"And that the one from whom the theft occurred demands his property"
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The Shaykh : Yes, he says, the sixth condition "And that the one from whom the theft occurred demands his property", this is the sixth condition "That the one from whom the theft occurred demands his property" What is his property?
The questioner : ... .
The Shaykh : The property that was stolen. If he does not demand it, then the hand is not cut off, even if the theft is proven. As long as the owner has not demanded it, we do not cut off the hand. Why? What is the evidence? The evidence is the hadith of Safwan ibn Umayyah, where he was sleeping on his cloak in the mosque of the Prophet (peace and blessings be upon him). A man came and stole it, so Safwan brought the matter to the Messenger of Allah (peace and blessings be upon him). The Prophet (peace and blessings be upon him) ordered that his hand be cut off. Safwan said, "O Messenger of Allah, will you cut off his hand for a cloak that is not worth thirty dirhams? I have already given it to him as a gift." The Prophet (peace and blessings be upon him) said,Sunan Ibn Majah 2595Hasan (Darussalam) This indicates that if he had given it to him before bringing the matter to the judge, right? The cutting off would have been dropped. So consider this evidence: is it valid to use it as proof for this issue, or is it not valid?
The questioner : It is not valid.
The Shaykh : Yes?
The questioner : It is not valid.
The Shaykh : All right, who said yes? We have great scholars who used this hadith as evidence for this issue. Do not just say no right away.
The questioner : Yes, Shaykh.
The Shaykh : Yes?
The questioner : Yes, for the sake of the evidence.
The Shaykh : Is there evidence in it?
The questioner : Yes, indeed.
The Shaykh : How is that?
The questioner : Because if he gave it to him, he owns it, and if he owns it...
The Shaykh : Yes.
The questioner : How can it be said that his hand is cut off.
The Shaykh : No, if he owns it, he is not demanding it. But if we assume that this thief stole, and it was proven before the judge that he stole, but no one came to say to him, "He stole from me," is the hand cut off or not? The school of thought says the hand is not cut off because no one came to demand it. That is, this man stole and was caught in the act, then he was brought to the judge, and the theft was proven by confession and testimony, but no one came to demand it. Yes?
The questioner : ... .
The Shaykh : The school of thought says the hand is not cut off, but my question is: is there evidence in the hadith of Safwan for this, or not?
The questioner : Yes.
The Shaykh : Yes?
The questioner : He says that demanding it is a condition.
The Shaykh : Yes, indeed.
The questioner : Demanding the property is a condition.
The Shaykh : That he demands his property.
The questioner : And the apparent meaning of the hadith of Safwan is that he only complained.
The Shaykh : Yes.
The questioner : He did not intend to demand it.
The Shaykh : Yes?
The questioner : If Safwan had not demanded it, meaning when he said, "I have given it to him," the Prophet (peace and blessings be upon him) clarified that if he had given it to him before coming, meaning before he demanded it...
The Shaykh : Yes.
The questioner : He did not cut it off.
The Shaykh : Yes, but the question is: if it did not reach the judge and they reconciled between themselves, the matter is over. But if the case reached the judge before he demanded it, is the hand cut off or not? The school of thought says the hand is not cut off due to the lack of demand. But do we say that this scenario applies to the story of Safwan?
The questioner : Yes.
The Shaykh : Right? Because Safwan was the one who brought the matter up. For this reason, Shaykh al-Islam Ibn Taymiyyah held the view that demanding it is not a condition, and that if the theft is proven, the hand is cut off, because the cutting off is for the protection of wealth. It is not a specific right of this man such that we say if he demands it, it is cut off, and if not, it is not. Unlike retaliation (qisas). Retaliation, yes, if he does not demand it, it is not carried out. Yes?
The questioner : It might be, O Shaykh, due to a doubt, for example.
The Shaykh : Who?
The questioner : The same thief... .
The Shaykh : No, the conditions were met. Among the conditions that were met was the absence of doubt. There is no doubt. That is, the previous conditions must also be observed. Yes?
The questioner : ... fingerprints, no ... a fourth way to identify the criminal?
The Shaykh : And what do you say?
The questioner : ... .
The Shaykh : He says that fingerprints exist that can be used to identify the perpetrator. Is this considered a fourth way?
The questioner : No.
The Shaykh : Huh?
The questioner : ... .
The Shaykh : All right, we have a doctor. Let's see. Did he speak?
