IN THE SUPREME COURT OF PAKISTAN 
  
 
(Appellate Jurisdiction) 
 
 
 
 
 
PRESENT: 
 
 
MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE SH. AZMAT SAEED 
 
 
MR. JUSTICE QAZI FAEZ ISA 
 
 
CIVIL APPEAL NO.294 OF 2015 
(On appeal from judgment dated 
10.4.2015, passed by the Election 
Tribunal, Hyderabad, in Election 
Petition No.341/2013) 
 
 
Muhammad Nawaz Chandio 
 
… Appellant 
 
Versus 
 
Muhammad Ismail Rahu and others 
 
… Respondents 
 
 
For the Appellant 
: Mr. Farooq H. Naek, Sr. ASC 
Raja Abdul Ghafoor, AOR 
 
  
For Respondent No.1  
: Mr. Wasim Sajjad, Sr. ASC 
Syed Rifaqat Hussain Shah, AOR 
 
  
Date of Hearing 
: 10.12.2015 
  
 
JUDGMENT  
 
 
SH. AZMAT SAEED, J.- This Civil Appeal 
under Section 67(3) of the Representation of the People 
Act, 1976 (ROPA), is directed against the judgment dated 
10.04.2015, passed by the learned Election Tribunal, 
Hyderabad, whereby Election Petition bearing No.341 of 
2013, filed by Respondent No.1 was allowed and re-
election in 37 Polling Stations of the Sindh Provincial 
CA.294/2015. 
2 
Assembly Seat No.PS-59-Badin (V), was directed to be 
held. 
2. 
 
The brief facts necessary for the adjudication of 
lis at hand are that in the General Elections held on the 
11th of May, 2013, the Appellant and Respondents No.1 
to 12 contested for the Seat for the Provincial Assembly of 
the Province of Sindh from Constituency PS-59 Badin (V). 
After the elections, the Appellant was declared and 
notified as a Returned Candidate, having secured 38,315 
votes, while Respondent No.1 was the runner up, 
securing 36,960 votes. The Appellant had lead of 1355 
votes. Respondent No.1 challenged the said election 
through Election Petition No.341 of 2013, which was 
entrusted for adjudication to the learned Election 
Tribunal, Hyderabad. It was the case of Respondent No.1 
that in the General Elections of 2008, there were only 97 
Polling Stations, while with mala fide intention the 
number of Polling Stations were increased to 120 and 
most of such additional Polling Stations were established 
in the areas where the Appellant had influence. It was 
contended that in several identified Polling Stations, 
despite applications filed by Respondent No.1, neither the 
Police nor the Rangers were deployed and only Pakistan 
CA.294/2015. 
3 
Qomi Razakars were posted and such Pakistan Qomi 
Razakars in connivance with the polling staff not only 
permitted but participated in the harassment of voters by 
the Armed supporters of the Appellant and also 
facilitated in casting of bogus votes thereat and thereby 
rigged the elections to the benefit of the Appellant. 
Pursuant to notice, the present Appellant entered 
appearance and contested the Election Petition by filing a 
written statement, denying the allegations made therein. 
Furthermore, objections were taken regarding the very 
maintainability of the Election Petition, inter alia, on the 
ground that the mandatory provisions of Section 55(3) of 
the ROPA read with Order VI Rule 15 CPC with regard to 
the verification of the Election Petition had not been 
complied with.  
3. 
 
On the divergent pleadings of the parties, 
issues were framed. Whereafter, the contesting parties 
i.e. the Appellant and Respondent No.1 produced their 
respective oral as well as documentary evidence. Both the 
Appellant and Respondent No.1 entered the witness box 
and were subjected to cross-examination. During the 
pendency of the Election Petition, Respondent No.1 filed 
an application before the learned Election Tribunal 
CA.294/2015. 
4 
purportedly under Section 84 of the Qanun-e-Shahadat 
Order, 1984 (hereinafter referred to as the Order of 1984) 
seeking 
verification 
by 
National 
and 
Database 
Registration Authority (NADRA) of thumb impression of 
the voters on the counterfoils of the Ballot Papers of 37 
specified Polling Stations. The said application was 
allowed by the learned Election Tribunal, Hyderabad, 
vide Order dated 23.10.2014. Pursuant to the said Order, 
the requisite election material was made available to 
NADRA. Whereafter, a Report (Exh.E/1) was received 
through Mr. Maqsood Ali, Manager, NADRA, who 
appeared as PW-4 and was subjected to cross-
examination by the present Appellant. On the conclusion 
of the trial, after hearing the counsel for the parties, the 
Election Tribunal vide the judgment impugned dated 
10.04.2015 allowed the Election Petition declaring the 
election at 37 Polling Stations as void due to illegal 
practices having been committed and it was directed that 
the Appellant be de-notified and re-election be held in the 
said 37 Polling Stations.  
4. 
 
