IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
 
 
PRESENT: 
 
 
 
MR. JUSTICE MIAN SAQIB NISAR 
 
 
 
MR. JUSTICE IQBAL HAMEEDUR REHMAN 
 
 
 
MR. JUSTICE MAQBOOL BAQAR 
 
 
CIVIL APEAL No.194 OF 2015 
(Against the judgment dated 03.3.2015 
passed by the Election Tribunal, Hyderabad 
in Election Petition No.3 of 2013) 
 
Jam Madad Ali 
 
 
 
 
… 
Appellant 
 
 
 
 
 
Versus 
 
Asghar Ali Junejo and others  
 
… 
Respondents 
 
 
For the appellant:  
Mr.Makhdoom Ali Khan, Sr.ASC 
Mr.Tariq Aziz, AOR. 
 
For respondent No.1: 
Dr. Farough Nasim, ASC 
Mr. Mahmood A.Sheikh, AOR 
 
Date of hearing: 
 
12.11.2015 
 
JUDGMENT 
 
 
 
MAQBOOL BAQAR, J.- The appellant, through the 
instant appeal, has challenged the judgment dated 03.3.2015 
passed by the learned Election Tribunal, Hyderabad (‘the Tribunal’) 
whereby Election Petition No.3 of 2013 preferred by respondent 
No.1 (‘the respondent’) was allowed and the respondent was 
declared returned candidate from PS-81, Sanghar-IV.  
2. 
 
The relevant facts of the case, in brief, are that the 
appellant contested election from the above constituency and 
having received 35,548 votes won the election held on 26.6.2013. 
Respondent, the runner-up, received 34,175 votes. On 28.6.2013, 
the respondent made an application to the Returning Officer 
(“R.O”) for a re-count in respect of thirty (30) polling stations 
specified therein, on the grounds that his Polling Agents were 
forcibly removed from various polling stations particularly from the 
CA 194/15 
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said thirty (30) polling stations which were situated in the areas 
dominated by the appellant, and that the concerned Presiding 
Officers (“P.O.”) did not perform their duties regarding the conduct 
of the vote count, and no action was taken by them on the 
complaint of the respondent, though in terms of section 38(1) of 
the Representation of the Peoples Act, 1976 (“the ROPA”), the P.Os. 
were required to count the votes in presence of the candidate’s 
polling agents. It was pointed out that the statements of count do 
not bear the signatures of the respondent’s polling agents as 
required under section 38(13) of the ROPA. The application was 
dismissed by the R.O. through order dated 28.6.2013. The R.O. 
after counting the votes and consolidating the result declared the 
appellant as the returned candidate. Notification to such affect was 
issued by the Election Commission of Pakistan (“ECP”) on 
01.7.2013. On 02.7.2013 the respondent filed an application for 
re-count under section 39(6) ROPA before the ECP. 
3. 
 
On 28.8.2013, the respondent through the afore-noted 
election petition challenged the result of the above election before 
the Tribunal and sought order, inter alia, directing the ECP to 
carry out a recount in respect of the said thirty (30) polling 
stations, on the grounds that the appellant in collusion with the 
officers of the ECP, the Local Administration and, the Arm Forces 
deputed to monitor the bye-election resorted to illegal and corrupt 
practices and rigged/manipulated the electoral process in his 
favour. It is specifically alleged that the polling agents of the 
respondent were removed from the polling stations and were 
prevented from participating in the vote count and consolidation of 
the result. No notice as required under section 39 of the ROPA was 
issued by the R.O. The provisions of the ROPA were violated by the 
concerned functionaries. That rejected votes were counted as valid 
CA 194/15 
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votes in favour of the appellant and that the votes polled at a 
number of polling stations were more than the votes assigned to 
those polling stations. The election results are infested with 
interpolation.  
4. 
 
