IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
 
 
PRESENT: 
 
 
MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE MAQBOOL BAQAR  
 
 
CIVIL PETITION NO.3186 OF 2015 
(Against the judgment dated 15.10.2015 of the Lahore 
High 
Court, 
Multan 
Bench 
passed 
in 
W.P. 
No.15116/2015) 
 
 
Ghazanfar Ali 
 
Petitioner(s) 
 
VERSUS 
 
Appellate Authority/Additional District 
Judge, Sahiwal and others 
 
 
Respondent(s) 
 
 
CIVIL PETITION NO.3187 OF 2015 
(Against the judgment dated 15.10.2015 of the Lahore High 
Court, Multan Bench passed in W.P. No.15117/2015) 
 
 
Sufiyan Akram and another 
 
Petitioner(s) 
 
VERSUS 
 
Appellate Authority/Additional District 
Judge, Sahiwal and others 
 
 
Respondent(s) 
 
For the Petitioner(s) 
(in both cases) 
: Ch. Mushtaq Ahmed Khan, Sr. ASC 
Syed Rifaqat Hussain Shah, AOR 
 
  
For Respondent No.3 
(in C.P.No.3186/2015) 
: Mr. Ahmad Raza, ASC 
Mr. Ahmed Nawaz Chaudhry, AOR 
 
  
For Respondents No. 3-4 
(in C.P.No.3187/2015) 
: Mr. Ahmad Raza, ASC 
Mr. Ahmed Nawaz Chaudhry, AOR 
 
  
Date of Hearing 
: 04.11.2015 
… 
JUDGMENT 
 
 
 
MIAN SAQIB NISAR, J.- Both these petitions involve common 
questions of law, thus are being disposed of together. Through the 
impugned judgment(s) passed by the learned High Court in its 
constitutional jurisdiction, the order of the appellate authority which had 
rejected the nomination papers of the petitioners for contesting the local 
C.Ps.No.3186 & 3187/2015 
 
-: 2 :-
bodies elections, by setting aside the order of acceptance (of nomination papers) 
by the Returning Officer, has been upheld. 
2. 
 
In the context of the above-mentioned outcome, the brief facts 
of the case relevant for the present petitions are:- that the petitioners were 
Member and Chairman respectively of the Local Zakat and Ushr 
Committee (Local Committee) constituted under the provisions of Section 18 
of the Zakat and Ushr Ordinance, 1980 (the Ordinance). After resigning from 
their respective posts, the petitioners filed their nomination papers to 
contest the elections for the local bodies (petitioner in C.P.3186/2015 for office of 
General Councillor of Ward No.4, Union Council No.1 (Urban), Chak No.86-6/R, Tehsil and 
District Sahiwal, and petitioner in C.P.3187/2015 for office of Chairman and Vice-Chairman of 
Union Council No.1 (Urban), Chak No.86-6/R, Tehsil and District Sahiwal). Objections were 
raised against the nominations by the respective private respondents [the 
rival candidate(s)] on the ground that the petitioners were disqualified from 
contesting the elections as per the bar contained in Section 27(2)(e) of the 
Punjab Local Government Act, 2013 (the Act). The thrust of the objection 
was that according to the noted provision a person would not be qualified 
(or would be disqualified) to contest such election if he is in the service of a 
statutory body etc. and a period of not less than two years has elapsed 
since his resignation or retirement. It was set out by the respondents that 
being a Member and a Chairman of the Local Committee the petitioners 
were in the service of the Zakat and Ushr department which undoubtedly 
is a body created under the statute and thus a statutory body. The 
appellate authority and the learned High Court have agreed with the view 
point set forth by the rival candidates. In the impugned judgment, the 
learned High Court has, on the analysis of the relevant provisions of law, 
categorically held that the petitioners are hit by Section 27(2)(e) of the Act 
ibid as they are in the service of the Zakat and Ushr department, a 
statutory body and in this context the provisions of Section 23 of the 
C.Ps.No.3186 & 3187/2015 
 
-: 3 :-
Ordinance stipulating them (the petitioners) as public servants, read with 
Section 21 of the Pakistan Penal Code, 1860 (the PPC) have been heavily 
relied upon. Besides reliance has also been placed upon the judgments 
reported as Zulikha Bibi Vs. Election Commission of Pakistan through 
Secretary and another (2015 YLR 1584), Mirza Muhammad Tufail Vs. 
District Returning Officer, and others (PLD 2007 SC 16), and 
Muhammad Khan Vs. Amanullah and 2 others (PLD 2014 Balochistan 
128). 
3. 
 
