CODIFICATION OF THE ISLAMIC LAW IN AFGHANISTAN

Dr. Abdul Latif*, Dr. Babar Shah**

& Dr. Abdul Manan***

Amir Abdur Rahman (1880-1901) implemented Shariah as the central law of the land, to consolidate authority of the central government and put an end to the tribal and private administration of justice. Codification of Shariah Law, for unified judicial practice throughout the kingdom, was need of the hour. Amir Abdur Rahman started work on the compilation of Zia ul Ahkam, as an Islamic Law code. However, work on the project remained incomplete till the death of the Amir in 1901.

Assasal Qazat

Though Zia uI Akham could not be compiled, implementation of Assasal Qazat, a marvelous guide for judiciary, was an important step towards the unified judicial practice in Afghanistan, under Shariah. “Assasal Qazat” by Maulvi Ahmad Jan Al-kozai, enforced in 1 880s by Amir Abdur Rehman, was an important code of rules and regulations prepared for the guidance of the judiciary. Second edition of the book, containing 123 pages was published by Government Printing Press Kabul in 1892. It is an important source on judicial system of Afghanistan during the period of Amir Abdur Rehman.
As per “Assasal Qazat”, the Qazi (judge) was bound to settle cases according to Shariah (Islamic Law), as interpreted by the jurists of “Hanafi” school of thought. (Imam Numan bin Sabit Alias Abu Hanifa was the founder of this leading school of the Islamic Law followed by about eighty percent of the Afghan Muslims). Opinions of the jurists, belonging to other schools of thought, were acceptable subject to their conformity with the “Hanafi Fiqah”.1 Mufti acted merely as court adviser on legal affairs. He was not supposed to give “Fatwa” (a binding opinion in religious or political matters, as interpretation of the law), like Mufti of other Muslim countries.2
The Qazi was to enforce the “Farameen” (Proclamations) of Amir Abdur Rehman and the former Afghan rulers, only when in line with Shariah. The question whether a specific “Farman” was in line with the Shariah was to be determined by a Qazi and not by “Kotwal” or Governor (the executive officials).3 The Qazi was even authorized to try the individuals, whom he thought, might endanger the security of the country or be involved in destruction of Muslim subjects and their property.4 Hence, the authority of the Qazi became almost unlimited.
Qazi was paid adequate salary and was not allowed to accept either presents or invitations from others except the nearest relatives or the Amir. Both the Qazi and Mufti were restrained from intimidating the parties who presented their cases to them.5 They were restrained from hearing cases or passing judgment when hungry, thirsty, riding, sleeping, lustful, or ill.6 They were to spend all their spare time in studying Islamic Law and updating cases in accordance with the classical authorities.7 They were instructed to be well dressed and to have a sober demeanor in public.8 A special day in the week was assigned for women to appear.9
“Assasal Qazat” gives us the court procedure in detail. The Qazi was strictly ordered to-perform his duties in the courtroom (Rule 8). To avoid gathering of the crowd and presenting their petitions in improper manner, Qazi was empowered to post an orderly at the gate of the court. The orderly was assigned the task of bringing the parties to the Qazi, to ensure a distance of two meters between the litigants and the Quzi, and to ensure separation of the plaintiff and defendant by a distance of one-meter (Rule 9). To avoid wastage of time the Qazi was to make calculations about the number of the people and the cases, which could be decided. List of the people prepared on the basis of priority in the submission of their claims, was to be posted on the door of the court (Rule 10). The Qazi was to examine the plaintiff, the witnesses and the defendant carefully (Rule 57). The Qazi was bound to record in writing his decision in every case (Rule 53). He was bound to indicate the name(s) of the books, chapter and verse, on the basis of which a verdict was arrived at in the case (Rule 89). The procedure of accurately recording the claims, testimonies and the counter claims has been laid down in rules fifty-seven to fifty-nine of the guide.
The Qazi must personally safeguard the books of the court, not entrusting these, even to his own clerks. Every effort was to be made to keep the books clean and tidy, “so that the Qazi may not be punished by God or fall prey to the wrath of the king” (Rule 121). The out going Qazi was supposed to hand over all the documents of the court to the newly posted Qazi (Rule 134). The Qazi had to demand a receipt of every prisoner handed over to the governor (Rule 92). Verdict of a Qazi had to be clear-cut and precise, leaving no ambiguity or doubt (Rules 81 and 82). In case where the Qazi failed in arriving at a decision on the basis of the authoritative books, he was not to depend on his own judgment (Rule 118). In such matters, he had to write to the Chief Qazi for guidance. If the matter so required, the chief Qazi had to quote the relevant rulings of law applicable to the case. If the case demanded attention of the king, the chief Qazi would communicate it to His Majesty and convey the royal edict to the inquirer (Rule 111). A Qazi was not to reopen cases already decided by the present or former Afghan rulers. However, cases decided by the Governors and Police Officers, could be reopened in the Qazi court (Rule 115). In case of conflict between the inhabitants of the city and the countryside, the Qazi of the city had to hear the case (Rule 52). No case, except for inheritance, “Waqaf’ (religious property) and cases of the individuals who were missing for long times, could be presented for hearing in the Qazi court after a lapse of fifteen years (Rule 51).
The Qazi of the village was bound to submit a monthly report of all his court business, to the Qazi of the provincial capital. The Qazi of the Provincial capital, would send in the same manner his own court report, along with the lower courts’ reports received by him to the chief Qazi. This instruction was to be considered as ‘Extremely important’, by all the Judges (Rule 37). The Chief Qazi would sift all the material sent to him, as above, to determine whether or not the decisions were arrived at according to Shariah. In case any decision was found not to be according to injunctions of Shariah, the chief Qazi would take appropriate measures to set the case right and punish the culprit (Rule 38).
In a majority of the cases, where the defendant denied the accusation, the plaintiff was required to present witnesses or, failing that, to make the accused take an oath. Thus oath taking and witness calling were the basic components of the court procedure and became the criteria for establishing the truth. A Muslim was required to take an oath in the name of Allah (The actual phrase used was Wallah, Billah, Tillah), not by such phrases indicating tribal tendencies like “may my wife be divorced.”10 As Afghans respected the Quran, it was later decreed that in serious cases individuals will swear on Quran alone. The witnesses were required to sate that they had actually witnessed the act committed by the accused, and this requirement later resulted in hiring of false witnesses, though the Qazi using his own discretion could find out whether the witness was speaking the truth. The Qazi was also empowered to reject witnesses, whom, he thought, were dishonest. It was also decreed that only those known to be honest men could be accepted as witnesses.11 Later on, a special law of evidence, requiring all the evidence to be qualified by law and permitting cross examination, put a check upon the false witnesses.12

