Islam · Muslims · Qur'an · Religion · Shari'ah

Islamic Penal Code Part II

In this post I shall tackle the second crime in the Islamic penal code, and discuss its punishment and the circumstances that must exist for proving it.

Allah says in the Qur’an: “Cut off the hands of thieves, whether a male or a female, as a [deterrent] punishment from Allah for what they have done. Allah is exalted in Might and All-Wise. But whoever repents after his transgression and reforms, indeed Allah will turn to him forgiveness. Indeed, Allah is Most-Forgiving and Ever-Merciful.” [The Qur’an (5:38-39)]

About this Prophet Muhammad P.B.U.H. said:
“O people, verily the previous nations were doomed to perish because of their injustice. Whenever a person among their nobles committed theft they let him go, but whenever a person from among the common people stole something, they cut off his hand. I swear by Allah that if my daughter Fatimah commits theft, I shall cut off her hand.” [Recorded by Muslim]

The first reaction that we usually get when any non-Muslim hears or reads the previous verse is, “This is nonsense and totally barbaric; you people make me sick. Why don’t you just put thieves in prison and teach them any craft or profession from which they can earn a decent livelihood?”

Well, let’s identify theft according to the Islamic law, and explain the requirements of proving the crime, the punishment described for it, and the wisdom behind prescribing such a harsh punishment.

The conditions set in the Islamic law for applying the theft punishment:

  1. The person accused of theft must be an adult sane person who is a citizen of the state, and not a wayfarer who is unaware of the applied laws.
  2. Enough evidence is submitted to the judge proving undoubtedly that the accused intentionally forced-open, unlocked, or broke into the property of others, and stole from this property what’s equivalent to or exceeding the price of 30 grams of silver. The prophet P.B.U.H. said: “There is no cutting in less than 10 dirhams.”
  3. He or she was caught immediately after committing the crime with the stolen items, or the investigators were successful in submitting enough evidence to prove without any doubt his conviction.
  4. The country is not suffering from famine or any national catastrophe.
  5. The thief is a craftsman or is employed in a certain profession through which he receives enough income to suffice all necessary needs for himself and his family.

‘Omar Ibn Al-Khattab stopped the application of the theft punishment during the famine period, this was to ward off any suspicion that the person was impelled to steal out of hunger, or to feed his family. Moreover, while bidding farewell one of his deputies, he asked him saying: “What shall you do if a thief was arrested at your province?” The deputy answered: “I shall cut-off his hand.” ‘Omar said: “And so shall I cut-off yours if a hungry man or an unemployed person comes complaining from your province. Allah destined us to rule over His servants to satisfy their hunger, shelter their bodies, and make it easy for them to practice their crafts. Only if we succeeded in providing them with these things, we get our reward from Allah. Know that Allah created the hands to work, if they don’t find a righteous job, they shall search for one in wrongdoing, so occupy the hands of your subjects with what’s lawful before they occupy you with what’s unlawful.”

In theft, the victim has the right to forgive the thief before the case reaches the judge. If the victim forgoes and drops the charges, the police officers may let the thief go, and the criminal must return what he has stolen unless the victim forgoes in return for Allah’s reward. Prophet Muhammad said: “Forgive each other before you raise the case to me, for if it reaches me, and the accused was convicted of the crime, then I must apply Allah’s prescribed punishment.” [Recorded by Abu-Dāwud] If the victim does not drop the charges, the case is raised to the judge. If the judge found that the evidence submitted was enough to convict the criminal with theft, he has no choice but to order the application of the prescribed punishment. Any person found guilty of the previous points is sentenced to have his right hand cut off at the carpus. After this, his hand must be treated immediately and bandaged to stop the bleeding.

In Islam no punishment is applied unless the convicted criminal was found uncompelled to make his crime. Prophet Muhammad said: “Allah has forgiven from the sins of my nation whatever they commit out of error, forgetfulness and whatever they do under compulsion.” [Authenticated by Albany] The surrounding conditions and circumstances must be thoroughly studied, evaluated and weighed by the judge before any criminal is convicted. If a man steals some food out of hunger, or steels money to buy a highly expensive medicine for his ill mother, and he was convicted with theft, his hand is not cut-off, but he is sentenced to payback his debt, which in this case will be paid from the Muslims money household, and it is the ruler’s job to make sure that he is employed and can provide for himself and his family their livelihood. Moreover, we have already stated in the previous post that Prophet Muhammad said: “Three are not held accountable for what they do: the child until he reaches puberty, the sleeping person until he wakes up, and the insane person until he gets back his senses.” [Recorded by Ahmad, An-Nasā’ī and others] The previous 3 categories of people are exempted from punishment. It’s an Islamic duty to take care of minors, those who are helpless, and those who are mentally incompetent; and protect them.

Hence, the criminal under discussion here is a person who deliberately inclined towards theft out of greed. Try to imagine a community free from those criminals who live on steeling the possessions and savings of others. What’s the point of allowing thieves to continue dwelling among our societies while we can actually stop this disgusting phenomenon once and for all. Putting thieves in prison has been the practice of many countries for centuries, and still, they haven’t been able to eradicate theft, and thieves continue to steel in all those countries without any real deterring punishment. Actually they are increasing and creating more advanced ways of stealing. The equation here is simple, they don’t mind a few years in prison after which they shall come out and enjoy what they have stolen. We have even seen in many countries that putting thieves in prison and allowing them to mingle, creates mobs and increases their experience. Most of them come out and steal again, but this time they make sure that they won’t get caught. Besides, what’s so useful in putting them in prison while the tax payers spend on their sustenance and the running costs of the prison?

Try to imagine how a society free from any sort of theft can prosper, advance, and get ahead; a society in which all people have no worries whatsoever on their houses, possessions and belongings. From the previous, it should be clear now that if the punishment for theft under the previously mentioned conditions was cutting off the thief’s hand, no one would dare steel or even think about it. Meanwhile, if someone insisted on stealing and his hand was cutoff, then the society will be purified from thieves for good, which is beneficent for all people. Know by heart that only true thieves and impostors fear such a punishment, so don’t take their side.

For more understanding of the penal code in Islam, read my previous post:
Islamic Penal Code Part I


IMME, ISBN:9789779027395

Written By: Ehab Shawky

In response to: Commit


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