IN THE SUPREME COURT OF PAKISTAN 
(Constitutional Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Javed Iqbal 
Mr. Justice Khilji Arif Hussain 
Mr. Justice Asif Saeed Khan Khosa  
 
 
Constitution Petition No. 29 of 2011 
 
 
Al-Jehad Trust and another                                                              … Petitioners 
 
versus  
 
Federation of Pakistan and others                                                  … Respondents  
 
 
 
For the petitioners: 
Mr. Habibul Wahab Alkhairi, ASC 
 
 
For the Federation of  
Pakistan: 
Maulvi Anwarul Haq, Attorney-General for 
Pakistan 
  
For respondents No. 3 & 5: 
Mr. Wasim Sajjad, Sr. ASC with Mr. Fawzi 
Zafar, 
Additional 
Prosecutor-General, 
National Accountability Bureau with Syed 
Safdar Hussain, AOR 
 
For respondents No. 2, 4 &  
6 to 8: 
Nemo 
 
 
 
Date of hearing: 
 
 
01.06.2011 
 
 
JUDGMENT 
 
  
Asif Saeed Khan Khosa, J.:      In his report published in THE NEWS 
International, Islamabad on March 29, 2011 Mr. Ansar Abbasi, a reputed and 
respected journalist, had commented that the National Accountability Bureau, 
repeatedly acknowledged by this Court as the premier anti-corruption institution 
of the country, is facing a slow and painful death at the hands of those at the helm 
of affairs of the country and the said comment has, in the backdrop of the 
circumstances of the present case, been found by us to be not far from the reality. 
A copy of that newspaper report has been appended by the petitioners with the 
paper-book of this petition at page No. 80 thereof. The scheme of the National 
Constitution Petition No. 29 of 2011 
2 
Accountability Ordinance, 1999 manifests that the Chairman, National 
Accountability Bureau is the linchpin of that institution and the Prosecutor-
General Accountability plays the pivotal role in all the prosecutions conducted by 
the National Accountability Bureau. It is unfortunate that for the last about three 
months no person is holding the office of the Chairman, National Accountability 
Bureau and even the office of the Prosecutor-General Accountability is lying 
vacant for the last about three quarters of a year and the persons at the helm of 
affairs have not demonstrated any interest in filling the vacancies in those 
important offices in the near future. In the case of The Bank of Punjab v. Haris 
Steel Industries (Pvt.) Ltd. and others (PLD 2010 SC 1109) this Court had 
declared that in case of a vacancy in the office of the Chairman, National 
Accountability Bureau nobody can be appointed as an Acting Chairman or can act 
as the Chairman. We have been informed that from time to time some powers 
vesting in the Chairman, National Accountability Bureau had been delegated to 
the Deputy Chairman of the said institution and on account of the current vacancy 
in the office of the Chairman Mr. Javed Zia Qazi, Deputy Chairman, National 
Accountability Bureau, respondent No. 5 herein, is running the National 
Accountability Bureau with those delegated powers of the Chairman. Through 
this Constitution Petition filed under Article 184(3) of the Constitution the 
petitioners, i.e. Al-Jehad Trust and its Raeesul Mujahideen Mr. Habibul Wahab 
Alkhairi have called in question the present state of affairs of the National 
Accountability Bureau and with reference to the same they have made the 
following prayers and have sought the following reliefs from this Court: 
 
a) The appointment of respondent No. 5 namely Mr. Javed Zia Qazi as 
Deputy Chairman, National Accountability Bureau on 05.06.2010 may 
be set aside; 
 
b) Respondent No. 5 is to retire from the civil service on 30.04.2011 and, 
thus, he may be restrained from performing the duties of the Deputy 
Chairman, National Accountability Bureau and also from exercising the 
delegated powers of the Chairman, National Accountability Bureau; 
 
c) The respondents may be restrained from passing any order regarding 
extension in the service of respondent No. 5; 
 
d) The order passed by the then Chairman, National Accountability 
Bureau on 15.10.2010 delegating some of his powers to respondent No. 
5 may be declared to be illegal and the same may be set aside; and 
 
e) Any other relief which is deemed necessary by this Court. 
 
(English translation of the prayers made and the 
reliefs prayed for in Urdu language) 
 
Constitution Petition No. 29 of 2011 
3 
2. 
We have heard Mr. Habibul Wahab Alkhairi petitioner appearing in 
person, Mr. Wasim Sajjad, Sr. ASC appearing for respondents No. 3 and 5 and 
Maulvi Anwarul Haq, Attorney-General for Pakistan at some length and have 
gone through the relevant record of this case with their assistance. The remaining 
respondents have failed to enter appearance before us. 
 
