P L D 2003 Karachi 618
KAKA KISHANCHAND Versus THE STATE
Cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant---Eight clauses mentioned in Art.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 that sense; if it refers to an opinion it must be the evidence of the witness who holds that opinion, as provided by Art. 71 of 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 Art.46 of the Qanun-e-Shahadat, 1984, 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.
Dying declaration which is admissible under Cl.(1) of Art.46 of Qanun-e-Shahadat, 1984, has first to be proved that the same is genuine and true and then it can be acted upon and some sort of corroboration is also required---Method to prove the recording of the dying declaration is to examine the some persons who were present at the time and heard the statement being made or if the statement was written or dictated by the deceased it must be proved---If the said statement is not proved in such manner then it will be inadmissible even though it may have been recorded by the Magistrate, as Art.91 of Qanun-e-Shahadat, 1984, does not raise any presumption that the said statement was made by a particular person---When a person who recorded the dying declaration is called he is required either to repeat what the deceased had stated refreshing memory from the record under Art. 155 of Qanun-e-Shahadat or to merely report that the record correctly represents what the deceased had stated, but in any case the record must be brought and proved in accordance with law.
Dying declaration and confession, proof of---Normal procedure of proof is to be adopted in the case of dying declaration before relying upon the same---Similarly in the case of confession admissible under Art.46(3) the required proof is essential.
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