Through his written statement, the appellant denied 
the various allegations contained in the petition. Through order 
dated 16.9.2013, the ECP, in view of the pendency of the above 
election petition and at the request of the respondent disposed of 
the re-count application with an observation that the Tribunal 
shall dispose of the petition expeditiously. On 16.1.2014, the 
respondent filed an application before the Tribunal seeking a 
recount of the votes from the aforesaid thirty (30) polling stations 
under section 46 of the ROPA. The application was resisted by the 
appellant who filed a counter-affidavit thereto. By order dated 
03.6.2014, the Tribunal allowed the application and ordered the 
recount to be conducted by the District Returning Officer 
(“DRO”)/the District and Sessions Judge, Sanghar, along with the 
Returning Officer and a nominee of the ECP. After concluding the 
re-count, as mandated, the DRO submitted his report, which 
report disclosed that a large number of ballot papers/votes 
recovered from the envelopes of the valid votes of the appellant and 
the respondent, bore double seals/stamps, rendering such 
votes/ballot papers invalid, leading to their exclusion in the 
recount. It also disclosed that a good number of the polling bags 
and the envelopes containing votes were found to not have been 
properly sealed, and that a substantial number of the envelopes, 
containing the votes of the two candidates in various polling bags 
were torn. On 26.8.2014, the appellant, in view of the above 
observations contained in the report, made an application to the 
Tribunal to summon the DRO, R.O., and the Presiding Officers of 
CA 194/15 
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the said thirty (30) Polling Stations, and also sought production of 
all the votes casted at the above polling stations along with the 
relevant Form XIV, and certain correspondence between the R.O. 
and the concerned Deputy Commissioner and the Mukhtiarkar for 
securing the premises where the aforesaid election record was 
stored. Through order dated 21.10.2014, the Tribunal, whilst 
disposing of the said application, summoned only the DRO and 
declined to summon the other officers. The DRO appeared before 
the Tribunal and produced his report. He was cross-examined by 
the appellant as well as by the respondent. Whereafter the 
appellant filed an application for sending the ballot papers rejected 
during the recount for forensic test, so that it may be verified as to 
whether same or different ink and/or seals have been used for the 
two impression found on each of the rejected ballot paper. The 
Tribunal, however, dismissed the application. The appellant and so 
also the respondent examined only themselves, they did not 
produce any other witness. After hearing the parties, the Tribunal 
through the impugned judgment accepted the respondent’s 
election petition and declared him as the returned candidate.  
5. 
 