The questioner : No, it is not because there might be an error in the fingerprints, but it is possible that he touched the place at another time or in another place other than the time of the theft.
The Shaykh : How?
The questioner : That is, it is possible that the fingerprints were placed at a time other than the time of the theft. That is, he stole...
The Shaykh : Yes.
The questioner : And he came here five days or a week ago.
The Shaykh : Yes.
The questioner : The fingerprints are present, but they are not evidence.
The Shaykh : Wait, wait. Right?
The questioner : It might be a circumstantial indication, but not evidence.
The Shaykh : A circumstantial indication, but it is not proof.
The questioner : ... .
The Shaykh : It is not definitive, because it is possible that the one who touched the door that was stolen from touched it before the theft or after the theft as well. Or is that not possible?
The questioner : ... .
The Shaykh : But if we say that there are no fingerprints other than this one, and if there is a fingerprint, the trace of another fingerprint, we might say that even if only this fingerprint is found, there is a possibility that it was before the theft or after it, and that the thief avoided touching this door. Yes, or he touched it with a stick or something similar. Yes?
The questioner : ... .
Another questioner: ... catching him in the act of theft.
The Shaykh : Yes, this contains proof. If they saw him enter the door, break the door, and steal, this is clear proof. This is the testimony. But if they caught him merely because they saw a man running away and caught him, and he had the money with him, this does not indicate theft. Yes?
The questioner : ... .
The Shaykh : It is distributed for the interests of the Muslims and the poor Muslims, for mosques and schools, and printing books, and the poor among the Muslims, everything they need. Yes.
The questioner : ... the fay' that belongs to Allah.
The Shaykh : Huh?
The questioner : The fay' that belongs to Allah... .
The Shaykh : What?
The questioner : The fay' that belongs to Allah, how is it distributed?
The Shaykh : It is distributed for the interests of the Muslims and the poor... for mosques and schools, printing books, and the poor among the Muslims, and everything they need. Yes?
The questioner : ... the witness.
The Shaykh : Huh?
The questioner : ... an intoxicant does not affect the testimony.
The Shaykh : Yes.
The questioner : ... .
The Shaykh : We have previously mentioned that if people accept the witness, his testimony is accepted, even if he has some sins. Because the condition that he does not commit a major sin and does not persist in a minor sin means that we would not find anyone whose testimony is valid.
The questioner : ... .
The Shaykh : The property that was stolen. If he does not demand it, then the hand is not cut off, even if the theft is proven. As long as the owner has not demanded it, we do not cut off the hand. Why? What is the evidence? The evidence is the hadith of Safwan ibn Umayyah, where he was sleeping on his cloak in the mosque of the Prophet (peace and blessings be upon him). A man came and stole it, so Safwan brought the matter to the Messenger of Allah (peace and blessings be upon him). The Prophet (peace and blessings be upon him) ordered that his hand be cut off. Safwan said, "O Messenger of Allah, will you cut off his hand for a cloak that is not worth thirty dirhams? I have already given it to him as a gift." The Prophet (peace and blessings be upon him) said,
Why did you not give it to him before you brought him to me?
هلا كان قبل أن تأتيَني بهThe questioner : It is not valid.
The Shaykh : Yes?
The questioner : It is not valid.
The Shaykh : All right, who said yes? We have great scholars who used this hadith as evidence for this issue. Do not just say no right away.
The questioner : Yes, Shaykh.
The Shaykh : Yes?
The questioner : Yes, for the sake of the evidence.
The Shaykh : Is there evidence in it?
The questioner : Yes, indeed.
The Shaykh : How is that?
The questioner : Because if he gave it to him, he owns it, and if he owns it...
The Shaykh : Yes.
The questioner : How can it be said that his hand is cut off.
The Shaykh : No, if he owns it, he is not demanding it. But if we assume that this thief stole, and it was proven before the judge that he stole, but no one came to say to him, "He stole from me," is the hand cut off or not? The school of thought says the hand is not cut off because no one came to demand it. That is, this man stole and was caught in the act, then he was brought to the judge, and the theft was proven by confession and testimony, but no one came to demand it. Yes?
The questioner : ... .
The Shaykh : The school of thought says the hand is not cut off, but my question is: is there evidence in the hadith of Safwan for this, or not?
The questioner : Yes.
The Shaykh : Yes?
