IN THE SUPREME COURT OF PAKISTAN 
  
        (Review Jurisdiction) 
 
 
 
PRESENT: 
 
 
 
 
Mr. Justice Jawwad S. Khawaja 
 
 
Mr. Justice Gulzar Ahmed 
 
 
Mr. Justice Sh. Azmat Saeed 
 
 
CIVIL REVIEW PETITION NO. 94 OF 2014 IN 
CIVIL APPEAL NO.31 OF 2014.  
(Against the review of order dated 7.3.2014 passed by this Court in  
 CA 31 of 2014) 
 
 
Dr. Raja Aamer Zaman 
 
… Petitioner (s) 
 
Versus 
Omar Ayub Khan, etc.      
 
 
… Respondent (s) 
 
 
For the Petitioner (s) 
: Mr. Hamid Khan, Sr. ASC 
Mr. M. S. Khattak, AOR  
 
 
 
For the Respondent-1. 
: Mr. Muhammad Akram Sheikh, Sr. ASC 
Syed Rafaqat Hussain Shah, AOR 
 
For the other Respondents: 
 
 
Nemo 
 
 
 
Date of Hearing 
: 29.05.2015 
 
J U D G M E N T 
 
  
Jawwad S. Khawaja, J.- This petition seeks review of our judgment dated 7.3.2014 
whereby Civil Appeal No.31 of 2014 filed by the petitioner, was dismissed. The facts 
relevant for the adjudication of this review petition have been set out in the said judgment 
and, therefore, need not be reproduced except to the extent necessary for the present 
judgment. Furthermore, only points of law relating to the interpretation of sections 67 and 
70 of the Representation of Peoples Act, 1976 (“ROPA”) are to be addressed in view of the 
limited scope of review jurisdiction.  
2.  
The facts to the extent relevant are straightforward and can now be stated to 
facilitate the discussion which follows. The petitioner and respondent No.1 are the 
principal protagonists in this case. In the general elections held on 11.5.2013 for the 
constituency NA-19 (Haripur), the petitioner was declared as the returned candidate on 
the basis that he had secured 1,16,979 votes as against 1,14,807 votes in favour of the 
CRP 94 of 2014 
2 
respondent. A recount was ordered whereafter the petitioner remained the candidate 
with the highest number of votes polled although the difference of 2172 votes stood 
reduced to 1304 as a result of the recount. The respondent filed an election petition which 
was decided by the Election Tribunal vide order dated 31.12.2013. The Tribunal instead of 
declaring the election to be void as a whole, directed re-poll in seven polling stations only 
while holding that the petitioner was not responsible for any corrupt or illegal practice. 
This is the limited point of law in contention before us because according to the petitioner 
the Election Tribunal could not have directed a partial re-poll. The respondent, however, 
asserts that it was within the competence of the Election Tribunal to order partial re-poll 
in respect of seven polling stations.    
3.  
Through our order of 3.2.2015 in this petition, the reason for issuing notice to the 
respondents has been given. The contention of learned counsel for the petitioner has been 
noted viz. “the [Election] Tribunal has the power to declare election as a whole void, but it, under 
no circumstances has the power to declare election void in respect of a few polling stations”. It is 
for this reason it was considered necessary to “hear this case in detail”. 
4.  
On 7.5.2015 we had framed three questions of law and interpretation of statutes on 
which the hearing of the review petition was focused. These questions are reproduced as 
under:- 
 
“i) 
Whether under the law set out in Sections 67 to 70 of the ROPA, it 
was permissible for an Election Tribunal to pass an order for re-poll in only 7 
out of 437 polling stations ? 
ii) 
Whether the provisions of Sections 103 and 103-AA of the ROPA, 
which empower the Election Commission are in pari materia with the 
provisions of Sections 67 to 70 of the ROPA and, therefore, if through 
precedent, the Election Commission is seen as being empowered to order a 
partial re-poll in some polling stations, whether Sections 67 to 70 of the 
ROPA can be similarly interpreted to authorize the Election Tribunal to 
order a partial re-poll ? 
iii) 
Whether the Election Tribunal is empowered by any of the provisions 
in Sections 67 to 70 of the ROPA to order a partial re-poll ?” 
  
