IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
Present: 
Mr. Justice Javed Iqbal 
Mr. Justice Raja Fayyaz Ahmed 
Mr. Justice Asif Saeed Khan Khosa 
 
Constitution Petitions No. 60 and 61 of 2010 
 
1. Shahid Orakzai 
 
 
         … Petitioner in Const. P. No. 60/2010 
2. Ch. Nisar Ali Khan 
 
          … Petitioner in Const. P. No. 61/2010 
 
versus  
 
1. Pakistan through Secretary Law, Ministry of Law, Islamabad    
       … Respondent in Const. P. No. 60/2010 
2. Federation of Pakistan through Secretary, Ministry of Law, Justice & 
Parliamentary Affairs, Pakistan Secretariat, Islamabad and two others    
     … Respondents in Const. P. No. 61/2010 
  
For the petitioner: 
Mr. Shahid Orakzai petitioner in person 
(in Const. P. No. 60/2010) 
 
For the petitioner: 
Mr. Mohammad Akram Sheikh, Sr. ASC 
(in Const. P. No. 61/2010) 
assisted by Barrister Natalya Kamal, Advocate and Syed 
Riaz Hussain, Advocate 
 
For the Federation of Pakistan: 
Mr. Abdul Hafeez Pirzada, Sr. ASC and Mian 
Gul Hassan Aurangzeb, ASC  
assisted by Mr. Hamid Ahmad, Advocate, Ms. Saleha 
Hayat, Advocate and Mr. Mustafa Aftab Sherpao, 
Advocate 
 
On Court’s notice: 
Maulvi Anwarul Haq, Attorney-General for 
Pakistan 
 
For respondent No. 3: 
Dr. Khalid Ranjha, Sr. ASC 
(in Const. P. No. 61/2010) 
 
 
For the National Accountability 
Bureau: 
Mr. Muhammad Akbar Tarar, Acting Prosecutor-
General, National Accountability Bureau 
 
Mr. Fowzi Zafar, Additional Prosecutor- General, 
National Accountability Bureau 
Mr. M. S. Khattak, AOR 
 
Dates of hearing: 
01.02.2011, 02.02.2011, 08.02.2011, 28.02.2011 
& 10.03.2011 
 
 
JUDGMENT 
  
 
Asif Saeed Khan Khosa, J.:    “Obedience to the Constitution and law is 
the inviolable obligation of every citizen wherever he may be and of every other 
Constitution Petitions No. 60 & 61 of 2010 
2 
person for the time being within Pakistan” and this inviolable obligation has been 
mandated by no less a legal instrument than the Constitution of Pakistan itself 
through clause (2) of its Article 5. Through the present Constitution Petitions it 
has been asserted by the petitioners that in the matter of appointment of Mr. 
Justice (Retired) Syed Deedar Hussain Shah, a former Judge of this Court, as 
Chairman, National Accountability Bureau both the Constitution as well as the 
relevant law have been violated. 
 
2. 
The issue posed by these petitions is one of comparative simplicity. That 
is to say, the facts of the case are intelligible to the least-instructed layman and, 
with respect, the only persons utterly at sea are those connected with the law. The 
basic facts of this case are quite straightforward and uncomplicated and not in 
dispute but the constitutional and legal position applicable to such facts has been 
made to appear before this Court as a question of acute difficulty and it has fallen 
to our lot to state and declare the correct position in that regard. The pangs that a 
Judge has to go through and endure while adjudicating between fellow human 
beings are known to many but very few know that the pain is more penetrating 
when the matter concerns a former colleague in the profession. The case in hand 
happens to be one of such cases and we have been called upon to adjudicate upon 
an issue directly concerning appointment of a former Honourable Judge of this 
Court to a prestigious office in the country and, no matter how acute the pain and 
agony, judge we must, justly and fairly, as that is what is our vocation and calling.       
 
3. 
The long and short of the matter is that Mr. Justice (Retired) Syed Deedar 
Hussain Shah (respondent No. 3 in Constitution Petition No. 61 of 2010, 
hereinafter referred to as ‘the respondent’) was appointed as Chairman, National 
Accountability Bureau by the President of Pakistan on 7th October, 2010 and the 
relevant Notification issued on 8th October, 2010 reads as follows: 
 
“Government of Pakistan 
Ministry of Law, Justice and Parliamentary Affairs 
***** 
 
Islamabad, the 8th October, 2010. 
 
NOTIFICATION 
 
No.F.8.(17)/2010-A.I The President of Islamic Republic of Pakistan 
has been pleased to appoint Mr. Justice (Retd) Syed Deedar Hussain Shah as 
Chairman, National Accountability Bureau in terms of Section 6(b)(i) of the 
National Accountability Ordinance, 1999, with immediate effect. 
 
(AHMAD ALI TURI) 
Deputy Secretary (Admn-II)” 
Constitution Petitions No. 60 & 61 of 2010 
3 
 
Within a matter of about one week of issuance of that Notification the 
appointment of the respondent was challenged before this Court through the 
present Constitution Petitions filed under Article 184(3) of the Constitution out of 
which Constitution Petition No. 60 of 2010 has been filed by Mr. Shahid Orakzai, 
a freelance journalist, and Constitution Petition No. 61 of 2010 has been preferred 
by Ch. Nisar Ali Khan, the Leader of the Opposition in the National Assembly, 
who is also a statutory consultee in the matter of appointment of Chairman, 
National Accountability Bureau in terms of section 6(b)(i) of the National 
Accountability Ordinance, 1999.  
 
4. 
During the pendency and hearing of these petitions before this Court the 
above mentioned order dated 7th October, 2010 passed by the President of 
Pakistan appointing the respondent as Chairman, National Accountability Bureau 
was “withdrawn/recalled” on 9th February, 2011, the Notification dated 8th 
October, 2010 was “rescinded/cancelled” and the respondent was again 
“appointed” as Chairman, National Accountability Bureau by the President of 
Pakistan “with immediate effect”, i.e. with effect from 9th February, 2011. The 
relevant composite Notification issued on 9th February, 2011 reads as under:  
 
“Government of Pakistan 
Ministry of Law, Justice and Parliamentary Affairs 
*** 
 
Islamabad, the 9th February, 2011. 
 
NOTIFICATION 
 
No.F.8.(17)/2010-A.I The President of Islamic Republic of Pakistan 
has been pleased to withdraw/recall his order dated 07.10.2010, appointing Mr. 
Justice (R) Syed Deedar Hussain Shah as Chairman, National Accountability 
Bureau 
(NAB). 
Consequently, 
notification 
No.F.8(17)/2010-A.I 
dated 
08.10.2010 is hereby rescinded/cancelled. 
 
2. 
Further, the President of Islamic Republic of Pakistan has also been 
pleased to appoint Mr. Justice (R) Syed Deedar Hussain Shah as Chairman, 
National Accountability Bureau (NAB), in terms of Section 6(b)(i) of the 
National Accountability Ordinance, 1999 with immediate effect. 
 
(AHMAD ALI TURI) 
Deputy Secretary (Admn-II)” 
 
As cancellation of the respondent’s earlier appointment as Chairman, National 
Accountability Bureau and his fresh appointment as such had come about during 
the pendency and hearing of the present petitions and as the said development had 
been brought to the notice of this Court by the Federation of Pakistan itself, 
therefore, we had decided to treat that development as a part of the pending issue 
and to determine its effect on the same without requiring the petitioners to amend 
Constitution Petitions No. 60 & 61 of 2010 
4 
their petitions qua such development. It is by now settled law that a Court seized 
of a matter can not only take notice of any relevant development taking place 
during the pendency of the lis but it can also mould the relief to be granted 
keeping in view such development and none of the learned counsel representing 
different parties to the present petitions has disputed that legal position or has 
objected to the course adopted by us in that regard.  
 
5. 
Mr. Shahid Orakzai, the petitioner in Constitution Petition No. 60 of 2010, 
has argued before us in person that appointment of Chairman, National 
Accountability Bureau is not a discretionary power of the President of Pakistan 
and in the matter of appointment of the respondent to that office no advice had 
been tendered to the President by the Prime Minister and, thus, the respondent’s 
appointment was unconstitutional. He has also argued that the impugned action of 
the President had been taken under section 6 of the National Accountability 
Ordinance, 1999 which legal provision had been promulgated and amended 
during a period when some provisions of the Constitution were held in abeyance 
but the present interpretation and application of the said law should be in 
accordance with the Constitution which is presently fully in force. With reference 
to Articles 182 and 207 of the Constitution he has maintained that a retired Judge 
of the superior judiciary can be available for some other assignment till two or 
three years of his retirement and not after that whereas the respondent has been 
appointed as Chairman, National Accountability Bureau at the age of about 
seventy years which, according to Mr. Orakzai, amounts to ‘judicial indiscipline’ 
besides militating against the constitutional mandate regarding separation of the 
judiciary from the executive. While relying upon the spirit of Article 213 of the 
Constitution regarding appointment of the Chief Election Commissioner he has 
further argued that ‘consultation’ between the Leader of the House and the Leader 
of the Opposition in the National Assembly contemplated by section 6(b)(i) of the 
National Accountability Ordinance, 1999 should be understood to be aimed at 
evolving a ‘consensus’ between the said two constitutional functionaries and if 
they fail to arrive at a consensus then they are to draw out lists of their respective 
recommendees which lists may then be submitted before the other authority 
involved in the matter which in the case of section 6(b)(i) of the National 
Accountability Ordinance, 1999 happens to be the President of Pakistan. Mr. 
Orakzai has lastly submitted that cancellation of the respondent’s earlier 
appointment as Chairman, National Accountability Bureau on 8th October, 2010 
and his fresh appointment as such on 9th February, 2011 “with immediate effect” 
Constitution Petitions No. 60 & 61 of 2010 
5 
meant that the respondent’s earlier term of office for four years commencing on 
8th October, 2010 had been terminated and he had been appointed again for 
another term of four years commencing on 9th February, 2011 which was not 
permissible under section 6(b)(i) of the National Accountability Ordinance, 1999 
which places an embargo upon extension in a four years’ term or reappointment 
for another term. He has referred in this context to the judgment rendered by this 
Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and 
others (PLD 2010 SC 1109). He has pointed out that the Notification dated 8th 
October, 2010 as well as the Notification dated 9th February, 2011 carry the same 
number and that, according to him, was absurd because the President had recalled 
his order dated 7th October, 2010 on 9th February, 2011 and his recalling of that 
order could not have retrospective effect as the earlier order dated 7th October, 
2010 and the Notification dated 8th October, 2010 had already been acted upon. 
 
