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    Saturday, 28 October 2017

    General Defenses in Pakistan Penal Code

    1. DEFINITION OF DEFENCE
    (i) According to Black's Law Dictionary
    "That which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. That which is put forward to diminish plaintiff's cause of action or defeat recovery. Evidence offered. by accused to defeat criminal charge."

    (ii) According to the Law Lexicon
    "The term signifies not a justification or protection which is its popular signification, but merely an opposing or denial of the truth or validity of the plaintiff's allegation or complaint.

    2. GENERAL CATEGORIES
    Upon examining the functions five general categories become apparent are following;

    (I) FAILURE OF PROOF DEFENCES
    Failure of proof defenses consist of instances in which because of the conditions that are the basis for the defense, all elements of the  offence charged cannot be proven. They are in essence no more than the negation of an element required by the definition of the offence.

    (II) OFFENCE MODIFICATION DEFENCES
    Offence modification defenses are real defenses in that sense that they do more than simply negate an element of an offence. They apply even where all elements of the offences are satisfied.

    (III) JUSTIFICATIONS
    Unlike failure of proof and offence modifications defenses, justification defenses are not alterations of the statutory definition of the harm sought to be prevented or punished by an offence. The harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever possible.

    (IV) EXCUSES
    Excuses are usually general defenses applicable to all offences even though the elements of the offence are satisfied. Excuses admit that the deed may be wrong but excuse the actor because conditions suggest that the actor is not responsible for his deed.

    (V) NON-EXCULPATORY PUBLIC POLICY DEFENCES
    In non-exculpatory defenses, the defendant's conduct is harmful and creates no societal benefit; the defendant is blameworthy. The societal benefit underlying the defense arises not from his conduct, but from foregoing his conviction. The defendant escapes conviction in spite of his culpability.

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

    4. STATUTORY DEFENCES

    In Pakistan Penal Code following are the statutory defenses:
    (i) Infancy / Minority
    (ii) Insanity
    (iii) Intoxication
    (iv) Mistake of fact
    (v) Necessity and compulsion
    (vi) Consent
    (vii) Accident
    (viii) Person and property

    5. DEFENCE OF INFANCY / MINORITY

    (I) STATUTORY PROVISIONS UNDER SECTION 82 & 83 P.P.C;
    (i) Section 82 of Pakistan Penal Code says;
    "Act of a Child under seven years of age. Nothing is an offence which is done by a child under seven years of age."

    Section 83 of the code says:
    "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."

    (II) A CHILD BELOW SEVEN YEARS OF AGE CANNOT DISTINGUISH BETWEEN RIGHT AND WRONG
    The rule all over the world is that a child below seven years of age is absolutely 'doll incapax', that is to say incapable of committing any offence, since he cannot distinguish between right and wrong.

    (III) EXEMPTION NOT AVAILABLE TO OFFENCES AGAINST SPECIAL OR LOCAL LAWS
    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 mean to preserve public health etc. where Mens Rea is not an essential ingredient of offence.

    (IV) WHERE A CHILD IS USED AS INNOCENT AGENT
    A child can be used as an innocent agent of 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.

    (V) RATIONALE BEHIND THE CONCEPT
    Rationale behind the concept is that criminal liability is based on the sufficient maturity to understand the nature of the act. A child between the age of seven and twelve years can be criminally liable if he has attained sufficient maturity of understanding as to understand the nature of his act when he can distinguish between right & wrong.

    (VI) BURDEN OF PROOF
    The burden of proving the defense of infancy is on the accused person. He should show that he had not attained sufficient maturity.


    6. DEFENCE OF INSANITY

    (I) STATUTORY PROVISION, UNDER SECTION 84 P.P.C
    Section 84 of the Pakistan Penal Code says;
    Act of 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.

    (II) INSANITY IS A COMPLETE DEFENCE
    According to Section 84, insanity is a complete defense to a criminal charge since a person is not in a position to understand the nature of is act or distinguish between right and wrong because of unsoundness of his mind. It is said that a mad man is punished by his own madness.

    (III) THERE IS 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.

    (IV) ESSENTIAL OF THE DEFENCE
    (i) Insanity should be at the time of doing the act.
    (ii) The accused must be suffering from defect of reason which was caused by unsoundness of mind.
    (iii) 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 law.

    (V) DISTINCTION BETWEEN MEDICAL AND LEGAL INSANITY IS NECESSARY
    Distinction between medical & legal insanity must be made A person may be medically insane but he may be legally sane Mere abnormality of mind is not enough unless the 'right & wrong test', and not knowing the nature of the act' test as given under Section 84, is applied. The medical and legal standards are not identical. Every case of legal insanity is a case of medical insanity but every case of medical insanity is not a case of legal insanity

    (VI) TWOFOLD 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 defense cannot succeed when only the emotions are affected.

