Presumptions of Law and Fact

Presumptions in Law of Evidence

Overview:

Presumptions are inferences which are drawn by the court with respect to the existence of certain facts. When certain facts are presumed to be in existence the party in whose favor they are presumed to exist need not discharge the burden of proof with respect to it.

This is an exception to the general rule that the party which alleges the existence of certain facts has the initial burden of proof but presumptions do away with this requirement. Legally speaking, presumption is not an evidence. It is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is either conclusive or rebuttable. But as provided in the Evidence Act (Qanoon-e-Shahadat Order), presumption may be of three kinds, i.e., presumption of fact, presumption of law and conclusive presumption/proof.

Presumption Meanings:

Literal Meanings of Presumption:

Term “presume” is derived from a Latin word “praesumo” which means “a state of things taken for granted.” It simply means “to believe or accept upon probable evidence.”

According to Oxford Dictionary of Law:

A supposition that the law allows or requires to be made. Some presumptions relate to people. Other concern events.

Definitions of Presumption:

(a) Black’s Law Dictionary:

A legal device which operates in the absence of other proof to require that certain inferences be drawn from the available evidence.

(b) Case Law Definition:

Van Wart vs. Cook OkI. App. 557: “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact until presumption is rebuttable.

(c) Presumptions is also defined as:

It can be defined as an affirmative or negative inference drawn about the truth or falsehood of a fact by using a process of probable reasoning from what is taken to be granted. A presumption is said to operate where certain facts are taken to be in existence even there is no complete proof.

Presumption is a rule of law that ascribes a straightforward probative denomination to accurate statistics and fosters a high degree of probability unless upset and annulled by evocative proof to the satisfaction of the Court and in the event of two equal presumptions, the Court may prefer that which best accords to the facts and circumstances of the case [2022 SCMR 1398 Supreme Court]

Examples of Presumptions:

Followings are some of the examples of presumptions which are drawn up under Qanoon-e-Shahadat Order (Evidence Act):

(i) Presumption of Death [Art. 123] Qanoon-e-Shahadat “
(ii) Presumption of Innocence
(iii) Presumption of Legitimacy (Art. 128]
(iv) Presumption of Survivorship
(v) Presumption of Validity
(vi) Presumption of Marriage
(vii) Presumption as to Documents [Arts. 90.101]
(viii) Presumption as to Accomplice Evidence [Art. 129 (b)]
(ix) Presumption as to Official Acts [Art. 129 (c)]

Kinds of Presumption:

Presumption is a rule which treats an unknown fact as proved on proof or admission of certain other facts; it can be presumption of fact /natural presumption or presumption of law. Apart from all other kinds generally speaking presumption may either be rebuttable or irrebuttable.

(A) Presumption of Fact:

Meanings of Presumption of Fact:

(i) According to Black's Law Dictionary; These are presumptions which do not compel a finding of the presumed fact but which warrant one when the basic fact has been proved
[ILR 1958 Punj. 800 (DB)]. It was held that a presumption of fact is rule that a fact otherwise doubtful may be inferred from a fact which is proved. Such presumption is not an irrebuttable one and in each particular case it will have to be examined whether it should be raised and whether there is anything in rebuttal of the same.

These are inferences which the mind naturally and logically draws from given facts without the help of legal direction. The court is not bound but it may draw some inferences. Such inferences are drawn not by virtue of any value of law but by the spontaneous operation of the reasoning faculty. All that the law does for them is to recognize the propriety of their being so drawn if the judge thinks fit. when inferring the existence of a fact from another the courts do nothing more than apply a process of reasoning which the mind of any intelligent being good under similar circumstances applied for and the force of which altogether on experience and observation of the course of nature. These spring from human action and usage and habits of society. These presumptions therefore fall more properly within the province of logic and do not constitute a branch of jurisprudence. They are always permissive in the sense that the court has the discretion to draw or not to draw them. They are also rebuttable and there evidentiary effect may be negative. By contrary proof, they are indicated in Qanun-e-Shahadat Order ( Evidence Act) by the expression may presume and are mentioned in Articles 96, 97, 98, 100 and 129)

“Legal Effect of May Presume”:

Ordinarily, in Evidence Act (Qanoon-e-Shahadat Order), the words “may presume” are used to express presumption of fact. It is provided under Art. 2 (7) that whenever the expression “court may presume” is used it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

Illustrations of Presumption of Fact:

(a) Presumption of Continuance of Marriage:

It is open to a court upon proof of a marriage either to regard as proved the subsistence of that marriage on a later date unless and until it should be disproved or else to call for proof of it:

(b) Accomplice Evidence:

A court should regard an accomplice as prima facie unworthy of credit; but this presumption may be displaced in the circumstances of a particular case.

(c) Legitimacy:

Where marriage is proved and there was evidence that the wife visited the husband twice or thrice and there being no proof of non-access (absence of opportunity of intercourse), legitimacy of a child born during such separation cannot be doubted.

(d) Non-production of evidence:

Inference from non-production of evidence is one of the strongest presumption of fact or circumstance known to law and law allows it against the party who is withholding the evidence, which the nature of his case would be manifested [2007 YLR 954]

(B) Presumption of Law:

Meanings of Presumption of Law:

A presumption of law is one which, once the basic fact is proved and no evidence to the contrary has been introduced, compels a finding of the existence of the presumed fact. The presumption of law is rebuttable and in most cases, the adversary introduces evidence designed to overcome it.

