' SAIDUZZAMAN SIDDIQUI, J.---The above criminal appeal has been placed before me as a result of difference of opinion between the learned Chief Justice and Muhammad Munir Khan, J. (as they then were), the two learned Judges of a Bench of this Court.
2. The appellants alongwith one Muhammad son of Zaidullah; Qadir Bakhsh son of Haji Noor Muhammad, Karim Bakhsh son of Pir Bakhsh and Haji Noor Muhammad son of Noor Bukhsh were tried for offences under section 156(1)(8) (89) read with section 157 of the Customs Act, 1969 (hereinafter to be referred as 'the Act of 1969') before, the Special Judge Customs, Quetta.
Muhammad son of Zaidullah died before conclusion of the trial while Qadir Bakhsh, Karim Bakhsh and Haji Noor Muhammad were declared absconders in the case. The appellants were found guilty of offences under section 156 (1)(8) and (92) of the Act of 1969 by the trial Court and were accordingly, convicted as follows:--
(i) Under section 156(1)(8) of the Act of 1969, 2 years' R.I. And fine of Rs,1,00,000 each and in default of payment of fine to undergo further R.I. For 6 months, and
(ii) under section 156(1)(92) of Act of 1969, one year R.I. And fine of Rs,50,000 each and in default of payment of fine to undergo R.I. For 3 months.
' Both sentences of imprisonment were directed to run concurrently. From the judgment of Special Judge Customs, two appeals were filed before the Special Appellate Court of Balochistan, at Quetta, one by the appellants (Customs Appeal No.2/1994) and other by the State. The learned Special Appellate Court, through the impugned judgment, disposed of both the appeals. The appeal filed by the State was dismissed while the appeal filed by the appellants was partly allowed and sentences of imprisonment and fine awarded to appellants by the trial Court, were reduced as follows:-- (i)' Under section 156(1) (8) of Act of 1969, sentence was reduced to 1 year R.I. And fine to Rs,50,000 each and in default of payment of fine to undergo further R.I. For 3 months, and--
(ii) Under section 156(1) (92) of Act of 1969 sentence was reduced to six months' R.I. And fine to Rs, 25,000 each and in default to undergo R.I. For 45 days.
3. Against the judgment and decree of Special Appellate Court, leave was granted by this Court as follows:-- "3. Mr. Yahya Bakhtiar, learned counsel for the petitioners, contended that no independent evidence was adduced by the prosecution to prove the charge. On mere oral evidence of Coast Guards the petitioners, who were carrying Pakistani currency only, were convicted for the offence. The learned counsel for the petitioners further contended that the petitioners have produced three independent witnesses whose evidence was not rightly appreciated by the trial and the appellate Court. Hence the prosecution evidence as well as the defence needs reappraisal. There is force in the contentions raised by the learned, counsel for the petitioners. Leave to appeal is granted. The petitioners were allowed interim bail by this Court on 20-11-1994 which is confirmed."
4. At the hearing of the appeal, the learned Deputy Attorney-General raised a preliminary objection regarding maintainability of the appeal. It was contended by the learned Deputy Attorney-General that the decision of the Special Appellate Court is not appealable before this Court as the said Court s not a High Court within the meaning of Article 185 of the Constitution of Islamic Republic of Pakistan, hereinafter to be referred as "the Constitution". The learned Chief Justice (as he then was) came to the conclusion thFi the decision of Special Appellate Court which is presided over by a sitting Judge of the High Court and enjoys the same powers under the Code of Criminal Procedure while hearing appeal or revision as are available to the High Court, is at par with the judgment and decision of the High Court. Therefore, appeal against the order/decision of the Special Appellate Court was competent before this Court under Article 185 of the Constitution. The other learned Judge of the Bench, (Muhammad Munir Khan, J.) however, took the contrary view and held that the Special Appellate Court not being a High Court, no appeal against its order is maintainable before this Court, under Article 185 of the Constitution.
5. Mr. Yahya Bakhtiar, the learned Senior Advocate Supreme Court for the appellants adopted the reasoning contained in the opinion of the learned Chief Justice (as he then was), in support of his contention that order passed by the Special Appellate Court is deemed to be an order of High Court and as such appeal against such an order is competent before this Court under Article 185 of the Constitution. The learned counsel further contended that the Special Appellate Court is also an Administrative Court established within the meaning of Article 212 (1) (b) of the Constitution and, therefore, appeal against its order is competent before this Court under Article 212 ,(3) of the Constitution. Mr. Yahya Bakhtiar also argued that this Court has always leaned against the interpretation of a provision seeking ouster of jurisdiction of the superior Courts, and therefore, consistent with this view the contention of the learned Deputy Attorney-General that an appeal from the order of Special Appellate Court is not maintainable before this Court, should be rejected.
