IN THE SUPREME COURT OF PAKISTAN 
(ORIGINAL JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE IJAZ UL AHSAN 
 
 
CONSTITUTION PETITIONS NO.74 TO 79 OF 2015, 49 TO 56 OF 
2016 AND 2 OF 2018 AND CIVIL MISC. APPLICATIONS NO.4292 OF 
2017 AND 162 OF 2018 
(Under Article 184 of the Constitution) 
 
 
Dr. Farhat Javed Siddique 
In Const.P.74/2015 
Mujahid Ali Khan 
In Const.P.75/2015 
Zakir Hussain Naseem 
In Const.P.76/2015 
Muhammad Zakir Ali Siddiqui 
In Const.P.77/2015 
Muhammad Asif Chaudhry 
In Const.P.78/2015 
Solicitor Muhammad Dawood Ghaznavi 
In Const.P.79/2015 
Kiran Zar 
In Const.P.49/2016 
Tauheed Ahmed Khan 
In Const.P.50/2016 
Ghazala Kanwal Asim 
In Const.P.51/2016 
Asif Malik 
In Const.P.52/2016 
Junaid Bari Dar 
In Const.P.53/2016 
Owais Fareed Pirzada 
In Const.P.54/2016 
Shahryar Jahangir 
In Const.P.55/2016 
Dure Shehwar Hanif 
In Const.P.56/2016 
Imran Khan and others 
In Const.P.2/2018 
Impleadment application by Dr. Arif Alvi 
In C.M.A.4292/2017 
Impleadment application by Imran Khan Niazi 
etc. 
In C.M.A.162/2018 
 
…Petitioner(s) 
VERSUS 
Government of Pakistan etc. 
 
…Respondent(s) 
(In all cases) 
 
For the petitioner(s): 
Mr. Anwar Mansoor Khan, Sr. ASC 
Mr. Faisal Fareed Hussain, ASC 
(In Const.P.2/2018) 
 
Syed Rifaqat Hussain Shah, AOR 
 (In Const.P.74-78/15, 49-56 of 2016) 
 
Solicitor Mr. Daud Ghaznavi, Petitioner in 
person in Const.P.79/15) 
 
 
For the 
respondent(s)/on 
notice: 
Mr. Khalid Jawed Khan, Attorney General for 
Pakistan. 
Syed Nayyar Abbas Rizvi, Addl. Attorney 
General assisted by Barrister Asad Rahim 
Mr. Zikriya Sheikh, DAG 
 
 
 
For ECP: 
Mr. Babar Yaqoob Fateh, Secy. ECP 
Mr. M. Arshad, D.G. Law 
 
Constitution Petition No.74/2015 etc. 
-: 2 :-
For NADRA: 
Mr. Usman Yousaf Mobeen, Chairman. 
Mr. Zulfiqar Ali, D.G. Projects 
Mr. Saqib Jamal, Director, Legal 
Mr. M. Ali D.G. Legal 
 
 
Dates of hearing: 
15.8.2018 (Islamabad) & 17.8.2018 (Lahore) 
 
ORDER 
 
 
MIAN SAQIB NISAR CJ.- The present petitions were filed by, 
inter alia, certain Overseas Pakistanis prior to the General Elections held 
on 25.07.2018 with the prayer that they (Overseas Pakistanis) be entitled to 
vote in the General as well as Local Bodies Elections. Pursuant to the 
order dated 29.01.2018 whereby this Court directed the National 
Database & Registration Authority (NADRA) with the assistance of the 
Election Commission of Pakistan (ECP) to develop a system to provide 
Overseas Pakistanis with an effective right to vote, an extensive exercise 
was undertaken. As a result Overseas Voting Solution (Internet Voting) (I-
voting) was developed. Various presentations were given to this Court to 
seek validation of the said system. A third party technical audit of the I-
voting system was also sought and a report was produced in this regard. 
While there were certain technical and security apprehensions about 
allowing Overseas Pakistanis to vote via the internet, the said report was 
generally positive and encouraging. Be that as it may, in order to ensure 
that no disruption of any kind was caused to the General Elections 2018, 
particularly by an overseas voting mechanism which had never been 
tried or tested before, this matter was postponed to after the said 
elections. The instant matter has now been revived by this Court.  
2. 
 
