Onus of Proof

Regarding the onus of proof, it is trite law that the initial onus is on the person asserting a fact for seeking a relief

In the present case initial onus was upon the aggrieved 'worker' to prove that he was a 'workman' under both statutes i.e. the Industrial Relations Act, 2012 and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Regarding the onus of proof, it is trite law that the initial onus is on the person asserting a fact for seeking a relief

In the present case initial onus was upon the aggrieved 'worker' to prove that he was a 'workman' under both statutes i.e. the Industrial Relations Act, 2012 and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

Claim of the plaintiff was that she never made any oral gift (tamleeq) in favour of her husband, so not only the mutation having been attested on the basis of tamleeq (tamleeq-mutation) was fraudulent, but subsequent inheritance-mutation after the death of her husband was illegal also

Further plea of plaintiff was that by said inheritance-mutation, share was devolved upon the defendant/lady, and her siblings, whom her husband had already divorced

Suit was decreed and appeal preferred by the petitioners/defendants was dismissed by the Appellate Court

Validity

Record revealed that the respondent/plaintiff produced oral as well as documentary evidence in support of her claim

Where a transaction by way of oral gift (tamleeq) was claimed by the beneficiary but its existence was denied/disputed by the owner/transferor, the onus of proof would shift on to the beneficiary who would be required to prove oral transaction and also the subsequent mutation

Petitioners, who were under heavy onus to prove said stance, neither disclosed the mandatory particulars in written-statement viz date, time and place of oral gift and also the persons in whose presence such oral transaction was made nor took the trouble to produce any witness of such oral transaction and also the attestation of mutation

Neither the persons who allegedly identified the donor before the Revenue Officer were produced in the witness-box nor transfer of possession could be proved which constituted element of valid gift

Even otherwise, the claim of oral gift in such circumstances was unnatural/unusual on the face of it inasmuch has the donor had allegedly transferred her entire property to her late husband despite the fact she had her own children, thus the oral tamleeq could not be proved by any admissible evidence

Petitioners had failed to prove the oral transaction/ gift (tamleeq), and thus subsequent mutations were result of fraud, misrepresentation and were of no legal effect

No illegality or infirmity was noticed in the impugned orders and judgments passed by both the Courts below

Revision was dismissed, in circumstances.

Where both the parties have led their respective evidence, the Court has to evaluate the evidence on the balance of probabilities and the case is to be decided in favour of one party, unless the evidence of rival arises to the same degree of cogency as is required to discharge the burden in civil matters.

Onus to prove the claim was ordinarily on the person moving the court to seek his relief, as he was the one who was to fail if no evidence at all was given on either side

However, when the contesting party took up a defence and desired the court to pronounce judgment as to his legal right dependent on the existence of facts which he asserted, then the onus to prove those facts laid on him

After the parties had produced their respective evidence, the court was to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence

On whoever's side the scale of evidence tilted would emerge as the victor, and be awarded the positive verdict.

Onus to establish the factum and ingredients of the gift was on the beneficiary who claimed such gift and which was denied or challenged by the other legal heirs.

When landlord had deposed that tenant had not paid rent then onus to prove that rent was paid would shift upon the tenant

Tenant should prove that he had paid the rent through reliable evidence

Where a party had withheld the best evidence, it would be presumed that said party had some sinister motive behind it

Tenant-defendant had failed to prove that he had paid rent of demised premise

Defendant could not escape the liability to pay rent up to the period when possession of suit house was handed over to the plaintiffs

Revision was dismissed, in circumstances.

Claimant impugned order of Insurance Tribunal whereby his claim that he was entitled to benefit of insurance claim under "Burglary and House Breaking" of policy obtained by claimant, was rejected

Validity

Insurance policy mentioned that onus was on claimant to prove that incidence of theft happened consequent to actual forcible and violent entry in his premises

In present case, there were contradictions in statements of witnesses and failure to produce best evidence in terms of Art. 129 of the Qanun-e-Shahadat, 1984 which would lead to adverse inference

Incident of "theft" could not be termed as unlawful breaking into the premises and except the claimant who was beneficiary of the claim, no independent witness was produced to establish factum of forcible and violent entry which constituted the condition precedent for attracting the indemnification clause of the Policy

No misapplication of law was therefore made by the Insurance Tribunal

Appeal was dismissed in circumstances.

Provisions of S.14(c) of National Accountability Ordinance, 1999 contemplate a reverse onus as opposed to settled law that in criminal cases, onus is always on prosecution to establish its case beyond reasonable doubt.

Petitioner/ex-husband contended that as his parents paid amount to parents of wife to purchase dowry articles in wake of their poor financial status, so respondent/ex-wife was not entitled for decree of recovery of dowry articles

Validity

Dowry articles were always property of wife irrespective of the fact that who had purchased the said articles, therefore, Family Court keeping in view the list of dowry articles, evidence available on record and principle of wear and tear, had rightly fixed the amount of Rs. 20,000/- as alternate price of the dowry articles

Section 14(2)(b)(c) of Family Courts Act, 1964, provided that decree of recovery of dowry articles not exceeding Rs. 1,00,000/- was not appealable

Petitioner had to prove through cogent evidence financial status of parents of his ex-wife which he could not

Assessment and appraisal of evidence was the exclusive function of Family Court therefore, findings of facts determined by the Family Court could not be lightly set aside by High Court in constitutional jurisdiction

No illegality or infirmity having been noticed in the impugned judgments passed by the two Courts below, constitutional petition was dismissed accordingly.