It was contended by the learned counsel for the 
Appellant that the Election Petition filed by Respondent 
No.1, on the face of it, was not verified in terms of Order 
CA.294/2015. 
5 
VI Rule 15 CPC, thereby the mandatory requirements of 
Section 55(3) of ROPA were not complied with, hence, the 
said Election Petition was not maintainable and ought to 
have been summarily dismissed. It is also contended that 
the application purportedly under Section 84 of the Order 
of 1984, filed by Respondent No.1 was illegally allowed by 
the learned Election Tribunal, as recounting and re-
examining of the Ballot Papers and the election material, 
including counterfoils and Electoral Lists cannot be 
allowed as a matter of course. Applications, in this 
behalf, can only be entertained, if sufficient material has 
been brought on the record through cogent evidence to 
justify such a course of action. In the instant case, it was 
contended that the matter was referred to NADRA for 
verification of the thumb impressions without any legal 
or factual basis. It is added that the process of 
verification 
allegedly 
carried 
out 
by 
NADRA 
was 
conducted behind the back of the Appellant who was 
neither summoned nor associated with the said process, 
hence, such Report could not have been relied upon by 
the learned Election Tribunal. It is further added that the 
said Report was produced by PW-4 (Maqsood Ali), who 
admittedly was not the author of such Report nor 
CA.294/2015. 
6 
personally conducted the verification of the thumb 
impressions on the counterfoils of the Ballot Papers. 
Hence, such Report was not only inadmissible in 
evidence but could also not be relied upon by the learned 
Election Tribunal as a basis of passing the impugned 
judgment, which is therefore, not sustainable in law. It is 
contended that the allegations made in the Election 
Petition were not proved through cogent evidence, 
especially as Respondent No.1 did not file an affidavit-in-
evidence in support thereof. The learned Election 
Tribunal, it is contended, illegally permitted Respondent 
No.1 to produce his Election Petition as evidence. 
Pleadings are not a substitute for substantive evidence. 
The learned counsel for the Appellant in support of his 
contentions relied upon the judgments in the cases, 
reported as (1) Mian Ejaz Shafi v. Syed Ashraf Shah, 1st 
Additional Sessions Judge, Karachi and Returning 
Officer, Karachi West-I and 12 others (1996 SCMR 605), 
(2) Lt. Col. (Retd) Ghazanfar Abbas Shah v. Mehr Khalid 
Mehmood Sargana and others (2015 SCMR 1585) and (3) 
Bhabhi v. Sheo Govind and others (AIR 1975 SC 2117).  
5. 
 
The learned counsel for Respondent No.1 
controverted the contentions raised on behalf of the 
CA.294/2015. 
7 
Appellant by contending that the Election Petition was 
duly verified and was compliant with the requirements of 
Section 55(3) of ROPA, as interpreted by this Court and 
the issue, in this behalf, has been adjudicated upon by 
the learned Election Tribunal in accordance with law. It 
is added that sufficient material was available on record 
to justify the referral to NADRA for verification of the 
thumb impressions on the counterfoils of the Ballot 
Papers. It is further added that according to the Report of 
NADRA, which is a neutral body, endowed with the 
statutory duty and requisite expertise to effect such 
verification, it is clear and obvious that more than five 
thousand votes were counted in the final tally, which 
were bogus and invalid and the lead of the Appellant is 
less than such invalid and bogus votes. Consequently, 
the learned Election Tribunal by way of the impugned 
judgment has rightly ordered a re-poll in the said 37 
Polling Stations in respect whereof NADRA had submitted 
its Report. In support of his contentions, the learned 
counsel for Respondent No.1 relied upon the judgments 
in the cases, reported as (1) Mst. Khair-ul-Nisa and 6 
others v. Malik Muhammad Ishaque and 2 others (PLD 
1972 SC 25), (2)  Sardarzada Zafar Abbas and others v. 
CA.294/2015. 
8 
Syed Hassan Murtaza and others (PLD 2005 SC 600), (3) 
Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) 
and (4) Muhammad Akram and another v. Mst. Farida 
Bibi and others (2007 SCMR 1719). 
6. 
 
