Presumptions

PRESUMPTIONS PRESUMPTIONS By Muhammad Masood Asghar Civil Judge (Punjab) In the legal field a question may arise as to what is the necessity and why courts would rely and act upon presumptions, while discharging all important duty of dispensation of justice? This is the question, which this work intends to answer along with discussion of some salient features of law relating to presumptions. Most of the focus would be the law of presumptions in our legal system. Definitions and Concept Presumption literally means an idea that is taken to be true on the basis of probability. According to Merriam Webster it is "a belief that something is true even though it has not been proved: an act of accepting that something is true until it is proved not true." In Black's Law Dictionary (Eighth Edition) presumption is defined as under: "A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence."1 Presumption is a conclusion drawn from circumstantial evidence. It is a legal inference that must be made in light of certain facts. Presumption is somewhat different from a positive assumption. Former requires existence or proof of certain facts before a further inference is made, whereas latter is in the nature of a pure hypothesis. Moreover hypothesis is often used for elaborating something during discussion etc. and on the other side presumption is a subject of substantive law, giving rise to legal rights. According to William P. Richardson "A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection."2 In other words, when law requires a certain inference to be drawn from a given fact or set of facts, the inference so required by law to be drawn, may be called presumption of law. A presumption is a rule of law that attaches definite probative value to specific facts and directs that peculiar inference as to the existence of one fact not actually known shall be drawn from a fact which is known and proved. It furnishes prima facie evidence of the matter to which it relates and relieves the party of the duty of presenting evidence until his opponent has introduced proof to rebut the presumption. It raises such a high degree of probability in its favour that it must prevail unless clearly met and explained and over turned by explanatory proof to the satisfaction of the Court.3 Kinds In different situations law attaches variable value to the inferences required by it to be drawn, depending upon the wisdom of the legislature behind the mandate of the presumption. Presumptions therefore can be classified into two kinds on the basis of the extent of their effect or legal/evidentiary value. These kinds are rebuttable presumptions and conclusive presumptions. Rebuttable Presumption Also known as conditional presumption, this specie of presumption is defined in the Black's Law Dictionary as "An inference drawn from certain fact that establish prima facie case. which may be overcome by the introduction of contrary evidence."4 In other words in the case of this kind of presumption, an opportunity is given to the party adversely affected by the presumption, to rebut it through production of evidence or argument. Some examples of rebuttable presumptions in our legal system are found in the provisions of Articles 90 to 101, 123 to 127 and 129 Qanun-e-Shahadat, 1984, explanation to section 12 of The Specific Relief Act 1877 and of course in the general principle that "Accused is presumed to be innocent unless proved guilty". In all cases of this kind of presumption, there is an opportunity for the party affected thereby to rebut the presumption prescribed by law. Rebuttable presumption disappears when contrary evidence is introduced. The words "Unless and until the contrary is proved" enshrined in the explanation to provision of section 12 Specific Relief Act 1877 makes out the rebuttable or conditional nature of the presumption codified therein. Rebuttable presumptions can be further classified into rebuttable mandatory and rebuttable discretionary presumptions. An example of rebuttable mandatory presumption is the provision of section 12 mentioned above, where statute clearly mandates the presumption. Whereas an example of rebuttable discretionary presumption is Article 129 Qanune-e-Shahadat, 1984 which gives the court a choice in drawing presumption. Conclusive Presumption In Black's Law Dictionary, it is defined as: "A presumption that cannot be overcome by any additional evidence or argument." According to John H. Wigmore" 'Conclusive presumptions' or 'irrebuttable presumptions' are usually mere fictions, to disguise a rule of substantive law (e.g., the conclusive presumption of malice from an unexcused defamation); and when they are not fictions, they are usually repudiated by modern courts."5 Some American authorities agree that a so-called "conclusive presumption" is really a rule of substantive law.6 According to Richard Eggleston "Conclusive presumptions, sometimes called irrebuttable presumptions of law, are really rules of law. Thus it is said that a child under the age of fourteen years is conclusively presumed to be incapable of committing rape. This is only another way of saying that such a child cannot be found guilty of rape."7 In our legal system