IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE IQBAL HAMEEDUR RAHMAN 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APPEAL NO.1086 OF 2014 
(Against the judgment dated 7.8.2014 of 
the Election Tribunal, Karachi passed in 
Election Petition No.7/2013) 
 
 
Syed Hafeezuddin 
 
…Appellant(s) 
VERSUS 
Abdul Razzaq etc. 
 
…Respondent(s) 
 
For the appellant(s): 
Mr. Afzaal Ahmed Siddiqui, ASC 
 
 
For respondent No.1: 
Mr. Tariq Mehmood, Sr. ASC 
Mr. M. S. Khattak, AOR 
 
 
Date of hearing: 
19.11.2015 
… 
ORDER 
 
 
MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of the 
Representation of People Act, 1976 (the Act) is directed against the judgment 
of the learned Election Tribunal, Karachi dated 7.8.2014 whereby the 
election of the appellant (returned candidate) was set aside and the respondent 
No.1/election petitioner (runner up) was declared to be the returned 
candidate. 
2. 
 
The brief facts of the case are:- elections in PS-93 Karachi were 
held on 11.5.2013 for which twenty-nine candidates contested, including 
the appellant and respondent No.1 (respondent). The appellant, who was 
declared a returned candidate by the Election Commission of Pakistan (ECP) 
vide notification dated 22.5.2013, obtained 15,432 votes, while the 
respondent, securing 10,960 votes, was the runner up, and another 
candidate, namely, Bashir Jan (at third position) scored 9,664 votes. The 
difference between the number of votes obtained by the appellant and the 
Civil Appeal No.1086 of 2014 
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respondent is 4,472. The respondent filed an election petition on the 
ground that massive rigging had taken place in the elections and that 
illegal and corrupt practices were resorted to on account of which the 
election of the appellant be declared as void and the respondent be 
accordingly declared as the returned candidate. It may be pertinent to 
mention here that according to the contents of the election petition, this 
massive rigging etc. has been alleged and restricted to nine polling stations, 
i.e. 2, 18, 23, 29, 32, 55, 68, 71 and 77, but subsequently the respondent 
confined himself to only seven polling stations, i.e. 2, 18, 23, 29, 32, 55 and 
68. It may also be added that the case of the respondent was that the 
Returning Officer and the Presiding Officer of these polling stations 
manipulated the results. After obtaining a reply from the appellant, the 
learned Tribunal framed the following issues:- 
 
“1. 
Whether the petition is maintainable in accordance 
with the law. 
2. 
Whether the petitioner had obtained the votes as 
mentioned by him in his petition in paragraphs 
no.15(c) and 15(d)? 
3. 
Whether the Presiding Officers of polling stations 
no.29, 32, 68, 71 and 77 of the constituency had 
issued statements of count (Form-XIV) to the 
petitioner showing his votes as mentioned in 
paragraph 15(c) of the Petition? 
4. 
Whether the respondent no.1 didn’t obtain the votes 
at polling station no.2, 18, 23, 29, 32, 55 and 68 of 
the constituency and consolidated statement of 
count (Form XVI) issued by the Returning officer in 
respect of these polling stations is not in 
accordance with the statements of count (Form 
XIV) issued by the Presiding Officers of these 
polling stations? 
5. 
Whether the returning officer had failed to issue 
notices to the contesting candidates before the 
consolidation of the result in form XVI in 
accordance with the law? 
Civil Appeal No.1086 of 2014 
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6. 
Whether the Respondent No.1 or his agents have 
committed any act of illegal practice during the 
polling? 
7. 
Whether the Presiding Officers of the above 
mentioned polling stations and the Returning 
Officer in connivance with each other committed 
illegal act or illegal practice to support the 
Respondent no.1 if yes, its effect? 
8. 
Whether the election of the Respondent no.1 (The 
Returned Candidate) is fit to be declared as void 
and the petitioner to have been duly elected? 
9. 
What should the order be?”  
 
