IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
MR. JUSTICE TARIQ PARVEZ 
 
CIVIL APPEAL NO.301 OF 2014 
(Against the judgment dated 10.1.2014 
of the Election Tribunal, Sukkur passed 
in E.P.No.286/2013) 
 
 
Feroze Ahmed Jamali 
 
…Appellant(s) 
VERSUS 
Masroor Ahmad Khan Jatoi etc. 
 
…Respondent(s) 
 
For the appellant(s): 
Mr. Farooq H. Naek, Sr. ASC 
Raja Abdul Ghafoor, AOR 
 
 
For respondent No.1: 
Agha Faisal, ASC 
Mr. Tariq Aziz, AOR 
 
For rest of respondent(s) 
 
Ex-parte 
 
Date of hearing: 
11.01.2016 
… 
JUDGMENT  
 
 
MIAN SAQIB NISAR, J.- This appeal under Section 67(3) of 
the Representation of People Act, 1976 (Act) assails the judgment dated 
10.1.2014 passed by the learned Election Tribunal, Sukkur, whereby the 
Tribunal had dismissed the election petition of the appellant. 
2. 
 
The facts in relation to the instant appeal are:- the appellant 
and respondent No.1 (respondent) contested the general election of PS-23, 
Naushahro Feroze-V, District Naushahro Feroze, Sindh. The respondent, 
who was declared a returned candidate by the Election Commission of 
Pakistan (ECP) vide notification dated 22.5.2013, obtained 30,674 votes 
whereas the appellant (runner up) secured 29,063 votes, with the 
differential between the two being 1,611 votes. The appellant challenged 
this election primarily on the grounds (as transpires from the record and also 
apprised by the learned counsel for the appellant) that a large number of bogus votes 
C.A.301 of 2014.doc 
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were got cast by the respondent, the election was manipulated and 
procured by him through coercion and in connivance with the election 
staff; the Returning Officers and the election staff violated the provisions 
of Sections 33, 38 and 39 of the Act and thus the election has been 
materially affected which should be declared void. The election petition 
was contested by the respondent on merits, besides an objection was 
raised by him that the petition and the annexures are not verified in 
accordance with law and that the grounds stated therein (petition) are 
vague and general in nature. Be that as it may, the learned Tribunal 
framed certain issues which are reproduced as under:- 
 
“1. 
Whether the petition is not maintainable in terms of 
S. 54 and 55 of the Representation of Peoples Act, 
1976? 
 
2. 
Whether Respondent No.1 Returned Candidate 
committed illegal and corrupt practices in the 
election process by way of coercive methods, 
manipulating bogus votes, stuffing the ballot boxes 
with bogus ballot papers? 
 
3. 
Whether the Returning Officer and other election 
staff had acted in violation of provisions of the 
Representation of Peoples Act, 1976? 
 
4. 
Whether the Respondent No.1 stuff the bogus votes 
using all foul means and the ballot papers bears 
bogus thumb impressions on the counter-foils and 
such report is called from NADRA authorities by 
referring thumb impressions on the counter-foils, 
Pictorial Electoral list? 
 
5. 
Whether free, fair and transparent election is not 
held in the constituency PS-23 Naushero-Feroze-V? 
 
6. 
What should the order be?” 
 
The parties led their evidence and after conclusion of the trial the 
election petition was dismissed by the learned Tribunal while holding 
that the same as well as the annexures were not verified in accordance 
C.A.301 of 2014.doc 
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with law, that full particulars of corrupt and illegal practices were not 
mentioned in the petition, and that the appellant failed to establish the 
commission of corrupt and illegal practices. It may be pertinent to 
mention here that during the course of the proceedings before the 
learned Tribunal, the appellant had moved an application for the 
examination and verification of the counterfoils of 19 polling stations 
with the object to prove that certain votes cast were not as per the 
mandate of Section 33 (supra) and, therefore, such votes be excluded from 
the count. Pursuant to the above the learned Tribunal sought the 
verification of the counterfoils of the said polling stations from NADRA 
and as per its report 2,417 used counterfoils were declared as invalid, i.e. 
which either contained NIC numbers which were not issued by NADRA or 
which did not bear any NIC number whatsoever. Further, 61 used 
counterfoils were held to be without fingerprints/thumb impressions.  
3. 
 
