IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
 
PRESENT: 
MR. JUSTICE MUSHIR ALAM  
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Civil Petition No.3228 of 2015 
a/w CP 3229 of 2015 
(On appeal from the judgment dated 15.10.2015 
passed 
by 
the 
Lahore 
High 
Court, 
Lahore 
in 
W.P.No.30806-30807/15) 
 
 
Shakeel Sardar Awan and another 
…Petitioners in both   
Versus  
Election Appellate Authority, Tehsil Gujranwala (city) & others 
..Respondents  
 
 
For the petitioner: 
 
Mr. Jalees Ahmed Meer, ASC 
 
 
 
 
 
Mr. Mehr Khan Malik, AOR 
 
 
For Respondents No.3-4: 
Mr. Muhammad Munir Peracha, ASC 
(in CP 3229/15) 
 
 
On Court Notice: 
 
Mr. Razzaq A. Mirza, Addl. A.G. Pb. 
 
 
Date of hearing:  
 
09.11.2015 
 
 
 
 
  
ORDER  
 
 
 Dost Muhammad Khan, J.— This common judgment 
shall also decide CPLA No.3229/15 titled Shakeel Sardar Awan v. 
Election Appellate Authority, Tehsil Gujranwala (City) & others. 
Both the petitions have been filed against two different 
judgments, rendered by the Lahore High Court, Lahore in W.Ps. 
No.30806 and 30807 of 2015, albeit both the impugned 
judgments operate on similar and same legal and factual 
premises.  
CPs.3228-29/15 
2 
2. 
  
Arguments of the learned ASCs for the parties and Mr. 
Razzaq A. Mirza, learned Additional Advocate General, Punjab 
heard in considerable length and case file perused.  
3. 
  
Learned counsel for the petitioners in both the 
petitions has laid considerable stress on two-fold legal points, 
seeking disqualification of the respondents for contesting 
elections on the seats of Chairman and Vice Chairman of Union 
Council, consisting of Wards No.9 to 16.  
(i) 
The first limb of his arguments was that, respondents No.3 
and 4 had submitted five number of nomination papers, 
joining 
with 
them 
altogether 
different 
contestants, 
therefore, the same are hit by the mischief clause (6) of 
rule 12 of the Punjab Local Governments (Conduct of 
Elections) Rules 2013 {hereinafter referred to as, the 
Rules, 2013} and because one of the contestants had 
concealed that he was holding the status of being a 
Chairman, District Bait-ul-Mal, Gujranwala, which was 
essentially required to have been disclosed in the 
nomination papers, therefore, he stands disqualified. 
(ii) 
The second part of his plea was that, being a Chairman of 
District Bait-ul-Mal, the contesting respondent stands 
disqualified in view of the law declared by this Court in the 
case of Mirza Muhammad Tufail v. District Returning 
Officer (PLD 2007 SC 16).  
 
4. 
  
On the last plea, the learned ASC vehemently urged 
that in view of interpretation, made by this Court, of section 
152(1)(g) of the Punjab Local Government Ordinance 
(XIII of 2001) {hereinafter referred to as, the Ordinance, 
2001} the said respondent is holding a post, which attracts 
disqualification. 
CPs.3228-29/15 
3 
5. 
  
Mr. Muhammad Munir Peracha, learned ASC for the 
respondents and the learned Additional Advocate General, Punjab 
supported the impugned judgment in both the cases, rendered 
by the Lahore High Court, Lahore dated 15.10.2015, however, 
Mr. Muhammad Munir Peracha, learned ASC added that there is a 
wider difference between the powers of the Returning Officer and 
the Administrative Appellate Authority vis-à-vis the Tribunals, to 
be constituted and established by the Election Commission of 
Pakistan for the purpose of trial of the petitions, seeking 
disqualification 
of 
Returned 
Candidates 
on 
the 
grounds 
enumerated by the relevant provisions of law. He explained that 
the scheme of the law and the rules plainly understandable, are 
that the Returning Officer or for that matter Administrative 
Appellate Authority are vested with powers to see the eligibility 
and disqualification of the petitioners, which are specifically 
provided in sub-rule (3) of rule 14 of the Rules, 2013. To 
understand the true intent of rule making authority, the above 
sub-rule is reproduced below:- 
 
“14. Scrutiny.— 
 
(1) 
… 
 
(2) 
… 
 
(3) 
The Returning Officer may, either on his own 
accord or on any objection, conduct such summary 
enquiry as he may think fit and reject a nomination paper 
if he is satisfied that: 
(a) 
the candidate is not qualified to be elected as a 
member, Chairman and Vice Chairman, or Mayor 
and Deputy Mayor; 
(b) 
the proposer or the seconder is not qualified to 
subscribe to the nomination paper; 
CPs.3228-29/15 
4 
(c) 
any provision of rule 12 or rule 13 has not been 
complied with; or 
(d) 
the signature or thumb impression of the proposer 
or the seconder is not genuine.” 
The plea of the learned ASC is that, at pre-elections stage, the 
Returning Officer or the Appellate Authority have no power to 
travel beyond the mandate, given to them by the law and they 
can only look at the qualifications of the candidate and not his 
disqualifications because the latter pertain to post-elections stage 
where the Tribunal to be constituted holds a full-dress 
trial/inquiry.  
6. 
  
