or three dirhams of silver, or the equivalent value of three dirhams, whether it is food or otherwise, and he removes it from the secure place (hirz), then he is to be punished by cutting (the hand).
The collective ruling is that cutting is not obligatory except under seven conditions. The first of these is theft. The definition of theft is taking property through concealment and secrecy. From this comes the act of 'stealing' a hearing (istiraq al-sam') and the 'stealing' of a glance (musaraqat al-nazar), provided one is being secretive in doing so. If someone snatches or embezzles (khalasa), he is not a thief, and there is no cutting (required) according to anyone we know, except for Iyas (1) ibn Mu'awiyah. He said: I would punish the embezzler by cutting, because he is secretive in his taking, thus he is a thief. The people of jurisprudence and legal opinions among the scholars of the major cities are in opposition to him. It has been narrated from the Prophet (may Allah bless him and grant him peace) that he said: "There is no cutting for the one who commits treachery (kha'in) nor for the embezzler (mukhtalis)." From Jabir, he said: The Messenger of Allah (may Allah bless him and grant him peace) said: "There is no cutting for the plunderer (muntahib)." Abu Dawud recorded both of them (2) and said: Ibn Jurayj did not hear them from Abu al-Zubayr. Furthermore, the mandatory rule is the cutting of the thief, and this person is not a thief; additionally, embezzlement is a type of snatching and looting, as one only acts secretly at the inception of the act, which is contrary to the case of the thief. There is a difference of opinion narrated from Ahmad regarding the one who denies having received a borrowed item ('ariyah). One narration holds that cutting is required, which is the opinion of Ishaq, due to what was narrated from 'Aisha that a woman used to borrow goods and deny them, so the Prophet (may Allah bless him and grant him peace) ordered her hand to be cut. Her family approached Usamah and spoke to him, so he spoke to the Prophet (may Allah bless him and grant him peace). The Prophet (may Allah bless him and grant him peace) said: "I do not see that you are speaking to me regarding one of the limits (hudud) prescribed by Allah the Almighty." Then the Prophet (may Allah bless him and grant him peace) stood up as a preacher and said: "Those who were before you were destroyed only because (3) if the noble among them stole, they would leave him, and if the weak among them stole, they would cut him."
(1) In (B): "Anis". This is an error. He is Iyas ibn Mu'awiyah ibn Qurra al-Muzani, the judge of Basra, who died in the year 121 AH. Siyar A'lam al-Nubala 5/155. (2) Abu Dawud recorded both of them in: The Chapter of Cutting for Embezzlement and Treachery, from the Book of Penalties, Sunan Abi Dawud 2/450. They were also recorded by al-Tirmidhi in: The Chapter of What Has Been Related Regarding the Treacherous, the Embezzler, and the Plunderer, from the Chapters on Theft, 'Aridat al-Ahwadhi 6/228-229; al-Nasa'i in: The Chapter of What Has No Cutting, from the Book of Cutting the Hand of the Thief, al-Mujtaba 8/81-82; Ibn Majah in: The Chapter of the Treacherous, the Plunderer, and the Embezzler, from the Book of Penalties 2/864; and al-Darimi in: The Chapter of Those Among Thieves Who Are Not Subject to Cutting, from the Book of Penalties, Sunan al-Darimi 2/175. (3) In (B): "That they". In the reference sources: "That they used to".
