Sariqah: Theft 2022 PDF

+ SARIQAH: THEFT THE CRIME, ITS EVIDENTIARY REQUIREMENTS & PUNISHMENTS ASSOC. PROF. DR. MAJDAH ZAWAWI ISLAMIC LAW DEPARTMENT AHMAD IBRAHIM KULLIYYAH OF LAWS, IIUM. + OBJECTIVES OF THIS LESSON...

+ SARIQAH: THEFT THE CRIME, ITS EVIDENTIARY REQUIREMENTS & PUNISHMENTS ASSOC. PROF. DR. MAJDAH ZAWAWI ISLAMIC LAW DEPARTMENT AHMAD IBRAHIM KULLIYYAH OF LAWS, IIUM. + OBJECTIVES OF THIS LESSON CLARIFY EXPLAIN CONDITIONS OF MISCONCEPTIONS THE CRIME PROVIDE EVIDENTIARY EXAMPLES REQUIREMENTS + LEARNING OUTCOMES FOR THE LESSON ◼ STUDENTS WHO HAVE COMPLETED THIS LESSON WILL BE ABLE TO: ◼ UNDERSTAND THE MEANING OF SARIQAH AND APPRECIATE THE STRICT REQUIREMENTS INVOLVED BEFORE AN OFFENDER IS MADE LIABLE FOR THE HADD PUNISHMENT OF AMPUTATION. ◼ RECOGNIZE THE LIMITATIONS TO THE IMPLEMENTATION OF THE HADD PUNISHMENT WHEN THERE EXISTS DOUBT (SHUBHAH) ◼ IDENTIFY THE EVIDENTIARY REQUIREMENTS NEEDED FOR THE CRIME TO BE COMPLETE. ◼ CONSIDER THE APPLICATION OF THE CRIME IN MUSLIM COUNTRIES THAT APPLY THE LAW. ◼ CLARIFY ANY MISUNDERSTANDINGS IN RELATION TO THE IMPLEMENTATION OF THE CRIME. + CONTENTS OF THE LECTURE WHAT ARE HUDUD CRIMES? 1 WHAT IS SARIQAH? 2 DALIL CONDITIONS OF SARIQAH 3 EVIDENTIARY REQUIREMENTS + CONTENTS OF THE LECTURE PUNISHMENT FOR SARIQAH 4 POSITION IN MALAYSIA 5 CONCLUSION 6 + TA’ZIR QISAS HUDUD 1. INTRODUCTION - TYPES OF CRIMES IN ISLAMIC CRIMINAL LAW + LITERALLY DEFINING THE HUDUD ROOT MEANS ALSO SINGULAR- SEPARATION BOUNDARIES – HAD BETWEEN 2 TO KEEP BORDER PLURAL- THINGS SOMETHING HUDUD OUT. + HUDUD ◼CRIMESWHICH ARE PRESCRIBED IN THE HOLY QUR’AN AND/OR SUNNAH ◼PUNISHMENTS ARE ALSO PRESCRIBED ◼ACCORDING TO THE MAJORITY OF JURISTS – ONLY 7 IN ALL ◼THE CRIMES & PUNISHMENTS ARE IMMUTABLE + THE 7 HUDUD CRIMES SHURB AL-KHAMR HIRABAH ZINA SARIQAH QAZF RIDDAH BAGHYU + THEFT IN MALAYSIA & K.SAUDI ARABIA (EUROPEAN INSTITUTE FOR CRIME PREVENTION AND CONTROL INTERNATIONAL STATISTICS ON CRIME AND JUSTICE) MALAYSIA SAUDI ARABIA BURGLARIES 0.1 104.7 RANKED 5 RANKED 37TH. 1047 TIMES MORE THAN SAUDI ARABIA AUTO THEFT RANKED 3RD 315.3 RANKED 7TH. 4 TIMES MORE THAN SAUDI ARABIA CAR THEFTS 18,717 55,879 (2020) RANKED 26TH. RANKED 14TH. 3 TIMES MORE THAN SAUDI ARABIA. + 2. DEFINING SARIQAH: THEFT The act of taking away the property of another person surreptitiously, without the knowledge and consent of that person. Anwarullah, 2008 & Paizah, 1991 + DALIL – SURAH AL-MAIDAH(5):38 ◼ MEANS: “As for the thief, male and female, cut off their hands. It is the reward of their own deeds, and exemplary punishment from Allah. Allah is Mighty wise.” + ASBABU AL-NUZUL SURAH AL- MAIDAH:38 ◼ It was