Sariqah (Theft)

Whether XXX and XXX are liable for theft under hudud punishment

Definition

Theft, also known as-Sariqah, falls under the category of hudud offence under Islamic criminal law. Sariqah
was defined as dishonestly removing any movable property from the custody of the owner in the absence of his
knowledge in order to deprive his possession It takes away the property of another person surreptitiously
without the knowledge and consent of that person.

Al-Hijr (15):18 stated that, “except the one eavesdropping, who is then pursued by a visible flare.” From
this verse, the gaining of hearing secretly was called theft. Hence, it indicates that the nature of theft is to take
away the property of someone surreptitiously. Islamic law has protected the sanctity of the right of ownership.
Rights to own property must be respected and protected and the owner must have the real sense of security for
the safety of their goods, property and belongings. To achieve this objective and to keep individuals and society
in peace, theft is punished severely. Besides depriving the owner, it creates fear and apprehension among
individuals, community and society.

Elements of Theft

There are seven elements required to establish the offence of theft. Firstly, the offender must be an
adult and a sane person at the time of the commission of the offence. This means that the adult must reach
the age of majority and he is sane and has sound mind during the commission of the offence. According to the
Hadith, Prophet Muhammad stated that “3 types of person are exempt from the punishment of amputation, a
child till he attains maturity, the sleeping person until he awakes and the insane until he attains sanity.”

APPLY
The facts are silent on the age of Selamat and Kamarul, we can assume that they are an adult and had
reached the age of majority as both of them are already working. We can see that Selamat works as a security
guard with A&T Security while Kamarul works as a cleaner at the music studio. We can also assume that
Selamat and Kamarul are sane and has sound mind during the commission of the crime since the facts did not
mention anything on Selamat and Kamarul’s mental health.

Next, the second element is the offender must have the dishonest intention. this means that the
offender knows the act of stealing is prohibited under Islamic Law but he still commits it. Such dishonest
intention must exist at the time of theft as there must be an explicit intention to acquire the stolen property.
Besides, the offender must have the intention to cause wrongful gain or wrongful loss to the victim. Taking
another’s property under mistake is not a theft

APPLY
Selamat and Kamarul had acquired the stolen musical instruments they gain from the music studio
belonging to Sinarwarna and they had cause property lost of RM 17,000 to Sinarwarna and resulted them not
able to perform their performance very well. Hence, Selamat and Kamarul who took the property without any
permission and they chose to commit the theft during early in the morning where other staffs were not arrived
yet shows that they had the dishonest intention.
 The third element is that the offender must have taken away the stolen property surreptitiously
from careful protection and custody (hirz). Surreptitiously means to take away the property of another person
secretly without his knowledge and consent. It is a process where the offender entered a place belonging to
another person secretly and took the items or goods from its safe keeping or custody without knowledge and
consent. While careful protection and custody (hirz) means to protect or guard by making necessary
arrangement for the custody of property.

There are two types of custody. This first type is custody in a form of a building wherein entry of the
public is prohibited without proper permission. For instances, house, shop, tent, camp, box and so on. The
second type of custody is through a watchman, in other words, the place is guarded. It is usually found in
common places like mosques, shopping centers, field, gardens and so on. It must be noted that the custody of
each thing is different depending on the situations taken into consideration the places and times. Theft
committed of property which is not in proper custody will not be liable for hadd punishment but subject to
ta'zir.

This element was supported by the Hadith where the Prophet said, “Hand will not be cut if theft is
committed from the fruits still hanging on the trees or on the mountain but when it is brought to the protected
place then theft from it of more than nisab is liable for hadd.” In another Hadith, the Prophet Muhammad said
that, “He who steals a sheep from among the sheep grazing in the fields without a guard, his hand will not be
cut.” From these two hadith, we can see that a person will only liable for hudud punishment if he steals
another’s property from its custody or safe keeping.

APPLY
it can be said that Selamat and Kamarul stole the musical instruments belonging to Sinarwarna
surreptitiously since Selamat opened the door for Kamarul at 7.00 am where other staffs are yet to arrive at that
time since the staffs will only arrive for work at 8.00 am. Hence, there will be no one at the studio except only
for Selamat and Kamarul. Also, Selamat and Kamarul had stolen the musical instruments from custody since
the music studio belonging to Sinarwarna is in a form of building where the entry is prohibited without proper
permission. Besides, the custody is also guarded by personal security guard where the facts shows that the
studio will be locked by the security guard on duty after the training sessions. Therefore, Selamat and Kamarul
fulfilled this element since they had stolen the musical instruments surreptitiously from careful protection and
custody.

