The Punishment for Theft and Fornication

Javed Ahmad Ghamidi

(Translated from Ghamidi's "Mizan" by Shehzad Saleem)

THEFT

According to the Qur’an, the punishment for theft is amputation of the hands:

As to the thief, male or female, cut off their hands as a reward of their own deeds, and as an exemplary punishment from God. For God is Mighty and Wise. But whoever repents and mends his ways after committing this crime shall be pardoned by Allah. Allah is forgiving and merciful.’ (5:38-39)

The law which has been stated in the above mentioned verses is based on the following clauses:
1. The punishment of amputating the hands has been prescribed for a thief both male (sariq) or female (sariqah). According to linguistic principles, the words sariq and sariqah are adjectives and denote certain characteristics in the happening of the verb they qualify. Consequently, they can only be used for the type of sarqah which can be called a theft and the one who commits it is called a thief. In other words, if a child steals a few rupees from his father's pocket, or a wife pinches some money from her husband, or if a person steals something very ordinary, or plucks some fruit from his neighbour's orchard, or carries away something valuable which has been left unprotected, or drives away an unattended grazing animal, or commits this ignoble offence owing to some need or compulsion, then, no doubt all these are unworthy acts and should be punished, but, certainly, they cannot be classified as acts of theft which the above verse qualifies. Consequently, the Prophet (sws) is said to have said:

If a fruit is hanging from a tree, or a goat is grazing on a mountain side and someone steals them, then hands should not be amputated for this. But if the fruit is stacked in a field and the goat is in a penfold then hands should be amputated on the condition that the goat is at least the price of a shield. (Kitab-al-Hudud)

This shows that the amputation of hands is the utmost punishment and should only be administered when the criminal does not deserve any mitigation as far as the nature and circumstances of his crime are concerned.
2. This punishment, according to the Qur’an, should be exemplary in nature. Furthermore, the words of the Qur’an entail the severing of the right hand, which is actually the instrument of the crime. Although the words ‘as a reward of their deeds’ make a subtle indication to this, the profound intellect of the Prophet (sws) inferred this result and made it a permanent Sunnah; according to it, always the right hand shall be amputated and the word ‘hand’ on account of definite linguistic denotion means that part of the arm which is below the wrist.
3. This is merely a punishment in this world. As far as the Hereafter is concerned, a person can only attain salvation if he repents and mends his ways. Repentance and the punishment of this world are not mutually exchangeable. Consequently, this punishment shall be administered even if a person repents and reforms himself, and after receiving this punishment in this world, he shall only be forgiven in the Hereafter if he repents and mends his ways.

FORNICATION
The punishment of fornication, according to the Qur’an, is flogging the criminal, humiliating him and prohibiting his marriage with chaste women:

The man and the woman guilty of fornication, flog each of them with a hundred stripes and let not compassion move you in their case in the enforcement of the law of God, if you truly believe in Allah and the Last Day. And let a party of the believers witness their punishment. This man guilty of fornication may only marry a woman similarly guilty or an idolateress and this woman guilty of fornication may only marry such a man or an idolater. The believers are forbidden such marriages. (24:2-3)

These directives mentioned in the above verses can be explained thus:
1. The man or woman who have committed fornication, both shall receive a hundred stripes. According to the Sunnah established by the Prophet (sws) in this regard:
(i) Whether a cane is used to flog a criminal or a lash, in both cases it should neither be very thick and hard nor very thin and soft. To quote Imam Malik:

It has been narrated by Zayd Ibn Aslam, that a person in the time of the Prophet confessed to have committed fornication; the Prophet asked for a lash to be brought forth to punish him. The lash which was brought was very flimsy. The Prophet asked for a harder one. Another lash was brought whose end had not been broken; the Prophet then asked for something more tender; the lash subsequently fetched had become soft after having being used in a transport cart. The Prophet ordered that the criminal be flogged with it upon which the criminal was flogged with it. (Kitab-al-Hudud)

(ii) The strike should be of medium power and the task of flogging should not be entrusted to cruel, professional executioners; on the contrary, it should be carried out by the wise elders of the society.
(iii) The criminal should not be beaten bare-bodied or while tied to a tripod.
(iv) A pregnant woman should only be flogged after she has given birth and the period of puerperal haemorrhage (nafas) has passed.

