PDS # 305         Reference :   , 2009 PTCL 433, 99 TAX 196

C.P. No. D-548 of 2008, decided on 22nd November, 2008

KARACHI HIGH COURT

Before Muhammad Athar Saeed and Arshad Noor Khan, JJ

Khawaja Shamsul Islam and Jawed Zakaria for Petitioner. Aqeel Ahmed Abbasi for
Respondents Nos.1 to 5. Shahid Jamil Khan for Respondents Nos. 9, 10 and 12 to 14. Ikram
Ahmed Ansari for Intervernor AND G.N. Qureshi, DAG for the State.

Messrs IBRAHIM FIBRES LTD. through Secretary/Director Finance

FEDERATION OF PAKISTAN through Secretary/Revenue Division and 3 others

JUDGMENT/ORDER/FINDINGS/RECOMMENDATIONS

{MUHAMMAD ATHAR SAEED, JUSTICE }...............This constitutional petition was filed in this Court or 27-3-
2008 against the alleged action and inaction of the Income Tax Appellate Tribunal, Lahore Bench and both
the Judicial and Accountant Members of the Lahore Bench, who had allegedly after hearing the appeal filed
by the petitioner against the order of the CIT Appeals Lahore setting aside the order of the Income Tax
Officer based at Lahore on the point of credit under section 107AA had passed dissenting orders and the
Accountant Member is alleged to have changed his verbal order to please Respondents Nos.10 and 11 who are
also based at Lahore. 2. Vide various orders passed by this Court on different dates initially the orders of the
Members of Income Tax Appellate Tribunal Lahore were sealed and they were restrained from de-sealing the
order but later on this order was recalled. However, the respondent department was restrained from
initiating any action in terms of the said order. Later on, contempt application was also moved against some
of the respondents on which notices were issued to the alleged contemnors and the interim order passed
earlier was extended. 3. Earlier, vide the order of this Court, dated 3-4-2008, the learned counsel for the
petitioner was put to notice that the legal objection made by the respondents Nos.9 and 10 that since the
matter pertains to Province of Punjab this Court does not have the territorial jurisdiction to adjudicate it,
would be decided first. This case was fixed before this Bench for the first time on 21-10-2008 when once
again the learned counsel for the petitioner was put to notice that this Court before adjudicating on merits
of the case, will first take up and decide whether the petition is maintainable in so far it has been filed in
this Court against action of the Tribunal at Lahore and today both the applicants were prepared to argue on
this point. 4. We have heard Mr. Khawaja Shamsul Islam the learned counsel for the petitioner and Mr.
Shahid Jamil Khan learned counsel for the respondents Nos.9 and 10. 5. The learned counsel for the
petitioner started his arguments by reading out the orders of this Court, dated 28th March, 2008 and 3rd
April, 2008 in which this Court had given certain directions to the respondent No.8 i.e. the Tribunal and
other respondents for sealing of the impugned order and then order for desealing the same and restraining
the respondent Department from taking any action on the basis of the disputed impugned order. On the basis
of these two orders of this Court the learned counsel drew our attention to the order of the Income Tax
Appellate Tribunal in which the directions given in these orders of this Court had been complied with. The
learned counsel, therefore, argued that the respondents had by complying with the orders of this Court
accepted the jurisdiction of this Court and, therefore, they were precluded from challenging the jurisdiction
of this Court to adjudicate on this constitutional petition. He further submitted that no prejudice is caused
to the respondent if this constitutional petition is heard by this Court or by the Lahore High Court. The
learned counsel submitted that the secretarial, corporate commercial, legal and tax assessment matters are
being regularly attended by the company secretariat tax law division situated at Karachi. All returns,
petitions, revisions and memos are prepared at Karachi office and their tax advisors and legal advisors are
also based at Karachi. He further stated that the appeal before the Tribunal was prepared at Karachi and
filed before the Income Tax appellate Tribunal Lahore and the notices of hearing of the appeal and the
impugned orders were also received at Karachi office. According to the learned counsel, the Income Tax
Appellate Tribunal is a single entity and its Benches function at Karachi, Lahore, Islamabad, Peshawar and
Quetta and, therefore, since it is a Federal Institution, its orders can be challenged in any High Court in
Pakistan and at least in the case of the present petitioner both the Sindh High Court and the Lahore High
Court have concurrent jurisdiction and it is his prerogative to opt to file the constitutional petition before
any of the two High Courts. The learned counsel then drew our attention to section 20(c) of the C.P.C. which
provides that subject to limitations aforesaid every suit shall be instituted in a Court within the local limits
of whose jurisdiction the cause of action wholly or in part arise. According to the learned counsel the
petitioner's tax matters are dealt with at the Karachi office and notice of hearing was also received at the
Karachi office, therefore, the cause of action has partly arisen in Karachi and this Court has full jurisdiction
to decide this constitutional petition. The learned counsel then referred to the judgment of the Honourable
Supreme Court in the case of Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others
(1985 SCMR 758) in which a full bench of the Honourable Supreme Court had held that a petition/appeal
against a judgment of the Copyright Board, the office of whose Registrar is situated at Karachi, can be filed
either in the Sindh High Court or Lahore High Court as both the Courts have concurrent jurisdiction in the
matter and both the Courts can entertain a writ petition against the impugned order. He submitted that this
case is completely identical to the case of the petitioner and since this judgment is that of a full bench
comprising of five Members it is binding on this Court and, therefore, this Court may declare that it has
