Right of private defence.
Section 100 of the Pakistan Penal Code provides the instances when homicide is justifiable in exercise of right or private defence. This section provides, inter alia, that right of private defence of the body extends, under the restrictions mentioned in s. 99, to the voluntary causing of death if the offence which occasions the exercise the right be an assault as may reasonable cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault. An assault with the intention of committing rape, or gratifying unnatural lust, or kidnapping or abduction or confinement of person is included to be the instances allowing the victim defending himself by causing death of the assailant.
Accused must have a right of private defence:
Before bringing the case of an accused u/s. 100 it is necessary that accused should have right to private defence of person or property. Unless there is a finding of the Court that the accused had such a right, and in the exercise of it he could cause harm or hurt to the other person against whom he is exercising the right of defence, without premeditation the question of exceeding such a right does not arise.
Voluntary causing of death;
Subject to the restriction imposed in s. 99, the right of self-defence would be available where a person is under a reasonable apprehension that his life is in danger or his body in risk of grievous hurt. Law authorizes him to inflict even death upon his assailant either when the assailant is attempted or directly threatened, but the apprehension must be reasonable and the violence inflicted must not be greater than is reasonably necessary for the purpose of self-defence. It must be proportionate to and commensurate with quality and character of the act which is intended to meet and what is done in excess is not protected .
Reasonable apprehension of grievous hurt.
Second clause talks of assault as to reasonably apprehend grievous hurt. Section 100 contemplate not only assault as may reasonable cause apprehension that death will otherwise be consequence but also the grievous hurt will otherwise be consequence of such assault. Where sticks, clubs etc are used apprehension of grievous hurt is very often.
Assault with intention to commit rape.
The third contemplates an assault of intentional commission of rape. The right of private defence of body extends to the voluntary causing of death under this clause if the offence which occasions the exercise of the right is an assault with the intention of committing rape. Right to defend the honor to the extent of even killing the aggressor if need be there, is not only available to the aggrieved lady but also her husband, mahram or the person in whose lawful custody she is residing. However, in order to bring the case under this clause it is, however, necessary to show that the woman was in a real danger of being raped.
Intention of gratifying unnatural lust.
Clause four contemplates an assault with the intention of gratifying unnatural lust. Right of private defence in case where sodomist attempts to commit sodomy extends to causing of death. Accused a boy of 15 alleging to have killed deceased in self defence against deceased’s attempt to commit sodomy. Absence of direct or indirect evidence burden of establishing right of self defence in such circumstances cannot be as heavy as burden resting on prosecution. Excess, if any, committed by accused liable to be condoned.
Intention of kidnapping or abduction.
Clause fifthly of this section embraces assault intending to kidnap or abduct. This Clause has made available right of self defence in the case “an assault with attention of kidnapping or abduction”. For invoking this clause the act complained must be an offence punishable under the Penal Code. Where father of the accused objected to his living with another man and tried to bring him back to his own house, but the son resisted and the shot his father dead, it was held that the act of deceased in compelling his son to go with him does not amount to an offence punishable under the Penal Code.
Intention of causing wrongful confinement.
Clause sixthly of s. 100 of the code lays down that an assault with the intention of wrongfully confining a person gives the person sought to be wrongfully confine the right to voluntarily cause the death of the assailant if the circumstances make him reasonable apprehend that he would not have the opportunity to recourse to the public authorities for his release.
Where the accused, who was wrongfully confined in a room, fired his gun through the window and killed a person he could not claim right of private defence under this clause as there was no assault upon him at the time he fired his gun.
Right of private defence of property when extend to cause death.
Section 103 of the Code enacts that in the exercise of the right of private defence of property, a person may voluntarily cause any harm extending even to death in certain specified cases, namely, robbery, house-breaking by right or mischief by fire committed on any building, tent or vessel or an offence of theft, mischief or house-trespass under such circumstances as may reasonable cause an apprehension that death or grievous hurt will be the consequence.
Robbery by violence may be resisted by violence sufficient to overcome the force employed by the attacker and if in exercise of that right, death is caused it may be justified if the right is reasonably and properly asserted in defence of property. The causing of death in repelling the attackers was held justified in exercise of the right of private defence of the property of the accused. Where complainant party trying to cut and carry away crops on accused’s land and hitting with iron rods accused’s sister and daughter. The measure of self-defence must, always be relevant and proportionate to he quantum of force used by the robbers and necessary to repel it.
House breaking by Night:
The inmates of a house have the right, in the exercise of right of private defence of property, of causing even the death of offender who commits burglary or house breaking. But this right is subject to provisions of s. 99 which lay down very clearly that 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. Where the owner of a house had the thief at his mercy as he was coming out of a hole in the wall, it was not necessary for hiom to beat him to death. He exceeded the right of private defence of property.
Theft, Mischief or house trespass:
The provision of 103 fourthly of the PPC relates to the right of private defence of property extending to the causing of death against house trespass, under the circumstances as may be reasonable cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
Where there is no indication that the trespasser showed any fight or even a semblance of fight, the right of private defence would be governed by s. 104 and not by clause “fourthly” of this section and would not extend to the causing of death of the trespasser.
Where the accused found a burglar in his house at midnight and during the scuffle between him and the burglar, the accused gave the burglar three strokes of lathi as a result of which the latter died, it was held that the accused did not exceed his right of private defence as he had every reason to suppose that burglar was committing theft and that if he met him, the burglar would presumable strike him.