The provisions in the Qanun-e-Shahadat 1984 bearing on the subject are to be found contained in Part III Chapter IX-C, Articles 117 to 129 thereof.
Burden of Proof
Whoever desired 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 exists. 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 117). The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. (Article 118). 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. (Article 119). 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 PPC 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. (Article 121). When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. (Article 122).
The word ‘proceeding’ as used here includes criminal proceedings, and the word ‘liability’ includes criminal liability.
As applied to judicial proceedings, the phrase ‘burden of proof’ has two distinct meanings:
- The burden of proof as a matter as a matter of pleading, the burden, as it has been called, of establishing a case whether by preponderance of evidence beyond a reasonable doubt; and
- The burden of proof in the sense of introducing evidence.
The phrase has been used in first sense in Article 117 and in the second sense in Article 118.
The burden of proof in the first sense is fixed at the beginning of the trial and it is settled as a question of law, remaining unchanged throughout the trial and never shifting under any circumstances. It is in this sense that the burden of proving the guilt of a person charged with an offence is on the prosecution and it is in this sense that the core principle that the accused has a right to silence has relevance. “Because the prosecution bear the burden of proving the guilt they should discharge it without assistance from the defendant.” The initial burden is on the prosecution to prove its case beyond reasonable doubt and the accused is not required to prove his innocence.
The burden of proof in the second sense, however, is not a line in the stone and constantly shifts, even in criminal cases, from one party to the other. Thus in State vs. Manzoor Ahmed, the accused and the deceased women were last seen in a room and the accused had remained absconding for two years and it was held that the onus lay heavily upon the accused to explain what had happened in the room and why he had remained absconding.
The right to begin may be determined by the burden of proof. As has been noticed, Under section 244 and 265-F Cr.P.C, the right to begin is in the prosecution. It is obviously for the reason that the burden to prove the guilt of the accused lies on the prosecution.
Standard of proof when burden is on prosecution
The rules of evidence both for Civil and criminal cases so far as the 1984 Order is concerned are generally the same. Thus by sub-section (4) of Article 2 of the 1984 Order “a fact is said to be proved when… the court either believes it to exist, or considers its existence so probable as a prudent man ought, under the circumstances of the particular case, act upon the supposition that it exists”. This standard of proof applies both to the civil and criminal cases. Yet, there is a marked difference as to the effect of evidence and degree of proof in civil and criminal cases. The courts, the spokesman of the prudent man in the definition of ‘proved’ referred to above, have evolved different principles in civil and criminal cases. Whereas in a civil case a mere preponderance of probability is sufficient basis of decision, in a criminal case the court has to satisfy itself that the prosecution has proved its case beyond reasonable doubt. This is a rule of prudent peculiar to the circumstances of a criminal case founded on public policy because courts always insist on a much higher degree of proof in criminal cases than in civil cases, for the reason that the consequences of an erroneous conviction are much more serious both the accused – it can be as serious as loss of life and liberty – and the society than the consequences of an erroneous acquittal. This rule is also recognized by Islam.
The test is how the court as the spokesman of a prudent man will treat a piece of evidence in a particular case. Therefore, ‘beyond a reasonable doubt’ rule is not necessarily confined to criminal cases. Thus, proceedings under President’s Order No. 17 of 1977 which entailed disqualification from being elected as a number of the Assembly were proceedings of civil nature; yet the respondent was held entitled to the benefit of doubt rule.
Onus is on prosecution, unless the contrary is provided expressly
The onus to prove the guilt of an accused is always on the prosecution because the accused is presumed to be innocent.
This presumption has been recognized as rule of natural justice in a number of systems. For example, Article 6(2) of the European Convention for the protection of Human Rights and Fundamental Freedoms of 1950 says: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to Law.” But this presumption is not a fundamental right guaranteed by the Constitution of Pakistan.
Rules as to burden of proof and those as to presumptions are closely related; the rules of burden are no more than statements of rebuttable presumptions of law. When a presumption operates in favour of a party, the burden of proof is on the opponent and when the burden of proof is laid by law on a party, the presumption operates in favour of the opponent.
The significance of the presumption of innocence being not a fundamental right guaranteed by our Constitution is that the burden of proof of a fact in a criminal case may, by law, be placed upon the accused and it is now well settled that laws raising the presumptions against, and placing the onus of proof upon, accused are valid laws.
When the accused raises a plea in defence, he may be able to convince the court, even without leading evidence, about the probability of this plea being true and standing to reason, and the benefit of doubt will be extended to him. This principle recognized in Safdar Ali vs. Crown:
“In a criminal case, it is the duty of the court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence, the court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond doubt.”
This principle was followed and applied in Nadeem-ul-Haq vs. State and in the recent case of Rab Nawaz vs. State. The latest mentioned case was on under a Hadd Law namely Prohibition (Enforcement of Hadd) Order 1979.
But a statute may place the burden of proving a fact upon an accused by specifically so providing or it may do so by necessary implication without doing so expressly. Each case will turn on the construction of the particular legislation but the court should be very slow to infer that the legislature intended to impose such an onerous duty on the defendant to prove his innocence in a criminal case. When the burden is so placed on the accused, it is not as heavy as on the prosecution namely to prove its case beyond a reasonable doubt. The burden is discharged on the balance of probabilities. It does not however mean that it is enough for the accused to raise an evidential fact or in other words to raise a defence so that it becomes a live issue in the case.
‘Reasonable doubt’ is human judgment
Law allows to persons accused of criminal offences the benefit of ‘reasonable’ and not of imaginary doubts: what is reasonable doubt is not a question of law; it is essentially a question of human judgment by a prudent person to be formed in each case, in the light of day to day experience in life, after taking into account fully all the facts and circumstances appearing on the entire record. It is anti-thesis of a haphazard approach or reaching fitful decision in a case.
Benefit, when due, must be given
When there is reasonable doubt as to the guilt of the accused, its benefit must go to him. The doubt, it should be emphasized, must be a reasonable doubt which means a doubt “such as to assail a reasonable mind and no any and every kind of doubt and much less a doubt conjured up by pre-conceived notions……..” That there are weaknesses in the defence case, or that the court ahs not believed in the defence version cannot help the prosecution. The result of the findings that the case is not proved beyond reasonable doubt has to be an order of acquittal. Benefit of doubt does not mean, what a judge who came to deliver a judgment at the end of one tricky case thought it meant. After reviewing all the evidence, the judge concluded: “In summary I do not know whether you are guilty or not. There is an element of doubt in this case, but you are not getting the benefit of it. I am sending you to prison for ix months. If you are guilty you have got off lightly. If you are innocent let it be a lesson to you.”