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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