"Or a confession twice, and he does not retract from his confession until the amputation is carried out"
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The Shaykh :"Or a confession twice" This is the second way in which theft is established: confession. Two conditions are required for it: repetition and persistence. Regarding repetition, the author says "twice". So if he confesses only once, saying "I stole," the amputation is not established, so there is no amputation, because theft has not been established by the Shari'ah. Therefore, repetition twice is necessary. Now, if he confesses three times? Is that acceptable?
The questioner : ... .
The Shaykh : The author says "Or a confession twice"; his intention is to specify the minimum, meaning a confession that does not fall below two times. If it exceeds that, it is stronger. The second condition for confession is persistence, to which he alluded by saying "and he does not retract". Move the 'ayn, is that right?
The questioner : ... .
The Shaykh : Close it? Close your eyes or open them, is that right?
The questioner : ... .
The Shaykh : Close means to close them. Now, did I close my eye or open it?
The questioner : ... .
The Shaykh : And he does not retract.
The questioner : And he does not retract with a sukun.
The Shaykh : If you close your eyes, you don't see anyone. If you open them, do you see or not?
The Shaykh : Now, which is better, to open or to close?
The questioner : To open.
The Shaykh : If it is better to open, then since it is better to open, open it. "And he does not retract from his confession" with the accusative case. Now, how do we make it accusative? What is the reason for the accusative?
The questioner : ... .
The Shaykh : Because it is a conjunction to a pure noun. Ibn Malik said:
"And if a pure noun is followed by a conjunction, you make it accusative with a present or deleted 'an'"
And its evidence is the saying of the poet:
"And wearing a cloak and my eye being pleased *** is dearer to me than wearing sheer garments"
Now, where is the explicit noun?
The questioner : Confession.
The Shaykh : He said "confession", except for "confess," or "a confession twice, and he does not retract," meaning and his not retracting. It is permissible to make it nominative if it is considered a new sentence. And his saying "he does not retract" means he does not return from his confession until the hadd is completed upon him. If he returns after the hadd is completed, is his return accepted or not?
The questioner : ... .
The Shaykh : Yes?
The questioner : It is executed.
The Shaykh : Now, people say that it is possible to perform an operation to restore the hand. If he retracted from his confession after he was amputated, do we say that because he retracted from his confession after he was amputated, we return his hand to him?
The questioner : ... .
The Shaykh : Yes?
The questioner : No.
The Shaykh : Even if it is possible?
The questioner : ... .
The Shaykh : Now, if he persists in his confession until we establish the hadd upon him and we amputate his hand, is it permissible to return it? No, because this is contrary to the purpose of the Lawgiver. The purpose of the Lawgiver is not just pain so that we say it was achieved by amputating it. The purpose of the Lawgiver is that it remains [amputated] and he has no hand. Now, regarding the issue raised months ago about restoring the hand of the thief who was amputated, we say this is not correct. It is obligatory that it remains severed and not be returned. Now, "and he does not retract from his confession until the hadd is completed upon him." What is the evidence that repetition is necessary? The evidence for that, they say, is because a thief was brought to the Messenger of Allah (peace and blessings be upon him), so he confessed that he had stolen. He said He said, "Yes, O Messenger of Allah," so he confessed . And by analogy? They say because this is a hadd that involves destruction, so it is more deserving of repetition than zina, which does not involve destruction except in the case of a married person. But as you see, this is not correct, because the saying of the Messenger of Allah (peace and blessings be upon him) to him intended thereby verification. And a statement is established for a person by his testimony against himself. [An-Nisa 4:135] And it has been explained to us previously that repetition of confession is not a condition in which place?
The questioner : ... .
The Shaykh : In the chapter on the hadd of zina. So this is even more deserving. Therefore, the repetition of confession here, or the condition of repetition of confession here, is a unique feature of the madhhab of Imam Ahmad, as mentioned by the author of "Al-Insaf", meaning it is contrary to the saying of the three Imams. Also, the condition that he does not retract from his confession until the hadd is completed upon him was analogized to zina. It has been mentioned previously that the stronger position is that it is not required, and that if a person confesses against himself, the ruling is established upon him by virtue of his confession, and his retraction is not accepted. And the argument using the story of Ma'iz, where the Messenger of Allah (peace and blessings be upon him) saidMusannaf Ibn Abi Shaybah 20:705, is what kind of argument? Weak. Because Ma'iz did not retract from his confession of zina, but he retracted from what? The request to establish the hadd. There is a difference between them. And based on this, we say the correct view is that repetition of confession and persistence in confession are not required for the establishment of theft. And if he confesses, the hadd is established upon him even if it is only once, provided the conditions of confession are met, namely that he is of age, sane, and acting of his own free will. Now, is there a third way by which theft is established?
The questioner : Proof.
The Shaykh : Proof is two just witnesses.
The questioner : ... Circumstantial evidence ... .