Learned counsel for the appellant, while referring to the 
verification portion of the election petition, submitted that the petition 
was verified in accordance with the law. Reliance in this regard is placed 
on the case reported as Moulvi Abdul Qadir and others vs. Moulvi 
Abdul Wassay and others (2010 SCMR 1877). He further stated that 
pursuant to an application filed by the respondent under Section 63(a) 
read with Section 55(3) of the Act the learned Tribunal had put to rest 
the point of verification vide order dated 23.8.2013 which operated as res 
judicata when the learned Tribunal earlier gave its opinion on the same 
issue. With respect to the allegation of non-verification of annexures, 
learned counsel for the appellant drew our attention to the annexures 
and submitted that all 146 documents were attested on oath by an Oath 
Commissioner and have also been signed by the appellant himself. In 
this respect he further stated that these annexures were exhibited 
documents and no such objection vis-à-vis non-verification was raised at 
C.A.301 of 2014.doc 
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the time they were received in evidence. Regarding the learned Tribunal’s 
finding that there were only general allegations of corrupt and illegal 
practices in the election petition, learned counsel for the appellant while 
referring to paragraph 6 of the petition argued that the same contained 
specific and not general allegations. Coming to the evidence led by the 
appellant regarding proof of corrupt and illegal practices, learned counsel 
for the appellant stated that the testimony of the appellant himself and 
two of his polling agents, namely Abdul Latif and Moula Bux contained 
sufficient proof of the allegations of corrupt and illegal practices. Further, 
that the complaints made to the Returning Officers and Deputy 
Returning Officers also constituted sufficient evidence as they went un-
rebutted. Learned counsel for the appellant then argued in support of the 
NADRA report and stated that 2,417 and 61 votes were liable to be 
excluded from the election result and since the total number of excluded 
votes (2,478) stands greater than the differential of votes secured by the 
respondent and appellant, thus the election result would be materially 
affected, thereby bringing the case within the purview of Section 70 of 
the Act. He stated that this aspect of the matter has been overlooked by 
the learned Tribunal and no reasons were given by the learned Tribunal 
for rejecting such report. Finally it was also argued that five different 
counts/results had been issued subsequent to which the appellant’s 
application for recounting was accepted and recounting was ordered 
which reflected substantial differences between the number of votes in 
the consolidated result and the number of votes after the recount and 
this also brings the case within the mischief of Section 70 of the Act. 
4. 
 
In order to controvert the arguments of the learned counsel 
for the appellant, learned counsel for the respondent submitted that the 
NADRA report was only to the extent of verification of thumb impressions 
of 19 polling stations, and there were no ‘out of constituency’ votes which 
C.A.301 of 2014.doc 
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suggests that there was no bogus voting. With respect to 2,147 used 
counterfoils which had invalid NIC numbers, learned counsel submits 
that these are those counterfoils where the correct NIC was produced 
when the voter came to vote and an error was committed while writing 
the NIC number down on the counterfoils, and since this was due to a 
lapse by the election staff, the returned candidate should not be 
prejudiced by such error/lapse. About the verification of the election 
petition, learned counsel for the respondent when questioned concedes 
to the extent that there was no flaw in verification of specific paragraph 
numbers, however, to the extent that the election petition as a whole and 
the annexures were not verified in accordance with law, he submits that 
the petition should be dismissed. 
5. 
 