6. 
Mr. Muhammad Akram Sheikh, Sr. ASC appearing for the petitioner in 
Constitution Petition No. 61 of 2010 has narrated the history of section 6 of the 
National Accountability Ordinance, 1999 and has highlighted that the President of 
Pakistan has constantly remained the appointing authority of Chairman, National 
Accountability Bureau but the persons to be consulted by him before making such 
an appointment have been changing from time to time. He has pointed out that in 
the case of Khan Asfandyar Wali and others v. Federation of Pakistan and others 
(PLD 2001 SC 607) a recommendation had been made by this Court that 
Chairman, National Accountability Bureau ought to be appointed by the President 
in consultation with the Chief Justice of Pakistan and that recommendation had 
been given effect to through the National Accountability Bureau (Amendment) 
Ordinance XXXV of 2001 but subsequently through the National Accountability 
Bureau (Amendment) Ordinance CXXXIII of 2002 the Chief Justice of Pakistan 
had been excluded from the consultees and he was substituted by the Leader of 
the House and the Leader of the Opposition in the National Assembly who were 
to be consulted by the President before making an appointment of Chairman, 
National Accountability Bureau. However, in the case of Dr. Mobashir Hassan 
and others v. Federation of Pakistan and others (PLD 2010 SC 265) this Court 
had reiterated its earlier recommendation and suggestion with regard to 
consultation with the Chief Justice of Pakistan in the matter of such appointment 
and that recommendation and suggestion had once again been repeated by this 
Court in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and 
others (supra). He has referred to the cases of Irshad Ahmad Shaikh v. The State 
Constitution Petitions No. 60 & 61 of 2010 
6 
(2000 SCMR 814) and All Pakistan Newspapers Society and others v. Federation 
of Pakistan and others (PLD 2004 SC 600) to maintain that even an obiter dictum 
of this Court is worthy of great respect but in the matter of appointment of the 
respondent as Chairman, National Accountability Bureau no consultation 
whatsoever was made with the Chief Justice of Pakistan and such omission 
reflected adversely upon the legality of the appointment so made. 
 
7. 
It has also been argued by Mr. Sheikh that in terms of section 6(b)(i) of the 
National Accountability Ordinance, 1999 the President of Pakistan was obliged to 
personally consult the Leader of the Opposition in the National Assembly (the 
petitioner in Constitution Petition No. 61 of 2010) before appointing the 
respondent as Chairman, National Accountability Bureau but admittedly the 
President had never personally consulted the Leader of the Opposition in the 
National Assembly in that regard. He has maintained that on account of that 
omission a mandatory requirement of section 6(b)(i) of the National 
Accountability Ordinance, 1999 had remained unfulfilled and, thus, the 
appointment of the respondent was patently illegal. He has referred in this respect 
to the age old principle of law that when the law requires a thing to be done in a 
particular manner then that thing must be done in that manner alone or not at all.  
 
8. 
Mr. Sheikh has further argued that in the case in had the purported 
consultation with the Leader of the Opposition in the National Assembly in the 
matter of appointment of the respondent as Chairman, National Accountability 
Bureau had been made by the Prime Minister of Pakistan in his capacity as the 
Leader of the House in the National Assembly which consultation was not only 
against the mandate of section 6(b)(i) of the National Accountability Ordinance, 
1999 but the same was also not in consonance with the interpretation of the word 
‘consultation’ handed down by the superior courts of the country through various 
judgments. He has pointed out that in the case of Al-Jehad Trust and others v. 
Federation of Pakistan and others (PLD 1996 SC 324) this Court had held that a 
‘consultation’ has to be “effective, meaningful, purposive, consensus-oriented, 
leaving no room for complaint of arbitrariness or unfairplay” and an identical 
interpretation of that word had also been advanced in the case of Al-Jehad Trust 
and another v. Federation of Pakistan and others (PLD 1997 SC 84). He has also 
highlighted that in the case of Sindh High Court Bar Association v. Federation of 
Pakistan and 4 others (PLD 2009 Karachi 408) the High Court of Sindh had held 
that for a consultation to be meaningful and purposive an “attempt should be 
Constitution Petitions No. 60 & 61 of 2010 
7 
made to reach at some consensus” and that the required consultative process 
should be in writing. In this context he has also referred to the case of Sindh High 
Court Bar Association and another v. Federation of Pakistan and others (PLD 
2009 SC 879) wherein this Court had observed that “by all means the first priority 
has to be directed to evolving consensus between the consultees by mutual 
discussion of the merits and demerits of the concerned candidate.” According to 
Mr. Sheikh the purported consultation made by the Prime Minister of Pakistan 
with the Leader of the Opposition in the National Assembly vis-à-vis the 
respondent fell far short of being consensus-oriented because in the solitary 
telephone call made in that connection by the Prime Minister to the Leader of the 
Opposition in the National Assembly no serious effort had been made to evolve a 
consensus on the name of the respondent for the office of Chairman, National 
Accountability Bureau. Mr. Sheikh has also referred in this respect to a letter 
written by the Leader of the Opposition in the National Assembly to the Prime 
Minister on 24th September, 2010, a copy whereof has been appended with 
Constitution Petition No. 61 of 2010 at page No. 18 thereof. He has maintained 
that the objections of the Leader of the Opposition in the National Assembly 
against the respondent’s appointment as Chairman, National Accountability 
Bureau had been brushed aside by the Prime Minister on the basis of an 
expression of confidence in the respondent’s integrity and impartiality by Mian 
Muhammad Nawaz Sharif, the head of the political party to which the Leader of 
the Opposition in the National Assembly belongs, more than a decade ago when 
the respondent was serving as the Chief Justice of the High Court of Sindh but 
that expression of confidence by Mian Muhammad Nawaz Sharif was irrelevant 
to the issue because Mian Muhammad Nawaz Sharif was not a consultee in terms 
of section 6(b)(i) of the National Accountability Ordinance, 1999, he was not the 
Leader of the Opposition in the National Assembly at the time of the purported 
consultation and he did not represent the entire opposition in the National 
Assembly. Thus, according to Mr. Sheikh, apart from not being consensus-
oriented the purported consultation was also not meaningful because the 
consideration weighing with the Prime Minister for rejecting the objections and 
concerns of the Leader of the Opposition in the National Assembly qua the 
respondent were extraneous and irrelevant. Mr. Sheikh has also maintained that 
the purported consultation was not even purposive because the purpose of such 
consultation, on account of our unfortunate history of victimization of the political 
opposition through the National Accountability Bureau or its predecessor 
institutions, was to appoint a Chairman, National Accountability Bureau who 
Constitution Petitions No. 60 & 61 of 2010 
8 
inspired confidence of the apprehensive potential victim, i.e. the political 
opposition in the country. 
 
9. 
Mr. Sheikh has gone on to argue that appointment of Chairman, National 
Accountability Bureau is not a discretionary power of the President of Pakistan 
and in making such an appointment the President was, in terms of Article 48(1) of 
the Constitution, bound to act on the advice of the Prime Minister but in the case 
of first appointment of the respondent as Chairman, National Accountability 
Bureau on 8th October, 2010 the Prime Minister had tendered no advice to the 
President. With reference to some newspaper clippings appended with 
Constitution Petition No. 61 of 2010 he has pointed out that as a matter of fact the 
Prime Minister had made a public statement that he had tendered no advice 
whatsoever to the President for appointment of the respondent as Chairman, 
National Accountability Bureau. According to Mr. Sheikh, such appointment of 
the respondent as Chairman, National Accountability Bureau was an act of 
deliberate defiance of the mandate of Article 48(1) of the Constitution by the 
President and also an unconstitutional abdication of his constitutional jurisdiction 
by the Prime Minister in favour of the President and, thus, the impugned 
appointment of the respondent was not a valid appointment in the eyes of the 
Constitution. He has maintained that the notion of ‘substantial compliance’ has 
never been accepted in the matter of constitutional mandates or requirements. He 
has also referred in this context to Article 74(1) of the Indian Constitution and to 
the case of Govinddassammy v. The President of India (2001 CTC 423) wherein it 
had been held that the Indian President could not do anything without the advice 
of Ministers. 
 
10. 
With reference to some Articles of the United Nations Convention on 
Corruption Mr. Sheikh has also argued that establishing independent and 
impartial anti-corruption bodies in the country is an obligation and commitment 
of the Government of Pakistan because Pakistan is a signatory to the said 
Convention and she has also formally ratified it but by appointing the respondent 
as Chairman, National Accountability Bureau such obligation and commitment 
have been violated and infringed.  
 
11.  
As far as the fresh appointment of the respondent on 9th February, 2011 is 
concerned Mr. Sheikh has contended that undeniably such fresh appointment was 
made without the President or the Prime Minister consulting the Leader of the 
Constitution Petitions No. 60 & 61 of 2010 
9 
Opposition in the National Assembly at all and, therefore, the mandatory 
requirement in that regard contained in section 6(b)(i) of the National 
Accountability Ordinance, 1999 had been flagrantly violated and that violation 
had vitiated the respondent’s fresh appointment. He has further contended that 
even in the matter of the second appointment of the respondent the Chief Justice 
of Pakistan had not been consulted rendering such appointment further laconic. 
He has gone on to submit that only the President and the Prime Minister were 
involved in the respondent’s second appointment and that appointment was 
vitiated on account of conflict of interest because the President was personally 
involved in many criminal cases being pursued by the National Accountability 
Bureau and the Prime Minister had previously been convicted for an offence 
under the National Accountability Ordinance, 1999 but he had subsequently been 
acquitted in appeal. With reference to the case of Alexia Morrison v. Theodore B. 
Olson (487 US 654) he has maintained that in cases of potential conflict of 
interest the judicial branch is most suitable to make an appointment to such an 
office. In the context of conflict of interest he has further referred to the Oaths of 
Office prescribed by the Constitution for the President of Pakistan and the Prime 
Minister and has pointed out that before entering upon their respective offices the 
President and the Prime Minister had both sworn before Almighty Allah “That I 
will not allow my personal interest to influence my official conduct or my official 
decisions”. He has also argued that such fresh appointment of the respondent was 
in fact his second appointment for a fresh term of four years whereas by virtue of 
the provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 
the respondent could be appointed only once for a “non-extendable period of four 
years”. He has maintained that through the fresh appointment of the respondent 
something has been achieved indirectly which could not have been done directly 
and this amounted to committing fraud upon the relevant statute. He has pointed 
out that in the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and 
others (supra) this Court has already held in most categorical terms that the 
statutory embargo placed by the use of the words “non-extendable period” of 
some specified years vis-à-vis an office in the National Accountability Bureau 
cannot be circumvented or overcome by making a fresh appointment to the 
relevant office for a fresh term of that office.   
 
