Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > If a group jointly commits a theft
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Updated on 25 September 2026 at 3:23 PM
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As for the cause of the amputation: was it her theft? The narrator described her by her characteristic because what is mentioned is the cause of the amputation, as al-Shafi'i, Abu Hanifa and Malik say; or the cause mentioned is the cause of the amputation, as Ahmad and those who agree with him say. At this point we do not champion any particular school at all: if the correct view is that of the majority, the question falls away; and if the correct view is the other one, its agreement with analogy, wisdom and public interest is very evident.
The loan of usable property is indeed one of the interests of the children of Adam which they cannot do without and for which they have no substitute; it is due when the borrower needs it out of necessity, whether for a fee or gratis. The lender cannot, at every moment, have the loan witnessed, and it is not possible to guard against abuse by withholding such loans, neither in law, nor in custom, nor in common usage. In meaning, there is no difference between one who obtains possession of another's goods by theft and one who obtains them through a loan and then denies it. The case differs from that of the denier of a deposit: the owner of the goods was negligent in the very act of entrusting them (I'lam al-Muwaqqi'in 2/80 and 82).
The people of knowledge have expressed a consensus: if a group jointly pierces a place of safekeeping, its members steal, and the share taken by each of them reaches the nisab, they are all amputated. Imam al-Mawardi, may Allah have mercy on him, said: by consensus (al-Hawi al-Kabir 13/297).
Ibn Hubayra, may Allah have mercy on him, said: they agreed that if a group jointly commits a theft and each of them obtains the nisab, amputation is due upon each of them (al-Ifsah 2/273).
The jurists have, however, differed on several points:
The fixed penalty was applied upon her. This indicates that he cut her hand only for her theft, not because she used to borrow goods and deny them. Had that been the case, the Prophet, peace and blessings of Allah be upon him, would have said: what destroyed those before you is that when the notable among them borrowed goods and denied them, they left him alone. And he said at the end of the report: "By Allah, if Fatima, the daughter of Muhammad, stole, I would cut off her hand." All of this makes clear that the amputation took place only on account of the theft, not on account of the denial of the loan of the goods.
It may also be that she used to borrow goods and deny them, and then stole: the amputation of her hand then became due for the theft.
It is likewise possible that this Qurayshi woman of the Makhzum tribe used to borrow goods and deny them, and was known for that; then she stole, and it was said: the Messenger of Allah, peace and blessings of Allah be upon him, cut off the hand of the Makhzumiyya who used to borrow goods and deny them, meaning: for the theft (Ahkam al-Quran 4/66; see Sharh Fath al-Qadir 5/373, al-Bahr al-Raiq 5/60, Sharh Sahih al-Bukhari 8/410, al-Istidhkar 7/569 and 570, Bidayat al-Mujtahid 2/334, Sharh Sahih Muslim 11/188, al-Mughni 9/93 and 94, al-Kafi 4/174).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: as for the amputation of the thief's hand from 3 dirhams upward, and the omission of amputation for the snatcher (al-mukhtalis), the plunderer (al-muntahib) and the usurper (al-ghasib), this too belongs to the perfection of the Legislator's wisdom. One cannot, in fact, guard against the thief: he tunnels into houses, violates the place of safekeeping and breaks the lock, and the owner of the goods cannot protect himself any further. If his amputation had not been prescribed, people would steal from one another, harm would grow great, and the trial of thieves would become severe; unlike the plunderer and the snatcher.
The plunderer, indeed, takes the wealth openly, in people's sight: they can seize him, restore the right of the wronged party, or testify for him before the judge.
As for the snatcher, he takes the wealth at a moment of inattention of the owner or of others: he is never free of some negligence that enabled him to snatch it; with perfect vigilance and alertness, snatching is impossible for him. He is therefore not like the thief: he rather resembles the betrayer of trust. Moreover, the snatcher mostly takes the wealth from other than a place of equivalent safekeeping: he is the one who catches you off guard and snatches your goods at the moment you have set them down and neglected to watch them; one can usually guard against him, and in this respect he is like the plunderer.