Heard. The key questions involved in this matter are:- first, 
whether the petition and the annexures thereto had been verified in 
accordance with law, if not what is the effect thereto; secondly, whether 
the appellant had been able to prove illegal and corrupt practices as per 
the law and such positive evidence was led which has not been taken 
into account by the learned Tribunal; and thirdly, what is the true import 
of the NADRA report and what is the effect thereto and whether in the 
light thereof the present election has been materially affected. Before 
moving on, we find it expedient to reproduce the relevant provisions (parts) 
of Sections 33, 55 and 70 of the Act which read as follows:- 
  
33. 
Voting procedure.—(1) Where an elector presents 
himself at the polling station to vote, the Presiding Officer 
shall issue a ballot paper to the elector after satisfying 
himself about the identity of the elector and shall, for that 
purpose, require the elector to produce his identity card 
issued under the National Database and Registration 
Authority Ordinance, 2000 (VIII of 2000)]. 
 
(2) 
Before a ballot paper is issued to an elector— 
 
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(a) ………………………………………………………… 
 
(b) ………………………………………………………… 
 
(c) ………………………………………………………… 
 
(cc) ……………………………………………………… 
 
(d) ………………………………………………………… 
 
(e) the Presiding Officer shall record on the 
counterfoil of the ballot paper the number of the 
elector on the electoral roll the number of National 
Identity Card of the elector, stamp it with the official 
mark, sign it and obtain on it the thumb impression 
of the elector. 
 
(3) 
A ballot paper shall not be issued to a person who— 
 
(a) fails or refuses to produce his identity card 
issued 
under 
the 
National 
Database 
and 
Registration Authority Ordinance, 2000(VIII of 
2000); 
 
(b) ………………………………………………………… 
 
(c) ………………………………………………………… 
 
(d) ………………………………………………………… 
 
(4) 
…………………………………………………………… 
 
(5) 
…………………………………………………………… 
 
(a) ………………………………………………………… 
 
(b) ………………………………………………………… 
 
(c) ………………………………………………………… 
 
(6) 
…………………………………………………………… 
 
(7) 
…………………………………………………………… 
 
55. Contents of petition.—(1) Every election petition shall 
contain— 
 
(a) A precise statement of the material facts on 
which the petitioner relies; 
 
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(b) full particulars of any corrupt or illegal practice 
or other illegal act alleged to have been committed, 
including as full a statement as possible of the 
names of the parties alleged to have committed such 
corrupt or illegal practice or illegal act and the date 
and place of the commission of such practice or act; 
and 
 
(c) the relief claimed by the petitioner. 
 
(2) 
A petitioner may claim as relief any of the following 
declarations, namely:— 
 
(a) that the election of the returned candidate is 
void; 
 
(b) that the election of the returned candidate is 
void and that the petitioner or some other person 
has been duly elected; or 
 
(c) that the election as a whole is void. 
 
(3) 
Every election petition and every schedule or annex 
to that petition shall be signed by the petitioner and verified 
in the manner laid down in the Code of Civil Procedure, 
1908 (Act V of 1908), for the verification of pleadings. 
 
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. 
 
6. 
 
For resolving the first question it may be stated that the 
learned Tribunal has non-suited the appellant on the reasoning that he 
has not specifically mentioned as to which paragraphs of the election 
petition are verified upon his own knowledge and which are upon 
information received and believed to be true, suffice it to say that this 
Court in the case reported as Sardarzada Zafar Abbas and others vs. 
Syed Hassan, Murtaza and others (PLD 2005 SC 600) has held such 
C.A.301 of 2014.doc 
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objection to not be very material. Although the Court in Zafar Abbas 
(supra) held that the validity of the verification shall depend on the facts 
of each case, but in the instant matter we do not find the so-called lapse 
indicated by the learned Tribunal to be of any material consequence, 
warranting dismissal of the election petition on this ground simpliciter. 
The case of Zafar Abbas (supra) has been endorsed in Moulvi Abdul 
Qadir (supra) and reliance by the learned counsel upon the latter in this 
regard is rightly placed and his case/plea quite aptly falls within the 
ratio of the law laid down therein. Besides we have examined the 
verification part of the election petition and we find that it complies with 
the provisions of Order VI Rule 15 of the Code of Civil Procedure, 1908 
(CPC) in letter and spirit. The reasons of the learned Tribunal and the 
argument of the respondent that it does not mention the date, day and 
place of the verification or the proper identification of the appellant, 
suffice it to say that at the bottom of the petition (in the verification portion), 
though not in typed form the date has been clearly written by hand. 
There is another stamp of the Oath Commissioner appearing on the left 
of the verification portion of the election petition which mentions the date 
as 26.6.2013 (albeit also written by hand). With respect to attestation, the Oath 
Commissioner in clear and unequivocal terms has stamped ‘on S.A. before 
me’ (i.e. on solemn affirmation before me), which clearly indicates that the 
appellant was duly present before the Oath Commissioner at the time of 
attestation and was administered oath. It is also spelt out from the Oath 
Commissioner’s stamp that the election petition was attested at Sukkur. 
As regards identification of the appellant, he has been duly identified by 
Mukesh Kumar, Advocate who has mentioned of knowing the appellant 
personally; thus we are of the candid view that in light of the law laid 
down by this Court in Lt.-Col. (Rtd.) Ghazanfar Abbas Shah vs. Mehr 
C.A.301 of 2014.doc 
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Khalid Mehmood Sargana and others (2015 SCMR 1585) there is no 
defect in the verification.  
7. 
 
