41. Hudud

Malik related to me from Nafi that Abdullah ibn Umar said, "TheJews came to the Messenger of Allah, may Allah bless him and grant himpeace, and mentioned to him that a man and woman from among them hadcommitted adultery. The Messenger of Allah, may Allah bless him andgrant him peace, asked them, 'What do you find in the Torah aboutstoning?' They said, 'We make their wrong action known and flog them.'Abdullah ibn Salam said, 'You have lied! It has stoning for it, sobring the Torah.' They spread it out and one of them placed his handover the ayat of stoning. Then he read what was before it and what wasafter it. Abdullah ibn Salam told him to lift his hand. He lifted hishand and there was the ayat of stoning. They said, 'He has spoken thetruth, Muhammad. The ayat of stoning is in it.' So the Messenger ofAllah, may Allah bless him and grant him peace, gave the order andthey were stoned . " Abdullah ibn Umar added, "I saw the manleaning over the woman to protect her from the stones." Malikcommented, "By leaning he meant throwing himself over her so that thestones fell on him." Malik related to me from Yahya ibn Said from Said ibn al-Musayyabthat a man from the Aslam tribe came to Abu Bakr as-Siddiq and said tohim, "I have committed adultery." Abu Bakr said to him, "Have youmentioned 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 hisslaves." 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 Umartold him the same as Abu Bakr had said to him. His self was still notsettled so he went to the Messenger of Allah, may Allah bless him andgrant him peace, and said to him, "I have committed adultery,"insistently. The Messenger of Allah, may Allah bless him and grant himpeace, turned away from him three times. Each time the Messenger ofAllah, may Allah bless him and grant him peace, turned away from himuntil it became too much. The Messenger of Allah, may Allah bless himand grant him peace, questioned his family, "Does he have an illnesswhich 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 andgrant him peace, said, "Unmarried or married?" They said, "Married,Messenger of Allah." The Messenger of Allah, may Allah bless him andgrant him peace, gave the order and he was stoned. Malik related to me from Yahya ibn Said that Said ibn al-Musayyabsaid, "I have heard that the Messenger of Allah, may Allah bless himand 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 betterfor you.' " Yahya ibn Said said, "I related this hadith in anassembly among whom was Yazid ibn Nuaym ibn Hazzal al-Aslami. Yazidsaid, 'Hazzal was my grandfather. This hadith is true.' " Malik related to me that Ibn Shihab informed him that a manconfessed that he had committed adultery in the time of the Messengerof Allah, may Allah bless him and grant him peace, and he testifiedagainst himself four times, so the Messenger of Allah, may Allah blesshim 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 ownconfession against himself." Malik related to me from Yaqub ibn Zayd ibn Talha from his fatherZayd ibn Talha that Abdullah ibn Abi Mulayka informed him that a womancame to the Messenger of Allah, may Allah bless him and grant himpeace, and informed him that she had committed adultery and waspregnant. The Messenger of Allah, may Allah bless him and grant himpeace, said to her, "Go away until you give birth." When she had givenbirth, she came to him. The Messenger of Allah, may Allah bless himand grant him peace, said to her, "Go away until you have suckled andweaned the baby." When she had weaned the baby, she came to him. Hesaid, "Go and entrust the baby to someone." She entrusted the baby tosomeone and then came to him. He gave the order and she was stoned. Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud that Abu Hurayra and Zayd ibn Khalid al-Juhaniinformed him that two men brought a dispute to the Messenger of Allah,may Allah bless him and grant him peace. One of them said, "Messengerof Allah! Judge between us by the Book of Allah!" The other said, andhe was the wiser of the two, "Yes, Messenger of Allah. Judge betweenus 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 committedfornication with his wife. He told me that my son deserved stoning,and I ransomed him for one hundred sheep and a slave-girl. Then Iasked the people of knowledge and they told me that my son deserved tobe flogged with one hundred lashes and exiled for a year, and theyinformed me that the woman deserved to be stoned." The Messenger ofAllah, may Allah bless him and grant him peace, said, "By him in whoseHand myself is, I will judge between you by the Book of Allah. As foryour sheep and slave girl, they should be returned to you. Your sonshould have one hundred lashes and be exiled for a year." He orderedUnays al-Aslami to go to the wife of the other man and to stone her ifshe confessed . She confessed and he stoned her. Malik related to me from Suhayl ibn Abi Salih from his fatherfrom 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 shoulddo if I were to find a man with my wife? Should I leave him thereuntil I had brought four witnesses?" The Messenger of Allah, may Allahbless him and grant him peace, said, "Yes." Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn 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 commitadultery, men or women when they are muhsan and when there is clearproof of pregnancy or a confession.' " Malik related to me from Yahya ibn Said from Sulayman ibn Yasarfrom Abu Waqid al-Laythi that a man came to Umar ibn al-Khattab whilehe was in ash-Sham . He mentioned to him that he had found a man withhis wife Umar sent Abu Waqid al-Laythi to the wife to question herabout that. He came to her while there were women around her andmentioned to her what her husband had mentioned to Umar ibn al-Khattab, and informed her that she would not be punished on his wordand began to suggest to her by that, that she should retract. Sherefused to retract and held firm to confession. Umar gave the orderand 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 hiscamel kneel at al-Abtah, and then he gathered a pile of small stonesand cast his cloak over them and dropped to the ground. Then he raisedhis hands to the sky and said, 'O Allah! I have become old and mystrength has weakened. My flock is scattered. Take me to You withnothing missed out and without having neglected anything.' Then hewent to Madina and addressed the people. He said, 'People! Sunan havebeen laid down for you. Obligations have been placed upon you. Youhave been left with a clear way unless you lead people astray rightand 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 ofAllah, may Allah bless him and grant him peace, stoned, so we havestoned. By He in Whose Hand my self is, had it not been that peoplewould 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-grownwoman, 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 havemercy on him.' " Yahya said that he had heard Malik say, "Asfor 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 wasbrought a woman who had given birth after six months and he orderedher to be stoned. Ali ibn Abi Talib said to him, "She does not deservethat. Allah, the Blessed, the Exalted, says in His Book, 'Theircarrying and weaning is thirty months,' (Sura 46 ayat 15) and he said,'Mothers suckle their children for two full years for whoever wishesto complete the suckling.' (Sura 2 ayat 233) Pregnancy can then be sixmonths, so she does not deserve to be stoned." Uthman ibn Affan sentfor her and found that she had already been stoned. Malikrelated to me that he asked Ibn Shihab about someone who committedsodomy. Ibn Shihab said, "He is to be stoned, whether or not he ismuhsan." Malik related to me from Zayd ibn Aslam that a man confessed tofornication in the time of the Messenger of Allah, may Allah bless himand grant him peace. The Messenger of Allah, may Allah bless him andgrant 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 hadnot been cut yet. He said, "Below this," and he was brought a whipwhich had been used and made flexible. The Messenger of Allah, mayAllah bless him and grant him peace, gave the order and he wasflogged. Then he said, "People! The time has come for you to observethe limits of Allah. Whoever has had any of these ugly things befallhim should cover them up with the veil of Allah. Whoever reveals to ushis wrong action, we perform what is in the Book of Allah againsthim." Malik related to me from Nafi that Safiyya bint Abi Ubaydinformed him that a man who had had intercourse with a virgin slave-girl and made her pregnant was brought to Abu Bakr as-Siddiq. Heconfessed to fornication, and he was not muhsan. Abu Bakr gave theorder and he was flogged with the hadd punishment. Then he wasbanished to Fadak, (thirty miles from Madina). Malik spokeabout a person who confessed to fornication and then retracted it andsaid, "I didn't do it. I said that for such-and-such a reason," and hementioned the reason. Malik said, "That is accepted from him and thehadd is not imposed on him. That is because the hadd is what is forAllah, and it is only applied by one of two means, either by a clearproof which establishes guilt or by a confession which is persisted inso that the hadd is imposed. If someone persists in his confession,the hadd is imposed on him." Malik said, "I have not seen thepeople of knowledge exiling slaves who have committed adultery." Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullahibn Utba ibn Masud from Abu Hurayra and Zayd ibn Khalid al-Juhani thatthe Messenger of Allah, may Allah bless him and grant him peace, wasasked about a slave-girl who committed fornication and was notmuhsana. He said, "If she commits fornication, then flog her. If shecommits fornication again, then flog her, and if she commitsfornication again, then sell her, if only for a rope." IbnShihab 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 theslaves in the khumus and he forced a slave-girl among those slavesagainst her will and had intercourse with her. Umar ibn al-Khattab hadhim flogged and banished him, and he did not flog the slave-girlbecause the slave had forced her. Malik related to me from Yahya ibn Said that Sulayman ibn Yasarinformed him that Abdullah ibn Abbas ibn Abi Rabia al-Makhzumi said,"Umar ibn al-Khattab gave me orders about the slaves of Quraysh and weflogged some of the slave-girls of the muslim lands fifty times eachfor fornication." Malik said, "The position with us about a woman who is found tobe pregnant and has no husband and she says, 'I was forced,' or shesays, 'I was married,' is that it is not accepted from her and thehadd is inflicted on her unless she has a clear proof of what sheclaims about the marriage or that she was forced or she comes bleedingif she was a virgin or she calls out for help so that someone comes toher and she is in that state or what resembles it of the situation inwhich the violation occurred." He said, "If she does not produce anyof those, the hadd is inflicted on her and what she claims of that isnot accepted from her." Malik said, "A raped woman cannotmarry until she has restored herself by three menstrual periods." He said, "If she doubts her periods, she does not marry until shehas freed herself of that doubt." Malik related to me from Abu'z-Zinad that he said, ''Umar ibn Abdal-Aziz flogged a slave with eighty lashes for slander." Abu'z-Zinad said, "I asked Abdullah ibn Amir ibn Rabia about that. Hesaid, 'I saw Umar ibn al-Khattab, Uthman ibn Affan, the Khalifs, andso on, and I did not see any of them flog a slave more than fortylashes for slander.' " Malik related to me from Zurayq ibn Hakim al-Ayli that a mancalled Misbah asked his son for help and he thought him unnecessarilyslow. When the son came, his father said to him, "O fornicator."Zurayq said, "So the son asked me to help him against the father. WhenI wanted to flog him, his son said, 'By Allah, if you flog him, I willacknowledge that I have committed fornication.' When he said that, thesituation 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 toUmar ibn Abd al-Aziz also, 'What do you think about a man who isslandered or his parents are slandered and both or only one of themare dead?' He said, Umar wrote to me, 'If he forgives, his pardon ispermitted for himself. If his parents are slandered and one or both ofthem are dead, take the judgement of the Book of Allah for it unlesshe wants to veil it.' " Yahya said, "I heard Malik say, 'Thatis because the slandered man might fear that if that is unveiled abouthim, a clear proof might be established. If it is according to what wehave described, his pardon is permitted." Malik related to me from Hisham ibn Urwa that his father saidthat there was only one hadd against a man who slandered a group ofpeople. Malik said, "If they are on separate occasions thereis still only one hadd against him." Malik related to me fromAbu'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 notan adulterer and my mother is not an adulteress." Umar ibn al-Khattabasked advice about that. One person said, "He has praised his fatherand mother." Another said, "His father and mother have praise otherthan this. We think that he is to be flogged with the hadd." So Umarflogged him with the hadd of eighty lashes. Malik said,"There is no hadd in our view except for slander, denial orinsinuation, in which one sees that the speaker intends by that denialor slander. Then the hadd is completely imposed on the one who saidit." Malik said, "What is done in our community when a mandenies that another man is from his father, is that he deserves thehadd. If the mother who is denied is a slave, then he deserves thehadd as well. ' Malik said, "The best of what is heard about a slave-girl whom aman has intercourse with while he has a partner in her is that thehadd is not inflicted on him and the child is connected to him. Whenthe slave-girl becomes pregnant, her value is estimated and he giveshis partners their shares of the price and the slave-girl is his. Thatis what is done among us." Malik said about a man who madehis slave-girl halal to a man that if the one for whom she was madehalal had intercourse with her, her value was estimated on the day hehad intercourse with her and he owed that to her owner whether or notshe conceived. The hadd was averted from him by that. If she conceivedthe child was connected to him. Malik said about a man whohad intercourse with his son's or daughter's slave-girl, "The hadd isaverted from him and he owes the estimated value of the slave-girlwhether or not she conceives." Malik related to me from Rabia ibn Abi Abd ar-Rahman that Umaribn 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 wifebecame jealous and mentioned that to Umar ibn al-Khattab. Umarquestioned 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 wifeconfessed that she had given her to him." Malik related to me from Nafi from Abdullah ibn Umar that theMessenger of