his hand and removed it, our companions said: the analogy of Ahmad's statement is that amputation is mandatory upon both. Al-Shafi'i said: the amputation is upon the one outside; because he is the remover of the belongings. Abu Hanifah said: there is no amputation for either of them. Our position is that they both participated in the violation of the protected area (hirz) and the removal of the belongings, so amputation is incumbent upon them (5), just as if they had carried them together and removed them. If he placed them in the hole, and the other stretched his hand and took them, then amputation is mandatory upon both. It was reported that al-Shafi'i had two views on this issue, similar to the two schools of thought regarding the previous case.

Section: If one of them bored a hole alone, and the other entered alone, and removed the belongings, then there is no amputation for either of them; because the first did not steal, and the second did not violate the protected area. He only stole from a protected area that someone else had violated, so it is similar to the case where a man bored a hole and departed, and another came and found the protected area already violated and stole from it. If a man bored a hole and ordered someone else to remove the belongings, there is also no amputation for either of them. If the one ordered was a boy [if he was] (6) of discernment, then because the one of discernment has choice, he is not an instrument for the one ordering, just as if he ordered him to kill a human being and he killed him. If he was not of discernment, amputation is mandatory upon the one who gave the order, because he is his instrument. If two men participated in the boring, and one of them entered and removed the belongings alone, or took them and handed them to the other outside the protected area, or threw them outside the protected area and the other took them, then the amputation is upon the one who entered alone; because he is the one who removed the belongings alone while participating in the boring. Al-Shafi'i, Abu Thawr, and Ibn al-Mundhir said this. Abu Hanifah said: there is no amputation for either of them; because the one who entered did not separate from the protected area and his hand was still upon the stolen property, so amputation did not become incumbent upon him, just as if he destroyed it inside the protected area. Our position is that the stolen property exited the protected area while his hand was upon it, so amputation is mandatory upon him, just as if he had gone out with it. This differs from when he destroys it, for then he did not remove it from the protected area.

1593 - Issue; he said: (And he is not to be amputated, even if he confesses or evidence is established, until the owner of the stolen property comes and claims it).