18.1 Burden of Proof

18.1 Burden of Proof

Quick Answer: Under Qanun-e-Shahadat Order, 1984 Chapter IX (Arts 117–129), the party who asserts facts for judgment must prove them (Art 117). The practical test is who fails if nobody leads evidence (Art 118). In crime, the prosecution proves guilt; if the accused relies on a General Exception or special proviso, Art 121 puts proof of those circumstances on the accused, and the Court shall presume they are absent. Master Art 2 grades (may presume / shall presume / conclusive proof), Art 122 (special knowledge), Art 126 (possession → ownership), Art 128 (legitimacy), and Art 129 illustrations (stolen goods, official acts, withheld evidence).

Why burden of proof matters on LAW-GAT

Law of Evidence (QSO 1984) is a 20-mark domain on the HEC LAW-GAT blueprint—same weight as CPC. Stems rarely ask for essays; they ask who must prove what, what happens if no evidence is led, can the accused sit silent on self-defence, and what kind of presumption is legitimacy. Learn the Article numbers and the civil vs criminal decision trees below.

Reading rule: First identify the fact in dispute, then ask: (1) who asserts it for judgment? (2) who would lose if the Court heard silence? (3) does a special statute or QSO article reallocate the burden? (4) is the Court dealing with a may / shall / conclusive presumption?

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Core rules — Articles 117 to 120

Article 117 — Burden of proof

Art 117(1): 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.

Art 117(2): When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Article 118 — On whom burden of proof lies

The burden in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.

Exam cue: Art 117 is the assertor rule; Art 118 is the failure-if-silence rule. Use both together on MCQs.

Article 119 — Particular fact

The burden as to any particular fact lies on the person who wishes the Court to believe in its existence, unless law places that proof on someone else.

Illustrations: prosecutor who relies on B’s admission of theft to C must prove the admission; accused who claims he was elsewhere must prove alibi-type absence.

Article 120 — Foundation facts for admitting other evidence

Whoever wants to give evidence of a fact must prove any preliminary fact needed to make that evidence admissible.

Cross-ref: Dying declarations are a relevancy topic under Art 46 (statements of persons who cannot be called). Art 120 only teaches the foundation burden—prove death (or other condition) before the statement can be used.

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Criminal burden — Article 121 and the exception shift

Article 121 — Exceptions on the accused

When a person is accused of any offence, the burden of proving circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso in the PPC or in the law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Decision tree — Civil vs criminal burdens

Is the proceeding criminal (offence charge)?
├─ YES → Prosecution must prove guilt (Art 117 ill. + beyond reasonable doubt practice)
│         ├─ Accused relies on General/special exception?
│         │   └─ YES → Art 121: accused proves circumstances; Court shall presume absence
│         └─ Fact especially within accused’s knowledge (e.g., ticket)? → Art 122 may apply
└─ NO (civil/suit) → Assertor proves (Art 117); silence-fails test (Art 118)
                      └─ Check special shifts: Arts 122–128; presumptions Art 129 / Art 2

Critical trap: Art 121 does not mean the accused must prove innocence of the whole charge. The prosecution still proves the ingredients of the offence. Art 121 only allocates proof of the exception/proviso the accused invokes, with a shall presume against those circumstances until the accused discharges that burden (standard on exceptions is typically preponderance, not proof beyond reasonable doubt—keep the two standards distinct on MCQs).

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Special knowledge, life/death, relationships, ownership, good faith

Article 122 — Fact especially within knowledge

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

Classic illustrations: intention different from what the act’s character suggests; railway passenger charged with travelling without a ticket must prove he had a ticket.

Articles 123–124 — Alive or dead

Article 125 — Partners, landlord/tenant, principal/agent

Once it is shown that persons have been acting as partners, landlord and tenant, or principal and agent, the burden of proving they do not stand (or have ceased to stand) in that relationship is on the person who affirms the break.

Article 126 — Ownership and possession

When the question is whether any person is owner of a thing of which he is shown to be in possession, the burden of proving he is not the owner is on the person who affirms non-ownership.

Exam cue: Possession is not ownership, but it shifts the burden against the challenger.

Article 127 — Active confidence / good faith

Where good faith of a transaction is in issue and one party stands in a position of active confidence, the burden of proving good faith is on the confident party (e.g., advocate buying from client; father dealing with son just of age).

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Presumptions — Article 2 grades and Articles 128–129

Article 2 — May presume / shall presume / conclusive proof

Map to Chapter IX: Art 121 uses shall presume (absence of exception circumstances). Art 128 uses conclusive proof of legitimacy (within its Islamicized conditions). Art 129 is the classic may presume catalogue.

Article 128 — Birth during marriage (legitimacy)

Art 128(1) (QSO, Islam-aligned): birth during a valid marriage, not earlier than six lunar months from the marriage, or within two years after dissolution (mother remaining unmarried), is conclusive proof that the child is the legitimate child of that man, unless (a) the husband refused/refuses to own the child, or (b) birth after six lunar months from the woman’s acceptance that iddat had ended. Art 128(2): nothing in clause (1) applies to a non-Muslim if inconsistent with his faith.

Trap: Do not recite the older Indian Evidence Act s.112 “280 days / no access” formula as if it were current QSO Art 128 wording.

Article 129 — Court may presume existence of certain facts

The Court may presume any fact it thinks likely to have happened, having regard to the common course of natural events, human conduct, and public and private business.

High-yield illustrations (memorise letters):

Official acts (ill. (e)): On LAW-GAT, if a public act appears regular on its face, the Court may presume regular performance—challengers must shake that presumption with evidence, not mere suspicion.

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Mini-map — Who bears the burden?

Key Takeaways

• Art 117 + 118 are the twin pillars: assertor proves; silence-fails test.
• Art 121 shifts exception proof to the accused with a shall presume of absence—not the whole offence.
• Art 2 grades control how hard a presumption hits: may / shall / conclusive.
• Arts 122–127 are high-frequency shift rules (ticket, possession, active confidence).
• Art 128 legitimacy is conclusive proof under QSO’s Islamicized formula; Art 129(e) covers regular performance of official acts.