5.  
Learned counsel for the petitioner has drawn our attention to our judgment under 
review and in particular the precedent cited therein titled Ehsanullah Reki vs. Abdul Qadir 
Baloch (2010 SCMR 1271). The ratio of the said precedent is the basis on which the points 
CRP 94 of 2014 
3 
of law i.e. interpretation of sections 67 and 70 of ROPA, has been made. The relevant 
portion of the cited case on which reliance has been placed, has been reproduced in our 
judgment. The learned counsel agued that this precedent in fact goes against the 
conclusion arrived at in the judgment and according to him, has been erroneously made 
the basis of the judgment. The relevant extract from the cited case can usefully be 
reproduced at this stage to enable us to examine if indeed the contention of learned 
counsel for the petitioner is well founded. Paragraphs 32 and 33 of the precedent case 
which are the basis of the judgment under review are reproduced as under:- 
“32. We are mindful that the allegations leveled with regard to malpractices 
at some of the polling stations were such that it was difficult to identify the 
culprits and one obvious course to follow was to direct fresh polls of the entire 
constituency. However, we note that there were in all 220 polling stations 
and the dispute subject matter of this appeal is relatable to 11 polling stations 
only and with regard to four polling stations the appellant had alleged that in 
the recount carried out by P.W.1 on the direction of the Election Commission 
of Pakistan, the former had interpolated in the record, but this could not be 
proved. The objection of the appellant with regard to the report submitted by 
C.W.1, the Provincial Election Commissioner after the recount was duly 
addressed by this Court in remanding the case to the Tribunal. Parties were 
allowed to cross examine him. However, nothing adverse was brought in 
evidence which could discredit the testimony of C.W.1 and no mala fide was 
either alleged or could be inferred. We further note that notwithstanding the 
above even if all the rejected votes in all the eleven polling stations (although 
appellant had specific objection with regard to four only) are cast in favour of 
the appellant, the respondent still wins by a margin of 188 votes as is borne 
out from the break up given in Paras 25 and 26 above.  
33. In the afore-referred circumstances, we do not deem it proper to annul the 
entire election and instead concur with the finding of the Election Tribunal to 
declare the respondent as a Returned Candidate”.         
6.  
From the above  extract  it  is  evident  that  the  cited  case  is quite distinguishable 
on facts and as a consequence,  does  not constitute precedent in the present case. The 
ratio, however, is supportive of the stance of the petitioner. The important point of 
distinction between  the  case  of  Ehsanullah Reki  supra  and  the  present matter  is that  in  
the  cited  case,  regardless   of  the  number  of votes  polled  at  the 11 disputed  polling  
stations,  the result  of  the  election was not affected, while in the present case, the 
Election Tribunal as well as the judgment in appeal (now under review) have concluded 
CRP 94 of 2014 
4 
that the result of the seven disputed polling stations had materially affected the outcome 
of the election. It is an express stipulation of section 70 of ROPA that the election as a 
whole is to be declared void, if “the result of the election has been materially affected by reason 
of failure of any person to comply with the provisions of the Act [ROPA] or the rules”. In the 
present case both conditions of the statute viz. failure to comply with the provisions of 
ROPA and the second necessary condition that such failure should also have materially 
affected the result of the election, have been met. Since both statutory requirements exist 
concurrently in the present case, the election as a whole stands vitiated.  
7.  
We will shortly be considering the words “as a whole” but in our humble opinion, 
the ratio in the case of Ehsanullah Reki supra supports the contention of the learned counsel 
for the petitioner rather than the stance of the respondent. The votes at the disputed 
polling stations would be decisive of the outcome of the election, which is why the case of 
Ehsanullah Reki supra is distinguishable. The only way the election in the present case 
could have been saved from being annulled is if the outcome of the election were to 
remain unaffected even if all votes at the disputed stations were treated as cast in favour 
of the loosing candidate. It is this “materiality test” which has been duly noted in 
paragraph 29 of the judgment under review. The case of Morgan and others v. Simpson and 
another [(1974) 3 All ER, 722] has been referred to wherein it has been held that “if there 
was breach of the rules or mistake in holding the polls, and it did affect the result, then the election 
is vitiated”. The case of Muhammad Ali v. Maulana Muhammad Zakria (PLD 1966 Journal 
167) has also been cited to hold that if “it is not possible to assess as to what should have been 
the result of the election had the provisions of the law been correctly followed, the result of the 
election stood materially affected”.  
8.  
If the ratio of the afore cited cases is applied to the facts of the present case, it is 
clear that the number of votes in the seven disputed polling stations and the difference in 
votes polled by the two main contestants at such stations is such that it is not possible to 
assess the outcome of the election. Thus in the judgment of 7.3.2014, it has rightly been 
observed “it is obvious that non compliance of the law in seven polling stations had materially 
affected the result of the entire election”. This clearly demonstrates that even as per the 
judgment sought to be reviewed, the election in the constituency became contaminated as 
CRP 94 of 2014 
5 
a whole. The question, therefore, which needs to be answered is as to whether despite 
such finding it was open to the Election Tribunal to conclude that the election was only 
partially void to the extent of seven polling stations. Section 70 of ROPA, for ease of 
reference is reproduced 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 the Act or the rules; or 
(b) the prevalence of extensive corrupt or illegal practice at the election”. 
9.  
With great respect we are of the humble view that the ratio in the cases of 
Ehsanullah Reki, Morgan and others & Muhammad Ali supra appears to have escaped the 
notice of the Bench, and as a consequence the same has not been correctly appreciated and 
applied to the law and to facts of the present case. Therefore, even on the authorities 
referred to and relied upon in the judgment under review, the conclusion which must 
follow is that the election stood vitiated as a whole, because of being materially affected 
on account of failure to comply with the provisions of ROPA. Furthermore, after 
concluding (rightly) that non compliance of the law in seven polling stations had 
materially affected the “entire election”, it was not possible to allow for a partial annulment 
of the election.     
10. 
The learned counsel for the respondent placed a great deal of emphasis on the 
provisions relating to the Election Commission under sections 103 and 103AA of ROPA as 
interpreted by this Court, with the object of contending that the Election Tribunal also has 
power to order a partial re-poll at some polling stations. For reasons now considered by 
us, the powers of the Election Commission under sections 103 and 103AA ibid are 
materially different from the provisions of sections 67 and 70 of the ROPA and, therefore, 
any interpretation of sections 103 and 103AA cannot be applied to sections 67 and 70 of 
ROPA. The provisions are in fact quite different, both in letter and in spirit. 
11. 
The most significant aspect of distinction between the powers of an Election 
Tribunal under sections 67 and 70 as opposed to the powers to the Election Commission 
in sections 103 and 103AA of ROPA is constitutional. While the Election Commission has 
powers vested in it under Article 218 of the Constitution requiring it to ensure that the 
CRP 94 of 2014 
6 
election is conducted honestly, justly, fairly, and in accordance with law, the powers of 
the Election Tribunal are derived from Article 225 of the Constitution which stipulates 
that “[n]o election to a House or a Provincial Assembly shall be called in question except by an 
election petition presented to such tribunal and in such manner as may be determined by Act of 
Majlis-e-Shoora (Parliament). The Act of Parliament referred to is the ROPA. 
12. 
There is thus a qualitative difference between the powers enjoyed by and invested 
in the two forums. The Election Commission is mandated to conduct elections honestly, 
justly, fairly and in accordance with law. It follows, therefore, that where it comes to the 
notice of the Election Commission that the election being conducted is not in accordance 
with the mandate of the Constitution and the law i.e. ROPA, the Election Commission 
may act by removing impediments in the conduct of just and fair elections. It may well be 
as per ratio in the case of Lt. Gen. (R) Sallahuddin Tirimzi Vs. Election Commission of Pakistan 
(PLD 2008 SC 735), that for a particular reason such as natural calamity, violence, 
terrorism etc., effecting a few polling stations, the Election Commission has the power to 
order a re-poll in such polling stations which have been affected by such events. Section 
103 simply states that the Commission may “stop the polls at any stage of the election if it is 
