Qanun-e-Shahadat Order, 1984…………………………………..

Prepared By : Asim Khan

What is Burden of proof, on whom it lies in Civil and Criminal Procedure.

Explain?

ANSWER:

SYNOPSIS

1. Introduction
2. Meaning
3. Definition
4. Relevant provision
5. General rule
6. Doctrine of basis
7. On whom burden lies
8. Shifting of burden of proof
9. Objection to mode of proof
10. Rebuttable presumption
11. Exception to general rule
12. Onus of proof in criminal cases
13. Burden of proof in civil cases
14. How burden is discharged
15. Conclusion.

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

1. Introduction:

In our adversarial system of law a party, whether in civil or criminal proceedings must do
two things in order to succeed against its opponent:-

 It must adduce sufficient evidence in order to satisfy the Court of law; and
 It must be done in such a way which ultimately convinces the Court, to the
extent required.

It is a general principle of law that any person who comes to the court and seeks its judgment
dependent upon existence of the fact, then he has to prove those facts. In other words he who has
sue must prove the same.

Burden of Proof is a subject of rebuttable presumptions. In judicial proceedings, the phrase

“ has two meanings”:-

 As a matter of law it remains constant; and

 As a matter of pleadings, it shifts as the case proceeds.

Illustration:

A desires a Court to give judgment that B should be punished for a crime which

A says B has committed. A must prove that B has committed the crime.

2. Meaning of Burden of Proof:

 The burden of proof as a matter of law and providing, the burden, as it has been called of
establishing a case whether by preponderance of evidence or beyond reasonable doubt
and
 The burden of proof in the sense of introducing evidence.

Article 117 to 129 of the Qanun-e-Shahadat Order, 1984.

Burden of Proof has two fold meanings:-

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

 it means something that a party is required to prove an allegation before

judgment may be given in his favour. This meaning is considered for establishing a
case.
 it means that on a contested issue, one of the two contending parties has to introduce
evidence. The burden of proof in this sense is always unstable and may shift constantly
through the trial.
3. Definition of Burden of proof:

A person who claims a remedy by him in the court under an obligation/ responsibility to prove
the existence of those facts. This obligation in the eye of law, is termed as burden of proof. When
a person is bound to prove contents the existence of fact it is said that burden of proof lies on that
person.

Illustration:

A desires a Court to give judgment that B should be punished for a crime which

A says B has committed. A must prove that B has committed the crime.

4. Relevant Provision:

Articles 117 to 129 of Qanun-e-Shahadat Order, 1984, deals with the subject of Burden of proof.

 Burden of Proof (Article 117 - 118 of Q.S.O, 1984):

 Shifting of Burden of Proof (Article 119 - 121 of Q.S.O, 1984):
 Presumptions (Article 122 - 129 of Q.S.O, 1984):
 Burden of Proof (Article 117 of Q.S.O, 1984):
 On whom Burden of Proof lies (Article 118 of Q.S.O, 1984):
 Burden of Proof as to Particular Fact (Article 119 of Q.S.O, 1984):
 Burden of Proving Fact to be Proved to make evidence admissible (Article 120 of
Q.S.O, 1984):
 Burden of Proving that case of accused comes within exceptions (Article 121 of Q.S.O,
1984):
 Burden of Proving Fact especially within Knowledge (Article 122 of Q.S.O, 1984):
 Burden of Proving death of person known of have been alive within thirty years (Article

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

123 of Q.S.O, 1984):

 Burden of Proving that Person is alive who has not been heard of for seven
years (Article 124 of Q.S.O, 1984):
 Burden of Proof as to relationship in the cases of Partners, Landlord and Tenant,
Principal and Agent (Article 125 of Q.S.O, 1984):
 Burden of Proof as to Ownership (Article 126 of Q.S.O, 1984):
 Proof of good faith in transactions where one party is in relation of active confidence
(Article 127 of Q.S.O, 1984):
 Birth during marriage conclusive proof of legitimacy (Article 128 of Q.S.O, 1984):
 Court may presume existence of certain acts (Article 129 of Q.S.O, 1984):
5. General Rule:

It is a settled and fundamental principle of law of evidence that whosoever alleges existence of a
particular fact must prove the same.

