PRODUCTION AND EFFECT OF EVIDENCE.

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Whoever desires any court to give judgement 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.

It is fundamental principle of law that burden of proof is on prosecution. Burden on the prosecution to prove the guilt of the accused beyond any doubt under article 117 of the Qanun-e-Shahadat, 1984 was referred to as the “legal burden of proof” which could never be shifted to the accused, the legislature by express terms commanded otherwise.

Presumption of owner-ship. Burden of proof lay on the plaintiffs (purported purchasers) and not on the municipal corporation, which claimed ownership of subject property. Plaintiffs neither produced evidence of their ownership nor evidence of the ownership of the purported sellers from whom they allegedly bought the property. Evidence of the payment of sale consideration was also not brought on record. Furthermore, purported sellers were not arrayed as parties to the suit. Courts below disregarded the presumption of ownership of the corporation which was and had been receiving rent from the tenants of the shops constructed on the subject property.

The burden of prove of the contents of document, in addition to proof of execution is on the beneficiary of that document. Whoever approaches the court of law to give judgement as to his legal right or liability dependent on the existence of facts which asserts the plaint must prove that those facts exists. Burden to prove the charge rests on the prosecution and the guilt of accused to be proved beyond reasonable doubt by way of unimpeachable evidence. Whoever went to court and sought a judgment on basis of existence of certain facts, such person has to firstly prove said facts through cogent and convincing evidence.

EXECUTION OF DOCUMENT ONUS TO PROVE.

Person pleading positively existence of transaction execution of document , thumb impression and signature of alleged executants is under heavy onus to prove the same. Beneficiary of document is required to establish transaction and also alleged execution by production two attesting/marginal witnesses. In cases of thumb impression, same is done by seeking forensic examination of thumb impression in comparison with admitted thumb impression.

SUIT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO SELL.

Where plaintiffs claimed a transaction of sale, execution of an alleged agreement, payment of earnest money, entire onus was on them to prove; firstly, settlement of terms and conditions alleged transaction; and thereafter, prove execution of alleged agreement and payment of earnest money. Person claiming the agreement was expected to know day, date and month when claimed transaction was allegedly executed or settled and agreement executed. Entire case of plaintiffs was ill-founded, alleged transaction, agreement and alleged receipts were never proved by any credible or admissible evidence. Courts below after in-n depth scrutiny of evidence had concurrently found that plaintiffs had failed to prove existence or execution of alleged transaction/agreement. No specific misreading or non reading was observed. High court declined to interfere in judgements passed by two courts below as findings recorded were based on correct analysis and appreciation of evidence which suffered no error of law.

PARDANASHIN LADY.

Party taking advantage of document executed by pardanshin lady, is required to show that the document was explained to such lady before she signed or thumb marked the same and thus she adopted the document with full knowledge and comprehension. If such lady is a party to suit, burden is on the male contestants to establish the ouster of lady from ownership or possession or any other right allegedly transferred to the male person. Onus on the person claiming advantage of such transaction to show that the same was made with free will of the lady.

Where a party to derive benefit from transaction where a pardanshin lady is a party, in such a transaction it is for opposite party to prove that such lady actually entered into transaction and consented to sanction of mutation. Onus is never static and shifts during trial.

On the execution is proved by legal evidence heavy onus shifts to the other party to prove by positive evidence that disputed agreement was forged or fabricated. Plaintiff to prove his case on the basis of his own evidence, he cannot succeed on the weakness of evidence of his opponent.

Directed by trial court to appear in person and to certify the impleadments to refute the same. Course adopted by the court is just/fair and requires no interference.

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general execution in the Pakistan Penal Code Act 1860 or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence is upon him, and the court shall presume the absence of such circumstances.

The celebrated rule is that in the eyes of law a man is innocent unless proved otherwise. Therefore, it is on the prosecution to prove the guilt against him with which he may have been charged. It is not for the person concerned to prove this innocence straight away. However, contrary to it Article 121 of the Qanun-e-Shahadat Order, 1984 provides that when. a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, 1860 or within. any exception or provision contained in any other part of the same Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances. Thus, if the offence falls within the General Exceptions contained in Sections 76 to 106, the burden shall shift from the prosecution upon the accused as he shall have to prove that his case falls within the ambit of such Exception(s). To quote:

Example:

A person accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act and its consequences,
If it is intended to bring the case within the purview of the exception it is for the defence to prove that when the act was committed, the accused was labouring under the state of unsoundness of mind insomuch so that he had not the capacity to differentiate between good and bad. If the defence succeeds in brining the case of the accused within the scope of general exception he would escape the punishment which the offence carries with it as be provided in the relevant provisions of Pakistan Penal Code, 1860.

