Malik related to me from Nafi that Abdullah ibn Umar
said, "The Jews came to the Messenger of Allah, may Allah
bless him and grant him peace, and mentioned to him that a
man and woman from among them had committed adultery. The
Messenger of Allah, may Allah bless him and grant him
peace, asked them, 'What do you find in the Torah about
stoning?' They said, 'We make their wrong action known and
flog them.' Abdullah ibn Salam said, 'You have lied! It
has stoning for it, so bring the Torah.' They spread it
out and one of them placed his hand over the ayat of
stoning. Then he read what was before it and what was
after it. Abdullah ibn Salam told him to lift his hand. He
lifted his hand and there was the ayat of stoning. They
said, 'He has spoken the truth, Muhammad. The ayat of
stoning is in it.' So the Messenger of Allah, may Allah
bless him and grant him peace, gave the order and they
were stoned . "
Abdullah ibn Umar added, "I saw the man leaning over
the woman to protect her from the stones."
Malik commented, "By leaning he meant throwing himself
over her so that the stones fell on him."
Malik related to me from Yahya ibn Said from Said ibn
al-Musayyab that a man from the Aslam tribe came to Abu
Bakr as-Siddiq and said to him, "I have committed
adultery." Abu Bakr said to him, "Have you mentioned this
to anyone else?" He said, "No." Abu Bakr said to him,
"Then cover it up with the veil of Allah. Allah accepts
tawba from his slaves." His self was still unsettled, so
he went to Umar ibn al-Khattab. He told him the same as he
had said to Abu Bakr, and Umar told him the same as Abu
Bakr had said to him. His self was still not settled so he
went to the Messenger of Allah, may Allah bless him and
grant him peace, and said to him, "I have committed
adultery," insistently. The Messenger of Allah, may Allah
bless him and grant him peace, turned away from him three
times. Each time the Messenger of Allah, may Allah bless
him and grant him peace, turned away from him until it
became too much. The Messenger of Allah, may Allah bless
him and grant him peace, questioned his family, "Does he
have an illness which affects his mind, or is he mad?"
They said, "Messenger of Allah, by Allah, he is well." The
Messenger of Allah, may Allah bless him and grant him
peace, said, "Unmarried or married?" They said, "Married,
Messenger of Allah." The Messenger of Allah, may Allah
bless him and grant him peace, gave the order and he was
stoned.
Malik related to me from Yahya ibn Said that Said ibn
al-Musayyab said, "I have heard that the Messenger of
Allah, may Allah bless him and grant him peace, said to a
man from the Aslam tribe called Hazzal, 'Hazzal, had you
veiled him with your cloak, it would have been better for
you.' "
Yahya ibn Said said, "I related this hadith in an
assembly among whom was Yazid ibn Nuaym ibn Hazzal al-Aslami.
Yazid said, 'Hazzal was my grandfather. This hadith is
true.' "
Malik related to me that Ibn Shihab informed him that a
man confessed that he had committed adultery in the time
of the Messenger of Allah, may Allah bless him and grant
him peace, and he testified against himself four times, so
the Messenger of Allah, may Allah bless him and grant him
peace, gave the order and he was stoned.
Ibn Shihab said, "Because of this a man is to be taken
for his own confession against himself."
Malik related to me from Yaqub ibn Zayd ibn Talha from
his father Zayd ibn Talha that Abdullah ibn Abi Mulayka
informed him that a woman came to the Messenger of Allah,
may Allah bless him and grant him peace, and informed him
that she had committed adultery and was pregnant. The
Messenger of Allah, may Allah bless him and grant him
peace, said to her, "Go away until you give birth." When
she had given birth, she came to him. The Messenger of
Allah, may Allah bless him and grant him peace, said to
her, "Go away until you have suckled and weaned the baby."
When she had weaned the baby, she came to him. He said,
"Go and entrust the baby to someone." She entrusted the
baby to someone and then came to him. He gave the order
and she was stoned.
