All these trials are different to each others and some time, on some legal and practical issues, we are confused. For instance, pleadings don’t matter in criminal side and criminal trial is mostly based on the oral evidence, while pleadings and documents in civil trial play a vital role. Limitation has been provided in statute to establish civil rights and is always material. Each day of delay is to be explained, but no such statute is for criminal trial. Delay to report the matter can be fatal, if the same is not properly explained. While deciding criminal case state is always third party, but it is not necessary in most of the civil matters.
In civil suits at certain level of value of the suit, court fee is required, but no such issue is in criminal side. In civil trial according to value of the subject matter, forum is decided in the light of civil court ordinance 1961, but no such issue is in criminal trial, here the cognizibility of the case matters which is to be taken up/ decided by the area magistrate in almost all the cases except some special laws like Finanancial institution( recovery of finanace ) ordinance 2001 and offence in bank ( special court) ordinance 1984 etc.
In a civil trial at initial stage plaint is filed, while on criminal side FIR, is registered or complaint is filed, complaint may be oral in nature. In police case investigation is conducted by police, while in a civil trial, court observe the contents of the plaint at initial stage and can reject the plaint under Order 7 Rule 11 C.P.C, and the same situation is with the police case where the I.O, can recommend the case for cancellation and court can agree and even the court itself can cancel the case. In special laws like anti corruption and cases dealt by FIA, first inquiry is conducted and in the light of inquiry the trial can be started, which is stranger to general criminal trial.
In civil trial to rebut the contents of the plaints, written statement and defence evidence is necessary, while in criminal trial accused controverts the prosecution evidence through cross examination etc and under section 265-F(V) Cr.P.C, accused can submit written statement in his defense and he can also submit his defence evidence in the shape of defense witnesses and documentary evidence, but these are not obligatory for the defence as are in civil trial.
In civil trial after perusing the pleadings courts frame the issues and in criminal side courts frame the charge. In civil trial under Order 7, Rule 11 C.P.C, court can reject the plaint under certain conditions. In criminal side u/s 249-A and 265-K Cr.P.C, accused can be acquitted at any stage of the case. In civil trial in case of non-jurisdiction, case is returned to the party u/o 7 rule 10 C.P.C, to produce it before proper forum, but no such specific provision is in criminal trial. However, in case of non-jurisdiction, the prosecution is asked to place/file its case before relevant court.
There is a difference of onus of proof because in a criminal trial, it is almost on the prosecution and in exceptional circumstances, shifts to the defense, while in a civil side, it is on the party who is claiming the relief and is also determined by the court while framing issues. Criminal trial is concluded in conviction or acquittal, while in civil trial the relief sought by the plaintiff either decreed or dismissed. In criminal trial, state is always complainant while in civil trial private and public person both can file the plaint and sometime private person has to seek permission from the Advocate general to file a suit. Under Section 250 Cr.P.C, court can direct the complainant to pay compensation to the accused, after giving notice to the complainant, if the case is false. In civil trial court can impose compensatory cost under Section 35-A C.P.C, against the plaintiff.
The rules of evidence of civil and criminal trial are almost same, but some provisions in the Qanun-e-Shahadat Order, 1984 are peculiar to criminal trial and other are peculiar to civil trial. In a civil case a mere preponderance of probabilities is a sufficient basis for decision, while in a criminal case guiltiness of the accused must be amount to such a moral certainty as persuades the mind of the court beyond all reasonable doubt and this rule as a prudence, has in fact attained the force of law, founded on public policy.
The parameters to conduct the cross examination in civil and criminal trial are different in nature. In a criminal trial, time, date, place and mode of occurrence got material role in the evidence of the eye witnesses and most of the cases are based on oral evidence to that of documentary evidence and in exceptional cases documentary evidence got some importance to fix the liability in criminal cases .If there are contradictions in the above said time, date, place and mode of occurrence in the evidence of the prosecution witnesses, then normally the prosecution evidence is disbelieved and accused is acquitted while giving him benefit of the doubt. But contradictions in time, date and place are not so important in civil trial, because civil suit is decided on the basis of preponderance of probabilities of the facts of each case.
In a criminal trial a number of legal shelters have been provided to the accused, being a favorite child of law i.e, delay in lodging FIR, always go in favour of the accused , complete check of the magistrate on the investigation proceeding of the police, within 24 hours arrest of the accused the production of the accused before magistrate with the reasons for arrest , to complete the 173 Cr.P.C report within a fourteen days, cognizance of the magistrate whether the case is proceed able if so, it is triable by him or by session court, framing of charge and if charge is not made out acquittal of the accused, provision of legal assistance on state expenses to the accused, right of cross examination and putting of incriminating evidence in section 342 Cr.P.C. These are the protection tears to the accused. In the light of said situation, the fate of the criminal case is decided.