12. 
As regards the maintainability of his client’s Constitution Petition filed 
before this Court under Article 184(3) of the Constitution Mr. Sheikh has 
maintained that appointment of Chairman, National Accountability Bureau is 
Constitution Petitions No. 60 & 61 of 2010 
10 
inextricably linked with enforcement of many Fundamental Rights of the people 
of this country including right to life, right to liberty, due process of law, fair trial 
and access to justice and this Court being the guardian of those rights is under an 
obligation to ensure that only such person is appointed to that office who can 
protect such rights and can prosecute the violators. He has highlighted that under 
the National Accountability Ordinance, 1999 the Chairman, National 
Accountability Bureau has vast powers regarding initiating or authorizing 
inquiries, investigations and trials besides the powers of freezing properties and 
entering into or approving plea-bargains with suspects being inquired into or 
accused persons being investigated or tried which powers are essentially judicial 
or quasi-judicial in nature and, thus, the matter of appointment of Chairman, 
National Accountability Bureau necessarily involves issues concerning access to 
justice which the jurisprudence of this country now recognizes as issues of basic 
human rights. As hundreds of inquiries, investigations and trials are to be dealt 
with by the Chairman, National Accountability Bureau, therefore, he has also 
maintained that the matter of appointment of Chairman, National Accountability 
Bureau is a matter or question of public importance within the purview of Article 
184(3) of the Constitution. In this connection Mr. Sheikh has also pointed out that 
the matter of appointment of Chairman, National Accountability Bureau has 
repeatedly been found by this Court to be of such public importance that in the 
case of Khan Asfandyar Wali and others v. Federation of Pakistan and others 
(supra) a recommendation had been made by this Court that Chairman, National 
Accountability Bureau ought to be appointed by the President in consultation with 
the Chief Justice of Pakistan and subsequently that recommendation and 
suggestion had also been repeated and reiterated in the cases of Dr. Mobashir 
Hassan and others v. Federation of Pakistan and others (supra) and The Bank of 
Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra). He has gone on to 
submit in this regard that the office of an independent investigator or prosecutor is 
of such great public importance that despite the absence of any express provision 
regarding an Independent Counsel in the Constitution of the United States of 
America the power to appoint an Independent Counsel for the purposes of 
investigation and prosecution of high State functionaries was upheld as 
constitutionally valid in the case of Alexia Morrison v. Theodore B. Olson 
(supra).    
 
13. 
In the end Mr. Sheikh has impassionedly submitted that as the guardian of 
the people’s Fundamental Rights this Court is under a constitutional obligation to 
Constitution Petitions No. 60 & 61 of 2010 
11 
ensure that affirmative or negative investigatorial and prosecutorial jurisdiction 
and discretionary role of the concerned institutions of the State do not fall in the 
hands of those the validity of whose appointment or impartiality of their conduct 
is clouded with doubts of serious nature. 
 
14. 
As against that Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the 
Federation of Pakistan has argued that the Constitution Petitions in hand are not 
maintainable as the requisite requirements of Article 184(3) of the Constitution 
are not fulfilled by them. He has submitted that although the issue raised in these 
petitions involves a question of public importance yet that issue is not of 
enforcement of Fundamental Rights or access to justice. According to him, it is a 
case of appointment to a public office which is an executive office and not a 
judicial office and, therefore, such appointment is not relevant to access to justice. 
He has referred in this respect to the cases of Jamat-e-Islami through Amir and 
others v. Federation of Pakistan and others (PLD 2009 SC 549) and All Pakistan 
Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 
SC 600). 
 
15. 
Mr. Pirzada has further argued that two Constitution Petitions (Rashid A. 
Akhund v. President of Pakistan (Constitution Petition No. 2936 of 2010) and 
Muhammad Siddique Mirza v. Federal Government of Pakistan (Constitution 
Petition No. 2931 of 2010)) challenging the same appointment of the respondent 
are presently pending before the High Court of Sindh and in view of pendency of 
those petitions before the High Court of Sindh this Court may await the decision 
of those petitions so as to be benefitted by the views of the High Court on the 
subject. He has maintained that after the recent amendment of Article 186A of the 
Constitution through the 18th Amendment of the Constitution it is no longer 
possible for this Court to lift those petitions from the High Court and to hear and 
decide the same itself. 
 
16. 
Mr. Pirzada has also argued that the objections raised by the Leader of the 
Opposition in the National Assembly against the respondent’s appointment as 
Chairman, National Accountability Bureau are based upon presumptive fears and 
a prayer based upon a presumptive fear cannot be entertained by this Court. 
Entertaining such a prayer, according to him, would only call for an “academic 
exercise in respect of unborn issues” and in support of this argument he has 
referred to the cases of Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan 
Constitution Petitions No. 60 & 61 of 2010 
12 
and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 
SC 853) and Muhammad Rafiq Tarrar v. Justice Mukhtar Ahmad Junejo, Acting 
Chief Election Commissioner and 6 others (PLD 1998 Lahore 461). According to 
Mr. Pirzada, the objections of the Leader of the Opposition in the National 
Assembly to the respondent’s appointment as Chairman, National Accountability 
Bureau are baseless and for such objections some past conduct of the respondent 
has been relied upon whereas the question regarding the respondent’s impartiality 
cannot be determined without appreciating severance of his ties with the past on 
account of his remaining a Judge and Chief Justice of the High Court of Sindh 
and then a Judge of this Court. He has referred in this context to the case of 
Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. (PLD 1976 SC 57). 
 
17. 
As regards the issue of ‘consultation’ provided for by the provisions of 
section 6(b)(i) of the National Accountability Ordinance, 1999 Mr. Pirzada has 
maintained that the ‘consultation’ contemplated by section 6(b)(i) is a 
consultation between two political leaders and such political consultation is 
different from constitutional consultation. He has gone on to submit that in his 
letters to the Prime Minister the Leader of the Opposition in the National 
Assembly had never raised the point that the necessary consultation had to be 
done by the President and not by the Prime Minister and, thus, the Leader of the 
Opposition in the National Assembly is now estopped from raising such an 
objection.  
 
18. 
Mr. Pirzada has emphasized that in the ‘consultation’ contemplated by the 
provisions of section 6(b)(i) of the National Accountability Ordinance, 1999 no 
primacy is available to the Leader of the Opposition in the National Assembly 
who is merely a consultee and a consultee’s opinion cannot be accepted as 
binding and if that were to be so accepted then, according to him, the power of 
appointment of Chairman, National Accountability Bureau would practically vest 
in the Leader of the Opposition in the National Assembly which was never the 
intention of the relevant law. He has submitted that before the respondent’s 
appointment as Chairman, National Accountability Bureau the Prime Minister had 
indeed consulted the Leader of the Opposition in the National Assembly and such 
consultation was sufficient for the purposes of section 6(b)(i) of the National 
Accountability Ordinance, 1999. 
 
Constitution Petitions No. 60 & 61 of 2010 
13 
19. 
It has forcefully been argued by Mr. Pirzada that the Chief Justice of 
Pakistan was not a statutory consultee at the time of appointment of the 
respondent as Chairman, National Accountability Bureau and, therefore, nothing 
turns on failure of the President or the Prime Minister to consult him before the 
respondent’s appointment. He has submitted that on the basis of a 
recommendation made by this Court in the case of Khan Asfandyar Wali and 
others v. Federation of Pakistan and others (supra) the relevant law had been 
amended and the Chief Justice of Pakistan was made a consultee in the matter but 
subsequently the law was amended again and the provision regarding the Chief 
Justice of Pakistan being a consultee in the matter was deleted and that 
amendment in the relevant law has never been challenged by anybody so far. He 
has further submitted that the above mentioned recommendation made by this 
Court was merely an obiter dictum which was, at best, entitled only to respect and 
not enforceability. 
 
20. 
Mr. Pirzada has not disputed that the power of appointment of Chairman, 
National Accountability Bureau is not a discretionary power of the President of 
Pakistan and by virtue of the provisions of Article 48(1) of the Constitution the 
President is obliged and bound to act on the advice of the Prime Minister in the 
matter of such appointment. He has also not denied that in the earlier appointment 
of the respondent as Chairman, National Accountability Bureau on 8th October, 
2010 the President had not acted on any advice of the Prime Minister in that 
regard but he has hastened to add that on that occasion there was a substantial 
compliance of the spirit of Article 48(1) of the Constitution as well as of section 
6(b)(i) of the National Accountability Ordinance, 1999 and the Rules of Business 
of the Federal Government. He has maintained in this context that for the 
purposes of coexistence and survival of section 6(b)(i) of the National 
Accountability Ordinance, 1999 with Article 48(1) of the Constitution section 
6(b)(i) of the National Accountability Ordinance, 1999 is to read down so as to 
adjust with the mandate of Article 48(1) of the Constitution.  
 
21. 
It has lastly been submitted by Mr. Pirzada that fresh appointment of the 
respondent as Chairman, National Accountability Bureau on 9th February, 2011 
had been made by the President of Pakistan on the advice of the Prime Minister 
and, therefore, the constitutional lacuna, if any, in his earlier appointment as such 
on 8th October, 2010 stood properly removed and rectified. He has further 
maintained that the fresh appointment of the respondent as Chairman, National 
Constitution Petitions No. 60 & 61 of 2010 
14 
Accountability Bureau on 9th February, 2011 is to be considered as in continuity 
of his earlier appointment as such on 8th October, 2010 and such fresh 
appointment cannot be considered as an appointment for a different and new term 
of office. 
 