Malik related to me from Ibn Shihab from Ubaydullah ibn
Abdullah ibn Utba ibn Masud that Abu Hurayra and Zayd ibn
Khalid al-Juhani informed him that two men brought a
dispute to the Messenger of Allah, may Allah bless him and
grant him peace. One of them said, "Messenger of Allah!
Judge between us by the Book of Allah!" The other said,
and he was the wiser of the two, "Yes, Messenger of Allah.
Judge between us by the Book of Allah and give me
permission to speak." He said, "Speak." He said, "My son
was hired by this person and he committed fornication with
his wife. He told me that my son deserved stoning, and I
ransomed him for one hundred sheep and a slave-girl. Then
I asked the people of knowledge and they told me that my
son deserved to be flogged with one hundred lashes and
exiled for a year, and they informed me that the woman
deserved to be stoned." The Messenger of Allah, may Allah
bless him and grant him peace, said, "By him in whose Hand
myself is, I will judge between you by the Book of Allah.
As for your sheep and slave girl, they should be returned
to you. Your son should have one hundred lashes and be
exiled for a year." He ordered Unays al-Aslami to go to
the wife of the other man and to stone her if she
confessed . She confessed and he stoned her.
Malik related to me from Suhayl ibn Abi Salih from his
father from Abu Hurayra that Sad ibn Ubada said to the
Messenger of Allah, may Allah bless him and grant him
peace, "What do you think I should do if I were to find a
man with my wife? Should I leave him there until I had
brought four witnesses?" The Messenger of Allah, may Allah
bless him and grant him peace, said, "Yes."
Malik related to me from Ibn Shihab from Ubaydullah ibn
Abdullah ibn Utba ibn Masud that Abdullah ibn Abbas said,
"I heard Umar ibn al-Khattab say, 'Stoning is in the Book
of Allah for those who commit adultery, men or women when
they are muhsan and when there is clear proof of pregnancy
or a confession.' "
Malik related to me from Yahya ibn Said from Sulayman
ibn Yasar from Abu Waqid al-Laythi that a man came to Umar
ibn al-Khattab while he was in ash-Sham . He mentioned to
him that he had found a man with his wife Umar sent Abu
Waqid al-Laythi to the wife to question her about that. He
came to her while there were women around her and
mentioned to her what her husband had mentioned to Umar
ibn al-Khattab, and informed her that she would not be
punished on his word and began to suggest to her by that,
that she should retract. She refused to retract and held
firm to confession. Umar gave the order and she was
stoned.
Malik related to me that Yahya ibn Said heard Said ibn
al-Musayyab say, "When Umar ibn al-Khattab came from Mina,
he made his camel kneel at al-Abtah, and then he gathered
a pile of small stones and cast his cloak over them and
dropped to the ground. Then he raised his hands to the sky
and said, 'O Allah! I have become old and my strength has
weakened. My flock is scattered. Take me to You with
nothing missed out and without having neglected anything.'
Then he went to Madina and addressed the people. He said,
'People! Sunan have been laid down for you. Obligations
have been placed upon you. You have been left with a clear
way unless you lead people astray right and left.' He
struck one of his hands on the other and then said, 'Take
care lest you destroy the ayat of stoning so that one will
say, "We do not find two hadds in the Book of Allah." The
Messenger of Allah, may Allah bless him and grant him
peace, stoned, so we have stoned. By He in Whose Hand my
self is, had it not been that people would say that Umar
ibn al-Khattab has added to the Book of Allah ta-ala, we
would have written it, "The full-grown man and the
full-grown woman, stone them absolutely." We have
certainly recited that.'"
