General Defences | Pakistan Penal Code, 1860

Table of Contents

INTRODUCTION

General defences are those defences that are available to a person to protect himself in a situation of danger. These may be of body or property. There are several general defences available to individuals who are accused of committing a crime.

RELEVANT PROVISIONS

Sections 82, 83, 84, 85, 86, 76 & 79, 81, 87 to 94, 80, 96 to 106 of P.P.C. 1860.

STATUTORY DEFENCES

In Pakistan Penal Code following are the statutory defences;

Infancy/Minority
Insanity
Intoxication
Mistake of fact
Necessity and Compulsion
Consent
Accident
Person and Property

1. DEFENCE OF INFANCY/MINORITY

U/s 82 of P.P.C 1860:

“Act of a Child under seven years of age. Nothing is an offence which is done by a child under seven years of age.”

U/s 83 of P.P.C 1860:

“Act of a child above seven and under twelve of immature understanding. Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.”

1. A CHILD BELOW SEVEN YEARS OF AGE:

The rule all over the world is that a child below seven years of age is absolute ‘doli incapax‘, that is to say, incapable of committing any offence since he cannot distinguish between right and wrong.

2. EXEMPTION NOT AVAILABLE:

In any case, the exemption made in favour of children under seven years of age does not extend to offences under special or local law, For example, he may be convicted of an offence under Indian Railway Act and even other Acts which are meant to preserve public health etc. where Mens Rea is not an essential ingredient of the offence.

3. WHERE A CHILD IS USED AS AN INNOCENT AGENT:

A child can be used as an innocent agent of an adult person. Although such a child cannot commit an offence but can be used as an innocent agent by an adult person in which case the adult person shall be responsible for the crime so committed.

4. BURDEN OF PROOF:

The burden of proving the defence of infancy is on the accused person. show that he had not attained sufficient maturity.

2. DEFENCE OF INSANITY

U/s 84 of P.P.C 1860:

Act of a person of unsound mind: Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. (11)

1. INSANITY IS A COMPLETE DEFENCE:

According to Section 84, insanity is a complete defence to a criminal charge since a person is not in a position to understand the nature of his act or distinguish between right and wrong because of the unsoundness of his mind. It is said that a madman is punished for his own madness.

2. NO KNOWLEDGE OF THE NATURE OF THE ACT:

It is essential to prove that whatever the accused was doing was not known to him and he could not distinguish between right & wrong, legal or illegal due to his total insanity. The burden of proving insanity is on the accused.

3. ESSENTIALS OF THE DEFENCE:

Insanity should be at the time of doing the act.

The accused must be suffering from a defect of reason which was caused by unsound of mind.
The accused did not know the nature of the act due to insanity. He did not know what he was doing was either wrong or contrary to the law.

4. TWO-FOLD TEST OF INSANITY:

The two-fold test of insanity depends on the reason of the person charged, his reasoning faculty may be diseased but his emotions are unimpaired. The defence cannot succeed when only emotions are affected.

5. INSANITY CAUSED BY DRUNKENNESS:

So far as insanity brought by drunkenness is concerned, voluntary intoxication is no defence and therefore insanity caused by means of intoxication is no defence.

3. DEFENCE OF INTOXICATION

U/s 85 of P.P.C 1860:

Act of a person incapable of judgment by reason of intoxication caused against his will “Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law: provided that the thing which intoxicated him was administered to him without his knowledge or against his will.”

U/s 86 of P.P.C 1860:

An offence requires a particular intent or knowledge committed by one who is intoxicated. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated unless the thing which intoxicated him was administered to him without his knowledge or against his will.

1. VOLUNTARY INTOXICATION IS NO EXCUSE:

A person who gets into a state of intoxication voluntarily is presumed to have the same knowledge as he would have had if he had not been intoxicated even though the state of intoxication is such as to make him incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

2. INVOLUNTARY INTOXICATION IS A GOOD DEFENCE:

Involuntary drunkenness will be a good defence to a criminal charge. This rule of law is covered by the case of a man drunk through the fraud of another or through ignorance.

3. QUESTION OF FACT:

Where the drunkenness was voluntary or involuntary is a question of fact that depends upon the facts of each case.

4. DRUNKENNESS IS PARTLY VOLUNTARY AND PARTLY INVOLUNTARY:

If drunkenness is partially voluntary and partially involuntary, the question of knowledge and intention is very important. In Section 86, both words knowledge and intention appear together and are in close proximity to each other.

