General Exceptions.docx

Pakistan Penal Code, 1860 General Exceptions (Sec 76-106) Introduction: The criminal law outlines different punishments for various crimes. But a person may not always be punished for a crime that he/she has committed. The Pakistan Penal Code, 1860 recognizes defenses in chapter four under the heading ‘General Exceptions.’ Sections 76 to 106 of the IPC cover these defenses. The law offers certain defenses that exculpate criminal liability. These defenses are based on the premise that though the person committed the offense, he cannot be held liable. This is because, at the time of the commission of the offense, either the prevailing circumstances were such that the act of the person was justified or his condition was such that he could not form the requisite mens rea for the crime. The defenses are generally classified under two heads- justifiable and excusable. Thus, for committing a wrong, a person must be responsible for doing a wrongful act without having any justification or excuse for it. A justified act is a one which otherwise, under normal conditions, would have been wrongful but the circumstances under which the act was committed make it tolerable and acceptable. The person fulfills all the ingredients of the offence but his conduct is held to be right under the circumstances. An excusable act is the one in which though the person has caused harm, it is held that a person should be excused because he cannot be blamed for the act. For example – if a person of unsound mind commits a crime, he cannot be held responsible for being mentally sick. In case of an excusable defense, the actor is not punished as he lacks the necessary mens rea for the offence either by reason of an honest mistake of fact, infancy, insanity or intoxication. There must be a disability to cause the condition that excuses the conduct. A conduct is punishable not because the person acted in that manner but because he chose to act in that manner. Excusable defenses are invoked when one cannot infer the bad character of a person from the act that he has committed. The different defenses features in PPC and in what category they fall have been discussed in this project. The next section expresses my views on attempt to classify these general exceptions. Classification of general exceptions Excusable Act – Excusable General Exceptions     

Mistake of fact (Section 76 and79) Accident (Section 80) Infancy (Section 82, 83) Insanity (Section 84) Intoxication

Justified Act     

Judicial Act (Section 77 and 78) Necessity (Section 81) Consent (Section 87 – 89 and 92) Duress (Section 94) Communication (Section 93)

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Trifles (Section 95) Private Defense (Section 96-106)

Mistake of fact (section 76 and 79) The two sections exclude a person from criminal liability when they are ignorant of the existence of relevant facts or have mistaken them and commit a wrongful act for which he neither could foresee nor intended the unlawful consequence. It is important that the mistake must be reasonable and must pertain to the fact of the case and not the law. This is derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris non excusat”.  

Section 76 – A person believes that he is under a legal compulsion to do such an act. Section 79- A person acts because he thinks there is a legal justification for the act he has committed.

Example in case of bound by law: A soldier firing on a mob under the lawful orders of his superior – This is an act where the soldier is bound by law to do so. Example in case of justified by law: An officer of court is supposed to arrest X but accidentally arrests Z believing him to be X – this is a mistake of fact. It is always to be kept in mind that mistake relating to the facts in various case laws should be a mistake of fact, not a mistake of law. The mistake of law is never excusable in any court of law because everyone is always expected to know the law of the land. Accident (Section 80) Nothing is an offence if it is committed:1. 2. 3. 4. 5. 6.

By accident Without criminal intention or knowledge While doing a lawful act In a lawful manner By lawful means Where due care and caution is exercised.

Accident means an unintentional act or an unexpected act. It is something that happens out of the ordinary course of things. It is necessary to prove that the act was done without any criminal intention, with no mens rea. An act that was intended by or known to the doer cannot be an accident. The act must be a lawful act, in a lawful manner by lawful means. Proper care and caution must be exercised.

Infancy (Section 82 and 83) According to Section 82 of PPC, nothing is an offence where –  

Act is done by a child Under ten years of age

There is Absolute incapacity for the crime under ten years of age. Presumption of law- Doli Incapax i.e. a child has no discretion to distinguish right from wrong, thus criminal intention does not arise. According to Section 83 of PPC, nothing is an offence where   

Act is done by a child between 10-14 years of age Has no sufficient maturity of understanding To judge the nature and consequences of his conduct is no offence.

If proven to have sufficient maturity of understanding, liability arises. Illustrations: (i) A child of 9 years of age took a necklace valued at Rs. 2/8/- from another boy and immediately sold it to another for five annas, the child was discharged under this section, but the accused was convicted of receiving stolen property for the court considered convict displaying sufficient intelligence to hold him guilty. (ii) The accused, a girl of 10 years of age, a servant of the complainant, picked up his button worth eight annas and gave it to her mother. She was convicted and sentenced to a month’s imprisonment. But the High Court quashed the conviction holding that there was no finding by the Magistrate that the accused had attained maturity of understanding sufficient to judge the nature of her act. Insanity (Section 84) It includes act done –  

Due to unsoundness of mind- no free will- born idiot, temporary failure, madman, unconscious, intoxicated. Incapable of knowing the nature of the act, or that it is wrong or contrary to law.

The point to be emphasized on is that if a person is taking insanity as a defense, then he has to prove legal insanity along with the medical insanity. Tests:   

At the time of commission of offence State of mind before and after Only organic or natural incapability, not uncontrollable impulses, weak intellect, or eccentric behavior.

