M. MAHBOOB AHMAD, CJ.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks a declaration to the effect that the trial of criminal case titled "State vs. Liaqat Parvez Khan" registered under section 13 of the Arms Ordinance, 1965, against the petitioner vide FIR No. 166 dated 8.5.1990 with Police Station City Mianwali by the Judge Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, is illegal and without lawful authority as the said Court has no jurisdiction to proceed with the case after Ordinance I of 1990 stood repealed.
2. The facts necessary for the purposes of this petition, briefly Stated, are that a case under sections 302/307/34/109, P.P.C, was registered against the petitioner Liaqat Parvez Khan and his cousin Nadeem Parvez with Police Station City Mianwali vide FIR No. 140 dated 15.4.1990. Twenty, three days alter occurrence, i.e. On 8th May, 1990, another case vide FIR No. 166 was registered under section 13 of the Arms Ordinance, 1965, on the allegation that a Klashnikov rifle along with twenty-five cartridges had been recovered from the possession of the petitioner. The challan of the second case registered against he petitioner has been put up before the Judge Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975. It is this trial which has been questioned through the present writ petition.
3. The learned counsel for the petitioner first contended that the. Amendment brought about in the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, 1975, by Ordinance I of 1990 died on the expiry of the period of four months inasmuch as it was not presented before the Parliament for approval as required by Article 89 of the Constitution of the Islamic Republic of Pakistan, 1973, and, therefore, the offence punishable under the Arms Ordinance cannot be tried by the Special Court.
4. We do not see any force in this contention of the learned counsel for the petitioner. It is correct that Ordinance I of 1990 stood repealed on the expiry of the period of four months having not been approved by the Parliament but then the repeal became wholly inconsequential in this case because on 16th June, 1990 the Suppression of Terrorist Activities (Special Courts) (Amendment)
Act, 1990, was promulgated by the Parliament, section 5 whereof made the amendment retrospectively effective from the 13th of October, 1988. The well settled principle that the Legislature is fully competent to legislate retrospectively has neither been controverted before us nor could it be questioned. Consequently the amendment made by the Supression of Terrorist Activities (Special Courts) (Amendment) Act, 1990, would be deemed to have been incorporated as on 13th October, 1988 and thus fully applies to the case of the petitioner; in which FIR was registered on 8th May, 1990, when offence was also allegedly committed. Faced with this situation, the learned counsel for the petitioner attempted to argue that the provisions of section 5 of the Supression of Terrorist Activities (Socials Courts) Act, 1975, cannot be retrospectively applied as it would violate Article 12 of-the Constitution of Islamic Republic of Pakistan, 1973. It was also contended that although the change of forum is a matter of procedure and is generally understood to be retrospective in nature but where while changing the forum the burden of proof is' also changed, the provision cannot be construed to be retrospective.
5. The contentions raised as above by the learned counsel lor the petitioner have also not impressed us. Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, on which reliance has been placed by the learned counsel, reads as under:- "12.(1) .No law shall authorize the punishment of a person-
(a) for an act or omission that was not punishable by law at the time of the act or omission; or
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the'offcnce was committed.
(2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty six, an offence."
A plain reading of this Constitutional provision clearly shows that it is not attracted to the case in hand. It only ordains that no law shall authorize the punishment of a person for an act or omission which was not punishable by law at the lime when the act or omission took place, oi, for an offence by a penally greater than, or of a kind different from, the penalty prescribed by law' for that offence at the lime the offence was committed. It can in no manner be construed as depriving the legislature of its power to give retrospective effect to an enactment which the Legislature, by established rule of law, is competent to enact. The learned Additional Advocate-General has very candidly stated that the punishment, if awarded, will be the same as it existed at the lime of commission of the offence. In the light of the aforementioned statement of the learned , Additional Advocate-General that by the retrospective amendment there is no intention to enhance the punishment. For the offence allegedly committed by the petitioner, there remains no doubt that in the case in hand Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, is in no manner violated. By the amendment neither any act or omission, which was not punishable at the lime when the act or omission took place has been made punishable nor the penalty for the offence is being made greater than, or of a kind different from, the penally prescribed by law for that offence when it was committed.
