Burden of Proof (article 117 to 129 of QSO)

2. BURDEN OF PROOF Muhammad Fahad Malik
Llb(Hons) 8th
15091624-067

3. Synopsis
• Burden Of Proof Article 117
• One Who Alleges Must Prove His Claim
• On Whom Burden Of Proof Lies Article
118
• Burden Of Proof As To Particular Fact
Article 119
• CONDITION FOR PLEA OF ALIBI UNDER
ARTICLES OF 24(2) AND 119
• Burden Of Proving Fact To Be Proved To
Make Evidence Admissible Article 120

4. Synopsis (Cont..)
• Burden Of Proving That Case Of Accused
Comes Within Exceptions Article 121
• Burden Of Proving Fact Especially Within
Knowledge Article 122
• Burden Of Proving Death Of Person
Known To Have Been Alive Within Thirty
Years Article 123
• Burden Of Proving That Person Is Alive
Who Has Not Been Heard Of For Seven
Years Article 124

5. Synopsis (Cont..)
• Burden Of Proof Of As To Relationship In
The Cases Of Partners, Landlord And
Tenant, Principal And Agent, Article 125
• Burden Of Proof As To Ownership Article
126
• Proof Of Good Faith In Transaction Where
One Party Is In Relation Of Active
Confidence Article 127
• Birth During Marriage Conclusive Proof Of
Legitimacy Article 128

6. Synopsis (Cont..)
• Court May Presume Existence Of
Certain Facts Article 129
• Exception
• Conclusion

7. Burden Of Proof Article 117
• When any party wants to take decision in
his favour requires proving facts in issue in
his favour. Mere presentation of suit or
case in court is insufficient to get remedy.
Material evidence is required to prove the
facts in issue.
• For example, a person has acquired
property can prove his ownership either by
way of inheritance or sale deed.

8. Secundum Alegata Et
Probata
• One who imposes allegations, i.e., plaintiff or
prosecution must prove his suit or case
• Facts alleged must support the commission
of offence.
• In civil litigation there is prepondance of
evidence and in criminal trial, prosecutor, has
to prove facts through evidence so that court
may reach on conclusion beyond any
reasonable doubt in their favour for
judgement.

9. On Whom Burden Of Proof
Lies Article 118
• Article 118 of Qanun-e-Shahdat Order
gives test whether who has to prove the
case. Where both sides fail to adduce
evidence in their favour, then party who
alleges shall be responsible to give
evidence. Where neither plaintiff nor
defendant may prove their case then one
who fails shall prove the facts, e.g.,
plaintiff or prosecutor.

10. Burden Of Proof As To
Particular Fact Article 119
• This Article deals with the plea of Alibi (proof of
absence). Where in criminal case, a murder takes
place during of period of imprisonment of alleged
accused, such accused can take plea of alibi being
not present at the seen of occurrence. Burden of
proof lies on the shoulders who alleges the fact of
being absent, i.e., plea of alibi.
• Accused has to prove whether it was impossible for
him to keep his presence at the place of alleged
occurrence. Mere plea of alibi is insufficient, but
strong proof is required to belief of court.

11. CONDITION FOR PLEA OF ALIBI
UNDER ARTICLES OF 24(2) AND 119
1. Must be criminal charge
2. Impossible to reach
3. Time distance
4. Presence out of place
5. Only in criminal cases

12. Burden Of Proving Fact To Be Proved
To Make Evidence Admissible Article
120
• Where any fact is dependent on other fact, that
fact must be proved before proving the actual
fact.
• For example, where anybody wants to adduce
secondary evidence has to prove the loss of
primary evidence and not available. Where dying
declaration has to be proved, firstly death of the
person has to be proved. In short, proof of
dependent fact opens the door for court to
believe in the actual fact.
•

13. Burden Of Proving Fact Especially
Within Knowledge Article 122
• When a person does any act under
special knowledge, he has to prove such
fact. This is exception to this general rule
that burden of proof lies on the party who
asserts the affirmative of the issue.
• For Example: Where a passenger is
charged travelling without ticket in railway,
he has to prove whether he had bought
the ticket.

14. Burden Of Proving That Case Of
Accused Comes Within Exceptions
Article 121
• Where any person alleges commission of
offence comes under exceptions provided
under Pakistan Penal Code and any other
special law, he has to prove that his act
comes under such exceptions.
• For Example, Who alleges the
commission of crime under grave and
sudden provocation must prove the
existence of such circumstances.

15. Burden Of Proving Death Of Person
Known To Have Been Alive Within
Thirty Years Article 123
• A person who has been seen within last
thirty years alive is presumed alive unless
it is proved that he has been died. If his
death is alleged, it requires its proof other
court shall draw presumption that he is
alive

16. Burden Of Proving That Person Is
Alive Who Has Not Been Heard Of
For Seven Years Article 124
• This Article is related with the special
knowledge of relatives or some special
persons. Where a person is not seen or
heard within last seven years by the blood
relatives or friends, it is presumed that he
has been died. Otherwise his alive is to be
proved.

17. Burden Of Proof Of As To Relationship In
The Cases Of Partners, Landlord And
Tenant, Principal And Agent, Article 125
• Where existence of some special
relationships is proved, presumption goes
in its favour, otherwise their non-existence
is to be proved. And burden of proof lies
on the person who alleges it.

18. Burden Of Proof As To
Ownership Article 126
• Person who has possession of anything is
presumed its ownership. One who denies
such ownership has to prove such fact.

19. Proof Of Good Faith In Transaction
Where One Party Is In Relation Of
Active Confidence Article 127
• There are always two parties in
agreement. Party who has upper hand is
required to prove the fact alleged against
him. This is depart from general rule of
evidence. This comes only in fiduciary
relationship.

20. Birth During Marriage Conclusive
Proof Of Legitimacy Article 128
• When the child is born after six lunar (of
the moon) months while the wedlock and
husband does not denounce his
legitimacy, it shall be presumed that such
child is legitimate.
• There are two types of presumptions, i.e.,
presumption of law (ir-rebut-able) and fact
(rebut-able).

21. Birth During Marriage Conclusive
Proof Of Legitimacy Article 128
(Cont..)
• Where child is born after dissolution of
marriage within two years provided mother
remains unmarried, it shall be presumed that
such child is legitimate.
• Where husband disowns the legitimacy of child,
then it shall be required to prove legitimacy of
child.

22. Court May Presume Existence
Of Certain Facts Article 129
• In certain cases, there is no need of evidence and
court draws it opinion automatically. In such cases
court draw adverse inference.
• Where goods are recovered from possession of
one person soon after theft, court shall presume
that he either has stolen goods or received stolen
property.
• Approver is unworthy of credit unless his evidence
is corroborated from some independent sources.

23. EXCEPTION
Khan Muhammad v/s Muhammad Din
2010 SCMR 1351

24. Conclusion
• Secundum alegata et probata (who lodges
a fact must prove it)
• Existance of certain facts
• Exception to as beneficiary will proof