IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE FAISAL ARAB 
MR. JUSTICE SAJJAD ALI SHAH 
 
 
CIVIL PETITION NO. 664-K OF 2017 
(On appeal against the judgment dated 15.11.2017 
passed by the High Court of Sindh, Karachi in C.P. 
No. D-4177/2016) 
 
Parveen Shoukat 
… Petitioner 
VERSUS 
Province of Sindh and others 
… Respondents 
 
For the Petitioner:  
Mr. Rafiq Ahmed Kalwar, ASC 
 
For the Respondents: 
Mr. Sibtain Ahmed, AAG 
 
Amicus curiae: 
 
Mr. Shahid Anwar Bajwa, ASC 
 
Date of Hearing:  
31.08.2018 
 
JUDGMENT  
 
 
 
FAISAL ARAB, J.- The husband of the petitioner, who 
was working as a Deputy Secretary in BPS-18 with the 
Government of Sindh, was kidnapped on 09.05.1999. The incident 
was reported to the police but he could not be recovered. The 
family gave up on him on the assumption that the kidnapers might 
have killed him. 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. The petitioner 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. The 
petitioner, however, took the stand that she is entitled for family 
CIVIL PETITION NO. 664-K OF 2017 
2
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. When her claim was denied, she filed a 
constitution petition before the High Court, which was dismissed 
vide impugned judgment. Hence, this petition.  
 
2. 
 
Mr. Shahid Anwar Bajwa, who was appointed as 
amicus curiae referred to the judgments reported in the cases of 
Ganesh Bux Singh Vs. Mohammad (AIR (31) 1944 Oudh 266), H.J. 
Bhagat Vs. Life Insurance Corporation of India (AIR 1965 Madras 
440), Muhammad Sarwar Vs. Fazal Ahmad (PLD 1987 SC 1) and 
N. Jayalakshmi Ammal Vs. R. Gopala Pathar (AIR 1995 SC 995). 
He submitted that in these cases it was held that scope of Section 
108 of the repealed Evidence Act (equivalent to Article 124 of 
Qanoon-e-Shahadat Order, 1984) is only to the extent that it 
presumes a missing person dead and in no way helps to draw an 
inference as to the probable time of death of a missing person 
within those seven years, therefore, the probable time of death has 
to be inferred independent of the provision of Article 124 on the 
basis of material and circumstances that come on the record. He 
summed up by stating that under Article 124 only death of the 
missing person can be presumed after seven year statutory period 
has elapsed but this Article does not help in visualizing his 
probable time of death within those seven years, which in terms of 
Muhammad Sarwar’s case purely depends on the facts and 
circumstances of each case.  
 
3. 
 
Learned counsel for the petitioner, on the other hand, 
argued that under Article 124 of the Qanoon-e-Shahadat Order, 
CIVIL PETITION NO. 664-K OF 2017 
3
1984 death of a missing person is to be presumed on the date 
when the seven years period expired. He submitted that the 
petitioner will suffer financially if the family pension is given at the 
rate which was payable on the first day of her husband’s 
kidnapping. He further submitted that learned High Court wrongly 
went with the decision of the Government of Sindh and erred in 
considering the first day on which petitioner’s husband went 
missing as the date on which he would be presumed to have died 
and not on the date when seven years period expired. Lastly, he 
submitted that the petitioner being a widow is entitled to 
pensionary benefits as are calculable when the seven years of her 
husband’s kidnapping elapsed i.e. on 09.05.2006.  
 
4. 
 
Learned Assistant Advocate General, on the other 
hand, defended the impugned judgment, which was rendered by 
placing reliance on the Government of Sindh’s letter dated 
16.01.1994 issued by Finance Department. This letter only 
provides that if an employee is missing or remains untraced for a 
period of seven years as envisaged under Article 124, family 
pension as admissible under the rules may be allowed to his legal 
heirs. At best this letter only acknowledges the presumption of 
death that arises when a missing person is not heard of for seven 
long years. Obviously through such a letter, probable time of death 
within those seven years period cannot be visualized which purely 
depends on the facts and circumstances of each case. The question 
that arises is whether Article 124 of Qanoon-e-Shahadat Order, 
1984 has any application with regard to visualizing the probable 
time of death of a missing person, is the question that needs to be 
CIVIL PETITION NO. 664-K OF 2017 
4
answered. In this regard the meaning and scope of Articles 123 
and 124 of Qanun-e-Shahadat Order, 1984 need to be briefly 
explored. For convenience sake these Articles are reproduced 
below:- 
 
“123. Burden of proving death of person known to 
have been alive within thirty years: Subject to 
Article 124, when the question is whether a man is alive 
or dead and it is shown that he was alive within thirty 
years, the burden of proving that he is dead is one the 
person who affirms it. 
 
124. 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.”  
 
5. 
 