reported by Ahmad and also by Abdullah bin Amr that a woman who had stolen was punished with the had punishment of amputation during the time of the Holy Prophet s.a.w. This was done based on Surah al-Maida, verse 38. ◼ She then went to the Holy Prophet s.a.w and asked whether her repentance was accepted by Allah s.w.t. ◼ The following verse, verse 39 was then revealed: ◼ But if the thief repents after his crime and amends his conduct, God turneth to him in forgiveness; for God is Oft-Forgiving, Most Merciful. + 3. BASIC CONDITIONS FOR THEFT LIABLE TO HADD FULFILL ALL THE TAKEN FROM STEAL CONDITIONS OF HIRZ SURREPTITIOUSLY A PROPERTY OWNED BY REACH NISAB SOMEONE ELSE + 3.1 The offender stole the property surreptitiously ◼ Act of taking must be complete; ◼ Must fulfill the following conditions: 1. The property must be taken from the place where it is kept; 2. The owner is deprived of ownership over the property; 3. The property is taken into possession by the offender. ◼ IF any one not complete – cannot be liable for theft liable for hadd. ◼ Abu enters Ali’s house and was caught while collecting Ali’s property – Abu cannot be liable for hadd – only ta’zir. + The offender stole the property surreptitiously SECRETLY STEALTHILY CONCEALED SURREPTITIOUSLY + HOW TO DETERMINE “SURREPTITIOUSNESS” – IBN HUMAM If day time – the surreptitiousness must continue till the completion of the offence If at night – the surreptitiousness is only required at the start of the offence + 3.2 FULFILL THE CONDITIONS OF A VALID PROPERTY MOVEABLE VALUABLE PROPERTY SIGNIFICANT NON-PERISHABLE (IMAM ABU HANIFAH) (IMAM ABU HANIFAH) + NOT FULFIL CONDITION OF PROPERTY a. INSIGNIFICANT PROPERTY/PROHIBITED THINGS + b. PERISHABLE PROPERTY ALL KINDS OF FOODSTUFF. + c. COMMON THINGS + d. The property taken is owned by someone else NOT PART OF HAS PERMISSION TO USE; OR OFFENDER’S LOAN; PROPERTY BORROW. PROPERTY DOES NOT INCLUDE LIVE HUMAN COULD BE BEINGS; OWNED CREDITOR REFUSES TO PAY; NOT A TAKE ONLY THE AMOUNT OWED TO DEBTOR HIM + WHAT ABOUT… COULD STEALING THESE BE CONSIDERED AS SARIQAH LIABLE FOR HADD? WATER? LIGHT? + 3.3. The property is taken from the custody (hirz) of the owner LIMITED ENTRY HIRZ GUARDED GOODS + LIMITED ENTRY 1 LOCKED PREMISES 2 PASSWORD PROTECTED 3 SPECIAL PERMIT + EXAMPLES OF HIRZ – LIMITED ENTRY + DIFFERENCES OF OPINION ◼ IMAM SYAFIE & AHMAD ◼ IMAM ABU HANIFAH ◼ Not particular – so long as the ◼ Hirz of a guarded place means place has been designated as that it is in a city or populated a place for keeping goods/property. place; and ◼ If the place can be entered by ◼ It is closed. anyone – it is not