an example can be found in Article 128 of Qanun-e-Shahadat, 1984, which lays down a conclusive presumption of legitimacy. Rebutable presumptions are indicated by the expression "shall presume and Articles 90 to 95 and 121 of Qanun-e-Shahadat, 1984, govern these presumptions. Irrebuttable presumptions are indicated by the expression "shall be conclusive proof". Articles 55 and 128 of Qanun-e-Shahadat, 1984. pertain to these presumptions. There is no difference between the phrase "Conclusive Proof", or "Conclusive Evidence". The object of both the phrases, is to give finality to the establishment of the existence of a fact from the proof of another.8 Presumptions mentioned in Arts. 90 to 95 of Qanun-e-Shahadat, 1984 are obligatory whereas presumption mentioned under Arts. 96 to 98, 100 and 129 of Qanun-e-Shahadat, 1984 are permissive in nature and court may or may not raise a presumption.9 Presumptions of fact and presumptions of law Phipson says that "presumptions of law are arbitrary consequences expressly annexed by law to particular facts." Presumptions of fact on the other hand are inferences which the mind naturally and logically draws from given facts, irrespective if their legal effect. Presumptions of fact are not therefore obligatory in the sense that Court must raise them. Presumptions of fact are essentially rule of evidence governing the question of burden of proof. Presumptions would be drawn against party failing to produce evidence to establish a fact which he is required to prove. 10 The distinction between a presumption of fact and a presumption of law is well known. The presumption that Muslims in Pakistan belongs to Hanfi Sunni sect is obviously a presumption of fact and has apparently been propounded by virtue of Article 129. 11 Sources Presumption is a rule of evidence that is derived mostly from statutes. It is a subject of substantive law. However not only the statutory law but also customary and personal laws form basis of presumptions. Presumptions of law however are usually not originated from precedent law. An example of a presumption from Islamic personal law is that marriage is presumed in absence of direct proof, from: (a) Prolonged and continual cohabitation as husband and wife. (b) The fact of the acknowledgment by the man of the paternity of the child born to the woman, provided it is a valid acknowledgment.12 Examples of some statutory presumptions in our legal system are various. These can be found from Article 90 to Articles 101, 123 to 129 Qanun-e-Shahadat Apart from the statutory presumptions, there are presumptions based upon general principles or legal maxims e.g. "Accused is presumed to be innocent unless proved guilty." Reasons or logics behind presumptions One of the reasons and principles behind presumptions is Res ipsa loquitur. Res Ipsa loquitur: Article 129 Qanun-e-Shahadt authorizes court to presume existence of any fact which in its view is likely to have happened regard being had to common course of natural events, human conduct and public and private business in relation to facts of particular case. Owners having constructed building in violation of approved plan, their liability must be determined on the basis of principle of res ipsa loquitur i.e. things speak by themselves. Owners having constructed six floors with number of blocks hand acted in violation of approved plan, case against owners of building would justify Court to press into service Article 129 Qanun-e-Shahadat giving rise not only to presumption but impelling circumstantial evidence that owners being beneficiaries were guilty.13 The rule contained in Article 100 of Qanun-e-Shahadat, 1984 is founded on convenience and expediency alone. In the case of ancient documents by afflux of time the evidence may disappear like the non-availability of its author, executants and attesting witnesses either because of death or that they cannot be produced being not subject to the process of the court or have otherwise become incapable of giving evidence.14 From the presumption contained in Article 128 Qanun-e-Shahadat, it appears that the wisdom of legislator behind this kind of presumption was that it is against public policy and not in the welfare of the child that question of his legitimacy be discussed in courts, which can have adverse effect on the child. As such public policy and welfare of child also appear to be reasons for justification of presumptions. Provisions of Articles 90, 91 and 129 Qanun-e-Shahadat are based on the maxim, "Omnia praesumuntur rite esse acta" which means that "all things are presumed to have been done rightly."15 From the provision of Article 129 Qanun-e-Shahadat it emerges that common knowledge and common sense is the underlying factor behind all the presumptions contained therein. As they say law is nothing but common sense. Common knowledge or prudence of an ordinary man is recognized also in the presumptive nature of definition of 'proved fact' under sub-clause (4) of Article 2 Qanun-e-Shahadat, 1984. For convenience of reference that provision is reproduced here: "A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." Another reason behind presumptions is the greater probability about the existence of a