As for the usurper, the matter is plain: he is even more entitled than the plunderer to escape amputation. Yet it is lawful to restrain the aggression of all these by beating, exemplary punishment, lengthy imprisonment and punishment by confiscation of wealth.
If it is objected: the Sunna has prescribed the amputation of the denier of a loan, and at the very least he is a betrayer of trust; the lender himself enabled him to take possession of his wealth, and one can guard against him by not handing the wealth over to him: the distinction you have drawn collapses.
It is answered: by my life, the hadith is authentic, according to which:
"A woman used to borrow goods and deny them; the Prophet, peace and blessings of Allah be upon him, gave orders concerning her, and her hand was cut off."
Hadith whose authenticity is affirmed, cited by Ibn al-Qayyim in I'lam al-Muwaqqi'in
The jurists then differed over this question.
The jurists have laid down, for the application of the fixed penalty, that the stolen property be legally valuable (mutaqawwim), that it reach the nisab, and that it be in a place of safekeeping. The explanation of these conditions follows.
The jurists required, for the fixed penalty to be applied to the thief, that the object of the theft be property: what is not property carries no penalty. On this basis they differed over:
The jurists differed over the ruling on one who steals a free child: is the penalty applied to him, or not? And is it required that he carry jewellery reaching the nisab, or not?
The Hanafis, the Shafi'is, the Hanbalis according to the position of their school, and Ibn al-Majashun among the Malikis hold that one who steals a small child is not amputated: a child is not property, and the obligation of amputation is specific to the theft of legally valuable property.
They differed over the case where the child carries jewellery reaching the nisab: is one amputated, or not? The Hanafis according to the apparent version, the Shafi'is according to the more sound view, and the Hanbalis according to the position of their school hold that one is not amputated, because the child's hand is established over the jewellery he carries; for this reason, if a foundling were discovered with jewellery, the jewellery would belong to him. Amputation is therefore not due for stealing it, just as it is not due for goods whose owner is sleeping upon them.
Imam Abu Yusuf, the Shafi'is in one view, and the Hanbalis in one opinion hold that one is amputated if the child carries jewellery reaching the nisab: the value of the jewellery is a complete nisab which, stolen on its own, would entail amputation; the same applies with the child, all the more so as what is intended is the jewellery, not the child (al-Mabsut 9/161; see Tuhfat al-Fuqaha 3/154, Bada'i' al-Sana'i' 7/67, al-Hawi al-Kabir 13/304, al-Muhadhdhab 2/281, al-Bayan 12/469, Asna al-Matalib 4/148 and 149, Mughni al-Muhtaj 5/483, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
If one steals a child in slavery who cannot speak or understand, amputation applies according to Abu Hanifa: he is property from every aspect, the meaning of monetary value being found in him in full, and he holds no hand over his own person; the pillar of theft is therefore realized in his case as with livestock. His being human does not negate his being property: he is human from every aspect and property from every aspect, there being no incompatibility; amputation attaches to his theft inasmuch as he is property, not inasmuch as he is human. It is otherwise with the rational slave: even though he is property from every aspect, he is in his own hand, and the hand of another cannot be established over him, by incompatibility; the pillar of theft, which is the taking, is therefore not realized in his case.
It is reported from Abu Yusuf, may Allah have mercy on him, that there is no amputation: a slave is not pure property; he is property in one respect and human in another; the locus of theft is therefore established in one respect and not in the other, and the capacity to be the object of theft is not established in case of doubt: there is no amputation, as with the rational free child (al-Mabsut 9/161; see Tuhfat al-Fuqaha 3/154, Bada'i' al-Sana'i' 7/67).
The Malikis according to the position of their school, and the Hanbalis in one report, hold that whoever steals a child, free or enslaved, male or female, from his place of safekeeping is amputated; if it is a grown, eloquent slave, there is no amputation; if he is a non-Arabic-speaking slave or insane, there is amputation; whether or not a nisab is with him, and whether or not the thief derives benefit from the child or the insane person.