convinced that it shall not be able to ensure the conduct of the election justly, fairly and in 
accordance with law due to large scale malpractices …”. Moreover, clause (c) of section 103 
provides ample power to the Election Commission to “issue such instructions and exercise 
such powers and make such consequential orders, as may in its opinion, be necessary for ensuring 
that an election is conducted honestly, justly and fairly, and in accordance with the provisions of 
this Act [ROPA] and the rules”. This power under section 103 ibid is of sufficient amplitude 
to enable the Election Commission to order a re-poll only in some and not all polling 
stations in a constituency. The Election Tribunal is not invested with any such discretion. 
The wording of section 70 quite clearly requires that the Tribunal “shall declare the election 
as a whole to be void” if the dual conditions of section 70 are met, as in the present case.    
13. 
Secondly section 103AA stipulates that “… if, from facts apparent on the face of the 
record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, 
by reason of grave illegalities or violations of the provisions of this Act [ROPA] or the rules, the 
poll in any constituency ought to be declared void, the Commission may make a declaration 
CRP 94 of 2014 
7 
accordingly and … call upon the constituency to elect a member in the manner provided for in 
section 108”. This is an enabling provision which empowers the Election Commission to 
call upon a constituency to elect a member. This power does not detract, in any manner, 
from the powers under section 103 and in particular clause (c) thereof to pass orders in 
respect of some, but not all polling stations. Moreover, when the provisions of sections 
103 and 103AA are examined, it becomes abundantly clear that the Commission has been 
granted administrative and policing functions for the purpose of conducting elections 
honestly, fairly, justly and in accordance with law. These administrative powers are not 
judicial in nature and are exercisable without any deep probe of facts as may be 
ascertainable on “the face of the record” or after a “summary inquiry” if deemed necessary by 
the Commission. These powers once exercised by the Commission are also subject to 
judicial review as administrative acts because the same are by definition, based on a 
summary inquiry or in certain cases, even without such inquiry. The powers of the 
Election Tribunal on the other hand are based on Article 225 of the Constitution and are of 
a judicial and adjudicatory nature subject only to an appeal, in accordance with the 
provisions of ROPA and the rules.  
14. 
As for the interpretation of the above noted statutory provisions, learned counsel 
for the respondent cited a number of judgments from our own and from Indian 
jurisdictions and also referred to principles of interpretation of statutes in support of his 
plea that the interpretation of sections 103 and 103AA in the case of Aftab Shahban Mirani 
v. Muhammad Ibrahim (PLD 2008 SC 779) can be treated as precedent for applying the 
same interpretative principle to sections 67 and 70 of ROPA. This submission, in our 
opinion, is misconceived. Firstly, because of the nature of the powers of the Election 
Commission which are derived from section 218 of the Constitution as discussed above. 
This is in contradistinction to the powers of the Election Tribunal which are derived under 
Article 225 of the Constitution. Secondly, even the wording of sections 103 and 103AA is 
significantly different from the wording of sections 67 and 70 of ROPA. Since in the 
present case the result of the election has been materially affected as a result of the failure 
by polling staff to comply with the provisions of ROPA, there is no option left with the 
Tribunal but to declare the election as a whole to be void. The words “as a whole” do not 
CRP 94 of 2014 
8 
appear in sections 103 and 103AA and as such there is no justification for treating these 
provisions as being in pari materia with sections 67 and 70 of ROPA. The Election 
Commission has a wide range of powers and discretion which, we say with great respect, 
is not available to an Election Tribunal because of the language employed in section 70 of 
ROPA. The Election Tribunal cannot go beyond the powers granted by ROPA because it 
is constrained by Article 225 ibid to act only “in such manner as may be determined by Act of 
Majlis-e-Shoora (Parliament)”.  
15. 
The case of Aftab Shahban Mirani supra is thus clearly distinguishable and has no 
application in the present matter. Firstly because it relates to the Election Commission and 
its powers under ROPA and not to the powers of an Election Tribunal. Secondly, it is the 
plain reading of section 103 read with section 103AA of ROPA which was adopted and 
followed by the Court. It was clear on the facts of the cited case that in exercise of powers 
under sections 103 and 103AA of ROPA, the Election Commission was well within its 
jurisdiction to direct a re-poll only at 17 disputed polling stations. Thirdly, an important 
distinction is to be drawn from the fact that the case of Aftab Shahban Mirani supra arose 
out of a writ petition to challenge the administrative orders of the Election Commission 
by way of judicial review. The circumstances of the present case are materially different 
from those of the case of Aftab Shahbad Mirani for the reasons which have already been 
explained above and which demonstrate that none of the circumstances in the cited 
precedent are available in the present case. Moreover, the provisions of sections 67 and 70 
of ROPA were neither subject matter of the said case nor were the same interpreted. 
16. 
The learned counsel for the respondent also cited the case of Mohinder Singh vs. 
Chief Election Commissioner (AIR 1978 SC 851) decided by the Supreme Court of India 
wherein it was held that a partial re-poll could be ordered by the Election Court. We have 
examined the Indian ROPA and note that it is significantly different from the Pakistani 
statute and in particular it does not limit or mandatorily require the Election Court to 
declare the election as a whole to be void. This, however, is mandatory where the 
conditions of section 70 ROPA, reproduced above are met. Under section 100 of the Indian 
ROPA it is open to the Election Court to declare the election of the returned candidate to 
be void. The words “as a whole” are conspicuously missing from the Indian statute. The 
CRP 94 of 2014 
9 
case of Mohinder Singh vs. Chief Election Commissioner supra, therefore, does not have even 
persuasive value in the present case. Likewise the case of A.C. Jose vs. Sivan Pillai (AIR 
1984 SC 921) is also not apt for the same reason.  
17. 
The matter now before us, therefore, appears to be one of first impression for this 
Court. Finally, we may mention that learned counsel for the respondent referred to a 
number of cases involving interpretation of statutes. These cases and the treatise on 
statutory interpretation by F A R Bennion in fact, state quite clearly that where the 
wording of a statute does not admit of any ambiguity, Courts do not have the power to 
travel beyond such wording in search of some illusory meaning which may have been 
“intended” by Parliament. In the case before us we say with great respect, there appears to 
be no reason why the words “as a whole” should be ignored or made redundant. One 
salutary rule for interpretation of statutes is that redundancy is not to be imputed to the 
legislature. If the statute requires the election as a whole to be declared void, it is not 
possible to hold that this includes the jurisdiction to declare the election at a few polling 
stations to be void. This is particularly so when the finding recorded in our judgment is 
categorical that the entire election has been materially effected. Moreover, when the law 
mandates the doing of a certain thing in a certain way such thing has to be done in the 
way mandated by law and in no other way.  
18. 
We may also add that the submission of learned counsel for the respondent that 
no prejudice has been caused to the petitioner on account of re-poll at seven stations, is 
not legally tenable. We have already noted above that even according to the finding of the 
Election Tribunal and of this Court in the judgment under review, the election as a whole 
stood contaminated when it became evident that the voting at the said polling stations 
had materially affected the outcome of the election. The prejudice, therefore, to the 
petitioner is evident. We may once again state that the Tribunal had concluded with 
clarity that “it is a clear cut case where the result of election can be said to have been materially 
affected on account of illegality in process of election on the part of the polling staff”. A similar 
view, as noted above, has been recorded in the judgment sought to be reviewed. 
Furthermore, the failure to properly apply the law would also, by definition, be 
prejudicial not only to the petitioner but also to the entire electorate of the constituency 
CRP 94 of 2014 
10 
because, as a consequence they would not be able to elect a Parliamentarian in a bye 
election, in accordance with law. This and the above discussed aspects of the case appear 
to have escaped the attention of the Bench while rendering the judgment under review.  
19. 
In view of the foregoing discussion, we allow this review petition and hold that 
the election as a whole stood vitiated. Civil Appeal No. 31 of 2014 is thus allowed. The 
Election Commission shall, therefore, hold a bye election for the constituency NA-19 
(Haripur) in accordance with law.   
                               