Mr. Makhdoom Ali Khan, the learned Sr. ASC for the 
appellant submitted that the impugned judgment is solely based 
on the re-count carried out by the DRO in pursuance of the 
Tribunal’s order dated 03.6.2014. He submitted that in the facts 
and circumstances of the case, the Tribunal ought not to have 
exercised the power under section 46 of the ROPA for recount of 
the ballots, as such could have been done only on the basis of 
some prima facie evidence justifying the exercise of power under 
the said provision. Whereas in the present case, the application 
was granted prematurely, without recording any evidence justifying 
the recount. He submitted that to allow a recount as a matter of 
CA 194/15 
5 
course tantamounts to permitting a rowing inquiry. The learned 
counsel further submitted that even where the result of a recount 
may be founded on authentic, reliable and unadulterated material, 
and which result may essentially entail consequences of altering 
the earlier count/result, such result also be taken into 
consideration as being of any consequence, only where the recount 
has been conducted in pursuance of an order of the Tribunal 
which meets the criteria for such order as prescribed by this Court. 
He emphasized that no recount can be ordered, unless at least a 
prima facie case is made out on the basis of evidence recorded by 
the Tribunal. However, neither was/is any evidence or even any 
material available in this case which could have justified a recount 
nor the result/findings of the recount/inquiry could even 
otherwise be relied upon and/or made basis for the impugned 
judgment. Elaborating his arguments Mr. Khan submitted that the 
vote count in favour of the appellant has been reduced by 
excluding the ballot papers/votes bearing double stamps/seals, 
one over the appellant’s election symbol and the other on that of 
some other contestant. However, there is admittedly no evidence to 
show that the second stamp was affixed at the time the polling was 
carried, and that it was not done after announcement of the result. 
He submitted that it is wholly inconceivable that double stamping 
on such a massive scale, would go unnoticed by the polling staff 
and/or the contesting candidate and/or their agents, and such 
ballots would be counted and secured as valid votes without a 
demur. Mr. Khan further submitted that in the facts and 
circumstances of the case heavy onus lay on the respondent to 
prove that in fact the double stamping occurred at the time of 
casting the ballot and not after the polls. He argued that proving 
the allegation of double stamping at the time of polling/casting 
CA 194/15 
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became all the more necessary for the reason that never at any 
stage before the recount the respondent alleged any double 
stamping. In fact absolutely no complaint was made either by the 
respondent or any of his polling or election agent regarding any 
double stamping and/or any other malpractice during the polling 
or in respect of the entire election process, till the time he made an 
application to the Returning Officer for the recount on 28.6.2013, 
even in the said application also and till the conclusion of the 
recount the respondent did not allege any double stamping. As to 
the respondent’s allegation that his agents were removed from the 
polling stations and not allowed to participate in the vote count or 
the consolidation of the result, the learned counsel submitted that 
the same is evidently incorrect and unfounded as admittedly 
neither any complaint was made by anyone nor has any material 
been placed on record to show that any such complaint or protest 
in any manner was made. Mr. Khan further submitted that in 
order to prove that his agents were prevented from participating in 
the vote count and its consolidation and/or that the double 
stamping in fact occurred during the polling, the respondent ought 
to have examined the concerned Presiding Officers and should 
have summoned the relevant record for scrutiny, however, far from 
doing so, the respondent in order to prevent the Tribunal from 
coming to the right conclusion regarding the manipulation carried 
out by him and/or on his behest, even resisted the appellant’s 
application for summoning the concerned POs and RO and also 
the application for seeking forensic testing of the ballot papers 
containing double stamps/seals. The learned counsel submitted 
that the appellant through his letter dated 04.7.2012 expressed his 
apprehension regarding such tampering/manipulation and has 
requested the R.O. to secure the record, however nothing was done 
CA 194/15 
7 
to prevent the tampering and to secure the record. In order to show 
that the strong room of the sub-treasury Khipro where the relevant 
record including the ballots papers was stored, was not a fully 
secured place, the learned counsel referred to the letter dated 
26.7.2014, addressed by Sr.Civil Judge, Khipro, the concerned 
R.O., to the Deputy Commissioner, Sanghar, whereby he sought 
immediate repair of the ventilator of the strong room, which as 
noticed by the RO, at the time of storing back the relevant record 
after the recount, was without the necessary penal/shutter, and 
the cavity was blocked only by placing loose bricks therein. Mr. 
Khan submitted that in fact, as noted by the R.O. in presence of 
the parties and/or their representatives, not only a good number of 
ballot bags were found unsealed or improperly sealed, but a large 
number of envelopes containing the valid votes were either without 
seals or were torn. He submitted that although the respondent 
alleged that his polling agents were removed from the polling 
stations but has not even filed any authorization letter issued by 
him in favour of his purported polling agents and has failed to 
furnish any list of polling agents and that out of the two agents 
whose names the respondent disclosed, he filed affidavit of only 
one but did not produce even that single agent. In support of his 
contention that recount of the votes secured in an election can 
only be allowed by the Tribunal where evidence making out a 
prima facie case for a recount is recorded, not otherwise, relied 
upon following judgments: 
 
KANWAR EJAZ ALI VS. IRSHAD ALI AND 2 OTHERS 
(PLD 1986 SC 483) 
 
SARDAR 
ABDUL 
HAFEEZ 
KHAN 
VS. 
SARDAR 
MUHAMMAD TAHIR KHAN LONI AND 13 OTHERS 
(1999 SCMR 284) 
 
6. 
 