The safekeeping of the child consists in his being in his family's home, or accompanied by someone who serves or guards him; otherwise, there is no amputation (at-Taj wa-l-Iklil 5/345; see Sharh Mukhtasar Khalil 8/94, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/335, Tahbir al-Mukhtasar 5/363, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
The preceding difference concerns the theft of a free person. As for the slave, Ibn al-Mundhir transmitted the consensus that whoever steals him has his hand cut off. He said, may Allah have mercy on him: they agreed that whoever steals a small slave from his place of safekeeping incurs amputation (al-Ijma' 614).
Al-Shafi'i, may Allah have mercy on him, said: "If one steals a small slave who does not understand, or a non-Arabic-speaking slave, from a place of safekeeping, one is amputated; if he understands, one is not."
Al-Mawardi, may Allah have mercy on him, said: this is correct. The stolen slave is invariably either in a place of safekeeping or outside one. If he is outside a place of safekeeping, there is no amputation for his thief, whether he is small or grown. If he is in a place of safekeeping, which is either a house with its door locked or in the company of his master, his case is invariably one of 2:
First: that he be rational and discriminating, distinguishing his master's command from that of another; then there is no amputation for his thief, for such a slave is a deceiver and is not a stolen object.
Second: that he be small, or non-Arabic-speaking without the reason of discrimination, not distinguishing his master's command from another's; then the amputation of his thief is obligatory. This is the view of Abu Hanifa, Malik and Muhammad. Abu Yusuf said: "There is no amputation, for since the theft of a grown slave carries no amputation, the theft of a small one carries none either, as with the free child." This is a mistake: he is an owned animal without discrimination, so amputation must apply to his theft, as with livestock (al-Hawi al-Kabir 13/302).
Imam Ibn Qudama, may Allah have mercy on him, said: whoever steals a small slave incurs amputation according to the view of the generality of the people of knowledge. Ibn al-Mundhir said: all the people of knowledge whose transmission we preserve agreed on this, among them al-Hasan, Malik, ath-Thawri, al-Shafi'i, Ishaq, Abu Thawr, Abu Hanifa and Muhammad.
The small one whose theft entails amputation is he who has no discrimination. If he is grown, his thief is not amputated, unless he is asleep, insane, or a non-Arabic-speaking slave who does not distinguish his master from another in obedience: then his thief is amputated.
Abu Yusuf said: the thief of a slave is not amputated even if he is small, for what does not entail amputation when stolen grown does not entail it when stolen small, like the free child.
Our argument: he stole owned property whose value reaches the nisab, so amputation is due upon him as with the other animals. He differs from the free person, who is neither property nor owned; and he differs from the grown slave, for the reason that follows.
The jurists laid down several conditions concerning the person stolen from:
The jurists agreed that it is required of the person stolen from that his wealth be legally protected, like the Muslim and the dhimmi. If wealth is stolen from a Muslim, or from a dhimmi, amputation is due upon its thief when what was stolen reaches the nisab together with its conditions, as has been set out in detail under the first pillar.
They also agreed that the fixed penalty is not applied to one who steals the wealth of the unbeliever at war, for his wealth is legally without protection, whether the thief be a Muslim or a dhimmi.
The jurists have, however, differed over the Muslim or dhimmi who steals from the beneficiary of a covenant (mu'ahad) or the beneficiary of a safe-conduct (musta'min): is his hand cut off, or not?
The Hanafis, the Shafi'is according to the more apparent view, and Ashhab among the Malikis hold that he is not amputated for it (Rawdat at-Talibin 6/579; see adh-Dhakhira 3/447, Tahbir al-Mukhtasar 5/385).
Imam al-Kasani, may Allah have mercy on him, said: as for the wealth of the unbeliever at war holding a safe-conduct in the abode of Islam, there is no amputation for it by juristic preference (istihsan), while analogy would require amputation.
The way of analogy: he stole legally protected wealth, for the unbeliever at war acquired protection through the safe-conduct, in the same rank as the dhimmi; this is why his wealth is guaranteed against destruction, like the dhimmi's wealth.
