SEMESTER – V LLB – 03 YEARS (2012-15)

LAW OF EVIDENCE
DYING DECLARATION
INTRODUCTION
Article 46 (1) of Qanun-e-Shahadat Order, 1984 deals with dying declaration which is one of
the exceptions of hearsay rule. General presumption is that dying persons usually speak truth.
Admissibility of dying declaration obviously rests upon the principle of necessity alone. As the victim
is, in most cases, the only principle eye witness to the crime. The exclusion of 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 into question in those proceedings.
DEFINITION
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”.
SYNOPSIS
 Relevant Provisions of Law.
 Analogous Provisions.
 Phrase “Hearsay evidence is no evidence”.
 Islamic Concept.
 Explanation of Article 46 of Q.S.A.
 Presumptions.
 Situations.
 Citation.
 Survival of Declarant.
 Application of Article 3 of Q.S.A.
 Clarity Factor.
 Scribe Status.
 Forum of Dying Declaration.
 Corroboration Factor.
 Other Essentials.

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 Citation.
 Evidentiary Value.
 Basis of Conviction.
 Rule of Caution.
 Physical Circumstance (Transactions).
 Status of Article 161 of Q.S.A. Statement and FIR.
 Test of Genuineness.
 Modes of Recording.
 Language.
 More Dying Declaration.
 Conclusion.

DETAIL DISCUSSION ON SYNOPSIS

 Relevant Provisions of Law
Article 46 and 46A of the Qanun-e-Shahadat Order, 1984.
 Analogous Provisions
 Section 32 and 33 of Law of Evidence 1872.
 Now Article 46 and 46A of the Qanun-e-Shahadat, 1984.
 Difference in Both the Articles
 There is a procedural difference between the two laws.
 Article 46 of the Qanun-e-Shahadat, 1984 is equal to Rule 32 and 33 of
Law of Evidence 1872.
 Article 64A of the Qanun-e-Shahadat, 1984 is newly inserted through
amendment by the Ordinance LI of 2002.
 Phrase “Hearsay Evidence is no Evidence”
A relevant fact cannot be proved by hearsay. Hearsay evidence can never be admitted unless
the Qanun-e-Shahadat permits it. Article 46 does, subject to conditions therein stated, admit hearsay
evidence. Evidence of a statement made to a witness by a person not himself called as witness may or
may not be hearsay. Such evidence is hearsay and inadmissible when object of evidence is

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establishment of what is contained in the statement but it is not hearsay and is admissible in evidence
when fact of its being made is proposed to be established and not truth of the statement.
“Circumstances of the transaction” is a phrase which conveys some limitations. It is not as
broad as the phrase “circumstantial evidence” which includes evidence of all relevant facts. It is on
the other hand narrower than “res gestae”. Circumstances must have some proximate relation to the
actual occurrence and must be of the transaction which resulted in the death of the Declarant. It is not
necessary that there would be a known transaction other than that the death of the Declarant has
ultimately been caused, for the condition of the admissibility of the evidence is that “the cause of the
declarant’s death comes into question”. General expressions indicating fear or suspicion whether of a
particular individual or otherwise and not directly related to the occasion of the death will not be
admissible. But statement made by the deceased that he was proceeding to the spot to meet the wife
of the accused, where he was in fact killed, or as to his reasons for so proceeding, or that he was going
to meet a particular person, or that he had been invited by such person to meet him would each of them
be a circumstance of the transaction, and would be so whether the person was unknown, or was not the
person accused. Such a statement might indeed be exculpatory of the person accused.
 Islamic Concept
A dying declaration made when the maker is at the point of death and loses every hope of
survival in this world may be relied upon as under such stage of extremity every motive of falsehood
becomes out of question.
 Explanation of Article 46 of Q.S.A
Under Article 46 statements written or verbal of relevant facts made by a person:-
 Who is dead, or
 Who cannot be found, or
 Who has become incapable of giving evidence, or
 Whose attendance cannot be procured without an amount of
delay or expenses which under the circumstances of the case appears to the Court
unreasonable, are relevant.
NOTE: The statement of the deceased must relate to the injuries by which his death was
caused. Where a person dies in hospital after being assaulted and hurt, not of the injuries but
of a malady independent of such injuries, such for example as pneumonia, the dying statement
of such person is not admissible in evidence in a trial of his assaulters under Section 324 of