Siraj ul Ahkam

Amir Abdur Rahman Khan had started work for compilation of an Islamic Law Code, Zia ul Ahkam, however, due to his death, the work remained incomplete. Amir Habibullah Khan established a big Islamic Research Institute, with the name of Mizan ul Tahqeeqat al Shariah, to complete the project. The institute was supervised by Sardar Nasrullah Khan the most powerful personality of the country after the king, and Mullah Saad ud din, the chief justice.13 The research work was started by Mir Agha Sahib and Sardar Mohammad Usman Khan, for compilation of a comprehensive law code, as desired by Amir Habibullah Khan. Finally Mullah Abdur Raziq was appointed as head of the Mizan al Tahqeeqat (Research Institute).14 Qazi Abdur Raziq had completed his education from Darul-Uloom Deoband,15 India. (It was a clear departure from the policy of Amir Abdur Rehman, who considered Afghan graduates of foreign schools to be suspect, prohibiting their induction in the government service). Besides Qazi Abdur Raziq, and other learned scholars, Maulana Abdur Rehman Paghmani Alias Raees Sahib, played a leading role in the compilation of the law code.16 Maulana Abdur Rehman Paghmani was an honest, pious and learned Qazi, who served for several years in Panjsher. Amir Habibullah Khan once arrested him, on the basis of a complaint from a local feudal lord. While he was under detention, people of Panjsher were asked to claim any money that the Qazi might have received from them as bribe. People of Panjsher told the king that Maulana Abdur Rehman had not received even a single “Dinar” from them as bribe. Only the Ulema of such a strong character and thorough knowledge of Shariah were capable of standing against a dictator for supremacy of the law.
Sirajul Ahkam was a monumental work in four volumes, consolidating the Hanafi law into Afghan Persian, from its original Arabic sources, on the lines of ottoman Majallah. It was compiled to make Hanafi law easily available for legal practice in the courts. It may be added here that statutory enactment of Islamic Law resulted in the curtailment of wide discretionary powers of Qazi under “Tazir” (all the crimes for which no fixed sentences were laid down). So this act of the government was against the prevailing religious opinion, which discouraged statutory interference with the Shariah.17 However, no one can deny the fact that “Siraj al Ahkam” was an excellent effort for codification of Islamic Law in Afghanistan. It was in real sense, the first law code, enforced after the establishment of the State of Afghanistan.