22. 
Dr. Khalid Ranjha, Sr. ASC appearing for Mr. Justice (Retired) Syed 
Deedar Hussain Shah has submitted that these Constitution Petitions are in the 
nature of quo warranto and certiorari and have been filed under Order XXV rule 
6 of the Supreme Court Rules, 1980 whereas two Constitution Petitions 
(Constitution Petition No. 2931 of 2010 and Constitution Petition No. 2936 of 
2010) filed by some other persons regarding the same issue are already pending 
before the High Court of Sindh and, therefore, this Court should await the 
decision and views of the High Court on the matter before proceeding further with 
these petitions. 
 
23. 
Quite contrary to the stand taken by Mr. Abdul Hafeez Pirzada, Sr. ASC 
appearing for the Federation of Pakistan, Dr. Ranjha has maintained that the 
necessary advice under Article 48(1) of the Constitution had in fact been tendered 
by the Prime Minister to the President before the respondent’s first appointment 
as Chairman, National Accountability Bureau on 8th October, 2010 and by virtue 
of the provisions of Article 48(4) of the Constitution the question whether any, 
and if so what, advice was tendered to the President by the Prime Minister cannot 
be inquired into by this Court. He has also submitted that a judgment of facts by a 
constitutional functionary is not to be gone into by a court of law and in this 
regard he has referred to the cases of Aftab Ahmad Khan Sherpao v. Sardar 
Farooq Ahmad Khan Leghari and others (PLD 1997 Peshawar 93) and Mian 
Manzoor Ahmad Wattoo v. Federation of Pakistan and 3 others (PLD 1997 
Lahore 38). He has further maintained in this context that under Articles 46 and 
91 of the Constitution the Prime Minister and the Federal Ministers are required 
to inform, aid and advise the President and that function had duly been performed 
by the Prime Minister before the respondent’s first appointment as Chairman, 
National Accountability Bureau on 8th October, 2010. 
 
24. 
Dr. Ranjha has also argued that the process of appointment of the 
respondent as Chairman, National Accountability Bureau had been initiated after 
the express orders of this Court passed in the case of The Bank of Punjab v. Haris 
Steel Industries (Pvt.) Ltd. and others (supra) and in the judgment delivered in 
Constitution Petitions No. 60 & 61 of 2010 
15 
that case this Court had directed that an appointment to the office of Chairman, 
National Accountability Bureau was to be made in terms of section 6(b)(i) of the 
National Accountability Ordinance, 1999 and no direction had been made in that 
judgment for an appointment to be made in terms of the requirements of Article 
48(1) of the Constitution. It has been maintained by Dr. Ranjha that the provisions 
of section 6(b)(i) of the National Accountability Ordinance, 1999 had been fully 
complied with while appointing the respondent as Chairman, National 
Accountability Bureau for the first time on 8th October, 2010. He has further 
submitted that in the matter of that appointment the Prime Minister had to walk on 
a tight rope creating a balance between the above mentioned judgment of this 
Court, the provisions of section 6(b)(i) of the National Accountability Ordinance, 
1999 and the mandate of Article 48(1) of the Constitution. 
 
25. 
While dilating upon the meanings of the word ‘consultation’ used in 
section 6(b)(i) of the National Accountability Ordinance, 1999 Dr. Ranjha has 
referred to Black’s Law Dictionary and has maintained that consultation does not 
mean persuasion or approval of the consultee.   
 
26. 
Dr. Ranjha has summed up his arguments with a plea that the respondent 
is a very dignified and honourable man and he is not to be held at fault for others’ 
lack of correct understanding or application of the Constitution or the law, if any. 
 
27. 
Maulvi Anwarul Haq, the learned Attorney-General for Pakistan, 
appearing on the Court’s notice has admitted that the matter of appointment of 
Chairman, National Accountability Bureau does not fall within the discretionary 
powers of the President and for such appointment the President has to act upon an 
advice tendered to him by the Prime Minister in terms of Article 48(1) of the 
Constitution. He has, however, maintained that the earlier appointment of the 
respondent as Chairman, National Accountability Bureau on 8th October, 2010 
was in consonance with the spirit of Article 48(1) of the Constitution, section 
6(b)(i) of the National Accountability Ordinance, 1999 and the Rules of Business 
of the Federal Government because in the matter of that appointment the Prime 
Minister was actively involved, he had consulted the Leader of the Opposition in 
the National Assembly and had then ‘seen’ the summary forwarded to the 
President for the respondent’s appointment although no formal advice was 
tendered by him to President in that regard. The learned Attorney-General has 
gone on to submit that the earlier appointment of the respondent as Chairman, 
Constitution Petitions No. 60 & 61 of 2010 
16 
National Accountability Bureau on 8th October, 2010 had subsequently been 
cancelled and he had again been appointed to that office on 9th February, 2011 
after removal of the constitutional defect in his earlier appointment. He has, thus, 
maintained that the present appointment of the respondent as Chairman, National 
Accountability Bureau is without any constitutional or legal blemish and, 
therefore, the petitions in hand should be dismissed. Like Mr. Abdul Hafeez 
Pirzada, Sr. ASC appearing for the Federation of Pakistan, the learned Attorney-
General has also maintained that the Chief Justice of Pakistan is not a 
constitutionally or statutorily recognized consultee in the matter of appointment of 
Chairman, National Accountability Bureau and, thus, absence of consultation with 
him in the matter cannot vitiate an appointment made to that office 
 
28. 
After hearing Mr. Shahid Orakzai petitioner in person and the learned 
counsel for the other parties as well as the learned counsel for the Federation of 
Pakistan and the learned Attorney-General for Pakistan at great length on many 
dates of hearing and after going through the relevant record of this case with their 
able assistance we have observed that the respondent namely Mr. Justice (Retired) 
Syed Deedar Hussain Shah was appointed Chairman, National Accountability 
Bureau not once but twice. Initially he was appointed to that office by the 
President of Pakistan on 7th October, 2010 in terms of section 6(b)(i) of the 
National Accountability Ordinance, 1999 (which section specifies a term of four 
years for that office) and a Notification in that regard was issued on 8th October, 
2010. After such appointment the respondent had actually been discharging the 
duties and performing the functions of that office till 9th February, 2011 when 
through another Notification of that date the President withdrew/recalled his 
earlier order dated 7th October, 2010 whereby the respondent had been appointed 
Chairman, National Accountability Bureau and consequently the earlier 
Notification dated 8th October, 2010 was rescinded/cancelled. On the same date, 
i.e. 9th February, 2011 the President, through the same Notification of that date, 
again appointed the respondent as Chairman, National Accountability Bureau in 
terms of section 6(b)(i) of the National Accountability Ordinance, 1999, i.e. for a 
term of four years in office “with immediate effect”. We have already observed 
above that as cancellation of the respondent’s earlier appointment and his fresh 
appointment as Chairman, National Accountability Bureau had come about during 
the pendency and hearing of the present petitions and as the said development had 
been brought to the notice of this Court by the Federation of Pakistan itself, 
therefore, we had decided to treat that development as a part of the pending issue 
Constitution Petitions No. 60 & 61 of 2010 
17 
and had decided to determine its effect on the same without requiring the 
petitioners to amend their petitions in respect of such development. There is no 
gainsaying the fact that the law is by now quite settled that a Court seized of a 
matter can not only take notice of any relevant development taking place during 
the pendency of the lis but it can also mould the relief to be granted keeping in 
view such development and none of the learned counsel representing different 
parties to the present petitions has disputed that legal position or has objected to 
the course adopted by us in that regard. Most of the arguments addressed before 
this Court in connection with the present petitions had been addressed in respect 
of the first appointment of the respondent on 8th October, 2010 but all such 
arguments had been reduced to those of academic interest only because during the 
pendency of these petitions the respondent’s first appointment had been revoked 
on 9th February, 2011. We have, therefore, decided to, as far as possible, avoid 
making any comment on the arguments addressed before the Court in respect of 
the respondent’s first appointment and have further decided to determine the fate 
of the present petitions mainly on the basis of the arguments addressed before the 
Court in respect of the second appointment of the respondent which had come 
about and had commenced on 9th February, 2011. 
 
29. 
In the case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and 
others (supra) this Court had made some detailed comments in respect of the 
reasons behind promulgation of the National Accountability Ordinance, 1999, the 
qualifications for holding the office of Chairman, National Accountability 
Bureau, the consultees in the matter of his appointment and the important duties 
to be discharged and the prestigious functions to be performed by him. It had been 
observed by this Court in that case as follows:   
 
 
“37. 
The National Accountability Bureau Ordinance being Ordinance No. 
XVIII of 1999 was promulgated on 16th November, 1999, inter alia, "to provide 
for effective measures for the detection, investigation, prosecution and speedy 
disposal of cases involving corruption, corrupt practices, misuse or abuse of 
power or authority, misappropriation of property, taking of kick-backs, 
commissions and for matters connected and ancillary or incidental thereto." And 
for "recovery of outstanding amounts from those persons who have committed 
default in re-payment of amounts to banks, financial institutions, government 
agencies and other agencies." The persons liable to be proceeded against, 
arrested and prosecuted under the said Ordinance, as per section 9 thereof read 
with section 5(m), included persons of the level and status of the sitting Prime 
Minister, the sitting Chairman of the Senate, the sitting Speaker of the National 
Assembly, Federal Ministers, Attorney General, the sitting Chief Ministers, the 
sitting Speakers of the Provincial Assemblies, Provincial Ministers, Members of 
the Parliament and Members of the Provincial Assemblies. And the person 
empowered to initiate and take such-like steps against such-like accused persons 
and others, including ordering their arrest, their prosecution and even 
confiscation of their properties, was the Chairman of the said Bureau. The 
Constitution Petitions No. 60 & 61 of 2010 
18 
provisions of section 6(b) of the said Ordinance then talked of the appointment 
and the terms and conditions of the office of the said Chairman, as originally 
enacted, was in the following terms:-- 
  
"6(b) Chairman National Accountability Bureau: 
  
(i) There shall be a Chairman NAB to be appointed by the 
President for such period as the Chief Executive of Pakistan 
may determine and consider proper and necessary. 
  
