What is Presumption?

Presumption means an act of accepting that something is true until it is proved not

true. If certain facts are established, a judge or jury must assume another fact that

the law recognized as a logical conclusion from the proof that has been introduced.

A Rule of law which permits a court to assume a fact is true until it is proven otherwise.

Examples:

(i) A child born of a husband and wife living together is presumed to be the natural

child of the husband, unless there is a conclusive proof he is not;

(ii) A person who has disappeared and not heard from for seven years is presumed

to be dead, but the presumption could be rebutted if he/she is found alive;

(iii) An accused person is presumed innocent until proven guilty.

Classification of Presumption

1. Rebuttable Presumption (Sections: 79-85, 89 & 105)

Both in Common Law and in Civil Law, a rebuttable presumption is an assumption

made by a court, any fact or issue that is taken to be true unless someone comes forward

to contest it and prove otherwise. For example, a defendant in a criminal case is presumed

innocent until proved guilty.

2. Irrebuttable or Conclusive Presumption (Sections: 41, 112 & 113)

Irrebuttable presumption refers to such type presumption which cannot be overcome or

changed by any additional evidence or argument made by any party or individuals.

Irrebuttable presumption also called Conclusive Presumption or absolute presumption.

For Example, the accused is a child below 7. It will be conclusively presumed under the

Pakistan Penal Code that he had not the mental capacity to commit the crime. The court

will not allow evidence to be led on the point that in fact he had such capacity.

Section 4 of the Evidence Act, 1872 (Act No. 1 of 1872)

(i) May Presume

Whenever it is provided by this Act that the 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.

(ii) Shall Presume

Whether it is directed by this Act that the Court shall presume a fact, it shall regard

such fact as proved, unless and until it is disproved.

(iii) Conclusive Proof

When one fact is declared by this Act 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.