Question of Law and Fact in Civil and Criminal Cases

What Is a Question of Fact?

The term question of fact carries multiple meanings in legal theory and practice. Broadly speaking, it refers to any issue that is not a question of law. In other words, everything that is not predetermined by legal principles or statutes is considered a matter of fact.

According to jurist Salmond, a question of fact includes:

• Any question that is not settled by a legal rule,
• Any question other than the determination of what the law is, or
• Any issue that falls within the province of the jury to decide.

In a narrower sense, a question of fact can also be distinguished from a question of judicial discretion. While a fact relates to objective reality—what is—discretion involves evaluating what is right, just, or equitable in a given context.

Questions of fact can be proved or disproved through evidence. For example, determining whether a specific person resides at a certain address is a factual issue, which must be established with evidence. By contrast, determining what punishment should be imposed for a proven offence is a question of law, guided by legal standards or statutory limits.

To further illustrate: it is a question of fact whether the offence of adultery has actually been committed. However, once this is established, the appropriate punishment for the adulterer is a matter of law.

For a deeper understanding of presumptions of law and fact, you can read our detailed article.

Also read: Basic Principles of Tort Law to understand how factual questions affect liability.

Need clarity on legal procedures? Visit: Remedies Against Refusal to Register FIR.

Questions of Fact vs. Questions of Discretion

It is important to distinguish questions of fact from questions of judicial discretion. A question of fact asks, “What happened?” or “What exists?” while a question of discretion asks, “What ought to be done?”

In a legal proceeding:

• A question of fact involves finding out the actual truth through evidence and demonstration.
• A question of discretion involves applying judicial reasoning to determine what is just or appropriate in the circumstances.

For instance, determining whether an accused/defendant committed a crime is a factual issue. It must be established by witness testimony, physical evidence, or documents. However, once guilt is proven, the judge must decide what punishment to impose—this is a question of discretion.

Similarly, whether a valid contract exists between parties and whether it has been breached are both questions of fact. These are determined by examining documents, the conduct of the parties, and relevant testimony. But when the court must decide:

• How much damages to award, or
• Whether to grant specific performance of the contract

—It is exercising judicial discretion. These are legal remedies based on equitable considerations and not merely factual findings.

Mixed Questions of Law and Fact

In real-world legal proceedings, it is rare to encounter a case that involves purely a question of law or purely a question of fact. Most cases present mixed questions of law and fact, where both elements are intricately woven together and must be determined simultaneously by the court.

Consider a situation where a dispute arises over whether a partnership exists between certain individuals. The first step involves examining the actual relationship between the parties—what agreements were made, how profits and losses are shared, who manages the business, and so on. This is a question of fact because it relies on the circumstances and conduct of the individuals involved.

Once those facts are established, the next step is to determine whether the relationship qualifies as a legal partnership under applicable law. This is a question of law because it requires the court to interpret and apply legal definitions to the facts already found. Thus, the issue becomes a classic example of a mixed question of law and fact.

Mixed questions are also commonly seen in criminal cases. For example, during a jury trial:

• The jury evaluates the evidence and determines whether the accused committed the alleged acts — a question of fact.
• The judge instructs the jury on how the law applies to those facts — a question of law.

In this collaborative process, both judge and jury work together to reach a verdict. The interdependence of law and fact in such scenarios illustrates how justice depends on accurately resolving both aspects in harmony.

Transformation of Questions of Fact into Law

One of the most fascinating aspects of legal evolution is how questions of fact and judicial discretion gradually transform into questions of law. This transformation is a hallmark of a mature and developed legal system.

As more cases are decided, courts begin to observe patterns. When judges repeatedly give the same decision in cases involving similar facts, these decisions set a legal precedent. Over time, the element of discretion in such matters diminishes, and a standard legal rule emerges. This process effectively converts what was once a flexible, fact-dependent issue into a clear-cut question of law.

For instance, consider two cases with nearly identical facts—perhaps involving breach of contract, negligence, or property disputes. If the first case sets a precedent by interpreting the facts in a particular legal light, the second case must follow that precedent. The judge in the second case is bound by the previous ruling and cannot exercise independent discretion unless the facts are materially different.

Even questions that were initially considered factual—like the meaning of certain terms in a contract—can become legal questions once appellate courts define and clarify them. In this way, case law becomes a tool of consistency, transforming subjective inquiries into objective legal standards.

This transformation not only enhances predictability in legal decisions but also upholds the rule of law by ensuring that similar cases are treated alike.

Discordance Between Law and Fact

In legal theory, there often exists a gap between what the law assumes and what actually exists in reality. This phenomenon, referred to by Salmond as the discordance between law and fact, highlights the difference between legal constructs and objective truth.

According to Salmond:

"The law is the theory of things as received and acted upon within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of law does not infallibly see things as they are."

This dissonance arises primarily in two distinct ways:

1. Legal Presumptions

A legal presumption is an assumption made by a court that something is true until it is proven otherwise. These presumptions are often used to streamline the legal process and reduce the burden of proving certain facts. They may be either rebuttable (capable of being disproved with evidence) or irrebuttable (absolute and not open to challenge).

