IN THE SUPREME COURT OF PAKISTAN 
[Original Jurisdiction] 
 
 
 
 
 
 
 
PRESENT:  
 
MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, CJ  
MR. JUSTICE KHILJI ARIF HUSSAIN  
MR. JUSTICE TARIQ PARVEZ  
 
 
Constitution Petition NO.87 of 2011  
 
 
[Constitution 
Petition 
challenging 
election 
campaigns expenses regulation case]  
 
 
Workers Party Pakistan through Mr. Akhtar Hussain Advocate, General 
Secretary, 5 McLeod Road, Lahore & 6 others  
 
 
 
 
 
  
 
 
 
… 
PETITIONERS 
 
VERSUS  
 
Federation of Pakistan & 2 others   
 
…  
RESPONDENTS 
 
 
 
For the petitioners 
 
: 
Mr. Abid Hassan Minto, Sr. ASC.  
 
 
 
 
 
 
Mr. Bilal Hassan Minto, ASC.  
 
 
 
 
 
 
Mr. Mehmood A. Sheikh, AOR.  
For Election Commission 
: 
Mr. Dil Muhammad Alizai, DAG.  
of Pakistan   
 
 
 
Syed Safdar Hussain Shah, AOR.  
 
 
 
 
 
 
Syed Sher Afgan, DG (Elections) 
 
 
 
 
 
 
Mr. M. Nawaz, Director.  
For ANP 
 
 
 
: 
Mr. Khalid Khan, ASC.  
For MQM 
 
 
 
: 
Dr. Farogh Naseem, Sr. ASC.   
For PML (Q) 
 
 
: 
Dr. Khalid Ranjha, Sr. ASC.  
 
 
 
 
 
 
Syed Nayab H. Gardezi, ASC.   
For PML (N)  
 
 
: 
Mr. M. Rafique Rajwana, ASC.  
 
 
 
 
 
 
Mr. Naseer Ahmed Bhutta, ASC.  
For PTI  
 
 
 
: 
Mr. Hamid Khan, Sr. ASC.  
 
 
 
 
 
 
Mr. Waqar Rana, ASC.  
 
 
 
 
 
 
Mr. M.S. Khattak, AOR.  
For JI  
 
 
 
: 
Mr. Taufique Asif, ASC.  
For APP 
 
 
 
: 
Mr. Salman Akram Raja, ASC.  
Const. P. No.87/2011 
2 
assisted by M/s Malik Ghulam Sabir, 
Barrister Sahar Asif and Malik Ahsan 
Mehmood, Advocates.  
 
For SUP 
 
 
 
: 
Mr. Abdul Wahab Baloch, ASC.  
 
 
 
 
 
 
Syed Jalal Shah, ASC.  
 
 
 
 
 
 
Raja Abdul Ghafoor, AOR.  
Other Political Parties   
: 
Nemo.  
On Court notice  
 
: 
Mr. Amir Ahmed Ali, DC, Ibd.  
 
 
 
 
 
 
Syed Muzaffar Ali, Manager (L)  
 
 
 
 
 
 
NADRA 
 
 
 
 
 
Dates of hearing   
 
: 
9, 10, 11, 12, 16, 17, 18, 19 &  
 
 
 
 
 
 
20th April, 2012  
…  
 
 
J U D G M E N T 
 
 
 
IFTIKHAR MUHAMMAD CHAUDHRY, CJ – The titled 
petition has been instituted under Article 184(3) of the Constitution of 
the Islamic Republic of Pakistan on behalf of different segments of the 
society, 
which 
include, 
inter 
alia, 
certain 
political 
parties, 
representatives of the civil society and academicians with the following 
prayers: -   
(a) 
Declaration that the prevailing electioneering practices 
involving wealth, power and influence are against the 
mandate of the Constitution regarding free, fair, just and 
honest elections on a level playing field and need to be 
remedied.  
(b) 
Declaration that there cannot be a true and honest 
implementation 
of 
Article 
218(3) 
if 
the 
current 
electioneering practices are not remedied in accordance 
with the mandate of the constitution.  
(c) 
Declaration that implementation of the mandate of the 
Constitution for choosing true representatives of the 
people is the function of the Election Commission as 
mandated by Article 218(3) and that the Election 
Commission has the power, under the Constitution and the 
law to do all that is necessary in this regard including the 
powers of making rules, issuing orders and giving 
directions and that the powers of the Election Commission 
Const. P. No.87/2011 
3 
extend even to stopping an election if it is satisfied that 
due to the violation of the law including Section 49 it will 
not be possible to hold elections under the mandate of 
Article 218(3).  
(d) 
Declare that the Constitution mandates compulsory voting.  
(e) 
Declaration that the rule making powers as contained in 
section 107 of Representation of People Act, 1976 and 
section 9E of the Election Commission Order, 2002 are to 
be exercised by the Election Commission alone and the 
said sections are ultra vires to the extent that they require 
the approval of the President.  
(f) 
Declaration that sections 41 and 71 regarding drawing of 
lots between candidates with equal votes are ultra vires 
the constitutional mandate and that section 20 providing 
for the election of an uncontested candidate without 
enabling the voters to reject that candidate at polls is also 
ultra vires the mandate of the Constitution requiring that 
true representatives of the people may be elected/chosen.  
(g) 
Declaration that Section 83A (3) of the RPA in that it 
impliedly permits use of megaphones, loudspeakers, etc., 
on election day is ultra vires the mandate of the 
Constitution regarding free and fair elections and a level 
playing filed.  
(h) 
Direction to the Election Commission to make rules and do 
other necessary acts for implementation of the principles 
and mandate of the Constitution as determined by this 
Court and the parameters and guidelines set by this Court, 
in particular regarding: -  
(i) 
Matters relating to election expenses.  
(ii) 
Maintenance 
of 
separate 
bank 
accounts 
by 
candidates and political parties with proper audit of 
expenses incurred therefrom. 
(iii) 
Regulation of election campaign activities in the 
context of expenses and in the light of the principles 
laid down by this Court as regards the purpose of 
elections and the purpose of an election campaign. 
(iv) 
Appointment of Election Tribunals and prescription of 
their procedure in order to ensure that election 
disputes are decided expeditiously (Sections 57 and 
62 of RPA). 
(v) 
Complete ban on all modes of canvassing in the 48 
hour period prior to polls including ban on election 
Const. P. No.87/2011 
4 
camps of candidates as well as removal of all 
hoardings, posters and banners. 
(vi) 
Ban on private transport on election day except in 
respect of the disabled with prior permission and 
through a procedure devised for this purpose and 
also 
to 
requisition 
government 
transport, 
if 
necessary, for this purpose as well as increase in the 
number of polling under a rational formula sections 
to enable voters to walk to polls. 
(vii) Supply of voting information to voters through the 
assistance of NADRA. 
(viii) Take steps to implement Electronic Balloting (Para 
31 of the Petition) 
(ix) 
Improve voter awareness especially in regard to 
confidentiality and the procedure of voting (Para 33 
of the Petition) 
(x) 
Insistence by the Commission for proper disclosure 
regarding compliance of Section 8 of the Political 
Parties Order 2002.) 
 
(j) 
Declaration that an election that does not provide the right 
to choose “None of the above” (NOTA) candidates is ultra 
vires, inter alia, sections 17, 51 (6), 106 (3) and 218 (3). 
Or in the alternative, hold as per prayers ‘d’ and ‘e’ in 
C.P.87 of 2011. 
(k) 
Direction 
that 
the 
Election 
Commission 
may 
take 
appropriate steps by framing rules, etc., to enable voters 
to use the NOTA option. 
(l) 
Recommendations regarding following legislative changes:-  
(i) 
Provision 
of 
procedure 
to 
implement 
the 
constitutionally 
mandated 
system 
of 
minimum 
threshold and 2nd Round/Run Off as opposed to the 
First Past the Post principle.  
(ii) 
Provision of consequences for not voting in elections.  
(iii) 
Provision of criteria for fixing a ceiling for expenses 
(Section 49 RPA).  
(iv) 
To review and enhance punishments for offences 
contained in the RPA in order for them to act as 
deterrents. 
 
2.  
 
After a preliminary hearing, notices were issued to the 
respondents to file replies to the petition. Accordingly, respondents No. 
1 to 3, namely, Federation of Pakistan, Ministry of Law & Justice and 
the Election Commission of Pakistan filed their replies. Subsequently, 
vide order dated 13.02.2012, Awami National Party, Balochistan 
National Party, Jamhoori Watan Party, Labour Party Pakistan, Markazi 
Const. P. No.87/2011 
5 
Jamaat Ahle Hadieth (Zubair), Mohajir Qaumi Movement Pakistan, 
Muttahida Qaumi Movement Pakistan, Pakistan Awami tehreek, 
Pakistan Muslim League (N), Pashtoonkhwa Milli Awami Party, Pakistan 
Peoples Party (Shaheed Bhutto), Pakistan Peoples Party (Sherpao), 
Pakistan Peoples Party Parliamentarians, Pakistan Tehreek-e-Insaf, 
Jamiat Ulama-e-Islam (F), Jamiat Ulema-e-Pakistan (N), Jamat-e-
Islami Pakistan, Markazi Jamiat Ahl-Hadith (Sajid Mir), Pakistan 
Muslim League (Q), Pakistan Muslim League (J), Pakistan Muslim 
League (F), Pakistan Muslim League (Z), National Party, Sindh United 
Party, Awami Party Pakistan and Sindh Taraqi Pasand Party were 
ordered to be impleaded as parties subject to all just exceptions. In 
pursuance of the said order, Awami National Party [ANP], Muttahida 
Qaumi Movement Pakistan [MQM], Pakistan Muslim League (N) 
[PML(N)], Pakistan Tehreek-e-Insaf [PTI], Jamat-e-Islami Pakistan 
[JIP], Pakistan Muslim League (Q) [PML(Q)], Sindh United Party [SUP] 
and Awami Party Pakistan [APP] appeared and filed concise 
statements. While the respondents concurred in principle with the 
petitioners’ concerns, they differed in their approach to the issues 
highlighted by the petitioners.  
 
3.  
  
Mr. Abid Hassan Minto, Sr. ASC appeared on behalf of the 
petitioners and argued that existing practices and processes of 
electioneering and campaigning deter the ordinary citizens from 
partaking in the political process on account of massive use of wealth 
by larger and wealthier political parties, and violate their fundamental 
rights enshrined in Articles 17 and 25 of the Constitution. The learned 
counsel has placed reliance on the judgments of this Court in Ms. 
Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) and Mian 
Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) 
Const. P. No.87/2011 
6 
and contended that their right to form a political party includes the 
right to participate in free and fair election and to form government if 
such party is successful because ‘participation’ in the electioneering 
process necessarily implies that “every person and every group in 
society can genuinely take part in the process of elections, as voter 
and 
candidate, 
without 
constraint 
coercion 
and 
subjugation”. 
Consequently, any unconstitutional curtailment of their right to 
participate, and to form government, is tantamount to an abridgement 
of their right under Article 17(2) of the Constitution. Secondly, a 
combined reading of Article 17(2) and Article 25 of the Constitution 
mandates a ‘level playing field’ for electioneering purposes. It is 
argued that the impugned practices, and broadly speaking, the 
existing political culture further negates Article 51(6)(a), which 
mandates that members shall be elected by a ‘free’, and ‘fair’ vote ‘in 
accordance with the law’ because these practices do not permit the 
vote cast to be a ‘free vote’, as mandated by Article 106(3)(a) either. 
The petitioners have identified following specific practices that they 
believe violate the Constitution and Representation of Peoples Act, 
1976 (hereinafter referred to as ‘ROPA): -   
(i) 
Jalsa or political Rally and Jaloos or procession 
(ii) 
Banners/posters/billboards/stickers  
(iii) 
Use of loudspeakers  
(iv) 
Car rallies Pamphleteering  
(v) 
Setting up Camps  
(vi) 
Newspaper, TV or radio advertisements, press 
coverage and programs & surveys  
 
These practices, according to the learned counsel, are carried out in 
blatant disregard of provisions of the ROPA, namely, section 48, 49 
and 84. He has concurrently submitted that certain provisions of ROPA 
create a political arena that is structurally designed to guarantee the 
Const. P. No.87/2011 
7 
success of only the wealthier political parties and, by necessary 
implication, destroy the petitioners’ prospects of success in the 
election.  
 
4. 
 
The learned counsel for the petitioners has challenged the 
vires of section 49 of ROPA on the ground that the permissible ceiling 
of election expenses, i.e.  1.5 million for a National Assembly seat and 
1 million for a Provincial Assembly seat creates an uneven playing field 
between moneyed people vis-à-vis persons with scant resources with 
the result that the latter are alienated from the political system and 
deprived of their right to participate in the governance of the country. 
The learned counsel has submitted that most parties and candidates 
fail to observe the said ceiling and incur election expenses far above 
the prescribed limit. He has further argued in favour of a broader 
interpretation of section 48 of ROPA so as to construe the word 
‘election’ to begin from the time that the President fixes a date for 
election. To support such a reading, he has argued that the rule that 
the relevant time period ‘for the purposes of elections’ commences 
from the date of notification of the elections, as laid out in the Javaid 
Hashmi’s case (PLD 1989 SC 396) is not applicable to ‘campaign 
finance’ activities. It is further argued that the word ‘before’ mentioned 
in the section, ought to be read to include the period before the 
commencement of the election. This, according to the learned counsel, 
would have the effect of including those electioneering expenses that 
would have otherwise escaped the ceiling expense prescribed by 
section 49. Since ROPA does not define the word ‘person’, it is argued 
that it ought to be defined to include political party. It has been 
submitted that such a reading is in consonance with the spirit of the 
provision, which is to regulate and restrict election expenditure. 
Const. P. No.87/2011 
8 
Furthermore, such a reading of this provision would also ensure that 
candidates do not use their parties as a tool to exploit the spirit of this 
provision and that the election meets the requirements of Article 
218(3) of the Constitution of Pakistan.  
 
5.  
 
In the same line, the learned counsel for the petitioners 
argued that the punishment for violating section 49, should be levied 
against the candidate even when the party, and not the candidate, has 
exceeded the prescribed ceiling. This, it is argued, is possible if the 
phrase ‘consent or connivance of that candidate’ in the section is 
interpreted to mean that the candidate connived or consented to a 
section 49 violation, even if it was the party and not the candidate who 
violated it. This, according to him, would shift the burden onto the 
candidate to take into account his party’s election expenses as well 
and ensure that no violation of section 49 takes place.  
 
6.  
 
Mr. Minto has vehemently contended that section 49 of 
ROPA, which prescribes a limit on election expenses, is liable to be 
declared arbitrary and discriminatory in terms of Article 25, 
particularly, in view of the Election Commission’s recommendation for 
enhancing it without considering the economic conditions of the 
overwhelming majority of the people who have a Fundamental Right to 
participate in the election process on a level playing field. Regardless 
of the fact whether the ceiling is high or low, the petitioner’s have 
contended that it is arbitrary in nature and impossible to enforce, 
therefore, all elections must be regulated in a way that all election 
practices based on massive spending of money are banned.  
 
7.  
 
The Election Commission of Pakistan (ECP), in its reply, 
raised a preliminary objection regarding maintainability of the petition 
Const. P. No.87/2011 
9 
on the ground that the conduct of election to the National Assembly 
and Provincial Assemblies is the exclusive jurisdiction of the Election 
Commission of Pakistan as mandated by the Constitution and the law. 
On merits, it was stated that the Election Commission is an 
independent constitutional body comprising a retired Judge of the 
Supreme Court of Pakistan as Chief Election Commissioner, who is 
Chairman of the Commission and four Members, who are retired 
Judges of the High Courts. The Election Commission has been 
constituted in accordance with the provisions of the Constitution and it 
is charged with the duty of organizing and conducting elections and to 
make such arrangements as are necessary to ensure that the 
elections are conducted honestly, justly, fairly and in accordance with 
law and that corrupt practices are guarded against. It is also the duty 
of the Election Commission to prepare electoral rolls for elections to 
the National and Provincial Assemblies and to revise such rolls 
annually; organize and conduct election to the Senate or to fill casual 
vacancies in a House or a Provincial Assembly; appoint Election 
Tribunals; hold local governments' elections and such other functions 
as may be specified by an Act of the Parliament. The Election 
Commission is not a law making body, rather it works within the limits 
of legal framework provided by the Parliament.  
 
8.  
 
As regards the assertion of the petitioners relating to the 
huge expenditure incurred by a candidate in his election campaign and 
its overall impact on the electoral processes, it is pleaded on behalf of 
the Election Commission that the issue is required to be seen in the 
context of the existing provisions of the law. It is submitted that all 
electoral practices and processes currently employed by the Election 
Commission for the conduct of an election are based on constitutional 
Const. P. No.87/2011 
10 
or legal provisions, therefore, such practices and processes cannot be 
termed as ‘unconstitutional’ or ‘unlawful’ as asserted by the 
petitioners. It is further submitted that a provision of the Constitution 
or the law may be deficient, ineffective or susceptible to more than 
one interpretation or there may be some practical problems hindering 
its execution. It, however, cannot be termed as ‘unlawful’ as the same 
has been validly passed by the Legislature. It is also submitted that 
these provisions prescribe a ceiling, and spending money beyond the 
ceiling by a candidate on his election campaign would be an illegality, 
which would attract the penal provisions of the law. It is pleaded that 
these provisions, by restraining the richer people from spending 
money on their election campaigns beyond a certain limit, tend to 
provide a level playing field to all citizens of Pakistan rather than 
favouring a particular class of people. Similarly, the Election 
Commission states that the security deposit required to be made by a 
prospective candidate at the time of filing of his nomination papers is a 
nominal amount of Rs.2000/- for a National Assembly seat and 
Rs.1000/- for a Provincial Assembly or Senate seat, which is well 
within the reach of common citizens.  
 
9.  
 
Mr. Khalid Khan, ASC has appeared on behalf of Awami 
National Party (ANP) and submitted that the goal of the ANP is to 
ensure the betterment and welfare of poor people of Pakistan 
representing their interests in all elected bodies. Therefore their party 
would welcome any change that advances the same whole-heartedly. 
ANP agrees with most of the submissions and suggestions made by the 
petitioners.   
 
