BURDEN OF

PROOF
BURDEN OF PROOF
Outline
Importance of burden of proof
On whom does the burden of proof lies
Exceptions to the general rule
Legal maxims and related provisions
 Definition
Latin words: onus of proof
duty of proving one’s case/ responsibility of proving his
case
obligation which is imposed on a party, to adduce
sufficient evidence in support of his vital contention to
result in over all success by him in his case.
the obligation placed on the party to produce evidence
to satisfy the court as to the existence or non-existence
of a fact contended by him.
Whoever is in position to contend whether to be in term
of existence (to claim) or non-existence (deny) of a fact,
he is burdened with the burden of proof.
 Importance Of Burden Of Proof
To determine which parties should prove his /her case.
Depends on the case - but generally it lies on the person who
claims (claimant).
& The defendant has to defend / rebut the case against him
either by bringing another evidence or to take oath to deny
the claim.
 Authorities On The General Principle Of BOP

ُ‫وَٱﻟﱠﺬِﯾﻦَ ﯾ َۡﺮﻣُﻮنَ أ َۡزوَٲ َﺟﮭُﻢۡ َوﻟَﻢۡ ﯾَﻜُﻦ ﻟﱠﮭُﻢۡ ُﺷﮩَﺪَآ ُء إ ﱠِﻵ أَﻧﻔُ ُﺴﮭُﻢۡ ﻓَ َﺸﮭَ ٰـ َﺪة‬
َ‫ﺼ ٰـ ِﺪﻗِﯿﻦ‬
‫ت ﺑِﭑ ﱠ ۙ ِ إِﻧﱠﮫُ ۥ ﻟَﻤِﻦَ ٱﻟ ﱠ‬ ِۭ ‫أَ َﺣ ِﺪھِﻢۡ أ َۡرﺑَ ُﻊ َﺷﮩَ ٰـﺪَٲ‬
And those who accuse their own wives (of adultery) and
have no witnesses except themselves (to verify the crime), let
each of them testify by swearing four times by Allah that
they are solemnly telling the truth. (24:6)
Hadith: “…… evidence is for the person who claims, oath is
on those who denies”
The Mejelle: Art 76 : “Evidence is on the claimant an oath is
on the defendant”
 Legal Maxims On BOP

General Principle :
- what is apparent is to be the original state &
everybody is presumed to be innocent

- any claim to the contrary should be

substantiated with proof”
 Authorities/Basis:
Art 5 : Presumption of Originality

‫اﻷﺻﻞ ﺑﻘﺄ ﻣﺎ ﻛﺎن ﻋﻠﻰ ﻣﺎ ﻛﺎن‬

“Remaining of a thing in the state in which it was found
is the presumption (al-asl = original)”

The presumption of law is that the fact remains as it is

UNLESS there is a proof to the contrary.
Art 8:Presumption of Innocence
‫اﻷﺻﻞ ﺑﺮأة اﻟﺬﻣﺔ‬
“The original presumption (al-asl) is that the person is free
from any liability”

everybody is presumed innocent.

any claim to the contrary MUST be proven by supporting
evidence (by the person who claim)
Art 9:Presumptionof Non-Existence

‫اﻷﺻﻞ ﻓﻰ اﻟﺼﻔﺎت اﻟﻌﺎرﺿﺔ اﻟﻌﺪم‬

“As to attributes which may exist or not, the presumption is
that, that they do exist.

‫اﻻﺻﻞ اﻟﻌﺪم‬
“The original presumption of something is that they do not
exist.”

The intervening /new attributes which attach to anything

is presumed not to be in existence)
Art 10: Presumption of Continuity of Fact
‫ﻣﺎﺛﺒﺖ ﺑﺰﻣﺎن ﯾﺤﻜﻢ ﺑﺒﻘﺎﺋﮫ ﻣﺎ ﻟﻢ ﯾﻮﺟﺪ‬
“Anything which has been proven at any particular
time will continue to exist unless proven otherwise.”