In terms of Article 123 of the Qanoon-e-Shahadat 
Order, 1984 when a question arises as to whether a person is dead 
or alive and it is shown that he was alive within last thirty years, 
the burden to prove that he is no more alive is on the person who 
claims that he is dead. So in terms of Article 123 it is to be proved 
for a fact before a court of law that a person who was alive in the 
last thirty years has actually died on the basis of positive evidence. 
This rule of evidence has an exception which is contained in Article 
124 of the Qanoon-e-Shahadat Order, 1984. It is attracted where a 
person has disappeared and is not heard for a period of seven long 
years by any of those who would have naturally heard of him had 
he been alive. In such eventuality, Article 124 raises a 
CIVIL PETITION NO. 664-K OF 2017 
5
presumption that a person has disappeared without a trace for 
seven years may no more be alive. So without the proof of actual 
death as envisaged under Article 123, a missing person in terms of 
the legal fiction contained in Article 124 is to be presumed dead, if 
he is not heard for seven years by those who would have definitely 
heard of him had he been alive. What Article 124 at best does is 
that it prevents the court from entertaining a case for making a 
declaration of death of a missing person until the statutory seven 
year period prescribed therein expires. To prescribe a waiting 
period is of utmost importance as presuming a missing person to 
be legally dead without waiting for a sufficient period of time has 
its own adverse consequences on his rights e.g. his estate would be 
distributed among his heirs or in favour of those who are 
beneficiary of his Will. The missing person’s right of inheritance 
from a relation dying after he went missing would also be effected 
in case he resurfaces in two or three years. If no reasonable period 
is prescribed by law and within a year or two of his disappearance 
he resurfaces, by then his property would have already gone in the 
hands of his presumptive heirs or beneficiaries of his Will who may 
have already dealt with it in a manner that has left very little or 
nothing to be restored back to the returned person. By prescribing 
a minimum period of seven years what the law only suggests is 
that before presuming a missing person to be legally dead, persons 
interested in seeking such a declaration should wait for seven 
years as it is quite possible that within such period he might 
resurface or his whereabouts may become known, in case he is 
still alive. So this seven year period is nothing but a safety 
precaution provided by law which requires the concerned parties to 
CIVIL PETITION NO. 664-K OF 2017 
6
wait for a certain period of time and only upon expiry of such 
period seek declaration from the Court that the missing person 
may no more be alive.  
 
6. 
 
Section 108 of repealed Evidence Act is equivalent to 
Article 124 of the Qanun-e-Shahadat Order, 1984. Similar 
question came up in the case of Ram Singh Vs. Board of Revenue, 
U.P. Allahabad (AIR 1964 Allahabad 310) and it was held as 
under:- 
“5.  
But Sec. 108 Indian Evidence Act is not 
exhaustive on the question of presumptions as regards 
death of a person. The Court may make a suitable 
presumption in accordance with the circumstances of 
each case. Suppose, a man sails in ship; and the ship 
sinks. Thereafter the man is never seen alive. Under 
such circumstances, it is reasonable to assume that the 
person died in the shipwreck. When a person goes for 
pilgrimage, he or she ordinarily returns home in six 
months or in a year. In the present case Smt. Rukmini 
left for Gangasagar Yatra 17 years ago. Since then she 
has not been heard of. It is reasonable to assume that, 
she died in some accident or of some disease during the 
journey or at Gangasagar. She appears to have left 
about the year 1940. We may reasonably assume that, 
she probably died by 1941 or 1942 in connection with 
her pilgrimage. There is evidence to the effect that, Deo 
Singh died about 1945. If the plaintiffs established 
circumstances indicating Smt. Rukmini's death by 1942, 
and further proved that Deo Singh died in 1945, they 
have proved their case. The Revenue Courts were 
justified in holding that, Smt. Rukmini died during Deo 
Singh's life-time.” 
 
 
CIVIL PETITION NO. 664-K OF 2017 
7
7. 
 
In the case of Smt. Bhanumati Dayaram Mhatre Vs. 
Life Insurance Corporation of India (AIR 2008 Bombay 196), the 
same question was addressed as follows:- 
“5.  
Section 3 of the Evidence Act prescribes the 
standard of proof by defining the word "proved" as 
follows: 
“Proved - A fact is said to be proved when, after 
considering the matters before it, the Court either 
believes it to exist, or considers its existence so 
probable that a prudent man ought, under the 
circumstances of the particular case, to act upon 
the supposition that it exists.” 
 
If the test of preponderance of probability laid 
down by Section 3 of the Act is applied, that is to say a 
fact is said to be proved if the Court considers its 
existence to be so probable that a prudent man ought, 
under the circumstances of the particular case, to act 
upon certain supposition that it exists, then it would 
have to be held that Kushal has died on 13th 
November, 1995 or soon thereafter. If he was alive after 
13th November 1995, there was no reason for him not 
to contact his immediate family members. It is not the 
case that Kushal left the house in distress or he was 
under some disability which prevented him from 
returning home or even contacting his family members. 
Nor is it shown that Kushal was missing in such 
circumstances or could be at such place wherefrom he 
could not even contact his parents or close family 
members. Considering the fact that Kushal was not 
under any distress or disability nor was he in the 
situation wherefrom he could not contact his family 
members coupled with the fact that he has not 
contacted his family members at all since 13th 
November, 1995 and has been declared to be dead by 
CIVIL PETITION NO. 664-K OF 2017 
8
the declaratory decree of the competent Court makes 
us, as men of ordinary prudence, believe that Kushal 
must have died on 13th November, 1995 or soon 
thereafter.” 
 
