On November 26, 2019
Burden of Proof
The law relating to burden of proof is part of the law of evidence concerned with the production of evidence. It is an obligation created for a party having a claim against another party and is governed by certain rules. These rules have their foundation in the principles of natural reason, supplemented by additional weight through legal reasoning.
Meaning and Scope
The expression ‘burden of proof’ has not been defined in any statute. The meaning given in Black’s Law Dictionary is,
“A party’s duty to prove a disputed assertion or charge.”
The necessity of burden of proof arises when the court finds no evidence or evidence that is so evenly balanced that the court is unable to determine the rights and obligations of parties. In judicial proceedings, the phrase ‘burden of proof’ has two distinct and frequently confused meanings:
burden of prove in the sense of establishing a case as a matter of law and pleading, whether by preponderance of evidence or beyond the reasonable doubt; and
burden of proof in the sense of introducing evidence.
In the first scenario, the burden of proof in a case rests upon the party which substantially asserts itself in the affirmative of an issue. It is fixed at the beginning of the trial during pleadings and is settled as a question of law. It remains unchanged throughout the trial and never shifts. In same way in criminal cases, the burden to prove guilt of the accused beyond reasonable doubt lies upon the prosecution, even in cases where the secondary burden of introducing evidence has been shifted to the accused.
Unlike the burden of proof in the first sense, the burden of introducing the evidence may shift constantly. In this scenario, the onus to prove rests upon the party who will fail if no more evidence or no evidence at all has been presented by either side.
In Pakistan, besides special provisions on evidence and proof, laws which govern the principles of burden of proof can be found in the Qanoon-e-Shahadat Order 1984 (QSO), the Banker’s Book Evidence Act 1939 and the Commercial Documents Evidence Act 1939.
The general principle behind ‘burden of proof’ is that it lies upon the person or party which substantially asserts itself in the affirmative of an issue. In applying this rule, regard must be given to substance and not grammatical form. The wisdom behind the adoption of this rule of convenience in practice is not because the negative is unprovable but because the negative does not admit direct and simple proof which the affirmative is capable of.
The crucial test to ascertain which side the burden of proof lies upon is to first consider which party will benefit if no evidence is presented by either side and then assess the effect of removing the assertions wanting proof, bearing in mind that the onus must lie on whichever party fails if either of these steps are followed. For instance, if a case is filed by a tenant regarding premises not being repaired and the landlord on appearance in court denies it, even though the affirmative stance lies with the tenant, the fact that the premises need repairing is a substantial part of the merits of the case and should be proved by the landlord because if no evidence is provided at all the the landlord stands to benefit.
Shifting of Burden of Proof
Generally, there are two situations in which the burden of proof takes exception to the aforementioned general rule:
where a disputable presumption of law exists or a “prima facie case” been proved in favour of one party; or
where the subject matter of a party’s allegations is in the knowledge of the opposing party.
The term ‘presumption’ has been defined in Phipson’s Law of Evidence as:
“…an inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.
For a presumption to shift the burden of proof, it may be either based on law or strong facts. A presumption of law may be either conclusive or rebuttable, but a presumption of fact is always rebuttable. Presumptions can also be mixed, partly based on law and partly on facts. Presumptions of law and fact differ from each other in the following ways:
Presumptions of law derive their force from the law, while presumptions of fact derive their force from logic.
A presumption of law applies to a class, the conditions of which are fixed and uniform. A presumption of fact applies to individual cases, the conditions of which are inconstant and fluctuating.
Presumptions of law if remain unchallenged are conclusive, while presumptions of fact can be disregarded even in the absence of a party, however cogent.
There are various statutory provisions, the sole purpose of which is to create rebuttable presumptions of law in order to determine on whom the burden of proof rests. Some notable statutory presumptions include the following:
Section 118-122 and 137, Negotiable Instruments Act;
Section 53, Transfer of Property Act;
Section 6, Land Acquisition Act (I of 1894);
Section 156(2) and 187, Customs Act 1969;
Section 4, Commercial Documents Evidence Act 1939;
Section 4, Banker’s Book of Evidence Act 1891;
Section 5-C, Prevention of Corruption Act 1947;
Section 9(a)(v) and 14(c), National Accountability Ordinance 1999.
Prima Facie Case
One may also shift the burden of proof by showing or raising a “prima facie case”. In the case of eviction of a tenant on the ground the tenant has sublet the premises in breach of an agreement and without prior permission of the landlord, if the landlord establishes that there is someone else in occupation of the premises other than the tenant, then the onus will shift to the original tenant to show that the occupier is not the sublessee. Similarly, on the charges of stealing, if it is shown that someone is in recent possession of stolen property – whether or not it can be reasonably explained or explained at all – raises a presumption of fact that the person in possession of the stolen property is either the thief or the receiver of that stolen property.
