from the living was legislated so that the stolen item would not be owned by the thief. And such [ownership] is despaired of here.

1588- Issue: He said: "And there is no amputation for [stealing] something forbidden, nor for musical instruments."

He means there is no amputation for the theft of something forbidden, such as wine, swine, carrion, and the like, whether he stole it from a Muslim or a Dhimmi. This is the opinion of al-Shafi'i, Abu Thawr, and the People of Reason (Ahl al-Ra'y). It was narrated from 'Ata' that the thief of a Dhimmi's wine is to be amputated, even if he [the thief] is a Muslim; because it is wealth for them, resembling the case if he stole their coins (dirhams). Our argument is that it is a forbidden substance, so there is no amputation for its theft, like swine. Also, because that which does not entail amputation for its theft from a Muslim's wealth does not entail amputation for its theft from the People of the Dhimma, such as carrion and blood. What he mentioned is refuted by the case of swine, and it holds no weight, for the consideration is the ruling of Islam, and it applies to them [in this matter] rather than their own rulings. This is the same disagreement regarding the cross, if its value together with its configuration reaches the nisab (minimum threshold). As for musical instruments, such as the lute (tunbur), the flute (mizmar), and the pipe (shabbaba), there is no amputation for them, even if their value reaches the nisab separately. This is the opinion of Abu Hanifa. The companions of al-Shafi'i said: If its value after removing its configuration reaches the nisab, then there is amputation; otherwise, there is not. Because he stole something whose value is a nisab, without any doubt regarding it, from a place where such things are guarded, and he is a person [subject to] amputation, so his amputation is mandatory, just as if it were broken gold. Our argument is that it is an instrument of disobedience by consensus, so it does not entail amputation for its theft, like wine. Furthermore, he has the right to take it to break it, so that is a doubt preventing amputation, like his entitlement to his child's wealth. If there is ornamentation on it reaching a nisab, there is also no amputation for it, according to the analogy of Abu Bakr's opinion; because it is connected to something for which there is no amputation, so it resembles wood and strings. Al-Qadi said: Amputation applies to it. This is the madhhab of al-Shafi'i; because he stole a nisab from its place of protection, so it resembles an independent item.