10.   
Dr. Muhammad Farogh Naseem, ASC has appeared on 
Const. P. No.87/2011 
11 
behalf of MQM and submitted that MQM, in principle, does not oppose 
the basis of the petition and fully subscribes to the idea that wealthier 
candidates and political parties may not be permitted to create an 
uneven playing fields. However, according to him some of the 
suggestions made by the petitioners were either too academic, or were 
incompatible with the ground realities. The learned counsel submitted 
that an almost similar legal framework is provided in India to regulate 
election expenses. Section 77 of the Representation of People Act, 
1951 (hereinafter referred to as the Act, 1951) provides for keeping an 
account of election expenses whereas section 123 enumerates the acts 
and actions, which are to be deemed to be corrupt practices. However, 
subsection (7) of section 123 explains that in order to qualify as a 
corrupt practice the excess expenditure must be incurred or authorised 
by a candidate or his agent and the employment of extra persons must 
likewise be by a candidate or his agent. He referred to the case of 
Rananjaya Singh v. Baijnath Singh (AIR 1954 SC 749), wherein it was 
held that the expenses incurred by the father in connection with the 
election of his son without his consent were not to be included in the 
election expenses unless the employment of extra persons and the 
incurring or authorising of extra-expenditure is by the candidate or his 
agent. He also referred, concurrently with the learned counsel for the 
petitioners, to the case of Kanwar Lal Gupta v. Amar Nath Chawla (AIR 
1975 SC 308) = [1975 SCR (2) 269], wherein it was held as under: -  
(1)  The total expenditure proved to have been incurred 
or authorised by the first respondent exceeded the 
prescribed limit and therefore his election should be set 
aside on the ground of corrupt practice defined in section 
123(6).   
(2) 
It is not uncommon to find that during elections, 
posters and handbills are printed without complying with 
Const. P. No.87/2011 
12 
the 
requirement 
of 
section 
127A, 
and 
sometimes 
containing scandalous material about rival candidates. 
There should therefore be some independent semi-judicial 
instrumentality set up by law, which would immediately 
investigate, even while the election fever is on and 
propaganda and canvassing are in progress and the 
evidence is raw and fresh, how the offending handbills and 
posters have come into existence.  
It was also observed that:-  
It should be open to any individual or to any political party, 
howsoever small, to be able to contest an election on a 
footing of equality with any other individual or political 
party, howsoever rich and well financed it may be, and no 
individual or political party should be able to secure an 
advantage over others by reason of its superior financial 
strength. The democratic process can function efficiently 
and effectively, for the benefit of the common good and 
reach out the benefits of self-government to the common 
man only if it brings about a participatory democracy in 
which every man, howsoever low or humble he may be, 
should be able to participate on a footing of equality with 
others. Now money plays an important part in the 
successful prosecution of an election campaign by buying 
advertisement and canvassing facilities, by providing the 
means 
for 
quick 
and 
speedy 
communications 
and 
movements and sophisticated campaign techniques, and 
also by the employment of paid workers where volunteers 
are found to be insufficient. Therefore, if one political party 
or individual has larger resources available to it than 
another the former would certainly, under the present 
system of conducting elections, have an advantage over 
the latter in the electoral process.  
The other objective of limiting expenditure is to eliminate, 
as far as possible, the influence of big money in electoral 
process. If there were no limit on expenditure political 
parties would go all out for collecting contributions and 
obviously the largest contributions would be from the rich 
and the affluent who constitute but a fraction of the 
electorate. It is likely that some elected representatives 
would tend to share the views of the wealthy supporters of 
their political party, either because of shared background 
and association, increased access or subtle influences 
which condition their thinking. In such an event, the result 
Const. P. No.87/2011 
13 
would be that though ostensibly the political parties which 
receive such contributions may profess an ideology 
acceptable to the common man, they would in effect and 
substance be the representatives of a certain economic 
class, and their policies and decisions would be shaped by 
the interests of that economic class. Persons of a particular 
class who have exclusive governmental power, even if they 
tried to act objectively, would tend to overlook the 
interests 
of 
other 
classes 
or 
view 
those interests 
differently. To this natural tendency may be added the fact 
that office bearers and elected representatives may quite 
possibly 
be 
inclined, 
though 
unconsciously 
and 
imperceptibly, to espouse the policies and decisions that 
will attract campaign contributions from affluent individuals 
and groups. Pre-election donations would be Rely to 
operate as post-election promises resulting ultimately in 
the casualty of the interest of the common man. The small 
man's chance is the essence of Indian democracy and that 
would be stultified if large contributions from rich and 
affluent individuals or groups are not divorced from the 
electoral process. Under s, 123(6) not only is the incurring 
of expenditure in excess of the prescribed limit a corrupt 
practice but also the authorising of such expenditure. 
Authorising may be implied or express, and whether a 
particular expenditure wag impliedly authorised by the 
candidate would depend upon the facts and circumstances 
of each case as appearing from the evidence adduced 
before the court.  
The reasonable interpretation of the provision, which would 
carry out its object and intendment and suppress the 
mischief and advance the remedy by purifying the election 
process and ridding it of the pernicious and baneful 
influence of big money, is, that the legislature could never 
have intended that what the individual candidate cannot do 
the political parties sponsoring him, or his friends and 
supporters, should be free to do. When a political party 
sponsoring a candidate incurs expenditure specifically in 
connection with his election, as distinguished from 
expenditure on general party propaganda, and the 
candidate knowingly takes advantage of it or participates 
in the programme or activity or consents to it or 
acquiesces in it, it would be reasonable to infer, save in 
special circumstances, that he impliedly authorised the 
political party to incur such expenditure; and he cannot 
escape the rigors of the ceiling by saying that he has not 
Const. P. No.87/2011 
14 
incurred expenditure but big political party has done so. 
The party candidate does not stand apart from his political 
party and if the political party does not want its candidate 
to incur the disqualification it must exercise control over 
the expenditure which may be incurred by it directly to 
promote the poll prospects of the candidate. The same 
proposition must hold good in case of expenditure incurred 
by friends and supporters directly in connection with the 
election of the candidate. If a candidate were to be subject 
to the limitation of the ceiling but the political party 
sponsoring him or his friends' and supporters were to be 
free to spend as much as they like in connection with his 
election, the object of imposing a ceiling would be 
completely frustrated and the beneficent provision enacted 
in the interest of purity and genuineness of the democratic 
process would be wholly emasculated.  
 
11.   
Mr. Muhammad Rafiq Rajwana, ASC appeared on behalf of 
Pakistan Muslim League (Nawaz) and submitted that  PML(N) agrees, 
in principle, with various points raised in the tilted petition especially 
towards the reduction of expenses and bringing further reforms to 
enable a common citizen to contest an election and to become a 
member of the Parliament. PML(N) does not challenge the 
maintainability or otherwise of the petition since a vocal 
deliberation on the subject of election in the country will bring 
about positive radical changes in the election culture and create a 
level playing field for the voters, supporters and electors for 
electing true representatives. However, PML(N) has following 
reservations on certain averments in the petition: -   
(i) 
The petitioners instead of criticizing the duly elected 
representatives should strive hard to create awareness 
amongst the people for election purpose and to fully 
participate in the elections; and   
(ii) 
The elections were neither unconstitutional nor unlawful 
and, in any case, the returned candidates were duly 
elected. 
Const. P. No.87/2011 
15 
 
12.   
Mr. Rajwana submitted that the constitutionality or 
otherwise of the election laws is not required to be gone into in 
these proceedings, rather strict implementation and reforms of 
the present laws is need of the hour. According to him, the existing 
laws, rules and orders have been promulgated to ensure a free and 
fair election, but the same have not been implemented in letter and in 
spirit. Therefore, it is emphasized that these laws be strictly enforced 
by the Election Commission in performing its constitutional duty under 
Article 218(3) of the Constitution, the Act, 1976 and other laws/rules. 
The Fundamental Rights cannot be denied to anybody subject to 
law and reasonable restrictions. An independent and authoritative 
Election Commission is necessary to hold elections justly, fairly, in a 
transparent manner and in accordance with the provisions of 
Constitution and the law. As such, the Election Commission is to be 
made fully empowered to actuate and effectuate the true sprit of the 
laws. In this regard, some of the initiatives have been taken in the 
18th & 20th Constitutional Amendments.  
13.  
 
The learned counsel has further submitted that the 
democratic culture has not taken roots in the society due to successive 
disruptions in the constitutional order, and there was no cavil with the 
propositions qua education of voters, the measures aimed at 
enhancing the turn out, and minimizing of election expenses.  He has 
added that the present elected representatives enjoy the confidence of 
the people, but they will have to work harder to perform their 
responsibilities which they owe towards the people.  
 
14. 
 
Dr. Khalid Ranjha, Sr. ASC appeared on behalf of 
Pakistan Muslim League (Quaid-e-Azam) [PML(Q)] and submitted 
Const. P. No.87/2011 
16 
that the Constitution of Pakistan and the election laws (viz. 
sections 48 to 51 of ROPA) provide an adequate mechanism for 
restricting election expenses. According to the learned counsel, 
Chapter VIII of ROPA provides for offences, penalties and 
procedure in case of breach of conditions relating to election 
expenses. It is further submitted that the primary problem with 
the electoral process is the lack of capacity of the Election 
Commission to attend to the same. As is the case in the 
neighbouring country, the Election Commission needs to undertake 
monitoring of the election expenses from the day the holding of 
election is notified. An election expenditure mechanism ought to be 
put in place in each constituency to monitor day-to-day election 
expenditure incurred by the candidate,. Maintenance of day-to-day 
account of election expenditure by the candidate is required to be 
made mandatory. Though the account of election expenditure is 
required to be submitted within 30 days of the declaration of the 
result, the monitoring has to be done on a regular basis during the 
campaign period because after the campaign is over, it becomes 
difficult to get any evidence of election expenditure. 
 
15.   
Mr. Hamid Khan, Sr. ASC appeared on behalf of Pakistan 
Tehreek-e-Insaf. He submitted that the PTI more or less agrees with 
the contents of paragraphs 1 to 23 of the petition, which takes into 
account various legal issues pertaining to the need to set a level 
playing field for all political parties during the elections, and promote 
democratic values and culture. The learned counsel submitted that PTI 
entirely agrees with the petitioners that there is a dire need to 
formulate and establish general principles for regulating the conduct of 
elections and for ensuring that the Election Commission and the 
Const. P. No.87/2011 
17 
Caretaker Government strictly abide by the same. He agreed with the 
petitioners that the Election Commission has failed to regulate 
expenditures made by the candidates on their election campaigns. 
According to him, the ceiling placed on election expenses under the 
election laws has become meaningless over the years because nobody 
abides by it and the Election Commission never enforced it. It is also 
the endeavor of PTI that huge expenditures incurred by the members 
of established political parties in Pakistan be somehow rendered 
ineffective and such electoral system be devised in which members of 
middle and working classes have a fair chance to compete against the 
moneyed people having large land holdings and other resources. PTI is 
of the opinion that a change in the political culture of electioneering 
will immensely help in reducing corruption and promoting competence 
and honesty in public affairs. The PTI has given following proposals to 
ensure free, fair and transparent elections: -  
(i) 
The District Returning Officers (DROs) and Returning 
Officers (ROs) of each constituency should be drawn from 
amongst the members of subordinate judiciary. If the 
DROs and ROs are nominated by the Government in office, 
the whole election process will be polluted and the 
Government in power, even if it is a caretaker one, would 
manipulate the results of the elections in favour of the 
parties that they, directly or indirectly, support. The 
persons drawn from the executive as DROs and ROs 
cannot be deemed to be neutral and there will be no free, 
fair and credible elections under their supervision.  
(ii) 
The Governments in the past had recruited their party 
members and favourites in the police force. They cannot 
be entrusted with maintaining law and order even 
handedly. It is, therefore, imperative that armed forces 
should be made responsible for maintaining law and order 
throughout the country during the general elections.  
(iii) 
The personnel belonging to armed forces should be 
Const. P. No.87/2011 
18 
stationed inside and outside every polling station to ensure 
maintenance of peace, avoidance of violence and holding 
of fair elections.  
(iv) 
The permanent polling scheme throughout the country 
should be formulated and circulated and be given wide 
publicity. Permanent polling stations should be notified 
throughout the country and no changes in the location of 
polling stations should ever be made. The polling scheme 
and permanent polling stations should be notified at least 
two months before the elections so that the candidates and 
voters may file objections well in advance.  
(v) 
The Presiding Officers and their assistants in the polling 
stations should preferably be drawn from federal rather 
than provincial government departments. The experience 
shows that the provincial government servants are more 
susceptible to the influence of the local Zamindars, feudals 
and men of influence.  
 
 
In the end, it has been prayed that in addition to the grant of reliefs 
prayed for by the Petitioners in the petition, the above mentioned 
steps and reforms proposed by them for holding of free, fair and 
transparent elections be also considered and that directions to the 
Election Commission and other authorities concerned be issued 
throughout the country.  
 
 
16.   
Mr. Taufique Asif, ASC has appeared on behalf of Jama'at-
e-Islami Pakistan (JIP).  He opened his arguments with the following 
verse of the Holy Quran: -  
“A party amongst you must be there to promote the good 
and suppress the evil” [Surah Aal-e-Imran: 104]  
 
He submitted that the Muslims of the Sub-Continent dreamt of a 
separate independent state, which came true in 1947 with the creation 
of Pakistan in pursuance of their continued struggle and sacrifices. 
Therefore, it is the duty of every Pakistani citizen, especially Muslims, 
Const. P. No.87/2011 
19 
to pursue the path of their ancestors and carry on the struggle to 
transform the state of Pakistan into a truly Muslim country to ensure 
peace and prosperity, development and stability, welfare and 
responsibility. The learned counsel has submitted that JIP agrees with 
the petitioners on main issues. JIP has given following further 
proposals to ensure free, fair and transparent elections:-  
(i) 
Fair and transparent elections are not possible without 
genuine electoral lists;  
(ii) 
Voters must be enlisted at their present residential 
addresses;  
(iii) 
Preparation of electoral lists afresh on the basis of 
NADRA's lists; and  
(iv) 
Voter lists be placed on the internet and the SMS service 
recently introduced by the Election Commission for 
verification of votes be made toll-free.  
 
 
 
17.   
Mr. Abdul Wahab Baloch, ASC appeared on behalf of Sindh 
United Party (SUP). He has vehemently supported the petition on 
maintainability as well as on merits and prayed that the same may be 
allowed in the interest of justice. SUP has made the following 
suggestions: -  
(i) 
Before the filing of nomination paper of the candidate, 
place of polling station must be finalized and published in a 
polling station manual.  
(ii) 
On each census block number, name of  Deh/village/ward 
should be clearly printed.  
(iii) 
To ensure transparency in the process of casting of votes, 
signature/initial of the polling officer on the voters’ list 
should be compulsorily affixed.  
(iv) 
For the identification of the candidate, specimen signature 
of the candidate should be supplied by Returning Officer to 
the Presiding Officer along with the other polling material. 
Specimen signature of candidate verified by the returning 
Const. P. No.87/2011 
20 
officer must be filed on the day of candidature/ final list of 
candidates.  
(v) 
The candidature card should be issued by the Returning 
Officer with photograph and also card of Chief Polling 
Agent issued by the Returning Officer with photograph.  
(vi) 
The unidentified person should not be allowed to enter the 
premises of the Polling Station.  
(vii) For the reduction of expenses of the candidate, the total 
number of voters of a polling station should be between 
700 and 1100 and the number of the voters at one polling 
booth should be 400 to 500 each. If the number of the 
voters is above 1100, polling station should be divided into 
two polling stations.  
(viii) The fee for Nomination Form should not be more than Rs. 
1,000/-. The voters’ list should be provided by the Election 
Commission.  
(ix) 
The polling station of a census block should be on the basis 
of boundary wall and other utilities without any shortage of 
polling staff and polling material, there should be proper 
training of the polling staff for conducting the poll, the 
polling material should be evenly distributed polling 
stations wise, and the polling staff of each polling station 
must reach at least 12 hours before the election day and 
time.  
(x) 
The payment for election duty to the returning officer 
should be made on daily basis from the day the procedural 
work starts.  
(xi) 
Before poll/election, it is necessary to complete voters’ list, 
which should be published according to new census block-
wise of each year, e.g., 2011/2012 because the present 
constituencies are based upon the old census of 1998.   
(x) 
The Government has completed one phase of census of the 
house counting, but public counting has not been 
completed as yet. It is necessary to complete the same. 
The new census number has been given to the voters in 
the voters’ list. Now the population has increased. 
Therefore, the constituencies should be increased in 
Const. P. No.87/2011 
21 
accordance with law and regulations for the representation 
of the people.  
(xi) 
To increase the turnout, the Polling Stations should be 
enhanced so that the voters can easily approach the same 
to cast votes.  
(xii) In the year 2004, several Districts were bifurcated and 
new Districts created in various Provinces. As a result, 
many constituencies fall within different Districts, which is 
a violation of rules. Therefore, Election Commission should 
ensure that constituencies of both the National as well as 
Provincial Assemblies are in one district. 
(xiii) Each party as well as each candidate should be provided 
equal time on media, particularly on the National TV 
Channel to express his view and manifesto.   
 