    (VII) PARTIAL DELUSION IS NO GROUND FOR EXEMPTION
    Partial delusion is no ground for exemption from criminal liability if a person knew that his act was wrong. Such a case is not covered under Section 84 of the Code which requires total unsoundness of mind.

    (VIII) INSANITY CAUSED BY DRUNKENNESS
    So far insanity brought by drunkenness is concerned, voluntary intoxication is no defense and therefore insanity caused by means of intoxication no defense.

    7. DEFENCE OF INTOXICATION


    (I) STATUTORY PROVISIONS: According to Section 85 of P.P.C;
    Act of a person incapable of judgment by reason of intoxication caused against his will. "Nothing is an offence which is 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."

    According to Section 86 of P.P.C;
    Offence requiring 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".

    (II) LAW LAY DOWN IN SECTION 85 & 86 OF P P.C:
    The two sections of the Penal code lay down the law relating to drunkenness as a defense or plea in mitigation of a criminal offence. Section 85 gives the same protection as Section 84 does to a person of unsound mind. However Section 86 can only apply if the  thing which intoxicated him was administered to him without his knowledge or against his will.

    (III) 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 be 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.

    Case Law: Manzur Hussain Shah Vs. Crown, 1954
    In this case it was held that the drunkenness of the accused was no defense because he had not been given bhang' against his will or without his knowledge. He was not even so intoxicated as not to understand the nature of his act.

    (IV) INVOLUNTARY INTOXICATION IS A GOOD DEFENCE
    Involuntary drunkenness will be a good defense to a criminal charge. This rule of law is covered by the case of a man drunk through fraud of another or through ignorance.

    (V) VOLUNTARY OR INVOLUNTARY INTOXICATION;  QUESTION OF FACT
    Where the drunkenness was voluntary or involuntary is a question of fact which depends upon the facts of each case.

    (VI) WHERE THE DRUNKENNESS IS PARTIALLY VOLUNTARY AND PARTLY INVOLUNTARY:
    If the 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 with each other. In case of voluntary drunkenness, the court must attribute to the intoxicated person the same knowledge as if he was quite sober. In majority of cases, the question of intention is merely a question of knowledge. If the used foresaw the consequences of his act, he must be presumed have intended to bring about those consequences. The voluntary drunkenness is generally taken into account as throwing light on the question of intention.

    8. DEFENCE OF MISTAKE OF FACT

    (I) STATUTORY PROVISIONS UNDER SECTION 76&79 P.P.C;
    The law on the defense of mistake of fact has been given in Section 76 and 79 of the Penal Code.

    (II) 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. Court determines whether a person has acted in good faith.

    (III) NON-EXISTENCE OF MENS REA
    Mistake means non-existence of Mens Rea of the guilty act.

    (IV) WHERE MISTAKE 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.

    (V) MISTAKE MUST BE OF FACTS & NOT OF LAW
    Mistake must be of one of 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. Mistake in point of law is not a defense. Ignorance of law does not excuse but may be a factor to be considered in mitigation of punishment.

    (VI) AN HONEST & REASONABLE MISTAKE
    Mistake 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 reasonable man in community, the ordinary man. It is that standard which is the safest to adopt.

    (VII) LIABILITY TO NO GREATER EXTENT THAN IF THE MISTAKEN FACTS WERE TRUE
    In cases of mistake, an accused is liable to no greater extent than if the facts had been as he believed them to be. if 'A' thinks honestly that he is using force in self-defense against a thief who is trying to escape, his mistake is reasonable, he will not be liable for the inflicted harm.

    (VIII) OTHER CASES OF MISTAKE
    One cannot avail himself of mistake if one is careless in believing something because the word 'good faith', includes things or acts done with due care and caution and honestly. e.g. mistake does not excuse dangerous operations performed by unqualified medical practitioners.

    9. DEFENCE OF NECESSITY & COMPULSION

    (I) DEFENCE OF NECESSITY: 
    Statutory Provision: Section 81 of P.P.0 says;
    Act likely to cause harm, but done without criminal intent, and o 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 be 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.

    (II) LAW LAY DOWN UNDER SECTION 81 P.P.C;
    Section 81 excuses an act which would otherwise be criminal but in the best interest of 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 person or property. In such cases there is 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.

    (III) QUESTION OF FACT
    It is a question of fact in each case whether the harm to be avoided was of such a natures to justify the doing of the act with the knowledge that the act would cause harm, the element of good faith being necessary in each case.

    (IV) DEFENCE OF NECESSITY IS AVAILABLE ONLY IN THE LAW OF SELF-DEFENCE
    There is no defense of necessity in criminal offences except that where necessity is created in cases covered by the law of self-defense.

