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Malik related to me from Ibn Shihab from Ubaydullah ibn Abdullah
ibn Utba ibn Masud that Abu Hurayra and Zayd ibn Khalid al-Juhani
informed him that two men brought a dispute to the Messenger of Allah,
may Allah bless him and grant him peace. One of them said, "Messenger
of Allah! Judge between us by the Book of Allah!" The other said, and
he was the wiser of the two, "Yes, Messenger of Allah. Judge between
us by the Book of Allah and give me permission to speak." He said,
"Speak." He said, "My son was hired by this person and he committed
fornication with his wife. He told me that my son deserved stoning,
and I ransomed him for one hundred sheep and a slave-girl. Then I
asked the people of knowledge and they told me that my son deserved to
be flogged with one hundred lashes and exiled for a year, and they
informed me that the woman deserved to be stoned." The Messenger of
Allah, may Allah bless him and grant him peace, said, "By him in whose
Hand myself is, I will judge between you by the Book of Allah. As for
your sheep and slave girl, they should be returned to you. Your son
should have one hundred lashes and be exiled for a year." He ordered
Unays al-Aslami to go to the wife of the other man and to stone her if
she confessed . She confessed and he stoned her.
Malik related to me from Zurayq ibn Hakim al-Ayli that a man
called Misbah asked his son for help and he thought him unnecessarily
slow. When the son came, his father said to him, "O fornicator."
Zurayq said, "So the son asked me to help him against the father. When
I wanted to flog him, his son said, 'By Allah, if you flog him, I will
acknowledge that I have committed fornication.' When he said that, the
situation was confused for me, so I wrote about it to Umar ibn Abd al-
Aziz who was the governor at that time, and I mentioned it to him.
Umar wrote me to permit his pardon."
Zurayq said, "I wrote to
Umar ibn Abd al-Aziz also, 'What do you think about a man who is
slandered or his parents are slandered and both or only one of them
are dead?' He said, Umar wrote to me, 'If he forgives, his pardon is
permitted for himself. If his parents are slandered and one or both of
them are dead, take the judgement of the Book of Allah for it unless
he wants to veil it.' "
Yahya said, "I heard Malik say, 'That
is because the slandered man might fear that if that is unveiled about
him, a clear proof might be established. If it is according to what we
have described, his pardon is permitted."
Yahya related to me from Malik that Abu'z-Zinad informed him that
a governor of Umar ibn Abd al-Aziz took some people in battle and had
not killed any of them. He wanted to cut off their hands or kill them,
so he wrote to Umar ibn Abd al-Aziz about that Umar ibn Abd al-Aziz
wrote to him, "Better to take less than that."
Yahya said
that he heard Malik say, "What is done among us about a person who
steals the goods of people which are placed under guard in the
markets, and their owners put them in their containers and store them
together is that if anyone steals any of that from where it is kept,
and its value reaches that for which cutting off the hand is obliged,
his hand must be cut off, whether or not the owner of the goods is
with his goods and whether it is night or day."
Malik said
about some one who stole something for which cutting off the hand was
obliged and then what he stole was found with him and he returned it
to its owner, "His hand is cut off."
Malik said, "If someon
says, 'How can his hand be cut off when the goods have been taken from
him and returned to their owner?', it is because he is in the same
position as the wine drinker when the smell of the wine is found on
his breath and he is not drunk. He is flogged with the hadd.
"The hadd is imposed for drinking wine even if it does not make the
man intoxicated. That is because he drank it to become intoxicated. It
is the same as that with cutting off the hand of the thief for theft
when it is taken from him, even if he has not profited from it and it
was returned to its owner. When he stole it, he stole it to take it
away."
Malik said that if some people came to a house and
robbed it together, and then they left with a sack or box or a board
or basket or the like of that which they carried together, and when
they took it out of its guarded place, they carried it together, and
the price of what they took reached that for which cutting off the
hand was obliged, and that was three dirhams and upwards, each of them
had his hand cut off.