18.   
Mr. Salman Akram Raja, ASC appeared on behalf of Awami 
Party Pakistan (APP). He submitted that the electoral process is 
integral to the discharge of the sacred trust reposed by the people of 
Pakistan in their representatives, as envisaged by Article 2A of the 
Constitution. This trust is to be discharged in a manner that fully 
observes the principles of democracy, freedom, equality, tolerance and 
social justice as enunciated by Islam. Therefore, all actions and 
practices that interfere with, or distort the electoral exercise are to be 
seen as subversion of the sacred trust enshrined in the Constitution of 
Pakistan. All constituents of the State of Pakistan, including the 
judiciary, in the discharge of the sacred trust, are under an obligation 
to implement and interpret the Constitution and all other laws in a 
manner conducive to the freest and fairest conduct of the electoral 
exercise. The existing political culture is defeating the essence of 
Articles 17 and 25 of the Constitution. As a consequence, it is 
compromising the legitimate expectations of a vast majority of citizens 
by curtailing their social, economic and political rights guaranteed in 
Const. P. No.87/2011 
22 
the Constitution. The prevalent culture of election campaigning and 
electioneering has created hegemony of a few elite families over the 
politics of the country and has denied a majority of the people their 
right to meaningfully participate in election process. The learned 
counsel has made the following suggestions: -  
(i) 
 The Constitution of Pakistan provides guarantee of dignity, 
freedom 
and 
equality 
to 
all 
citizens 
and 
forbid 
discrimination on the basis of sex etc. despite Article 34 as 
given in principles of policy that steps shall be taken to 
ensure full participation of women in all spheres of national 
life. Women and other marginalized segments of society 
are barred to meaningfully participate in election process. 
Women are under registered in electoral rolls, face 
opposition when going to vote and are often turned away 
from polling stations. In some constituencies, especially in 
Khyber Pakhtunkhwa and Balochistan, rival candidates and 
political parties entered into agreements to restrain women 
from casting votes. Election officials are also found being 
insensitive to the values, e.g., polling officers insist on 
veiled women showing their faces for identifications to 
male polling staff, which discourages some women from 
voting. Election Commission should be held accountable for 
ensuring political participation of women.  
(ii) 
Women turnout in each constituency must not be less than 
25% of total votes cast otherwise results may be declared 
void and re-poll ordered. In addition, Election Commission, 
before every election, must conduct voters’ education 
programmes, particularly for women and minorities.  
 
Finally, it is prayed on behalf of APP that the influence of money and 
administrative power in any manner whatsoever on election process is 
unlawful, thus, the same be declared unconstitutional, and Election 
Commission may be directed to make arrangements in this regard.  
 
Const. P. No.87/2011 
23 
19.   
Another grievance of the petitioners pertains to existing 
election practices involving massive use of wealth by the bigger 
political parties as manifested by enormous ‘Jalsa/political rallies’ and 
‘Jaloos/processions’, advertisements via banners, posters, billboards, 
stickers and other forms of media, use of loudspeakers, setting up 
election camps, and processions of car rallies, which deprive the 
ordinary citizens from partaking in the political process. It is argued 
that because only well-established and affluent political parties and 
politicians can afford to undertake such practices, a Jalsa and Jaloos 
has the effect of inhibiting ordinary persons from exercising their right 
under Article 17(2) of the Constitution. The petitioners have sought a 
complete ban on all these activities. Most of the respondent political 
parties have differed with the stance taken by the petitioners.   
 
20.   
It is contended on behalf of the petitioners that Jalsas or 
political rallies and Jaloos or processions are not an effective means of 
communication for the purposes of campaigning. They have alleged 
that an election campaign is intended to educate the voters and share 
the manifesto and policies of the party or the candidate with the 
electorate. This object, it is argued, cannot be achieved by the 
aforesaid means. It is further argued that these practices are 
exorbitantly expensive and unfortunately have become the norm in the 
domestic political arena. Because only well-established and affluent 
political parties and politicians can afford to undertake such practices, 
a Jalsa and Jaloos has the effect of inhibiting ordinary persons from 
exercising their right under Article 17(2) of the Constitution. Because 
these practices are expensive and an unnecessary extravagance that 
serve to distort the political arena, the petitioners argue that these 
should be banned. On the other hand, it is argued by the learned 
Const. P. No.87/2011 
24 
counsel for MQM that MQM do not agree that all “Jalsa” or Political 
Rally and “Jaloos” or “Procession” should be prohibited during the 
election campaign, inasmuch as it would militate against Articles 16, 
17 and 25 of the Constitution. It is submitted that a distinction is 
required to be drawn where the procession/jaloos takes the shape of a 
car rally as opposed to where people in a city are using vehicles to 
reach a particular place earmarked/notified for a procession. There 
would be a problem in stopping a car rally, per se, as this would be 
used to prevent people approaching a particular site meant for the 
procession. It is suggested that it would be better to regulate such 
rallies so that they do not take place on a random basis. Learned 
counsel appearing on behalf of Jamat-e-Islami Pakistan has also made 
a similar suggestion to avoid disturbance and inconvenience to the 
general public.   
 
21.   
It is submitted on behalf of PML(N) that “Jalsas” or political 
rallies should be allowed insofar as they comply with the election laws. 
According to the learned counsel, public meetings, rallies or 
processions are the best modes of approaching the people, conveying 
to them the party manifesto and the party program for the betterment 
of the people, introducing the candidates, etc. According to him, 
political processes cannot take effect sitting in a room with the 
candidates, announcing their candidature and expecting voters to 
come at their own to cast votes. The scope of Article 17 has already 
been expanded by various judgments of this Court.  
 
22. 
 
Mr. Hamid Khan, ASC has submitted that PTI is of the 
opinion that Jalsas, political rallies and Jaloos/processions are 
necessary part of election campaigns and integral to the creation of 
Const. P. No.87/2011 
25 
political awareness amongst the people at large. It is a right, which 
every political party enjoys under Article 17 of the Constitution. On the 
other hand, it is submitted by Mr. Salman Akram Raja, ASC, on behalf 
of APP that Jalsas, Jaloos or processions may be completely banned 
during the 60 days of election campaign. According to them, the 
Election Commission should designate a suitable place in each 
constituency where all candidates address the public at large and also 
hold discussion on their respective manifestos.  
 
23.   
The petitioners have submitted that the practice of 
advertising candidates and/or party via banners, posters, billboards 
and stickers is an ‘utter waste of time and resources’. They have 
argued that these practices are not an important and effective means 
of communication, are aesthetically unpleasant and extremely costly. 
In light of these assertions, the petitioners have argued that because 
such practices have become a norm in election campaigns, in order to 
secure any chance of winning, most candidates end up employing 
these practices and consequently exceeding the ceiling amount 
prescribed for election expenditure by section 49 of ROPA. Therefore, 
the petitioners have submitted that in light of their arguments, these 
and other practices, like wall-chalking, etc., ought to be banned. Dr. 
Farogh Naseem has recommended that provisions should be made to 
ban the pasting of banners, posters or stickers on private or 
governmental properties. Mr. Muhammad Rafique Rajwana has, 
however, submitted that the billboards, banners, etc., should be 
permitted to be displayed within the four corners of the law. Similarly, 
Mr. Hamid Khan submitted that banners/posters/stickers are not 
necessarily expensive and are meant to spread the message of 
political parties during the election campaigns and to introduce the 
Const. P. No.87/2011 
26 
candidates to their electorate. However, he has argued that billboards 
are very expensive, which should be done away with in order to reduce 
election expenses. Mr. Salman Akram Raja submitted that display of 
banners, posters, billboards, stickers, etc., must be completely banned 
during 60 days of election campaign.  
 
24.   
The petitioners have submitted that the purpose of an 
election campaign is not to overwhelm people by employing such 
means that have nothing to do with the actual dissemination of ideas. 
It is argued that the use of loudspeakers only serves the aforesaid 
purpose. Furthermore, it is contended that in addition to the 
abovementioned effect, the use of loudspeakers causes aural 
aggression and intrusion of privacy, and intimidates and imposes ideas 
on voters without their consent. Such means of overpowering and 
intimidating voters, which have the effect of curtailing their right to 
make a free choice, should be banned. On the contrary, Dr. Farogh 
Naseem has submitted that loudspeakers are not expensive and in fact 
constitute an important aid in the dissemination of information, 
especially with respect to the sharing of manifestoes of political parties 
and candidates. Political parties which are popular amongst the people 
at large are able to attract very large crowds. Therefore, any 
prohibition on loudspeakers, amplifiers or other such modern devices 
would be counter-productive. Mr. Muhammad Rafiq Rajwana has 
submitted that the use of loudspeakers in big gatherings and rallies is 
necessary to enable the people to hear the speakers, and to know the 
candidates, political parties and their manifestoes. Mr. Hamid Khan has 
submitted that PTI is not opposed to the use of loudspeakers and other 
amplifiers, which are not expensive instruments. Rather, these 
facilitate the reaching out to a large audience by the party candidates 
Const. P. No.87/2011 
27 
and the generation of healthy discussion and political activity. On the 
other hand, Mr. Salman Akram Raja, ASC, on behalf of APP has 
submitted that use of loudspeakers (otherwise permitted by law) may 
also be completely banned during 60 days of election campaign.  
 
25.   
The petitioners have also argued that car rallies also 
qualify as displays of wealth, which have the effect of ‘overawing’ and 
consequently exploiting the voters. It is submitted that car rallies, and 
in particular those comprising of expensive cars cultivate a  “mentality 
of supporting the perceived stronger or winning side regardless of 
what that side has to say on real issues.” Since such a practice 
undermines the essence of voting, i.e. making an informed choice, the 
petitioners have sought that these car rallies be banned completely. In 
the context of car rallies, the viewpoint presented on behalf of PML(N) 
is that these rallies should be made subject to reform , but before that 
existing election laws are to be strictly implemented. Mr. Hamid Khan 
has submitted that PTI does not oppose car rallies, but agrees with the 
petitioners that the political parties should not use expensive cars, 
which qualify as display of wealth and substantially enhance the 
expenditure incurred by the candidates.  
 
26.   
It is submitted on behalf of the petitioners that 
pamphleteering, as it is presently practiced, suffers from the same 
defects as the other impugned practices mentioned above. However, it 
has been argued that pamphleteering may be used for productive ends 
as well. The petitioners do not find issue with pamphleteering, so long 
as the distributed pamphlets contain the candidate’s manifesto and 
concurrently seek a ban on all other forms of pamphleteering. Dr. 
Farogh Naseem has submitted that the distribution of pamphlets aids 
Const. P. No.87/2011 
28 
the dissemination of information regarding political parties and their 
candidates, but pamphlets should not serve to incite racial, ethnic, 
religious, parochial, provincial or even political hatred. Mr. Rafiq 
Rajwana has submitted that pamphlets containing unobjectionable 
contents for election purposes are the best and cheapest mode of 
communicating with the voters. Mr. Hamid Khan does not oppose the 
use of pamphlets during the election campaign provided the contents 
of the pamphlet are not inflammatory and do not promote hatred or 
prejudice in the society. However, pamphlets can be used to distribute 
manifestos of the political parties or to introduce candidates in their 
respective constituencies. Mr. Taufique Asif, learned counsel for JIP, 
has submitted that JIP does not agree with the petitioners.  
 
27.   
The petitioners have contended that State and private TV 
channels must not televise or broadcast programs mentioning specific 
candidates and should not give coverage, negative or favourable, to 
any of the candidates by names or by obvious reference. This 
privilege, they believe, can only be availed by wealthier political 
parties and candidates, and is an advantage that compromises the 
rights of the petitioners. It is further argued that surveys carried out 
and published in newspapers declaring the rising or declining 
popularity of candidates or parties should also be disallowed during the 
relevant period since these tend to unreasonably influence and 
consequently sway voters’ opinion. It is submitted that these surveys 
condition the electorate and compromise the objectivity with which 
they ought to cast their vote. Dr. Farogh Naseem has submitted that a 
complete ban in this regard would violate the freedom of press, which 
is also a fundamental right. According to him, the suggestion that the 
electronic and print media should not charge political parties or their 
Const. P. No.87/2011 
29 
candidates is too wide and blanket in nature. Firstly, the press/media 
cannot be stopped from charging for the advertisement, as this would 
violate the fundamental right of freedom of business of the media. 
Secondly, the prospects of propagating information using modern 
devices shall stand completely precluded in case any blanket order of 
the nature sought by the petitioners is passed. The correct approach, 
therefore, would be to opt for the regulation thereof. It is suggested 
that the Ministry of Communication may be directed to prescribe a 
cap/upper 
restriction 
on 
the 
size 
and 
frequency 
of 
such 
advertisements. Further, a code of conduct may be devised so that the 
information sought to be advertised is put through a system of 
preliminary checking to avoid disinformation. Mr. Hamid Khan has 
stated that PTI agrees with the petitioners that expensive newspaper, 
TV or Radio advertisements should not be allowed because it would 
substantially enhance the election expenses of the candidates. 
However, there will be no problem if the newspapers, TV or Radio 
programmes give coverage to activities of political parties and their 
candidates. Similarly, he has not taken any issue with the media 
carrying out surveys that project the popularity and acceptability of 
various political parties and their political leaders. Mr. Taufique Asif 
has submitted that JIP does not agree with the petitioners on this 
issue. Mr. Abdul Wahab Baloch, ASC, learned counsel for Sindh United 
Party has submitted that each party as well as each candidate should 
be provided equal time on the media, particularly on the National TV 
Channel to express their views and share their manifestos. Mr. Salman 
Akram Raja has submitted that the Election Commission should ensure 
that no candidate or political party reserves time on private TV 
Const. P. No.87/2011 
30 
channels and that adequate time should be given to each party to 
present their programme on State TV.   
 
28.   
Learned counsel for the petitioners has submitted that 
there should be complete ban on the use of private vehicles for the 
purpose of transporting the voters to the polling station. The Election 
Commission should be ordered to increase the number of polling 
stations to enable the voters to cast their votes at shorter distances. A 
procedure should be devised for this purpose, by making regulations 
and issuing necessary orders, including requisitioning of government 
transport, if necessary, to carry the elderly or disabled persons to the 
polling stations, or to meet any other emergency needs. Mr. Salman 
Akram Raja, ASC has submitted that transportation of voters on the 
polling day may be completely banned. However, the Election 
Commission may collect funds from political parties in accordance with 
their number of candidates participating in elections and make 
arrangements for transportation of voters, but in no case should the 
candidates be allowed to hire/use private transport on election day. 
The routes of such transport should be widely advertised in the print 
and electronic media for information of the general public. Mr. Hamid 
Khan has submitted that it is well settled that the candidates are not 
allowed to transport voters to the polling stations on the election day. 
However, this principle and provision is openly flouted by political 
parties. Thousands of vehicles are deployed on the election day by the 
candidates to pick the voters from their homes to the polling stations. 
This exercise entails expenditure of millions of rupees that is incurred 
in one day. Such practices minimize the winning prospects of the 
political parties and candidates of modest means. It is submitted that 
a direction be issued that all private transport should cease to operate 
Const. P. No.87/2011 
31 
on election day so that the voters can reach the polling stations by 
themselves on foot, bicycles or motorbikes. He submitted that in India 
four-wheeler vehicles are not allowed to transport voters on the day of 
elections and the voters reach the polling stations on their own. This 
would ensure truly free and fair elections. However, to facilitate the 
voters, the number of polling stations ought to be raised by at least 
50% throughout the country so that the polling stations are not at a 
distance of more than two kilometres from the place of residence of 
voters.  
 
29.   
Learned counsel for the petitioners has submitted that the 
supply of Perchi containing particulars of voters, including name, 
parentage, polling station/booth, serial number of the voter in the 
electoral roll should be banned. These Perchis are tantamount to 
canvassing and, therefore, allegedly influence the mind of the voter. 
The respondent-political parties agree that the issuance of Perchi 
should be banned and arrangements made by the Election Commission 
in consultation with NADRA to provide said information to the voters 
by incorporating the same in NIC. It was informed that the Election 
Commission has started the service of providing information to the 
voters through SMS message service. For this purpose, a voter has to 
make a phone call or send an SMS on a given number and the relevant 
information is provided to him. A suggestion was made during hearing 
of the case that Election Commission should prepare a Perchi/card 
containing all the necessary information such as serial number, name 
of polling station, number of polling both, etc. In response, it was 
submitted on behalf of NADRA that voters card can be issued by the 
Authority at an approximate cost of Rs.100/- per card. It was further 
submitted that the card would contain an electronic chip having 
Const. P. No.87/2011 
32 
space/memory of 1 kb, which could be enhanced to 27 kb. Another 
suggestion was that the Election Commission may generate funds by 
allowing private/public companies to print these cards/Perchis with 
their 
monograms, 
logos, 
product 
signs 
or 
names, 
etc., 
for 
advertisement purposes on commercial basis. Such information can 
also be provided in the utility bills, bank accounts cards, etc.   
 
30.   
The petitioners have submitted that the activities carried 
out at election camps are intended to, and have the effect of, 
overawing the electorate and breeding the impugned political culture. 
These activities reduce, what would otherwise serve as an occasion to 
educate the electorate, into a funfair, carnival or picnic. The “setting 
up of picnic opportunities and doling out free food to workers hardly 
corresponds to the idea of a serious office”. The petitioners have, 
therefore, submitted that the setting up of camps ought to be 
regulated. Their number, purpose, timing, their manner of conduct and 
the activities permitted to be carried out therein during the campaign 
and on election day ought to be monitored. It is only in such a setting 
that the petitioners believe, election camps would serve their required 
purpose. Dr. Farogh Naseem has submitted that camps should not be 
used as picnic spots, but can be used effectively to disseminate 
relevant information. Mr. Hamid Khan has stated that PTI agrees with 
the petitioners that election camps should not be set up to host 
extravagant indulgences. Activities conducted in these camps should 
be limited to distributing party manifestos and introducing candidates 
to their electorate. JIP, however, does not agree with the petitioners 
on this issue.  
 
Const. P. No.87/2011 
33 
31.   
We have heard at length the learned counsel for the 
petitioners, learned Deputy Attorney General on behalf of the official 
respondents, namely, Federation of Pakistan, Ministry of Law, Justice & 
Parliamentary Affairs and the Election Commission and the learned 
counsel appearing for the respondent political parties, and have gone 
through the documents placed on record by the Election Commission 
as well as the case-law cited at the bar.  
 
32.   
To begin with, the petitioners have invoked this Court’s 
jurisdiction under Article 184(3) of the Constitution. In this behalf, the 
Federation of Pakistan through Ministry of Law and Justice Division and 
Election Commission have raised objection with respect to the 
maintainability of the instant petition. However, during arguments, 
none of the parties pressed the said objection, rather they requested 
the Court to issue certain directions to the concerned authorities. The 
Learned Deputy Attorney General, appearing on behalf of Federation, 
Ministry of Law & Justice and the Election Commission also prayed that 
appropriate orders may be passed on certain issues raised in the 
petition.  
 