 
 
Judge 
 
 
 
 
 
Judge 
 
 
 
Islamabad, the 
 
Judge 
‘APPROVED FOR REPORTING’ 
 
 
A.Rehman/* 
 
CRP 94 of 2014 
11 
  
 
SH. AZMAT SAEED, J.- Through the instant Civil 
Review Petition under Article 188 of the Constitution of the 
Islamic Republic of Pakistan, 1973, the Petitioner has called into 
question the judgment of this Court dated 07.03.2014, whereby an 
Appeal filed by the Petitioner, was dismissed. 
2. 
 
The brief facts necessary for adjudication of the lis at 
hand are that the Petitioner and the Respondents contested the 
elections for the National Assembly from Constituency NA-19, 
Haripur, KPK, held on 11.05.2013. And after a recount, directed 
by the Election Commission of Pakistan (ECP), the Petitioner was 
declared, as the Returned Candidate. Respondent No.1 filed an 
Election Petition before the Election Tribunal, which was partially 
allowed vide judgment dated 31.12.2013, and the ECP was 
directed to hold re-polling at seven Polling Stations. The 
Petitioner challenged the said judgment in an Appeal before this 
Court, which was dismissed vide judgment dated 07.03.2014, now 
sought to be reviewed through the instant Civil Review Petition.  
3. 
 
