Abdullah ibn Umar added, "I saw the man
leaning over the woman to protect her from the stones."
Malik
commented, "By leaning he meant throwing himself over her so that the
stones fell on him."
Yahya ibn Said said, "I related this hadith in an
assembly among whom was Yazid ibn Nuaym ibn Hazzal al-Aslami. Yazid
said, 'Hazzal was my grandfather. This hadith is true.' "
Ibn Shihab said, "Because of this a man is to be taken for his own
confession against himself."
Malik said, "Yahya ibn Said said Said ibn al-Musayyab said,
'Dhu'l-Hijja had not passed before Umar was murdered, may Allah have
mercy on him.' "
Yahya said that he had heard Malik say, "As
for his words 'The full-grown man and the full-grown woman' he meant,
'The man and the woman who have been married, stone them absolutely.'
"
Malik
related to me that he asked Ibn Shihab about someone who committed
sodomy. Ibn Shihab said, "He is to be stoned, whether or not he is
muhsan."
Malik spoke
about a person who confessed to fornication and then retracted it and
said, "I didn't do it. I said that for such-and-such a reason," and he
mentioned the reason. Malik said, "That is accepted from him and the
hadd is not imposed on him. That is because the hadd is what is for
Allah, and it is only applied by one of two means, either by a clear
proof which establishes guilt or by a confession which is persisted in
so that the hadd is imposed. If someone persists in his confession,
the hadd is imposed on him."
Malik said, "I have not seen the
people of knowledge exiling slaves who have committed adultery."
Ibn
Shihab added, "I don't know whether it was three or four times."
Malik said, "A raped woman cannot
marry until she has restored herself by three menstrual periods."
He said, "If she doubts her periods, she does not marry until she
has freed herself of that doubt."
Abu'z-Zinad said, "I asked Abdullah ibn Amir ibn Rabia about that. He
said, 'I saw Umar ibn al-Khattab, Uthman ibn Affan, the Khalifs, and
so on, and I did not see any of them flog a slave more than forty
lashes for slander.' "
Zurayq said, "I wrote to
Umar ibn Abd al-Aziz also, 'What do you think about a man who is
slandered or his parents are slandered and both or only one of them
are dead?' He said, Umar wrote to me, 'If he forgives, his pardon is
permitted for himself. If his parents are slandered and one or both of
them are dead, take the judgement of the Book of Allah for it unless
he wants to veil it.' "
Yahya said, "I heard Malik say, 'That
is because the slandered man might fear that if that is unveiled about
him, a clear proof might be established. If it is according to what we
have described, his pardon is permitted."
Malik said, "If they are on separate occasions there
is still only one hadd against him."
Malik related to me from
Abu'r-Rijal Muhammad ibn Abd ar-Rahman ibn Haritha ibn an-Numan al-
Ansari, then from the Banu'n-Najar from his mother Amra bint Abd ar-
Rahman that two men cursed each other in the time of Umar ibn al-
Khattab. One of them said to the other, " By Allah, my father is not
an adulterer and my mother is not an adulteress." Umar ibn al-Khattab
asked advice about that. One person said, "He has praised his father
and mother." Another said, "His father and mother have praise other
than this. We think that he is to be flogged with the hadd." So Umar
flogged him with the hadd of eighty lashes.
Malik said,
"There is no hadd in our view except for slander, denial or
insinuation, in which one sees that the speaker intends by that denial
or slander. Then the hadd is completely imposed on the one who said
it."
Malik said, "What is done in our community when a man
denies that another man is from his father, is that he deserves the
hadd. If the mother who is denied is a slave, then he deserves the
hadd as well. '
Malik said about a man who made
his slave-girl halal to a man that if the one for whom she was made
halal had intercourse with her, her value was estimated on the day he
had intercourse with her and he owed that to her owner whether or not
she conceived. The hadd was averted from him by that. If she conceived
the child was connected to him.
Malik said about a man who
had intercourse with his son's or daughter's slave-girl, "The hadd is
averted from him and he owes the estimated value of the slave-girl
whether or not she conceives."
Amra
continued, "The slave took it and unstitched it and took out the
cloak. In its place, he put some felt or skin and sewed it up again.
When the mawla girls came to Madina, they gave it to his people. When
they opened it, they found felt in it and did not find the cloak. They
spoke to the two women and they spoke to A'isha, the wife of the
Prophet, may Allah bless him and grant him peace, or they wrote to her
and suspected the slave. The slave was asked about it and confessed.
A'isha, the wife of the Prophet, may Allah bless him and grant him
peace, gave the order and his hand was cut off. A'isha said, 'A
thief's hand is cut off for a quarter of a dinar and upwards.' "
Malik said, "The limit I prefer above which cutting off the hand
is obliged is three dirhams, whether the exchange is high or low. That
is because the Messenger of Allah, may Allah bless him and grant him
peace, cut off the hand of a thief for a shield whose value was three
dirhams, and Uthman ibn Affan cut off the hand of a thief for a citron
which was estimated at three dirhams. This is what I prefer of what I
have heard on the matter."
Yahya related to me from Malik that he had heard that al-
Qasim ibn Muhammad and Salim ibn Abdullah and Urwa ibn az-Zubayr said,
"When a runaway slave steals something for which cutting off the hand
is obliged, his hand is cut off."
Malik said, "The way of
doing things amongst us about which there is no dispute is that when
the runaway slave steals that for which cutting off the hand is
obliged, his hand is cut off."