33.   
The scope of jurisdiction of this Court under Article 184(3) 
of the Constitution by now is fairly settled in a plethora of case law, 
therefore, there is no necessity to recapitulate the constitutional 
provision or to refer to the entire case-law for the purpose of deciding 
the question of maintainability of the instant petition. This Court, in 
the cases of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 
SC 416), Haji Muhammad Saifullah Khan v. Federation of Pakistan 
(PLD 1989 SC 166) and Mian Muhammad Nawaz Sharif v. President of 
Pakistan (PLD 1993 SC 473) has already held that the right to form, or 
Const. P. No.87/2011 
34 
be a member of a political party guaranteed under Article 17 of the 
Constitution subsumes the right to participate or contest in the 
election, and to form government if successful. The petitioners have 
vehemently 
averred 
that 
the 
impugned 
practices 
violate 
the 
fundamental right of the citizenry at large guaranteed by Article 17 
read with Article 25 of the Constitution. None of the respondents has 
rebutted the above assertion of the petitioners. Accordingly, the 
instant petition is held to be maintainable.    
 
34.   
It may be mentioned here that the instant petition falls in 
the public interest litigation, which is not adversarial but inquisitorial in 
nature. In the cases of Watan Party  v. Federation of Pakistan (PLD 
2011 SC 997) and All Pakistan Newspapers Society  v. Federation of 
Pakistan (PLD 2012 SC 1) referred to by Mr. Farogh Naseem, ASC, this 
Court has held that it has the jurisdiction to adjudicate upon a case if it 
falls within the ambit of inquisitorial proceedings. It is also well settled 
that while entertaining a direct petition under Article 184(3), this Court 
has ample power to examine the vires of laws, rules or regulations. 
Reference in this regard has been made to the cases of Wukala Mahaz 
Barai Tahafaz Dastoor  v. Federation of Pakistan (PLD 1998 SC 1263), 
Farooq Ahmad Khan Laghari v. Federation of Pakistan   (PLD 1999 SC 
57), Jalal Mehmood Shah  v. Federation of Pakistan  (PLD 1999 SC 
395), Liaquat Hussain  v. Federation of Pakistan  (PLD 1999 SC 504), 
Dr. Mobashir Hassan  v. Federation of Pakistan (PLD 2010 SC 265) and 
Muhammad Mubeen-us-Salaam v. Federation of Pakistan (PLD 2006 
SC 602).  
 
35. 
 
Before dilating upon the issues agitated in this petition, it 
may be observed that the 1973 constitutional Order is a living 
Const. P. No.87/2011 
35 
manifestation of the will of the people of Pakistan. In this Order, the 
people have made clear that all authority to govern shall be exercised 
“within the limits prescribed by (Allah)”, and only by or on behalf of 
the people of Pakistan. This Order, therefore, rests on two 
fundamental precepts. Firstly, that the exercise of this authority shall 
be informed and circumscribed by the principles of Islam, and 
secondly, that the people of Pakistan shall play an integral role in the 
exercise thereof. Any action or inaction that contravenes these 
instructions is ultra vires of this authority, unconstitutional and void. 
 
36. 
 
All constitutional mandates and prescriptions are deemed 
to have been issued in furtherance of these Islamic principles and 
within these prescribed parameters. Article 2A, therefore, expressly 
instructs that “...principles of democracy, freedom, equality, tolerance 
and social justice, as enunciated by Islam, shall be fully observed” in 
the State of Pakistan. The protection and advancement of these 
principles is an integral objective and an essential feature of the 
Pakistani constitutional Order. In appreciation of the value accorded to 
Fundamental Rights by Islam, the same Article mandates that the 
State shall guarantee “fundamental rights, including equality of status, 
of opportunity and before law, social, economic and political justice, 
and freedom of thought, expression, belief, faith, worship and 
association, subject to law and public morality”. The entire set of 
Chapter II of the constitution further reiterates the constitutional 
importance and manifests the realization of this objective. To that end, 
Article 8(1) enunciates the significance of these rights and the 
principles that they embody, by declaring, “all law, or any custom or 
usage having the force of law, in so far as it is inconsistent with the 
rights conferred by this Chapter, shall, to the extent of such 
Const. P. No.87/2011 
36 
inconsistency, be void”. In effect these rights, as enunciated by Islam, 
have been placed on a higher pedestal and enshrined as a central 
feature of our constitutional framework. 
 
37. 
 
This constitutional Order declares that “the authority (is) to 
be exercised by the people of Pakistan”. The vesting of this authority 
and entrusting the exercise thereof to the people, emphasizes the 
principle of self-government as the bedrock of our constitutional 
framework. By guaranteeing the observance of ‘principles of 
democracy’ in Pakistan and mandating that the “State shall exercise its 
powers and authority through the chosen representatives of the 
people” the Constitution instructs that this authority be exercised by 
and through a representative and democratic government. This 
constitutional order was framed with an ardent dedication ‘to the 
preservation of democracy’ and therefore encapsulates it as one of its 
core values. Furthermore, by establishing and enumerating the powers 
and manner in which the legislature is to function, Part II and III of 
the constitution cement ‘democracy’ as the chosen system of the 
people and a fundamental constitutional dictate. Therefore, it is 
patently clear that the constitutional imperative of ‘advancing and 
protecting Fundamental Rights, as enunciated by Islam, through a 
democratic system of government’ underpins the operation of our 
constitutional Order. This symbiotic relationship between ‘democracy’ 
as a governing system and the objective of ‘advancing and protecting 
Fundamental Rights, as enunciated by Islam’ preserves and reinforces 
both these constitutional dictates as cardinal features of our 
constitution. Various provisions of the constitution have been drafted 
to effectuate this imperative. The freedom of association, as 
enunciated by Article 17 of the constitution, confers a Fundamental 
Const. P. No.87/2011 
37 
right on every individual to partake in the political governance of the 
State, whilst concurrently reinforcing the constitutional mandate to 
protect 
and 
advance 
this right 
through 
a 
democratic 
state. 
Furthermore, the ‘freedom of assembly’ (Article 16) and ‘freedom of 
speech’ (Article 19) also serve to realize this constitutional imperative. 
 
38.   
The Constitution provides a comprehensive mechanism to 
ensure minimal deviation from these dictates. It identifies and 
regulates one of the key aspects of democracy, the election process. 
In Article 218, the Constitution constitutes the Election Commission 
and empowers it to organize and oversee the election process and to 
ensure, inter alia, that it is conducted “honestly, justly, fairly and in 
accordance with law and that corrupt practices are guarded against”. 
Article 218(3) of the Constitution enumerates the broad and 
overarching responsibility of the Election Commission and declares 
that: -  
“218. Election Commission.  
(1) 
For the purpose of election to both Houses of Majlis-
e-Shoora (Parliament), Provincial Assemblies and for 
election to such other public offices as may be specified by 
law, a permanent Election Commission shall be constituted 
in accordance with this Article.  
(2) 
The Election Commission shall consist of-  
(a) 
The Commissioner who shall be the Chairman 
of the Commission; and 
(b) 
four members, each of whom has been a Judge 
of a High Court from each Province, appointed 
by the President in the manner provided for 
appointment of the Commissioner in clauses 
(2A) and (2B) of Article 213. 
 
 (3) It shall be the duty of the Election Commission 
constituted in relation to an election to organize and 
conduct the election and to make such arrangements as 
are necessary to ensure that the election is conducted 
Const. P. No.87/2011 
38 
honestly, justly, fairly and in accordance with law, and that 
corrupt practices are guarded against.” 
 
39.   
The phrase “the election is conducted honestly, justly, 
fairly and in accordance with law, and that corrupt practices are 
guarded against” as used in Article 218(3) of the Constitution informs 
the content and scope of powers conferred by it on the Election 
Commission. It may be advantageous to refer to the meanings of the 
terms “honestly”, “justly” and “fairly” as given in various legal 
instruments, which read as under: -   
“Honestly”: 
 
(i) 
‘honest’ means full of honour: just: fair dealing: upright: 
the opposite of thievish: free from fraud: candid: truthful: 
ingenious: 
seemly: 
respectable: 
chaste: 
honourable;  
‘honestly’ means in an honest way: in truth; ‘honesty’  is 
the state of being honest: integrity: candour. [Chambers, 
20th Century Dictionary, New Edition 1983 at page 601] 
 
(ii) 
‘honesty’ – “according to the best lexicographers the words 
‘truth’ ‘veracity’ and ‘honesty’ are almost synonymous, 
very nearly the same definitions being given to each of the 
words”. [P. Ramanatha Aiyar’s “Advanced Law Lexicon”, 
2005 Edition, Vol. 2, at page 2153] 
 
(iii) 
Honesty is a thing deemed to be done in good faith, where 
it is infact done honestly, whether it is done negligently or 
not. [Fakhruddin  v. A. Shah (PLD 1982 Kar 790)] 
 
(iv) 
Honestly is state of mind which is psychological factor 
capable to prove or disprove only by a evidence or 
conduct. [Amjad Khan  v. Marium (1993 CLC 175)] 
 
“Justly” 
 
(i) 
‘just’ means “conforming to or consonant with, what is 
legal or lawful, legally right, lawful”; … “The words ‘just’ 
and ‘justly’ do not always mean ‘just’ and ‘justly’ in a moral 
sense, but they not unfrequently, in their connection with 
other words in a sentence, where a very different 
signification. It is evident, however, that the word ‘just’ in 
the statute [requiring an affidavit for an attachment to 
State that Plaintiff’s claim is just] means ‘just ‘ in a moral 
sense; and from its isolation, being made a separate sub-
division of the section, it is intended to mean ‘morally just’ 
in the most emphatic terms. The claim must be morally 
just as well as the legally just in order to entitle a party to 
Const. P. No.87/2011 
39 
an attachment.”  Robinson v. Burton (5 Kan. 300.) [ 
Black’s Law Dictionary, Revised 4th Edition of 1968, at page 
1001] 
 
(ii) 
‘just’ means righteous: fair: impartial: according to justice: 
due: in accordance with facts: well-grounded: accurately 
true: exact: normal: close-fitting: precisely: exactly: so 
much and no more: barely: only: merely: quite; ‘justly’  
means in a just manner: equitably: accurately: by right; 
‘justness’ 
means 
equity: 
fittingness: 
exactness. 
[Chambers, 20th Century Dictionary, New Edition 1983 at 
page 686] 
 
(iii) 
‘just’. As an   adjective, fair; adequate; reasonable; 
probable; right in accordance with law and justice right in 
law 
or 
ethics; 
rightful; 
legitimate, 
well 
founded; 
conformable to laws; conforming to the requirements of 
right or positive law; conformed to rules or principle of 
justice. 2 Bom LR 845. As an adverb of time the word ‘just’ 
is equivalent to “at this moment,” of the least possible time 
since” (Ame. Cyc.). 
 
The word ‘just’ is derived from the Latin ‘justus’ which is 
from the Latin ‘jus’ which means a right, and more 
technically a legal right--- a law. The world ‘just’ is defined 
by 
the 
Century 
Dictionary 
as 
conforming 
to 
the 
requirements of right or of positive law, and in Anderson’s 
Law Dictionary as probable, reasonable. Kinney’s Law 
Dictionary defines ‘just’ as fair, adequate, reasonable, 
probable, and justa causa as a just case, a lawful ground.  
Being in conformity with justice [S.191, Expln. 2, ill. (a) 
IPC (45 of 1860) and Art 42, Const]; fair. 
An allegation is an indictment that an offence has ‘just’ 
come to the knowledge of an officer having authority to 
prosecute is, by implication, a sufficient allegation  that the 
offence had not previously come to the knowledge of any 
other public officer having authority to prosecute.  
‘JUST’ as sued in Laws providing that an affidavit for 
attachment shall show the nature of the plaintiffs claim, 
and that it is just, etc., should be construed to mean just in 
a moral sense. The claim must be morally just, as well as 
legally just in order to entitle a party to an attachment. 
“Shall have the power, if he shall think just, to order a new 
trial.” in the County Courts Act, 1888 (51 & 52 Vict. c. 43), 
S.93. These words do not give a County court judge an 
absolute power of granting new trials. His power under the 
section is subject to the rules and limitations as to the 
granting of new trials which are binding upon the High 
Court, the Court of Appeal, and the House of Lords. 
Murtagh v. Barry (1890) 44 Ch D 632 (LORD COLERIDGE, 
C.J.). The crucial word in the phrase is “just” which imparts 
a judicial, and not an absolute power. (Craies St. Law).  
The term ‘just’ is derived from the Latin word ‘justus’. The 
word, ‘just’ connotes reasonableness and something 
conforming to rectitude and justice something requirable 
Const. P. No.87/2011 
40 
and fair. M.A. Rahim and Another v. Sayari Bai, AIR 1973 
Mad 83,87. The world ‘just’ denotes equitability, fairness 
and reasonableness having a large peripheral field. Helen 
C. Rebellor v. Maharashtra S.R.T.C., (1999) 1 SCC 90, para 
28: AIR 1998 SC 3191. The world ‘just’ occurring in 
Section 168 of the Act means that the compensation must 
be just and it cannot be a bonanza; not a source of profit 
but same should not be a pittance. The expression ‘just’ 
denotes equitability, fairness and reasonableness and non-
arbitrariness. Divisional Controller KSRTC v. Mahadeva 
Shetty, (2003) 7 SCC 197, para 15. [Motor Vehicles Act 
(59 of 1988), S. 168].  
Reasonableness may be ‘good cause’ but it is not 
necessarily ‘just cause’. If a person voluntarily retires on 
pension, he is getting a substantial financial benefit for 
himself, and it is not fair or just to the unemployment fund 
that he should also get unemployment benefit for the six 
weeks 
under 
the 
act. 
Crewe 
v. 
Social 
Security 
Commissioner, (1982) 2 All ER 745, 749. [Social Security 
Act, 1975, S.20(1)(a)].  
The words ‘just cause’ in S. 263 are exhaustive and not 
merely illustrative. Merely the failure to fill an  inventory or 
the account within the specified time is not sufficient. It 
must be established that the person to whom the grant has 
been made willfully and without reasonable cause omitted 
to exhibit them. In Re. T. Arumuga Mudaliar, AIR 1955 Mad 
622. [Indian Succession Act (39 of 1925), S.263]. [P. 
Ramanatha Aiyar’s “Advanced Law Lexicon”, 2005 Edition, 
Vol. 3, at pages 2539 and 2540:] 
 
(iv) 
‘just’  means according to law. [Utility Stores Corporation 
of Pakistan Ltd v. Punjab Labour Appellate Tribunal (PLD 
1987 SC 447) and Shahi Bottlers (Pvt) Ltd  v. Punjab 
Appellate Tribunal (1993 SCMR 1370)]  
 
 
 
“Fairly” 
 
(i) 
‘fairly’ means  “equitably, honestly, impartially…. Justly, 
rightly, with substantial correctness, reasonably…”. [Black’s 
Law Dictionary, Revised 4th Edition of 1968, at page 719] 
 
(ii) 
 ‘fairly’  means beautifully: neatly: justly: reasonably: 
plainly: gently: fully: quite: tolerably. [Chambers, 20th 
Century Dictionary, New Edition 1983 at page 452]  
 
(iii) 
‘fair’ --“the world conveys some idea of justice or equity in 
partial free from suspicion or bias; equitable; reasonable; 
honest; upright; and as applied to the weather, a fair 
weather is one free from clouds; not obscure”—‘FAIR, 
HONEST, EQUITABLE, REASONABLE’ – ‘fairness”  enters 
into every minute circumstance  connected with the  
interest of the parties, and weights them alike for both; 
honestly is contended with a literal conformity to the law, it 
consults the interest of one party. An estimate is fair in 
which profit and loss, merit and demerit with every 
Const. P. No.87/2011 
41 
collateral circumstances is duly weighed; a judgment is 
equitable which decides suitably and advantageously for 
both parties; a price is reasonable which does not exceed 
the limits of reason or propriety. A decision may be either 
fair or equitable; but the former is said mostly in regard to 
trifling matters, and the latter in regard to the important 
rights of mankind. It is the business of the umpire to 
decide fairly between the combatants, it is the business of 
the Judge to decide equitably between men whose property 
is at issue.” [P. Ramanatha Aiyar’s “Advanced Law 
Lexicon”, 2005 Edition, Vol. 2, at page 1761 and 1762] 
 
 
A perusal of the above shows that the words “justly”, “fairly” and 
“honestly” have similar shades of meaning. As has been rightly 
submitted by Mr. Farogh Naseem, these words imply that the Election 
Commission is under a direct constitutional obligation to exercise all 
powers invested in it in a bona fide manner , meeting the highest of 
standards 
and 
norms. 
As 
a 
natural 
corollary, 
therefore, 
all 
discretionary power is also to be exercised and tested against these 
standards.  
 
40. 
 
A bare reading of Article 218(3) makes it clear that the 
Election Commission is charged with the duty to ‘organize’ and 
‘conduct the election’. The language of the Article implies that the 
Election Commission is responsible not only for conducting the election 
itself, but also for making all necessary arrangements for the said 
purpose, prior to the Election Day. By conferring such responsibility on 
the Election Commission, the Constitution ensures that all activities 
both prior, on and subsequent to Election Day, that are carried out in 
anticipation thereof, adhere to standards of justness and fairness, are 
honest, in accordance with law and free from corrupt practices. This 
Court in Election Commission of Pakistan v. Javaid Hashmi and 
others.(PLD 1989 SC 396), observed that “(g)enerally speaking 
election is a process which starts with the issuance of the election 
Const. P. No.87/2011 
42 
programme and consists of the various links and stages in that behalf, 
as for example, filing of nomination papers, their scrutiny, the hearing 
of objections and the holding of actual polls. If any of these links is 
challenged it really (is) tantamount to challenging the said process of 
election”. It interpreted that the phrase ‘conduct the election’ as 
having “wide import” and including all stages involved in the election 
process. These observations subject all election related activities that 
take place between the commencement and the end of the election 
process to the jurisdiction conferred on the Election Commission under 
Article 218(3). The Election Commission therefore has to test all 
election related activities that are carried out in the relevant period, 
both individually and collectively, against the standards enumerated 
therein  
 
41.   
The Election Commission may also exercise its powers in 
anticipation of an ill that may have the effect of rendering the election 
unfair. In the case titled as In Re: Petition filed by Syed Qaim Ali Shah 
Jellani (PLD 1991 Jour. 41) the Elections Commission exercised its 
powers under Article 218(3) pre-emptively, by making all necessary 
arrangements to ensure that a certain class of people would be 
allowed to vote. This case implies that where a violation of the 
standards mentioned in Article 218(3) has not as yet taken place, the 
Election Commission is legally empowered under Article 218(3) to 
exercise its powers pre-emptively in order to avoid a violation of these 
standards. Furthermore, Mst. Qamar Sultana v. Public at Large (1989 
MLD 360) and In Re: Complaint of Malpractices in Constituency No. 
NA-57, Sargodha-V (supra) both reinforce the argument that the 
Election Commission is fully empowered by Article 218(3) to make 
‘such orders as may in its opinion be necessary for ensuring that the 
Const. P. No.87/2011 
43 
election is fair, honest etc’. These decisions recognize that the Election 
Commission enjoys broad powers not only to take pre-emptive action 
but also to pass any and all orders necessary to ensure that the 
standards of ‘honesty, justness and fairness’ mentioned in Article 
218(3) are met. 
 