A finding was returned by the Election Tribunal and 
maintained by this Court that there had been a failure to comply 
with the mandatory requirements of the Representation of the 
People Act, 1976 (ROPA) at the said seven Polling Stations and 
such failure in view of the close contest inter se the Petitioner and 
CRP 94 of 2014 
12 
Respondent No.1 had materially affected the result of the election. 
At the very outset, learned counsel for the Petitioner submitted 
that such findings are not disputed. However, it is the case of the 
Petitioner that upon an Election Petition filed before it, the 
Election Tribunal can only pass one of the several possible orders 
set forth in Section 67 of ROPA, subject to the conditions 
mentioned in the succeeding Sections and in the eventuality, the 
Election Tribunal reaches the conclusion that there was a failure 
to comply with the provisions of ROPA or the Rules, which 
materially affected the result of the election, the election as a 
whole is to be declared as void by virtue of Section 70 of ROPA. 
Therefore, in the instant case where such a finding had been 
returned, both by the Election Tribunal and this Court, the only 
order which could have been passed was to declare the election of 
the entire Constituency as void resulting in a fresh election. Re-
poll in seven Polling Stations could not have been ordered. This is 
the only ground urged on behalf of the Petitioner. In support of 
his contentions, the learned counsel for the Petitioner relied upon 
the judgments, reported as Sardar Abdul Hafeez Khan v. Sardar 
Muhammad Tahir Khan Lone and 13 others (1999 SCMR 284) and 
Dr. Sheela B. Charles v. Qaisar Ifraeem Soraya and another (1996 
SCMR 1455).  
CRP 94 of 2014 
13 
4. 
 
The learned counsel for the Contesting Respondent 
No.1 controverted the contentions raised on behalf of the 
Petitioner. At the very outset, the learned counsel contested the 
maintainability of the Civil Review Petition by urging that the 
ground has now been agitated on behalf of the Petitioner, was 
raised in Appeal and adjudicated upon by way of the judgment 
under review dated 07.03.2014. In the above backdrop, it is 
contended that the Petitioner is seeking re-hearing of the Appeal, 
which is not permitted in law. It is further contended that it is a 
settled law that the Election Tribunal for all intents and purposes, 
is a Court and has all the powers and jurisdiction of a Civil Court, 
including the inherent powers and jurisdiction under Order VII 
Rule 7 of the Civil Procedure Code, 1908, to mold the relief to the 
facts and circumstances of the case, as has been done in the 
instant case by directing a re-poll in the seven Polling Stations 
where admittedly there was a gross failure to comply with the 
mandatory provisions of ROPA and the Rules materially affecting 
the result. Therefore, no exception can be taken to the course of 
action adopted by the Election Tribunal and maintained by this 
Court vide judgment dated 07.03.2014. It is further urged that the 
provisions of ROPA in Pakistan are not dissimilar to the 
provisions of the Indian Representation of the People Act, 1951, 
CRP 94 of 2014 
14 
whereunder the Supreme Court of India has routinely ordered re-
polling at a few Polling Stations in a particular Constituency. It is 
added that even otherwise, the powers and jurisdiction of the 
Election Tribunal to grant the full relief of declaring the election 
as a whole void, includes by necessary implication the jurisdiction 
to grant a partial relief of declaring the election of a few Polling 
Stations to be void and directing a re-poll there. Such 
interpretation of Section 70 of ROPA would be in accordance with 
the principle of interpretation, usually referred to as a common 
sense principle of interpretation. Even otherwise, the power to 
grant greater relief includes the power to grant lesser relief, as has 
been done in the instant case.  
5. 
 
The learned counsel further contended that since the 
polling at only seven Polling Stations was contaminated the 
principle 
of 
severability 
would 
be 
attracted 
and 
such 
contamination could not poison the result of the remaining 
Polling Stations. It is added that by virtue of Section 103-AA of 
ROPA, the ECP has been conferred the jurisdiction to declare the 
poll in any Constituency void inter alia in cases of violation of the 
provisions of ROPA or the Rules. Such powers have been 
interpreted by this Court to include the power to direct a re-poll 
in some Polling Stations in a Constituency, by applying the 
CRP 94 of 2014 
15 
principle of severability. Such powers, it is contended, are 
obviously available to the Election Tribunal. Therefore, no 
exception can be taken in the impugned judgment.  
 
It is next contended that the interpretation of Sections 67 and 
70 of ROPA canvassed on behalf of the Petitioner is not only 
literal rather than purposive but would also lead to unfair, unjust 
and improper result and, therefore, cannot be accepted. In 
support of his contentions, the learned counsel for the 
Respondents, relied upon the judgments, reported as Sind 
Employees’ Social Security Institution and another v. Adamjee 
Cotton Mills Ltd (PLD 1975 SC 32), Mrs. Monica Kamran Dost v. 
Mrs. Lilavati Barchandani and another (PLD 1987 SC 197), Haji 
Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 
1990 SC 352), Aftab Shahban Mirani and others v. Muhammad 
Ibrahim and others (PLD 2008 SC 779), Federation of Pakistan 
through Ministry of Finance and others v. M/s. Noori Trading 
Corporation (Private) Limited and 14 others (1992 SCMR 710), 
Reference under S. 12, Sindh Courts’ Act, 1926 [PLD 1956 (W.P.) 
Karachi 178], Hudabiya Engineering (Pvt) Limited v. Pakistan 
through Secretary, Ministry of Interior, Government of Pakistan 
and 6 others (PLD 1998 Lahore 90), Mohinder Singh Gill and 
another v. The Chief Election Commissioner, New Delhi and 
CRP 94 of 2014 
16 
others (AIR 1978 SC 851) and A. C. Jose v. Sivan Pillai and others 
(AIR 1984 SC 921). 
6. 
 
Heard. Available record perused. 
7. 
 
At the very outset, it has been noticed that it is not the 
case of the Petitioner that by way of the Order of the Election 
Tribunal upheld by this Court by way of the judgment under 
review any prejudice has been caused to him. The learned counsel 
is merely relying on the literal text of the provisions of Sections 67 
and 70 of ROPA.  
  
