EVIDENCE IN CIVIL CASES Mian Ali Haider L.L.B., L.L.M (Cum Laude) U.K.

SESSION TRAIL Articles 117 to 129 of 1984 Order Articles 117 to 129 of 1984 Order Relationship of Art. 117 & 118 Relationship of Art. 117 & 118 Articles 119,122,125,126,127,128,129 – their significance in the context of civil cases? Articles 119,122,125,126,127,128,129 – their significance in the context of civil cases? –Relationship between burden of proof and presumptions –In civil cases, burden of proof keeps on shifting –As used in Articles 117 and 118 –Its relation with right to begin Standard of proof in civil cases: is preponderance, but even in civil cases, the standard ‘beyond reasonable doubt’ may apply Standard of proof in civil cases: is preponderance, but even in civil cases, the standard ‘beyond reasonable doubt’ may apply

RELATIONSHIP BETWEEN BURDEN OF PROOF AND PRESUMPTIONS Onus of Proof! Onus of Proof! When a plaintiff comes to court and asks for certain relief on the basis of certain facts. When a plaintiff comes to court and asks for certain relief on the basis of certain facts. The onus of proof of those facts has to be on him, for the relief prayed for cannot be granted unless the court is able to hold the existence of those facts proved The onus of proof of those facts has to be on him, for the relief prayed for cannot be granted unless the court is able to hold the existence of those facts proved But the law makes provision for certain presumptions and any party on whom a burden is cast may shift the onus of proving any fact to the other party by showing that fact should be presumed to exist. But the law makes provision for certain presumptions and any party on whom a burden is cast may shift the onus of proving any fact to the other party by showing that fact should be presumed to exist.

RELATIONSHIP BETWEEN BURDEN OF PROOF AND PRESUMPTIONS Articles of QSO should be read as subject to these presumptions. Articles of QSO should be read as subject to these presumptions. Rules as to rebuttable presumption are no more than rules as to burden of proof when the court presumes the existence of fact, the burden of proving its existence is on the parties that asserts its non existence. Rules as to rebuttable presumption are no more than rules as to burden of proof when the court presumes the existence of fact, the burden of proving its existence is on the parties that asserts its non existence. Conversely, when the burden of proving the fact is on a particular party, the court is presuming its non existence. Conversely, when the burden of proving the fact is on a particular party, the court is presuming its non existence.

WHAT IS BURDEN OF PROOF? BOF on the pleadings should not be confused with the burden of adducing evidence. BOF on the pleadings should not be confused with the burden of adducing evidence. Which is described as “shifting”. The BOP on the pleadings never shifts, it always remains constant. Which is described as “shifting”. The BOP on the pleadings never shifts, it always remains constant. The initial burden of proving up pima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce the rebutting evidence to meet the case made out by the plaintiff. The initial burden of proving up pima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on the defendant to adduce the rebutting evidence to meet the case made out by the plaintiff. As the case continue to develop, the onus may shift back again to the plaintiff. As the case continue to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other.

BURDEN OF PROOF When after the entire evidence is adduced, the court feels it cannot make up its mind as to which of the version is true. When after the entire evidence is adduced, the court feels it cannot make up its mind as to which of the version is true. It will hold that party on whom the burden lies has not discharged the burden; It will hold that party on whom the burden lies has not discharged the burden; But if it has on the evidence no difficulty in arriving at a definite conclusion, than the BOP on the pleadings recedes into the background. But if it has on the evidence no difficulty in arriving at a definite conclusion, than the BOP on the pleadings recedes into the background.

ONUS OF PROOF The question of onus of proof loose its importance when relevant evidence has been adduced and placed on the record. The question of onus of proof loose its importance when relevant evidence has been adduced and placed on the record. This question becomes material only where the court finds the evidence so evenly balanced that it can come to no definite conclusion. This question becomes material only where the court finds the evidence so evenly balanced that it can come to no definite conclusion. In such scenario, the rule is that the party on whom the onus lay must fail. In such scenario, the rule is that the party on whom the onus lay must fail. But where evidence has been lead by both sides and considered, the question of onus loose its importance. But where evidence has been lead by both sides and considered, the question of onus loose its importance.

BOP IN CIVIL & CRIMINAL CASES In general, the rules of evidence in civil & criminal cases are the same, but some provisions in QSO are peculiar to criminal and other peculiar to civil cases. (117 and 118) In general, the rules of evidence in civil & criminal cases are the same, but some provisions in QSO are peculiar to criminal and other peculiar to civil cases. (117 and 118) Whereas, a civil case a mere prepodenerence of probability is sufficient base for the decision Whereas, a civil case a mere prepodenerence of probability is sufficient base for the decision However, in a criminal case persuations of guilt must amount to such a moral certainty as convenience the mind of the court beyond all reasonable doubt. However, in a criminal case persuations of guilt must amount to such a moral certainty as convenience the mind of the court beyond all reasonable doubt.

BOP IN CIVIL & CRIMINAL CASES In criminal case no weight of preponderant evidence is sufficient, short of that which excludes all reasonable doubt. The party accused is entitled to the benefit of the leagl presumptions in favour of innocence, and in doubtful cases that may suffice to turn the scale in his favour. In criminal case no weight of preponderant evidence is sufficient, short of that which excludes all reasonable doubt. The party accused is entitled to the benefit of the leagl presumptions in favour of innocence, and in doubtful cases that may suffice to turn the scale in his favour. This rule has a prudence has infact attained the force of law founded on the public policy. This rule has a prudence has infact attained the force of law founded on the public policy.

READING MATERIAL Sardar Bibi – PLD 1954 Lah 480, 483 Sardar Bibi – PLD 1954 Lah 480, 483 Lakshmanna – AIR 1949 PC 278, 285 Lakshmanna – AIR 1949 PC 278, 285 Muhammad Ibrahim – 1980 CLC 296 Muhammad Ibrahim – 1980 CLC 296 Zakaullah – 1991 SCMR 2126, 2133 Zakaullah – 1991 SCMR 2126, 2133 Rashid Ahmed Khan – PLD 1994 SC 36 Rashid Ahmed Khan – PLD 1994 SC 36