IN THE SUPREME COURT OF PAKISTAN 
 
  (Appellate Jurisdiction) 
 
 
 
 
Present: 
 
 
 
 
Mr. Justice Mian Saqib Nisar 
 
 
 
 
Mr. Justice Gulzar Ahmed  
 
 
 
 
Mr. Justice Umar Ata Bandial 
 
CIVIL APPEAL NO. 307-L OF 2015 
(On appeal from the judgment/order dated 26.08.2015 of 
the Election Tribunal, Multan passed in Election Petition  
No.355 of 2013 SCP, 30/2013 ETM)  
 
 
 
 
Muhammad Siddique Baloch  
 
… 
… 
Appellant. 
 
 
 
 
 
Versus 
Jehangir Khan Tareen & others  
 
… 
… 
Respondents.  
 
 
For the appellant  
 
: 
Mr. M. Shahzad Shaukat, ASC. 
 
 
 
 
 
a/w appellant (in-person).  
 
For respondent No.1 
: 
Mr. Makhdoom Ali Khan, Sr. ASC.  
 
 
 
 
 
Mr. Tariq Aziz, AOR.  
 
 
 
 
 
a/w respondent No.1 (in-person).  
 
Dates of hearing  
 
: 
21st, 22nd, 26th, 27th & 28th October, 2015.  
 
 
 
 
 
JUDGMENT 
 
 
Umar Ata Bandial, J. – This election appeal assails the 
judgment dated 26.08.2015 of the learned Election Tribunal, Multan 
(“Tribunal”) whereby the appellant, who was returned as Member National 
Assembly in General Elections held on  11.05.2013 from the constituency NA-
154 Lodhran-I, has been unseated by the judgment of the learned Tribunal 
declaring his election to be void. The impugned declaration is based on three 
findings. Firstly, that the appellant made a false declaration in his 
nomination papers about his B.A. qualification from the University of 
Balochistan. He has thereby incurred disqualification from being elected as 
member of Parliament under Article 62(1)(f) of the Constitution of Islamic 
Republic of Pakistan (“Constitution”); secondly, that the appellant is the 
CA.307-L/2015 
 
2 
beneficiary of large scale corrupt and illegal practices committed by the 
election staff on the election day which the appellant procured, whereby the 
election is void and also the appellant is disqualified from being elected as 
Member of Parliament under Section 99(1)(l) of the Representation of the 
People Act, 1976 (“ROPA”); thirdly, that the result of the election is 
materially affected by the failure of the election staff to comply the 
provisions of the ROPA and therefore the election as a whole is void under 
Section 70(a) of the ROPA. 
2. 
 
The appellant contested the election from the NA-154, 
Lodhran-I constituency as an independent candidate and secured 86,629 
votes to be elected as Member National Assembly. The respondent No.1 
(“election petitioner”) was runner up in the election having bagged 75,738 
votes, thereby losing the election by a margin of 10,891 votes. Nineteen other 
candidates (respondents No.2-20) also contested the election. Altogether they 
polled roughly 64,252 votes making a total tally of 226,619 votes being polled 
in the election. Even before the result of the election was consolidated, the 
election petitioner approached the Returning Officer of NA-154 with an 
application dated 13.05.2013 requesting for suspension of the consolidation 
of result proceedings scheduled for that day. It was alleged that corrupt and 
illegal practices had been committed during the election by the election staff 
at the behest of the appellant. The request of the election petitioner was not 
acceded. Thereupon he approached the Chief Election Commissioner with a 
written application dated 14.05.2013 (Exb.P-16/52) seeking deferral of the 
consolidation of the election result pending outcome of recounting of votes, 
verification of count furnished by the Presiding Officers, and in particular 
the verification and analysis of finger prints of the voters and of the ballot 
papers by National Database Registration Authority (“NADRA”) in order 
CA.307-L/2015 
 
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“to identify the bogus voters.” By order dated 14.05.2013 (Exb.P-16/53) the 
Election Commission of Pakistan (“ECP”) directed the District Returning 
Officer, Lodhran (“DRO”) to carry out a recounting of votes after notifying 
all contesting candidates in constituency NA-154, Lodhran-I to attend such 
proceedings.  
3. 
 
After the recount proceedings commenced by the DRO on 
17.05.2013, the election petitioner again complained to the Chief Election 
Commissioner on 18.05.2013 that these were being conducted unfairly. 
Consequently, the ECP passed another order dated 18.05.2013 clarifying that 
the DRO/RO shall provide access to the nominee of the election petitioner 
for inspecting all documents available on record and to decide any objection 
raised about the recounting proceedings in a summary manner in writing. It 
was also ordered that the Regional Election Commissioner, Multan (“REC”) 
shall attend the proceedings of recounting as an “observer” to ensure their 
smoothness. 
4. 
 
On conclusion of the recounting, two reports about these 
proceedings, one by the DRO (Exb.P-16/59) and the other by the REC 
(Exb.P-13), were submitted to the ECP. The report by the DRO (Exb. 
P-16/59) dated 21.05.2013 acknowledges the correctness of the objection 
taken by the election petitioner that the counterfoils of the ballot papers  cast 
in the election did not at their back bear the signature and/or stamp of the 
Presiding Officer as required under Section 33(1)(e) of the ROPA. The second 
report (Exb.P-13) dated 23.05.2013 filed by the REC, Mr. Ashfaq Ahmed 
Sarwar (PW-11), is detailed and gives a polling station-wise account of 
different violations of the election laws committed by the election staff on 
election day. These breaches were noted by the REC (PW-11) during the 
proceedings of inspection of record and recounting of ballot papers attended 
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by him as an ECP observer from 19.05.2013 until 23.05.2013. The election 
material of 270 polling stations was examined during the said five days and 
are reported by the REC. However, the inspection and recount proceedings 
of 34 polling stations conducted on 17.05.2013 and 18.05.2013 prior to the 
REC’s appointment as an observer by the ECP are therefore not dealt with in 
his report. From the election record of 270 polling stations examined during 
the recounting proceedings, the REC’s report (Exb.P-13) notes contravention 
of election laws to have been committed at 104 polling stations. The most 
frequent violation committed at these polling stations is the non-signing 
and/or non-stamping of the counterfoils of ballot papers by the Presiding 
Officers. This omission constitutes a breach of the duty imposed under 
Section 33(1)(e) of the ROPA. 
5. 
 