Learned counsel for the petitioners, while arguing his case, 
has submitted that the view set out by the learned High Court in the 
impugned judgment is against the law laid down in Shahid Nabi Malik 
and another Vs. Chief Election Commissioner, Islamabad and 7 
others (PLD 1997 SC 32), Inayatullah Vs. C.C.-Cum-Chairman, District 
Zakat Committee and 2 others (PLD 1993 SC 426), Raja Bahadur K. C. 
Deo Bhanj Vs. Raghunath Misra and others (AIR 1959 SC 589) and Ch. 
Liaqat Ali and another Vs. Election Appellate Authority/District and 
Sessions Judge, Lahore/District Returning Officer, Lahore and 3 
others (2001 YLR 953). Learned counsel, for the purposes of interpreting 
the expression “public servant” (see Section 23 of the Ordinance), has relied upon 
the definition provided in Law Terms & Phrases by Sardar Mohammad 
Khan Mokal. To explain as to what is meant by such legal connotation and 
the effect of being a public servant upon the right of the petitioners to 
contest the elections, learned counsel for the petitioners drew support 
from the judgments reported as Rana Muhammad Jamil Vs. The Punjab 
Road Transport Board, Lahore and others (PLD 1957 (W.P.) Lah 1) and 
Kalam Daraz Khan Vs. Crown (PLD 1951 Dhaka 104). He has also 
categorically and vehemently submitted that as the Member and the 
C.Ps.No.3186 & 3187/2015 
 
-: 4 :-
Chairman of the Local Committee, the petitioners were not receiving any 
salary, remuneration, honorarium or other monetary benefits. 
4. 
 
On the other hand the submissions of the learned counsel for 
the respondents were based on the reasoning of the impugned judgment, 
and in this respect placed reliance on the judgment cited as Sahibzada 
Tariqullah Vs. Haji Amanullah Khan and others (PLD 1996 SC 717), in 
addition to the cases relied upon by the learned High Court in the 
impugned judgment. 
5. 
 
Heard. In the context of the facts of the cases, which are not 
disputed, we find that the following propositions need resolution through 
this opinion (i) the interpretation of Section 27(2)(e) of the Punjab Local 
Government Act, 2013; (ii) the effect of Section 23 of the Zakat and Ushr 
Ordinance, 1980 when read with the provisions of Section 21 of the 
Pakistan Penal Code, 1860; and (iii) whether in the facts and 
circumstances of the present case and in the letter and spirit of the 
Ordinance, the petitioners are “in the service of a statutory body”. Thus for the 
above purpose, it seems expedient to reproduce the relevant Sections:- 
Punjab Local Government Act, 2013 
“27. Qualifications and disqualifications for candidates and 
elected members.- (1) …………………………………… 
(2). 
 
A person shall be disqualified from being 
elected or chosen as, and from being, an elected member of a 
local government, if he- 
 
(a) 
…………………………………………………… 
 
(b) 
…………………………………………………… 
 
(c) 
…………………………………………………… 
 
(d) 
…………………………………………………… 
C.Ps.No.3186 & 3187/2015 
 
-: 5 :-
(e) 
is in the service of any statutory body or a body 
which is owned and controlled by the 
Government or a Provincial Government or the 
Federal Government or a local government or, 
in which any of such Government or local 
government has a controlling share or interest, 
except the holders of elected public office and 
part-time officials remunerated either by salary 
or fee; provided that in case of a person who 
has resigned or retired from any such service, a 
period of not less than two years has elapsed 
since his resignation or retirement.” 
23. Certain persons to be public servants.—Every person 
engaged in, or employed for, the administration of this 
Ordinance shall be deemed to be a public servant within the 
meaning of section 21 of the Pakistan Penal Code (Act XLV of 
1860). 
Explanation.—For the purposes of this section, the Chairman 
and members of the District Committee and Local Committee 
shall be the persons engaged in the administration of this 
Ordinance.” 
 
From the unambiguous language of Section 27(2)(e), there is no room for 
doubt that the disqualification is only in relation to a person who is “in the 
service” of any statutory body, etc. Before proceeding further it may be 
mentioned 
that 
it 
is 
settled 
law 
that 
the 
qualifications 
and 
disqualifications imposed by law for a candidate to contest the election 
and even to hold office should be construed and applied strictly (note: we are 
deliberately not examining this aspect in this case on the touchstone of Article 17 of the Constitution of 
Islamic Republic of Pakistan, 1973), and a person can only be debarred from 
contesting elections or holding an office if the case falls squarely within 
the strict scope of the qualifications and disqualifications stipulated by 
law. Be that as it may, in order to interpret and apply Section 27(2)(e) in 
C.Ps.No.3186 & 3187/2015 
 
-: 6 :-
the context of the facts of the present case, it may be mentioned that 
various 
Councils/Committees 
envisaged 
by 
the 
Ordinance 
are 
undisputedly statutory bodies as these have been created by the statute 
itself 
(the 
Ordinance). Therefore, the pivotal question which needs 
consideration and resolution is that whether a person who holds a post or 
position in any of these Councils/Committees is in the service of a 
statutory body. In our view to answer this question it is expedient to 
understand the object and spirit of the Ordinance, in that, why this law 
has been enforced, what are the different levels and nature of the 
Councils/Committees, what functions these Councils/Committees have to 
perform and, obviously what are the duties/functions of the persons who 
are a part of these forums, holding posts/positions thereto, because this 
analysis and comprehension has a direct nexus with, and shall facilitate 
in understanding the nature of the posts/positions. 
6. 
 
