Is the theft of fruit from an orchard before it has been gathered into a place of storage (*hirz*) subject to amputation?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
Theft of fruit in an orchard before it is brought into a secure enclosure does not incur amputation according to the majority of jurists. This ruling extends to the core taken from date palms (*jumar an-nakhil*). This view is narrated concerning Ibn Umar, and was held by 'Ata, Malik, ath-Thawri, ash-Shafi'i, and the Companions of opinion (Ahl ar-Ra'y). The evidence for this is the tradition narrated by Rafi' ibn Khadij from the Prophet, peace be upon him, stating: 'There is no cutting for fruit nor for the palm core.' This tradition specifies the general implication of the verse (no specific reference given). Furthermore, an orchard itself is not considered a secure enclosure (*hirz*) for anything other than the fruit, similar to an un-walled space.
Supporting text
Abu Thawr held that if the stolen item is fruit or from an orchard that has been secured (*muhraz*), amputation is applicable. Ibn al-Mundhir agrees unless the narration concerning Rafi' is deemed invalid, stating he does not believe it to be firmly established. They base their argument on the apparent meaning of the verse and by analogy to other secured items. If a measure reaching the *nisab* is stolen from a date palm or tree within a secured dwelling, amputation is obligatory because it was stolen from a secure enclosure.