Explain Burden of proof and also describe the general principles regarding the burden of proof.

(1) Introduction

Burden of proof has two distinct meanings in law of evidence. It can mean that burden, which is to establish case, and it can also mean that burden, which is to introduce evidence. Burden of establishing case remains through trial in which it is originally placed, and it never shifts, Contrary to this, burden of introducing evidence can shift constantly with introduction of evidence by one party or other party.

(2) Meaning Of Burden Of Proof

If some person desires any court to give judgment about any legal right or liability, which is dependent on existence of those facts, which he/she asserts, he/she should prove that those facts exist. It is called burden of proof.

(3) General Principles About Burden Of Proof

 

Followings are general principles about burden of proof:

  • (i) On whom burden of proof lies
  • (ii) On whom burden of proof lies in suit or proceeding
  • (iii) Burden of proof about particular fact
  • (iv) Burden of proving that fact, which is to be proved to make evidence admissible
  • (v) Burden of proving that case of accused, which comes within exceptions
  • (vi) Burden of proving that fact, which is especially within knowledge
  • (vii) Burden of proving death of that person, who is known to have been alive within thirty years
  • (viii) Burden of proving that person, who has not been heard of for seven years, is alive
  • (ix) Burden of proof about relationship in cases of partners, landlord & tenant or principal & agent
  • (x) Burden of proof about ownership
  • (xi) Proof of good faith in transactions where one party is in relation of active confidence
  • (xii) Birth during marriage as conclusive’ proof of legitimacy
  • (xiii) Presumption of existence of certain facts

(i) On whom burden of proof lies

When some person is bound to prove existence of any fact, it is said that burden of proof lies on this person.

(ii) On Whom Burden Of Proof Lies In Suit Or Proceeding

Burden of proof in suit or procceding lies on that person, who would fail ifno evidence at all were given on either side.

(iii) Burden Of Proof About Particular Fact

Burden of proof about any particular fact lies on that person, who wishes court to believe in its existence. However, if any law provides that proof of such fact should lie on any particular person, then it lies on such person.

(iv) Burden Of Proving That Fact, Which Is To Be Proved To Make Evidence Admissible

Burden of proving any fact, which is necessary to be proved in order to enable any person to give evidence of any other fact, is on that person, who wishes to give such evidence.

(v) Burden Of Proving That Case Of Accused, Which Comes Within Exceptions

If some person is accused of any offence, burden of proving existence of circumstances is upon him/her and court should presumes absence of such circumstance. However, it is necessary that these circumstances should be those circumstance, which bring case within any of General Exceptions in Pakistan Penal Code or which bring case within any special exception of that proviso, which is contained in any other part of Pakistan Penal Code or which is contained in any law, which defines this offence.

(vi) Burden Of Proving That Fact, Which Is Especially Within Knowledge

When any fact is especially within knowledge of any person, burden of proving that fact is upon him/her.

(vii) Burden Of Proving Death Of That Person, Who Is Known To Have Been Alive Within Thirty Years

If the question is whether a man is alive or dead, and it is shown that he/she was alive within thirty years, the burden of proving that he is dead is on that person, who affirms it. However, this principle has been made subject to Article 124 of Qanoon-e-Shahadat Order.

(viii) Burden Of Proving That Person, Who Has Not Been Heard Of For Seven Years, Is Alive

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

(ix) Burden Of Proof About Relationship In Cases Of Partners, Landlord & Tenant Or Principal & Agent

If question is whether persons are partners, landlord and tenant or principal and agent, and it has been shown that they have been acting as partners, landlord and tenant or principal and agent, burden of proving that they do not stand or have ceased to stand to each other in such relationships respectively, is on that person, who affirms it.

(x) -Burden Of Proof About Ownership

When question is whether any person is owner of anything of which he/she is shown to be in possession, burden of proving that he/she is not owner is on that person, who affirms that he/she is not owner.

(xi) Proof Of Good Faith In Transactions Where One Party Is In Relation Of Active Confidence

If there is question about good faith of some transaction between parties and one of these parties stands to other in a position of active confidence, burden of proving good faith of transaction is on that party, who is in position of active confidence.

(xii) Birth During Marriage As Conclusive Proof Of Legitimacy

Here following points are important:

  • a Principles
  • b Exceptions

a-principle

When any person was born during continuance of a valid marriage between his/her mother and any man and not earlier than expiration of six lunar months from date of marriage or within two years after its dissolution if his/her mother remained unmarried, such birth should be conclusive proof that he/she is legitimate child of that man.

(b) Exceptions

Followings are exceptions to this principle:

  • b-i Husband’s refusal
  • b-ii Mother;s acceptance
  • b-iii Non application

b-i Husband’s refusal

Such birth is not conclusive proof if husband has refused or refuses to own the child.

b-ii Mother acceptance

Such birth is not conclusive proof if the child was born after expiration of six lunar months from date on which the woman had accepted that period of iddat had come to an end.

b-iii Non application

This principle should not be applied to non-Muslim if its is inconsistent with his/her faith.

(xiii) Presumption Of Existence Of Certain Facts

Court can presume existence of any fact, which it thinks likely to have happened.

(4) On Whom Burden Of Proof Lies In Civil & Criminal Litigation

For explanation of burden of proof in civil and criminal litigation, following points are important:

  • (i) Basic principle
  • (ii) Burden of proof in civil litigation
  • (iii) Burden of proof in criminal litigation

(i) Basic Principle

Burden of proof in suit or proceeding lies on that person, who would fail if no evidence at all were given on either side.

(ii) Burden of Proof In Civil Litigation

For explanation of burden of proof in civil litigation, following points are important:

(a) Party, who asserts affirmative of issue

When some party, whether such party is plaintiff or defendant, asserts affirmative of issue, burden of proof lies on this party. It revals that burden of proof can lay either on plaintiff or on defendant.

(b) Shifting of burden of proof

Burden of prove never remains permanent in civil litigation. In fact, it can shift from one party to another party. When one party produces evidence in respect of some issue. burden of proof can shift to his/her opponent.

(c) When does burden of proof remain material?

Burden of proof remains material when court finds evidence so evenly balanced that it cannot come to know some definite conclusion.

(d) When does burden of proof become immaterial?

Burden of proof becomes immaterial when both the parties have brought their evidence on record.

(iii) Burden of proof in criminal litigation

For explanation of burden of proof in criminal litigation, following points are important:

(a) Burden of proof permanently lies on prosecution

It is duty of prosecution to prove case against accused beyond reasonable doubt. Such duty does not change or vary and it never shifts from prosecution to accused even when accused does not take up any defence or plea or accused takes up some defence or plea, but fails in it. It reveals that burden of proof permanently lies on prosecution,

(b) Guilt & innocence of accused

Prosecution always remains duty bound to prove guilt of accused and, therefore, accused is never required to prove his/her innocence.

(c) Plea of general exception or plea of alibi

If accused takes plea of general exception or plea of alibi, even then prosecution remins under burden to prove charge against accused.

(d) Charge

As law presumes accused innocence till proved guilty and accused is not to prove his/her innocence, therefore prosecution has to prove charge against him/her beyond any reasonable doubt.

(e) Self defence

As burden of proof to prove self defence is considered so heavy on accused, therefore prosecution is to prove case against him/her.

(5) Conclusion

To conclude, it can be state that many facts are alleged in some case and they should be proved before court so that court can base its judgment on such facts. Responsibility to prove such alleged facts is called burden of proof. And burden of proof usually lies on that person, who alleges existence of any fact..

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