"If each of them takes out something by
himself, whoever of them takes out something whose value reaches three
dirhams and upwards must have his hand cut off. If any of them takes
out something whose value does not reach three dirhams, he does not
have his hand cut off."
Yahya said that Malik said, "What is
done among us is that when a man's house is locked and he is the only
one living in it, cutting off the hand is not obliged against the one
who steals something from it until he takes it out of the house
completely. That is because all of the house is a place of custody. If
someone other than him lives in the house and each of them locks his
door, and it is a place of custody for each of them, whoever steals
anything from the apartments of that house must have his hand cut off
when he leaves the apartment and goes into the main house. He has
removed it from its place of custody to another place and he must have
his hand cut off."
Malik said, "What is done in our community
about a slave who steals from the property of his master is that if he
is not in service and among those trusted in the house and he enters
secretly and steals from his master something that for which cutting
off the hand is obliged, his hand is not cut off. It is like that with
a slave-girl when she steals from her master's property. Her hand is
not cut off."
Malik then spoke about a slave who was not in
service and not one of those trusted in the house, and he entered
secretly and stole from the property of his master's wife that for
which cutting off the hand was obliged. He said, "His hand is cut
off."
"It is like that with the wife's slave-girl when she
does not serve her or her husband nor is she trusted in the house and
she enters secretly and steals from her mistress's property that for
which cutting off the hand is obliged. Her hand is not cut off."
"It is like that with the wife's slave-girl who is not in her
service and is not trusted in the house and she enters secretly and
steals from the property of her mistress's husband something for which
cutting off the hand is obliged. Her hand is cut off."
It is
like that with the man who steals from his wife's goods or the wife
who steals from her husband's goods something for which cutting off
the hand is obliged. If the thing which one of them steals from his
spouse's property is in a room other than the room which they both
lock for themselves, or it is in a place of custody in a room other
than the room which they are in, whichever of them steals something
for which cutting off the hand is obliged, their hand should be cut
off."
Malik spoke about a small child and a foreigner who
does not speak clearly. He said, "If they are robbed of something from
its place of custody or from under a lock, the one who stole it has
his hand cut off. If the property is outside of its place of custody
or locked room(when it is stolen), the one who robbed them does not
have his hand cut off. It is then in the position of sheep stolen from
the mountain and uncut fruit hanging on the trees "
Malik
said, "What is done among us about a person who robs graves is that if
what he takes from the grave reaches what cutting off the hand is
obliged for, his hand is cut off . That is because the grave is a
place of custody for what is in it just as houses are a place of
custody for what is in them. "
Malik added, "Cutting off the
hand is not obliged for him until he takes it out of the grave."
Malik related to me from Hisham ibn Urwa that his father said
that there was only one hadd against a man who slandered a group of
people.
Malik said, "If they are on separate occasions there
is still only one hadd against him."
Malik related to me from
Abu'r-Rijal Muhammad ibn Abd ar-Rahman ibn Haritha ibn an-Numan al-
Ansari, then from the Banu'n-Najar from his mother Amra bint Abd ar-
Rahman that two men cursed each other in the time of Umar ibn al-
Khattab. One of them said to the other, " By Allah, my father is not
an adulterer and my mother is not an adulteress." Umar ibn al-Khattab
asked advice about that. One person said, "He has praised his father
and mother." Another said, "His father and mother have praise other
than this. We think that he is to be flogged with the hadd." So Umar
flogged him with the hadd of eighty lashes.
Malik said,
"There is no hadd in our view except for slander, denial or
insinuation, in which one sees that the speaker intends by that denial
or slander. Then the hadd is completely imposed on the one who said
it."