jurisdiction to hear the/above constitutional petition. The learned counsel then relied on the judgment of
this Court reported in the case of Itehad Cargo Services v. Rafaqat Ali (PLD 2002 Karachi 420) in which this
Court had held that where two Courts might have jurisdiction in respect of the same case it is prerogative of
the plaintiff to choose the place of suing. The learned counsel then read out Rule 3 of Income Tax Appellate
Tribunal Rules, 2005 which reads as under:-- (2) Sitting of Bench.---A Bench shall hear and dispose of such
appeals and applications made under the Ordinance as are assigned by the Chairperson or any member
authorized by him in this behalf. 6. He argued that this rule is completely para materia with the relevant
rule of copyright which was adjudicated upon in the Al-Iblagh case (supra) and, therefore, the facts of his
case are completely identical to the case of Al-Iblagh case. The learned counsel also placed reliance on the
following cases:-- (1) Gulzar Ahmad Khan v. The Chief Election Commissioner of Pakistan Islamabad and 7
others (PLD 1997 Lahore 643). (2) Trading Corporation of Pakistan (Private) Ltd. v. Pakistan Agro Forestry
Corporation (Private) Limited and another (2000 SCMR 1703). (3) Secretary, Ministry of Religious Affairs and
Minorities and 2 others v. Syed Abdul Majid (1993 SCMR 1171). (4) Ch. Akbar Ali v. Secretary, Ministry of
Defence, Rawalpindi and another (1991 SCMR 2114). (5) Flying Kraft Paper Mills (Pvt.) Ltd. Charsadda v.
Central Board of Revenue, Islamabad and 2 others (1997 SCMR 1874). 7. On the basis of his arguments and
the judgment relied on by him the learned counsel submitted that this Court has jurisdiction to hear this
constitutional petition and prayed that he may be provided an opportunity to argue the case on merits. 8.
The learned counsel for the respondent strongly opposed the arguments advanced by the learned counsel for
the petitioner and submitted that by complying with the order and directions of this Court, the respondents
have not conceded to the jurisdiction of this Court and are not precluded from challenging it. He further
argued that even if it is considered that the respondents have accepted the jurisdiction of this Court then
also it is a settled law that the 'parties cannot give consent to any action which is against the law. 9. The
learned counsel submitted that the filing of writ petitions are governed by the provisions of Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973. He read out the provisions of Article 199 to point out
that this Court is competent to pass orders in cases covered under paras (i) and (ii) of sub-clause (a) of
clause (1) of this Article and under paras (i) and (ii) of sub-clause (b) and sub-clause (c). Reading out all
these provisions he specifically mentioned that under all these provisions the Court can exercise its
jurisdiction when any person performs, within territorial jurisdiction of the Court, or an act is done or
proceedings taken within the territorial jurisdiction of the Court, or a person is in custody within the
territorial jurisdiction of the Court, a person hold office within the territorial jurisdiction of the Court or
when government functionaries exercise any powers or perform any functions within the territorial
jurisdiction of that Court. He pointed out that so far as the present petition is concerned, the petitioner has
prayed to this Court for issuance of writ of mandamus falling under sub-clause (ii) of sub-clause (a) of Clause
(1) of Article 199 and this Court before exercising its jurisdiction has to be satisfied that the act done or
proceedings taken against which the writ of mandamus is requested to be issued, has been done or taken
within the territorial jurisdiction of this Court. He pointed out that the petitioner filed his returns of income
before Taxation Officer performing his functions in the province of Punjab which falls under the jurisdiction
of the Lahore High Court. The appeal has been heard by the Lahore Bench of the Income Tax Appellate
Tribunal at Lahore by the Judicial and Technical Members who have been posted to perform their functions
at Lahore, the act of passing the order or omission for passing of the relevant order have all been performed
at Lahore and, therefore, this Court has no jurisdiction to entertain this petition for issuance of writ of
mandamus as none of the purported actions or proceedings have been taken within the jurisdiction of this
Court. 10. The learned counsel then strongly opposed the arguments of the learned counsel for the
petitioner that since the Income Tax Appellate Tribunal is a Federal Body and its benches function in all the
four provinces, therefore, despite the fact that the act or omission may have been taken by the
functionaries of the Tribunal functioning in a particular province but the entitlement of filing a petition
against such act or omission is within the prerogative of the petitioner to file in any Court he so desires. The
learned counsel submitted that Al-Iblagh case quoted supra on which the reliance has been placed by the
learned counsel for the petitioner is distinguishable from the facts of this particular case, as in that case it
was observed by the Honourable Supreme Court that since Copyright Board has been setup by Pakistan
Central Government for whole of Pakistan and performs functions in such matters relating to the affairs of
Federation in all the provinces, therefore, any order passed by such Board or proceedings taken by it in
relation to any person in any of the four provinces of the country, would give High Court of Province, in
whose territory order would affect such a person, jurisdiction to hear the case. They also observed that
appeal under section 76 can also be preferred to High Court within whose jurisdiction the appellant actually
and voluntarily reside or carries on business or works for gains. He pointed out that the facts in that case
were that initially the hearing of the appeal in view of the request of the parties as well as for the
convenience of the three of the Members of the Board who were from Lahore and Rawalpindi admittedly,
had taken place at Lahore. However, the final order whereby the appeal was dismissed was announced at