Heard and the available record perused. 
7. 
 
Adverting first to the contention of the learned 
counsel for the Appellant that the Election Petition was 
not verified in accordance with law i.e. under Rule 15 
CPC, hence, did not comply with the mandatory 
requirement of Section 55(3) of ROPA and, therefore, 
merited summary dismissal on this ground. We have 
examined the Election Petition, a copy whereof is 
available on the record. It bears verification on solemn 
affirmation that what has been stated therein is true to 
the best of knowledge and belief of the Election Petitioner. 
It bears the stamp and signature of the Oath 
Commissioner. The place (Hyderabad) whereat the 
contents of the Election Petition were verified is also 
stated therein. The date is also mentioned by the Oath 
Commissioner. The Election Petitioner i.e. the present 
Respondent No.1 entered the witness box as PW-1 and 
owned the said Election Petition by identifying his 
signatures thereupon. In this view of the matter, it 
CA.294/2015. 
9 
appears that the requirement of Order VI Rule 15 CPC 
has in essence been complied with. The additional 
requirements enjoined upon the Oath Commissioner 
referred to by the learned counsel for the Appellant by 
relying upon the judgment of this Court in the case of Lt. 
Col. (Retd) Ghazanfar Abbas’s case (supra) are not really 
relevant as such requirements, if applicable, would be 
mandatory in the future as has been specifically 
mentioned in the said judgment. In this view of the 
matter, the learned Election Tribunal has correctly held 
that the Election Petition could not be dismissed on the 
ground that it was not duly verified. 
8. 
 
The learned counsel for the Appellant also 
stressed the fact that Respondent No.1 did not file a 
separate affidavit-in-evidence and while entering the 
witness box as PW-1 had only tendered his Election 
Petition in evidence as Exh.F/1, which was objected to on 
the ground that pleadings are not substantial piece of 
evidence. The status of pleadings needs to be identified. 
This Court in the case, reported as Sardar Muhammad 
Naseem Khan v. Returning Officer, PP-12 and others 
(2015 SCMR 1698) has observed as follows: 
CA.294/2015. 
10 
“3. 
… The importance of the pleadings 
and its legal value and significance can 
be evaluated and gauged from the fact 
that it is primarily on the basis thereupon 
that the issues are framed; though the 
pleadings by themselves are not the 
evidence of the case, the parties to 
litigation have to lead the evidence 
strictly in line and in consonance thereof 
to prove their respective pleas. …” 
 
As a general rule and practice, the statements of the 
witnesses are recorded via-voce, subject to the limitation, 
in this behalf, set forth in Qanun-e-Shahadat Order, 
1984 including Article 137 pertaining to prohibition 
regarding leading questions and are also subject to cross-
examination. Evidence may also be taken in the form of 
Affidavits, if so, directed or permitted by any Special Law 
or if specifically ordered by the Court or with the consent 
of the parties in terms of Order 19 Rule 1 CPC. The 
procedure adopted by the learned Election Tribunal, in 
this behalf, was perhaps not strictly in accordance with 
law and it would have been appropriate for Respondent 
No.1 to have at least filed a separate affidavit-in-evidence. 
Be that as it may, in pith and substance the judgment of 
the learned Election Tribunal is primarily based on the 
statements of other PWs, more particularly, his Election 
Agents (PWs 6 and 7) and the Report of NADRA (Exh.E/1) 
produced by PW-4. In the circumstances, the contentions 
CA.294/2015. 
11 
raised in this behalf by the counsel for the Appellant pale 
into insignificance and have no real bearing on the 
adjudication of the Election Petition. 
9. 
 