The questioner : He says that demanding it is a condition.
The Shaykh : Yes, indeed.
The questioner : Demanding the property is a condition.
The Shaykh : That he demands his property.
The questioner : And the apparent meaning of the hadith of Safwan is that he only complained.
The Shaykh : Yes.
The questioner : He did not intend to demand it.
The Shaykh : Yes?
The questioner : If Safwan had not demanded it, meaning when he said, "I have given it to him," the Prophet (peace and blessings be upon him) clarified that if he had given it to him before coming, meaning before he demanded it...
The Shaykh : Yes.
The questioner : He did not cut it off.
The Shaykh : Yes, but the question is: if it did not reach the judge and they reconciled between themselves, the matter is over. But if the case reached the judge before he demanded it, is the hand cut off or not? The school of thought says the hand is not cut off due to the lack of demand. But do we say that this scenario applies to the story of Safwan?
The questioner : Yes.
The Shaykh : Right? Because Safwan was the one who brought the matter up. For this reason, Shaykh al-Islam Ibn Taymiyyah held the view that demanding it is not a condition, and that if the theft is proven, the hand is cut off, because the cutting off is for the protection of wealth. It is not a specific right of this man such that we say if he demands it, it is cut off, and if not, it is not. Unlike retaliation (qisas). Retaliation, yes, if he does not demand it, it is not carried out. Yes?
The questioner : It might be, O Shaykh, due to a doubt, for example.
The Shaykh : Who?
The questioner : The same thief... .
The Shaykh : No, the conditions were met. Among the conditions that were met was the absence of doubt. There is no doubt. That is, the previous conditions must also be observed. Yes?
The questioner : ... fingerprints, no ... a fourth way to identify the criminal?
The Shaykh : And what do you say?
The questioner : ... .
The Shaykh : He says that fingerprints exist that can be used to identify the perpetrator. Is this considered a fourth way?
The questioner : No.
The Shaykh : Huh?
The questioner : ... .
The Shaykh : All right, we have a doctor. Let's see. Did he speak?
The questioner : No, it is not because there might be an error in the fingerprints, but it is possible that he touched the place at another time or in another place other than the time of the theft.
The Shaykh : How?
The questioner : That is, it is possible that the fingerprints were placed at a time other than the time of the theft. That is, he stole...
The Shaykh : Yes.
The questioner : And he came here five days or a week ago.
The Shaykh : Yes.
The questioner : The fingerprints are present, but they are not evidence.
The Shaykh : Wait, wait. Right?
The questioner : It might be a circumstantial indication, but not evidence.
The Shaykh : A circumstantial indication, but it is not proof.
The questioner : ... .
The Shaykh : It is not definitive, because it is possible that the one who touched the door that was stolen from touched it before the theft or after the theft as well. Or is that not possible?
The questioner : ... .
The Shaykh : But if we say that there are no fingerprints other than this one, and if there is a fingerprint, the trace of another fingerprint, we might say that even if only this fingerprint is found, there is a possibility that it was before the theft or after it, and that the thief avoided touching this door. Yes, or he touched it with a stick or something similar. Yes?
The questioner : ... .
Another questioner: ... catching him in the act of theft.
The Shaykh : Yes, this contains proof. If they saw him enter the door, break the door, and steal, this is clear proof. This is the testimony. But if they caught him merely because they saw a man running away and caught him, and he had the money with him, this does not indicate theft. Yes?
The questioner : ... .
The Shaykh : It is distributed for the interests of the Muslims and the poor Muslims, for mosques and schools, and printing books, and the poor among the Muslims, everything they need. Yes.
The questioner : ... the fay' that belongs to Allah.
The Shaykh : Huh?
The questioner : The fay' that belongs to Allah... .
The Shaykh : What?
The questioner : The fay' that belongs to Allah, how is it distributed?
The Shaykh : It is distributed for the interests of the Muslims and the poor... for mosques and schools, printing books, and the poor among the Muslims, and everything they need. Yes?
The questioner : ... the witness.
The Shaykh : Huh?
The questioner : ... an intoxicant does not affect the testimony.
The Shaykh : Yes.
The questioner : ... .
The Shaykh : We have previously mentioned that if people accept the witness, his testimony is accepted, even if he has some sins. Because the condition that he does not commit a major sin and does not persist in a minor sin means that we would not find anyone whose testimony is valid.