Rulings Governing Criminal Actions (3/7)
Abu`l Hasan al-Mawardi
Fornication is established in one of two ways: either by confession or by proof:
i. as for confession, if the person is adult and of sane mind, and confesses once of his own accord, then the hadd is imposed - although Abu Hanifah says that he is not punished until he has confessed four times; if the hadd-punishment becomes obligatory by his confession, and then he withdraws it before the whipping, the hadd is annulled - although Abu Hanifah says that the hadd is not annulled by his withdrawing it.
ii. as for proof, this is that four just men bear witness to his having committed fornication, there being no women amongst them, and they declare that they saw his penis entering the vagina, just as the bodkin enters the eye-black bottle; if they have not seen this according to this description then it is not treated as a testimony; if they do bear testimony in this manner, be it at the same time as each other or separately, then their testimony is accepted. Abu Hanifah and Malik, however, both say that: "I do not accept it if it is made separately, and then I treat them as slanderers." If they bear witness to fornication after a year or more, their testimony is heard - although Abu Hanifah says: "I do not listen to it after a year, and then I treat them as slanderers." If there are less than four witnesses, then they are treated as slanderers, according to one opinion, and are given the hadd-punishment, although according to a second, they are not. If people have witnessed his confession to fornication, then it is permissible to accept only two witnesses according to one of two opinions" although according to another, it is not permitted to accept less than four.
If a person's fornication has been proved, then a hole is dug so that when he is put in, it comes up half way and prevents rum from escaping; if he does escape, he is pursued and stoned until he dies; if he is stoned on his own confession, a hole is not dug for him and if he then escapes, he is not pursued.
The Imam or the governor who has made the decision to stone the person is permitted to attend the stoning; they may also not attend; Abu Hanifah, however, says that it is not permitted to stone someone unless the person who pronounced the sentence of stoning attends. The Prophet, may the peace and blessings of Allah be upon rum, said: "O Unays, bring the woman to me tomorrow morning, and if she confesses, then stone her." It is permitted for the witnesses not to attend the stoning, although Abu Hanifah says that they must attend, and that they must be the first to start the stoning. The pregnant person is not given the hadd-punishment until after she has given birth, and then only after there is someone to suckle her child.
If the accused offers a reasonable excuse for the fornication, such as that it was a legally imperfect marriage, or that he had mistakenly thought her to be his own wife, or that he was unaware that fornication was forbidden as he had only recently entered Islam, then he is spared the hadd. The Prophet, may the peace and blessings of Allah be upon him, said: "Spare the imposition of the hadd-punishments if there are likely excuses." Abu Hanifah says that if he mistakenly took the other woman for his wife, this is not a likely excuse, and the person responsible is given the hadd. If he marries someone of his close family, with whom marriage is forbidden, and has intercourse with her, then the hadd is also applied, because this type of marriage - given that it has been forbidden expressly in a (Qur'anic) text - does not represent an excuse sufficient to ward off the hadd; Abu Hanifah does, however, con* sider that it is sufficient excuse, and that the hadd-punishment is not to be applied. If the fornicator turns in tawbah after he has been apprehended, the hadd is not annulled, whereas if he turns in tawbah before he is apprehended, the hadd is annulled according to the clearest of two opinions: Allah ta'ala says: "So surely your Lord is Merciful and Forgiving towards those who do evil whilst ignorant and then turn in tawbah after that and then perform good actions" (Qur'an, Surah An-Nahl, 16: 119). There are two interpretations of "whilst ignorant", the first, that they were ignorant of the evil, and the second, that they were overwhelmed by lust, although aware that it was evil, and tills is the more obvious of the two interpretations: since anyone who is unaware that it is evil has not committed a crime.
It is not permitted for anyone to mediate in order to have the hadd annulled for a fornicator or any other - just as it is not permitted for the person for whom mediation is made to intercede on ills own behalf: Allah ta'ala says: "Whoever intercedes with a good intercession, then he will have a portion of it, and whoever intercedes with an evil intercession, then he will have the *****alent of it" (Qur'an, Surah An-Nisa’, 4: 85). There are three interpretations of "good" and "evil": the first, is to ask for good for the person for whom one is interceding, or to ask for evil for him, and tills is the opinion of al-Hasan and al-Mujahid; the second, is that the "good" is a prayer for the men and women believers, and the "evil" is a supplication against them; the third, and this is likely, is that the "good" is to deliver them from injustice, and the "evil" is to exempt them from the law. As for "*****alent", there are two interpretations: the first, is that it will be *****alent to the crime, according to al-Hasan; and the second, is that it will be a portion (of the evil) and this is the opinion of as-Suddi.
B. Concerning cutting off the hand for theft: if an adult, sane person steals an article of property kept in a safe place, whose value is of a specific minimum amount, and there is no doubt concerning tills article or concerning the place of safekeeping, then his right hand is cut off at the wrist; if he steals again after having had ills hand cut off, be it the same article from its place of safekeeping, or another article, then his left foot is amputated at the ankle; if he steals again, then according to Abu Hanifah, there is no further amputation, while according to ash-Shafi'i, the left hand is cut off, and if he commits it a fourth time, then the right foot; if he steals a fifth time, he is given a discretionary punishment, but is not put to death. If he steals several times before any amputation, then this entails only one amputation.
The fuqaha differ as to the minimum value of the article stolen which would lead to amputation of the hand: ash-Shafi'i is of the opinion that its value should amount to at least a quarter of a dinar of the good type mostly in circulation; Abu Hanifah says that the amount is ten dirhams or a dinar and no amputation is made if it is less than this; Ibrahim an-Nakha'i sets the amount at forty dirhams or four dinars, while Ibn Abi Layla sets it at five dirhams, and Malik at three dirhams; Dawud, however, says that amputation ensues, be the amount large or small.
