Rape, which according to part 7 of Article 335 of the Penal Code is included in crimes against humanity and according to part 22 of Article 339 of the Penal Code is considered a war crime, is one of the most important crimes that endangering public order and may make its victim suffer from mental illnesses for many years.
According to the hypothesis of this research, from the comparative study of jurisprudential and legal punishments of rape in Afghan law using the descriptive-analytical method, it seems that there is an obvious duality between jurisprudence and criminal law in some topics.
The Penal Code has divided the punishment of rape into two parts (Hadd and Ta'zir).
Perpetrators of (Hudud) crimes are punished according to Article 2, Paragraph 2 of the Penal Code in accordance with the rules of Hanafi jurisprudence of Islamic Sharia.
Whenever the conditions for applying the (Hadd) are not met in the crime of rape, or the (Hadd) is dropped due to likeness or one of the other reasons, the guilty shall be sentenced to long imprisonment, permanent imprisonment of the first degree, permanent imprisonment of the second degree and execution.
The author assumes that according to the differences in Islamic jurisprudence and the penal code of Afghanistan and the comparative study between the two, it seems that the discussion of rape in jurisprudence and the penal code somehow follows each other's gradual perfection or development.