Another violation of the election law noted in the REC’s report 
(Exb.P-13) is the absence of the thumb impression of the voter on the voters’ 
list. The said defect is reported to be less frequent than the one first 
mentioned above. But for the number of polling stations involved in these 
breaches of law, the exact number of votes affected by such omissions made 
by the election staff is not available in the REC’s report. A general picture 
that nevertheless emerges is that the election record of more than 30% of the 
polling stations (104 out of 270) is tarnished with the violation of statutory 
requirements. The widespread and random occurrence of these defaults in 
the record of the 270 reported polling stations suggests a trend which the 
record of the 34 polling stations not covered by the REC’s report may also 
bear out. In order to understand the seriousness of the said default in duty 
committed by the Presiding Officers, the relevant provisions of, inter alia, 
sub-Sections (1), (2) and (3) of Section 33 of the ROPA are reproduced below: 
CA.307-L/2015 
 
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“33. Voting procedure. — (l) Where an elector presents himself at the 
polling station to vote, the Presiding Officer shall issue a ballot paper to 
the elector after satisfying himself about the identity of the elector and 
shall, for that purpose, require the elector to produce his National 
Identity Card issued under the National Database and Registration 
Authority Ordinance, 2000 (VIII of 2000).  
(2) Before a ballot paper is issued to an elector— 
 
(a)  [omitted] 
(b) the number and name of the elector as entered in the 
electoral roll shall be called out; 
(c) the entry relating to the elector on the electoral roll shall be 
struck off to indicate that a ballot paper has been issued to 
him; 
(cc) he shall be required to receive a personal mark, made with 
indelible ink, on any finger of either hand as indicated by the 
Commission; 
(d) the ballot paper shall be stamped on its back with the 
official mark and signed by the Presiding Officer; 
(e) the Presiding Officer shall record on the counterfoil of the 
ballot paper the number of the elector on the electoral roll, the 
number of National Identity Card of the elector, stamp it with 
the official mark, sign it and obtain on it the thumb impression 
of the elector. 
 
(3) A ballot paper shall not be issued to a person who— 
(a) fails or refuses to produce his National Identity Card 
issued to him under the National Database and Registration 
Authority Ordinance, 2000 (VIII of 2000);  
(b) [Omitted]; 
(c) refuses to put his thumb impression on the counterfoil or 
whose thumb bears traces of its having already been used for 
putting an impression; or 
(d) refuses to receive the personal mark with indelible ink or 
who already bears such a mark or traces of such a mark.” 
 
6. 
 
Armed with the above information, the election petitioner filed 
an election petition in July, 2013, inter alia, making three principal allegations 
against the appellant that were upheld in the findings of the impugned 
judgment. In support of these allegations, fourteen witnesses including the 
election petitioner were examined before the learned Tribunal. A Misc. 
Application seeking verification/comparison by NADRA of thumb 
impression of voters affixed upon counterfoils of ballot papers cast in the 
elections was also filed along with the election petition. After hearing the 
learned counsel for the appellant and the election petitioner, the learned 
Tribunal by order dated 21.05.2014 allowed the said application. NADRA 
was directed to carry out verification and comparison of thumb impressions 
of voters on the counterfoils of the ballot papers cast in the election. The 
CA.307-L/2015 
 
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DRO/learned District & Sessions Judge, Lodhran was directed to procure the 
relevant election material comprising counterfoils of ballot papers along with 
voters’ list from the treasury and to dispatch the same in sealed condition to 
NADRA, in the presence of the representatives of each party.  
7. 
 
After hearing the learned counsel for the parties and the officer 
of NADRA, the learned Tribunal on 25.06.2014 appointed its representative 
to observe the verification proceedings conducted by NADRA. The said 
representative was replaced on 09.07.2014 by Mr. Shabbir Hussain Chattha 
(CW-2), a retired District & Sessions Judge. The proceedings of opening, 
scanning and verification of the election record by NADRA were conducted 
in the presence of the Tribunal’s representative. The process was spread over 
three stages. Firstly, on the receipt of election material, it was opened, 
counted and tabulated in an electronic record for future reference. Secondly, 
each item of counterfoils and photo electoral rolls was digitally scanned and 
transferred to a database; thumb impressions, NIC number recorded on the 
scanned counterfoils and photo electoral  rolls were captured and digitized; 
thereafter, the original election material was repacked and stored in safe 
custody of NADRA. Thirdly, the digital record of thumb impression and 
given CNIC number captured from the election material were put to 
authentication 
and 
verification 
under 
the 
Automated 
Fingerprint 
Identification System (“AFIS”) of NADRA by comparison with its record 
linking the thumb impression of every recorded citizen of the State with his 
CNIC. On completion of the authentication/verification stage, NADRA filed 
its analysis report (Exb.CW-10/1-6) before the learned Tribunal on 28.10.2014 
identifying three categories of thumb impressions contained in the election 
record. Firstly, the thumb impression on the counterfoils that matched with 
the thumb print in NADRA’s citizens’ database for the CNIC given on the 
CA.307-L/2015 
 
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counterfoils. This is the category of verified votes. The second category of 
thumb impression on the counterfoils failed the above said authentication by 
not matching with NADRA’s citizens’ database in the NIC number recorded 
on the counterfoils. This category included the cases where someone other 
than the person holding NIC number recorded on the counterfoils had used 
the ballot papers. Finally, the third category of thumb impressions comprised 
finger prints of bad quality that could not be deciphered for comparison or 
matching through the AFIS of NADRA.  
8. 
 