Tamaskal Qazatal Amaniya

During the rule of Amir Amanullah Khan (19 19-1929) Tamaskal Qazatal Atnaniya, an excellent Islamic Law code was compiled. Amir Amanullah Khan has himself given a comprehensive account of the code in its preamble:
“...For fulfilling my obligations as Aolul Amar (Man of command, allusion to a verse of Quran in which the Muslims have been asked to obey Allah, obey the Prophet (PBUH) and obey the men of command among themselves) and performing the duties of Islamic Kingdom, I desired that in the lands of the God-gifted and durable State of Afghanistan, no order except that of Allah Almighty be enforced and no command except that of Shariah should rule. Books of fiqah (Islamic jurisprudence) of this period and various quotations and traditions (relating to law) were in Arabic and extraction of the proper instruction for every event was difficult, not only for ordinary officials, but it was not expected even of the majority of Qazi and Mufti. I ordered collection of all authoritative opinions and traditions of the civilized Hanafi Sect of Islam by the Ulema and to compile them in the Persian language, the language of the majority of lands of Afghanistan. According to my orders, the book Tamasak ul Qazat Al-Amaniya was compiled. Alter close examination of all the issues and traditions of the book by my royal vision, I ordered that judges of civil and criminal courts, and officials of central judicial organs of the capital, provinces and local governments should follow instructions of the above book in original claims and appeals. They should ignore opinions and traditions given in the other books. Where no instruction is available in this code about a particular point; suspending trial of the case (the Judge) should write a brief and comprehensive account of it to the Ministry of Justice. The Minister of Justice is ordered to send such dispatches to His Royal Majesty without any delay, so that the issue is decided with the consensus of the members of the council and entered in the book, for a final opinion, after royal signatures, if God so desired. Powers about Tazir, for which Shariah has fixed no punishments, are delegated to Imam and Aolul Amar. Separate Nizamnamah (regulations) of civil matters Military affairs and accountability process have been compiled. Amount of Tazir punishments for every crime and violation is given in detail in these Nizamnamah, so that judges of the State of Afghanistan, in every criminal trial, by following the material of Tamasak al Qazat and instructions given in Nizamnamah on crimes, should not enforce (orders) contrary to Shariah and based on their own ambitions, on the followers and lands of Allah Almighty. The book Tamasak al Qazat al Amaniya has been divided into two parts, the civil part and the criminal part. So that, the civil part becomes the basis for civil trial and the criminal part along with Nizamnamah of civil and Military punishments and Nizamnamah-e-Ihtisabi, becomes the code of conduct of Shariah criminal courts. All the decisions of Shariah should be made and implemented according to the contents of the above material. Determining authenticity and relevance of the above book, with civilized Hanafi Fiqah (ofIslam), was ordered after its compilation. So that, the learned scholars, judges, and Mufti of Cassation, Appeal and Primary civil and criminal courts of central capital may examine in detail, commands and issues of the book in letter and spirit, (and) evaluate and correct the material. As desired, after signatures about authenticity, of the following notables,
Chief Justice
Judges of Higher Court of Crimes
Judge of Court of Registering Documents
Military Judge

Judge of Appellate Civil Court

Judge of Primary Civil Court

Judge of Primary Court of Crimes
Mufti of the above courts
it came for my royal signatures. Formal adoption and public implementation was ordered. From the absolute Lord of the land, Almighty, I humbly hope that with the implementation of Shariah of the Holy Prophet Mohammad (Peace Be Upon Him) progress in this world and the world after would become the fate of the State and Nation of Afghanistan.
Seal of Amir Amanullah Khan.18

