Answer
Plea of Compulsion or Necessity:
The excuse of necessity or compulsion as a defence for an act cannot be pleaded except as provided in Section 94 of Pakistan Penal Code. That section lays down that except murder and offences against the State punishable with death, nothing is an offence, which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence. Provided the person doing the act did not, of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. This section will not. However, save a person who, of his own accord or by reason of a threat of being beaten, joins a gang of dacoits. But if he is seized by a gang of dacoits and forced by threat of instant death to do a thing which is an offence by law, for example, a smith compelled to take his tools and to force the door or a house for the dacoits to enter and plunder it under pain of instant death, will be entitled to the benefit of this section.
It is thus clear from the above that a person is excused from the consequences of any act, except murder and offences against the State punishable with death; done under fear of instant death but fear of hurt or even of grievous hurt is not a sufficient justification. It has been held that the accused was not entitled to the protection of Section 94 of the Code in the case where the threat of instant death was present at the beginning or even some time afterwards but did not continue till the end of the commission of an offence. There must be the apprehension of force upon the person and fear of death, and this force and fear must continue to be present at the time of the act.
Mistake of Fact and Mistake of Law:
The above proposition is based on the maxim ignoratiafacti excusal; ignorant juries no’s excusal; that is, ignorance of the fact excuses; ignorance of law does not excuse. Everybody is presumed to know the law of the land and it would be extremely difficult to administer the law if it were open for an accused to up the plea that he was ignorant of the fact that the act was prohibited and punishable. In criminal law, therefore, mistake of act is a good excuse unless that mistake of slip is due to design, arrangement or preconcert or be the result of carelessness and negligence.
According to S. 76 of P.P.C. According to Section 76 of the Pakistan Penal Code, 1860 nothing is an offence which is done by a person who is or who by reason of a mistake of, fact and not reason of a mistake of -law in good faith believes himself to be bound by law to do it. Thus from the above it is evident that mistake of fact is a good defence.
Example:
A, solider fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offence.
A, an officer of a Court of Justice, being ordered by the Court to arrest Y and after due, enquiry believing Z to be Y arrests Z, A has committed no offence as it is a mistake of fact. However, it could be no defence if the circumstances showed that A had intentionally arrested although he knew that he was not Y.
Again S. 79 of the Code provides that nothing is an offence which is done by any person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.
Explanation:
Ss. 76 and 79 of the Pakistan Penal Code embody the above proposition of law. The former section provides that nothing is an offence which is done by a person who is, or who, by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to, do it. Thus if A, a soldier, fires on a mob, by the order of his superior officer, in conformity with the commands of the law he has committed no offence.
The act should, however, not be done in obedience to an unlawful order of one’s superior. In the same way if A, an officer of a Court of Justice, being ordered by that Court to arrest Y, and after due inquiry, believing Z to be Y, arrests Z, he has committed no offence.
The latter section viz., S. 79, provides that nothing is an offence which is done by any person who is justified by law, or who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself to be justified by law, in doing it. A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his judgment, exerted in good faith, of the power which the law gives to all persons apprehending murderers in the act, seizes in order to bring before the proper authorities. A has committed an offence, though it may turn out that Z was acting in self-defence. Again, where the chowkidar in good faith took a person to be a thief and arrested him, the benefit of Ss. 76 and 79 of the Pakistan Penal Code was allowed. Under both the sections the party caused must allege that he believed in good faith that he was bound by law to do as he did or that being empowered by law to act in the matter, he acted to the best of his judgment in good faith.
The word “law” in the above proposition means the general law of the land and not the foreign law. The rule however, applies equally to bye-laws, rules and regulations having the force of law as well, every person of the age discretion and condos mentis is presumed to know the law. Thus if an accused accompanying the bailiff for pointing out property of the judgment-debtor gave the door a push with the result that the wife of the judgnent-debtOr fell down UIICOflSCjOU5, it has been held that an offence under Section 352 (assault or criminal force), was committed for the bailiff, and not the accused was entitled to push the door. There is also an English case where two Frenchmen were charged with willful murder because they had acted as seconds in a duel in which one man had met his death. They alleged that they did not know that killing an adversary in a fair duel amounted to murder in England. Their plea was, however, negative. This case establishes that even the ignorance of law by a foreigner is not excusable.