1. ' SAEEDUZZAMAN SIDDIQUI, C.J.---This petition under Article 199 of the Constitution is filed by the petitioner to challenge the applicability of the provisions of Ordinance No.I of 1991 to it. On 20-1-1992 when this petition came up for hearing before the Court it was observed that in terms of the provisions of Article 128 of the Constitution apparently Ordinance No.I of 1991 and Ordinance IX of 1991 both stood repealed and accordingly, the learned Advocate-General was called upon to show if there was any other law applicable in that behalf. The learned Advocate-General, Sindh, has placed before us a copy of the Gazette Notification dated 23-1-1992 which shows that Ordinance No.I of 1991 was passed by the Provincial Assembly of Sindh as an Act on 25th September, 1991 and it was assented to by the Governor of Sindh on 23rd January, 1992. Therefore Sindh Act I of 1992 now holds the field. The contention of the learned counsel for the petitioner is that the provisions of Act I of 1992 do not apply to the petitioner as it is not a department of Provincial Government of. Sindh and as such the notice issued by the Provincial Ombudsman to the petitioner is wholly without jurisdiction.
2. ' In reply to the above contention of the learned counsel for the petitioner Mr. Aftab Akhund the learned Advocate-General, Sindh has invited our attention to a decision of this Court reported as S.I.T.E., Karachi v. Central Board of Revenue PLD 1975 Kar. 128 and contended that in the aforesaid case the Court categorically held that S.I.T.E. was functioning as a department of Provincial Government. The learned Advocate-General also referred us the appellate judgment of Supreme Court in the above case reported as Central Board of Revenue v. S.I.T.E. PLD 1985 SC 97, which affirmed the judgment of Sindh High Court. The learned Advocate-General, Sindh on the basis of these decisions contended that the petitioner being, part of the Provincial Government of Sindh is susceptible to the jurisdiction of Provincial Ombudsman under the provisions of Act I of 1992.
3. ' Mr S.A. Samad learned counsel for the petitioner firstly contended before us that the ratio laid down in PLD 1975 Karachi 128 is being interpreted wrongly as in that case the Court did not hold that the petitioner is a department of the Provincial Government of Sindh. Learned counsel further contended that the judgment of Sindh High Court in any case stood merged in the appellate judgment of Supreme Court which never decided that the petitioner is a department of Provincial Government of Sindh. Learned counsel has relied on the following passage from the Supreme Court judgment which appears at page 106 of the report in support of his contention: "But as stated earlier the facts found by the High Court and its conclusions on the question raised by learned counsel are unexceptionable. The respondent-Company was carrying on the function of Industrial Development and the trade and business connected therewith for and on behalf of the Government. The truth is that the lifting of veil has revealed that for the relevant purposes in this case it was doing so just like a department of the Government notwithstanding the incorporation; which as explained earlier will not make any different regarding the relevant Constitutional provision on exemption from Federal Taxation."
4. ' We are unable to accept the contention of the learned counsel for the petitioner. In the case of S.I.T.E., Karachi v. Central Board of Revenue this Court at pages 133, 135 and 137 of the report (Platinum B, C and D) had observed in clear terms that Sindh Industrial Trading Estate Ltd., is nothing but a department of the Provincial Government though it is clothed with juristic personality, performs the essential functions entrusted to the province with regard to the development of trade and industry.
5. ' We would also like to refer here the following observations of the Supreme Court in the case of Central Board of Revenue v. S.I.T.E., Karachi: "There are some common features in all these provisions. Apart from the property of Provincial Government its income from trade or business has been exempt from Federal Taxation provided it is within the concerned Province. Where however the trade or business is out of that Province then the income was liable to tax some times by taking away the exemption in the provision itself (as in proviso to section 155 of the 1935 Act) or by making it possible for the Federation or the other province to tax such income (sub-Article (2) of 1973 Constitution). Much emphasis has been laid during the arguments on subsection (1) (and its proviso) of section 155 of the 1935 Act (amended) as at the relevant time of the Resolution of the Sindh Government of 1947, the said provision would cover the same. Its plane language gives rise to the following amongst other conclusions: `(a) Although the sources of income as 'trade and business' are not specifically mentioned in subsection (1) of section 155, its proviso. postulates the same also in clear terms.
(b) The proviso is not itself the charging provision. It only permits the Federal taxation on the Provincial income in connection with trade and business carried on in Pakistan but out of that Province.
(c) The proviso plays a classificatory role in another respect also namely that although subsection
(1) does not mention as agency which the proviso visualises namely the trade or business may be carried on "on behalf of the Provincial Government and not by itself directly. In other words it may be through a Government department or by any other agency; may be a juristic person---a Company, a Corporation or an Authority the exemption under subsection (1) will be available. But it shall not be available if the business or trade is carried on out of the Province. If the proviso is not attracted because of the trade or business being carried on, within the Province then it does not make any difference if it is carried on through an agency. The exemption under subsection shall operate. The argument of the learned counsel regarding omission of the words "on behalf of in subsection (1) of section 155 as implying the negation of concept of agency is of no force for the simple reason that the phraseology employed therein does not need additional words to include trade and business through agency.
(d) The foregoing Constitutional assumption read with other relevant Constitutional provision specifying the field of activity of a Provincial Government like that of Industrial Development in this case, make it amply understandable that the pure classical concept of Government functions of maintaining law and order administration of justice and few others in the same class has given way to the welfare concept wherein the activity of business, industry and trade can be easily visualised. This very aspect was highlighted in the Lahore cases---West Pakistan Road Transport Board v. Commissioner of Income-tax 1973 PTD 499 and Abdul Razzak Malik v. The Water and Power Development Authority etc. PLD 1973 Lah. 188 --- one of us was a member of the Bench deciding the former case which incidentally has been heavily relied upon by the High Court in the impugned judgment of this Court'."
6. ' After carefully going through the above observations of the Supreme Court we are of the view that neither the ratio laid down in PLD 1975 Kar. 128 has been overruled nor modified by the judgment of the Supreme Court PLD 1985 SC 103.
7. ' As the petitioner is functioning as a department of Provincial Government of Sindh the notice issued to it by the Provincial. Ombudsman C cannot be held to be without lawful authority Mr. S.A.
8. Samad lastly contended before us that if the petitioner was a part of the Provincial Government then the High Court of Sindh could not decide the case reported in PLD 1975 Karachi 128 in view of provisions of Article 184 of the Constitution. The contention is misconceived. The decision in the case of S.I.T.E., Karachi v. Central Board of Revenue having been confirmed by the Supreme Court cannot be challenged now. Dismissed summarily.