Praise be to Allaah.
If the buried wealth has
any indication that it belongs to the kuffaar, such as their currency, then
it is called rikaaz. The fuqaha’ differed concerning one who finds rikaaz in
a kaafir land which he entered peacefully:
1 – Some of them are of the
view that he may take possession of it, and he does not have to pay anything
on it. This is the view of the Hanafis.
2 – Some of them are of the
view that he may take possession of it, but he should pay the khums
(one-fifth). This is the view of the Hanbalis and of Ibn Hazm.
3 – Others are the view
that he should not take possession of it, rather he should return it to the
people of that land. This is the view of the Shaafa’is.
It says in al-Hidaayah,
which is a Hanafi book: Whoever enters non-Muslim lands peacefully and finds
treasure in the house of some of them should return it to them, so as to
avoid acts of treachery, because that which is in the house belongs to its
owner in particular. But if he finds it in the desert then it belongs to
him, because it does not belong to anyone in particular, so this is not
regarded as a act of treachery and he does not have to pay anything on it.
End quote from Fath al-Qadeer (2/238).
See also al-Mabsoot
(2/215) and Tabyeen al-Haqaa’iq (1/290).
Ibn al-Humaam said in his
commentary: The words “in the desert” refer to land that has no owner.
Al-Nawawi narrated in
al-Majmoo’ (6/51) that al-Raafa’i said: If he enters non-Muslim lands
peacefully it is not permissible for him to take treasure whether by
fighting or otherwise, just as he does not have the right to deceive them
with regard to their belongings, so he has to return it to them.
See: Rawdat al-Taalibeen
(2/289) and Sharh al-Bahjah al-Wardiyyah (2/144).
Ibn Hazm said in
al-Muhalla (5/385): Whoever finds treasure that was buried by a kaafir
who was not a dhimmi – whether it was buried during the Jaahiliyyah or not –
four-fifths of it are permissible for him, and the other fifth must be
divided as the khums of war booty is divided, whether he found it in the
wilderness of Arabia or in lands that the Muslims conquered by force, or in
lands whose people made a peace deal with the Muslims, or in his own house,
or in the house of a Muslim, or in the house of a dhimmi, or wherever he
found it. The ruling is the same as we have mentioned. End quote.
See: Sharh Muntaha
It seems most likely – and
Allaah knows best – that the second view is the correct one. If a person
finds rikaaz in a Muslim land or elsewhere – it belongs to him, but he must
pay the khums, because of the general meaning of the words of the Prophet
(peace and blessings of Allaah be upon him): “And the khums is due on
buried treasure.” Narrated by al-Bukhaari (1499) and Muslim (1710).
The khums must be spent as
fay’ is spent, which is spent on the public interests of the Muslims. So it
may be given to the poor, orphans, wayfarers, and relatives of the Messenger
of Allaah (peace and blessings of Allaah be upon him), who are Banu
Based on that, you have to
pay the khums on this wealth, and whatever is left is yours.
And Allaah knows best.