In the case of voluntary drunkenness, the court must attribute to the intoxicated person the same knowledge as if he was quite sober. Voluntary drunkenness is generally taken into account as throwing light on the question of intention.

4. DEFENCE OF MISTAKE OF FACT

U/s 76 & 79 of P.P.C 1860:

1. THE ACCUSED SHOULD HAVE ACTED IN GOOD FAITH:

In order that a mistake of fact may form an exception to criminal liability, it is necessary for the accused to show that he acted in good faith, that is to say with due care and attention. The court determines whether a person has acted in good faith.

2. NON-EXISTENCE OF MEN’S REA:

The mistake means the non-existence of Mens Rea of the guilty act.

3. WHERE MISTAKES WOULD BE IRRELEVANT:

If the accused is fully aware of the facts and the surrounding circumstances, at the time he commits the unlawful act, then it will be irrelevant that he made a mistake as to the results which flow from his acts.

4. MISTAKES MUST BE OF FACTS & NOT OF LAW:

Mistakes must be of one fact, not of law. A mistake of law happens when a person having full knowledge of the facts makes a mistake in deciding upon their legal effect. A mistake in point of law is not a defence. Ignorance of the law does not excuse but may be a factor to be considered in the mitigation of punishment.

5. AN HONEST & REASONABLE MISTAKE:

Mistakes must be both honest & reasonable. The test of honesty is clearly subjective. The standard of what is reasonable in a community is the standard of a reasonable man in a community, the ordinary man. It is that standard which is the safest to adopt.

5. DEFENCE OF NECESSITY & COMPULSION

DEFENCE OF NECESSITY:

Act likely to cause harm, but done without criminal intent, and to prevent other harm: Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or providing other harm, to person or property.

1. UNDER SECTION 81 P.P.C 1860:

Section 81 excuses an act which would otherwise be criminal but in the best interest of the individual or society, it is done to avoid a greater evil. The act is done reasonably and under a necessity in order to avoid expected harm to persons or property. However, the act should be done in good faith in order to avoid or prevent other harm to a person or property. In such cases, there is the absence of Mens Rea and the act is done without any criminal intention. This section applies without any criminal intention. This section applies to cases where evil is done to prevent a greater evil.

2. QUESTION OF FACT:

It is a question of fact in each case whether the harm to be avoided was of such a nature as to justify the doing of the act with the knowledge that the act would cause harm, the element of good faith is necessary in each case.

3. DEFENCE OF NECESSITY IS AVAILABLE:

There is no defence of necessity in criminal offences except that where necessity is created in cases covered by the law of self-defence.

DEFENCE OF COMPULSION:

U/s 94 of P.P.C 1860:

Act to which a person is compelled by threats: Except murder, and offences against the State punishable with death nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: provided that person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint

1. UNDER SECTION 94 P.P.C 1860:

The defence is not applicable to offences of murder and offences against the State punishable with death. In all other cases, compulsion is a defence to a criminal charge. In the case of murder, no man has a right to take another’s life to save his own. The offences against the State to which compulsion is no answer are only those punishable with death.

2. REASONABLE FEAR OF INSTANT DEATH:

The only exception that justifies a person to participate in the crime is a reasonable fear of instant death. A mere threat or a fear of future death will not be sufficient to apply Section 94. It is a question of fact whether fear of instant death existed.

6. DEFENCE OF CONSENT

1. STATUTORY PROVISIONS

The law on the defence of consent has been given in Sections 87 to 92 of the Pakistan Penal Code,

2. MEANING OF CONSENT:

Consent in criminal law means “a consent freely given by a rational and sober pers so situated as to be able to form a rational opinion upon the matter to which he consents. Again, “consent is said to be given freely when it is not procured by force, fraud or threats of whatever nature. In any case, the consent may not be expressed but may be inferred by the conduct of the parties.

3. GRIEVOUS HURT CAUSED IN SPORTS:

Section 87 covers the cases of sports such as boxing, wrestling, football etc. The hurt caused by sports entered into for health or recreation is justifiable but there should be a lawful game and it should be played according to rules. And even if a person causes the death of another unintentionally in a lawful game is not guilty.

4. UNINTENTIONAL GRIEVOUS HURT:

These types of cases where consent is a defence are covered by Sections 88, 89, 91 92 and 93 of the Pakistan Penal Code.

