Pakistan Languages and Humanities Review P-ISSN 2708-6453

July-December 2021, Vol. 5, No. 2[81-91] O-ISSN 2708-6461

RESEARCH PAPER
Evidentiary Value of Dying Declaration: A Case Study
Muhammad Hassan Zia*1 Dr. Shazia Kiyani 2 Sohaib Ahmed Hashmi 3
1. Assistant Professor, Department of Law, Punjab University (Gujranwala Campus),
Gujranwala, Punjab, Pakistan
2. Lecturer in Law, School of Law, University of Gujrat, Gujrat, Punjab, Pakistan
3. Lecturer in Law, Department of Law, Punjab University (Gujranwala Campus),
Gujranwala, Punjab, Pakistan
DOI http://doi.org/10.47205/plhr.2021(5-II)2.7
PAPER INFO ABSTRACT
Received: Dying declaration is a weaker type of evidence based on the
June 19, 2021
Accepted: belief of humanity that a dying man does not lie before meeting
September 08, 2021 his creator. In this paper researchers explore the admissibility
Online:
September 13, 2021 of the dying declaration in the court of law the conditions
Keywords: attached to its acceptance and describe different cases where it
Death Statement,
Evidence, has been the base of causing conviction and also the cases
Dying declaration,
Justice, where it has been nullified. This is a qualitative analysis
Testimony discussing the traditional approaches of the court until now
*Corresponding
Author and the future prospects. It is concluded that the court needs to
be vigilant of the possibility of lie and must scrutinize the dying
[email protected].
declaration under the circumstances of the given case.
pk
Introduction

A renowned scholar and writer Sir William Shakespeare in the Act II of his
famous play King Richard II describes the feeling of a dying person

What is the world should make me now deceive,

Since I must lose the use of all deceit?
Why should I then be false since it is true
That I must die here and live hence by truth?

Interestingly Shakespeare speaks of the religious maxim in the above

statement describing that a dying man has a different perception than a living
person. And it’s the truth that makes him live forever in the immortal world. Dying
 Evidentiary Value of Dying Declaration: A Case Study

declaration is based on the maxim “Nemo moriturus praesumitur mentire” meaning

that a dying man does not lie and he will not meet his maker with a lie in his mouth.
It is also an acceptable principle in the eye of law that a dying person usually speaks
truth (Akbar Ali v Shanaz and others, 1981).Usually the court does not give
weightage to hearsay evidences. Such evidences are controversial as the witness
does not share his own experience rather represents another person’s perspective
who cannot be cross questioned. Whereas dying declaration enjoys an exception to
the rule here. There might be certain situation where the only witness was the one
who passed away. In such cases not giving weightage to the dying declarations risks
the justice. Owing to the fact that the evidence cannot be cross examined dying
declaration is taken as weak evidence. But the conviction is based on the fact that a
dying person who has no hopes to gain the materialistic desires of this world is not
expected to lie to gain any benefits (Niaz-ud-Din and another v The State and
another, 2011).

Prosecution was bound to prove that in fact the deceased was well oriented
in time and space and that all legal precautions were taken when the scribe was
giving his report (Imtiaz khan v The state, 2020 ). The object that, while making a
dying declaration, its maker must be in full control over all his/her faculties so as to
exclude the possibility that the words so spoken by him were not out of stupor of
death, can be achieved by obtaining opinion of doctor regarding fitness of dying
person to make a lucid statement.

There is no doubt that relying completely on the dying declaration without

any further scrutiny on the part of court can lead to false judgment and ultimately
affect the safe dispensation of justice (Rafaqat ullah alias Paka—v Umar Fayaz
(deceased) through brother Muhammad Riaz and another, 2020). If court is satisfied
about its genuineness and truthfulness, dying declaration can be considered without
any corroboration (Mashad Ali v The state and another, 2021). However, the
intrinsic worth of such statement/evidence is to be adjudged in consonance with
general principles laid down for appraisal of evidence.

