IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present: 
Mr. Justice Mian Saqib Nisar 
Mr. Justice Mushir Alam 
Mr. Justice Maqbool Baqar 
 
 
Civil Appeals No.1169 & 1192 of 2014 
Against judgment dated 05.08.2014 of Election 
Tribunal, Lahore, passed in Election Petition No.226 
of 2013. 
 
 
Ch. Muhammad Ashraf Warraich  
 
Appellant (in CA#1169/14) 
 
Muhammad Nasir Cheema  
 
 
Appellant (in CA#1192/14) 
 
VERSUS 
Muhammad Nasir Cheema, etc 
 
 
Respondents (in CA#1169/14) 
 
Ch. Muhammad Ashraf Warraich, etc  
Respondents (in CA#1192/14) 
 
 
For the Appellant(s): 
 
Ch. Aamir Rehman, ASC  
 
 
 
 
 
(in CA#1169/14) 
 
 
 
 
 
 
Ch. Khurshid Anwar Bhindar, ASC  
 
 
 
 
 
(in CA#1192/14) 
 
For Respondent No.1:  
Ch. Khurshid Anwar Bhindar, ASC  
 
 
 
 
 
(in C.A.No.1169/14) 
 
 
 
 
 
 
Ch. Aamir Rehman, ASC  
 
 
 
 
 
(in CA#1192/14) 
 
Date of Hearing:  
 
11.05.2015  
 
JUDGMENT  
 
 
 
Mushir Alam, J-. Through this single judgment, we 
intend to decide the listed Civil Appeal No.1169 of 2014, filed by 
Ch. Muhammad Ashraf Warraich, and Civil Appeal No.1192 of 
2014, filed by Muhammad Nisar Cheema.  
 
2. 
 
Muhammad Ashraf Cheema, also Respondent No.1 
in Civil Appeal No.1192 of 2014 (hereinafter referred to as the 
‘Returned Candidate’), has been non-seated by the learned 
Election Tribunal, Lahore, vide the impugned decision dated 
05.08.2014 and at the same time it directed the Election 
Civil Appeals No.1169 & 1192 of 2014 
 
2
Commission of Pakistan to take necessary steps for holding 
Bye-Elections in 33 polling stations of the Constituency of PP-
97, Gujranwala. Second mentioned Appeal has been filed by 
Muhammad Nasir Cheema, who is Respondent No.1 in first 
mentioned Civil Appeal, (hereinafter referred to as the ‘Election 
Petitioner’), is also aggrieved by the portion of the same 
impugned decision, declining to declare him elected member 
from the said constituency, has prayed for modification of the 
impugned decision of the Election Tribunal to such an extent. 
 
 
3. 
 
Briefly stated the facts appear to be that the 
elections for Provincial Assembly for Constituency PP-97, 
Gujranwala-VII, comprising 120 polling stations were held along 
with general elections throughout the Province of Punjab on 
11.05.2013. Both the contestants along with 28 other 
candidates contested for the Constituency, official result of the 
election was declared on 13.06.2013 (Ex.PW.33/H). As a result 
of the count in form XVI, first three candidates secured votes as 
follows: - 
i.  Ch. Muhammad Ashraf Warraich,  
    Returned candidate secured……………..29,756 votes; 
 
ii. Muhammad Nasir Cheema 
    Election Petitioner secured ……………..22, 335 votes; 
 
iii. Ghulam Sarwar  
     Resp.No.25/Runner up secured……..23, 871 votes. 
 
4. 
 
None other than the Election Petitioner, Muhammad 
Nasir Cheema challenged the election through Election Petition 
No.226 of 2013 essentially on the ground summarized in the 
impugned decision of the Election Tribunal as follows: - 
“GROUND OF ATTACK NO.1 
That the petitioner defeated all his political rivals 
including the returned candidate and the runner up at 33 
polling stations of the Constituency fully particularized in 
the statement, Ex.PW-33/E; that his polling agents 
received copies of statements of the count in form XIV 
regarding said 33 polling stations from the Presiding 
Officers and passed on to the petitioner, according to 
which the petitioner secured 26,769 votes whereas the 
returned candidate obtained 25,473 votes and that the 
Returning Officer tempered with the statements of the 
count in form XIV and reduced the votes polled to the 
petitioner from 26,769 to 22,335. 
 
  
GROUND OF ATTACK NO.2 
 
Civil Appeals No.1169 & 1192 of 2014 
 
3
That the General Election-2013 from Constituency No.PP-
97, Gujranwala-VII was not conducted in accordance 
with delimitation of the constituencies approved and 
notified under the Delimitation of Constituencies Act, 
1974; 
that 
according 
to 
notified 
delimitation 
of 
constituencies vide notification dated 28th June, 2002 
and notification dated 08th April, 2013, Gujranwala 
Cantt. 
was 
included 
in 
Constituency 
No.PP-96-
Gujranwla, that villages Baddoke, Hardo Amin Pur, 
Bhaghat Garh and Dhippha were made part of 
Constituency No.PP-97 by the District Returning Officer 
through poling scheme despite the fact that the above 
said villages being located within the territorial limits of 
Cantonment, Gujranwala should have been made part of 
Constituency No.PP-96, Gujranwala and that the election 
held on 11.05.2013 at the polling stations of aforesaid 
villages under the said polling scheme being offensive to 
the notified delimitation of constituencies, was null and 
void.” 
 