Furthermore, the fourth element is that the stolen property must reach the prescribed value
(nisab) or more of theft. If the offence is committed by two people jointly, each offender must get share in
such property equal to nisab (ONLY PUT IF GOT TWO OR MORE PERSON). If a person commits theft
wherein the stolen property is of the value less than the prescribed value (nisab), he shall not be liable to hudud
punishment, but shall be liable to ta’zir punishment. Hence, the stolen property must be a durable thing and
must be of the value of nisab or more. The value of nisab will depend on the property that is being stolen. The
minimum value (nisab) for the stolen…

(i) Perishable foodstuffs

If a person commits theft of perishable food stuff like fruits, vegetables and so on, hudud punishment
shall not be implemented on him but he shall be punished with ta’zir punishment. Hadith reported that the Holy
Prophet said “I shall not cut hand in foodstuffs” Sunan Abu Daud reported that the Prophet said “Hand shall
not be cut in theft of fruit”

(ii) Prohibited things

Next, hudud punishment of theft shall not be implemented in theft of the prohibited things such as wine,
pig and so on but the offender shall be liable for ta’zir punishment.

(iii) Common things

Majority of the jurists are of the view that hadd of the theft shall not be imposed for the theft of common
things such as fish, bird and so on. Hadith reported the Holy Prophet said, “Three things are common for all
namely, water, grass and fire”. However, according to Imam Malik and Imam Shafii, hadd of theft shall be
liable if such things are in the custody of a person.

(iv) Nisab i.e prescribed value

The minimum value (nisab) for the stolen goods in Islamic Law must be at least a quarter of a dinar or
the equivalent. Muslim juristd differs on the value of Nisab. This can be proven under Imam Shafie and Imam
Hanbali who opined that the prescribed value (nisab) for theft liable to hadd is ¼ of dinar in gold or three
dirhams in silver. They had referred to Hadith of the Prophet reported by Aisyah, “The hand (of the thief)
should be cut off for (the theft of) a quarter of a Dinar or more.” At that time, a quarter of a dinar was worth
three dirhams, and the dinar was worth twelve dirhams. Three dirhams is generally considered nisab which is
equal to 1.337 grams of gold.

Besides, Imam Abu Hanifah views that the prescribed value (nisab) for theft liable to hadd is ten
dirhams which is equal to 4.457 grams of gold, or about RM800. This view is based on the hadith narrated by
Abdullah Ibn Masud, “Hand of (the thief will not be cut off on less than one dinar (ten dirhams)”. While
according to Imam Malik, it suggested that the minimum value is either a quarter Dinar or three Dirhams based
on the Hadith of the Prophet narrated by Ibn Umar, “cut off the hand of a thief of a shield the price of which
was three Darahirms.” However, ten dirhams is generally considered as the prescribed value for theft due to its
severe punishment.

APPLY
the amount of the value of musical instruments stolen by Selamant and Kamarul is estimated at RM
17,000 and this has exceeded the amount of nisab provided which is ¼ of dinar in gold (around RM1083).
In this case, the offence is committed by XXX and XXX jointly. Thus, each offender must get share in
such property equal to nisab. The Muslim jurist has different opinions to the value of Nisab when offence id
committed collectively. (for two or more prson)

Apart from that, the stolen property must be of another. It means that the offender must not have
any direct or indirect ownership in the stolen property and it must be owned by an individual. One of the
conditions for theft liable to hadd is that the stolen property must be owned by an individual other than the
offender has neither any direct or indirect share in it or suspect to have any share therein. Thus, theft committed
from public properties of property not owned by anyone is not liable to hadd. According to Hazrat Umar
where the governors asked about the punishment of the person who committed theft from baitulmal
(Government treasury). Hazrat Umar told him not to cut his hand as everybody has a right in baitulmal. Another
example is if a debtor commits theft from the property of his creditor, his hand shall not be cut and shall be
punished with ta’azir, Similarly, if an employee commits theft from property of his employer, his hand shall not
be cut off, but he shall be punished with tazir.provided that after deduction of the amount of loan, does not
exceed nisab. Besides, if one of the spouses commits theft from the property of another spouse, his hand shall
not be cut.