In elucidation of the object of the Ordinance according to its 
preamble Zakat and Ushr have been considered to be a fundamental pillar 
(arkan) of Islam and it has been ordained that the State, in light of the 
Islamic injunctions, is to collect Zakat and Ushr and to disburse it in 
order to assist the needy, indigent and poor. Every Muslim who is sahib-e-
nisab has been enjoined with the duty to pay Zakat and Ushr (as far as Ushr 
is concerned, subject to law) and the State has been called upon to arrange for 
its proper collection, utilization and disbursement in an organized 
manner. To achieve the above-mentioned object, Sections 3 and 5 of the 
Ordinance are the main charging provisions for Zakat and Ushr 
respectively. Section 7 has created a Zakat Fund and Section 8 provides 
for utilization thereof. Section 9 pertains to “disbursements from Zakat Funds” 
and it is primarily for this purpose that forums have been constituted at 
the Central, Provincial, District and Local level [see Section 9(1), (2), (3) and (4)]. 
C.Ps.No.3186 & 3187/2015 
 
-: 7 :-
Under the provisions of Section 12, the Government shall by notification 
in the official gazette establish a Central Zakat Council (Central Council) 
which is meant to provide policy guidelines for, and to exercise general 
superintendence and control over matters relating to Zakat and Ushr, 
particularly the Zakat Funds and maintenance of their accounts. This 
Central Council has a composition of various Members which are 
specifically mentioned in the Ordinance [see Section 12(2)]. The mode of their 
appointment and nomination etc. is also stipulated therein. It may be 
relevant to mention here that according to Section 12(2)(j), the 
Administrator-General Zakat of the Central Council shall also its 
Secretary General. 
7. 
 
Besides the Central Council, there are Provincial Zakat 
Councils (Provincial Council), District Zakat and Ushr Committees (District 
Committee) and Tehsil, Taluka and Sub-divisional Zakat and Ushr 
Committees (Tehsil Committee) which are created under the relevant 
provisions of the law (see Sections 14, 16 and 17 respectively) and the mechanism of 
filling these forums and the mode of removal of the persons from the 
posts/positions thereof is duly prescribed by law (for the purposes of this opinion, 
it is not necessary to reproduce each and every provision). However Section 18 of the 
Ordinance pertains to the constitution of Local Committees (this section is 
relevant for the purposes of filling up the posts/positions of the Member and the election of the 
Chairman). The relevant parts of this section are reproduced below: 
“18. Local Zakat and Ushr Committee.- (1) ……………… 
(2) 
………………………………………………… 
 
(3) 
The Local Committee shall consist of nine 
members, of whom two shall be Muslim women who are not 
less than forty-five years of age selected by the residents of 
the locality in the manner specified in sub-section (4). 
C.Ps.No.3186 & 3187/2015 
 
-: 8 :-
 
(4) 
The District Committee shall constitute a 
team of three or more persons including at least one gazetted 
officer, one aalim-e-deen and one member of the District 
Committee to organize a public gathering of the adult 
Muslim, teachers and ulema residents of a locality and call 
upon them to select, in the prescribed manner, seven adult 
Muslims residing in that locality who possess Secondary 
School Certificate and are known to be pious and who offer 
five times prayer daily, and have sound moral and financial 
integrity and not engaged in political activity: 
 
Provided that a person who is a member of a team 
constituted for the selection of members of a Local 
Committee shall not be eligible to be a member of such Local 
Committee, and except in the case of such Local Committees 
in the Islamabad Capital Territory as may be notified by the 
Administrator-General, a person who is a salaried employee 
of Government or of a local authority otherwise than as Pesh 
Imam of a local mosque or a teacher of a local school, or of 
a corporation set-up, owned or controlled by Government, 
shall not be eligible to be member of a Local Committee: 
 
Provided further that, where in a district the number 
of Local Committees is so large that the members of the 
District Committee, cannot be put on all the teams 
constituted for the selection of members of Local Committees 
in the district, the District Committee, may, at its discretion, 
nominate any other non-official person of the district to 
represent it on the said team: 
 
Provided further that the team constituted by the 
District Committee shall organize a separate gathering of 
the adult Muslim female residents of the locality and call 
upon them to select, in the prescribed manner, two Muslim 
women residing in that locality who are known to be pious 
and who enjoy their trust to be members of the Local 
Committee. 
 
(5) 
The members of a Local Committee shall elect 
one of their members, being a person who possesses 
C.Ps.No.3186 & 3187/2015 
 
-: 9 :-
Secondary School Certificate and who offers prayer five 
times during a day regularly and observes the fast 
throughout 
Ramadhan-ul-Mubarak 
according 
to 
the 
Injunctions of Islam, to be the Chairman of the Local 
Committee, and if two or more persons secure an equal 
number of votes, the result of the election shall be 
determined by drawing lots. 
 