The way of juristic preference: this wealth carries a doubt of free disposal, for the unbeliever at war under safe-conduct belongs to the people of the abode of war; he entered the abode of Islam only to settle some of his needs and then return shortly. His belonging to the people of the abode of war breeds a doubt of free disposal over his wealth; for this reason it likewise bred a doubt of free disposal over his blood, so that no believer is killed in retaliation for killing him. His wealth was indeed lawful by origin, and protection is established only by an accidental safe-conduct on the verge of disappearing; upon its disappearance it appears that the protection was not according to the customary original rule, for every accident superimposed upon a principle, once removed, is annexed to original non-existence, as though it had never been: the protection is therefore treated as never established. It is otherwise with the dhimmi: belonging to the people of the abode of Islam, he acquired protection through a perpetual covenant, and his blood and wealth are protected by an absolute protection carrying no doubt of free disposal. It is likewise otherwise with the guarantee of wealth: doubt does not prevent the obligation of guaranteeing wealth, for it is a right of a human being, and the rights of human beings are not dropped by doubts (Bada'i' al-Sana'i' 7/71; see al-Jawhara an-Nayyira 5/384).
The Shafi'is, in one view, hold that he is amputated if amputation was stipulated against him in the covenant, otherwise not (Rawdat at-Talibin 6/579).
The Malikis, the Shafi'is in one view, and the Hanbalis hold that the Muslim is amputated for stealing the wealth of the beneficiary of a covenant: he stole legally protected wealth from an equivalent place of safekeeping, so his amputation is due, like the thief of a dhimmi's wealth (al-Ifsah 2/285; see Tahdhib al-Mudawwana 2/246, at-Taj wa-l-Iklil 2/391, Rawdat at-Talibin 6/579, al-Mughni 9/112, Kashshaf al-Qina' 6/181, Matalib Uli an-Nuha 6/244 and 245).
The question has already been set out under the first pillar.
The jurists agreed that it is required, for theft to be realized, that the thief take the stolen object in a manner of secrecy and concealment: if he snatches the wealth away, plunders it or stealthily withdraws it, he is not a thief and is not amputated, according to them all, because of the hadith of Jabir ibn Abdullah (may Allah be pleased with them both): the Messenger of Allah, peace and blessings of Allah be upon him, said:
"There is no amputation for the plunderer; whoever plunders openly displayed booty is not one of us." And he said: "There is no amputation for the betrayer of trust."
Authentic hadith, reported by Abu Dawud (4391 and 4392), an-Nasa'i (4973 and 4974) and Ahmad (15112)
In one version: "Nor for the stealthy snatcher" (Authentic hadith, reported by Abu Dawud 4393).
And in the wording of Ibn Hibban:
"There is no amputation for the plunderer, nor the stealthy snatcher, nor the betrayer of trust."
Reported by Ibn Hibban in his Sahih (4457)
On this the scholars expressed consensus that there is no amputation for the betrayer of trust, the stealthy snatcher, the plunderer or the usurper: the obligation is the amputation of the thief, and this person is not a thief; and stealthy withdrawal is a species of snatching and plundering, in which concealment occurs only at the beginning of the act, unlike the thief (Bada'i' al-Sana'i' 7/65; see al-Bahr al-Raiq 5/60, Rawdat at-Talibin 6/567, Nihayat al-Muhtaj 7/507).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that there is no amputation for the stealthy snatcher; Iyas ibn Mu'awiya alone said: I would amputate him. And they agreed that there is no amputation for the betrayer of trust (al-Ijma' 618 and 619).
Ibn Abd al-Barr, may Allah have mercy on him, said: the people of knowledge agreed that stealthy withdrawal carries no amputation, nor does betrayal of trust; I know of no one who made amputation obligatory for stealthy withdrawal except Iyas ibn Mu'awiya, while the rest of the people of knowledge see no amputation in it (al-Istidhkar 7/565).
He also said: they agreed that the usurper and the coercive overpowerer are not amputated, unless he is a highway robber brandishing weapons against the Muslims and terrorizing the roads: his ruling is that which has been set out above concerning the brigands (al-Istidhkar 7/566).
He also said: the scholars of the Muslims agreed that there is no amputation for the betrayer of trust, and this suffices (al-Istidhkar 7/568).
