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TOPIC 2.2: HUDUD CRIMES SARIQAH

(THEFT)
By Ms. Saidatul Nasuha Binti Jamaludin
 Adultery/Zina

Types of Syariah Punishments

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Theft/Sariqah

False accusation
of Adultery/Qazaf

Hudud Extortion/Hirabah

Treason/Bughah

Intoxicant/Sukran

Apostasy/Irtad
DEFINITION OF THEFT
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• Means: To take away the property of another person

surreptitiously without the knowledge and consent of
that person.

• Islam protects 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 object and to keep individuals and

society in peace, theft are punished severely. Besides
depriving the owner, it creates fear and apprehension
among individuals, community and society.
ELEMENTS OF THEFT CRIME
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1. The offender is an adult and of sound understanding

2. The offender must have dishonest intention
3. The offender must have taken away the stolen property
surreptitiously from careful protection and custody (hirz)
4. The stolen property must be of a prescribed value (nisab)
or more
5. The offender must not have any direct or indirect
ownership in the stolen property and it must be owned
by an individual
6. The offender must have committed theft with his free will
and not in a state of compulsion or dire necessity
7. The property must be of moveable nature
ELEMENTS OF THEFT CRIME (cont.)
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1. The offender is an adult and of sound

understanding
- Must be an adult age and of sound mind at the time
of commission of an offence

2. The offender must have dishonest intention

- The dishonest intention must exist at the time of theft
– explicit intention to acquire the stolen property
- The offender intend to cause wrongful gain or
wrongful loss to one person
- Taking another’s property under mistake is not a theft
ELEMENTS OF THEFT CRIME (cont.)
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3. The offender must have taken away the stolen property

surreptitiously from careful protection and custody (hirz)
- Surreptitiously – done secretly
- To take away the stolen property from a genuine custody secretly
without knowledge and consent
- Careful protection and custody (hirz) – to protect or guard by
making necessary arrangement for the custody of property
- Custody (hirz) is of 2 kinds:-
1. Custody in a form of a house or building wherein entry is
prohibited without proper permission, eg, house, shop, tent,
camp, box
2. Custody by deputing guard as a watchman to protect property
- Theft committed of property not in proper custody - x liable for hadd
punishment but subject to taazir
ELEMENTS OF THEFT CRIME (cont.)
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4. The stolen property must be of a prescribed value (nisab) or

more
i) Perishable food stuffs
– If a person commits theft of perishable of food stuff like fruits,
meat, milk, vegetables etc, hadd shall not be implemented on
him.
– Hadith: Prophet said “ I shall not cut hand in foodstuffs”
ii) Prohibited things
- Hadd shall not be implemented in theft of the prohibited
things like wine, pig etc. they shall be liable for ta’azir
iii) Common things
- Hadith: Prophet said, “Three things are common for all
namely, water, grass and fire”.
- Hadd shall not be implemented on a person who commits
theft of common things
ELEMENTS OF THEFT CRIME (cont.)
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iv) Nisab i.e prescribed value

• Imam Abu Hanifah: the prescribed value (nisab) for theft liable to
hadd is ten dirhams. Hadith: Prophet said, “ Hand of (the thief
will not be cut off on less than one dinar (ten dirhams)”. Ten
dirhams is generally considered nisab which is equal to
4.457grams of gold.

• Imam Malik, Imam Shafie and Imam Ahmad: the prescribed value
(nisab) for theft liable to hadd is ¼ of dinar in gold or three
dirhams in silver. Hadith: 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 1.337grams of gold.
ELEMENTS OF THEFT CRIME (cont.)
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5. The offender must not have any direct or indirect ownership in

the stolen property and it must be owned by an individual
• The stolen property must be owned by individual other than the
offender has neither any direct or indirect share in it or suspect to
have any share therein.
• Property taken not in a possession of anybody, lost property, public
property, wild birds, animals, property lying on the road – x hadd but
misappropriation of property. According to Hazrat Umar asked about
the punishment of the person who committed theft from baitul-mal
(Government treasury). Hazrat Umar told him not to cut his hand as
everybody has a right in baitul-mal (including the theft himself).
• E.g: if a debtor commits theft from the property of his creditor, his
hand shall not be cut and shall be punished with ta’azir, provided
that after deduction of the amount of loan, does not exceed
nisab.
• If one of the spouses commits theft from the property of other
spouse, his hand shall not be cut.
ELEMENTS OF THEFT CRIME (cont.)
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6. The offender must have committed theft with his free will and
not in a state of compulsion or dire necessity
• Hadith: My ummah has been exempted from the liability of the
action done by mistake, forgetfulness or under coercion.
• During Caliph of Umar time, there is 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.
• Theft in a period of famine, theft under threat of death or grievous
hurt shall not be liable for hadd.

7. The property must be of moveable nature

• Moveable – capable of being carried about
• Things become moveable when it is severed from the earth or
from any permanent fittings
PROOF OF THEFT
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1. Confession
• All 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 liabe to hadd.
i) Confession must be a clear, free, and willful confession by
the accused.
ii) Confessor must be adult and a good mental condition
iii) Confession must be voluntary
iv) Confessor must explicit as to committing of the offence

• Confession of the offender subject to hadd punishment unless

there is a retraction
PROOF OF THEFT
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2. Testimony of the witnesses
• All the conditions for the witness and testimony discussed in the offence
of zina liable to hadd shall also apply to witness and testimony in the
offence of theft liabe to hadd.
i) The two male, sane and Muslim witnesses must testify to all the
particulars of the case.
ii) The witnesses should testify in the same hearing, about the same
theft act. Their testimony may not conflict. Should they change
their testimony before execution, the hadd may not be applied.
iii) Witness should have capacity of speaking and seeing.
iv) Witness 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.
v) There must be a complaint lodged by the victim or his
representative against the accused
3. Circumstantial evidence
• The existence of a stolen property at one’s house etc
PUNISHMENT
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ً ‫الس ِار َق ُة َفاق َۡط ُعوۡۤا اَيۡ ِديَ ُه َما َج َز‬

‫ٓاءۢ ِب َما ك ََسبَا‬ َ ّ ‫الس ِار ُق َو‬
َّ ‫َو‬
5:38﴿ ٌ‫ع ِزيۡ ٌز َح ِكيۡم‬ ٰ ّ ‫ل‬ ‫ال‬ ‫و‬ ؕ ِ
‫ه‬ ٰ
َ ُ َ ّ ‫﴾نَـك َال ًا ِ ّم َن الل‬
‫ه‬
“[As for] the thief, the male and the female, amputate their hands
in recompense for what they earned [i.e. committed] as a
deterrent [punishment] from Allah. And Allah is Exalted in Might
and Wise.
AQ (5:38)
PUNISHMENT (cont.)
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• Unanimous of jurist: if a person has been convicted for first time -

The punishment of theft is amputation of the right hand of the
convict from the joint of the wrist. Second time – amputation of left
foot up to the ankle

Imam Abu Hanifah:

• Third time – 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

Imam Malik and Imam Shafie:

• Third time - his left hand shall be cut from the wrist
• Fourth time – his right foot shall be cut from the ankle
• Fifth time – he shall be imprisoned till death or repentance

*H/ever, the 2nd and subsequent punishment are not hadd

punishment and can be altered by the legislator or judge.