2. The criminal should be publicly given this punishment to humiliate him in front of the people and to make him a means of warning for those present. The verse directs the government or the court of justice not to show any lenience in this regard. This harsh treatment given to the criminal is necessary because the stability of a society relies on the sanctity between relationships of a family and on their protection from every type of disorder. Fornication, a little deliberation shows, makes a society unstable and turns it into a herd of animals. It, therefore, deprives a society of its well-being and prosperity. Hence, such criminals should be dealt with without showing them any compassion.
Writes Amin Ahsan Islahi in his celebrated commentary of the Qur’an:

No lenience should be shown in the implementation of this punishment; softness should be shown to neither a woman nor a man, to neither rich nor poor. The limits set by Allah should be observed without granting any alleviation or showing partiality, for this is a requirement of belief in Allah and in the Hereafter. The faith in Allah and the Hereafter of those who show weakness in this regard cannot be trusted. A noteworthy point in the statement of this punishment is that the woman has been mentioned before the man. One reason for this is that without a woman's consent fornication cannot take place; secondly there is a strong possibility that being the weaker sex, feelings of compassion may arise for her; the Qur’an, therefore, has mentioned her before the man so that it becomes evident from the style of the verse that in the Almighty's eyes no lenience should be shown to either woman or man. (Tadabbur-i-Qur’an, Vol 5, Pg 362)

It is with these sentiments of impartiality in the observance of the limits of Allah that the Prophet (sws) had said:

By God! if Fatimah the daughter of Muhammad had committed this theft, I would definitely have cut her hand. (Muslim, Kitab-al-Hudud)

3. After this punishment has been carried out, no chaste man or woman should marry men and women who commit fornication. According to the Qur’an, such people can only marry among their own sort or among the idolaters. It does not allow the marriage of a pious woman with a man guilty of committing fornication nor does it permit a pious man to bring home such filth in his house. Consequently, every such marriage is not considered legal in Islam. The wording of the verse clearly forbids such marriages.
4. While stating this punishment, adjectives have been used to qualify the men and women who commit fornication. This is similar to the statement in which the punishment for theft has been mentioned. It is evident, therefore, that this punishment is the utmost punishment, which should be given only when the crime has been committed in its ultimate form and the criminal does not deserve any lenience as far as the circumstances of the crime are concerned. Consequently, criminals who are foolish, insane, those who have been compelled by circumstances or those who are without proper family protection are all exempt from this punishment.
About those women whom their masters force to take to prostitution, the Qur’an says:

But if anyone compels them, Allah will be forgiving and merciful to them. (24:33)

Similarly, about the slave women who were present in the Prophet's times, it says that they also cannot be administered this punishment because of improper upbringing and education and because of lack of family protection -- so much so that if their husbands and masters have done all they can to keep them chaste and in spite of this they commit the crime, they shall be given only half this punishment i.e., fifty stripes. The Qur’an says:

And then when they are kept chaste and they commit fornication, their punishment is half that for free women. (4:25)

5. The law of wrongly accusing someone of fornication, as we shall elaborate, also indicates that the Almighty does not like that a criminal confess to his crime himself or that those who are aware of his crime report this matter to the authorities. The Prophet (sws) has said:

He among you who gets involved in such filth, should hide behind the veil stretched out for him by Allah, but if he unfolds the veil, we shall implement the law of Allah upon him. (Kitab-al-Hudud)

Similarly, he once told a person:

If you had hidden the crime of this [person], it would have been better for you. (Kitab-al-Hudud)