Things for Which the Hand is Not Cut Off

32 Yahya related to me from Malik from Yahya ibn Sa'id from Muhammad ibn Yahya ibn Habban that a slave stole a small palm from a man's garden and planted it in his master's garden. The owner of the palm went out looking for the palm and found it. He asked Marwan ibn al-Hakam for help against the slave. Marwan jailed the slave and wanted to cut off his hand. The master of the slave rushed off to Rafi' ibn Khadij and asked him about it. Rafi' informed him that he heard 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 off his hand. I would like you to go with me to him so you can tell him what you heard from the Messenger of Allah, may Allah bless him and grant him peace." So Rafi' went with him to Marwan ibn al-Hakam and said, " Did you arrest a slave for this? " He replied, " Yes." He said, " What will you do with him? " He replied, " I intend to cut off his hand." Rafi' said to him, " I heard the Messenger of Allah, may Allah bless him and grant him peace, say, 'The hand is not cut off for fruit or palm pith.' Marwan therefore ordered that the slave be released."

[In Abu Dawud, at-Tirmidhi, an-Nasa'i and Ibn Majah]

33 Yahya related to me from Malik from Ibn Shihab from as-Sa'ib ibn Yazid that 'Abdullah ibn 'Amr ibn al-Hadrami brought a slave of his to 'Umar ibn al-Khattab and told him, " Cut off the hand of this slave of mine. He has stolen." 'Umar asked, " What did he steal? " He said, " He stole a mirror belonging to my wife. Its value was sixty dirhams." 'Umar said, " Let him go. His hand is not to be cut off. He is your servant who has stolen your belongings."

34 Yahya related to me from Malik from Ibn Shihab that Marwan ibn al-Hakam was brought a man who had snatched some goods and he wanted to cut his hand off. He sent to Zayd ibn Thabit to ask him about it. Zayd ibn Thabit told him, " The hand is not cut off for what is stolen by chance, openly, in haste."

35 Yahya related to me from Malik that Yahya ibn Sa'id said that Abu Bakr ibn Muhammad ibn 'Amr ibn Hazm informed him that he had taken a Nabatean who had stolen some iron rings and jailed him in order to cut off his hand. 'Amra bint 'Abd ar-Rahman sent a girl mawla called Umayya to him. Abu Bakr said that she had come to him while he was among the people and said that his aunt, 'Amra, sent word to him saying, " Nephew! You have taken a Nabatean for something insignificant which was mentioned to me. Do you mean to cut off his hand? " He had replied, " Yes." She said, " 'Amra tells you not to cut off the hand except for a quarter of a dinar or more."

Abu Bakr added, " So I let the Nabatean go."

Malik said, " The generally agreed on way of doing things among us about the confession of slaves is that, if a slave confesses something against himself, the hadd and punishment for it is inflicted on his own person. His confession is accepted from him and one does not suspect that he would inflict something on himself."

Malik said, " As for one of them who confesses to a matter which will incur damages against his master, his confession is not accepted against his master."

Malik said, " One does not cut off the hand of a hireling or a man who is with some people to serve them if he robs them because his state is not the state of a thief. His state is that of a treacherous one. The treacherous one does not have his hand cut off."

Malik said about a person who borrows something and then denies it, " His hand is not cut off. He is like a man who owes a debt to another man and denies it. He does not have his hand cut off for what he has denied."

Malik said, " The generally agreed on way of dealing among us with the thief who is found in a house and has gathered up goods and has not taken them out is that his hand is not cut off. That is like the man who places wine before him to drink and does not drink it. The hadd is not imposed on him. That is like a man who sits with a woman and desires to have haram intercourse with her and does not do it and he does not reach her. There is no hadd against that either."

Malik said, " The generally agreed on way of doing things among us is that there is no cutting off the hand for what is taken by chance, openly and in haste, whether or not its price reaches that for which the hand is cut off."

Drinks

42.1 The Hadd for Drinking Wine

1 Yahya related to me from Malik from Ibn Shihab that as-Sa'ib ibn Yazid informed him that 'Umar ibn al-Khattab came out to them. He said, " I have found the smell of wine on so-and-so and he claims that it was the drink of boiled fruit juice. I am inquiring about what he has drunk. If it intoxicates, I will flog him." 'Umar then flogged him with the full hadd.

[In Bukhari]

2 Yahya related to me from Malik from Thawr ibn Zayd ad-Dili that 'Umar ibn al-Khattab asked advice about a man drinking wine. 'Ali ibn Abi Talib said to him, " We think that you should flog him for it with eighty lashes - because when he drinks, he becomes intoxicated, and when he becomes intoxicated, he talks confusedly, and when he talks confusedly he tells lies." (Eighty Lashes is the same amount as for slander). 'Umar impsed eighty lashes for drinking wine.

3 Yahya related to me from Malik from Ibn Shihab that he was asked about the hadd imposed on a slave for drinking wine. He said, " I heard that he has half the hadd of a free man for drinking wine. 'Umar ibn al-Khattab, 'Uthman ibn 'Affan and 'Abdullah ibn 'Umar flogged their slaves with half of the hadd of a free man when they drank wine."

4 Yahya related to me from Malik from Yahya ibn Sa'id that he heard Sa'id ibn al-Musayyab say, " There is nothing that Allah does not like to be pardoned as long as it is not a hadd."

Yahya said that Malik said, " The sunna with us is that the hadd is imposed against anyone who drinks something intoxicating, whether or not he becomes drunk."

42.2 Containers Forbidden for Preparation of Nabidh*

5 Yahya related to me from Malik from Nafi' from 'Abdullah ibn 'Umar that the Messenger of Allah, may Allah bless him and grant him peace, addressed the people on one of his raids. 'Abdullah ibn 'Umar said, " I went towards him, but he finished before I reached him. I asked about what he had said. Someone said to me, 'He forbade preparing nabidh in a gourd or in a jug smeared with pitch.' "

* A drink prepared by boiling fruit.

[In Mulsim]

6 Yahya related to me from Malik from al-'Ala' ibn 'Abd ar-Rahman ibn Ya'qub from his father from Abu Hurayra that the Messenger of Allah, may Allah bless him and grant him peace, forbade preparing nabidh in a gourd or in a jug smeared with pitch.

[In Muslim]

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