SUPREME COURT OF PAKISTAN 
(Advisory Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Gulzar Ahmed, CJ 
Mr. Justice Mushir Alam 
Mr. Justice Umar Ata Bandial 
Mr. Justice Ijaz ul Ahsan 
Mr. Justice Yahya Afridi 
 
 
REFERENCE NO.1 OF 2020 
[Reference by the President of the Islamic Republic of Pakistan, under Article 186 of the 
Constitution of the Islamic Republic of Pakistan, 1973] 
 
 
For the Federation 
[in Reference No.1/2020] 
[in CMA.127-128, 170, 
989,1293/2021] 
: Mr. Khalid Jawed Khan,  
Attorney General for Pakistan 
Mr. Sohail Mehmood, Addl. AGP 
Mr. Ayaz Shaukat, DAG 
[Assisted by Ms. Maryum Rasheed, Advocate] 
 
For the National Assembly 
[in CMA.278/2021] 
: Mr. Abdul Latif Yousafzai, Sr. ASC 
Mr. Muhammad Mushtaq, Addl. 
Secretary (Legislation) 
Mr. Muhammad Waqar, DPO (Lit.) 
 
For the Senate of Pakistan 
[in CMA.296/2021] 
: Senator Muhammad Ali Khan Saif 
Mr. Muhammad Javed Iqbal, DD 
 
For the Election Commission 
[in CMA.210, 808, 880, 983, 
1010/2021] 
: Mr. Sikandar Sultan Raja, Chief 
Election Commissioner 
Mr. Justice (R) Muhammad Iltaf 
Ibrahim Qureshi, Member (Punjab) 
Mrs. Justice (R) Irshad Qaiser, 
Member (KP) 
Mr. Shah Mehmood Jatoi, Member 
(Balochistan) 
Mr. Nisar Ahmed Durrani, Member 
(Sindh) 
Mr. Sajeel Shehryar Swati, ASC 
Mr. Sana Ullah Zahid, ASC, L.A. 
Dr. Akhtar Nazir, Secretary 
Mr. Muhammad Arshad, DG (Law) 
 
For Government of Punjab 
[in CMA.95/2021] 
 
: Mr. Ahmed Awais, AG 
Barrister 
Qasim 
Ali 
Chohan, 
Addl.AG 
Ms. Imrana Baloch, AOR 
 
For Government of Sindh 
[in CMA.386/2021] 
: Mr. Salman Talib ud Din, AG 
Mr. Sibtain Mahmud, Addl.AG 
(via video link from Karachi) 
 
For Government of KP 
[in CMA.104/2021] 
: Mr. Shumail Ahmad Butt, AG 
Mr. Atif Ali Khan, Addl.AG 
For Government of Balochistan 
: Mr. Arbab M. Tahir, AG 
Reference No.1 of 2020 
- 2 - 
 
 
 
[in CMA.185/2021] 
Mr. Muhammad Ayaz Khan Swati, Addl.AG 
Mr. Muhammad Fareed Dogar, AAG 
 
For ICT 
[in CMA.149/2021] 
 
: Mr. Niazullah Khan Niazi, AG 
 
For JUI 
[in CMA.129, 541/2021] 
 
 
: Mr. Kamran Murtaza, Sr. ASC 
Mr. Jehangir Khan Jadoon, ASC 
 
For SHCBA 
[in CMA.297, 1119/2021] 
: Mr. Salahuddin Ahmed, ASC 
Barrister Omer Soomro, ASC 
Syed Riffaqat Hussain Shah, AOR 
[Assisted by Ravi Pinjani, ASC] 
 
[in CMA.130, 1201, 1292/2021] 
: Mr. Hassan Irfan Khan, ASC 
 
For PPP 
[in CMA.131, 704, 1217/2021] 
: Mian Raza Rabbani, Sr. ASC 
Mr. Mehmood A. Sheikh, AOR 
 
[in CMA.154,1295/2021] 
: Malik Qamar Afzal, ASC 
 
For JI 
[in CMA.211/2021] 
 
: Mr. Ishtiaq Ahmed Raja, ASC 
 
[in CMA.231/2021] 
: Syed Iqbal Hashmi, ASC 
 
For PML (N) 
[in CMA.784, 1231/2021] 
 
: Barrister Zafar Ullah, ASC 
 
For Pakistan Bar Council 
[in CMA.807, 1200/2021] 
 