From the clear expression of the section and also keeping in view the 
object and spirit of the law explained above (which as we mentioned earlier would 
have quite a nexus to understand whether the Members/Chairman of the Local Committee are in 
the service of a statutory body) it is unmistakably manifest that a Member of the 
Local Committee, who may ultimately be elected as a Chairman thereof [by 
following the procedure provided in Section 18(5)] is not a person who has been 
appointed or even nominated by any officer of the Zakat and Ushr 
department or any other functionary of the State, rather the filling up of 
the post/position of Member is a process of “selection” made by a Selection 
Team as envisaged by Section 18(4) which (provision) provides the necessary 
details, the particulars and also the procedure thereof. This process of 
selection, although cannot be considered to be an election, however it is 
an exercise of choosing the most suitable person of a locality to be a 
Member of the Local Committee in an open and transparent manner in a 
public gathering organized by the Selection Team. According to the Oxford 
English Dictionary, “selection” means “the action or fact of carefully choosing 
someone or something as being the best or most suitable ---- a number of carefully chosen 
things ---- the range of things from which a choice may be made”. Chambers English 
Dictionary defines the word “select” as “to pick out from a number by preference: 
to free-select ---- picked out: choice: exclusive” and “selection” as “the act of 
selecting: a thing or collection of things selected”. As per Webster’s Dictionary, 
“selection” is defined as “a selecting or being selected ----a person or thing chosen ---
C.Ps.No.3186 & 3187/2015 
 
-: 10 :-
- a group or collection of these ---- a variety from which to choose”. It is, therefore, 
the residents of the locality who are given the privilege of selecting or 
choosing one amongst themselves [subject to meeting of qualifications prescribed by 
Section 18(4)] as their representative for the purposes of providing voluntary 
help to achieve the object of the Ordinance. It may be restated that the 
Members of the Local Committee are not appointed as such, as is the 
concept of appointment of a person in any government service, or the 
service of any State owned organization or even a statutory body over 
which the State or its extended limbs would have control and authority. 
Likewise a Chairman of the Local Committee is a person who has the 
requisite qualifications [see Section 18(5)] and is elected from one of the 
Members of the Local Committee. So a person does not become a Member 
and/or Chairman through a process of appointment by any official of the 
Zakat and Ushr department or by any other official act of the Government. 
It seems that in line with the object of the law highlighted above for the 
purposes of the disbursement of Zakat and Ushr to the truly deserving 
people of a locality, pious and notable persons of that area are selected as 
the Member and/or Chairman by the participation of the residents of the 
locality who, as mentioned earlier, act as their representatives by 
undertaking a voluntary assignment.  
 
It may also be pertinent to mention that for this voluntary work the 
Member or the Chairman, as has been unequivocally avowed by the 
counsel for the petitioners and is not disputed by the respondents’ side 
and even otherwise is not established from any law or the terms of 
assignment, do not receive any salary, honorarium or monetary benefits of 
any nature whatsoever.  
8. 
 
Now let us analyze the process of removal of the Members or 
Chairman of the Local Committee. The Ordinance contains various 
C.Ps.No.3186 & 3187/2015 
 
-: 11 :-
methods of removal of the Members or Chairman of a Local Committee, 
which are reproduced herein below:  
“18. 
(9) The Chairman and members of the Local 
Committee shall hold office for a term of three years and 
shall be eligible for  re-election or re-selection as the case 
may be: 
Provided that the District Committee may, in 
consultation with the Federal Government, remove a 
Chairman or a member of the Local Committee from his 
office and nominate another person as Chairman or, as the 
case may be, a member for the unexpired term of his 
predecessor: 
21.  Power of supersession and removal.—(1) If the 
Provincial Council, in the case of a District Committee, and 
the District Committee in the case of Local Committee, is of 
the opinion that a Committee constituted under this 
Ordinance— 
(a) is unable to discharge or persistently fails in 
discharging its duties, or 
(b) is unable to administer its affairs, or 
(c) acts in a manner contrary to public interest, or 
(d) otherwise exceeds or abuses its powers, or 
(e) has a majority of members who are not pious 
Muslims or who are engaged in political activity. 
The Provincial Council or, as the case may be, the 
District Committee may, by a notification, declare the 
concerned Committee to be superseded for such period not 
exceeding one year as may be specified in the notification: 
Provided that the period of supersession may, if the 
Provincial Council or the District Committee considers it 
necessary to do so, be extended, beyond a period of the year.  
C.Ps.No.3186 & 3187/2015 
 
-: 12 :-
(2) When a declaration is made under sub-section (1) 
in respect of a Committee,- 
(a) the persons holding office as Chairman and 
members of the Committee to which the resolution 
relates, shall cease to hold office; 
(b) all functions of the District Committee shall, 
during the period of supersession, be performed by 
an Administrator appointed by the Provincial 
Council and in the case of a Local Committee such 
functions shall be performed by the Administrator 
appointed by the District Committee; and 
(c) before the expiry of the period of supersession, 
elections shall be held and selection or nominations 
made in accordance with the provisions of this 
Ordinance to reconstitute the Committee. 
(3) If Provincial Council, in the case of District 
Committee, and the District Committee, in the case of Local 
Committee is of the opinion that the Chairman or a member 
of a Committee constituted under this Ordinance— 
(a) was at the time of his selection, election or 
nomination- 
(i) not a pious Muslim; 
(ii) not an adult; 
(iii) not a resident of the area within the 
jurisdiction of the Committee; 
(iv) an undischarged insolvent; 
(v) not of sound mind; or 
(vi) engaged in political activity; 
(b) has been during the period of three years 
preceding the date of his selection, election or 
nomination, 
C.Ps.No.3186 & 3187/2015 
 
