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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