: Mr. Mansoor Usman Awan, ASC 
 
For PPP (P) 
[in CMA.872,1218/2021] 
 
: Mr. Farooq H. Naek, Sr. ASC 
 
[in CMA.908, 1008, 1026-1030/2021] 
: Mr. Khurram Shehzad Chughtai, 
Advocate High Court, in person 
 
[in CMA.1115/2021] 
: Mr. Azhar Iqbal, ASC 
 
[in CMA.1233/2021] 
: Mr. Waheed Ahmed Kamal, in person 
 
Dates of Hearing 
: 
04.01.2021, 11.01.2021, 13.01.2021, 
14.01.2021, 02.02.2021, 03.02.2021, 
04.02.2021, 08.02.2021, 10.02.2021, 
11.02.2021, 15.02.2021, 16.02.2021, 
17.02.2021, 18.02.2021, 19.02.2021, 
22.02.2021, 23.02.2021, 24.02.2021; and 
25.02.2021 
 
 
 
O P I N I O N 
 
The President of the Islamic Republic of Pakistan has sent a 
REFERENCE under Article 186 of the Constitution of the Islamic 
Republic of Pakistan, 1973 (hereinafter to be referred to as “the 
Reference No.1 of 2020 
- 3 - 
 
 
 
Constitution”), for opinion of this Court.  The question asked in 
the REFERENCE is as follows: 
“Whether the condition of ‘secret ballot’ referred to in Article 226 of the 
Constitution of Islamic Republic of Pakistan, is applicable only for the 
elections held ‘under’ the Constitution such as the election to the office of 
President of Pakistan, Speaker and Deputy Speaker of National Assembly, 
Chairman and Deputy Chairman of Senate, Speakers and Deputy 
Speakers of the Provincial Assemblies and not to other elections such as 
the election for the members of the Senate of Pakistan held under the 
Elections Act, 2017, enacted pursuant to Article 222 read with Entry 41, 
Part 1, Fourth Schedule to the Constitution, which may be held by way of 
secret or open ballot, as may be provided for in the Election Act, 2017.?” 
2. 
We have heard learned Attorney General for Pakistan, 
learned Advocate Generals of all four Provinces and ICT, learned 
counsel appearing for the National Assembly, the Senate of 
Pakistan, the Election Commission, Political Parties, Pakistan Bar 
Council, Sindh High Court Bar Association and the individuals, 
who have appeared in person.   
3. 
For the detailed opinion to be recorded later, the 
REFERENCE is answered as follows: 
(i) 
The Elections to the Senate of Pakistan are held 
“under the Constitution” and the law; 
(ii) 
It is the duty of the Election Commission of Pakistan 
in terms of Article 218(3) of the Constitution, to ensure 
that the election is conducted honestly, justly, fairly 
and in accordance with law and that corrupt practices 
are guarded against on which this Court has given 
successive judgments and the most exhaustive being 
Workers’ Party Pakistan through Akhtar Hussain, 
Advocate, General Secretary & 6 others v. 
Federation of Pakistan & 2 others (PLD 2012 SC 
681); 
Reference No.1 of 2020 
- 4 - 
 
 
 
(iii) 
The Election Commission of Pakistan is required by 
the Constitution to take all necessary steps in order to 
fulfil the above mandate/duty in terms of Article 222 
of the Constitution, which empowers the Parliament, 
subject to the Constitution to legislate, inter alia, on 
the conduct of elections and matters relating to 
corrupt practices and other offences in connection 
with elections but categorically provides that, “no such 
law shall have the effect of taking away or abridging 
any of the powers of the Commissioner or the Election 
Commission” under Part VIII, Chapter 1 of the 
Constitution; 
(iv) 
Further in terms of Article 220 of the Constitution, all 
the executive authorities in the Federation and 
Provinces are obliged to assist the Commissioner and 
the Election Commission of Pakistan in discharge of 
his or their functions, as provided for in Article 218(3) 
of the Constitution; 
(v) 
As far as the secrecy of ballot is concerned, this Court 
has already answered this question in a judgment of a 
5-member Bench of this Court reported as Niaz 
Ahmad v. Azizuddin & others (PLD 1967 SC 466), 
where it has been held that secrecy is not absolute and 
that “the secrecy of the ballot, therefore, has not to be 
implemented in the ideal or absolute sense but to be 
tempered by practical considerations necessitated by 
the processes of election”; 
(vi) 
Furthermore, in order to achieve the mandate of the 
Election Commission in terms of Article 218(3) read 
with Article 220 and other enabling provisions of the 
Constitution and the law, the Election Commission is 
required to take all available measures including 
utilizing technologies to fulfil the solemn constitutional 
duty to ensure that the election is “conducted 
honestly, justly, fairly and in accordance with law and 
that corrupt practices are guarded against”. 
Reference No.1 of 2020 
- 5 - 
 
 
 
 
The REFERENCE is answered accordingly. 
 
