1

General Exceptions (Sec 76-106)

Introduction:
The criminal law outlines different punishments for various crimes. But a person may not
always be punished for a crime that he/she has committed. The Pakistan Penal Code, 1860
recognizes defenses in chapter four under the heading ‘General Exceptions’. Sections 76 to
106 of the PPC cover these defenses. The law offers certain defenses that exculpate criminal
liability. These defenses are based on the premise that though the person committed the
offense, he cannot be held liable. This is because, at the time of the commission of the
offense, either the prevailing circumstances were such that the act of the person was
justified or his condition was such that he could not form the requisite mens rea for the
crime. The defenses are generally classified under two heads; justifiable and excusable.
Thus, for committing a wrong, a person must be responsible for doing a wrongful act
without having any justification or excuse for it.

• A justified act is a one which otherwise, under normal conditions, would have been
wrongful but the circumstances under which the act was committed make it tolerable and
acceptable. The person fulfills all the ingredients of the offence but his conduct is held to be
right under the circumstances.
• An excusable act is the one in which though the person has caused harm, it is held that a
person should be excused because he cannot be blamed for the act.

For example: If a person of unsound mind commits a crime, he cannot be held responsible
for being mentally sick. In case of an excusable defense, the actor is not punished as he lacks
the necessary mens rea for the offence either by reason of an honest mistake of fact,
infancy, insanity or intoxication. There must be a disability to cause the condition that
excuses the conduct. A conduct is punishable not because the person acted in that manner
but because he chose to act in that manner. Excusable defenses are invoked when one
cannot infer the bad character of a person from the act that he has committed.

The different defenses features in PPC and in what category they fall have been discussed
following;

Classification of general exceptions:

(1) Excusable Act – Excusable (2) Justified Act:
General Exceptions:
1. Mistake of fact (Section 76 and79) Judicial Act (Section 77 and 78)
2. Accident (Section 80) Necessity (Section 81)
3. Infancy (Section 82, 83) Consent (Section 87 – 89 and 92)
4. Insanity (Section 84) Duress (Section 94)
5. Intoxication (Section 85 – 86) Communication (Section 93)
6. Trifles (Section 95)
7. Private Defense (Section 96-106)
 2

(1) Excusable Act – Excusable General Exceptions:

a) Mistake of fact (section 76 and 79):
The two sections exclude a person from criminal liability when they are ignorant of the
existence of relevant facts or have mistaken them and commit a wrongful act for which he
neither could foresee nor intended the unlawful consequence. It is important that the
mistake must be reasonable and must pertain to the fact of the case and not the law. This is
derived from the legal maxim “ignorantia facti doth excusat, ignorantia juris non excusat”.

• According to Section 76 - A person believes that he is under a legal compulsion to do such

an act.
• According to Section 79 - A person acts because he thinks there is a legal justification for
the act he has committed.

Example in case of bound by law: A soldier firing on a mob under the lawful orders of his
superior – This is an act where the soldier is bound by law to do so.

Example in case of justified by law: An officer of court is supposed to arrest X but

accidentally arrests Z believing him to be X – this is a mistake of fact.

It is always to be kept in mind that mistake relating to the facts in various case laws should
be a mistake of fact, not a mistake of law. The mistake of law is never excusable in any court
of law because everyone is always expected to know the law of the land.

b) Accident (Section 80):

Nothing is an offence if it is committed;
1. By accident.
2. Without criminal intention or knowledge.
3. While doing a lawful act.
4. In a lawful manner.
5. By lawful means.
6. Where due care and caution is exercised.

Accident means an unintentional act or an unexpected act. It is something that happens out
of the ordinary course of things. It is necessary to prove that the act was done without any
criminal intention, with no mens rea. An act that was intended by or known to the doer
cannot be an accident. The act must be a lawful act, in a lawful manner by lawful means.
Proper care and caution must be exercised.

c) Infancy (Section 82 and 83):

According to Section 82 of PPC, nothing is an offence where;
• Act is done by a child.
• Under ten years of age.