 The learned counsel for the Appellant has 
assailed the Report of NADRA (Exh.E/1) on two counts; 
firstly, that the Election Tribunal erred in law by allowing 
the application under Section 84 of the Order of 1984, for 
verification of the thumb impressions on the counterfoils 
of Ballot Papers in the absence of any material evidence 
on the record to justify such verification, as such 
verification or re-count cannot be ordered as a matter of 
course and secondly, that neither the Appellant nor his 
nominee were associated with the process of the said 
verification carried out by NADRA. Furthermore, the 
Report was not proved by the person who actually 
prepared the same. 
10.  
A perusal of the record reveals that in the 
reply/counter affidavit filed by the Appellant to the 
application under Section 84 of the Order of 1984, no 
objection was raised by the Appellant that there wasn’t 
sufficient material on the record to justify verification of 
the thumb impressions. In fact, it was pleaded that 
verification of the votes cast should be conducted at the 
CA.294/2015. 
12 
the home Polling Stations of Respondent No.1 i.e. PS-56 
and PS-57 (however no such plea has been advanced 
before this Court). The Report of NADRA was received 
and adduced in evidence as Exh.E/1 without any 
objection being raised by the Appellant regarding its 
relevance or admissibility. Thus, there is no question 
about its admissibility in evidence before this Court.  
11.  
The cross-examination of PW-4 reveals that the 
verification process was carried out in accordance with 
the predetermined Standard Operating Procedure (SOP) 
of NADRA and such Report was in fact generated by the 
Computers. No suggestion was given to PW-4 that the 
entries in such Computers were made incorrectly. 
Nothing has come on record to denude the Report of its 
veracity or to persuade us not to read it in evidence. The 
fact of the matter is that such Report is on record and 
therefore in evidence and cannot be ignored by this 
Court.   
12.  
 In the Constituency in question, there were 
120 Polling Stations. There is no dispute between the 
parties with regard to the conduct of the Elections and 
the tally of the votes in 83 of such Polling Stations. 
According to the admitted final result of such undisputed 
CA.294/2015. 
13 
83 Polling Stations, the Appellant received 20855 votes, 
while Respondent No.1 received 26839 votes. Thus, 
Respondent No.1 had a lead of 5984 votes in the said 83 
Polling Stations.  
13.  
With regard to the disputed 37 Polling Stations, 
according to the final tally, the Appellant had received 
16012 votes, while Respondent No.1 received 8827 votes. 
According to the Report of NADRA (Exh.E/1), a total 
number of 26947 votes were polled at the disputed 37 
Polling Stations and the counterfoils of Ballot Papers and 
other record thereby was sent to NADRA for verification. 
In the said Report, 4979 counterfoils of Ballot Papers 
contained thumb impressions, which did not correspond 
to the CNIC numbers scribed thereupon or did not have 
any CNIC number. 132 counterfoils contained thumb 
impressions of persons who had voted more than once. 
85 counterfoils of Ballot Papers did not bear any thumb 
impression of the voters. Thus, a total of 5196 votes, on 
the face of it, appear to be bogus having not been polled 
by genuine voters. The thumb impressions on the 
remaining counterfoils were either found to be genuine or 
unverifiable due to defective ink used. It is also a matter 
CA.294/2015. 
14 
of record that out of the said 37 Polling Stations the 
Appellant had won in 34 Polling Stations.  
14.  
The aforesaid Report of NADRA establishes that 
in the aforesaid 37 Polling Stations illegal practices as 
defined by Section 83 of the ROPA were indulged in 
inasmuch as Ballot Papers issued to and polled by 
persons not authorized or entitled under the law to do so. 
Double voting was also prevalent. However, it has not 
been proved that such illegal practices were conducted by 
the present Appellant. In the event of such illegal 
practices being proved the course of action to be adopted 
by the learned Election Tribunal and the Orders to be 
passed in this behalf are circumscribed by Section 70 of 
the ROPA, which reads as follows:- 
 
“70. Ground for declaring election as a 
whole void.- The Tribunal shall declare 
the election as a whole to be void if it is 
satisfied that the result of the election 
has been materially affected by reason    
of – 
 
 
(a) 
the failure of any person to comply 
with the provisions of the Act or the 
rules; or 
 
 
(b) 
the prevalence of extensive corrupt 
or illegal practice at the election.” 
 
