IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
CIVIL APPEAL NO.1042 OF 2018 
(Against the order dated 10.8.2018 of the 
Election Commission of Pakistan, Islamabad 
passed in Case No.3(1)/2016-GA) 
 
 
Shaukat Ali 
 
…Appellant(s) 
VERSUS 
E.C.P. through its Secretary, Islamabad & others 
 
…Respondent(s) 
 
For the appellant(s): 
Mr. Gohar Ali Khan, ASC 
 
 
For ECP: 
Mr. M. Arshad, D.G. Law, ECP 
 
 
On Court’s notice: 
Mr. Sohail Mahmood, DAG 
 
 
Amicus Curiae: 
Mr. Bilal Hassan Minto, ASC 
 
 
For private respondent(s): 
Not represented 
 
 
Date of hearing: 
26.9.2018 
 
JUDGMENT 
 
 
MIAN SAQIB NISAR, CJ.- The Appellant contested General 
Elections held on 25th May 2018 on the ticket of Pakistan Tehreek-e-
Insaaf (PTI) from PK-23 Shangla-1 (District Shangla) KPK. There were 
135 polling stations in that constituency according to the final polling 
scheme notified by the Election Commission of Pakistan (ECP) for 
200,525 registered voters---113,827 male, and 86,698 females. The 
turnout in the Elections was approximately 34.82% as the count 
provisionally compiled on 26-07-2018 showed that a total of 69,827 votes 
were cast. The appellant was shown as having secured the highest votes 
i.e. 17399. 
Civil Appeal No.1042 of 2018 
-: 2 :-
2. 
 
An application for recount was submitted to the ECP by 
Respondent No.12 (Muhammad Rishad Khan) who had secured 15533 
votes. The application was allowed and after recount the final 
consolidated result on Form.49 was issued on 29-07-18 showing 17712 
as the Petitioner’s votes and 16007 as the Respondent’s. A further 
application was then made to the ECP by Mr. Wali Khan, brother of 
Respondent No.12, alleging that women had been restrained from casting 
their votes which had resulted in less than 10% turn out for women (i.e. 
5.02%) and therefore the poll being null and void notification declaring 
the Appellant as the returned candidate should not be issued. After 
hearing the contesting parties, the ECP allowed the application on 10-08-
18 and directed a re-poll in the whole constituency under Section 9(1) of 
the Election Act 2017. This appeal was filed against the said order of the 
ECP dated 10-08-18 detailed reasons for which were filed in this court at 
a later stage through CMA- No: 7708 of 2018. 
3. 
 
On 04-09-2018 when this appeal came up for hearing, Syed 
Iftikhar Gillani Sr. ASC appearing for the Appellant contended that 
Section 9(1) of the Act was ultra vires Articles 8(2) (c) and 25 (2) of the 
Constitution. When confronted that this ground was not taken before the 
ECP or in the memo of appeal he urged that since the ground related to 
the vires of a statutory provision and interpretation of the Constitution, it 
could be raised at any time. 
4. 
 
Notices were issued to the ECP and the Attorney General for 
Pakistan in terms of Order XXVIIA Rule 1 of the Code of Civil Procedure 
and Mr Bilal Hasan Minto, ASC was appointed amicus curiae. No order 
staying the elections was passed and the appeals were later fixed for 
today i.e. 26-09-18.   
Civil Appeal No.1042 of 2018 
-: 3 :-
5. 
 
Mr. Gohar Ali Khan ASC, appearing for the Appellant has 
submitted that since re-election has already taken place in PK 23 
Shangla 1 and the Appellant has been returned again, this time with 
women voter turnout of 13.75%, therefore the appeal has become 
infructuous.  
 
Be that as it may, counsel for the Appellant and the Amicus Curiae 
were asked to make their submissions on the questions of law involved 
as we consider it appropriate to settle the issue regarding the vires and 
interpretation of Section 9(1) ibid.  
6. 
 