42.   
The Parliament has framed different laws to effectuate the 
above constitutional provision and to regulate elections to the National 
and Provincial Assemblies. ROPA reiterates and further vests the 
Election Commission with the responsibilities and powers to, inter alia, 
regulate and check intra-party affairs and actions taken by candidates 
and parties in anticipation of and on Election Day, resolve all election 
disputes, declare the election void and to award punishments for 
violating relevant election laws. In appreciation of the arduousness of 
its task, section 5(2) of ROPA further empowers the Election 
Commission to “require any person or authority to perform such 
functions or render such assistance for the purposes of this Act as…it 
may direct”. The Election Commission may, under section 103(c) of 
ROPA also “issue such instructions and exercise such powers, and 
make such consequential orders, as may in its opinion, be necessary 
for ensuring that an election is conducted honestly, justly and fairly, 
and in accordance with the provisions of this Act and the rules”. Article 
220 of the Constitution also directs the Federal and Provincial 
machinery 
to 
assist 
the Election Commission in fulfilling its 
constitutional responsibilities. The law, therefore, entrusts the Election 
Commission with exclusive, broad and extensive powers to attend to 
all issues related directly and ancillary to the election process.  
 
Const. P. No.87/2011 
44 
43. 
 
Article 218(3) also empowers the Election Commission to 
ensure that the election process does not suffer from any corrupt 
and/or illegal practices. Sections 78, 79, 80, 80-A, 81 and 83 of ROPA 
comprehensively define the terms “corrupt practices” and “illegal 
practices”.  ROPA in sections 82, 99 and 100 further elaborates the 
consequences of such practices and enunciate that the same form a 
sufficient basis for the Election Commission to, inter alia, imprison, fine 
and disqualify those who violate them. These provisions, therefore, 
subsume all those impugned activities as cognizable by the Election 
Commission. Similarly, Section 103(a) of ROPA instructs the Election 
Commission to ensure a “fair election”. In doing so it implies that 
“large 
scale 
malpractices 
including 
coercion, 
intimidation 
and 
pressures, prevailing at the election” would negate the ‘fairness’ 
elections are to embody. While sections 78, 79, 80, 80-A, 81 and 83 
specify activities that the Election Commission can regulate and check 
under Article 218(3), section 103(a), substantially enhances this 
defined spectrum of cognizable activities and reinforces the obligation 
to check them. In section 103(c) section it empowers the Election 
Commission to issue instructions, exercise its powers and make orders 
to effectuate the said standard  
  
44.   
While there is no cavil with the proposition that the 
Election Commission stands as an independent and fully empowered 
constitutional body, the 18th and 20th Constitutional Amendments, 
have substantially enhanced the degree of independence and the 
scope of powers enjoyed by the Election Commission. Prior to 18th 
Constitutional Amendment, the Commission comprised the Chief 
Election Commissioner and two retired Judges as members thereof. 
Vide the 18th Amendment, the strength of the members has been 
Const. P. No.87/2011 
45 
increased from two to four, with the additional requirement that each 
of the members be a Judge of High Court of each Province, duly 
appointed by the President as per prescribed procedure provided for 
appointment of the Commissioner in clauses (2)(a) & (b) of Article 
218(1) of the Constitution. The entrustment of greater responsibility 
and the enhancement of its strength are part of an effort fully to equip 
the Commission to discharge its broad set of responsibilities. These 
also reflect a growing trust in the Commission to act independently 
and without influence in conducting and organizing elections “fairly, 
honestly, justly and in accordance with law”. In the parliamentary 
system of government a constitutionally independent and empowered 
Election Commission rests as one of the foundational stones of a 
democratic setup. In the past, the Election Commission has 
succumbed to external influence and failed to discharge its 
responsibilities successfully. The inadequacy of the Commission’s effort 
in organizing and conducting the election to the above standards, has 
had detrimental repercussions for the democratic system in Pakistan. 
Not only has it undermined the legitimacy of the elections and the 
claim of the winning party to form government, but has also, by 
disregarding express constitutional dictates regulating the same, 
devastated the trust and faith reposed by the citizenry in the rule of 
law and supremacy of the Constitution. This is why Pakistan has 
witnessed political parties, individual candidates, as well as the 
citizenry, reject and denounce some of the election results. The rigging 
of elections was cited as a major ground for the imposition of martial 
law in the country in 1977, which was unfortunately validated by the 
Supreme Court. Consequently, an unconstitutional order was imposed 
on the people of Pakistan with the false hope of holding fair and free 
Const. P. No.87/2011 
46 
elections within 90 days. The solemn commitment made by General 
Ziaul Haq, Chief Martial Law Administrator, however, was never 
honoured and the people of Pakistan remained subject to an 
unconstitutional regime for nearly 11 years. In light of the powers and 
independence that the Election Commission enjoys today, such an 
unfortunate abuse of power and disregard of the constitutional dictate 
to establish and preserve democracy seems impossible.  
 
45.   
Furthermore, under Article 221 of the Constitution, the 
Commission, with the approval of the President, is empowered to 
make rules providing for the appointment of its officers and servants. 
Similarly, under section 107 of ROPA, the Commission may, with the 
approval of the President, make rules for carrying out the purposes of 
this Act. These powers further reinforce the independence with which 
the Commission is to exercise its powers. Such conclusions have 
already been drawn and find support in the case of Sh. Rashid Ahmed 
v. Federation of Pakistan (PLD 2010 SC 573) relevant paragraph there 
from is reproduced hereunder: -  
9.  
We have considered the above submissions and have 
also gone through the material placed before us and the 
relevant 
constitutional 
provisions. 
Part 
VIII 
of 
the 
Constitution comprising Articles 213 to 226 related to 
"Elections". 
Article 
213 
reflects 
that 
Chief 
Election 
Commissioner in this part shall be referred to as the 
Commissioner; whereas, Article 219(b) provides that "the 
Commissioner shall be charged with the duty of organizing 
and conducting election to the Senate or to fill casual 
vacancies in a House or a Provincial Assembly". Thus it is 
quite evident that the Constitution places upon the Chief 
Election Commissioner an obligation to organize the 
election. Article 220 of the Constitution provides that "it 
shall be the duty of all executive authorities in the 
Federation and in the Provinces to assist the Commissioner 
and the Election Commission in the discharge of his or 
their functions; conceptually placing the position of 
Commissioner and Election Commission upper most while 
discharge their functions requiring the executive authority 
to assist; in other words "to aid" the Commissioner and the 
Election Commission. In that course, the executive 
Const. P. No.87/2011 
47 
authority shall have no option but, to offer, unhesitatingly, 
its assistance to make the way for the Commissioner or 
the Election Commission smoother rather than to make it 
difficult; either to stop, postpone or slow down their pace 
in the discharge of duties, in this case holding election for 
seat to question. The provision of Article 220 of the 
Constitution also reflects to be in pari materia with the 
provision of Article 190 of the Constitution according to 
which "all executive and judicial authorities throughout 
Pakistan shall act in aid of Supreme Court"; which hold the 
Supreme Court upper most in the hierarchy of the 
judiciary for which the Constitution envisages that its 
independence shall be fully secured. Thus, to sum up, 
testing on the touchstone of afore-referred provisions of 
Constitution, the net result that comes out is that the 
Chief Election Commissioner and the Election Commission 
are absolutely independent with exclusive jurisdiction 
while performing duties within terms of Part-VIII of the 
Constitution in which no interference is allowable by any 
of the parties interested by resorting to any manner and 
mode, as was done in the present case. All the concerned 
quarters, namely Federal and Provincial Governments, the 
Law Enforcing Agencies as well, are under an obligation to 
ensure 
that 
Chief 
Election 
Commissioner/Election 
Commission function independently; and see that they 
are properly strengthened enabling them to discharge 
their constitutional commitments fairly, freely and without 
any hindrance and pressure of whatsoever nature. 
 
It may therefore be said that there is no restriction on the Commission 
to frame rules with the approval of President, to ensure that the 
elections are conducted fairly, honestly, justly and in accordance with 
law and that corrupt practices are guarded against. Under Article 222, 
Majlis-e-Shoora (Parliament), subject to the Constitution, is authorized 
to promulgate laws for following purposes: -  
(a)  the allocation of seats in the National Assembly as 
required by clauses (3) and (4) of Article 51;  
(b)  the delimitation of constituencies by the Election 
Commission;  
(c)  
the preparation of electoral rolls, the requirements 
as to residence in a constituency, the determination 
of objections pertaining to and the commencement 
of electoral rolls;  
(d)  the conduct of elections and election petitions; the 
decision of doubts and disputes arising in connection 
with elections;  
(e)  matters relating to corrupt practices and other 
offences in connection with elections; and  
(f)  
all other matters necessary for the due constitution 
of the two Houses and the Provincial Assemblies;  
Const. P. No.87/2011 
48 
 
While the Majlis-e-Shoora may promulgate law to regulate the same, 
any law which has the effect of abridging any of the powers of the 
Commissioner or the Commission would not find support in the law.  
 
46.   
It is of utmost importance that the Election Commission 
executes its functions and discharges its responsibilities effectively, 
efficiently and in letter and in spirit. By declaring that the 
representatives of the people “shall be elected by direct and free vote, 
in accordance with law” in Article 51(6)(a), the Constitution identifies 
‘elections’ as the first and an integral step in effectuating the aforesaid 
constitutional dictates. At page 254 of the judgement given in the Al-
Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84), this Court 
commented on the important role of the Election Commission and 
observed that by fulfilling its mandated duties and responsibilities, the 
Election Commission essentially “give(s) birth to a body/institution of 
the nation, called Parliament”. The effective fulfilment and honest 
discharge of this tremendous responsibility would lend greater 
legitimacy to an elected democratic government and give effect to its 
constitutional mandate. It is, therefore, imperative that the Election 
Commission employs its extensive powers to regulate the election 
process. Any shortfall in the discharge of its responsibilities would 
violate express dictates of our Constitution, devastate the efficacy of 
our constitutional order and the envisioned operation of the State. 
Therefore, in appropriate circumstances, the Election Commission may 
be directed to fulfil its constitutional and legislative dictates by inter 
alia bringing all relevant political practices into conformity with the 
Constitution and the law.  
 
Const. P. No.87/2011 
49 
47. 
 
We have examined this issue in the light of the provision of 
Article 218(3) as well as the relevant provisions of ROPA. It may be 
noted that all parties to the instant case concur that the law regulating 
election expenses and other election related activities is already 
present on the statute book. This mechanism of regulation finds 
meaning through the relevant Articles and provisions of the 
Constitution, ROPA as well as other laws for example, the Senate 
(Election) Act, 1975. It may be noted here that section 48 of ROPA 
defines ‘election expenses’ whereas section 49 ibid caps the campaign 
expenditure of the contesting candidate to one and a half million 
rupees for a seat in the Senate and a National Assembly seat and one 
million rupees for a Provincial Assembly seat. Section 68 of ROPA 
provides that the Tribunal shall declare the election of the returned 
candidate to be void if, inter alia, 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. Subsection (2) of section 68 provides that the election of a 
returned candidate shall not be declared void on the ground 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. Section 70 of the Act provides that the 
Tribunal shall declare the election as a whole to be void if, inter alia, it 
is satisfied that the result of the election has been materially affected 
by reason of the prevalence of extensive corrupt or illegal practice at 
the election. Section 78 of the Act, 1796 defines the corrupt practices 
which, inter alia, include contravention of the provisions of section 49. 
Const. P. No.87/2011 
50 
Section 82 provides that any person guilty of corrupt practice shall be 
punishable with imprisonment for a term which may extend to three 
years, or with fine which may extend to five thousand rupees, or with 
both. Section 99(1A) provides that a person shall be disqualified from 
being elected as, and from being, a member of an Assembly, if, inter 
alia, has been convicted by a court of competent jurisdiction on a 
charge of corrupt practice, moral turpitude or misuse of power or 
authority under any law for the time being in force; or he is found 
guilty of a corrupt or illegal practice under any law for the time being 
in force, unless a period of five years has elapsed from the date on 
which that order takes effect; or illegal practice. Considering the above 
provisions, we agree with the submission of Mr. Rafiq Rajwana, ASC 
that the strict implementation of the existing election laws is the need 
of the hour. We are also in agreement with the submission made by 
Dr. Khalid Ranjha, Sr.ASC that the Constitution and the election 
laws of Pakistan provide a comprehensive and adequate 
mechanism for regulating election expenses by enumerating 
different offences, penalties and procedures for a breach thereof. 
It is a matter of fact that the provisions and articles regulating the 
same are not adhered to, both in letter and in spirit. It is therefore 
emphasized that all these laws be strictly complied with by all relevant 
parties. It is also true that this mechanism for regulating the 
election process is concurrently, inadequately enforced. Poor 
enforcement thereof stems from a misconception regarding the 
capacity of the Election Commission to attend to the same. At 
this juncture, we reiterate that the Election Commission is fully 
empowered and independent to do all that is necessary to fulfil 
its constitutional mandate and instruct that it do so.  
Const. P. No.87/2011 
51 
 
48.   
We would now propose to deal with specific practices 
identified 
by 
the 
petitioners. 
With 
respect 
to 
the 
financial 
accountability of the candidate, Section 50 of ROPA provides that 
every contesting candidate, other than the returned candidate, shall 
submit the return of his election expenses within thirty days of the 
publication of the name of the returned candidate. As per subsection 
(2) of section 50, the return of election expenses of the returned 
candidate and of every contesting candidate shall be submitted to the 
Returning Officer in the prescribed form containing (a) a statement of 
all payments made by him together with all bills and receipts; (b) a 
statement of all disputed claims; (c) a statement of all unpaid claims, 
if any; and (d) a statement of all moneys, securities or equivalent of 
money received from, or spent, by any person for the benefit of the 
candidate, specifying the name of every such person. As per 
subsection (3), the returns submitted under sub-section (2) shall be 
accompanied by an affidavit of the candidate in the prescribed form. 
As per section 51 of ROPA, the Returning Officer is bound to keep the 
returns and documents submitted under section 50 and to allow any 
person to inspect the same on payment of the prescribed fee, during a 
period of one year from the date of their receipt, or provide the copies 
if the same. Though the account of election expenditure is required to 
be submitted within 30 days of the declaration of the result, the 
monitoring has to be done on a regular basis during the campaign 
period because after the campaign is over, it becomes difficult to get 
any evidence of election expenditure.  
 
49.   
Ch. Shujat Hussain and Mr. Mushahid Hussain Syed, 
President and Secretary General of PML(Q) appeared in Court on 
Const. P. No.87/2011 
52 
28.03.2012, and submitted that the elected representatives of the 
people, immediately after taking oath, file false returns of election 
expenses before the Election.  To overcome this phenomenon, in our 
view, the Election Commission must monitor election expenses 
from the day the holding of election is notified. All expenses 
incurred in carrying out any election related activity, are legally 
required to be accounted for. It is precisely because of the failure to 
account for the same that election expenses incurred by each 
candidate run into millions of rupees and exceed the prescribed ceiling. 
We reiterate that all expenditure over and above the prescribed ceiling 
qualifies as corrupt practice and direct the Election Commission to 
exercise its rule making power to formulate procedures to monitor 
election expenses and deal with the corrupt practices committed in the 
election process in accordance with law and ensure that the election is 
held justly, honestly and in accordance with law. An expenditure 
monitoring mechanism, i.e. monitoring cell, surveillance system, 
media certification, etc., should be devised to monitor the election 
expenses, be they for the National Assembly, Senate, Provincial 
Assemblies or the Local Bodies. The Election Commission must hold 
meetings with the candidates and apprise them of the relevant 
laws/rules, receive from them statements of expenses on weekly basis 
by engaging election staff, carry out inspection at random at different 
places. All transactions relating to election expenses should be entered 
into with GST registered firms/persons. Furthermore, a candidate must 
account for all the expenses immediately after the election is over. 
The 
Declaration 
Form 
should 
include 
the 
following 
further 
declarations: -  
 To meet election expenses, I have opened account 
No.________________ 
with 
_____________________ 
Const. P. No.87/2011 
53 
[name & branch of a scheduled bank] and the amount 
permissible for election expenses deposited therein.  
 All election expenditure shall be made out of the money 
already deposited in the aforesaid account.  
 No transaction towards the election expenses shall be 
made through an account other than the above account. 
[Copy of bank statement will be annexed with the Return.]   
 
Maintenance of day-to-day account of election expenditure by the 
candidate ought to be mandatory. In order to monitor day-to-day 
election expenditure incurred by the candidate, election expenditure 
monitoring 
centres/teams 
ought 
to 
be 
constituted 
in 
each 
constituency. The services of Returning Officers can also be availed in 
this regard. It is only through such a rigorous mechanism that the 
necessary culture of accountability within the political sphere.  
 
50. 
 