Upon giving its findings on various issues, the learned Tribunal came to the 
conclusion that the respondent was not able to prove any illegal and 
corrupt practice vis-à-vis the noted seven polling stations except polling 
station No.29. In this context, it may be mentioned that though the case of 
the respondent is that there was rampant rigging in connection with polling 
station No.32, this plea of the respondent has been discarded and the 
respondent has not challenged the finding of the learned Tribunal before 
this Court (either by cross-objections or even orally). With regard to polling station 
No.29, suffice it to say that in the said polling station a total of 1,600 votes 
were cast out of which the appellant procured 1,400 votes while the 
respondent procured zero votes. The learned Tribunal, on account of the 
evidence, particularly the statement of Ms. Safia Sultana Malik and Ms. 
Saeeda Sagheer, the Presiding Officer and the Assistant Presiding Officer 
respectively of the said polling station, came to the conclusion that Ms. 
Malik had not counted the votes and committed grave illegalities in 
preparation of Form-XIV.  
3. 
 
It has been argued by the learned counsel for the appellant 
that the difference of votes between the appellant and the respondent is 
Civil Appeal No.1086 of 2014 
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4,472 and even if 1,400 votes are excluded from the count, which were 
allegedly not properly and validly counted vis-à-vis polling station No.29, 
yet the appellant is a winning candidate with a margin of 3,072 votes. It is 
also argued that there was no evidence produced by the respondent vis-à-
vis corrupt and illegal practices falling within the provisions of Sections 78 
and 83 of the Act. Therefore, on account of lack of such evidence the 
appellant cannot be prejudiced by declaring him as having procured his 
election through massive rigging and corrupt and illegal practices. 
4. 
 
On the contrary, learned counsel for the respondent has at the 
very outset drawn a distinction between Sections 68 and 69 on the one 
hand and Section 70 on the other, stating that the question of an election 
being “materially affected” only relates to the latter section, when considering 
declaration of an election as a whole void, whereas the former sections 
pertain to declaration of the election of the returned candidate as void on 
certain grounds enumerated therein, and in this respect he particularly 
relied upon Section 68(c) read with Section 68(2)(a), and Section 68(d). 
Furthermore, he justified and defended the judgment of the learned 
Tribunal by submitting that from the beginning of election till the counting 
of votes, there have been violations of law. In this context, it is argued that 
it was the duty of the Presiding Officer to have counted the votes and 
prepared the statement of count (Form-XIV) personally which, as per the 
statement of the Presiding Officer herself as also the Assistant Presiding 
Officer, was not so done, rather the form was filled up by the Assistant 
Presiding Officer and this is a glaring illegality which is apparent on the 
face of the record. It is also stated that the Presiding Officer of polling 
station No.29 signed the hand-written result and provided it to the polling 
agents of the respondent, which result is different from that reflected in 
Form-XIV, which plea is also supported by the Assistant Presiding Officer. 
Further, that the name of the respondent was not even contained in Form-
Civil Appeal No.1086 of 2014 
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XIV of polling station No.29. It is also submitted that the statement of 
count pertaining to the votes cast in favour of the candidate of the National 
Assembly is absolutely different from the votes of the Provincial Assembly 
which reflects that Ms. Malik had committed an illegality vis-à-vis the 
proper count and preparation of Form-XIV. Above all, it is argued that Ms. 
Malik had connived and colluded with the appellant because she, in 
ordinary course, should have been summoned through the learned 
Tribunal as an official witness, but in this case she not only appeared as a 
witness on behalf of the appellant rather it is a fact apparent on the record 
that she had provided him with her affidavit and that affidavit was 
produced before the learned Tribunal by the appellant himself meaning 
thereby that she had colluded with the appellant and such inference can be 
safely drawn. In support of his submissions, learned counsel for the 
respondent relied upon the case reported as Sardar Abdul Hafeez Khan v 
Sardar Muhammad Tahir Khan Loni and 13 others (1999 SCMR 284). 
5. 
 
