Private Defence | Pakistan Penal Code, 1860

INTRODUCTION

The right of private defence is provided to preserve one’s life or security and to prevent crime. The law does not want that a law-abiding person should live a cowardly life so the right of self-defence is provided in Pakistan Penal Code.

RELEVANT PROVISIONS

Sections 96, 97, 99, 100, 101, 102, 103, 104, and 105 of P.P.C. 1860 deal with the right of private defence.

DEFINITION OF PRIVATE DEFENCE

The right of private defence is the legal entitlement of an individual to protect oneself, others, or their property from imminent harm or unlawful aggression. It allows a person to use necessary and proportionate force, within certain limits, to counteract the threat or attack they are facing.

NATURE OF THE ACT

The right of private defence is always against an act which is an offence, and thus the person who commits the forbidden act cannot in return claim the right of self-defence. The right of private defence must be carried out to prevent harm.

FORCE TO BE USED

There must be a reasonable apprehension of hurt but the right of private defence in no case extends to causing more harm than is necessary to inflict for the purpose of defence. The force which is used should be only that much in quantity which is necessary to avert the danger or to secure safety.

ESSENTIALS OF SELF DEFENCE

The following are the characteristics of self-defence;

The law does not require that the person attacked weigh in golden scales the maximum force which should be inflicted in return.
A person is entitled to secure his victory as long as the contest continues.
Not actual continuing (apprehension) but rather a reasonable apprehension of such danger.
It is pertinent to keep in mind that where there was sufficient time to take recourse to public authorities, a person cannot exercise his right of self-defence
The exercise of this right, whether it was legal or not is collectively inferred from the circumstances of the individual cases.

RIGHT OF PRIVATE DEFENCE

U/s 96 of P.P.C. 1860:

“Nothing is an offence which is done in the exercise of the right of private defence.”

Thus the right of private defence is always against an act which is an offence and an act done in exercise of the right of private defence is not an offence. The right of private defence does not give rise to any right of private defence in return. It means an aggressor cannot claim the right of self-defence.

KINDS OF RIGHT OF PRIVATE DEFENCE

Private Defence may be classified into two classes as follows;

A) Private Defence of Body

- Of One’s Own Body
- Of another person’s Body

B) Private Defence of Property

- Of One’s Own Property
- Of another Person’s Property

A) PRIVATE OF DEFENCE OF BODY:

U/s 97, 100, 101 & 102 of P.P.C. 1860:

The accused would be within his right to defend his own body and that of any other person against any offence affecting the human body. He would have the right to defend his own body as well as that of his co-accused.

1. ESSENTIALS OF PRIVATE DEFENCE OF BODY:

In order to avail of the exception of self-defence, it is essential to show the following؛

That the occurrence was not due to the fault or act of the accused
That there was an immediate danger to life, in the honest belief of the accused
That no reasonable course was available to the accused to escape or avoid the necessity
That there was no intention to cause more harm than necessary for the purpose.

2. CASES WHERE DEATH MAY BE CAUSED IN SELF DEFENCE

Section 100 describes the situations where the death of a person may be caused, however, it also puts restrictions as mentioned in Section 99.

Under Section 100 following are the cases where the death of a person may be caused in private defence;

Where there is apprehension that death may be caused
Where there is apprehension that grievous hurt may be caused
Assault with the intention of committing rape
Assault with the intention of gratifying unusual lust
Assault with the intention of kidnapping or abduction
Apprehension of wrongful confinement

3. CONDITIONS PRECEDENT TO CAUSE DEATH IN SELF DEFENCE:

Case Law: AIR 1959 Punj. 332

In this case, the court gave four cardinal conditions that must exist before the taking of the life of a person is justified in the plea of self-defence.

Firstly; The accused must be free from fault in bringing about the encounters

Secondly; There must be present and impending peril to the life of great bodily harm, either real or so apparent as to create the honest belief of an existing necessity;

Thirdly: There must be no safe or reasonable mode of escape by retreat;

Fourthly: There must have been a necessity for taking life.