In the course of electioneering and campaigning, most 
candidates and their supporters take out massive car rallies and use 
expensive vehicles for transporting the voters to and from the polling 
stations. In doing so these candidates and parties end up incurring 
exorbitant expenses and exceed the ceiling prescribed to section 49. 
This practice also creates a nuisance for the ordinary citizens and 
causes discomfort to the sick and students. Such rallies ought not to 
be allowed to travel long distances except if they have pre-arranged 
corner meetings at specific designated places. These meetings should 
be notified to the ordinary public by the local administration. The local 
administration 
must 
also 
ensure 
that 
all 
candidates 
are 
accommodated. Secondly, the substantial expenditure incurred in 
hiring and using transport has never been adequately monitored by 
the 
Election 
Commission. 
We, 
therefore, 
direct 
the 
Election 
Commission to take account of all expenditures incurred in the course 
Const. P. No.87/2011 
54 
of campaigning for activities that are directly and indirectly related and 
ancillary to the election process. Furthermore, to facilitate the voters, 
the number of polling stations may be increased appropriately 
throughout the country so that the polling stations are not at a 
distance of more than two kilometres from the place of residence of 
voters. In this regard, the Election Commission may take into 
consideration the suggestions made at the bar and ban all private 
transport on Election Day. Alternatively, the voters may be transported 
by vehicles, owned, rented or affiliated with the Election Commission. 
The routes of such vehicles should be widely advertised in the print 
and electronic media for information of the general public.  
 
51. 
 
During 
hearing, 
vide 
order 
dated 
17.04.2012, 
we 
instructed the relevant authority to submit a report regarding the 
sufficiency of the existing Polling Scheme and the number of Polling 
stations. The relevant portion wherefrom is reproduced hereunder: -   
“In compliance of directions of this Court, Syed Sher 
Afgan, DG (Elections), Election Commission of Pakistan has 
placed on record Election/Polling Scheme prepared in the 
year 2007 for the Elections of 2008 (33 books); he is 
directed to handover copy of this Election/Polling Scheme 
(33 books) for record of the Court; he is further directed to 
deliver a copy of the notification of the polling/election 
scheme for constituency of NA-49 to the Commissioner 
and Deputy Commissioner ICT, who on receipt of the same 
shall submit a report to the following effect:- 
i) 
whether the polling/election scheme prevailing for 
the last many years is sufficient to cater the 
requirement of the voters, so they may conveniently 
exercise their right of franchise without depending 
upon the arrangements made by the candidates 
contesting the elections qua transporting them from 
one place to another, etc.; and 
ii) 
whether the number of polling stations are to be 
increased according to the latest electoral list.” 
Const. P. No.87/2011 
55 
 
Relevant Paras from the report received in pursuance of the aforesaid 
order read as follows: -  
“3. 
Polling Scheme is prepared under Section 8 of the 
Representation of the People Act, 1976. Polling Stations 
established 
for 
General 
Elections-2008 
relating 
to 
Constituency NA-49 were 197 while total registered voters 
were 242877. In line with the relevant law, all polling 
stations were set up in the government buildings. Each 
polling station covered radius of about 03 kilometer. At an 
average, 1500 to 2500 voters were facilitated to cast their 
vote in each polling station. And every polling station 
comprised of about 2 to 4 polling booths each. 
4. 
In pursuance of the Supreme Court Order and 
subsequent to the meeting presided over by the Acting 
Chief Election Commissioner of Pakistan consultations were 
held in the Deputy Commissioner's Office with the Federal 
Directorate of Education, District Election Commissioner 
Islamabad and the concerned Sub Divisional Magistrates. 
It has transpired that in comparison to year 2008, a total 
of 56,723 additional voters have been registered so far 
thereby increasing the total number of voters in NA-49 to 
low as compared to 242877. Thus there is a requirement 
to enhance the number of Polling Stations so that they are 
commensurate with the population/voters increased. In 
this proposed draft it is recommended that 50 new Polling 
Stations should be introduced thus raising the number to 
247 as compared to 197 in the year 2008. By increasing 
the number of Polling Stations it is expected that twofold 
benefits will be accrued that is:-  
(i) 
More Polling Stations will reduce the distance 
covered by the voters to cast their vote.  
(ii) 
Pressure on Polling Stations will be eased thus 
resulting in quick turn over at each Polling Station. 
 
5. 
As a result of this exercise, the average number of 
voters per Polling Station is 1212 which is a manageable 
number. While determining the additional Polling Stations, 
the distance that a voter has to travel has been kept into 
Const. P. No.87/2011 
56 
consideration. There are 847 census blocks in NA 49 now. 
The polling stations have been established in such a way 
that a radius of 1.5 kilometers is covered compared to 3 
kilometers of the scheme of general election of 2008. 
7. 
The addition of Polling Stations will require increased 
manpower 
and 
deployment 
of 
security 
apparatus. 
Islamabad has sufficient staff available, in the Federal 
Directorate of Education and the Capital Development 
Authority, which can perform such duties.” 
 
52.   
Other electioneering practices like camping in the vicinity 
of the polling station and the handing over of Perchis to the voters are 
a cause of concern. By camping in the vicinity of the polling station 
and handing over of Perchis to the voters, the candidates, through 
their polling agents and supporters, influence the voters and 
compromise the objectivity with which they are to cast their vote. On 
polling day candidates establish their camps near the polling stations 
and spend substantial amounts to canvass the voters to vote for a 
particular 
candidate. 
Such 
action 
on 
the 
part 
of 
the 
candidates/supporters is clear violation of section 84 of ROPA. Section 
84 of ROPA imposes restriction on election activity 48 hours before the 
polling. and specifically prohibits public meetings and promotion or 
participation in any procession . It clearly stipulates that the election 
campaign in all respects has come to an end 48 hours before the 
polling in order to enable the electorate to exercise their right of 
franchise freely and without influence. Similarly, section 85 prohibits 
canvassing for votes, soliciting of votes, persuading any elector not to 
vote at the election or for a particular candidate, or exhibiting any 
notice, sign, banner or flag designed to encourage the electors to vote 
or discourage the electors from voting for any contesting candidate 
within a radius of 400 yards of the polling station. It is common 
Const. P. No.87/2011 
57 
knowledge that different forms of electioneering activities continue 
through the prohibited period. Therefore, to ensure strict compliance 
with section 84 of ROPA, the Election Commission may manage to 
dispatch extracts from the voters’ list in the name of one or more 
persons living in a house much before the polling day by post, or to 
save the postage by annexing such extracts with any of the utility bills. 
It is also suggested that NADRA may be deputed to furnish details of 
the voters at their residences. This exercise is required to be 
completed at least 7 days before the polling day, and this would 
facilitate a voter to exercise his right of franchise independently with 
full application of mind and without influence from the candidate or his 
supporters. A fair and transparent election rests at the heart of a 
democratic 
system. 
Therefore, 
any 
effort 
which 
cultivates 
a 
complimentary political culture should be encouraged. If need be, 
instead of involving the employees of the Provincial Governments, the 
employees 
of 
Federal 
Government/autonomous 
organizations/ 
agencies, including the armed and para-armed forces  may be 
instructed to carry out stipulated functions at the polling stations.  
 
53.   
Section 83A provides that no person or political party shall 
affix posters, hoardings or banners larger than the size prescribed by 
the Election Commission. It further provides that wall-chalking as part 
of an election campaign is prohibited in all forms and that 
loudspeakers shall not be used for election campaign except at the 
election meetings. Contravening these provisions is punishable with 
imprisonment up to one year or fine, or both. The Zila Nazim and the 
Returning Officer ought to ensure the effective implementation of 
these provisions. Section 83A(1) provides that the prescribed posters, 
Const. P. No.87/2011 
58 
hoardings or banners shall not be affixed nor parties’ flags shall be 
hoisted on any public property or at any public place, except with the 
permission in writing from, and on payment of such fee or charges, as 
may be chargeable by the concerned local government or authorities. 
However, strangely, the concerned authorities have never taken any 
steps to enforce these provisions. The Election Commission should 
take all necessary steps to ensure compliance and enforcement 
thereof.  
 
54.   
The petitioners have also recommended that certain 
election activities be introduced and actively encouraged – activities 
that, on the one hand, fulfil the purpose of the election campaign, and 
on the other, which a common man is able to engage in. The 
petitioners have identified door-to-door campaigning, formation and 
distribution of manifestos, equal opportunity to canvas on State 
television and radio, and candidate – voter interaction/debates, etc.  
The following details the petitioner’s position on each of their 
recommendations 
and 
the 
respondents 
response 
to 
them 
It 
subsequently records our observations on the matter.  
 
55.   
Door-to-door campaigning is an effective means of 
establishing communication between the candidate and the voter. 
Such a campaign strategy demonstrates the candidate's “resolve, 
commitment and level of interest in his/her community”. According to 
the petitioners, door-to-door campaigning is the cheapest and most 
convenient method of communication for persons of modest means. 
The provisions of Articles 17, 25, 51 and 218(3) of the Constitution 
which mandate a fair and level playing field and require that the 
interests of persons of modest means be protected. The petitioners 
Const. P. No.87/2011 
59 
have also submitted that this method of communication is the least 
intrusive method of communication, since it involves direct contact 
between the candidate and the voter and leaves the decision to 
interact and receive information entirely on the voter. Finally, the 
petitioners have submitted that this recommendation, supplemented 
with a ban on political rallies, big luxurious vehicles, loudspeakers, 
banners, etc., would be the most effective way of reaching out to the 
electorate and creating a political culture, which is fair and open to 
individuals from all walks of life. Almost all of the respondents concur 
with this proposal of the petitioners. Dr. Farogh Naseem, on behalf of 
MQM, and Mr. Hamid Khan, on behalf of PTI have submitted that door-
to-door campaigning is an effective means of communicating with the 
electorate. The political culture in developed countries also encourages 
door-to-door campaigning and other forms of personalized voter-
candidate interaction.   
 
56.   
The 
petitioners 
have 
submitted 
that 
it 
should 
be 
mandatory for every political party and/or candidate to publish and 
distribute a manifesto containing a candidate's election promises and 
program. The petitioners believe that manifestoes are an essential 
component of an election campaign since they bind a candidate to 
his/her promises and the governing mandate enumerated therein. 
Furthermore, the publication and distribution of manifestos is a 
relatively cheap yet effective means of communication, especially in 
situations where mobility is limited. They have, therefore, argued that 
through a published manifesto, a new candidate has the opportunity of 
indirectly reaching out to voters, without having to expend too much 
on travel. The petitioners have also argued that the publication and 
distribution of the manifesto is a necessary expense that, owing to its 
Const. P. No.87/2011 
60 
utility, ought to be supported by the government. They have, however, 
conceded that strict conditions as to expenses relating to the 
publication, including those relating to the quality of paper and printing 
be employed. This initiative would, in the opinion of the petitioners, 
allow even those less advantaged individuals to participate in politics, 
who do not have the financial means to publish and distribute their 
manifestoes themselves. Such an initiative would pave way for free 
and fair elections and consequently towards progress and welfare via 
a true democracy. Dr Farogh Naseem, on behalf of MQM, agrees with 
the proposal of the petitioner. He has submitted that publishing and 
disseminating a party’s manifesto is integral to any election campaign. 
Consequently, the State may assist in this regard by bearing the 
expense of publishing it. Advocate Hamid Khan has also submitted that 
PTI fully supports the initiative of the petitioners. He has submitted 
that the cost of printing a manifesto and supply of party flags is 
generally borne by political parties and not individual candidates. He 
has further submitted publishing of manifesto and disseminating it 
amongst the voters is a relatively less expensive method of 
campaigning and should be encouraged.  
 
57.   
The petitioners have proposed that the State should 
provide a schedule delegating airtime to candidates on state television 
and radio. This facility, in their opinion, would serve as a unique 
opportunity for the candidate to share their election programs and 
manifestoes with the electorate. The petitioners have further reiterated 
their condemnation of the practice of allowing candidates airtime on 
private television channels to advertise their candidature as part of 
their election campaign. Mr. Rafique Rajwana has submitted on behalf 
of PML(N) that the State should not be seen discriminating against any 
Const. P. No.87/2011 
61 
candidate and/or any political party. Consequently, it should be duty of 
the government to provide air time for equal duration to all political 
parties and their candidates. Mr. Hamid Khan has concurred with the 
proposal of the petitioners. He has submitted that equal air time 
should be given to political parties that have fielded a large number of 
candidates in the general elections, on the State Television and Radio. 
Mr. Salman Raja, on behalf of APP, has submitted that the Election 
Commission should ensure that no candidate or political party should 
be allowed to reserve time on private TV channels and that adequate 
time should be given to each party to present their programme on 
State Television. 
 
58.   
The petitioners have also proposed setting up forums that 
encourage candidate-voter interaction by allowing the voters the 
opportunity to put forward their questions to the candidates. An 
election campaign is a means for the candidate to communicate with 
the voters. The petitioners have proposed that the State should 
encourage candidates to present themselves to their voters and to 
actively address their questions and concerns through a direct 
platform. In this regard, they submit that the State should designate 
indoor venues according to a preplanned schedule duly published in 
and disseminated through newspapers. Dr Farogh Naseem has 
submitted that MQM has developed a detailed strategy for increasing 
interaction with voters, both at the party and the candidate level. They 
have submitted that the petitioners’ proposal would have the effect of 
increasing the desired interaction between the electorate and the 
voter. Furthermore, Mr. Hamid Khan has also submitted that the 
voters should have an equal opportunity to reach the candidate during 
the election campaign. There should be debates between the 
Const. P. No.87/2011 
62 
candidates and voters which would enable them to understand one 
and another better. Appreciating the practical implications of such a 
proposal, Mr. Hamid Khan has observed that considering the large 
number of voters per constituency, there may be practical difficulties 
for the State to arrange such gathering, and fulfil the purpose of these 
gatherings.  
 
59.   
The petitioners have submitted that voter awareness 
regarding his legal and constitutional rights and duties, is integral to 
the election process and, therefore, to the functioning of democracy. 
According to the petitioners, the prevalent political culture in Pakistan 
perpetuates power on the basis of feudal land holdings and other 
disenfranchising power centres. This is grossly apparent in the 
electioneering culture in such areas. Consequently, according to the 
petitioners, the ordinary voter is not always entirely aware of his/her 
rights and duties regarding the process of voting itself. They have, 
therefore, submitted that this Court may issue appropriate directions 
to the Election Commission to undertake an extensive and effective 
campaign through the media to educate voters about, inter alia, the 
necessity to vote and the procedure of voting. Furthermore, the 
petitioners have proposed that the Election Commission must 
concurrently assure the voters that their choice on the ballot would 
remain completely anonymous and that the exercise of their right of 
franchise should be carried out without fear. The Election Commission 
may designate an official at each polling station in order to ensure 
such a commitment is met and to provide guidance regarding voting 
procedure. Upon implementation, such a proposal would curtail the 
number of invalid votes. They have further argued that section 103 of 
the ROPA, imputes responsibility to ensure that the elections are 
Const. P. No.87/2011 
63 
conducted honestly, justly and fairly, squarely on the Election 
Commission. They have argued that by educating the voter about the 
procedure and importance of voting, the Election Commission would 
only be fulfilling its responsibility mandated by section 103 of ROPA. 
Dr. Farogh Naseem has submitted on behalf of MQM, that voter 
education 
can 
be 
undertaken 
effectively 
by 
political 
parties 
themselves. He has submitted that political parties, therefore, may be 
directed to conduct such seminars and others related activities. He has 
also suggested that necessary changes should be made to incorporate 
the said seminars as part of the secondary school curricula. He has 
further submitted that the government may also be directed to 
allocate funds for education of the voter. Mr. Rajwana, on behalf of 
PML(N), has  expressed a similar concern regarding the need to 
educate the voter. This, he has observed may be achieved either 
through the parties or the government, or both. Mr. Hamid Khan has 
expressed PTI’s support for this proposal. He has submitted that 
political parties should undertake the responsibility to educate the 
voters. It is one of the basic duties and obligations of the political 
parties to create voter awareness so that the voters can make 
intelligent and informed choice when casting their votes.  
 
60.    
The petitioners have argued that sections 38 & 39 of 
ROPA read with Articles 17, 19-A and 51 of the Constitution mandate 
that the results of each polling station be announced at that polling 
station after a first count and a recount in the presence of the 
representatives of each candidate and by law consolidation of results 
be done on the basis of that count/recount. Dr. Farogh Naseem has 
not expressed any issue with the proposal of the petitioners. He has 
submitted on behalf of MQM that the results should be immediately 
Const. P. No.87/2011 
64 
announced in Form 14, which should contain the signatures and thumb 
impression of the Presiding Officer. He has argued that instead of 
involving government servants or bureaucrats, who allegedly act upon 
and are subservient to the dictates of the incumbent government, 
members of the lower judiciary and teachers should be involved in the 
process of tabulation as well as announcement. Mr Hamid Khan has 
submitted on behalf of PTI that, the results should be announced 
immediately after the count of votes at the end 'of the poll that day at 
each polling station. The results should be declared immediately and 
their certified copies should be supplied to the polling agents of all 
candidates after the count. He has further submitted that the result 
should also be affixed outside the polling station after due certification 
by the Presiding/Polling Officers at the polling station. This should be 
strictly enforced since it would minimize interference with the election 
process and the counting of votes. 
 
 
 
61.   
We have considered the above suggestions of the 
petitioners as amplified by the submissions made on behalf of the 
respondent political parties. There is unanimity of view on various 
suggested courses of action. Therefore, we direct the Election 
Commission to frame rules and issue instructions to provide legal 
sanction 
to 
these 
measures, 
namely, 
door-to-door 
campaign, 
manifesto, canvassing on State television and radio, and candidate – 
voter interaction/debates, etc. as appropriate and implement the same 
to achieve the ultimate objective of fair, free, just and honest election.  
 
