in category Fiqh (Jurisprudence)

What are the requirements for the hudud amputation for theft?

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This is a fatwa given by Taqi al-Din Ali b. Abd al-Kafi al-Subki (d. 756/1356), a senior Shafi scholar and judge from one of the leading scholarly families of Damascus:
The Imam and Shaykh, may God have mercy on him, said: It has been agreed upon that the Hadd [punishment] is obligatory for one who has committed theft and [for whom the following conditions apply]:
[the item] was taken from a place generally considered secure (hirz)
it had not been procured as spoils of war (mughannam)
nor from the public treasury
and it was taken by his own hand
not by some tool or mechanism (ala)
on his own
while he was of sound mind
and of age
and a Muslim
and free
not in the Haram in Mecca
and not in the Abode of War
and he is not one who is granted access to it from time to time
and he stole from someone other than his wife
and not from a uterine relative
and not from her husband if it is a woman
when he was not drunk
and not compelled by hunger
or under duress
and he stole some property that was owned
and would be permissible to sell to Muslims
and he stole it from someone who had not wrongfully appropriated it
and the value of what he stole reached ten dirhams
of pure silver
by the Meccan weight
and it was not meat
or any slaughtered animal
nor anything edible
or potable
or some fowl or game or a dog or a cat
or animal dung
or feces (adhira)
or dirt
or red ochre (maghara)
or arsenic (zirnikh)
or pebbles or stones or glass or coals or firewood or reeds (qasab) or wood or fruit or a donkey or a grazing animal or a copy of the Qur'an or a plant pulled up from its roots (min bada'ihi) or produce from a walled garden or a tree or a free person or a slave
if they are able to speak and are of sound mind
and he had committed no offense against him
before he removed him from a place where he had not been permitted to enter
from his secure location
by his own hand
and witness is born
to all of the above
by two witnesses
who are men
according to [the requirements and procedure] that we already presented in the chapter on testimony
and they did not disagree
or retract their testimony
and the thief did not claim that he was the rightful owner of what he stole
and his left hand is healthy
and his foot is healthy
and neither body part is missing anything
and the person he stole from does not give him what he had stolen as a gift
and he did not become the owner of what he stole after he stole it
and the thief did not return the stolen item to the person he stole it from
and the thief did not claim it
and the thief was not owed a debt by the person he stole from equal to the value of what he stole
and the person stolen from is present [in court]
and he made a claim for the stolen property
and requested that amputation occur
before the thief could repent
and the witnesses to the theft are present
and a month had not passed since the theft occurred

Source: Taj al-Din and Taqi al-Din al-Subki, Fatawa al-Subki, 2 vols. (Beirut: Dar al-marifa, n.d.), 2:333-4.

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