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Sariqah Def The act of taking away the property of another person surreptitiously, without the knowledge and consent of that person. (5):38 “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.”BASIC C...

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Sariqah Def (5):38

BASIC CONDITIONS FOR THEFT LIABLE TO HADD

The offender stole the property surreptitiously

The act of taking away the property of another person surreptitiously, without the knowledge and consent of that person. “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.” • • • • •

STEAL SURREPTITIOUSLY FULFILL AL THE CONDITIONS OF A PROPERTY TAKEN FROM HIRZ REACH NISAB OWNED BY SOMEONE ELSE

SURREPTITIOUSLY means • Stealthily • Secretly • Concealed manner Act of taking surreptitiously must be complete;(when he stated to initiate the action until the time he completed the action 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 for TAKING Ali’s property – when Abu was not home, and no one was there to see him. HOW TO DETERMINE • If day time – the surreptitiousness must continue till the completion of the offence “SURREPTITIOUSNESS” -only liable for sariqah after the completed all – IBN HUMAM • If at night – the surreptitiousness is only required at the start of the offence 2. FULFILL THE • PROPERTY CONDITIONS OF A Moveable VALID PROPERTY Valuable Significant (imam abu hanifah) insignificant- khinzir, wine- not liable for amputation

3. The property is taken from the custody (hirz) of the owner

Non-perishable (imam abu hanifah) - perishable property – foodstuff even though in bulk- not liable for had but ta’zir common thing? – not liable • 1. LIMITED ENTRY House- (get permission otherwise break the lock) • 2. GUARDED GOODS • IMAM SYAFIE & AHMAD

CONDITIONS OF HIRZ HOUSE

THINGS THAT WOULD DISQUALIFY THE CONDITION OF HIRZ (LIMITED ENTRY)

EXAMPLE OF HIRZ – GUARDED PROPERTY DISQUALIFY THE CONDITION OF HIRZ (GUARDED GOODS/PLACE)

• Hirz of a guaded place means that it is in a city or populated place; and • It is closed . • IMAM ABU HANIFAH • Not particular – so long as the place has been designated as a place for keeping goods/property. • If the place can be entered by 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 • Populated area • Must be locked; • If not locked – there must be a person or persons in it • Example of hirz by imam syafie & ahmad Imam abu hanifah Permission granted to enter premise Guest – steal – not liable for hadd Majority Permission granted to enter; Door open (owner didn’t lock, not careful) Place has defect – faulty windows, loose shingles not liable for had but ta’zir Guards physically present; Places with limited entry , like offices that has a strong room; Passwords needed to access online documents; (online banking) Incompetent • Not check all the premise • Not look at cctv Negligent • Sleeping on the job • Fail to lock certain rooms Not liable for had but ta’zir

PROPERTY NOT UNDER HIRZ

4. The property reaches the required nisab

• Public places – mosque, musolla, canteen • Open spaces – parks, grave (imam abu hanifah) • Fruit trees with no owner (imam abu hanifah) Theft - Not liable for hadd Based on the Sunnah – In a hadith narrated from Ahmad from Aishah: Cut of their hand in cases (theft) of more than 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 can be liable for hadd.

Literal meaning

Legal Meaning

HIRABAH Arabic word of Hirabah comes from the root word of haraba ‫ حرب‬which means to be furious or angry To fight/ wage war Qat’u al- tariq- disturbing a public road Al- sariqah al kubra- a more serious type of theftWithout surreptitiousness( element of surrup. Is missing- replace with force and weapon) Fasad fil ard- creating mischief on earth – disrupting peace Acts of terrorism? Hanafi jurist- unlawful act • • •

• • •

• •

By person or group Taking another person’s property by force Hanbali jurists- the cat of robbery done by armed person Who cannot reasonably accept help from anyone (trap/ far away from people) Imam malik- the act of terrorising people for the purpose of robbery or other unlawful purpose Causing injury / raping a person / other unlawful act- wide Imam shafie- act of robbing- by group of people Armed with weapons In the desert or highway/ village Al mawardi- waiting by the highway- to steal a traveller’s property by force Imam abu hanifah- hirabah – only on highway Act of taking property by force Where help of others not possible Modern definition- hashim kamali- the desire to cause fear, terror and insecurity in society through indiscriminate use of violence, often for political ends.

