Article 46 (1) Qanun-e-Shahadat Order 1984 deals with dying declaration. 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. Relevant Provisions
Article 46 (1) of Qanun-e-Shahadat Order 1984
Dying declaration means a statement by that person, who believes that death is imminent especially when such statement relates to cause of circumstances of such person’s impending death.
Statement by a person who believes that he near to die by some injuries inflicted on him by some persons.
5. Form of Dying Declaration
A dying declaration may be made in following form
(iii) By Signals ( Signs and Gestures)
6. Person who may Record it
Following are the persons record the dying declaration
(i) Who can Record the statement
Anyone can the record declaration by the person likely to be die.
(ii) Statement recorded by magistrate
A magistrate can record dying declaration under section 164 of Cr.P.C.
(iii) Recording by Police officer
According to section 41 (1) of Qanun-e-Shahadat Order 1984, Police officer record the statement during the court of investigation and police officer record statement admissible in evidence with satisfaction of the court.
(iv) Recording by the Doctor
Doctor only record dying declaration in exceptional cases where he is firm that declarant is lightly to be die.
7. Concept of Dying Declaration under Islamic Law
Dying declaration have great importance in Islamic Law. It is recognized principle in Islamic Fiqha.
8. Essentials of Dying Declaration
Following are the essentials/ importance
The statement of a record must be true and voluntarily and made without any influence or ill will.
(ii) Satisfaction of Court
It is a most important essential, the court easily decided that the declarant mind fit when record a statement and he had a clear opportunity to observe and identify his assailant.
A dying declaration must be that of a person competent to testify as a witness. The child or tender age is not admissible.
(iv) Statement must be complete
It is essential to the admissibility of statement that it must be complete. Cut short and ambiguous form is not admissible.
(v) Statement must be causes to death
A dying declaration will not be admissible unless it is proved that the death of the declaration was caused.
(vii) Death of Declarant
Before a statement is admitted as a dying declaration, it must be proved that the person who made it is dead.
(viii) Admitted in case in which question of death arises
Dying declaration could be admitted in evidence in those cases only in which the causes of the declarants death comes into question.
9. Evidentiary Value of Dying Declaration
Dying declaration is a substantive piece of evidence and can be used against the accused, when there is nothing to suggest that the deceased had substituted an innocent person in place of real culprit. So dying declaration when deliberately made under a solemn sense of impending death and under circumstances wherein the deceased is not likely to be mistaken, is worthy of great weight. But, dying declaration which is incomplete and partly touched-up by interested parties cannot be relied upon.
10. Conviction of Dying declaration
An admitted principle is that dying declaration can be basis of conviction when it has not only been duly proved, but has also has been admitted in evidence. For explanation of this principle, following are the points.
(i) Essential Conditions
Dying declaration can be basis of conviction when it has fulfilled all essentials conditions.
Dying declaration can be basis of conviction if it is complete. It means that incomplete dying declaration cannot be basis of conviction. Reason is that complete dying declaration never reveals what deceased declaration intended to further state in his dying declaration.
(iii) True and Genuine
When dying declaration is true and genuine declaration, it can be basis of conviction. In fact, conviction can be awarded on basis of dying declaration when dying declaration does not suffer any infirmity.
(iv) Interested Parties
If interested parties improves dying declaration, such dying declaration cannot be made basis of conviction.
To conclude that Qanune-e-Shahadat Order 1984 explains that direct evidence is original, positive and pregnant with first hand and fresh knowledge. Therefore, it emphasizes that there should be direct evidence. It reveals that Qanun-e-Shahadat order does not allow admission of hearsay evidence. However, dying declaration is an exception to principle about hearsay evidence. Therefore, it can be admissible evidence and can also be basis of conviction.