On the other hand, Mr. Farough Nasim, the learned 
counsel for respondent No.1 submitted that in the facts and 
CA 194/15 
8 
circumstances of the case, the order for recount as passed by the 
learned Tribunal was/is the only order that could have been 
lawfully passed on the respondent’s application. He submitted that 
the contents of the election petition as well as the respondent’s 
application for the recount, spelt out valid grounds which were 
adequately supported by relevant material. He submitted that the 
count and the consolidation of the election result in the absence of 
the respondent and his election/polling agents is clearly violative of 
the mandate of sub-section (1) and (2) of Section 38 of the ROPA 
which requires such presence and that the PO shall provide 
reasonable facility to the contesting candidates and their agents to 
observe the count. He further submitted that although in terms of 
sub-section 13 of Section 38 of the ROPA, the POs were required to 
obtain signatures of the candidates or his election/polling agent on 
the statement of the vote count, however not a single such 
statement 
bear 
any 
signature 
of 
the 
respondent 
or 
his 
polling/election agent which clearly show that the counting and 
the consolidation of the result has been conducted in their 
absence. Mr. Nasim further submitted that no notice of the day, 
time and place fixed for consolidation of the result was served on 
the respondent or his agents, and thus by preventing/avoiding the 
presence and the participation of the respondent and his agent, 
the polling staff in collusion with the appellant massively tampered 
the ballot papers and manipulated the election result as discovered 
during the recount which clearly revealed that invalid votes 
bearing double stamps were counted and secured in favour of the 
appellant, thus giving him an undue edge/margin over the 
respondent and turning his defeat into a victory against the 
respondent. The learned counsel submitted that it is wholly 
contrary to the settled principle and our jurisdictional norms to 
CA 194/15 
9 
argue that a recount can be ordered by the Tribunal only on the 
basis of some evidence recorded by it. He submitted that neither 
such is the requirement under the relevant provisions of law nor is 
it in consonance with the principles of equity, fair play and justice 
and 
the 
same 
also 
militates 
against 
the 
principle 
of 
reasonableness. He referred to section 38(5)(b) of the ROPA which 
empowers the PO to conduct recount either on his own motion or 
upon the request of the contesting candidate where such request is 
not unreasonable, and submits that reasonableness is the only 
criteria laid down by law for the recount. He submitted that 
similarly in exercise of its powers under section 46 of the ROPA, a 
Tribunal also can order a recount where doing so is found 
reasonable by the Tribunal, and as to whether it would be just, 
proper and reasonable to allow a recount, can be decided keeping 
in view as to whether adequate statement of material fact along 
with supporting prima facie material has been furnished. Whereas 
in the present case, the respondent not only furnished adequate 
statement of material fact in his memo of appeal as well as in his 
application for the recount to the RO as noted earlier, but also 
annexed photocopies of a bulk of the relevant statement of count 
(Form XVI) which purport to show that at various polling stations 
100% of the votes assigned thereto were purportedly casted and 
counted and at some stations the counting as recorded in the said 
statements was more than 100% of the assigned votes. He 
submitted that in addition to the above, in a number of form XIV 
though absolutely no votes were shown/recorded in favour of any 
of the candidates however strangely the total count of the casted 
votes was recorded in hundreds. Whereas in a good number of 
statements of count/form XIV, interpolation/re-writing in the 
relevant column/relevant figure of counts of the votes is clearly 
CA 194/15 
10
visible. He submitted that in the face of such material refusal of 
recount would have been wholly illegal, unjust and unfair and the 
Tribunal was thus not left with any choice but to order recount. In 
order to substantiate his above allegation regarding the anomalies, 
discrepancies and interpolation reflected in the statement of 
count/form XIV, the learned counsel referred to copies of various 
such forms. In support of his contentions that recording of 
evidence justifying the recount is not always essentially required 
by the Tribunal to order recount. Mr. Nasim referred to and relied 
upon following cases:- 
 
MEHR KHALIQ YAR KHAN VS. CH. GHAYAS 
AHMAD MELA AND OTHERS (2011 CLC 1515) 
 
T.A. AHAMMED KABEER VS. A.A.AZEEZ AND 
OTHERS (AIR 2003 SC 2271) 
 
BHABHI VS. SHEO GOVIND AND OTHERS (AIR 
1975 SC 2117) 
 
7. 
 
Heard the learned counsel for the parties and perused 
the record with their assistance. 
8. 
 
The basic questions involved in this case are, firstly as 
to whether the order dated 03.6.2014 passed by the learned 
Tribunal for recount of the votes was lawful, appropriate and 
justified in the facts and circumstances of the case and secondly, 
as to whether the report submitted by the DRO in pursuance of the 
above order furnished adequate/lawful basis for declaring the 
appellant’s election as void and for declaring the respondent as the 
returned candidate in place of the appellant.  
9. 
 
