1. HAMOODUR RAHMAN, C. J.-These two appeals, by special leave- of this Court, arise out of two orders of Anwarul Haq, J. (as he then was) in his capacity of a Reviewing Authority under section 9 of the Enemy Agents Ordinance, 1943.
2. The appellant in Criminal Appeal No. 2 of 1971, who is a. Resident of the occupied portion of Jammu & Kashmir State, was tried by a Special Judge at Sialkot for spying for the Indian Government. After his arrest, he had, it is alleged, admitted during interrogation that be was a paid agent of the Indian Government.
3. The Special Judge found him guilty and sentenced him to death. The appellant then preferred an appeal from jail to the High Court. In the meantime, the Central Government also appointed Anwarul Haq, J. As a Reviewing Authority under section 9 of the said Ordinance.
4. Anwarul Haq, J. Held the jail appeal to be incompetent but reviewed the case under the Ordinance and affirmed the conviction and sentence on the 4th of June 1970. The appellant then submitted a petition for special leave to appeal from jail and leave was granted to him for considering the correctness of the view taken by Anwarul Haq, J. With regard to the inter--pretation of the provisions of the Enemy Agents Ordinance, 1943. This Court also then recommended that counsel should be engaged for the appellant at State expense. This has been done and the appellant is now represented by Mr. M. Aslam Chattha, who represented him before the Reviewing Authority also.
5. The appellant in Criminal Appeal No. 3 of 1971. Who is a resident of Pathankot in the Gurdaspur District of East Punjab; was tried by the Special Judge at Sialkot for offences both under section 3 of the Official Secrets Act, 1923 and section 3 of the Enemy Agents Ordinance, 1943. He was charged with having entered Pakistan with a view to collecting informa--tion about the location of the 8th and the 15th Divisions of the Pakistan Army and was sentenced to death on the charge under section 3 of the Enemy Agents Ordinance, 1943, and to 14 years' R.
1. On the charge under the Official Secrets Act, 1923. In this case too, the appellant submitted an appeal from jail but in the meantime Anwarul Haq, J. Was appointed a Reviewing Authority under section 9 of the Enemy Agents Ordinance and he reviewed the case under the Ordinance after holding the appeal to be incompetent.
6. Anwarul Haq, J. After reviewing the evidence and hearing counsel for the petitioner, appointed at State expense, confirmed the convictions and sentences of the appellant. The latter then sent a petition from jail for special leave to appeal to this Court. Leave was granted on the 9th of November 1970, as the case appeared to be a case of first impression in this Court, requiring the interpretation of certain important provisions of the Official Secrets Act and the Enemy Agents Ordinance. The Court in this case too directed that counsel may be engaged for the appellant at State expense.
7. Mr. M. Aslam Chattha has appeared for the appellants in both these cases and the State is represented by Mr. Kamal Mustafa Bokhary, an Assistant Advocate-General to the Govern--ment of Punjab.
8. Mr. Bokhary has raised a preliminary objection to the competency of these appeals. According to him, these appeals not being from any judgment, decree, order or sentence of a High Court but from a decision of a Judge of a High Court, acting purely as a Reviewing Authority under section 9 of the Enemy Agents Ordinance, 1943, were not entertainable by this Court. The Judge of the High Court was in this case merely a persona designate whose order did not come within the ambit of the provisions of Article 58 of the Constitution of 1962. Under this Constitution, it is contended that this Court has no jurisdiction to hear any appeal from any Tribunal or authority other than the High Court. Hence, since the orders impugned in the present appeals did not come within the category of judgments, decrees, orders or sentences of a High Court, this Court cannot hear these appeals.
9. The Enemy Agents Ordinance, 1943 gives, it appears, exclusive jurisdiction to try offences under section 3 of the said Ordinance to a Special Judge appointed by the Central Government under section 5 of the Ordinance which reads as follows :----- "5.-(1) For the trial of offences punishable under section 3, the Central Government may appoint as Special Judges, having jurisdiction throughout Pakistan, any persons who have acted for a period of not less than two years in the exercise of the powers of a Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898.
(2) A Special Judge shall try any offence punishable under section 3 which the Central Government by general or special order in writing directs to be tried by him, and may hold his sittings for the trial of any case in any place fixed by the Central Government."