5. 
 
However, serious challenge before this Court was 
confined to first mentioned ground. From the record, it is 
evident that Election Petitioner and the Returned Candidate 
participated in the in the proceedings and other contesting 
candidate were proceeded against ex-parte.   
 
6. 
 
After exchange of the pleadings, the learned Election 
Tribunal framed the issues as follows: - 
“1. 
Whether the election petition is actuated by bad faith, 
if so its effect. OPR1 
 
2. 
Whether the election petition is hit by the provisions 
contained in section 55(1)(B) of the Representation of 
People Act 1976? OPR1 
 
3. 
Whether the petitioner is estopped by his conduct to 
file this petition OPR1 
 
4. 
What is effect of preliminary objections number A to D 
and F of the written statement OPR1 
 
5. 
Whether the election of respondent No.1 is liable to be 
declared as void and the petitioner is entitled to be 
declared as Returned Candidate for the reasons 
mentioned in the election petition? OPR1  
 
6. 
Relief” 
 
7. 
 
Issues No.1 to 4 were not contested by the Returned 
Candidate, therefore, were decided in favour of the Election 
Petitioner. Issue No.5, being pivotal, was seriously contested by 
the disputants. Since burden to prove subject issue was on the 
Election Petitioner, he examined himself as RW.33 and 
produced his 30 polling agents,  (PW-1 to PW-32) who 
supported his case that they had collected the copies of 
Civil Appeals No.1169 & 1192 of 2014 
 
4
statements of count in form XIV issued by the Presiding Officers 
of their respective polling stations. He produced consolidated 
result of 33 polling stations Ex.P-33/E (available at pages 316 to 
319 of CA#1169/2014) which shows total vote casted in his 
favour whereby he secured 26,769 votes as against 25,473 votes 
polled by the Returned Candidate. The Election Petitioner 
produced the count of form XIV of all the 33 polling stations 
himself and through his witnesses at trial. The Returned 
Candidate (RW-33) examined 32 out of 33 Presiding Officers 
(RW1-RW32) from the disputed polling stations. He and his 
witnesses produced copies of the statements of the vote counts 
in form XIV. Result of the counts as claimed by the disputant 
candidates emerged as follows:- 
Sr.No. Polling 
station 
No. 
Number 
of 
poled 
votes 
to 
the 
petitioner as 
per 
statement of 
the 
count 
relied upon 
by 
the 
petitioner 
Number 
of 
polled votes to 
the 
petitioner 
as 
per 
statement 
of 
the 
count 
relied upon by 
the 
returned 
candidate 
Number 
of 
polled votes 
to 
the 
returned 
candidate 
as 
per 
statement 
of the count 
relied upon 
by 
the 
petitioner 
Number 
of 
polled votes to 
the 
returned 
candidate 
as 
per 
statement 
of 
the 
count 
relied upon by 
the 
returned 
candidate 
1. 
2 
170 
70 
171 
271 
2. 
4 
238 
138 
174 
274 
3. 
4 
359 
249 
367 
477 
4. 
6 
285 
135 
145 
295 
5. 
8 
368 
218 
279 
429 
6. 
9 
397 
297 
374 
474 
7. 
17 
577 
377 
461 
661 
8. 
59 
306 
156 
480 
630 
9. 
62 
317 
214 
175 
278 
10. 
78 
135 
35 
152 
252 
11. 
79 
130 
30 
106 
206 
12. 
80 
259 
59 
260 
460 
13. 
81 
202 
52 
202 
352 
14. 
82 
132 
32 
120 
220 
15. 
85 
278 
178 
264 
364 
16. 
87 
226 
26 
159 
359 
17. 
88 
134 
34 
137 
237 
18. 
91 
287 
87 
175 
375 
19. 
92 
161 
61 
195 
295 
20. 
93 
189 
39 
223 
373 
21. 
94 
169 
19 
183 
333 
22. 
97 
133 
33 
165 
265 
23. 
98 
275 
75 
263 
463 
24. 
99 
190 
40 
173 
323 
25. 
100 
169 
49 
162 
282 
26. 
101 
140 
40 
146 
246 
27. 
105 
434 
334 
141 
241 
28. 
106 
364 
264 
157 
257 
29. 
110 
313 
213 
70 
170 
30. 
113 
471 
271 
210 
410 
31. 
114 
151 
00 
180 
180 
32. 
115 
430 
230 
306 
506 
33. 
117 
599 
499 
260 
360 
Grand Total 
8988 
4554 
7035 
11318 
Civil Appeals No.1169 & 1192 of 2014 
 
5
8. 
 