The purpose of a recount in an election dispute is to 
verify and determine the authenticity and truthfulness of the 
allegations on the basis whereof the election result is challenged, 
however, in order to secure the sanctity of the election result and 
with a view not to encourage the loosing candidates to attempt to 
frustrate the will of the people as expressed through the election 
and also in order to avoid creating an incentive for the loosing 
CA 194/15 
11
candidates to in any way, indulge in post poll tampering or 
manipulation of the election record, a conscious effort is to be 
made that it is only in the circumstances which clearly justify, 
rather demand a recount, that the recount is allowed. As to what 
should be the criteria or the essential pre-requisites for satisfying 
the conscience of the Court for permitting a recount, perusal of the 
case law laying down our jurisprudential principles in this regard, 
would show that the minimum criteria is that there should be 
specific allegation of tampering, manipulation and maneuvering in 
very clear terms along with the necessary details and prima facie 
material supporting such allegations. It should also be kept in 
mind that secrecy of the ballot should not be violated on the basis 
of frivolous, vague and totally unfounded allegations and that the 
primary object should be to do full justice in the matter. The 
learned Tribunal should also be mindful that the discretion to 
exercise power of recount may not be exploited for a roving inquiry 
to fish out material for reversing the election or for declaring it void 
and thus it should be seen that as to whether in view of the 
statement of material fact, and the material placed before the 
Tribunal the request is fair and reasonable or not.  
10. 
 
We have perused the judgments relied upon by the 
learned counsel for the parties have noted that in the case of 
Kanwar Ejaz (supra) the only ground urged before this Court was 
that the difference of votes between the successful candidate and 
the runner-up (appellant) was of just 707 votes whereas the 
allegation of the appellant that his polling agents were not allowed 
to sit at the polling stations and one sided votes were casted in 
favour of the winning candidate in their absence, was rejected by 
the Tribunal and the Tribunal also held that no corrupt practice 
was established against the respondent and that the allegations 
CA 194/15 
12
contained in the application for recount were found to be vague. It 
also seems that the order rejecting the application for recount was 
also founded in the fact that though evidence was adduced before 
the Tribunal however the appellant could not establish any 
allegation made in support of his request for recount. This court 
thus expressed agreement with the observations of the election 
Tribunal that the request for recount was not reasonable and 
upheld its rejection. 
11. 
 
In the case of Sardar Abdul Hafeez Khan (supra), this 
Court, whilst observing that section 46 of the ROPA confers an 
inclusive and wide discretion on an Election Tribunal to order 
opening of packets of counterfoils and certificates or the inspection 
of any counted ballot papers, held that Tribunal should have some 
basis for taking such recourse to its exclusive and essentially 
discretionary power under the said provisions, opening the way to 
a recount. Thus, it would be for the petitioner in the election 
petition to lead initial evidence for the Tribunal to take resort to 
power under the said provision. It is only then that the Tribunal 
may summon the relevant record and examine the corresponding 
official witnesses at the petitioner’s behest, unless, of course, the 
Tribunal is acting Suo Motu in the midst of the petition, something 
which does not appear to be precluded. 
 
It can thus be seen that recording of evidence is not 
essentially required by a Tribunal to pass an order for a recount as 
the Tribunal may on its own also order a recount.  
12. 
 
In the case of Sahibzada Muhammad Nazeer Sultan v. 
Saima Akhtar Bharwana and others (PLD 2007 Lhr 141) referred to 
in the case of Mehr Khaliq Yar Khan (supra) the learned Lahore 
High Court laid down that the power to order recount is to be 
exercised by the Tribunal on the basis of some material prima facie 
CA 194/15 
13
establishing illegalities and irregularities in the count of the polled 
votes and further that such power of the Tribunal is quite exclusive 
which it is to be exercised sparingly after satisfaction of the 
material/evidence that there had been wrong inclusion and 
exclusion of the ballot papers in the count.  
13. 
 
In the case of Bhabi (supra), the Supreme Court of 
India laid down the following criteria for permitting a recount in an 
election matter:- 
“15.  
Thus on a close and careful consideration of the 
various authorities of this Court from time to time it is 
manifest that the following conditions are imperative before 
a Court can grant inspection, or for that matter sample 
inspection, of the ballot papers: 
(1) That it is important to maintain the secrecy of the ballot 
which is sacrosanct and should not be allowed to be 
violated on frivolous, vague and indefinite allegations; 
(2) That before inspection is allowed, the allegations made 
against the elected candidate must be clear and specific 
and must be supported by adequate statements of material 
facts; 
(3) The Court must be prima facie satisfied on the materials 
produced before the Court regarding the truth of the 
allegations made for a recount; 
(4) That the Court must come to the conclusion that in order 
to grant prayer for inspection it is necessary and imperative 
to do full justice between the parties; 
(5) That the discretion conferred on the Court should not be 
exercised in such a way so as to enable the applicant to 
indulge in a roving inquiry with a view to fish materials for 
declaring the election to be void;”  
14. 
 
