What is the penalty for stealing hanging fruit (*thamar mu'allaq*)?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The penalty for stealing hanging fruit is forfeiture of double its value. This is the opinion held by Ishaq, based on the stated report (Hadith). Furthermore, if something is stolen from stored produce after it has been gathered into the storehouse (*al-jirrīn*) and reaches the value requiring amputation, the amputation penalty is incumbent. The basis for ruling a double forfeiture relies on the Prophet's saying, which serves as binding evidence that cannot be contradicted except by an equal or stronger opposing evidence. Moreover, the principle is that the forfeit for similar goods (*mithlī*) is its like, and for assessed goods (*mutaqawwim*) is its value, as evidenced by rulings on property destruction, usurpation, and theft, and this principle is only deviated from in two specific cases (hanging fruit and ungathered mountain livestock) due to explicit textual evidence.
Supporting text
The majority of jurists hold that the penalty is not more than its like (the value). Al-Baji states that he knows of no jurist who mandated double forfeiture. Some Shafi'i scholars excused the hadith regarding double forfeiture by claiming it was from a time when the financial penalty was the prescribed punishment for property crimes, a ruling that was later abrogated. This explanation is considered void because it is a claim of abrogation based on mere probability without supporting evidence, which is deemed invalid by consensus. Additionally, Ahmad argued that 'Umar once charged double the value as forfeiture when the slaves of Hattab ibn Abi Balta'ah slaughtered a she-camel belonging to a man from Muzaynah.