Karachi, but since the appellant admittedly resided at Lahore it was held by the Honourable Supreme Court
that both the Sindh High Court and the Punjab High Court had concurrent jurisdiction to hear the appeal
under the Copyright Act. He also referred to the judgment of the Honourable Supreme Court in the case of
Asghar Hussain v. Election Commissioner of Pakistan and .ethers (PLD 1968 SC 387) which was relied on by
the Honourable Bench in Al-Iblagh case (supra) and pointed out that in that case the subject matter of the
certificated appeal was that bye-election of East Pakistan Provincial Assembly from constituency No.PE-126,
Comilla VI, was held under the President's Order and the High Court of East Pakistan had given a decision
that it had no jurisdiction to issue writ or direction to the Election Commissioner of Pakistan as it was
stationed at Islamabad. The Honourable Supreme Court held that this judgment was unsustainable in law and
the persons, who were affected, by the order were residing within the jurisdiction of High Court of 'East
Pakistan (as it then was) and the elections were held in the territory of East Pakistan (as it then was) and the
Election Commissioner was person or authority which exercised its powers in the Province of East Pakistan in
connection with the affairs of the Center and, therefore, the High Court of East Pakistan had proper
jurisdiction. The learned counsel pointed out that the fact in these cases was that the parties in those
appeals were the persons who were affected ordinarily resided in the territorial jurisdiction of the High
Courts in whose jurisdiction they had filed these petitions and cause of action had also accrued to them in
the territorial jurisdiction of those High Courts. The learned counsel then relied on the judgment of the
Honourable Supreme Court in the case of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and
others (PLD 1997 SC 334) in which according to him the case of Al-Iblagh quoted supra was distinguished.
According to the learned counsel in this case writ petition was filed in Rawalpindi Bench at Lahore High
Court against an assessment for the levy of regulatory duty imposed at. Karachi which was rejected by the
Lahore High Court and the petition was returned to the petitioner to present the same before' the proper
Court on the ground that the learned Lahore High Court had no territorial jurisdiction despite the fact that
vires of Notification was also challenged and reliance was placed on Al-Iblagh case. However, grant of leave
was refused by the Honourable Supreme Court after distinguishing the case of Al-Iblagh in the following
manner. "(7) The petitioners' prayer was for a direction to the Customs Authorities at Karachi not to levy the
regulatory duty. The above relief could have been granted by the High Court of Sindh within whose
jurisdiction the person performing the affairs of the Federation is discharging his functions." 11. The learned
counsel also argued that the cause of action will arise in territories within whose jurisdiction impugned'
action or proceedings which have been challenged and in which the authorities have given the verdict and
only that High Court will have the jurisdiction to issue writ of manadamus. The learned counsel in support of
his above contentions relied on the following case laws. (1) Sabir Din v. Government of Pakistan through
Secretary, Ministry of Defence and others (1979 SCMR 555). (2) Abdul Ghaffar Lakhani v. Federal Government
of Pakistan and 2 others (PLD 1986 Karachi 525). (3) Mst. Shahida Maqsood v. President of Pakistan through
Secretary, Law Justice and Human Rights (2004 CLC 565). (4) Subhan Beg and 18 others v. Pakistan State Oil
Co. Ltd. Rawalpindi (PLD 1980 Kar. 113). 12. The learned counsel pointed out that if it is held that in case of
orders of the Federal Tribunal even those Courts have jurisdiction within whose territorial jurisdiction the
cause of action does not arise either partially or fully nor the authorities whose impugned action has been
challenged are performing the functions of the Tribunals in that territorial jurisdiction, then a Pandora box
will open and. appeals and petitions will be filed in various High Courts just on the basis of personal
preference of likes and dislikes. He, therefore, prayed that this Court may refuse to exercise its jurisdiction
and dismiss the petition in limine leaving the petitioner to seek any other remedy if he so desires. 13.
Exercising his right to reply the learned counsel for the petitioner referred to a Full Bench judgment of this
Court in the case of Ghaffar Lakhani case relied on by the learned counsel for the respondent and quoted
supra. The learned counsel submitted that after the judgment of the Supreme Court in the case of Zafar Ali
Shah's case reported in PLD 2000 SC 869, this judgment of the Full Bench of this Court has been rendered per
incurium. In support of his contention he relied on the following few lines from the judgment of the
Honourable Supreme Court: "It is a fundamental principle of jurisprudence that Court must always endeavor
to expand their jurisdiction so that the rights of the people are guarded against arbitrary violations by the
executive. The orders of the Chief Executive are subject to the jurisdiction of the constitutional Courts of
the land." 14. The learned counsel also argued that for the purpose of administration of justice Court can
mould the relief and allow the same though it is not prayed for as the courts are not merely salves of
technicalities, but are Courts of justice and, therefore, the relief can be moulded in a way which serves the
purposes of justice. For this purpose, he relied on a judgment of this Court in the case of Messrs Facto
Belarus Tractors Limited Karachi and another v. Federation of Pakistan (PLD 2006 Karachi 479). To
substantiate that the partial cause of action arose at Karachi and therefore this Court had jurisdiction to
entertain the writ petition, the learned counsel relied on a judgment of the Honourable Supreme Court in
the case of the Collector, Customs and Central Excise, Peshawar v. Messrs Rais Khan Limited (1996 SCMR 83).