Abu Hanifah, Ahmad and Syiah Zaidiyah that hirabah is going out to take property of travelers' by force. Al-Shafi’iyyah that hirabah means the act of taking the property of others or killing others by force with condition that no help is available. Malikis extended their explanation (of Shafi’yyah) to include that even by having no force, it is also termed as hirabah Conclusion of juristic opinions: two groups:

Examples of hirabah

Surah al-Maidah (5 :33

Abu Hanifah, followed by Syiah Zaidiiyyah that the place for hirabah is highway where usually it is difficult to get help from other people or inhabitants. Thus, to these jurists -when a crime committed far away from the inhabitants, then the hadd punishment can be imposed. But if it is committed in the town where usually the help is available, then ta’zir punishment can only be imposed Robbery – taking property with the use of force- victim in no position to fight Must fulfil requirement as to property Fulfil the required nisab Taken from hirz Extortion Rape & drug trafficking Terrorising a person/ group Kidnapping?- snatch theft = hirabah not sariqah 1. Take property & kill/ injure 2. Killing & destroying but no taking taking of property 3. Take property only by use of force 4. Cause fear only the penalty for those who wage war against Allah and His Messenger and spread mischief in the land is death, crucifixion, cutting off their hands and feet on opposite sides, or exile from the land. This ˹penalty˺ is a disgrace for them in this world, and they will suffer a tremendous punishment in the Hereafter 34- As for those who repent before you seize them, then know that Allah is AllForgiving, Most Merciful. Wage war- doing something which Allah prohibited, could cause hurt, fear, terrorise other people – afftect the rights of Allah and rights of other being mischief in the land- hurt others- various types of act Hirabah Sariqah Taking property violently

Taking property by stealth

1st Elements

2nd element

3rd element

Evidentiary requirement Shahadah -verify by the court Eyewitness testimony Punishment

Majority, Abu Hanifah, al-Syafi'i, Ahmad and Syi'ah Zaidiyyah,

Imam Malik

Could also involve other crimes The crime is specifically for taking away Killing, causing hurt, causing fear property With or without taking property Punishment depends on the crime Punishment – cutting off the hand committed Act of taking Use of force Abu hanifah= must be armed Malik & shafie= use of force – whether by weapons or other means Place of hirabah Abu hanifah- must be done on the road, highway or while on a journey Al sarakhsi- uninhabited area, difficult to get help from others Imam malik & shafie- it can happen anywhere, must be couple with the use of force Imam al Ghazali- may happen anywhere – no chance pf obtaining help from others The victim Must be muhdar- a protected person Muslim, zimmis, ahlul ‘ahad Admission of guilt (ikrar) A person need to admit 2 times in different sittings, he is aqil, baligh, mukhtar (nobody force him to admit) 2 witnesses or more Mukallaf, adil, nt blind/ deaf/ muslim/ men Women/ non-muslim testimony- the punishment not had but severe ta’zir Basis of punishment – 33 & 34 death, crucifixion cutting off their hands and feet on opposite sides exile from the land- banishment or imprisonment diyat & irsy and amputation They agreed that the punishment to be imposed is based on the nature of commission every act will entail a specific punishment the word aw means the degree of crime.( look at the severity) This means that the punishment which is going to be imposed must be based on the circumstances and degree of the case. Define the word as – each act will entail a specific punishment If a person merely causes fear but has not yet robbed, the punishment- banishment The government has the authority to determine the type of punishment from (5:33) Aw= or- gov has the right to choose to implement

word aw gives the meaning of option. This means that the authority has the option based on his discretion to impose its punishment. the nature of the form of act being committed is not disputed, but not all to be based on its circumstances. Besides such situations, the authority or the judge has the right to choose under the concept of degree of flexibility which stated in al-Qur'an. For example -either killing or killing and crucifixion. Murder Murder + robbing

Robbing only

Modes of execution Length of time Crucifixion Effect of repentance

Killing & diyat Killing = crucifixion Hanifah – crucify with spear- then killing Shafie& hanbali- kill with sword then crucify Amputation of hands and feet on opposite sides