Counsel for the Appellant has raised two arguments. Firstly, 
that Section 9(1) read with its explanation permitting re-poll when 
women turnout is less than 10 % offends Article 4 (2) (c) which 
guarantees everyone equal protection of the law and also Article 25 (2) 
which states that there shall be no discrimination on the basis of sex. 
Secondly, he submitted that Section 9 (1) which permits the ECP to order 
re-poll if women turn out is less than 10 % in a constituency may result 
in the election being held again and again ad infinitum which makes the 
provision absurd. 
7. 
 
Learned amicus curiae submitted the view that the general 
clause regarding equal protection contained in Article 4 is to be read in 
light of and in consonance with Article 25 which is the specific article 
dealing with equal treatment and safeguards against discrimination. He 
pointed out that sub-article (3) of Article 25 clearly allows for positive 
discrimination in favour of women and that taking of measures in an 
effort to ensure adequate participation of women in elections would be 
covered by sub-article (3) ibid and therefore section 9 (1) is intra vires.  
8. 
 
Regarding the second contention of the counsel for the 
Appellants, the amicus curiae stated that in the context of low turnout of 
Civil Appeal No.1042 of 2018 
-: 4 :-
women, re polling may only be ordered under Section 9 (1) when from 
facts apparent on record and after inquiry---if deemed necessary---the 
ECP concludes that there existed an agreement restraining women from 
voting and because of that agreement the results of poll (at specific 
polling stations or the entire constituency) have been materially affected. 
He further submitted that the explanation clause to Section 9(1) states 
that the ECP may presume that women voters were prevented from 
casting their votes through an agreement only if the female turnout is 
less than 10 % in the entire constituency and the use of the word “may” 
as opposed to “shall” implies that the ECP would have to provide reasons 
for making the a presumption, i.e reasons in addition to the turnout 
being less than 10 %. He submitted that, in the context of voting by 
women, what emerges from reading the entire section is, that if it is 
found on the face of record or from an inquiry that women have been 
restrained through an agreement materially affecting the result of a poll 
at certain polling stations or the entire constituency; OR, if valid reasons 
exist for making a presumption under the explanation clause when 
women turn out is less than 10% in the constituency; then, it is of no 
consequence that polling in specific polling stations or the entire 
constituency will have to be held again, or multiple times---as long as the 
provisions of Section 9 (1) are attracted. Section 9 (1) is meant, inter alia, 
to safeguard or enable the exercise of a constitutional right by women 
and the inconvenience of multiple re-polls cannot be a counter veiling 
consideration especially when sub article (3) of Article 25 specifically 
mandates such a safeguard. In regard to the validity of positive and 
beneficial provisions favouring women he referred to Musarrat Uzma 
Usmani Vs. Government of Punjab (PLD 1987 Lahore 178) and 
Civil Appeal No.1042 of 2018 
-: 5 :-
Shireen Munir and others Vs. Government of Punjab through 
Secretary Health, Lahore (PLD 1990 SC 295). 
9. 
 
Learned Amicus Curiae, submitted, lastly that in the present 
case, the reasons provided by the ECP in para 5 of its order were that in 
the sister constituency of Shangla 2 in the same district with similar 
cultural background women turn out had been 17.28% and that this was 
sufficient reason to presume that women in Shangla 1 had be restrained 
through an agreement materially affecting the result. In the present case, 
the reasons given by the ECP in its order stood vindicated because in the 
re-poll which have already been held, the women turn out increased to 
13.75%. 
10. 
 
Having considered the above submissions, we are inclined to 
generally agree with the submissions made by the learned amicus curiae. 
It is apparent from Section 9(1) of the Election Act that it affords women 
special treatment stating as follows:  
 
“9. Power of the Commission to declare a poll 
void.—(1) Notwithstanding anything contained in 
this Act, if, from facts apparent on the face of the 
record and after such enquiry as it may deem 
necessary, the Commission is satisfied that by 
reason of grave illegalities or such violations of 
the provisions of this Act or the Rules as have 
materially affected the result of the poll at one or 
more polling stations or in the whole constituency 
including 
implementation 
of 
an 
agreement 
restraining women from casting their votes, it 
shall make a declaration accordingly and call 
upon the voters in the concerned polling station or 
stations or in the whole constituency as the case 
may be, to recast their votes in the manner 
provided for bye-elections. 
Civil Appeal No.1042 of 2018 
-: 6 :-
 
Explanation. —If the turnout of women voters is 
less than ten percent of the total votes polled in a 
constituency, the Commission may presume that 
the women voters have been restrained through 
an agreement from casting their votes and may 
declare, polling at one or more polling stations or 
election in the whole constituency, void.” 
 