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed that there is no amputation for betrayal of trust or for stealthy withdrawal, except Iyas ibn Mu'awiya, who made amputation obligatory for stealthy withdrawal. Likewise they agreed that there is no amputation for the usurper or the coercive overpowerer, unless he is a highway robber brandishing weapons against the Muslims and terrorizing the road: his ruling is that of the brigand (Bidayat al-Mujtahid 2/334).
Imam Ibn al-Arabi the Maliki, may Allah have mercy on him, said: the community agreed that there is no amputation for the stealthy snatcher and the plunderer, because no place of safekeeping is violated in their case: since they violate no safekeeping, no one imposes amputation upon them (Ahkam al-Quran 2/111).
Imam Ibn Hubayra, may Allah have mercy on him, said: they agreed that the stealthy snatcher, the plunderer, the usurper and the betrayer of trust, for all the gravity of their offence and their sins, are not amputated (al-Ifsah 2/285).
Imam Ibn Hazm, may Allah have mercy on him, said: concerning the stealthy snatcher there are only 2 cases. Either he withdrew the goods openly, without concealing himself from people: here there is no disagreement that he is not a thief and is not amputated. Or he did so concealed from all who were present: here there is no disagreement between us and our opponents present that he is a thief and that amputation is due upon him (al-Muhalla 11/326).
Imam Ibn Qudama, may Allah have mercy on him, said: if he snatched or stealthily withdrew, he is not a thief and is not amputated according to anyone whose view we know, except Iyas ibn Mu'awiya, who said: "I amputate the stealthy snatcher, for he conceals himself in his taking, and he is therefore a thief"; the people of fiqh and of legal opinion among the scholars of the great cities are of the contrary view (al-Mughni 9/93).
The plunderer (al-muntahib) is the one who takes openly and by coercion, in a town or village (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/351; see the hashiya of as-Sawi 10/303, al-Bahr al-Raiq 5/60).
The stealthy snatcher (al-mukhtalis) is the snatcher (al-mukhtaf): the one who seizes the wealth in the presence of its owner during his inattention and makes off quickly and openly, whether his approach was secret or open (al-Bahr al-Raiq 5/60; see Rawdat at-Talibin 6/576).
It is also said: one who seizes the wealth without resorting to force and who relies on flight. Then it was said that this occurs during the owner's inattention, and it was said: before his very eyes; this latter is the correct view (Tahrir Alfaz at-Tanbih, p. 327).
The difference between the plunderer and the snatcher: the plunderer relies on strength and overpowering force and takes the thing openly, with calm and assurance; the stealthy snatcher deliberately relies on flight: he takes the thing openly, but with speed and fear; as for theft, it is carried out in a manner of concealment (Rawdat at-Talibin 6/567; see the hashiya of al-Labadi, p. 402).
Betrayal of trust (khayana) consists in taking what is in one's own hand by way of trust, like the man whom another admits into his house as a guest or for a need and who robs him, or like the borrower, the depositary, the hired worker or the partner (al-Bahr al-Raiq 5/60; see al-Kafi of Ibn Abd al-Barr, p. 578).
The jurists of the 4 schools agreed that it is required of the stolen property, for hands to be cut off, that it reach the nisab; as for a trifling thing, there is no amputation for it according to them.
The jurists have, however, differed over the amount of the nisab for which hands are cut off: is it a quarter dinar or its equivalent, namely 3 dirhams, or 10 dirhams?
The Malikis and the Hanbalis according to the position of their school hold that the minimal nisab for theft is a quarter dinar or more of pure gold, or 3 dirhams of silver, because of the hadith of Aisha (may Allah be pleased with her) reporting from the Messenger of Allah, peace and blessings of Allah be upon him, the saying:
"The hand of the thief is not cut off except for a quarter dinar or more."
Reported by Muslim (1684)
And from her, attributed upward to the Prophet:
"Cut for a quarter dinar, and do not cut for anything below it." A quarter dinar was then worth 3 dirhams, and the dinar 12 dirhams.