In pith and substance, it is the case of the Petitioner that the 
Election Tribunal can only pass orders, specified in Section 67 
sub-section 1 (a) to (d) and the subsequent provisions of ROPA 
specify the ground whereupon each or any of such order can be 
passed. It is the case of the Petitioner that in the event of a failure 
to comply with the provisions of ROPA or the Rules framed 
thereunder materially affecting the result, the election as a whole 
must be declared void. Section 67 (1) of ROPA, is reproduced 
hereunder for ease of reference: 
  
“Sec. 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; 
CRP 94 of 2014 
17 
 
  
(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.” 
 
And Section 70 of ROPA, reads as under: 
 
  
“Sec. 70. Ground for declaring election 
as a whole void.—The Tribunal shall 
declare the election as whole to be void 
if it is satisfied that the result of the 
election has been materially affected by 
reason of –  
 
  
(a) 
the failure of any person to 
comply with the provisions of the 
Act or the rules; or 
 
  
(b) 
the prevalence of extensive 
corrupt or illegal practice at the 
election.” 
 
8. 
 
The interpretation advanced by the learned counsel for 
the Petitioner is literal. The Courts in Pakistan have always 
preferred a purposive rather than a literal interpretation of 
Statutory Instruments. Reference in this behalf may be made to 
the judgments, reported as Hudabiya Engineering (Pvt) Limited 
v. Pakistan through Secretary, Ministry of Interior, Government 
of Pakistan and 6 others (PLD 1998 Lahore 90) and Federation of 
Pakistan through Ministry of Finance and others v. M/s. Noori 
Trading Corporation (Private) Limited and 14 others (1992 SCMR 
710).  
CRP 94 of 2014 
18 
9. 
 
An overview of the Constitution of the Islamic 
Republic of Pakistan, 1973, and ROPA reveals that political 
sovereignty is to be exercised by the chosen representatives of the 
people, as is apparent from the Preamble and the Article 2A of the 
Constitution. Such representatives must be chosen by the people 
through a free, fair and impartial election, as is mandated by 
Article 218 of the Constitution. In case of an election dispute, the 
same must be resolved through an Election Petition by the 
Election Tribunal, established in terms of Article 225 of the 
Constitution under ROPA. Such disputes, subject to mandatory 
procedural requirements, must necessarily be resolved in a 
manner that the will of the people is given effect to and respected.  
  
In the instant case, the election in 430 Polling Stations is not 
in issue. An interpretation whereby valid votes cast in 430 out of 
437 Polling Stations are invalidated without any unavoidable 
compulsion, especially in the absence of prejudice to any party, 
would not advance the obvious purpose of the relevant 
constitutional provisions of ROPA, therefore, cannot be easily 
accepted. 
10. 
 
The precipice of severability is well recognized and 
held applicable to election matters. Furthermore, such an 
interpretation would encourage and enable a losing candidate to 
CRP 94 of 2014 
19 
precipitate a re-poll in the entire Constituency by disturbing the 
election at one or two Polling Stations and thereby frustrating and 
subverting the purpose of the law. In this behalf, this Court in the 
judgment, reported as Haji Behram Khan v. Abdul Hameed Khan 
Achakzai and others (PLD 1990 SC 352), held as follows: 
 “We agree with the High Court that in 
a case where a serious violation of law or any 
statutory rule is established by a group of 
miscreants or by the supporters of a losing 
candidate in one or two polling stations, the 
election of the whole constituency may not be 
set aside if on the strength of the votes cast in 
other polling stations and the available record 
a clear result is determinable. In this case, 
respondent No.1 had obtained 5,122 votes and 
the next highest number of votes obtained 
were by the petitioner Haji Behram Khan 
namely 2,625 votes. Admittedly, the three 
ballot boxes which were not recovered 
contained only 1,785 votes and even if all of 
them had been cast in favour of Haji Behram 
Khan (petitioner herein) he would still have 
lost. In these circumstances, to declare the 
election of the whole constituency as void on 
account of the misdoings or the hooliganism 
perpetrated by the supporters of other 
candidate would be to encourage candidates 
who felt that they are losing getting the whole 
election annulled and frustrating the wishes 
of the electorate. This Court will not easily 
countenance 
such 
a 
malversion 
of 
the 
electoral process. It has been repeatedly held 
by this Court that it shall not act in aid of 
injustice and where an order of the High 
Court has been passed to bring about a just, 
proper and fair result, this Court will not 
interfere.  
 
11. 
 
Furthermore, as a principle of interpretation a word or 
a phrase implying the “whole” ordinarily includes any part 
CRP 94 of 2014 
20 
thereof. Reference in this behalf may be made to the “Statutory 
Interpretation” A Code (Fourth Edition) by F A R Bennion MA 
(Oxon) Barrister, wherein it has been observed, as follows: 
  
“Greater includes less The requirement that 
commonsense shall be used in interpretation 
brings in such obvious principles as that the 
greater includes the less: omne majus continent 
in se minus. This is a principle the law 
recognizes in many contexts. 
  
…………………………………………………….. 
  
Example 197.5 Section 3(1) of the Criminal Law 
Act 1967 states that a person may use such 
force as is reasonable in the prevention of 
crime. Milmo J said ‘It is, of course, true that 
the charge against the defendant was not that 
he used force but that he threatened to use 
force. However if force is permissible, 
something less, for example a threat, must 
also be permissible …’” 
  
 
The aforesaid quoted maxim of interpretation is not unknown to 
the Courts in Pakistan. Reference in this behalf may be made to 
the judgment, reported as Reference under S. 12, Sindh Courts’ 
Act, 1926 [PLD 1956 (W.P.) Karachi 178], wherein Justice S.A. 
Rehman, as he then was, observed as follows: 
  
“Omne majus continet in se minus - the greater 
contains the less – is a well known maxim of 
the law.” 
 
