Is the partner of one who cannot incur amputation liable for amputation if they jointly stole a fixed amount (Nisab)?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
In one ruling, the partner is subject to amputation, similar to the case where a person partners in cutting off the hand of their son. The second, and sounder, opinion states that amputation is not applicable. This is because the theft committed by both individuals together resulted in an ambiguity that prevents amputation for both. The father’s theft does not qualify as a ground for amputation because he took what was inherently his. This is distinguished from cutting off the son's hand, where the act was pure aggression, and the penalty (Qisas) is dropped only due to the father's superior status, not the nature of the act itself. In the current scenario, the act is clouded by legitimate doubt, thus precluding amputation, similar to the case where an intentional and a mistaken actor are joint participants.
Supporting text
If each partner individually extracted an amount equal to the Nisab (fixed minimum for amputation), then the father's partner is subject to amputation because that partner acted individually upon something sufficient to mandate the penalty. If the father extracted the Nisab but his partner stole less than the Nisab, the ruling is subject to the two mentioned legal opinions.