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P.P.C. Where there is nothing to show that the injury to which a statement relates was the
cause of death of an injured person or that the circumstances under which it was received
resulted in his death, the statement is not admissible.
 Presumptions
It is presumed that sense of approaching death will produce a sense of responsibility in the
mind of the Declarant to speak the truth, a responsibility equal to that which is imposed by a positive
oath administered in a Court of justice.
 Situations
Article 46 of Q.S.O. refers to two kinds of statements:-
 Cause of Death: When the statement is made by a person as to cause of his death.
 Circumstances: When the statement is made by a person as to any of the
circumstances of the transaction which resulted in his death.
A statement not relating to the cause of death of its maker may be still admissible if it related to
the circumstances of the transaction which resulted in his death. But circumstances must have some
proximate relation to the actual occurrence.
The word “resulted in his death” do not mean “caused his death”. The expression any of the
circumstances of the transaction which resulted in his death are wider in scope than the expression
“cause of death”. A statement not relating to the cause of death of its maker may be relevant if it
relates to the circumstances of the transaction which resulted in his death.
 Citation
 PLD 1977 SC 612
Held: Sanctity should be given to the dying declaration
 1970 PCr.LJ 373
Held: When there is no prima facie falsehood in dying declatation then it must be
considered worth reliance.
 Survival of Declarant
Where a person making a dying declaration has chanced to live, his dying declaration can be
used as previous statement either to corroborate or contradict his subsequent version.
Since the maker of the statement under Article 46 of Q.S.O. chanced to survive, the said
statement was clearly not admissible as dying declaration. It could be admitted in evidence as
previous statement of the maker for corroboration under Article 153 or for contradiction under Article

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140 with respect of his evidence in Court. But an accused, rarely if ever, examines himself as a
witness in defence in this Court.
Article 153 of Q.S.O. creates an exception to that general rule by enacting that a witness may
be corroborated by proof that he has said the same thing on a previous occasion. It is, however,
required that the former statement in order to be admissible for corroboration:-
 Must have been made at or about the time when the fact took place. Therefore, a
statement made long after the even is not within the meaning of this Article.
 The statement must have been made before an authority competent to investigate the
fact.
A statement by a person who was wounded and was on the point of death but did not die, and
who was made an accused subsequently, cannot be used as a dying declaration. His previous statement
may be used only to corroborate or contradict him. But such statement cannot be used or relied upon
even for the purpose of corroboration under Article 153 of Q.S.O. especially when the person making
the declaration is not the complainant.
 Application of Article 3 of Q.S.A
A dying declaration must be that of a person competent to testify as a witness under Article 3 of
the Q.S.O. Therefore, the dying declaration of a lunatic or of a child of tender years is not admissible.
Case Law
1984 ALJ 1243
Held: Dying Declaration by a minor is also relevant.
 Clarity Factor
The dying declaration in very exceptional cases may become sole evidence for conviction. If it
is immune from rancour (means ill will), animosity and resentment (means dislike, anger etc.) against
accused and by itself should be completely reliable. Person making declaration and person or persons
deposing to it must be unimpeachable integrity. In order words if a dying declaration is found to be
genuine and true, it can by itself form a satisfactory basis for conviction. A dying statement which
was found to be contemporaneous and a faithful record was rightly relied upon by the Court as one of
the basis of its judgment.
Case Law
1973 SCMR 26 & 33.
Held: Dying Declaration must be complete, cleat and unambiguous.
 Scribe Status
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Dying declaration if available in written form then the identity of the scribe and the
circumstances under which it was written or dictated could be proved. Such written dying declaration
having no value unless it is corroborated.
 Forums of Dying Declaration
There are following forums of dying declaration:-
 Magistrate 1st Class.
 Medical Officer.
 Private Person.
 Gazetted Police Officer.
 Any unknown person subject to the attestation of two witnesses. However it may be
accepted by the Court without attestation of witnesses.
 Corroboration Factor
One view is that dying declaration being a weak type of circumstantial evidence, conviction on
same alone should not be based unless it is supported by strong direct or circumstantial evidence. But
the other view is that corroboration of dying declaration is not a rule of law, but requirement of
prudence and such declaration when proved by cogent (means strong) evidence can be made basis for
conviction. Need for corroboration of dying declaration arises when it is not free from infirmities of
such nature that dying declaration alone is rendered insufficient to record conviction.
It is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by
other evidence before a conviction can be based thereon. To rely upon dying declarations alone for
conviction of persons who were admittedly enemies of the deceased, would not be consistent with the
safe dispensation of justice.
NOTE: Corroboration of dying declaration is not a rule of law but requirement of prudence.
Case Law
1996 MLD 204
Held: If there is corroboration then there is no need of signature of a doctor.
 Other Essentials
Supreme Court has laid down the following principles about recording of dying declaration:-
 There is no specified forum before whom such declaration is required to be made.
 There is no bar that it cannot be made before a private person.
 There is no legal requirement that declaration must be read over or it must be signed by
its maker.
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 It should be influence free.