positive or negative fact than it can be attached to non-existence of such a fact. Presumptions attempt to apply probabilities. In civil cases court has to in fact weigh probabilities about the existence or otherwise of a fact in issue or relevant fact and this in fact forms one of the rationales behind presumptions. Legal Effect/Evidentiary value of presumptions A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption. It is commonly understood that a person who desires any court to give judgment on the basis of existence of some facts asserted by him, is under burden to prove that such facts exist. However when presumption comes into play, it changes the scenario. Then the person against whom presumption is drawn, has to overcome it through such evidence as refutes it or throw some doubt on it. A presumption furnishes prima facie evidence of the matter to which it relates and relieves the party of the duty of presenting evidence until his opponent has introduced proof to rebut the presumption. It raises such a high degree of probability in its favour that it must prevail unless clearly met and explained and over turned by explanatory proof to the satisfaction of the Court.16 According to Sarkar, perhaps the most important rule as to presumptions is that they must be based upon facts and not upon inferences or upon other presumptions. No presumption can safely be drawn from a presumption. The facts presumed should have direct relation with the fact from which the presumption is drawn; but when the facts are established from which presumptions may be legitimately drawn, it is the province of the jury and to deduce the presumption or inference of fact.17 If, the facts are clearly established, forming a proper basis for a presumption of law, the jury has no right to disregard the presumption which the law raises. The presumption in such case in one deriving its force from the law and not merely from processes of reasoning. 18 Clause (4) of Article 2 Qanun-e-Shahadat, 1984, states that "A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." This definition of 'proved fact' makes room for inference to be drawn and it makes the fact presumed as having been proved. Clause (7) of Article 2 Qanun-e-Shahadat states that whenever it is provided by this Order that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. Similarly under clause (8) of said Article directs that court shall presume a fact, it shall regard it as proved, unless and until it is disproved. However Clause (9) states that when Qanun-e-Shahadat declares one fact to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Hence the factum of presumption would be tantamount to proof of the fact with regard to which presumption is drawn. It ensues therefrom that if the party against whom a rebuttable presumption is drawn under the relevant law. does not overcome it, by production of evidence or argument, the fact presumed will be deemed to be proved by the implication/operation of law. Presumptions and Judicial Notice Judicially noticeable facts as enumerated in Article 112 Qanun-e-Shahadat, 1984 are mostly universal or admitted things, the existence of which is undoubtedly within public knowledge, such as laws, seals of courts, territory of Pakistan, divisions of time and geographical divisions of the world, rule of the road etc. No proof of any judicially noticeable fact is required and court is required to take cognizance of such things itself. No person would ordinarily be disputing these things and if one does so, that would amount to wastage of precious time of court. Law required courts to take judicial notice of these matters so that process of court is not involved in undesirable practice of proving such basic phenomenon. As such the effect of judicial notice is that party claiming its benefit is not supposed to prove it. If a litigant is required to prove the law itself, it would be harsh as courts of law are to implement laws in their true perspective and therefore supposed by law itself to know it. As they say Judge is supposed to wear all the laws on his sleeves. Presumption on the other hand, is a rule that deals with more material and substantial inferences about facts in issue. Courts deduce important conclusions on the basis of existence of certain facts as prescribed by law. An example of this is that in order to apply the presumption contained in Article 100 Qanun-e-Shahadat following facts must be proved: (a) The document to attract the application of Article 100 must purport, or be proved, to be thirty years old. (b) The terminus a quo for the computation of the period of thirty years starts from the date not when the document presented but from the date when its genuineness is challenged. (c) The document must have been produced from the proper custody. (d) The presumption is discretionary and not compulsory. (e) The judicial consensus is in favour to the position that where the lower Court has exercised his discretion in favour or against the document such discretion is not to be interfered lightly. (f) Great care and caution should be exercised in applying the presumption. (g) The presumption is a presumption of law and can be raised at any stage.19 Unlike presumptions