Heard. The key questions involved in this matter are:- first, 
whether the election of the appellant, on account of the amiss which is 
pointed out by the learned counsel for the respondent and the proof of 
committing illegal and corrupt practices by the appellant in connivance 
with the Presiding Officer, can be declared to be void; and secondly, 
whether such illegality if committed falls within the purview of Section 70(a) 
of the Act and thus the election could be declared void as a whole but 
because the findings of the learned Tribunal vis-à-vis all other polling 
stations is in favour of the appellant and the only grouse is regarding one 
polling station, the difference of votes whereof is only 1,400, thus even if 
these votes are excluded, in that eventuality the election of the appellant 
would not be materially affected. In order to appreciate the above, the 
relevant provisions (parts) of Sections 68, 69, 70 and 83 are reproduced as 
below:- 
Civil Appeal No.1086 of 2014 
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“68. Ground for declaring election of returned candidate 
void.–(1) The Tribunal shall declare the election of the 
returned candidate to be void if it is satisfied that– 
(a) 
……………………………………………… or  
(b) 
……………………………………………… or  
(c) 
the election of the returned candidate has 
been procured or induced by any corrupt or illegal 
practice; or 
(d) 
a corrupt or illegal practice has been 
committed by the returned candidate or his election 
agent or by any other person with the connivance of 
the candidate or his election agent. 
(2) 
The election of a returned candidate shall not be 
declared void on the ground– 
(a) 
that any corrupt or illegal practice has been 
committed, if the Tribunal is satisfied that it was not 
committed by, or with the consent or connivance of 
that candidate or his election agent and that the 
candidate and the election agent took all 
reasonable precaution to prevent its commission; or 
(b) 
that any of the other contesting candidates 
was, on the nomination day not qualified for or was 
disqualified from, being elected as a member. 
 
69. 
Ground for declaring a person other than a 
returned candidate elected.–The Tribunal shall declare the 
election of the returned candidate to be void 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 
petitioner or such other contesting candidate was entitled 
to be declared elected. 
 
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. 
Civil Appeal No.1086 of 2014 
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83. Illegal practice.–(1) A person is guilty of illegal 
practice if he– 
(a) 
…………………………………………………… 
(b) 
obtains or procures or attempts to obtain or 
procure, the assistance of any person in the service 
of Pakistan to further or hinder the election of a 
candidate; 
(c) 
…………………………………………………… 
(d) 
…………………………………………………… 
(e) 
…………………………………………………… 
(f) 
……………………………………………… or 
(g) 
knowingly induces or procures any person 
to do any of the aforesaid acts. 
(2) 
Any person guilty of illegal practice shall be 
punishable with imprisonment for a term which may extend 
to six months and fine which may extend to five thousand 
rupees.” 
 
6. 
 
Before answering the two aforementioned questions, we find it 
expedient to understand the legal framework of Sections 68, 69 and 70 of 
the Act. These sections can be broadly divided into two parts:- (i) Sections 
68 and 69 stipulate the grounds for declaring the election of a returned 
candidate void and declaring a person other than the returned candidate as 
elected, respectively; and (ii) Section 70 governs the grounds for declaring 
the election as a whole void. Once any of the grounds enumerated in 
Section 68 have been established through such quality evidence which has 
been prescribed by various dicta of the apex Court in this behalf; the 
obvious consequence as per the law shall thus be to declare the election of 
such returned candidate as void. While passing such order the Tribunal 
under Section 69 ibid though is duly empowered to declare the election 
petitioner or any of the contesting respondents as the returned candidate, it 
Civil Appeal No.1086 of 2014 
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may make such declaration only if a claim in this regard has been set out 
by them. Furthermore, such declaration shall not be made as a matter of 
course or a right or ipso facto rather only in the circumstances of the case 
where the election petitioner or the respondent of the election petition is 
able to substantiate and make out a case qua his entitlement to the 
satisfaction of the Tribunal. This entitlement shall be dependant on the 
facts and circumstances of each case; the reasons set out and proof for the 
entitlement thereof; in this context the guiding principles have been 
propounded in the case reported as Syed Saeed Hassan v Pyar Ali and 7 
others (PLD 1976 SC 6). Thus the grant of relief to the election petitioner 
or any other respondent in the election petition under the provisions of 
Section 69 of the Act must be proved on the strength of their own 
entitlement to get elected in place of the returned candidate, as has been 
laid down by this Court in Dr. Sheela B. Charles v Qaisar Ifraeem Soraya 
and another (1996 SCMR 1455).  
 