 In order to prove such declaration, person by whom it was recorded should be
examined.
 Incriminatory Statement
When omission of certain facts in F.I.R. amounts to material contradiction, it affects the
credibility of the witnesses and also the truth of the prosecution case.
Case Law
1975 SCMR 289, 1996 MLD 204
Held: The last incriminatory statement of the deceased can be treated as dying declaration.
 Evidentiary Value
Law has attached great sanctity to the statements made by deceased person. 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
sometimes 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.
A dying declaration may be oral or written. It is immaterial to whom it is made whether to a
private person or a police officer of to a Magistrate. The value of a dying declaration in each case
depends on its own facts and the circumstances in which the dying declaration was made in relation to
those facts. No hard and fast rule can be laid down about the weight that should be attached to a dying
declaration and those who attempt laying down a rule cannot be held to have transgressed the limits of
their authority. A dying declaration stands on the same footing as other pieces of evidence and has to be
put in the light of the surrounding circumstances and with reference to the principles governing the
appreciation of evidence in criminal cases. For proper evaluation of the dying declaration the
surrounding circumstances in which the same was made and the contents thereof have to be kept in
view.
 Basis of Conviction
A dying declaration must be free from every sort of taint and be independently corroborated for
safe reliance to conviction. In other words conviction should be based solely on a dying declaration
but then the dying declaration in that case should be free from every sorts of taint. If doubts arise
about the truthfulness of a dying declaration then it is not safe to base a conviction solely on it without
any independent corroboration. A dying declaration of the deceased which did not appear to be true,

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had not been recorded according to the established principles and was not corroborated by independent
evidence, could not be safely relied upon to sustain conviction.
 Rule of Caution
The dying declaration must be subjected to the strictest scrutiny and the closest circumspection
and the Court has to be on guard against the statement of the deceased being the result of either
tutoring, prompting or a product of an imagination. That apart, the Court must be satisfied that the
deceased was in a fit state of mind to make the statement after he had a clear opportunity to observe
and identify his assailants and that he was making the statement without any influence or rancour.
The dying declaration must be subjected to the strictest scrutiny and be closest circumspection
and the Court had to be on guard against the statement of the deceased being the result of tutoring,
prompting or a product of an imagination. That apart, the Court must be satisfied that the deceased
was in a fit state of mind to make the statement after he had a clear opportunity to observe and identify
his assailants and that he was making the statement without any influence or rancour.
 Physical Circumstances (Transactions)
A statement not relating to the cause of death of its maker may be still admissible if it related to
the circumstances which resulted in his death. But circumstances must have some proximate (means
nearness) relation to the actual occurrence.
 Status of Statement under Article 161 of Q.S.A. and FIR
If the person whose statement is recorded under Section 161 of the Criminal Procedure Code
succumbs to his injuries later on, the statement is relevant as dying declaration.
Case Law
PLD 1986 Quetta 26
Held: Status of Article 161 can be converted into dying declaration of the deceased.
The statement of the deceased was relevant under Article 46 of the Order and could not be
discredited because he himself gave a report to the Police that the accused had picked up quarrel with
him and stabbed him with knife.
Case Law
1971 SCMR 222
Held: FIR can be converted into the dying declaration of the deceased.
The First Information Report given by the deceased will come under the second part of Article
46 (1) in the same manner in which the dying declaration can be brought under the provision of law.

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Therefore an F.I.R. can in proper cases be used as a dying declaration, and is admissible in evidence
under this Article. It is good enough for sustaining conviction on a capital charge.
The first information report, unless the man who made it dies, is not admissible evidence of any
fact which is contained in it; it merely proves that it was the original story which set the police in
motion. Where the informant disappears and there is nothing to show that the informant is dead,
Article 46 can have no application and the first information report cannot be treated as substantive
evidence.
An F.I.R. by a deceased person is admissible as a dying declaration only if it relates to the cause
or circumstances of his death. Where the statement in an F.I.R. did not relate to the cause of the
informant’s death, or to any of the circumstances of the transaction which resulted in his death and the
cause of his death did not come into question in the trial, the F.I.R. was not admissible under Article 46
as a substantive piece of evidence.
Sanctity is normally attached to a dying declaration because it is assumed that when a person is
face to face with death he would like to make peace with God and would not tell lies. Where the
condition of the informant, when he lodged an F.I.R. was not so serious as to make him think that he
would die, the F.I.R. cannot be treated as a dying declaration. However it must be noted that even if a
person did not apprehend his death, a statement made by him about circumstances of his death would
be admissible under Article 46 of Q.S.O.
 Test of Genuineness
In order to determine as to whether the dying declaration was truthful, the test is:-
 Declaration to a Magistrate was preferable to an oral declaration;
 Opportunity of dying man of observation;
 Capacity to remember remained unimpaired;
 A consistent statement;
 An early statement; and
 No tutoring.
 Modes of Recording
The word “statement” in Article 46 should be given its primary meaning viz. that which is
stated. It is not necessary that a dying declaration must necessarily have been recorded and much less
recorded in accordance with the provisions contained in the Cr.P.C.
A dying declaration could either be oral or written, signed or thumb-impressed but it must be a
statement of person telling about circumstances which resulted into his death.