Yahya said that Malik said,
"What is done among us about the person who steals several times and
is then called to reckoning, is that only his hand is cut off for all
he stole when the hadd has not been applied againsthim. If the hadd
has been applied against him before that, and he steals what obliges
cutting off, then the next limb is cut off."
Yahya said
that he heard Malik say, "What is done among us about a person who
steals the goods of people which are placed under guard in the
markets, and their owners put them in their containers and store them
together is that if anyone steals any of that from where it is kept,
and its value reaches that for which cutting off the hand is obliged,
his hand must be cut off, whether or not the owner of the goods is
with his goods and whether it is night or day."
Malik said
about some one who stole something for which cutting off the hand was
obliged and then what he stole was found with him and he returned it
to its owner, "His hand is cut off."
Malik said, "If someon
says, 'How can his hand be cut off when the goods have been taken from
him and returned to their owner?', it is because he is in the same
position as the wine drinker when the smell of the wine is found on
his breath and he is not drunk. He is flogged with the hadd.
"The hadd is imposed for drinking wine even if it does not make the
man intoxicated. That is because he drank it to become intoxicated. It
is the same as that with cutting off the hand of the thief for theft
when it is taken from him, even if he has not profited from it and it
was returned to its owner. When he stole it, he stole it to take it
away."
Malik said that if some people came to a house and
robbed it together, and then they left with a sack or box or a board
or basket or the like of that which they carried together, and when
they took it out of its guarded place, they carried it together, and
the price of what they took reached that for which cutting off the
hand was obliged, and that was three dirhams and upwards, each of them
had his hand cut off.
"If each of them takes out something by
himself, whoever of them takes out something whose value reaches three
dirhams and upwards must have his hand cut off. If any of them takes
out something whose value does not reach three dirhams, he does not
have his hand cut off."
Yahya said that Malik said, "What is
done among us is that when a man's house is locked and he is the only
one living in it, cutting off the hand is not obliged against the one
who steals something from it until he takes it out of the house
completely. That is because all of the house is a place of custody. If
someone other than him lives in the house and each of them locks his
door, and it is a place of custody for each of them, whoever steals
anything from the apartments of that house must have his hand cut off
when he leaves the apartment and goes into the main house. He has
removed it from its place of custody to another place and he must have
his hand cut off."
Malik said, "What is done in our community
about a slave who steals from the property of his master is that if he
is not in service and among those trusted in the house and he enters
secretly and steals from his master something that for which cutting
off the hand is obliged, his hand is not cut off. It is like that with
a slave-girl when she steals from her master's property. Her hand is
not cut off."
Malik then spoke about a slave who was not in
service and not one of those trusted in the house, and he entered
secretly and stole from the property of his master's wife that for
which cutting off the hand was obliged. He said, "His hand is cut
off."
"It is like that with the wife's slave-girl when she
does not serve her or her husband nor is she trusted in the house and
she enters secretly and steals from her mistress's property that for
which cutting off the hand is obliged. Her hand is not cut off."
"It is like that with the wife's slave-girl who is not in her
service and is not trusted in the house and she enters secretly and
steals from the property of her mistress's husband something for which
cutting off the hand is obliged. Her hand is cut off."
It is
like that with the man who steals from his wife's goods or the wife
who steals from her husband's goods something for which cutting off
the hand is obliged. If the thing which one of them steals from his
spouse's property is in a room other than the room which they both
lock for themselves, or it is in a place of custody in a room other
than the room which they are in, whichever of them steals something
for which cutting off the hand is obliged, their hand should be cut
off."
Malik spoke about a small child and a foreigner who
does not speak clearly. He said, "If they are robbed of something from
its place of custody or from under a lock, the one who stole it has
his hand cut off. If the property is outside of its place of custody
or locked room(when it is stolen), the one who robbed them does not
have his hand cut off. It is then in the position of sheep stolen from
the mountain and uncut fruit hanging on the trees "
Malik
said, "What is done among us about a person who robs graves is that if
what he takes from the grave reaches what cutting off the hand is
obliged for, his hand is cut off . That is because the grave is a
place of custody for what is in it just as houses are a place of
custody for what is in them. "
Malik added, "Cutting off the
hand is not obliged for him until he takes it out of the grave."
Abu Bakr added, "So I let
the Nabatean go."
Malik said, "The generally agreed on way of
doing things among us about the confession of slaves is that if a
slave confesses something against himself, the hadd and punishment for
it is inflicted on his body. His confession is accepted from him and
one does not suspect that he would inflict something on himself."
Malik said, "As for the one of them who confesses to a matter
which will incur damages agains this master, his confession is not
accepted against his master."
Malik said, "One does not cut
off the hand of a hireling or a man who is with some people to serve
them, if he robs them, because his state is not the state of a thief.
His state is the state of a treacherous one. The treacherous one does
not have his hand cut off."
Malik said about a person who
borrows something and then denies it, "His hand is not cut off. He is
like a man who owes a debt to another man and denies it. He does not
have his hand cut off for what he has denied."
Malik said,
"The generally agreed-on way of dealing among us, with the thief who
is found in a house and has gathered up goods and has not taken them
out, is that his hand is not cut off. That is like the man who places
wine before him to drink it and does not do it. The hadd is not
imposed on him. That is like a man who sits with a woman and desires
to have haram intercourse with her and does not do it and he does not
reach her. There is no hadd against that either."
Malik said,
"The generally agreed-on way of doing things among us is that there is
no cutting off the hand for what is taken by chance, openly and in
haste, whether or not its price reaches that for which the hand is cut
off."