EXPLANATION of Presumption of Law:

Presumption of law is either rebuttable or irrebuttable. Rebuttable presumptions are indicated by the expression "shall presume" and Arts.90 to 95, 99 & 121, Qanun-e-Shahadat, 1984, govern these presumptions. Irrebuttable presumptions are indicated by expression" shall be conclusive proof", Arts.55 & 128, Qanun-e-Shahadat, 1984, (Evidence Act) pertain to these presumptions. No difference exists between the phrases "conclusive proof" or "conclusive evidence", object of both the phrases, is to give finality to the establishment of the existence of a fact from the proof of another. [2009 PCrLJ 1319]
There are inferences which the law expressly directs the court to draw from particular facts. These presumptions are nothing but documents drawn from human experience and observation and expressed in the form of Arbitrary Rule of Law.

Therefore, they constitute a definite branch of jurisprudence until presumptions of fact.
These are always obligatory because a presumption of law being expressed in the form of an imperative rule of law. The judge is bound to act according to the rule and can't refuse to draw the presumption.
They may or may not be rebuttable while the presumption of facts is rebuttable.
They occur in Articles 90 to 95, 99 and 121 when not rebutted they are called irrebuttable presumptions of law or conclusive proof. For example: Of such presumptions are mentioned in Articles 55 and 128, when one fact is declared by law to be conclusive of another, the court cannot allow evidence to be given in rebuttal.

“Legal Effect of Shall Presume”

The expression “shall presume” is defined in Article 2 as “whenever it is directed by this Order (Evidence Act) that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

Examples of Presumption of Law:

(a) Genuineness of Khataunis:
When a Patwari issues a certified copy of Khataunis without complying with the provisions of law governing its issue, the court is not found to draw a presumption in regard to its genuineness under Article 90 of the Order (Evidence Act).
(b) Presumption of Consideration:
The presumption of consideration under Section 118(a), Negotiable Instrument Act, 1881, is that court shall presume a negotiable instrument to be for consideration and shall regard the consideration as proved unless and until it is disproved.
Presumption of law , which was rebuttable, was that negotiable instrument was made or drawn on such date which was duly recorded on such instrument. [1998 SCMR 816]

(C) Conclusive Proof:

Meanings of Conclusive Proof:

A conclusive presumption is one in which proof of basic fact Tenders the existence of the presumed fact conclusive and irrebuttable. By declaring certain facts to be conclusive proof of other facts an artificial probative effect is given by the law to certain facts and no evidence is allowed to be produced with a view to combating that effect.

Examples of Conclusive Proof:

(a) Presumption as to Child under Seven Years (Conclusive Proof):

An example of conclusive proof is the rule that a child under seven years of age is presumed to be incapable of committing a felony.

(b) Certificate of Registration:

A certificate of registration given by the Registrar in respect of a company is conclusive evidence of the fact that each subscriber wrote opposite his name the number of shares he took. [AIR 1948 Oudh 197]

“Shall Presume” and “Conclusive Proof”:

“Shall presume” has to be distinguished from “conclusive proof” as defined in the Evidence Act (QSO) . In case in which a court “shall presume a fact” the presumption is not conclusive but rebuttable. [PLD 1962 Kar. 608]

Difference between Presumptions of Law and Presumptions of Fact

Shall Presume” and “May Presume”: Distinctions:

A reading of the Qanoon-e-Shahadat Order (Evidence Act) regarding presumptions reveals that there is a clear cut difference between these two expressions. “Shall presume” denotes the presumption of law, whereas, “may presume” refers to the presumption of fact. There is another difference on the point that where the expression “may presume” is used, the presumption is always rebuttable, but where “shall presume” is used, the presumption may be irrebuttable also. However, the differences may be summarized as follows:

Difference As to	Shall Presume	May Presume
(i) Law and Fact:	“Shall Presume” denotes the presumption of law which is especially associated with Court.	May Presume” refers always to the presumption of fact.
(ii) Rebuttability:	Where the words “shall presume” are used it mean the presumption drawn out may be rebuttable and may also be irrebuttable.	But where the words “may presume” are used it refers that the presumption is always rebuttable and in no case can be irrebuttable.
(iii) Conclusive Proof:	“When the presumption of law is prescribed to be irrebuttable it becomes conclusive proof.	There is no concept of conclusive proof as regards presumption of fact.
(iv) Calling for Proof:	A reading of Articles 2 (7) & (8) bears out that in the case of presumption of law the court is not entitled to call for proof.	Whereas in case of presumption of fact court is given the discretionary power to call for proof of it.
(v) Strength:	A presumption of law is one, which once the basic fact is proved and no evidence to the contrary has been introduced, compels a finding of the existence of the presumed fact.	Such are presumptions which do not compel a finding of the presumed fact but which warrant one when the basic fact has been presumed.

Presumption and Inference:

In the law of evidence, inference is a truth or proposition drawn from another which is supposed or admitted to be true. It is a process of reasoning by which a fact or Proposition sought to be established is deduced as a logical consequence from other facts. Generally, there is no difference between presumption and inference. But in a very strict sense presumption signifies to that inference which is codified in the form of rule of law, statutory or judicial. But inference is not secured under any statute but drawn by a judge.

Conclusion:

Presumption holds the field in the absence of evidence, but when facts appear presumptions recede. 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 favor that it must prevail unless clearly met and explained and overturned by explanatory proof to the satisfaction of the court.

Relevant Questions:

What is presumption? Discuss various kinds of presumptions with reference to any of the laws/Statutes of Evidence.
Difference between: presumptions of law and presumptions of Fact?
Explain in detail the examples of presumption of law.
Discuss the presumptions of fact and law.
Write a note on “Presumptions of fact and law”.

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