15. We have examined the case in the light of the arguments of the learned counsel and have also perused
the records of the case and the law on the subject including provisions of Article 199 of the Constitution of
Islamic Republic of Pakistan and the judgments relied on by the learned counsel. 16. At the very outset, we
may observe that we are not impressed by the arguments of the learned counsel that by complying with the
directions of this Court issued through earlier orders, the respondents have impliedly consented that this
Court has jurisdiction to issue writ of mandamous inn this case. They had already objected against filing of
this constitutional petition before this Court and merely complied with the directions and orders of this
Court simply out of respect they hold for this Court and the compliance of the orders do not mean that they
had given implied consent to the jurisdiction of this Court. From a perusal of the actions and omission of the
members of the Income Tax Appellate Tribunal Lahore bench we have seen that such acts and omissions took
place within the territorial jurisdiction of the Lahore High Court and therefore the cause of action fully arose
at Lahore. It is also our considered opinion that the effect of the order of the Tribunal either in favour or
against the petitioner would either be that the tax would be demanded or the tax liability will be
extinguished by the taxation officer at Lahore and no person or authority based in Karachi or any other part
of Sindh which falls within the territorial jurisdiction of this Court, will be entitled to issue any demand or
take any coercive action against the petitioner for recovery of demand or in any other matter connected
with the subject-matter of appeal. We are also of the opinion that although the Income Tax Appellate
Tribunal is a federal institution having Benches all over the country and functions under a single chairperson
who, as pointed out by the learned counsel for the petitioner, performs its functions in all the provinces
through benches formed by the learned Chairperson to hold sitting at the headquarter or such other place as
the chairperson may consider convenient. However, the functions of these Benches will be restricted to the
territories in which they have been assigned by the chairperson to hear and decide the appeals and the
Lahore Bench according to the jurisdiction has been constituted to hear appeals against the orders of the
Taxation Authorities performing their functions in Lahore or such other part of Punjab as may have been
declared by the chairperson and, therefore, it is clear that from the time the return was filed before the
Income Tax Officer all the actions initiated and proceedings taken have been taken by the authorities
including the taxation officer, Commissioner of Income Tax (Appeals) and the Members of the Income Tax
Tribunal performing their functions in respect of cases falling within the territorial jurisdiction of the Lahore
High Court. The petitioner counsel has been emphasizing that the partial cause of action had arisen at
Karachi, but except arguing that his corporate tax offices are situated at Karachi and that the impugned
orders were received at Karachi, he has not been able to point out even a single instance of the cause of
action arising at Karachi or any effect of the impugned action or omission by the Members of the Tribunal
which may have arisen at Karachi and which could be implemented in any part of Sindh by any authority. 17.
The learned counsel for the petitioner has relied heavily on Al-Iblagh case and has argued that the facts of
this petition are similar to the facts of that case as both the Income Tax Appellate Tribunal and the
Copyright Board are Federal Institutions performing their functions all over Pakistan. It is, therefore, his
submission that the orders passed by the Tribunal sitting anywhere in Pakistan can be challenged in any High
Court in Pakistan. 18. We have examined the judgment of the Honourable Supreme Court in Al-Iblagh case
quoted supra and have seen that the Honourable Supreme Court decided the issue that Lahore High Court
had jurisdiction to entertain the writ petition filed by the petitioner whose appeal against the order of the
Copyright Board sitting in its appellate capacity was to be filed before the learned Lahore High Court. The
Honourable Supreme Court decided this issue in the following manner:-- "The learned Judge in the High
Court was of the opinion that as the offices of the Registrar and the Copyright Board were located in Karachi
and the record to be examined (or "certified" if the technical term was to be used) was also in Karachi, the
rule laid down by this Court in The Deputy Managing Director, National Bank of Pakistan and others v. Ataul
Haq PI.D 1965 SC 201 would be attracted and, therefore, the Sindh High Court in whose jurisdiction the
records of the respondents were available would alone have jurisdiction to entertain the writ petition." 19.
In this case the Honourable Supreme Court also relied on its observations in the case of Asghar Hussain
quoted supra which reads as under:-- "The plain meaning of the words" "a person performing in the Province
functions in connection with the affairs of the Centre" excludes territorial limitations, such as, that the
person or authority to whom the High Court is empowered to issue writs must be amenable to its jurisdiction
either by residence or location within those territories." It explained that:-- "The Central Ministries as well as
many Departments of the Central Government are located in Islamabad or at Rawalpindi. Nevertheless they
perform functions in both the provinces in connection with the affairs of the Centre, such as, Defence of
Pakistan, External Affairs, Insurance, Copyright, Patent, Design ?... " 20. We are of the opinion that the facts
of the present petition are not identical with the facts of the case in Al-Iblagh case quoted supra. because
whereas Income Tax Appellate Tribunal performs its functions through various benches which have been
granted jurisdiction to hear and decide the case in various territories the Copyright Board is a_ single entity
which meets all over Pakistan to decide the cases in which cause of action may have arisen in a particular
territory and appeals are ordinarily filed in the High Court in which the cause of action arose and when such
decisions are made in its appellate capacity then appeals against it are ordinarily filed in the High Court
having territorial jurisdiction over the territories in which the applicant ordinarily resides and carries on
business and therefore, the Honourable Supreme Court has held that if the Lahore High Court had the
jurisdiction to decide the appeal then it is not possible to sustain its judgment that it does not have
jurisdiction to entertain constitutional petition in case of such petitioner/ litigant. In the petition before us
the appeal/reference application against the Income Tax Appellate Tribunal Lahore Bench could only have
been filed in the Lahore High Court and not in this Court and therefore, the judgment of the Honourable
Supreme Court in the case of Al-Iblagh case does not apply to this case. 21. The learned counsel also relied
on the judgment of the Honourable Supreme Court in the case of Flying Kraft Papers Mills quoted supra
wherein the Honourable Supreme Court had distinguished the case of Sandalbar Enterprises quoted supra and
held that since not only the orders of Collector of Central and Excise Peshawar was in question in the
petition but relief was also claimed against the Central Board of Revenue which functions at Islamabad, the
Peshawar High Court and Rawalpindi Bench of Lahore had concurrent jurisdiction in the matter. The
Honourable Supreme Court in this case gave the following reasons for its above judgments:-- "(5)??..Mr.
