DYING DECLARATION AND ITS EVIDENTIARY VALUE

By:
ABDUL HAMID NAYAK
Advocate

Introduction:

Dying declaration is a statement made by a dying person as to the cause of his death or regarding circumstances of the transaction, which resulted in his death. This is a declaration which is made in extremity, when the party has no hope of life and every motive of falsity silenced with the persuasion of mind to speak the truth.[1] The law relating to dying declaration is embodied in Article 46 of the Qanun-e-Shahadat Order 1984, is an exception to the rule that hearsay evidence is no evidence. General presumption is that dying persons usually speak truth and also ancient principle is “no one on point of death should be presumed to be lying.”[2]

Definition and General Principle regarding Dying Declaration:

Dying declaration is a statement by a person who believes that death is imminent, relating to the cause and circumstances of the person’s impeding death.[3] The general principle regarding the evidentiary value of dying declaration is that once the dying declaration is believed it needs not legally to be further supported by independent corroboration and it can form the sole basis of conviction. On the other hand if Court has come to conclusion that it is not reliable by itself and if there is anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility, then necessity for corroboration arises.

Conditions Necessary for the Reception of Dying Declarations:

(i)       Before a statement is admitted as a dying declaration it must be proved that the person who made it is dead.

(ii)      A dying declaration must be that of a person competent to testify as a witness under Article-3 of the Order. There the dying declaration of lunatic or of a child of tender years is not admissible.

(iii)     The statement becomes admissible under the clause only when cause of declarant’s own death comes into question.

(iv)     The statement must relate to the cause of maker’s death or circumstances which resulted in his death.

(v)      The dying declaration must be complete and if it is cut short with some ambiguity about the words what the deceased wished to say, it will be inadmissible,[4] for no one can tell what he might have added.

(vi)     It may be oral or in writing.[5] It may be in question answer form and sometimes where it is not in questions answer form it may be discarded.[6]

(vii)    If dying declaration is recorded in the hospital, a certificate must be obtained from the doctors to the effect that the deceased was in a fit condition to make a statement.[7]

Rules to Record Dying Declaration:

(i)       Attempt to be made that a Magistrate would record the dying declarations.

(ii)      If possible, the person be examined by the Medical Officer[8] before recording such declaration.

(iii)     If at the spot, Magistrate or Senior Police Officer is not present the statement should be recorded in the presence of two or more reliable witnesses unconnected with the case.

Evidentiary Value of Dying Declaration:

There is an important question often raised with respect to dying declarations in general that are such statements a weaker type of evidence? In some aspects dying declaration is a weak type of evidence[9] and it is statement, not subjected to the test of cross examination, as such utmost care is to be taken in recording conviction on the basis of such statement.[10] A dying declaration may become a sole evidence for conviction, as it is relevant statement but it is better to corroborate,[11] however corroboration is not compulsory situation if the dying declaration is duly proved[12] and court is satisfied about its genuineness[13] and truthfulness.

The dying declaration contained in F.I.R (First Information Report) is regarded as a substantive piece of evidence.[14] A declarant may make more than one statement as to his cause of his death which may subsequently be treated as dying declarations.[15] In such situation, the courts have to ascertain the uniformity among them.

Conclusion:

The law of evidence applicable in Pakistan states that a dying declaration is a relevant piece of evidence. It must be kept in mind that whenever dying declaration is brought before the court, the court has to be very careful while relying upon it. A truthful and genuine dying declaration is sufficient to sustain a conviction without any independent corroboration. In case court finds it untrue or unreliable, it is always at liberty to reject it or discard any portion of it. Each and every dying declaration is liable to be scrutinized in its attending circumstances as well as on the basis of integrity of its maker. Therefore, any observation made in any judicial pronouncement purporting to lay down general rule as to evidentiary value of dying declaration should not be followed in another judicial proceeding without thoroughly considering the material circumstances of the both.

 


[1].       The Law of Evidence, IH Dennis, Sweet & Maxwell, p-541.

[2].       Nemo Moriturus praesumitur mentire.

[3].       Black’s Law Dictionary, 8th edition.

[4].       See 1973 SCMR 26, 1978 PCrLJ 498, also see article of Aatir Rizvi on Legal and Procedural Aspect of Dying Declaration.

[5].       1993 PCrLJ 1547, PLD 1951 FC 111, 1996 SCMR 1747.

[6].       1987 PSC 713 (Ind), also see article of Aatir Rizvi on Legal and Procedural Aspect of Dying Declaration.

[7].       See 1997 PCrLJ 229.

[8].       Rule 25.21 Police Rules 1934.

[9].       1984 PCrLJ 2713, also see 1998 PCrLJ 1927.

[10].      1987 PCrLJ 1769, see also 1999 PCrLJ 707, 1999 PCrLJ 1087.

[11].      See 1999 PCrLJ 817, 1985 PCrLJ 1162.

[12].      See 1990 PCrLJ 396.

[13].      1992 PCr.LJ 2222.

[14].      Abdul Rehman v. The State (1995 PCr.LJ 179).

[15].      Abdul Rahman v. The State (PLD 1971Dacca 79), Matiur Rehman v. The State (NLR 1984 Cri. 333).