So far as the second limb of the objection is 
concerned, it has not impressed us in any manner. Our reasons 
are as follows:- 
(i) 
Firstly, that the ibid judgment was rendered by this 
Court while interpreting erstwhile provision of section 
152(1)(g) of the Ordinance, 2001, which has been 
repealed along with other provisions of the Ordinance by 
way of repealing provision of section 154 of the Punjab 
Local government Act, 2013 and the same has been 
replaced by the provision of sub-section (2) of section 27 
of the ibid Act. Clause (e) of the same provides as 
follows:- 
“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) 
…. 
CPs.3228-29/15 
5 
(e) 
is in the service of any statutory body or a 
body which is owned or 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.” 
(ii) 
This provision contains exception clause, which 
excludes from disqualifications those candidates, holding 
the 
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.  
(iii) 
The exception clause undoubtedly covers the case of 
the contesting respondents, however, under the relevant 
provisions of law i.e. Pakistan Bait-ul-Mal Act, 1992 the 
disqualification is not attracted to him because at the 
Provincial level, overall controlling authority is the 
Provincial Bait-ul-Mal Board, which has to be constituted 
by the Federal Board through notification in the official 
gazette however, after the 18th Amendment in the 
Constitution, these powers are now exercisable by the 
Provincial Governments.  
(iv) 
The Board is headed by the Chairman who shall be 
the Secretary, Government of Pakistan (now Province) 
Ministry of Human Development, Social Welfare and 
Special Education, ex-officio.  
(v) 
The District Bait-ul-Mal has a very limited role and is 
under the control and management of the Provincial Bait-
ul-Mal Board. All policies and conduct of business, 
CPs.3228-29/15 
6 
regulating its proceedings shall be done according to the 
procedure, prescribed by the Provincial Board.  
(vi) 
The contesting respondent is a non-official Chairman 
of the District Board, who shall have to hold office during 
the pleasure of the Provincial Board.  
(vii) The area of activities of the Provincial Board has 
been well-defined in section 4 thereof, while District Board 
Bait-ul-Mal has to follow the policies of the Provincial Board 
and has no independent power to be exercised, taking any 
decision 
whatsoever, 
in 
disregard 
of 
the 
policies 
formulated by the Provincial Board.  
(viii) Now coming to the interpretation of the provision of 
clause (e) of sub-section (2) of section 27 of the Act, 
2013, there can be no gainsaying that the post of the 
Chairman or any member of the District Board is entirely 
formal in nature and it has no independent role to play; to 
confer any benefit on any person by dis-regarding the 
policy guidelines given by the Provincial Board.  
(ix) 
We have gone through the entire scheme of the 
Bait-ul-Mal Act, 1992 and the provisions of section 7(2) 
thereof, which clearly provides that non-official member 
shall not draw any salary, but shall be entitled to such 
facilities and privileges as may be prescribed from time to 
time. It is not established at the bar that the Chairman is 
paid remuneration or any type of emoluments in cash 
thus, it appears that except some privileges or facilities 
which are provided at office, nothing is paid in cash either 
as remuneration or “honorarium”. Hence, in the absence of 
clear proof, which has not been provided to us, it could not 
be 
held 
on 
high 
presumption 
that 
the 
contesting 
respondent as Chairman, District Bait-ul-Mal is getting 
pecuniary benefits from the Government or/and from the 
fund/revenue generated by the Bait-ul-Mal at the Federal 
level, the Provincial level or to say, the District level.  
CPs.3228-29/15 
7 
(x) 
The persons, who are to get financial assistance from 
the fund of Bait-ul-Mal, are clearly defined in the provision 
of section 4 thereof therefore, not a slight discussion is left 
for the District Bait-ul-Mal, much less the Provincial Board 
of Bait-ul-Mal to extend undue benefit to any undeserved 
person because the guidelines given, are clearer than 
crystal. Moreover, it appears that the District Bait-ul-Mal 
Board is constituted by the Provincial Board of Bait-ul-Mal, 
keeping in view criteria laid down in the provision of 
section 3 of the Bait-ul-Mal Act. The combined study of the 
above provision of the Bait-ul-Mal Act leads us to a definite 
conclusion that it is a voluntary service, rendered by the 
Social Workers, possessing high integrity and spotless 
career because the word, “Ameen” has been clearly 
mentioned therein. Therefore, a person having the above 
qualifications, inter alia, can become eligible as Member or 
the Chairman of the Board. To make it more clear, in our 
view it is indeed a social organization.  
(xi) 
True, that the Chairman, the Members and the 
servants of the Board while acting in pursuance of any 
provision of the Act, shall be deemed to be public servants 
within the meaning of section 21 of the Pakistan Penal 
Code however, the same is provided for a restricted and 
well-defined purpose so that the Chairman, Members and 
servants of the Board do not indulge in corrupt practices 
and if they commit a breach of trust then, they will be 
liable to be proceeded against for that offence(s) under 
PPC. When the plain language of the Statute is quite clear 
then it is not for the Court to widen the scope of the same.  
(xii) Even in the judgment given in Mirza Muhammad 
Tufail’s case (supra) this Court has held that the elected 
representatives should not be open to any influence or 
temptation, which may be stumbling block in their way to 
serve the people of their constituency, truly and freely. 
Possibility of existence of such influence or the interest or 
temptation is sufficient disqualification unless law provides 
otherwise i.e. the ruling concept.  
CPs.3228-29/15 
8 
(xiii) True that the expression “in the service” shall not 
be taken in a restricted, narrow and technical sense 
however, its scope could not be widened out of proportion. 
It was also held in the cited case as follows:- 
“Thus, the Courts found it impracticable to 
attempt a definition by which to test every 
case that may arise.” 
Moreover, there exists no master and servant relationship 
nor the contesting respondent has the powers to hire and 
fire any employee of the District Bait-ul-Mal and for that 
matter the case is to be referred to the Provincial Board, 
which is the ultimate authority to make independent 
decision.   
(xiv) In the Case of Aftab Shahban Mirani v. President 
of 
Pakistan(1998 
SCMR 
1863) 
it 
was 
held 
that 
disqualification of a candidate at pre-election stage on the 
basis of summary inquiry is not proper unless the 
disqualification is of the nature, which is patent, and which 
needs no detailed inquiry.  
(xv) Again in the short order of this Court in CP 3186/15 
(Ghazanfar Ali v. Appellate Authority/Additional District 
Judge, Sahiwal and others) dated 4.11.2015, appeals of 
the contesting candidates were allowed and it was held 
that they were not disqualified from contesting the 
elections of the Local Bodies under the provision of section 
27(2)(e) of the Act, 2013 as they do not fall within the 
purview of being in the service of the statutory body i.e. 
Local Zakat and Ushr Committee constituted u/s 18 of the 
Zakat and Ushr Ordinance, 1980.  
(xvi) If in future the petitioner come across some 
substantial materials at post elections stage, attracting 
disqualification clause to the contesting respondents, then 
he would have an opportunity to file election petition 
before the Election Tribunal, to be constituted and 
established by the Election Commission of Pakistan, which 
would hold extensive trial/proceedings, recording evidence, 
CPs.3228-29/15 
9 
collecting and bringing on record documentary evidence in 
that regard. Moreover, both the parties would have an 
ample opportunity to plead their cases before the Tribunal 
elaborately and very clearly, therefore, in our considered 
view this plea/objection of the petitioner, which has been 
concurrently rejected by all the three foras, is not tenable 
in law.  
7. 
  