(ii) The Chairman NAB shall be appointed on such terms and 
conditions and shall have the status and privileges as may be 
determined by the Chief Executive. 
  
(iii) The Chairman NAB may resign his office by writing 
under his hand addressed to the Chief Executive." 
  
The matter of accountability under the said Ordinance and the status of the 
persons charged with the responsibilities envisaged by the said Ordinance came 
to be examined by this Court in Khan Asfand Yar Wali's case (PLD 2001 SC 
607). This Court was appalled to find that no qualifications stood prescribed for 
persons who could be appointed as officers with the above kind of high 
obligations nor did such like officers, who stood commanded to proceed even 
against the sitting Prime Minister, have any security of service or of any terms 
and conditions of their service. It was, therefore, found imperative by this Court 
that the office of the Chairman should be made secure and strong and be manned 
by persons of high qualities to be able to cope with the high degree of 
responsibilities cast on it. It had consequently been observed through para-288 
of the above-mentioned judgment that the Chairman of the NAB should be 
appointed by the President in consultation with the Chief Justice of Pakistan; 
that the tenure of his office be secured; that he should also be protected against 
removal from office and should not be removable from the said office except on 
grounds on which a Judge of the Supreme Court could be removed and that the 
salary and allowances etc. to which such a Chairman was entitled should also be 
fixed and determined and should not be allowed to be varied during the term of 
his office. 
  
38. It was in view of these recommendations and observations made by this 
Court through the above-mentioned judgment delivered in April, 2001 that 
amendments were made in the above-mentioned Ordinance through an 
Amending Ordinance No. XXXVI of 2001 which was promulgated on August, 
10, 2001 and the substituted provisions of section 6(b) above-quoted then read 
as under:-- 
  
"(b) Chairman National Accountability Bureau: 
  
(i) there shall be a Chairman NAB to be appointed by the 
President in consultation with the Chief Justice of Pakistan for 
a period of three years on such terms and conditions as may be 
determined by the President and shall not be removed except 
on the grounds of removal of Judge of Supreme Court of 
Pakistan." 
  
39.  
It may, however, be mentioned that in the month of November, 2002, 
amongst others, a new subsection (ba) was added to the above-mentioned 
section 6 through the Amending Ordinance No. CXXXIII of 2002 whereby the 
qualifications for a person to be appointed as the Chairman NAB were also 
prescribed which were as under: 
  
"6(ba) A person shall not be appointed as Chairman NAB 
unless he--- 
  
(i) is a retired Chief Justice or a Judge of the Supreme Court or 
a Chief Justice of a High Court; or 
  
(ii) is a retired officer of the Armed Forces of Pakistan 
equivalent to the rank of a Lieutenant General; or 
Constitution Petitions No. 60 & 61 of 2010 
19 
  
(iii) is a retired Federal Government Officer in BPS 22 or 
equivalent." 
  
But in the same breath, an amendment was also made in subsection (b) of the 
said section 6 whereby consultation with the Chief Justice of Pakistan in the 
matter of the said appointment was omitted. It may well have been just a 
coincidence but historically speaking the elimination of the Chief Justice of 
Pakistan from the said scene coincided with the General Elections in the country 
in the year 2002 after which elections serious allegations became public 
regarding the misuse of this NAB Ordinance for political purposes. 
  
40. 
 Be that as it may, what is still strikingly noticeable is that irrespective 
of the fact whether the said Chairman was appointable with or without the 
consultation of the Chief Justice of Pakistan, the fact remains that the 
qualifications prescribed for the said office are a definite indicator of the high 
status of the said office which is obviously in consonance with the high 
obligations cast on the incumbent i.e. a Chairman being a person who had held 
the office of the Chief Justice of Pakistan or of the Judge of the Supreme Court 
or of the Chief Justice of a High Court or was a retired officer of the Armed 
Forces of Pakistan of the rank of a Lieutenant General or who was a retired 
Federal Government Officer in BPS-22. 
  
41. 
 The reason for looking for a person of such an eminence and prestige 
for appointment as the Chairman of NAB is not far to find. A bare perusal of the 
provisions of sections 5(m), 7, 8, 12, 16(a), 18, 19, 20, 21, 22, 24, 25, 26 and 28 
of the said NAB Ordinance would show the importance and the momentousness 
of the office of the Chairman under the said Ordinance. He is the person to be 
consulted by the President of Pakistan for the appointment of a Deputy 
Chairman of the NAB and for the appointment of the Prosecutor-General 
Accountability; he appoints all other officers of the NAB; he is the one to decide 
whether to make or not to make a Reference with respect to corruption or 
corrupt practices and no Court could take cognizance of any such offence unless 
such a Reference was made by him or by an officer authorized by him; he is the 
one who could order initiation of proceedings under this Ordinance or order an 
inquiry or investigation in the matter; he is one who directs and authorizes 
arrests of accused persons under the said Ordinance; he is the one who has the 
power to freeze properties which are the subject matter of an offence under the 
said Ordinance and who could, in certain cases, even order sale of the said 
property and he has the authority to call for any record or information with 
respect to any matter covered by the NAB Ordinance. All Banks and Financial 
Institutions stand commanded to report all unusual financial transactions to him. 
It is he who stands authorized to communicate with foreign Governments for 
their assistance; he is the authority to accept plea-bargains and he is the one who 
has the power to tender pardon to any person accused of an offence under the 
said Ordinance. Needless to add that such like orders could be passed by him 
against any holder of any Public Office including a sitting Prime Minister of the 
country.” 
 
30. 
In the above mentioned case assumption of the office of Acting Chairman, 
National Accountability Bureau by a Deputy Chairman at a time when the office 
of Chairman was vacant had been declared to be illegal and it was inter alia 
directed by this Court as under: 
 
“(a) 
that the assumption of the office of Acting Chairman NAB by Javed 
Qazi, Deputy Chairman is illegal and it is, therefore, directed that a regular 
appointment to the vacant office of Chairman NAB be made in terms of section 
6 of the NAB Ordinance, 1999.” 
 
 
It was in that backdrop that the respondent herein namely Mr. Justice (Retired) 
Syed Deedar Hussain Shah had firstly been appointed Chairman, National 
Accountability Bureau on 8th October, 2010 and then upon withdrawal/recall of 
Constitution Petitions No. 60 & 61 of 2010 
20 
the order of his appointment dated 07.10.2010 and rescission/cancellation of the 
Notification dated 8th October, 2010 through the Notification dated 9th February, 
2011 he was appointed to that office again with effect from the last mentioned 
date. It is true that the subsequent appointment of the respondent on 9th February, 
2011 had been made by the President of Pakistan upon an advice tendered to him 
in that regard by the Prime Minister in terms of Article 48(1) of the Constitution 
but at the same time it is equally true that the said appointment had not been made 
in terms of section 6(b)(i) of the National Accountability Ordinance, 1999, as 
directed by this Court. Section 6(b)(i) of the National Accountability Ordinance, 
1999, as it stood on 9th February, 2011 and as it stands today, reads as follows: 
 
“There shall be a Chairman NAB to be appointed by the President in 
consultation with the Leader of the House and the Leader of the Opposition in 
the National Assembly for a non-extendable period of four years on such terms 
and conditions as may be determined by the President and shall not be removed 
except on the grounds of removal of Judge of Supreme Court of Pakistan. -----”  
 
It is not disputed that before appointment of the respondent as Chairman, National 
Accountability Bureau on 9th February, 2011 neither the President of Pakistan nor 
the Prime Minister had consulted the Leader of the Opposition in the National 
Assembly in any manner whatsoever and, thus, a mandatory requirement in that 
regard had remained unfulfilled. The learned counsel for the Federation of 
Pakistan has vehemently argued that the appointment of the respondent as 
Chairman, National Accountability Bureau on 9th February, 2011 was in fact in 
continuation of or in supersession of his appointment as such made on 8th 
October, 2010 and before the appointment made on 8th October, 2010 the Leader 
of the Opposition in the National Assembly had indeed been consulted. We have, 
however, remained unable to subscribe to this argument of the learned counsel for 
the Federation of Pakistan for the simple reason that the respondent’s appointment 
made on 9th February, 2011 was made “with immediate effect”, i.e. with effect 
from 9th February, 2011 and not with effect from 8th October, 2010 and at the time 
of such appointment it was never made clear either in the order passed by the 
President or in the Notification issued in that regard that the respondent’s fresh 
appointment on 9th February, 2011 was in continuation of or in supersession of his 
earlier appointment made on 8th October, 2010. In this view of the matter the 
respondent’s appointment as Chairman, National Accountability Bureau on 9th 
February, 2011 was, for all intents and purposes, a fresh appointment which 
required fresh mandatory consultation with the Leader of the Opposition in the 
National Assembly which, admittedly, was never resorted to. It is also not denied 
that before appointing the respondent for the second time, as in the case of his 
Constitution Petitions No. 60 & 61 of 2010 
21 
first appointment, no consultation had been made by the President or the Prime 
Minister with the Chief Justice of Pakistan as repeatedly recommended and 
suggested by this Court in the cases mentioned above.  
 
31. 
Mr. Shahid Orakzai petitioner has pointed out before us, and we have been 
intrigued to notice, that the Notification dated 8th October, 2010 as well as the 
Notification dated 9th February, 2011 carry the same number (No.F.8.(17)/2010-
A.I) and that surely was an absurdity because the President had recalled his order 
dated 7th October, 2010 on 9th February, 2011 and his recalling of that order could 
not have retrospective effect as the earlier order dated 7th October, 2010 and the 
Notification dated 8th October, 2010 had already been acted upon and during the 
period between 8th October, 2010 and 9th February, 2011, i.e. for a period of more 
than four months the respondent had actively been discharging the duties and 
performing the functions of the relevant office. We are quite sanguine that 
assigning the same number to two different Notifications issued on two different 
dates, which dates were months apart from each other, could not establish 
disappearance or evaporation of the respondent’s first appointment or the period 
spent by him in the office in that connection. We are of the considered opinion 
that adoption of such a stratagem or methodology could neither establish 
continuity in the term of office of the respondent nor could it superimpose the 
second appointment of the respondent upon his first appointment so as to portray 
the respondent’s second appointment as practically his first appointment or a 
continuation of his first appointment. It is noteworthy that the Notification dated 
9th February, 2011 withdrawing/recalling the President’s order of the respondent’s 
first appointment, rescinding/canceling the Notification dated 8th October, 2010 
and appointing him to the same office for the second time was not even a 
Corrigendum Notification seeking to rectify any mistake committed at the time of 
the respondent’s first appointment because in that case the subsequent 
Notification would have specified so but it certainly did not say so at all and 
instead the subsequent Notification categorically and unambiguously recalled and 
cancelled the respondent’s first appointment. In view of these irrefutable factors 
we have entertained no manner of doubt that the respondent’s two appointments 
were, for all intents and purposes as well as for all legal consequences, two 
distinct and separate appointments.   
 