62.   
There is divergence of opinion among the petitioners and 
the respondent political parties on the issue of computerized balloting. 
It is submitted on behalf of the petitioners that the existing system of 
Const. P. No.87/2011 
65 
balloting via paper votes is antiquated and suffers from severe defects. 
First and foremost, the petitioners have argued that this system is 
susceptible to rigging. They have further submitted that because of the 
system of casting votes by paper, most election disputes pertaining to 
balloting require a full-fledged trial for a resolution. They have 
submitted that India, with has a much larger voting population, has a 
computerized balloting system. In this regard, they have submitted a 
report 
drafted 
by 
PILDAT 
(Pakistan 
Institute 
of 
Legislative 
Development and Transparency) that has identified and recommended 
the relevant authorities to implement the system of computerized 
balloting 
in 
Pakistan. 
The 
petitioners 
have 
therefore 
sought 
“appropriate directions from this Honourable Court to the Election 
Commission to take urgent steps to implement the; method of 
balloting as speedily as possible.” Dr. Farogh Naseem has, however, 
submitted that the masses have not been sufficiently educated to deal 
with the complexities of a completely computerized overhaul. He has 
submitted that this suggestion is not suited to the present times. He 
has further argued that if computer balloting is introduced, there is a 
possibility that feudal lords may amass computer devices and use 
them to cast votes themselves to the complete exclusion of the voters. 
In this regard, he has submitted that political parties may be 
instructed to conduct seminars and other activities to educate the 
voters. He has also submitted that this education may be introduced at 
the secondary education level and taught as part of the syllabus to 
inculcate a sense of responsibility in the citizenry to cast votes. This 
process however, requires long term planning and should not be on 
the agenda of the Election Commission in the short run. Mr. Hamid 
Khan has, on behalf of PTI submitted that electronic voting should be 
Const. P. No.87/2011 
66 
introduced through Electronic Voting Machines (EVMs). He has 
however pointed out that the upcoming general elections may be too 
soon for this overhaul. Prior to the adoption of EVMs various laws need 
to be introduced in order to safeguard the system against electoral 
fraud. Furthermore, according to Mr. Hamid Khan, the system cannot 
work without the introduction of biometric voter identification system, 
which would indentify the voters at the polling stations. Since such 
pre-requisites are not in place, Mr. Hamid Khan has submitted that 
introducing electronic voting for the upcoming general elections would 
have the effect of throwing the entire vote-counting process into 
disarray. Mr. Taufique Asif has submitted that the JIP agrees in 
principle with the introduction of electronic voting and fully appreciates 
the merits of it. He has however submitted that the system must be 
fool-proof and should be introduced gradually on an experimental 
basis, and all the stake-holders must be consulted before finalizing this 
system. It was also submitted that the citizens must be provided with 
the facility to register, correct or transmit their votes through internet 
or telephone and system may also be installed (in due course of time) 
in the relevant government departments for the said purpose. The 
Federation has submitted that the Election Commission is in the 
process of introducing computerized balloting in the country.  
 
63.   
Having considered the pros and cons of computerized 
balloting as highlighted by the petitioners as well as the respondents, 
we expect that the Election Commission, which has already 
commenced work on this issue, will take effective steps to introduce 
computerized balloting at an appropriate time.   
  
64. 
 
The petitioners have raised another plea relating to intra-
Const. P. No.87/2011 
67 
party elections. Dr. Farogh Naseem has submitted that a pertinent 
concern is the fact that the Election Tribunals fail to decide election 
disputes efficiently and at times with such time delay that election 
petitions become infructuous in the course of hearing. Mr. Hamid Khan 
has submitted that intra-party elections should be held at every level 
to promote democratic culture within the party. Such elections should 
be held with secret ballot and the political parties should not be 
fiefdoms of their leaders. By introducing electoral process within the 
political parties the democratic culture will be promoted. There will be 
greater opportunity for the parties to grow and develop leadership 
within their own ranks. The existing ruling elite has deliberately 
avoided holding of internal elections of their political parties and is 
running them arbitrarily at the will and whims of their leaders.  
 
65. 
 
We have considered the issue in the light of the arguments 
made at the bar. The issue at hand, however, does not relate to this 
plea. We, therefore leave it to be taken up at the appropriate forum.  
 
66.   
Article 222 of the Constitution provides that the Parliament 
may, by law, provide for allocation of seats in the National Assembly, 
delimitation 
of 
constituencies, 
preparation 
of 
electoral 
rolls, 
requirements as to residence in a constituency, determination of 
objections pertaining to and the commencement of electoral rolls, 
conduct of elections and election petitions, matters relating to corrupt 
practices and other offences, and all other matters necessary for the 
due Constitution of the two Houses and the Provincial Assemblies. 
Article 219(a) of the Constitution specifically provides that the Election 
Commission is charged with the duty of preparing electoral rolls for 
election to the National Assembly and the Provincial Assemblies, and 
Const. P. No.87/2011 
68 
revising such rolls annually. However, there have been widespread 
complaints that the electoral rolls are not revised annually and that 
they contain hundreds of thousands of bogus entries. It has been 
submitted that not only the General Elections of 2002, but also those 
of 2008 were held on the basis of electoral rolls based on the 1998 
Census.  In this behalf, Mr. Farogh Naseem, ASC has referred to the 
case of Imran Khan v. Election Commission of Pakistan (Constitution 
Petition No. 31 of 2011) and Ms. Benazir Bhutto v. Federation of 
Pakistan (Constitution Petition No. 45 of 2007) wherein the 
authenticity of electoral rolls has been questioned. In the said case, 
this Court has already taken certain corrective steps. In this behalf, it 
has been pleaded on behalf of the Awami Party Pakistan that women 
are under-registered in electoral rolls and the Election Commission has 
failed to ensure the political participation of the same in the electoral 
process. As a solution to the issue of bogus entries in the electoral 
rolls, Mr. Hamid khan, Sr. ASC has suggested that the Army and 
Frontier Corps be instructed to be present not only at the stage of 
polling, but also at the time of preparation/revision of electoral rolls.  
 
67. 
 
Fair, free, honest and just elections are sine qua non for 
strengthening 
of 
democracy. 
To 
achieve 
this 
goal, 
accurate 
preparation/revision of electoral roll is immediately required to be 
undertaken by the Election Commission through credible and 
independent agencies. In so doing, the conventional ways and means 
of merely depending upon NADRA alone or other similar bodies must 
be discontinued forthwith. Accordingly, we direct the Election 
Commission to undertake door-to-door checking of voters’ lists and 
complete the process of updating/revision of the electoral rolls by 
engaging Army and the Frontier Corps, if need be. This exercise should 
Const. P. No.87/2011 
69 
be undertaken as early as possible and in accordance with the time 
limit fixed in Imran Khans’ case (supra).   
 
68. 
 
It is submitted on behalf of the petitioners that the election 
tribunals, which are mandated to resolve all election disputes, are over 
worked and cause severe delays in resolving disputes. It is submitted 
that “the number of tribunals appointed should have a fair co-relation 
with the number and volume of disputes raised or petitions filed, and 
procedures ensuring speedy disposal, therefore, this Court may issue 
appropriate directions to the Election Commission so that the election 
disputes are decided expeditiously. Such directions would ensure the 
speedy removal of an illegal office bearer and would avoid the 
situation wherein such an individual continues to hold the office 
illegally despite serious challenges to his election solely because the 
tribunals are overworked or existing procedures allow lingering of 
trials. On behalf of MQM, it is submitted that the Election Tribunals do 
not speedily decide election disputes and at times election petitions 
become infructuous due to efflux of time as they are not decided 
during the time in which an office is occupied by a candidate. Similar 
concerns have been agitated on behalf of PTI and APP and it has been 
submitted that the election tribunals keep delaying the disposal of 
petitions until the next elections so as not to get into “bad books” of 
winning candidates, who more often than not belong to the party in 
power. Section 67(1A) of ROPA mandates that a Tribunal must 
adjudicate a petition within 3 months. Unfortunately this provision is 
violated more often than not. Reliance has been placed on a report by 
European Union 2008 EOM on the 2008 elections, which found that 39 
out of 221 petitions from 2002 elections remained unresolved after the 
Parliament’s five-year term had expired. The petitioners have 
Const. P. No.87/2011 
70 
requested that while issuing the requisite directions, the following 
factors may be kept in mind: -  
(i) 
deeming an election petition and its reply to be the 
examination in chief of the parties;   
(ii) 
examination in chief of witnesses by affidavit;  
(iii) 
recording of evidence on commission; and  
(iv) 
heavy costs for adjournments sought without good cause.  
 
It is submitted on behalf of PTI that the procedure for resolving 
election disputes expeditiously should be provided under the law. 
There should be more election tribunals, which should speedily decide 
the cases of election disputes.  
 
69.   
We have given anxious consideration to this issue. Since 
the purpose of this petition is to allow vast majority of Pakistani 
citizens to meaningfully participate in the election process, there is a 
need to adhere to the procedure laid down for resolving election 
disputes expeditiously and ensure completion of whole process 
including appeals within 120 days. Section 57 of ROPA empowers the 
Chief Election Commissioner to appoint as many Tribunals as may be 
necessary. Thus, corrective measures are required to be taken at their 
end to ensure that the election disputes are resolved at the earliest. 
The Election Commission may also consider establishing a panel of 
lawyers well conversant with election laws at the State expense to 
provide free legal services to the marginalized segments of society and 
take other steps it considers appropriate.   
 
70.   
As it has been pointed out hereinabove that under the 
constitutional dispensation, Article 2A, etc., the country is to be 
governed by the chosen representatives of the people of Pakistan. 
There have been debates at different forums that, in view of the low 
Const. P. No.87/2011 
71 
turn out of the voters at election, a winning candidate does not qualify 
as a representative of the majority of the electorate of a constituency. 
There are cases in which a candidate has been returned despite the 
fact that the number of votes polled in his favour had not been more 
than 10 to 15 percent. These statistics and the phenomenon of low 
voter turn-out raise pertinent questions regarding the ownership of the 
winning candidates claim. They also shed light on a dire need to 
identify and address the key causes thereof.  
 
71.   
Article 51 is an embodiment of the democratic spirit of our 
Constitution, wherein it prescribes the mechanism for the selection and 
establishment of a democratically elected government. This Article 
entitles every person to cast their vote if they meet the requirement 
mentioned therein. It therefore, enables all eligible individuals to 
participate in the political process of the country and to thereby, select 
as well as set a democratic government in motion. The aforementioned 
discussion has sufficiently addressed the Constitutional importance of 
democracy as a cardinal feature of our Constitutional Order and a 
prescribed system of government. Indeed, it is only through the 
operation of Article 51 that the Constitutional dictate of establishing a 
democratic government is realized. A failure or any shortfall in the 
operation thereof would substantially undermine the legitimacy of an 
elected democratic government. Furthermore, this would also have the 
effect of isolating the electorate from the democratic process and 
rendering the elected government, democratic in form, but not in 
spirit. Such a compromise, and especially of a fundamental tenet of 
our Constitution must be avoided. The parties have submitted that the 
electorate in Pakistan has, in almost all elections, failed to implement 
Article 51. They have submitted statistics which indicate that Pakistan 
Const. P. No.87/2011 
72 
has suffered from a glaringly low voter turnout in almost all national 
elections. In the National Elections of 2008, the total voter turnout, as 
recorded by the Election Commission, was 44.11 percent of the total 
registered voters. A meager 31.32 percent, 31.05 percent and 33.54 
percent of to total registered voters cast their votes in Balochistan, 
FATA and Khyber Pakhtunkhwa respectively. In Punjab and Sindh, 
48.18 percent and 44.16 percent of the registered voters voted at the 
elections. During hearing of the case, the representatives of Election 
Commission were asked to share figures that demonstrated the 
percentage of votes secured by the winning candidate in a particular 
constituency. The results were perplexing. In NA-I, Peshawar, against 
total votes of 387083 only 88954 votes were polled (22.98% of the 
total votes). The candidate who secured 49.70% of the votes polled 
and a meager 11.42% of the total votes cast, was declared 
successful,. It is to be noted that the individuals who stand elected by 
securing an insignificant majority of the votes cast, cannot legitimately 
claim to be the representative of the people. Furthermore, an election 
that suffers from such a poor voter turnout could not be said to be 
effectuating the true spirit of democracy, as envisioned by the 
Constitution. All necessary steps must be taken to ensure that this 
Constitutional dictate of nurturing and being governed by democratic 
ethos is honured in letter and spirit. 
 
72.   
Many countries have enacted laws, which make it 
compulsory for the electorate to participate in the election process. 
Compulsory voting is an age old practice that was adopted to counter 
anti-democratic practices and presently twenty three countries have 
adopted compulsory voting in their respective jurisdictions. In 1777, 
the State of Georgia enacted legislation to make voting compulsory 
Const. P. No.87/2011 
73 
and directed that “every person absenting himself from an election, 
and shall neglect to give in his or their ballot at such election, shall be 
subject to a penalty not exceeding five pounds; the mode of recovery 
and also the appropriation thereof, to be pointed out and directed by 
act of the legislature: Provided, nevertheless, that a reasonable excuse 
shall be admitted”. In Austria, compulsory voting was partially 
introduced in 1929 but extended to parliamentary elections in 1949. 
Netherlands also introduced compulsory voting in 1917 along with in 
Spain, Venezuela and Chile. Congo, Brazil and Argentina have also 
made voting compulsory for citizens between 18 and 70 years old. In 
primaries, the citizens under 70 years of age may refuse to vote, if 
they formally express their decision to the electoral authorities, at 
least 48 hours before the election. Ecuador has adopted a form of 
compulsory voting, which makes its obligatory on citizens between 18 
and 65 years to vote in elections. It is, however, not compulsory for 
citizens aged 16–18, illiterate people, and those older than 65. In 
Singapore, voting is compulsory for citizens aged above 21 years on 
the 1st of January of the year of election. Non-voters are removed 
from the electoral register until they reapply, providing a reason for 
their abstention. Peru and Urugay have also adopted compulsory 
voting to ensure that their democratic mandate is sufficiently and 
successfully met.  
 
73.   
Some jurisdictions impose sanctions against individuals 
who violate the law by failing to vote. They, however, before levying a 
sanction, require the non-voting citizen to provide legitimate reasons 
for his/her abstention from voting, if any exist. These sanctions have 
taken different forms. Countries have also impressed fines against 
non-voters. The amount varies in different countries, e.g., 3 Swiss 
Const. P. No.87/2011 
74 
Francs in Switzerland, between 300 and 3000 ATS in Austria, 200 
Cyprus Pounds in Cyprus, 10-20 Argentinean Pesos in Argentina, 20 
Soles in Peru, etc. A non-voting citizen may also face imprisonment as 
a sanction. In cases where such a person refuses to pay the fine 
despite being reminded to do so, the courts impose a prison sentence. 
Countries like Belgium disenfranchise voters who fail to vote in 
elections consecutively for 15 years. In Singapore the voter is 
removed from the voter register until he/she reapplies to be included 
and submits a legitimate reason for not having voted. In Peru the 
voter has to carry a stamped voting card for a number of months after 
the election as a proof of having voted. This stamp is required in order 
to obtain some services and goods from some public offices. In Bolivia 
the voter is given a card when he/she has voted so that he/she can 
proof the participation. The voter would not be able to receive his/her 
salary from the bank if he/she cannot show the proof of voting during 
three months after the election. Australia introduced compulsory 
enrollment and voting in 1924, for both state and national elections. 
Some states have made voting in local council elections compulsory as 
well. Eligible voters who remain absent from the polling stations are 
liable to pay fines of 20-50 Australian Dollars and may also face 
imprisonment in case of non-payment of fines.  
 
74.   
For 
reference, 
the 
relevant 
provisions 
of 
the 
Commonwealth Electoral Act 1924, whereby certain amendments were 
made in the Commonwealth Electoral Act 1918-1922 for the purpose 
of 
making 
provision 
for 
Compulsory 
Voting, 
are 
reproduced 
hereinbelow: -  
Compulsory voting. 
128A. (1.) It shall be the duty of every elector to record 
his vote at each election. 
Const. P. No.87/2011 
75 
(2.) It shall be the duty of each Divisional Returning 
Officer at the close of each election to prepare a list (in 
duplicate) of the names and descriptions of the electors 
enrolled for his Division who have not voted at the 
election, and to certify the list by statutory declaration 
under his hand.  
(3.) The list so certified shall in all proceedings be prima 
facie evidence of the contents thereof and of the fact that 
the electors whose names appear therein did not vote at 
the election. 
(4.)  Within the prescribed period after the close of each 
election the Divisional Returning Officer shall send by post 
to each elector whose name appears on the list prepared in 
accordance with sub-sections (1.) and (2.) of this section, 
at the address mentioned in that list, a notice, in the 
prescribed form, notifying the elector that he appears to 
have failed to vote at the election, and calling upon him to 
give a valid truthful and sufficient reason why he failed so 
to vote. 
(5.) Before sending any such notice, the Divisional 
Returning Officer shall insert therein a date, not being less 
than twenty-one days after the date of posting of the 
notice, on which the form attached to the notice, duly filled 
up and signed by the elector, is to be in the hands of the 
Divisional Returning Officer. 
(6.) Every elector to whom a notice under this section 
has been sent shall fill up the form at the foot of the notice 
by stating in it the true reason why he failed so to vote, 
sign the form, and post it so as to reach the Divisional 
Returning Officer not later than the date inserted in the 
notice. 
(7.) If any elector is unable, by reason of absence from 
his place of living or physical incapacity, to fill up, sign, 
and post the form, within the time allowed under sub-
section (5.) of this section, any other elector who has 
personal knowledge of the facts may, subject to the 
regulations, fill up, sign, and post the form, duly witnessed 
within that time, and the filling up, signing, and posting of 
the 
form 
may 
be 
treated 
as 
compliance 
by 
the 
firstmentioned elector with the provisions of sub-section 
(6.) of this section. 
(8.) Upon receipt of a form referred to in either of the 
last two preceding sub-sections, the Divisional Returning 
Officer shall indorse on both copies of the list prepared in 
accordance with sub-section (2.) of this section, opposite 
the name of the elector, his opinion whether or not the 
reason contained in the form is a valid and sufficient 
reason for the failure of the elector to vote. 
(9.) The Divisional Returning Officer shall also indorse on 
both copies of the list, opposite the name of each elector 
to whom a notice under this section has been sent and 
from or on behalf of whom a form properly filled up signed 
and witnessed has not been received by him, a note to 
that effect. 
(10.) Within two months after the expiration of the period 
prescribed under sub-section (4.) of this section, the 
Const. P. No.87/2011 
76 
Divisional 
Returning 
Officer 
shall 
send 
to 
the 
Commonwealth Electoral Officer for the State one copy of 
the list, with his endorsements thereon, certified by 
statutory declaration under his hand. 
Each copy of the list prepared and indorsed by the 
Divisional Returning Officer, indicating 
(a) 
the names of the electors who did not vote at the 
election; 
(b) 
the names of the electors from whom or on whose 
behalf the Divisional Returning Officer received, 
within the time allowed under sub-section (5.) of this 
section, forms properly filled up and signed; and 
(c) 
the names of the electors who failed to reply within 
that time, and any extract therefrom, certified by the 
Divisional Returning Officer under his hand, shall in 
all proceedings be prima facie evidence of the 
contents of such list or extract, and of the fact that 
the electors whose names appear therein did not 
vote at the election, and that the notice specified in 
sub-section (4.) of this section was received by those 
electors, and that those electors did, or did not (as 
the case may be), comply with the requisitions 
contained in the notice within the time allowed under 
sub-section (5.) of this section. 
(12.) Every elector who— 
(a) 
fails to vote at an election without a valid and 
sufficient reason for such failure; or 
(b) 
on receipt of a notice in accordance with sub-section 
(4.) of this section, fails to fill up, sign, and post 
within the time allowed under sub-section (5.) of this 
section the form (duly witnessed) which is attached 
to the notice; or 
(c) 
states in such form a false reason for not having 
voted, or, in the case of an elector filling up or 
purporting to fill up a form on behalf of any other 
elector, in pursuance of sub-section (7.) of this 
section, states in such a form a false reason why 
that other elector did not vote, shall be guilty of an 
offence.  
Penalty: Two pounds. 
(13.) Proceedings for an offence against this section shall 
not be instituted except by the Chief Electoral Officer or an 
officer thereto authorized in writing by the Chief Electoral 
Officer. 
 