3. 
Mr. Wasim Sajjad, Sr. ASC appearing for respondents No. 3 and 5 has 
raised a preliminary objection regarding maintainability of this Constitution 
Petition and he has argued that there is no question of public of importance 
involved in this petition and no fundamental right of the petitioners has been 
shown to have been violated or abridged and, therefore, the prerequisites for filing 
and entertaining a petition under Article 184(3) of the Constitution do not stand 
attracted to the petition in hand. He has maintained that the petition in hand, at its 
best, is based upon wild, unspecific and generalized averments and allegations 
disclosing neither any personal injury to or particular grievance of the petitioners 
nor any specific relief has been prayed therein for the benefit of the petitioners 
themselves. In support of his objection to maintainability of this Constitution 
Petition he has relied upon an unreported judgment passed by this Court on 
26.05.2005 in the case of Syed Ihsanullah Waqas v. The Federation of Pakistan 
and others (CMA No. 11 of 2005 in Constitution Petition No. Nil of 2005 & 
CMA No. 2227 of 2005 in CMA No. 11 of 2005) and has also made a reference 
to a book titled Public Interest Litigation authored by Dr. B. L. Wadehra (Second 
Edition, published by the Universal Law Publishing Co. Pvt. Ltd., India). After 
attending to the objection raised by Mr. Wasim Sajjad we have, however, 
remained unable to subscribe to his submissions made in that regard because the 
principal issue raised in this petition is exercise of some powers and performance 
of some functions of the Chairman, National Accountability Bureau by the 
Deputy Chairman, National Accountability Bureau at a time when there is no 
Chairman holding his office. In the case of The Bank of Punjab v. Haris Steel 
Industries (Pvt.) Ltd. and others (supra) and then in the case of Shahid Orakzai 
and another v. Pakistan through Secretary Law, Ministry of Law, Islamabad and 
another (PLD 2011 SC 365) Constitution Petitions filed under Article 184(3) of 
the Constitution were held by this Court to be competent and maintainable vis-à-
vis the matters of holding the offices of the Chairman, Acting Chairman and 
Prosecutor-General Accountability in the National Accountability Bureau and in 
respect of matters pertaining to performing the functions of those offices in 
different situations. The petition in hand also essentially deals with the same or 
Constitution Petition No. 29 of 2011 
4 
similar subject and, thus, for the detailed reasons recorded in the above mentioned 
precedent cases, we have found this petition also to be competent and 
maintainable.  
 
4. 
Adverting to the prayers made and the reliefs sought by the petitioners 
through this petition we have found that the first three reliefs sought by the 
petitioners, reproduced above, cannot be granted as the prayers made in those 
regards are without any merit. As far as the appointment of respondent No. 5 as 
Deputy Chairman, National Accountability Bureau is concerned we have noticed 
that according to the requirements of section 7(aa) of the National Accountability 
Ordinance, 1999 a person is qualified to be appointed as Deputy Chairman, 
National Accountability Bureau if he is or has been an officer of the Armed 
Forces of Pakistan equivalent to the rank of a Major General or if he is or has 
been a Federal Government officer in BPS 21 or equivalent. In the case in hand 
while serving as a civil servant with the Federal Government respondent No. 5 
was promoted to BPS 21 on 30.04.2009 and he was appointed as Deputy 
Chairman, National Accountability Bureau on 04.05.2010 for a period of three 
years. The record further shows that the appointment of respondent No. 5 had 
been made by the President of Pakistan upon an advice of the Prime Minister in 
consultation with the Chairman, National Accountability Bureau as contemplated 
by the provisions of section 7(a) of the National Accountability Ordinance, 1999. 
These facts clearly establish that at the time of his appointment respondent No. 5 
was qualified to be appointed as Deputy Chairman, National Accountability 
Bureau. As regards the effect of respondent No. 5 reaching the age of 
superannuation on 30.04.2011 we have found that the said respondent had been 
appointed as Deputy Chairman, National Accountability Bureau for a period of 
three years and according to section 7(aa) of the National Accountability 
Ordinance, 1999 he was qualified to be appointed to the said office if he was or 
had been a Federal Government officer in BPS 21 or equivalent. It is, thus, 
evident that at the time of his appointment he was qualified to be so appointed in 
his capacity as a serving Federal Government officer in BPS 21 and after reaching 
the age of superannuation he remains qualified to continue and complete his term 
of office of three years because he had been a Federal Government officer in BPS 
21 in the past. In this view of the matter we have found that nothing turns on 
respondent No. 5 reaching the age of superannuation while performing his duties 
and functions as Deputy Chairman, National Accountability Bureau. Adverting to 
the petitioners’ apprehension that the respondents may grant an extension in the 
Constitution Petition No. 29 of 2011 
5 
service of respondent No. 5 suffice it to observe that by virtue of the provisions of 
section 7(a) of the National Accountability Ordinance, 1999 a Deputy Chairman, 
National Accountability Bureau is to hold that office for a “non-extendable period 
of three years”. The apprehension entertained by the petitioners regarding 
extension in the service of respondent No. 5 is, thus, misconceived and the law 
itself takes care of the same. Apart from that any extension in the service of 
respondent No. 5 in his capacity as a civil servant cannot have any bearing upon 
the respondent’s term of office as Deputy Chairman, National Accountability 
Bureau as the law itself declares that the term of that office is “non-extendable”. 
For the reasons recorded above we have found the first three prayers made and 
reliefs sought by the petitioners through this petition to be devoid of force besides 
being misconceived. 
 