Tamassakal Qazat al-Amaniya was an excellent law code based on Fiqah Hanafi (Hanafi Jurisprudence). It was not merely a ‘Guide for judges’, on the lines of Asasul Qazat compiled during the period of Amir Abdur Rehman. A popular misconception has been created from the use of the phrase Guide for Judges for this monumental law code. This law code was compiled by a group of Ulema under the chairmanship of Maulana Abdul Wasay Qandahari, then president of the State council. The law code was compiled in two volumes, Volume I, dealing with civil and commercial matters and volume II, dealing with the crimes. It was published by Kabul capital printing press in 1300 Hijri Shamsi (corresponding to year 1340 Hijri Qamri and 1921 AD).
Volume I, of “Tamasakul Qazat”, is a penal code consisting of 1113 sections prescribing various punishments for the crimes under Islamic law. Preface of the code explains Hadd (fixed punishment), Qisas (right of revenge under Shariah) and various issues relating to these punishments. This code is further divided into two ‘books’. ‘Book One’ contains five chapters as under:
First Chapter: It deals with “Sarqa” (Theft). The chapter is divided into four parts. Part one is about nature & definition of theft. Second part discusses nature of the theft punishable by amputation of hand and the “theft” which does not qualify for this punishment. It also deals with proof required for establishing theft. Third part deals with implementation of the punishment for theft and instructions about the stolen property. Fourth part contains instructions about robbery, particularly the highway robbery.
Second Chapter: It deals with punishment of Zina (establishing illicit sexual relations without matrimonial ties). This chapter is also divided into four parts. First part deals with meaning of Zina and its legal confession. Second part deals with implementation of the punishment for Zina. Third part discusses the situations in which the Zina was not punishable by the fixed prescribed punishment. For instance, insane person involved in Zina, women forced to Zina, those not attaining age of puberty were not punishable under Hadd for Zina. It gives various other situations, where the accused would not be punishable under Hadd. Fourth part deals with the evidence required for establishing the crime of Zina.
Third Chapter: It is a brief chapter of only three pages, dealing with the crimes of drinking wine, Hadd punishment for the crime and situations in which this punishment would be awarded. It is not divided into further parts.
Fourth Chapter: It deals with Qazaf which in Shariah means to blame some innocent woman for Zina. This chapter of six pages discusses the phrases that could be taken as to mean blaming of Zina and punishment for such statements.
Fifth Chapter: This chapter deals with Tazirat. As per the law code, all the crimes for which Shariah has not prescribed fixed punishment (Hadd) come under jurisdiction of Tazirat.

Book two of the code has discussed Junayat in detail. Junayat are the crimes committed against the human body, including murder, which is not covered under “Hudood” punishments. Most of these crimes are settled on the principle of Qisas (revenge), or compensation. This book is divided into the following fourteen chapters and one ‘part’ dealing with miscellaneous issues:
Chapter One: Deals with definitions and meaning of Junayat.
Chapter Two: Explains crimes to be settled by Qisas (revenge), cases and situations where this principle would be applied and also the situation in which the principle of Qisas does not apply.
Chapter Three: Discusses relatives/inheritors of the deceased who would be offered ‘revenge’ by the court. It also elaborates manner and procedure of revenge.
Chapter Four: Deals with the evidence required for establishing murder and culpable homicide not amounting to murder. It also gives qualifications of the witnesses legally admissible in the above cases.
Chapter Five: It is about confession of the murder. It also describes various practical situations faced by the court in such cases and provides guidance about them.
Chapter Six: Discusses the nature and procedure of compromise (between the parties), procedure about forgiving the offender and its legal evidence.
Chapter Seven: Is about injuries to various parts of the body. It has touched almost every aspect of revenge. For instance, section 681 says that “in revenge, quantity of the body organs is immaterial, ‘long’ hand could be cut of the person who had cut ‘short’ hand of an individual, similarly if a young man cuts ‘little’ hand of a child, his ‘big’ hand would be cut completely, and not exactly in feet and inches according to the measurement of the child’s hand.”
Chapter Eight: Elaborates blood money, cases where blood money is to be paid, and amount of blood money to be paid in various situations. It may be added here that the blood money awarded by the courts in criminal cases was prohibited according to a proposal made in 1928.
Chapter Nine: Elaborates head injuries and other injuries. Punishment or compensation for such injuries is also given in the code.
Chapter Ten: Discusses involvement of children and insane people in the crimes against human body. Discussing various situations, the code provides punishment for each case.
Chapter Eleven: Describes injuries caused due to wall, well, fire, etc. and fixes its responsibilities/compensation.
Chapter Twelve: Relates to crimes regarding damage to cattle, payment of compensation and punishment for such crimes.
Chapter Thirteen: Prescribes procedure of taking oath from the people of a street/residential area from where a dead body was recovered, declaring that they were not involved in the murder.
Chapter Fourteen: Describes the relatives of the criminal and procedure for payment of blood money by them.