32. 
It is of critical importance to mention here that according to section 6(b)(i) 
of the National Accountability Ordinance, 1999 a Chairman, National 
Constitution Petitions No. 60 & 61 of 2010 
22 
Accountability Bureau can be appointed by the President for a “non-extendable 
period of four years” and, likewise, by virtue of the provisions of section 8(a)(iii) 
of the same Ordinance a Prosecutor-General Accountability can hold that office 
for a “non-extendable period of three years”. While interpreting the term “non-
extendable period” this Court had observed and concluded in the case of The 
Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) as follows:  
“57. It is a position admitted even by Mr. Irfan Qadir that he had once earlier 
been appointed as the Prosecutor-General Accountability under section 8 of the 
said Ordinance of 1999 and that he had held the said office for a full term of 
three years i.e. from December, 2003 to December, 2006. The case of the 
petitioner-Bank is that there was a legal bar on his re-appointment to the same 
office while the case of Mr. Irfan Qadir is that the bar was only on the extension 
of the tenure and not on a fresh appointment of a person who had earlier held the 
office for a non-extendable term of three years. The relevant provisions of 
section 8 of the NAB Ordinance read as under: 
 "8(a)(iii) The Prosecutor-General Accountability shall hold 
office for a NON-EXTENDABLE PERIOD of three years." 
(Emphasis and under-lining has been supplied)  
58. The provisions of section 8(a) as they existed in the NAB Ordinance of 1999 
as originally enacted, read as under: 
"The Chairman NAB may appoint any person to act as the 
Prosecutor General Accountability, notwithstanding any other 
appointment or office the latter may concurrently hold, upon 
such terms and conditions as may be determined by the 
Chairman." 
It was on August 10, 2001 that through the Amending Ordinance No. XXXV of 
2001, amongst others, the original provisions of section 8(a) were substituted as 
under: 
“(i) The President of Pakistan, in consultation with the Chief 
Justice of Pakistan and Chairman NAB may appoint any 
person, who is qualified to be appointed as a Judge of the 
Supreme Court, as Prosecutor-General Accountability. 
(ii) The Prosecutor-General Accountability shall hold 
independent office on whole time basis and shall not hold 
any other office concurrently. 
(iii) The Prosecutor-General Accountability shall hold 
office for a period of three years. 
(iv) The Prosecutor-General Accountability shall not be 
removed from office except on the grounds of removal of 
a Judge of Supreme Court of Pakistan. 
(v) The Prosecutor-General Accountability may, by 
writing under his hand addressed to the President of 
Pakistan, resign his office.” 
It would be noticed that even through this amendment carried out in the 
year 2001, no specific provision was made either permitting or prohibiting 
the extension in the tenure of the Prosecutor-General's term of office. It 
was, however, on November 23, 2002 that through the Amending 
Ordinance No. CXXXVIII of 2002, the word "NON-EXTENDABLE" was 
Constitution Petitions No. 60 & 61 of 2010 
23 
added before the word "PERIOD" in clause (iii) of subsection (a) of 
section 8 of the said Ordinance of 1999. 
59. It would thus be noticed that making the three years term of the office 
of Prosecutor-General "NON-EXTENDABLE" was a specific and 
intentional insertion in the relevant provisions and meanings and effect 
was accordingly required to be given to the said deliberate and designed 
inclusion of the said word "NON-EXTENDABLE" in the said provisions. 
60. It had been submitted by Khawaja Haris Ahmed, the learned Senior 
Advocate Supreme Court that the addition of the word "NON-
EXTENDABLE" in the said provision was designed to emphasize the clear 
intention of the law-giver that a person who had once held the said office 
for a term of three years would not be eligible to hold that office any 
further either by way of stretching of the said period through extension of 
tenure or by manipulating the same through a fresh appointment. He had 
added that prefixing of word i.e. "EXTENDABLE” with a negative word 
i.e. "NON" was always indicative of the intensity of the command and the 
insistence on the mandatory nature of the compulsion. In this connection 
the learned counsel drew our attention to the Principles of STATUTORY 
INTERPRETATION by Guru Prasanna Singh, Tenth Edition, 2006 
(Extensively Revised & Enlarged), where the author deals with the use of 
negative words in the following terms:  
"Another mode of showing a clear intention that the 
provision enacted is mandatory is by clothing the 
command in a negative form. As stated by CRAWFORD: 
"Prohibitive or negative words can rarely, if ever, be 
directory. And this is so even though the statute provides 
no 
penalty 
for 
disobedience". 
As 
observed 
by 
SUBBARAO, J.: "Negative words are clearly prohibitory 
and are ordinarily used as legislative device to make a 
statute imperative." 
61. The learned counsel had further argued that it was an age-old principle 
too well-established by now that what the law did not allow to be achieved 
directly could never be permitted to be achieved indirectly. Reliance in this 
connection had been placed on the judgment delivered by this Court in the 
case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others 
(PLD 1993 SC 473) and on the case of Haji Muhammad Boota and others 
v. Member (Revenue), Board of Revenue, Punjab and others (PLD 2003 
SC 979). 
62. The word "EXTEND", according to the Oxford English Dictionary, 
means:-- 
"to stretch out, to stretch forcibly, to lengthen, to prolong" and the word 
"EXTENDABLE" means:-- 
"capable of being extended or stretched and capable of being enlarged in 
length or duration" 
"NON" is a Latin word which, again according to the Oxford English 
Dictionary, crept into the English language around the 14th century which 
is prefixed to nouns to indicate:-- 
"a negation or prohibition"          
63. The word "NON-EXTENDABLE" would thus mean, in the present 
context, a duration of time which was incapable of being enlarged or 
extended or lengthened or prolonged or stretched. And as has been 
mentioned above prefixing the word "EXTENDABLE" with a negative 
command only indicates the emphatic, prohibition vis-a-vis the 
enlargement of the duration of the period in question. The intention of the 
law-giver by inserting the said word through an amendment in the relevant 
Constitution Petitions No. 60 & 61 of 2010 
24 
provision is obvious i.e. that since the Prosecutor-General could be called 
upon to prosecute the holders of the highest of public offices in the country 
including the sitting Prime Minister, therefore, he should be a person who 
should be placed above all kinds of temptations and greed and should not 
at any time be looking for any favour from any quarter which could 
become a hindrance in his way of fearlessly discharging his said 
obligations. Needless to say that the competent authority in the matter of 
appointment of the Prosecutor-General is the President which President is 
obliged by the provisions of Article 48 of the Constitution to act in the 
matter only on the advice of the Prime Minister which Prime Minister, as 
has been noticed above, fell within the purview of the NAB Ordinance and thus 
liable to be prosecuted by the Prosecutor-General. This is also a principle too 
well established that where the intention of the legislature was clear and the 
object for which a law had been enacted was patent and evident then the Courts 
were not allowed to interpret such a law in a manner which could impede or 
defeat the object for which such a law had been enacted. Reference may be 
made to Mehram Ali's case (PLD 1998 SC 1445) and to Imtiaz Ahmed Lali's 
case (PLD 2007 SC 369). If the interpretation canvassed by Mr. Irfan Qadir, 
ASC was to be accepted then the same would not only defeat the clear object of 
the provision in question but would also lead to a blatant absurdity. It would be 
preposterous and irrational to declare that once an incumbent of the office of the 
Prosecutor-General had completed his term of three years then no one had the 
competence to extend or enlarge the said term even by one day but the same 
competent authority could instead grant him three years by appointing him 
afresh to the same office. In the recorded judicial history such a situation 
attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC 
626) and it was Lord Helsbury who declared for the first time that what was not 
permitted by law to be achieved directly could not be allowed to be achieved 
indirectly. And the said principle has been repeatedly acknowledged and 
followed by the Courts ever since then and the Courts in Pakistan are no 
exception in the said connection. The cases of Mian Muhammad Nawaz Sharif 
and Haji Muhammad Boota (Supra) are evidence to the said effect. 
64. Having thus examined all aspects of this legal proposition, we find that in 
view of the meanings of the words "NON-EXTENDABLE"; in view of all 
emphatic pre-fixation of a negative before the word "EXTENDABLE"; in view 
of the fact that the said word "NON-EXTENDABLE" was a considered and a 
specific insertion in the provision in question through an amendment; in view of 
the fact that no interpretation was permissible which could have effect of 
defeating the clear intention and object of legislature and finally in view of the 
fact that what could not be achieved directly could not be allowed to be 
accomplished indirectly, the fresh appointment of Mr. Irfan Qadir, Advocate 
Supreme Court as the Prosecutor-General Accountability could not be sustained 
on account of section 8(a)(iii) of the NAB Ordinance because he had already 
held the said office for a "NON-EXTENDABLE" term of three years. 
65. Consequently, it is held that the appointment in question of Mr. Irfan Qadir 
as the Prosecutor-General Accountability was not legally tenable.” 
The said judgment shows, and shows quite unmistakably, that the words “non-
extendable period” used by the relevant law with reference to appointment to an 
office in the National Accountability Bureau practically mean an appointment of a 
person for one term of office only and no fresh appointment of the same person 
can be made to that office whether he completes the original term of office or not. 
This is so because whether the original term of office is completed by him or not 
the person concerned would serve in that office for more than the fixed and “non-
extendable” period if he is appointed again to that office even after one day of his 
original appointment. We are conscious of the fact that in the above mentioned 
precedent case Mr. Irfan Qadir had completed his full term of office before he 
Constitution Petitions No. 60 & 61 of 2010 
25 
was appointed afresh for another full term of the relevant office and in the case 
before us the respondent namely Mr. Justice (Retired) Syed Deedar Hussain Shah 
had been appointed afresh before completion of his first term of office but we feel 
convinced that it would be very dangerous to hold that a fresh appointment made 
before completion of the term of an earlier appointment would not be hit by the 
negative command of the provision regarding “non-extendable period”. In our 
considered opinion permitting such a fresh appointment after premature 
discontinuation of an earlier appointment some time before expiry of the term of 
the earlier appointment is capable of grave misuse and abuse and would surely 
have the effect of extending the period of appointment beyond the maximum and 
“non-extendable” period provided by the law for the office. If such fresh 
appointment after premature discontinuation of the earlier appointment is made 
permissible then before the expiry of the first term the appointment would be 
terminated on the basis of some cooked up pretext, ruse or subterfuge and a 
favourite incumbent would be appointed afresh for another term of office and that 
surely would destroy the very spirit and the very object of the law in declaring 
that an appointment can be made for a “non-extendable period”. We have already 
observed above that upon his first appointment as Chairman, National 
Accountability Bureau the respondent had discharged his duties and had 
performed his functions from 8th October, 2010 to 9th February, 2011, i.e. for a 
period of more than four months and upon recalling/withdrawing of the order of 
his earlier appointment on 9th February, 2011 he was appointed again as 
Chairman, National Accountability Bureau “with immediate effect”, i.e. with 
effect from 9th February, 2011 “in terms of Section 6(b)(i) of the National 
Accountability Ordinance, 1999” which terms meant that even his fresh 
appointment was for a period of four years commencing on 9th February, 2011. 
We have been informed that after revocation of his first appointment the 
respondent had never relinquished the charge of his office and upon his second 
appointment he had never assumed the charge again and he had simply continued 
to hold that office as if nothing had happened and no break had taken place at all! 
Such a device adopted in the matter had, thus, unmistakably extended the total 
period of his appointment as Chairman, National Accountability Bureau beyond 
the maximum period of four years provided by the law and we are constrained to 
observe that through adoption of such a maneuver violence, if not fraud, had been 
committed upon the relevant statute. When confronted with this legal 
impossibility Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of 
Pakistan had very casually maintained that this Court could order reduction of the 
Constitution Petitions No. 60 & 61 of 2010 
26 
respondent’s second term of office of four years by deducting from it the period 
for which he had already served as Chairman, National Accountability Bureau on 
the basis of his first appointment. With deference to his seniority in the profession 
and charming mannerism in the Court we could only smile at the said suggestion 
made by Mr. Pirzada as the period for which a Chairman, National Accountability 
Bureau is to hold that office has been fixed by the law itself and no Court or 
authority has the power or jurisdiction to curtail that period as long as he holds 
that office and also because such power of reduction of his fixed term of office 
would impinge upon and detract from independence of that high office which 
independence must jealously be guarded. 
 