5. 
The fourth prayer made by the petitioners through the present petition 
revolving around legality or otherwise of the order passed by the then Chairman, 
National Accountability Bureau on 15.10.2010 in respect of delegation of some of 
the powers of the Chairman to respondent No. 5 and the consequential issue 
regarding continued exercise of such delegated powers by respondent No. 5 
despite a vacancy in the office of the Chairman have, however, been found by us 
to be worth a serious consideration. The record shows that on 15.10.2010 the then 
Chairman, National Accountability Bureau had delegated some of his powers in 
favour of respondent No. 5 and even prior to that some of the powers of the 
Chairman had also been delegated to the Deputy Chairman, National 
Accountability Bureau on 13.06.2006. As regards the office of Deputy Chairman, 
National Accountability Bureau section 7(a) of the National Accountability 
Ordinance, 1999 provides as follows: 
 
“7.   Deputy Chairman, National Accountability Bureau: 
(a) 
There shall be a Deputy Chairman NAB appointed by the President in 
consultation with the Chairman NAB. The Deputy Chairman NAB 
shall assist the Chairman NAB in the performance of his duties and 
shall carry out such functions as may be directed by the Chairman 
NAB.” 
 
 
Section 34A of the National Accountability Ordinance, 1999 stipulates as 
under: 
  
“34A. 
Delegation of Powers: The Chairman NAB may, by an order in 
writing, delegate any of his powers to and authorize performance of any of his 
functions by, an officer of the NAB as he may deem fit and proper, subject to 
Constitution Petition No. 29 of 2011 
6 
such conditions, if any, as may be specified in the order, for carrying out the 
purposes of this Ordinance.” 
 