But no such protections are for the defendant in a civil side and both plaintiff and defendant are treated on equal footing. Here any body can convince the court that he got oral as well as documentary evidence in his favour and most of probabilities of facts are also in his favour to that of other party and can ensure the relief.
Evidence of the eye-witness in criminal trial in the form of examination-in-chief without cross examination is an admissible piece of evidence and can be legally taken into consideration, if fully corroborated/ supported by other pieces of evidence, like medical evidence and recoveries etc. But to believe it against the defense extra care and caution is required, because without cross examination it remains evidence and cannot get the status of testimony, because for that purpose cross examination is necessary.
Evidence of eye-witness in criminal trial in the form of his examination-in-chief cannot be rejected on the simple proposition that he was not subjected to cross-examination, if the accused had himself avoided in a deliberate and calculated manner to avail such an opportunity. Distinction had to be drawn between the two situations, one where opportunity to cross-examination was not given or denied to the accused , and second where it was given, but deliberately not availed of by the accused. In the latter position the accused can badly suffer. If the right to cross was reserved as per request of defense and the witness is died or not available for cross, then too, the defense will suffer. Reliance is placed on PLD 2010 SC 642 Arbab Tasleem case, PLJ 2011 SC 117 and PLJ 2018 SC453 Sadiq case. PLD 2001 Lahore 463 is otherwise, but after the views of apex court said view will not matter.
In the civil trial said factors treats otherwise. If statement or any part of a statement of a witness which remains un-rebutted/ un-crossed, is amount to admission and effect the fate of civil cases, because civil cases are concluded on preponderance of probabilities of the evidence of the parties, and in criminal cases prosecution has to prove its case on its own beyond any shadow of doubt or reasonably. So question of un-rebutted evidence will effect civil and criminal trial in different ways. Reliance is placed on 2018 SCMR 149.
As per articles 117,118 119, 121 and 122 of Qanun-e-Shahadat, order 1984 burden to prove guilt of the accused beyond a reasonable doubt throughout the trial is on the prosecution and it never shifts to accused except in cases falling under Art. 121 of Qanun-e-Shahadat, 1984.Two concepts i.e proof beyond reasonable doubt and presumption of innocence are closely linked with each other. Presumption of innocence is the golden principal of criminal justice system and proof beyond a reasonable doubt is silver principal and these two got importance in criminal justice system. Prosecution is not required to prove its case to an absolute certainty because such high standard cannot be achieved. Proof beyond reasonable doubt does not mean proof beyond all doubts. Law requires that after perusing all evidence, if there is something in evidence or lack of evidence that leaves in the minds of Judges, a reasonable doubt as to the guilt of accused, then accused must be given the benefit of that doubt and acquitted, even if the court believes that the accused is probably guilty or likely to be guilty, that is not sufficient. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.
If prosecution failed to prove the guilt of the accused, then accused would be acquitted in all respect, even accused confessed his guilt ,then too accused will be acquitted .If prosecution reasonably proved its case then court can see version of defense, but criteria to prove defence version would not be like that of prosecution, and version of the accused would be taken in totality and no pick and choose is allowed. Reliance is placed on 2011 SCMR, 639 and 942 and 2010 SCMR 1706. Where a witness introduces familiar / known persons as culprits at later stage, then the first burden shall be that of explaining reasons which factor prevented him / her from naming familiar / known persons in the FIR against unknown persons. Reliance is placed on 2019 MLD 182.
In civil side the burden of proof lies on the person who files a suit or proceeding to ensure his civil rights. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. It is apparent from articles 117 and 118 that once initial onus has been discharged by the party upon whom it was resting, it would shift to the other party for its rebuttal thereof. So in civil side there is competition in both the parties to prove and disprove the stances of each others, but the in criminal trial is visa versa.
The criteria to prove the documents in civil and criminal trial is different to each other. In civil trial mere marking or exhibiting of documents would not dispense with requirement of proving the same and the same cannot be exhibited unless it is proved. Admitting of photocopy of a document in evidence and reading the same in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order, 1984 would be illegal. Further to prove the contents of document article 79 of The Qanun-e-Shahadat Order, 1984 will matter, but said article is not so important in criminal trial. In criminal trial maker/ scribe of the document will matter to prove the contents of the same and there is no restriction to produce two marginal witness of the same as in the case of civil trial. In civil side to prove agreement to sell etc two marginal witnesses are necessary as per article 79 of The Qanun-e-Shahadat Order, 1984, but the contents of FIR or complaint only can be proved by the complainant or by the scribe who wrote the FIR etc. Further there is no issue of quantity of evidence e in criminal trial like civil trial. In criminal trial only quality of evidence matter.