Weak hadith, reported by Imam Ahmad (24559) and al-Bayhaqi in as-Sunan al-Kubra (16941)
If one steals other than gold and silver, such as trade goods and the like, it is valued by what they are worth, because of the hadith of Ibn Umar (may Allah be pleased with them both) that the Prophet, peace and blessings of Allah be upon him, cut off the hand of a thief who had stolen a shield (turs) from the women's gallery, whose price was 3 dirhams (Authentic hadith, reported by Abu Dawud 4386 and an-Nasa'i 4909).
Ibn Umar (may Allah be pleased with them both) said:
"The Prophet, peace and blessings of Allah be upon him, ordered amputation for a shield (mijann) whose price was 3 dirhams."
Reported by al-Bukhari (6795) and Muslim (1686)
This establishes that dirhams are taken into account when they reach this amount; and silver is a fundamental form of wealth taken into account in prices and in the valuation of destroyed property: its theft must therefore be assessed by a quantity intrinsic to it and not assessed by anything other than itself, its principle being gold.
Valuation takes place at the moment of the property's removal from its place of safekeeping, for that is the moment of obligation, the cause being present in it (al-Ishraf ila Naka't Masa'il al-Khilaf 4/452 and 454, no. 1759; see al-Qawanin al-Fiqhiyya, p. 236, at-Taj wa-l-Iklil 5/345 and 346, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/335 and 336, Tahbir al-Mukhtasar 5/363, al-Mughni 9/94, al-Kafi 4/175, Sharh az-Zarkashi 3/122, al-Mubdi' 9/120, Kashshaf al-Qina' 6/167, Sharh Muntaha al-Iradat 6/236 and 237, Manar as-Sabil 3/336 and 337).
The Hanbalis, in one report, hold that the principle is that trade goods are valued only in dirhams, because valuation occurred in dirhams and not in gold: what is worth 3 dirhams entails amputation even without reaching a quarter dinar, and what is not worth 3 dirhams does not entail it even if it reaches a quarter dinar.
It is reported from Imam Ahmad that if one steals, other than gold and silver, something worth a quarter dinar or 3 dirhams, one is amputated; on this basis, non-monetary property is valued at the lesser of the 2: a quarter dinar or 3 dirhams (al-Mughni 9/94; see al-Kafi 4/175, Sharh az-Zarkashi 3/122, al-Mubdi' 9/120).
The Shafi'is hold that the minimal nisab of theft, below which one is not amputated, is a quarter dinar of pure gold, because of the hadith of Aisha (may Allah be pleased with her) reporting from the Messenger of Allah, peace and blessings of Allah be upon him:
"The hand of the thief is not cut off except for a quarter dinar or more."
Reported by Muslim (1684)
If one steals other than gold, it is valued against gold, for gold is the principle: even if he steals dirhams or something else, valuation is in gold; if its value in dinars is not known, it is valued in dirhams, and these are then valued in dinars; if there are no dinars in the place of the theft, one moves to the nearest place that has them (al-Bayan 12/436 and 437; see Rawdat at-Talibin 6/541 and 542, an-Najm al-Wahhaj 9/150 and 151, Mughni al-Muhtaj 5/459, Nihayat al-Muhtaj 7/508).
The Hanafis hold that the nisab of theft is 10 dirhams, or property worth 10 dirhams, taken in a single instance; whether the 10 dirhams belong to one owner or to a group, provided they are in a single place of safekeeping free of any doubt, amputation is due, because of what Abdullah ibn Mas'ud (may Allah be pleased with him) reported from the Prophet, peace and blessings of Allah be upon him:
"There is no amputation except from 10 dirhams."
Reported by al-Tabarani in al-Awsat (7142); al-Haythami said in Majma' al-Zawa'id (6/422): reported by al-Tabarani in al-Awsat, and its chain is weak
And Ibn Abbas (may Allah be pleased with them both) said:
"The Messenger of Allah, peace and blessings of Allah be upon him, cut off the hand of a man for a shield (mijann) worth a dinar or 10 dirhams."
