OUTLINE: HUDUD (3)

4) SARIQAH (Continued)

Definition:

- Theft sariqa secretly taking away of anothers property (literal)

- to take away the property of another person surreptitiously without the knowledge and
consent of that person.
- Technical the act of taking away the property of another prson in a secret manner at a time
when such property is in custody, and taking it without the consent and knowledge of a person
and where the value reached the nisab (value) of theft.

Legality:

Surah Al-Maidah 5:38 - And for the thief, male or female: cut off their hands as a recompense for what
they have earned, and an exemplary deterrent punishment from God. God is All-Glorious with
irresistible might, All-Wise.

Elements of crime:

1) Actus reus

The offender must have taken away the stolen property surreptitiously from custody (hirz) of
another person
Taking a property in front of the owner of the property is not liable for hadd

2) Mens rea
The offender must have committed theft with his free will and not in a state of compulsion or
dire necessity
The intention of the thief must be established to take possession of the stolen property and can
be construed from the character and behavior of the person.
Taking of property due to threat, fraud or inducement is not liable for hadd

3) Legal elements

a. Property
The stolen property must be a movable property money, households, documents, negotiable
instrument etc. hence, fixed property such as land cannot be regarded as stolen property
In order to be liable for hadd, the stolen property must have some value and lawful in the eyes
of Islam. Hence if the property is prohibited in Islam such as liquor and swine, the person shall
not be liable for hadd
The stolen property must be of a prescribed value (nisab) or more if the nisab cannot be met,
no had, only tazir
 According to Hanafis the value should not be less than 10 dirhams (1 dirham is approximately
2.975 gram of silver)
According to majority should not be less than three dirhams or dinar (1 dinar is approximately
4.25 gram of gold).
Authority:
o Hadith The hand of a thief shall not be cut off except for one-fourth of a dinar and
upwards
o Hadith Ibn Umar reported that the Prophet cut off the hand of a theif for a shield,
price of which was three dirhams

b. Ownership
The offender must not have any direct or indirect ownership in the stolen property and it
must be owned by an individual
A person will not be liable for had if he take his own property or a joint property
The stolen property must be taken without permission or consent of the owner.

c. Custody (hirz)
The property must be in custody of another person
The owner must have lawful custody of the stolen property, whether due to ownership, or
entrustment. hence, stealing from Baitulmal, will not be liable for hadd
If there is doubt in the custody, no hadd
Custody can be divided into two i) personal custody (hirz binnafs); or ii) custody by place (hirz
bihafiz)
Personal custody property is guarded by personal watch
Custody by place to keep the property in a place which is generally used for the keeping of
property eg house, shop etc.
The property must be kept in a place which is not open to any person to enter it without the
approval of the owner and the place must be safeguarded by the owner or his employee or
agents

d. Possession
The thief must have full and complete possession of the stolen property where the property
must be completely transferred from the custody of the original owner to the thief

4) Capacity
The person must be an adult person and sound mind

Proof of theft:

Confession
 Testimony of the witnesses

Punishment:

Al Quran (5:38) Amputation of hand or foot

For the 1st offence, the right hand will be amputated up to the wrist

2nd offence, the left foot up to the ankle is to be amputated

Subsequent offences different opinion

Hanafi should be tazir

Majority 3rd offence left hand, 4th offence Right foot (based on hadith: If he steals,
cut off his hand, if he steals again cut off his foot, if he steals again cut off his hand, and
if he steals again cut off his foot)

5) ROBBERY (HIRABAH)

Hirabah or robbery is one of heinous crime in Islam. The term is also interchangeably used with
Qatl al-tariq (Highway robbery) or al-sariqah al-kubra (the great theft)
Robbery is not merely offence against a person but it is regarded as an offence similar to waging
war against Allah

DEFINITION

- Literally: to fight, to quarrel

- To take away property from a person openly by using or threatening to use force.

- Maybe committed by one person or a group of persons.

- It is an exercise of a group of armed people or a single person who may attack travelers or wayfarers
on the highway or any other place depriving them of their property through the use of force in the
circumstances when the victims are away from receiving any immediate help

- Use of arms different opinions

- Malik & Shafie not necessary

- Abu Hanifah should be equipped with arms

- Scene of crime different opinions

- Abu Hanifah: Should be outside population
- Majority: regardless outside or inside general population
- Other perspective some jurists even consider rape as a form of hirabah considering the elements
of threatening force or violence to the honor and body of the victim Ibn Arabi

LEGALITY

Surah Al-Maidah 5.33. The recompense of those who fight against God and His Messenger, and hasten
about the earth causing disorder and corruption: they shall (according to the nature of their crime)
either be executed, or crucified, or have their hands and feet cut off alternately, or be banished from the
land. Such is their disgrace in the world, and for them is a mighty punishment in the Hereafter.

ELEMENTS

1. Actus reus

The act of taking away the property of another person by using force publicly

2. Mens rea

The offender must have committed theft with his free will and not in a state of compulsion or
dire necessity

3. Legal elements

The property must be in custody

The property must be of the value of nisab

The property must be valuable in the sight of Shariah,

The property must be owned by an individual

The offender has no right to the ownership or share in it

Punishment:

Laid down four punishments:

1. Death

All the jurists agreed that whenever a robber kills with the intention to rob and takes away the
property, he shall be killed or died crucified
 If he only kills without able to take the property, he shall only be liable for death punishment but
not crucified

2. Cruxification,

3. Amputation of hand and foot from opposite sides

If he takes away the property through the use of force but does not kill, his hand and leg must
be cut off on opposite sides

4. Banishment

If the person frightens the victim with the intention to rob and does not take the property or kill
anyone shall be banish

- The jurists agreed that the punishment shall be applicable to women offender, except the
banishment