-: 13 :-
(i) ordered to execute a bond under section 
108, 109 or 110 of the Code of Criminal 
Procedure, 1898 (Act V of 1898); or 
(ii) convicted for an offence involving moral 
turpitude; or 
(iii) declared goonda under the law relating 
to the control of goondas; 
(c) has, after his selection, election or nomination, 
incurred any of the disqualifications referred to in 
sub-clause (i), (iii), (iv), (v) or (vi) of clause (a), or 
sub-clause (i), (ii) or (iii) of clause (b); 
(d) has, without reasonable excuse, absented himself 
from three consecutive meetings of the Committee; 
(e) has been guilty of abuse of power or of 
misconduct in the discharge of his duties as 
Chairman or members, or been responsible for any 
loss, misapplication, misappropriation or misuse of 
any money or property of the Committee; or 
(f) has become physically disabled or unable on any 
count from performing functions as Chairman or 
member, 
the Central Council, in the case of a District 
Committee, in the case of Local Committee, may by a 
resolution, remove such Chairman or member from office. 
21-A. Vote of no-confidence. (1) Where in case of a Local 
Committee, the District Committee, after such enquiry as it 
may deem fit, is of the opinion that the members of that 
Committee no longer have confidence in the Chairman, the 
District Committee may in the prescribed manner remove the 
chairman from his office. 
 
(2) 
Where in the case of a member of a Local 
Committee, or of a Local Committee as a whole, the District 
Committee after such enquiry as it may deem fit is of the 
C.Ps.No.3186 & 3187/2015 
 
-: 14 :-
opinion that the adult Muslim residents of the locality no 
longer have confidence in the member, or in the Committee 
as a whole, the District Committee may, in the prescribed 
manner, remove the member from his office or dissolve the 
Committee as a whole. 
 
(3) 
The vacancy in the office of Chairman or 
member or members so caused shall notified by the District 
Committee and shall be filled in accordance with the 
provisions of this Ordinance.” 
 
From the aforementioned provisions of the Ordinance, it is clear that there 
are broadly three methods in which a Member or Chairman of a Local 
Committee may be removed. The first is under the proviso to Section 18(9) 
of the Ordinance, whereby the District Committee may, in consultation 
with the Federal Government, remove a Chairman or a Member of the 
Local Committee from his office. We are of the opinion that this provision 
certainly does not mean that power of removal or dismissal vests with the 
official(s) of the Zakat and Ushr department or the State or any 
government official for the following reasons: (i) such removal is not by any 
particular Government official or State functionary, rather the District 
Committee (see Section 17(3) for its constitution); (ii) the Federal Government need 
only be consulted, which consultation shall certainly not have a binding 
effect; and (iii) such empowerment has only been inserted as a proviso to 
the provision stipulating the maximum years of a term of office of a 
Member or Chairman of a Local Committee, and subsequent nomination 
in terms of the said proviso is only for the remaining unexpired term of the 
predecessor Member or Chairman, thus this method is not one utilized as 
of course. The second method is under the provisions of Section 21 of the 
Ordinance whereby a Provincial Council may be resolution remove a 
Member or Chairman of a Local Committee from office in certain 
C.Ps.No.3186 & 3187/2015 
 
-: 15 :-
circumstances [including misconduct, abuse of power, physical inability, etc.; see Section 
21(3)].  Now although the Provincial Council contains some Government 
officials who are ex-officio Members and Chairman (see Section 14), the power 
conferred upon such Provincial Council by virtue of Section 21 can only be 
exercised in the circumstances for removal provided in the said section. It 
is not that a sweeping power or discretion of removal or dismissal has 
been vested with the Provincial Council. Furthermore, the fact that the 
Provincial Council consists of certain Government officials, should not 
detract us from the whole object and purpose of the Ordinance, and the 
fact that they too do not receive any salary, honorarium or other monetary 
benefits for the voluntary work that they carry out vis-à-vis Zakat and 
Ushr. The third method is removal by the District Committee by a vote of 
no-confidence in terms of the provisions of Section 21-A provided above. 
In light of the above, it does not seem to be the case that the power of 
removal lies predominantly with the State or Government officials. Thus 
all the three modes looked at from any angle do not fit in the legalistic and 
the conceptual mechanism which is provided and prescribed for the 
dismissal or removal of the person who is in the service of the State or a 
statutory body; which removal etc. is primarily and ordinarily founded 
upon misconduct or inefficiency as per the law and the rules prescribed 
for such removal etc. 
9. 
 