12. 
 
Section 67 of ROPA enumerates the possible reliefs, 
which may be granted by the Election Tribunal. It is in the above 
context that the phrase “declaring the election as a whole to be 
void” as used in clause (d) must necessarily be examined. The 
CRP 94 of 2014 
21 
jurisdiction to grant a specified relief includes the jurisdiction to 
grant a partial relief, as has been held by this Court in the case, 
reported as Sind Employees’ Social Security Institution and 
another v. Adamjee Cotton Mills Ltd (PLD 1975 SC 32), in the 
following terms: 
  
“It is not disputed that the Social Security 
Court, on an appeal brought before it under 
the above section can set aside the order 
appealed against in its entirety or may grant 
even partial relief depending upon the facts of 
a particular case. …” 
 
13. 
 
Thus, as a general principle of law, the Election 
Tribunal while exercising its jurisdiction in terms of Section 67 (1) 
(d) of ROPA not only can declare the election as a whole void but 
also any part thereof i.e. the elections in a few Polling Stations, if 
the circumstances so require. This is also obvious from a bare 
reading of the aforesaid provisions which reveals that the phrase 
“declaring the election as a whole to be void” employed in clause 
(d) has been used in contradistinction to clause (b) envisaging an 
order “declaring the election of the returned candidate to be 
void”.  
14. 
 
In the case of Mrs. Monica Kamran Dost v. Mrs. 
Lilavati Barchandani and another (PLD 1987 SC 197), equal 
numbers of valid votes were polled in favour of the two 
contesting candidates. The Returning Officer misapplied the 
CRP 94 of 2014 
22 
provisions of sub-rule 5 of rule 66 of the Representation of the 
Peoples (Conduct of Election) Rules, 1977. On an Election 
Petition, the Election Tribunal apparently following a literal 
interpretation of Section 70 of ROPA, declared the election as a 
whole void. On appeal, this Court modified the result by holding 
that “On this view of the matter, the Election Tribunal should 
have declared the election of the appellant, in Appeal No.3-K of 
1986, to be void.”   
15. 
 
The ROPA in addition to the powers conferred on the 
Election Tribunal has also conferred powers on the ECP to pass 
appropriate orders regarding the conduct of the election, 
including Section 103-AA, which is reproduced hereunder: 
  
“Sec. 103-AA. Power of Commission to 
declare a poll void.—(1) Notwithstanding 
anything contained in this Act, it, from facts 
apparent on the face of the record and after 
such summary inquiry as it may deem 
necessary, the Commission is satisfied that, by 
reason of grave illegalities or violation of the 
provisions of this Act or the rules, the poll in 
any constituency ought to be declared void, 
the Commission may make a declaration 
accordingly and, by notification in the official 
Gazette, call upon that constituency to elect a 
member in the manner provided for in section 
108. 
 
  
(2) 
Notwithstanding the publication of the 
name of a returned candidate under sub-
section (4) of section 42, the Commission may 
exercise the powers conferred on it by sub-
section (1) before the expiration of sixty days 
after such publication; and, where the 
CRP 94 of 2014 
23 
Commission does not finally dispose of a case 
within the said period, the election of the 
returned candidate shall be deemed to have 
become final, subject to a decision of a 
Tribunal.  
 
  
(3) 
While exercising the powers conferred 
on it by sub-section (1), the Commission shall 
be deemed to be a Tribunal to which an 
election petition has been presented and shall, 
notwithstanding 
anything 
contained 
in 
Chapter VII, regulate its own procedure.” 
 
A perusal of the aforesaid provisions makes it is clear and 
obvious that inter alia on account of violation of any of the 
provisions of ROPA or the Rules framed thereunder, the ECP 
may declare the poll in any Constituency as void. It may be 
noticed that no specific power has been conferred to declare an 
election in a part of the Constituency as void or to direct a re-poll 
at a few Polling Stations, yet in exercise of the powers conferred 
by Section 103-AA of ROPA, the ECP on many occasions has 
ordered re-poll in a few specific Polling Stations. An order in one 
of such cases was challenged, inter alia, on the ground that in 
terms of Section 103-AA of ROPA, election as a whole could be 
declared void and no partial re-poll in a few Polling Stations 
could be ordered. In the said case, reported as Aftab Shahban 
Mirani and others v. Muhammad Ibrahim and others (PLD 2008 
SC 779) it was held as follows: 
CRP 94 of 2014 
24 
  
“The emphasis of the learned counsel for the 
respondent that the Election Commission, 
without holding proper inquiry could not 
exercise powers under section 103-AA of the 
Act to declare the election of a constituency as 
a whole void and there is also no concept of 
partial declaration of election void, has no 
legal foundation. The Election Commission of 
Pakistan may exercise power under section 
103-AA of the Act in the manner provided 
therein and not beyond that, but the plain 
reading of section 103-AA of the Act would 
show that meaning of expression “in the 
constituency void” is not only referable to the 
whole constituency rather its true import is 
election in the constituency as a whole or at 
one or more polling stations. It was held in 
Abdul Hamid Khan Achakzai v. Election 
Commission of Pakistan 1989 CLC 1833 as 
under:--  
 
  
“Election commission’s jurisdiction for 
declaring 
election 
of 
the 
whole 
constituency as void would depend on 
being satisfied about the existence of grave 
illegalities or serious violations of the 
provisions of the Act LXXXV of 1976 or 
Election Rules in the conduct of polls in 
any constituency.” 
 