An act is done in Good Faith: According to Section 88, the unintentional causing of grievous hurt or death is justifiable where the act is done in good faith and for the benefit of the injured person. However, the consent of the injured person should be obtained. The act should be done in good faith le honesty and with due care and attention which requires the skill of any ordinary person in given circumstances.
Consent by Guardian: Under Section 89; consent can also be given by a guardian in case of a person under 12 years of age or a person of unsound mind, provided the harm is to be inflicted in good faith for the benefit of such person.
The offence of Miscarriage: The consent cannot be given Under Section 91 for committing any offence/offences; e.g. offence of miscarriage
Exemption of the Acts Causing Physical Harm; where Consent cannot be given: Section 92 of the Penal Code exempts the acts causing, physical harm to a person without that person’s consent. This happens when it becomes impossible for the person to give consent due to an accident or infirmity. The law under this section requires that the interference with the health and body of the victim of an emergency should be to save his life and not to put it in danger and it should be to do more good.

7. DEFENCE OF ACCIDENT

1. STATUTORY PROVISION:

According to Section 80 P.P.C; Accident in doing a lawful act: Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.

2. COMPLETE ABSENCE OF CRIMINAL INTENTION:

The essence of exemption is the complete absence of criminal intention or knowledge. An accident is something that happens out of the ordinary course of things. An injury is said to be accidentally caused when it is neither willfully nor negligently caused However, the act could only be an accident if it is a lawful act and is done in a lawful manner.

3. WHAT IS AN ACCIDENT; A GENERAL VIEW:

An accident is something which happens outside the ordinary course of events. It is an event that a reasonable man in the shoes of the accused would not have foreseen as likely or probable. The objective test is to be applied. is

Explanation: A is at work with a hatchet; the head flies off and kills a man who standing nearby. Here if there was no want of proper caution on the part of ‘A’, his act is excusable and not an offence.

8. DEFENCE OF PERSON AND PROPERTY

1. STATUTORY PROVISIONS:

The law of defence of person and property or self-defence has been given in Sections 96 to 106 of the Pakistan Penal Code: The right to use force in self-defence is based on the natural instinct of self-preservation and the rule of prevention of crime. The right has been recognised since time immemorial.

2. APPREHENSION OF DANGER:

A defender can use force in view of the apprehension of danger, from every side. The defender should apprehend immediate danger to his life or property.
According to Section 99 of P.P.C. right to use force in self-defence commences as soon as apprehension of danger commences. The right to use force comes to an end as soon as or when danger to a person or property comes to an end.
The apprehension of danger should be reasonable. What is reasonable apprehension depends upon the circumstances of each case.
The danger should be immediate and not a future danger.
It should not be mere threats.
It is also not essential that actual injury is caused. It is enough to prove that injury was going to be immediately caused.

3. DOCTRINE OF REASONABLE FORCE

The presence of imminent danger does not entitle a man to use brute and unlimited force to repel such impending danger, The use of force must be commensurate with the apprehension of danger. In other words, the injury inflicted by the person exercising the right should be proportionate to the injury with which he is threatened) The purpose is to prevent the offence and not to resort to a highly disproportionate show of force or violence.

4. DEFENCE OF PROPERTY:

One can use force to defend one’s property and one is not bound to retreat when in possession of his property. If the enemy has already taken possession of the property, the last course open is to get police help. In case of theft, if the thief has taken away the property, the owner can follow the thief to recover the possession of the same event by using reasonable force. If, however, while attempting to recover the property or protect possession.

If danger to the body arises, the right to defend the body also arises, and force can be used subject to restrictions Under Section 99 of PPC.

Section 105 is very clear on this point. According to this section, the right of self-defence continues till

The offender has affected his retreat with the property.
The assistance of the public authorities is obtained.
The property has been recovered.

5. ATTACK BY ROBBERS OR DACOITS:

In case of a surprise attack by robbers or dacoits who are bound to break into the house, the occupier of the house is entitled to fire without waiting for their entry into the house.

CONCLUSION

Certain defences are available in PPC, and we can use force if there is a reasonable apprehension of danger. An accused can get freed from a criminal. charge if he uses any of the defences mentioned earlier. Someone can even cause the death of the offender in self-defence and we get no punishment for murder because it would be a lawful act.

FAQs

Describe various defences which are available as general exceptions in Pakistan Penal Code.

(2018-A)

Unsoundness of mind is an absolute defence in criminal liability. Under what circumstances it can be advanced by the accused in his defence successfully?

(2016-A, 2015-A)

Insanity is a defence in criminal liability but not all kinds of insanity. In what circumstances it can be advanced by an accused in his defence successfully?

(2015-S)

Discuss in detail the minority, insanity and compulsion as a defence against an alleged act.

(2010-S)