Based on the said analysis of the counterfoils, the NADRA 
report at the end of its narrative gives the following summary of its findings: 
S.No. 
Description 
Count of Votes 
1 
Election material of 290 x Polling Stations received from 
Election Tribunal (Ref: Para-2, 3 of this report) 
 
218,056 
2 
Invalid NIC number mentioned on used counterfoils. This 
also includes such counterfoils that do not have CNIC 
mentioned over it.  
 
20,601 
3 
Out of constituency voters found on used counterfoils. 
121 
4 
Duplicate votes on used counterfoils 
728 
5 
Used counterfoils without fingerprints  
587 
6 
Fingerprints successfully authenticated on used 
counterfoils and ER 
73,707 
7 
Fingerprints on used counterfoils and ER failing 
authentication  
179 
8 
Fingerprints of bad quality affixed on used counterfoils 
resultantly NADRA was unable to decipher them due to 
non-utilization of proposed ink beside other possibilities. 
However, CNIC number mentioned on such counterfoils 
having bad thumb impressions were valid CNICs.  
 
 
122,133 
9. 
 
The summary of findings given in the NADRA report 
(Exb.CW-10/1-6) reproduced above is explained in its narrative. The report 
states that the election material of 298 polling stations out of a total 304 
polling stations in the constituency was received from the ECP. However, 
relevant election material of eight polling stations was damaged or 
unavailable and only the record of 290 polling stations was scanned and 
analyzed. From this election material, a total of 218,056 counterfoils of ballot 
CA.307-L/2015 
 
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papers were examined by NADRA. 122,133 counterfoils equaling 56% of the 
available number, contained bad quality finger prints that were not readable 
by the NADRA software for the purpose of their comparison with and 
verification through the NADRA database. As a result, only 95,927 
counterfoils contained thumb impressions that were readable by the 
NADRA software. Out of this total, 20,601 counterfoils bore invalid CNIC 
numbers that had never been issued by NADRA. This count includes 733 
counterfoils which did not contain any CNIC number. The said mismatch 
with the NADRA record shows either that the election staff failed to verify 
CNIC identity of electors or made bogus entries on the counterfoils, 
reflecting their indifference or otherwise an improper purpose.  
10. 
 
In addition to the 20,601 counterfoils containing invalid CNIC 
numbers, another 587 counterfoils were defective for absence of thumb 
impression of the voter. Yet another 728 counterfoils were issued to 362 
voters showing duplicate votes being cast by such voters; 121 counterfoils 
were issued to out of constituency voters and 179 counterfoils bore valid 
CNIC numbers but un-matching thumb impressions. Accordingly 22,216 
counterfoils contain evidence of bogus voting out of a total number of 95,927 
counterfoils that were found readable by NADRA software. These figures 
reveal that 23% of the total counterfoils read and deciphered by NADRA 
software contain false identities of persons who voted in the election on 
account of absent or invalid CNIC number or thumb impression. Casting of 
vote by unidentified strangers is contrary to Section 33 of the ROPA that 
aims at curbing, inter alia, the practice of bogus voting.  
11. 
 
The NADRA report is signed on each page by Mr. Ghazali 
Zahid, Director, NADRA Data Warehouse, NADRA Headquarters, 
Islamabad. He appeared before the Tribunal as CW-2 and was cross-
CA.307-L/2015 
 
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examined by the learned counsel for both the parties. Notwithstanding 
intense questioning on CW-2, by the learned counsel for the appellant, no 
dent could be caused to the credibility, transparency and analytical propriety 
of the NADRA scanning and verification process. The appellant did not file 
any written objections before the learned Tribunal to the NADRA report.  
Nor has the learned counsel for the appellant criticized the said report before 
us. The findings given in the NADRA report are therefore authentic, 
independent credit worth possessing high probative value.  
12.  
 
According to the learned counsel for the election petitioner, 
NADRA report (Exb.CW-10/1-6) represents compelling affirmative evidence 
about illegalities committed on a widespread scale on the election day. The 
appellant is the beneficiary of such acts of commission and omission done by 
the election staff. Therefore, firstly, his election is liable to be declared void 
on account of its result being achieved through bogus voting. This is evident 
from the violations of law committed by the election staff as that have been 
detected in the NADRA report. Secondly, the learned Tribunal’s conclusion 
about the appellant’s disqualification arrived in the impugned judgment be 
affirmed. This conclusion finds the appellant to be the principal beneficiary 
of violations of law committed by the election staff, therefore, he has 
procured these acts by resorting to corrupt and illegal practices. 
Consequently, the appellant is disqualified from being elected for 
committing the said wrongs. The learned counsel for the appellant has not 
contested the findings recorded in the NADRA report. He has, however, 
vehemently opposed the finding of the learned Tribunal that the appellant 
has procured the violations of law by the election staff and won the election 
by resorting to the commission of corrupt and illegal practices.  
CA.307-L/2015 
 
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13. 
 
The NADRA report does not take account of the defects noted 
in the inspection and recounting of votes conducted by the DRO, Lodhran in 
May, 2013. These proceedings were observed by the REC (PW-11) and 
documented in his report (REC report) dated 23.05.2013 (Exb.P-13) 
addressed to the ECP. The violations noted therein include the absence of the 
stamp and/or signatures of the Presiding Officer on the counterfoils of ballot 
papers required under Section 33(1)(e) of the ROPA. The said provision of 
law aims at ensuring that a ballot paper is issued by the competent authority 
to a person who is verified to be a voter in the constituency. The REC report 
noted the afore-noted defect in the record of 72 polling stations during the 
scrutiny of election record of 270 polling stations, observed by the REC. On 
this analysis as well the election record of roughly 25% of polling stations 
contain a violation of a crucial legal requirement aimed at identifying 
genuine voters before the issuance of ballot papers. The total number of 
ballot papers affected by this defect is not calculated by the REC report but 
the fact that at 72 polling stations the bulk of issued ballot papers suffered 
from the said violation of law highlights another serious failing and defect in 
the management and conduct of the election process in the constituency on 
the election day. The combined effect of the distinct violations of law 
committed in the identification of the voters highlighted in the NADRA 
report and in the issuance of ballot papers by unauthorized persons indicate 
serious flaws in the voting process that render no less than 25% and may be 
much more of the total votes cast in the election to be suspect, dubious and 
bogus.  
14. 
 
