property will only be killed; there is no need to crucify him.
◈ 3. Whoever only robs wealth but does not kill the owner of the wealth, his right hand and left foot shall be cut off, then he shall be treated with ointment to stop the bleeding and released.
◈ 4. Whoever only creates fear on the path, neither kills nor robs wealth, shall be exiled from the area and not allowed to stay in any place for long.
In short, punishments vary due to the different nature of crimes. Allah Almighty says:
﴿إِنَّما جَزٰؤُا۟ الَّذينَ يُحارِبونَ اللَّهَ وَرَسولَهُ وَيَسعَونَ فِى الأَرضِ فَسادًا أَن يُقَتَّلوا أَو يُصَلَّبوا أَو تُقَطَّعَ أَيديهِم وَأَرجُلُهُم مِن خِلـٰفٍ أَو يُنفَوا مِنَ الأَرضِ ...﴿٣٣﴾... سورة المائدة
"The punishment of those who wage war against Allah and His Messenger and strive to spread corruption in the land is that they be killed or crucified, or that their hands and feet be cut off from opposite sides, or that they be exiled from the land."
Reference: Al-Ma'idah 5:33
The majority of the pious predecessors hold the opinion that this verse was revealed regarding those who commit robbery.
Sayyiduna Ibn Abbas رضي الله تعالى عنه says: "If robbers kill and loot property, they will be killed and crucified. If they only kill and do not loot property, they will be killed but not crucified. If they loot property but do not kill, their hands and feet will be cut off on opposite sides. And if they only create fear and do not loot property, they will be exiled from the area."
Reference: Kitab al-Umm by Imam al-Shafi'i 8/80.
④ If some have killed, the ruling for all
If some among the robbers have killed, then all will be killed. And if some individuals have killed and some have looted property, still all will be killed and crucified.
⑤ The ruling on repentance before arrest
If robbers repent before being caught, then the punishment prescribed by Allah for them will be forgiven, meaning the punishment of exile from the area of Badr, cutting off one hand and one foot, or the death penalty that was obligatory on them will be lifted. However, the rights of the people, i.e., the loss of life and property, will not be forgiven unless those who have the right to forgive do so themselves. Allah Almighty says:
﴿إِلَّا الَّذينَ تابوا مِن قَبلِ أَن تَقدِروا عَلَيهِم فَاعلَموا أَنَّ اللَّهَ غَفورٌ رَحيمٌ ﴿٣٤﴾... سورةالمائدة
"Indeed, those who repent before you apprehend them - then indeed, Allah is Forgiving and Merciful."
Reference: Al-Ma'idah:5/34.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "The consensus of the scholars is that if the case of a robber, thief, etc., reaches the judge, and then they repent, the hudud punishment will definitely be enforced and will not be lifted. If they are sincere and truthful in their repentance, then the punishment will become an expiation for them."
Reference: Majmoo' al-Fatawa 28/300.
Their repentance will only be accepted if they repent before being caught, because this is the command in the Holy Quran, so that the limits set by Allah are not suspended. If punishment is waived through repentance, then every criminal would merely repent verbally to avoid punishment.
⑥ The Right to Defend Life, Property, and Honor
A person whose life is attacked with intent to kill, or whose sanctity, such as that of his mother, daughter, sister, or wife, is attacked for defamation, or if someone attempts to seize or destroy his property, the oppressed has the right to defend himself. The attacker, whether human or an animal, can be defended against in all cases, but the method of defense should be such that it causes the least harm according to the prevailing judgment. If the oppressed is not given the right to defend, there is a risk of loss of his life, honor, or property. And if he does not have this right, then oppressive people will dominate others.
If it becomes inevitable to kill the attacker in self-defense, then killing him is also permissible, and there will be no liability, because he has taken this step out of compulsion to avoid harm. If a person is killed while defending himself, he is a martyr, because the Messenger of Allah, peace be upon him, said:
"مَنْ أُرِيدَ مَالُهُ بِغَيْرِ حَقٍّ فَقَاتَلَ فَقُتِلَ فَهُوَ شَهِيدٌ"
"The person who was wrongfully attacked and fought in self-defense, if he is killed, he is a martyr."
