Article 46(1) of Qanun-e-Shahadat order 1984 deals with dying declaration. Which is one of the exceptions of the hearsay rule. General presumption is that dying person usually speaks truth. Admissibility of dying declaration obviously rests upon the principle of necessity alone. As the victim is in most cases the only eye witness to the crime. The only exclusion to his statement might defeat the ends of justice.
Dying declaration is admissible in Pakistan in all proceedings. i.e. civil as well as criminal cases. Provided that the cause of declarant’s death comes in to the question in those proceedings.
Definition of dying declaration.
A dying declaration may be defined as
A statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.
Modes of dying declaration
These are the following modes of dying declaration.
1.Written or oral
A dying declaration may be made either orally or in writing.
2. By signals (Sign or Gustures)
Sign made by injured person either by a nod of the head to indicate assent or by the sign or motion of figures or hand in answer to question amount to verbal statement.
Dying declaration admissible against whom
A dying declaration is admissible not only against the person who actually caused the death of the maker (victim) but also against other person concerned in the transaction, which resulted in the declarant’s death. It is only admissible in those cases in which the cause of that person’s death comes in to question.
Dying declaration is inadmissible
In the following cases dying declaration Is inadmissible.
- When the cause of declarant death does not comes in to question.
- When the death of the maker of the statement is not caused or accelerated by wounds inflicted by the accused.
How it is proved
A dying declaration is admissible whether it is written or ververbally made. Generally an unwritten declaration is proved, by calling persons who heard or to whom it is made. And those persons are subjected to examination accordingly.
In order to make dying declaration admissible, it has to be examined by following test.
Test of admissibility
The first test for examining a dying declaration is that weather death of the declarant has been. occurred or not. If iot is not proved that the maker of the statement is dead or if he is alive. The statement is inadmissible and article 46 not applicable. This test is called test of admissibility.
Test o f Reliability
In order to make a dying declaration more reliable some of the main tests for determining its geniuses are as under.
- Whether the maker had the physical capacity to make a dying declaration.
- Weather the maker had opportunity to recognize the assailant.
- Whether there could be chances of mistake on part of the dying person in identifying and naming his assailants.
- Whether it was free from prompting from any outside quarter and was not inconsistent with the other evidence and circumstances of the case.
- Whether the witnesses who heard the declarant making the statement heard him correctly and whether their evidence can be relied upon.
- This above two tests enumerates that how much care and cautions applied in order to make a dying declaration admissible.
Evidentiary value of Dying Declaration
Law has attached great sanctity to the bystatements made by deceased persons. Although it is not tested by cross examination. It is given the same credit as to any other evidence. If the statement fulfills all the essentials of dying declaration Then generally corroboration is not required. But some things corroboration becomes necessary as the dying person may be of different faith. Because evidentiary value of dying declaration also depends on the integrity of the dying man.
Person who may record it
These are the following persons can record dying declaration.
- By Magistrate.
Magistrate can record the dying declaration.
- By Doctor.
It can be recorded by the doctor present at the spot.
- By police officer.
It can be recorded by the police officer present at the spot.
Essentials of dying declaration
Before a dying declaration can be admitted in evidence , it must be proved that
- The person who has recorded the statement must be dead.
- The statement must be as far as possible, in the actual words of the maker.
- The statement explains cause of maker’s death or circumstances of the transaction which resulted in his death.
- The cause of declarants death must be fact in issue.
- The declaration must be complete in itself in order to be admissible.
- It must corroborate with the other material evidence on record
- A dying declaration must be taken as awhole.
- While making dying declaration expectation of death of the maker is not essential .
Conviction on base of dying declaration
With reference to above discussion one can say that a dying declaration duly proved and admitted in to evidence can safely be the basis for conviction in a case.
These are the following case laws which are related with dying declaration
Case Laws: 1978 PCRLJ 507 (D.B)
Held. It was held that a dying declaration true and genuine is sufficient for conviction.
If the dying declaration does not suffer from any infirmity it is sufficient to warrant conviction for an offence.
Case Laws. 1995PCRLJ 1784
Where dying declaration is made by deceased was based on true facts and was supported by unimpeachable testimony of prosecution witnesses , medical witnesses, site plan, recoveries and abscondence of accused. Conviction and sentence of accused were upheld.
Case Laws.NLR2004 CR715=PLD2004SC367
Dying declaration made soon after the incident or at a time when deceased expected death deserves great weight and can not be discarded merely on assumption that it was the result of consultation/deliberation.
Case laws: 1973 SCMR26
A dying declaration which is incomplete upon its face is inadmissible in evidence because no one can tell what the deceased might have added.
It is quite clear from the above discussion that the declaration duly proved can be basis of conviction . this piece of evidence is made in extremity. When the party is at the point of death and when every hope of this world is gone and the mind is adduced by the most powerful considerations to speak the truth. However great care must be taken in to consideration while admitting it into evidence. As it is the primary principle of law that an innocent person should not be convicted no matter if hundred criminals are acquitted. So the rule of prudence requires corroboration of dying declaration with material evidences on record.