there are no inferences to be drawn in case of judicial notice and court just has to take into account the existence of some very fundamental things. There are no pre-requisites in the case of judicial notice and a court must in all cases take judicial notice of the things enlisted in Article 112 Qanun-e-Shahadat. Court may require any person seeking judicial notice by it, to produce any book or document as it considers necessary to enable it to do so. However this is merely a technical and procedural condition and is opposed to the judicial proof of certain facts before which a presumption is required to be drawn. A presumption is always drawn on the precondition of proof of some other facts, which is not the case with judicial notice. As under Article 128 Qanun-e-Shahadat presumption of legitimacy can be drawn only if the child is born after the expiry of six lunar months of marriage or within two years after its dissolution and the mother remaining unmarried. On the contrary if we take example of judicial notice, it can be said that courts have to take judicial notice of law such as C.P.C. or Cr.P.C. and there are no preconditions before taking of judicial notice and courts have to simply apply the law subject to the procedural requirement embodied in Article 112(3) Qanun-e-Shahadat that court may in an appropriate case ask for a copy of the book or enactment from the party asking the court to take judicial notice, of such law, so as to enable it to do so. However another view of relation between presumption and judicial notice is possible. Presumptions can be understood as inferences arising from a combination of judicially noticeable facts and circumstantial evidence. As already discussed presumption is belief of some fact on the basis of proof of some other facts and as such it is analogous to circumstantial/inferential evidence. Additionally presumption discharges a person from the liability to prove a certain fact about which a presumption shall or may be drawn under law and it is in this sense that it can be treated as somewhat similar to judicial notice. Conclusion In the end it can be said that in an adversarial system of justice like ours, it is the duty of the rival parties to produce evidence in proof of the facts alleged by them and courts do not, in most cases play active role of the nature of an investigator. The matter of production or withholding of evidence falls within the scope of strategic right of parties to a `lis' before the court. As such a party may fail to produce a material piece of evidence, necessary for a just and effective decision of a 'lis'. Similarly evidence produced by a party may not be sufficient for determining the rights of parties conclusively, which conclusive adjudication is the inherent function of courts of justice. It is in this state of affairs that law enables a court to draw certain inferences from a given fact or set of facts, so as to enable the court to decide the matter conclusively. In many cases, it is noticeable that parties either owing to lack of knowledge or inability or disability or inefficiency of its legal agent does not produce necessary evidence for a satisfactory proof of material facts involved in a case. In such like situation, if law had not enabled the courts to deduce certain inferences, it would almost be impossible to reach an effective and conclusive decision in many cases. It is this backdrop that enhances the necessity and importance of presumptions in any system of administration of justice. Moreover there are certain elements that are not capable of conclusive proof, such as fraud, wilful default, dishonest intention or mala fide and good faith etc. Therefore courts have to inevitably draw certain inferences or presumptions keeping in view particular facts and circumstances of a given case, without which the duty of courts of adjudication of rights and thereby administration of justice cannot be fulfilled. It must be remembered that presumptions are an integral part of any legal system and they play a vital role in the function of dispensation of justice. Without law of presumptions our legal system would not be complete and effective as proof of many facts would not be possible. Now there is a growing need to enhance the knowledge and awareness about the application, importance and modalities of presumptions among the students of law and members of legal fraternity. BIBLIOGRAPHY/REFERENCES (1) Black's Law Dictionary (eighth edition) [Cases: Criminal Law 305; Evidence 53-89. C.J.S. Criminal Law 695; Evidence 2,130-196, 1341] (2) The Law of Evidence 53, at 25 (3d ed. 1928). (3) AIR 1958 Punj. 333 (4) Black's Law Dictionary eighth edition [Cases: Evidence 89. C.J.S Evidence 131, 135, 152-156, 160] (5) A Students' Textbook of the Law of Evidence 454 (1953). (6) Cf. 9 WIGMORE, EVIDENCE (3d ed., 1940) 292, 2492. (7) Evidence, Proof and Probability 92 (1978). (8) 2009 P.Cr.L.J. 1319 (9) PLD 2013 Peshawar 5 (10) PLD 1986 Jour 146 (11) PLD 1977 Karachi 320 (12) Mulla's Muhammadan Law 2004 (13) PLD 1998 Karachi 86 (14) 2005 CLC 180 (15) 2000 MLD 1581 and PLD 2007 Karachi 1 (16) AIR 1958 Punj 333 (17) [28 Mo 388] (18) [90 III 612] (19) 197 Civil S.C. (AJ & K)898 (pp. 900-903)