It was noted by the learned Election Tribunal that 
the statements of the count in form XIV as relied upon by the 
Returned Candidate falls to the ground, if the statement of the 
count adduced by the Election Petitioner is taken into 
consideration. Conversely, if the result of the vote counts relied 
upon by the Runner Up is taken as true, the Election of 
Returned Candidate will not be open to any exceptions. 
 
9. 
 
Since the vote count in Form XIV produced by the 
contesting parties was conflicting. To resolve the controversy 
learned Election Tribunal, at the behest of the Election 
Petitioner, in exercise of powers under Section 46 of the 
Representation of People Act, 1976 (RoPA, 1976) deemed it 
expedient to appoint a Commission (Mr. Sultan Ahmad, 
Additional District and Sessions Judge, (Retd.), to examine the 
election record of 33 challenged Polling Stations and submit 
report. The Commission completed the exercise in presence of 
contestants and also appeared as Tribunal Witness (TW-1). He 
produced the Report as Ex. TW1/A and Ex. TW1/B. He deposed 
that all the bags containing the election material including 
statutory forms were not sealed when received by the 
Commission.  
 
10. 
 
To examine the effect of the unsealed bags and to 
ascertain the circumstances, how and when such bags were de-
sealed, learned Election Tribunal also examined Mr. Rehan 
Bashir, Returning Officer as TW-2, Mr. Shakeel Ahmed, the 
then District Accounts Officer, Gujranwala as TW.3 and Syed 
Safdar Raza, Head Treasurer, Gujranwala as TW.4. On the 
strength of the evidence so adduced, the learned Election 
Tribunal in paragraph 16 observed that “After coming to the 
conclusion that the Returning Officer deposited unsealed election 
bags with the returning Officer attempted to conceal the factual 
position from this election Tribunal, which persuaded him to 
deposit unsealed election bags with the District Accounts Office is 
open to serious exception.” It was thus concluded that “Here I 
would say that the reasons and motive behind deposit of the 
unsealed election bags in the district Treasury is shrouded in 
Civil Appeals No.1169 & 1192 of 2014 
 
6
mystery. Hence I feel no difficulty in concluding that the record 
found by the Commission from unsealed Bags is worthless”. 
 
11. 
 
Learned Election Tribunal, took into consideration, 
statements of the Presiding Officer of polling station No.6,  Dr. 
Shaheen Naqvi (RW.3), Presiding Officer of polling station 78,  
Mr. Abdul Hameed Khalid (RW.8), Dr. Imtiaz Husain, Presiding 
Officer (RW.10) of polling station No.80 (PP-97), Ms. Rakshanda 
Iqbal (RW.14) Presiding Officer of polling station No.99, Ms. 
Faiza Khan (RW.15) Presiding Officer of polling station No.101 
and Mr. Muhammad Bilal (RW.30), Presiding Officer of polling 
station No.59. It was noted that all the six Presiding Officers, 
who were produced by the Returned Candidate, owned the 
statement of count prepared by them in form XIV, confronted to 
them by the Election Petitioner. They had no satisfactory 
explanation to offer to the contradictory statement of count 
contained in form XIV prepared by them and produced by the 
Returned Candidate. Learned Election Tribunal also carefully 
examined the report of the Commission (Ex.TW.1/A and 
Ex.TW.1/B) constituted under Section 46 of RoPA, 1976. It has 
also come on record that the Returning Officer, Rehan Bashir 
(TW-2) “did not carry out the exercise of consolidation of results 
qua the rejected votes in terms of section 39(3) of the Act, 1976” 
and that “he failed to discharge his legal obligation”. Thus the 
Election Tribunal observed that the all the six presiding officers 
erroneously deposed that they had correctly prepared the 
statements of the counts as presented to the Election Tribunal. 
 
12. 
 
Learned Election Tribunal, in paragraph 18 of the 
impugned Decision, also took stock of the fact that as per 
statements of count in Form XVI, of the six (06) challenged PS 
namely PS No.2, (271 vote) PS No.17, (votes 661), PS No. 62, 
(278 vote), PS No. 81, (votes 352) PS No.91(375 votes) and PS 
No. 93 (373 votes) total 2260 votes were not found. It was thus 
concluded that the ‘Returned Candidate’ could not substantiate 
that he secured (2260) votes from said six challenged PS. In 
paragraph 19 of the impugned Decision it was noted that Form 
XIV were missing in bags of nine (09) challenged PS No.2, 17, 
Civil Appeals No.1169 & 1192 of 2014 
 
7
62, 81, 82, 91, 93 101 and 114 for the comparison with the 
conflicting statements contained in form XIV, relied upon by the 
disputant. In paragraph 20 of the Decision, it was noted that 
from the bags of five (05) challenged PS (No.2, 80, 85, 93 and 
94), not a single counterfoil was available though the form XVI 
reflected that 4,302 votes were polled at the subject polling 
stations. Thus, the validity of the 4,302 polled votes was held to 
be seriously questionable.  
 
13. 
 