Reliance is placed by the learned counsel, in support of his last contention, on State v. Ziaur- Rahman (PLD 1973 SC 49).
6. The learned Deputy Attorney-General, on the other hand, contended that mere fact that the Special Appellate Court was presided over by a learned Judge of the High Court, would not make it a High Court so as to make its order amenable to the appellate jurisdiction of this Court under Article 185 of the Constitution. The learned Deputy Attorney-General referred to various provisions of Act XII of 1977 in order to support his contention that Special Appellate Court constituted under section 46 of Act XII of 1977 is quite different and distinct from a High Court. The contentions of the learned Deputy Attorney-General are not without force.
7. Clause (1) of Article 175 of the Constitution provides for establishment of Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
Clause (2) of Article 175 provides that the jurisdiction to he exercised by the Courts established under clause (1) of Article 175 (ibid) will be that which is conferred on such Courts either by the Constitution or by or under any law. Clause (3) of Article 175 (ibid) provides for separation of judiciary from executive.
' It is, therefore, quite clear that the establishment of Supreme Court of Pakistan and the High Court, in each Province, is the mandate of Constitution while all other Courts within the contemplation of Article 175 of the Constitution are to be created through a sub-Constitutional legislation. The Supreme Court of Pakistan and the High Courts, therefore, have separate and distinct identity from all other Courts created by or under any other law. Within the scheme of the Constitution, there is only one High Court in each Province and, therefore, any other Court created under any other law cannot be equated with the High Court, No doubt, the High Court could also exercise jurisdiction conferred on it under various other laws apart from the jurisdiction conferred on it under the Constitution but in all such cases the High Court is empowered to exercise jurisdiction as a High Court as contemplated under the Constitution. The fact that a Court created by or under a law is presided over by a Judge of the High Court, therefore, would not make that Court a High Court.
Many statutes provide that the Courts or Tribunals created thereunder shall be presided over by a sitting or retired Judge of a High Court or by a person qualified to be appointed as a Judge of the High Court. However, such Court when presided over by a sitting Judge of the High Court, does not acquire the status of a High Court by mere fact that it is presided over by a serving Judge of the High Court. Similarly, a Special Court or a Tribunal, created under an Act and presided over by a serving Judge of the High Court, while hearing a case, exercise the same powers as are available to a High Court under the Code of Criminal Procedure or under other procedural laws, would not make that Court a High Court for this reason. In the light of the above-stated legal position, I now proceed to examine the status of a Special Appellate Court created under section 46 of the Act XII of 1977.
9. The Special Appellate Court is constituted under Act XII of 1977. The constitution of Special Appellate Court is provided in section 46 of Act XII of 1977 as follows:-- "46 Constitution of Special Appellate Courts.-(1) The Federal Government may' by notification in the official Gazette, constitute as many Special Appellate Courts as it may consider necessary each consisting of a person who is a Judge of a High Court, to be appointed by the Federal Government in consultation with the Chief Justice of the High Court of which he is a Judge.
(2) The Federal Government shall specify in a notification issued under subsection (1) the headquarters of the Special Appellate Court and, where it constitutes more than one Special Appellate Court, the territorial limits within which, or the class of cases in respect of which, each Special Appellate Court shall exercise jurisdiction.
(3) If for any reason a vacancy occurs in the said Court, the Federal Government shall appoint another person in accordance with subsection (1) to fill the vacancy and the proceedings may be continued before the Court from the stage the vacancy occurs.
(4) The Special Appellate Court constituted under this Act shall exercise the powers conferred by or under this Act in accordance with the provisions of this Act, and the powers conferred, by or under the Customs Act, 1969 (IV of 1969), in accordance with the provisions of that Act.
(5) When the Judge of a Special Appellate Court is, for any reason, temporarily unable to perform his duties, he may inform the Chief Justice of the High Court of which he is a Judge and the Chief Justice shall nominate another Judge to perform the functions of Special Appellate Court so long as such Judge is unable to perform his duties.
(6) The Federal Government may, on the request of the Judge of a Special Appellate Court, transfer any appeal or revision and entrust the same to the Judge of another Special Appellate Court for disposal; and such Judge shall dispose of such appeal or revision in accordance with law."