There is Absolute incapacity for the crime under ten years of age. Presumption of law - Doli
Incapax i.e. a child has no discretion to distinguish right from wrong, thus criminal intention
does not arise.
 3

According to Section 83 of PPC, nothing is an offence where;

i) Act is done by a child between 10-14 years of age.
ii) Has no sufficient maturity of understanding.
iii) To judge the nature and consequences of his conduct is no offence.
iv) If proven to have sufficient maturity of understanding, liability arises.

d) Insanity (Section 84):

It includes act done;

i) Due to unsoundness of mind - no free will - born idiot, temporary failure, madman,
unconscious, intoxicated.
ii) Incapable of knowing the nature of the act, or that it is wrong or contrary to law.

The point to be emphasized on is that if a person is taking insanity as a defense, then he has
to prove legal insanity along with the medical insanity.

Tests:
i) At the time of commission of offence.
ii) State of mind before and after.
iii) Only organic or natural incapability, not uncontrollable impulses, weak intellect, or
eccentric behavior.

e) Intoxication (Section 85 and 86):

According to section 85 of the PPC, nothing is an offence which includes;
i) Act of a person.
ii) Incapable of judgment.
iii) Due to intoxication.
iv) Caused without his knowledge or against his will.

According to section 86 of the PPC;

i) Offence requiring a particular intent or knowledge.
ii) Committed by an intoxicated person.
iii) Presumption of knowledge, unless proves intoxicated without his knowledge or against
his will is never excusable in the court of law.

The major difference between section 85 and 86 is that in sec 85, a person is intoxicated
involuntarily and in sec 86, a person is intoxicated voluntarily. That’s why under sec 85,
defense is provided to the accused. In sec 86, and person is held guilty of the offence.

The correct test is whether by reason of drunkenness, the accused was incapable of forming
an intention of committing the offence.
 4

(1) Justified Act – Justified General Exceptions:

a) Judicial Act (Section 77):
Under Pakistan Penal Code, following General Exceptions have been provided in respect of
judicial acts;

(i) Act of Judge: An act is not an offence, which is done by a judge when he/she acts
judicially in exercise of any power which is given to him/her by law or which he/she believes
in good faith to be given to him/her by law.

(ii) Act Done Pursuant to Judgment or Order of Court: An act is not an offence, when
it is done in pursuance of judgment or order of a court of Justice or which is warranted by
judgment or order of a Court of Justice whilst such judgment or order remains in force.

b) Acts Justified By Law (Section 78):

An act is not an offence, when it is done by any person who is justified by law in doing it or
who, by reason of a mistake of fact and not by reason of a mistake of law, believes in good
faith himself/herself to be justified in doing it.

c) Necessity (Section 81):

An act is not an offence, which is though done with the knowledge that it is likely to cause
harm, yet it is done it is done without any criminal intention to cause harm, and in good
faith for purpose of preventing or avoiding other harm to person or property.

d) Consent (Section 87 - 89 and 92):

An act is not an offence, which is done with consent of victim or which is done for benefit of
a person of twelve years age or a person of unsound mind through his/her guardian’s
consent or which is done for benefit of a person without his/her consent.

e) Duress (Section 94):

Except murder and offences against State, which are punishable with death, an act is not
offence; which is done by a person due to those threats, which cause apprehension of
his/her death.

__________________________________
 5

Private Defense (Section 96-106)

Right of Private Defence:
Introduction:
Private defence has not been defined in PPC. In general sense private defence or commonly
known as “self defence” is “protection of one’s person or property against some injury
attempted by another”. In other words, it is an excuse for the use of force in resisting an
attack on the person, and especially for killing an assailant. The right to private defence is
not to be exercised for vengeance. It ought to be exercised in good faith. Under the PPC,
Sections 96 to 106 deal with provisions of private defence of person and property.

A man by law is authorized to use necessary force for protecting his body or his property
and another’s person as well as property against the wrong-doer when immediate help from
the state machinery is not available. Self-help is one of the fundamentals of criminal law and
it is necessary for the protection of life, liberty and property. Although it is the duty of the
State to protect the individuals but there may be situations that aid from the State
authorities cannot be obtained. To meet such exigencies provisions of self defence have
been made.