Now coming to the annexures, we have examined all the 
documents which were appended by the appellant along with the election 
petition and they comprise of the notification of the ECP dated 
22.5.2013, statements of count, various provisional results, applications 
for recounting of votes and complaints made by the appellant regarding 
anomalies in the election process. Suffice it to say that these are not the 
documents propounding and setting out any independent or additional 
substantial grounds for challenging the election or furnishing at least 
better particulars of the allegations in the petition so as to give such 
documents a status of independent and substantial grounds of the 
petition itself challenging the election on the basis thereof (emphasis supplied) 
which can be said to be the annexures requiring verification in terms of 
the law laid down by this Court in the case reported as S. M. Ayub vs. 
(1) Syed Yusaf Shah, (2) Major Tilla Khan Sadozai and (3) Election 
Tribunal, West Pakistan, Lahore (PLD 1967 SC 486) the relevant 
paragraph of which is reproduced below:- 
 
“…By “schedule or annex” mentioned in subsection (3) of 
section 59 of the Act, is apparently meant such a schedule 
and annexure as either makes additional allegations of a 
substantive character against the opposite-party, or at least 
furnishes better particulars of the allegations made in the 
petition, so as to give them the status of substantive grounds 
of the petition itself. The documents under consideration in 
the instant case, however, are not of that character and, in 
our opinion, they should not be understood to fall within the 
meaning of “schedule or annex”, mentioned in paragraph 
10 of the petition and not as substantive grounds or 
expansion of those grounds. We are, consequently, disposed 
to hold that the Tribunal was right in finding that the 
failure of the petitioner to append his signatures or the 
verification, required for schedules and annexures to the 
petition, was not fatal to the prosecution, of the petition.” 
 
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Thus only those annexures require verification which fall within the 
category mentioned above, but we find that this is not the situation in 
the instant matter.  
  
An additional aspect of this issue is that the respondent through 
an application sought summary disposal of the election petition filed by 
the appellant and vide order dated 23.8.2013 the learned Tribunal 
dismissed this application holding that the election petition and the 
annexures were duly verified. In this regard, the relevant part of the said 
order is reproduced below:- 
 
“Perusal of the memo of Petition transpires that specific 
allegations of illegal and corrupt practices are leveled in 
the Petition at relevant Polling Stations on the day of 
election and the Petition is duly signed by the Petitioner 
Feroze Jamali and same is attested as on S.A. before me by 
Mumtaz Ali Soomro Oath Commissioner Sukker on 26-06-
2013. Perusal of the annexures filed with the Petitioner also 
transpire that same are duly signed by Petitioner Feroze 
Jamali and attested and verified by Mumtaz Ali Soomro 
Oath Commissioner Sukkur as such the provisions of Sec: 
55 (3) of the Representation of People Act, 1976 are duly 
complied with and I do not filed any merits in the 
application and dismiss the same.” 
 