Learned counsel for the petitioners argued that on account 
of the provisions of Section 94 of the Election Act, 2017 (the Act), it is 
obligatory for ECP to enable Overseas Pakistanis to exercise their right to 
vote. It can discharge such obligation by framing the necessary rules 
under Section 239 of the Act. In response, ECP filed its para-wise 
comments along with the proposed rules for enabling Overseas 
Constitution Petition No.74/2015 etc. 
-: 3 :-
Pakistanis to cast their votes through internet. The learned Additional 
Attorney General for Pakistan has candidly stated that the right to vote of 
Overseas Pakistanis is enshrined in Article 17 of the Constitution of the 
Islamic Republic of Pakistan, 1973 (the Constitution). It has been spelt out 
very clearly in the judgment of this Court reported as Ch. Nasir Iqbal 
and others Vs. Federation of Pakistan thr. Secy. Law and others 
(PLD 2014 SC 72). According to him, it is only an appropriate 
mechanism system and procedure which needs to be put in place by ECP 
in exercise of its rule making power to determine how this right to vote 
shall be exercised in practical terms. 
3. 
 
There are no two opinions about the fact that a citizen’s right 
to vote is sacrosanct and paramount. Article 17 of the Constitution reads 
as under:- 
 
“17. Freedom of association. (1) Every citizen shall have 
the right to form associations or unions, subject to any 
reasonable restrictions imposed by law in the interest of 
sovereignty or integrity of Pakistan, public order or 
morality. 
 
(2) Every citizen, not being in the service of Pakistan, shall 
have the right to form or be a member of a political party, 
subject to any reasonable restrictions imposed by law in 
the interest of the sovereignty or integrity of Pakistan and 
such law shall provide that where the Federal Government 
declares that any political party has been formed or is 
operating in a manner prejudicial to the sovereignty or 
integrity of Pakistan, the Federal Government shall, within 
fifteen days of such declaration, refer the matter to the 
Supreme Court whose decision on such reference shall be 
final. 
 
(3) Every political party shall account for the source of its 
funds in accordance with law.” 
Constitution Petition No.74/2015 etc. 
-: 4 :-
In Ch. Nasir Iqbal’s case (supra) this Court interpreted Article 17 ibid and 
held that:- 
 
“6. 
Under Article 17 of the Constitution every citizen 
has the right to vote to participate in the governance of the 
country through their chosen representatives… 
 
8. 
It is to be noted that there is no distinction between 
the citizens living within Pakistan or outside the country, 
with regard to the right to vote in terms of the Article 17 of 
the Constitution…It warrants to mention that the right to 
vote has not been denied to the overseas Pakistanis, who 
are as much important as those living inside the country, 
but only the facilities to vote, which provides the sense of 
ownership and participation in the governance of the 
country, has not been extended to them… 
 
9. 
It must be clarified here that the overseas 
Pakistanis, as noted hereinabove, enjoy the right to 
participate in the election process in terms of Article 17 of 
the Constitution being dignified citizens of the country, 
though residing outside its territory, as such they cannot be 
denied the same rights on technical grounds, i.e. logistic 
arrangements made outside the country for casting their 
votes. 
 
13. 
…Article 17 of the Constitution continues to insist 
upon the Federal Government to extend the facility of 
voting to overseas Pakistani in the election of the 
Parliament as well as Local Bodies.” 
[Emphasis supplied] 
 
It is pertinent to note that after the aforementioned judgment was 
passed, no concrete steps were taken to actualize this right to vote for 
Overseas Pakistanis and enable them to participate in the electoral 
process while working/residing outside the territorial boundaries of 
Pakistan. 
However, 
subsequently 
the 
Act 
was 
promulgated 
on 
Constitution Petition No.74/2015 etc. 
-: 5 :-
02.10.2017. Section 94 whereof deals with voting by Overseas Pakistanis 
as follows:- 
 
“94. 
Voting 
by 
Overseas 
Pakistanis.—(1) 
The 
Commission may conduct pilot projects for voting by 
Overseas Pakistanis in bye-elections to ascertain the 
technical efficacy, secrecy, security and financial 
feasibility of such voting and shall share the results with 
the Government, which shall, within fifteen days from the 
commencement of a session of a House after the receipt of 
the report, lay the same before both Houses of Majlis-e-
Shoora (Parliament). 
 
(2) 
In this section, ‘Overseas Pakistani’ means 
a citizen of Pakistan under the Pakistan Citizenship Act, 
1951 (II of 1951) or holder of National Identity Card for 
Overseas Pakistanis under the National Database and 
Registration Authority Ordinance, 2000 (VIII of 2000) who 
is working or residing abroad permanently or temporarily 
for not less than six months.” 
[Emphasis supplied] 
 
The rulemaking power in this regard is vested with the ECP as 
contemplated by Section 239 of the Act which is reproduced as under:- 
 
“239. Power to make rules.—(1) The Commission may, 
by notification in the official Gazette and publication on the 
website of the Commission, make rules for carrying out 
the purposes of this Act. 
 
