Does the ruling on cutting the hand for theft lapse if the thief legally acquires ownership of the stolen item after the theft but before being brought before the judge and making a claim?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
If the thief acquires ownership of the stolen item through a gift, sale, or any other means of acquisition before being brought before the judge and the claim being made, the cutting is not incumbent. This is because making a claim (Mutalaba) is a condition for the cutting, and a claim is invalid after the claimant loses ownership. This view is held by Malik, Al-Shafi'i, and Ishaq. The evidence is the narration of Zufri from Ibn Safwan, whose cloak was stolen while he slept in the mosque; when the thief was brought before the Prophet, peace be upon him, and the cutting was ordered, Safwan stated that he gifted the item to the thief as charity. The Prophet, peace be upon him, responded by asking why this was not done before bringing the matter to him, indicating that finding the item before the matter reached the judge would have averted the cutting.
Supporting text
The Ahl al-Ra'y hold that the cutting is waived because the item becomes the thief's property, and one cannot be cut for stealing one's own property, similar to acquiring it before the claim. They also argue that the claim is a condition whose continuity is required, and the claim for this item has ceased. This is countered by stating that the claim is a condition for the ruling itself, not a condition for the cutting, evidenced by the fact that if the claimant reclaims the item, the cutting is not dropped even though the claim has ceased.