Learned 
Election 
Tribunal, 
thoroughly 
and 
meticulously thrashed out the evidence led by the parties and 
took note of the fact that the number of polled ballots did not 
tally with the available record, as could be seen from the 
tabulation of 33 challenged polling stations (Typed Page 20 of 
the impugned judgment). It shows that total votes casted in 
favour of the contesting candidates as per consolidated 
statement in form XVI were recorded as 34,229. Whereas, total 
number of votes actually found in the bags were only 19,300. 
There is no explanation of shortage of 14,929 votes missing 
from the bags. Learned Election Tribunal, also found that total 
number of counterfoils did not tally with total number of polled 
ballot papers found from the bags. It was admitted by the 
Returning Officer (TW.2) at trial that he did not re-examine the 
rejected votes, excluded from the count by the Presiding Officer 
as was required under section 39(3) of the RoPA, 1976. 
Discrepancy in total number of rejected votes as per Form XIV 
were 728, whereas only 497 rejected votes were physically found 
in the bags. The state of available and missing record as noticed 
in various tabulated statements as discussed in the Decision 
and as noted and discussed above, demolished the cause of the 
Returned Candidate. On the strength of evidence as discussed 
above, the learned Tribunal came to the following conclusion: - 
“26. Keeping in view the above discussed factual and 
legal position, the credibility, legality and transparency 
of the election of returned candidate from 33 polling 
stations of the Constituency have been eroded. According 
to the consolidated statement of the count under 
challenge the returned candidate was ahead of the 
runner up by 5,885 votes, whereas the returned 
candidate defeated the petitioner by 7,421 votes. The 
returned candidate claimed to have obtained 11,291 
Civil Appeals No.1169 & 1192 of 2014 
 
8
votes at 33 polling stations. After coming to the 
conclusion that election of the returned candidate from 
33 polling stations is null and void with no legal effect, 
the result of election favourable to the retuned candidate 
falls to the ground mathematically and automatically. I, 
therefore, declare election of the returned candidate to be 
void. Resultantly, the position of respondent No.1 as 
Member, Provincial Assembly, Punjab from the above 
said constituency has ceased to exist. Issue No.5 is 
answered to the above effect. 
 
27. 
Onus to prove issues No.1 to 3 and 4 was on the 
respondent No.1/retuned candidate. During the course of 
arguments, learned counsel for the returned candidate 
did not utter a single word regarding these issues, which 
are disposed of as having not been pressed. 
 
28. 
The Election Commission of Pakistan shall take 
necessary steps for holding bye-election from the above 
said 33 polling stations of the constituency (mentioned in 
the list, Ex.PW-33/E) in accordance with law. The 
District Returning Officer shall prepare polling scheme of 
Constituency No.PP-97, Gujranwala afresh strictly in line 
with delimitation of the constituencies already notified by 
the Election Commission of Pakistan.”   
 
14. 
 
Learned ASC for the Returned Candidate, since non-
seated, contended that after the evidence of the parties was 
concluded, in a bid to make fishing enquiry, the Election 
Petitioner applied to the Election Commission for inspection of 
record, said application was dismissed by the Election 
Commission on 21.4.2013, which order was challenged and is 
still subjudice before the High Court in Writ Petition 
No.11615/14. It was, therefore, contended that learned Election 
Tribunal fell into error by considering such request under 
section 46 of the RoPA, 1976 vide its order dated 15.5.2014. 
 
15. 
 
It may be observed that candidature of a candidate 
could be challenged under the RoPA, 1976 at three different 
stages, right from the day of nomination till 45 days after the 
declaration of the official result. First stage is pre-election 
challenge at the time of scrutiny of nomination papers. 
Challenge to the candidature could be thrown by any of the 
contesting candidate, their agents, proposer, seconder, electors 
by filing objections against any of the candidate before the 
Returning Officer, on the grounds enumerated in clauses (a) to 
(d) to subsection (3) and subsection (5A) of Section 14 of the 
RoPA. Any decision rejecting or accepting nomination paper, 
Civil Appeals No.1169 & 1192 of 2014 
 
9
passed by the Returning Officer, is subject to right of appeal 
before the Tribunal comprised of not less than two and not 
more than three High Court Judges. Appeal is required to be 
decided summarily within prescribed time, if time lapses, 
appeal by virtue of deeming provision subsection (6) thereof is 
deemed to be rejected.  Second stage is post-election challenge 
to the election of returned candidate before the Election 
Commission of Pakistan, under Section 103 AA of the RoPA, 
1976. Election Commission, after such summary enquiry as to 
grave illegality or violation of the provisions of RoPA, 1976 or 
the rules framed there under, may declare the poll in any 
constituency as void and may call upon constituency to elect 
member, but such jurisdiction to declare the poll void, could be 
exercised before the expiry of sixty (60) days after the 
publication of result of the election (per section 42 of RoPA), 
where after, the Election Commission, becomes functus officio, 
and the returned candidate is deemed to be elected, but subject 
to the decision of Election Tribunal, constituted Section 57 of 
RoPA. Provided such challenge is thrown, by any of the 
contesting candidate. Third opportunity to challenge the 
election of the returned candidate becomes available post-
election, to be made by any candidate of the subject 
constituency, before the Election Tribunal constituted under 
Section 57 ibid, within forty five (45) days from the date of 
publication in the official gazette of the name of the returned 
candidate, of the subject constituency in the manner provided 
under the RoPA, 1976 itself.  
 
