Dying Declaration in Pakistan

A Dying Declaration in Pakistan is a declaration made by a deceased individual, that was recorded by an individual (recorder) in regards to their death. Dying declarations have great importance in Islamic Law and It is a recognized principle in Islamic Fiqh.

It is a form of hearsay evidence, that is an exceptionally strong piece of admissible evidence used by Criminal Lawyers in Pakistan, which can ultimately lead to a conviction. In this article, we will be discussing Dying Declarations in Pakistan; what it is, how it’s used, and their essential ingredients when used in a court of law in Pakistan.

What is a dying declaration in Pakistan?

A Dying Declaration in Pakistan is the statement made by a person who is has passed away and is therefore unable to give their evidence directly, given through a witness who either recorded the statement or is able to relay it. The value of this evidence and its reliance can be heavily relied upon in cases of Murder (302 PPC).

The laws of Evidence in Pakistan are covered in the Qanun-e-Shahadat Order 1984, and Section 46 (i) deals with the dying declaration. The general presumption in Pakistan is that dying persons usually speak the truth, and can recall their last moments in life first hand.

We [The Court] are of the view that it is Qanun‑e‑Shahadat which makes the [Dying Delaration] evidence admissible and relevant. Criminal Procedure Code provides procedure for recording such piece of evidence, therefore, where a statement made by a person with regard to circumstances which led to his death would be a statement under Article 46 of Qanun‑e‑Shahadat and would not be subject to control under the Criminal Procedure Code where statement of a witness is recorded under section 161, Cr.P.C. during the investigation because a person who later died cannot be called a witness of the prosecution as he cannot appear nor be produced before the Court

2001 PCrLJ 1014

Forms of Dying Declaration in Pakistan

When an individual has been severely injured or is in an ailing state, they may have issues that impact their abilities to move and speak. Therefore, courts in Pakistan can accept Dying Declarations in the following forms:-

  • In written form ; If the deceased left a written note, or was able to write their statement in their final hours.
  • In Oral form ; If the deceased was able to tell someone what happened and who was responsible for their death (In front of a competent witness, which we will discuss later in this article).
  • By using Gestures ; If the deceased was able to convey their message to a witness clearly describing the incident or identifying the murderer/s.
  • By Digital Means ; The deceased may be recorded using a mobile video of their final statement, or a relevant post on their social media account may be used if they detailed their death using an Instagram/Facebook post or a tweet.

We [the court] are satisfied that the two statements though recorded by the police, one that of Ranju and other that of Umer Hayat, were dying declarations and are admissible. Whether such statements are reliable for basing conviction, is to be determined by seeing corroboration.

2001 PCrLJ 1014

Witnesses that can record a Dying Declaration in Pakistan?

Due to the varying nature of the victim in these circumstances, a dying declaration is given more freedom for its ability to be recorded, but with certain limitations. The following methods can be used to record a statement for a dying declaration in Pakistan:-

  • A Testimony recorded before a magistrates court – A magistrate can record dying declaration under section 164 of Cr.P.C.
  • A Report made to a Police officer – A Police officer who was with the victim during their final hours can record their statement during the course of their investigations (i.e. the lodging of an FIR).
  • A Proclaimation made to a Medical Professional – If the victim dies in hospital or around medical staff, and gives a statement relating to their death or murder, this can also be given as a dying declaration,
  • Statement made to an individual who was with the victim – Any person deemed as a competent individual (i.e. over 18 and not mentally unstable etc.) that is detailed in Section 3 of the Qanon E Shahadat Order 1984, may testify before a court of the dying declaration made to them.

Dying declaration is made admissible under Article 46 of Qanun‑e‑Shahadat which Article does not provide any particular method and manner for recording such declaration. It can be either oral or written, signed or thumb‑impressed but it must be statement of person made by him with regard to circumstances which resulted into his death. The rule‑makers out of abundant caution ruled that it should be recorded in the presence of a Magistrate and if a Magistrate is not available, then in presence of two gazetted Police Officers and if they are not available, then two notables who are unconcerned with the maker of the statement. If in a case such procedure is not adopted and if it is laid that in absence thereof the statement of an injured which later became dying declaration would be inadmissible as it would be in direct conflict with the statutory provision as embodied in Article 46 of Qanun‑e‑Shahadat.

2001 PCrLJ 1014

How it can be used as Strong Evidence?

For a Dying Declaration to be used and considered as strong and admissible in evidence, it must meet a set guideline of criteria which was well detailed in 2001 PCrLJ 1014. This judgment quite exhaustively set out the guidelines that would satisfy the court as below:-

  • The Dying Declaration must be in relation to their death – It must be related to the incident/s leading up to the fatality and relevant to the cause and circumstances of their death, identifying their assailants or culprits.
  • It must have been made voluntarily by the victim – that the deceased victim made an effort to give their statement voluntarily.
  • The victim has died, and is therefore it is impossible to get any further justifications – If the victim survives their incident, then their dying declaration would not be valid, and they would need to record their statement before a court.
  • Their Dying Declaration must be complete – leaving no ambiguity as to what they were trying to say to the identities of the murderers and how they were killed.
  • The witness who is recalling the Dying Declaration in Pakistan must be competent – As per Section 3 of the QSO
  • Corroboration with facts – The Dying Declaration must be in line with other evidence supporting the statement made by the deceased.

The aforesaid portion was duly confronted by the learned defence counsel as mentioned at page 64 of the paper book and the learned High Court had also came to a right conclusion that dying declaration recorded under section 161, Cr.P.C. of Nazir deceased was fabricated one and was in clear conflict with the medical evidence as there was only one injury. 

2007 SCMR 1825

How it can be dismissed as evidence?

Serious doubts and apprehensions have always been a key element when it comes to using a dying declaration as a conviction. One example can be seen in 2007 SCMR 1825 where the witness relaying the Dying declaration in Pakistan is “improved” and enhanced their statement, bringing the credibility and the competency of the witness in disrepute.

When the statement made in the Dying Declaration in Pakistan is incomplete, the court may be dissatisfied with it and rule it to be weak and inadmissible. The most common reason for its dismissal, and its strongest ground for dismissal, is when it does not collaborate or is supported by other evidence.

Contact us for further information on Dying Declarations in Pakistan

Our Lawyers in Pakistan are always available if you require further information on matters relating to evidence in a dafa 302 case. We have Criminal Lawyers in Lahore, Karachi, Rawalpindi, and Islamabad (and throughout Pakistan).

To get in touch with us simply WhatsApp us on 0308 551 0031 (Or 0092 308 5510031 if you’re contacting us from outside of Pakistan. If you wish, you can also reach out to us using the form below.

Open chat