The Supreme Court has held that probable time of death within seven year period under Qanoon-e-Shahadat Order, 1984 can be independently visualised and declared by a court of law keeping in view the circumstances in which a person in a particular case went missing. A three-judge bench headed by Justice Mushir Alam on 31st August after hearing the arguments of all the parties had reserved the judgment, which was announced on Friday.
The petitioner Parveen Shaukat's husband, who was working as a deputy secretary in BPS-18 with the government of Sindh, was kidnapped on 09.05.1999. After making all-out efforts and losing hope, she lodged FIR on 14.01.2000. In 2009, the petitioner filed a suit seeking declaration of her husband's death in terms of Article 124 of Qanoon-e-Shahadat Order 1984, which was granted on 19.03.2010. She then applied to the department for family pension, which was granted in terms of Sindh government's notification dated 26.07.2006, which allowed family pension from the date when the petitioner's husband went missing. However, she took the stand that she is entitled for family pension at the rate that was applicable on the expiry of the seven years from the date of kidnapping and not that was applicable on the date of kidnapping.
After rejection of her claim, she filed a constitution petition before the Sindh High Court, which was dismissed.
The judgment authored by Justice Faisal states; "It be very unsafe to lay down a principle of law with regard to time of death in a very rigid manner as Article 124 of Qanoon-e-Shahadat Order, 1984 by itself is of no help in drawing the inference as to when within those seven years period the missing person might have died."
The Article 124 says, "Burden of proving that person is alive who has not been heard of for seven years: When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
The judgment observed that the probable time of death of a missing person could be any day within the statutory seven year period, as it all depends on taking into consideration the circumstances in which a person has gone missing. One can visualize various situations e.g. a solider goes missing on a war theatre. After the end of war, he still does not return and his name is also not listed in the tally of prisoners of war provided by the enemy. In that situation, it can be inferred that he might have vanished in some explosion during the war without a trace. In this background, his probable time of death can be the date when the war ended.
Similarly, a group of mountaineers goes on an expedition to conquer the K-2; however, on their way back one of them gets lost. After a month of unsuccessful search and rescue operation, it could safely be presumed that he might have died as it is highly unlikely that he could have braved the harsh weather conditions more than a month or two which he must have faced on the expedition.
The court noted that history of kidnappings shows that many a times the kidnapped person is kept in captivity for months together. Keeping this in sight, it would be very difficult to fix the very first day of disappearance as the probable time of death in captivity. Considering that the probable date of death upon expiry of the statutory seven year period would also be too long, therefore, any reasonable time would be safe to visualize.
The judgment said in this case on the disappearance of the petitioner's husband, FIR was lodged on 14.01.2000 wherein it was stated that on 09.05.1999, the husband of the petitioner informed her that he will go to Sehwan, Dadu and then Sukkur to receive his salary. It is also stated in the FIR that on the next day, the petitioner received telephone calls from unknown number and on 27.05.1999 an unknown letter was received from which it was deducted that the petitioner's husband has been kidnapped. Thereafter, the FIR was lodged on 14.01.2000. It appears that after giving up all hopes and under the apprehension that the kidnappers might have killed the petitioner's husband, the FIR was lodged. Taking all this into consideration, the death probably may have taken place somewhere around the date of lodging of the FIR.
"We, therefore, hold that the family pension is to be calculated from the probable date of lodging of the FIR i.e. 14.01.2000," maintained the judgment.