Quantum of evidence is not of paramount (means principal) importance. It is quality of

evidence, which matters in order to discharge the burden of accused. This principle is applied
both on prosecution as well as on accused. If prosecution is not able to discharge burden of
providing guilt against accused, then accused cannot be convicted even if he also fails to prove
any exception claimed by him.

6. Basis of Burden of Proof:

The rule is based on the following maxim.

“Incumbit probation Qui Dicit noqui Negate.”

Burden of Proof must lie on those persons who asserts not on him who denies.

7. On whom burden lies:

The burden of proof of any fact or issue lies on that person who claims certain rights based on
the said facts in issue and he is willing to have verdict of the courts.

Leading case regarding burden of proof:

Nooruddin Ahmed Vs Abdul Waheed PLD 1997 Kar 6.

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

Held: “Whoever alleges existence of a particular fact must prove the same.”

8. Shifting of burden of proof:

Onus of proof initially shown on a party can be shifted from one party to another party during the
pendency of proceeding of a case.

9. Objection to mode of proof:

Objection to mode of proving of the fact or a document should be taken at the earliest stage.

( PLD 1986 SC 120)

10. Rebuttable presumption:

The rules of burden of proof are in fact the statement of rebuttable presumptions.

11. Exceptions to the general rule:

Asserting the Affirmative:

In the following two cases burden of proof will shift from the affirmatively party to the
opponent.

i. Under Article 118 and 119:

Burden of proof may be shifted under these articles not only by rebuttable presumption of
law but by presumption of fact of the stranger kind or indeed by any species of evidence
to raise a prima facie case.
ii. Article 121:
When he pleads his case falling within general exception of Pakistan Penal Code.
12. ONUS OF PROOF IN CRIMINAL CASES:

A criminal case is a “proceeding” within the meaning of Article 118 of Qanun-e-Shahadat

Order, 1984, and the burden of proof in such a proceeding lies on the prosecution.

1) Elementary principle of criminal law:

The elementary principle in criminal law, that in all cases the burden of proof lies upon
the prosecution to bring guilt to the accused, does not admit of any exception.
Relevant case law.

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

Ahibaran Singh Vs State 1953 A. 493.

2) Generally:
In criminal cases, unless otherwise directed by statute the presumption of innocence of
the accused casts on the prosecution the burden of proving may ingredient of the offence.
Relevant case law.
Shahzad Khan Vs E. 1933, 515.

3) Jurisprudentially principles regarding burden of proof in criminal cases:

Following these fundamental principles of criminal jurisprudence are well settled
regarding the question of burden of proof.

Cardinal principles:
i. The burden lies affirmatively on the prosecution to prove its case beyond
reasonable doubt.
ii. The accused must be presumed to be innocent unless proved to the contrary.
iii. The burden of prosecution never shifts.
iv. The burden of proof lies upon him who asserts and not upon him who denies.
v. In criminal cases burden of proof never shifts and it lies on the prosecution to
prove, by relevant evidence and beyond reasonable doubt the guilt of the accused.

13. BURDEN OF PROOF IN CIVIL CASES:

In civil cases the burden of proof continues to shift. It is the plaintiff himself at first upon whom
the burden of proof lies. If he discharges that burden and establishes his case, the burden of proof
shifts on the defendant to prove the circumstances ( if any) which would disentitle the plaintiff.
This shifting continues till the final evidence is established.

Test:

In order to have right application of the rule, following test under Article 118 is usually applied.

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 Qanun-e-Shahadat Order, 1984…………………………………..Prepared By : Asim Khan

Which party would accused if no evidence would be given from either side. In order to check
on whether the burden of proof lies, it has to be considered, which party would succeed if no
evidence would be given on either side. In such a case, the burden of proof would be on the
failing party.

14. How burden is discharged?

It may be discharged:

i. Either by affirmatively establishing the plea taken by the accused or,

ii. By highlighting such circumstances which would create a doubt in court’s mind about
the guilt of the accused.

It is necessary for each party to discharge a burden of proof which rests upon it, in order to
have verdict in his favour.

15. CONCLUSION:

Thus I conclude party to litigation whether in Civil or Criminal in order to bring the
judgment of court in his favour must prove its case i.e., burden of proof. In civil cases,
burden of proof keeps on shifting, while in criminal case generally burden of proof never
shifts.

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