Turning to the conclusion to be drawn from the above 
mentioned clear and convincing evidence of widespread violations of the 
ROPA committed by the election staff.  The learned counsel for the appellant 
CA.307-L/2015 
 
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has seriously questioned the findings given by the learned Tribunal that the 
appellant is accountable for non-compliance of sub-section 1(e) and 3(c) of 
Section 33 of the ROPA. He submits that there is no evidence on record 
showing that the appellant procured the violations of law committed by the 
election staff. He has read from the affidavits of the 13 witnesses produced 
by the election petitioner in aid of his allegation of corrupt or illegal practices 
being committed by the appellant on the election day. None of these 
affidavits nor the statements in cross-examination of the said witnesses 
including the election petitioner disclose any fact nor nominate any person, 
for connecting the appellant with the said violations of the ROPA committed 
by the election staff. Equally, neither of the two reports, that is, the REC 
report (Exb.P-13) and the NADRA report (Exb.CW-10/1-6) insinuates the 
appellant’s involvement in the breach of requirements under Section 33 of 
the ROPA. The anxiety of the appellant to  obtain the reversal of the finding 
that he has committed corrupt or illegal practices is to avoid his 
disqualification for five years from contesting election under Section 99(1)(l) 
of the ROPA. The fact that the appellant won the election cannot be 
presumed by the election petitioner as proof that the appellant procured 
violations of election law to be committed.  
15. 
 
The law regarding the quality of evidence necessary to prove 
an allegation of corrupt and illegal practices committed by a candidate 
during his election is by now well settled. “Corrupt practice” is defined in 
Section 78 of the ROPA while “Illegal practice” is defined in Section 83 of the 
said statute. The allegation in the present case would, prima facie, fall within 
the ambit of Section 83(1)(b) of the ROPA. The delinquent conduct under the 
said provision pertains to, inter alia, procuring the assistance of any person in 
the service of Pakistan to further or hinder the election of a candidate. The 
CA.307-L/2015 
 
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successful proof of the commission of the said wrong by a returned 
candidate not only annuls his election under Section 368 (1)(d) as well as 
Section 70(b) of the ROPA but also disqualifies him from contesting an 
election for a period of five years under Section 99(1A)(l) of the ROPA and 
exposes him to criminal prosecution for an offence carrying punishment of 
six months imprisonment.  In view of the severe consequences following the 
proof of corrupt and illegal practices in particular by a returned candidate, 
different pronouncements by this Court adopt a cautious stance towards a 
defending incumbent of elected office. The earliest case on the subject is 
Muhammad Saeed   vs.   Election Petitions Tribunal, West Pakistan, etc. 
(PLD 1957 SC 91) which holds that each ingredient of the misdemeanor of 
corrupt or illegal practices must be affirmatively proved by direct or 
circumstantial evidence. Circumstantial evidence is to be believed if all 
reasonable hypotheses which are consistent with the non-commission of 
corrupt or illegal practices have been excluded. The said rule has been 
reiterated with approval in Muhammad Yusuf   vs.   S.M. Ayub (PLD 1973 
SC 160) and in Muhammad Afzal    vs.   Muhammad Altaf Hussain (1986 
SCMR 1736).  
16. 
 
In the present case, there is no circumstantial, let alone, any 
direct evidence implicating the appellant in the commission of corrupt or 
illegal practices during his election. Only an inferential allusion in the 
submissions by the learned counsel for the election petitioner is suggested to 
entangle the appellant. The half heartedness of the suggestion itself indicates 
the weakness of any merit in the learned Tribunal’s finding that the 
appellant is guilty of committing corrupt or illegal practices during the 
general election in constituency NA-154 Lodhran-I. Correspondingly, there 
CA.307-L/2015 
 
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cannot be any finding that the result of the said election is vitiated by such 
practices under Section 68(1)(d) or Section 70(b) of the ROPA.    
17. 
 
Be that as it may, the question that arises is whether the 
inclusion of 22,216 invalidly issued ballot papers in the count of election 
result is inconsequential in the eyes of law or has any bearing on the result of 
the election. It may be reiterated that the objection to the validity of issued 
ballot papers arises from non-compliance with the requirements of Section 
33(1)(e) and 33(3)(c) of the ROPA to different degrees by the election staff at 
almost all the polling stations. Section 70 of the ROPA is relevant for 
widespread violations of mandatory law made during the course of election. 
It reads as under: 
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 this 
Act or the rules; or 
(b) the prevalence of extensive corrupt or illegal practice at the 
election. 
 
18. 
 
Clearly, the provisions, inter alia, of Section 33 of the ROPA 
relating to the identification of an elector before the issuance of a ballot paper 
to him are crucial for preventing bogus voting and ensuring a free and fair 
election. These provisions with the said object would, according to the dicta 
laid down in Abdul Hafeez Khan   vs.   Muhammad Tahir Khan Loni (1999 
SCMR 284) have mandatory effect, and the widespread non-compliance of 
the said provision would attract the application of Section 70(a) of the ROPA. 
However, it is noticed that a declaration under Section 70(a) ibid is 
predicated upon the satisfaction of the Election Tribunal that “the result of the 
election has been materially affected by reason of” non-compliance with the 
provisions of the ROPA or Rules framed there under. Straightaway, those 
violations of the election law that have significant numerical impact on the 
CA.307-L/2015 
 
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count of election result would fall within the ambit of Section 70(a) of the 
ROPA. At the same time, arithmetical precision in determining the number 
of votes invalidated by delinquent acts committed during the election is not 
essential and a Tribunal in principle should consider the imperativeness of 
the law violated and the scale of the violation committed in order to estimate 
their impact on the result of the election.  
19. 
 
