IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
MR. JUSTICE TARIQ PERVEZ 
 
 
CIVIL APPEAL NO.1611 AND 1612 OF 2014 
(Against the judgment dated 19.11.2014 of the Election 
Tribunal, Karachi passed in E.P. No.9/2014) 
 
 
Asghar Ali Sheikh                                                     …in C.A.1611/2014 
Asadullah Junejo                                                      …in C.A.1612/2014 
 
…Appellant(s) 
VERSUS 
Liaqat Ali Jatoi etc. 
 
…Respondent(s) 
 
For the appellant(s): 
(in C.A.1611/2014) 
Mr. Wasim Sajjad, Sr. ASC 
Mr. Raja M. Shafqat Khan Abbasi, ASC 
 
 
For the appellant(s): 
(in C.A.1612/2014) 
Mr. Kamran Murtaza, ASC 
 
 
For respondent No.1: 
Mr. Afzaal Ahmed Siddiqui, ASC 
 
 
Date of hearing: 
06.01.2016 
… 
ORDER 
 
 
MIAN SAQIB NISAR, J.- These appeals under Section 67(3) 
of the Representation of People Act, 1976 (the Act) have been filed against 
the judgment of the learned Election Tribunal, Karachi dated 19.11.2014 
whereby the election of respondent No.2 (returned candidate) was set aside 
and respondent No.1/election petitioner (runner up) was declared to be duly 
elected. 
2. 
 
The brief facts of the case (for the sake of convenience, we will be using 
C.A.1611/2014 as our reference point) are:- the appellant, respondent No.1 
(respondent) and pro-forma respondents contested the general elections 
held on 11.5.2013 for the Provincial Assembly Constituency PS-76 Dadu-
III. Respondent No.2, who obtained 56,938 votes was declared to be the 
returned candidate by the Election Commission of Pakistan (ECP) vide 
C.As.1611 and 1612 of 2014 
-:2:- 
notification dated 22.05.2013, while the respondent, who secured 22,803 
votes, was the runner up, and the appellant, also one of the contesting 
candidates, bagged 95 votes. The difference between the number of votes 
obtained by respondent No.2 (returned candidate) and the respondent (runner 
up) is 34,135 votes. The total number of valid votes cast at the election 
was 81,738, whereas the number of rejected votes was 2,298. 
 
The respondent filed an election petition challenging the elections 
on the ground that there was widespread rigging and bogus voting at the 
election, that the election of respondent No.2 had been procured by 
corrupt and illegal practices and that there was rampant non-compliance 
of the provisions of the Act and the rules made thereunder, on account of 
which the election of respondent No.2 be declared as void and that the 
respondent be declared to have been duly elected, or alternatively that 
the election be declared void as a whole. After obtaining a reply from 
respondent No.2 and in view of the divergent pleadings of the parties to 
the election petition the learned Election Tribunal framed the following 
issues:- 
 
“1. 
Whether petition is not maintainable? O.P.R. 
2. 
Whether this election petition is time barred? O.P.R. 
3. 
Whether 
Police 
personal 
and 
unqualified/incompetent polling staff was deployed 
at the pilling stations at the command of respondent 
no. 1 and they openly supported the respondent no. 
1? O.P.P. 
4. 
Whether the notorious criminals before the election 
and on the election day worked for the respondent 
No. 1 rigged the election and polled bogus votes at 
42 polling stations mentioned in para 7(i) of the 
petition? O.P.P. 
5. 
Whether Qurban Ali Joyo and Mujeeb Laghari 
closed polling station number 272 at about 2:30 
P.M. took the entire Polling Staff to Zarai Taraqiati 
C.As.1611 and 1612 of 2014 
-:3:- 
Bank, Mehar, there stamped the ballot papers on 
arrows and supplied the stamped ballot papers to 
various polling stations and 300/400 ballot papers 
were recovered from Zarai Taraqiati Bank, Mehar? 
O.P.P. 
6. 
Whether respondent no. 1 and his associates 
attacked the Polling Stations number 35,104 and 
120, injured the agents, workers of petitioners, took 
over the control and cast the bogus votes? O.P.P. 
7. 
Whether 
Presiding 
Officer 
illegally 
rejected/excluded 2294 votes ?O.P.P. 
8. 
Whether Presiding Officer of Polling Station number 
3 was robbed and all the election material had been 
taken away by the associate of respondent no. 1? 
O.P.P. 
9. 
What should the order be?” 
 