For example:

• A person is presumed innocent until proven guilty.
• A child under the age of 7 in Pakistan is presumed incapable of committing a crime.

In both instances, the law assumes a particular state of affairs without direct evidence, which may or may not reflect the actual truth.

2. Legal Fictions

A legal fiction is a deliberate assumption of a fact that is known to be false, but which the law treats as true for specific legal purposes. Legal fictions are used to extend or adapt legal principles in a way that maintains consistency or achieves fairness.

For instance:

• The legal personality of a corporation is a fiction—the law treats it as a "person" capable of owning property and being sued, even though it is merely a collective entity.
• In some jurisdictions, a person missing for seven years is presumed legally dead, although their actual status is unknown.

These mechanisms help the law function consistently, but they may create a mismatch between legal determinations and factual reality.

Table: Key Differences Between Legal Presumptions and Legal Fictions

Aspect	Legal Presumptions	Legal Fictions
Definition	Assumptions treated as true until disproved	Known falsehoods treated as true for legal convenience
Purpose	Facilitate the burden of proof and judicial efficiency	Ensure consistency or extend legal reasoning
Truth Value	May be true or false—court allows evidence to rebut (if rebuttable)	Known to be false but accepted as true for specific purposes
Rebuttable?	Often yes (e.g., presumption of innocence)	No—accepted as absolute for legal reasoning
Example	Child under 7 presumed incapable of crime	Company treated as a legal “person”

Legal Presumptions

In legal proceedings, a legal presumption is a rule that allows courts to draw a specific inference from a known fact or evidence, unless that inference is disproven. This presumption serves as a legal shortcut—where one fact is deemed sufficient proof of another, whether or not the connection between the two is logically conclusive.

For example, if a notification is published in the official Gazette, the law presumes that it has been duly signed by the authorized person, even if, in reality, the person may or may not have signed it. The act of notification itself is considered sufficient legal proof of the signature. These presumptions help the legal system function more efficiently by reducing the burden of proof in routine or procedural matters.

Legal presumptions are generally classified into two broad categories:

• Presumptions of Law
• Presumptions of Fact

Presumptions of Law

Presumptions of law are established rules created by statutes or legal precedents. Courts are bound to follow them and apply them in relevant circumstances. These presumptions are further divided into two types:

• Conclusive Presumptions (Presumptio juris et de jure)
• Rebuttable Presumptions (Presumptio juris)

1. Conclusive Presumptions

A conclusive presumption of law is absolute. It compels the court to treat one fact as proof of another, even if there is evidence to the contrary. In such cases, the law does not permit any rebuttal or challenge to the inference. The court is legally prohibited from accepting any contrary evidence, no matter how convincing it may be.

Illustrative examples of conclusive presumptions include:

• A child born during a valid marriage and within 280 days after its dissolution is conclusively presumed to be the legitimate child of the husband. No evidence is admissible to dispute this legitimacy.
• A child under the age of 7 is conclusively presumed to be incapable of committing a crime. Even if the child appeared to understand the nature of the act, the court will not entertain evidence to the contrary.
• Under the Companies Act, a certificate issued by the Registrar of Companies confirming compliance with the registration requirements is conclusive proof of such compliance—even if the signatures of some applicants were actually forged.

These presumptions, being irrebuttable, represent the law's choice to prioritize legal certainty over factual investigation.

2. Rebuttable Presumptions

Unlike conclusive presumptions, rebuttable presumptions allow room for contradiction. The court initially assumes a fact to be true, but this presumption may be overturned if the opposing party presents sufficient evidence to disprove it.

Rebuttable presumptions play an essential role in both civil and criminal proceedings. Some common examples include:

• A negotiable instrument (e.g., a cheque or promissory note) is presumed to have been issued for consideration (value), unless the contrary is proved by the defendant.
• If a person has not been heard from for over seven years by those who would normally have heard from them, the law presumes that person to be dead. However, evidence showing that the person was sighted or contacted after this period can rebut the presumption.
• In criminal law, an accused person is presumed innocent until proven guilty. This foundational principle can be rebutted only if the prosecution successfully proves the offence beyond a reasonable doubt.

These presumptions help streamline legal proceedings but preserve fairness by allowing the truth to prevail when credible opposing evidence is presented.

Presumptions of Fact

Presumptions of fact, unlike legal presumptions, are not governed by strict legal rules. Instead, they arise from human experience, logic, and the natural course of events. These presumptions are not mandatory; rather, courts may infer them based on the evidence and surrounding circumstances.

For instance:

• If someone is found in recent possession of stolen property, the court may presume that the person is either the thief or knows the property was stolen.
• If a person is seen running away from the scene of a crime, the court may draw an inference of guilt, subject to the availability of other supporting facts.

Presumptions of fact can be accepted or rejected at the discretion of the judge, depending on the context and credibility of the evidence. They are more fluid and less rigid than presumptions of law.

Together, legal and factual presumptions serve as important tools for judges and lawyers, facilitating the judicial process while balancing efficiency with fairness.