Section
The Thief Who Undergoes Amputation after Using Up the Stolen Property

The scholars unanimously agree that if the stolen item itself is found in the thief’s possession, it must be returned to its owner. They differed, however, over whether he remains liable for it if it has perished while in his possession and the prescribed punishment has been carried out upon him. There are four views:

The first is that he remains liable whether solvent or insolvent. This is the position of al-Shāfiʿī.

The second is that he is not liable, whether solvent or insolvent. Ismāʿīl al-Qādī related this position from the scholars of the East.

The third is that the owner of the stolen property has a choice: he may pursue the thief for its value, in which case the thief’s hand is not amputated; or he may forgo its value and refrain from pursuing him for it, in which case his hand is amputated. This is Abū Hanīfah’s position, as related by ʿAbd al-Wahhāb in his commentary on al-Risālah. According to this position, when the stolen property has perished, the ruler must not amputate the thief’s hand until the owner has been given this choice.

Mālik—may Allah have mercy on him—held that if the thief remained solvent continuously from the day he stole until the day the prescribed punishment was carried out upon him, he must reimburse the value of the stolen property. If, however, he was insolvent or became insolvent at any point during that period, his liability for reimbursement lapses. This is the correct view. For if he remained continuously solvent, it is as though the stolen property itself still existed: although he used it up, its value was preserved in his own wealth.

This reasoning is valid only if he used it up for his own benefit. If, however, he destroyed it by damaging it, or it perished through an act of God, its loss brought no corresponding benefit to his wealth. This reasoning would therefore entail that no reimbursement be taken from his wealth—even if he remained continuously solvent—when the property perished through an act of God or through his damaging it. Yet this is not what they maintain.

The sound explanation of Mālik’s position is therefore that, once the thief’s hand has been amputated, he must not be pursued for the value of the stolen property while insolvent, lest two punishments be combined against him: amputation of his hand and continuing liability for repayment. Allah imposed only one punishment upon him as recompense for what he had earned, saying:

“Cut off their hands as recompense for what they have earned.”

When he is solvent, however, he must reimburse the owner for the value of the stolen property even though his hand has been amputated, just as, by unanimous agreement, he must return the stolen item itself if it is found still in his possession. This is not a second punishment. Nor does it follow from