Self-Defense Legislations, Yesterday, Today and Tomorrow: A Study from Afghanistan Perspective

Abstract

The legal system of Afghanistan contains Islamic, Statutory and customary rules. It has developed over centuries and is presently varying in the context of the rebuilding of the Afghanistan. The supreme law of Afghanistan is the Constitution of Afghanistan. Furthermore, there is composite of legislation which stems from different historical eras. The so-called four volumes of civil law were formulated on the basis of Egyptian models and promulgated in the time of the monarchy. Other legislation came into force under of President Daoud Khan, the Democratic Republic (1978-1992), the Mujahideen (1992-1996), the Taliban regime (1996-2001) and the existing Islamic Republic of Afghanistan. Article 130 of the Afghanistan Constitution establishes that judges must apply the constitution and legislation and may only resort to Hanafi Fiqh (one of the Schools of Islamic Law) if a essential legal rule cannot be found in the written laws. According to the Afghan law system, administration of justice, accused is presumed to be innocent till proved guilty. In such conditions, it is load upon prosecution to prove its case against the accused. But in certain circumstances, the weight of proving guilt of the accused move towards accused and the law makes the accused responsible to prove his innocence. This kind of condition ascends when accused after commission of crime taken a ground as a defense for the unlawful act done. It is named plea of defense. There are numerous bases existing to the accused in Afghanistan Penal Code (1925, 1975, and 2017). The Afghanistan Apex Courts while identifying the plea of Self-Defense delivered specific guide lines for the trial courts so as to evade any error of judgments since it is the central principle of administration of justice that accused should not be convicted if there is a miniature doubt on amount of the prosecution. In this article we will use the various judgments of the superior courts so as to grasp on a final conclusion that how accused can take advantage of the plea of self-defense and in what conditions the choice of self-defense cannot be look into contemplation.