This research paper explores the scope of Dying Declaration whether it’s
admissible or not, what criteria needs to be followed to determine the genuineness of
dying declaration and to know the legal status of Dying Declaration which needs
corroboration through confidence inspiring evidence.

Admissibility of Dying Declaration

The admissibility of dying declaration is derived from Article 46 of Qanun-e-

Shahadat Order, 1984 which is placed in Chapter-III titled as "OF THE RELEVANCY
OF FACTS". According to Article 46(1), a statement to be considered as dying
declaration must be made by a person about the reasons leading to his death. It is
not necessary that while making such statement, its maker must be having a looming
danger of losing his life (Haq Nawaz v The state and others, 2018) . It is also of
immense importance to mention here that such statement can only be used in cases
where the aim is to find the cause of the death of the maker of the statement.
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It must be clarified here that according to the established principle of law,

dying declaration is not sufficient to sustain conviction but it is admissible in
evidence. It is also required that it is free from all sorts of doubts and defects and is
relied upon independently to be considered as evidence to record conviction. To
judge the truthfulness or falsification of a dying declaration it has to be analyzed
keeping in view the overall physical environment and circumstances. It must be
understood that dying declaration is only a corroborative piece of evidence which
requires a support from eye witness and is taken as weak evidence (Patoo and
another v The state , 2012).

There are no specified guidelines regarding the procedure of recording a

dying declaration. As the only aim of the dying declaration is to show the cause and
the circumstances of the death therefore the size of declaration is of no importance
(Raja ali shan and another v Shakeel and 4 others, 2014). However, a dying
declaration may not be refused on the sole ground that there was delay in recording
the same( Imran Ashraf v The state, 2012 ) .Delay in first information report
(subsequently on informant complainant's demise treated as dying declaration)
satisfactorily explained as being due to lack of transportation facilities. No serious
enmity existing between accused qua deceased and eye witnesses so as to lead to a
false charge of capital offence Recovery of stolen licensed gun of deceased from
accused's house satisfactorily proved Abscondence of accused after occurrence not
satisfactorily explained Discrepancies in dying declaration and witnesses' statements
minor and not such as to lead to rejection of dying declaration and ocular testimony
Conviction, held, not rightly quashed -Appeal allowed (Ghani khan v Sail Badshah
and 3 others ,1971 )

Police Officer who was investigating the case was not to be encouraged to
record dying declaration. However if the Medical officer is not available then the
police officer can record the gestures and words of the victim (Riyasat Hussain and
another v Muhammad sabir and 3 others , 2018 ).Similar situation was witnessed in
Imran Ashraf v. The State 2012 YLR 325, case, it was observed there that:

"We are conscious of the fact that a police officer should not be encouraged to
record dying declaration in a case which he is investigating himself. He could have
been influenced by the course of events in favor of one or the other party but of
course, there can be situation, when the medical officer is not readily available and
the witnesses are either not present at the spot or if accessible around the victim yet
they are unable to record the statement. In such an eventuality the police officer may,
instead of relying upon mere memory, take down notes or may even record the
actual spoken words or gestures of the victim. The document so prepared can then
be proved by the scribe formally during the trial, subject to scrutiny in cross
examination."

Person who recorded dying declaration was the most important witness to
verify veracity thereof, but in the present case, such person was conspicuously
missing in the array of witnesses and thus dying declaration, could not be relied
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upon and it would be grievously unsafe to maintain the conviction of accused.

Benefit of the doubt was extended to the accused and he was acquitted of the charge
of murder---Appeal was allowed accordingly (Somaid and another v Ali gohar
2019). In Muhammad Nawaz khan v The State and another 2015 M L D 690 Scribe of
the report and dying declaration was not produced before the court being dead.
Nothing was on record to establish that prior to death of the deceased, he was
examined. As to why dying declaration was not documented in presence of doctor
was not explained. No certificate was on record as to whether the dying man was in
conscious, semi-conscious, oriented in space and time and was able to make rational
talking. What prevented the prosecution for not obtaining fitness certificate was not
on record. Dying declaration of the deceased, in circumstances, was not worth
reliance.