33. 
Mr. Shahid Orakzai’s reliance upon Articles 182 and 207 of the 
Constitution for maintaining that a retired Judge of the superior judiciary can be 
available for some other assignment till two or three years of his retirement and 
not after that and, thus, the respondent’s appointment as Chairman, National 
Accountability Bureau at the age of about seventy years amounts to ‘judicial 
indiscipline’ besides militating against the constitutional mandate regarding 
separation of the judiciary from the executive has been found by us to be inapt, 
though motivated with the best of intentions. The Constitution itself and many 
other laws expressly provide for various offices which a retired Judge of the 
superior judiciary can hold without any restriction regarding age and the National 
Accountability Ordinance, 1999 is one of such laws. Apart from that Article 
4(2)(b) of the Constitution stipulates that “no person shall be prevented from or be 
hindered in doing that which is not prohibited by law”. Other than raising some 
issues of propriety in this context Mr. Orakzai has not been able to refer to any 
law which prevented the respondent’s appointment as Chairman, National 
Accountability Bureau at the age of three scores and ten and, therefore, this 
contention of his may not detain us any further.  
 
 
 
34. 
Adverting to the question of maintainability of the present petitions raised 
by Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of Pakistan 
and Dr. Khalid Ranjha, Sr. ASC representing Mr. Justice (Retired) Syed Deedar 
Hussain Shah we may straightaway observe that the petitions in hand have been 
filed under Article 184(3) of the Constitution and it has been conceded before us 
by all concerned that these petitions certainly involve a question of public 
importance. After all, a Chairman, National Accountability Bureau is to deal with 
hundreds of inquiries, investigations, arrests and trials and thousands of people 
Constitution Petitions No. 60 & 61 of 2010 
27 
are affected by his decisions taken in those respects and those persons may 
include the serving Prime Minister, Chairman of the Senate, Speaker of the 
National Assembly, Federal Ministers, Attorney-General, Chief Ministers, 
Speakers of the Provincial Assemblies, Provincial Ministers, Members of the 
Parliament and Members of the Provincial Assemblies and, therefore, an 
appointment to that office is surely a matter of public importance. Mr. 
Muhammad Akram Sheikh, Sr. ASC has argued that many Fundamental Rights of 
the people of this country including right to life, right to liberty, due process of 
law, fair trial and access to justice are directly affected or influenced by a person’s 
appointment to the office of Chairman, National Accountability Bureau and we 
have found that the said argument of his finds sufficient support from the 
following observations made by this Court in the case of The Bank of Punjab v. 
Haris Steel Industries (Pvt.) Ltd. and others (supra) which observations have 
already been reproduced in the earlier part of this judgment but are being 
reproduced here again due to the necessity of context:  
 
“41. 
 The reason for looking for a person of such an eminence and prestige 
for appointment as the Chairman of NAB is not far to find. A bare perusal of the 
provisions of sections 5(m), 7, 8, 12, 16(a), 18, 19, 20, 21, 22, 24, 25, 26 and 28 
of the said NAB Ordinance would show the importance and the momentousness 
of the office of the Chairman under the said Ordinance. He is the person to be 
consulted by the President of Pakistan for the appointment of a Deputy 
Chairman of the NAB and for the appointment of the Prosecutor-General 
Accountability; he appoints all other officers of the NAB; he is the one to decide 
whether to make or not to make a Reference with respect to corruption or 
corrupt practices and no Court could take cognizance of any such offence unless 
such a Reference was made by him or by an officer authorized by him; he is the 
one who could order initiation of proceedings under this Ordinance or order an 
inquiry or investigation in the matter; he is one who directs and authorizes 
arrests of accused persons under the said Ordinance; he is the one who has the 
power to freeze properties which are the subject matter of an offence under the 
said Ordinance and who could, in certain cases, even order sale of the said 
property and he has the authority to call for any record or information with 
respect to any matter covered by the NAB Ordinance. All Banks and Financial 
Institutions stand commanded to report all unusual financial transactions to him. 
It is he who stands authorized to communicate with foreign Governments for 
their assistance; he is the authority to accept plea-bargains and he is the one who 
has the power to tender pardon to any person accused of an offence under the 
said Ordinance. Needless to add that such like orders could be passed by him 
against any holder of any Public Office including a sitting Prime Minister of the 
country.” 
    
The case of The Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. and others 
(supra) had stemmed from a Constitution Petition filed before this Court under 
Article 184(3) of the Constitution against assumption of the office of Acting 
Chairman, National Accountability Bureau by a Deputy Chairman, National 
Accountability Bureau at a time when the office of Chairman was lying vacant. 
That Constitution Petition was not only entertained by this Court but after full-
dressed hearing the same was allowed and assumption of the office of Acting 
Constitution Petitions No. 60 & 61 of 2010 
28 
Chairman by the Deputy Chairman was declared to be illegal. It goes without 
saying that if a Constitution Petition filed under Article 184(3) of the Constitution 
is maintainable before this Court against assumption of office of an Acting 
Chairman, National Accountability Bureau then no serious argument can be 
advanced against maintainability of such a petition against appointment of a 
Chairman, National Accountability Bureau. 
 
35. 
Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Federation of 
Pakistan and Dr. Khalid Ranjha, Sr. ASC representing Mr. Justice (Retired) Syed 
Deedar Hussain Shah have also maintained that two Constitution Petitions 
(Rashid A. Akhund v. President of Pakistan (Constitution Petition No. 2936 of 
2010) and Muhammad Siddique Mirza v. Federal Government of Pakistan 
(Constitution Petition No. 2931 of 2010)) challenging the self-same appointment 
of the respondent are presently pending before the High Court of Sindh and in 
view of pendency of those petitions before the High Court of Sindh this Court 
may await the decision of those petitions so as to be benefitted by the views of the 
High Court on the subject. Upon our request Mr. Pirzada has procured and 
produced before us a copy of the order dated 22.02.2011 passed in those petitions 
by a learned Division Bench of the High Court of Sindh which shows that the 
High Court of Sindh has decided to await the decision of this Court in the present 
petitions. In view of that order passed by the High Court of Sindh the above 
mentioned submission made by the learned counsel has lost its efficacy, if not its 
relevance as well. Apart from that, this aspect of the matter pertains only to an 
issue of propriety and not of jurisdiction as the provisions of Article 184(3) of the 
Constitution place no such restriction upon this Court in the matter of exercise of 
its jurisdiction under that provision of the Constitution. As already observed 
above, even the matter of propriety is no longer in issue in this context as the 
High Court of Sindh has itself decided to await the decision of these petitions by 
this Court before proceeding further vis-à-vis the relevant Constitution Petitions 
pending before it. 
 
