Is cutting off the hand mandatory for a Muslim stealing from the public treasury (Bait al-Mal)?

Chapter on Amputation in Theft

Al-Mughni

Book of Ḥudūd (Prescribed Penalties)

Book 51 · Issue 1 · Bab 2

Open in Qurani

Primary text

Cutting off the hand is not mandatory for a Muslim who steals from the public treasury. This view is held by Al-Sha'bi, Al-Nakha'i, Al-Hakam, Al-Shafi'i, and the people of opinion (Ashab al-Ra'y). The basis for this is the tradition narrated by Ibn Majah on the authority of Ibn Abbas concerning a slave from the Khums property (one-fifth share) who stole from the Khums; the Prophet, peace be upon him, did not cut off his hand, saying, "The property of Allah, some of it has stolen from some of it." This is also narrated concerning Umar (may Allah be pleased with him). Furthermore, it is reasoned that since the thief has a right in the public treasury, this constitutes a doubt (shubha) that prevents the obligation of the amputation, similar to stealing from jointly owned property.

Supporting text

Hammad, Malik, and Ibn al-Mundhir hold that the hand must be cut off due to the apparent meaning of the Book (Quran).