In Murad v The State 1957 PLD 332, On the question of divisibility of a dying
declaration, a dying declaration was not discarded as a whole on account of its
having been found partially incorrect and it was made a basis for conviction qua
some of the accused named therein; relevant portion is reproduced below:-

"Learned counsel for the appellant attacks the dying declaration on the
ground that it contains false recitals for in it Shera and Haider are stated to be armed
with ballams and to have caused injuries using them as dangs and the learned
Sessions Judge has found this part of the prosecution case to be untrue. We are
prepared to accept that this part of the statement of the deceased is not altogether
correct, for although one of the two acquitted accused may have given a blow, both
of them could not have done so, there being only one blunt-weapon injury on the
deceased, But we cannot on this ground discard the whole dying declaration, for
there is no reason why the deceased should substitute someone else for the person
who had fired at him."

However, in a subsequently decided case of Rang Ali and others v The State
1958 PLD 242 it was held by a learned Division Bench that veracity of a dying
declaration is indivisible; relevant portion is reproduced below:-

"It was entirely out of question to accept a portion of the dying declaration
and to reject the rest. There must be absolute guarantee of the truth of the entire
statement before it can be acted upon. A 'touched up dying declaration' has no
evidentiary value".

Courts holds that veracity of a dying declaration would be indivisible. As

statement of maker of a dying declaration sans the sanctity of oath as well as
opportunity of cross-examination, it would be extremely unsafe to allow its division
so as to partially convict a person from the array of accused implicated therein. It
would also be antithetical to the solemnity attached with a dying declaration (Paira
and 2 others v. The State , 2016) .

Test for Determination of the Genuineness of Dying Declaration

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Dying declarations require scrutiny. Though it is admissible in law as

evidence but it cannot be rigidly laid down that a dying person would speak only
truth. The only reason for considering the dying declaration inviolable is the belief
that a dying person who is apprehending death is not expected to be getting into
worldly affairs at that time and would not tell a lie. He may not put false charges
and involve innocent persons. In such situation the whole decision relies upon the
power of human judgment to evaluate the case and to find out whether the
statement is true or false. This requires a thorough analysis of the physical
environment as well as the circumstances. It has been judicially recognized in
Pakistan that people added innocent along with the guilty to satisfy their revenge
and to harm the others. The magical purity of mind and conscience cannot be
expected from the deceased in Pakistan’s social environment. Even if the dying
person is considered to be of clear conscience but the surrounding pressure of
relatives and peers also needs to be considered before relying solely on the dying
declaration (Tawaib khan and another v The State , 1970 .Since a dying declaration is
already an exception to the hearsay rule therefore it needs to be thoroughly
scrutinized especially under the guidance of observations made by the court. At
different occasions, the august Supreme Court of Pakistan has settled some of the
well-known tests for determining the genuineness of dying declaration which
include the following:

i) If it sounds true

ii) Whether the dying man was capable of making it

iii) Whether it was free from outside prompting and was consistent with
other evidences, facts and situations of the case

iv) Whether the deceased then injured was capable to identifying the
assailant(s) (Abdul Ghafoor v.The State, 2020) .

To reach to the truthful conclusion and to avoid falsity of a dying declaration

a case must be considered in the midst of its’ physical environment and
circumstances. It is necessary to find out how far the evidence or its different parts fit
in with the circumstances and possibility that can safely be deducted in a particular
case. For this purpose a dying declaration needs to be scrutinized to qualify for the
test of reliability (Waheed and another v The State and another, 2021).

Likewise, rule 25-21 of the Police Rules, 1934, speak about the essential
ingredients to be followed during the recording of dying declaration, which for the
sake of convenience and ready reference is reproduced below:-

(1) When possible, a dying declaration has to be recorded by the magistrate.

(2) If possible the Medical officer shall examine the person making
declaration to ascertain his sound mental state.