Why self defence is important?

Self-preservation is the chief character of every human being. Every person has a right to
defend his body and property. Such kind of instinct can be seen in animals even.

Statutory Provisions:
a) Section 96 clearly states that anything done in the exercise of the right of private
defence is not an offence.
• Essential ingredients:
i) Who is aggressor?
ii) Who started the fight?
iii) Injuries sustained from aggressor.
iv) Degree of violence used against aggressor as self-defense.

b) As per section 97, each one of us has a right to defend one’s body as well as the body
of other person. Similarly, we do have a right to protect our property (including movable
and immovable) and other person property against any act which amounts to theft,
robbery, mischief and criminal trespass or any attempt to commit the aforementioned
offences.

c) As per section 98, any act done which otherwise amounts to an offence shall be no
offence if done in state of intoxication, unsoundness of mind, wants of maturity,
misconception and infancy.

d) As per section 99, enlists certain circumstances against which no right of self defence is
available. Any act done by a public servant or on the direction of a public servant in good
faith not giving rise to reasonable apprehension of death or grievous hurt and where
 6

reasonable time exist to resort to the protection of public authorities have been exempted
from self-defence. However, this right extends to a person having no reason to believe that
the person doing the act is a public servant. Where any act is done in the direction of a
public servant, unless the person has reason to believe that he is acting under the authority
of a public servant retains the right to self-defence.

e) As per section 100, Proportionality rule and necessity rule govern the use of force for
self-defence. However, there are seven exceptions to the general rule where the force used
against the wrong doer could extend to resulting his death.
i) Reasonable apprehension of death.
ii) Reasonable apprehension of grievous hurt.
iii) Assault with the intention of committing rape.
iv) Assault with the intention of gratifying unnatural lust.
v) Assault with the intention of kidnapping.
vi) Assault with the intention of wrongful confinement which gives the person a reasonable
apprehension that he will be unable to take assistance of public authorities.

• Ingredients:
To invoke section 100 of PPC, four conditions must exist;
i) Firstly, that the person exercising the right of private defence must be free from fault in
bringing about the encounter;
ii) Secondly, there must be present an impending peril to life or of great bodily harm,
either real or so apparent as to create an honest belief of exceeding (great) necessity;
iii) Thirdly, there must be no safe or reasonable mode of escape by retreat; and
iv) Fourthly, there must have been a necessity for taking the life.

f) As per section 102, the right of private defence commences and continues as long as
danger to the 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 consequence thereupon an
apprehension of danger, but it should not be a mere idle threat. There must be reasonable
ground for the apprehension.

g) As per section 104, will apply if the wrong doers commit or attempt to commit any of
the following offences; (1) theft, (2) mischief or trespass not of the description which is
covered under section 103, subject of course to restrictions mentioned in section 99; and in
such a case the right of private defence of property would extend only to causing harm
other than death to him. This section limits the right of private defence, causing of any harm
other than death.

h) As per section 105, like section 102, fixes the time when the right to private defence of
property commences and when it comes to an end. The right of defence of property
commences as soon as a reasonable apprehension of danger to the property commences.
The continuance depends upon the nature of the offence. In cases of theft it continues until
the offender has effected his retreat with the property, or the assistance of public
authorities is obtained, or the property has been recovered. In cases of robbery it continues
as long as the offender causes or attempts to cause any person death or hurt, or as long as
 7

instant personal restraint continues. In cases of criminal trespass or mischief the right
continues so long as the offender continues in the commission of criminal trespass or
mischief.

i) As per section 106, provides that whenever an apprehension of death exists and the
person is so situated that he cannot effectively exercise the right of private defence without
the possibility of doing harm to an innocent person, he may take the risk of such harm
resulting. For instance, as given in the illustration appended to the section, if A is attacked
by a mob intending to murder him and he cannot effectively exercise his right of private
defence without firing on the mob, and he cannot fire without the risk of harming young
children who have mingled with the mob, he commits no offence if by so firing, he injures
any one of the children. A had no option under the circumstances of the case for protecting
himself except to fire at the mob and so his action is justified.
--------------------------------------------------