Pirzada in support of his contention referred to section 21, C.P.C. which requires that objection as to the
place of suing must be raised at the earliest opportunity and unless such objection has been raised before
the Court of first instance, the revisional or Appellate Court will not entertain such objection except in cases
where it resulted in the failure of justice. Mr. Pirzada further contended that in the present case not only
the order of Collector of Customs and Central Excise was in question but relief is also claimed against the
Central Board of Revenue, which functions at Islamabad and, therefore, the High Court at Peshawar and
Rawalpindi Bench of Lahore High Court had concurrent jurisdiction in the matter. The contention of Mr.
Pirzada, the learned counsel for the appellants is not without force." "(6) ???.In the writ petition filed after
post-remand proceedings, not only the order of Collector was challenged but relief was also claimed against
C.B.R. and as such it could pot be argued that in the circumstances, the Rawalpindi bench of Lahore High
Court had no territorial jurisdiction in the matter. We have examined the facts of Sandalbar Enterprises
(Pvt.) Ltd. v. C.B.R., (supra), cited by the learned Deputy Attorney-General and are of the view that the
facts of that case were quite distinguishable from the facts of the present case." 22. We are of the
considered opinion that even this case does not help the petitioner because the reasons prevailing with, the
Honourable Supreme Court for holding that the Peshawar High Court and the Rawalpindi Bench of the Lahore
High Court had concurrent jurisdiction were two fold (i) that not only the action of the Collector Customs at
Peshawar was challenged but also the various notifications issued by the C.B.R. which had its office in
Islamabad were challenged and (ii) that the challenge to the jurisdiction of the Rawalpindi Bench was not
made in the initial proceedings but on the proceedings against the remand order and the Honourable
Supreme Court was of the view that if the jurisdiction is not challenged 4 the earliest moment it cannot be
challenged subsequently. In the present case it has not been shown to us what partial cause of action arose
at Karachi and we have already noted that the jurisdiction of this Court was challenged at the start of the
proceedings and, therefore, this judgment will not apply to the case before us. 23. The learned counsel also
relied on the judgment of the Honourable Supreme Court in the case of Trading Corporation of Pakistan
quoted supra. In this case also the Honourable Supreme Court has held that the relief was claimed not only
against the cause of action which had arisen at Karachi against the fully owned government corporation but
relief was also claimed against the government of Pakistan at Islamabad and therefore both the Courts at
Karachi as well as Rawalpindi had jurisdiction in the matter and remedy could be resorted in either of them.
In this case the Honourable Supreme Court held as under:-- "It is pertinent to note that petitioner in this
petition has on its own mentioned that it is a limited company duly incorporated under the Companies
Ordinance and operates from Karachi and undertakes import and export of various items to maintain the
stability of the prices in the market on the instructions of government of Pakistan. It is further confirmed
from the above facts that the tenders were called on 5-5-1996 on the decision of Economic Coordination
Committee of the Cabinet at Islamabad. Not only this but after calling the revised tenders the revised offers
of eight participants in number were opened on 8-5-1996 in the petitioner's Board from in presence of the
tenderers and the details of offer so received were sent to the kitchen items review committee in the
Planning and Development Division, r Ministry of Commerce, Islamabad where after review offer of the
respondent No.1 was found the lowest and was accepted. As stated in the facts above the offer of the
respondent was turned down as Government of India through Indian Sugar and General Industries Export
Corporation Limited entered into contract of export of sugar with Secretary to the Government of Pakistan,
Ministry of Commerce, Islamabad. Rejection of the representation further confirms that respondent No.2 has
the dominion over the matters of petitioner. Moreover, the decision of the writ petition of High Court
wherein the point of jurisdiction was raised attained finality as leave to appeal was refused to the petitioner
by this Court being time-barred. The learned Single Judge of the High Court in chambers has elaborately
dealt with this aspect of the matter in the judgment in writ petition and has held that the respondent No.1
having cause of action against Federal Government could bring the Constitutional Petition either at Karachi
or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the objection of
maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being
controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed
against the petitioner but was also claimed against the respondent No.2, the Ministry of Commerce,
Government of Pakistan at Islamabad as such the petition was competently filed." 24. From a perusal of the
above paragraph it is seen that again the facts of this case have no nexus with the facts of the case in the
present petition. 25. We have carefully perused the judgment of the Honourable Supreme Court in the case
of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334). In this case,
the Honourable Supreme Court after distinguishing the facts of Al-Iblagh case quoted supra observed as