In the case of Jam Mashooq Ali   vs.  Shahnawaz Junejo (PLD 
1996 SC 426) this Court treated the non-supply of amended electoral rolls to 
the election staff at several polling stations, the prohibition of electors to vote 
on account of having identity cards bearing numbers from specified series 
and non-issuance of postal ballots to electors who had used photocopy forms 
issued for the purpose to have vitiated the process of the election as a whole. 
The Court approved the observation that in the facts and circumstances of a 
case if it is not possible to even assess as to what should have been the result 
of the election on account of non-compliance with the election law, then the 
result of the election ought to be treated as being materially affected. The 
denial of a right of franchise to the electors on a widespread scale or 
conversely the grant of opportunity to strangers to usurp or defeat such right 
of franchise through bogus voting are both acts that go to the roots of the 
electoral process and contravene the constitutional mandate expressed in 
Article 218 (3) of the Constitution that “elections are to be held honestly, justly, 
fairly and in accordance with law and that corrupt practices are guarded against.”  
20. 
 
In cases where an estimate of the votes tainted with delinquent 
conduct can be made, one approach taken by the Court has been to deduct 
the number of tainted votes from the lead secured by a winning candidate. 
Where the lead significantly exceeds the number of tainted votes, the 
adjustment reduces such margin but the winning candidate nevertheless 
CA.307-L/2015 
 
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succeeds. Therefore, in such cases it cannot be said that the result of the 
election has been materially affected. In the case of Ehsanullah Reki  vs.  
Abdul Qadir Baloch (2010 SCMR 1271), this Court adjusted the disputed 
votes cast at the polling stations nominated by the election petitioner against 
the lead attained by the returned candidate. It was held that even after 
giving the election petitioner benefit of all the disputed votes, the lead of the 
winning candidate survived by a margin of 188 votes over the total number 
of votes attributed to the election petitioner. A similar approach was adopted 
by this Court in the case of Raja Ameer Zaman   vs.  Omer Ayub Khan (2015 
SCMR 890) wherein it was contended before the Court that a re-poll at 
specified polling stations could not be ordered because the non-compliance 
in election process with the provisions of election law had not been 
attributed to corrupt or illegal practices committed by any candidate. The 
returned candidate could not be punished for neglect or defaults committed 
by the election staff. This Court answered that contention as follows:- 
“26.  
… The scheme of the law appears to be that the primary and 
perhaps this most effective defence against bogus voting is to ensure that 
a ballot paper is only issued to a person whose name appears on the 
Voters List/ Electoral Roll of the Polling Station in question, that too, 
after proper identification. To achieve the object of fair election the 
availability and proper utilization of the Voters List is therefore crucial. 
The failure of an effective filter for the issuance of ballot paper to a bona 
fide Elector would tantamount to leaving the barn door open and the 
Cow will run away. Any subsequent attempt to track down the 
proverbial Cow (the illegally issued ballot paper) is by no means easy if 
not impossible. 
27. 
Yet another safeguard against the bogus voting is the 
counterfoils of the ballot papers. Any discrepancy in the number of votes 
cast and the counterfoils available would obviously make the result 
questionable. Similarly, rejected votes can become a bone of contention 
effecting the outcome of the election. It is no coincidence that Voters 
Lists, counterfoils of ballot papers and rejected votes are required to 
preserved along with other election material as mandated by section 38 
of ROPA. The resolution of future dispute through verification appears 
to have been catered for. 
CA.307-L/2015 
 
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28. 
There can be no escape from the fact that in the instant case the 
requirement of the law has not been fulfilled. Section 70 of ROPA clearly 
provides that the Tribunal can declare an election to be void on account 
of failure of any person to comply with the provisions of ROPA or the 
Rules framed thereunder, if such failure materially affects the result. This 
Court in the case, reported as Jam Mashooq Ali  vs.   Shahnawaz Junejo 
(1996 SCMR 426) set aside an election, inter alia, on the ground that up-
to-date amended Voters List/ Electoral Roll had not been made available 
to the Presiding Officer before the commencement of the voting process 
on the election day.”  
With respect to the numerical difference of 1304 votes between the returned 
candidate and the challenger, it was held that if the votes polled by both the 
appellants and respondent No.1 [in the seven objected polling stations] are 
excluded from the total tally, then it is the respondent No.1, whose votes 
would exceed those cast in favour of the appellant [returned candidate]; thus 
it is obvious that non-compliance of the law in seven polling station has 
materially affected the election results of the entire election. On the said test 
the judgment of the Tribunal for re-poll at the seven polling stations was 
upheld. Subsequently, in review proceedings, Raja Ameer Zaman   vs.  
Omer Ayub Khan (2015 SCMR 1303), this Court modified the extent of the 
re-poll to the entire constituency and thereby approved the approach that 
material affect upon the result election can be established by excluding the 
objected votes from total count in order to assess whether the winning 
margin of the returned candidate is upset. 
21. 
 
