The Importance of Hirz for Punishment of Theft An Analytical Study in Light of Selected Jurisprudential Exegeses and Hudood Ordinance 1979(The Offences Against Property)

Abstract

Theft is counted among the major crimes, which is why in Islam the punishment of a thief is to cut his hands. Allaah Almighty says: “As for the thief, male and female, cut off their hands as a recompense for what they have done, a deterrent punishment from Allah. And Allah is Almighty, Wise.” However, this punishment does not apply universally to all thefts; specific conditions must be met before it can be implemented.This paper examines one of these prerequisites for enforcing the theft penalty—known as Hirz (a secured or protected place)—analyzing it through the perspectives in Ahkam al-Quran by Jassas and Al Jami Li Ahkam al-Quran by Qurtubi. Finally, a comparison with Pakistani law on this matter is provided. The condition of Ḥirz (secure custody) is established through Hadiths, and there is consensus among the jurists that if the condition of Ḥirz is not fulfilled in a theft case, the Hadd (punishment) for theft cannot be enforced on the offender, although Tazeer is allowed. Imam Al-Qurtubi has stated that whatever arrangement is considered Ḥirz according to customs and traditions will be regarded as such. Imam Al-Jassas agrees with this but has further elaborated by describing various scenarios of Ḥirz, making the concept more explicit.

In cases of collective theft, the majority of jurists hold that if the stolen property is divided among the members of the group and each individual receives a share equivalent to the Niṣāb (minimum threshold), then the hands of all the thieves will be cut off. Otherwise, the punishment of Hadd will not apply. An analysis of Pakistan's Ḥadd-e-Sariqa Ordinance reveals that it aligns with Islamic law. It is recommended that the implementation of the Ḥadd for theft be enforced to curb the rising incidents of crime, thereby acting as a deterrent to theft and related offenses.