Reference: Sunan Abi Dawood, Al-Sunnah, Chapter on Fighting Thieves, Hadith 4771.
Imam Muslim, may Allah have mercy on him, narrated from Sayyiduna Abu Hurairah, may Allah be pleased with him, that:
"عَنْ أَبِي هُرَيْرَةَ قَالَ جَاءَ رَجُلٌ إِلَى رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَقَالَ : يَا رَسُولَ اللَّهِ ، أَرَأَيْتَ إِنْ جَاءَ رَجُلٌ يُرِيدُ أَخْذَ مَالِي ؟ قَالَ : فَلَا تُعْطِهِ مَالَكَ . قَالَ : أَرَأَيْتَ إِنْ قَاتَلَنِي ؟ قَالَ : قَاتِلْهُ ؟ قَالَ : أَرَأَيْتَ إِنْ قَتَلَنِي ؟ قَالَ : فَأَنْتَ شَهِيدٌ . قَالَ: أَرَأَيْتَ إِنْ قَتَلْتُهُ ؟ قَالَ هُوَ فِي النَّارِ "
A person came to the Prophet Muhammad (peace be upon him) and said: O Messenger of Allah! Tell me, if someone wants to take my property (unjustly), what should I do? The Prophet (peace be upon him) said: Do not give it to him. He said: If he fights me? He said: Then fight him. He said: If he kills me? He said: Then you will be a martyr. He said: If I kill him? He said: Then he will go to Hell.
Reference: Sahih Muslim, Al-Iman, Chapter: The proof for one who intends to take the property of another without right, Hadith 140.
It should be noted that defending oneself or one's honor is obligatory only when such defense does not cause greater harm. Allah Almighty says:
﴿وَلا تُلقوا بِأَيديكُم إِلَى التَّهلُكَةِ ...﴿١٩٥﴾... سورة البقرة
"And do not throw yourselves into destruction with your own hands."
Reference: Al-Baqarah: 2/195.
If a Muslim's life or honor is attacked, it is obligatory to defend him or assist him in defense. The Messenger of Allah (peace be upon him) said:
"انْصُرْ أَخَاكَ ظَالِمًا أَوْ مَظْلُومًا"
"Help your brother, whether he is an oppressor or oppressed."
Reference: Sahih al-Bukhari, Al-Mazalim, Chapter: Help your brother whether he is oppressor or oppressed, Hadith 2443.
It should be noted that helping the oppressor means preventing him from committing oppression.
⑦ A thief entering the house is also under the category of an attacker
When a thief enters someone's house, he is also considered an attacker; therefore, defending against him should be done in an appropriate and less harmful manner.
⑧ The ruling on someone peeping without permission
If a person looks inside someone's house through the door hole, or window, or by climbing onto their roof, they should be stopped. If the household members damage his eye by throwing something at it, they are neither liable for compensation nor ransom, because the hadith states:
"من اطَّلعَ في بيتِ قومٍ بغيرِ أذنِهم ففقأوا عينَه ، فلا ديةَ له ، ولا قصاصَ"
"Whoever peeps into someone else's house without their permission, if they damage his eye, there is neither diya (blood money) nor qisas (retribution) for it."
Reference: Sunan an-Nasa'i, Al-Qisamah, Chapter on Taking One's Right Without Authority, Hadith 4864.
All these mentioned Shariah rulings have been established in consideration of the Muslim's self, the sanctity of his wealth, and his honor and dignity in the sight of Allah. This is the justice and fairness of Islam, which aims to protect society and safeguard its interests, so that cities remain inhabited, peace and tranquility prevail among people, and whether day or night, people walk on the earth with reassurance and safety.
The reform of humanity is only possible through the implementation of this wise Shariah, because all man-made laws and material forces have completely failed to achieve the desired peace. Allah Almighty has spoken the truth:
﴿أَفَحُكمَ الجـٰهِلِيَّةِ يَبغونَ وَمَن أَحسَنُ مِنَ اللَّهِ حُكمًا لِقَومٍ يوقِنونَ ﴿٥٠﴾... سورة المائدة
"Do they then desire the judgment of ignorance? But who is better than Allah in judgment for a people who have firm faith?"
Reference: Al-Ma'idah 5/50.