Anomalous (shadh) hadith, reported by Abu Dawud (4389)
The Shafi'is and the Hanbalis stated it expressly, and it is what the words of the Hanafis and the Malikis imply: among the conditions for cutting off the thief's hand is that he know the prohibition of theft. For absence of this knowledge is a doubt, and the fixed penalty is averted by doubt as far as possible, according to what is reported from 'Umar, 'Uthman and 'Ali (may Allah be pleased with them):
"No fixed penalty except upon one who knows it."
Saying reported from 'Umar, 'Uthman and 'Ali (Mughni al-Muhtaj 5/485; see Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233)
However, the claim of ignorance of the prohibition is not accepted from one who grew up among the Muslims. An exhaustive explanation of this point has already been given in the book of fornication, under the third condition.
The jurists required that the person stolen from hold a hand over the property, by being its owner or the owner's deputy, such as his guardian or his agent, for his hand counts as the owner's.
The jurists have, however, differed over the case where the hand of the person stolen from over the stolen property is not valid, as when one steals from a thief or from a usurper: is the thief's hand cut off, or not?
The Hanafis distinguish between the thief who steals from a thief and the thief who steals from a usurper.
On stealing from a thief, they say: if another thief steals from a thief after his right hand has been cut off, or before, he is not amputated, for the first thief's hand is not a valid hand: it is neither the hand of an owner, nor of a trustee, nor of a guarantor; it is a lost, non-guarding hand. Taking from his possession is therefore like taking from the public road; nor is one amputated upon the owner's claim, for the thief held no valid hand over the property.
But if amputation was averted from the thief and another thief then stole it from him, that thief is amputated: once amputation was averted, the guarantee attached to his taking, and the hand of a guarantor is a valid hand, whose removal entails amputation; the first thief becomes like the usurper.
It is also said: if he stole before the first thief's amputation, or after it was averted on account of a doubt, then both he and the owner of the property may demand amputation, for the loss of legal valuation is required only by the amputation, which did not occur; but after the amputation, there is no amputation at all.
As for stealing from a usurper, the hand is cut off, for his hand is a hand of guarantee, hence a valid hand (al-Mabsut 9/145; see al-'Inaya 7/384, Sharh Fath al-Qadir 5/404, Tabayin al-Haqa'iq 3/229, al-Bahr al-Raiq 5/69, al-Jawhara an-Nayyira 5/411, ad-Durr al-Mukhtar 4/108).
The Malikis and the Shafi'is, in one view, hold that if one steals from a thief, or from a trustee and the like, one is amputated: he stole a nisab in which he has no doubt, from an equivalent place of safekeeping, so amputation is due upon him as upon the first thief. The Malikis add: the word of the second thief, claiming that he stole it in order to return it to its owner, is not accepted (the hashiya of ad-Dasuqi with ash-Sharh al-Kabir 6/339; see al-Hawi al-Kabir 13/312, al-Bayan 12/477 and 478).
The Shafi'is according to the position of their school, and the Hanbalis, hold that if the thief steals a nisab from an equivalent place of safekeeping, stores it in a place of safekeeping of his own, and another thief then steals it from that place: the first thief has already incurred amputation for his theft; as for the second thief, the first thief may neither demand the restitution of the nisab from him nor his amputation, for he has no right to it; the owner of the nisab may demand its restitution from the second thief, but amputation is not due upon him, for he did not steal it from its owner or his deputy, and because the owner of the nisab did not approve this place as a safekeeping for his property.
If a man seizes a nisab from another by usurpation, stores it in an equivalent place of safekeeping, and a thief steals it from that place: the usurper is not amputated, and amputation is not due upon the thief of the usurper either, for he did not steal it from its owner or his deputy (al-Hawi al-Kabir 13/312; see al-Bayan 12/477 and 478, Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233, Matalib Uli an-Nuha 6/229).
The minister Ibn Hubayra, may Allah have mercy on him, said: they differed over the case of one who steals the stolen object from the thief, or the usurped object from the usurper. Abu Hanifa said: the thief of the usurped object is amputated; the thief of the stolen object is not, if the first thief has already been amputated for it; if he has not, the second one is amputated. Malik said: both of them are amputated. Al-Shafi'i and Ahmad said: amputation is due upon neither of them, I mean: neither the thief of the thief nor the usurper of the usurper (al-Ifsah 2/280).