Is cutting (amputation) obligatory upon one who removes property from its protected enclosure (Hirz)?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The removal of property from its protected enclosure is a necessary precondition for the obligatory cutting (amputation) for theft. Cutting is incumbent once the property is removed from the Hirz, regardless of whether the thief carried it to his home or left it outside the enclosure. This applies whether the removal was by carrying it, throwing it out, pulling it out with a rope, leading an animal carrying it out, or leaving it in a flowing river from which it was carried away. In all these cases, cutting is obligatory because the thief initiated the removal, either directly or through an implement. This ruling is supported by the consensus regarding its precondition and is the view adopted by Al-Shafi'i. The evidence is based on the premise that the thief stole a specified amount (nisab) from a protected enclosure of its kind, leaving no room for doubt, and is a person upon whom cutting is incumbent.
Supporting text
Abu Hanifa holds that cutting is not obligatory unless the space (house/enclosure) was too small for the thief to enter. This is because, in the case where he could enter, he did not breach the enclosure by a means that afforded him entry, thus resembling a petty thief (mukhtalis). They differentiate this from the case of the restricted space, asserting that the petty thief did not breach the enclosure.