LEGAL AND PROCEDURAL ASPECTS OF DYING DECLARATION: A PAKISTANI PERSPECTIVE

By
Rizvi, SAH[1]

Abstract:

Important evidence in cases, both civil and criminal, is dying declaration. It is a sort of hearsay evidence with an exception of more weightage given by the courts when assessed. In order to get full benefit of dying declaration, its recording as per rules and procedure and its proper reading by the judge is vital. In this short article, the law and procedure in the light of judicial dictums will be discussed by highlighting the essential ingredients of dying declaration for the persons who are not acquainted with the whole concept.

Introduction:

Dying declaration is valid, whenever the cause of death is in question, both in civil and criminal cases. It is said that, ‘a man will not meet his maker with a lie in his mouth[2]’, so weightage is given to the statement of a deceased person whenever that statement relates to the cause of death of that person. The dying declaration alongwith other seven clauses[3] mentioned in article 46 of Qanoon-e-Shahadat Order [QSO] 1984, is an exception to the rule that hearsay evidence is no evidence. The admissibility of this declaration is fully explained in Article 46 (1)[4] of QSO 1984, which states, “When the statement is 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, in cases in which the cause of that person’s death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question”. However, in judgments of superior courts, the judges have taken divergent views on the admissibility of dying declarations.

Definition, Brief History, Concept and Rules regarding Dying Declaration:

The common law recognized a number of situations in which the statements of persons deceased at the time of trial could be admitted as evidence of the facts stated. The common threads linking these exceptions were, firstly, the point that since the maker of the statement was dead no better evidence of their knowledge was available, and secondly, the idea that the circumstances in which the statements were made afforded sufficient guarantees of their reliability to justify their admission[5].

Dying declaration is a statement made by a person as to the cause of his death or regarding circumstances of the transaction, which resulted in his death. It is a statement by a person who believes that death is imminent[6], relating to the cause and circumstances of the person’s impending death[7]. “It is a rule peculiar to criminal cases is the exception to the rule respecting hearsay evidence which renders dying declarations as to cause of death admissible in trials for murder or manslaughter…the earliest emphatic statement of it…is to be found in Woodcock’s case, decided in 1789…This case refers to a decision in 1720…and to the case of R. v. Reason and Tranter, decided in 1722. That case however, says nothing as to any limitation on the rule. A series of cases from 1678 to 1765 show that, during that period declarations of deceased persons as to cause of their death were admitted even though the declarants had hopes of recovery when they were made[8]”. Sanctity is attached to a dying declaration by the statute and it is to be respected unless clear circumstances are brought out showing it, not to be reliable[9].  Following are the main ingredients of a dying declaration:

  1. It relates to cause of death
  2. It includes the circumstances which resulted into death
  3. It is relevant when cause of death comes into question
  4. Before a statement is admitted as a dying declaration, it must be proved that the maker is dead, if however, survives, such statement would be relevant under Article 153 for corroboration. The basis for this is that if victim is not dead, then hearsay evidence is not the best evidence.
  5. The declarant must qualify to be a competent witness[10] under Article 3[11] QSO 1984.

The grounds of admission of dying declaration are; (a) necessity, (b) death, (c) the deceased being usually the only eyewitness and (d) the sense of impending death, which creates a sanction equal to the obligation of an oath[12]. The classic statement of the rationale for this exception was given by Eyre CB in the old case of Woodcock in these words, “the principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice[13]”. In homicide cases like murders and manslaughter, the rule is that at the defendant’s trial for such an offence, an oral or written statement by the victim of the offence about the cause of his injuries is admissible as evidence of the stated cause, provided two conditions are satisfied. One is that the victim would have been a competent witness had he lived to testify…the other is that the victim must have been under a settled hopeless expectation of death when he made the statement[14].

Generally following points are considered while dealing with dying declarations;

