As for His words,
“or have their hands and feet cut off on opposite sides” (al-Māʾidah 5:33),
the meaning is that the robber’s right hand and left foot are severed; should he relapse, his left hand and right foot are then cut off.
The jurists disagreed about the case in which the robber has no right hand. Ibn al-Qāsim held that his left hand and right foot are amputated, whereas Ashhab maintained that his left hand and left foot are to be severed.
They also differed over His statement,
“or be banished from the land” (al-Māʾidah 5:33).
Some said that banishment means imprisonment.
Others said that it is expulsion from one town to another, where he is held in custody until his repentance becomes evident. This was related by Ibn al-Qāsim from Mālik, who added that the two towns must be at least the minimum distance that permits shortening the prayer. Both opinions are ascribed to Mālik, while Abū Ḥanīfah adopted the first.
Ibn al-Mājishūn said that the “banishment” refers to their fleeing from the imam to escape the ḥadd; once they are captured they are not to be banished.
Al-Shāfiʿī said that banishment itself is not intended; rather, if they escape we scatter them across the land by pursuing them. Others, however, regarded banishment as an intended punishment and, on that view, he is exiled and imprisoned permanently. All of these reports come from al-Shāfiʿī.
Another opinion holds that “or be banished” means banishment from the lands of Islam to the lands of war.
What appears most persuasive is that banishment is exile from one’s homeland, for the Almighty says,
“Had We prescribed for them, ‘Kill yourselves, or leave your homes…’” (al-Nisāʾ 4:66).
Here He equated exile with killing, and exile is a familiar punitive measure, like flogging or execution. Anything said besides this is unsupported by customary usage or convention.
Chapter Four: What Repentance Removes from the Highway Robber
This chapter deals with the obligations that repentance lifts from him. The basic text concerning the divine right that repentance cancels is the Almighty’s words:
“except for those who repent before you apprehend them” (al-Māʾidah 5:34).
Scholars disagreed over four issues related to this verse:
- Is the robber’s repentance accepted?
- If it is accepted, what kind of highway robber qualifies?
On the second point the scholars hold two views:
• One view—more widespread—is that his repentance is accepted, based on the verse just quoted.
• The other view is that his repentance is not accepted; this was asserted by those who claim the verse was not revealed about highway robbers.
As for the form of repentance that cancels the legal ruling, there are three opinions:
- His repentance is achieved in two ways:
a. He ceases his crime, even if he does not come to the imam.
b. He lays down his weapons and voluntarily presents himself to the imam. This is the position of Ibn al-Qāsim.