In the present case, there are two reports: one is dated 
23.05.2013 (Exb.P-13) prepared by the REC (PW-11) and the other is dated 
28.10.2014 (Exb.CW-10/1-6) authored by Mr. Ghazali Zahid, Director, 
NADRA (CW-2). Both these witnesses were cross-examined incisively by the 
learned counsel for the appellant, however, the integrity and correctness of 
the findings given in the two reports remain unaffected. The violations of 
election law noted in the NADRA’s report clearly invalidate 22,216 ballot 
CA.307-L/2015 
 
17 
papers issued to persons contrary to the provision of Section 33 of the ROPA, 
which are intended to exclude the possibility of bogus voting and are 
therefore mandatory for advancing the mandate expressed in Article 218(3) 
of the Constitution.  On the other hand, the appellant was returned as 
Member National Assembly in the election with a lead of 10,891 votes. 
Consequently, by adopting the straight forward numerical approach of this 
Court taken in Raja Ameer Zaman’s case (2015 SCMR 890) and also visible 
in Ehsanullah Reki’s case (2010 SCMR 1271), it is patently clear that after 
adjusting the 22,216 disputed votes against the lead of the appellant, the 
result of the election is materially affected and his margin of victory is 
eliminated to a losing difference from the tally of the election petitioner. 
Equally, on the alternative test adopted by this Court in Jam Mashooq Ali’s 
case (PLD 1996 SC 426), the widespread scale of the violations of election law 
committed by the election staff in NA-154, Lodhran-I, makes the 
pervasiveness of their default to infect the election process as a whole with 
doubt and suspicion thereby materially affecting the election result.  
22. 
 
According to the NADRA’s report (Exb.CW-10/1-6) the 
election record of 290 polling station was scanned and verified. Out of these, 
entries of bogus CNIC are contained in the record of 288 polling stations. 
Nearly fifty of these polling stations had bogus ID Cards entries on a 
minimum of 100 counterfoils upto a maximum of 414 counterfoils. This 
result is based on the analysis of 95,927 counterfoils pertaining to almost all 
the polling stations. However, the NADRA report states that thumb 
impression on 122,123 counterfoils could not be deciphered and therefore, 
were excluded from the count. What extent of violation may have taken 
place in respect of said unreadable counterfoils can only be guessed, since 
these cannot be totally immune from the otherwise universal malaise of 
CA.307-L/2015 
 
18 
bogus entries. Add to these figures the violation of section 33(1)(e) of the 
ROPA occurring at 104 polling stations highlighted in the REC’s report. The 
Presiding Officers at these polling stations did not sign and/or stamp the 
counterfoils of ballot papers. The issuance of ballot papers against such 
counterfoils is unauthorized and invalid. Therefore, the combined impact of 
the violations of the ROPA and the Rules framed thereunder  that are noted 
in the NADRA report and the REC report in the election of NA-154 Lodhran-
I is so widespread and extensive that the test laid down in Jam Mashooq 
Ali’s case (PLD 1996 SC 426) is also squarely satisfied. Consequently, the 
finding of the learned Election Tribunal, that the result of the election of  
NA-154 is materially affected on account of violations to comply with the 
provisions of the ROPA or Rules framed thereunder, is entirely justified and 
is upheld. The derivative finding by the learned Tribunal that such violations 
have been committed by the election staff by or at the behest of the appellant 
is unsupported by any evidence and is therefore set aside. We hold that in 
consequence of non-compliance of the election laws, the election in NA-154 
Lodhran-I is void as a whole.  
23. 
 
It may be observed at this stage that owing to afore-noted 
significant and substantial evidence of statutory violations in the conduct of 
election in NA-154 Lodhran-I, learned counsel for the appellant on 
instructions gave his consent to the appellant’s election being declared as a 
whole to be void and for a fresh election to be held in the constituency  
NA-154 Lodhran-I. That concession was pondered and disregarded by us 
because private consent cannot prompt a judicial direction for holding a 
fresh election in the constituency. The present lis involves the enforcement of 
public law in respect of an elected public office under the Constitution and 
involves the commitment of huge public funds through the ECP for 
CA.307-L/2015 
 
19 
financing a bye-election. The outcome of such a controversy must be decided 
in accordance with law and not pursuant to the wishes of affected private 
parties.  
24. 
 
Keeping in view the above noted vast extent and degree of 
neglect, indifference or otherwise malice of the election staff in the conduct 
of election in NA-154 Lodhran-I, the object and motivation for such wrong 
doing cannot be overlooked or condoned. The ECP is therefore directed to 
inquire into the cause and purpose, if any, of such errant conduct by the 
election staff and to prosecute the responsible persons for breaches of their 
duties, inter alia, committed under Section 91 of the ROPA.  
25. 
 
This brings us to the last and highly contested finding given by 
the learned Tribunal. It has been held that the appellant made a false 
declaration 
in 
his 
nomination 
papers 
about 
his 
B.A./Graduation 
qualification from the University of Balochistan. Such a false declaration 
deprives the appellant of the qualification contained in Article 62(1)(f) of the 
Constitution, which provides as follows: 
“62.(1). A person shall not be qualified to be elected or chosen as a 
member of the Majlis-e-Shoora (Parliament) unless – 
 
 
… 
(f) 
He is sagacious, righteous, non-profligate, honest and ameen, 
there being no declaration to the contrary by a court of law;” 
 
The learned counsel for the appellant has contested the said finding because 
there is no direct evidence on record showing that the appellant’s claim of 
his graduate qualification is false. The election petitioner as an accuser 
cannot establish the allegation without bringing proof that is beyond 
reasonable doubt. In such matters involving a penal consequence, the benefit 
of doubt must favour the accused, in this case the appellant. Reliance has 
been placed on the judgments by this Court in Muhammad Saeed   vs.   
Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91), Saeed 
CA.307-L/2015 
 