(2) 
The Commission shall make the Rules under sub-
section (1) subject to prior publication and after hearing 
and deciding objections or suggestions filed within fifteen 
days of the publication.” 
[Emphasis supplied] 
 
4. 
 
Overseas Pakistanis have been conferred with the right to 
vote as per the interpretation of Article 17 of the Constitution undertaken 
Constitution Petition No.74/2015 etc. 
-: 6 :-
by this Court in Ch. Nasir Iqbal’s case (supra). Thus where the right of 
Overseas Pakistanis to vote already exists as per the law and is duly 
recognized, it must necessarily be given due effect. For this reason, the 
word ‘may’ appearing in Section 94 of the Act is to be read as ‘shall’ and 
to this end, the only step which the ECP has to take is with regard to 
adoption of a suitable and effective mechanism and procedure by making 
appropriate rules under Section 239 of the Act. Accordingly, Section 94 
of the Act makes it mandatory for ECP to conduct pilot projects enabling 
Overseas Pakistanis to vote in the upcoming bye-elections. It is worth 
mentioning that the phrase ‘pilot projects’ in terms of Section 94 supra 
does not mean that the votes cast by Overseas Pakistanis through i-
voting in the bye-elections, would be treated as mock votes in mock 
elections, or that the votes cast under such pilot projects would be 
invalid, rather they are to serve as a sample and if successfully 
accomplished, or if some technical problems or issues come to fore after 
removing the same,  that this exercise of enabling Overseas Pakistanis  
to vote may then be replicated on a larger scale, i.e. for future General 
Elections. Besides, there is a safety net contained in the proviso to Rule 
84-C(2) of the proposed rules for overseas voting. This allows ECP to 
direct exclusion of overseas votes from the final count if it is of the 
opinion that the technical efficacy, secrecy and security of voting has not 
been maintained or has for any reason been compromised. This clearly 
suggests that overseas votes are to be included in the result of the bye-
elections unless excluded by the ECP for valid reasons. The purpose of 
such ‘pilot projects’, as has been made clear by Section 94 supra, is to 
ascertain the technical efficacy, secrecy, security and financial feasibility 
of such voting after which the ECP is required to prepare a report and 
submit it to the Government which in turn shall lay it (report) before both 
Constitution Petition No.74/2015 etc. 
-: 7 :-
the Houses of Parliament within fifteen days from the commencement of 
a session of a House after the receipt of the report.  
5. 
 
According to the notification dated 17.08.2018 issued by the 
ECP regarding the programme of the next bye-elections for 2018, it is 
declared that bye-elections for 37 constituencies (both National and Provincial) 
are to take place on 14.10.2018. To our mind, undoubtedly these and 
subsequent bye-elections (if any) are visualized, and fall within the 
meaning of, ‘bye-elections’ as contemplated by Section 94 of the Act for 
the pilot projects that ECP has to conduct in order to enable Overseas 
Pakistanis to exercise their right to vote. As already observed Overseas 
Pakistanis are clearly entitled to vote in the General Elections; they are 
therefore equally entitled to vote in bye-elections that are held to fill 
vacancies which have or will occur. The system so tried, tested and 
perfected can then be deployed in the next General Elections.  
6. 
 
To the aforementioned end, Rules 84-A, 84-B and 84-C of 
the Election Rules have been framed. According to the Secretary ECP, 
they provide for a computerized mechanism, i.e. I-voting, to enable 
Overseas Pakistanis to exercise their right to vote. The proposed rules are 
reproduced below for ease of reference:- 
 
“84-A. Registration procedure for voting by Overseas 
Pakistanis.–(1) Where the Commission decides in terms of sub-
section (1) of section 94 to make arrangements for voting by 
Overseas Pakistanis living abroad, it shall hold such voting 
through internet (I-voting). 
 
(2) 
Only those Overseas Pakistani voters shall be eligible 
for voting who possess: 
(a) 
valid National Identity Card for Overseas Pakistanis 
(NICOP); 
(b) 
valid Machine Readable passport (MRP); and 
(c) 
valid E-mail address. 
 
Constitution Petition No.74/2015 etc. 
-: 8 :-
(3) 
The Overseas Pakistani voter, desirous to cast his vote 
through I-voting from abroad, during registration time-period as 
may be fixed by the Commission, shall access the Overseas 
Voting System through the internet and shall create an account 
using following credentials: 
(a) 
Name; 
(b) 
Email address; 
(c) 
Generating password of his choice; 
(d) 
Mobile Phone Number (optional); and 
(e) 
Country of Stay. 
 