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(3) In case of absence of the magistrate and the gazetted officer a statement
will be recorded in the presence of the two witnesses not related either to the police
officer or to the concerned parties.

(4) If such witness is not available and there is a chance of the death of the
injured person then the statement can be recorded in the presence of two or more
police officers.

(5) Under section 162, Code of Criminal Procedure, if the statement is made
to the police officer then it must be signed by the person making it.

The most suitable form of dying declaration is considered to be the one in the
form of questions and answers, however in the form of narration it is also considered
to be good as there is no provoking and everything is considered to be coming from
the mind of the person making it. Though the person making the statement can also
nod and use gestures if he is not capable of speaking. While recording it in the form
of question and answers care should be taken that exact questions and answers are
written as are asked and answered. Moreover the preferred vernacular is the one
that is comprehendible for the patient.

Nature of Corroboration

It is established principle of law that dying declaration by itself is a weaker

type of evidence which needs corroboration through confidence inspiring evidence
(Said Karam alias Ajarr and others---v. The State and others 2019). In this regard,
wisdom is derived from the case of Tahir Khan v. The State 2011 SCMR 646 in the
following manner:-

"Mere dying declaration shrouded by mystery and fraught with so many

infirmities is not enough to convict a person. Dying declaration is weaker type of
evidence, which needs corroboration when fully corroborated by other reliable
evidence. Facts and circumstances of each case have to be kept in view and also
credibility, reliability and acceptability of such declaration by Court."

Medical report plays an important role in determining the genuineness of the

dying declaration. In Abdul khaliq v. The State 2021 S C M R 325 Dying declaration
made in presence of doctor that was corroborated by recovery of weapon and
medical evidence. According to the doctor's deposition, he endorsed/attested
statement given by the deceased, which was subsequently treated as a dying
declaration. Doctor was subjected to extensive cross-examination but remained
unambiguously categorical about deceased's capacity to communicate at the time
when he examined him in an injured condition. Doctor further confirmed that the
statement of deceased was recorded in his presence, and he denied connivance with
the police. Evidence given by the doctor was found to be straightforward and
confidence inspiring throughout without any taint. Dying declaration was further
corroborated by the weapon recovered from the accused at the time of his arrest,
found wedded with the casings secured from the spot and consistent with the

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injuries that cost the deceased his life. Statement of a witness, who was a resident of
the same locality, was in line with the details of events given in the dying
declaration. Petition for leave to appeal was dismissed and leave was refused. In
Mashad Ali v The state and another 2021 P Cr. L J Note 16 Factum of orientation
and consciousness of the deceased, then injured, at the time of making report was
gathered from the testimony of Medical Officer, who medically examined the
deceased, then injured, deposed that the deceased, then injured, was
aerodynamically stable. Both, the author of Murasila and the Medical Officer, had
been subjected to cross-examination by the defense but nothing was brought from
them that the deceased was not capable to make statement/report. Dying
declaration bore the thumb impression of the deceased as well as signature of its
author. Appeal against conviction was dismissed accordingly.In Laxman v. State of
Maharashtra 2002 6 SCC 710, in India it was observed by the Supreme Court that if it
is mentioned in the medical certificate that patient was conscious then it will be
incorrect to object regarding certification related to state of mind of the patient.
Moreover, the sound state of mind gets obvious by the testimony of the doctor who
recorded the statement.

In Waheed and another v The State and another 2021 P Cr. L J 719 Dying
declaration not supported by medical evidence. In view of the said injuries on most
vital parts, capability and ability of the deceased, then injured, to make
statement/talk was beyond the comprehension of a prudent mind. Alleged dying
declaration of the deceased, then injured, had not been corroborated by any
circumstantial evidence to prove the participation of the accused in the commission
of the offence. Appeal against conviction was allowed, in circumstances. In Mst.
Ghulam Zohra v Malik Muhammad Sadiq and another 1997 S C M R 449 Police
Officer had not obtained certificate from the Doctor before recording the statement
of the deceased in an injured condition that he was in a fit condition to give the
statement, nor he had given a plausible explanation for such omission and fitness of
the deceased to make the statement, thus, remained doubtful. Attesting witnesses of
the dying declaration did not fully support the prosecution case and their evidence
suffered from glaring contradictions adversely reflecting upon the
genuineness/veracity of the dying, declaration. Police Officer had also failed to
procure the presence of the Magistrate at the time of recording the statement of the
deceased. Statement of the deceased, in circumstances, could not be safely acted
upon for maintaining the conviction of accused on the murder charge Leave to
appeal was refused in both the petitions accordingly.