Malik said, "What is done in our community when a man
denies that another man is from his father, is that he deserves the
hadd. If the mother who is denied is a slave, then he deserves the
hadd as well. '
Malik related to me that he had heard that Uthman ibn Affan was
brought a woman who had given birth after six months and he ordered
her to be stoned. Ali ibn Abi Talib said to him, "She does not deserve
that. Allah, the Blessed, the Exalted, says in His Book, 'Their
carrying and weaning is thirty months,' (Sura 46 ayat 15) and he said,
'Mothers suckle their children for two full years for whoever wishes
to complete the suckling.' (Sura 2 ayat 233) Pregnancy can then be six
months, so she does not deserve to be stoned." Uthman ibn Affan sent
for her and found that she had already been stoned.
Malik
related to me that he asked Ibn Shihab about someone who committed
sodomy. Ibn Shihab said, "He is to be stoned, whether or not he is
muhsan."
Yahya related to me from Malik from Yahya ibn Said from Muhammad
ibn Yahya ibn Habban that a slave stole a small palm from a man's
garden and planted it in the garden of his master. The owner of the
palm went out looking for the palm and found it. He asked for help
against the slave from Marwan ibn al-Hakam. 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. He
said, "Did you arrest a slave for this?" He said, "Yes." He said,
"What will you do with him?" He said, "I want 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 dates or palm
pith.' Marwan therefore ordered the slave to be released."
Malik related to me that Yahya ibn Said heard Said ibn al-
Musayyab say, "When Umar ibn al-Khattab came from Mina, he made his
camel kneel at al-Abtah, and then he gathered a pile of small stones
and cast his cloak over them and dropped to the ground. Then he raised
his hands to the sky and said, 'O Allah! I have become old and my
strength has weakened. My flock is scattered. Take me to You with
nothing missed out and without having neglected anything.' Then he
went to Madina and addressed the people. He said, 'People! Sunan have
been laid down for you. Obligations have been placed upon you. You
have been left with a clear way unless you lead people astray right
and left.' He struck one of his hands on the other and then said,
'Take care lest you destroy the ayat of stoning so that one will say,
"We do not find two hadds in the Book of Allah." The Messenger of
Allah, may Allah bless him and grant him peace, stoned, so we have
stoned. By He in Whose Hand my self is, had it not been that people
would say that Umar ibn al-Khattab has added to the Book of Allah ta-
ala, we would have written it, "The full-grown man and the full-grown
woman, stone them absolutely." We have certainly recited that.'"
Malik said, "Yahya ibn Said said Said ibn al-Musayyab said,
'Dhu'l-Hijja had not passed before Umar was murdered, may Allah have
mercy on him.' "
Yahya said that he had heard Malik say, "As
for his words 'The full-grown man and the full-grown woman' he meant,
'The man and the woman who have been married, stone them absolutely.'
"
Malik said, "The position with us about a woman who is found to
be pregnant and has no husband and she says, 'I was forced,' or she
says, 'I was married,' is that it is not accepted from her and the
hadd is inflicted on her unless she has a clear proof of what she
claims about the marriage or that she was forced or she comes bleeding
if she was a virgin or she calls out for help so that someone comes to
her and she is in that state or what resembles it of the situation in
which the violation occurred." He said, "If she does not produce any
of those, the hadd is inflicted on her and what she claims of that is
not accepted from her."
Malik said, "A raped woman cannot
marry until she has restored herself by three menstrual periods."
He said, "If she doubts her periods, she does not marry until she
has freed herself of that doubt."
Malik related to me from Zayd ibn Aslam that a man confessed to
fornication in the time of the Messenger of Allah, may Allah bless him
and grant him peace. The Messenger of Allah, may Allah bless him and
grant him peace, called for a whip, and he was brought a broken whip.
He said, "Above this," and he was brought a new whip whose knots had
not been cut yet. He said, "Below this," and he was brought a whip
which had been used and made flexible. The Messenger of Allah, may
Allah bless him and grant him peace, gave the order and he was
flogged. Then he said, "People! The time has come for you to observe
the limits of Allah. Whoever has had any of these ugly things befall
him should cover them up with the veil of Allah. Whoever reveals to us
his wrong action, we perform what is in the Book of Allah against
him."
