Thursday, September 10, 2020

Application of HADD punishment on the Rich.

Assalaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of us).

    One of the objectives of islamic law is the protection of human dignity, which is held in high esteem. Islam has clearly established principles guiding human conducts in all ramifications.

There have been misconceptions about the implementation of HADD (Fixed punishment) on the RICH, especially amputation of the hand of a person found guilty of theft.

The shariah is applicable to all irrespective of class; Poor or Rich because in Islam All human being are equal in the eyes of Almighty Allah the only distinction which Allah recognizes is the distinction in piety.

    Allah {S.W.T} says: “O mankind, verily we have created you from a single (Pair) of a male and a female, and have made you into nations and tribes, that you may know each other. Verily the most honored of you in the sight of Almighty Allah is the most righteous” (Quran, 49:13).

Islamic jurisprudence prescribed certain punishments in certain situations, most of these punishments were meant to act as deterrents. Islam forbids theft, forgery, usurpation, embezzlement, cheating, Riba, bribery etc.

In the case of theft, there are established prerequisites to be consider before carrying out punishment of amputation.

    Allah {S.W.T} stated in the Noble Qur'an Al-Ma'idah 5:38

    [As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise.

preconditions before amputating the hand of a thief.

There are preconditions before amputating the hand of a thief. If any of these preconditions is not fulfilled, the hand should not be cut:

1. The thief must not have been compelled to commit theft.
2. The worth of the stolen object must be valued. The Prophet (peace and blessings of Allah be upon him) said: “The hand should be cut off for (the theft of) a quarter of a dinar or more.”
3. He must be a Muslim
4. The stolen property must be (legally) valuable.
5. The thief must have taken away the stolen property from proper place himself. If one takes out the thing from its safe place and another one takes it away, neither of the two can be punished for theft.
6. Eatables stolen during the times of famine do not make the thief liable for having his hands cut. It is narrated from Imam Ja’far as-Sadiq (R.A.) that he said: In the time of famine and draught the hands of a thief are not cut off for stealing edible items like bread and meat etc.
7. If one of the parties to a contract steals a property and claims that it rightfully belongs to him, he is not liable to be punished. (Emphasis mine)
8. The object should have been stolen from a place where the owner’s permission is required to enter. If a theft takes place in a public mosque or public bath, the thief does not have his hand amputated.
9. The thing should have been stolen from a secure place.
10. The thief must be sane. So if an insane person steals, his hand is not amputated.
11. If before a theft is proved, the thief goes to the judge and repents and promises not to steal in future he is saved from the punishment. Allah {S.W.T} says: Whoever repents to Allah, Allah forgives him, no matter how great his sin is. Allah Says: { Say: "O my Servants who have transgressed against their souls.
Despair not of the Mercy of Allah: for Allah forgives all sins: for He is Oft-Forgiving, Most Merciful."}
[Quran 39:53]
12. The thief must be an adult. Abdullah Ibn Sinan relates the following tradition from Imam Ja’far as-Sadiq (A.s): “When a minor child* *steals for the first and the second time he is *forgiven. If he does it for the third time he is* *issued a strict warning and beating. If he persists in his crime, the tips of his fingers are slightly cut and if he repeats the act, some more of his fingers are cut away.”*
13. The theft itself has to be proven, either by the testimony of two qualified witnesses or by the confession of the thief twice.

From the forgone preconditions, it is evidenced especially precondition No. 7, stealing of public property does not qualify for the application of HADD punishment of cutting off the hand of the person. But rather Ta'azir (judge discretionary punishment) according to the majority of the scholars. Because there might be possibility of him having shares in the stolen item. There is Maxim which states that “hudud are to be prevented when there are doubts”. The Maxim which root from the saying of prophet {S.A.W} "Set aside the execution of hudud punishments in cases of doubt (shubhah)."

However, The thief is not absolved of liability. Because, theft is ab initio a sin, a crime and eternally punishable even if one escapes the worldly sanction, certainly he won't on the day of reckoning because it infringe on the rights of the person(s) stolen from unless the victim forgives.

May Allah {S.W.T} Forgive us and Guide us Ahright.

MOHAMMED AWWAL
FACULTY OF LAW,
BAYERO UNIVERSITY KANO.
08130715456

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