15.  
Before any Order can be passed by learned 
Election Tribunal, it must be established on the record 
CA.294/2015. 
15 
that the illegal practices have “materially affected” the 
result of the election. In the instant case, it is evident 
that the number of identified bogus votes (5196) is more 
than the lead (38315 - 36960 = 1355) of the Appellant as 
per the disputed election results notified by the Election 
Commission of Pakistan. If the result of the 37 Polling 
Stations in dispute were to be excluded in their entirety 
from the final tally i.e. it is Respondent No.1 who would 
have received more votes and would be entitled to be 
declared as a Returned Candidate. However, it is 
impossible to determine whether such bogus votes were 
in fact polled in favour of the Appellant or the 
Respondents, therefore, re-poll in the said Polling 
Stations is the only logical way of determining the will of 
the people of the Constituency in question, as has been 
ordered by the learned Election Tribunal.   
16.  
It has been noticed that Section 70 of ROPA, 
endows 
the 
learned 
Election 
Tribunal 
with 
the 
jurisdiction, in case of commission of illegal practices, to 
declare the election as whole void. However, in the 
instant case by way of the impugned judgment, elections 
in 37 Polling Stations alone have been declared as void 
and re-poll thereat ordered. In the circumstances, it 
CA.294/2015. 
16 
needs to be examined whether such order/judgment 
could have been passed by the learned Election Tribunal.  
17.  
An overview of the Constitution of the Islamic 
Republic of Pakistan, 1973, and ROPA reveals that 
political sovereignty is to be exercised by the chosen 
representatives of the people, as is apparent from the 
Preamble and the Article 2A of the Constitution. Such 
representatives must be chosen by the people through a 
free, fair and impartial election, as is mandated by Article 
218 of the Constitution. In case of an election dispute, 
the same must be resolved through an Election Petition 
by the Election Tribunal, established in terms of Article 
225 of the Constitution under ROPA. Such disputes, 
subject to mandatory procedural requirements, must 
necessarily be resolved in a manner that the Will of the 
people is given effect to and respected. Such is the 
obvious purpose of ROPA and its provisions, like that of 
any other law, must be construed through a purposive 
rather than a literal interpretation as is now settled law. 
Reference in this behalf may be made to the judgments of 
this Court, reported as (1) Rana Aamer Raza Ashfaq and 
another v. Dr. Minhaj Ahmad Khan and another (2012 
SCMR 6), (2) Messrs Gadoon Textile Mills and 814 others 
CA.294/2015. 
17 
v. WAPDA and others (1997 SCMR 641) and (3) 
Federation of Pakistan through Ministry of Finance and 
others v. M/s. Noori Trading Corporation (Private) 
Limited and 14 others (1992 SCMR 710). 
18.  
It is in the above context that the provisions of 
ROPA must necessarily be construed so that the self-
evident purpose of ROPA and its provision is achieved. 
Upon the culmination of proceedings upon an Election 
Petition filed before it the Election Tribunal can pass any 
of the orders or grant any of reliefs as contemplated by 
Section 67(1) of ROPA, which for ease of reference is 
reproduced hereunder: 
  
“67. Decision of the Tribunal.- (1) The 
Tribunal may, upon the conclusion of the 
trial of an election petition, make an 
order- 
 
  
 
 
(a) 
dismissing the petition; 
  
  
(b) 
declaring the election of the 
returned candidate to be void; 
 
  
(c) 
declaring the election of the 
returned candidate to be void and 
the 
petitioner 
or 
any 
other 
contesting 
candidate 
to 
have 
been duly elected; or 
 
  
(d) 
declaring the election as a 
whole to be void.  
 
19.  
On close scrutiny, it would appear that the 
relief contemplated by Section 67(1)(d) of ROPA “declaring 
CA.294/2015. 
18 
the election as a whole to be void” has been used in 
contradiction to the relief which may be granted under 
Section 67(1)(c) of ROPA, declaring the election of a 
returned candidate to be void. It is in the above context 
that the phrase “as a whole to be void” must necessarily 
be interpreted.  
20.  
It is a settled law that as a general principle of 
construction a word or phrase implying the word “whole” 
ordinarily includes any part thereof. Reference in this 
behalf may be made to the “Statutory Interpretation” A 
Code (Fourth Edition) by F A R Bennion MA (Oxon) 
Barrister, wherein it has been observed, as follows: 
  
“Greater includes less The requirement 
that commonsense shall be used in 
interpretation brings in such obvious 
principles as that the greater includes 
the less: omne majus continent in se 
minus. This is a principle the law 
recognizes in many contexts. 
  
………………………………………………….. 
  
Example 197.5 Section 3(1) of the 
Criminal Law Act 1967 states that a 
person may use such force as is 
reasonable in the prevention of crime. 
Milmo J said ‘It is, of course, true that 
the charge against the defendant was 
not that he used force but that he 
threatened to use force. However if 
force is permissible, something less, for 
example 
a 
threat, 
must 
also 
be 
permissible …’” 
  
 
CA.294/2015. 
19 
The aforesaid quoted maxim of interpretation is not 
unknown to the Courts in Pakistan. Reference in this 
behalf may be made to the judgment, reported as 
Reference under S. 12, Sindh Courts’ Act, 1926 [PLD 
1956 (W.P.) Karachi 178], wherein Justice S.A. Rehman, 
as he then was, observed as follows: 
  
“Omne majus continet in se minus - the 
greater contains the less – is a well 
known maxim of the law.” 
 