Malik related to me from Yaqub ibn Zayd ibn Talha from his father
Zayd ibn Talha that Abdullah ibn Abi Mulayka informed him that a woman
came to the Messenger of Allah, may Allah bless him and grant him
peace, and informed him that she had committed adultery and was
pregnant. The Messenger of Allah, may Allah bless him and grant him
peace, said to her, "Go away until you give birth." When she had given
birth, she came to him. The Messenger of Allah, may Allah bless him
and grant him peace, said to her, "Go away until you have suckled and
weaned the baby." When she had weaned the baby, she came to him. He
said, "Go and entrust the baby to someone." She entrusted the baby to
someone and then came to him. He gave the order and she was stoned.
Malik related to me from Yahya ibn Said from Said ibn al-Musayyab
that a man from the Aslam tribe came to Abu Bakr as-Siddiq and said to
him, "I have committed adultery." Abu Bakr said to him, "Have you
mentioned this to anyone else?" He said, "No." Abu Bakr said to him,
"Then cover it up with the veil of Allah. Allah accepts tawba from his
slaves." His self was still unsettled, so he went to Umar ibn al-
Khattab. He told him the same as he had said to Abu Bakr, and Umar
told him the same as Abu Bakr had said to him. His self was still not
settled so he went to the Messenger of Allah, may Allah bless him and
grant him peace, and said to him, "I have committed adultery,"
insistently. The Messenger of Allah, may Allah bless him and grant him
peace, turned away from him three times. Each time the Messenger of
Allah, may Allah bless him and grant him peace, turned away from him
until it became too much. The Messenger of Allah, may Allah bless him
and grant him peace, questioned his family, "Does he have an illness
which affects his mind, or is he mad?" They said, "Messenger of Allah,
by Allah, he is well." The Messenger of Allah, may Allah bless him and
grant him peace, said, "Unmarried or married?" They said, "Married,
Messenger of Allah." The Messenger of Allah, may Allah bless him and
grant him peace, gave the order and he was stoned.
Yahya related to me from Malik from Ibn Shihab from Safwan ibn
Abdullah ibn Safwan that it was said to Safwan ibn Umayya, "Whoever
does not do hijra is ruined." So Safwan ibn Umayya went to Madina and
slept in the mosque with his cloak as a pillow. A thief came and took
his cloak and Safwan grabbed hold of the thief and brought him to the
Messenger of Allah, may Allah bless him and grant him peace. The
Messenger of Allah, may Allah bless him and grant him peace, said to
him, "Did you steal this cloak?" He said, "Yes." So the Messenger of
Allah, may Allah bless him and grant him peace, ordered that his hand
be cut off. Safwan said to him, "I did not intend this. It is his as
sadaqa." The Messenger of Allah, may Allah bless him and grant him
peace, said, "Why didn't you do it before bringing him to me?"
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim
from his father that a man from Yemen who had his hand and foot cut
off came and went before Abu Bakr as-Siddiq and complained to him that
the governor of the Yemen had wronged him, and the man used to pray
part of the night. Abu Bakr said, "By your father, your night is not
the night of a thief." Then they missed a necklace of Asma bint Umays,
the wife of Abu Bakr as-Siddiq. The man came to go around with them
looking for it. He said, "O Allah! You are responsible for the one who
invaded the people of this good house by night!" They found the
jewelry with a goldsmith. He claimed that the maimed man had brought
it to him. The maimed man confessed or it was testified against him.
Abu Bakr as-Siddiq ordered that his left hand be cut off. Abu Bakr
said, "By Allah! His dua against himself is more serious, as far as I
am concerned, than his theft."
Yahya said that Malik said,
"What is done among us about the person who steals several times and
is then called to reckoning, is that only his hand is cut off for all
he stole when the hadd has not been applied againsthim. If the hadd
has been applied against him before that, and he steals what obliges
cutting off, then the next limb is cut off."