The fuqaha differ as to the kind of property which, if stolen, results in amputation: ash-Shafi'i considers that amputation ensues regarding any property which it is forbidden to steal; Abu Hanifah says that there is no amputation if the thing in question is essentially common to all, like game, wood, and grass; according to ash-Shafi'i, however, there is amputation when these things have become the property of someone; Abu Hanifah says that there is no amputation with respect to fresh food, while according to ash-Shafi'i there is; Abu Hanifah says that there is no amputation when someone steals a copy of the Qur'an, while for ash-Shafi'i there is; Abu Hanifah says that there is no amputation for someone who steals the candles from a mosque, or the covering of the Ka'bah, while for ash-Shafi'i there is; if a slave who is underage and who has not attained to full intellect, or a non-Arab who does not understand, is stolen, then amputation ensues, but for Abu Hanifah it does not; if a young child is stolen, there is no amputation, but for Malik there is.
There is a difference among the fuqaha regarding what constitutes safekeeping. Dawud is at odds with the rest in that he does not take the place of safekeeping into account, and says that amputation ensues irrespective of whether the ****** was in a place of safekeeping or not; the majority, however, do consider that amputation can only ensue if the thing was in a safe place, and that there is no amputation if it was not in such a place: it has been narrated of the Prophet, may the peace and blessings of Allah be upon him, that he said: "There is no amputation for taking horses unless they were safe in their corrals." Likewise, there is no amputation if someone borrows some* thing and then denies having borrowed it; Ahmad ibn Hanbal, however, says that amputation ensues.
Those who stipulate this condition of safekeeping differ as to its nature: Abu Hanifah considers that safekeeping is the same for all Objects, and treats the safekeeping of minor objects in the same way as major ones; for ash*Shafi'i, however, it varies in accordance with the various kinds of property and the customary practice regarding them: he thus deems the place of safe* keeping of little significance with regard to things of little value, like wood and kindling, but he is strict with regard to things of great value, like gold and silver: thus he does not consider the place of safekeeping for kindling to be on a par with that of gold and silver - so he would amputate the hand of someone stealing wood from such a place, but not if someone stole gold and silver from the same place. Someone who violates graves and steals the shrouds of the dead suffers amputation, as graves are customarily a place of safekeeping for these things, although not for other property; Abu Hanifah says that someone who violates graves does not suffer amputation, as nothing is kept in them other than these shrouds. If a man secures his baggage on a moving animal in the customary manner, and then someone steals some* thing from it whose value amounts to at least a quarter of a dinar; then his hand is amputated, because he has stolen from a place of safekeeping; if however, he steals both the animal and what is on it, then he does not suffer amputation, as he has stolen both the place of safekeeping and that which is being kept safe. If a person steals a beaker made of silver or gold, he suffers amputation - even though use of such a container is forbidden - as this article belongs to someone; this is irrespective of whether there is foodstuff in it or not, although Abu Hanifah says that if there is food or drink or water in the stolen container, then he does not suffer amputation; if however, he empties it of the food or drink and then steals it, his hand is amputated.
If two persons participate in violating a place of safekeeping, but just one of them takes some article of property, then only the one who took the thing suffers amputation, and not the other who participated in the violation of the place of safekeeping; if two persons act together, and one of them breaks into a place of safekeeping but does not take anything, and the other person does, but has not broken into the place, then neither of them suffers amputation; it is concerning circumstances such as these that ash-Shafi'i said: "The clever thief does not suffer amputation."
If someone enters a place of safekeeping and destroys the property, he is held liable but does not suffer amputation. If a thief suffers amputation and the article in question still exists, then it is returned to its owner; if the thief then returns after having had his hand amputated and steals it again after it has been put in a place of safekeeping, he suffers further amputation - although Abu Hanifah says that there is no further amputation for a theft of the same thing twice.
If the thief destroys what he has stolen, then suffers amputation, he is held liable for it; Abu Hanifah says that if he suffers amputation, then he does not have to pay back its value, and that if he does pay, then he does not suffer amputation. Even if the thing stolen is (subsequently) given to him, he still suffers amputation - although Abu Hanifah says that he does not.
If the owner of the property pardons the thief, the amputation is not annulled: when Safwan ibn Umayyah pardoned the person who had stolen his cloak, the Messenger of Allah said, may the peace and blessings of Allah be upon him, "Allah would not pardon me if I were to pardon," and he ordered his hand to be amputated. It is narrated that Mu'awiyyah had thieves brought to him and he had their hands amputated one by one, until only one of them was left, and as he was about to suffer amputation, he said: “My right hand, O Amir of the Believers, I seek refuge for it by your pardon from this punishment which will cut if oft: my hand will be Beauty itself if its covering is whole, so do not bring imperfection to this Beauty and so deform it: there would be no good left in this world, and it would be ugly if the right hand was parted from the left.”
Then Mu'awiyyah said: "What should I do with you, seeing as I have cut off the hands of your companions?" Then the mother of the thief said: "Make what you are doing (by pardoning my son) just one of the wrong actions for which you will turn to Allah in tawbah", so he let him go, this being the first time that the hadd-punishment had been abandoned in Islam.
Men, women, the free and slaves, Muslims and non-Muslims are all subject to amputation, but not children or anyone who steals when he has lost his senses; nor is the slave who steals from his master subject to amputation nor a father who steals from the property of his son, although Dawud says that both suffer amputation.
(Continued)