Defending Yourself Legally: The Rights and Limitations of Self-Defense
Self-Defense in Penal Code: Provisions, Principles, and Precedents in Comparative Context
Introduction:
The right of self-defense is a fundamental right that is recognized under Pakistani law. It is a principle that allows individuals to protect themselves against harm or danger without fear of legal repercussions. This principle is enshrined in the Penal Code, which outlines the circumstances under which an individual may use force to defend themselves or others. Law had given right to the occupant of any property to expel the intruder or trespasser. If the intruder or trespasser had made his entry for illicit purposes then the right of Self-Defence of property and person was further fortified even to the extent of causing the death of the intruder or trespasser if he did not retreat after having been told or alarmed to retreat. It is no doubt that self-defense is a good defense.
The right of self-defense was recognized by law, but it was to be exercised if circumstances so warrant. Every citizen was entitled to resist attack and defend himself and his property when he or his property faced danger and State machinery was not readily available. A citizen was entitled to protect himself and his property, in circumstances. Legally the right of Self-Defence would arise where the danger to a person or property was imminent and would remain available as long as such danger exists.
The vigilance of the Magistrate can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total of individual resistance. Take away this right and you become in so doing the accomplice of all bad men.
The right of self-defense, as defined by law, must be fastened in the citizens of every free country. If a man is attacked he need not run away, and he would be perfectly justified in the eyes of the law if he holds his ground and delivers a counter-attack to his assailants provided always, that the injury which is inflicted in self-defense is not out of proportion to the injury with which he was threatened.
Provisions of the Penal Code regarding the right of private defense:
Section 96 of the Pakistan Penal Code states that every person has a right to defend their body and property against any offense that causes reasonable apprehension of death or grievous hurt. Under Section 97, a person is entitled to use force to defend themselves or others if there is an imminent threat of harm or danger.
Section 99 of the Pakistan Penal Code outlines the limitations on the use of force in self-defense. It states that the use of force must be proportionate to the harm threatened and must not exceed what is necessary to protect oneself or others. Additionally, the person using force must act in good faith and must not have any other means of protecting themselves or others.
Furthermore, Section 100 of the Pakistan Penal Code explains the circumstances under which the use of force may cause death. It states that a person is justified in causing the death of another if they reasonably believe that the other person is about to cause them or others grievous harm, or if they are trying to commit a serious offense such as rape or robbery.
Nothing is an offense which is done in the exercise of the right of private defense. This section clearly indicates that self-defense is a good defense against a criminal charge.
Circumstances for self-defense to be a good defense:
- Every person has a right to defend his own body, and the body of any other person, against any offence affecting the human body.
- Every person has a right to defend the property, whether movable or immovable of himself or of any other person, against any act which is an attempt to commit theft, robbery, mischief, or criminal trespass.
Judicial principles and maxims:
The principle of self-defense is subject to certain judicial principles and maxims that have been developed over time.
Maxims such as "actus non facit reum nisi mens sit rea" (an act does not make a person guilty unless the mind is also guilty) and "in dubio pro reo" (when in doubt, favor the accused) also apply to self-defense cases. These maxims ensure that a person is not held liable for using force in self-defense unless there is sufficient evidence to prove that they acted with criminal intent.
The principle of necessity:
The use of force in self-defense must be necessary to protect oneself from harm. If there is an alternative way to avoid harm, then the use of force may not be considered necessary. Reading of Ss.96, 97, 99 & 100, P.P.C. in juxtaposition leads to the convulsion that even a stranger can exercise the right of self-defense on behalf of the victim if the said victim apprehends danger at the hands of the assailant of the nature of death or grievous injury.
The principle of proportionality:
The force used in self-defense must be proportionate to the danger faced. If the force used is excessive or disproportionate to the harm threatened, then it may not be considered justifiable self-defense.
The principle of imminence:
The danger faced must be imminent, meaning that it is immediate or about to happen. If the danger is not imminent, then the use of force may not be considered justifiable self-defense.
The principle of reasonableness:
The only consideration for self-defense was that a person threatened with danger of injury, should not exceed the limit fixed by the law. That would depend upon reasonable apprehension of danger to the person under the particular circumstances of the case. Reasonableness of the apprehension was a question of fact that would depend upon the weapon used, the manner of using it, the nature of the assault, or other surrounding circumstances. The person using force in self-defense must have a reasonable belief that they are in imminent danger of harm. If the belief is not reasonable, then the use of force may not be considered justifiable self-defense.
