Self-defence is defined in Black’s Law Dictionary as “a use of force to protect oneself, one’s family or one’s property from a real or threatened attack”. Section 96 of the Pakistan Penal Code (PPC) states that nothing is an offence which is done in the exercise of the right of private defence.
Burden of Proof
It is a well-established principle of law that the onus of proof lies on the prosecution in criminal cases. However, an exception is made to this general rule when an accused takes the plea of insanity, alibi or self-defence. It means that the accused himself will have to prove that he acted in self-defence and the burden of proof is relieved from the prosecution.
In Muhammad Dilbar alias Muhammad Boota vs. The State (2002 SCMR 1425), it was held that when a specific plea of right of self-defence is raised, the onus to prove such a plea lies upon the party claiming the same.
Rule of Proportionality
The rule of proportionality is a basic principle of law which states that the punishment must fit the crime. Reaction to the crime must not be more intense than the crime itself. The rule of proportionality is laid down in section 99 of PPC as ‘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’.
However, the rule of proportionality is somewhat relaxed in the case of self-defence through a number of precedents. In a landmark judgement of Mashal Khan vs. The State (1988 PLD 25 Supreme Court), the Supreme Court declared that in such a state of panic when the right of self-defence is being exercised, the action on the part of the person cannot be measured in golden scales, and this principle has been reiterated by this court on numerous occasions.
Essential Conditions for Self-Defence
One cannot exercise the right of self-defence arbitrarily. Courts from time to time have laid down the conditions necessary to exercise the right of private defence. In Mushtaq Hussain vs The State (2011 SCMR 45), the Supreme Court ordained the following conditions to be met for the lawful exercising of the right of self-defence:
- The accused was not responsible or at fault or on account of his act the occurrence took place.
- He/she honestly believed that his/her life was in immediate danger.
- He/she also believed that there was no reasonable cause available to escape or avoid the necessity.
- He/her had no intention to cause more harm than necessary for the purpose.
Right of Private Defence of Body
The right of private defence of the body is given in sections 100 and 101 of the Pakistan Penal Code (PPC). Section 100 deals with the right of private defence and extends to causing the death of the assailant if the offence apprehended is of the following descriptions:
- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
- An assault with the intention of committing rape;
- An assault with the intention of gratifying unnatural lust;
- An assault with the intention of kidnapping or abduction;
- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
In addition to this, if the offence is not of any description mentioned in section 100, then the right of self-defence does not extend to causing voluntary death to the assailant. Whether the right of self-defence extends to causing death or not is a question of fact and is adjudged on the facts and circumstances of the case in the light of the judgements of the higher courts.
Right of Private Defence of Property
The right of private defence of property is discussed in sections 103 and 104 of PPC. It extends to causing the death of the offender if the imminent offence has the following descriptions:
- House-breaking by night;
- 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;
- 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.
If the circumstances are not of the nature mentioned above, then one cannot exercise the right of self-defence up to causing the death of the wrong-doer.
Limitations on Self-Defence
The right of self-defence is not absolute. It is subject to certain limitations laid down by law. There are certain instances in which one cannot exercise the right of private defence, such as:
- When there is time to have recourse to public authorities.
- When an act does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of a public servant.
In the Mst. Shaheen Zari case (2022 YLR 1901 Peshawar High Court), the husband of the appellant had gone to Mingora to repair the vehicle. At night time, when the appellant was asleep with her children, at 3:00 hours someone opened the door of the room, so she woke up and saw that an unknown person had entered her room. She picked up her husband’s pistol and fired at the unknown person due to which he died.
The court remarked that the very act of surreptitious entry by a stranger armed with a pistol at night time into the room of a young lady, and his murder by her in the exercise of her right of private defence is not only believable but the same is also inferrable from the attending circumstances of the case because she had no other option at that critical situation but to fire at the intruder. It was held by the honorable court that the conviction and sentence be set aside and hence she was acquitted of the charge levelled against her by the prosecution.
In a nutshell, the law of self-defence in Pakistan provides people with the legal right to protect themselves, their property and the property of others from harm. However, this right is not absolute and is subject to certain conditions. The law of self-defence continues to evolve in Pakistan as new precedents are being set by the judiciary.
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