21.  
The aforesaid indicates that the possibility of 
declaring a part of the election i.e. in some of the Polling 
Stations to be void appears to have been catered for and 
flows from Sections 67 and 70 of ROPA when interpreted 
in accordance with the settled rules of statutory 
construction especially as both the aforesaid provisions 
enumerate the reliefs that can possibly be granted by an 
Election Tribunal upon an Election Petition. It is an 
equally settled principle of law and a concept firmly 
embedded in our jurisprudence that a Court or Tribunal 
endowed with the jurisdiction to grant an entire relief is 
equally authorized to give partial relief. Reference in this 
behalf may be made to the judgment, reported as Sind 
Employees’ Social Security Institution and another v. 
CA.294/2015. 
20 
Adamjee Cotton Mills Ltd (PLD 1975 SC 32), wherein it 
has been held as follows: 
  
“It is not disputed that the Social 
Security Court, on an appeal brought 
before it under the above section can 
set aside the order appealed against in 
its entirety or may grant even partial 
relief depending upon the facts of a 
particular case. …” 
 
22.  
There is yet another aspect of the matter that 
the Principle of Severability is well recognized and held 
applicable to election matters. In this behalf, this Court 
in the judgment, reported as Haji Behram Khan v. Abdul 
Hameed Khan Achakzai and others (PLD 1990 SC 352), 
held as follows: 
“We agree with the High Court 
that in a case where a serious violation 
of 
law 
or 
any 
statutory 
rule 
is 
established by a group of miscreants or 
by the supporters of a losing candidate 
in one or two polling stations, the 
election of the whole constituency may 
not be set aside if on the strength of the 
votes cast in other polling stations and 
the available record a clear result is 
determinable. In this case, respondent 
No.1 had obtained 5,122 votes and the 
next highest number of votes obtained 
were by the petitioner Haji Behram 
Khan namely 2,625 votes. Admittedly, 
the three ballot boxes which were not 
recovered contained only 1,785 votes 
and even if all of them had been cast in 
favour of Haji Behram Khan (petitioner 
herein) he would still have lost. In these 
circumstances, to declare the election 
of the whole constituency as void on 
account 
of 
the 
misdoings 
or 
the 
CA.294/2015. 
21 
hooliganism 
perpetrated 
by 
the 
supporters of other candidate would be 
to encourage candidates who felt that 
they are losing getting the whole 
election annulled and frustrating the 
wishes of the electorate. This Court will 
not 
easily 
countenance 
such 
a 
malversion of the electoral process. It 
has been repeatedly held by this Court 
that it shall not act in aid of injustice 
and where an order of the High Court 
has been passed to bring about a just, 
proper and fair result, this Court will 
not interfere.”  
 
23.  
In the case of Mrs. Monica Kamran Dost v. Mrs. 
Lilavati Barchandani and another (PLD 1987 SC 197), 
equal numbers of valid votes were polled in favour of the 
two 
contesting 
candidates. 
The 
Returning 
Officer 
misapplied the provisions of sub-rule 5 of rule 66 of the 
Representation of the Peoples (Conduct of Election) Rules, 
1977. On an Election Petition, the Election Tribunal 
apparently following a literal interpretation of Section 70 
of ROPA, declared the election as a whole void. On 
appeal, this Court modified the result and the contention 
that the Election Tribunal should have declared the 
election of the Appellant to be void was repelled. 
24.  
Furthermore, such an interpretation would 
encourage and enable a losing candidate to precipitate a 
re-poll in the entire Constituency by disturbing the 
CA.294/2015. 
22 
election at one or two Polling Stations and thereby 
frustrating and subverting the purpose of the law. 
25.  
The ROPA in addition to the powers conferred 
on the Election Tribunal has also conferred powers on 
the ECP to pass appropriate orders regarding the conduct 
of the election, including Section 103-AA, which is 
reproduced hereunder: 
  
“Sec. 103-AA. Power of Commission 
to 
declare 
a 
poll 
void.—(1) 
Notwithstanding anything contained in 
this Act, it, from facts apparent on the 
face of the record and after such 
summary inquiry as it may deem 
necessary, the Commission is satisfied 
that, by reason of grave illegalities or 
violation of the provisions of this Act or 
the rules, the poll in any constituency 
ought 
to 
be 
declared 
void, 
the 
Commission may make a declaration 
accordingly and, by notification in the 
official 
Gazette, 
call 
upon 
that 
constituency to elect a member in the 
manner provided for in section 108. 
 
