Muwatta Imam Malik — Hudud

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

حدثني مالك، عن نافع، عن عبد الله بن عمر، ان رسول الله صلى الله عليه وسلم قطع في مجن ثمنه ثلاثة دراهم

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

وحدثني عن مالك، عن عبد الله بن عبد الرحمن بن ابي حسين المكي، ان رسول الله صلى الله عليه وسلم قال " لا قطع في ثمر معلق ولا في حريسة جبل " فاذا اواه المراح او الجرين فالقطع فيما يبلغ ثمن المجن

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

وحدثني عن مالك، عن عبد الله بن ابي بكر، عن ابيه، عن عمرة بنت عبد الرحمن، ان سارقا، سرق في زمان عثمان اترجة فامر بها عثمان بن عفان ان تقوم فقومت بثلاثة دراهم من صرف اثنى عشر درهما بدينار فقطع عثمان يده

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

وحدثني عن مالك، عن يحيى بن سعيد، عن عمرة بنت عبد الرحمن، عن عايشة، زوج النبي صلى الله عليه وسلم انها قالت ما طال على وما نسيت " القطع في ربع دينار فصاعدا

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

وحدثني عن مالك، عن عبد الله بن ابي بكر بن حزم، عن عمرة بنت عبد الرحمن، انها قالت خرجت عايشة زوج النبي صلى الله عليه وسلم الى مكة ومعها مولاتان لها ومعها غلام لبني عبد الله بن ابي بكر الصديق فبعثت مع المولاتين ببرد مرجل قد خيط عليه خرقة خضراء قالت فاخذ الغلام البرد ففتق عنه فاستخرجه وجعل مكانه لبدا او فروة وخاط عليه فلما قدمت المولاتان المدينة دفعتا ذلك الى اهله فلما فتقوا عنه وجدوا فيه اللبد ولم يجدوا البرد فكلموا المراتين فكلمتا عايشة زوج النبي صلى الله عليه وسلم او كتبتا اليها واتهمتا العبد فسيل العبد عن ذلك فاعترف فامرت به عايشة زوج النبي صلى الله عليه وسلم فقطعت يده وقالت عايشة القطع في ربع دينار فصاعدا

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

حدثني عن مالك، عن نافع، ان عبدا، لعبد الله بن عمر سرق وهو ابق فارسل به عبد الله بن عمر الى سعيد بن العاص - وهو امير المدينة - ليقطع يده فابى سعيد ان يقطع يده وقال لا تقطع يد الابق السارق اذا سرق . فقال له عبد الله بن عمر في اى كتاب الله وجدت هذا ثم امر به عبد الله بن عمر فقطعت يده

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

وحدثني عن مالك، عن زريق بن حكيم، انه اخبره انه، اخذ عبدا ابقا قد سرق قال فاشكل على امره - قال - فكتبت فيه الى عمر بن عبد العزيز اساله عن ذلك وهو الوالي يوميذ - قال - فاخبرته انني كنت اسمع ان العبد الابق اذا سرق وهو ابق لم تقطع يده - قال - فكتب الى عمر بن عبد العزيز نقيض كتابي يقول كتبت الى انك كنت تسمع ان العبد الابق اذا سرق لم تقطع يده وان الله تبارك وتعالى يقول في كتابه {والسارق والسارقة فاقطعوا ايديهما جزاء بما كسبا نكالا من الله والله عزيز حكيم} . فان بلغت سرقته ربع دينار فصاعدا فاقطع يده . وحدثني عن مالك، انه بلغه ان القاسم بن محمد، وسالم بن عبد الله، وعروة بن الزبير، كانوا يقولون اذا سرق العبد الابق ما يجب فيه القطع قطع . قال مالك وذلك الامر الذي لا اختلاف فيه عندنا ان العبد الابق اذا سرق ما يجب فيه القطع قطع

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?

وحدثني عن مالك، عن ابن شهاب، عن صفوان بن عبد الله بن صفوان، ان صفوان بن امية، قيل له انه من لم يهاجر هلك . فقدم صفوان بن امية المدينة فنام في المسجد وتوسد رداءه فجاء سارق فاخذ رداءه فاخذ صفوان السارق فجاء به الى رسول الله صلى الله عليه وسلم فقال له رسول الله صلى الله عليه وسلم " اسرقت رداء هذا " . قال نعم . فامر به رسول الله صلى الله عليه وسلم ان تقطع يده فقال له صفوان اني لم ارد هذا يا رسول الله هو عليه صدقة . فقال رسول الله صلى الله عليه وسلم " فهلا قبل ان تاتيني به

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

وحدثني عن مالك، عن ربيعة بن ابي عبد الرحمن، ان الزبير بن العوام، لقي رجلا قد اخذ سارقا وهو يريد ان يذهب به الى السلطان فشفع له الزبير ليرسله فقال لا حتى ابلغ به السلطان . فقال الزبير اذا بلغت به السلطان فلعن الله الشافع والمشفع