The present case, however, does not meet the criteria 
as prescribed through the afore discussed pronouncement. Firstly, 
neither the memo of the election petition, nor the application for 
recount contain any specific allegation of tampering and/or 
manipulation against the appellant, nor any prima facie material 
supporting the allegations justifying the request for recount was 
furnished. The memo only contained generalized allegations of 
illegal and corrupt practices and rigging/manipulation of the 
electoral process. There is also a vague allegation that the polling 
CA 194/15 
14
agents of the respondent were removed from the thirty (30) polling 
stations for which recount was requested, however, there again no 
details were spelt out. As can been seen from the order for the 
recount, the learned Tribunal was persuaded to pass the order on 
the basis of the statement of count/form XIV, in respect of four 
polling stations. The two such statements/forms which pertain to 
polling station Nos.6 and 16, respectively, showed that 100% of the 
votes assigned to the said two polling stations were polled at the 
said stations, inasmuch as the number of votes mentioned in the 
column provided for the number of votes assigned to the polling 
station at the top of the statements showed 543 and 1337 votes 
respectively, whereas the said figures were in fact the count of the 
votes casted at the said two polling stations, however, it was due to 
sheer inadvertence that the P.Os. inserted the above figure in the 
column for the votes assigned to the said two polling stations. 
Such is evident from the fact that the same figures are mentioned 
as of the votes casted in the relevant column at the bottom of the 
statements. Furthermore, as evident from the gazetted list of 
polling stations the number of votes assigned to the said two 
polling stations were in fact 1041 and 1977 votes respectively and 
not 543 and 1337 as mistakenly mentioned by the P.O. The total 
number of votes at the polling station in question were, thus far 
higher than the number of votes cast and the Presiding Officers 
had simply committed a clerical error by recording the number of 
votes cast as the number of votes assigned to the polling station. 
Similarly, in respect of the other two polling stations being, Polling 
Station No.18 and 115, where the learned Tribunal presumed 
casting of votes in excess of the registered votes, it did not examine 
the gazetted list of polling stations through which it could have 
easily been confirmed that there was no excess casting at all. In PS 
CA 194/15 
15
No. 18, the Presiding Officer recorded the total number of votes 
assigned to the polling station as 437 which in accordance with 
gazetted list of polling stations should have been 807 and the total 
number of votes polled by the contesting candidates, including the 
challenged vote was 437. He then added the total number of 
doubtful votes 17, excluded from the count to the total number of 
votes polled including the challenged votes, and recorded the 
aggregate of 454 as the “Number of votes polled”. Since this figure 
now included the excluded votes, the number of polled votes 
exceeded the figure recorded as the total votes assigned to this 
polling station. However, a glance at the Form XIV would clearly 
show that this is nothing more than a clerical mistake. The 
Presiding Officer added the valid and invalid votes, the sum of 
which exceeded the figure he had recorded as the total votes 
assigned to the polling station, which was itself an incorrect figure 
since the total number of votes registered at this polling station 
was much higher than figure mentioned in Form XIV. The same 
clerical mistake was made by the Presiding Officer of Ps No. 115 
though it was made only on the second sheet of Form XIV, yet the 
Tribunal missed the first sheet of Form XIV on which the correct 
numbers were recorded. The issue could have been easily resolved 
by referring to the gazetted list of polling stations which clearly 
established that the total number of votes assigned to PS No. 18 
and 115 were 807 and 1167 respectively, which far exceeded the 
number of votes cast.   
15. 
 
Mr. Farough Nasim, the learned counsel for the 
respondent, in his endevour to show that there was adequate 
material available before the learned Tribunal justifying the 
recount, took us to various statements of counts/form XIV, which 
broadly falls in four categories. The first are the statements 
CA 194/15 
16
wherein the number of votes assigned and the number of votes 
casted, as recorded, are even. The second category is of the 
statements where the number of votes casted has been recorded in 
excess of votes mentioned as votes assigned. Third is the category 
where no votes have been shown to have been secured by any of 
the candidate mentioned therein but the number of votes 
mentioned in the column for the total votes secured are in 
hundreds and in the forth category, there are certain overwriting/ 
interpolations. 
16. 
 