A separate Fasal (Part) dealing with miscellaneous issues relating to murder and injuries has been included in this book.19
The following Ulema and judges of Amir Amanullah’s period have certified authenticity of the law code, as to be according to the provisions and injunctions of Islam, by rendering a written certificate at the end of the book:
Abdul Shakoor, Qazi al Qazat (Chief Justice)
Mohammad Abdul Wasay Qandahari (President of the State Council and main compiler of the law Code).
Mullah Abdur Rehman, Qazi-e Murafia Jaza (Judge of the appellate criminal court).
Mullah Abdul Jalil, Qazi-e-Ibtedaiya Jaza (Judge, primary criminal court).
Saifur Rehman, Qazi-e-Askar (Military Judge).
Mullah Abdul Hamid, Qazi Murafia-e-Haqooq (Judge of Appellate civil court).
Mullah Mohammad Ameen, Qazi Ibtedaiya-e-Haqooq (Judge of Primary Civil Court).
Mullah Abdur Rashid, Qazi Waseeqa Jat (Judge for Registration of Documents).20

Tamasakul Qazat is an excellent work, particularly in extraction of relevant law provisions from authoritative books of Hanafi Fiqah. The juristic sources utilized in the preparation of this code are indicated in brackets, which appear at the end of each article referring to the Hanafi Text from which they are quoted. The work was so impressive that Dr. Abdul Ghani, a scholar from Jalalpur Jattan, Gujrat, Pakistan, who served as Director Education of Afghanistan under Amir Amanullah and represented Afghan Government as a member in the Pindi Agreement, has praised it in the following words:
“I need hardly say that the work has been most seriously and thoughtfully accomplished, and that it reflects a great credit upon Afghan brain, and its powers of organization... I think that this code of laws first framed in Afghanistan will be of great interest to legists and general readers. I hope very soon to place its translation before the public…”21

General Penal Code

Nizamnamah-e Jazae Amoomi (General Penal Code), consisting of 308 sections had divided crimes into three categories. Firstly, serious crimes, such as adultery, consumption of alcoholic beverages, and theft, for which the code specified the punishments already prescribed by Islamic Law (Hudood). Secondly, major crimes, such as murder and intentional bodily injury for which it also provided specific punishments (Qisas). And thirdly lesser crimes, for which punishments were to be fixed by the court at its own discretion (Tazir).22It may be seen that it has divided crimes and punishments according to the Shariah. General Penal Code, Military Penal Code and the Tamasakul Qazat on the whole, went a long way toward the consolidation of substantive Hanafi Fiqah in the form of legal codes, which were modeled on the Ottoman Majallah. Nizamnamah Legislation mainly consolidated the substantive Shariah Law in the vernacular thereby facilitating the enforcement of Shariah in the codified form.23
Mahfile Wazae Qawaneen a legislative committee, was established for compilation of Nizamnamah (regulations), on various subjects, in the light of Fiqah Hanafi. Members of this committee included the prominent Ulema and experts of Islamic Law. The committee was later upgraded as Riasate Shurae Daolati (Directorate General of the State Consultation) and finally converted into Shurae Milli (National Consultation Committee). Sardar Sher Ahmad Khan was President and Badri Beg, Vice President of the Committee. Other members of the committee, in 1920, included Nek Mohammad Khan, Fateh Mohammad Khan, Jumma Khan, Habibullah Khan, Abdul Ghani Khan, Najaf Ali Khan, Mohammad Qasim Khan and Abdur Rahim Khan.24 This Committee played an important role in codification of Islamic law, in this period.