There is difference between burden of proof and onus of proof. The Burden of Proof is the burden to prove the main contention of party requesting the action of the court, while the Onus of Proof is the burden to produce actual evidence. The Burden of Proof is constant and is always upon the claimant, but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case. Reliance is placed on AIR 1964 SC 136 and AIR 2006 SC 197.
Probability and benefit of doubt are two different terms of law and both said terms have not been explained in any code, however these have been taken up in various judgment of superior court. A probability is a state of things that reflects the chance or likelihood that a particular event can occur. Probabilities can be expressed in proportion like its range from 0 to 1, and these can also be expressed in percentages ranging from 0% to 100 %. While word benefit means advantage, gain or interest and doubt mean misgiving, suspicion and uncertainty etc. The accused is entitled to have, the benefit of doubt as a matter of right. Accused being a favorite child of law is to be treated as innocent unless he is proved on the basis of best possible evidence that he was connected with the commission of crime.
In a criminal case when two explanations of law are equally possible then the explanation in favour of the accused would considered. It is not necessary that there existed so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, convincing the prudent mind is sufficient to justify the acquittal of the accused.
Rule of benefit of doubt is a rule of prudence which cannot be ignored and said rule is based on maxim that “it is better that ten guilty persons be acquitted rather than one innocent person be convicted” it means that utmost care and caution is required to convict an accused. Said rule is the basic philosophy of Islamic criminal justice system and as per saying of Holy Prophet (P.B.U.H) “Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing innocent”. Reliance is placed on PLD 2002 SC 1041 and 2015 P Cr. L J 1171.Law does not rely upon conjectures and surmises and accused cannot be convicted on the basis of probabilities and presumption, however probabilities can be considered as additional circumstances, if other incriminating evidence is there against the accused.
I just simplifies/explains the issue of probability. A suit for specific performance is filed on the basis of agreement to sell between A and B about landed property. The probabilities in favour of the plaintiff can be like that, he is in a position to purchase the property from defendant, the defendant was in need of money for certain reason due to which he can sell out his landed property , the disputed property was adjacent to the plaintiff and was also needed to the plaintiff , possession was delivered to the plaintiff, at the time of agreement both were enjoying visiting term and got no enmity, if the agreement to sell was written in nature , then vis a vis above said probabilities of facts the legal formalities in the shape of article 3, 17 and 79 Qanun-e-Shahadat Order, 1984 are also to be proved by the plaintiff.
The probabilities in favor of the defendant can be like that, the plaintiff is a poor person and he got no resources to purchase the property, defendant got no need to sell his property, property was already sold out through another agreement to sell to some stranger and this fact was in the knowledge of the plaintiff, there was enmity between the parties at the time of alleged agreement and how can he enter into agreement with the plaintiff, plaintiff got ulterior motive to file fake suit just to take advantage in another issue in which the defendant got interest.
These are the probabilities of facts which can be placed before the court and after observing all the legal formalities the court will observe the preponderance of probabilities and the party who got more numbers of probabilities of facts in its favour can be accommodated in the shape of degree of the court. For instance if the defendant got 51 probabilities in his favour and plaintiff got 49,the suit can be dismissed in spite of the fact that the plaintiff observed all the legal formalities to prove the contents of the agreement to sell. Sometimes sole probability changes the fate of the suit. For instance it is proved that at the time of agreement there was strong enmity between the parties, then court will not decree the suit because in such situation defendant cannot sell his property.
Being appellate court, I have seen a number of judgments where my learned brothers judges decided the civil matter on the basis of contradiction, confrontation and improvement in the statements/ evidence of the witnesses, these aspects got very minor role to decide the fate of civil suit, butb these are material in criminal trial.
In the Civil trial, various remedies are available including damages, an injunction ordering someone to stop doing something or an order for specific performance. Where a claimant’s case is successful, the court will order an appropriate remedy. For instance, if the claim is for a sum or money, the defendant will be ordered to pay the amount claimed. Damages may also be awarded where there has been a financial loss, but no such remedies are available in criminal trial. A breach of criminal law is seen as a wrong not against an individual but against society as a whole. If an individual breaches the criminal law and commits an offence, he will face the prosecution by the state and, if convicted, will be awarded with fines and imprisonment etc.
But there are some exception like section 522 Cr.P.C where court pass the order to return the possession to the aggrieved person and 516 and 517 Cr.P.C where on temporary basis the court hands over the case property to the actual owner.
38- There is a misconception that civil and criminal proceeding cannot run side by side. Respectful reliance is placed on 2016, SCMR 512, 2017 SCMR 390, 2018 SCMR 839 and 2018 MLD 1373 that both can run side by side.
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