Having already decided the issue of verification vide the abovementioned 
order, it was not open for the learned Tribunal to reverse its own order, 
when that was not being done in the exercise of any power of review (if 
review was permissible) and such order operated as a res judicata inter se the 
parties with respect to the said issue having been finally and conclusively 
settled by the learned Tribunal itself. Further even if the principle of res 
judicata 
is 
considered 
not 
stricto 
sensu 
applicable, 
it 
is 
not 
comprehended that when the learned Tribunal earlier took up the firm 
view that the election petition and the annexures are duly verified but 
without meeting the reasons assigned in the previous order subsequently 
changed its opinion and held otherwise, without even adverting to the 
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said order. Be that as it may, in light of the above we are of the candid 
view that the election petition and the annexures both have been duly 
verified in accordance with law and the finding of the learned Tribunal in 
this regard is unfounded.  
8. 
 
The next issue which requires deliberation is whether the 
averments of corrupt and illegal practices made in the election petition 
were vague and general in nature warranting dismissal, suffice it to say 
that we have examined paragraph No.6 of the election petition and are of 
the opinion that the appellant has set out in clear and detailed terms the 
grounds on which he had challenged the election of the respondent. In 
light of grounds a. to l. in paragraph No.6 of the election petition which 
mention with quite a precision, the irregularities, illegalities and corrupt 
practices with regard to the conduct of the election, we find that the 
contents of such grounds cannot be considered or held to be vague in 
any manner whatsoever.  
9. 
 
As far as the question as to whether the appellant was able 
to prove his grounds of challenge to the election through evidence, it may 
be mentioned that two witnesses namely Abdul Latif (PW-2) and Moula 
Bux (PW-3), polling agents of the appellant, were examined. The 
statements of both these witnesses when read in the context of their 
cross-examination reveal that they both did not have any personal 
knowledge of the allegations of bogus voting etc. which is not sufficient 
proof of the commission of corrupt and illegal practices by the 
respondent. Besides no other oral evidence has been led by the appellant 
except his own statement and from such statement too, which is hearsay 
in nature we are not convinced that the allegations of corrupt and illegal 
practices and illegalities and irregularities in the conduct of election were 
proved through positive evidence which is the requirement of the law in 
election matters as laid down by this Court in numerous cases such as 
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Muhammad Saeed and 4 others vs. (1) Election Petitions Tribunal, 
West Pakistan, (2) Mehr Muhammad Arif Khan,(3) Ghulam Haider 
and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 
91; Mian Jamal Shah vs. (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 vs. S. M. Ayub and 2 others (PLD 
1973 SC 160); Syed Saeed Hassan vs. Pyar Ali and 7 others (PLD 
1976 SC 6); Raja Muhammad Afzal vs. Ch. Muhammad Altaf Hussain 
and others (1986 SCMR 1736); Muhammad Siddique Baloch vs. 
Jehangir Khan Tareen & others (C.A. No.307-L of 2015) and Syed 
Hafeezuddin vs. Abdul Razzaq & others (C.A. No.1086 of 2014). 
Therefore we opine that the findings of the learned Tribunal in this 
regard are apt and are upheld by us.  
10. 
 
As regards the question and the effect of the NADRA report it 
seems expedient to reproduce the relevant part of the report:- 
 
 
 
Invalid CNIC on Counterfoils 
15. 
There were 2,147 used counterfoils that had invalid 
NIC numbers (NIC numbers which NADRA has 
never issued) written on them. This also includes 
such counterfoils that do not have CNIC mentioned 
over it. This was observed mainly in polling station 
# 24 (340 votes) and at polling station # 40 (279 
votes). 
 
Counterfoils without fingerprints 
19. 
61 used conuterfoils were found without having 
fingerprints on them. These counterfoils were mainly used 
at polling station #37 (8 votes) and at polling station #27 (7 
votes). 
 
