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The Types of Property Whose Theft Entails Amputation
According to Mālik’s school, amputation is required for stealing anything regarded as property that may lawfully be sold, whether originally freely available or not, and whether durable or quickly perishable. This differs from Abū Hanīfah’s position regarding quickly perishable goods, and from both his position and al-Shāfi‘ī’s regarding things originally freely available, such as water, firewood, pasture and the like.
Abū Hanīfah based his position that stealing perishable food does not entail amputation on the Messenger of Allah’s ﷺ statement:
“There is no amputation for stealing fruit or palm pith.”
He interpreted this exemption as being due to their perishability. He also supported it by reasoning that if stealing something without external protection does not entail amputation, even when it is protected in itself, then this applies all the more to something externally protected but lacking protection in itself. This argument has no merit. Mālik’s position is correct, and the evidence is the statement of Allah, the Exalted:
“As for the thief, male or female, cut off their hands.” [al-Mā’idah: 38]
This is a general ruling, from which nothing may be excluded without evidence. Abū Hanīfah has no valid evidence for excluding the theft of certain kinds of property other than his interpretation of the hadith. Yet his interpretation is countered by a stronger one: the produce had not been placed in secure custody, and that is why its theft did not entail amputation.
Section
The Sequence of Amputations for Theft
When a thief steals, his right hand is amputated. If he steals again, his left foot is amputated; if he steals again, his left hand is amputated; and if he steals again, his right foot is amputated. If he steals yet again, he is beaten and imprisoned. This is Mālik’s position—may Allah have mercy on him—and the school of the scholars of the Hijāz.
He did not hold that the thief should be put to death after the fourth offence, as related in the report transmitted from the Prophet ﷺ by Jābir ibn ‘Abd Allāh:
“A slave who had stolen was brought to him, and he cut off his right hand. He was later brought to him again after stealing, and he cut off his left foot. He was subsequently brought to him after stealing again, and he cut off his left hand. He was then brought to him after stealing again, and he cut off his right foot. When he was brought to him after stealing yet again, he put him to death.”
This is because the hadith is not authentic. And in the report of