    (V) DEFENCE OF COMPULSION; STATUTORY PROVISION
    So far as the defense of compulsion. is concerned, Section 94 P.p.0 is important. It says;
    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 instant death, place himself in the situation by which he became subject to such constraint.

    (VI) LAW LAY DOWN UNDER SECTION 94 P.P.C
    The defense is not applicable to offence of murder and offences against State punishable with death. In all other cases, compulsion is a defense to a criminal charge. In 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.

    (VII) 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 question of question o fact whether fear of instant death existed.

    10. DEFENCE OF CONSENT

    (I) STATUTORY PROVISIONS UNDER SECTION 87 TO 9 P.P.C:
    The law on the defense of consent has been given in Sections 87 to 92 of the Pakistan Penal Code.

    (II) MEANING OF CONSENT
    Consent in criminal law means "a consent freely given by a rational and sober person 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 express but may be inferred by the conduct of the parties.

    (III) GRIEVOUS HURT CAUSED IN SPORTS:
    Section 87 covers the cases of sports such as boxing, wrestling, football etc. The hurt caused in 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 death of another unintentionally in a lawful game is not guilty.

    (IV) UNINTENTIONAL GRIEVOUS HURT
    These type of cases where consent is a defense are covered by Sections 88, 89, 91 92 and 93 of Pakistan Penal Code.

    (i) 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 injured person should be obtained. The act should be done in good faith i.e. honestly and with due care and attention which requires a skill of any ordinary person in given circumstances.

    (a) Consent by Guardian
    Under Section 89; the consent can also be given by a guardian in case of 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.

    (ii) Offence of Miscarriage
    The consent cannot be given Under Section 91 for committing any offence/offences; e.g. offence of miscarriage.

    (iii) Exemption of the Acts Causing Physical Harm; where Consent cannot be given
    Section 92 of Penal Code exempts the acts causing, physical harm to a person without that person's consent. This happens where it becomes impossible for the person to give consent due to accident or infirmity. The law under this section requires that the interference with the health and body of the victim of emergency should be to save his life and not to put it in manner and it should be to do more good.

    11. DEFENCE OF ACCIDENT

    (I) 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 don g of a lawful act in a lawful manner by lawful means and with proper care and caution.

    (II) THERE SHOULD BE 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 accident if it is a lawful act and is done in a lawful manner.

    (III) ACCIDENT; A GENERAL VIEW
    An accident is something which happens outside the ordinary course of events. It is an event which a reasonable man in shoes of the accused would not have foreseen as likely or probable. The objective test is to be applied.
    Explanation: 'A' is at work with hatchet; the head files off and kills a man who is standing nearby. Here if there was no want of proper caution on the part of `A'; his act is excusable and not an offence.

    12. DEFENCE OF PERSON AND PROPERTY

    (I) STATUTORY PROVISIONS
    The law of defense of person and property or self defense has been given in Sections 96 to 106 of Pakistan Penal Code. The right to use force in self defense is based on the natural instinct of self-preservation and rule of prevention of crime. The right has been recognized since time immemorial.

    (II) APPREHENSION OF DANGER
    (i) A defender can use force in view of apprehension of danger from the every side. The defender should apprehend immediate danger to his life or property.
    (ii) According to Section 99 of P.P.0 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 person or property comes to an end.
    (iii) The apprehension of danger should be reasonable. As to what is reasonable apprehension depends upon the circumstances of each case.
    (iv) The danger should be immediate and not a future danger.
    (v) It should not be mere threats.
    (vi) it is also not essential that actual injury is caused. It is enough to prove that injury was going to be immediately caused.

    (III) 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 us' of force must 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.

    (IV) 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 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 even by using reasonable force.

    If, however, while attempting to recover the property or protecting possession, if danger to 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-defense continues till;
    (i)  The offender has affected his retreat with the property.
    (ii) The assistance of the public authorities is obtained.
    (iii) The property has been recovered.

    (V) IN CASE OF DISPUTED PROPERTY
    Where a property is disputed, mere trespass by one of the claimant is not sufficient to entitle the person in possession to use force. But where such trespass is accompanied by violence, he has every right to expel force by force.

    (VI) ATTACK BY ROBBERS OF DACOITS
    In case of surprise attack by robbers or dacoits who are bound to break into house, the occupier of the house is entitled to fire without waiting their entry in the house.

    13. CONCLUSION

    Defense 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 defense mentioned earlier. We can, in some cases, even cause death of the offender in self-defense and we get no punishment of murder because it would be lawful act. 
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    Item Reviewed: General Defenses in Pakistan Penal Code Rating: 5 Reviewed By: Usman Ali
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