The Shaykh : Circumstantial evidence is difficult. There is difficulty in destroying bodies and the original ruling is prohibition, based merely on circumstantial evidence. Yes, the madhhab is that there is no way for theft to be established other than these two ways. Some scholars added a third way, which is that the stolen item is found with the thief. If the stolen item is found with the thief, the hadd is established upon him unless he claims a doubt that prevents the hadd. An example of this is a person claiming against another that he stole his property.
The questioner : ... .
The Shaykh : The author says "Or a confession twice"; his intention is to specify the minimum, meaning a confession that does not fall below two times. If it exceeds that, it is stronger. The second condition for confession is persistence, to which he alluded by saying "and he does not retract". Move the 'ayn, is that right?
The questioner : ... .
The Shaykh : Close it? Close your eyes or open them, is that right?
The questioner : ... .
The Shaykh : Close means to close them. Now, did I close my eye or open it?
The questioner : ... .
The Shaykh : And he does not retract.
The questioner : And he does not retract with a sukun.
The Shaykh : If you close your eyes, you don't see anyone. If you open them, do you see or not?
The Shaykh : Now, which is better, to open or to close?
The questioner : To open.
The Shaykh : If it is better to open, then since it is better to open, open it. "And he does not retract from his confession" with the accusative case. Now, how do we make it accusative? What is the reason for the accusative?
The questioner : ... .
The Shaykh : Because it is a conjunction to a pure noun. Ibn Malik said:
"And if a pure noun is followed by a conjunction, you make it accusative with a present or deleted 'an'"
And its evidence is the saying of the poet:
"And wearing a cloak and my eye being pleased *** is dearer to me than wearing sheer garments"
Now, where is the explicit noun?
The questioner : Confession.
The Shaykh : He said "confession", except for "confess," or "a confession twice, and he does not retract," meaning and his not retracting. It is permissible to make it nominative if it is considered a new sentence. And his saying "he does not retract" means he does not return from his confession until the hadd is completed upon him. If he returns after the hadd is completed, is his return accepted or not?
The questioner : ... .
The Shaykh : Yes?
The questioner : It is executed.
The Shaykh : Now, people say that it is possible to perform an operation to restore the hand. If he retracted from his confession after he was amputated, do we say that because he retracted from his confession after he was amputated, we return his hand to him?
The questioner : ... .
The Shaykh : Yes?
The questioner : No.
The Shaykh : Even if it is possible?
The questioner : ... .
The Shaykh : Now, if he persists in his confession until we establish the hadd upon him and we amputate his hand, is it permissible to return it? No, because this is contrary to the purpose of the Lawgiver. The purpose of the Lawgiver is not just pain so that we say it was achieved by amputating it. The purpose of the Lawgiver is that it remains [amputated] and he has no hand. Now, regarding the issue raised months ago about restoring the hand of the thief who was amputated, we say this is not correct. It is obligatory that it remains severed and not be returned. Now, "and he does not retract from his confession until the hadd is completed upon him." What is the evidence that repetition is necessary? The evidence for that, they say, is because a thief was brought to the Messenger of Allah (peace and blessings be upon him), so he confessed that he had stolen. He said
I do not think you stole
ما إخالك سرقتSo he ordered his amputation
فأمر بقطعهI do not think you stole
ما إخالك سرقتO you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves
يا أَيُّهَا الَّذِينَ ءامَنُوا كُونُوا قَوَّامِينَ بِالْقِسْطِ شُهَداءَ لِلَّهِ وَلَوْ عَلى أَنْفُسِكُمْThe questioner : ... .
The Shaykh : In the chapter on the hadd of zina. So this is even more deserving. Therefore, the repetition of confession here, or the condition of repetition of confession here, is a unique feature of the madhhab of Imam Ahmad, as mentioned by the author of "Al-Insaf", meaning it is contrary to the saying of the three Imams. Also, the condition that he does not retract from his confession until the hadd is completed upon him was analogized to zina. It has been mentioned previously that the stronger position is that it is not required, and that if a person confesses against himself, the ruling is established upon him by virtue of his confession, and his retraction is not accepted. And the argument using the story of Ma'iz, where the Messenger of Allah (peace and blessings be upon him) said
Why don't you leave him to repent, so that Allah may accept his repentance?
هلا تركتموه يتوب فيتوب الله عليهThe questioner : Proof.
The Shaykh : Proof is two just witnesses.
The questioner : ... Circumstantial evidence ... .
The Shaykh : Circumstantial evidence is difficult. There is difficulty in destroying bodies and the original ruling is prohibition, based merely on circumstantial evidence. Yes, the madhhab is that there is no way for theft to be established other than these two ways. Some scholars added a third way, which is that the stolen item is found with the thief. If the stolen item is found with the thief, the hadd is established upon him unless he claims a doubt that prevents the hadd. An example of this is a person claiming against another that he stole his property.