APPLY
it can be said that neither Selamat or Kamarul has direct or indirect ownership of the musical
instruments since all the instruments belonged to Sinarwarna which is a well-known pop group. Hence, both of
them are not the members of Sinarwarna group as Selamat works as a security guard with A & T Security while
Kamarul works as a cleaner.

The sixth element of theft is that the offender must have committed theft with his free will, with a
guilty mind and intention to cause wrongful loss or wrongful gain of the stolen property and not in a state
of compulsion or dire necessity. It is based on the Hadith of the Prophet who said, “My ummah has been
exempted from the liability of the action done by mistake, forgetfulness or under coercion.” Moreover, Surah
Al-Baqarah (2):173 has generally exempted the state of dire necessity which provided that “I’d one is forced
by necessity…, then he is guiltless”. For example, during the Caliph of Umar time, there was a time of famine.
He has suspended the hadd punishment of theft during his Caliphate. Thus, if a person commits theft in a state
of hunger or dire necessity he shall not be punished with hadd. This is because theft in a period of famine, theft
under threat of death or grievous hurt shall not be liable for hadd.

APPLY
There was no element of coercion to Johan as he planned to break into her house.
The act of Selamat and Kamarul stealing the music instrument from the music studio is done with free
consent and they are not force by any third party. This can be proven where Selamat who was on duty had
opened the door for Kamarul at 7.00 am in which they took the instruments together and keep it at their own’s
premises respectively. Besides, there is nothing on the facts shows that Selamat or Kamarul had financial
difficulties. Thus, they had committed theft without any dire necessity.

The last element is that the property must be moveable property and is of moveable nature. It
means that the stolen property must be able to be carried away by the offender. A thing cannot be stolen if it
was attached to the earth or permanently fixed to anything that is attached to the earth and hence cannot be
taken away by the offender. Things become moveable when it is severed from the earth or from any permanent
fittings

APPLY
the musical instruments owned by Sinarwarna are considered as moveable property since it was taken
and stolen by Selamat and Kamarul from the music studio to Selamat’s flat and Kamarul’s house.

Proof of Theft

The offence of theft liable to hadd is either proved by the confession of the accused, testimony of the
witnesses or by the circumstantial evidence. It must be established beyond doubt. This is based on a Hadith
which states “avoid inflicting the fixed punishment of Hadd on Muslims as much as you can; for it is better for
the judge to make a mistake in releasing ‘an offender’ rather than committing a mistake ‘in convicting an
innocent.”. It is to be noted that if the circumstances lead to “doubt” that the requirement has been met, the legal
grounds for doubt is considered present and he may not be convicted for hadd crime of theft.

For confession, majority of jurists opined that one-time confession is sufficient in an offence of theft
liable to hadd. The conditions for the confessor and the confession discussed in the offence of zina liable to
hadd shall also apply to the confessor and confession in the offence of theft liable to hadd. These condition
includes confession must be a clear, free, and willful confession by the accused. This means that the person can
accurately and expressly state the facts of the act of stealing in clear, real and non-metaphoric words. Besides,
the confessor must be adult and a good mental condition. He must be capable of self-expression. According to
Imam Abu Hanifa the confession of deaf and dumb is not acceptable in an offence of theft liable to hadd even
he can write his confession or his sign is intelligible. According to Imam Malik, Imam Shafie and Imam
Ahmad: the confession of deaf and dumb is acceptable, if his sign is intelligible or he can write his confession
before the court. Third, the confession must be voluntary. This means that the confession must be made with
free consent and without any force, pressure, temptation or coercion. Lastly, the confessor must explicit as to
committing of the offence. According to Imam Abu Hanifah and Iman Ahmad, the confessor must make four
separate confessions before the court. However, Imam Malik and Imam Shafir stated that only one-time
confession is sufficient to prove theft.

Confession of the offender will be subject to hadd punishment unless there is a retraction 撤回. It means
that if the confessor in an offence of theft liable to hadd retracts his confession, his hand shall not be cut, but he
may be liable for the combustion of the stolen property

APPLY
There is no confession made either by Selamat or Kamarul for their act of stealing the musical
instruments.