considered as a hirz. ◼ IMAM MALIK ◼ The place has to be a building that is specifically made to keep property or goods. + CONDITIONS OF HIRZ - HOUSE ◼ POPULATED AREA ◼ MUST BE LOCKED; ◼ IF NOT LOCKED – THERE MUST BE A PERSON OR PERSONS IN IT ◼ EXAMPLE OF HIRZ BY IMAM SYAFIE & AHMAD + GUARDED PROPERTY GUARDED ORCHARD 1 GUARDED LIVESTOCK 2 SPECIFIC PERSONS IN CHARGE 3 OF SAFETY + EXAMPLE OF HIRZ – GUARDED PROPERTY ❑ GUARDS PHYSICALLY PRESENT; ❑ PLACES WITH LIMITED ENTRY , LIKE BANKS & OFFICES THAT HAVE A STRONG ROOM.  PROPERTY NOT UNDER HIRZ 1. PUBLIC PLACES – MOSQUE, MUSOLLA, CANTEEN + 2. OPEN SPACES – PARKS, GRAVE (IMAM ABU HANIFAH) 3. FRUIT TREES WITH NO OWNER (IMAM ABU HANIFAH) + THINGS THAT WOULD DISQUALIFY THE CONDITION OF HIRZ (LIMITED ENTRY) IMAM ABU HANIFAH MAJORITY PERMISSION PERMISSION GRANTED TO GRANTED TO ENTER PREMISE ENTER; DOOR OPEN; PLACE HAS DEFECT – FAULTY WINDOWS, LOOSE SHINGLES + THINGS THAT WOULD DISQUALIFY THE CONDITION OF HIRZ (GUARDED GOODS/PLACE) NOT CHECK ALL THE PREMISE INCOMPETENT NOT LOOK AT CCTV SLEEPING ON THE JOB NEGLIGENT FAIL TO LOCK CERTAIN ROOMS + 3.4 The property reaches the required nisab ◼ Based on the Sunnah – In a hadith narrated from Ahmad from Aishah: ◼ Cut of their hand in cases (theft) of more that ¼ of dinar and do not cut (in cases) lesser than that. ◼ HOWEVER – THERE ARE DIFFERENCES OF OPINION ON THE ACTUAL VALUE THAT MUST BE FULFILLED BEFORE THE OFFENDER CN BE LIABLE FOR HADD. + VIEWS OF THE JURISTS JURISTS VIEWS 1. IMAM ABU HANIFAH 10 DIRHAM OR 1 DINAR Basis – Hadith Nabi: “The hand is not cut off in cases less than 10 dirham.” 2. IMAM MALIK 3 DIRHAM OR ¼ DINAR If there is a difference in value – take the price in silver If the goods are taken are business goods – then must look at the rate of the money in current use 3. IMAM SYAFIE 3 DIRHAM OR ¼ DINAR If there is difference in value – take the price of gold 4. IMAM AHMAD 3 DIRHAM OR ¼ DINAR + HOW MUCH IS 1 DINAR? 4.457 1 gm DINAR GOLD + CURRENT PRICES OF GOLD + EVIDENTIARY REQUIREMENTS IN CASES OF THEFT TESTIMONY – 2 MALE WITNESSES MUSLIM, MUKALLAF, ADIL SHAHADAH IMAM SHAFIE – REPORT FROM VICTIM/HISBAH IMAM ABU HANIFAH – SWIFT REPORT ADMISSION OF GUILT CONFESSION MAJORITY – ONCE IMAM ABU YUSUF & IMAM AHMAD - TWICE OTHER THAN TA’ZIR PUNISHMENT THAT + WHO MAY REPORT? IMAM ABU OWNER OF THE PROPERTY HANIFAH TRUSTEE OF PROPERTY MAZHAB OWNER OF PROPERTY SHAFIE WAKIL MAHAB 1ST VIEW = HANAFI HANBALI 2ND VIEW=MALIKI – NO CONDITION + DEFENCES AVAILABLE NON- FULFILMENT INFANCY OF RUKN AL- MADDI MAJNUN NON- FULFILMENT DURESS OF RUKN AL- ADABI NECESSITY + 4. THE PUNISHMENT + Which part? JUMHUR ◼ THE