Section
Accordingly, no amputation is carried out when the stolen property belongs to a lineal ascendant, a lineal descendant, or—if the thief is a slave—his master. The preponderant opinion, however, is that either spouse who steals from the other is subject to the penalty.
Whoever steals from the bayt al-māl (state treasury): if the sum in question has already been set aside for a specific group to which he does not belong, his hand is cut. If it has not been segregated, the sounder view is that, should he have a rightful share in what he took—such as funds allocated for public utilities or charity money from which, being poor, he may lawfully benefit—then no amputation is imposed; otherwise, it is.
According to the authoritative position, the hand is cut for stealing the mosque’s door and its wooden fittings, as well as the lanterns kept lit therein, but not for taking its woven mats. The sounder view extends the penalty to any property placed in waqf (endowment). The same ruling applies to someone who steals an umm walad who, at the time, is asleep or mentally incapacitated.
- The fourth overall condition is that the property be in a ḥirz (secure enclosure), safeguarded either by continual surveillance or by the protective nature of its location.
• Property left in the open desert or inside a mosque requires uninterrupted watchfulness; that kept within a fortress is secured by ordinary, periodic attention.
• A stable is a ḥirz for animals but not for vessels or clothing. The courtyard of a house and its entranceway count as a ḥirz for everyday utensils and garments, though not for jewellery or cash.
• Should a person fall asleep in the desert or in a mosque while lying on a garment or using goods as a pillow, those items are deemed secured; if he turns over so that they slip away from him, they are no longer secured. Goods or clothing placed near him in the desert are likewise secured only when he actively keeps them under observation.
• Observation is deemed effective only when the watcher is able, either by force or by calling for help, to prevent a thief.
• A detached house that stands apart from other dwellings is considered a ḥirz, whether its door is open or shut, provided that a strong, alert person is inside; without such a person, it is not. A house adjoining other homes is a ḥirz when its door is closed and a guard—even one who is asleep—is present; with the door open and the guard asleep it is not a ḥirz at night, nor, according to the stronger view, during the day. The same ruling applies when the guard is awake but the thief manages to slip by him, according to the stronger opinion. If the house is entirely empty, the relied-upon view is that it remains a ḥirz during daylight hours in times of general security, so long as the door is shut; if that condition is absent, it is not.
• A tent in the desert whose pegs are not driven in and whose flaps remain raised, together with whatever is inside it, is treated like property left in the open desert; once it is properly pitched it is a ḥirz on condition that a strong guard is inside, even if asleep.
• Livestock kept in roofed pens adjoining inhabited buildings are secured without a guard, whereas livestock pastured in open country require a guard, even one who is asleep. Camels kept in the desert are secured provided a guard can see them; for camels tied in a caravan the requirement is that the driver look back at them at least once an hour so that he can see them, and that the string not exceed nine. An untethered herd is not deemed secured, according to the sounder opinion.
• A shroud inside a grave located within a building is secured, as is one buried in a cemetery on the outskirts of habitation, according to the sounder view; a shroud in a remote burial ground, however, is not, according to the preponderant opinion.