' SH. RIAZ AHMAD, J.--- The appellant Abdul Wahid son of Abdul Hameed was tried by a learned Judge Special Court constituted under the Suppression of Terrorist Activities Act, 1975 (hereinafter to be mentioned as Act of 1975) on the charge under section 13 of the Aims Ordinance XX of 1965)
(hereinafter to be known as Ordinance of 1965). Vide judgment, dated 26-1-1992 the appellant was found guilty on the aforesaid charge and was accordingly convicted and sentenced to undergo R.I.
For a term of six years and to pay a fine of Rs,50,000 or in default thereof to suffer R.I. For a further term of one year. The appellant assails his conviction and sentence by filing this appeal which shall be disposed of through this judgment.
2. The prosecution case as unfolded in the F.I.R., in brief is that the appellant was an accused in a case having been registered against him under section 307, P.P.C. He was arrested in the said case on 20-1-1987. On the same day, the appellant disclosed before the Investigating Officer that he could lead the police to the recovery of a sten gun. Accordingly, Shafqat All Chatha Inspector/Investigating Officer formed a raiding party in which two witnesses from public, namely, Abdul Sattar and Muhammad Qadeer were also included. On the same day, at about 3-3(, p.m.
The appellant in police custody led The, raiding party to a room of his house and from inside the Niwar of a cot, a sten gun P.1 and seven live bullets P.2/1-7 were recovered and taken into possession vide memo. Exh.P.C. The recovery memo was attested by Abdul Sattar P.W.2, Muhammad Oadeer P.W.3 and Shafqat All Chatha Inspector P.W.4. The Police Officer then drew a complaint Exh.P.A. And sent it to the police station for registraion of a case where formal F.LR.
Exh.P.A./1 was recorded by Inayat Ullah S.I./P.W.1. The appellant could not produce any licence to keep the aforesaid illicit articles. In the circumstances, a report under section 173, Cr.P.C. Was forwarded against the appellant to the Court for his trial.
3. It may be recalled that the appellant did not appear in the Court and was accordingly declared as proclaimed offender. The proceedings against him remained pending before the learned Magistrate from 26-1-1987 to 4-2-1990. In the meanwhile, Ordinance XVII of 1988 was promulgated on 13-10-1988 whereby an amendment was introduced in the Act of 1975. By virtue of this amendment, any automatic weapon kept without licence became exclusively triable by a Special Court as envisaged by section 4 of the Act of 1975. In these circumstances, the learned Special Court assumed the jurisdiction in this case and, as observed above, the appellant was ultimately convicted and sentenced.
4. Learned counsel for the appellant vehemently argued that the assumption of jurisdiction by the learned Special Court was without lawful authority inasmuch as at the time when the offence was committed and also when the challan was submitted before the learned Magistrate, the Special Court had no jurisdiction to try this case.
5. With the assistance of learned counsel for the appellant and Rana Muhammad Arif, learned Assistant Advocate-General as well as Mr. Muhammad Anwar, learned counsel appearing on behalf of the State, we have examined the proposition of law raised and argued by the learned counsel. The Ordinance of 1965 and the Act of 1975 were subjected to changes by various ' Ordinances from 1988 to 1990 when finally by Act V of 1990 dated 16-6-1990 all the amendments stood incorporated in the aforesaid Acts. Learned counsel for the appellant argued that Ordinance XVII of 1990 expired on 13-2-1989 and subsequent thereto on 3-9-1989, Ordinance X of 1989 was promulgated by virtue of which the provisions of the Ordinance XVII were reenacted. It was submitted that in this case the cognizance of the case was taken by the learned Special Court on 4-2-1990 and at that time, there was no Ordinance holding the field and, as such, the Special Court could not have assumed the jurisdiction to hear the case. Learned counsel for the appellant relied upon several judgments of this Court in support of his plea but they are of no avail to the case of the appellant because the questions raised by the learned counsel have not been dealt with in the aforesaid judgments. Before proceeding further, it will be necessary to state the legislative history on the controversy. Ordinance XVII of 1988 was promulgated on 13-10-1988 and on its expiry, Ordinance X of 1989 was issued on 3-9-1989 and on its expiry, Ordinance I of 1990 was brought on the Statute Book on 15-3-1990 and then finally Act V of 1990 was brought into force on 16-6-1990.
Through all these legislative changes, section 5 of the Act of 1975 was amended from time to time.
The amended section 5 deals with taking of cognizance and reads as follows:-- "Taking of cognizance.--- (1) The officer incharge of a police station shall complete the investigation and forward directly to the Special Court a report under section 173 of the Code within fourteen days in respect of a case triable by such Court: Provided that the Special Court may extend the time within which such report is to be forwarded in a case where good reasons are shown for not doing so within the time specified in this subsection.
(2) Any default on the part of an officer incharge of a police station, an Investigating Officer or any other person required by law to perform any functions in connection with the investigation, which results in, or has the effect of, delaying the investigation or the submission of the report under subsection (1) shall be deemed to be a wilful disobedience of the order of the Special Court and dealt with under the law accordingly.
