إثبات الجرائم بالقرائن الحديثة في الشريعة الإسلامية والقانون الأفغاني

Abstract

This study addresses proof of crimes by contemporary presumptions in Afghan law by focusing on the brief for the crimes under Afghan law and Islamic law. Explanation of presumptions in Islamic law, Afghan law and positive laws are also given. Furthermore, some of the contemporary presumptions and the extent of authoritative of presumptions in Afghan positive laws are examined. The study consists of four chapters; the first chapter contains an introduction to the research, the problem, the hypothesis and objectives, the significance of the topic, and previous studies about the subject. In the second chapter, the researcher explains the definition of crime under Islamic law, Afghan positive law and other positive laws, and the division of the crime according to the punishment prescribed by Afghan law, showing the difference between the crimes under both Islamic and Afghan laws. The second section explains the presumptions under Islamic law based on the definitions given by jurists and scholars of the nation illustrating the importance of the presumptions and the different types of considerations. Chapter III includes the definition of the presumptions under positive laws and a brief historical statement about the stages of their evolution through the ages as well as the division of presumptions in the legal, judicial, natural and physical aspects, the difference between the legal and judicial presumptions and the authoritative introduction of contemporary presumptions under Afghan law. In Chapter IV, the researcher presents the study of DNA, fingerprints, blood spots, traces of hair and the effects of seminal stains as contemporary presumptions and how to prove the crimes and felonies under Afghan law through these presumptions. The study has arrived at the conclusion that Muaslim scholars have agreed on the admissibility of presumption. However there have been some instances of disagreement on miner issues in addition to some divergence on how they should be applied, with respect to the Afghan law, presumptions, specially those which conclusive, are considered to be a form of evidence which has high admissibility in proving or disproving crimes.