16. 
 
In cases of allegation of misconduct, the Returning 
Officer on the application of a contesting candidate or on the 
direction of Election Commission, has power under Section 
39(3) of RoPA, 1976 to open packets, examine and inspect the 
ballot papers in presence of contesting parties or their 
representatives. Such request was made by the Election 
Petitioner on the following day of election, but it was declined 
by the Presiding Officer [Ex.P-33/F, available at page 320 of 
CA#1169/14]. After the consolidation of result, such power 
Civil Appeals No.1169 & 1192 of 2014 
 
10
rests with Election Commission, which was moved on 18.5.2013  
[Ex.P-33/G, available at pages 322 of CA#1169/14] to 
scrutinize result of 33 polling stations but, was also rejected by 
the Election Commission, through order dated 13.6.2013, on the 
ground inter alia “that the election Tribunal, which have been 
established and have  commenced their work. If the Petitioner 
approaches the election Tribunal for the redress of his grievances 
his case would be decided expeditiously.” 
 
17. 
 
Election Commission of Pakistan, issued Notification 
dated 
22.5.2013 
declaring 
the 
Petitioner 
as 
Returned 
Candidate. On 03.6-2013, Election Tribunals were also set up 
in Province of Punjab under section 57 of RoPA, for the trial of 
election disputes. Consequently, Election Petitions was filed, 
subject matter of instant Appeal. 
 
18. 
 
It was urged by the learned ASC, for the Petitioner, 
that the appointment of the Commission, to examine the bags of 
the 33 Polling Stations was not justified, as similar request was 
declined by the Returning Officer and so also by the Election 
Commission, for the recount of the votes in 33 Polling Station. It 
was contended that it was the duty of the polling staff to 
observe the law and the rules on the subject and on failure of 
the same, the appellant cannot be penalized. According to 
learned counsel, the election was held in large number of 
polling stations, in a peaceful manner, and no objection to 
majority of the polling stations was taken.  
 
19. 
 
Adverting to the contention of the learned ASC, for 
the Appellant that after the dismissal of application of the 
Election Petitioner by the Returning Officer and the Election 
Commission of Pakistan as noted above, the Election Tribunal, 
committed grave illegality to allow such application under 
Section 46 of the RoPA, 1976 appointing Commission to inspect 
the record of the 33 challenged Polling Stations is concerned.  It 
may be observed that the Election Tribunals are bestowed power 
to inspect and examine the ballot papers of all sorts i.e. polled, 
rejected, or spoiled etc. Such powers could not be invoked by 
Civil Appeals No.1169 & 1192 of 2014 
 
11
any party to the election Petition on mere ipsi dixit nor, could be 
exercised by the Election Tribunal on its own whims and fancy 
and or mechanically. Party seeking such recourse or inspection 
and examination of counted ballot paper has to demonstrate 
and show to the satisfaction of the Election Tribunal that there 
had been improper, reception, refusal, or rejection of votes had 
affected the outcome of the election materially. Election 
Tribunal, enjoys elaborate and extensive authority to carry out 
the exercise of examination of polled ballot either himself or, 
through commission and may order inspection and or to 
recount of the ballot papers, however, same are to be exercised 
with circumspection and care by application of mind on the 
strength of tangible and material evidence, prima facie 
establishing that there had been wrong inclusion or exclusion 
of the ballot paper in the course of  ballot count that had direct 
and martial bearing on the final outcome of the result of the 
election.   
 
20. 
 
As noted above, since the Election Tribunals in 
Punjab were already notified and after expiry of statutory period 
of 60 days from notification of returned candidate, the Election 
Commission, had no authority to adjudicate upon the 
controversy as to the examination of the ballot record of 
challenged Polling Stations and had rightly directed the election 
Petitioner 
to 
approach 
the 
Election 
Tribunal. 
Similar 
controversy came up before this Court, in the case cited as 
“Ehsanullah Reki v. Abdul Qadir Baloch (2010  SCMR  1271), 
this Court, while examining the power of Election Tribunal, 
under Section 46 of RoPA, 1976, held that “the Election Tribunal 
cannot only appoint a Commission but also direct opening of 
packets of counterfoils and certificates or the inspection of any 
counted ballot papers with a rider that in carrying into effect an 
order for inspection of ballot papers, care shall be taken that no 
vote shall be disclosed until it has been held by the Election 
Tribunal to be invalid”.  Subsection (3) of Section 46 RoPA, 1976 
attaches great deal of sanctity to the production of a document 
by the Commission appointed by the Election Tribunal, which is 
Civil Appeals No.1169 & 1192 of 2014 
 
12
treated as conclusive evidence that the document relates to the 
election specified in the order and any endorsement made by 
the Commission, on any ballot paper or packet of ballot paper or 
documents so produced shall be prima facie evidence that the 
ballot papers or documents are what the endorsement states 
them to be. Therefore, contention of the learned ASC for the 
Petitioner that the Election Tribunal had no jurisdiction to 
appoint the Commission for the purpose of examination of 
polled ballot or to undertake such exercise itself, in view of 
discussion 
made 
above, 
and 
under 
given 
facts 
and 
circumstances, is devoid of merits. 
 