Not expected to Weigh his Actions:
Once an occasion of the exercise of the right of private defence has arisen, the accused cannot be expected to regulate the extent of force to be used by him to keep his act within the limits prescribed by the law and therefore, the law gives some marginal latitude to the accused. Where the force used is grossly out of proportion to the danger precipitated by the assailant or the force used after the danger is over that the law considers such force to be in excess of the right of self-defence and imposes punishment. When an accused person is in the process of exercise of his right of private defense, he is not expected to weigh his actions “in golden scales."
Modulate his Defense:
Exercise of Right of private defence could not be weighed in golden scales; it was a human response under the instinct of self-preservation to ward off a threat, while a prudent person with average nerves, could modulate having regard to the situation obtaining upon him; the re-action of accused was in accord with the stress of the situation confronted by him.
The right of self-defense at such a moment of impulse cannot be measured in golden scales and it is well-nigh impossible to modulate one's attack in the exercise of the right of self-defence step by step to ensure that force used is commensurate with the danger averted. Law, therefore, always gives a certain degree of allowance if the right of self-defence is marginally exceeded. Only when the force used in self-defence is grossly out of proportion to the danger precipitated by the assailant or the use of force after danger comes to an end the law considers such force to be in excess of the right of self-defence and visits the perpetrator with punishment. 2001 YLR 1091
Keep the Proper Sequence:
It is not possible in such a situation for the accused to keep the proper sequence and account of the “action and counter-action” of the adversaries. Self-defence was a multi-dimensioned law. Primarily it was in the nature of an offence as well as the sequence of the events, which help to determine the right of self-defence. The right of private defence, did not provide a licence for an unlimited description to go on causing excessive harm to the opposite party. Such right would commence only when reasonable apprehension arose from an attempt or threat to commit offence. Right, could also continue as long as such apprehension or danger to the body continued.
The attitude of by-stander:
The attitude of a “cool by-stander” cannot be expected from a person who is in a fight or is under attack.
Benefit of Doubt:
That benefit of reasonably possible doubt even in the matter of self-defense must be resolved in favor of the accused. The accused is entitled to the benefit of S.96, P.P.C. even if he has not raised the plea of self-defence in specific terms, but such a plea gets support from circumstances.
Conduct of the accused
Principles are that conduct of the accused during the whole transaction and his presence at the spot should be bona fide, faultless, and devoid of elements of mens rea or actus reus; that there should be a danger to the life of the accused or of grievous bodily hurt or a genuine apprehension to that effect, that the situation should be such that the accused is left with no option of a safe exit, and the force used by the accused is proportionate to the apprehended danger.
Basis of Private Defense:
Self-defense is nature’s oldest law. It is based on the law of necessity of self-preservation. The only consideration is that a person threatened with the danger of injury should not exceed the limits fixed by the law. This, of course, depends upon reasonable apprehension of danger to the person under the particular circumstances of the case. It is a reasonable apprehension of danger to the body and not the actual injuries received that should judge the justification of the act of the accused. Receiving injuries by the accused is not necessary for the exercise of the right of private defence. Apprehension of imminent danger is enough to get the benefit of section 100, P.P.C. (DB) 1976 P.Cr.LJ 329
Private Defense of Person:
The right of such defense commences as soon as a reasonable apprehension of danger in the body arises from an attempt or threat to commit the offence though the offense may not have been committed and it continues as long as the apprehension of the danger to the body continues.
Private Defense of Property:
According to decided case law, this right commences when a reasonable apprehension of danger to the property commences. In such cases, all that is necessary for the defense to show is that he is in actual possession of the property and the question as to the right of possession is immaterial.
Illustration: If two persons invade the house of a person the owner of the house is entitled forthwith to eject them by using reasonable force for the purpose. He is not bound to go to the police leaving them in the house. The right of private defense is a good defense not only accrues against any offence affecting the human body or property but also accrues when an attempt to commit offence takes place.
Right of private defense against the act of a person of unsound mind:
Section 98 lays down that for the purpose of exercising the right of private defense, physical or mental incapacity of the person against whom the right is exercised is no bar.
Circumstances when the right of Self-defense extends to cause death:
- Right of private defense of the body.
- Right of private defense of the property.
Right of Private Defense of Body:
Under Section 100 the right of private defense of the body extends, under the restrictions mentioned in Section 99, to the voluntarily causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be any of the descriptions hereinafter enumerated, namely:
(i) Apprehension of Death:
Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault. In this situation, the right of private defense can extend to cause the death of another person. Apprehension alone is enough. Apprehension of danger to body, though no actual harm is caused, gives a right of self-defence. (DB) PLD 1959 Pesh.
