Abstract:
The respect for the right to private property and the protection of it, in all legislative systems is one of the goals of the legislature, and even in the opinion of some philosophers of the social contract, it is the only necessity to justify the establishment of government and the abandonment of part of individual liberty and its transfer to the government. The protection of souls, generations, and rationality, along with the preservation of religion, is mentioned as one of the Objectives of Shariah Law (Maqasid al-Shariah) in the Islamic criminal law. At the same time, the Treasury of Muslims is the mainstay of the economic system of the country, which must be protected from theft and abuse. In the Islamic criminal law, the violation of the right to private property of individuals is subject to extreme penalties in order to prevent unfairness and, consequently, economic corruption in society. However, the different interpretations of the title and instances of public treasury and the existence of some doubts as to adaption between the definition and conditions of the theft of private property to the capture of public treasury, has led some jurists to consider this crime as Haddi Theft and others have not considered it as Haddi Theft but as Ta‘ziri Theft and some others have presented some specific details on their jurisprudential approach in this regard. The legislator has not considered the crime to be Haddi Theft, however, in other ways, under the title of spreading corruption on Earth or through different Ta‘ziri punishments, this crime has been considered by the specific criminal support of the legislator. The preferred verdict is that if someone steals from the public property or treasury of Muslims, he should be punished by Hadd if there are the conditions of the Haddi Theft.
Machine summary:
Different interpretations of the title and instances of Bait al-Mal, and the existence of certain doubts regarding the application of the definition and conditions of Hadd theft of private property to the pilfering of Bait al-Mal, have caused some jurists to consider this transgression as the same theft necessitating Hadd, while others consider it not as Hadd theft but as a cause for Ta'zir, and some provide specific details and distinctions in their jurisprudential approach in this regard.
An answer that can be given to this question is that fundamentally, the qualification "if it does not fall under the Hudud punishment for theft" refers to the owner of the stolen property; meaning that the objects subject to theft in this article may have a non-state and non-public owner; for example, they may belong to the Cultural Heritage Organization, just as according to Article 567 of the Ta'zirat Law, in all crimes mentioned in this chapter, the Cultural Heritage Organization or other state departments are considered the complainant or private claimant depending on the case, and only their protection and supervision are with the state, and this will not cause that property to become public or state-owned; thus, the Cultural Heritage Organization is the complainant in this case, and if all other conditions are met, it can lead to the amputation of the thief's hand.
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