Introduction of Theft Liable to Hadd
Preservation of life, religion, reason, lineage and property are main objectives of Islamic law. For preservation of property. Islam has forbidden certain acts against property. To punish offenders, who commit offences against property and protect society from reoccurrence of these offences. Islam has provided severe punishments. Hadd has been provided as severe punishment against theft in some specific cases.
Definition of Theft Liable to Hadd
When a person, who is adult, surreptitiously commits theft of property from any hirz, and value of property is nisab or more especially when property is not stolen property, and he/she knows that it is or is likely to be of value of nisab or more, he/she commits theft liable to hadd.
Definition of Hirz
Kinds of Theft
According to Section 4 of the offences against Property (Enforcement of Hudood) Ordinance. 1979, there are two kinds of theft i.e.
(i) Theft liable to Hadd
(ii) Theft liable to Tazir
Essential Ingredients of Theft Liable to Hadd
Following are the essential ingredients the presence of whom must be proved in order to prove theft liable to Hadd
(i) The Offender must be an Adult one
In order to constitute theft liable to Hadd it is necessary that the offender must be an adult one, while in PPC there is no condition regarding the age of the offender.
(ii) Theft should be committed surreptitiously
It is a necessary requirement to constitute theft liable to Hadd that it should have been committed secretly or with the belief that the owner of the property does not have knowledge of the commission of the offence.
(iii) Property should be Removed from any Hirz
Hirz means “an arrangement made for the custody of property”. It is necessary that the property should be removed from any hirz.
(a) Hirz in case of single family
If a single family is residing in a house, the whole house would amount to be hirz.
(b) Hirz in case of many families
If many families are living together, their respective portions would amount to be their respective hirz.
(iv) Value of Stolen Property must be the Value of Nisab or more
Nisab means an estate or property for which zakat, or legal alms, must be paid. It is mandatory to constitute theft liable to Hadd that the stolen property should be of the value of nisab or more.
Nisab for the purposes of theft liable to Hadd under this Ordinance has been fixed at 4.457 grams of gold. Under Section 6 of the offences against the property (enforcement of Hudood) Ordinace 1979.
Proof of Theft Liable to Hadd
Either of following proofs is sufficient to prove theft liable to hadd:
(i) Accused Pleading
If accused pleads guilty of commission of theft liable to hadd, theft liable to hadd is proved.
If at least two Muslim adult male witnesses give evidence as eye-witnesses of occurrence of theft liable to hadd and they fulfill requirements of tazkiya al-shuhood for satisfaction of court, theft liable hadd is proved. Here condition is that statement of victim of theft or statement of person authorized by him should be recorded before statements of eye-witnesses are recorded. However, eye-witnesses can be non-Muslim if accused is a non-Muslim.
Punishment of Theft Liable to Hadd
In following three different situations, different punishments of hadd can be awarded against commission of theft liable to hadd
(i) Amputation of Right hand from Joint of Wrist
When a person commits theft liable to hadd for first time, his right hand from joint of wrist is amputated.
(ii) Amputation of Left Foot up to Ankle
When a person commits theft liable to hadd for second time, his left foot up to ankle is amputated.
(iii) Imprisonment For Life
A person, who commits theft liable to hadd for third time or more than third time, is punished with imprisonment for life.
Case in which Hadd is not Enforced Against Theft
In either of following cases, hadd is not enforced against theft;
(i) Retracting Confession
Hadd is not enforced against theft when theft is proved only by confession of convict, but he retracts his confession before execution of hadd.
(ii) Resilience of Eye-witness
Hadd is not enforced against theft when theft is proved by testimony, but nay witness resiles from his testimony before execution of hadd and number of eye-witnesses is reduced to less than two.
(iii) Withdrawal of Allegation
Hadd is not enforced against theft when victim withdraws his allegation of theft before execution of hadd.
(iv) Statement of Victim
Hadd is not enforced against theft when victim states that convict has made a false confession or that any of the eye-witnesses has deposed falsely. And number of eye-witnesses is reduced to less than two.
(v) Physical Disability of offender
Hadd is not enforced against theft when left hand or left thumb or at least two fingers of left hand or at least two fingers of right foot of offender are either missing or entirely unserviceable.
Cases in which Hadd is not imposed against Theft
In either of following cases, hadd is not imposed against theft;
v Paternal or maternal ascendants
v Paternal or maternal descendants
v Brothers or sisters of father or mother
v Brothers or sisters or their children
v Guest and host
v Servant and master
v Theft of different materials
v Share in stolen property
v Stealing by creditor
v Theft under ikrah or iztirar
To conclude, it can be stated that it is necessary for maintenance of law and order in human society that law should protect human life and property. Failure to protect human life and property leads to social anarchy. That is why, Islam has provided very strict punishments in form of hadd and tazir for commission of theft.