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

حدثني يحيى، عن مالك، عن عبد الرحمن بن القاسم، عن ابيه، ان رجلا، من اهل اليمن اقطع اليد والرجل قدم فنزل على ابي بكر الصديق فشكا اليه ان عامل اليمن قد ظلمه فكان يصلي من الليل فيقول ابو بكر وابيك ما ليلك بليل سارق . ثم انهم فقدوا عقدا لاسماء بنت عميس امراة ابي بكر الصديق فجعل الرجل يطوف معهم ويقول اللهم عليك بمن بيت اهل هذا البيت الصالح . فوجدوا الحلي عند صايغ زعم ان الاقطع جاءه به فاعترف به الاقطع او شهد عليه به فامر به ابو بكر الصديق فقطعت يده اليسرى وقال ابو بكر والله لدعاوه على نفسه اشد عندي عليه من سرقته . قال يحيى قال مالك الامر عندنا في الذي يسرق مرارا ثم يستعدى عليه انه ليس عليه الا ان تقطع يده لجميع من سرق منه اذا لم يكن اقيم عليه الحد فان كان قد اقيم عليه الحد قبل ذلك ثم سرق ما يجب فيه القطع قطع ايضا

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

وحدثني يحيى، عن مالك، عن يحيى بن سعيد، عن محمد بن يحيى بن حبان، ان عبدا، سرق وديا من حايط رجل فغرسه في حايط سيده فخرج صاحب الودي يلتمس وديه فوجده فاستعدى على العبد مروان بن الحكم فسجن مروان العبد واراد قطع يده فانطلق سيد العبد الى رافع بن خديج فساله عن ذلك فاخبره انه سمع رسول الله صلى الله عليه وسلم يقول " لا قطع في ثمر ولا كثر " . والكثر الجمار . فقال الرجل فان مروان بن الحكم اخذ غلاما لي وهو يريد قطعه وانا احب ان تمشي معي اليه فتخبره بالذي سمعت من رسول الله صلى الله عليه وسلم . فمشى معه رافع الى مروان بن الحكم فقال اخذت غلاما لهذا فقال نعم . فقال فما انت صانع به قال اردت قطع يده . فقال له رافع سمعت رسول الله صلى الله عليه وسلم يقول " لا قطع في ثمر ولا كثر " . فامر مروان بالعبد فارسل

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

حدثني عن مالك، عن ابن شهاب، عن السايب بن يزيد، ان عبد الله بن عمرو بن الحضرمي، جاء بغلام له الى عمر بن الخطاب فقال له اقطع يد غلامي هذا فانه سرق . فقال له عمر ماذا سرق فقال سرق مراة لامراتي ثمنها ستون درهما . فقال عمر ارسله فليس عليه قطع خادمكم سرق متاعكم

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

وحدثني عن مالك، عن ابن شهاب، ان مروان بن الحكم، اتي بانسان قد اختلس متاعا فاراد قطع يده فارسل الى زيد بن ثابت يساله عن ذلك فقال زيد بن ثابت ليس في الخلسة قطع

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

وحدثني عن مالك، عن يحيى بن سعيد، انه قال اخبرني ابو بكر بن محمد بن عمرو بن حزم، انه اخذ نبطيا قد سرق خواتم من حديد فحبسه ليقطع يده فارسلت اليه عمرة بنت عبد الرحمن مولاة لها يقال لها امية قال ابو بكر فجاءتني وانا بين ظهرانى الناس فقالت تقول لك خالتك عمرة يا ابن اختي اخذت نبطيا في شىء يسير ذكر لي فاردت قطع يده قلت نعم . قالت فان عمرة تقول لك لا قطع الا في ربع دينار فصاعدا . قال ابو بكر فارسلت النبطي . قال مالك والامر المجتمع عليه عندنا في اعتراف العبيد انه من اعترف منهم على نفسه بشىء يقع الحد والعقوبة فيه في جسده . فان اعترافه جايز عليه ولا يتهم ان يوقع على نفسه هذا . قال مالك واما من اعترف منهم بامر يكون غرما على سيده فان اعترافه غير جايز على سيده . قال مالك ليس على الاجير ولا على الرجل يكونان مع القوم يخدمانهم ان سرقاهم قطع لان حالهما ليست بحال السارق وانما حالهما حال الخاين وليس على الخاين قطع . قال مالك في الذي يستعير العارية فيجحدها انه ليس عليه قطع وانما مثل ذلك مثل رجل كان له على رجل دين فجحده ذلك فليس عليه فيما جحده قطع . قال مالك الامر المجتمع عليه عندنا في السارق يوجد في البيت قد جمع المتاع ولم يخرج به انه ليس عليه قطع وانما مثل ذلك كمثل رجل وضع بين يديه خمرا ليشربها فلم يفعل فليس عليه حد ومثل ذلك رجل جلس من امراة مجلسا وهو يريد ان يصيبها حراما فلم يفعل ولم يبلغ ذلك منها فليس عليه ايضا في ذلك حد . قال مالك الامر المجتمع عليه عندنا انه ليس في الخلسة قطع بلغ ثمنها ما يقطع فيه او لم يبلغ