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Burden of Proof


General principles:

Art. 117, of Q.S.O 1984 lays down general principle 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 asserts must prove the same. It is settled and fundamental principle of law of evidence that whosoever alleges the existence of a particular fact must prove same.

PLD 1997 Kar. 6. Nooruddin V. Abdul Waheed.

Anyone, who claims a certain right in his favour against other, burden of proving the same would be on him as to prove that claim.

200 PLC 172: District Manager, S.R.T.C Badin District V. Ghulain Muhammad.

Where a party to suit raises a plea of fact onus to prove that fact is on the party raising the plea.

2000 YLR 3019. Muhammad Hussain Goraya V. Muhammad Anwar.

Person who asserts/alleges a particular fact and wants the court to believe such fact existed, would be require to prove the existence of such fact.

2001 CLC 1922. Iqbal V. State.

Where a fact is within special knowledge of person, onus would be on him to prove the same.

{1997 CLC 9553. Shamim Akhtar V. Javedan Cement Ltd.}

Burden of proof on whom lies:

Art. 118 of Q.S.O states:

“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side”.

Art. 118 lays down merely a test for determining on which party the burden of proof in a particular case lies. The test was suggested by Alderson, B. in Amos V. Hughes and was formulated in the question “which party would be successful if no evidence at all were given?” The burden according to this test is on the adversary of the party who would be successful, that is to say, on the party who would fail if no evidence were given on either side. The test has been adopted by other judges at nisi prius, and frequently recognized by higher tribunals. As, however, the question of the burden of proof may present itself at any moment during a trial, the test ought in strict accuracy to be expressed thus, viz “which party would be successful if no evidence at all, or no more evidence, as the case may be, were given”? Before evidence is gone into, the burden of proof lies on the party asserting the affirmative of the issue; and after the evidence is gone into, it rests upon the party against whom the tribunal, at the time the question arises, would give judgment if no further evidence were adduced. If a burden of proof is on a party, that party must fail if he does not discharge the burden by producing evidence.

Evidence Equally balance, onus nor discharged:

Onus is not discharged by producing evidence which is just as consistent with the allegation of the party on whom the onus of proof lies as with the denial of the opponent. Where the undoubted evidence is consistent both with the allegation of plaintiff and with the denial of the defendant, the plaintiff must fail.

—- Rameshwar Narain Singh V. Rani Rukhnath Koeri: 1923 P. 165.

Exception to General rule:

There are commonly said to be two cases in which the burden of proof (in the sense of adducing evidence) does not rest upon the party substantially asserting the affirmative, or which, if they occur during the trial, will operate to shift such burden to his opponent these are:

  1. Where a disputable presumption of law exists, or a prima facie case has been proved, in favour of a party, it lies on his adversary to rebut it.
  2. Where the subject matter of party’s allegation is peculiar within the knowledge of his opponent, it lies upon the latter to rebut such allegation.

First Exception:

The burden of proof may be shifted not only by rebuttable presumption of law, but also be rebuttable presumptions of fact of a stronger kind; or, indeed by any specie of evidence sufficient to raise a prima facie case. Thus a party suing on a bill of exchange need not allege, nor at the outset prove, that he gave consideration, or that he is a holder in due course. So, when suing upon any contract, he need not allege, not at the outset prove, the defendant’s full age, proof of a plea of infancy being, upon the defendant.

Second Exception:

Art 122 is an exception to Art. 117. The latter with its illustration (a) lays down a general rule that in a criminal case the burden of proof is on the prosecution. Art 122 is certainly not intended to relieve it of that duty. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of accused and which he could prove without difficulty or inconvenience. This particularly applies in a case of record or documentary evidence which is required to prove or disprove a certain fact but is in the custody of opposite party. Thus, where a plaintiff has produced the best evidence available to him and has taken all steps necessary for the production of record of evidence especially in the knowledge and custody of the defendant would shift on to the latter.

{1996 MLD (064). Ahmed Ashraf V. University of the Punjab}. 

Burden of proof as to particular fact:

Art. 119 provides for the proof of a particular fact. Thus all the facts allege by prosecution must be proved by the prosecution; but if the accused wishes the court to believe in the existence of particular fact his, alibi for instance, he must prove it. So also in civil cases where a plaintiff sues for damages for negligence, he must prove such negligence; but if the defense of contributory negligence is set up by the defendant, it is for him to prove such contributory negligence.

Burden of proving fact to be proved to make evidence admissible:

Art. 120 directs that if one fact has to be proved for proving any other fact, the former fact is to be proved by the person for the purpose of giving evidence as to the latter fact . Thus a party desiring to adduce secondary evidence of a lost document must first establish the condition necessary to its reception i.e., that the document has been lost.

Burden proving that case of accused comes within exceptions:

Art 121 of Q.S.O provides that when a person is accuse of any offence burden of proving the existence of circumstances brining his case within general or special exceptions in the Pakistan penal code or any other law is upon him and the court shall presume absence of such circumstances.

{PLD 1996 S.C 1}. Abdul Haque V. State.

Burden of proving death of person known to have been alive within thirty years:

Art. 123 read as “subject to Article 124, when the question is whether a man is alive or dead, and it is shown he was alive within thirty years, the burden of proving death is on the person who affirms it.

Burden of proving that person is alive…..”

When the question is whether the man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been live, the burden of proving that he is alive is shifted to the person who affirms it.

Burden of Proof as to relationship in question……

Art. 125 is based on the principle that when once a state of thing or relationship is shown to exist there is a presumption of its continuance till the contrary is shown. Thus, where partnership, agency or tenancy is once shown to exist, it is presumed to continue till it is proved to have been dissolved and the burden of proving that such a partnership etc, has ceased to exist, is on the person who affirms it.

Burden of proof as to ownership:

Possession is prima facie proof of ownership and is a good title, against anyone who cannot prove a better title. So where the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

Proof of good faith in transaction…

Article 127 is an exception to the rule contained in Article 117 that the allegation of bad faith must be proved by the party who alleges it. The article enacts that when the question arises as to the good faith of a transaction between the parties who stand in a fiduciary relation, the burden of proving that the transaction is fair and reasonable is upon the party who holds the position of active confidence. He must take upon himself the whole proof that the thing is righteous.

Birth during marriage conclusive proof of legitimacy:

According to Art. 128. “The fact that any person was born during the continuance of a valid marriage between his mother and any man not earlier than the expiration of six lunar months from the date of marriage, or within two years after its dissolution the mother remaining unmarried shall be conclusive proof that he is the legitimate child of that man, unless:-”

  1. The husband had refused, or refuses to own the child.
  2. The child was born after the expiration of six lunar months from the date on which the women had accepted that the period of iddat had come to an end.

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