He—peace and blessings be upon him—also said, “Had Fatimah, the daughter of Muhammad, stolen, I would have carried out the ḥadd on her.” Likewise, he said to Ṣafwān,

“Could you not have done that before you brought him to me?”

The jurists disagreed about a thief who steals an amount that entails amputation, is then taken to the ruler, and whose victim either forgives him before the case reaches the ruler or does so after it has been presented but before the sentence is carried out.

Mālik and al-Shāfiʿī held that the ḥadd must still be enforced, because the matter has already reached the ruler. Abū Ḥanīfah and a group of scholars maintained that the ḥadd is no longer applicable.

The majority’s main proof is the report transmitted by Mālik from Ibn Shihāb, from Ṣafwān ibn ʿAbd Allāh ibn Ṣafwān ibn Umayyah: It was said to him, “Whoever does not emigrate will perish,” so Ṣafwān ibn Umayyah came to Madinah. He slept in the mosque and used his cloak as a pillow. A thief came, took the cloak, and Ṣafwān seized him and brought him to the Messenger of Allah—peace and blessings be upon him—who ordered that the thief’s hand be cut off. Ṣafwān said, “Messenger of Allah, I did not intend this! I have now given it to him as charity.” The Messenger of Allah—peace and blessings be upon him—replied, “Why did you not do that before bringing him to me?”

Proofs by which theft is established

They concurred that theft is established by the testimony of two upright witnesses and by the confession of a free person. They differed, however, about the confession of a slave.

The majority of jurists across the regions said: a slave’s confession against himself obligates the ḥadd but does not make him liable for restitution. Zufar held that a slave’s confession does not render him subject to death, hand-amputation, or any other penalty, because he is the property of his master. The same opinion was reported from Shurayḥ, al-Shāfiʿī, Qatādah, and a number of others.

If the thief retracts his confession on the basis of a plausible doubt, the retraction is accepted. If he retracts without citing any such doubt, there are two narrations from Mālik on the matter, as related by the Baghdadi Mālikīs. Later scholars have offered further details that do not pertain to the present discussion and are better suited to an extensive exposition of the school’s branches.