Malik said, "Yahya ibn Said said Said ibn al-Musayyab
said, 'Dhu'l-Hijja had not passed before Umar was
murdered, may Allah have mercy on him.' "
Yahya said that he had heard Malik say, "As for his
words 'The full-grown man and the full-grown woman' he
meant, 'The man and the woman who have been married, stone
them absolutely.' "
Malik related to me that he had heard that Uthman ibn
Affan was brought a woman who had given birth after six
months and he ordered her to be stoned. Ali ibn Abi Talib
said to him, "She does not deserve that. Allah, the
Blessed, the Exalted, says in His Book, 'Their carrying
and weaning is thirty months,' (Sura 46 ayat 15) and he
said, 'Mothers suckle their children for two full years
for whoever wishes to complete the suckling.' (Sura 2 ayat
233) Pregnancy can then be six months, so she does not
deserve to be stoned." Uthman ibn Affan sent for her and
found that she had already been stoned.
Malik related to me that he asked Ibn Shihab about
someone who committed sodomy. Ibn Shihab said, "He is to
be stoned, whether or not he is muhsan."
Malik related to me from Zayd ibn Aslam that a man
confessed to fornication in the time of the Messenger of
Allah, may Allah bless him and grant him peace. The
Messenger of Allah, may Allah bless him and grant him
peace, called for a whip, and he was brought a broken
whip. He said, "Above this," and he was brought a new whip
whose knots had not been cut yet. He said, "Below this,"
and he was brought a whip which had been used and made
flexible. The Messenger of Allah, may Allah bless him and
grant him peace, gave the order and he was flogged. Then
he said, "People! The time has come for you to observe the
limits of Allah. Whoever has had any of these ugly things
befall him should cover them up with the veil of Allah.
Whoever reveals to us his wrong action, we perform what is
in the Book of Allah against him."
Malik related to me from Nafi that Safiyya bint Abi
Ubayd informed him that a man who had had intercourse with
a virgin slave-girl and made her pregnant was brought to
Abu Bakr as-Siddiq. He confessed to fornication, and he
was not muhsan. Abu Bakr gave the order and he was flogged
with the hadd punishment. Then he was banished to Fadak,
(thirty miles from Madina).
Malik spoke about a person who confessed to fornication
and then retracted it and said, "I didn't do it. I said
that for such-and-such a reason," and he mentioned the
reason. Malik said, "That is accepted from him and the
hadd is not imposed on him. That is because the hadd is
what is for Allah, and it is only applied by one of two
means, either by a clear proof which establishes guilt or
by a confession which is persisted in so that the hadd is
imposed. If someone persists in his confession, the hadd
is imposed on him."
Malik said, "I have not seen the people of knowledge
exiling slaves who have committed adultery."
Malik related to me from Ibn Shihab from Ubaydullah ibn
Abdullah ibn Utba ibn Masud from Abu Hurayra and Zayd ibn
Khalid al-Juhani that the Messenger of Allah, may Allah
bless him and grant him peace, was asked about a
slave-girl who committed fornication and was not muhsana.
He said, "If she commits fornication, then flog her. If
she commits fornication again, then flog her, and if she
commits fornication again, then sell her, if only for a
rope."
Ibn Shihab added, "I don't know whether it was three or
four times."
Malik related to me from Nafi that a slave was in
charge of the slaves in the khumus and he forced a
slave-girl among those slaves against her will and had
intercourse with her. Umar ibn al-Khattab had him flogged
and banished him, and he did not flog the slave-girl
because the slave had forced her.
Malik related to me from Yahya ibn Said that Sulayman
ibn Yasar informed him that Abdullah ibn Abbas ibn Abi
Rabia al-Makhzumi said, "Umar ibn al-Khattab gave me
orders about the slaves of Quraysh and we flogged some of
the slave-girls of the muslim lands fifty times each for
fornication."
Malik said, "The position with us about a woman who is
found to be pregnant and has no husband and she says, 'I
was forced,' or she says, 'I was married,' is that it is
not accepted from her and the hadd is inflicted on her
unless she has a clear proof of what she claims about the
marriage or that she was forced or she comes bleeding if
she was a virgin or she calls out for help so that someone
comes to her and she is in that state or what resembles it
of the situation in which the violation occurred." He
said, "If she does not produce any of those, the hadd is
inflicted on her and what she claims of that is not
accepted from her."