Accused persons could only be punished for contravention of Ss. 6, 7 & 8 under S. 9 of Control of Narcotic Substances Ordinance, 1997, on the basis of quantity of narcotic drug, psychotropic substance or controlled substance

Neither prosecution nor Trial Court was sure about actual quantity of alleged recovered substance on the basis of which culpability of accused persons was determined

None of the documents or reports tendered in evidence were even put to accused persons in their statements under S. 342, Cr.P.C.

Alleged statements of witnesses and accused recorded under S. 164, Cr.P.C., were also not placed before accused persons when they were examined under S. 342, Cr.P.C.

Though in terms of S. 29 of Control of Narcotic Substances Act, 1997, some departure to general principle was introduced but even in presence of such provision of law, the prosecution could not be absolved from its initial liability to discharge onus of proof

Initial onus of proof was always upon prosecution and once it was discharged, then the accused would be burdened to prove contrary in terms of principles laid down in S. 29 of Control of Narcotic Substances Act, 1997

Prosecution had failed to bring home guilt of accused and its case suffered coherent defects and the evidence was full of doubts

High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge

Appeal was allowed in circumstances.

Ingredients.

Claim of juvenility was based upon an assertion of fact and the onus to prove such fact was upon the accused person and if he failed to establish such fact through positive evidence then no advantage could be taken by him on such score and no benefit of any doubt regarding his age could be extended to him.

Where court was unable to decide the case on the basis of evidence adduced by parties, decision would be governed by (principle of) onus of proof

Mutation was not a document of title though presumption of truth was attached to longstanding mutation entries but that presumption could be rebutted by cogent and reliable evidence

Mutation in favour of plaintiff having been challenged immediately, strong presumptive value could not be attached thereto

Defendants had rebutted the presumption by producing dower deeds duly proved by two witnesses and the scribe thereof

Onus of proof to prove the genuineness of the actual transaction was on the beneficiary of mutation

Plaintiff failed to prove the payment of consideration and transfer of possession

Object of S.42 of the West Pakistan Land Revenue Act, 1967 was to ensure transparency and avoid fraud by carrying out mutation attestation in public gathering

Revenue Officer produced by plaintiff was not appointed in the estate where house in dispute was situated

Mutation in question, in circumstances, lacked the essentials acquired under S.42, West Pakistan Land Revenue Act, 1967

Revision was dismissed.

Where court was unable to decide the case on the basis of evidence produced by the parties, onus of proof would govern the decision.

Onus was on the plaintiff to establish the fact that the property was in wrongful possession of the defendants which made him entitled for mesne profit

Only object of awarding of mesne profit was to compensate a person entitled to be in possession of a property, but being kept out of possession, thereby deprived from the profits arrived out of such property

Person who was not in wrongful possession of such property and was in possession of property as a co-sharer before partition of the same, could not be made accountable for the profits earned during the period

While deciding the question thereby assessing mesne profit the person claiming was entitled only to the extent whatever the person in wrongful possession had collected from the property or the amount which without wilful default he had received

Some specific evidence was required initially to establish that the person was in wrongful possession and secondly he had received the profits arriving therefrom

Plaintiff was not entitled for mesne profit in circumstances.

Taxpayer contended that Article 117 of the Qanun-e-Shahadat, 1984 explicitly provided that the onus to prove that such amount of gross sales declared in the income tax returns represented taxable supplies, was on the Revenue which remained un-discharged

Revenue contended that onus to prove that the declared gross sales were not taxable supplies was on the taxpayer

Validity

Order passed by the adjudicating officer was not indicative of the fact finding inquiry from sellers and the demand had been created whimsically without any supporting evidence

Amount of sales tax was modified by the First Appellate Authority but order of reduction in sales tax did not explain on what basis the sales tax was reduced

Both the forums below failed to confront the taxpayer with any credible evidence of taxable supplies or apply any intelligible criteria

No tax could be charged or reduced merely on an assumption

Taxable and non-taxable supplies were not quantified by the revenue, on the basis of any undisputable evidence

Even the reduction of sales tax by the First Appellate Authority was without any understandable basis.

Under Article 1(2) of Qanun-e-Shahadat, 1984, it is applicable to the quasi judicial proceedings under Income Tax Ordinance, 1979 therefore, the declarations, including claim of expenses, in the return were to be supported by evidence

Onus to prove that a part of receipt was not taxable under a particular provision of law was on the assessee.

Onus of proving that the declared transaction value was dubious, tainted or colourable lies on the Customs Authorities.

On the basis of the bare and bald allegation that the chassis plate of `the van' was tampered with, or even supposing of the worst situation, that chassis plate in any way re-welded, the same in itself will not in the absence of some other solid evidence, suffice to justify on any legal and reasonable hypothesis the positive finding that `the van' was necessarily smuggled one

No evidence was available on the record showing that `the van' was necessarily smuggled one

Benefit of doubt must always be given as of right to the accused.

To prove at least to discharge the initial onus of proof, that the item was smuggled one, was unquestionably the duty of the prosecution.

When an accused was charged with an offence, then entire onus had to be discharged by the prosecution and it was obligatory that offence should be proved beyond any reasonable doubt-.-Onus would never shift to the defence.

Evidence on both sides , fully read and digested be ore reaching conclusion Placing of initial onus not of "real Importance"

-Succession-Collateral-Gujars of village Gumtala, Tehsil Shakargarh, District Sialkot (formerly part of Gurdaspur District) Half blood and whole blood succeed together Acid test of a basis for collateral succession-Onus of proof-Pagwand and Chundawand.

Bank account in names of two persons -After death of one of them, his heir claiming the whole amount as exclusive property of the deceased while the other depositor claiming the whole amount as belonging to her alone-Issue framed should be an open one, e.g., whether the money was exclusive property of the deceased or of the other joint depositor.