Question: The punishment of a qualified theft is certain. But, what if someone encourages another for this? Will the punishment for the encourager also be hand amputation?
There are different extents in aiding a crime which are defined by the term “complicity” in law. Participation in a crime together with more than one person, abetting or helping someone to commit a crime are different types of aid and they require different penalties in criminal law. For example, contribution of more than one person to a crime of murder makes all of the contributors subject to the penalty of Qisas.[1] *
Similarly, the judgment in the Qur’an about the wife of Prophet Lot is a good example in complicity:
“(…) what will befall them shall also befall her. (…)” (Hud 11:81)
From what we see in the corresponding verses, we can say that the community of Prophet Lot was punished because of adopting homosexuality as a common lifestyle[2] which causes, in a way, the partial extinction of a generation, thus committing a kind of genocide. It is understood that although Lot’s wife cannot be a principal of this crime because of her gender, she is sentenced to the same penalty for aiding or abetting to it.
As for the qualified theft, we see in the chapter Joseph that Joseph’s brothers deny the allegation of theft after they are shouted “Travelers! You are thieves!” (Joseph 12:70). It is understood from the subsequent verses that they are innocent, but it is very important that the brothers are claimed to be “thieves” all together. At this point, we can come to the conclusion of regarding all of the brothers as “thieves” because of contributing the crime all together assuming their innocence hadn’t been revealed. There are also different views in this matter. For example, according to Abu Hanifah, if someone steals a possession and gives it to a friend, the hand amputation penalty cannot be applied to both of them.[3]
There is an utmost balance in the criminal law we see in Qur’an Al-Kareem. Therefore, all of the elements of a crime should be known in order to deliver an equitable judgment. Many things should be considered like the purpose of the offender, his position, the rights that are violated, the form of the crime, etc.
As a result, by encouraging, if you mean aiding only by verbal offers, the encourager is not in the same position with the offender and does not have the same penalty. Designating the penalty of the encourager needs more information and a detailed study on the case. In chapter Ash-Shura verse 40, Allah The Almighty says: “The requital of an evil (deed) is an equivalent evil (punishment). (…)” (42:40) . In order to designate the penalty of the crime, it is necessary to see “the crime” that the offender committed first.
Suat Erdogan
You can also see the following answers about hand amputation:
http://www.islamandquran.org/on-what-circumstances-the-hand-of-a-thief-should-be-cut-off
http://www.islamandquran.org/did-the-prophet-muhammad-use-to-cut-off-thieves-hands
http://www.islamandquran.org/were-the-communities-before-us-cutting-of-thieves-hands
* Qisas allows equivalent retaliation in cases of intentional homicide. It is different from the capital punishment in the western world. Qisas does not mean absolute death, because it allows heirs of the slain to reconcile with or forgive the murderer.[1] Ibn Qudamah, Al-Mughni, Vol.11, p.490
[2] See. Al-A’raf 7:81-82, Al-Hijr 15:70-72
[3] Al-Kasani, Badai Al-Sanai, Vol.7, p.66.
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