10. The Special Appellate Court created under section 46 of Act XII of 1977 hears appeals only against the order of a Special Judge appointed under section 44 of Act XII of 1977 or a Special Judge appointed under section 185 of the Customs Act, 1969. The Judge of a Special Appellate Court, though appointed by the Federal Government in consultation with the Chief Justice of the High Court of which he is a Judge, but his headquarters and territorial limits within which he exercises jurisdiction and the class of cases in respect whereof he will have jurisdiction, are determined by the Federal Government. In case of vacancy in the office of Special Appellate Court, it is to be supplied by the Federal Government. The Federal Government upon a request from a Special Appellate Court, may transfer any appeal or revision pending before it to any other Special Appellate Court. A Court with the above attributes cannot be described as a High Court.
11. In the case of Krishna v. State (PLD 1972 SC 1), this Court considered a similar argument regarding status of a Special Judge and the Reviewing Authority appointed under Enemy Agents Ordinance, 1943, as under:-- "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.'
' It is clear, therefore, from these provisions that the jurisdiction 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 persona designata. The judgship 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 judgship is merely a qualification for appointment as such Reviewing Authority.
' 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 the Reviewing Authority into the category of a Court, much less a High Court, from whose decisions only appeals lie to this Court.
' 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 designata under the Ordinance.
' 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 Collector and a Judge of High Court appointed to act as a member of an Election Commission were held to be acting only as persona designata and not as a District Judge or a Judge of a High Court."
12. In the case of Altaf Hussain v. The State (PLD 1985 Lahore 10), a learned Division Bench of the Lahore High Court examined a somewhat similar argument with reference to the order passed by a Special Court constituted under section 3 of the Banks (Special Courts) Ordinance, 1984, which was presided over by a sitting Judge of the High Court, as follows:-- "2. Section 3 of the Banks (Special Courts) Ordinance, 1984 provides that the Federal Government may, by notification in the official Gazette, constitute, in the whole or any part of Pakistan, Special Courts, consisting of a person, who has been or is qualified for appointment as a Judge of the High.
Court. In pursuance thereof, a Special Court consisting of a sitting Judge of this Court had been constituted. The petitioner who is facing trial before the same Court applied for grant of bail but his prayer was rejected on merit. The learned Special Court had, however, granted bail to a co- accused. The petitioner then moved this Court for the same relief under sections 497 and 498 of the Criminal Procedure Code.
3. The main objections raised on behalf of the respondents were:--
(i) That as the Special Court is presided by a sitting Judge of this Court, it is a High Court and, therefore, no fresh application can be entertained after one has already been rejected.
(ii) That section 10 of Ordinance IX of 1984 ousts the power of the High Court to grant bail in respect of the scheduled offences and there is no other provision available to grant the relief.
4. Admittedly, the function to be performed by a Special Court, under the abovesaid Ordinance, is purely judicial. The law also names the forum created thereunder, as a Special Court, According to item 55 read with Item 28 of the Fourth Schedule, Part I of the 1973 Constitution, the Federal Legislature is empowered to constitute such Courts, as the subject involved lies within its exclusive law-making sphere. According to Article 175 of the Constitution also, other Courts may be established by law. Section 6 of the Criminal Procedure Code also makes a similar provision.
Consequently, there can be no doubt about the fact that the Special Court is a validly constituted Court and it is to perform a judicial function under the Constitution and the law.
3. Is it then a High Court or a Court subordinate to it? As said in para.2 above, the Special Court is not necessarily to be presided by a sitting Judge of the High Court. The incumbent may even be a person qualified to be a Judge of the High Court. Further, the Special Court is not a Bench of the High Cotirt as the appointment/nomination is to be made not by the Chief Justice but the Federal Government. In Abdul Hafiz v. The State (PLD 1981 SC 352), the Drug Court similarly established under section 31 of the Drugs Act (XXXI of 1976) had been held to be a Court judicially inferior to the High Court. The same result would follow from the fact that an order of the Special Court imposing sentence on an accused is appealable before two Judges of the High Court within whose jurisdiction sentence has been passed. As Article 175 provides for only one High Court for each Province, no other Court in that Province can be equal or parallel to the High Court and, therefore, a Special Court presided over by a sitting Judge of the High Court will be judicially inferior to it."
13. I, therefore, agree with the conclusion of Muhammad Munir Khan, J. (as he then was) that the Special Appellate Court not being a High Court, an appeal against the order of Special Appellate Court is not maintainable before this Court under Article 185 of the Constitution.
14. I may mention here that Mr. Yahya Bakhtiar, the learned counsel for the appellants, raised an alternate argument before me that the Special Appellate Court being an Administrative Court created under Article 212 (1) (b) of the Constitution, an appeal is competent before this Court under Article 212(3) of the Constitution. This argument was repelled both by the learned Chief Justice (as he then was) and the other learned member of the Bench in the case. There being no difference of opinion on this point between the learned Judges of the Bench, it cannot be raised before me. The appeal is, accordingly, dismissed as not maintainable.