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    Wednesday, 4 October 2017

    Consent, Compulsion or necessity may be a sufficient defense against a Charge of Crime

    1. INTRODUCTION
    Section 81, 94, and 87 to 91 of the Pakistan Penal Code 1960" deals with the exceptions to. criminal liability in general. In some criminal offences, consent, compulsion and necessity may be taken as defense and accused can take the benefits of these defenses.

    2. Relevant Provision
    Following are the relevant provisions of PPC rear the concerned topic:
    Section 81 PPC for necessity
    Section 94 PPC for compulsion
    Section 87 to 91 PPCB for consent

    3. NECESSITY AS A DEFENSE TO CRIMINAL OFFENCE U/S. 81

    (I) MEANING OF NECESSITY
    Necessity may be defined as  " Necessity means unavoidable circumstances or situations critical in nature leaving no choice in action".

    (II) NECESSITY AS A DEFENCE U/SEC. 81
    Where an act is done voluntarily, but in good faith and without any criminal intention to cause harm for the purpose of, preventing or avoiding other harm to person or property, it will be not an offence.

    (III) INGREDIENTS OF SEC 81:
    (i) No Intention to Cause Harm
    In order to get the benefit of sec. 81, the act complained of Must be. done without. any criminal intention to cause harm. It is one of the doctrines of criminal jurisprudence that no crime is committed unless it is with a criminal intention. This doctrine is included in sec. 81 of PPC.

    (ii) Act done in good faith
    The act must be done in good faith in order to prevent or avoid harm to the person or property.

    (iii) To avoid Harm to person of Property
    An act which would otherwise be a crimp may be some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided and which may inflicted upon him or upon others inevitable and irreparable evil.

    (iv) Illustration:
    B in a great fire, pulls down houses in order to prevent the configuration from spreading in good faith of saving human life or property B is not guilty of the offence.

    4. CONSENT AS A DEFENSE TO A CRIMINAL OFFENCE


    (i) MEANING OF CONSENT:
    The word consent has not been defined by PPC. So it may be defined in a general way.
    "Consent means an active will in the mind of a person to permit the doing of the act complained of and knowledge of what .is to be done or of the nature of the act that is being done, is essential to a consent to an act".

    (ii) CONSENT UNDERSECTION 90:
    Section 90 of PPC says what is not thus runs in negative terms. Accord to it a a consent is not a consent intended by this Code, if sit is given:

    (a) By a person under fear of injury, or by a person under misconception of fact and the person obtaining the consent knows or has reason to believe that the consent was given in consequence of such fear or misconception, or.

    (b) By a person of unsound mind or who is intoxicated and who is unable to understand the nature and consequence of that to which he gives his consent, or

    (c) By a person under twelve years

    (iii) CASES WHERE CONSENT IS JUSTIFICATION FOR AN OFFENCE:


    (i) Act done by consent U/ section 87
    A person who causes injury to another person above eighteen years of age, who has given his consent to suffer the harm, by doing an act which is not knowing by the doer to be likely to cause death or grievous hurt, does not commit an offence.

    (a) Basis of Sec. 87:
    Sec. 87 is based on the following maxim: "volenti non fit injuria."

    (b) Scope of sec. 87:
    Sec. 87 does not permit a man to give his consent to any 'thing intended or knows to be likely to cause his own death or grievous hart Ordinarily games such as boxing, football are protected by this section.

    (ii) Act done in good faith for Person's Benefit u/sce. 88.
    Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause, to any per8on for whose benefit it is done in good faith and who has given a consent, whether express or impede, to suffer that harm or to take the risk of that harm.

    (a) Scope of sec. 88:
    Under sec. 88, a person from whose benefit a thing is done may consent that another shall do that thing even if it cause harm to him. Under it any harm except death rent be inflicted.

    (iii) Act done in Good Faith for benefit of child or Insane Person by Consent' of Guardian u/sec. 89:
    Nothing, which is done is good faith for the benefit of a person under twelve years of age or of unsound mind by or by the consent of the guardian, is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause to that person.

    (A) Conditions
    To attract sec. 89 following conditions need to be fulfilled.
    a. the act was done for the benefit of child or lunatic.
    b. It was done in good faith by or by the consent of guardian.

    (B) Exceptions
    Following are the exceptions to sec 89
    (i) it shall not extend to the intentional causing of death or to the attempting to cause death.
    (ii) It shall not extend to the doing of anything which the doer knows t be likely to cause death, for any purpose other than the preventing of death or grievous hurt or the curing of any grievous disease or infirmity.
    (iii) It shall not extend to .the voluntary causing of grievous hurt or to the attempting to cause grievous hurt, unless it be for the purpose. of preventing death or grievous hurt or the curing of arty grievous disease or infirmity.
    (iv) It shall not extend to the abetment. of any offence.

    (iv) Exceptions where consent will not Justify as Defense u/sec. 91.
    Section 91 says that consent u/secs. 87, 88 and 89 will only condone. the act causing harm to the person giving the consent which will otherwise be an -offence. Acts which are offences indeperidently of any harm which they may cause will not be covered by such consent. E.g. causing miscarriage,  public nuisance offences against public safety, morals etc.

    5. COMPULSION AS A DEFENSE TO CRIMINAL OFFENCE U/S. 94

    Section 94 provides exception for offences committed by a person who does any act except murder and offences against the state punishable with death, under fear of instant death, buy fear of hurt or even of previous hurt is not a sufficient 'justification. Even fear of future death is not sufficient for availing the ,protection provided by this section.

    (i) INGREDIENTS OF SECTION 94
    Following are the essential ingredients of sec. 94:
    (i) The act has been done under compulsion.
    (ii) The murder or offence against the state punishable with death should have not been committed.
    (iii) The doer of the act did not voluntarily put himself in the situation.
    (iv) the fear under which he did the ac was not short of instant death.

    ANALYSIS

    In last to conclude I can say that Chapter IV of PPC deals with the exceptions of criminal liability. The accused can take benefit of these sections, but burden of proof will lie' upon the accused to prove all these circumstances.
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    Item Reviewed: Consent, Compulsion or necessity may be a sufficient defense against a Charge of Crime Rating: 5 Reviewed By: Usman Ali
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