In Muhammad Tufail (supra) the question came up before this 
Court as to whether the Administrator of a Market Committee was 
debarred from contesting the local bodies election as being in the service 
of a statutory body i.e. the Market Committee established under the 
Punjab Agricultural Produce Markets Ordinance, 1978, a five prong test 
was laid down in order to determine as to whether a person could be held 
to be in the service of a body or authority:- 
C.Ps.No.3186 & 3187/2015 
 
-: 16 :-
“Now according to the definition described above, service 
means being employed to serve another, it implies the 
submission to the will of another as to direction and control, 
to do work for another. The determining factor to hold a 
person to be in the service of a body or authority, implies 
sub-ordination to that body. There are five tests for such sub-
ordination, namely, the power of the authority of the 
appointment to the office (ii) the power of removal or 
dismissal of the holder from the office (iii) the payment of 
remuneration (iv) the nature of functions of the of the holder 
of the office, he performs (v) the nature and strength of 
control and supervision of the authority. The decisive test is 
that of appointment and removal from service while the 
remuneration is neutral factor and not decisive. All the 
aforesaid tests need not be cumulated and not necessarily 
must co-exist and what has to be considered is the substance 
of the matter which must be determined by a consideration of 
all the factors present in a case ad whether stress will be laid 
on one factor or the other will depend on each particular 
case.” 
 
In the case of Raja Bahadur (supra), the question which came for 
examination was if the Grama Panchayat and its Sarpanch being under 
the control and supervision of the Government, such Sarpanch was in the 
service of the Government or not. The ratio of the judgment is to the 
following effect:- 
“But the mere power of control and supervision of a Grama 
Panchayat exercising administrative functions would not 
make the Grama Panchayat or any of its members a person 
in the service of the Government. Even if it can be said that 
Grama Panchayat in the exercise of its administrative 
functions exercises duties in the nature of governmental 
duties it cannot thereby be said that its Sarpanch is in the 
service of the Government. So far as the Sarpanch is 
concerned, he is merely the executive head of the Grama 
Panchayat which carries out its functions through him. He is 
C.Ps.No.3186 & 3187/2015 
 
-: 17 :-
not appointed by the Government. He is not paid by the 
Government. He does not exercise his functions as one in the 
service of the Government and he can only be removed on 
the ground of negligence, inefficiency or mis-behaviour. 
There is not a single provision of the Orissa Act from which 
it can be said that a Sarpanch is a person in the service of 
the Government.” 
 
In the judgment reported as Shahid Nabi Malik (supra), the question about 
the disqualification of a person to contest the election if he was in the 
service of Pakistan was being pondered upon and this Court came to the 
conclusion that: 
 
“’Service of Pakistan’ as defined in Article 260 of the 
Constitution, besides other categories of service means “any 
service, post or office in connection with the affairs of the 
Federation or of a Province”. Keeping this definition in 
juxtaposition with the functions and responsibilities assigned 
to P.I.B. by the Government, it cannot be argued that the 
services rendered by the P.I.B. were not in connection with 
the affairs of Federation. Mr. Dar who was the Chief 
Executive of P.I.B. and responsible for its proper functioning, 
therefore, in our view was undoubtedly in the service of 
Pakistan. 
 
… 
 
The evidence produced before the Tribunal only shows that 
during the period Mr. Dar held the office of Vice-Chairman 
of P.I.B., he was paid only out of his pocket-expenses which 
he incurred on travelling abroad. There is nothing on record 
to show that either the office of Vice-Chairman, P.I.B., 
carried any benefit by way of salary, remuneration or other 
fringe benefits or that Mr. Dar was paid any salary, 
allowances, fee, or other benefits in his capacity as the Vice-
Chairman of P.I.B.. To establish that a person is ‘holding an 
office of profit’ two things have to be proved. Firstly, that 
C.Ps.No.3186 & 3187/2015 
 
-: 18 :-
there is an office and secondly, the office carries with it some 
kind of remuneration. In the present case, the evidence on 
record only established that Mr. Dar was holding an office in 
the service of Pakistan but there is no evidence to show that 
the office held by Mr. Dar was an office of profit. Mere 
reimbursement of out of pocket expenses to Mr. Dar could 
not make the office held by him as an office of profit in the 
service of Pakistan. As we have reached the conclusion that 
Mr. Dar was not holding any office of profit in the service of 
Pakistan, he was not disqualified from being elected or being 
the member of National Assembly.” 
 
 
Through this judgment though per its facts a person who was disqualified 
from contesting the elections for the National Assembly or the Provincial 
Assembly (or to be a member thereof) should not be holding an office of profit in 
the service of Pakistan, yet it has been held that being a Chairman of the 
Investment Board would not make him the holder of such an office in the 
service. In Inayatullah’s case (supra) while examining the question of 
whether a teacher of a school is disqualified from being appointed as the 
Member of a Local Committee, it has been held as under:- 
“After a fair amount of analysis and examination of the 
purposes of the law, we are inclined to adopt the second 
interpretation. It also affirms the intention as well as the 
language of the law. Salaried employees whether of 
Government, local authority or corporation which is under 
or controlled by the Government, local authority or 
corporation which is under or controlled by the Government, 
have been kept out of such representative organizations as is 
a Local Zakat Council. But an exception has been made 
regarding the Imams and teachers of local mosques and 
schools on account of their special qualification and 
position, vis-à-vis, the subject of Zakat – particularly its 
calculation, collection and distribution. Accordingly the 
appellant being the teacher of a local school would 
C.Ps.No.3186 & 3187/2015 
 
-: 19 :-
undoubtedly be qualified to become a member; but for 
another element in his employment. We have gone through 
the record in that connection and have also perused the 
certificate issued by the District Education Officer which 
shows that although he is the teacher of a local school but he 
is not the employee of a local authority. He is a salaried 
employee of the Government. As discussed above such a 
teacher of local school who is salaried employee of 
Government cannot be a member of the Local Zakat 
Committee.” 
 
