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Petitioner: Shahid Orakzai Ch. Nisar Ali Khan VS Respondent: Pakistan Through Secretary Law
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Asif Saeed Khan Khosa, Raja Fayyaz Ahmad Title:Shahid Orakzai Ch. Nisar Ali Khan vs Pakistan Through Secretary Law,
JUDGMENT
Reported As: K.L.R. 2011 Supreme Court 59 Result: N/A Judgment 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 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
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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)" 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 8t h 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
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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 their petitions qua such development. It is by now settled law that a Court seized of a matter cannot 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 o ft He National Accountability Ordinance, 19 99 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 spirifer 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 maimed 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 recommenders 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
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respondent's earlier appointment as Chairman, National Accountability Bureau bn 8th October, 2010 and his fresh appointment as such on 9th February, 2011 "with immediate effect" 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' terrs 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 [1] Rule 10-A (4) FCR. [2] Rule 10-A (5) ibid.- [3] Rule 10-A (6) ibid. [4] Section 12 ibid. [5] Rule 14 FCR. [6] The description of the seal is also provided under Rule 24(1) & (2) FCR that it is to be circular in shape and must have thereon inscription 'Family Court' and the name of the District and this seal is to be used' for all summonses, orders, decree, copies and other documents issued by the Court. [7] Rule 16 ibid. [8] Rule 17 ibid., [9] Section 12-A 'ibid. [10] Section 13, ibid. [11] A receipt is to be given in Form II in case any money etc. Is received and these monies or properties deposited shall be entered in a register in Form III (See Rule 18, 19 FCR) [12] See Land Revenue Act for details regarding modes of recovery.
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[13] See CPC 1908 for powers of executing Court! [14] Section 14 FCA. [15] Section 16 ibid. [16] Section 17-B ibid. [17] Section 18 ibid. [18] Section 19 ibid. [19] Section 20 ibid. [20] Section 21-A ibid. [21] Section 25 ibid. [22] Rule 12(1) FCR. [23] Rule 12(2) ibid. [24] Rule 23 ibid. [25] Section 22 ibid. [26] Section 23 ibid. [27] Section 25-A ibid. ' Rule 9, FCR. [29] MA, LLM (Cantab)', Principal, Superior College of Law, Lahore. Available at rizvi. Sah@hotmail. Com. [30] MA, LLM (Cantab)', Principal, Superior College of Law, Lahore. Available at rizvi. Sah@hotmail. Com. [31] MA, LLM (Cantab); Principal, Superior College of Law, Lahore. Available at rizvi statment .Com. [32] MA, LLM (Cantab)-, Principal, Superior College of Law, Lahore. Available at rizvi. Sah@hotmail. Com. [33] For composition, powers, functions and procedure of family court, see West Pakistan Family Courts Act, 1964 and Rules, 1965 [34] See for details, Mst. Amina Begum Versus Ghulam Nabi and others, PLD 1974 Lah 78, citing classical case, Goldstone Versus Goldstone (1922) 127 LT R 32
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[35] Even in 1502 a woman named Margery Heyner was cited to appear in one of the courts of the bishop of London. The charge was "that she is boasting that she had contracted marriage with Thomas Risley, to the prejudice of a marriage between him and another, although she did not so contract." In answer, Margery alleged that she had in fact contracted' with Thomas, but the judge held that the "words did not suffice to impede [Risley's] contract." See for details http://www.Drbilllonq.Com/2006 Words/Jactitate. Html last visited on 21st April, 2011 at 11:35 am [36] ibid [37] Mir Azmat Ali versus Mahmud-ul-Nisa, ILR 23 All 96 at p-97. Also see Mulla, Principles of Muhammedan Law, Pak Book Depot, 1990, p-306. [38] See, Arshad Ahmad Versus Muhammad Sharif, 2006 YLR (Lah) (b) 2623, where jactitation and jactitation of marriage was defined and explained. [39] BR Verma's Commentaries on Muhammedan Law, 10th Ed, Law Publishers (India) Pvt. Ltd, p-107 [40] See Also, Black's Law Dictionary, 8th Ed. Bryan A Garner, Thomas West. [41] See http://www.Lectlaw.Com/def/i032. Htm last visited on 21st April, 2011 at 11:15 am [42] See 50 PR 1901; 26 PR 1903 [43] PLD 1984 SC 95 [44] 1989 CLC 1578; PLD 1997 Lah 484; see also 1992 CLC 42 and PLJ 1997 AJ & K 91. Also see Section 5 and Schedule of the West Pakistan Family Courts Act,. 1964. ' [45] PLD 2007 Lah 425 [46] See Section 19 Family Courts Act 1964 [47] Section 23, Limitation Act, 1908; Continuing Breaches and Wrongs: In the case of a continuing breach of contract and in case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues. [48] For territorial jurisdiction of family court in this regard, see Rule 6 of West Pakistan Family Courts Rules, 1965. [49] See PLD 2006 SC 989 and 2008 CLC 590 [50] See 2008 MLD 828 [51] NLR 1996 CLJ 206
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[52] See, PLD 1984 SC 95 [53] 2008 CLC 590 [54] 1987 CLC 1705; PLJ 2000 Lah 504 [55] PLD 1963 SC 51; PLD 1967 SC 580; NLR 1991 SCJ 170 and 1991 SCMR 681 [56] See, Lord Hawke Versus Corri (1820) 2 Hag. Con. 280, 161 ER 743 (As per Sir William Scott) available at http://www.Lawreform.Ie/ fileuoload/ReDorts/rJactitation. Htm last visited at 12:15 pm on 23r April, 2011 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 (2000 SCMR 814) and AH 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. 2. 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. 3. 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 n\ade 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
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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 unfair play" 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 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-a-vis the respondent fell far short o f 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)(1) 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 inspired confidence of the apprehensive potential victim, i.e. The political opposition in the country. 4. Mr. Sheikh has gorje 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 pf 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
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that he had tendered no advice whatsoever to the President for appointment of the respondent as Chairman, National Accountably 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. 5. With reference to some Articles of the United Nations Convention on Corruption Mr. Sheikh has also argued that establishing independent and impartial anticorruption 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. 6. 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 Opposition in the National Assembly at all and, there fore, the m 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…
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