  1. Dying declaration is admissible only when the cause of death is clearly explained and it need not be a narration of all facts, as other immaterial omissions are immaterial[15].
  2. It may be in question answer form and sometimes where it is not in questions answer form it may be discarded[16].
  3. The person making this declaration must otherwise be competent and in senses
  4. The statement is taken as a whole and complete, as incomplete statements can not be relied upon[17].
  5. It may be oral[18] or in writing
  6. It can be made before a private person[19] and proved by cogent evidence.
  7. There is no need of expectation of death in the  mind
  8.  Any respectable person can record this statement; however, it is preferable to be recorded by police[20], doctor[21] or magistrate in the presence of witnesses.
  9. There is no requirement of oath and may be in the form of FIR[22]
  10. It can be recorded in any language; preferably it should be in the language of declarant.
  11. Where two inconsistent dying declarations are available, none should be relied upon[23]
  12. Where two dying declarations are available, one is brief and other is detailed and they are not inconsistent, then both are admissible and when both are inconformity with each other, both may be accepted as true[24]. 
  13. It can be recorded through intelligible signs, when a person is not in a position of speaking or writing it can be made by gestures in the form of yes or no by nodding.
  14. At the time of recording no external influence should be upon the declarant.
  15. There is no requirement that such declaration must be read over or it must be signed by its maker.
  16. Even where two persons are attacked together and one died at the spot and second some days later, the later’s declaration as to cause of death of former will also be admissible[25].
  17. Last incriminating statement made by deceased can be treated as dying declaration, even though the injured died much later[26].
  18. If dying declaration is recorded in the hospital, it is necessary that a certificate is obtained from the doctors to the effect that the deceased was in a fit condition to make a statement[27].
  19. If dying declaration is recorded by police in presence of relatives of the deceased, usually it carries less weight[28].
  20. Usually interested dying declaration can not be corroborated by interested witness[29] and where there is possibility of tutoring, it can not be relied upon[30].

The Police Rules 1934 provide safeguard to exclude all reasonable possibilities of fabrication in dying declaration by stating that, “a dying declaration, whenever possible, be recorded by a magistrate and person making dying declaration shall, if possible, be examined by medical officer[31]”. These rules are not mandatory, they are only directory.

Evidentiary Value:

Conviction can be awarded on the basis of such declaration[32], as it is relevant statement but it is better to corroborate[33], as it is a statement of interested person[34] and it is rule of prudence[35] to closely scrutinize and corroborate it[36], however corroboration is not a compulsory situation if the dying declaration is duly proved[37] and court is satisfied about its genuineness[38] and truthfulness[39].  As dying declaration is a weak type of evidence[40] and it is a statement, not subjected to the test of cross examination, as such utmost care is to be taken in recording conviction on the basis of such statement[41]. The declaration of a dying victim may be unreliable for other: pain, fear, shock and confusion may all result in one or more of the testimonial infirmities of defective observation, defective memory and incomplete or ambiguous narration[42]. While dealing with dying declaration, court has to judge the credentials of source and scrutinize the contents of dying declaration with following;

  1. Whether the maker had the physical capacity to make the dying declaration?
  2. Whether the maker had the opportunity to recognize the assailants?
  3. Whether there were chances of mistake?
  4. Whether it is free from outside influence[43]?
  5. Whether the witness who heard the deceased making his statement, heard him correctly?
  6. Whether witness’s evidence can be relied upon?
  7. Whether it is inconsistent with other evidence and facts and circumstances of the case?

Hence, dying declaration if found in line with ocular evidence, the court can base its conviction on it, treating same as corroborative evidence[44] on the other hand, a dying declaration which is not supported by any corroborative evidence will not be of any value[45]. The procedure for proving a dying declaration should be the normal one i.e. to examine the person who recorded it; were present there or who heard the same, otherwise it may not be relied upon. Also a dying declaration can be challenged on any ground available to challenge the evidence of a witness e.g. enmity[46] etc. So, it is upto the court to look how much weight is to be given to a dying declaration depending upon the facts of each case[47].

Conclusion:

Keeping in view above discussion, it must be kept in mind that whenever dying declaration is brought before the court, the court has to be very careful while relying upon it.  In case court finds it untrue or unreliable, it is always at liberty to reject it or discard any portion of it. The most important point of consideration is that victim was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished[48]. As, a dying declaration is a testimony that would normally be barred as hearsay, but is admitted as evidence in certain cases due to being the last words of a dead person or as a rule of necessity, when no other evidence is available. It may be pointed out that under Article 46 QSO 1984, statement of a dying person is admissible in evidence if duly proved and admitted in evidence, then it stands on the same footing as of any other evidence as to its value and credibility and it can safely be made the basis for conviction in a case. It may be oral or written. It is immaterial to whom it is made, whether to a private person or to a police officer or to a magistrate. While dealing with the question of dying declaration, the court has to judge it from stand points[49].


[1] M.A (Pb); LL.B (Pb); LL.M (Cambridge); Asst. Professor and Principal, Superior College of Law, Lahore

[2] Nemo moriturus praesumitur mentire. To a personal note, there may be circumstances where one can tell a lie out of revenge or to protect someone.

[3] They include, (i) declaration made in course of business or duty; (ii) declaration against interest; (iii) declaration as to public right; (iv) declaration as to pedigree; (v) declarations by testators in their wills; (vi) declarations by several persons expressing feelings and (vii) declaration relating to existence of a relationship.

