Ta’zir (Discretionary) Punishment for Premeditated Killing in Afghan Law and its Alternatives in Light of Contemporary Jurisdictions: An Analytical Study

Abstract

ABSTRACT The research aims to study alternative disciplinary punishments for premeditated murder in Afghan law in the light of Islamic law. Retribution in Islamic law is considered one of the most important factors for the stability of justice in society and security in the souls of people, and in it is the preservation of human dignity and freedom. Which awaits the criminal who deterred the victim, his guardians and the society in which he lives with this heinous crime, and in addition to these meanings, retribution heals the anger of the victim, and the anger of his guardians. The research employed the inductive and analytical approach to collect the legal texts from the Holy Qur’an, the Sunnah of the Prophet and relevant sources and references to collect the opinions of jurists and researchers, and their evidence and arguments on the subject, including the related texts, by trying to analyze them in a fundamental and jurisprudential analysis in a way that suits our contemporary reality and the purposes of the Sharia. The research also adopted the analytical method by analyzing the results of the field study, which aimed to interview university professors and experts. The study concluded a number of results, the most prominent of which were: that the Afghan legislation is compatible with Islamic Sharia in the death penalty in the Penal Responsibility Law, as it recognizes mitigating legal excuses, reduces penalties, reduces them from the limit prescribed in the law, and this came in Article (171) From the Penal Code, the secondary (accidental) punishment is the punishment that is applied in accordance with the original punishment over the convict in accordance with the law, without specifying it in the court ruling. Since the alternative penalties for retaliation in the Afghan Penal Code are other than Sharia penalties (blood money, atonement, and pardon), only imprisonment is mentioned in the alternatives to retaliation, and it has no other alternatives. In addition, in all types of killing, imprisonment is mentioned, so it only mentions imprisonment, and does not differentiate between types of killing, so new alternatives are needed in Afghan law. The Afghan law divided the penalties into original, consequential, and complementary, and there are no useful and definitive alternatives to retribution in the Afghan law with regard to premeditated murder, imprisonment, and prisons sometimes, especially in poor countries, become inclusive of crime, where criminals gather in it from all sides and exchange it experiences, and this is often the case in Afghanistan.