While considering the parameters of Section 69, particularly with 
respect to a runner up (and not any of the other candidates) and where the returned 
candidate has been found to be disqualified and his election has been 
declared as void, as has been consistently held by this Court in a line of 
cases reported as Rashid Ahmad Rahmani v (1) Mirza Barkat Ali, (2) 
Master Fazal Elahi and (3) The Additional Commissioner, Lahore (PLD 
1968 SC 301); Lal Muhammad v Muhammad Usman and others (1975 
SCMR 409); Pyar Ali; Muhammad Ilyas v The Returning Officer etc. 
(1981 SCMR 233); Junaid Ahmad Soomro v Haji Mehboob Ali Bhayo 
and others (PLD 1986 SC 698); Sahibzada Tariqullah v Haji Amanullah 
Khan and others (PLD 1996 SC 717); Engr. Iqbal Zafar Jhagra and 
others v Khalilur Rehman and 4 others (2000 SCMR 250); Ellahi 
Bakhsh v District and Sessions Judge, Rajanpur/Election Tribunal, 
Dera Ghazi Khan and others (PLD 2003 SC 268); Mian Ahmed Saeed 
Civil Appeal No.1086 of 2014 
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and others v Election Tribunal for Kasur at Okara and 7 others (2003 
SCMR 1611); Sh. Amjad Aziz v Haroon Akhtar Khan and 10 others 
(2004 SCMR 1484); Bashir Ahmed Bhanban and another v Shaukat Ali 
Rajpur and others (PLD 2004 SC 570); Shaukat Ali and another v 
District Returning Officer and another (PLD 2006 SC 78); Imtiaz 
Ahmed Lali v Ghulam Muhammad Lali (PLD 2007 SC 369); and 
Chaudhry Muhammad Munir and others v Election Tribunal, Mandi 
Bahauddin and others (2009 SCMR 1368), it is not the case that the 
votes of the returned candidate (who has been disqualified and whose election as a 
returned candidate has been declared to be void under Section 68) are to be simply 
disregarded or discarded on the doctrine of throw away votes and the 
runner up is to be automatically declared as the duly elected returned 
candidate by virtue of having secured the next highest number of votes; 
rather the notoriety of the disqualification amongst the voters at the time of 
polling has to be examined and if the disqualification is found to be 
notorious (apparent or known to the public), only then can the votes of a winner of 
an election be thrown away, and the runner up be declared to be the duly 
elected returned candidate. If the disqualification is not notorious and 
depends on legal argument or upon complicated facts and inferences, then 
the runner up cannot be declared to be the duly elected returned 
candidate, as the possibility cannot be ruled out that any of the other 
candidates could have won the elections, hence the election must be 
declared to be void as a whole and fresh elections must take place (as per 
the law enunciated in the cases of Rashid Ahmed, Pyar Ali, Lal 
Muhammad, Muhammad Ilyas and Ahmed Saeed). It may be pertinent to 
mention here that a runner up is required to prove the notoriety of 
disqualification of the successful candidate at the time of polling through 
positive evidence. It is also worthy to point out that though notoriety is with 
respect to disqualification, the test is essentially that of the validity (or otherwise) 
Civil Appeal No.1086 of 2014 
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of the votes in question, which exercise was taken by this Court in the case 
of Pyar Ali, where there were allegations of illegal and corrupt practices as 
opposed to disqualification. Whether or not the principle of ‘throw away 
votes’ can be invoked in cases other than that of disqualification would 
ultimately depend upon the facts and circumstances of each case, the 
nature of the allegations leveled in the election petition and the quality of 
evidence produced before the election tribunal. 
The upshot of the above discussion is that Sections 68 and 69 of the 
Act constitute a two-prong test, both limbs of which must be satisfied by 
any election petitioner or respondent to a petition challenging the election 
of the returned candidate, if any of them wish to be declared duly elected in 
place of such returned candidate. 
Now coming to Section 70 of the Act, the provisions of which pertain 
to declaration of the election as a whole void (as opposed to the election of the 
returned candidate only), such a declaration can only be so made if there is a 
failure of any person to comply with the provisions of the Act or Rules or 
there is prevalence of extensive corrupt or illegal practice at the election, 
either of which must materially affect the result of the election.  
7. 
 
