Answered by Shaykh Muhammad ibn Adam al-Kawthari
Could you please tell me under Islamic law is the punishment for stealing the cutting of hands? Are any factors considered before such punishment is dealt? i.e. witness, persistent criminal, criminals circumstances etc. Would a mother, under difficult circumstances, who steals to feed her hungry baby, receive the same punishment?
In the name of Allah, Most Compassionate, Most Merciful,
The different penalties prescribed by Shariah is not in order to inflict harm on people and make them suffer, rather the Shariah concept for imposing penalties for the various crimes is that they prevent harm, destruction and anarchy in the society. They are not prescribed in order to harm people, but the contrary.
Allah Most High says:
In the law of retaliation there is (saving of) life to you, O you men of understanding (Surah al-Baqarah, 179).
Due to the idea behind these various penalties being imposed not to make an individual suffer, rather to create a better society as a whole, the Shariah laid down certain strict rules and conditions in order for the punishment to be established or enforced. These strict conditions can be seen in all the various penalties that have been imposed.
The case with theft and stealing is the same in that certain conditions have been laid down for the penalty to be imposed. If the conditions are met, only then will such a penalty be enforced.
Conditions for the penalty of theft:
The following are the conditions which must be met in order to establish the penalty of theft:
1) The one who steals is sane
2) He has reached puberty
3) He steals equivalent to the amount (nisab) or more. The Nisab is one Dinar or ten Dirhams (i.e. 4.374 grams of gold). The Messenger of Allah (Allah bless him & give him peace) said:
There is no cutting (of hands) for stealing that is less then ten Dirhams (Musnad Ahmad).
Sayyidah Aisha (Allah be pleased with her) reports that The hands were not cut in the time of the Messenger of Allah for stealing worthless things (Musannaf Ibn Abi Shaybah).
Aisha (Allah be pleased with her) narrates that: The hand of a thief was not cut off during the lifetime of the Messenger of Allah (Allah bless him & give peace) except for stealing something equal to a shield in value (Sahih al-Bukhari, 6792, & Sahih Muslim, 1685).
A shield was worth one Dinar at that time, as narrated by Ibn Abbas in Sunan Abu Dawud & Sunan Nasai.
4) He steals the article from a place that meets the requirements of security and safeguarding. This security is considered when the article is safeguarded by a guard or by it being locked in a place.
5) The article is in the ownership of another person
6) There is no confusion in it (as to whether he took it by way of theft or for some other reason).
7) It was stolen secretly (not by force, etc ).
If any of the above conditions are not met, then the penalty of theft will not be established.
Allah Most High says:
As to the thief, male of female, cut off his or her hands. A punishment by way of example, from Allah, for their crime (Surah al-Maidah, 38).
As far as the evidence and testimony is concerned, stealing will be established by self admittance once or by the testimony of two adult males. The witnesses will be asked the details of the incident, as not to make an error.
A persons hand is not amputated when he steals less than the equivalent of 4.374 grams of gold, from place that does not meet the requirements of security, something that is useless, something that is in general ownership such as water in the river, sticks from the wood, etc , food that rots very quickly such as milk, meat, fruits, etc , articles that are unlawful due to the possibility that one had an intention of getting rid of it, such as musical instruments.
The penalty for the one who steals (when the above conditions are met) is that his/her right arm is amputated. If a person steals a second time, his left foot is amputated; if a third time, then he will be imprisoned until he repents, but no further amputation will take place.
Sayyiduna Ali (Allah be pleased with him) says:
I feel guilty in front of Allah if I leave him without hands (i.e. amputating both) by which he eats, and feet, by which he walks (Sunan Darqutni, al-Bayhaqi & Musannaf ibn Abi Shayba).
The above are some of the important aspects relating to the penalty of theft. It has been primarily based on the famous Hanafi work al-Ikhtiyar li talil al-Mukhtar, P341-351).
And Allah knows best
Muhammad ibn Adam al-Kawthari
Darul Iftaa, Leicester, UK