it resembles that which has passed away from him through death. It is also possible that the sale or gift should be annulled and it be burned, because a right attached to it that precedes the sale or the gift, so it is necessary to prioritize it, like retaliation (qisas) in the right of the perpetrator.
Section: If the one who stole from the spoils (ghall) is a child, his baggage is not to be burned. Al-Awza'i held this view as well, because burning is a punishment and he is not among those subject to it, so it resembles the Hadd (prescribed punishment). If he is a slave, his baggage is not to be burned, because it belongs to his master, and his master is not to be punished [for the crime of his slave] (21). If he consumes what he stole, it is [a liability] upon his neck, because it is from his crime. If a woman or a dhimmi (protected non-Muslim subject) steals from the spoils, their baggage is to be burned, because they are among those subject to punishment, and for this reason they are subject to amputation for theft and to the Hadd for adultery and other offenses. If he denies the theft and claims (22) that he purchased what is in his possession, his baggage is not to be burned until his theft is established by evidence or confession, because it is a punishment (23), and it is not obligatory before it is established by those means, like the Hadd; and nothing is accepted as evidence for it except two just witnesses for that reason.
Section: The one who steals from the spoils is not deprived of his share. Abu Bakr said: There are two narrations regarding this. One of them is that he is deprived of his share, because it has come in the Hadith: "He is deprived of his share." If it is authentic, then the ruling is by it (24). Al-Awza'i said regarding a child who steals from the spoils: He is deprived of his share, but his baggage is not to be burned. Our argument is that the cause for entitlement exists, so he is entitled, just as if he had not stolen (25), and there is no confirmed report or analogy for depriving him of his share, so he remains in his original state, and his share is not burned because it is not part of his baggage.
Section: If the one who stole from the spoils repents before the distribution, he returns what he took to the spoils without disagreement, because it is a right that is required to be returned to its people. If he repents after the distribution, then the requirement of the school (Madhhab) is that he should pay his fifth (khums) to the Imam and give the rest as charity. This is the view of Al-Hasan, Al-Zuhri, Malik, Al-Awza'i, Al-Thawri, and Al-Layth. Sa'id ibn Mansur (26) narrated from Abdullah ibn al-Mubarak, from Safwan ibn 'Amr, from Hawshab ibn Sayf, who said: The people campaigned against the Byzantines, and their commander was Abd al-Rahman ibn Khalid ibn al-Walid, and a man stole a hundred dinars from the spoils.
(21) In (A) and (B): "bi-jinayatihi" (for his crime). (22) In (B): "wa-idda'a" (and he claimed). (23) In (M) there is an addition: "bihi" (by it). (24) In the original, (A), and (M): "lahu" (for him). (25) In (M): "ya'lam" (he knows). (26) In: The Chapter on what has come regarding one who steals from the spoils and repents, from the Book of Jihad. Al-Sunan 2/27.