Upon giving its findings on various issues, the learned Election Tribunal 
came to the conclusion that the election of respondent No.2 was 
procured by corrupt practices and thus declared her election to be void 
under Section 68 of the Act, and declared the respondent to be duly 
elected under Section 69 of the Act. We find it expedient to reproduce the 
conclusion reached by the learned Election Tribunal which reads as 
follows:- 
 
“…On account of the findings on the issues Nos. 3 and 4 in 
the affirmative which relate to commission of corrupt 
practices it can be held without any doubt that the election 
of the returned candidate has been procured by the corrupt 
practice as defined in Section 78(2) r/w Sec. 81(1)(a) and 
(b) of the Act… Hence to election of the returned candidate 
is declared as void as provided in Section 68(1)(c) of the 
Act. The Petitioner being the runner up and has so claimed 
to be declared as elected and this tribunal is satisfied that 
he is entitled to be declared as such under Section 69 of the 
Act and therefore declared accordingly.” 
C.As.1611 and 1612 of 2014 
-:4:- 
 
3. 
 
It has been argued by the learned counsel for the appellant 
that the appellant has no grievance with the setting aside of the elections 
by the learned Election Tribunal, rather his sole attack against the 
impugned judgment before us today is that the respondent could not 
have been automatically declared to be duly elected under Section 69 of 
the Act, as this has resulted in the disenfranchisement of 56,938 voters. 
He further stated that the principle of throw away votes would only come 
into operation if the disqualification of a returned candidate was 
notorious at the time of polling, which is not the situation in the instant 
case. In this respect he has relied upon the judgment reported as Sh. 
Amjad Aziz vs. Haroon Ahtar Khan and 10 others (2004 SCMR 1484). 
To buttress his arguments, learned counsel for the appellant also 
submitted that even if the 56,938 votes cast in favour of respondent No.2 
are held to be bogus on the basis that they have been obtained through 
corrupt and illegal practices (which has been so held in the impugned judgment), 
since such number of votes (56,938) constitutes approximately 70% of the 
total votes cast, thus the elections stand to have been materially affected, 
warranting declaration of the election to be void as a whole under Section 
70 of the Act. Therefore in any case, the respondent cannot be 
automatically declared to be duly elected, rather fresh elections must be 
held. 
4. 
 
On the other hand, learned counsel for the respondent, while 
apprising us of the fact that respondent No.2 has withdrawn her 
candidacy, has submitted that once the returned candidate has 
withdrawn then the respondent being the runner up is the only one left 
in the field to be declared as duly elected.  
 
Learned counsel for the respondent, in order to controvert the 
submissions of the learned counsel for the appellant regarding the 
C.As.1611 and 1612 of 2014 
-:5:- 
principles of throw away votes and notorious disqualification, stated that 
the respondent had challenged the election of respondent No.2 on the 
ground of corrupt and illegal practices and not that she was liable to be 
disqualified, and having successfully proved that her 56,938 votes were 
secured by corrupt practices, such number of votes were essentially not 
in fact cast in her favour and thus the respondent can most definitely be 
declared to be duly elected. He further argued that the attack put forth 
by the appellant (who only secured 95 votes) is not sustainable, as it is more in 
the nature of quo warranto, as he (appellant) is only seeking a declaration 
of the election to be void, and not to have himself declared as duly 
elected. Learned counsel for the respondent submitted that the fact that 
the respondent’s election petition was given on oath and that the 
evidence produced by the respondent was not cross-examined by any 
party to the election petition was sufficient to prove to the satisfaction of 
the learned Election Tribunal that the respondent was entitled to be 
declared elected.  
5. 
 
Heard. Since the learned counsel for the appellant has stated 
at the very outset that the appellant has no objection to the invalidation 
of the election of respondent No.2, therefore we do not find it necessary 
to discuss the same, and shall confine ourselves to the relevant key issue 
of declaration of the respondent (runner up) as duly elected under Section 
69 of the Act. In order to appreciate the above, the section ibid is 
reproduced below:- 
 
69. 
Ground for declaring a person other than a 
returned candidate elected.—The Tribunal shall declare 
the election of the returned candidate to be and the 
petitioner or any other contesting candidate to have been 
duly elected, if it is so claimed by the petitioner or any of 
the respondents and the Tribunal is satisfied that the 
C.As.1611 and 1612 of 2014 
-:6:- 
petitioner or such other contesting candidate was entitled to 
be declared elected. 
 