Right of defense of person and property is available in the case of Qatl-i-Ahmad, rather it is obligatory for a Muslim to avail of the right as a duty. Held, accused rightly acquitted. PLJ 1991 Cr.C. (Pesh.) 423.
(ii) Apprehension of Grievous Hurt:
Right of self-defense extends to the voluntary causing death if an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
The deceased abusing and giving stick blows giving apprehension of grievous injury to the accused. The accused gave a single knife blow. Held, the accused acted in the right of self-defence and was acquitted. 1972 P.Cr.LJ 1356
(iii) Intention of Committing Rape:
The right of private defense of the body extends to the voluntary causing of death to the assailant in case of assault with the intention of committing rape. Here it is necessary to understand the meaning of the word rape.
Rape at common law is unlawful sexual intercourse committed by a man with a woman not his wife through force and against her will.
Illustration: A attacks B with the intention to commit rape, in order to protect her dignity B had a right to kill A.
(iv) Intention of gratifying unnatural lust:
The right of private defense of the body extends to cause death of the assailant in case of an assault with the intention of gratifying unnatural lust. Gratifying unnatural lust is an offence that consists of committing sexual intercourse against the order of nature by a man with a man or in the same unnatural manner with a woman.
When the cycle of the accused snatched and attempt made to commit sodomy on him, he inflicted a knife blow and killed the deceased, held, the accused had complete right of private defence and was acquitted. 1994 SCMR 1087.
(v) Kidnapping or abducting:
An assault with the intention of kidnapping or abduction creates the right of private defense of the body which extends to cause the death of the assailant.
Kidnapping is the crime of seizing and taking away a person by force or fraud, often with a demand for ransom.
At common law, abduction is the crime of taking away a female person without her consent by use of persuasion, fraud, or violence, for the purpose of marriage, prostitution, or illicit sex. In case of fear of kidnapping or abduction, a person can cause the death of the assailant in the exercise of the right of private defense of the body.
(vi) Wrongfully confining a person:
The right of private defense of the body extends to the voluntary causing of death to the assailant in case of assault with the intention of wrongfully confining a person under circumstances that may reasonably cause him to apprehend that he will be unable to have recourse to the public authority for his release.
Wrongful confinement, which is a form of wrongful restraint, is the keeping of a Person within limits out of which he wishes to go and has a right to go.
Example: A causes B to go within a walled space, and locks B in. B is thus, prevented from proceeding in any direction beyond the circumscribing line of the wall. A wrongfully confines B. Before fulfilling such intention B can exercise his right of private defense which extends to A's death.
Right of Private Defense of Property:
Under Section 103 of the Pakistan Penal Code, the right of private defense of property extends, under the limitations mentioned in Section 99 to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right he an offence of any of the descriptions hereinafter enumerated, namely:
(i) Robbery:
In case of committing robbery or attempting to commit robbery, a person can exercise his right of private defense of property which can extend to the causing of death of the offender. Robbery is a special and aggravated form of either theft or extortion. Robbery means a felonious taking from the person of another or in his presence against his will, by violence or by putting him in fear
(ii) Housebreaking by Night:
In case of housebreaking by night a person can exercise his right of private defense of property extends to cause death of the house-breaker.
Whoever commits house-breaking after sunset and before sunrise, is said to commit housebreaking by night. The element of time turns the offence house breaking into ‘house-breaking by night’ the equivalent of the crime of burglary in English Law.
The accused not knowing at night whether the burglar was armed or did not exceed right of self-defence under clause (4) of section 103, PPC. by striking him three times and causing his death. Conviction under section 304, PPC set aside. ILR 6 Lah. 463. Ismail v.Crown. AIR 1926 Lah. 28
(iii) Mischief by Fire:
(iv) Theft, mischief, or house trespass:
The right of private defense of property .can extend to cause death in case of theft, mischief, or house trespass under such circumstances which may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defense is not exercised. Thief escaping with stolen goods chased. The thief fired with the pistol in the air and threatened the pursuit party. A single gunshot fired in return killed the thief. The right of private defence was not exceeded as the thief was armed with a pistol. 1971 P.Cr.LJ 956
A voluntarily burns a valuable security belonging to B intending to cause wrongful loss to B. A has committed mischief and B has a right to cause the death of A while committing such a mistake as a right of private defense.
Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit house-trespass. In all the aforementioned circumstances a person can exercise the right of private defense of property which extends to cause the death of the wrongdoer.