4. SITUATIONS WHERE DEATH MAY NOT BE CAUSED IN SELF DEFENCE;

U/s 101 OF P.P.C. 1860:

Section 101 puts a restriction to cause the death of any person in self-defence if such person has not committed or has not threatened to commit any offence as enumerated in threatened by any of the offences as given in Section 100 if he is not

B) PRIVATE DEFENCE OF PROPERTY:

U/s 97, 103, 104 & 105 of P.P.C. 1860:

The right of private defence of property also comes into operation when certain specified offences against property are committed or attempted to be committed. This right commences when a reasonable apprehension of danger to the property commences.

1. CONDITION PRECEDENT TO AVAIL SUCH EXCEPTION:

The right of private defence of property can only exist, in favour of the person with a clear title to that property. There must be the presence of title and possession of the property to exercise the right of private defence of property.

2. CASES WHEN DEATH MAY BE CAUSED IN SELF DEFENCE:

Section 103 gives a person a right to voluntarily cause the death of a person who infringes, threatens to commit an offence or commits an offence which falls under the- categories enumerated by the section. Following are the cases where the death of a person may be caused in defence of property.

Firstly: Robbery

Secondly: Housebreaking by night,

Thirdly: Mischief by fire committed to any building etc.

Fourthly: Theft, mischief or house trespass where death or grievous apprehended.

3. CASES WHEN ANY HARM OTHER THAN DEATH MAY BE CAUSED

Section 104 puts restriction on the right of defence of property and says that no one can cause the death of a person on the plea of private defence of property if the offence committed or threatened to be committed with respect to such property is not one which is given in Section 103, as such any harm other than death may be caused to such wrongdoer.

THE EXTENT OF HARM:

The harm which is intended in Section 104 should be of such a nature as may be helpful in defending the property and not any other kind of harm.

The exercise of the right of private defence of property is itself subject to restrictions mentioned in Section 99, which prescribes that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

EXCEEDING THE LIMIT:

If the court comes to the conclusion that what an accused person intended to do, could not be considered to be an act done for the prevention of harm, it cannot hold it to be a case of exceeding the right of private defence and should hold it to be a case of committing the offence which was committed by reason of the act done.

4. COMMENCEMENT AND CONTINUANCE OF THE RIGHT:

U/s 105 of P.P.C. 1860

The right of private defence of property commences when a reasonable apprehension of danger to the property begins. Where the danger to the property has come to an end by the arrest of the offender, the right of private defence of property ceases forthwith.

LIMITATIONS ON TO THE RIGHT OF PRIVATE DEFENCE

There is no right of private defence against

An act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant in good faith under the colour of his office, though that act may not be strictly justified by law.
An act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempt to be done, by the directions of a public servant acting in good faith under the colour of his office though the directions may not be strictly justifiable by law.
Cases in which there is time to have recourse to the protection of the public authorities
An anticipated action
Any act which is not itself an offence under it
An act done in the exercise of the right of private defence is not an offence and does not, therefore, give rise to any right of private defence in return.

CONCLUSION

To conclude that the right of private defence is recognized by the Pakistan Penal Code, both in cases of person and property and this right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

FAQs

What is the right of private defence? Under what circumstances this right of private defence of body and property may extend to causing the death?

(2019-A, 2019 5 years)

What is the right of private defence? Discuss the circumstances under which the right of private defence of the body extends to causing death.

(2017-S, 2017-A)

What is the private defence of the body? Is there any restriction placed on its exercise by the Pakistan Penal Code? Enumerate the circumstances when a person can justifiably cause the death of an assailant.

(2013-S, 2012-S)

What is meant by the private defence of the property? When does it amount to causing the death of an assailant?

(2012-S, 2012-A, 2009-S)

What do you understand by the right of private defence of the body and the property? Discuss the acts against which there is no right of property defence. Also, state the extent to which the right may be exercised.

(2010-S)

What do you understand by the right of private defence of property? When does such a right extend to causing any harm other than death to discuss the provisions relating to the commencement and continuance of the right of private defence of property?

(2010-A)