As has been held by this Court in the recent judgment passed in Syed 
Hafeezuddin vs. Abdul Razzaq etc. (C.A. No.1086/2014) the 
requirements of Section 69 of the Act are that a claim to be declared as 
duly elected must be made either by the election petitioner or any of the 
respondents to the election petition, and that the person seeking such 
declaration has been able to substantiate and make out his case vis-à-vis 
his entitlement to the satisfaction of the Election Tribunal. It may be 
pertinent to mention that satisfaction should not be a subjective 
assessment of the Tribunal rather must be objective in manner based 
upon the evidence brought on the record by the respondent (who claims to be 
declared as duly elected) and justifiable reasons must be duly recorded and 
assigned in this behalf. Thus such declaration cannot be made ipso facto 
or as a matter of right, rather, such person seeking a declaration will 
have to prove on the strength of his own evidence his entitlement to be 
declared as duly elected.   
6. 
 
In order to determine whether the respondent had indeed 
proved his entitlement to be duly elected to the satisfaction of the learned 
Election Tribunal, an appraisal of the evidence produced by him would 
be necessary. Learned counsel for the respondent drew our attention to 
the evidence led by the respondent (election petitioner) during the election 
proceedings and stated that it (evidence) was sufficient to prove to the 
satisfaction of the learned Election Tribunal that the respondent should 
be declared as duly elected. The respondent himself appeared as a 
witness (PW.1) and he produced and got exhibited his election petition 
(Exb.C) which was to form his examination in chief. The three other 
documents tendered in evidence were a certified copy of a complaint 
C.As.1611 and 1612 of 2014 
-:7:- 
regarding the conduct of elections filed by the respondent’s counsel to 
the ECP, a certified copy of an FIR (bearing No.81/2013 dated 12.05.2013) 
pertaining to allegations vis-à-vis the elections (Exb.C/2), and a certificate 
issued by TCS courier service regarding verification of a receipt (Exb.C/3). 
The second witness, Mr. Riazuddin (PW.2) only produced three documents 
which were a letter (PW.2/1) from the Additional Session Judge/Returning 
Officer stating that Mr. Riazuddin has been deputed to produce 
documents pertaining to the election petition, and two complaints from 
the respondent to District Returning Officer, Dadu (PW.2/2) and Returning 
Officer, Mehar (PW.2/3) respectively regarding certain anomalies in the 
conduct of election. 
Suffice it to say that merely exhibiting an election petition (even if 
verified on oath) is not a substitute for an examination on oath, in the form 
of statement by a witness, therefore in this respect the respondent’s 
evidence 
is 
completely 
inadequate 
and 
cannot 
be 
taken 
into 
consideration for the purposes of proof of the respondent’s entitlement to 
be 
declared 
as 
duly 
elected. 
Further, 
the 
FIR 
and 
various 
complaints/letters per se cannot be deemed to be adequate, satisfactory 
and positive proof of the allegations leveled in the election petition, 
which (allegations) must be proved through independent evidence. With 
regard to the argument of the learned counsel for the respondent that the 
respondent’s testimony was not subject to cross-examination (Note: it 
appears that the respondent was subject to cross-examination by counsel for respondent No.8) 
and that his evidence was not rebutted, suffice it to say that even if the 
evidence of the respondent went un-rebutted, it does not mean that an 
automatic conclusion should be drawn that such evidence was sufficient 
to ‘satisfy’ the learned Election Tribunal that the respondent should be 
declared to be duly elected in terms of Section 69 of the Act. As 
mentioned earlier in this opinion, positive evidence to this effect must be 
C.As.1611 and 1612 of 2014 
-:8:- 
provided, therefore, in light of the above we are of the candid view that 
the respondent has not been able to prove on the strength of his own 
evidence that he was entitled to be declared a duly elected in place of 
respondent No.2 (returned candidate). It may also be pertinent to mention at 
this juncture that in the instant case while reading the part of the 
impugned judgment under attack, we find the above criteria regarding 
satisfaction of the learned Tribunal based on an objective assessment set 
down (by us) to be conspicuously missing and the Tribunal in a cursory 
and routine manner having declared the election of respondent No.2 
(returned candidate) as void has issued a declaration of the respondent to be 
duly elected in her place. 
7. 
 