Malik said, "A raped woman cannot marry until she has
restored herself by three menstrual periods."
He said, "If she doubts her periods, she does not marry
until she has freed herself of that doubt."
Section: The Hadd for Slander, Denial and Insinuation
Malik related to me from Abu'z-Zinad that he said, ''Umar
ibn Abd al-Aziz flogged a slave with eighty lashes for
slander."
Abu'z-Zinad said, "I asked Abdullah ibn Amir ibn Rabia
about that. He said, 'I saw Umar ibn al-Khattab, Uthman
ibn Affan, the Khalifs, and so on, and I did not see any
of them flog a slave more than forty lashes for slander.'
"
Malik related to me from Zurayq ibn Hakim al-Ayli that
a man called Misbah asked his son for help and he thought
him unnecessarily slow. When the son came, his father said
to him, "O fornicator." Zurayq said, "So the son asked me
to help him against the father. When I wanted to flog him,
his son said, 'By Allah, if you flog him, I will
acknowledge that I have committed fornication.' When he
said that, the situation was confused for me, so I wrote
about it to Umar ibn Abd al-Aziz who was the governor at
that time, and I mentioned it to him. Umar wrote me to
permit his pardon."
Zurayq said, "I wrote to Umar ibn Abd al-Aziz also,
'What do you think about a man who is slandered or his
parents are slandered and both or only one of them are
dead?' He said, Umar wrote to me, 'If he forgives, his
pardon is permitted for himself. If his parents are
slandered and one or both of them are dead, take the
judgement of the Book of Allah for it unless he wants to
veil it.' "
Yahya said, "I heard Malik say, 'That is because the
slandered man might fear that if that is unveiled about
him, a clear proof might be established. If it is
according to what we have described, his pardon is
permitted."
Malik related to me from Hisham ibn Urwa that his
father said that there was only one hadd against a man who
slandered a group of people.
Malik said, "If they are on separate occasions there is
still only one hadd against him."
Malik related to me from Abu'r-Rijal Muhammad ibn Abd
ar-Rahman ibn Haritha ibn an-Numan al-Ansari, then from
the Banu'n-Najar from his mother Amra bint Abd ar-Rahman
that two men cursed each other in the time of Umar ibn al-Khattab.
One of them said to the other, " By Allah, my father is
not an adulterer and my mother is not an adulteress." Umar
ibn al-Khattab asked advice about that. One person said,
"He has praised his father and mother." Another said, "His
father and mother have praise other than this. We think
that he is to be flogged with the hadd." So Umar flogged
him with the hadd of eighty lashes.
Malik said, "There is no hadd in our view except for
slander, denial or insinuation, in which one sees that the
speaker intends by that denial or slander. Then the hadd
is completely imposed on the one who said it."
Malik said, "What is done in our community when a man
denies that another man is from his father, is that he
deserves the hadd. If the mother who is denied is a slave,
then he deserves the hadd as well. '
Malik said, "The best of what is heard about a
slave-girl whom a man has intercourse with while he has a
partner in her is that the hadd is not inflicted on him
and the child is connected to him. When the slave-girl
becomes pregnant, her value is estimated and he gives his
partners their shares of the price and the slave-girl is
his. That is what is done among us."
Malik said about a man who made his slave-girl halal to
a man that if the one for whom she was made halal had
intercourse with her, her value was estimated on the day
he had intercourse with her and he owed that to her owner
whether or not she conceived. The hadd was averted from
him by that. If she conceived the child was connected to
him.
Malik said about a man who had intercourse with his
son's or daughter's slave-girl, "The hadd is averted from
him and he owes the estimated value of the slave-girl
whether or not she conceives."