21. 
 
The Commission, as appointed by the Election 
Tribunal, was also examined as the Tribunal Witness TW-1. 
Lengthy cross examination by the Returned Candidate could 
not demolish the credibility of the Report EX-TW-1/A and Ex-
TW-1/ B, nor was he able to point out any error in the 
tabulated statement of votes count actually found and as relied 
upon by the disputants. Learned ASC for the Returned 
Candidate, could not bring home the objections as to authority 
and jurisdiction of the Election Tribunal to appoint “the 
Commission” and empowering “the Commission” to examine the 
Bags of the challenged Polling stations and submit report. 
 
22. 
 
Before 
adverting 
to 
examine 
the 
power 
and 
jurisdiction of the Election Tribunal under Section 67 ibid and 
other enabling provision to declare “the election of returned 
candidate void”, would amount to “declaring the election as a 
whole void” and as a consequence; direct the election of whole of 
the constituency or “partial poll” could be ordered, as has been 
done in the instant case. We have noted that the “Election 
Commission,” in post election scenario, though for a limited 
period within 60 days after declaration of official result has to 
some extent concurrent jurisdiction and power to declare the 
“poll in any constituency” void under section 103-AA ibid, which 
power, is akin to the power of the Election Tribunal under clause 
Civil Appeals No.1169 & 1192 of 2014 
 
13
(b) of section 67 of the RoPA, “declaring the election of the 
returned candidate to be void”  
 
23. 
 
In numbers of cases, various High Courts and so 
also this Court had the occasion to examine the power of the 
Election Commission to declare the poll, in any constituency to 
be void and whether such powers, includes declaring and to 
direct re-poll partially in some of the polling station and not in 
the entire constituency. In the case of Ghulam Ali v. Election 
Commission (PLD 1991 Karachi 396), learned Division Bench 
maintained the order of re-poll in 3 polling station, made by the 
Election Commission. In the case reported as Salahuddin Tirmizi 
v. Election Commission of Pakistan (2008 YLR 1624), learned 
Division Bench of the Peshawar High Court, maintained the 
order of the Election Commission of Pakistan, ordering re-poll in 
two polling stations including one female polling station. In the 
case of Wahid Bukhash Khan Bhayo v. Ghous Bukhash Maher 
(CLC 2012 Karachi 39), learned single judge of the Sindh High 
court relying on the case of Aftab Shaban Merani v. Muhammad 
Ibrahim (PLD 2008 SC 779), maintained the order of Election 
Commission directing re-poll in only 47 polling stations. In the 
case of Behram Khan v. Abdul Hameed Khan Achakzai (PLD 
1990 SC 352), this Court upheld the order of the High Court, 
maintaining order of the Election Commission directing re-poll in 
some of the challenged Polling Station. In the case of Manzoor 
Hussain v. Election Commission (2004 SCMR 672) in which case, 
the Election Commission, ordered re-polling in one of the Polling 
Station, which was shifted on the day of election without any 
intimation, such order was unsuccessfully challenged in the 
High Court and this Court refused leave to appeal. Five member 
bench of this court in the case reported as Aftab Shaban Mirani 
v. Muhammad Ibrahim (PLD 2008 SC 779), had the occasion to 
examine the power of the Election Commission to declare the poll 
in any constituency void, under Section 103-AA and other 
enabling provisions of the RoPA, 1976 read with Article 225 of 
the Constitution of Pakistan, 1973, and at page 814; held that 
the “power of declaring the election partly void and re-polling at 
Civil Appeals No.1169 & 1192 of 2014 
 
14
some polling station is included in the power of declaring election 
of the constituency as a whole void”.  And at page 817 
interpreted the expression “in the constituency void” as used in 
section 103-A ibid, 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 station”. 
 
24. 
 
Now adverting to more serious a challenge to the 
power and authority of the Election Tribunal to order partial poll 
in any constituency, it would be beneficial to glance through 
relevant provision, where under the Election Tribunal is 
conferred power to make host of orders after conclusion of trial 
of an election Petition, section 67 (1) of the RoPA, 1976, which 
reads as under: - 
“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. 
 
25. 
 
Power of the Election Tribunal, to order re-poll in 
some of the Polling station, is not some thing that has come up 
for the first time, controversy came up in the case of Mohinder 
Singh Gill and another v. The Chief Election Commissioner, New 
Delhi and others (AIR 1978 SC 851). Indian Supreme Court, 
while examined various provisions including section 98 and 100 
of the (Indian) Representation of Peoples Act, 1951, (which 
provisions are analogous to Section 67 and section 68 
respectively of RoPA), at page 391, came to a conclusion that the 
Election (High) Court (Election Tribunal herein) has power to 
make all sort of order including partial poll in furtherance to 
achieve free and fair election. 
 