In the case of Ch. Liaqat Ali (supra), while answering a question very 
similar to that in the instant matters was involved, in that whether Ch. 
Liaqat Ali, the petitioner in that case, was disqualified from contesting the 
local body elections, being an Administrator of the Local Zakat Committee, 
the learned Lahore High Court held that: 
 
“It is true that as an Administrator the petitioner No.1 can 
be said to be engaged in the administration of said 
Ordinance and per deeming provision of section 23 he is a 
public servant for the purpose of section 21 of the P.P.C. 
Moreover, by no stretch of imagination can it be said that 
the said petitioner is in the service of Federal, Provincial or 
a local Government or a statutory body within the meaning 
of section 14(g) of the P.L.G.E.O., 2000. I may here refer to 
section 18 of the said Ordinance of 1980 which provides for 
the constitution of a local Zakat Committee. The proviso to 
subsection (4) of the said section 18 lays down that a 
person who is a salaried employee of Government or a 
local authority or of a Corporation set up, owned or 
controlled by the Government, shall not be eligible to be a 
member of Local Committee. It will thus, be seen that bar 
contained in section 21(2)(b) on the appointment of an 
official as an Administrator is relatable to the said proviso 
to section 18(4) of the said Ordinance, 1980. It will thus, be 
seen that very structure of the Committee and consequently 
the person who is appointed as an Administrator in case its 
C.Ps.No.3186 & 3187/2015 
 
-: 20 :-
supersession completely ousts a person mentioned in 
section 14(g) of the P.L.G.E.O., 2000 from being appointed 
as a member or as an Administrator. 
 
From the collective consideration of the judgments referred to above and 
primarily following the criteria and principles mentioned therein we are of 
the view that the predominate factor for being in the service of a statutory 
body, that the authority of appointment to the post/position of Member 
and Chairman should vest with the State, Government or statutory body, 
is conspicuously missing; likewise the authority of removal does not 
primarily lie with the State or Government officials as such, rather lies 
with the Councils/Committees in tiers higher to that of the Local 
Committee, to be exercised only in terms of the relevant provisions  
aforementioned. Above all such Members and Chairman do not receive 
any salary, honorarium or any other financial benefits; the nature of the 
functions of the Members and Chairman are also akin to noble voluntary 
work, which is primarily to distribute Zakat and Ushr to deserving people 
of the locality; the element of the nature and strength of control and 
supervision of the authority is also not applicable because the Members 
and Chairman of the Local Committee do not seem to be under the control 
and supervision of any other body rather are assigned to follow the 
guidelines in discharge of their functions (highlighted above). As per the 
principles laid down by this Court in Muhammad Tufail (supra), 
considering all the factors present in the instant case(s), including the 
functions performed by the petitioners, we do not find them to be “in the 
service of” a statutory body etc. Furthermore, and quite importantly, while 
taking into consideration the view point set out in the cases of 
Inayatullah (supra) and Ch. Liaqat Ali (supra), the proviso to Section 18(4) 
of the Ordinance itself precludes “a person who is a salaried employee of 
C.Ps.No.3186 & 3187/2015 
 
-: 21 :-
Government or of a local authority---or of a corporation set-up, owned or controlled by 
Government” from being eligible to be a member of a Local Committee, 
hence obviously such member (and necessarily a Chairman) cannot logically fall 
within the mischief of Section 27(2)(e) of the Act which also precludes a 
person of similar description from contesting the local body elections.  
10. 
 
Notwithstanding the above discourse, considering the concept 
and the purview of the term “in the service of” in the light of various 
dictionary meanings and those assigned by the Superior Court, it shall not 
be appropriate to read the word “service” in isolation, hermetically or 
insulated from “in the” and “of”. In Corpus Juris Secundum (79 CJS. P. 
1139) it has been explained that the word “service” has a variety of 
meanings various connotations and significations, thus in our view the 
word “service” has to be construed along with its syntax. When considered 
in this perspective “in the service of” would mean “in the employment of” 
meaning thereby that there is a relationship of employer and employee. 
However because the appellants have not been taken into the employment 
of any statutory body (as envisaged by law) therefore the question of them 
being “in the service of” such statutory body does not arise. The above 
reason is fortified by the provisions of Section 23 of the Ordinance 
(reproduced earlier in this opinion). In the said provision, the words “every person 
engaged in, or employed for, the administration of this Ordinance” provides for two 
distinct categories of persons who perform functions vis-à-vis the Zakat 
and Ushr bodies created under the statute – one is that of persons 
“engaged in” and the second is that of persons “employed for”. In our candid 
view the appellants are part of the first category. This interpretation is also 
strengthened by the explanation to Section 23 in which it is clearly 
mentioned that the Members and the Chairman of the Local Committee 
are to be considered persons “engaged in”, and not “employed for” the 
C.Ps.No.3186 & 3187/2015 
 
-: 22 :-
administration of the Ordinance. Therefore, in our opinion the Members 
and the Chairman of the Local Committee are persons who are engaged in 
the administration of and not employed in any statutory body on account 
of the above. The view set out by the learned High Court that the 
appellants are in the service of the statutory body is absolutely unfounded 
and is misconceived. 
11. 
 
