BURDEN OF PROOF under qanun e shadat and its legal application.pptx

qanun e shahadat burden of proof

1. BURDEN OF PROOF

2. It is President’s Order No. 10 of 1984. This Order Made by President On 30TH Muharram, 1405 (26 October, 1984). This Order is the Reproduction Of “LAW OF EVIDENCE ACT, 1872”. The Purpose behind Reproducing of “LAW OF EVIDENCE ACT, 1872” into “QANUN-E-SHAHADAT ORDER, 1984” Was to bring it in conformity with Injunctions Of Holy Quran and Sunnah. It consists of 3 parts. It consists of 13 chapters. It Consists Of 166 Articles.

3. A person who claims a remedy on the basis of certain facts presented by his in the court, is under an obligation 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 the existence of a fact, it is said that burden of proof lies on that person. In Judicial proceeding, the phrase “Burden of Proof” has two meaning i.e. as a matter of law and as a matter of pleadings in the first sense it remains constant, but in the second sense it shifts as the case proceeds.

4. RELEVANT PROVISSIONS Article 117 to 129 of Q.S.O, 1984. Section 101 to 114 of Evidence Act 1872

5. MEANING OF BURDEN OF PROOF Firstly: 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. Secondly: It means that on a contested issue one of the two contesting parties has to introduce evidence. The burden of proof in this sense is always unstable and may shift constantly throughout the trial

6. BURDEN OF PROOF According to Oxford Dictionary of law the duty of a party to litigation to prove a fact or facts in issue. A person who claims a remedy on the basis of certain facts, presented by his in the Court, is under an obligation/responsibility to prove the existence of those facts. This obligation/responsibility, in the eye of law, is termed as “Burden of Proof”. When a person is bound to prove the existence of a facts, it is said that burden of proof lies on that person.

7. BURDEN OF PROOF ARTICLE 117 Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. The Holy Prophet (PBUH) has made it obligatory for the plaintiff/complainant to produce proof (Evidence) in support of his claim/complaint. The Holy Prophet (PBUH) Said, “Burden of proof lies on the plaintiff/complainant and the oath is on the person who denies.

8. BASIS Article 117 is based on a following maxim, ”INCOMBIT PROBATIO QUI DICIT NON QUI NEGAT” (The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not the party who denies it)

9. APPLICATION PRINCIPLE OF BURDEN OF PROOF APPLIES TO ALL CASES

10. ARTICLE 117 Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person

11. ON WHOM BURDEN OF PROOF LIES; UNDER ARTICE 118 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

12. INITIAL BURDEN UNDER ARTICLE 118 Article 118 makes it clear that the initial onus is on plaintiff to make out his case and if he discharges that onus, the onus shifts on the defendant asserts.

13. SHIFTING OF BURDEN OF PROOF: It rests, before any evidence whatsoever is given, upon the party who has the burden of proof on the pleadings i.e. who says the affirmative of the issue under Article 117 and it rest, after evidence in gone into, upon the party, against whom, at the time the question arises, judgment would be give if no further evidence was adduces by either side. EVDIENCE WHICH REQUIRES SHIFTING BURDEN OF PROOF: The amount of evidence required to shift the burden of proof depends on the circumstances of each case.

14. BURDEN OF PROOF IN CIVIL CASES The burden of proof is on the party who asserts and not on him who denies, and in deciding which party asserts, the regard must be given to the substance of issue. “The issue must be proved by the party who asserts it and not by the party who denies it.” EXCEPTIONS Burden of proof as to particular fact; Under article 119: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. Burden of proof case by a status; Under Article119: Where it is provided by any law that the proof of that fact shall lie on a particular person Fact within knowledge of any person; Under Article 122: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Burden of Proof where presumption of fact operates; Under Article 129: Where presumption of fact operates in favour of a party then the burden to prove the contrary lies on the other party.

15. BURDEN OF PROOF IN CRIMINAL CASES Is criminal cases, the burden of proof lies on the Prosecution and accused presumes to be innocent. Following three fundamental principles of criminal jurisprudence are well-settled regarding the question of burden of proof in criminal cases. In a criminal trial burden of proof lies on the prosecution. If the prosecution or complainant fails to establish their case, the benefit goes in favour of the accused. As burden proof in criminal cases does not shift. Following are the exceptions to the aforesaid rule.