The first question which requires deliberation is whether the 
lapses in the election pointed out by the learned counsel for the respondent 
constitute illegal practices within the purview of the law and consequently 
the election of the appellant can be declared to be void. It may be pertinent 
to mention here that the evidence led by the respondent, the findings of the 
learned Tribunal and the submissions of the learned counsel for the 
respondent do not fall within the realm of “corrupt practices” (defined in Section 
78), thus we do not find it necessary to refer to the same, rather we have 
confined ourselves to the relevant issue of “illegal practices” (defined in Section 
83). A perusal of the election petition indicates that the thrust of the 
respondent’s allegations is that the appellant colluded and connived with 
Civil Appeal No.1086 of 2014 
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the election staff, particularly the Presiding Officers of polling stations No.2, 
18, 23, 29, 32, 55 and 68 (the respondent discarded his allegations vis-à-vis polling 
stations No.71 and 77 during the trial of the election petition), who have fabricated, forged 
and manipulated the count in a manner which has illegally increased the 
votes of the appellant and decreased that of the respondent. The learned 
Tribunal held that the respondent could not prove his allegations vis-à-vis 
polling stations No.2, 18, 23, 55 and 68. With respect to polling station 
No.32, the minor discrepancy in the votes was admitted by the Presiding 
Officer of the said polling station to be a bona fide mistake on his part, thus 
in essence the respondent’s allegations of collusion and connivance and 
illegal practice also did not stand to be proved vis-à-vis polling station 
No.32. The only contentious polling station that remained was that of 
No.29, with respect to which learned counsel for the respondent confined 
his arguments to before us. We find it beneficial to reproduce the relevant 
portions of the learned Tribunal’s findings vis-à-vis polling station No.29: 
 
 
 
“Issues No.2,3 and 4. 
 
Now coming to the count in respect of Polling Station No 
29 which is the most controversial count from the 
petitioner’s point of view. Its Presiding Officer, Mst. Safia 
Sultana Malik was examined as exhibit O-5 and was cross 
examined by both the learned advocates for the parties. As 
per her evidence the returned candidate had obtained 1400 
votes which were mentioned in her official statement of 
count, Form XIV, exhibit O-5/3. However, admittedly in this 
statement of count even the name of the petitioner was not 
mentioned as she was completely ignorant of the fact that 
he too had contested the election from the said 
constituency. This statement of count does not provide the 
other required details as far as the names of all the 
contesting candidates and the votes polled by them are 
concerned. Section 38(9) of the Act directs the Presiding 
Officer of polling station that immediately after the count 
he shall prepare statement of count in such form as may be 
prescribed (Form-XIV) showing therein the numbers of 
valid votes polled by each contesting candidate and the 
Civil Appeal No.1086 of 2014 
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ballot papers excluded from the count. There are other 
unexplained discrepancies also in the same including 
corrections, overwriting and miscalculation in counting. 
The violation of the above provision of law has made the 
statement highly doubtful and requires further objective 
scrutiny before reaching to any firm conclusion as far its 
legal effects are concerned. For this the conduct and 
neutrality of the Presiding Officer will be the most 
important factor. In this regard the act of filing of her own 
affidavit in evidence, exhibit O-5/1, voluntarily in support 
of he returned candidate show her bias in favour and is 
sufficient to hold that she did not act fairly and 
independently while performing her duties as polling 
official for whom it was incumbent under the Act to 
discharge her duties honestly within the contemplation of 
its provisions. This finding gets full support from the 
consideration of the total votes cast at the corresponding 
Polling Station No 159 of National Assembly constituency, 
NA-241 in comparison with the total votes cast at polling 
station no. 29. The total votes cast at polling station no. 159 
were 148 (as per exhibit P-5/17, consolidated result which 
is an admitted document) whereas the total votes cast at 
polling station no. 29 of this constituency were 1440 and 
there is no logical reason of such a huge difference when 
each voter is required to cast his vote to the contesting 
candidate of his choice for the National Assembly and 
Provincial Assembly. The Presiding Officer during her 
cross avoided to reply the questions in this regard showing 
her ignorance. The total votes polled at the polling station 
no. 149 of NA-241 corroborates the evidence of the polling 
agent of the Petitioner, Mst. Sajida, exhibit P-11, in which 
she has deposed that as per official count, the votes polled 
by the Petitioner and the returned candidate as furnished 
by the Presiding Officer were 117 and 83 respectively and 
the total votes cast at these two polling stations for both the 
constituencies were 117 and 111, exhibit P-11/1, This 
statement is bearing the purposed signature of the 
Presiding Officer, Ms. Safia Malik. Without going into the 
genuineness of this signature by comparing with her 
admitted signatures on exhibit, O-5/2 to O-5/5 but on the 
basis of quality evidence produced by the petitioner which 
is fully corroborated with the circumstantial evidence it is 
held at polling station no 29 the petitioner polled 117 votes 
and the returned candidate 83 votes. 
 