The judgement remains unless the contrary is proven

Art 76 : Burden of Proof
‫اﻟﺒﯿﻨﺔ ﻋﻠﻰ اﻟﻤﺪﻋﻰ واﻟﯿﻤﯿﻦ ﻋﻠﻰ ﻣﻦ أﻧﻜﺮ‬
“Evidence is on the person who claims and oath is on
the person who denies”.

Art 77 : Purpose of Proof

‫اﻟﺒﯿﻨﺔ ﻹﺛﺒﺎت ﺧﻼف اﻟﻈﺎھﺮ واﻟﯿﻤﯿﻦ ﻟﺒﻘﺎء اﻷﺻﻞ‬
“Evidence is to prove what is contrary to the apparent
fact and an oath is to ensure the continuance of the
original state.”
Based on the presumption of innocence it necessitates
that the accuser (public prosecutor or pendakwa syar’i
or plaintiff) be charged with the duty of proving his
accusation.
In Islamic law of evidence, the burden of proving
innocence is not imposed on an accused. It is in nature
that everyone is innocent.
E.g. when a husband accuses his wifean to commit zina,
he must produce evidence (witnesses or taking oath).
Original: she is innocent, Claim: commits zina
S. 72 of the Act 1997:
“The burden to produce evidence in a civil case lies on
the person who alleges or asserts a fact (al-Mudda'ii)
and the person who takes oath to deny or disputes a fact
(al-Mudda'a 'alaih)".

s. 87(1) of the Act:

“(1) In a civil case, evidence shall be given by the
plaintiff and defendant, and if the defendant denies the
claim made against him he shall be required to take an
oath according to Hukum Syarak.”
Rojamah Muhamed lwn Abdul Wahab Long 2004 CLJ
233, decided on 3/2/1991,
Aishah bt Abdul Raof lwn Wan Yusof b Wan
Othman (1991) 7 JH(II)
Zainab binti Mahmood lwn Abd. Latif bin
Jusoh (1414H) 8 JH(II) 297,
 Exception To The General Rule
1) Is also known as shiftimg the burden of proof
2) For the defendant if wishes to counter-claim/raise defence,
the defendant needs to prove i.e. the burden of proof is
shifted to the defendant
The burden of proof is shifted to an accused or defendant:
1-Basis for just decision.
‫اﻟﺒﯿﻨﺔ ﻋﻠﻰ اﻟﻤﺪﻋﻰ واﻟﯿﻤﯿﻦ ﻋﻠﻰ ﻣﻦ اﻧﻜﺮ‬

Hadith, reported by Ali: "The Messenger of Allah sent me

to Yaman as a judge. I said: O Messenger of Allah: you are
sending me while I am young in years and I have no
knowledge of judgeship". He said: Verily Allah will soon
give guidance to your heart and make your tongue firm.
When two persons come to you for decision, don't give
decree in favour of the first till you hear the argument of the
other, because that is more necessary that decision may
become clear to you”
S. 72 ,SCEA 1997: “The burden to produce evidence in a
civil case lies on the person who alleges or asserts a fact
(al-Mudda'ii) and the person who takes oath to deny or
disputes a fact (al-Mudda'a 'alaih).

S 87(3) SCEA 1997: In a criminal matter, evidence shall

be given for the prosecution and the accused unless the
accused pleads guilty.

The accused/ defendant has right to defend/ rebut the

accusation/allegation
Thus, the burden of proof will be shifted to the accused/
defendant
2-General exception.

S. 77 of the F.T. Act 1997: "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 provided in the Syariah Criminal Offences
(Federal Territories) Act 1997 is upon him, and the Court
shall presume the absence of those circumstances.”
 Illustration:
(a) A is accused of unlawful cohabitation with B.The
prosecution produces evidence to show that A has
divorced his wife B.
A claims that he was forced to divorce his wife. The
burden of proving that he was forced lies on A.