  
(2) 
Notwithstanding the publication 
of the name of a returned candidate 
under sub-section (4) of section 42, the 
Commission may exercise the powers 
conferred on it by sub-section (1) before 
the expiration of sixty days after such 
publication; 
and, 
where 
the 
Commission does not finally dispose of 
a case within the said period, the 
election of the returned candidate shall 
be deemed to have become final, 
subject to a decision of a Tribunal.  
 
  
(3) 
While 
exercising 
the 
powers 
conferred on it by sub-section (1), the 
Commission shall be deemed to be a 
CA.294/2015. 
23 
Tribunal to which an election petition 
has 
been 
presented 
and 
shall, 
notwithstanding anything contained in 
Chapter 
VII, 
regulate 
its 
own 
procedure.” 
 
A perusal of the aforesaid provisions makes it clear and 
obvious that inter alia on account of violation of any of 
the provisions of ROPA or the Rules framed thereunder or 
on account of grave illegality, the ECP may declare the 
poll in any Constituency as void. It may be noticed that 
no specific power has been conferred to declare an 
election in a part of the Constituency as void or to direct 
a re-poll at a few Polling Stations, yet in exercise of the 
powers conferred by Section 103-AA of ROPA, the ECP on 
many occasions has ordered re-poll in a few specific 
Polling Stations. An order in one of such cases was 
challenged, inter alia, on the ground that in terms of 
Section 103-AA of ROPA, election as a whole could be 
declared void and no partial re-poll in a few Polling 
Stations could be ordered. In the said case, reported as 
Aftab Shahban Mirani and others v. Muhammad Ibrahim 
and others (PLD 2008 SC 779) it was held as follows: 
  
“The emphasis of the learned counsel 
for the respondent that the Election 
Commission, without holding proper 
inquiry could not exercise powers 
under section 103-AA of the Act to 
declare the election of a constituency as 
CA.294/2015. 
24 
a whole void and there is also no 
concept 
of 
partial 
declaration 
of 
election void, has no legal foundation. 
The Election Commission of Pakistan 
may exercise power under section 103-
AA of the Act in the manner provided 
therein and not beyond that, but the 
plain reading of section 103-AA of the 
Act would show that meaning of 
expression “in the constituency void” is 
not 
only 
referable 
to 
the 
whole 
constituency rather its true import is 
election in the constituency as a whole 
or at one or more polling stations. It 
was 
held 
in 
Abdul 
Hamid 
Khan 
Achakzai v. Election Commission of 
Pakistan 1989 CLC 1833 as under:--  
 
  
“Election commission’s jurisdiction 
for declaring election of the whole 
constituency as void would depend 
on 
being 
satisfied 
about 
the 
existence of grave illegalities or 
serious violations of the provisions 
of the Act LXXXV of 1976 or 
Election Rules in the conduct of 
polls in any constituency.” 
 
  
 
It was further held that:- 
 
  
“No doubt Election Commission is 
vested with jurisdiction to declare 
void, 
results 
of 
the 
entire 
constituency within the purview of 
section 103-AA but such authority 
is exercisable only when other 
express provisions of law are not 
suitable to cater for the given 
situation.” 
 
