Section

The lessor of a ḥirz (secure enclosure) is liable to amputation, and so too—according to the sounder view—is the one who merely lends such a place. If the ḥirz itself has been usurped, neither its rightful owner nor, on the preponderant opinion, an unrelated third party who steals from it is subject to the penalty. Likewise, when a person seizes another’s property and secures it inside his own ḥirz, no amputation is imposed if the owner later retrieves it by stealth or if a stranger steals that very usurped property; this is the stronger position. A clandestine pick-pocket (mukhtalis), an open snatcher (muntahib), and a trustee who later denies the deposit are not cut. Should a burglar breach the wall and then, on another night, return and steal, his hand is cut in the sounder view.

I say: that ruling applies only when the owner is unaware of the breach and it is not visible to passers-by; otherwise, the penalty is unquestionably not carried out. Allah knows best.

If one man bores the opening and another removes the goods, no one is cut. Where they co-operate in the breach but only one of them carries the property out—or the digger places it next to the opening and another then removes it—the extractor is cut. If he places it midway within the breach and someone outside takes it, and its value reaches two niṣābs (twice the minimum threshold), neither of them is cut according to the more apparent view.

If the thief throws the property beyond the limits of the ḥirz, or puts it in running water, on the back of an animal that is already moving, or exposes it to a blowing wind so that it is carried out, he is cut. If, however, the animal was standing still and only began to walk after he had placed the property on it, he is not cut, according to the sounder opinion. A free human being is not compensable property, and the abductor of a free person is therefore not subject to amputation. The same ruling holds—on the preponderant view—for one who steals a small child who happens to be wearing a necklace.

If a slave is asleep on a camel and someone leads the camel away from the caravan, he is cut; but if the rider is a free person, he is not, according to the sounder view.

The thief is cut when he moves an item from a locked room into the courtyard of the house while the courtyard door is open; otherwise, he is not. Another opinion maintains that if both the room and the courtyard are locked, the penalty still applies. In the sounder estimation, the guest room of a khān (roadside inn) and its courtyard are treated like a private room and house.

Section

A minor, a madman, and one acting under coercion are not amputated. Both a Muslim and a dhimmī are cut for stealing the property of either a Muslim or a dhimmī. With regard to a muʿāhad (a treaty-bound non-Muslim) there are several opinions; the best of them is that, if the treaty expressly stipulates that he is liable to amputation for theft, he is, otherwise he is not.

I say: The position more widely held among the jurists is that he is not cut. Allah knows best.

Theft is established, according to the sounder opinion, by the plaintiff’s retaliatory oath when the defendant refuses to swear, and by the thief’s own confession—the school holding that his retraction is accepted. As for one who confesses to a ḥadd that is solely the right of Allah Most High, the discussion continues on the next page.