Clearly, it is a provision consciously designed for a society in which 
several practices depriving women of their legitimate legal rights are 
commonplace. This is also recognized by the Constitution, Article 25 
whereof provides as follows:  
 
“25.  Equality of citizens. — (1) All citizens are 
equal before law and are entitled to equal 
protection of law. 
 
(2)  There shall be no discrimination on the basis 
of sex. 
 
(3)  Nothing in this Article shall prevent the State 
from making any special provision for the 
protection of women and children.” 
 
Clause (3) unequivocally allows for special provisions to be made for the 
benefit of women as an exception to the general rule of equal treatment 
contained in this article (or in Article 4). We do not think that this clear 
provision admits of any debate as regards the permissibility of positive 
discrimination in favour of women but for authority, reference may be 
made to this court’s decision in Shirin Munir’s case (PLD 1990 SC 295) 
which held that not only were women entitled to compete on equal merit 
Civil Appeal No.1042 of 2018 
-: 7 :-
with boys in co-educational medical colleges on all seats (as opposed to 
reserving only a few seats for women which practice was under challenge 
in this case) but that it was also perfectly permissible under Article 25 (3) 
to have medical colleges admitting only women.  
11. 
 
In the present case the right involved is a very precious right 
guaranteed directly by the Constitution i.e. the right to vote; and we find 
that the safeguards provided in respect of women by Section 9 (1) are 
permissible under Article 25 (3) and hence, intra vires. 
12. 
 
As regards the Appellant’s argument that one of the 
consequences of giving effect to the provisions of Section 9 (1) regarding 
women’s turnout may result in infinite rounds of elections we feel that 
that is only a theoretical possibility. It is a theoretical possibility just like 
one that may arise by virtue of Article 223 (3) of the Constitution which 
permits a person to contest elections from multiple constituencies, in 
fact, from all 266 seats, and if he/she wins from all 266 seats a 
reelection on 265 of them will automatically have to be held again. Then, 
in the next round, if another person does exactly the same i.e. contests 
from all 265 seats, the whole exercise will have to be repeated for another 
264 seats and so on and so forth. In the case of Section 9(1) of the 
Election Act the possibility of infinite rounds of elections is actually far 
less because this provision does not permit automatic re-poll at all. The 
main section requires re-poll, on satisfaction based on facts apparent on 
record or an inquiry—if necessary---that women were restrained through 
an agreement which materially affected the result of the election whereas 
the explanation permits the making of a presumption that women were 
restrained through an agreement if the turnout of women in the entire 
constituency is less than 10 %. The re-poll under the explanation is not 
automatic and reasons have to be provided by the ECP which, in the 
Civil Appeal No.1042 of 2018 
-: 8 :-
present case, were not only provided, but were also vindicated in the re 
poll when women turnout rose from 5.02% to 13.75% which also seems 
to suggest that the spectre of a possible re-poll may actually act as a 
deterrent for the practice of restraining women from participation in 
polls. Of course, if the turnout had again been less than 10 %, the ECP 
would have been entitled to make the said presumption again but would 
have had to support it by fresh reasons.  
13. 
 
It is clear then, that each time the ECP invokes its power 
under the explanation it will have to provide reasons for its order which, 
in any case, would be justiciable before the court of competent 
jurisdiction. 
14. 
 
With the above observations, this appeal is disposed of. 
 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
 
 
 
Islamabad, the 
26th of September, 2018 
Not Approved For Reporting 
 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Waqas Naseer/*