' IRSHAD HASAN KHAN, C.J.---Through these petitions under Article 188 of the Constitution of the Islamic Republic of Pakistan, 1973 review is sought of judgment dated 19-5-2000, paragraphs 3, 4 and 5 whereof read as under:-- "3 The tax levied through the first amendment was struck down by the Peshawar High Court on acceptance of Writ Petition No, 1713 of 1998, decided on 6-10-1999. The petitioners, who are manufacturers of sugar and bottlers of soft drinks, had also challenged both the amendments on various grounds but their writ petitions were dismissed by the Lahore High Court, Lahore. Hence, the petitions highlighted above."
"4 When the petitions came up for hearing today Mr. A. Karim Malik, learned Advocate Supreme Court appearing for the respondents, pursuant to notice issued on 17-2-2000, made a statement at the bar that he would not contest the challenge thrown to the first amendment as the petition for leave to appeal (Civil Petition No,474-P of 1999) directed against the judgment of the Peshawar High Court in Writ Petition No,1713 of 1998 was dismissed by this Court on 30-11-1999. He also placed on record a copy of the judgment of this Court, relevant portion whereof reads thus:-- ' "It is quite clear that the sales tax is leviable at the rate of 12.50 per cent. Both under section 3(1) as well as section 3(2)(c) of the Act. It is not disputed before us that the aeriated water manufactured by the defective was struck down on the touchstone of the second amendment which does not suffer from any legal infirmity. Consequently, the petitions are converted into appeals and partly accepted to the extent of further tax at the rate of 1% levied by Finance Act, 1998 and dismissed in respect of further tax at the rate of 3% levied by Finance Act, 1999. No order as to costs."
2. Mr. A. Karim Malik, learned Senior Advocate Supreme Court appearing in support of these petitions has reiterated the ground taken in the Memorandum of petition at pages 2-4 (i, ii and iii) mainly making reference to his indisposition on the day the matters were argued. He specifically contended that he was not in proper frame of mind due to 'blood pressure' and other ailments at the relevant time, therefore, the concession attributed to him may be recalled. On merits, he argued that the item 'sugar' was not mentioned in the 3rd Schedule to the Sales Tax Act, 1990 (hereinafter referred to as the Act). It was covered by subsection (1-A), inserted by Finance Act, 1998 in section 3 of the Act and was, therefore, covered by subsection (1) (ibid). It had no nexus with clause (c) of subsection (2) of section 3 of the Act to which the judgment of the Peshawar High Court in Writ Petition No, 1713 of 1998 related. He vehemently argued that the cases of 'sugar' were different from those of 'beverages'.
3. Mr. Ali Ahmed Awan, learned Advocate Supreme Court appearing on behalf of the respondent- Sugar Mills argued that the alleged indisposition of the counsel is not a valid ground for review and that accepting such a plea would tantamount to laying down a bad precedent. He argued that the concession was made by Mr. A. Karim Malik after due deliberation, therefore, he cannot be allowed to withdraw the same now. He further argued that the point on merits was never raised before the High Court, therefore, he cannot be permitted to raise the same for the first time in these proceedings.
4. After hearing the learned counsel for the parties we are not inclined to the view that review of the impugned judgment is called for on the grounds urged by the learned counsel for the petitioners particularly when the petitioners were represented by another counsel as well. Needless to observe that the question in relation to 'beverages' and 'sugar' having different connotations in the context of the sales tax, will be considered in some other appropriate case.
5. Resultantly, the petitions are dismissed.