Civil Appeals No.1169 & 1192 of 2014 
 
15
26. 
 
Recently in the case cited as Raja Aamer Zaman v. 
Omar Ayub Khan (2015 SCMR 890), this Court had the 
opportunity to examine the non observance or breach of duty on 
the part of the Returning Officer and other polling staff 
entrusted to conduct election in free, fair and transparent 
manner in accordance with RoPA and Rules framed there 
under. In a situation where it is found that that the result of 
election is dependent on count of vote at the challenged polling 
station, than the Election Tribunal is within its jurisdiction not 
to declare the election as a whole void in terms of clause (d) of 
section 67 read with section 70 of the RoPA, but to declare the 
election of the returned candidate to be void to the extent of few 
challenged polling Station in terms of clause (b) of Section 67 
ibid. It is under such circumstances not necessary to declare the 
election as a whole to be void per section 67 (d) of the RoPA; It 
was further held that the Election Tribunal, however was not 
denuded of the jurisdiction to grant partial relief of declaring the 
election at a few polling stations to be void and, directing re-poll 
there at.  The question, as to which of the two available courses 
is to be followed would depend on the facts and circumstances of 
each case.  
 
27. 
 
It may be observed that the Election Tribunal are 
constituted as mandated under Article 225 of the Constitution, 
of Pakistan, 1973 under section 57 of the RoPA to adjudicate all 
and each nature of election dispute. Election Tribunals in terms 
of section 64 ibid is deemed to be a Civil Court, has absolute 
jurisdictions to decide all question or dispute pertaining to 
election to either of the House or Provincial Assembly and is 
bestowed comprehensive power as is enjoyed by the Civil Court 
trying a suit under Code of Civil Procedure 1908. it is absolutely 
permissible for the ‘Election Tribunal’ to grant all or any of the 
reliefs wholly or partly as set out in section 67 of the RoPA and 
to direct the Election Commission to take such ancillary and 
incidental steps as may be necessary to ensure honest, just, 
and fair election in accordance with law and further to ensure 
corrupt practice are guarded against. Where a Court or Tribunal 
Civil Appeals No.1169 & 1192 of 2014 
 
16
is conferred jurisdiction and power to grant large relief also has 
jurisdiction to grant smaller relief under the law. The Election 
Tribunal like a Court in consideration of ground realities, 
circumstances of each case may suitably mould the relief as 
may be appropriate, just, proper and fair.   
 
28. 
 
Examining the case in hand as act of omission and 
commission of election staff was successfully established in 
respect of 33 polling stations of the subject constituency, and 
the vote count of the subject station had material bearing on the 
eventual out come of the result of the election. In the instant 
case as could be noted the difference between the appellant and 
runner up is only 5,885 votes and between the appellant and 
respondent No.1 Muhammad Nasir Cheema, the Election 
Petitioner comes to 7,421 votes only. It may be observed as 
noted by the Election Tribunal in paragraph 22 of the impugned 
Decision that total number of votes casted in favour of all the 
contesting candidates as per consolidated statement in form 
XVI in 33 challenged Polling Station come to 34, 229- whereas 
only 19,500- polled votes were recovered from the bags of said 
33 polling stations, there is staggering difference of 14,929= 
votes which is more than double the difference between the 
contestant parties. Thus it could be seen that the total votes 
cast in the 33 polling stations will in fact determine the fate of 
Contesting candidate in accordance with the will of the people. 
It was established on record that only the result of 33 polling 
stations was stained and soiled by non performance of statutory 
duties by the Returning and Presiding Officers as noted in detail 
above. There is no challenge as to majority of the polling 
stations. It may be observed that where the result of few 
challenged polling station does not materially affect the over all 
result of the election than no order of invalidating the election 
either as a whole or in part would be justified or warranted. 
However, where the ultimate result of the election is dependent 
on the out come of the ballot count of even one or few polling 
station, than order “declaring the election of the returned 
candidate to be void” in terms of clause (b) of section 67 read 
Civil Appeals No.1169 & 1192 of 2014 
 
17
with Section 70(a) ibid; may be justified and ordering partial poll 
to the extent of such challenged polling station only would be 
necessitated, instead of “declaring the election as a whole to be 
void” per clause (d) of section 67 ibid. In instant case learned 
election Tribunal, was justified to declare the election of the 
Returned Candidate void, for the simple reasons, if the vote 
count of challenged polling station are excluded, over all result 
would not be reflective of the true will of electors of the 
constituency.  
 
29. 
 
After examination of the evidence that has come on 
record, learned Election Tribunal rightly concluded that “the 
credibility, legality and transparency of the election of returned 
candidate from 33 polling stations of the Constituency” was 
successfully 
demolished 
by 
the 
Election 
Petitioner. 
Consequently, the conclusion drawn by the Election Tribunal 
that “the result of election favorable to the retuned candidate falls 
to the ground mathematically and automatically”. Therefore 
impugned decision of the learned Election Tribunal declaring 
“election of the returned candidate to be void” calls for no 
interference, resultantly C.A No. 1192/14 being devoid of merits is 
dismissed. 
 
