fought without the permission of the Imam, then there are two narrations regarding them (35). One is that they are entitled to nothing, and it is a fay' (booty) for the Muslims. The second is that it is subject to the fifth, and the remainder belongs to them. This (36) is more correct. The basis for the two narrations is what has already preceded. Another position can be derived from it, similar to the third narration, which is that the entirety (37) belongs to them without a fifth, due to it being [permissible acquisition] (38) without Jihad.
1677 - Issue: He said: "And whoever steals from the spoils (ghalla) [from the booty] (1), all his belongings shall be burned, except for the Mushaf (copy of the Quran) and anything that has a soul."
The ghall (thief/stealer from spoils) is the one who conceals what he takes (2) from the spoils, so he does not make the Imam aware of it, nor does he place it with the spoils. His ruling is that all his belongings should be burned. This is what al-Hasan and the jurists of the Levant said, among them Makhul, al-Awza'i, al-Walid ibn Hisham, and Yazid ibn Yazid ibn Jabir. Sa'id ibn Abd al-Malik was brought a ghall, so he gathered his wealth and burned it, and Umar ibn Abd al-Aziz was present for that and did not disapprove of it. Yazid ibn Yazid ibn Jabir said: The Sunnah regarding the one who steals from the spoils is that his belongings should be burned (3). Sa'id narrated both of them in his "Sunan" (4). Malik, al-Layth, al-Shafi'i, and the People of Opinion (Ashab al-Ra'y) said: It is not to be burned, because the Prophet (peace and blessings of Allah be upon him) did not burn [it]. For Abdullah ibn Amr (5) narrated that the Messenger of Allah (peace and blessings of Allah be upon him) used to, when he obtained booty, command Bilal to call out to the people, so they would come with their spoils, and he would take the fifth and divide it. A man came after that with a strap of hair and said: O Messenger of Allah, this is from what we obtained of the spoils. He said: "Did you hear Bilal call three times?" He said: Yes. He said: "Then what prevented you from bringing it?"
(35) In (M): "fa-fihi" (then there is in it). (36) In (M): "wa-hadha" (and this). (37) In (A) and (B): "al-jam'" (the sum/collection). (38) In the copies: "iktisab mubah" (permissible acquisition). (1) Omitted from: (A). (2) In (B): "akhadhahu" (what he took of it). (3) Omitted from: (B). (4) The first was recorded by Sa'id ibn Mansur, in: The Chapter on What Has Been Related Regarding the Punishment of the One Who Steals from the Spoils, from the Book of Jihad. Al-Sunan 2/270. We did not find the second in it. (5) In (M): "Umar" (an error).