Malik related to me from Rabia ibn Abi Abd ar-Rahman
that Umar ibn al-Khattab spoke about a man who went out
with his wife's slave-girl on a journey and had
intercourse with her and then the wife became jealous and
mentioned that to Umar ibn al-Khattab. Umar questioned him
about it. He said, "She gave her to me." Umar said, "Bring
me a clear proof or I will stone you." Rabia added, "The
wife confessed that she had given her to him."
Malik related to me from Nafi from Abdullah ibn Umar
that the Messenger of Allah, may Allah bless him and grant
him peace, cut off the hand of a man who stole a shield
whose price was three dirhams.
Yahya related to me from Malik from Abdullah ibn Abd
ar-Rahman abu Husayn al-Makki that the Messenger of Allah,
may Allah bless him and grant him peace, said, "The hand
is not cut off for fruit hanging on the tree and for sheep
kept in the mountains. So when they are taken from the
fold or the place where the fruit is dried, a hand is cut
off for whatever reaches the price of a shield."
Yahya related to me from Malik from Abdullah ibn Abi
Bakr from his father from Amra bint Abd ar-Rahman that a
thief stole a citron in the time of Uthman Uthman ibn
Affan ordered its value to be estimated and it was
estimated at three dirhams at the rate of exchange of
twelve dirhams for the dinar, so Uthman cut off his hand.
Yahya related to me from Malik from Yahya ibn Said from
Amra bint Abd ar-Rahman that A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, said,
"It has not been a long time for me and I have not
forgotten. A thief's hand is cut off for a quarter of a
dinar and upwards."
Yahya related to me from Malik from Abdullah ibn Abi
Bakr ibn Hazim that Amra bint Abd ar-Rahman said, "A'isha,
the wife of the Prophet, may Allah bless him and grant him
peace, went out to Makka and she had two girl mawlas of
hers and a slave belonging to the sons of Abdullah ibn Abi
Bakr as-Siddiq . She sent a figured cloak with the two
mawlas which was sewn up in a piece of green cloth."
Amra continued, "The slave took it and unstitched it
and took out the cloak. In its place, he put some felt or
skin and sewed it up again. When the mawla girls came to
Madina, they gave it to his people. When they opened it,
they found felt in it and did not find the cloak. They
spoke to the two women and they spoke to A'isha, the wife
of the Prophet, may Allah bless him and grant him peace,
or they wrote to her and suspected the slave. The slave
was asked about it and confessed. A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, gave the
order and his hand was cut off. A'isha said, 'A thief's
hand is cut off for a quarter of a dinar and upwards.' "
Malik said, "The limit I prefer above which cutting off
the hand is obliged is three dirhams, whether the exchange
is high or low. That is because the Messenger of Allah,
may Allah bless him and grant him peace, cut off the hand
of a thief for a shield whose value was three dirhams, and
Uthman ibn Affan cut off the hand of a thief for a citron
which was estimated at three dirhams. This is what I
prefer of what I have heard on the matter."
Section: Cutting Off the Hands of Runaway Slaves Who
Steal
Yahya related to me from Malik from Nafi that a slave
of Abdullah ibn Umar stole while he was a runaway.
Abdullah ibn Umar sent him to Said ibn al-As, who was the
amir of Madina, to cut off his hand. Said refused to cut
off his hand. He said, "The hand of a runaway slave is not
cut off when he steals." Abdullah ibn Umar said to him,
"In what Book of Allah did you find this?" Then Abdullah
ibn Umar gave the order, and his hand was cut off.
Yahya related to me from Malik that Zurayq ibn Hakim
informed him that he had a runaway slave who had stolen.
