Private Defence

Private defence
Introduction :
In a general sense, defence means to protect from something. The right of private defence is a
defence which a person exercises to protect one’s or other’s body or property. The defence is
available as a shield to protect and not to commute offence in the name of defence. This right is
available to a person only when he has no other option than protecting himself. It is not an
absolute right. It has some restrictions and limitations.
Relevant provision :
Section 96 to 106 of Pakistan Penal code, 1860.
Right of private under section 96 of P.P.C:
Nothing is an offence which is done in the exercise of the right of private defence.
The right of private defence is always against an act which is an offence and an act done in
exercise of the right of private defence is not an offence and does not therefore, give rise to any
right of self-defense in turn. An aggressor cannot claim right of self-defense.
Right of defence of the body and of property
Under section 97 of P.P.C :
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 the theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal
trespass.
Ingredients of right of private defence :
Exception of right of self-defence of person or property can be availed but it is essential to
show:
(1) That the occurrence was not due to the fault or act of accused,
(2) That there was an immediate danger to life in honest belief of accused,
(3) That no reasonable course was available to accused to escape or avoid the necessity,
(4) That there was no intention to cause more harm than necessary for the purpose.
Limitation of the right of private defence :
Acts against which there is no right of private defence
(I) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done or attempted to be done by a
public servant acting in good faith under color of his office, though that act may not
be strictly justifiable by law.
(II) There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by
the direction of a public servant acting in good faith under color of his office though
that direction may not be strictly justifiable by law.
(III) There is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.
(IV) 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.
Case law
(5 WR 33)
Where a person killed a weak old woman found stealing at night.
When the right of private defence of the body extends to causing death
The right of private defence of the body extends, under the restrictions in the section 99, to the
voluntary causing of death or of any other harm to the assailant, if the offence which occasions
the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
(1) Apprehension of death :
such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault.
(2) Apprehension of grievous hurt :
such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault.
(3) Intention of committing rape :
An assault with the intention of committing rape.
(4) Intention of gratifying unnatural lust:
An assault with the intention of gratifying unnatural lust.
(5) Intention of kidnapping or abducting:
An assault with the intention of kidnapping or abducting.
(6) Intention of wrongfully confining:
An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he be unable to have recourse to
the public authorities for his release.
Case law :
(PLD 1960 Lah. 62)

Where five persons went to a shop some of whom were armed with sticks and asked the
occupier of the shop to vacate it and their conduct displayed that they were, in a very excited
and angry mood, so that one of them, the deceased, first delivered a blow with a stick, on the
head of one of the party of the accused, and another picked up a chair from where it was lying
in the veranda and placed it at another place, it was held that the accused had a reasonable
apprehension of death or grievous hurt at the hands of the five aggressors, and the accused,
when he cause the injuries resulting in the death of one of the assaulters, had the complete
right of self-defence both of body and property irrespective of the fact whether he caused the
injuries before or after he was injured.
When such right extends to causing any harm other than death
Under section 101 :
If the offence be not of any of the descriptions enumerated in the section 100, the right of
private defence of the body does not extend to the voluntary causing of any death to the
assailant, but does extend, under the restrictions mentioned in the section 99 to the voluntary
causing to the assailant of any harm other than death.
When the right of private defence of property extends to causing death
Under section 103 :
The right of private defence of property extends, under the restrictions mentioned in section
99, to the voluntary causing is death or of any other harm to the wrong doer, if the offence, the
committing of which, or the attempting to commit which, occasions the exercise of the right, be
an offence of any of the descriptions hereinafter enumerated, namely,
First : Robbery
In case of committing robbery or attempting to commit robbery, a person can exercise his
private defence of the property which can extend to the causing of death of the offender.
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.
Commencement and continuance of the right of private defence of property
Under section 105 :
The right of private defence if property commences when a reasonable apprehension of danger
to the property commences.
(I) Theft
The right of private defence of property against theft continues till the offender
has effected his retreat with the property or either the assistance of the public
authorities is obtained, or the property has been recovered.
(II) Robbery
The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful
restraint or as long as the fear of instant death or of instant hurt or of instant
personal restraint continues.
(III) Criminal trespass or mischief
The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal
trespass or mischief.
(iv) house breaking by night
The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking continues.
Case law
Allah Bachayo v. The state
Where the court held that the clause “till the property had been recovered” is to be read
subject to the clause “till the offender has effected his retreat with the property”.
Right of private defence against deadly assault when there is a risk of harm to innocent
person
Under section 106 :
If in the exercise of the right of private defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that ge cannot effectually 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 attempts to murder him. He cannot effectually 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 so firing he harms any of
the children.

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Private defence

(PLD 1960 Lah. 62)

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