So far as the first two categories which purportedly 
show that 100% and more than 100% of the votes assigned have 
been casted, the said misconception has already been dealt with in 
the foregoing paragraphs which leave not doubt that it was by way 
of a sheer mistake that the figure of the number of vote casted 
were also shown as the number of the votes assigned although in 
fact the votes assigned to the said polling stations were far larger 
than the votes casted. As regards the third category of the 
statements, as rightly pointed out by Mr. Makhdoom Ali Khan, the 
learned counsel for the appellant, we have noted that these infact 
are the second pages/sheet of the statement/form XIV which does 
not contain the names of all the contesting candidates, and the 
names of the remaining candidates are mentioned at the first 
page/sheet of the relevant statement/form, which candidate in fact 
secured certain numbers of votes as mentioned in the relevant 
column at the first page/sheet, total whereof has also been 
mentioned in that page/sheet which total has been brought over to 
the second page/sheet i.e. the page/sheet in question, showing the 
total number of votes polled at that particular polling station and 
therefore, it is wrong to say that hundreds of votes have been 
shown as casted/polled at the polling station where absolutely no 
CA 194/15 
17
vote was casted. A close scrutiny of the last category of the 
statements clearly show that corrections there have been made in 
the figure of the total count as the same did not tally with the 
actual correct totaling of the votes recorded as casted in favour of 
various candidates in the relevant columns, as the corrected 
figures are found in consonance with the number of votes shown 
as secured by the various candidates in the relevant columns. 
17. 
 
From the foregoing analysis, it is now abundantly clear 
that the material placed before and relied upon for the recount 
order in fact did not provide a slightest justification for the 
recount.  
18. 
 
Now coming to the question as to whether the report 
submitted by the DRO in pursuance of the recount order justified 
passing of the impugned judgment. It may be noted that at no 
point in time from the polling day and up to the recount, the 
respondent alleged any double stamping. It is wholly inconceivable 
that the ballots infested with double stamping would not have been 
noticed by any of the polling staff or the various candidates and 
their agents and that such ballot papers could be counted and 
secured in favour of a candidate without a demur. There is no 
evidence in support of the allegation that the respondent’s agents 
were removed from the polling stations or were prevented from 
observing the counting of the ballots or the consolidation of the 
result. There is absolutely no proof at all, of the respondent 
making any complaint of the removal of his agents. The respondent 
far from examining the concerned P.Os., and/or any other witness, 
to prove his allegation and to demonstrate that the ballots 
excluded in the recount on account of double stamping were in fact 
so stamped at the time of polling and not afterwards, even resisted 
the appellant’s application for summoning the P.Os., and also 
CA 194/15 
18
opposed the application for putting the said ballot papers to 
forensic test to verify the type of ink and the seal used for the two 
stamps affixed on the ballot papers and as to when each of the two 
stamps were affixed. As regards Mr. Farough Nasim’s submission 
that no notice as required in terms of section 39 of the ROPA was 
served on the respondent or his agents and that none of the 
statements of count/form XIV contains signature of the respondent 
or his agent. It may be noted that that such is of no consequence 
neither has the respondent made any specific allegation of any 
manipulation in the consolidation of the result nor does the DRO 
report reflects anything pertaining to the consolidation and in 
terms of section 38(13) of the ROPA, the P.O. is required to obtain 
signature only from such candidates or agents who may be present 
at the relevant time. Since it is the case of the respondent that 
none of his agent was available at the time of the counting and/or 
consolidation, there was no question that the relevant statement 
does not contain their signatures.  The ballot bags and the 
envelopes containing the ballot papers infested with double 
stamping, were either unsealed or were not properly sealed and 
many of the envelopes were also found to be torn. More 
intriguingly, the envelopes containing the appellant’s votes found 
torn far out numbered such envelopes of the respondent. The 
respondent did not produce any of his polling or election agents to 
prove his allegation of their removal from the polling station. He 
did not even produce a list of his agents or any letter of their 
appointment. The respondent filed affidavit only of one of his two 
polling agents whose names he disclosed but did not produce even 
the said polling agent. The appellant, before the commencement of 
the recounting has through letter dated 04.7.2013, expressed his 
apprehension that the relevant election record may be tampered 
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19
with and requested that the same be secured, but in vain. From 
the letter dated 26.7.2014 written by R.O., the Sr.Civil Judge, 
Khipro, it can be seen that the so called strong room where the 
relevant record was stored was not a secured place. It may also be 
noted that a period of more than one year has elapsed between the 
polling/election and the recount. In the circumstances, it cannot 
be said that the double stamping took place at the time of casting 
of ballots and not after the result was announced and there is a 
great probability that the second stamp on the ballot papers may 
have been affixed during the period after the election and the 
recount.    
19. 
 