He said, "The situation was obscure for me, so I wrote to
Umar ibn Abd al-Aziz to ask him about it. He was the
governor at that time. I informed him that I had heard
that if a runaway slave stole while he was a fugitive, his
hand was not cut off. 'Umar ibn Abd al-Aziz wrote to
contradict my letter, 'You wrote to me that you have heard
that when the runaway slave steals, his hand is not cut
off. Allah, the Blessed, the Exalted, says in His Book,
'The thief, male and female, cut off the hands of both, as
a recompense for what they have earned, and an exemplary
punishment from Allah. Allah is Mighty, Wise.' (Sura 5
ayat 41) When his theft reaches a quarter of a dinar, and
upwards, his hand is cut off.' "
Yahya related to me from Malik that he had heard that
al-Qasim ibn Muhammad and Salim ibn Abdullah and Urwa ibn
az-Zubayr said, "When a runaway slave steals something for
which cutting off the hand is obliged, his hand is cut
off."
Malik said, "The way of doing things amongst us about
which there is no dispute is that when the runaway slave
steals that for which cutting off the hand is obliged, his
hand is cut off."
Section: Intercession Cut Off for Thieves when Cases
Reach the Sultan
Yahya related to me from Malik from Ibn Shihab from
Safwan ibn Abdullah ibn Safwan that it was said to Safwan
ibn Umayya, "Whoever does not do hijra is ruined." So
Safwan ibn Umayya went to Madina and slept in the mosque
with his cloak as a pillow. A thief came and took his
cloak and Safwan grabbed hold of the thief and brought him
to the Messenger of Allah, may Allah bless him and grant
him peace. The Messenger of Allah, may Allah bless him and
grant him peace, said to him, "Did you steal this cloak?"
He said, "Yes." So the Messenger of Allah, may Allah bless
him and grant him peace, ordered that his hand be cut off.
Safwan said to him, "I did not intend this. It is his as
sadaqa." The Messenger of Allah, may Allah bless him and
grant him peace, said, "Why didn't you do it before
bringing him to me?"
Yahya related to me from Malik from Rabia ibn Abi Abd
ar-Rahman that az-Zubayr ibn al-Awwam came across a man
who had taken hold of a thief and was intending to take
him to the Sultan. Az-Zubayr ibn al-Awwam interceded for
him to let him go. He said, "No. Not until I take him to
the Sultan." Az-Zubayr said, "When you reach the Sultan
with him, Allah curses the one who intercedes and the one
who accepts the intercession."
Yahya related to me from Malik from Abd ar-Rahman ibn
al-Qasim from his father that a man from Yemen who had his
hand and foot cut off came and went before Abu Bakr as-Siddiq
and complained to him that the governor of the Yemen had
wronged him, and the man used to pray part of the night.
Abu Bakr said, "By your father, your night is not the
night of a thief." Then they missed a necklace of Asma
bint Umays, the wife of Abu Bakr as-Siddiq. The man came
to go around with them looking for it. He said, "O Allah!
You are responsible for the one who invaded the people of
this good house by night!" They found the jewelry with a
goldsmith. He claimed that the maimed man had brought it
to him. The maimed man confessed or it was testified
against him. Abu Bakr as-Siddiq ordered that his left hand
be cut off. Abu Bakr said, "By Allah! His dua against
himself is more serious, as far as I am concerned, than
his theft."
Yahya said that Malik said, "What is done among us
about the person who steals several times and is then
called to reckoning, is that only his hand is cut off for
all he stole when the hadd has not been applied againsthim.
If the hadd has been applied against him before that, and
he steals what obliges cutting off, then the next limb is
cut off."
Yahya related to me from Malik that Abu'z-Zinad
informed him that a governor of Umar ibn Abd al-Aziz took
some people in battle and had not killed any of them. He
wanted to cut off their hands or kill them, so he wrote to
Umar ibn Abd al-Aziz about that Umar ibn Abd al-Aziz wrote
to him, "Better to take less than that."
Yahya said that he heard Malik say, "What is done among
us about a person who steals the goods of people which are
placed under guard in the markets, and their owners put
them in their containers and store them together is that
if anyone steals any of that from where it is kept, and
its value reaches that for which cutting off the hand is
obliged, his hand must be cut off, whether or not the
owner of the goods is with his goods and whether it is
night or day."