8. 
 
In the case of Muhammad Sarwar Vs. Fazal Ahmad 
(PLD 1987 SC 1), this Court held as under:- 
 
 
“It is to be observed that the words "when the question 
is" occurring in both sections 107 and 108 (Articles 123 and 
124 of Qanoon-e-Shahadat Order, 1984) have reference only 
to question of the burden of proof at the trial and not at any 
antecedent point of time. Thus, if a person has not been heard 
of for seven years there is a presumption of law that he is 
dead but this presumption does not extend to the date of 
death. Indeed there is no presumption that he died at the end 
of the first seven years, or at any particular date. This fact 
has necessarily to be proved as a fact because section 108 
does not direct the Court to presume that the person who has 
not been heard of for the last seven years had, in fact, died at 
the expiry of seven years. It only provides that such a person 
is presumed to be dead without fixing the time of death. It is 
for this reason that where it is necessary to establish that a 
person died at any particular time such a fact must be proved 
by positive evidence. Thus, notwithstanding the presumption 
of death it would be possible for the Court to give a finding 
that it occurred after the expiry of the period of seven years 
since the time when he was last heard of, if the evidence so 
warrants. 
 
The upshot is that section 108 of the Evidence Act 
merely creates a presumption that the person, who has not 
been heard for seven years, is dead, at the date of the suit, 
and does not refer in any way as to the date of his death, 
which has to be proved in the same way as any other relevant 
fact in the case.” 
CIVIL PETITION NO. 664-K OF 2017 
9
 
9. 
 
By presuming a person dead in terms of Article 124 of 
Qanoon-e-Shahadat Order, 1984, it does not mean that this Article 
is of any help in determining when he actually died in those seven-
year period. He is just presumed dead for all intent and purposes 
after a period of seven years has expired. Therefore, Article 124 by 
itself is of no help in visualizing the probable time of death of a 
missing person within those seven years. However, the Court 
which is seized of the matter for making a declaration in terms of 
Article 124 is not prevented from visualizing the probable time of 
death on the basis of the circumstances in which the person has 
disappeared. Thus inference as to the probable time of death of a 
person who has gone missing for more than seven years can be 
drawn by the Court only by considering the facts and 
circumstances in which the person has disappeared. So once a 
missing person is presumed dead after the full seven-year 
statutory period has expired, the circumstances surrounding the 
disappearance of a person would facilitate the court in determining 
his probable time of death within those seven years. This is also 
the ratio laid down by this Court in Muhammad Sarwar’s case 
referred by the learned amicus curiae. 
 
 
10. 
 
In the present case, the petitioner has claimed that the 
date of her husband’s probable time of death should be reckoned 
from the date when the seven year period after his disappearance 
expired i.e. on 09.05.2006 whereas the respondent had considered 
this date to be 09.05.1999 i.e. the very first day when the 
petitioner’s husband was kidnapped. As both the stands sought to 
CIVIL PETITION NO. 664-K OF 2017 
10
be canvassed before us are based on pure rule of thumb, it would 
be very unsafe to lay down a principle of law with regard to time of 
death in a very rigid manner. Section 2(4) of Qanoon-e-Shahadat 
Order, 1984 states “a fact is said to be proved when, after 
considering the matters before it, the Court either believes it to exist, 
or considers its existence so probable that a prudent man ought, 
under the circumstances of the particular case, to act upon the 
supposition that it exists”. As the probable time of death of a 
missing person could be any day within the statutory seven year 
period, 
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 war has ended and 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 had ended. A group of mountaineers go on an expedition 
to conquer the K-2 mountain, 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. Then there is a situation like the present one where 
a person is kidnapped and not heard of for seven long years. 
History of kidnappings shows that many a times a 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 
CIVIL PETITION NO. 664-K OF 2017 
11
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 fact that 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 and Dadu 
and then he will go to 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, 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. Therefore, such 
date should be assumed to be the probable date of his death.  
 
 
11. 
 
From the above discussion, it is evident that the 
probable time of death within seven year period can be 
independently visualized and declared by a court of law keeping in 
view the circumstances in which a person in a particular case went 
missing. Article 124 by itself is of no help in drawing the inference 
as to when within those seven years period the missing person 
might have died. 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. 
CIVIL PETITION NO. 664-K OF 2017 
12
 
 
12. 
 
For what has been discussed above, this petition is 
converted into appeal and partly allowed. The impugned judgment 
is set aside. The respondents are directed to recalculate family 
pension by treating the probable date of death of petitioner’s 
husband to be 14.01.2000. The respondents are directed to 
complete the process of revising the pensionary benefits of the 
petitioner within two months from the date of this judgment. 
Before parting with the judgment, we appreciate the valuable 
assistance rendered to this Court by Mr. Shahid Anwar Bajwa, 
learned ASC who appeared as amicus curiae.  
 
 
  
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
Announced on 06.09.2019 at Karachi.  
 
Approved For Reporting 
Khurram 