(b) C is accused of committing unlawful sexual

intercourse with D. C claims that she had already married
D in a foreign country.
The burden of proving that such marriage took place
lies on C.
 ْ‫ُرﻓِ َﻊ ا ْﻟﻘَﻠَ ُﻢ ﻋَﻦ‬
َ‫ﺛ‬
‫ﻖ"ﻠ‬
َ ‫ﺼﻐِﯿ ِﺮ َﺣﺘﱠﻰ ﯾَ ْﻜﺒُ َﺮ َوﻋَﻦِ ا ْﻟﻤَﺠْ ﻨُﻮنِ َﺣﺘﱠﻰ ﯾَ ْﻌﻘِ َﻞ أَوْ ﯾَﻔِﯿ‬
‫َﺣﺘﱠﻰ ﯾَ ْﺴﺘَ ْﯿﻘِﻆَ َوﻋَﻦِ اﻟ ﱠ‬
Hadith of the Prophet s.a.w., “The pen has been lifted from
three: From the sleeper until he wakes up, from the minor
until he grows up, and from the insane until he comes back
to his senses or recovers."
Act by children
S. 51, Syariah Criminal Offences (Federal
Territories) Act 1997: “Nothing is an offence which is
done by a child who is not baligh.”

s. 52(1) of SCOA 1997: "Nothing is an offence which

is done by a person who, at the time of doing it, by
reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what
is either wrong or contrary to law.”

B.O.P is shifted to the child offender to prove that he

is a minor at the time committed an offence.
Mohd Azam Shariff v Che Norina Long (Note 39),
A dissatisfied with the judgment and claim that the
marriage was not valid:
i. The R fail to produce the original copy of married
certificate from the Songkla Islamic Religious
Council, instead a photocopy.
Ii. It was a forced marriage
Iii. There was inconsistent information on the amount
of mahr by the A,R, and R’s witness.
Iv. The father of the R was not called to testify

SHC: Affirmed the decision.

3. Specific knowledge
Within his own knowledge and no one knows about it.

S.78, Syariah Court Evidence (F.T.) Act 1997: "when any

fact is especially within the knowledge of any person, the
burden of proving that fact is upon him".

Illustration:
When a person does an act with some intention other than
that which the character and circumstances of the act
suggest, the burden of proving that intention is upon him
Abdul Rahman Salleh & Satu Lagi lwn. Pendakwa Hal
Ehwal Agama Terengganu [2004] CLJ (Sya) 17
Example: S.15 (dealing with pregnancy outside
marriage) of the Criminal Offences in the Syarak
Enactment (Perlis) 1991, provides:

(3) The burden of proving that a woman has had sexual

intercourse or the like or has been married or a child is
delivered within the period which is acceptable to
Hukum Syarak shall be upon the woman.
Article 1774: The Mejelle
A person to whom a thing has been entrusted for
safekeeping shall make a statement on oath as regards
any question of his release from liability. Thus,if a
person who has entrusted his property to another for
safekeeping, brings an action against such person, and
the latter by his reply alleges that he has returned the
thing entrusted to him for safekeeping, such person
shall make a statement on oath. But if he wishes to
bring evidence in order not to swear an oath, such
evidence shall be heard.
4. Alibi
S. 75, SCEA-1997 : "the burden of proof as to any
particular fact lies on that person who wishes the Court
to believe in its existence.”
Illustration : A wishes the Court to believe that at the
time in question he was elsewhere. He must prove it.

S.197 of the Syariah Criminal Procedure (Federal

Territories) Act 1997: (1) Where in any criminal trial the
accused seeks to put forward a defence of alibi, evidence
in support thereof shall not be admitted unless the
accused shall have given notice in writing thereof to the
Prosecutor at least ten days before the commencement of
the trial.
(2) The notice required by subsection (1) shall include
particulars of the place where the accused claims to
have been at the time of the commission of the offence
with which he is charged, together with the names and
addresses of any witnesses whom he intends to call for
the purpose of establishing his alibi.”
Muhammad bin Haji Mat Diah lwn Pendakwa Syarie
Kelantan,