The right of self-defense is a Universal right:
The concept of self-defense is often considered a natural right, meaning it is an inherent right that all individuals possess simply by virtue of being human. The idea of self-defense as a natural right can be traced back to ancient Greek philosophy and has been discussed in various legal and moral contexts throughout history. Proponents of the natural rights theory argue that the right of self-defense is grounded in the innate human desire for self-preservation and that it is a fundamental aspect of human nature. In most countries, the right of self-defense is enshrined in law, which typically allows individuals to use reasonable force to protect themselves or others from harm.
The right to self-defense is recognized in many countries across the world. In the United States, for instance, the Second Amendment to the Constitution guarantees the right to bear arms for self-defense purposes. The provisions on self-defense vary by state, but many states have adopted some form of the Castle Doctrine, which allows individuals to use deadly force to protect themselves and their property in their own homes. In addition, many states have Stand Your Ground laws, which allow individuals to use deadly force in public places if they reasonably believe that they are in imminent danger of harm. The provisions on self-defense are typically outlined in the state's criminal code.
In the United Kingdom, self-defense is also recognized as a legal defense against criminal charges. The use of force must be necessary and proportionate to the danger faced, and the person using force must have a reasonable belief that they are in imminent danger of harm. Deadly force may only be used in very limited circumstances, such as in cases where a person reasonably believes that they or someone else is in immediate danger of death or serious bodily harm. However, the law in the UK places a greater emphasis on using non-violent means of self-defense where possible. In addition, the use of force in self-defense must be reasonable in the circumstances as the person perceived them to be. The provisions on self-defense are outlined in section 76 of the Criminal Justice and Immigration Act 2008.
In Canada, self-defense is also recognized as a legal defense against criminal charges. The provisions on self-defense are outlined in section 34 of the Criminal Code as "34 (1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself".
In Australia, self-defense is recognized as a legal defense against criminal charges. The provisions on self-defense are outlined in sections 418 to 421 of the Criminal Code Act 1995.
In India, the Indian Penal Code recognizes the right of self-defense under Sections 96 to 106. Section 96 states that every person has a right to defend their body and property against any offence that causes reasonable apprehension of death or grievous hurt, while Section 100 outlines the circumstances under which the use of force may cause death.
In Germany, self-defense is recognized as a legal defense against criminal charges. The provisions on self-defense are outlined in sections 32 and 33 of the German Criminal Code.
In France, self-defense is also recognized as a legal defense against criminal charges. The provisions on self-defense are outlined in Article 122-5 of the French Penal Code.
Leading Case Laws on self-defense
United Kingdom: R v. Bird (1985)
The appellant was at a party on her 17th birthday. Her ex-boyfriend, Darren Marder, turned up with his new girlfriend. A heated argument developed between the two and the appellant asked him to leave. He did so but later returned. A further argument occurred and the appellant poured a glass of Pernod over him. Marder slapped her and pinned her against a wall. The appellant punched him in the face and claimed that she had forgotten that she had a glass in her hand. The glass broke causing Marder to lose his eye. She was charged with wounding under s.20 of the Offences Against Person Act 1861. She argued she acted in self-defence. The trial judge directed the jury that in order to rely on self-defence, the defendant must demonstrate that she did not want to fight. The jury convicted her and she appealed contending that there was no obligation to demonstrate an unwillingness to fight.
United States: District of Columbia v. Heller (2008)
Case in which the U.S. Supreme Court on June 26, 2008, held (5–4) that the Second Amendment guarantees an individual right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home. It was the first Supreme Court case to explore the meaning of the Second Amendment since United States v. Miller (1939).
Canada: R. v. Lavallee (1990)
This case recognized the concept of "battered woman syndrome" and allowed expert testimony to support a claim of self-defense in cases where a woman had been abused by her partner.
Australia: Zecevic v. DPP (1987)
This case established the "reasonable person" test, which evaluates whether a person's actions in self-defense were reasonable according to what an ordinary person in the same circumstances would do.
Conclusion:
Overall, the right to self-defense is an essential element of individual liberty and security. It allows individuals to protect themselves and their property against harm or danger, and it ensures that they are not held liable for using force in situations where it is necessary and justified. The Law relating to self-defence has made the victim of such an assault the judge of his own peril and permitted him to repel the attack even to the taking of the life of his assailant, so the Courts are to judge him by placing themselves in the same position in which he was placed.
Important Exam Questions:
- What is Private Defence? What principles govern the right of Private Defence? when the right extends to causing Death?
- What is the right of Private Defence & to what extent it is available towards the body & Property?