20 
Hassan   vs.   Pyar Ali (PLD 1976 SC 6) and Muhammad Afzal    vs.   
Muhammad Altaf Hussain (1986 SCMR 1736).  
26. 
 
The loss of qualification under Article 62(1)(f) of the 
Constitution has been visited with removal from elected office under the 
Constitution in a number of cases including Abdul Ghafoor Lehri   vs.   
Returning Officer PB-29 Naseerabad-II (2013 SCMR 1271), Allah Dino 
Khan Bhayo   vs.   Election Commission of Pakistan (2013 SCMR 1655), 
Iqbal Ahmad Langrial  vs.   Jamshed Alam (PLD 2013 SC 179) and Najeeb-
ud-din Owaisi  vs.  Amir Yar Waran (PLD 2013 SC 482).  Weighty reasons 
have been assigned for adopting and implementing the constitutional 
mandate as a bar on membership in Parliament. Firstly, the qualifications of 
a candidate set out in Article 62 of the Constitution are a sine-qua-non for 
eligibility to be elected as Member of Parliament. No time limit for 
ineligibility on this score is given in the Constitution. A person who is 
untruthful or dishonest or profligate has no place in discharging the noble 
task of law making and administering the affairs of State in government 
office. Such faults in character or disposition, if duly established, cannot be 
treated as transient for the purpose of reposing trust and faith of the 
electorate and the Constitution in the holder of an elected office under the 
Constitution. The trusteeship attendant upon the discharge of every public 
office under the Constitution, whether Legislative, Executive or Judicial is a 
universally recognized norm. However, our Constitution emphasizes upon it 
expressly for an elected parliamentary office. The Constitutional norm must 
be respected and therefore implemented. The above noted precedents have 
applied a lifetime bar on a delinquent elected Member of Parliament. 
Therefore, the apprehension of the appellant, as expressed by his learned 
counsel about incurring the sanction under Article 63 of the Constitution is 
CA.307-L/2015 
 
21 
fully justified. Irrespective of the period of disability inflicted for violation of 
Article 62(1)(f) of the Constitution, the learned Tribunal should have 
examined the evidence in relation to the allegation of false declaration by the 
appellant in his nomination papers very carefully and judiciously before 
depriving him of eligibility to contest for elected office under the 
Constitution.  
27. 
 
The state of evidence on record about the falsity of the 
appellant’s educational qualification is cursory, defused and inferential. No 
witness of the University of Balochistan was examined by the election 
petitioner. Likewise, no witness of Board of Intermediate and Secondary 
Education (“BISE”), Karachi wherefrom the appellant secured his Secondary 
School Certificate (Matriculation) and Higher Secondary School Certificate 
(Intermediate) was examined by the election petitioner. There is no report on 
record either by the University of Balochistan or BISE, Karachi disputing, 
disowning or rejecting diplomas/certificates conferred by the said 
institutions upon the appellant. At best, the case of the election petitioner is 
based on the belated decision of the appellant i.e. at the age of 43 years, to 
secure his Secondary School Certificate, Higher Secondary School Certificate 
and Graduation degree in the years 2002, 2004 and 2006 respectively. This 
initiative coupled with his poor English language skills and total lack of 
knowledge of the Sindhi language as well as failure to distinguish “General 
Science” from “Political Science” are highlighted by the learned counsel for 
the election petitioner as proof of the appellant’s lack of graduate 
qualification. The order sheets of the learned Tribunal show that on 
28.02.2014, the Deputy Controller of Examination, BISE Karachi attended the 
Court as a summoned witness. The election petitioner did not examine him 
because of the incomplete record that he had brought. Again on 15.04.2014 
the Controller of Examination, University of Balochistan attended the Court 
CA.307-L/2015 
 
22 
as a summoned witness. He also brought incomplete record and the election 
petitioner decided not to examine him.  
28. 
 
The case law on the subject of false declaration of educational 
qualifications by a returned candidate covers in general three categories: 
firstly, where the degree or diploma is fake and bogus and is disowned by 
the institution claimed by the holder to have issued the same; secondly, 
where the degree or diploma has been procured through personation and 
some finding on this score has been rendered by the concerned educational 
institution; and thirdly, where unfair means have been adopted by a 
candidate to pass his examination or secure his degree or diploma 
fraudulently, deceitfully or with complicity. The election petitioner has made 
a vague and jumbled allegation against appellant’s educational qualifications 
that does not specify either in his pleadings and his evidence, the precise 
reason for the invalidity of the B.A. qualification of the appellant. In the final 
analysis, when the learned counsel for the election petitioner declined to 
avail the opportunity to  cross-examine the Controller of Examination of the 
University of Balochistan about his failure to bring the summoned record, 
the election petitioner gave up the chance to demonstrate complicity, design 
or impropriety in the issuance of the degree to the appellant. To cover that 
defect, the learned counsel for the election petitioner made a request that this 
Court should itself examine the appellant under Order X Rule 2 CPC. 
Reliance was placed on Iftikhar Ahmad Khan Bar   vs.   Chief Election 
Commissioner (PLD 2010 SC 817) and Muhammad Rizwan Gill   vs.   
Nadia Aziz (PLD 2010 SC 828). However, both precedents are 
distinguishable. In the first case, the qualification claimed by the returned 
candidate was a Sanad of Alshahadat-ul-Aalimia equivalent of M.A. in Islamic 
Studies according to the Higher Education Commission Pakistan (“HECP”). 
CA.307-L/2015 
 
23 
However, the body authorized by the HECP for conferring the said Sanad, 
namely, the Wafaq-ul-Madaris, Pakistan, disowned issuance of the Sanad 
claimed by the returned candidate. In fact the Jamia Rizvia Sardarul Madaris 
which had conferred the Sanad was not even registered with the Wafaq-ul-
Madaris. In the background of clear proof of bogus qualification of the 
returned candidate but before giving any adverse finding against an elected 
Member of Parliament, this Court in order to do justice decided to examine 
him. The second case is completely different in which the returned candidate 
himself wished to be heard in-person before this Court and to make a 
statement. The two cases were accordingly decided on their own facts. 
However, it cannot be canvassed that in these cases the Court ventured to fill 
any lacunae in the evidence against the returned candidate, whereby he 
would be disqualified to contest any election; whereas this is being presently 
canvassed before us on behalf of the election petitioner.  
29. 
 