Malik said about some one who stole something for which
cutting off the hand was obliged and then what he stole
was found with him and he returned it to its owner, "His
hand is cut off."
Malik said, "If someon says, 'How can his hand be cut
off when the goods have been taken from him and returned
to their owner?', it is because he is in the same position
as the wine drinker when the smell of the wine is found on
his breath and he is not drunk. He is flogged with the
hadd.
"The hadd is imposed for drinking wine even if it does
not make the man intoxicated. That is because he drank it
to become intoxicated. It is the same as that with cutting
off the hand of the thief for theft when it is taken from
him, even if he has not profited from it and it was
returned to its owner. When he stole it, he stole it to
take it away."
Malik said that if some people came to a house and
robbed it together, and then they left with a sack or box
or a board or basket or the like of that which they
carried together, and when they took it out of its guarded
place, they carried it together, and the price of what
they took reached that for which cutting off the hand was
obliged, and that was three dirhams and upwards, each of
them had his hand cut off.
"If each of them takes out something by himself,
whoever of them takes out something whose value reaches
three dirhams and upwards must have his hand cut off. If
any of them takes out something whose value does not reach
three dirhams, he does not have his hand cut off."
Yahya said that Malik said, "What is done among us is
that when a man's house is locked and he is the only one
living in it, cutting off the hand is not obliged against
the one who steals something from it until he takes it out
of the house completely. That is because all of the house
is a place of custody. If someone other than him lives in
the house and each of them locks his door, and it is a
place of custody for each of them, whoever steals anything
from the apartments of that house must have his hand cut
off when he leaves the apartment and goes into the main
house. He has removed it from its place of custody to
another place and he must have his hand cut off."
Malik said, "What is done in our community about a
slave who steals from the property of his master is that
if he is not in service and among those trusted in the
house and he enters secretly and steals from his master
something that for which cutting off the hand is obliged,
his hand is not cut off. It is like that with a slave-girl
when she steals from her master's property. Her hand is
not cut off."
Malik then spoke about a slave who was not in service
and not one of those trusted in the house, and he entered
secretly and stole from the property of his master's wife
that for which cutting off the hand was obliged. He said,
"His hand is cut off."
"It is like that with the wife's slave-girl when she
does not serve her or her husband nor is she trusted in
the house and she enters secretly and steals from her
mistress's property that for which cutting off the hand is
obliged. Her hand is not cut off."
"It is like that with the wife's slave-girl who is not
in her service and is not trusted in the house and she
enters secretly and steals from the property of her
mistress's husband something for which cutting off the
hand is obliged. Her hand is cut off."
It is like that with the man who steals from his wife's
goods or the wife who steals from her husband's goods
something for which cutting off the hand is obliged. If
the thing which one of them steals from his spouse's
property is in a room other than the room which they both
lock for themselves, or it is in a place of custody in a
room other than the room which they are in, whichever of
them steals something for which cutting off the hand is
obliged, their hand should be cut off."
Malik spoke about a small child and a foreigner who
does not speak clearly. He said, "If they are robbed of
something from its place of custody or from under a lock,
the one who stole it has his hand cut off. If the property
is outside of its place of custody or locked room(when it
is stolen), the one who robbed them does not have his hand
cut off. It is then in the position of sheep stolen from
the mountain and uncut fruit hanging on the trees "
Malik said, "What is done among us about a person who
robs graves is that if what he takes from the grave
reaches what cutting off the hand is obliged for, his hand
is cut off . That is because the grave is a place of
custody for what is in it just as houses are a place of
custody for what is in them. "
Malik added, "Cutting off the hand is not obliged for
him until he takes it out of the grave."
