' Through this Constitutional petition the petitioner has challenged the vires and legality of the order dated 8-9-1997 passed by the learned Additional Sessions Judge, Bahawalpur, whereby he transferred case F.I.R. No,27 of 1996 of Police Station Khichiwala, pending in his Court, to the Court of Special Judge appointed under the Anti-Terrorism Act, 1997.
2. The brief facts giving rise to this writ petition are that Muhammad Yaqub (complainant) on 20-3- 1996 got F.I.R. No,27 of 1996 recorded under section 302/34, P.P.C. At Police Station Khichiwala, District Bahawalnagar,wherein he expressed the suspicion of murder of one Abdul Latif, who was missing since 3-3-1996, at the hands of Muhammad Sultan and Mukhtar Ahmad at the instance of Mst. Irshad Bibi, wife of the said Abdul Latif. During the investigation, Muhammad Sultan and Mst.
Irshad Bibi, while in custody, led to the recovery of the deadbody of Abdul Latif. Mukhtar Ahmad petitioner-accused was also arrested in this case and challan was submitted in the Court under section 364/302, P.P.C.
3. The learned counsel for the petitioner referred to Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, which is reproduced below:-- "12. Protection against retrospective punishment.--(1) No law shall authorise 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 offence 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."
4. The learned counsel then relying upon the case of Bhai Khan and others v. The State PLD 1992 SC 14 submitted that Article 12 prohibited convictions and sentences being recorded under criminal jurisdiction under ex post facto laws. He further referred to the case of Muhammad Yunus v. The State 1981 SCM R 422 and of Abdul Rehman v. The State 1978 SCM R 292 to substantiate his contention.
5. In the case of Bhai Khan and others, while dealing with Article 12 of the Pakistan Constitution (1973), it was held as follows:- "These Articles prohibit convictions and sentences being "recorded in the criminal jurisdiction under ex post facto laws. Previously ex post facto laws imposed liability and punished acts which earlier were lawful when done. Such laws retrospectively created offences for acts or omissions that were not punishable at the time they were done or retrospectively punished persons for offences by penalties greater than or of different kinds from those prescribed for such offences at the time the same were committed. The broad range and nature of ex post facto laws is ably set out by Qadeeruddin Ahmad, J. In para.20 of his judgment in Nabi Ahmad v. Home Secretary, West Pakistan PLD 1969 SC 599 at 610-11). Being against equity and all notions of fairplay and justice, these ex post facto laws over a period of time came to be abhorred. Slowly but surely such ex post facto laws were avoided by resorting to beneficial construction or rendered invalid by legislation and the- above Articles in both the Pakistan and Indian Constitutions clearly render invalid such ex post facto laws and cover acts and omissions which may even have their commencement in the pre- Constitution period. See Keshawan M. Memon v. State of Bombay AIR 1951 SC 128. Where ex post facto laws only mollify or lessen the rigours of criminal law, but do not otherwise aggravate them, doubt has been expressed as to whether such laws fall within the prohibition of such Articles. The Indian Supreme Court in Rattan Lal v. The State of Punjab AIR 1965 SC 444 has treated such a law as not falling within the prohibition."
6. In the case of Abdul Rehman it was observed:-- "According to Article 12 of the Constitution no law could authorise punishment of a person for an offence by a penalty greater than the penalty prescribed by law for the offence at the time the offence was committed."
' And in the case of Muhammad Yunus similar findings were given in the following words:-- "Law Reforms Ordinance came into force on 14-4-1972 and it does not contain any provision for its application retrospectively. Moreover, Article 12 of the 1973 Constitution protects a person against retrospective punishment as it provides that no law shall authorise the punishment of a person for an offence by a penalty greater than the penalty prescribed by law for that offence at the time when the offence was committed."
7. The proposition of law that convictions and sentences cannot be recorded in the criminal jurisdiction under ex post facto laws and that no law authorises the punishment for an offence by a penalty greater than the penalty prescribed by the law for such offence at the time of its commission is not only well-established in Pakistan and is guaranteed by the provisions enshrined in Article 12 of the Pakistan Constitution, but is almost universally recognized. A similar provision exists in the Indian Constitution (1949) as under:-- "Article 20.--(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence."
8. This provision is based upon the common sense and principle of natural justice. Obviously, a person is to be punished with the sentences prescribed when the offence is committed and he cannot be punished with a greater or a more severer sentence in case some subsequent legislation enhances the punishment.
9. The contention of the learned counsel for the petitioner in this regard is, however, entirely misconceived. In the case in hand, the quantum of punishment is not being enhanced, but only the forum of the trial has been changed by operation of law. By the enforcement of the Anti-terrorism Act, 1997, on the 16th of August, 1997, the forum of trial of certain cases has been changed and under section 38 those cases are to be tried under the said Act, which provides "punishment as authorised by law at the time the offence was committed". The said section is reproduced below:- "38. Punishment for terrorist act committed before this Act.--Where a person has committed an offence before the commencement of this Act which is committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed."
' It is clear from the bare reading of this section that all such offences committed before the commencement of the Anti-terrorism Act, 1997, are to be tried under the said Act, but the punishment would be the same as was provided when the offence was actually committed. Hence, the provisions of section 38 are not repugnant to the provisions of Article 12 of the Constitution.
10. The offence under section 364, P.P.C. Is specifically mentioned in para.2(b) of the Schedule of the said Act. Hence, as the petitioner allegedly committed a scheduled offence, his case stood automatically transferred under section 38 to the Special Court constituted under the said Act. No specific order of transfer of cases pending in ordinary Court to a Special Court is required in the case of scheduled offences.
' In view of the above, this Constitutional petition is not maintainable and is accordingly dismissed in limine.