so far as the filing of five nomination papers is 
concerned, that is squarely permitted by the provisions of Rule 
12(6) of the Rule, 2013 where it is provided that a person may 
be nominated for a seat in the same constituency by not more 
than five nomination papers. While under sub-rule (7) if the 
proposer or a seconder to more than one nomination papers is 
the same voter in the Ward, such nomination papers except the 
one received first by the Returning Officer shall be void, which is 
not the case in hand. Thus, when the law has permitted a certain 
course except with the above restriction then, first plea taken is 
entirely based on misconception of law. The Court is not 
supposed to add anything to law which is not provided therein 
nor to omit any word or expression from a Statute, which is 
expressly provided therein because under the cannon of 
interpretation of Statute the Court is to interpret the law and not 
to legislate the same or to provide the omission, which was 
deliberate and was not provided by the law makers for obvious 
reasons.  
8. 
  
Before parting with this judgment, we may point out 
here that the respondents have equal, rather more supreme 
fundamental rights to be chosen as representatives therefore, 
CPs.3228-29/15 
10
even in a case of borderline, where two interpretations of Statute 
are possible, the one favouring the candidate shall be preferred 
not in favour of objector, to preserve, protect and guarantee the 
fundamental rights, provided by the Constitution and the law and 
not to deprive a citizen from such rights on trifling grounds, 
based on mere technicalities or placing another interpretation on 
any provision of law, which is not expressly gleaned out 
therefrom by disqualifying a candidate, depriving him of 
fundamental right.  
 
Accordingly, both these petitions are found devoid of all 
legal merits.  
These are the reasons for our short order of even date, which is 
as follows:- 
“For the reasons to follow, these petitions are 
dismissed and leave to appeal declined.” 
 
 
Judge  
 
 
 
Judge 
 
 
Islamabad, the   
9th November, 2015 
Nisar /-‘ 
 
 
 
 
Approved For Reporting 
 