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A dying declaration by the deceased by signs and gestures, when he could not speak due to
injuries on the throat, are verbal statements within the meaning of the Article.
The dying declaration recorded on the basis of nods and gestures was not only admissible but
possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what
was his education attainment, what gestures and nods were made, what were the questions asked.
Whether they were simple or complicated and how effective or understandable the nods and gestures
were.
When the dying declaration is verbal, it can be proved by examining the person in whose
presence it was made. But where the dying declaration is recorded the person recording the dying
declaration must be produced in Court.
Case Law
1996 SCMR 1747
Held: Oral dying declaration does not give fatal blow to the prosecution..
 Language
Ordinarily a dying declaration should be recorded in the language in which it is made. In a fit
case, a dying declaration recorded in English while made in the language of the Declarant may be
accepted in evidence if the declaration contains a certificate to the effect that it was translated into the
language of the madder and read over and explained to the maker who admitting it to be correctly
written, signed or put left thumb-impression on it and there is also other supporting evidence on record
in that behalf. In the absence of any such certificate in the dying declaration, it could not be safely
said that the facts recorded in the dying declaration were the actual version of the deceased and the
dying declaration may not be relied upon. For example, in the Punjab, where the language of the
subordinate Courts and the police has always been Urdu, the dying declarations are taken down in
Urdu, though the deceased gives the narrative in Punjabi and that has been so ever since the Courts
were established and judicial authority has never held that to be an infirmity in dying declarations
making them inefficacious.
There is no particular form to be employed in making a dying declaration. It may be oral or in
writing or may even be partly oral and partly in writing. On the other hand it may be neither oral nor
written, that is to say, it may consist of sign or gestures made by the deceased. There must, however,
be a distinct and definite assertion on the part of the maker however it may affected.
Case Law
197o PCr.LJ 1292

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Held: If the language is different then a certificate will also be presented that there is no
change in the context.
 More Dying Declarations
Some time more than one dying declarations are recorded of a dying man. In such cases there
should be consistency between them and there should not be major contradictions. When the
Declarant is seriously injured, the declaration cannot be judged by the standards of fullness of
particulars which witnesses may give in other situations. To discredit such dying declarations for
shortfalls here or there or even many cases is unrealistic, unnatural and unconscionable if be basically
there is credibility.
It cannot be said that in a case where there are more than one dying declarations, the Court has
to compare all the dying declaration, in order to assess the extent of incrimination. So, the second
dying declaration in the instant case was definitely an improvement over the earlier dying declaration.
That improvement has introduced a serious infirmity in the second dying declaration and in the
absence of any other evidence on record corroborating the version contained in the second dying
declaration, if cannot be accepted.
Case Law
1968 PCrLJ 747
Held: Court should demand strong grounds to eliminate the first dying declaration..
 Conclusion
Eight clauses mentioned in Article 46 of the Qanun-e-Shahadat, 1984 are exceptions to the
general rule of evidence that all oral evidence must be direct viz. if it refers to a fact which could be
seen it must be the evidence of the witness who says he saw it; if it refers to a fact which could be
heard it must be the evidence of the witness who says he heard it; if it refers to a fact which could be
perceived by any other sense it must be the evidence of the witness who says he perceived it by any
other sense it must be the evidence of the witness who says he perceived it by that sense; if it refers to
an opinion it must be the evidence of the witness who holds that opinion, as provided by Article 71 of
the Qanun-e-Shahadat, 1984.
When a person deposes a fact in a Court of law he states under the oath and is liable for
prosecution for perjury if he states falsely and his statement can be tested through cross-examination,
thus there is some sort of guarantee of truth to the said statement, but in a case covered under any
clause of Article 46, said safeguards are absent, as the maker of the statement is not examined as a
witness at all. Article 46 thus relates only to relevancy of evidence and not to the manner of its proof.

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