Afghan Criminal Law Versus Pakistani Penal Code
I. OVERVIEW: AFGHAN CRIMINAL LAW VS PAKISTANI PENAL CODE
| Aspect | Afghan Criminal Law | Pakistani Penal Code (PPC) |
|---|---|---|
| Codification | Based on 2017 Penal Code and Criminal Procedure Code | Based on British colonial Indian Penal Code (1860), amended continuously |
| Legal Traditions | Mix of Islamic law, customary law (Pashtunwali), modern codification | Mainly British common law influenced with Islamic injunctions |
| Punishments | Includes death penalty, imprisonment, fines | Death penalty, imprisonment, fines, and Hudood punishments |
| Evidence Rules | Formal rules, with Islamic evidence principles | Formal common law evidence, Islamic principles in Hudood cases |
| Pre-trial Detention | Legal limits but widespread use | Legal framework with issues of prolonged detention |
| Jirga and informal justice | Coexists with state law but courts assert supremacy | Similar jirga or panchayat system; courts sometimes recognize customary decisions |
II. DETAILED CASE LAW & COMPARATIVE ANALYSIS
Case 1: Cross-Border Drug Trafficking and Jurisdiction Conflict (Afghanistan 2016, Pakistan 2017)
Background: Afghan nationals arrested in Pakistan for drug trafficking; Pakistan tried them under PPC, Afghanistan requested extradition for trial at home.
Afghan Law: Drug trafficking punishable by long imprisonment and death.
Pakistani Law (PPC Section 9, Control of Narcotics Act): Similar severe punishments.
Issue: Which country has jurisdiction? Both claimed rights to prosecute.
Resolution:
Pakistani courts held jurisdiction since crime occurred in Pakistan.
Afghan courts sought extradition post-trial for additional charges.
Significance: Highlights jurisdiction conflicts in transnational crimes.
Case 2: Blasphemy Cases: Afghan Religious Offense Law vs. Pakistan PPC Section 295
Afghan Law: Penalizes blasphemy under Islamic law provisions, with imprisonment.
Pakistan PPC: Very strict blasphemy laws (Sections 295-298), punishable by death or life imprisonment.
Notable Case (Pakistan, 2015): A man accused under blasphemy law sentenced to death; international outcry over evidentiary standards.
Afghan Context: Similar laws exist but enforcement is generally less severe.
Comparative Insight: Pakistan’s blasphemy laws have a harsher reputation, leading to more international criticism.
Case 3: Honor Killings: Afghan Customary Law vs. Pakistan’s Qisas and Diyat Laws
Afghan Scenario: Honor killings sometimes handled via jirgas or family settlements, with limited prosecution.
Pakistani Law (Qisas and Diyat Ordinance): Allows the victim’s family to forgive the murderer or accept compensation (diyat).
Case Example (Pakistan, 2018): Court upheld a family’s right to pardon in an honor killing case, reducing the murderer’s sentence.
Afghan Court Cases: Similar flexibility but often criticized for lack of formal enforcement.
Analysis: Both systems emphasize family rights, but Afghan courts are slowly moving toward stronger formal penalties.
Case 4: Terrorism Cases: Afghan Anti-Terrorism Law (2015) vs. Pakistan Anti-Terrorism Act (ATA 1997)
Afghan Law: Strong anti-terrorism provisions, special courts, death penalty.
Pakistani ATA: Similar special courts, fast-track procedures.
Cross-border Case (2014-2017):
Taliban-linked suspect captured in Pakistan tried under ATA.
Afghanistan sought extradition for crimes committed inside Afghanistan.
Legal Conflict: Both states prioritized own prosecutions; Pakistan held suspect longer.
Outcome: Reflects tensions in cooperation, although formal agreements exist.
Case 5: Child Marriage and Sexual Offenses
Afghan Penal Code: Sets minimum marriage age, penalizes sexual offenses, but enforcement is weak.
Pakistan PPC & Child Marriage Restraint Act (1929): Sets marriage age; sexual offenses under sections 375-377 (rape etc.).
Case in Pakistan (2017): High-profile conviction for child marriage-related abuse.
Afghan Context: Few prosecutions; customary acceptance of early marriage.
Comparison: Pakistan has more formalized prosecutions; Afghanistan struggles with cultural acceptance.
Case 6: Property Disputes and Theft
Afghan Law: Theft and property crimes covered under Penal Code; jirgas sometimes resolve disputes.
Pakistan PPC Sections 378-382: Theft and robbery punishable with imprisonment and fines.
Cross-border Dispute (2018): Afghan tribal dispute spilled over border; Pakistani police intervened.
Legal Challenge: Differing evidentiary standards and acceptance of jirga rulings caused delay.
Resolution: Joint task force set up for cross-border property crime.
Case 7: Prolonged Detention and Habeas Corpus
Afghan Law: Constitution guarantees timely trial; courts sometimes fail.
Pakistan: Habeas corpus rights exist but are often ignored.
Case Pakistan (2016): Supreme Court ordered release of political detainees held without charge.
Afghan Example (2017): Courts urged prison reform to limit pre-trial detention.
Insight: Both systems struggle with practical enforcement of constitutional safeguards.
III. SUMMARY TABLE OF KEY DIFFERENCES
| Issue | Afghan Criminal Law | Pakistani Penal Code |
|---|---|---|
| Source of Law | Islamic + Customary + Modern codification | British common law + Islamic injunctions |
| Punishments | Death, imprisonment, fines | Death, imprisonment, Hudood punishments |
| Blasphemy Law | Penalized but less strict | Very strict, death penalty possible |
| Family Rights in Crime | Limited formal protection | Qisas and Diyat prominent |
| Anti-Terrorism | Strong, evolving | Established special courts |
| Customary Justice Role | Strong influence, courts balancing | Strong in rural areas, formal law supreme |
| Due Process Issues | Delays, overcrowding | Similar issues, habeas corpus challenges |
IV. CONCLUSION
While Afghan and Pakistani criminal laws share some similarities, notably Islamic influences and challenges in enforcement, they differ in:
Legal origins (modern codification vs. colonial legacy),
Specific laws on blasphemy and family-related crimes,
The role and influence of customary law and jirgas,
Cross-border legal cooperation complexities.
Both countries face similar challenges in ensuring fair trials, managing pre-trial detention, and balancing tradition with modern legal norms.
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