… 
 
To sum up the above discussion it is suffice to say that 
except for the polling station no. 29 and 32 the petitioner 
has failed to prove the statements of count relied upon by 
Civil Appeal No.1086 of 2014 
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him showing the figures of votes polled by him or by the 
returned candidate. The issue is decided accordingly. 
… 
 
Issue Nos 6 and 7 
 
… 
Since it has been admitted that the returned candidate has 
obtained the assistance of the Presiding Officer to further 
his own election as a candidate, but for this it is to be 
examined whether the said presiding officer is in the service 
of Pakistan. 
… 
Applying the above principle the Presiding Officer Ms. 
Safia Sultana Malik was admittedly employed as school 
teacher in Sindh Welfare Board, Govt. of Sindh, as admitted 
by her in her evidence therefore she is in the service of 
Pakistan. The returned candidate has therefore committed 
an act of illegal practice within the ambit of Sec. 83(b) of 
the Act on account of obtaining her illegal assistance to 
further his election as a candidate. 
… 
In this case the connivance between Mst. Safia Malik, the 
Presiding Officer and the returned candidate is also 
floating on the surface of the record as discussed in detail 
in the relevant issues and there cannot be any doubt that 
the act of mentioning 1400 votes polled by the returned 
candidate illegally was nothing but to procure her 
assistance to further his election as candidate. Hence he 
has committed an act of illegal practice within the 
contemplation of the section 83(b) of the Act.” 
 