WHOLE HAND UP TILL THE JOINTS OF THE WRIST. ◼ THE PUNISHMENT MUST BE ACCOMPANIED BY: ◼ A MEDICAL TEAM – TO STOP BLEEDING; ◼ TRAINED EXECUTIONER. + Which part? EXTREMISTS SYIAH KHAWARIJ JUST THE UP TO FINGERS SHOULDER! + AFTER THE PUNISHMENT… ◼ THE OFFENDER IS GIVEN MEDICAL ATTENTION; ◼ THE STATE MUST ENSURE HE/SHE IS GIVEN TRAINING & COUNSELLING; ◼ THE STATE MUST SET UP REHABILATATION PROGRAMS TO PREPARE THEM FOR LIFE AFTER THE PUNISHMENT; ◼ THE PUBLIC MUST BE EDUCATED TO ACCEPT THE OFFENDER AS A PERSON AND GIVE HIM/HER A SECOND CHANCE. + What if the goods are found? IMAM ABU HANIFAH MAJORITY RETURNED AFTER CUT OFF – MUST IF NOT FOUND - RETURN PROERTY IF COMPENSATE FOUND BUT IF HANDS CUT OFF – IF NOT – PAY NO NEED TO COMPENSATION – EVEN COMPENSATE IF HANDS ARE CUT OFF + THE CONCEPT OF SHUBHAH (DOUBT) AND ITS EFFECTS NO HADD HIRZ TA’ZIR NO HADD NISAB TA’ZIR RETURN OF PROPERTY OTHERS OWNED BY MEMBER OF FAMILY ETC + SELECTED COUNTRIES 1. PAKISTAN TYPES OF ORDINANCE VI OF 1979, OFFENCES AGAINST PROPERTY (ENFORCEMENT OF HUDOOD) ORDINANCE THEFT SECT. 2 – DIVIDED THEFT – 2 TYPES – LIABLE FOR HAD & LIABLE FOR TA’ZIR NO NOT RELATED TO THE VICTIM A GUEST SERVANT OR EMPLOYEE HADD STEALING OF PUBLIC PROPERTY VICTIM HAS A SHARE IN PROPERTY CREDITOR STEALS FROM DEBTOR NOT ANY OF THE REQUIREMENTS OF HIRZ/NISAB FULFILL SIGNIFICANT + COUNTRIES THAT EXERCISE HUDUD PUNISHMENT OF AMPUTATION FOR SARIQAH KSA SUDAN BRUNEI NORTHERN SHARIA HANBALI PART PENAL CODE BUT NO FULL FULL PUNISHMENT YET + POSITION IN MALAYSIA ◼ THEFT IS DEALT WITH UNDER THE PENAL CODE ◼ SECTION 378 DEFINES THEFT AS: ◼ WHOEVER, INTENDING TO TAKE DISHONESTLY ANY MOVABLE PROPERTY OUT OF THE POSESSION OF ANY PERSON WITHOUT THAT PERSON’S CONSENT, MOVES THAT PROPERTY IN ORDER TO SUCH TAKING, IS SAID TO COMMIT THEFT. ◼ SECTION 379 MENTIONS: THEFT MAY BE PUNISHED WITH IMPRISONMENT FOR A TERM WHICH MAY EXTEND TO SEVEN YEARS OR WITH FINE OR WITH BOTH, AND FOR A SECOND OR SUBSEQUENT OFFENCE SHALL BE PUNISHED WITH IMPRISONMENT AND SHALL ALSO BE LIABLE TO FINE OR TO WHIPPING. + NEW TYPES OF THEFT ◼CYBERCRIMES ◼IDENTITY THEFT ◼FRAUD ◼MONEY LAUNDERING ◼ROMANCE SCAMS + THINK ABOUT… 1. IF THE PUNISHMENT WERE TO BE INTRODUCED IN MALAYSIA – HOW COULD IT BE DONE? 2. HOW DO WE FIGHT OFF THE CRITICS – ESPECIALLY HUMAN RIGHTS ACTIVISTS? 3. WHAT NEEDS TO BE DONE FIRST? 4. IMAGINE IF THE SHARIAH WAS DECLARED AS THE LAW OF THE LAND AND BOTH MUSLIMS & NON-MUSLIMS AGREED TO BE BOUND BY IT – AMEND THE CURRENT PENAL CODE AND INCLUDE THE PUNISHMENT OF CUTTING OFF THE HANDS. PREPARE DRAFT AND TABLE IT IN TUTORIAL. + JAZAKUMULLAHU KHAIRAN KATHIRA! NEXT LESSON - HIRABAH