[4] The clause refers to two kinds of statements; (a) when the statement is made by a person as to his cause of death and (b) when the statement is made by a person as to any circumstances of the transaction, which resulted in his death. This clause is same as was provided in Section 32 Evidence Act 1872. It must also be kept in mind that Article 46 is not dependant upon Section 164 Cr.PC 1898 [See 1997 PCrLJ 229 and PLD 1951 FC 111]

[5] The Law of Evidence, IH Dennis, Sweet & Maxwell, 1999, p-540

[6] The test of a settled hopeless expectation of death is whether the victim had given up all hope of life and believed death to be impending or imminent. Also it is not necessary that he must expect death immediately, only thing is that he has no hope of recovery [For exceptions and further interpretation of this aspect, one can see Jenkin’s Case (1869) 1 L.R CCR 187 and case of Morgan (1875) 14 Cox. CC 337 and Mills versus R [1995] 3 All ER 865 at 876 PC.

[7] Black’s Law Dictionary,  8th edition,  Bryan. A. Garner, Thomson

[8] A History of the Criminal Law of England (1883), James Fitzjames Stephen, p-  447-48

[9] PLD 1977 SC 612

[10] As declaration by lunatic or child is inadmissible

[11] Who may Testify: All persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of same kind: …..

[12] R v Woodlock (1789) 1 Leach 500, 502; R v Perry (1909) 2 KB 697; Phipson on Evidence, 13th Edition, p-496

[13] The Law of Evidence, IH Dennis, Sweet & Maxwell, 1999, p-541

[14] Ibid p-540

[15] 1987 PCrLJ 137

[16] 1987 PSC 713 (Ind)

[17] See 1973 SCMR 26, 1978 PCrLJ 498

[18] 1993 PCrLJ 1547, 1997 PCrLJ 229, PLD 1951 FC 111, 1996 SCMR 1747, 1995 PCrLJ 1479. However for a verbal dying declaration it is important to know exactly what the deceased person has said and the manner in which he said it [See PLD 1968 Quetta 7].

[19] 1996 PCrLJ 1689

[20] Such police officer’s statement regarding truthfulness will be admissible [See 1983 PSC (FSC) 1338, see also, 1969 PCrLJ 482 and PLD 1984 FSC 3]

[21] Where the doctor before whom the dying declaration is alleged to have been made is not examined, the dying declaration becomes doubtful and it can be discarded.

[22] 1981 SCMR 61, 1971 SCMR 222, PLD 1951 Dacca 95, 1986 SCMR 1906, 1997 SCMR 449, 1985 PCrLJ 2857. Also see 1989 PCrLJ 1 for different view on this point.

[23] PLJ 1981 (Cr.C) 1, 1984 PCrLJ 1222

[24] 1968 PCrLJ 747

[25] PLD 1954 Lah. 646, PLD 1992 SC 211

[26] See PLD 1992 SC 211

[27] See 1997 PCrLJ 229

[28] NLR 1982 Cr. 323, See also 1977 SCMR 72, PLD 1995 Quetta 56

[29] See PLD 1968 Pesh 47 and PLD 1970 Lah. 73

[30] 1970 PCrLJ 1292

[31] Rule 25.21 Police Rules 1934

[32] 1996 PCrLJ 1689, see also 2006 PCrLJ 662, PLD 1966 Dacca 400, 1971 SCMR 101, 1971 PCrLJ 275. For different point of view see 2001 PCrLJ 268

[33] See 1999 PCrLJ 817, 1985 PCrLJ 1162

[34] 1972 SCMR 651, PLD 1977 Lah. 520

[35] PLD 1970 Lah 73

[36] 2007 SCMR 1825

[37] 1990 PCrLJ 396

[38] 1992 PCrLJ 2222

[39] 1997 PCrLJ 1769, 1999 PCrLJ 116

[40] 1984 PCrLJ 2713, also see 1998 PCrLJ 1927

[41] 1987 PCrLJ 1769, also see 1999 PCrLJ 707, 1999 PCrLJ 1087

[42] The Law of Evidence, IH Dennis, Sweet & Maxwell, 1999, p-541

[43] See 2002 MLD 1698, PLD 1997 SC 449

[44] 2007 PCrLJ 1036

[45] 2007 YLR 1138

[46] PLD 1977 SC 612

[47] 1998 PCrLJ 2515

[48] Critical Appraisal of Dying Declaration, Dr. RK Gorea and Dr. OP Aggerwal, JIAFM, 2004; 26(1). ISSN 0971-0973

[49] KLR 1986 Cr.C 169