The second way to prove theft is by way of testimony of the witnesses. To prove theft, there must be
two reliable male witnesses who should be good Muslims. They have to testify against the accused. Under theft,
two males are sufficient and they must be sane, is an adult Muslim and must testify to all the particulars of the
case. This means that non-Muslim or females are not acceptable to be a witness for the offence of theft. As
proven, Imam Zuhri said that, “It has been in practice since the period of the Prophet and the right-guided
Caliphs that the evidence of the woman was not acceptable in Hudud and Qisas.” Thus, according to Imam
Malik and Imam Shafii, the evidence of a non-Muslim is not acceptable in any offence. Also, the witness
must be adil. Adil means a Muslim who abstains himself from major sins and does not indulge in minor sins
and his good deeds are more visible than his evils deeds. If the number of witnesses is less than two or there is
one male and one female witness, he shall be liable for the restoration of the stolen property to the victim and
shall also liable for ta’zir.

Then, the witnesses should testify in the same hearing, about the same theft act. Their testimony may not
conflict. If the witnesses changed their testimony before execution, then hadd may not be applied. Also, the
witnesses must not delay in the hearing. According to Abu Hanifah, the delayed evidence creates doubt which
removes hadd. However, Imam Malik and Imam Shafie have different views as they stated that delay in
evidence does not affect its authenticity and permissibility. Thus, delayed evidence is acceptable in hudud.
Moreover, witnesses should have the capacity of speaking and seeing. This means that the evidence of the dumb
and a deaf is not acceptable for proof of theft. Next, witnesses should have eye-witnessed the actual act of
offence. He must state that they have seen the offender entering the protected place (hirz) and coming out from
it with the stolen property. Lastly, there must be a complaint lodged by the victim or his representative against
the accused.

APPLY
From the facts, there are no witnesses to be provided before the court since the act of stealing committed
by Selamant and Kamarul was at 7.00 am in which the staffs were yet to arrive at that time since their working
time is at 8.00 am.

Besides, circumstantial evidence may also be used to strengthen the charge against the accused.
Circumstantial evidence means that the stolen property must be found at the offender’s house. The existence of
a stolen property at one’s house, or through CCTV. If there is only circumstantial evidence against the accused,
he shall be liable for the restoration of the stolen property to the victim and shall also liable for ta’zir.

APPLY
From the facts, we can see that the stolen musical instruments that belonged to Sinarwarna were found
by the police in Selamant’s flat and Kamarul’s house. Thus, the act of theft is proved by circumstantial evidence
as the stolen properties were in the possession of both of them.

SEE GOT DEFENCE MA

IF GOT – PUT
IF NOT – It is unlikely XXX have any possible defense to the charge against him based on the
circumstantial evidence as … the stolen property was being found at their house

Punishment

The punishment of theft is stipulated under Surah Al-Ma'idah (5):38 which provided that “As for the
thief, both male and female cut off their hands. It is the reward of their own deeds, and exemplary punishment
from Allah. Allah is Mighty wise”. The Hadith of Prophet Muhammad also addressed the matter of theft by
reporting that “The hand of the thief should be cutt of for the theft of a quarter of a Dinar or more.” Besides,
another Hadith narrated on theft is “May Allah curse the thief who steals an egg and had his hand cut off, or
steals a rope and has his hand cut off”. Thus, the amputation oh hands is the punishment for theft in Islam.

Unanimous of jurist opined that if a person has been convicted for the first time for theft, the
punishment is amputation of the right hand of the convict from the joint of the wrist. While for the second time,
the punishment will be the amputation of the left foot up to the ankle. Further, Imam Abu Hanifah stated that
for the third time being convicted, he shall be liable for ta’azir, his hand or foot shall not be cut, but may be
punished with imprisonment or fine or both

A different view has arisen from Imam Malik and Imam Shafie where they stated that for the third
time being convicted, the offender's left hand shall be cut from the wrist. For the fourth time, his right foot shall
be cut from the ankle and for the fifth time, he shall be imprisoned till death or repentance. However, the second
and subsequent punishment are not hadd punishments and can be altered by the legislator or judge.
 APPLY
Hadd punishment could not be applicable to Selamat and Kamarul as there is no confession made by
both of them and there are no eye witnesses to be provided for their act. However, Selamat and Kamarul will be
liable for ta’azir since there is circumstantial evidence where the stolen musical instruments were found by the
police in Selamat’s flat and Kamarul’s house respectively.

In conclusion, Selamat and Kamarul cannot be liable for theft under hudud punishment due to
insufficiency of any primary evidence, but they are punishable to taazir under the Syariah Criminal law
according to secondary evidence.