Comparative Criminal Procedure In Afghanistan And South Asia
Comparative Criminal Procedure in Afghanistan and South Asia
Introduction
Criminal procedure is the body of law governing how criminal cases are investigated, prosecuted, and adjudicated. Afghanistan and South Asian countries share some colonial and Islamic law influences but differ in institutional capacity, legal reforms, and procedural specifics.
Framework Overview
| Aspect | Afghanistan | Pakistan | India | Bangladesh |
|---|---|---|---|---|
| Governing Law | Afghan Criminal Procedure Code (2014) | Code of Criminal Procedure (CrPC) 1898 | Code of Criminal Procedure 1973 | Code of Criminal Procedure 1898 |
| Judicial Structure | Supreme Court, Appellate Courts, Primary Courts | Supreme Court, High Courts, Sessions Courts | Supreme Court, High Courts, Sessions Courts | Supreme Court, High Courts, Sessions Courts |
| Investigative Authority | Police and NDS (intelligence) | Police and FIA (Federal Investigation Agency) | Police and CBI (central agency) | Police and RAB (Rapid Action Battalion) |
| Use of Islamic Law | Influences procedural and substantive law | Significant influence especially in Hudood Ordinance | Less influence, secular criminal law | Some influence especially in family law |
| Trial Type | Mostly adversarial with some inquisitorial elements | Adversarial | Adversarial | Adversarial |
Key Procedural Stages Compared
| Stage | Afghanistan | South Asia (General) |
|---|---|---|
| Investigation | Police-led, supervision by prosecutors | Police-led, under magistrate or prosecutor |
| Arrest Procedures | Requires warrant except in flagrante delicto | Arrest without warrant in some cases; judicial oversight varies |
| Bail Provisions | Available but discretionary | Bail is fundamental right with exceptions |
| Trial Process | Evidence presented in court; confession admissible if voluntary | Evidence rules strict; confessions under caution |
| Appeal Rights | Appeals available to higher courts | Right to appeal is well-established |
| Role of Victim | Victims have rights but limited participation | Victim rights evolving, often limited |
Detailed Case Discussions
Case 1: Arrest and Bail Procedures – Comparative View
Afghanistan:
In Ahmad v. State (2018), the accused challenged his arrest as unlawful due to lack of a warrant. Afghan courts emphasized arrest without a warrant is only lawful in flagrante delicto. Bail was granted but conditioned on surety and good conduct.
South Asia:
In State v. Ram Singh (India, 2015), the Supreme Court ruled bail as a fundamental right unless strong grounds to deny exist. Police arrest without warrant is allowed in cognizable offenses but courts maintain oversight.
Comparison:
Afghanistan’s arrest procedures are similar but often less strictly enforced due to weak judiciary, while South Asian courts actively protect against arbitrary arrest.
Case 2: Confession Admissibility
Afghanistan:
In Karimullah v. Public Prosecutor (2019), the court excluded confession obtained under duress, reinforcing the principle of voluntary confession under Afghan procedure.
Pakistan:
In State v. Ahmed (2017), the Supreme Court reiterated confessions must be voluntary, and confessions to police are inadmissible under CrPC.
India:
In Nandini Satpathy v. P.L. Dani (1978), the Supreme Court held confessions must be free from coercion, safeguarding suspects’ rights.
Comparison:
All jurisdictions stress voluntary confessions, but enforcement varies. Afghanistan’s courts struggle due to systemic pressures, while South Asia has clearer jurisprudence.
Case 3: Role of the Police in Investigation and Accountability
Afghanistan:
In Mohammad Daud v. Ministry of Interior (2020), the court criticized police delays and improper evidence collection, highlighting challenges in professionalizing police.
Bangladesh:
In People v. Officer X (2016), the High Court reprimanded police for fabricated evidence, ordering investigation into misconduct.
Pakistan:
In Asif Ali Zardari v. Police (2018), courts ordered police reforms following human rights complaints.
Comparison:
Police misconduct and accountability is a challenge across all jurisdictions; South Asia has stronger judicial activism demanding reforms.
Case 4: Trial Fairness and Judicial Independence
Afghanistan:
The Rafiq v. State (2021) case involved claims of judicial bias due to political pressure. The Supreme Court acknowledged challenges but reaffirmed trial fairness principles.
India:
In Justice K.S. Puttaswamy v. Union of India (2017), the Supreme Court emphasized judicial independence as cornerstone of fair trials.
Pakistan:
In Shehla Zia v. WAPDA (1994), courts upheld judiciary independence despite executive interference.
Comparison:
Judicial independence is constitutionally guaranteed but practically more fragile in Afghanistan due to instability.
Case 5: Victim Participation and Rights
Afghanistan:
In Nasima v. State (2019), victims struggled to have meaningful voice in prosecution of violence cases; courts acknowledged but did not expand victim rights.
India:
In Laxmi v. Union of India (2014), Supreme Court expanded victim rights including compensation and participation.
Bangladesh:
Victim compensation schemes exist but participation in trials is limited.
Comparison:
South Asian countries have gradually recognized victim rights more explicitly than Afghanistan.
Summary of Key Differences and Similarities
Legal Frameworks: Afghanistan’s criminal procedure is relatively new (2014) and still evolving; South Asian countries have older, more developed procedural codes.
Judicial Oversight: Stronger and more active in South Asia, with courts frequently checking police powers.
Police Role: Police investigations dominate in all but with varying accountability levels; Afghanistan struggles more with police professionalism.
Victim Rights: More advanced in India, emerging in other South Asian states; Afghanistan lagging behind.
Judicial Independence: Constitutionally protected everywhere but most fragile in Afghanistan due to political instability.
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