75.   
As has been discussed above, it is a constitutional 
imperative that a democratic government be established and nurtured 
in Pakistan and an obligation of all functionaries of the State, including 
the Election Commission, to ensure adherence thereto. Various 
provisions of the Constitution and other laws have fully empowered 
and legally equipped the Election Commission to ensure that the 
Const. P. No.87/2011 
77 
election, it is responsible to “organize and conduct”, establishes and 
achieves a true democratic government as envisioned by the 
Constitution. Therefore, the Election Commission is obliged to ensure 
that all elections witness a substantial participation of the electorate. 
By making voting compulsory and attaching sanctions for its violation, 
the Election Commission and/or the appropriate body can resolve a 
long standing problem, and bring existing election-related processes in 
line with the dictates of the Constitution. Therefore, all necessary steps 
must be taken to make voting compulsory in Pakistan as early as 
possible. This initiative would have the effect of strengthening 
democracy by giving effect to the constitutional mandate that the 
Government shall be run by the chosen representatives. 
 
76.   
The petitioners have also proposed that the existing ‘First 
Past the Post’ (FPTP) system be scrutinized for its viability as an 
election system. They have questioned whether FPTP fulfills the 
constitutional mandate of ensuring true representation and free, fair 
and just elections and proposed that other systems be tested for their 
viability and considered as possible alternatives. They have argued 
that since the Constitution does not specifically endorse this particular 
system, it is permissible to consider and adopt an alternative system, 
that is better attuned to the spirit of democracy envisioned by the 
Constitution is permissible. Mr. Salman Akram Raja has submitted that 
to ensure meaningful participation and representation of all shades of 
classes and groups, it should be made mandatory that there should be 
mixed electoral system based on first-past-the-post and proportional 
representation as is prevalent in majority of countries. At least 10% of 
seats should be reserved for parties on proportional representation 
basis, if they obtain more than 2% of the total votes polled. The list of 
Const. P. No.87/2011 
78 
such candidates may be given in advance to Election Commission.  
 
77.   
It may be noted that according to FPTP system of election, 
the candidate securing the highest number of votes is the winner. The 
winning candidate, however, does not necessarily receive an absolute 
majority of all votes cast. Thus, according to this voting system, the 
members 
of 
the 
Parliament 
who 
claim 
themselves 
to 
be 
representatives of people, may not command the majority of the votes 
registered and polled. Therefore, they may not genuinely represent 
their electorate. Such phenomenon is perpetuated by defective 
electoral laws, especially section 42 of the ROPA, which is based on 
FPTP. The said section provides that any contesting candidate who has 
secured the highest number of votes (not more than 50% of the polled 
votes) is declared to be elected. At this stage, reference may be made 
to the definition of the expression “majority votes” given in Black's 
Law Dictionary, 6th Edition, p. 955, which reads as under: -  
“Majority votes: Votes by more than half of votes for 
candidates or other matter on ballot. When there are only 
two candidates, he who receives the greater number of the 
votes cast is said to have a majority; when there are more 
than two competitors for the same office, the person who 
receives the greatest number of votes has a plurality, but 
he has not a majority unless he receives a greater number 
of votes than those cast for all his competitors combined."  
 
 
78.   
In 
the 
elections 
of 
2008, 
the 
members 
of 
the 
Parliament/Assemblies were elected on the basis of system of ‘first 
past the post’. In light of the above, most of them could not claim to 
be 
true 
representatives 
of 
the 
people 
of 
their 
respective 
constituencies, as they did not secure more than 50% of the votes 
polled. For example, in the case of the National Assembly out of 268 
contested seats the winners in 108 seats secured less than 50% of the 
polled votes. Thus, more than 40% of the National Assembly seats 
Const. P. No.87/2011 
79 
lacked majority representation. In certain cases, it was even less than 
30%. In order to make the electoral system democratic and 
representative the only remedy lies in the adoption of re-polling 
(runoff) in those electoral constituencies where there is no clear 
winner who has secured at least or more than 50% of the votes polled. 
In the fresh polling between the two leading candidates anybody who 
secures majority votes should be declared successful. This system is 
prevalent in many democratic countries. The same has been adopted 
in the Local Government Elections in Pakistan. This question arose 
especially on the observation of this Court that the 18th amendment to 
the Constitution has brought about a change in Article 91(4) and 
introduced a second round/runoff election, if the candidate for Prime 
Minister is unable to secure a certain threshold number of votes from 
the total of the membership of the National Assembly, in the first 
round of voting. The said provision violates the principle of majority. 
Professor Bernard Chrick, Emeritus professor of Politics, Birkbeck 
College, London, in his famous book ‘Democracy’, describes the FPTP 
as undemocratic and certainly unrepresentative. In the case of Mir 
Salim Khan Khosa v. Chief Election Commissioner (2002 SCMR 109) it 
was held that under the unamended provisions [section 16(3) read 
with section 37 Balochistan Local Government Election Ordinance, 
2000] the panel of candidates securing even a single vote more than 
the other contesting panel or panels of candidates was entitled to be 
declared elected but under the amended provisions securing of more 
than 50% of the total votes of the members of the Unions Councils in 
the District is mandatory and the candidates who fail to achieve the 
target are not to be notified as returned candidates even if they secure 
highest number of votes. The rationale and object of the amendment 
Const. P. No.87/2011 
80 
appears to be to ensure that the winning panel of candidates virtually 
represents the majority of the voters of the district and a panel of 
candidates out of three or four contesting panels does not win the 
election by securing 25% or 30% of votes. The amendments have 
redressed the possible anomaly under majority or plurality system 
where in the event of an election being contested by a large number of 
candidates one of them wins the election with a few votes and thereby 
represents only a small and not a large segment or the constituency. 
However, as the respondents therein had secured more than 50% of 
total votes, the appeal was dismissed.  
 
79.   
The petitioners have proposed that the electorate should 
be given the option of refusing to vote for candidates they do not 
support. It is for this reason that they have proposed that the ballot 
paper should have a ‘none of the above’ option. This option would, 
according to the petitioners, lend voice to those members of the 
electorate who do not support any of the candidates for the political 
office/seat. The fact that Pakistan suffers from a low voter turnout in 
elections, means that those who stand elected may not truly be the 
‘representative’ of the people of Pakistan. If the vote is an expression 
of the electorate’s choice, then the electorate ought to be given the 
option to express their dissatisfaction with the candidates, as well. A 
‘None of the above’ option, therefore, would serve to give effect to this 
purpose. Furthermore, with this option, the electorate would be in a 
position to claim greater ownership of their constituencies and would 
be able to exercise their own decision-making powers by nominating 
appropriate candidates. To reinforce their point, the petitioners have 
also submitted that such a practice also exists in some parts of the 
world and has been proposed in others. They have sought a 
Const. P. No.87/2011 
81 
declaration that an election that does not provide the right to choose 
“None of the above Candidates” is ultra vires, inter alia, Articles 17, 51 
(6), 106 (3) and 218 (3). Or in the alternative, hold as per prayers ‘d’ 
and ‘e’ in C.P.87 of 2011. On behalf of the Federation, it was stated 
that the said runs contrary to the electoral laws in force. Mr. Salman 
Raja, ASC, on behalf of the APP agrees with the proposal of the 
petitioners. He has further submitted that if the number of votes 
casted in the ‘None of the above’ category are more than those casted 
in favour of other candidates, than those elections must be declared 
void and re-polling should be ordered. Mr. Taufique Asif has submitted 
that the JIP agrees in principle with the petitioners, but have 
alternatively proposed that proportional system should be considered 
as a viable alternative for the existing system of elections, which is 
better suited to attaining electoral justice and national harmony – a 
primary goal of the society that the majority system (presently 
prevalent in Pakistan) is incapable of attaining. It has been submitted 
that the proportional system has the following merits: -   
(a) 
Wider Representation;  
(b) 
Political Institutionalization; 
(c) 
Political Education; 
(d) 
Fair Elections;  
(e) 
Crystallization of Ideology;  
(f) 
Political Equations;  
(g) 
Sense of Participation and Confidence;  
(h) 
Tolerance for Disagreements; and  
(i) 
An Islamic Perspective. 
 
In certain jurisdictions, voters have the option to vote ‘none of the 
above’ if they do not want to vote for any of the candidates to show 
dissatisfaction with the certain candidates instead of whole process. 
The same is, therefore, recommended to be considered for adoption 
Const. P. No.87/2011 
82 
by the concerned authority.    
 
80.   
In the light of the above discussion, the titled petition is 
disposed of with the following observations, declarations and 
directions: -  
(1) 
The freedom of association, as enunciated by Article 17 of 
the Constitution, confers a Fundamental right on every 
individual to partake in the political governance of the 
State, whilst concurrently reinforcing the constitutional 
mandate to protect and advance this right through a 
democratic system. The ‘freedom of assembly’ (Article 16) 
and ‘freedom of speech’ (Article 19) also serve to realize 
this constitutional imperative; 
(2) 
By 
guaranteeing 
the 
observance 
of 
‘principles 
of 
democracy’ in Pakistan and mandating that the “State shall 
exercise its powers and authority through the chosen 
representatives of the people”, the Constitution of Pakistan 
instructs that the authority to govern be exercised by and 
through a representative and democratic government. The 
conferment of this authority has been framed with an 
ardent dedication ‘to the preservation of democracy’ and, 
therefore, encapsulates it as one of its core values. By 
establishing and enumerating the powers and manner in 
which the legislature is to function, Part II and III of the 
Constitution cement ‘democracy’ as the chosen system of 
the people and a fundamental constitutional dictate;  
(3) 
The Constitution of Pakistan mandates the Election 
Commission to organize and conduct the election and to 
make such arrangements as are necessary to ensure that 
the election is conducted honestly, justly, fairly and in 
accordance with law, and that corrupt practices are 
guarded against, but unfortunately the said mandate has 
not been properly fulfilled in the past;   
(4) 
The Representation of the People Act, 1976 vests the 
Election Commission with the responsibilities and powers 
to, inter alia, regulate election expenses, provide for 
offences, penalties and procedures in case of breach of 
Const. P. No.87/2011 
83 
conditions relating thereto, resolve all election disputes, 
declare 
the 
election 
void, 
etc. 
The 
constitutional 
requirement to hold elections fairly, freely, honestly, justly 
and in accordance with law obligates the Election 
Commission to exercise all powers vested in it to the best 
of standards and norms;   
(5) 
All public power is a sacred trust, which is to be exercised 
fairly, justly, honestly and in accordance with law; and 
wherever any discretionary power is vested in a public 
authority or functionary, that too, is to be exercised to 
achieve the goal of fair, free, honest and just discharge of 
this sacred trust; and   
(6) 
The impugned election practices and processes are 
cognizable by the Election Commission and are required to 
be dealt with in accordance with the Constitution and the 
law; therefore, the constitutionality or otherwise of the 
election laws is not a relevant question in the present 
proceedings, rather strict implementation is called for.    
 
81. 
In pursuance of the above, we hold and direct as under: -  
 
(a) 
All the election laws be strictly implemented by the 
Election Commission in the discharge of its constitutional 
mandate 
under 
Article 
218(3) 
of 
the 
Constitution, 
Representation of the People Act and other laws/rules;  
 
(b) 
The Election Commission is empowered to check not just 
illegal actions relating to the election (violating the limits 
set for campaign finance, etc.) or corrupt practices 
(bribery, etc.), but is also empowered to review all election 
activities, including Jalsas, Jaloos, use of loudspeakers, 
etc. for their effects on the standards of ‘fairness, justness 
and honesty’ that elections are expected to meet. The 
Election Commission is also empowered to take pre-
emptive measures to ensure that the spirit of democracy 
and ‘fairness, justness and honesty’ of elections is fully 
observed. The Election Commission is, therefore, directed 
to take all necessary steps to ensure the same;   
Const. P. No.87/2011 
84 
 
(c) 
The Election Commission must undertake monitoring of 
the election expenses from the day the holding of 
election is notified. A candidate must account for all the 
expenses immediately after the election is over. The 
Declaration Form should include the following further 
declarations: -  
(i) 
To meet election expenses, I have opened account 
No.______________ with _____________________ 
[name & branch of a scheduled bank] and deposited 
therein 
the 
amount 
permissible 
for 
election 
expenses.   
 
(ii) 
All election expenditure shall be made out of the 
money already deposited in the aforesaid account.  
 
(iii) 
No transaction towards the election expenses shall 
be made through an account other than the above 
account. [Copy of bank statement will be annexed 
with the Return.];    
  
(d) 
The Election Commission must hold meetings with the 
candidates and apprise them of the relevant laws/rules, 
receive from them statements of expenses on weekly basis 
by engaging election staff and carry out inspection at 
random at different places. All transactions relating to 
election expenses should be entered into with GST 
registered firms/persons;  
 
(e) 
To facilitate the voters, the number of polling stations may 
be increased appropriately throughout the country so that 
the polling stations are not at a distance of more than two 
kilometres from the place of residence of voters. In this 
behalf, 
the 
Election 
Commission 
may 
take 
into 
consideration the suggestions made at the bar, including 
the provision of official transport to the voters, but in no 
case, shall it allow the candidates to hire/use private 
transport 
on 
election 
day. Where 
arrangement for 
transport is made by the Election Commission, the routes 
of such transport should be widely advertised in the print 
and electronic media for information of the general public;  
 
(f) 
As regards the handing over of Perchis to the voters at 
election camps, the Election Commission must take steps 
Const. P. No.87/2011 
85 
to provide the requisite information to the voters by other 
means as discussed hereinabove. Therefore, to ensure 
strict compliance with section 84 of Representation of the 
People Act, 1976 in letter and in spirit, establishing of 
camps near the polling stations should be banned 
forthwith. The Election Commission may manage to 
dispatch extracts from the voters’ list in the name of one 
or more persons living in a house at least 7 days before 
the polling day by post, or to save the postage by 
annexing such extracts with any of the utility bill; 
 
(g) 
Only such election campaign activities ought to be 
permitted, which on the one hand fulfil the purpose of the 
election campaign, and on the other are within the reach 
of the common man. The petitioners have recommended 
certain 
activities, 
namely, 
door-to-door 
campaign, 
manifesto, canvassing on State television and radio, and 
candidate – voter interaction/debates, etc. ROPA and other 
relevant laws have held these activities to be permissible 
in the eyes of the law. These, therefore, ought to be 
encouraged by Election Commission on the basis of their 
merit;  
 
(h) 
To ensure fair and transparent election, if need be, instead 
of involving the employees of the Provincial Governments, 
the 
employees 
of 
Federal 
Government/autonomous 
organizations/agencies, including the armed and para-
armed forces  may be instructed to carry out stipulated 
functions at the polling stations;  
 
(i) 
As regards the introduction of computerized balloting, it is 
informed that the Election Commission has already 
undertaken work on it. We, therefore, expect that effective 
steps will be taken in this regard at an appropriate time;  
 
(j) 
To achieve the goal of fair, free, honest and just elections, 
accurate 
preparation/revision 
of 
electoral 
roll 
is 
immediately required to be undertaken by the Election 
Commission through credible and independent agencies. 
Const. P. No.87/2011 
86 
Accordingly, 
we 
direct the 
Election 
Commission 
to 
undertake door-to-door checking of voters’ lists and 
complete the process of updating/revision of the electoral 
rolls by engaging Army and the Frontier Corps to ensure 
transparency, if need be;   
 
(k) 
Corrective measures are required to be taken by the 
Election Commission to ensure that the election disputes 
are resolved at the earliest. The Election Commission may 
also consider establishing a panel of lawyers well 
conversant with election laws at the State expense to 
provide free legal services to marginalized segments of 
society;  
 
(l) 
The Election Commission is obliged to ensure that all 
elections witness 
a 
substantial 
participation 
of 
the 
electorate, therefore, all necessary steps must be taken to 
make voting compulsory in Pakistan as early as possible; 
 
(m) 
In the ‘First Past the Post’ system of election, the winning 
candidate does not necessarily receive an absolute 
majority of all votes cast, therefore, such a candidate does 
not command the majority of the votes polled. As such, 
the system of ‘First Past the Post’ violates the principle of 
majority. The Election Commission may explore ways and 
means to introduce appropriate system of election 
including ‘run off election’ and ‘none of the above options’, 
in the light of the discussion made hereinabove, to ensure 
true representation of the people and rule of the majority; 
and 
 
(n) 
The Election Commission is empowered to frame rules to 
ensure that the elections are conducted justly, fairly, 
honestly and in accordance with law and that corrupt 
practices are guarded against.  There  is  unanimity  of  
views  on various  suggested  courses of  action. 
Therefore,  we  direct  the  Election  Commission  to  frame 
rules  and  issue instructions  to  provide  legal  sanction  
Const. P. No.87/2011 
87 
to these measures and implement the same to achieve the 
ultimate objective of fair, free, just and honest election.   
 
 
 
  CHIEF JUSTICE 
 
 
 
 
 
 
 
 
 
 
JUDGE  
 
 
 
 
 
 
 
 
 
 
 
JUDGE  
 
Announced in open Court on 8th June, 2012 
at Islamabad.  
 
 
  CHIEF JUSTICE 
 
APPROVED FOR REPORTING 
 
