Is the hand of a thief to be amputated if the rightful owner admits the stolen item belonged to the thief, or if there is suspicion of ownership, or permission to take it, or if the owner declared it abandoned (sabbulaha)?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
Amputation is not incumbent if the rightful owner admits the stolen item was the thief's property, or if evidence establishes the thief's prior right or a suspicion of right, or if the owner permitted the taking, or declared it abandoned. This is because it is established that the obligation for amputation has not materialized. Similarly, if the owner confesses to having owned the item previously, amputation is dropped, as this confession indicates prior ownership, making it possible the thief owned it at the time of taking.
Supporting text
The established position from Ahmad is that amputation is not waived, as this constitutes a newly emerging right after the necessity of amputation was established, similar to a gift (hiba). Furthermore, it is considered a stratagem to evade amputation after it became obligatory, and thus it is not dropped, just as a gift does not prevent the penalty.