(3) The Special Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."
' Similarly, the Schedule to the Act of 1975, was also amended and the said amended Schedule reads as follows:-- "in the said Act, in the schedule, after paragraph (c), the following new paragraph shall be inserted, namely:--
(cc) Any offence punishable under section 13-A or section 13-B of the Pakistan Arms Ordinance, 1965 (W.P. Ordinance No,XX of 1965):"
' It will be necessary here to consider section 4 of the Act of 1975, which is reproduced below:- "Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: ' Provided that this section shall not be construed to require the transfer to a Special Court of any case which may be pending in any Court immediately before the constitution of the Court: ' Provided further that the Government constituting a Special Court may, by notification in the official Gazette, direct that the Special Court shall have jurisdiction to try only such persons who have committed scheduled offences as may be specified in the notification."
' The scheme of legislative changes introduced through the above mentioned amendments in the Ordinance of 1965 as well as the Act of 1975, has persuaded us to conclude as follows:--
(1) That the possession of semi-automatic or automatic weapon was an offence for which the minimum punishment prescribed by law was three years.
(2) That the offence after promulgation of this law was to be exclusively triable by a Special Court constituted under the Suppression of Terrorist Activities Act, 1975.
In view of our conclusions referred to above, in respect of changes having been brought into law on the subject, it is clear that the Act of 1975 is a special law which overrides the general law. Section 4 of the Act of 1975 is a provision which ousts the jurisdiction of all other Courts to hear and decide scheduled offences. It also says that only Special Courts constituted under the Act of 1975, shall try the offences as mentioned in the schedule. It is well-settled that the change in procedural law is always retrospective in nature and further that trial by a particular forum is not a vested right of any person. This question was dealt with by the Supreme Court of Pakistan in the judgment reported as Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187. Thus, we may not further dilate upon this question as it has already been settled by the Honourable Supreme Court of Pakistan. In this view of the matter, we hold that by virtue of the changes brought in the law through various Ordinances, referred to above, the Special Court in this case had the jurisdiction to hold the trial of the appellant because after promulgation of changes in law, the Court of Magistrate ceased to have any jurisdiction because the offence was exclusively triable by a Special Court and for all intents and purposes, it had become functus officio.
6. Adverting now to the merits of the case, the prosecution in this case, with a view to prove its case produced three witnesses, namely, Abdul Sattar P.W.2 Muhammad Qadeer P.W.3 and Shafqat All Chatha Inspector P.W.4. Learned counsel for the appellant argues that statements of these three witnesses cannot be relied upon inasmuch as the statements of two public witnesses are contradictory to each other and, therefore, their testimony cannot be believed. Learned counsel for the appellant submits that one of the public witnesses stated that he was present at a shop when the police came and asked him to join the investigation while the other witness deposed that he was standing at the bus-stand alongwith other witness when the police came and asked them to witness the recovery proceedings. It is also contended by the learned counsel that as far as Muhammad Qadeer P.W3 is concerned, he happens to be a nephew of one Nazir who was injured by the appellant and a case under section 307, P.P.C. Was registered against him. Therefore, he being an interested and hostile witness, cannot at all be believed.
7. We have carefully considered this aspect of the matter. In fact,, the testimony of an interested witness can be believed but the Courts as an abundant caution have always looked for corroboration of the statements of such witnesses. It is also settled law that the testimony of interested witnesses even without corroboration can be taken into consideration. Their Lordships dealt with this issue in two reported judgments which are land-mark in our judicial history, namely, Nazir and others v. The State PLD 1962 SC 269 and Niaz and others v. The State PLD 1960 SC 387.
Applying the ratio already laid down in the aforesaid judgments, we would look for corroboration in this case and we are of the view that in this case the necessary corroboration is certainly available.
Thus, we are of the view that the place where the witnesses were present is immaterial because the recovery was effected as far back as the year 1987 and after about five years, witnesses appeared in Court to depose evidence. Therefore, lapse of memory by human-beings cannot be lost sight of. We, therefore, do not attach any weight to such a minor discrepancy in the evidence.
Shafqat All Chatha, Inspector P.W.4 has no animus against the appellant. His statement coupled with the statement of Muhammad Qadeer corroborated by the testimony of Abdul Sattar, leads us to the conclusion that recovery in this case did take place from the appellant and it cannot be held to be suspicious. Thus, in our view, the prosecution has brought home the guilt to the accused beyond reasonable doubt. This being so, his conviction is justified and is hereby upheld. However, adverting to the question of sentence, we do feel that the sentence of the appellant is harsh and excessive. Accordingly, the sentence of the appellant is reduced from six years to three years i,e.
The minimum prescribed by-law. Similarly, the amount of fine is also reduced from Rs,50,000 to Rs,5,000 or in default of payment of fine, he shall undergo R.I. For a term of six months. With these modifications in the sentence, the appeal being without substance is dismissed. However, the appellant shall be entitled to the benefit under section 382-B, Cr.P.C.
Sentence reduced.