Statement of deceased in the form of an F.I.R. can be treated as a dying

declaration which by itself is good enough for sustaining the conviction on a capital
charge (Mst. Ghulam Zohra v Malik Muhammad Sadiq and another 1997).In Zaka
ullah v.The State 2021 P Cr. L J 1 , Altaf Gohar SI on receipt of information of the
occurrence reached at THQ, Hospital Kallar Syedan and found Naheed Akhtar lying
in injured condition with burn marks; that he after permission from the Doctor got
recorded statement of Naheed Akhtar and thereafter sent it to the police station,

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which later on was reduced into formal FIR and thereafter prepared injury
statement. The facts of the case were that accused was charged that he sprinkled
petrol on the complainant/deceased and then kindled fire with lighter, and victim
later succumbed to the injuries. Record showed that dying declaration of the
deceased was made in the presence of Medical Officer and Investigating Officer in
hospital, within one hour and twenty minutes of the occurrence and accused was the
sole perpetrator nominated therein. Since victim died subsequently, hence her
statement was used during trial as "dying declaration" and was projected the bastion
of prosecution case. Medical Officer affixed her signature upon statement of victim
as certificate of correctness-.Medical Officer gave opinion on a police query that
victim was fit to make statement. Neither the Medical Officer nor the Investigating
Officer was either related with deceased or had any affair of abhorrence with the
accused, thus by no stretch they could be treated as mendacious. Nothing as such
was available from which it might have even remotely insinuate that deceased was
pitched in an affair of grouse or grudge with accused so as to substitute him in her
dying declaration as the sole perpetrator of crime by letting the actual culprit go
scot-free. Evidence of dying declaration was found to inspire confidence, thus
conviction could be awarded thereupon. Appeal against conviction was dismissed
with modification in sentence. In Niamat Ali v. The state 1981 S C M R 61, Supreme
Court declared that Din Muhammad’s declaration was rightly treated as F . I. R. The
court did not find any reason that a person having an eminent danger of death
would have lied and taken the name of the innocent person as a culprit. This stands
as evidence against the appellant so no further corroboration is required.

Dying declaration was to be made by the deceased with the clarity of mind
that he was going to die otherwise FIR, could not be considered as dying declaration.
In Ali Gul Abro and another--v. The State 2018 P Cr. L J 858 First Information Report
was considered as dying declaration by the Trial Court against the accused-
appellants and they were sentenced for life imprisonment. FIR was written by the
police in a routine manner, the deceased was in his senses and he had signed the FIR
himself after verifying its contents. Said FIR did not fulfill the requirements of a
"dying declaration"--- Record showed that deceased himself had gone to the police
station and lodged FIR, deceased had received injury on non-vital part of the body,
as such he was not under the expectation of death at the time of lodging FIR. In such
circumstances, FIR could not be considered as dying declaration. In Muhammad
Ismail v. The State 1985 P Cr. L J 2272 Dying declaration a verbatim copy of First
Information Report and inspiring no confidence Although it was recorded in
hospital yet it did not bear signature of doctor Held, in view of these infirmities it
would be highly unsafe to rely on such dying declaration or to use same as
corroboration of statement of partisan eye witnesses. In Nawab v. The State 1989 P
Cr. L J 1 Trial court rejected the F.I.R to be taken as a dying declaration owing to the
fact that there was no reporting from the doctor to testify the mental health of the
patient, Moreover, patient was accompanied by his relatives and therefore court had
doubts that the patient might have been influenced by them. Furthermore there was
no record available that showed that the deceased was aware that his statement is
the last one and death was imminent.

