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Old Wednesday, June 25, 2014
imran bakht imran bakht is offline
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+++++++ RIGHT OF PRIVATE DEFENCE +++++++++:
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Subject to, certain limitations the law gives a right to every
person to defend his body or property, or the body or
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 and person is called the
right of private defence.
RIGHT OF PRIVATE DEFENCE OF BODY :
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Section 97 lays down that every person has a right, subject
to the restrictions contained ih Section 99, to defend his
own body and the body of any other person, against any
offence affecting the human body. Section 102 of the Code
provides that the right of private defence of the body
commences as soon as a reasonable apprehension of
danger to the body arises from an attempt or threat to
commit the offence the offence though, the offence may not
have been committed; and it commences as long as such
apprehension of danger to the body continues. It is clear
from the wording of the section that the right commences
and continues as long as danger to body lasts. The extent
to which the exercise of the right will be justified will
depend not on the actual danger but on whether there was
reasonable apprehension of such danger. There must be an
attempt or threat, and consequent thereon an apprehension
of danger, but it should not be a mere idle threat. There
must be reasonable ground for the apprehension.
The right of private defence of the body extends to the
voluntary causing of death or of any other harm to the
assailant if the offence occasioning the exercise of the right
be of any of the following descriptions, viz.,
(i) an assault" causing reasonable apprehension of death-
even injury to innocent persons in private defence against
an assault is excusable,
(ii) assault causing reasonable apprehension of grievous
hurt;.
(iii) assault with the intention of committing rape, gratifying
unnatural lust, kidnapping or abducting or wrongfully
confining a person causing reasonable apprehension that he
will not be able to have recourse to the public authorities for
his release.
For the purpose of exercising the right of private defence
physical or mental incapacity of the person against whom
the right is exercised is no bar.There is, however, no right
of private defence:
(1) 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 or by the direction
of a public servant acting in good faith under colour of his
office though that direction may not be strictly justifiable by
law;
(2) in cases in which there is time to have recourse to the
protection of the public authorities ;
(3) nor does the right of private defence extend to the
inflicting of more harm than it is necessary to inflict for the
purpose of defence. (S. 99).The measure of defence must
bear proportion to the quantum of force used by the attacker
and which it is necessary to repeL Thus where the accused
who was attacked by another with a Kirpan succeeded in
disarming his opponent by taking away hls weapon and
showered blows after blows including the serious ones on
the chest, it was held that he must be held to have exceeded
the right of self defence and was guilty under section 304,
part 1 of pakistan penal code.
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
private defence in return. The right is not available in
respect of anticipated action. Defensive action is justified
only when positive overt act of damage or harm is set in
motion. The law does not confer a right of self-defence on a
man who goes and seeks an attack on himself by his own
threatened attack on another' -an'attack which was likely to
end in the death of the other.The right of self-defence
conferred- by the law or Preserved by the law for an
individual is a very narrow and circumscribed right and can
be taken advantage of only when the circumstances fully
justify the exercise of such a right.
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