under:-- "(8) We may observe that it has become a common practice to file a writ petition either at
Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge--the order of assessment passed at Karachi
by adding a ground for impugning the notification under which a particular levy is imposed. This practice is
to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the
present case, the dominant object was not to pay the regulatory duty assessed by a Customs Official at
Karachi. We are, therefore, not inclined to grant leave. Leave is refused." 26. At this juncture it will be
relevant to reproduce the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the sake of
convenience which reads thus:-- Article 199. Jurisdiction of High Court:--- (i) Subject to the Constitution, a
High Court may, if it is satisfied that no other adequate remedy is provided by law. (a) on the application of
any aggrieved party, make an order (i) direct a person performing, within the territorial jurisdiction of the
Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain
from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii)
declaring that any at done or proceeding taken within the territorial jurisdiction of the Court by a person
performing functions in connection with the affairs of the . Federation, a Province or a local authority has
been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person,
make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody without lawful
authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court
holding or purporting to hold a public office to show under what authority of law he claims to hold that
office; or (c) on the application of any aggrieved person, make an order giving such directions to any person
or authority, including any Government exercising any power or performing any function in, or in relation to,
any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part H. 27. The interpretation of this Article has been
beautifully summed up in the judgment of the Peshawar High Court in the Subhan Beg's case relied on by the
learned counsel for the respondent which reads as under:-- "(13) A careful perusal of Article 199 of the
Constitution would show that there is a two-fold limitation on the jurisdiction of the High Court under Article
199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be
exercised by the High Court throughout the territories in relation to which the High Court exercises
jurisdiction. This means that the writ issued by the High Court cannot run beyond the territories subject to
its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued,
must be within the territories subject to the jurisdiction of the High Court which means that such person or
authority must be amenable to the jurisdiction of the High Court either by residence or location within those
territories." 28. We fully agree with the reasoning of the learned Peshawar High Court and are of the opinion
that both these limitations are present in this constitutional petition because the writ of mandamus, which
could have been issued by us cannot run beyond the territories which are subject to the jurisdiction of this
Court and the person or authority i.e. the Income Tax Tribunal Lahore Bench does not function within the
territories subject to the jurisdiction of this Court and even the petitioner and the person and the Members
of the Income Tax Tribunal Lahore or the Taxation Officer based at Lahore do not function within the
territorial jurisdiction of this Court and are not amenable to the jurisdiction of this Court. We are, therefore,
of the considered opinion that this Court does not have the jurisdiction to issue a writ of mandamus in this
constitutional petition. 29. The above are the reasons in support of the short order passed by us in Court
after hearing the learned counsel on 13-11-2008 by which we had held that this Court do not have the
jurisdiction to entertain this constitutional petition and directed the office to return the petition to the
petitioner to file before the appropriate Court having jurisdiction in this matter. S.A.K./I-32/K 22. We are of
the considered opinion that even this case does not help the petitioner because the reasons prevailing with,
the Honourable Supreme Court for holding that the Peshawar High Court and the Rawalpindi Bench of the
Lahore High Court had concurrent jurisdiction were two fold (i) that not only the action of the Collector
Customs at Peshawar was challenged but also the various notifications issued by the C.B.R. which had its
office in Islamabad were challenged and (ii) that the challenge to the jurisdiction of the Rawalpindi Bench
was not made in the initial proceedings but on the proceedings against the remand order and the Honourable
Supreme Court was of the view that if the jurisdiction is not challenged 4 the earliest moment it cannot be
challenged subsequently. In the present case it has not been shown to us what partial cause of action arose
at Karachi and we have already noted that the jurisdiction of this Court was challenged at the start of the
proceedings and, therefore, this judgment will not apply to the case before us. 23. The learned counsel also
relied on the judgment of the Honourable Supreme Court in the case of Trading Corporation of Pakistan
quoted supra. In this case also the Honourable Supreme Court has held that the relief was claimed not only
against the cause of action which had arisen at Karachi against the fully owned government corporation but
relief was also claimed against the government of Pakistan at Islamabad and therefore both the Courts at
Karachi as well as Rawalpindi had jurisdiction in the matter and remedy could be resorted in either of them.
