garment, and sewing it, then there is no liability upon him, and the right of the person stolen-from in the item is extinguished. If it is an increase in the item, such as dyeing it red or yellow, the item is not to be returned, nor is it permissible for him to dispose of it. Abu Yusuf and Muhammad said: The item is returned. This is based upon his principle that liability (ghurm) waives the amputation (qat') from him. As for when he dyes it, he said: He does not return it; because if he were to return it, he would be a partner in it due to his dyeing it, and it is not permissible to amputate for that in which he is a partner. This is not correct; for his dyeing was before the amputation. If he were a partner due to the dyeing, the amputation would be waived. If he were to become a partner by way of returning it, then the partnership that occurs after the amputation has no effect, just as if he had purchased half of it from its owner after the amputation. Abu Hanifa conceded that if he stole silver and minted it into dirhams, he is amputated, and he is obligated to return it. His two companions said: He is not amputated, and the right of its owner to it is extinguished by his minting it. This is a matter they based upon their principles, that changing its name removes the ownership of its owner, and that the thief's ownership of it waives the amputation from him, and this is not conceded to them.

1587 - Issue; he said: (And if the grave-robber (nabbash) removes a shroud from the grave whose value is three dirhams, he is amputated.)

It is narrated from Ibn al-Zubayr that he amputated a grave-robber (1). This is also the opinion of al-Hasan, 'Umar b. 'Abd al-'Aziz, Qatada, al-Sha'bi, al-Nakha'i, Hammad, Malik, al-Shafi'i, Ishaq, Abu Thawr, and Ibn al-Mundhir. Abu Hanifa and al-Thawri said: There is no amputation for him, because the grave is not a protected enclosure (hirz), since a hirz is that in which property is placed for protection, and a shroud is not placed in a grave for that purpose. Also, because it is not a hirz for anything else, so it cannot be a hirz for it. And because the shroud has no owner, as it is either the property of the deceased or his heir, and it is not the property of either of them; for the deceased does not own anything, and he is no longer qualified for ownership, and the heir only inherited what remained beyond the need of the deceased. Also, amputation is not obligatory except upon the demand of the owner or his representative, and that has not been found. Our evidence is the saying of Allah the Exalted: "The male thief and the female thief, cut off their hands" (2). And this is a thief, for 'Aisha, may Allah be pleased with her, said: The thief of our dead is like the thief of our living (3). What they mentioned is not correct, for a shroud is needed to be left in the grave unlike other things, and it is sufficient for it to be in its hirz. Do you not see that the deceased is not left in a place other than the grave without his shroud being guarded, while it is left in the grave and they depart from it? As for their statement that it has no owner, it is rejected; rather, it is owned by the deceased, because he was the owner of it during his life, and his ownership does not cease except over that which he has no need of, and his guardian stands in his place in making the demand, just as the guardian of an orphan stands in his place in demanding his property. Once this is established, the shroud must be removed from the grave, because it is the hirz. If he removes it from the niche (lahd) and places it in the grave, there is no amputation for it, because he has not removed it from the hirz, resembling the case where one moves property in a house from one side to another, for the Prophet (may Allah bless him and grant him peace) called the grave a house (5).