Malik related to me from Nafi that Abdullah ibn Umar said, "The
Jews came to the Messenger of Allah, may Allah bless him and grant him
peace, and mentioned to him that a man and woman from among them had
committed adultery. The Messenger of Allah, may Allah bless him and
grant him peace, asked them, 'What do you find in the Torah about
stoning?' They said, 'We make their wrong action known and flog them.'
Abdullah ibn Salam said, 'You have lied! It has stoning for it, so
bring the Torah.' They spread it out and one of them placed his hand
over the ayat of stoning. Then he read what was before it and what was
after it. Abdullah ibn Salam told him to lift his hand. He lifted his
hand and there was the ayat of stoning. They said, 'He has spoken the
truth, Muhammad. The ayat of stoning is in it.' So the Messenger of
Allah, may Allah bless him and grant him peace, gave the order and
they were stoned . "
Abdullah ibn Umar added, "I saw the man
leaning over the woman to protect her from the stones."
Malik
commented, "By leaning he meant throwing himself over her so that the
stones fell on him."
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn
Hazim that Amra bint Abd ar-Rahman said, "A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, went out to Makka
and she had two girl mawlas of hers and a slave belonging to the sons
of Abdullah ibn Abi Bakr as-Siddiq . She sent a figured cloak with the
two mawlas which was sewn up in a piece of green cloth."
Amra
continued, "The slave took it and unstitched it and took out the
cloak. In its place, he put some felt or skin and sewed it up again.
When the mawla girls came to Madina, they gave it to his people. When
they opened it, they found felt in it and did not find the cloak. They
spoke to the two women and they spoke to A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, or they wrote to her
and suspected the slave. The slave was asked about it and confessed.
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, gave the order and his hand was cut off. A'isha said, 'A
thief's hand is cut off for a quarter of a dinar and upwards.' "
Malik said, "The limit I prefer above which cutting off the hand
is obliged is three dirhams, whether the exchange is high or low. That
is because the Messenger of Allah, may Allah bless him and grant him
peace, cut off the hand of a thief for a shield whose value was three
dirhams, and Uthman ibn Affan cut off the hand of a thief for a citron
which was estimated at three dirhams. This is what I prefer of what I
have heard on the matter."
Yahya related to me from Malik that Zurayq ibn Hakim informed him
that he had a runaway slave who had stolen. He said, "The situation
was obscure for me, so I wrote to Umar ibn Abd al-Aziz to ask him
about it. He was the governor at that time. I informed him that I had
heard that if a runaway slave stole while he was a fugitive, his hand
was not cut off. 'Umar ibn Abd al-Aziz wrote to contradict my letter,
'You wrote to me that you have heard that when the runaway slave
steals, his hand is not cut off. Allah, the Blessed, the Exalted, says
in His Book, 'The thief, male and female, cut off the hands of both,
as a recompense for what they have earned, and an exemplary punishment
from Allah. Allah is Mighty, Wise.' (Sura 5 ayat 41) When his theft
reaches a quarter of a dinar, and upwards, his hand is cut off.' "
Yahya related to me from Malik that he had heard that al-
Qasim ibn Muhammad and Salim ibn Abdullah and Urwa ibn az-Zubayr said,
"When a runaway slave steals something for which cutting off the hand
is obliged, his hand is cut off."
Malik said, "The way of
doing things amongst us about which there is no dispute is that when
the runaway slave steals that for which cutting off the hand is
obliged, his hand is cut off."
Yahya related to me from Malik that Yahya ibn Said 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 to him called
Umayya. 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, "Son of my
brother! You have taken a Nabatean for something insignificant which
was mentioned to me. Do you want to cut off his hand?" He had said,
"Yes." She said, ''Amra says to you not to cut off the hand except for
a quarter of a dinar and upwards."
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 body. His confession is accepted from him and
one does not suspect that he would inflict something on himself."
Malik said, "As for the one of them who confesses to a matter
which will incur damages agains this 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 the state 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 it and does not do 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."
