Is the cutting (amputation) obligatory for a thief who steals a burial shroud (kafan) from a grave?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The cutting is obligatory for the theft of a burial shroud from a grave. This view is supported by Ibn al-Zubayr, al-Hasan, 'Umar ibn 'Abd al-'Aziz, Qatadah, al-Sha'bi, al-Nakha'i, Hammad, Malik, al-Shafi'i, Ishaq, Abu Thawr, and Ibn al-Mundhir. The evidence is derived from the general command in the Quran: 'As for the thief, both male and female, amputate their hands' (Quran 5:38), and the statement attributed to 'A'ishah that the thief of our dead is like the thief of our living. Furthermore, the shroud requires remaining in the grave for its purpose, making the grave its intended secure enclosure (hirz). The shroud is owned by the deceased, and the guardian acts on behalf of the deceased in demanding restitution.
Supporting text
Abu Hanifa and al-Thawri argue that there is no cutting because the grave is not considered a secure enclosure (hirz) for this purpose, as the shroud is not placed there for safekeeping in the same manner as other goods. They also argue the shroud has no owner because it is not owned by the deceased (who is no longer capable of ownership) nor by the heir until all debts are settled. Additionally, they claim cutting requires a claim by the owner or their representative, which is absent here.