Qanun-e-Madani and Qanun-e-Jaza

Qanun-e-Madani (Civil Law of 1977) was one of the most extensive statutes ever enacted in Afghanistan, on the civil law. It deals with subjects such as marriage, divorce, contracts, property, torts, etc, as a comprehensive code. It was entrenched in Shariah doctrines and confirmed to the basic tenants of Islam. According to the Shariah juristic principles, for instance, this law had neither abolished polygamy, nor it interfered with the husband’s power of unilateral divorce (Talaq).25Louis Dupree is of the opinion that this civil law spread over four volumes was based on (but superseding) the Islamic Shariah and certain customary laws. According to him, Afghan interpretation of the Hanafi Shariah tend to be quite liberal, for instance, under the civil law, women had equal tights with men in instituting divorce cases.26 (It would be interesting to state that any legislation ‘superseding the Shariah’ was supposed to be null and void under articles 2 and 22 of the Constitution). Moreover, Hanafi Shariah was not official ritual of Afghanistan, articles 2 and 22 of the Constitution declared Islam to be the religion of Afghanistan without any mention of the Fiqah. As such civil law was supposed to be based on Islamic Shariah in general, without following any particular school of jurisprudence. As far as equal rights of women and men in divorce are concerned, Islam has given unilateral right of divorce to the man (not woman) and Kamali is right in maintaining that “The civil law had neither abolished polygamy nor had it interfered with the husband’s power of unilateral divorce ‘Talaq’.27
The penal code (Qanune Jaza, September, 1976) had definitions,  classification of crimes, punishments and details of criminality. Qanun-e-Madani (civillaw) and Qanun-e-Jaza (criminal law) enacted during the period of President Muhammad Daud, in 1976-1977, are considered to be the Bible of Islam Law, always consulted by the courts. As authoritative opinions of Fiqah Hanafi on civil and criminal matters, the courts consulted these law codes during the period of President Muhammad Daud, rule of the socialists, rule of the Mujahideen and rule of the Taliban. The courts, both for civil and criminal matters, are still consulting these law codes.

Conclusion

With the implementation of Shariah in Afghanistan, as a central law of the land by Amir Abdur Rabman (1880-1901), efforts for codification of Islamic law were started to ensure unified judicial practice throughout the kingdom. Amir Abdur Rehman implemented Assasal Qazat of Ahmad Jan Alkozi, a comprehensive guide, for centralisation and organisation of the judicial system under the Shariah. The guide contains detailed instructions about the court procedures and provides an insight into the judicial system of Afghanistan under Amir Abdur Rehman. Work on compilation of an Islamic Law code titled Zia ul Ahkam, during this period was a good start, but remained inconclusive due to death of the Amir in 1901. Sirajul Ahkam was a monumental work in four volumes, consolidating the Hanafi Law from its original Arabic sources into Afghan Persian. It was compiled during the era of Amir Habibullah Khan (1901-1919), to make Hanafi Law easily available for legal practice in the courts.
Tamassakal Qazat Alamaniya, an excellent Islamic Law code was compiled during the era of Amir Amanullah Khan (1919-19). This Hanafi Law code was compiled by a group of Ulema under the chairmanship of Maulana Abdul Wasey Qandahari, then president of the State council. The law code was compiled in two volumes, volume I dealing with civil and commercial matters and volume 11 dealing with the crimes.
Qanun-e-Madani (civil law of 1977) was one of the most extensive statutes ever enacted in Afghanistan, on the civil law. It dealt with subjects such as marriage, divorce, contracts, property, torts, etc, as a comprehensive code. It was entrenched in Shariah doctrines and confirmed to the basic tenants of Islam. Qanun-e-Jaza, the penal code contained definitions and classification of crimes with punishments and detail of criminality. Qanun-e-Madani (civil law) and Qanun-e-Jaza (criminal code) enacted during the period of President Muhammad Daud Khan are still being consulted by the Afghan courts as authoritative opinions of Fiqah Hanafi.
Codification of Islamic Law was an important assignment to meet requirement of the unified judicial practice in Afghanistan after implementation of Shariah as central law of the land. Afghan Ulema, scholars and jurists met this challenge in the form of compiling the above Islamic Law codes under the State sponsorship. However, it is interesting to note that main work of the codification of Islamic Law in Afghanistan was carried out under the rulers who did not enjoy good relations with the religious establishment. Amir Abdur Rahman, Amir Habibullah Khan, Amir Amanullah Khan and President Muhammad Daud are known for their allergy towards the ulema. Moreover no significant codification of Islam Law in Afghanistan took place under the rule of Islamists (1992-2001). A section of jurists is of the view that by defining almost all crimes prevailing in the society and prescribing range of punishments for such crimes, Tazir discretion of the Qazi (judge) becomes largely limted.28 It is probable that besides meeting requirements of the unified judicial practice in the country, under the Shariah, codification of Islamic law in Afghanistan may have been deliberately used for reducing discretionary powers of the Qazi and subjecting such powers to the confines of the laid down rules and regulations.