Now coming to the argument propounded by the learned 
counsel for the appellant pertaining to the non-applicability of the 
principles of throw away votes and notoriety of disqualification to this 
case, and thus the respondent should not have been declared as 
automatically duly elected under Section 69 of the Act. In order to 
controvert this argument, learned counsel for the respondent stated that 
the respondent did not challenge the election of respondent No.2 on the 
ground of her being disqualified, rather that illegal and corrupt practices 
were committed, which fact has even been admitted by the appellant 
himself as he has not challenged the impugned judgment to the extent of 
invalidation of the election of respondent No.2. 
As has been laid down in various dicta of this Court [which have been 
considered in detail in Syed Hafeezuddin (supra)], a runner up to an election is not 
to be automatically declared as duly elected simply by virtue of having 
secured the next highest number of votes after discarding or ‘throwing 
away’ the votes secured by a returned candidate whose election has been 
declared to be void under Section 68 of the Act. The raison d’être against 
automatic ‘throwing away’ of the votes of a person whose election has been 
C.As.1611 and 1612 of 2014 
-:9:- 
declared to be void, is that such would result in disenfranchisement of 
the voters who voted for the returned candidate (in this case 56,938 voters) 
unless it can be proved that the said voters casted their vote despite the 
fact that they were aware of such person’s negative conduct in the 
elections. A perusal of the record indicates that there is no proof 
whatsoever brought by the respondent (election petitioner) that the 56,938 
voters were aware of any such information that would hurl doubt upon 
the validity of the votes cast, thereby potentially warranting throwing 
away of their votes. It may also be pertinent to mention here that the fact 
that the respondent only procured 22,803 votes (as opposed to 56,938 votes 
secured by respondent No.2) out of a total of 81,738 votes cast in the 
constituency (approximately 28% of the total votes) speaks for itself that he may 
not necessarily be a true representation of the will of the people. The real 
concept of elections is that the true representative of the people should 
come forth, therefore in order to uphold the mandate of representative 
democracy enshrined in the Constitution of the Islamic Republic of 
Pakistan, 1973, we are of the view that the elections should be declared 
to be void as a whole and fresh elections should take place to ensure that 
the peoples’ desired representative is elected.  
8. 
 
Another aspect of the matter is that as per the impugned 
judgment since the 56,938 votes cast in favour of respondent No.2 have 
been held to be obtained through corrupt practices and thus there could 
be said to have been a breach of the provisions of Section 70(a) and/or 
(b) of the Act, if these 56,938 votes (which constitute approximately 70% of the total 
votes cast) are excluded from the count, which are greater than the 
differential between the votes secured by respondent No.2 (returned 
candidate) and the respondent (runner up), i.e. 34,135 votes, thus it can be 
said that the election has been materially affected and should be 
C.As.1611 and 1612 of 2014 
-:10:- 
declared to be void as a whole. Resultantly, in this scenario as well fresh 
elections would have to take place. 
9. 
 
In respect of the argument of the learned counsel for the 
respondent that respondent No.2 has withdrawn from her candidacy, we 
opine that subsequent withdrawal does not change the fact that during 
the elections the respondent could not be said to be the true 
representative of the people, having secured only approximately 28% of 
the votes from his constituency as mentioned above. 
10. 
 
In view of the foregoing, we find that the respondent was 
unable to prove through positive evidence his entitlement to the 
satisfaction of the learned Election Tribunal to be duly elected under 
Section 69 of the Act, therefore, the declaration to this effect by the 
learned Tribunal was unwarranted and erroneous. Therefore, these 
appeals are allowed to the extent that the respondent was declared to be 
duly elected in place of respondent No.2, and the ECP is directed to hold 
fresh elections in the constituency in accordance with law. Disposed of 
accordingly. 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Islamabad, the 
5th January, 2016 
Not Approved For Reporting 
Waqas Naseer/*