Intoxication (Section 85 and 86) According to section 85 of the PPC, nothing is an offence which includes:   

Act of a person Incapable of judgment Due to intoxication Caused without his knowledge or against his will

According to section 86 of the PPC,   

Offence requiring a particular intent or knowledge Committed by an intoxicated person Presumption of knowledge, unless proves intoxicated without his knowledge or against his will is never excusable in the court of law.

The major difference between section 85 and 86 is that in sec 85, a person is intoxicated involuntarily and in sec 86, a person is intoxicated voluntarily. That’s why under sec 85, defense is provided to the accused. In sec 86, and person is held guilty of the offence. The correct test is whether by reason of drunkenness, the accused was incapable of forming an intention of committing the offence.

Right of Private Defence Introduction: Private defence has not been defined in PPC. In general sense private defence or commonly known as “self defence” is “protection of one’s person or property against some injury attempted by another.” In other words, it is an excuse for the use of force in resisting an attack on the person, and especially for killing an assailant. The right to private defence is not to be exercised for vengeance. It ought to be exercised in good faith. Under the PPC, Sections 96 to 106 deal with provisions of private defence of person and property. A man by law is authorized to use necessary force for protecting his body or his property and another’s person as well as property against the wrong-doer when immediate help from the state machinery is not available. Self-help is one of the fundamentals of criminal law and it is necessary for the protection of life, liberty and property. Although it is the duty of the State to protect the individuals but there may be situations that aid from the State authorities cannot be obtained. To meet such exigencies provisions of self defence have been made. Why self defence is important? Self-preservation is the chief character of every human being. Every person has a right to defend his body and property. Such kind of instinct can be seen in animals even.

Statutory Provisions Section 96 clearly states that anything done in the exercise of the right of private defence is not an offence.

Essential ingredients    

Who is aggressor Who started the fight Injuries sustained from aggressor Degree of violence used against aggressor as self-defense

As per section 97, each one of us has a right to defend one’s body as well as the body of other person. Similarly, we do have a right to protect our property (including movable and immovable) and other person property against any act which amounts to theft, robbery, mischief and criminal trespass or any attempt to commit the aforementioned offences. As per section 98, any act done which otherwise amounts to an offence shall be no offence if done in state of intoxication, unsoundness of mind, wants of maturity, misconception and infancy. Section 99 enlists certain circumstances against which no right of self defence is available. Any act done by a public servant or on the direction of a public servant in good faith not giving rise to reasonable apprehension of death or grievous hurt and where reasonable time exist to resort to the protection of public authorities have been exempted from self-defence. However, this right extends to a person having no reason to believe that the person doing the act is a public servant. Where any act is done in the direction of a public servant, unless the person has reason to believe that he is acting under the authority of a public servant retains the right to self-defence. Proportionality rule and necessity rule govern the use of force for self-defence. However, there are seven exceptions to the general rule where the force used against the wrong doer could extend to resulting his death [section 100].      

Reasonable apprehension of death Reasonable apprehension of grievous hurt Assault with the intention of committing rape Assault with the intention of gratifying unnatural lust Assault with the intention of kidnapping Assault with the intention of wrongful confinement which gives the person a reasonable apprehension that he will be unable to take assistance of public authorities

Ingredients: To invoke section 100, P.P.C., four conditions must exist,  

Firstly, that the person exercising the right of private defence must be free from fault in bringing about the encounter; Secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create an honest belief of exceeding (great) necessity;

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Thirdly, there must be no safe or reasonable mode of escape by retreat; and Fourthly, there must have been a necessity for taking the life.

Section 102, the right of private defence commences and continues as long as danger to the body lasts. The extent to which the exercise of the right will be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequence thereupon an apprehension of danger, but it should not be a mere idle threat. There must be reasonable ground for the apprehension.

Section 104 will apply if the wrong doers commit or attempt to commit any of the following offences: (1) theft, (2) mischief or trespass not of the description which is covered under section 103, subject of course to restrictions mentioned in section 99; and in such a case the right of private defence of property would extend only to causing harm other than death to him. This section limits the right of private defence, causing of any harm other than death. Section 105, P.P.C. like section 102, fixes the time when the right to private defence of property commences and when it comes to an end. The right of defence of property commences as soon as a reasonable apprehension of danger to the property commences. The continuance depends upon the nature of the offence. In cases of theft it continues until the offender has effected his retreat with the property, or the assistance of public authorities is obtained, or the property has been recovered. In cases of robbery it continues as long as the offender causes or attempts to cause any person death or hurt, or as long as instant personal restraint continues. In cases of criminal trespass or mischief the right continues so long as the offender continues in the commission of criminal trespass or mischief. Section 106, provides that whenever an apprehension of death exists and the person is so situated that he cannot effectively exercise the right of private defence without the possibility of doing harm to an innocent person, he may take the risk of such harm resulting. For instance, as given in the illustration appended to the section, if A is attacked by a mob intending to murder him and he cannot effectively exercise his right of private defence without firing on the mob, and he cannot fire without the risk of harming young children who have mingled with the mob, he commits no offence if by so firing, he injures any one of the children. A had no option under the circumstances of the case for protecting himself except to fire at the mob and so his action is justified.