Before we embark upon an analysis of the evidence and a determination 
about the correctness or otherwise of the findings of the learned Tribunal, it 
is pertinent to mention that the rules of proof for the grounds challenging 
the election which are founded on corrupt and illegal practices are quite 
strict and stringent and the allegations in this regard must be absolutely 
proved through positive evidence without accepting any inferences and if 
there is any doubt, the benefit must go to the person against whom corrupt 
or illegal practices are being alleged, as held been held by this Court in the 
cases reported as Muhammad Saeed and 4 others v (1) Election 
Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan, (3) 
Civil Appeal No.1086 of 2014 
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Ghulam Haider and (4) West Pakistan Government and others (PLD 
1957 SC (Pak.) 91); Mian Jamal Shah v (1) The Member Election 
Commission, Government of Pakistan, Lahore, (2) The Returning 
Officer, Constituency of the National Assembly of Pakistan No. NW-II, 
Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan 
Muhammad Yusuf Khan Khattak v S. M. Ayub and 2 others (PLD 1973 
SC 160) and Pyar Ali. Therefore let us examine whether in this case there 
is evidence to the effect that illegal practices in terms of the law as provided 
for in Section 83 of the Act have been committed and so proved. Learned 
counsel for the respondent submitted that the Presiding Officer of polling 
station No.29, Ms. Malik, did not fill up the statement of count, that the 
respondent’s name was not mentioned in the statement of count and that 
she signed hand-written results and provided them to the polling agents of 
the respondent in which the count is different from that in Form-XIV. 
However, a perusal of Ms. Malik’s evidence suggests that she admits to 
overwriting on figures in Form-XIV to make corrections; admits to writing 
the figure 1,600 on one page of Form-XIV of polling station No.29 and the 
figure 1,700 on the other page; admits to the errors in calculation while 
attributing it to absence of a calculator and lack of sufficient light due to a 
power breakdown; admits that the Form-XIV was not entirely prepared by 
her, in that the candidates’ names were written by the Assistant Presiding 
Officer, but the rest including her name and signature are in her own 
handwriting; and that she attributed the absence of the respondent’s name 
from the Form-XIV to the fact that she was not aware that he was 
contesting from the said constituency. Be that as it may, we are of the 
candid view that even if such lapses occurred, they certainly do not fall 
within the definition of “illegal practice” contained in Section 83(b) (the other 
sub-clauses are not relevant in the instant matter) as they do not constitute “obtaining or 
procuring or attempting to obtain or procure the assistance of any person in the service of 
Civil Appeal No.1086 of 2014 
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Pakistan to further or hinder the election of candidate”. With regard to the argument 
that she had prepared her affidavit in the appellant’s office and did not 
appear as an official witness which fact indicates connivance and collusion 
with the appellant, we are of the view that these are mere inferences, which 
are neither positive nor conclusive evidence of the fact that she colluded 
and connived with the appellant, and that the appellant “obtained” or 
“procured” the assistance of the Presiding Officer to secure his election as a 
returned candidate. The learned Tribunal has erred gravely in drawing such 
inference and concluding that this suggests that Ms. Malik was biased in 
favour of the appellant. The argument regarding the difference between the 
statements of count of the National and Provincial constituencies which, 
according to the learned counsel for the respondent, also suggests illegal 
practice by Ms. Malik also fails on the count of being a plain inference, not 
backed by sufficient evidence of the same. Furthermore, the record, 
particularly her evidence, does not suggest that Ms. Malik was ever 
confronted with the document relied upon by the learned Tribunal in this 
regard, i.e. P-11/1. In fact, the learned Tribunal has itself stated “without 
going into the genuineness of this signature by comparing with her admitted signatures on 
exhibit…” indicating that it undertook a handwriting comparison analysis 
which we find, anyone other than a handwriting expert, is not competent to 
carry out.  
Learned counsel for the respondent has conceded that there is no 
evidence to directly prove that there was connivance between the appellant 
and the Presiding Officer but on account of inferences which should be 
necessarily drawn in this case because of the conduct of the Presiding 
Officer identified above, it should be held that the Presiding Officer acted in 
collusion with the appellant and thus the latter’s election should be 
declared to be void. Reliance placed upon Abdul Hafeez Khan’s case by the 
learned counsel for the respondent in this regard is misconceived (the said 
Civil Appeal No.1086 of 2014 
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case may be more relevant to Section 70 of the Act and shall be discussed below). Even if an 
inference is to be drawn, it can only be so done where there is only one 
possible conclusion that can be reached, warranting proof through 
circumstantial as opposed to direct evidence. The fact that certain 
lapses/anomalies were committed by the Presiding Officer of polling station 
No.29 will not automatically lead to the conclusion that such was done in 
connivance or collusion with or on the instructions of the returned 
candidate/appellant. There is the possibility that the lapses committed by 
the Presiding Officer Ms. Malik were bona fide mistakes or due to lack of 
proper skill and adequate knowledge or expertise as to how to do the 
needful, or as a result of miscalculation of votes or lack of sufficient light 
due to a power breakdown. The possibility cannot be ruled out that any one 
of the candidates in an election colluded with the election staff at one 
polling station and had certain violations of the election law committed 
such as the wrong filling up of Form-XIV and by taking premium and 
advantage of their own fraud ultimately used this as a tool for having the 
election of the returned candidate declared as void. Since there is more 
than one possibility as to what could have happened on the day of election 
vis-à-vis counting of votes and preparation of statement of count, we 
cannot draw such inferences as suggested by the learned counsel for the 
respondent. A bare perusal of the findings of the learned Tribunal vis-à-vis 
polling station No.29 as reproduced above clearly suggests that it has 
concluded that the evidence indicates committal of illegal practices in 
connivance and collusion with the appellant based on pure inference and 
conjecture, without ruling out all the possibilities in light of the 
circumstantial evidence and without correctly appreciating the evidence 
and properly applying the law on the matter. The learned Tribunal appears 
to have acted upon the assumption that the respondent’s case stood 
sufficiently proved on mere probability, as opposed to the strict positive 
Civil Appeal No.1086 of 2014 
-: 17 :-
evidence that the respondent was required to produce in order to prove its 
serious allegations of illegal practice against the appellant. The evidence 
clearly suggests that there was doubt with respect to proof of the 
allegations of illegal practice and connivance and collusion, the benefit of 
which should have been given to the appellant. To hold, in the 
circumstances, that the appellant had “obtained” or “procured” the 
assistance of the Presiding Officer would be against the spirit of the law and 
against the settled norms of justice. 
Since we have found that the lapses pointed out by the learned 
counsel for the respondent do not constitute illegal practices as 
contemplated by the provisions of Section 83 of the Act, the election of the 
appellant as a returned candidate is not liable to be declared as void under 
Section 68 of the Act. Consequently, the question as to whether the 
respondent was able to prove, on the strength of his own evidence, that he 
should have been declared as the duly elected returned candidate in place 
of the appellant in terms of the provisions of Section 69, does not arise and 
thus needs no consideration. 
8. 
 
