PRIVATE DEFENCE:
Private defence refers to the legal right of an individual to protect themselves, their
property, or others from imminent harm through the use of reasonable force. This
concept is grounded in the principle that individuals have a natural and legal right to
defend themselves when faced with a threat. The right of private defence is
recognized in legal systems around the world, and its specifics, including the degree
of force allowed and the circumstances under which it can be invoked, vary by
jurisdiction.
Key aspects of the right of private defence include:
1. Imminent Threat: Private defence typically requires that there be an imminent
threat of harm. This means that the danger must be immediate and not speculative
or potential. The individual must reasonably believe that there is an immediate risk to
life, limb, or property.
2. Reasonable Force: The use of force in private defence must be proportionate
and reasonable in relation to the perceived threat. The principle of proportionality
implies that the force used should not exceed what is necessary to repel the threat.
Excessive force may not be considered a valid exercise of the right of private
defence.
3. No Duty to Retreat: In some jurisdictions, individuals have no duty to retreat
before using force in self-defence. This is known as the "stand your ground"
principle. In contrast, other legal systems may require individuals to retreat if it is
safe to do so before resorting to force.
4. defence of Others and Property: The right of private defence is not limited to
self-defence. It may extend to the defence of others or the protection of one's
property. Again, the use of force must be reasonable and proportionate.
5. Legal Limitations: While individuals have the right of private defence, there are
legal limitations. For example, the use of deadly force may be restricted, and the
right may not apply if the person invoking it is the aggressor or if there are alternative
means of avoiding the threat.
6. Judicial Review: In cases where the right of private defence is invoked and force
is used, the actions may be subject to judicial review. Courts will assess the
circumstances surrounding the incident to determine whether the use of force was
justified under the law.
UNDER PAKISTAN PENAL CODE:
96. Things done in private defence: Nothing is an offence which is done in the
exercise of the right of private defence.
97. Right of private defence of the body and of property:
Every person has a right, subject to the restrictions contained in Section 99, to
defend;
First: His own body, and the body of any other person, against any offence affecting
the human body;
Secondly: The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the definition of theft,
robbery, mischief or criminal trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.
98. Right of private defence against the act of a person of unsound mind, etc.:
Every person has the same right of private defence against an act that would be
considered an offence if it was not due to youth, maturity, mind intoxication, or
misconception.
Illustrations
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence, but
A has the same right of private defence which he would have if Z were sane.
99. Act against which there is no right of private defence:
Private defence is not available against acts that reasonably cause death or grievous
harm, even if done or attempted by a public servant in good faith under the direction
of their office, even if the direction is not strictly justifiable by law. In such cases,
public authorities are the only option.
Extent to which the right may be exercised: The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the
purpose of defence.
Explanation 1 :
A person can defend themselves against an act by a public servant if they know or
have reason to believe the act is done by such a public servant.
Explanation 2:
Private defence against public servant's direction is not deprived unless the person
knows or believes they are acting under such direction, states their authority, or
produces such authority if deemed necessary.
100. When the right of private defence of the body extends to causing death:
The body's right of private defence can be exercised to cause death or harm to the
assailant, provided the offence is of the following descriptions.
First: Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
Secondly: Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
Thirdly: An assault with the intention of committing rape;
Fourthly: An assault with the intention of gratifying unnatural lust.
Fifthly: An assault with the intention of kidnapping or abduction.
Sixthly: An assault aimed at wrongfully confining someone, causing them to realise
they will not have access to public authorities for their release.
101. When such right extends to causing any harm other than death:
If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned
in Section 99 to the voluntary causing to the assailant of any harm other than death.
102. Commencement and continuance of the right of private defence of the
body:
The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed; and it continues as long
as such apprehension of danger to the body continues.
103. When the right of private defence of property extends to causing death:
Section 99 restricts private defence of property to voluntary causes of death or harm
to the wrong-doer, if the offence is a specific offence.
First: Robbery;
Secondly: House-breaking by night;
Thirdly: Mischief by fire committed on any building, tent or vessel, which building,
tent or vessel is used as a human dwelling or as a place for the custody of property;
Fourthly: Theft, mischief or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence,
if such right of private defence is not exercised.
104. When such right extends to causing any harm other than death:
The right of private defence applies to theft, mischief, or criminal trespass, not
specified in the previous section. However, this right does not extend to voluntary
causing death, but can cause harm to the wrong-doer, subject to restrictions in
Section 99.
105. Commencement and continuance of the right of private defence of
property:
The right to private defence of property begins with a reasonable apprehension of
danger. It continues until the offender retreats or seeks public assistance. The right
to private defence against theft continues until the offender has retreated or the
property is recovered. The right to private defence against robbery continues as long
as the offender causes death, injury, or wrongful restraint. The right to private
defence against criminal trespass or mischief continues as long as the offender
continues.
106. Right of private defence against deadly assault when there is risk of harm
to innocent person:
If in the exercise of the right of private defence against an assault which reasonably
causes the apprehension of death, the defender is so situated that he cannot
effectively exercise that right without risk of harm to an innocent person, his right of
private defence extends to the running of that risk.
Illustration:
A is attacked by a mob who attempt to murder him. He can not effectively exercise
his right of private defence without firing on the mob, and he cannot fire without risk
of harming young children who are mingled with the mob. A commits no offence if by
firing he harms any of the children.