In this case the Honourable Supreme Court held as under:-- "It is pertinent to note that petitioner in this
petition has on its own mentioned that it is a limited company duly incorporated under the Companies
Ordinance and operates from Karachi and undertakes import and export of various items to maintain the
stability of the prices in the market on the instructions of government of Pakistan. It is further confirmed
from the above facts that the tenders were called on 5-5-1996 on the decision of Economic Coordination
Committee of the Cabinet at Islamabad. Not only this but after calling the revised tenders the revised offers
of eight participants in number were opened on 8-5-1996 in the petitioner's Board from in presence of the
tenderers and the details of offer so received were sent to the kitchen items review committee in the
Planning and Development Division, r Ministry of Commerce, Islamabad where after review offer of the
respondent No.1 was found the lowest and was accepted. As stated in the facts above the offer of the
respondent was turned down as Government of India through Indian Sugar and General Industries Export
Corporation Limited entered into contract of export of sugar with Secretary to the Government of Pakistan,
Ministry of Commerce, Islamabad. Rejection of the representation further confirms that respondent No.2 has
the dominion over the matters of petitioner. Moreover, the decision of the writ petition of High Court
wherein the point of jurisdiction was raised attained finality as leave to appeal was refused to the petitioner
by this Court being time-barred. The learned Single Judge of the High Court in chambers has elaborately
dealt with this aspect of the matter in the judgment in writ petition and has held that the respondent No.1
having cause of action against Federal Government could bring the Constitutional Petition either at Karachi
or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the objection of
maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan are being
controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only claimed
against the petitioner but was also claimed against the respondent No.2, the Ministry of Commerce,
Government of Pakistan at Islamabad as such the petition was competently filed." 24. From a perusal of the
above paragraph it is seen that again the facts of this case have no nexus with the facts of the case in the
present petition. 25. We have carefully perused the judgment of the Honourable Supreme Court in the case
of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334). In this case,
the Honourable Supreme Court after distinguishing the facts of Al-Iblagh case quoted supra observed as
under:-- "(8) We may observe that it has become a common practice to file a writ petition either at
Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge--the order of assessment passed at Karachi
by adding a ground for impugning the notification under which a particular levy is imposed. This practice is
to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the
present case, the dominant object was not to pay the regulatory duty assessed by a Customs Official at
Karachi. We are, therefore, not inclined to grant leave. Leave is refused." 26. At this juncture it will be
relevant to reproduce the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the sake of
convenience which reads thus:-- Article 199. Jurisdiction of High Court:--- (i) Subject to the Constitution, a
High Court may, if it is satisfied that no other adequate remedy is provided by law. (a) on the application of
any aggrieved party, make an order (i) direct a person performing, within the territorial jurisdiction of the
Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain
from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii)
declaring that any at done or proceeding taken within the territorial jurisdiction of the Court by a person
performing functions in connection with the affairs of the . Federation, a Province or a local authority has
been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person,
make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody without lawful
authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court
holding or purporting to hold a public office to show under what authority of law he claims to hold that
office; or (c) on the application of any aggrieved person, make an order giving such directions to any person
or authority, including any Government exercising any power or performing any function in, or in relation to,
any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part H. 27. The interpretation of this Article has been
beautifully summed up in the judgment of the Peshawar High Court in the Subhan Beg's case relied on by the
learned counsel for the respondent which reads as under:-- "(13) A careful perusal of Article 199 of the
Constitution would show that there is a two-fold limitation on the jurisdiction of the High Court under Article
199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be
exercised by the High Court throughout the territories in relation to which the High Court exercises
jurisdiction. This means that the writ issued by the High Court cannot run beyond the territories subject to
its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued,
must be within the territories subject to the jurisdiction of the High Court which means that such person or
authority must be amenable to the jurisdiction of the High Court either by residence or location within those
territories." 28. We fully agree with the reasoning of the learned Peshawar High Court and are of the opinion
that both these limitations are present in this constitutional petition because the writ of mandamus, which
could have been issued by us cannot run beyond the territories which are subject to the jurisdiction of this
Court and the person or authority i.e. the Income Tax Tribunal Lahore Bench does not function within the
territories subject to the jurisdiction of this Court and even the petitioner and the person and the Members
of the Income Tax Tribunal Lahore or the Taxation Officer based at Lahore do not function within the
territorial jurisdiction of this Court and are not amenable to the jurisdiction of this Court. We are, therefore,
of the considered opinion that this Court does not have the jurisdiction to issue a writ of mandamus in this
constitutional petition. 29. The above are the reasons in support of the short order passed by us in Court
after hearing the learned counsel on 13-11-2008 by which we had held that this Court do not have the
jurisdiction to entertain this constitutional petition and directed the office to return the petition to the
petitioner to file before the appropriate Court having jurisdiction in this matter. S.A.K./I-32/K Petition
refused. 22. We are of the considered opinion that even this case does not help the petitioner because the
reasons prevailing with, the Honourable Supreme Court for holding that the Peshawar High Court and the
Rawalpindi Bench of the Lahore High Court had concurrent jurisdiction were two fold (i) that not only the
action of the Collector Customs at Peshawar was challenged but also the various notifications issued by the
C.B.R. which had its office in Islamabad were challenged and (ii) that the challenge to the jurisdiction of the
Rawalpindi Bench was not made in the initial proceedings but on the proceedings against the remand order
and the Honourable Supreme Court was of the view that if the jurisdiction is not challenged 4 the earliest
moment it cannot be challenged subsequently. In the present case it has not been shown to us what partial
cause of action arose at Karachi and we have already noted that the jurisdiction of this Court was challenged