Allah, may Allah bless him and grant him peace, cut offthe hand of a man who stole a shield whose price was three dirhams. Yahya related to me from Malik from Abdullah ibn Abd ar-Rahmanabu Husayn al-Makki that the Messenger of Allah, may Allah bless himand grant him peace, said, "The hand is not cut off for fruit hangingon the tree and for sheep kept in the mountains. So when they aretaken from the fold or the place where the fruit is dried, a hand iscut off for whatever reaches the price of a shield." Yahya related to me from Malik from Abdullah ibn Abi Bakr fromhis father from Amra bint Abd ar-Rahman that a thief stole a citron inthe time of Uthman Uthman ibn Affan ordered its value to be estimatedand it was estimated at three dirhams at the rate of exchange oftwelve dirhams for the dinar, so Uthman cut off his hand. Yahya related to me from Malik from Yahya ibn Said from Amra bintAbd ar-Rahman that A'isha, the wife of the Prophet, may Allah blesshim and grant him peace, said, "It has not been a long time for me andI have not forgotten. A thief's hand is cut off for a quarter of adinar and upwards." Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnHazim that Amra bint Abd ar-Rahman said, "A'isha, the wife of theProphet, may Allah bless him and grant him peace, went out to Makkaand she had two girl mawlas of hers and a slave belonging to the sonsof Abdullah ibn Abi Bakr as-Siddiq . She sent a figured cloak with thetwo mawlas which was sewn up in a piece of green cloth." Amracontinued, "The slave took it and unstitched it and took out thecloak. 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. Whenthey opened it, they found felt in it and did not find the cloak. Theyspoke to the two women and they spoke to A'isha, the wife of theProphet, may Allah bless him and grant him peace, or they wrote to herand suspected the slave. The slave was asked about it and confessed.A'isha, the wife of the Prophet, may Allah bless him and grant himpeace, gave the order and his hand was cut off. A'isha said, 'Athief's hand is cut off for a quarter of a dinar and upwards.' " Malik said, "The limit I prefer above which cutting off the handis obliged is three dirhams, whether the exchange is high or low. Thatis because the Messenger of Allah, may Allah bless him and grant himpeace, cut off the hand of a thief for a shield whose value was threedirhams, and Uthman ibn Affan cut off the hand of a thief for a citronwhich was estimated at three dirhams. This is what I prefer of what Ihave heard on the matter." Yahya related to me from Malik from Nafi that a slave of Abdullahibn Umar stole while he was a runaway. Abdullah ibn Umar sent him toSaid ibn al-As, who was the amir of Madina, to cut off his hand. Saidrefused to cut off his hand. He said, "The hand of a runaway slave isnot cut off when he steals." Abdullah ibn Umar said to him, "In whatBook of Allah did you find this?" Then Abdullah ibn Umar gave theorder, and his hand was cut off. Yahya related to me from Malik that Zurayq ibn Hakim informed himthat he had a runaway slave who had stolen. He said, "The situationwas obscure for me, so I wrote to Umar ibn Abd al-Aziz to ask himabout it. He was the governor at that time. I informed him that I hadheard that if a runaway slave stole while he was a fugitive, his handwas 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 slavesteals, his hand is not cut off. Allah, the Blessed, the Exalted, saysin His Book, 'The thief, male and female, cut off the hands of both,as a recompense for what they have earned, and an exemplary punishmentfrom Allah. Allah is Mighty, Wise.' (Sura 5 ayat 41) When his theftreaches 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 handis obliged, his hand is cut off." Malik said, "The way ofdoing things amongst us about which there is no dispute is that whenthe runaway slave steals that for which cutting off the hand isobliged, his hand is cut off." Yahya related to me from Malik from Ibn Shihab from Safwan ibnAbdullah ibn Safwan that it was said to Safwan ibn Umayya, "Whoeverdoes not do hijra is ruined." So Safwan ibn Umayya went to Madina andslept in the mosque with his cloak as a pillow. A thief came and tookhis cloak and Safwan grabbed hold of the thief and brought him to theMessenger of Allah, may Allah bless him and grant him peace. TheMessenger of Allah, may Allah bless him and grant him peace, said tohim, "Did you steal this cloak?" He said, "Yes." So the Messenger ofAllah, may Allah bless him and grant him peace, ordered that his handbe cut off. Safwan said to him, "I did not intend this. It is his assadaqa." The Messenger of Allah, may Allah bless him and grant himpeace, said, "Why didn't you do it before bringing him to me?" Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahmanthat az-Zubayr ibn al-Awwam came across a man who had taken hold of athief 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 takehim to the Sultan." Az-Zubayr said, "When you reach the Sultan withhim, Allah curses the one who intercedes and the one who accepts theintercession." Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimfrom his father that a man from Yemen who had his hand and foot cutoff came and went before Abu Bakr as-Siddiq and complained to him thatthe governor of the Yemen had wronged him, and the man used to praypart of the night. Abu Bakr said, "By your father, your night is notthe 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 themlooking for it. He said, "O Allah! You are responsible for the one whoinvaded the people of this good house by night!" They found thejewelry with a goldsmith. He claimed that the maimed man had broughtit 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 Bakrsaid, "By Allah! His dua against himself is more serious, as far as Iam concerned, than his theft." Yahya said that Malik said,"What is done among us about the person who steals several times andis then called to reckoning, is that only his hand is cut off for allhe stole when the hadd has not been applied againsthim. If the haddhas been applied against him before that, and he steals what obligescutting off, then the next limb is cut off." 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." Yahya related to me from Malik from Yahya ibn Said from Muhammadibn Yahya ibn Habban that a slave stole a small palm from a man'sgarden and planted it in the garden of his master. The owner of thepalm went out looking for the palm and found it. He asked for helpagainst the slave from Marwan ibn al-Hakam. Marwan jailed the slaveand wanted to cut off his hand. The master of the slave rushed off toRafi ibn Khadij and asked him about it. Rafi informed him that heheard 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 offhis hand. I would like you to go with me to him so you can tell himwhat you heard from the Messenger of Allah, may Allah bless him andgrant him peace." So, Rafi went with him to Marwan ibn al-Hakam. Hesaid, "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 himand grant him peace, say, 'The hand is not cut off for dates or palmpith.' Marwan therefore ordered the slave to be released." Yahya related to me from Malik from Ibn Shihab from as-Sa'ib ibnYazid that Abdullah ibn Amr ibn al-Hadrami brought a slave of his toUmar ibn al-Khattab and said to him, "Cut off the hand of this slaveof mine. He has stolen." Umar said to him, "What did he steal?" Hesaid, "He stole a mirror belonging to my wife. Its value was sixtydirhams." Umar said, "Let him go. His hand is not to be cut off. He isyour servant who has stolen your belongings." Yahya related to me from Malik from Ibn Shihab that Marwan ibnal-Hakam was brought a man who had snatched some goods and he wantedto 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 isstolen by chance, openly, in haste." Yahya related to me from Malik that Yahya ibn Said said that AbuBakr ibn Muhammad ibn Amr ibn Hazm informed him that he had taken aNabatean who had stolen some iron rings and jailed him in order to cutoff his hand. Amra bint Abd ar-Rahman sent a girl mawla to him calledUmayya. Abu Bakr said that she had come to him while he was among thepeople and said that his aunt Amra sent word to him saying, "Son of mybrother! You have taken a Nabatean for something insignificant whichwas 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 fora quarter of a dinar and upwards." Abu Bakr added, "So I letthe Nabatean go." Malik said, "The generally agreed on way ofdoing things among us about the confession of slaves is that if aslave confesses something against himself, the hadd and punishment forit is inflicted on his body. His confession is accepted from him andone does not suspect that he would inflict something on himself." Malik said, "As for the one of them who confesses to a matterwhich will incur damages agains this master, his confession is notaccepted against his master." Malik said, "One does not cutoff the hand of a hireling or a man who is with some people to servethem, 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 doesnot have his hand cut off." Malik said about a person whoborrows something and then denies it, "His hand is not cut off. He islike a man who owes a debt to another man and denies it. He does nothave his hand cut off for what he has denied." Malik said,"The generally agreed-on way of dealing among us, with the thief whois found in a house and has gathered up goods and has not taken themout, is that his hand is not cut off. That is like the man who placeswine before him to drink it and does not do it. The hadd is notimposed on him. That is like a man who sits with a woman and desiresto have haram intercourse with her and does not do it and he does notreach her. There is no hadd against that either." Malik said,"The generally agreed-on way of doing things among us is that there isno cutting off the hand for what is taken by chance, openly and inhaste, whether or not its price reaches that for which the hand is cutoff."