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However, Dying declaration once believed is not legally required to be

supported by independent corroboration, especially in the absence of allegation of
the substitution of real culprit with the accused . In Parvez v. Farhad Ali and another
2005 172, Court held that:-

"No doubt, sometimes a dying declaration alone cannot be made a basis of

conviction and as a matter of abundant caution the superior courts ask for its
corroboration but it is not a rule of law, but requirement of prudence, and if it is
proved that it is influence free or does not suffer from any infirmity, it becomes a
substantive piece of evidence and it alone can become a basis of conviction.”

Conclusion

It is noted that the dying declaration is important evidence to an extent that it

can become the cause of conviction. Dying declarations enjoy sacrosanct status in
evidence. However in the present world of declining morality and raising
corruptions there are doubts that how many still believe in the cliché that a man will
not meet his maker with a lie on his lips. This belief seems shaken in the midst of
modern rivalries, hatred and competitions. However this evidence is admissible on
the grounds that these declarations are made on the death bed where the charms of
the worldly life seem to vanish. Nevertheless dying declaration remains a weak
evidence which need to be scrutinized minutely by the court along with its physical
environment and the circumstances. It has been observed in this paper that
admissibility of the dying declaration varies from case to case and its’ solemnly a
responsibility of the court to analyze and verify the truthfulness of the evidence.

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References

Akbar Ali v Shanaz and others 1981 (PCr.LJ) ,p.710

Ali Gul Abro and another--v. The State 2018 (P Cr. L J),p. 858

Abdul Ghafoor v.The State 2020 (M L D), p. 1202

Abdul khaliq v. The State 2021 (S C M R),p.325

Faqir Said v. The state and another 2020 (Y L R), p. 1169

Ghani khan v sail Badshah and 3 others 1971 (S C M R),p. 371

Haq Nawaz v The state and others 2018 ( P Cr. L J),p. 69

Imran Ashraf v The state 2012 ( Y L R), p. 325

Imtiaz khan v The state 2020 (P Cr. L J Note ), p.175

Mashad Ali v The state and another 2021 (P Cr. L J Note ) , p.16 .

Muhammad Nawaz khan v The state and another 2015 (M L D),p. 690

Murad v The State 1957 (PLD) (W.P.), p.332

Mst. Ghulam Zohra v Malik Muhammad Sadiq and another 1997 (S C M R),p. 449

Muhammad Ismail v. The state 1985 (P Cr. L J),p. 2272

Niamat Ali v. The State 1981 (S C M R),p. 61

Nawab v The State 1989 (P Cr. L J), p. 1

Niaz-ud-Din and another v The State and another 2011 (SCMR ), p.725

Paira and 2 others v. The State 2016 ( P Cr. L J), p. 313

Patoo and another v The state 2012 (M L D), p. 1358

Parvez v. Farhad Ali and another 2005 (PLD), Peshawar 172,

Police Rules, 1934

Rafaqat ullah alias Paka—v Umar Fayaz (deceased) through brother Muhammad
Riaz and another 2020 (P Cr. L J), p. 1361

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Raja ali shan and another- v Shakeel and 4 others 2014 ( Y L R),p. 92

Riyasat Hussain and another v Muhammad sabir and 3 others 2018 (P Cr. L J),p.
344

Rang Ali and others v The State 1958 ( PLD),(W.P), p. 242

Said Karam alias Ajarr and others---v. The State 2019 (P Cr. L J),p. 1710

Somaid and another v Ali gohar 2019( S C M R),p. 1008

Tahir Khan v. The State 2011 (SCMR ), p.646

Tawaib khan and another v The state 1970 P L D Supreme Court ,p.13

Waheed and another v The state and another 2021 (P Cr. L J ), p.719

Zaka ullah v The state 2021 (P Cr. L J), p. 1

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