30. 
 
 Now adverting to merits of C.A 1169/2014 filed by 
the Election Petitioner, seeking his declaration as duly elected 
in place of returned candidate, since de-seated. It is not 
necessary that whenever the election of a returned candidate is 
declare “wholly void”, the Election Petitioner, as a matter of 
right could be declared elected. No doubt Section 67 (1)(c) read 
with section 69 of RoPA, do empower the learned Election 
Tribunal to declare the election Petitioner or any of the 
contesting candidate to be declared as elected in event, the 
election of the returned candidate is annulled, that the Election 
Petitioner and or any of the Respondent has so prayed and 
secondly in cases where the Election “Tribunal is satisfied” that 
the election Petitioner or such other contesting candidate was 
“entitled” to be declared elected. Thus it is clear that swapping 
Civil Appeals No.1169 & 1192 of 2014 
 
18
of Election Petitioner and or any other contesting candidate is 
neither automatic nor a natural corollary to the invalidation of 
election of returned candidate, but is subject to two qualifying 
conditionalities as noted herein. What constitute “Tribunal is  
satisfied”  and  when  the election Petitioner or other contesting 
candidate becomes “entitled” to be declared elected are neither 
elucidated nor any parameters are provided either under the 
RoPA or rules framed thereunder as against the contemporary 
provisions of section 101 of the (Indian) Representation of 
Peoples Act, 1951. However, satisfaction of the Election 
Tribunal to exercise power under Section 67 (1)(c) read with 
section 69 of the RoPA, 1976, is to be based on rational criteria, 
guided by good conscience. One of the rational consideration 
may be where on the basis of recount of total votes and or on 
re-examination of valid and invalid vote count in ultimate 
analysis the Election Petitioner and or any other contesting 
candidate who so ever had secured highest number of total 
valid vote counts as against the returned candidate or there 
may be a situation, where votes of certain polling station for any 
reason have not been correctly added up in the total vote count, 
in such like situation the outcome, is clear leaving no doubt and 
ambiguity in determining who has emerged successful. The 
Election Tribunal could declare the candidate; whosoever may it 
be the Election Petitioner or any other contesting candidate, 
having secured highest number of vote as duly elected. It is not 
so in the instant case. As noted  in detail in preceding 
paragraphs more particularly in paragraph 13 and 28 above 
that  the returned candidate was shown to have secured 7,421 
vote more than the Election Petitioner, and he his lead was even 
narrow i.e merely 5, 885 votes as against the runner-
up/respondent No.25. It may be observed that the election of 
the returned candidate was not declared “whole to be void” in 
terms of section 67(1)(d), ibid rather on account of discrepancy 
or missing valid votes count of actual vote casted in 33 
challenged polling station, that persuaded the learned Election 
Tribunal to declare the election of the returned candidate as 
void within the contemplation of section 67(1)(b ) of the RoPA, 
Civil Appeals No.1169 & 1192 of 2014 
 
19
1976. Since contesting parties before the learned Election 
Tribunal were the Election Petitioner and the returned 
candidate, even the runner-up chose to remain away from the 
dispute. Total number of vote casted in all 33-challenged polling 
station, as per consolidated statement of votes count in form 
XVI comes to 34,229, whereas, only 19,500- polled votes were 
recovered from the bags of all such polling stations. There is no 
explanation as to where 14,929- votes disappeared. Since 
difference of votes count between the returned candidate since 
unseated, the runner up/respondent No.25 and the Election 
Petitioner is much less than the missing number of votes. Under 
the given facts and circumstances none of the parties to dispute 
could claim nor it could be determined as to which of the 
contesting candidate command the confidence of the majority of 
the electorate in the subject constituency. Election Petitioner, 
was not able to make out any case whereby he could become 
“entitled to be declared elected” within the contemplation of 
section 69 of the RoPA, 1976.  
 
 
 
 
31. 
 
As observed above, the creditability, legality, and 
transparency of the election in 33 challenged polling stations 
were successfully demolished. It is the votes that may be polled 
in said 33 polling stations would be decisive as to which of the 
contesting candidates commands the confidence of majority of 
the electorate, and unless they are given free and fair 
opportunity to the electorate of subject polling stations to 
express their free will, it cannot be concluded that the Election 
Petitioner had secured the winning number of votes, even if 
total vote casted in said constituency are counted towards the 
Returned Candidate. Such being the position, the Election 
Petition filed by the Election Petitioner was rightly dismissed. In 
this view of the matter, we do not find any merit in C.A 
No.1169/2014 filed by the Election Petitioner, is accordingly 
dismissed. 
 
32. 
 
In view of the discussion made above, we do not find 
any factual and or legal infirmity in the impugned decision. 
Civil Appeals No.1169 & 1192 of 2014 
 
20
Both the listed Appeals, being without merits are accordingly 
dismissed.  
 
 
Judge 
 
 
Judge 
 
 
Judge 
 
 
 
ISLAMABAD, THE 
11th May, 2015 
Arshad/*  
NOT APPROVED FOR REPORTING 