36. 
The scope and interpretation of the word ‘consultation’ used in section 
6(b)(i) of the National Accountability Ordinance, 1999 have been intensely 
debated before us and, therefore, we must clarify the position in that regard. 
Section 6(b)(i) of the National Accountability Ordinance, 1999 provides for 
appointment of Chairman, National Accountability Bureau “by the President in 
consultation with the Leader of the House and the Leader of the Opposition in the 
Constitution Petitions No. 60 & 61 of 2010 
29 
National Assembly”. Before passage of the 18th Amendment of the Constitution 
the word ‘consultation’ had repeatedly been used in the Constitution particularly 
in the context of appointment of Chief Justices and Judges of the superior 
judiciary and in the case of Al-Jehad Trust and others v. Federation of Pakistan 
and others (PLD 1996 SC 324) this Court had held that a ‘consultation’ has to be 
“effective, meaningful, purposive, consensus-oriented, leaving no room for 
complaint of arbitrariness or unfairplay” and an identical interpretation of that 
word had also been advanced in the case of Al-Jehad Trust and another v. 
Federation of Pakistan and others (PLD 1997 SC 84). Subsequently in the case of 
Sindh High Court Bar Association v. Federation of Pakistan and 4 others (PLD 
2009 Karachi 408) the High Court of Sindh had held that for a consultation to be 
meaningful and purposive an “attempt should be made to reach at some 
consensus” and that the required consultative process should be in writing. The 
last occasion on which this Court had interpreted the word ‘consultation’ was in 
the case of Sindh High Court Bar Association and another v. Federation of 
Pakistan and others (PLD 2009 SC 879) wherein this Court had observed that “by 
all means the first priority has to be directed to evolving consensus between the 
consultees by mutual discussion of the merits and demerits of the concerned 
candidate.” In India it was held in the case of Justice K. P. Mohapatra v. Sri Ram 
Chandra Nayak and others (AIR 2002 SC 3578) that ‘consultation’ means 
“meeting of minds”. The context in the case of the National Accountability 
Ordinance, 1999 and the National Accountability Bureau created and established 
thereunder has, however, been found by us to be somewhat different from the 
above mentioned constitutional context. In the past not too distant complaints of 
persecution of the political opposition in the country by the government of the day 
through utilization of the National Accountability Bureau or its predecessor 
institutions had unfortunately been too many and willingness of the heads of such 
institutions to slavishly carry out and execute the vendetta of the government of 
the day against its opponents had also been shamefully rampant. It was in that 
background that at a time when there was no Parliament in existence this Court 
had recommended in the case of Khan Asfandyar Wali and others v. Federation of 
Pakistan and others (PLD 2001 SC 607) that in the matter of appointment of 
Chairman, National Accountability Bureau consultation ought to be made by the 
President with the Chief Justice of Pakistan and that recommendation had been 
given effect to through the National Accountability Bureau (Amendment) 
Ordinance XXXV of 2001 but subsequently through the National Accountability 
Bureau (Amendment) Ordinance CXXXIII of 2002 the Chief Justice of Pakistan 
Constitution Petitions No. 60 & 61 of 2010 
30 
had been excluded from the consultees and he was substituted by the Leader of 
the House and the Leader of the Opposition in the National Assembly who were 
to be consulted by the President before making an appointment of Chairman, 
National Accountability Bureau. That deletion had come about because by that 
time the Parliament had once again come into existence and consultation with the 
Leader of the Opposition in the National Assembly was expected to go a long way 
in allaying fears and apprehensions of the political opposition regarding its 
possible persecution and victimization by the government of the day through the 
National Accountability Bureau and its Chairman. The spirit of the amended 
provisions, thus, was that the Leader of the Opposition in the National Assembly 
would be taken on board, his opinion would be given due weight and 
consideration and he would have an effective say in the matter of appointment of 
Chairman, National Accountability Bureau so that the political opposition in the 
country may not have an occasion to cry foul in the matter.  
 
37. 
As time progressed another dimension stood added to the issue when, 
apart from apprehended persecution of the political opposition, the National 
Accountability Bureau, which happens to be a premier and high-profile anti-
corruption institution of the country, started being perceived as an institution 
which was possibly being misused for covering up corruption at high places and 
such cover up was perceived to be controlled and managed through appointment 
of its handpicked Chairman. It was in that backdrop that in the case of Dr. 
Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 
265) this Court reiterated its earlier recommendation and suggestion with regard 
to consultation with the Chief Justice of Pakistan in the matter of appointment of 
Chairman, National Accountability Bureau. That recommendation and suggestion 
was once again repeated by this Court in the case of The Bank of Punjab v. Haris 
Steel Industries (Pvt.) Ltd. and others (supra). It must be appreciated that 
consultation with the Leader of the Opposition in the National Assembly and 
consultation with the Chief Justice of Pakistan are, in the developing scenario, 
essentially meant for separate noble and laudable purposes which are both 
directed towards achieving the very objects for which the National Accountability 
Bureau was established, i.e. elimination of corruption by persons holding public 
offices and achievement of such objects through a process which is just, fair, 
impartial and evenhanded. The purpose of consulting the Leader of the 
Opposition in the National Assembly essentially is to pacify the apprehensions of 
the political opposition in the country regarding its possible victimization and 
Constitution Petitions No. 60 & 61 of 2010 
31 
persecution and that purpose cannot be served if the opinion of the Leader of the 
Opposition in the National Assembly in respect of a proposed appointment is 
brushed aside or bulldozed which would surely be incentive-incompatible. The 
spirit of such consultation appears to be that it should aim at developing a 
consensus and it should manifestly be shown that a serious, sincere and genuine 
effort is made towards evolving a consensus because otherwise the consultation 
would neither be meaningful or purposive nor consensus-oriented. Similarly, 
corruption being an unfortunate bane of our society in the current phase of our 
history and even the high public offices being not immune from serious 
allegations in that regard, leaving the matter of appointment of the head of the 
most important anti-corruption institution in the country in the hands only of those 
very persons who could possibly, in future or present, be a subject of inquiries, 
investigations or trials for corruption would, apart from giving rise to the issue of 
conflict of interest, defeat the very object of the relevant law and would, thus, also 
prejudicially affect, directly or indirectly, the Fundamental Rights of the citizens 
at large. This is where the Chief Justice of Pakistan comes in as a consultee in his 
capacity as a guardian and defender of the constitutional and legal rights of the 
people at large. The Chief Justice of Pakistan can also play a salutary role in the 
matter of such appointment particularly when there is a serious difference of 
opinion between the other consultees over a proposed appointment of Chairman, 
National Accountability Bureau. The role of the Chief Justice of Pakistan as a 
neutral arbiter in disagreements, differences or disputes over matters of national 
importance already stands recognized by the Constitution itself through Articles 
152 and 159(4) thereof. Under Article 152 of the Constitution if there is a 
disagreement between the Federation and a Province over the terms of acquisition 
by the Federation of any land belonging to the Province then the terms of that 
acquisition are to be determined by an arbitrator appointed by the Chief Justice of 
Pakistan. Likewise, under Article 159(4) of the Constitution if any question arises 
whether any condition imposed by the Federal Government on any Provincial 
Government in respect of entrustment of functions with respect to broadcasting 
and telecasting is lawfully imposed or whether any refusal by the Federal 
Government to entrust such functions is unreasonable then that question is to be 
determined by an arbitrator appointed by the Chief Justice of Pakistan. It may 
advantageously be mentioned here that Mr. Shahid Orakzai petitioner has drawn 
our attention to the provisions of Article 213 of the Constitution regarding 
appointment of the Chief Election Commissioner and with reference to the first 
proviso to clause (2B) of that Article he has pointed out that if the required 
Constitution Petitions No. 60 & 61 of 2010 
32 
‘consultation’ between the Prime Minister and the Leader of the Opposition in the 
National Assembly in that respect does not result in a ‘consensus’ then the matter 
is to be referred to a neutral and bipartisan body. We feel that the spirit of that 
provision of the Constitution can also be pressed into service in the matter of 
appointment of Chairman, National Accountability Bureau in case of a lack of 
consensus between the statutory consultees. We, therefore, reiterate the 
importance of consulting the Chief Justice of Pakistan in the matter of 
appointment of Chairman, National Accountability Bureau and expect that the 
recommendations and suggestions repeatedly made by this Court in that regard 
through different judgments handed down by it from time to time shall be given 
effect to in all future appointments to that office. We entertain no manner of doubt 
that anybody interested in making an honest and good appointment to that office 
would not feel shy of consulting the Chief Justice of Pakistan in that connection.       
 
38. 
On the basis of the discussion made above we have arrived at an 
irresistible and inescapable conclusion that the appointment of Mr. Justice 
(Retired) Syed Deedar Hussain Shah as Chairman, National Accountability 
Bureau by the President of Pakistan on 9th February, 2011 is ultra vires the letter 
as well as the spirit of section 6(b)(i) of the National Accountability Ordinance, 
1999 and through such illegal appointment the Fundamental Rights of the people 
of this country including their right to life, right to liberty, due process of law, fair 
trial and access to justice are adversely affected. Both these Constitution Petitions 
are, therefore, accepted and the appointment of Mr. Justice (Retired) Syed Deedar 
Hussain Shah as Chairman, National Accountability Bureau is declared as illegal 
and ultra vires. He shall cease to hold the said office forthwith. It is directed that a 
fresh appointment to the vacant office of Chairman, National Accountability 
Bureau be made without any delay. 
 
39. 
The above are the reasons for the short order passed by us on 10.03.2011 
which read as follows: 
 
“For the reasons to be recorded separately, these petitions are accepted and the 
appointment of Mr. Justice (R) Syed Deedar Hussain Shah as Chairman, 
National Accountability Bureau (NAB) is hereby declared as illegal and ultra 
vires and he shall cease to hold that office forthwith.” 
 
40. 
Before parting with this judgment we are constrained to observe that the 
matter of appointment of Mr. Justice (Retired) Syed Deedar Hussain Shah as 
Chairman, National Accountability Bureau has been handled by the Ministry of 
Law, Justice and Parliamentary Affairs, Government of Pakistan in a manner 
Constitution Petitions No. 60 & 61 of 2010 
33 
depicting shallow and perfunctory understanding of the Constitution and the 
relevant law and in the process the former Honourable Judge of this Court has 
suffered for no fault of his own. It is because of his two appointments to that 
office, both botched and messed up by that Ministry’s wrong legal advice to the 
relevant quarters, that he now stands disqualified to be appointed to that office 
again on account of the provision regarding “non-extendable period” contained in 
section 6(b)(i) of the National Accountability Ordinance, 1999, as interpreted 
through the judgments of this Court handed down in the case of The Bank of 
Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and in the present 
case. We also note with some concern that the office of the Prosecutor-General 
Accountability in the National Accountability Bureau is lying vacant for the last 
about half a year with no serious effort having been made to fill that important 
office. It is also directed that a regular appointment to the said office be made 
without further loss of time.   
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Judge 
 
Islamabad 
10.03.2011 
Approved for reporting. 
 
M. Yasin*/