1.
Introduction
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
3.
Meaning
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.
4.
Definition
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
(i)
written
(ii)
Oral
(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
(i)
Voluntarily
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.
(iii)
Competency
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.
(ii)
Complete
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.
Conclusion
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.
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