Q. Explain Private Defence of Property and when does it extend to causing death of assailant?.
1. INTRODUCTION.
The law gives a right to every person to defend his property, or the property of another person against unlawful aggression. He may protect his right by his own force or prevent it from being violated. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. This use of force to protect one’s property is called the right of private defence.
2. RELEVANT PROVISION.
Section, 97, 99, 103, 104 and 105 of Pakistan Penal Code deal the term right of private defence of property.
3. MEANING OF SELF DEFENCE.
“A defence of oneself, one’s right or position”.
4. DEFINITION OF SELF DEFENCE.
According to Black’s Law Dictionary.
“The use of force to protect ones self, ones family or ones property from a real or threatened attack”.
5. NATURE OF THE ACT.
The right of private defence is always against an act which is an offence, and thus the person who commits the forbidden act cannot in return claim the right of self defence. The right of private defence must be carried out to prevent harm.
6. FORCE TO BE USED.
There must be a reasonable apprehension of hurt but the right of private defence in no case extends to causing more harm than is necessary to inflict for the purpose of defence. The force which is used should be only that much in quantity which is necessary to avert the danger or to secure safety.
7. AGAINST WHOM RIGHT OF PRIVATE DEFENCE ARISES.
The right of defence arises against a man who either attacks or acts in such a way as to cause an imminent apprehension that he would attack and cause injury.
8. CHARACTERISTIC OF SELF DEFENCE.
Following are the characteristics of self defence.
(i). The law does not require that the person attacked weigh in golden scales the maximum force which should be inflicted in return.
(ii). Person is entitled to secure his victory as long as the contest continues.
(iii). Not actual continuing (apprehension) but rather a reasonable apprehension of such danger.
(iv). It is pertinent to keep I mind that where there was sufficient time to take recourse to public authorities, person cannot exercise his right of self defence.
(v). The exercise of this right, whether it was legal or not is collectively inferred from the circumstances of the individual cases.
9. RIGHT OF PRIVATE DEFENCE AGAINST THE PERSON OF UNSOUND MIND, ETC.
Under an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of misconception on part of that act, or by reason of misconception on part of that person, every person has right of private defence against that act which he would have if the act were the offence.
10. RIGHT OF PRIVATE DEFENCE UNDER SECTION 96.
Thus 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. The right of private defence does not give rise to any right of private defence in return. It means an aggressor cannot claim right of self-defence.
11. CLASSIFICATION OF RIGHT OF PRIVATE DEFENCE UNDER SECTION 97.
Private defence may be classified into two classes as follows;
(I). Private of Defence of Body Under Sections 100, 101 & 102.
(i). Defence of one’s own body.
(ii). Defence of any other person.
(II). Private of Defence of Property Under Section 103, 104 & 105.
(i). Defence of one’s own property.
(ii). Defence of any other person’s property.
12. PRIVATE DEFENCE OF PROPERTY.
The right of private defence of property also comes into operation when certain specified offences against property are committed or are attempted to be committed. This right commences, when a reasonable apprehension of danger to the property commences.
13. CONDITION PRECEDENT TO AVAIL SUCH EXCEPTION.
The right of private defence of property can only exist, in favour of the person who possesses a clear title to that property. There must be the presence of title and possession to property to exercise right of private defence of property.
14. CASES WHEN DEATH MAY BE CAUSED IN EXERCISE OF RIGHT OF PRIVATE DEFENCE OF PROPERTY UNDER SECTION 103.
Section 103 gives a person a right to cause voluntarily the death of a person who infringes, threatens to commit an offence or commits an offence which falls under the categories enumerated by this section. Following are the cases where the death of a person may be caused in defence of property.
(i). Robbery;
(ii). House breaking by night;
(iii). Mischief by fire committed to any building etc.
(iv). Theft, mischief or house-trespass where death or grievous may be apprehended.
15. CASES WHEN ANY HARM OTHER THAN DEATH MAY BE CAUSED IN EXERCISE OF RIGHT OF PRIVATE DEFENCE OF PROPERTY UNDER SECTION 104.
Section 104 puts restriction on the right of defence of property and says that no one cause death of a person on the plea of private defence of property if the offence committed or threatened to be committed with respect to such property is not one which is given in Section 103, as such any harm other than death may be caused to such wrongdoer.
(i). Extent of Harm.
The harm which is intended in Section 104 should be off such a nature as may be helpful in defending the property and not any other kind of harm.
The exercise of right of private defence of property is itself subject to restrictions mentioned in Section 99, which prescribes 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.
(ii). Exceeding the Right of Private Defence.
If the court comes to the conclusion that what an accused person intended to do, could not be considered to be an act done for the prevention of harm, it cannot hold it to be a case of committing the offence which was committed by reason of the act done.
16. COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFENCE OF PROPERTY UNDER SECTION 105.
The right of private defence of property commences a reasonable apprehension of danger to the property begins. Where the danger to property has come to an end by the arrest of the offender, the right of private defence of property ceases forthwith. Now we see the commencement and continuance of right of private defence of property against different offences as given in Section 105.
(i). Theft.
The right of private defence of property against a thief till the offender has affected his retreat with the property and once this has happened the right cases to exist. If the thief has reached a place of safety along with the stolen property and is completely out of the reach of the owner, then he will be taken to have, affected his retreat with the property.
(ii). Trespass.
The right of private defence of property continues only so long as the trespassers remain on that property and when they have made their exit from it, the right is extinguished.
(iii). Robbery.
The right of private defence of property against robbery so long as the offender causes; or attempts to cause death, hurt or wrongful restrain or till the fear of the same continues.
17.BURDEN OF PROVE.
CASE LAW.
2001 SCMR 51.
Burden would shift upon the person taking plea of self-defence to prove the same.
18. CONCLUSION.
The pith and marrow of all the previous discussion there is no iota untruth shows that the right of self defence of property is available in Pakistan Penal Code so that one might use as much force as is necessary to save one’s property. The law gives a right to every person to defend his property, or the property of another person against unlawful aggression. He may protect his right by his own force or prevent it from being violated. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. This use of force to protect one’s property is called the right of private defence.
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