Before parting with this aspect of the matter, we may also observe that the learned counsel for the petitioner had relied upon "Calderet Wife vs. Bull et Wife" reported as (1798) 1, Lawyers' Edition 648 in support of his contention. The cited case is not applicable to the circumstances attending the present case inasmuch as it is based on a specific provision of the Constitution of the United States of America as contained in Article 1, Section 9, which prohibits the Legislature of the United States of America from passing any ex post facto law and section 10 of Article 1 ibid which lays down several restrictions on the authority of the Legislature of various States of the United States of America, inter alia, that no Stale shall pass an ex post facto law. The case in fact deals With the proposition as to what is an ex post facto legislation when read in the light of the Constitutional provisions of United States of America. There being no such embargo in our Constitution prohibiting our Legislature or abridging its powers to legislate with retrospective effect as placed in this Regard by the Constitution of United States of America, the cited case would have no relevance while interpreting the provisions of Constitution of Islamic Republic of Pakistan or for that matter as to the Legislature's power of making amendment in law with retrospective effect.
6. The learned counsel for the petitioner then contended that by change of manner of proof emerging from the change of brum of trial, the vested right of the petitioner has been affected in that in the trial before the- ordinary court the burden of proof of the commission of offence would be on the prosecution whereas before the Special Court the burden of proof has been placed on the accused by section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. He in this regard relied on "Adnan Af/al vs. Captain Sher Afzal" reported as PLD 1969 S.C. 187.
7. The learned Additional Advocate-General has, on the other hand, contended that Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, does not apply as the change of forum being a matter of procedure there is no defect in the law, or for that matter in the trial of the petitioner by the Special Court.
8. The contention of the learned counsel for the petitioner proceeds without taking into consideration the position that the Legislature is clothed with all the powers to enact retrospectively in respect of procedural laws. This proposition is so well-established that it admits of no doubt. Authority, if any needed in support of the above well-settled proposition can be found in "Ghulam Mustafa and others vs. Omaid Ali and 9 others" reported as 1984 S.C.M.R. 1126, "Aisha Bceum vs. Chairman. Federal Land Commission" (1982 S.C.M.R. 1074) and "Government of,the Punjab vs. Akbar Hussain" (1988 S.C.M.R. 1740). Reliance placed by the learned counsel for the petitioner on Adnan Afzal's case supra is wholly in-apt, for m that case the enactment in dispute did not provide for any retrospective operation.
9. Otherwise also, the contention of the learned counsel for the petitioner regarding the burden of proof is based on an erroneous assumption. Section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is reproduced hereunder for facility of reference- "8. Burden of Proof: Where any person accused of having committed a scheduled offence is found to be in possession of. Or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances-which lead to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
A bare perusal of the aforementioned provision would show that it is essentially divided into two parts. The first part lays the burden of proof on the prosecution, i. e., the prosecution has to first prove that any person whom it accuses of having committed a scheduled offence had been found in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence or that he is apprehended in the circumstances which lead to raise a reasonable suspicion that he has committed such an offence.
It is only when the first part onus has been discharged by the prosecution that the second part comes into play whereunder the accused is presumed to have committed the offence unless he can prove that he had not inact committed the same. Thus, burden of proving innocence by the accused is consequential to and dependent on the prosecution having first established the prerequisite contained in the first part of the section. Such a situation cannot, therefore, be said to be violative of any provision of law as the Qanun-e-Shahadat, refer Article 121 thereof, also envisages situations of similar natured. To draw a distinctive similarity it might be of use to reproduced Article 121 of Qanun-e- Shahadat at this stage- "121. Burden of proving that case of accused comes within exceptions:- When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same, Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances."
The above provision again shows that where a person when accused of any offence claims that his case falls in any of the Exceptions provided for in the Pakistan Penal Code or in any proviso contained in any other part of the same Code, or in any law defining the offence, the burden of proving the circumstances, which would bring his case within the Exceptions as aforesaid, would be on him. From the above comparison it will be seen that in some cases the burden of proving innocence can be shifted on to the accused person. There is thus no warrant in law to hold that the provisions of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, are in any manner derogatory to the ordinary dispensation of criminal justice or for that matter are violative of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, so as to be struck down.
10. In view of the foregoing discussion, we find no merit in this petition, which is accordingly dismissed. The parties are, however, left to bear their own costs.