(4) 
A confirmation email of account so created shall be 
forwarded by the system to the applicant at his given email 
address and by clicking on the link therein the voter shall be 
prompted to provide the number of his Machine Readable 
Passport with its tracking identity and NICOP number along 
with date of issuance thereof. 
 
(5) 
Upon completion of proceedings under sub-rule (4), a 
verification process will be initiated wherein random questions 
regarding voter’s identity information shall be asked by the 
System and upon correct reply, a message of “Successfully 
verified” shall be displayed by the system: 
 
 
Provided that a confirmation email of account 
verification shall also be forwarded by the system to the 
applicant. 
 
(6) 
In case the voter could not correctly reply first set of 
questions mentioned in sub-rule (5), the system will allow 
multiple attempts to correctly reply failing which that NICOP 
number shall be restricted for further attempts: 
 
 
Provided that upon successful verification, a unique 
passcode shall be forwarded to the applicant by the system 
through email before the polling day: 
 
 
Provided further that on receipt of list, from the 
Commission, in respect of Overseas Pakistani voters registered 
as such, the Returning Officer shall take necessary steps to make 
sure that no overseas voter so registered for overseas voting is 
allowed to cast his vote at the polling station in person. 
 
Constitution Petition No.74/2015 etc. 
-: 9 :-
84-B. Voting procedure for Overseas Pakistanis.– On polling 
day, the voter shall log in to the overseas voting system using his 
username and password and shall avail the voting option from 
the system for casting his vote in respect of his National 
Assembly, or, as the case may be, Provincial Assembly 
Constituency by entering unique passcode: 
 
 
Provided that by going through designated list of 
candidates of selected constituency, the voter shall cast his vote 
by selecting his desired candidate: 
 
 
Provided further that upon successful submission of 
vote, a “confirmation” message shall be displayed on the screen. 
 
84-C. Preparation of results in respect of Overseas voting.–(1) 
After the polling hours are over, the Commission shall generate 
the Form-45 (Result of the Count) in respect of the constituency 
by using Reporting Portal of the Overseas Voting System and 
send the same to the Returning Officer concerned immediately 
through quickest means as are available for the purpose.  
 
(2) 
On receipt of Form-45 (Result of the Count) from the 
Commission under sub-rule (1), the Returning Officer shall 
include the results contained therein in the consolidated results 
of the count as furnished by the presiding officer to be prepared 
by him under section 95 in such manner as the Commission may 
determine: 
 
 
Provided that the Commission may direct for non-
inclusion of the result in respect of the Overseas voting during 
consolidation of results under section 95, if in its opinion, the 
technical efficacy, secrecy and security of the voting has not 
been maintained during the said voting.” 
 
The ECP and NADRA had given presentations to this Court in the 
foregoing regard and about third party validation that has also been 
received from independent experts, regarding the safety, integrity and 
workability of the system. Based on these representations we prima facie 
find the mechanism of I-voting to be safe, reliable and effective for being 
utilized in a pilot project. We are sanguine that the aforesaid proposed 
Constitution Petition No.74/2015 etc. 
-: 10 :-
rules shall be incorporated in the Election Rules, 2017 to enable 
Overseas Pakistanis to exercise their right to vote in the forthcoming bye-
elections. However, we direct the results of the bye-elections and the vote 
count of the votes cast by the Overseas Pakistanis through the I-voting 
mechanism shall be kept separately and also secret till the time that ECP 
is satisfied about the technical efficacy, secrecy and security of the votes 
cast by Overseas Pakistanis through the I-voting system. In case such 
determination, made on the basis of reasons, is in the negative and the 
ECP is not satisfied about the integrity, safety and reliability of the 
systems and the votes cast through the same; ECP shall exclude the 
segregated votes cast by Overseas Pakistanis from the official result of 
the bye-elections in accordance with the proviso to Rule 84-C(2) supra. 
This safety feature shall ensure that the elections are founded upon 
verified and authenticated votes only.  
7. 
 
Before parting we would like to express our appreciation for 
the dedicated efforts of NADRA and ECP undertaken for this noble 
purpose of great constitutional importance. The petitions are allowed in 
the aforementioned terms. 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
 
 
 
 
 
 
 
 
JUDGE 
 
 
 
 
JUDGE 
Lahore, the 
17th of August, 2018 
Not approved for reporting 
M. Azhar Malik/*