Article 122 of QSO covers the burden of proof for things in knowledge of a particular person. It provides that where the knowledge of the subject-matter of an allegation lies peculiarly within the province of one party to a suit, the burden of proof must also lie there. The raison d’être of this principle is that if there are facts which are only in the knowledge of a particular party, all rules of convenience and fairness demand that such a person be under an obligation to prove them, because if other party has no knowledge of them then calling it to adduce evidence in such a situation will go against wisdom and fairness. An illustration of Article 122 which has been contained in many books on the law of evidence refers to a person being charged for travelling on a train without a ticket and the burden to prove having a ticket being on the same person.
Such an exception will only be attracted in cases where the burden of proof has to be discharged by the prosecution – an accused person cannot be burdened to prove that no crime has been committed based on the facts.
Standard of Proof
In common law jurisdictions, there are only two major standards of proof in trials:
beyond reasonable doubt, and
balance of probabilities.
In criminal cases, the standard required has to be beyond reasonable doubt. Anything less than this standard would benefit the case of the defense. In civil cases, the standard required for deciding issues is on the balance of probabilities. The civil standard is also used in criminal trials in relation to the defenses which must be proved by the defense, such as statutory defenses. However, where the law does not stipulate a reverse burden of proof, the defense only needs to raise the issue. It is then for the prosecution to negate the defense at the standard required for criminal cases.
In general, the rules of evidence are the same in civil and criminal proceedings and apply to all parties in a case (the state, its subjects, prosecutor, accused, plaintiff, defendant, and counsel to client). There are also some principles which are used exclusively based on the particular nature of proceedings, for instance the doctrine of estoppel applies to civil proceedings only. Provisions relating to confessions and the character of persons appearing before court are used in criminal proceedings. However, there does exist a significant difference in the effects of evidence in civil and criminal proceedings. In the former, mere preponderance of probability is a sufficient basis for deciding, but in the latter, a much higher degree of assurance is required. It is a requirement of criminal jurisprudence that the more serious the offence, the stricter the proof.
Another important general principle of evidence connected with the standard of proof is the quality of evidence. It is generally presumed that what matters is the quality of evidence and not quantity. However, where the law prescribes that a fact needs to be proved by a certain amount/quantity of evidence and a party does not present the requisite quantity, then that evidence would be considered insufficient and the burden would still lie on the same party, unless documents can be submitted attesting if a witness has died or cannot be found.
Discharge of Burden of Proof
The word ‘proof’ indicates anything which serves to convince the mind of a judge about the truth or falsehood regarding a fact or proposition. It does not necessarily refer to numbers, but any evidence that would induce a reasonable person to reach a conclusion.
The onus of proof in civil cases does not always remain fixed. The moment some evidence has been brought on record by one party, the onus would shift to the other side. Unless the other side counters and rebuts the evidence of the first party, it would fail and the burden of the first party would stand discharged.
In criminal jurisprudence, the general principle is that the prosecution has to prove its case against the accused beyond reasonable doubt by producing credible, convincing and cogent evidence in order to be successful in getting a conviction. This burden does not shift from the prosecution even if the accused takes a plea and fails to establish it. If there is any room for doubt in the prosecution’s case, the accused would be entitled to benefit from it, not as a matter of grace but as a matter of right. Thus, the prosecution can only discharge its burden by presenting credible evidence free of reasonable doubt.
 Best, Law of Evidence, 12th Edition, Section 265, P.245
 Phipson on Law of Evidence, 6th Edition
 PLD 1983 SC (AJ&K) 56; Pickup vs Thames Mersey (1873) 3 Q.B.D 594
 Woolmington v Director of Public Prosecutor (UKHL 1, AC 462)
 PLD 1994 KAR 106
 Articles 117 & 119 of QSO; S.364, Page 341, Law of Evidence by Taylor
 Article 118 of QSO; S 365, Page.341, Law of Evidence by Taylor
 Best, Law of Evidence, 12th Edition, Section 299, P 267
 Phipson’s Law of Evidence, Page 32
 Section 82, PPC, Article 55 & 128 of QSO and section 11 of Oaths Act, 1873
 Article 90 to 101 and 121 to 127 of QSO
 Article 129 of QSO
 Law of Evidence by Ratanlal &Dhirajlal, 11th Edition Page.220
 Phipson’s law of Evidence, Page 35
 AIR 1936 PC 169, PLD 1977 SC 515
 Blackstone’s Criminal Practice, 2012, P 2386, 2001 SCMR 25
 2013 SCMR 106
 Article 114
 Article 37-43
 Article. 67-68
 2018 YLR 469
 Article 17 & 79, PLD 1996 SC 256, PLD 2011 SC 241 & PLD 2015 SC 187
 Article 81
 Article 80
 Emperor v Shafi Ahmed (1925) 31 Bom L.R 515
 PLD 2003 AJ&K 25, PLD 1980 LAH. 145
 PLD 1996 SC 1, PLD 2002 SC 1048, 2018 SCMR 772
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