Dying Declaration U/A 46(1)
Definition :
The statements given by a person who is about to die is called dying declaration
Relevant provisions :
Article 46(1)
Of Qanun e shahadat order 1984
Forms of dying Declaration :
Dying Declaration may be made either orally or in writing
Communication through signals,signs or gestures
Who can Record it ?
Any person may record dying declaration who is present at the scene and is capable of
recording statements .
Under sec 164 of crpc a magistrate is authorized to record dying declaration
Dying declaration recorded by police officer during the course of investigation is admissible in
evidence U/A 46(1) .
A doctor could only record dying declaration in exceptional cases where he is of firm opinion
that the declarant is not likely to survive for sufficient time and valuable evidence is going to be
lost in the process
Essentials / value of Dying Declaration :
Competency:
The declarant must be competent to testify as a witness U/A 3 of the order .therefore dying
declaration of Lunatic ,child or tender age is not admissible .
Dying person :
It must be made by person dying .
Death of the declarant :
before a statement is admitted as a dying declaration it must be proved that the person who made it is
dead .
Cause of declarant death :
Dying declaration will not be admissible as evidence unless it is proved that the death of the declarant
was caused by the wounds inflicted by the accused .
Complete declaration :
Dying declaration must be complete .
Voluntarily :
Statements given by declarant must be the voluntarily and without any pressure etc.
Evidentiary value of Dying declaration :
Basically truth is presumed from the dying declaration .And It is the statement that is presume to be
true with the believe that declarant will not speak lie at this stage it is because he is answerable for their
actions before Allah Almighty .(2016 PCrLJ 1491) .
Can a conviction be based on it?
An admitted principal is that dying declaration can be basis of conviction when it has not only been duly
proved, but has also been admitted in evidence .for the explanation of this principal following points
are important.
Dying declaration can be basis of conviction if it is complete .it means incomplete dying
declaration cannot basis of conviction .reason is that incomplete dying declaration never
Reveals what the deceased person intended to future state in his/her dying declaration
.when the dying declaration is true and genuine.
If interested parties improves dying declaration ,such dying declaration cannot be basis of
conviction .
Article 46 caption what means in simple words :
Cases in which statements relating to Relevant fact by person who is dead or cannot found etc is
Relevant .U/A 46
Statements either written or verbal Relating to Relevant fact given by person who is
o dead ,
o cannot found
o or is incapable of giving evidence e.g due to disease
o or cannot be brought to court due to delay in time,expenses or any other reason
their statements will be considered Relevant in following circumstances .
before discussing the topic lets come to the general rule :
General rule U/A 70
Under article 70 of QSO which says that oral evidence must be direct .it means that Hearsay
evidence is no evidence .
Dying declaration is an exception to Hearsay Evidence :
Dying declaration is an exception to this rule because it this evidence is not considered