at the start of the proceedings and, therefore, this judgment will not apply to the case before us. 23. The
learned counsel also relied on the judgment of the Honourable Supreme Court in the case of Trading
Corporation of Pakistan quoted supra. In this case also the Honourable Supreme Court has held that the
relief was claimed not only against the cause of action which had arisen at Karachi against the fully owned
government corporation but relief was also claimed against the government of Pakistan at Islamabad and
therefore both the Courts at Karachi as well as Rawalpindi had jurisdiction in the matter and remedy could
be resorted in either of them. In this case the Honourable Supreme Court held as under:-- "It is pertinent to
note that petitioner in this petition has on its own mentioned that it is a limited company duly incorporated
under the Companies Ordinance and operates from Karachi and undertakes import and export of various
items to maintain the stability of the prices in the market on the instructions of government of Pakistan. It is
further confirmed from the above facts that the tenders were called on 5-5-1996 on the decision of Economic
Coordination Committee of the Cabinet at Islamabad. Not only this but after calling the revised tenders the
revised offers of eight participants in number were opened on 8-5-1996 in the petitioner's Board from in
presence of the tenderers and the details of offer so received were sent to the kitchen items review
committee in the Planning and Development Division, r Ministry of Commerce, Islamabad where after review
offer of the respondent No.1 was found the lowest and was accepted. As stated in the facts above the offer
of the respondent was turned down as Government of India through Indian Sugar and General Industries
Export Corporation Limited entered into contract of export of sugar with Secretary to the Government of
Pakistan, Ministry of Commerce, Islamabad. Rejection of the representation further confirms that
respondent No.2 has the dominion over the matters of petitioner. Moreover, the decision of the writ petition
of High Court wherein the point of jurisdiction was raised attained finality as leave to appeal was refused to
the petitioner by this Court being time-barred. The learned Single Judge of the High Court in chambers has
elaborately dealt with this aspect of the matter in the judgment in writ petition and has held that the
respondent No.1 having cause of action against Federal Government could bring the Constitutional Petition
either at Karachi or at Rawalpindi Bench of Lahore High Court. The learned Single Judge rejected the
objection of maintainability of the writ petition on the ground that affairs of Trading Corporation of Pakistan
are being controlled by the Ministry of Commerce at Islamabad. Before the High Court the relief was not only
claimed against the petitioner but was also claimed against the respondent No.2, the Ministry of Commerce,
Government of Pakistan at Islamabad as such the petition was competently filed." 24. From a perusal of the
above paragraph it is seen that again the facts of this case have no nexus with the facts of the case in the
present petition. 25. We have carefully perused the judgment of the Honourable Supreme Court in the case
of Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others (PLD 1997 SC 334). In this case,
the Honourable Supreme Court after distinguishing the facts of Al-Iblagh case quoted supra observed as
under:-- "(8) We may observe that it has become a common practice to file a writ petition either at
Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge--the order of assessment passed at Karachi
by adding a ground for impugning the notification under which a particular levy is imposed. This practice is
to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the
present case, the dominant object was not to pay the regulatory duty assessed by a Customs Official at
Karachi. We are, therefore, not inclined to grant leave. Leave is refused." 26. At this juncture it will be
relevant to reproduce the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the sake of
convenience which reads thus:-- Article 199. Jurisdiction of High Court:--- (i) Subject to the Constitution, a
High Court may, if it is satisfied that no other adequate remedy is provided by law. (a) on the application of
any aggrieved party, make an order (i) direct a person performing, within the territorial jurisdiction of the
Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain
from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii)
declaring that any at done or proceeding taken within the territorial jurisdiction of the Court by a person
performing functions in connection with the affairs of the . Federation, a Province or a local authority has
been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person,
make an order- (i) directing that a person in custody within the territorial jurisdiction of the Court be
brought before it so that the Court may satisfy itself that he is not being held in custody without lawful
authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court
holding or purporting to hold a public office to show under what authority of law he claims to hold that
office; or (c) on the application of any aggrieved person, make an order giving such directions to any person
or authority, including any Government exercising any power or performing any function in, or in relation to,
any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part H. 27. The interpretation of this Article has been
beautifully summed up in the judgment of the Peshawar High Court in the Subhan Beg's case relied on by the
learned counsel for the respondent which reads as under:-- "(13) A careful perusal of Article 199 of the
Constitution would show that there is a two-fold limitation on the jurisdiction of the High Court under Article
199 of the Constitution in its territorial aspect. The first limitation seems to be that the power is to be
exercised by the High Court throughout the territories in relation to which the High Court exercises
jurisdiction. This means that the writ issued by the High Court cannot run beyond the territories subject to
its jurisdiction. The second limitation appears to be that the person or authority, to whom the writ is issued,
must be within the territories subject to the jurisdiction of the High Court which means that such person or
authority must be amenable to the jurisdiction of the High Court either by residence or location within those
territories." 28. We fully agree with the reasoning of the learned Peshawar High Court and are of the opinion
that both these limitations are present in this constitutional petition because the writ of mandamus, which
could have been issued by us cannot run beyond the territories which are subject to the jurisdiction of this
Court and the person or authority i.e. the Income Tax Tribunal Lahore Bench does not function within the
territories subject to the jurisdiction of this Court and even the petitioner and the person and the Members
of the Income Tax Tribunal Lahore or the Taxation Officer based at Lahore do not function within the
territorial jurisdiction of this Court and are not amenable to the jurisdiction of this Court. We are, therefore,
of the considered opinion that this Court does not have the jurisdiction to issue a writ of mandamus in this
constitutional petition. 29. The above are the reasons in support of the short order passed by us in Court
after hearing the learned counsel on 13-11-2008 by which we had held that this Court do not have the
jurisdiction to entertain this constitutional petition and directed the office to return the petition to the
petitioner to file before the appropriate Court having jurisdiction in this matter.

Petition dismissed