Hadith 26214

Yahya related to me from Malik that Abu'z-Zinad informed him thata governor of Umar ibn Abd al-Aziz took some people in battle and hadnot 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-Azizwrote to him, "Better to take less than that."Yahya saidthat he heard Malik say, "What is done among us about a person whosteals the goods of people which are placed under guard in themarkets, and their owners put them in their containers and store themtogether 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 iswith his goods and whether it is night or day."Malik saidabout some one who stole something for which cutting off the hand wasobliged and then what he stole was found with him and he returned itto its owner, "His hand is cut off."Malik said, "If someonsays, 'How can his hand be cut off when the goods have been taken fromhim and returned to their owner?', it is because he is in the sameposition as the wine drinker when the smell of the wine is found onhis 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 theman intoxicated. That is because he drank it to become intoxicated. Itis the same as that with cutting off the hand of the thief for theftwhen it is taken from him, even if he has not profited from it and itwas returned to its owner. When he stole it, he stole it to take itaway."Malik said that if some people came to a house androbbed it together, and then they left with a sack or box or a boardor basket or the like of that which they carried together, and whenthey took it out of its guarded place, they carried it together, andthe price of what they took reached that for which cutting off thehand was obliged, and that was three dirhams and upwards, each of themhad his hand cut off."If each of them takes out something byhimself, whoever of them takes out something whose value reaches threedirhams and upwards must have his hand cut off. If any of them takesout something whose value does not reach three dirhams, he does nothave his hand cut off."Yahya said that Malik said, "What isdone among us is that when a man's house is locked and he is the onlyone living in it, cutting off the hand is not obliged against the onewho steals something from it until he takes it out of the housecompletely. That is because all of the house is a place of custody. Ifsomeone other than him lives in the house and each of them locks hisdoor, and it is a place of custody for each of them, whoever stealsanything from the apartments of that house must have his hand cut offwhen he leaves the apartment and goes into the main house. He hasremoved it from its place of custody to another place and he must havehis hand cut off."Malik said, "What is done in our communityabout a slave who steals from the property of his master is that if heis not in service and among those trusted in the house and he enterssecretly and steals from his master something that for which cuttingoff the hand is obliged, his hand is not cut off. It is like that witha slave-girl when she steals from her master's property. Her hand isnot cut off."Malik then spoke about a slave who was not inservice and not one of those trusted in the house, and he enteredsecretly and stole from the property of his master's wife that forwhich cutting off the hand was obliged. He said, "His hand is cutoff.""It is like that with the wife's slave-girl when shedoes not serve her or her husband nor is she trusted in the house andshe enters secretly and steals from her mistress's property that forwhich 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 herservice and is not trusted in the house and she enters secretly andsteals from the property of her mistress's husband something for whichcutting off the hand is obliged. Her hand is cut off."It islike that with the man who steals from his wife's goods or the wifewho steals from her husband's goods something for which cutting offthe hand is obliged. If the thing which one of them steals from hisspouse's property is in a room other than the room which they bothlock for themselves, or it is in a place of custody in a room otherthan the room which they are in, whichever of them steals somethingfor which cutting off the hand is obliged, their hand should be cutoff."Malik spoke about a small child and a foreigner whodoes not speak clearly. He said, "If they are robbed of something fromits place of custody or from under a lock, the one who stole it hashis hand cut off. If the property is outside of its place of custodyor locked room(when it is stolen), the one who robbed them does nothave his hand cut off. It is then in the position of sheep stolen fromthe mountain and uncut fruit hanging on the trees "Maliksaid, "What is done among us about a person who robs graves is that ifwhat he takes from the grave reaches what cutting off the hand isobliged for, his hand is cut off . That is because the grave is aplace of custody for what is in it just as houses are a place ofcustody for what is in them. "Malik added, "Cutting off thehand is not obliged for him until he takes it out of the grave."