  
 
 
It was further held that:- 
 
  
“No doubt Election Commission is vested 
with jurisdiction to declare void, results of 
the entire constituency within the purview 
of section 103-AA but such authority is 
exercisable 
only 
when 
other 
express 
provisions of law are not suitable to cater 
for the given situation.” 
 
16. 
 
The provisions of the Indian Representation of the 
People Act, 1951, with regard to the Election Petitions are not 
dissimilar to that of ROPA. Though no doubt, the phrase 
“declaring the election as a whole void” has not been employed 
CRP 94 of 2014 
25 
yet in the relevant provisions, no specific power to declare the 
election in a few Polling Stations as void is granted. The Supreme 
Court of India upon an Election Petition has repeatedly declared 
the result of a few Polling Stations to be void and a re-poll in such 
Polling Stations ordered. Reference in this behalf may be made to 
the judgments, reported as Mohinder Singh Gill and another v. 
The Chief Election Commissioner, New Delhi and others (AIR 
1978 SC 851) and A. C. Jose v. Sivan Pillai and others (AIR 1984 
SC 921).  
17. 
 
In view of the above, it appears that the interpretation 
of Sections 67 and 70 of ROPA, being pressed into service on 
behalf of the Petitioner is too literal, rigid and ritualistic to accept. 
It offends against the well recognized common sense principle of 
interpretation and tends to erstwhile maxim that “the greater 
contains the less” which has been applied by the Courts. We 
cannot also loose sight of the fact that the Election Tribunal is for 
all intents and purposes a Court and it is settled law that Courts 
and Tribunals cannot only grant the entire relief permitted by law 
but also any part thereof. The principle of severability is also well 
recognized and the same is duly attracted to elections thereby 
isolating the result in a few Polling Stations where poll has 
contaminated and a fresh poll thereat. It is also obvious that such 
CRP 94 of 2014 
26 
principles have been applied by this Court, both with reference to 
the powers of the ECP under Section 103-AA and by the Election 
Tribunal, as is evident from the judgments referred to and 
reproduced 
hereinabove. 
Directing 
a 
re-poll 
in 
some 
Constituencies as was done in the instant case is also a course of 
action adopted and followed by the Supreme Court of India in the 
election matters. 
18. 
 
The interpretation followed by the Election Tribunal 
and upheld by this Court by way of the judgment under review, 
besides conforming to the established principle of interpretation 
advances the object and intent of Articles 218, 219 and 225 of the 
Constitution and the provisions of ROPA. Furthermore, thereby 
the mischief of encouraging disruption of the poll is suppressed. 
In the instant case, the election in 430 out of 437 Polling Stations, 
was carried out fairly, justly and in accordance with the law 
merely because in seven Polling Stations, ROPA and the Rules 
framed thereunder are violated, does not justify annulling the 
election in 430 Polling Stations. Importantly, it is not the case of 
the Petitioner that the interpretation of Sections 67 and 70 of 
ROPA, as employed by in the instant case has caused any 
prejudice to him. It may be noted the possibility that the known 
result of 430 Polling Stations would influence the subsequent re-
CRP 94 of 2014 
27 
poll in the seven disputed Polling Stations, does not arise as it 
was a very closely contested election dependent entirely on the 
result of the seven disputed Polling Stations. Even otherwise, the 
ECP under Section 103-AA of the ROPA order re-polling in a few 
Polling Stations, which course of action has been upheld by this 
Court. 
19. 
 
We cannot also loose sight of the fact that during the 
pendency of the appeal, re-poll in seven Polling Stations, was 
conducted as a consequence whereof Respondent No.1 was 
declared the Returned Candidate. The people of the Constituency 
have spoken and there is no occasion to discard the will of the 
people and force them go to the polls again. 
20. 
 
In this view of the matter, it appears that in the 
eventuality of a failure to comply with the mandatory provisions 
of ROPA and the Rules, an Election Tribunal in exercise of powers 
under Section 70 of ROPA, may declare the election as a whole to 
be void. However, the Election Tribunal is not denuded of the 
jurisdiction to grant partial relief of declaring the election at a few 
Polling Stations to be void and directing a re-poll thereat. Which 
of the two available courses of action to be followed would 
depend on the facts and circumstances of each case. The real and 
decisive factor would be the fulfillment of the mandate of the 
CRP 94 of 2014 
28 
Constitution and ROPA of ensuring the will of the people is 
respected and a free, fair and impartial election held. It should be 
ensured that no prejudice is caused to any of the candidates. In 
the instant case, it is not even the case of the Petitioner that any 
prejudice has been caused to him or the true intent and object of 
law has not been achieved. Consequently, the judgment dated 
03.07.2014 does not suffer from any error requiring rectification, 
therefore, this Civil Review Petition, being without merit is liable 
to be dismissed.  
 
  
 
 
 
 
 
 
 
Judge 
 
 
 
 
CRP 94 of 2014 
29 
ORDER OF THE BENCH: 
By majority of 2 to 1 (Sh. Azmat Saeed, J. dissenting), we allow this review petition 
and hold that the election as a whole stood vitiated. Civil Appeal No.31 of 2014 is thus 
allowed. The Election Commission shall, therefore, hold a bye election for the 
constituency NA-19 (Haripur) in accordance with law.  
 
 
Judge 
 
Judge 
 
Judge 
 
 
Announced in open Court at Islamabad on 19.06.2015. 
 
 
 
 
APPROVED FOR REPORTING.  
 
