Ruling on whether repentance waives hadd of theft
Fatwa No: 320866

  • Fatwa Date:22-3-2016 - Jumaadaa Al-Aakhir 13, 1437
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Question

Assalaamu alaykum. I saw your opinion on the ruling on a thief. You used the verse (5:38) that explains to cut off a thief's right hand and some hadiths. However, you ended up with a wrong opinion. You should be ashamed of Allaah if you did not bother checking the verse after it, (5:39), which says, {But whosoever repents after his crime and does righteous good deeds (by obeying Allah), then verily, Allaah will pardon him (accept his repentance). Verily, Allaah is Oft-Forgiving, Most Merciful.} So Allaah pardons the one who repents and you are still cutting off someone's hand? Why are you not getting the ruling from the Quran but make up things? Always get your ruling from Allaah's Book.

Answer

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

You should know that Islamweb's staff welcomes all remarks and investigates them carefully; our ultimate objective is reaching the truth, but we are humans and are liable to error. If we find out that we made a mistake, then we readily correct it without the slightest hesitation. ʻUmar said to Abu Moosa Al-Ashʻari  may  Allaah  be  pleased  with  him in his famous letter:

"Your earlier judgment should not deter you from reviewing it if you are guided to the truth by your senses and reason. If you decided a case yesterday and were to give it a second thought today and were to be guided to the right decision this time, then let not your previous judgment prevent you from accepting the truth because truth is eternal, and it can never be invalidated. To return to the truth and revise decisions for the sake of upholding the truth is far better than persisting in error..."

However, it would have been better if you presented your remarks politely instead of accusing us of "cutting off people's hands and making up rulings instead of deriving them from the Quran!" You asked, "Why are you not getting the ruling from the Quran but make up things?" If by that you mean to deny the authority of the Sunnah, then you should know that the Sunnah of the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is a source of legislation just like the Quran. Allaah, The Exalted, says (what means): {And whatever the Messenger has given you - take; and what he has forbidden you - refrain from. And fear Allaah; indeed, Allaah is severe in penalty.} [Quran 59:7] He also says (what means): {He who obeys the Messenger has obeyed Allaah; but those who turn away - We have not sent you over them as a guardian.} [Quran 4:80] He also says (what means): {Nor does he speak from (his own) inclination. It is not but a revelation revealed.} [Quran 53:3-4] For more on the authority of the Sunnah, please refer to fataawa 3879 and 92485

Dear questioner, the scholars held different views as to whether the hadd (corporal punishment set by the sharee'ah) of theft is waived by the thief's repentance or not. The Kuwaiti Encyclopedia of Fiqh reads:

"The scholars unanimously agreed that sincere repentance, namely sincere remorse and resolve to give up the sin in the future on part of the doer, waives the punishment in the Hereafter. However, they differed as to whether repentance waives the hadd of theft or not. According to the Hanafis, Maalikis, one of the two narrations of the Hanbalis, one of the two views reported from the Shaafiʻis, the scholarly view of ʻAttaa', and a group of other scholars, repentance does not waive the hadd of theft, because Allaah, The Exalted, says (what means): {(As for) the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent (punishment) from Allaah.} [Quran 5:38] The verse does not make distinction between the repentant and the one who did not repent in this case. Moreover, the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) subjected ʻAmr ibn Samurah to the hadd when he came to the Prophet repentant and asking him to purify him by implementing the hadd of theft on him. On the other hand, the sounder view of the two opinions of the Shaafiʻis and the other narration of the Hanbalis hold that repentance waives the hadd of theft because the following verse reads (what means): {But whoever repents after his wrongdoing and reforms, indeed, Allaah will turn to him in forgiveness. Indeed, Allaah is Forgiving and Merciful.} [Quran 5:39] This means that the repentant is not subject to the hadd of theft. If the hadd should be executed even after the repentance, then the reference in the following verse would be of no benefit..." [End of quote]

The preponderant scholarly view in this regard is that the repentance waives the punishment of the Hereafter but not that of the worldly life. Ash-Shawkaani  may  Allaah  have  mercy  upon  him commented on the verse, saying:

"ʻAttaa' and a group of scholars brought forth this verse as evidence to prove that repentance waives the hadd of theft. However, this is not a correct deduction because the exception in this verse merely refers to the acceptance of the repentance and indicates that Allaah accepts the repentance of whoever turns to him in sincere repentance. It does not mean that the repentance waives the hadd. The Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) subjected the sinners who reported their crimes to him after their repentance to the hadd." [Fat-h Al-Qadeer]

Allaah knows best.

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