Now coming to the second question involved in this matter, i.e. 
whether in this case the election can be declared to be void as a whole as 
per the provisions of Section 70 of the Act. Since we have established above 
that no illegal practices took place within the contemplation of Section 83 of 
the Act (and the question of “corrupt practices” is not relevant in this matter), hence Section 
70(b) would not be relevant here, rather Section 70(a) which provides for 
declaration of the election as a whole void if there is a failure of any person 
to comply with the provisions of the Act or the Rules, provided that the 
election has been materially affected by such failure. The lapses/anomalies 
identified hereinabove may at best indicate a failure on behalf of the 
election staff, particularly the Presiding Officer of polling station No.29, to 
comply with the provisions of the Act, particularly Section 38(9) which 
Civil Appeal No.1086 of 2014 
-: 18 :-
provides for preparation of statement of count by the Presiding Officer, thus 
the test that there must be a failure of any person to comply with the 
provisions of the Act/Rules, may be satisfied. It is then to be seen whether 
the second part of the test, that such non-compliance must have materially 
affected the election, is satisfied. Since the findings of the learned Tribunal 
vis-à-vis all polling stations other than polling station No.29 is in favour of 
the appellant and the only grouse is vis-à-vis the said polling station, the 
difference of votes whereof is only 1,400, thus even if these votes are 
excluded from the total count of the appellant’s votes of 15,432, reducing it 
to 14,032, the appellant would still win by a margin of 3,072 votes. 
Therefore, as the election would not be materially affected, there is no 
occasion to declare the election as a whole to be void under Section 70(a) of 
the Act. It is here where Abdul Hafeez Khan’s case may be discussed, in 
which due to certain lapses committed by the election staff, the whole of the 
election was declared to be void under Section 70(a). However, the instant 
matter is distinguishable on the ground that the election has not been 
materially affected. Furthermore, in Abdul Hafeez Khan, there was found 
to be a general failure of the election machinery as there was widespread 
disregard of the law by the election staff, which is certainly not the case in 
the instant matter.  
9. 
 
In view of the foregoing, we find that the respondent was 
unable to prove through positive evidence, the committal of illegal practices 
within the contemplation of Section 83 of the Act, and therefore declaration 
of the appellant’s election as the returned candidate as void under Section 
68 of the Act was not warranted. The learned Tribunal had erroneously 
declared the election of the appellant as the returned candidate to be void 
and thereby wrongly declared the respondent as the duly elected returned 
candidate.  
Civil Appeal No.1086 of 2014 
-: 19 :-
10. 
 
The above are the detailed reasons for the short order of even 
date whereby the appellant’s civil appeal was allowed, which reads as:- 
 
“For the reasons to be recorded later, this appeal is 
allowed and the impugned judgment dated 7.8.2014 passed 
by the learned Election Tribunal, Karachi is set aside.” 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
 
 
 
Islamabad, the 
19th November, 2015 
Approved For Reporting 
Waqas Naseer/*