16. EXCEPTIONS BURDEN OF PROOF IN CRIMINAL CASES Burden of proof as to Particular Fact; Under article 119: The burden of proof as to any particular fact lies on that person, who wishes the court to believe in its existence. Illustration: ‘A’ was charged with having committed theft ‘A’ wishes the court to believe that, at the time in question, he was elsewhere must prove it.

17. EXCEPTIONS BURDEN OF PROOF IN CRIMINAL CASES Case comes within any of general exceptions of P.P.C Case comes within any of special exceptions of P.P.C Exemption under any other law; Under Article121: Where there accused relied upon a exemption under any other law than P.P.C even then the burden of proof lies on the accused to prove it. Plea of Alibi: Similarly under Article 24(1) of Qanun -e- Shahadat Order, if a person takes a plea of Alibi then burden of proof shifts to the accused. Otherwise burden of proof does not shift fact especially within knowledge’ Under Article 122: When any fact is within the knowledge of any person, the burden of proving that fact is upon him. Illustration: ‘ A’ was charged with travelling on a railway without a ticket. The burden of proving that he had a ticket on him

18. DISCHARGE OF BURDEN OF PROOF The burden may be discharged either by affirmatively establishing the plea taken by the accused person or by highlighting such circumstances which would create a doubt in the mind of the court about the guilt of accused. It is necessary for each party to discharge the burden of proof which rests upon it in order have verdict of court in his favour .

19. PLD 2020 SUPREME-COURT 146 burden of pro of ---Scope--- burden on the prosecution to prove the guilt of the accused beyond any doubt under Ar.117 of the Qanun -e- Shahdat , 1984,was referred to as the "legal" burden of pro of , which could never be shifted to the accused, unless the legislature by express terms commanded otherwise.

20. 2020 MLD 238 PESHAWAR-HIGH-COURT S. 42---Suit for declaration---Benami transaction---Ingredients--- burden of pro of ---Contention of plaintiffs was that they were owners of suit property and impugned transaction in favour of defendant was Benami---Suit was dismissed concurrently---Validity---Initial burden of pro of was on the party who had alleged that the ostensible owner was a Benamidar for him---Weakness in the defence evidence would not relieve plaintiff from discharging the said burden--- burden of pro of might shift from one party to the other during the trial of a suit---When burden of pro of was shifted from plaintiff to defendant and defendant failed to discharge the same then plaintiff would succeed---Plaintiffs, in the present case, had failed to discharge the initial onus of pro of ---Courts below had rightly non-suited the plaintiffs, in circumstance---No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Court below---Revision was dismissed in limine accordingly.

21. 2020 CLC 618 Ss. 4 & 5---Defamation---"Published words"--- burden of pro of ---Defamatory words published in newspaper are presumed under law to be false and burden is on the plaintiff to prove that defamatory words have been published by defendant, after that defendant is to prove that words so published are true.

22. 2020 PCrLJ 662 LAHORE-HIGH-COURT-LAHORE NARCOTICS CASES S. 29---Possession of illicit articles---Presumption---Scope---Once the prosecution is able to bring on record, the evidence to discharge the initial onus of pro of then the burden shifts upon the accused to prove otherwise.

23. 2020 CLC 1178 LAHORE-HIGH-COURT-LAHORE Arts. 117 & 118--- burden of pro of ---Scope---Execution of document---Pro of ---Scope---When execution of a document is denied by one of the parties, it is for the other party that has to benefit from the said document to prove the genuineness of the same by producing cogent evidence in support of his claim.

24. 2020 CLCN 1 LAHORE-HIGH-COURT-LAHORE S. 12---Agreement to sell--- burden of pro of ---Agreement to sell neither generates nor quenches right, title or interest in the immovable property---Beneficiary has to prove its valid execution as well as transaction.

25. 2020 CLD 277 O. VI, R. 4---Particulars to be stated where necessary---Mala fide--- burden of pro of --- Scope--- burden of pro of is on the one who alleges mala fide on the part of complainant or investigating agency.

26. 2019 CLC 1204 PESHAWAR-HIGH-COURT Arts. 117 & 120---Fraudulent document---Onus to prove--- burden of pro of lies on the person who challenges the validity of a document on the ground of fraud and misrepresentation.

27. 2018 PLD 773 SUPREME-COURT S. 3---Constitution of Pakistan, Art.204---Contempt of court--- Defence ---Plea of alleged contemnor that his utterances/speech had been taken out of context--- burden of pro of ---Once the alleged contemnor had taken up the defence that his speeches had been referred to out of context, the burden was upon him to show and establish that such was the case.

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