as it were if he found it in the booty before its distribution (20). As for if a man purchased it from the enemy, its owner has no right to take it except for its price; because of what Sa'id (21) narrated, [saying]: 'Uthman ibn Matar al-Shaybani narrated to us, Abu Hariz narrated to us, from al-Sha'bi, who said: The people of Mah (22) and the people of Jalula' (23) raided the Arabs and obtained captives from among the Arab captives, slaves, and property. Then al-Sa'ib ibn al-Aqra', the administrator of Umar, fought them and conquered Mah. He wrote to Umar concerning the captives of the Muslims, their slaves, and their property, that merchants from the people of Mah had purchased them. Umar wrote to him: "The Muslim is the brother of the Muslim; he does not betray him, nor does he forsake him. So whatever man of the Muslims finds his slave and his property in its identical form, he is more entitled to it. And if he finds it in the hands of merchants after it has been distributed, there is no path [to claim] it. And as for any free person that the merchants purchased, their capital should be returned to them, for the free person is neither sold nor purchased." The Qadi said: "What has come into his hand via gift, theft, or purchase is like if its owner found it after the distribution. Is (24) its owner more entitled to it for its value?" There are two narrations on this, and the preferred one is what we have mentioned. If the Imam learned of the Muslim's property before its distribution and then distributed it, it is mandatory to return it, and its owner is more entitled to it without [paying] anything; because his distribution was invalid from its inception.

Section: If the Muslims seize something from the polytheists that bears the mark of the Muslims, and its owner is not known, it is booty. Ahmad said, regarding ships that come from Egypt, which the Romans intercept and take, and then the Muslims take them from them: "If its owner is known, nothing from it may be consumed." This indicates that if its owner is not known, it is permissible to consume from it. Similar to this is the view of al-Thawri and al-Awza'i. They both said regarding a Mushaf (copy of the Quran) found among the spoils: "It is to be sold." Al-Shafi'i said: "It is held in abeyance until its owner comes." And if something is found with a mark on it: "It is detained for the path of Allah." It is returned as it was. Ahmad stipulated this. Al-Awza'i and al-Shafi'i also held this view. Al-Thawri said: "It is to be distributed so long as its owner does not come." Our evidence is that this [item's]...