10. There is no provision in the Ordinance for any appeal or revision against the decision of such a Special Judge but it is provided by section 9 that the proceedings of a Special Judge "shall be submitted for review by a person appointed in this behalf by the Central Government, who shall be chosen from amongst the Judges of a High Court in Pakistan, and the decision of that person shall be final."
11. In this jurisdiction to review, the Judge may in his discretion exercise any of the powers given by section 439 of the Code of Criminal Procedure to a High Court and he may also call for and examine the record of any proceedings before the Special Judge for the purpose of satisfying himself "as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of the Special Judge, and may exercise in the case of proceedings the record of which has been so called for any of the powers which would have been exercisable by him in the case of such pro--ceedings had they been submitted to him for review under subsection (1).'."
12. The decisions of the Special Judge and the Reviewing Authority under this Ordinance are not only not subject to any further appeal but section 14 of the Ordinance actually provides that "no Court shall have authority to revise such order or sentence or to transfer any case from the Court of a Special Judge, or to make any order under section 491 of the Code of Criminal Procedure, 1898, or have any jurisdiction of any kind in respect of any proceedings under this Ordinance."
13. It is clear, therefore, from these provisions that the jurisdic--tion of the Special Judge and the Reviewing Authority are exclusive jurisdictions and the Reviewing Authority, although he must be a Judge of a High Court in Pakistan, is appointed by name and does not act as "a Judge of that High Court." Thus, all that is necessary under section 9, subsection (1) of the Ordinance is that the Reviewing Judge must be a sitting Judge of a High Court but he need not be a Judge of a High Court within whose jurisdiction the offence is alleged to have been committed. A Judge from East Pakistan High Court may well be appointed under this section to review cases relating to offences committed in the territories of West Pakistan. Similarly, a Judge from West Pakistan may be appointed a Reviewing Authority for offences committed in the territories of East Pakistan. The jurisdiction which such an appointed Judge exercises under this Ordinance is not, therefore, the jurisdiction of a High Court Judge but the special jurisdiction given to him eo nomine under the Ordinance. He is thus in every respect a personsa designate. The judgeship is merely the qualification for appointment under this section of the Ordinance. Indeed, the Ordinance provides that the Central Government may appoint "a person from amongst the Judges of a High Court"; it does not say that the Central Government may appoint a Judge of a High Court having jurisdiction in the territory in which the offence has been committed. From this the intention of the Legislature appears to us to be clear that the person so appointed is not appointed to exercise any jurisdiction as a Judge of a High Court but the judgeship is merely a qualification for appointment as such Reviewing Authority.
14. Neither the Special Judge nor the Reviewing Authority is a Court in the sense that the term has been used in the Criminal Procedure Code nor can the High Court claim to exercise any jurisdiction over either the Special Judge or the Reviewing Authority save perhaps under Article 98 of the 1962- Constitution; but that it can do even in the case of decisions of non-judicial or quasi-judicial authorities. That fact is not sufficient by itself to bring tie Reviewing Authority into the category of a Court, much less a High Court, from whose decisions only appeals lie to this Court.
15. An examination of the provisions of the Ordinance reveals that the intention of the Legislature was that offences created by the Ordinance were to be tried by Special Tribunals appointed under the Ordinance with exclusive jurisdiction. The Reviewing Authority appointed under the Ordinance could not therefore be brought within the category of a High Court and, as such, it is clear that this Court would not have any jurisdiction to entertain an appeal from a decision of such a Reviewing Authority appointed eo nomine by the Central Government as a persona designate under the Ordinance.
16. This well-settled principle has been accepted by this Court in more than one case vide Khadim Mohyuddin v. Rahmat Ali (PLD 1965 SC 459) and Jamal Shah v. Election Commission (PLD 1966 SC 1) where a District Judge selected to act as an appellate Authority from the decision of a Rent Controller and a Judge of High Court appointed to act as a Member of an Election Commission were held to be acting only as persona deslgnata and not as a District Judge or a Judge of a High Court.
17. Learned counsel for the appellants is unable to dispute the validity of the arguments advanced in support of the preliminary objection taken on behalf of the State. We, therefore, avoid adverting to the merits of the cases, for, in our opinion, thee appeals must on this ground alone be dismissed as being incom--petent. We accordingly so dismiss them.