Holding of a re-poll in a few Polling Stations is not alien 
to our electoral jurisprudence. 
26.  
The provisions of the Indian Representation of 
the People Act, 1951, with regard to the Election Petitions 
CA.294/2015. 
25 
are not dissimilar to that of ROPA. Though no doubt, the 
phrase “declaring the election as a whole void” has not 
been employed yet in the relevant provisions, no specific 
power to declare the election in a few Polling Stations as 
void is granted. The Supreme Court of India upon an 
Election Petition has repeatedly declared the result of a 
few Polling Stations to be void and a re-poll in such 
Polling Stations ordered. Reference in this behalf may be 
made to the judgments, reported as Mohinder Singh Gill 
and another v. The Chief Election Commissioner, New 
Delhi and others (AIR 1978 SC 851) and A. C. Jose v. 
Sivan Pillai and others (AIR 1984 SC 921).  
27.  
In view of the above, it appears that to interpret 
Sections 67 and 70 of ROPA so as to limit the jurisdiction 
of the Election Tribunal in case of presence of illegal 
practices to declare the election as a whole void, would be 
too literal, rigid and ritualistic to be accepted in this day 
and 
age 
of 
purposive, 
realistic 
and 
beneficial 
interpretation. Such interpretation would also offend 
against the well recognized common sense principle of 
interpretation and is contrary to the erstwhile maxim of 
“the greater contains the less” which has been applied by 
the Courts. We cannot also loose sight of the fact that the 
CA.294/2015. 
26 
Election Tribunal is for all intents and purposes a Court 
and it is settled law that Courts and Tribunals can not 
only grant the entire relief permitted by law but also any 
part thereof. The principle of severability is also well 
recognized and the same is duly attracted to elections 
thereby isolating the result in a few Polling Stations 
where poll was contaminated and directing a fresh poll 
thereat. It is also obvious that such principles have been 
applied by this Court, both with reference to the powers 
of the ECP under Section 103-AA and by the Election 
Tribunal, as is evident from the judgments referred to 
and reproduced hereinabove. Directing a re-poll in some 
Constituencies as was done in the instant case is also a 
course of action adopted and followed by the Supreme 
Court 
of 
India 
in 
the 
election 
matters. 
Such 
interpretation besides conforming to the established 
principle of interpretation advances the object and intent 
of Articles 218, 219 and 225 of the Constitution and the 
provisions of ROPA. Furthermore, thereby the mischief of 
encouraging disruption of the poll is suppressed.  
28.  
The legal position that emerges is that in terms 
of Section 70 of ROPA in the eventuality of a failure to 
comply with the mandatory provisions of ROPA and the 
CA.294/2015. 
27 
Rules or in the presence of illegal practices, an Election 
Tribunal in exercise of powers under Section 70 of ROPA, 
may declare the election as a whole to be void. However, 
the Election Tribunal is not denuded of the jurisdiction to 
grant partial relief of declaring the election at a few 
Polling Stations to be void and directing a re-poll thereat. 
Which of the two available courses of action to be 
followed would depend on the facts and circumstances of 
each case. The real and decisive factor would be the 
fulfillment of the mandate of the Constitution and ROPA 
of ensuring the will of the people is given effect to 
through a free, fair and impartial election. It should be 
ensured that no prejudice is caused to any of the 
candidates. In the instant case, it is not even the case of 
the Appellant that any prejudice has been caused to him 
nor any such plea has even been taken in grounds of 
Appeal or otherwise canvassed at the bar.  
29.  
We are aware that a different view regarding the 
interpretation of Section 70 of ROPA has been taken in 
the majority decision of the case reported as Dr. Raja 
Aamer Zaman v. Omar Ayub Khan and others (2015 
SCMR 1303). However, for the aforesaid reasons, we are 
unable to agree therewith. 
CA.294/2015. 
28 
30.  
In the instant case, there is no dispute in 83 
Polling Stations, the re-election in 37 Polling Stations will 
cause no prejudice to the Appellant. No such prejudice or 
disadvantage has been pleaded. In fact this aspect of the 
order of directing the re-election in only 37 Polling 
Stations has not been called into question by the 
Appellant either in the grounds of appeal or at the bar by 
his counsel during the course of arguments.  
31.  
In short, no exception can be taken to the 
judgment of the learned Election Tribunal dated 
10.04.2015. No legal or factual grounds exist warranting 
interference therewith by this Court. Consequently, this 
Civil Appeal being without merit is dismissed with no 
order as to cost.  
 
 
 
 
 
 
Judge 
 
 
 
 
 
Islamabad, the 
 
Judge 
 
 
 
10th December, 2015 
 
Judge 
Approved For Reporting 
Mahtab H. Sheikh/* 
 
 
 
 
 
CA.294/2015. 
29 
Qazi Faez Isa, J.-  I agree with my most distinguished colleague that 
the appeal merits dismissal.  However, I do not want to express any 
view on whether partial re-poll is permissible under section 70 of 
the Representation of the People Act, 1976 since the learned counsel 
for the appellant Mr. Farooq H. Naek did not raise this point and 
neither counsel made any submission thereon.  Therefore, the 
discussion and findings on the said issue, contained in paragraphs 
16 through to 29 of the Judgment, should not be construed as 
concurrence by me of the same. 
 
Judge 
 
