Shifting of burden of proof Barrister

There is no denying the fact that civil liability is different from the criminal liability. The former entails damages, whereas, the latter encapsulates fine, imprisonment, besides forfeiture of ill gotten assets, disqualification from holding public office and disentitlement for taking loan from financial institutions in offences cognizable under the National Accountability Ordinance, 1999 (NAO). Apart from the remedies, both civil liability and criminal liability bears different standards of proof. In the former, the claimant (plantiff) has to prove the case on the basis of 'balance of probabilities', whereas, in the latter, the prosecution (Complainant) has to prove on the basis of 'beyond reasonable doubt'. Criminal liability stifles the liberty of an individual, therefore requires more stringent liability on the prosecution. Basically, the criminal law revolves around presumption of innocence, which envisages that, an accused is innocent unless proved to be guilty. English common law has articulated fundamental principles which buttressed individual liberty. Viscount Sankey L.C. in Woolmington v. DPP [(1935) A.C.462 at 481] articulates that "throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt".
This is commonly known as 'woolmington principle'. It guaranteed that the prosecution has to prove its case beyond reasonable doubt. Similarly, in Brend v. Wood [(1946) L.T.306 at 307], Lord Goddard C.J. said that "it is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind". It mandated that unless and until mensrea (guilty mind) of an accused is proved, he shall not be convicted. Lord Diplock, another illustrious English judge, in Sang [(1980) A.C.402 at 436] referred to the principle nemo debet prodere ipsum, the privilege against self-incrimination or as it was commonly known, "the right of silence", which upholds the right of an accused to be silent, as any answer to police may incriminate him. There are reasons and arguments for placing the burden on the prosecution as it initiates proceedings; it is always easy to prove the positive that the negative; and it has mammoth resources at its disposal for investigation and prosecution.
Globally there has been a trend towards derogation from 'presumption of innocence' through statutory instruments, especially in financial offences and Viscount Sankey referred to them as "statutory exceptions". In laymen terms, it can be described as 'presumption of guilt'. Pakistan is not exception to that. Undoubtedly, the initial evidential burden of proof lies on the prosecution to prove its case; however, this burden shifts (reverse burden of proof) to the accused in certain cases such as bringing forthwith any defense. The shifting of burden towards accused is illustrated either explicitly, or through presumptions, both rebuttable and irrebuttable (through inference).Section 9 of the NAO deals with 12 different shades of offences. Reverse burden of proof is exemplified in the ensuing paras. Section 14 of NAO caters to presumptions, which is nothing more than shifting of burden of proof. Section 14 (a), which deals with offences under Section 9 (i), (ii), (iii) and (iv), calls for a rebuttable presumption but here initially, the prosecution has to prove that the accused person has accepted or obtained or has agreed to accept or attempted to obtain any benefit.
This demands a heavy evidential burden on the prosecution and only after discharge of that burden there will be a rebuttable presumption that an offence has been committed. Similarly, in respect of shifting of burden, the language of 14(b) is similar with 14(a) except that the former deals with the 'giver of the graft', whereas the latter deals with 'the taker of the graft'. Section 14 (c) of the NAO is different vis a vis 14(b). Section 14 (c) deals with offences under clause (v) of sub section (a) of Section 9 of NAO, which caters to owning or possessing any assets by the accused or by his dependents or benamidars, which are disproportionate to the known sources of income. Section. 14 (c) also created a rebuttable presumption, however, unlike 14(a) and (b), it is different in many respects. Firstly, here there is no mention of the word "it is proved" but it says that 'the fact' that the accused person is in possession of an assets disproportionate to his known sources of income. It means that the initial evidential burden on the prosecution is not as strong as like 14(a) and (b). Secondly, there is an explicit presumption by the court, evident by the word, "the court shall presume", unlike, in section 14 (a) and (b), which mandates "it shall be presumed". Thirdly, it qualifies that that the conviction shall not be invalid by reason only that it is based solely on such presumption. It is noteworthy that the honorable apex court has held in Muhammad Hashim Babar vs the State (2010 SCMR 1697) that in respect of offences related to assets disproportionate to the known sources of income, initially, the prosecution has to prove: firstly, the accused person was holder of a public office. Secondly, the nature and extent of the pecuniary resources or assets in possession of the accused.
Thirdly, known sources of income of accused. Fourthly, possessed assets of accused are disproportionate to known sources of income. Once, the prosecution proves these four ingredients, then the court shall presume that the offence is committed unless the accused brings any evidence that the assets are from known sources of income.
This establishes that the accused is duty bound to bring evidence in his defense. Section 14 (d) is another example of shifting of burden of proof, where there is an explicit burden of proof on the accused that he has acted in public interest. The prosecution has an initial very light burden to make out a reasonable case. The shifting of burden of proof is also exemplified by Qanoon-e-Shahadat Order 1984 (QSO). Article 122 of QSO says 'that any fact which is especially within the knowledge of any person, the burden of proving that fact is upon him'.
It establishes that if an accused has any fact which establishes that the disproportionate assets are out from some known sources of income, then he is duty bound to prove that fact. Similarly, illustration (g) of section 129 of QSO says 'that the court shall presume that evidence which could be and is not produced would, if produced, be un-favourable to the person who withholds it'. This also calls upon the accused to bring forth any evidence which is in his knowledge otherwise the same will be presumed against him. The foregoing lend credence to the fact that the presumption of innocence is not an absolute principle throughout the spectrum of offences and the statutory provisions in respect of financial offences puts duty on the accused to bring evidence in his defense.