Yahya related to me from Malik from Yahya ibn Said from
Muhammad ibn Yahya ibn Habban that a slave stole a small
palm from a man's garden and planted it in the garden of
his master. The owner of the palm went out looking for the
palm and found it. He asked for help against the slave
from Marwan ibn al-Hakam. Marwan jailed the slave and
wanted to cut off his hand. The master of the slave rushed
off to Rafi ibn Khadij and asked him about it. Rafi
informed him that he heard the Messenger of Allah, may
Allah bless him and grant him peace, say, "The hand is not
cut off for fruit or palm pith." The man said, "Marwan ibn
al-Hakam has taken a slave of mine and wants to cut off
his hand. I would like you to go with me to him so you can
tell him what you heard from the Messenger of Allah, may
Allah bless him and grant him peace." So, Rafi went with
him to Marwan ibn al-Hakam. He said, "Did you arrest a
slave for this?" He said, "Yes." He said, "What will you
do with him?" He said, "I want to cut off his hand." Rafi
said to him, "I heard the Messenger of Allah, may Allah
bless him and grant him peace, say, 'The hand is not cut
off for dates or palm pith.' Marwan therefore ordered the
slave to be released."
Yahya related to me from Malik from Ibn Shihab from
as-Sa'ib ibn Yazid that Abdullah ibn Amr ibn al-Hadrami
brought a slave of his to Umar ibn al-Khattab and said to
him, "Cut off the hand of this slave of mine. He has
stolen." Umar said to him, "What did he steal?" He said,
"He stole a mirror belonging to my wife. Its value was
sixty dirhams." Umar said, "Let him go. His hand is not to
be cut off. He is your servant who has stolen your
belongings."
Yahya related to me from Malik from Ibn Shihab that
Marwan ibn al-Hakam was brought a man who had snatched
some goods and he wanted to cut off his hand. He sent to
Zayd ibn Thabit to ask him about it. Zayd ibn Thabit said
to him, "The hand is not cut off for what is stolen by
chance, openly, in haste."
Yahya related to me from Malik that Yahya ibn Said said
that Abu Bakr ibn Muhammad ibn Amr ibn Hazm informed him
that he had taken a Nabatean who had stolen some iron
rings and jailed him in order to cut off his hand. Amra
bint Abd ar-Rahman sent a girl mawla to him called Umayya.
Abu Bakr said that she had come to him while he was among
the people and said that his aunt Amra sent word to him
saying, "Son of my brother! You have taken a Nabatean for
something insignificant which was mentioned to me. Do you
want to cut off his hand?" He had said, "Yes." She said,
''Amra says to you not to cut off the hand except for a
quarter of a dinar and upwards."
Abu Bakr added, "So I let the Nabatean go."
Malik said, "The generally agreed on way of doing
things among us about the confession of slaves is that if
a slave confesses something against himself, the hadd and
punishment for it is inflicted on his body. His confession
is accepted from him and one does not suspect that he
would inflict something on himself."
Malik said, "As for the one of them who confesses to a
matter which will incur damages agains this master, his
confession is not accepted against his master."
Malik said, "One does not cut off the hand of a
hireling or a man who is with some people to serve them,
if he robs them, because his state is not the state of a
thief. His state is the state of a treacherous one. The
treacherous one does not have his hand cut off."
Malik said about a person who borrows something and
then denies it, "His hand is not cut off. He is like a man
who owes a debt to another man and denies it. He does not
have his hand cut off for what he has denied."
Malik said, "The generally agreed-on way of dealing
among us, with the thief who is found in a house and has
gathered up goods and has not taken them out, is that his
hand is not cut off. That is like the man who places wine
before him to drink it and does not do it. The hadd is not
imposed on him. That is like a man who sits with a woman
and desires to have haram intercourse with her and does
not do it and he does not reach her. There is no hadd
against that either."
Malik said, "The generally agreed-on way of doing
things among us is that there is no cutting off the hand
for what is taken by chance, openly and in haste, whether
or not its price reaches that for which the hand is cut
off."