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.

There are three important preliminary points that must be understood before I turn to the conventional understanding of burdens of proof. First, burden of proof rules, like all rules that structure the process of proof, are derived from and implement a theory of dispute resolution. The dominant theory of dispute resolution in the USA is the adversarial process. The second and related point is that theories of dispute resolution, such as the adversarial system or continental (sometimes called the inquisitorial) system, are themselves derived from underlying conceptions of the appropriate role of government in the resolution of disputes between private individuals in civil cases and in the prosecution of criminal cases.

In the Anglo-American tradition, the role of the government in private dispute resolution has generally been largely facilitative. The government simply provides a fair and disinterested forum for the impartial resolution of private disputes, and that is essentially all the government has an obligation, or even a right, to do. In an extraordinary way, this conception of dispute resolution affects criminal cases as well. The government prosecutes cases, but the government is conceived of as analogous to a private party that stands on equal footing with the other private party, the defendant, before the courts. The courts are neutral, in other words, and are not part of the organs of government structured to further the government’s specific policy interests in the particular trial; indeed, as is well known, the courts in the USA are famous for obstructing the policy objectives of the government through such things as exclusionary rules.

Not all States have commensurate political theories. In the USA the government has more limited power and the courts are primarily a disinterested forum. China, whose legal system and governmental structure I am quite familiar with, has a theory of unitary political power located in the Communist Party. One would predict that the Chinese government will tend to exercise more power and control in the dispute resolution process in order to efficiently implement its policy goals. In many Western European countries, e.g., disputes are not ‘private’ matters to the extent that they are in the USA. In the USA, it is generally although not universally believed that adversarial investigation is more likely to yield a verdict consistent with the truth than is a process more dominated by a tribunal. The parties know their case better than anyone else and have the proper incentive to invest the optimal resources in dispute resolution. Those who favour more inquisitorial systems emphasize that control by a disinterested tribunal will lead to less abuse and manipulation of the evidence.

In case, there is no reason to proceed because the party’s evidence indicates that the relevant fact cannot be established. In case, however, the adversary may be in possession of information that would affect the analysis. In most jurisdictions, after the adversary has responded, the party with the initial burden of production is entitled to produce rebutting evidence. This process continues until neither party has anything new to offer, at which point the evidence taken as a whole will be in one of the three analytical possibilities diagrammed in the chart. The process of proof at trial can be analyzed as repeated iterations. Conventional theory of burdens of proof extends to and explains preclusive motions, such as directed verdicts and summary judgement. In the USA, and in any system with lay fact finders, the manner in which the judge is asked to decide the case in favour of one party or another depends on the time at which he is asked. One possibility is that, before any evidence is produced, a party can move for summary judgement.

A student claims that the school is overcharging students for lunch. The teacher says that she does not believe that is happening. The student asks the teacher to prove that lunch prices are fair.

A student tells the principal that the school should spend more money for clubs. The principal tells the student that there is no money in the budget for that this year. The student asks the principal why he is against clubs.

Lisa believes in ghosts. Mark tells her that there is no evidence that ghosts exist. Lisa tells Mark that there is no evidence that they don’t.

Many religions believe in a higher power, but few back up the argument with evidence of its existence. Instead, many argue that you can’t prove that a higher power doesn’t exist.

An employee goes to her boss and claims that she has been harassed at work. The boss asks her for evidence to support the claims. She argues that he needs to prove that she wasn’t harassed and that she shouldn’t have to provide evidence.

Concept of the burden of proof and presumption have been illicitly transferred from the legal setting to the public policy discussion, argues author. Author argues that the formal dialectical framework of chapter 4 can be usefully applied to modelling these notions in other setting. Two main setting are organized disputations of the kind represented in forensic debate or a televised presidential debate, he says. The method used to reason about evidence in the common law system. Presents outline of reasonable but defeasible argumentation, say author.

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