At this juncture, it is important to emphasize that in cases 
involving a finding of fact about the disqualification of a returned candidate 
in election matters, such finding must be based on affirmative evidence and 
not on presumptions, inferences and surmises. That does not mean that 
proceedings in an election petition before an Election Tribunal are strictly 
criminal proceedings. It is settled law that even in civil proceedings, a 
finding of fact must be based on positive and affirmative evidence. This 
requirement rests in the basic principles of the Qanun-e-Shahadat Order, 
1984 and is articulated in Allah Din   vs.  Habib (PLD 1982 SC 465). For that 
reason and the serious consequences that follow a finding of disqualification 
under Article 62(1)(f) of the Constitution, an additional evidentiary 
safeguard is adopted by the Court, namely, that any reasonable hypothesis  
 
CA.307-L/2015 
 
24 
available in the recorded evidence to avoid the disqualification of the 
returned candidate ought to be adopted by the Court of law. The foregoing 
safeguards have already been laid down in relation to the proof of corrupt 
practice by a candidate in an election. Section 78(3)(d) of the ROPA treats a 
false statement by a candidate about his educational qualification to be a 
corrupt practice.  
30. 
 
The earliest pronouncement on this subject is rendered by this 
Court in Muhammad Saeed’s case (PLD 1957 SC 91), wherein it is held that: 
“… the burden of proof of corrupt practices is on the petitioner; that the 
evidence of proof of such practices must be restricted to the charges or 
instances mentioned in the petition and the particular; that each 
ingredient of a corrupt practice so charged must be affirmatively proved 
by evidence, direct or circumstantial; and that where the evidence is 
wholly circumstantial, the commissioners before finding a corrupt 
practice proved must exclude all reasonable hypotheses which are 
consistent with that corrupt practice having not been committed… .” 
31. 
 
A case directly pertaining to disqualification of a returned 
candidate was heard by this Court in Mohammad Yusuf’s case (PLD 1973 
SC 160) wherein whilst adopting the view taken in  Muhammad Saeed’s 
case (PLD 1957 SC 91) this Court has observed that finding of 
disqualification must be based on positive evidence and should not be 
rendered inferentially on mere surmises; that since a disqualification was 
penal in nature, therefore, the terms thereof were subject to strict 
interpretation; and the benefit of doubt was to be extended in favour of a 
returned candidate. The later judgments of this Court rendered in Saeed 
Hassan’s case (PLD 1976 SC 6) and Muhammad Afzal’s case (1986 SCMR 
1736) approve the principles enunciated in the afore-noted two judgments. 
32. 
 
The defect with the election petitioner’s case is his failure to 
bring direct or circumstantial evidence that affirmatively proves that the 
appellant has made a false statement about his graduate qualification. The 
CA.307-L/2015 
 
25 
learned counsel for the election petitioner has contended that in civil matters, 
as in the present case, wherein pursuant to the provisions of Section 64 of the 
ROPA, the Election Tribunal exercises all the powers of the Civil Court 
under the Code of Civil Procedure, 1908, the initial burden of proof lies upon 
the appellant because he is the holder and beneficiary of the educational 
qualification claimed by him. That the appellant has never discharged that 
burden of proof and consequently, the genuineness of the claimed graduate 
qualification is not proven. The said submission ignores the verification 
certificate of the appellant’s B.A. degree issued by the HECP and presented 
to the Election Tribunal vide Exb.R-27. This exhibit includes the Degree 
Submission Information Form (“DSIF”) (Exb.R.24/1) signed respectively by 
the Controller of Examination and the Vice Chancellor of the University of 
Balochistan. Furthermore, the Director (Attestation) of the HECP deposed as 
RW-22  before the learned Tribunal to substantiate and defend the 
verification of the appellant’s graduate qualification carried out by the HECP 
under orders of this Court dated 14.06.2010 passed in Civil Appeal No. 409 
of 2010. Sadly, the cross-examination of the said witness by the learned 
counsel for the election petitioner failed to extract any concession or 
information favourable to the election petitioner by discrediting or 
demolishing the HECP verification of degrees procedure. No substantial 
defect in that procedure nor the inadequacy of safeguards and checks 
applied by the HECP for rendering its verification were demonstrated. In the 
absence of material showing that the appellant had failed to discharge his 
initial burden of proof to demonstrate his educational qualification clearly 
the burden of proof shifted to the election petitioner who, as already 
observed, failed to meet the standard specified in the precedents noted 
above. Accordingly, the findings given by the learned Tribunal to the effect 
CA.307-L/2015 
 
26 
that the appellant has made a false statement/declaration in his nomination 
papers regarding his educational qualification is based on presumption, 
inferences and surmises and is therefore, unsustainable in law. It is 
accordingly set aside. The appeal is accordingly partly allowed with a 
direction to the ECP to hold a fresh election in constituency NA-154 
Lodhran-I in accordance with law. There is no order as to costs.  
33. 
 
Herein above are the reasons of our short order dated 
28.10.2015, which is reproduced herein below: 
“For the detailed reasons to be recorded later, this appeal is partly 
allowed, in that the finding of the learned Election Tribunal regarding 
disqualification of the appellant is set aside. However, as regards the 
finding on the question/issue about illegal and corrupt practices 
committed in the holding of the election in the constituency, the learned 
counsel for the appellant is prepared to face a fresh election. He does not 
press this appeal to the extent that the result of the election is void under 
Section 70(a) of the ROPA, 1976. However, he contests the finding given 
against the appellant under Section 68 of the ROPA, 1976. 
2. 
In view of the concession given with respect to violations of law 
under Section 70(a) of the ROPA, 1976, the result of the election is 
materially affected and is therefore declared void. In light of the above, 
this appeal is partly allowed; the election of constituency NA-154 
Lodhran-I having been declared void, the Election Commission of 
Pakistan is directed to hold fresh election in the said constituency in 
accordance with law.”    
     
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
J. 
 
 
 
 
 
 
 
 
 
 
J. 
Islamabad, 
28.10.2015.  
Irshad Hussain /* 
APPROVED FOR REPORTING.  