Summary: 
29. 
Summary report is described below: 
 
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We find it useful to mention at the very outset that it was permissible for 
the learned Tribunal to seek the examination/verification of the election 
material from an expert, i.e. NADRA, in order to find out if the provisions 
of the Act and the rules framed thereunder have not been complied with 
and then to determine itself whether such non-compliance materially 
affects the result of the election. In this context, as has been mentioned 
above, the material of 19 polling stations was sent to NADRA pursuant to 
the order passed by the learned Tribunal dated 23.8.2013. Before 
proceeding further with the matter, we would like to highlight that the 
learned Election Tribunal has given no reason to reject the report of 
NADRA, but according to the report, the summary of which is 
reproduced above, it is clear and unmistakable that 2,147 used 
counterfoils out of these polling stations had invalid NIC numbers 
(meaning thereby that the said used counterfoils either contained NIC numbers that were never 
issued by NADRA or had no mention of NIC number thereupon). The mention of such 
number is the mandatory requirement of the provisions of Section 33 of 
the Act. As regards 61 used counterfoils the report is that there were no 
fingerprints/thumb impressions on them, again this is the non-
compliance of Section 33 thus the total votes which from the report of 
S. No 
Description 
Count of 
Votes 
1 
Votes polled in polling stations whose 
election material was received by NADRA 
12,174 
2 
Invalid NIC number mentioned on used 
counterfoils, this also includes such 
counterfoils that do not have CNIC 
mentioned over it. 
2,147 
3 
Out of Constituency Votes 
0 
4 
Duplicate Voters on Counterfoils 
0 
5 
Used counterfoils without fingerprints 
61 
6 
Fingerprints successfully authenticated on 
used counterfoils and ER 
3,121 
7 
Fingerprints on used counterfoils and ER 
failing authentication 
0 
8 
Fingerprints of bad quality affixed on used 
counterfoils 
6,845 
C.A.301 of 2014.doc 
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NADRA were not issued as per the used counterfoils comes to 2,208 and 
thus the ballot papers corresponding thereto were liable to be excluded. 
With regard to the argument of the learned counsel for the respondent 
that the 2,147 used counterfoils which had invalid NIC numbers were 
those counterfoils where the correct NIC was produced when the voter 
came to vote and an error was committed while writing the NIC number 
down, and since this was due to a lapse by the election staff, the benefit 
or prejudice of such error in writing of the NIC number on the counterfoil 
should not go to any candidate or in other words the returned candidate 
should not suffer for the omission and mistake of the election staff, 
suffice it to say that we cannot say with utmost certainty whether the 
eligible voter came and brought his correct NIC but the number was 
written incorrectly, or that an imposter came with a bogus NIC. The fact 
of the matter stands that a voter has to be properly identified and his 
correct NIC has to be noted on the counterfoils, which is required by the 
law, and the above has not been done, which is the non-compliance of 
the provisions of the Act. According to the provisions of Section 70 of the 
Act, the result of the election can be declared to be void for non-
compliance of the provisions of the Act and the rules made thereunder if 
the result has been materially affected. Obviously the object of requiring 
affixation of thumb impressions and to record NIC numbers on the 
counterfoils is to ensure that the correct voter to whom a ballot paper 
has been issued casts his vote and subsequently to provide a reference 
point to find out if any bogus votes have been cast in the election. 
Therefore in this scenario since the votes to be excluded, i.e. 2,208 (2,147 
plus 61 votes) are greater in number than the differential of 1,611 votes 
between the number of votes secured by the appellant and respondent, 
this would materially affect the result of the election, thereby bringing 
the case within the purview of the provisions of Section 70 of the Act, 
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warranting declaration of the election to be void as a whole. This very 
important and conspicuous aspect of the matter has not been attended 
to by the learned Tribunal and the impugned judgment is flawed in this 
respect.    
11. 
 
In view of the above, by allowing this appeal and setting 
aside the impugned judgment, we accept the election petition filed by the 
appellant and declare the elections of PS-23, Naushahro Feroze-V as 
void. The ECP is required to hold fresh elections in the said constituency 
in accordance with law. No order as to costs. 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Announced in open Court 
on 26.01.2016 at Islamabad 
Approved For Reporting 
Ghulam Raza/* 
 
 
 
(JUDGE)