PERBANDINGAN HUKUM PIDANA ISLAM DAN HUKUM POSITIF TERHADAP SANKSI TINDAK PIDANA PENCURIAN(Studi Putusan Nomor 143/Pid.B/2022/PN Raha)

Abstract

The crime of theft is one of the offenses against property regulated not only under Indonesian positive law but also under Islamic criminal law. Differences in legal sources, forms of sanctions, and requirements for imposing punishment cause the two legal systems to have different characteristics in sanctioning perpetrators of theft. This study aims to analyze the comparison of sanctions for the crime of theft according to Islamic criminal law and positive law in Decision Number 143/Pid.B/2022/PN Raha. This research employs normative legal research using statutory, case, and comparative approaches. Legal materials were obtained through library research and documentation and were analyzed using qualitative juridical analysis. The results show that under positive law, the defendant was legally and convincingly proven to have committed theft as regulated under Article 362 of the Indonesian Criminal Code and was sentenced to one year imprisonment. From the perspective of Islamic criminal law, the defendant's act constitutes jarimah sariqah. The hudud punishment of hand amputation may in principle be imposed when all requirements established by Islamic law are fulfilled. However, in this case, the requirement of hirz was not completely fulfilled because the motorcycle was parked in the mosque yard with the ignition key still attached, creating an element of shubhat. Therefore, ta'zir constitutes the more appropriate punishment. The one-year imprisonment imposed by the judge can substantially be considered consistent with the concept of ta'zir because it was determined based on judicial considerations, the perpetrator's degree of culpability, and public interest. Both legal systems share the objectives of protecting property, providing deterrence, preventing crime, and maintaining public order, while their differences lie in their legal sources, forms of sanctions, and mechanisms of implementation. 

Keywords : Theft, Islamic Criminal Law, Positive Law, Hudud, Ta'zir.