 
A combined reading of the provisions of the National Accountability Ordinance, 
1999 reproduced above shows that the Deputy Chairman, National Accountability 
Bureau has no independent duties or functions of his own and his only job is to 
assist the Chairman, National Accountability Bureau in the performance of his 
duties and to carry out such functions as may be directed by the Chairman. Apart 
from that the Chairman, National Accountability Bureau may delegate any of his 
powers to and authorize performance of any of his functions by an officer of the 
National Accountability Bureau, including the Deputy Chairman, as he may deem 
fit and proper for carrying out the purposes of the National Accountability 
Ordinance, 1999. It has been conceded before us that the office of the Chairman, 
National Accountability Bureau is presently lying vacant for the last many months 
and, thus, the job of respondent No. 5 to assist the Chairman in the performance 
of his duties and to carry out such functions as may be directed by the Chairman 
appears to be non-existent at present if looked at in the context of section 7(a) of 
the National Accountability Ordinance, 1999. The question mooted before us is as 
to whether in such a situation respondent No. 5, in his capacity as a duly 
appointed Deputy Chairman, National Accountability Bureau can continue to 
exercise the powers of the Chairman, National Accountability Bureau delegated 
to him earlier on by the Chairman or not and also whether in a situation like this 
he can continue performing any of the functions as directed by the Chairman or 
not. With reference to the cases of Malik Asad Ali  v. Federation of Pakistan 
through Secretary Law, Justice and Parliamentary Affairs, Government of 
Pakistan Islamabad and 2 others (1998 SCMR 122) and Mr. Zulfiqar Ali Bhutto 
v. The State (PLD 1978 SC 40) Mr. Wasim Sajjad, Sr. ASC appearing for 
respondents No. 3 and 5 has maintained that in case of a “temporary vacancy” in 
the office of the head of some institution or department the other authorities 
performing their own duties and functions in that institution or department can 
continue to discharge their duties and perform their functions and, thus, if there is 
a vacancy in the office of the Chairman, National Accountability Bureau then 
respondent No. 5 can continue to exercise and perform not only his own duties 
and functions but also the powers of the Chairman, National Accountability 
Bureau delegated to him by the Chairman earlier on. We have minutely gone 
through the above mentioned precedent cases referred to by Mr. Wasim Sajjad 
and have found that the ratio decidendi of those precedent cases is not attracted to 
the case in hand. The question before us is not as to whether respondent No. 5 can 
Constitution Petition No. 29 of 2011 
7 
continue to exercise his own duties and perform his own functions as Deputy 
Chairman, National Accountability Bureau at a time when the office of the 
Chairman, National Accountability Bureau is vacant but the issue at hand is as to 
whether respondent No. 5 can continue to exercise the delegated powers of the 
Chairman, National Accountability Bureau when the delegator himself is not on 
the scene any more. The above mentioned precedent cases are silent on this issue 
and, therefore, they are of little assistance in the matter.  
 
6. 
Mr. Wasim Sajjad has further argued that a delegation of powers continues 
even if the delegator’s office becomes vacant because a constitutional or statutory 
office continues to exist even if there is no incumbent holding that office for the 
time being. In the context in hand we have already mentioned above that under 
section 7(a) of the National Accountability Ordinance, 1999 the job of a Deputy 
Chairman is only to assist the Chairman in performance of his duties and to carry 
out such functions as may be directed by the Chairman. It is, therefore, quite 
obvious that when the office of the Chairman is vacant there is nobody in that 
office to be assisted by the Deputy Chairman and there is nobody in the office of 
the Chairman to direct the Deputy Chairman to carry out any particular function 
upon his direction. The situation that emerges in the facts of the present case is 
that due to the vacancy in the office of the Chairman respondent No. 5 has no job 
of his own to perform within the purview of section 7(a) of the National 
Accountability Ordinance, 1999 and he is presently exercising the delegated 
powers of the Chairman, National Accountability Bureau at a time when there is 
no Chairman on the scene. Under the law of contract a delegation comes to an end 
when the delegator vanishes from the scene and an agent loses his authority to act 
on behalf of his principal when such principal is removed from the picture. 
Applicability of these principles relevant to a contractual delegation may, 
however, be inapt to the case in hand because the delegation of powers involved 
in the present case is a statutory delegation which, in an appropriate case, can 
survive a vacancy in the office of the delegator. The real issue in the present case, 
therefore, is as to whether such a statutory delegation during a vacancy in the 
office of the delegator can be stretched to a period which is unduly protracted and 
indefinite and which creates an irresistible impression that those responsible for 
filling the vacancy in the office of the delegator are not interested in filling that 
vacancy and are contented with running the affairs of the concerned institution or 
department through the delegatee himself. This surely is a serious matter and in 
case such an impression is well-founded then such an exercise may amount to 
Constitution Petition No. 29 of 2011 
8 
committing a fraud with or upon the relevant statute. It may advantageously be 
mentioned here that the qualifications for the office of Chairman, National 
Accountability Bureau contained in section 6(ba) of the National Accountability 
Ordinance, 1999 are much higher than those specified in section 7(aa) of that 
Ordinance for the office of Deputy Chairman, National Accountability Bureau 
and those provisions are reproduced below for the purposes of a comparison:  
 
“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 
 
(iii) 
is a retired Federal Government Officer in BPS 22 
equivalent.” 
        
“7(aa). A person shall not be appointed as Deputy Chairman NAB unless he- 
 
(i) 
is or has been an officer of the Armed Forces of Pakistan 
equivalent to the rank of a Major General; or  
 
(ii) 
is or has been a Federal Government officer in BPS 21 or 
equivalent.” 
 
