Is the declaration of a slave concerning theft accepted?
Chapter on Selling the Musarrah (Animal with milk retained in udder)
Al-Mughni
Book of Sales
Primary text
The declaration of a slave concerning theft is accepted regarding the prescribed Hadd penalty, meaning his hand is cut off. However, it is not accepted regarding the monetary restitution, whether the stolen object is destroyed, remains in the master's possession, or remains in the slave's possession. This is the position of Al-Shafi'i. The evidence is the report concerning Ali (may Allah be pleased with him) and the principle that if a free person declares theft of an object reaching the threshold amount (Nisab), his hand must be cut off, regardless of where the object is. What opponents cite concerning the master's right to the object does not apply regarding the slave, as the right of the claimant may be established against the slave, evidenced by the requirement for the slave to return the item if manumitted and the item returns to his possession.
Supporting text
There is an indication that the hand should not be cut if he confesses to stealing an object currently in his own possession. This view, held by Abu Hanifa, is based on the premise that the object is adjudged to belong to the master, so one cannot be punished for stealing the master's property. Additionally, demanding the return of the stolen item is a precondition for the amputation, and only the master can demand it. Furthermore, applying the penalty in this case presents a doubt (Shubha), and prescribed penalties are repelled by doubts.