References

1.     A1-Kozi, Ahmed Jan; Assasal Oazat (A comprehensive guide for judges); Dari, Government printing press Kabul; 1311 Hijri Qamri (1892). Rule 108 (Hereafter cited as Al-Kozi. Qazat. Dari.)
2.     Ibid Rule 40
3.     Ibid Rule 115
4.     Ibid Rule 1l4
5.     Ibid Rule 4&5
6.     Ibid Rule 47
7.     Ibid pp 27
8.     Ibid Rule 25
9.     Ibid p l2
10.   Kakar, Mohammad Hasan; Government and Society in Afghanistan: The Region of Amir Abd al-­Rahman Khan: Texas, 1979. p.52. (Hereafter cited as Kakar.)
11.   Al-Kozi.Qazat Dari. Op cit Rule 52, 70 and 78.
12.   Sultan Mohammad, Mir Munshi; The Constitution and Laws of Afghanistan: John Murray, London; 1900.pp.138. (Hereafter cited as Sultan. Constitution.).
13.   Durrani Azizud Din, populzai, Darul Qaza Dar Afghanistan: Az awaele Aahde Islam Ta Aahde Jamhuriat (Judiciary in Afghanistan: From the early days of Islam Till Republican Period): Dari, Islamic Research Centre, Kabul; Government Printing Press, Kabul; 1369 Hijri Shamsi (1990). P p. 373, 414 (Hereafter cited as Durrani. Dari.)
14.   Mojaddidi, al sheikh Mohammad Sadiq, Mukhtasirul Bayan Dar Tareekh-e Maulana Abdur Rehman Paghamani (A Brief History of Maulana Abdur Rehman of Paghman); Dari, Charsadda Road, Peshawar; l984. pp.16. (Hereafter cited as Mojaddidi. Sadiq. Dari.).
15. Sindhi, Obaidullah; Kabul Main Saat Sall: (Seven years in Kabul); Urdu, Sagar Academy, Lahore; l982. p.740. (Hereafter cited as Sindhi. Urdu.).
16. Mojaddidi. Sadiq. Dari. Op. cit. pp.13-16.
17. Kamali, Mohammad Hashim; Law in Afghanistan: A study of Constitutions, matrimonial Law, and judiciary: E.J. Brill, Leiden; Netherlands; 1985. pp 35 . (Hereafter cited as Kamali.)
18.   Preamble of Tamaskul Qazat Al Amaneyah. Law Code of Amanullah period. V.II. pp. 2-4.
19.   Ibid.
20.   Qandahari, Mohammad Abdul Wasay and other judges (comp); Tamasakul Oazat al Amaneyah (Hanafi Law Code for implementation by the courts); Dari, Matbae Sangi Machinkhana, Kabul; 1300 Hijri Shamsi (1921). VII p.183. (Hereafter cited as Qandahari. Dari.).
21.   Ghani, Abdul, Dr. A Review of the Political Situation in Central Asia. Najaf Publishers; l980. p. 120-121. (Hereafter cited as Ghani).
22.   Poullada, Loen. B.; Reforms and Rebellion in Afghanistan (1919-29): Amanullah’s Failure to Modernise a Tribal Society: Cornell University Press, London; 1973. p.224. (Hereafter cited as Poullada.).
23.   Kamali. op. cit. P.214.
24.   Durrani Dari. Op. cit. pp. 447-48, 493,519-20.
25. Kamali. op. cit. Pp. 42-43.
26. Dupree, Louis; Afghanistan: Princeton University Press, New Jersey; 1980. p.764-65. (Hereafter cited as Dupree. Afghanistan.)
27.   Kamali op. cit. Pp. 42-43.
28.   Dupree. Afghanistan. op. cit. Pp. 764-6.