1. ' MUSHTAQ HUSSAIN, ACTG. C. J.-17 References under section 66 of the Income-tax Act having been disposed of by this Court against the Commissioner of Income-tax, he has filed an equal number of applications under section 66-A(2) of the Income-tax Act for certificates of fitness for appeal to the Supreme Court. The Assessees have objected to the grant of the certificates on the ground that this Court does no longer possess the jurisdiction to do that. This objection is based on the provisions of Articles 175 and 185 of the Constitution of the Islamic Republic of Pakistan 1973. The history of this jurisdiction follows: Section 66-A(2) of the Income-tax Act XI of 1922 ran as follows before its amendment in 1957 :- "An appeal shall lie to His Majesty in Council from any judgment of the High Court delivered on a reference made under section 66 in any case which the High Court certifies to be a fit one for appeal to His Majesty in Council."
2. ' Section 3 of the Privy Council (Abolition of Jurisdiction) Act 1950, which came into force on 20-4- 1950, provided as under :-- "As from the appointed day the Federal Court shall, in addition to the jurisdiction conferred on it by the Government of India Act, 1935 (hereinafter referred to Rs the said Act) and the Federal Court (Enlargement of Jurisdiction Act, 1949) but subject to the provision of this section have the same jurisdiction to entertain and dispose of Pakistan appeals and petitions as His Majesty in Council has, whether by virtue of His Majesty's prerogative or otherwise immediately before the appointed day."
3. ' Appeals from orders passed by High Courts in References under section 66 were, therefore, entertained after the coming into force of the Privy Council (Abolition of Jurisdiction) Act 1950 by the Federal Court of India because under section 66(2) as it existed on the 19th April 1950 appeals lay against such orders of the High Court to His Majesty in Council. This position continued till the Construction of 1956 came into force. This Constitution created a Supreme Court and the jurisdiction of the Federal Court devolved upon Supreme Court created by it.
4. ' Articles 157 to 159 of the Constitution of the Islamic Republic of Pakistan (1956) dealt with the extent of the appellate jurisdiction of the Supreme Court. Article 158(1)(c) which dealt with the appellate jurisdiction of the Supreme Court in civil matters provided that-an appeal shall lie to that Court from any judgment, decree or final order of a High Court in civil proceedings- "(c) if the High Court certifies that a case is a fit one for appeal to the Supreme Court."
5. ' It was under this provision of law read with section 66-A of the Income-tax Act that the High Court used to grant certificates of fitness for filing appeals before the Supreme Court against orders passed by the High Court in references under the Income-tax Act.
6. ' By section 11, Finance Act (I of 1957) for the words "Privy Council" and the words "His Majesty in Council" the words "the Supreme Court" were substituted so that section 66-A of the Income-tax Act referred to above was brought into line with the situation created by the Privy Council (Abolition of Jurisdiction) Act, 1950. As from this date section 66-A(2) of the Income-tax Act (XI of 1922) stood as follows :- "An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on a reference made under section 66 in any case, which the High Court certifies to be a fit one for appeal to the Supreme Court."
7. ' When the 1956 Constitution was abrogated and the 1962 Constitution was adopted the provisions for filing of appeals before the Supreme Court were regulated by Chapter 3. Article 58 of that Constitution dealt with its appellate jurisdiction and Article 60 provided "in addition to the jurisdiction conferred on it by this Constitution the Supreme Court shall have such other jurisdiction as may be conferred on it by law."
8. Consequently appeals against references continued to be filed before the Supreme Court on the basis of certificates issued by this Court under section 66-A(2) of the Income-tax Act as this jurisdiction was covered by Article 60.
9. ' The Interim Constitution of the Islamic Republic of Pakistan came into force in 1972. Article 177 provided for the establishment of the Supreme Court while Article 186 dealt with its appellate jurisdiction. Article 188 of this Constitution, like Article 60 of the abrogated Constitution on provided that- "in addition to the jurisdiction conferred on it by this Constitution, the Supreme Court shall have such other jurisdiction as may be conferred on it by law."
10. ' The position of references, therefore, remained unchanged.
11. ' This was followed by the Constitution of Islamic Republic of Pakistan enacted in 1973. The appellate jurisdiction of the Supreme Court under this Constitution is conferred by Article 185 sub- Article (1), which provides that the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. This is, however, preceded by the inhibition "Subject to this Article".
12. ' Article 185(2) repeats the formula referred to above and makes the appeals subject to the conditions :-
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life ; or, on revision, has enhanced a sentence to a sentence as aforesaid ; or
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid or
(c) if the High Court has imposed any punishment on any person for contempt of the High Court ; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or
(e) if the judgment, decree or final order involved directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below ; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution."
13. An appeal from the reference under the Income-tax law is not covered by any of these.
14. ' Article 185(3) limits the jurisdiction of the Supreme Court by providing that:- "an appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."
15. ' There is no provision corresponding to Article 188 of the Interim Constiution and Article 60 of the 1962 Constitution, whereror, any appeal provided y an Act of Parliament but not warranted by the Constitution would not lie o the Supreme Court. Since an appeal of the kind referred to in sec-ion 66 A(2) can now only be preferred under Article 185(3) of the constitution it can be entertained only:- "if the Supreme Court grants leave to appeal." his rules out the grant of a certificate of fitness by this Court and the revision to that effect contained in section 66-A(2) of the Income-tax Act ould stand impliedly repealed, ' It was submitted before us that the Constitution of 1973 saves all existing laws by virtue of Article
268. This proposition is indubitable but by the same Article such continuance in force is :- "subject to the Constitution . .. So far as applicable. ....And with the necessary adaptations.".
16. ' Since the Constitution specifically provides in article 185 sub-Article (3) for the exclusion of all appeals to the Supreme Court not falling under clause (2) of that Article, section 66-A(2) which contains a provision to the contrary is not saved as an existing law. The same result is, therefore, reached i,e, no certificate of fitness can be granted by this Court for filing an appeal against a judgment of this Court in a reference under the Income-tax Act and anybody desirous of challenging it can do so only by invoking the jurisdiction of the Supreme Court to grant leave to appeal.
17. ' We were also told that Article 175(2), which runs as follows :- "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law" read with Article 268 saves the situation and the jurisdiction conferred by the Income-tax Act is covered by it.
18. We are afraid we cannot see eye to eye with this argument. Article 175(2) is neither an enabling provision nor does it confer any powers. It is in fact an inhibiting provision, which, far from conferring jurisdiction, limits it. The reference to jurisdiction "under any law" is relatable to specific provisions made in this Constitution enabling Parliament to make law in certain cases for the conferment of jurisdiction on the Supreme Court in matters specifically provided for by the Constitution itself. One of such provisions is Article 247(7) which lays down that :- "neither the Supreme Court nor a High Court shall exercise any jurisdiction under the Constitution in relation to a tribal area unless Parliament by law otherwise provides."
19. There is, therefore, no force in this argument either.
20. For the reasons stated above, we uphold the objection and rule that this Court does not now have the jurisdiction to grant certificates of fitness for appeal to the Supreme Court under section 66- A(2) of the Income-tax Act. The applications are, therefore, rejected with costs.
21. Applications rejected.