Threat only banishment or imprisonment Robbing + causing Amputation of hands and feet on opposite sides injury Irsy payable Shafie- death penalty then crufied Malik, hanifah, - crucified then death penalty Imam abu yusuf – leave in crucified position till the body rots Imam abu hanifah & shafie- 3 days- family can take and bury Malik, shafie, hanifah – repentance alone cannot invalidate the had punishment – still carried out Hanifah – repentance may be accepted in cases where the offender had committed robbery only, on the condition that he must restore the property back to the victim Ahmad - repentance is accepted at any stage and remove the had punishment (5:39)

Shrub al khamar Maqasid al shari’ah literal

Technical

Aim of MS is to protect the ‘aqlneed law to exhibit/disallow person when they have no control over act/think Shrub- sharaba- to drink Al khamar- khamara- to cover/ conceal Drinking is not unlawful act but prohibit when consuming something cover/conceal the intellect

Act of orally consumption of any substances that veils the intellect and obscures the moral sensibilities History Prohibition – after the battle of uhud Legal provision Al maidah 5: 90-91

Mention the crime but no punishment

O believers! Intoxicants, gambling, idols, and drawing lots for decisions/ divination by arrows (tilik nasib) are all evil of Satan’s handiwork. So shun them so you may be successful. 5:90 - Allah is Addressing the believers- the prohibition for those who believe in Allah - Non- muslim are allowed

Satan’s plan is to stir up hostility and hatred between you with intoxicants and gambling and to prevent you from remembering Allah and praying. Will you not then abstain? 5:91 - Asking the believer to think and remember that devil want spread hatred- so you will fight with each other- the act prevent from remember Allah/ praying - Human are given right to choose- must follow the guidance - Mentioned the crime but no punishment for gambling - Punishment of shurbul khamr ?

Hadith

Definition

2;219, 4;43, 5:90 (gradual prohibition of Khamr) Alcohol is the mother of all evils and it is the most shameful of evils ‫من رشب الخمر فاجلدوه‬ - Loose ability to think - Based on the hadith of the Prophet s.a.w. a severe punishment should be imposed on a person who has been convicted of drinking liquor Jumhur ulama- any drink which has the effect of covering a person’s intellect Regardless of what it was made of or the amount taken will amount to a crime punishable with hadd if found guilty (even if small amount) Imam abu hanifah Al khamar are drinks made from specific substances which were mention in the sunnah of the prophet Drink made from other substances which would result in intoxication are classified as al muskiraat If taken in small amounts and not result in intoxication = ta’zir crime If intoxicated= hadd

Legal element Must be taken orally Has full knowledge

Must be taken orally - Majority view – intoxicant must be taken by the way of drinking or eating - Based by Hadith by Jabir and ibnu umar - Does not have to result in intoxication- consumption alone is enough Hadith narrated by jabir – whatever intoxicates in large quantities, verily if taken in small quantities is haram

and criminal intention

Hadith narrated by ibn umar- Anything that causes intoxication is al khamar, and every khamar is haram

And was a muslim at that time he commit the act

Imam abu hanifahAl khamar only applies to persons drinking intoxicating beverages made from grapes or dates- liable no matter the amount taken The drinking of other intoxicating beverages made from other substances ( al muskirat not al khamr) such as honey, barley, fig, wheat will not be considered as crime punishable with hadd unless it results in intoxication and not to be drunk for leisure

Requirement

1. The taking of the intoxicating concoction must be done orally 2. The intoxicating drink or concoction has been consumed until it has at least reached the halqum of the person 3. The intoxicating drink or substances is present either in the form of drink, mixed with food or in any form of concoction so long as it has been taken orally 4. The act of taking was done by a mukallaf, i.e a person who is sound mind (‘aqil), has reached the age of majority (baligh) and has done the act of his own free will (mukhtar) He has the full knowledge that - The drink or concoction has an intoxicating effect - Despite this knowledge, he committed the act knowingly and with full knowledge of the consequences of his own free will

criminal intention

Act is done by a muslim

Evidentiary requirement

Shahadah

Only a muslim can be liable for had crime Non-muslim cannot be liable except if he drink in public and gets drunk, he can be liable for ta’zir crime In Islamic state- cannot be sold openly – sold in specific shop Any places sold intoxicant cannot employ a muslim Iqrar- the admission of guilt by the accused which is done under oath. This can be done orally in writing. Must fulfil the condition 1. He is mukallaf – aqil, baligh, and mukhtar – he is sane, has reached the age of majority (baligh) and has done the cat of his own free will (mukhtar) The accused must be fully informed of the charge and he must understand it and he must know the effect of his admission to the crime 2. Free from slavery 3. Free from tuhmah (biases) and shubhah (doubts) 4. Must be done under oath, in court 1. The testimony of two male, muslim, adil witnesses who actually saw the act of drinking or oral taking of the intoxicating matter which is done under oath in the court.