It seems to us to be preposterous and outrageous if in the garb of a statutory 
delegation of some of his powers by a Chairman, National Accountability Bureau 
in favour of a Deputy Chairman, National Accountability Bureau the Deputy 
Chairman may be permitted to keep on exercising the powers of the Chairman for 
a protracted and indefinite period of time while the office of the Chairman 
remains, or is deliberately kept, vacant for months at an end. Such clothing of the 
Deputy Chairman, who is otherwise not even qualified to be appointed as 
Chairman, with a valid authority of the Chairman would, virtually and practically, 
amount to permitting him to act as the Chairman during such period whereas it 
has already been clearly held by this Court in the case of The Bank of Punjab v. 
Haris Steel Industries (Pvt.) Ltd. and others (supra) that there cannot be an 
Acting Chairman, National Accountability Bureau at a time when the office of the 
Chairman, National Accountability Bureau is vacant. It is by now a settled 
proposition of law that what cannot be achieved directly under the law cannot be 
permitted or allowed to be achieved indirectly.    
 
7. 
The learned Attorney-General for Pakistan has very candidly conceded 
before us that the whole scheme of the National Accountability Ordinance, 1999 
Constitution Petition No. 29 of 2011 
9 
revolves around the office of the Chairman and, academically speaking, the whole 
National Accountability Bureau stands paralyzed when the office of the 
Chairman, National Accountability Bureau is vacant. He has also conceded that 
despite the appropriate directions issued by this Court in the cases of The Bank of 
Punjab v. Haris Steel Industries (Pvt.) Ltd. and others (supra) and Shahid 
Orakzai and another v. Pakistan through Secretary Law, Ministry of Law, 
Islamabad and another (supra) the offices of the Chairman, National 
Accountability Bureau and the Prosecutor-General Accountability are lying 
vacant for a considerable period of time and existence of such vacancies are 
gravely and prejudicially affecting the normal and smooth functioning and 
performance of the National Accountability Bureau. He has, therefore, requested 
that instead of holding that in the absence of those two pivotal officers of the 
National Accountability Bureau the said Bureau cannot keeping on functioning 
under the law this Court may graciously provide the Federal Government an 
opportunity to fill those offices on an urgent basis so as to keep the National 
Accountability Bureau afloat and also to keep the prosecutions before the 
Accountability Courts in the country proceeding ahead. Keeping in view the 
drastic implications and the alarming possibilities hinted at by the learned 
Attorney-General for Pakistan we tend to agree with him that instead of becoming 
instrumental in closing down the National Accountability Bureau and winding up 
of the inquiries, investigations and trials being conducted by it at present we may 
provide one more opportunity to the Federal Government to fill the offices of the 
Chairman, National Accountability Bureau and the Prosecutor-General 
Accountability within a reasonable time so that the normal functioning of the 
National Accountability Bureau and of its operations under the National 
Accountability Ordinance, 1999 are restored and the Chairman, National 
Accountability Bureau to be appointed is provided an opportunity to consider the 
desirability or otherwise of continuance of the delegation of powers of the 
Chairman in favour of respondent No. 5. In the case of Al-Jehad Trust and others 
v. Federation of Pakistan and others (1999 SCMR 1379) it had been held that this 
Court can direct that proper administrative and legislative steps may be taken by 
the government where needed under the Constitution. Under Article 5(2) of the 
Constitution obedience to the Constitution and law is an “inviolable obligation” 
and, thus, the authority of this Court to direct taking of proper administrative and 
legislative steps needed under the Constitution would necessarily include the 
authority to direct taking of such steps where needed under the law.   
 
Constitution Petition No. 29 of 2011 
10 
8. 
For what has been discussed above the Federal Government is directed to 
fill the vacant offices of the Chairman, National Accountability Bureau and the 
Prosecutor-General Accountability within one month of announcement of this 
judgment positively failing which respondent No. 5 shall ipso facto and without 
further ado stand denuded of his authority to continue exercising the delegated 
powers of the Chairman, National Accountability Bureau and performing any 
other function not conferred upon him by the National Accountability Ordinance, 
1999. If in such an eventuality the National Accountability Bureau practically 
ceases to exist or function under the National Accountability Ordinance, 1999 
then the blame for the same shall rest squarely upon the shoulders of the Federal 
Government. This Constitution Petition is disposed of with the directions issued 
and the observations made above. 
 
 
Judge 
 
Judge 
 
Judge 
 
 
Announced in open Court at Lahore on 21.06.2011. 
 
 
 
 
 
 
 
 
 
 
Judge 
Approved for reporting.  
M. Yasin