We have already held the order of the Tribunal for the 
recount of the votes to be illegal and since the very foundation of 
the basis for the impugned judgment have been demolished, the 
impugned judgment has been rendered illegal on that count alone. 
However, in view of the fact that it could not be proved that the 
ballot casted in favour of the appellant were in fact infested with 
double stamping at the time they were so casted and particularly 
in view of the fact that the respondent did not make any effort to 
prove that such was the case and has in fact resisted the 
appellant’s efforts to bring forth the truth about the controversy 
and more so for the reason that the ballot papers were not found 
well secured and the ballot bags and envelopes containing the 
same were found unsealed and torn, the respondent can not be 
allowed to be benefited by the said double stamping and the same 
cannot provide a valid ground for de-notifying the appellant and 
declaring the respondent as the returned candidate.  
20. 
 
In the case of Abdul Hafeez Khan (supra), this Court 
while dealing with the situation like in the hand has held as 
follows:- 
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20
“Three cases from this jurisdiction have contextual 
relevance. Such are Ejaz Shafi v. Ali Ashraf Shah, PLD 
1995 SC 43; Ejaz Shafi v. Ali Ashraf Shah, 1996 SCMR 605 
and Iftikhar Hussain v. Ijaz Ahmad Cheema, 1996 SCMR 
943. The first two of these cases involved a recount 
pertaining to the same election and the same constituency. 
Initially, the recount having taken place by an agency other 
than the Tribunal, the case was remanded by this Court for 
the Tribunal to undertake that exercise but when that 
happened and the proposed recount did take place, a 
number of votes, on account of duplicate markings, were 
rejected and the election result was reversed. On a repeat 
appeal to this Court it was found that the double markings 
hand, probably, occurred after the election had taken place 
and not at the time the poll was being undertaken. As a 
result, such discrepancies were discarded and the original 
result maintained. In the third case, the power of the 
Tribunal to undertake an examination of interpolations in 
the election record was recognized. What, therefore, has to 
be ensured, once powers under section 46(l) and (2) of the 
Act come to be exercised, is that the jurisdiction is not over-
stretched, that there is a prima facie case for a recount, that 
recount, if allowed, takes place scrupulously, without 
detracting from secrecy of the ballot and, finally that it can 
never be ignored that during the passage of time following 
upon the election and the recount a number of things may 
happen, having potential to throw up a picture that does 
not, in fact, correspond with the electoral process but 
depicts something of a later origin. To put it differently, the 
power, though broad and extensive, is to be used sparingly 
and with circumspection, the only object being to ensure a 
fair and lawful result of the electoral exercise. Nothing short 
of that would serve the object of the legislation.” 
  
 
21. 
 
Mr. Farough Nasim, learned counsel in support of his 
contention that during the course of recount it is revealed that a 
number of appellant’s votes were infested with double stamps, 
entailing their rejection and exclusion from recount, which cannot 
be ignored and held inconsequential merely for the reason that 
such specific allegation was either not pleaded earlier or was not 
evident from the material placed before the Tribunal for seeking 
the recount, relied upon the case of T.A. Ahammed Kabeer (supra). 
Indeed, in the said judgment it has been observed that the Court 
CA 194/15 
21
cannot shut it eyes on the result of recount on the ground that the 
result of recount is at variance with the pleading, however, such 
has been held in respect of a recount permitted by the Court 
within the well settled parameters of exercising jurisdiction in this 
regard. Whereas as discussed above in the first place the order of 
recount is not founded on the above criteria and secondly, the 
result thereof also does not show that the double stamping 
revealed thereby occurred at the time of casting and not after the 
result was announced.  
22. 
 
It was in view of the foregoing that through short order 
dated 12.11.2015, we allowed the appeal and set-aside the 
impugned judgment holding the appellant to be the returned 
candidate. 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
Judge 
 
 
 
 
 
 
 
 
 
 
Judge 
Islamabad the 
12th November 2015 
(Aamir Sh.) 
 
‘APPROVED FOR REPORTING’