2. They would also have to pass the rigorous tazkiyyah al-shuhud process before ethe court can rely on their testimony and find the accused guilty of the offence Qarinah

Breatheliser test could ne valid evidence- but for hadd punishment must be occupied with iqrar or Shahadah of two Muslim, If qarinah stand alone, hadd cannot be awarded- only ta’zir punishment i) The smell Malikis school & one of the opinion of Ahmad - the smell can be used in order to convict under hadd as Ibnu Mas’ud did impose such punishment. Hanafis and Shafiis school & 2nd of Hanbalis - cannot be used as there are lots of possibilities including being under coercion and so forth. ii) Intoxicated: Hanafi school -Being intoxicated- not -but when witnessed by two witnesses –yes. Al-Shafii and one of Ahmad – cannot be used as discussed above. Malik as in the above opinion- yes, can be used.

Gradual

iii) Vomit. Hanafi- basically no but being witnessed, and found the smell, yes Shafii and one of Ahmad –no. Malik- as in the above together with another opinion of Ahmad –yes. Tadrij (gradualism) is a term meaning the imposition of shari’ah decrees in stages. The word tadrij, which is derived from the word darajah,means “making somebody approach something and be familiar with something in a gradual way”. It means the imposition of decrees by divine will as a method of legislation in stages, not as a whole and directly, by taking into consideration the humane and social phenomena. For instance, five daily prayers were rendered fard within a certain process and in two stages. First, two daily prayers (the morning prayer and the evening prayer) were rendered fard; then, five daily prayers were ordered to be performed. Next, we can see the imposition of gradual prohibition being imposed on the prohibition of drinking alcohol. It is stated in the first stage in the Quran that Muslims obtain drink and wholesome food from dates and grapes; drink is mentioned separately and is not regarded as wholesome food. In surah al-nahl verse 67, it is stated that “And from the fruit of the date-palm and the vine, ye get out drink and wholesome food: behold, in this also is a sign for those who are wise.” . Islam used a gradual and persuasive method in the prohibition of alcoholic drinks like in several other issues and prohibited it definitely after certain stages.

In the second stage, it is stated that there are great sins and some profits in alcoholic drink and that its sins are more than its benefits. The second verse regarding the issue is the following verse sent down in Madinah: “They ask thee concerning wine and gambling. Say: "In them is great sin, and some profit, for men; but the sin is greater than the profit...” (alBaqara 2/219) In the third stage, the Muslims were ordered not to approach prayer when they were drunk; thus, drinking alcohol was restricted. The third verse related to alcoholic drinks in the order of revelation is the following verse: “O ye who believe! Approach not prayers with a mind befogged, until ye can understand all that ye say...” (an-Nisa 4/43) This verse expresses the last stage before the definite prohibition.

an-Nisa 4/43

(al-Maida 5/90-91) Punishment

In the last stage, drinking alcohol was absolutely forbidden. (al-Maida 5/90-91) Asbab al-nuzulAbd. Rahman invited companion for food and drinks- included wine- imam wrongly recited surah al-kafirun Saad bin abi waqas was invited by some ansar – after drinking they had argument and saad was injured Flogging based on hadith of prophet: ‫من رشب الخمر فا جلدوه‬ whoever drink intoxicant, verily whip him. Shafii (40x s78) based on: (anas bin malik) The practice of Ali in imposing hadd punishment on al-Walid bin Uqbah when he then said: “The Prophet s.a.w imposed 40 lashes. Abu Bakar did the same with 40 lashes. Umar did impose with 80 lashes. Each of it is sunnah but I prefer this (forty lashes).” MIN- 40 LASHES MAX -80 LASHES

Method of executing the punishment

MAJORITY - Hanafi, Malik, Ahmad (80x) based on: The reasons given by this group is based on the saying of Ali when he was consulted by Umar about the nature of whipping punishment in drinking liquor as he said: “We think that you 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. Thus Umar inflicted eighty lashes for drinking wine.” - The offender must be sober-...