With respect to the argument that as per Section 23 of the 
Ordinance the petitioners are deemed to be public servants within the 
meaning of Section 21 of the PPC, and are thus disqualified from 
contesting the elections, suffice it to say that this is a deeming clause and 
it is only by fiction of law that for the purposes of applicability of the PPC 
and for the object of enabling them to perform certain functions envisaged 
by the PPC that a legal status has been conferred upon them and that 
they are considered and deemed to be public servants otherwise they are 
not public servants at all. In this respect reliance has been correctly 
placed by the learned counsel for the respondents upon Kalam Daraz 
Khan’s case, although the case of Rana Muhammad Jamil (supra) does 
not seem to be relevant. Besides in Section 27 of the Act, there is no bar 
upon a person who is deemed to be a public servant from contesting the 
local bodies elections, and as has been mentioned above the qualifications 
and disqualifications of a person have to be construed and applied strictly 
and, therefore, on the basis of the deeming provisions of Section 23 of the 
Ordinance, which is meant for other objects and purposes, a person 
cannot be debarred from contesting the elections for local bodies.  
12. 
 
As far as the view set out by the learned High Court of 
Balochistan in the cases of Zulikha Bibi and Muhammad Khan is 
concerned, that a Member/Chairman of a District Committee is not 
qualified to be elected as a member of a local body as it is a political 
C.Ps.No.3186 & 3187/2015 
 
-: 23 :-
activity which is prohibited under Section 14(4) of the Balochistan Zakat 
and Usher Act, 2012, suffice it to say that the said judgments held 
Member/Chairman of the District Committee to be “in the service of” a 
statutory body etc. and thus did not qualify for election to the local bodies 
by virtue of Section 24(1)(f) of the Balochistan Local Government Act, 2010 
and a period of at least six months had not elapsed since such persons’ 
resignation/retirement from such service. In the instant matter(s), the 
interpretation of a very similarly worded provision of law is involved, i.e. 
Section 27(2)(e) of the Act which provides that a person shall be 
disqualified from being elected as a member of the local government if he 
is “in the service of” any statutory body etc. and a period of not less than 
two years has elapsed since his resignation/retirement. However as we 
have held above, that being a Member/Chairman of the Local Committee 
does not fall within the meaning of being “in the service of” a statutory body 
etc., thus the two year post-resignation/retirement bar does not apply. 
The prohibition against participation in political activities is only relatable 
to 
the 
period 
whilst 
a 
person 
holds 
the 
post/position 
of 
Member/Chairman of the District Committee, but once he resigns, such 
bar disappears. In this respect, the judgments of the learned High Court of 
Balochistan (supra) do not enunciate proper law and are therefore set aside 
to the extent of the law laid down therein. 
13. 
 
In view of the foregoing, we find that being a Member and 
Chairman of the Local Committee, the petitioners were not “in the service of” 
a statutory body etc. within the purview of Section 27(2)(e) of the Act and 
therefore have a case for setting aside the order of the learned High Court 
which upheld the order of the Appellate Authority rejecting the nomination 
papers of the petitioners. The Appellate Authority and the learned Single 
Judge had erroneously declared the order passed by the Returning Officer 
C.Ps.No.3186 & 3187/2015 
 
-: 24 :-
accepting the nomination papers of the petitioners as illegal by incorrectly 
holding that the petitioners were hit by the disqualification enumerated in 
the above noted section.  
14. 
 
The above are the detailed reasons for the short order of even 
date whereby the petitioners’ civil petitions were converted into appeals 
and allowed, which reads as:- 
“For the reasons to be recorded later on, these petitions 
are converted into appeals and allowed. We are of the view 
that the petitioners are not disqualified from contesting the 
elections of local bodies under the provisions of Section 
27(2)(e) of the Punjab Local Government Act, 2013 as they 
do not fall within the purview of being in the service of a 
statutory body i.e. Local Zakat and Ushr Committee 
constituted under Section 18 of the Zakat and Ushr 
Ordinance, 1980 (the Ordinance). They, only being defined 
as ‘public servants’ under Section 23 of the Ordinance 
read with the provisions of Section 21, PPC, can also not 
be disqualified on the ground that they have been declared 
to be ‘public servants’ which (status) shall be considered 
and construed in the context of the letter and spirit of the 
respective law and its provisions.” 
 
 
 
 
 
 
 
 
 
JUDGE 
 
 
 
 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
Islamabad, the 
 
 
4th November, 2015 
Approved For Reporting 
Waqas Naseer/* 
 
 
