What is the hadith of the she-camel referred to in the statement of the Shaykh al-Islam?
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The questioner: "Some of the scholars said: It should be returned to its Muslim owner. This is the view of al-Shafi'i and Abu al-Khattab from the Hanbalis; based on the fact that their seizing it is a forbidden act, so they do not own the Muslim's property through it, just as in usurpation. And because if the Muslim took it from them in a manner that does not give a Muslim ownership over another Muslim, by seizing it or stealing it; then it is returned to its Muslim owner due to the hadith of the Prophet's (peace and blessings be upon him) she-camel, and this is something upon which people have agreed, as far as we know." What is the hadith of the Prophet's (peace and blessings be upon him) she-camel that is meant?
The Shaykh : Repeat what you said to me.
The questioner: The Shaykh al-Islam says: "Some of the scholars said: It should be returned to its Muslim owner. This is the view of al-Shafi'i and Abu al-Khattab."
The Shaykh : ... ؟
The questioner: He speaks about... if the water became blood... a disbeliever took it, regarding the blood of the Muslims, the disbelievers.
The Shaykh : Yes.
The questioner: So, the Islam of the enemy combatant at the beginning of the discussion, in the first paragraph: "Rather, if the enemy combatant embraced Islam and he had in his hand the property of a Muslim that he had taken from the Muslims by way of seizing it or the like of what does not give a Muslim ownership over another Muslim because it is forbidden in the religion of Islam, then it would be his ownership, and he would not return it to the Muslim who owned it, according to the majority of scholars from the Tabi'un and those after them. This is the meaning of what came from the Rightly Guided Caliphs, and it is the madhhab of Abu Hanifa and Malik, and the explicit statement of Ahmad, and the view of the majority of his followers, based on the fact that Islam or the treaty confirmed what he had in his hand of property that he believed to be his; because it left the possession of its Muslim owner in the path of Allah, and its reward became obligatory upon Allah, and this taker became one who considered it lawful. And Allah forgave him what he did regarding the blood and wealth of the Muslims through his Islam, so he was not held liable to return it to its owner, just as he was not held liable for the lives and wealth he destroyed, nor is he required to make up the acts of worship he left; because all of that was dependent on the belief. So when he turned away from the belief, the sins that followed it were forgiven for him, and the property in his hand had no liability upon him regarding it, so it was not taken from him, just as all the defective contracts in his hand that he considered lawful, such as riba and others."
Some of the scholars said: It should be returned to its Muslim owner. This is the view of al-Shafi'i and Abu al-Khattab from the Hanbalis; based on the fact that their seizing it is a forbidden act, so they do not own the Muslim's property through it, just as in usurpation. And because if the Muslim took it from them in a manner that does not give a Muslim ownership over another Muslim, by seizing it or stealing it; then it is returned to its Muslim owner due to the hadith of the Prophet's (peace and blessings be upon him) she-camel, and this is something upon which people have agreed, as far as we know.
The Shaykh: The hadith of the she-camel, this means the story of that old woman who was captured by the enemies, and then the opportunity presented itself... and they had seized from the camels of the Messenger (peace be upon him) his she-camel al-'Adhba, so she got on it one night, mounted it, and fled on this she-camel, which was naturally the property of the Messenger (peace be upon him). So Allah (Blessed and Exalted is He) saved her, so she vowed to Allah a vow that if Allah saved her, she would slaughter the she-camel. So he said to her (peace be upon him): - or in what one does not own - so this is the clear proof from the mention of the woman, is that clear?
The questioner: We want...
The Shaykh: I think it is in "Sahih Muslim".
The Shaykh : Repeat what you said to me.
The questioner: The Shaykh al-Islam says: "Some of the scholars said: It should be returned to its Muslim owner. This is the view of al-Shafi'i and Abu al-Khattab."
The Shaykh : ... ؟
The questioner: He speaks about... if the water became blood... a disbeliever took it, regarding the blood of the Muslims, the disbelievers.
The Shaykh : Yes.
The questioner: So, the Islam of the enemy combatant at the beginning of the discussion, in the first paragraph: "Rather, if the enemy combatant embraced Islam and he had in his hand the property of a Muslim that he had taken from the Muslims by way of seizing it or the like of what does not give a Muslim ownership over another Muslim because it is forbidden in the religion of Islam, then it would be his ownership, and he would not return it to the Muslim who owned it, according to the majority of scholars from the Tabi'un and those after them. This is the meaning of what came from the Rightly Guided Caliphs, and it is the madhhab of Abu Hanifa and Malik, and the explicit statement of Ahmad, and the view of the majority of his followers, based on the fact that Islam or the treaty confirmed what he had in his hand of property that he believed to be his; because it left the possession of its Muslim owner in the path of Allah, and its reward became obligatory upon Allah, and this taker became one who considered it lawful. And Allah forgave him what he did regarding the blood and wealth of the Muslims through his Islam, so he was not held liable to return it to its owner, just as he was not held liable for the lives and wealth he destroyed, nor is he required to make up the acts of worship he left; because all of that was dependent on the belief. So when he turned away from the belief, the sins that followed it were forgiven for him, and the property in his hand had no liability upon him regarding it, so it was not taken from him, just as all the defective contracts in his hand that he considered lawful, such as riba and others."
Some of the scholars said: It should be returned to its Muslim owner. This is the view of al-Shafi'i and Abu al-Khattab from the Hanbalis; based on the fact that their seizing it is a forbidden act, so they do not own the Muslim's property through it, just as in usurpation. And because if the Muslim took it from them in a manner that does not give a Muslim ownership over another Muslim, by seizing it or stealing it; then it is returned to its Muslim owner due to the hadith of the Prophet's (peace and blessings be upon him) she-camel, and this is something upon which people have agreed, as far as we know.
The Shaykh: The hadith of the she-camel, this means the story of that old woman who was captured by the enemies, and then the opportunity presented itself... and they had seized from the camels of the Messenger (peace be upon him) his she-camel al-'Adhba, so she got on it one night, mounted it, and fled on this she-camel, which was naturally the property of the Messenger (peace be upon him). So Allah (Blessed and Exalted is He) saved her, so she vowed to Allah a vow that if Allah saved her, she would slaughter the she-camel. So he said to her (peace be upon him):
There is no vow in what one does not own
لا نذر في من لا يملكThe questioner: We want...
The Shaykh: I think it is in "Sahih Muslim".
Source
www.al-albany.com
The Arabic text is copied verbatim from the original source, without any edits.