 
 
 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
JUDGE 
 
 
 
 
JUDGE 
 
With utmost respect the opinion 
sought being not a question of 
law within the contemplation of 
Article 186 of the Constitution is 
returned unanswered. 
 
 
 
 
JUDGE 
 
 
 
 
 
Reference No.1 of 2020 
- 6 - 
 
 
 
 
YAHYA AFRIDI, J.- For the reasons to be recorded later, 
with utmost respect, the opinion sought by the Worthy President, 
Islamic Republic of Pakistan in the instant Reference, is not a 
question of law within the contemplation of Article 186 of the 
Constitution 
of 
the 
Islamic 
Republic 
of 
Pakistan, 
1973, 
accordingly, the same is returned unanswered. 
 
 
 
Judge 
 
 
Reference No.1 of 2020 
- 7 - 
 
 
 
OPINION OF THE COURT 
 
 
 
For the detailed opinion to be recorded later, by majority of 4 
against 1 (Yahya Afridi, J.) dissenting, the REFERENCE is 
answered as follows: 
(i) 
The Elections to the Senate of Pakistan are held 
“under the Constitution” and the law; 
(ii) 
It is the duty of the Election Commission of Pakistan 
in terms of Article 218(3) of the Constitution, to ensure 
that the election is conducted honestly, justly, fairly 
and in accordance with law and that corrupt practices 
are guarded against on which this Court has given 
successive judgments and the most exhaustive being 
Workers’ Party Pakistan through Akhtar Hussain, 
Advocate, General Secretary & 6 others v. 
Federation of Pakistan & 2 others (PLD 2012 SC 
681); 
(iii) 
The Election Commission of Pakistan is required by 
the Constitution to take all necessary steps in order to 
fulfil the above mandate/duty in terms of Article 222 
of the Constitution, which empowers the Parliament, 
subject to the Constitution to legislate, inter alia, on 
the conduct of elections and matters relating to 
corrupt practices and other offences in connection 
with elections but categorically provides that, “no such 
law shall have the effect of taking away or abridging 
any of the powers of the Commissioner or the Election 
Commission” under Part VIII, Chapter 1 of the 
Constitution; 
(iv) 
Further in terms of Article 220 of the Constitution, all 
the executive authorities in the Federation and 
Provinces are obliged to assist the Commissioner and 
the Election Commission of Pakistan in discharge of 
his or their functions, as provided for in Article 218(3) 
of the Constitution; 
Reference No.1 of 2020 
- 8 - 
 
 
 
(v) 
As far as the secrecy of ballot is concerned, this Court 
has already answered this question in a judgment of a 
5-member Bench of this Court reported as Niaz 
Ahmad v. Azizuddin & others (PLD 1967 SC 466), 
where it has been held that secrecy is not absolute and 
that “the secrecy of the ballot, therefore, has not to be 
implemented in the ideal or absolute sense but to be 
tempered by practical considerations necessitated by 
the processes of election”; 
(vi) 
Furthermore, in order to achieve the mandate of the 
Election Commission in terms of Article 218(3) read 
with Article 220 and other enabling provisions of the 
Constitution and the law, the Election Commission is 
required to take all available measures including 
utilizing technologies to fulfil the solemn constitutional 
duty to ensure that the election is “conducted 
honestly, justly, fairly and in accordance with law and 
that corrupt practices are guarded against”. 
 
 
 
 
 
 
 
 
 
CHIEF JUSTICE 
 
 
 
 
JUDGE 
 
JUDGE 
 
 
LARGER BENCH 
ISLAMABAD 
01.03.2021 
*Hashmi* 
 
 
JUDGE 
 
 
JUDGE 
APPROVED FOR REPORTING 
 
 
 
Announced in open Court on   
 
01.03.2021  
 
 
 
 
 
 
 
CHIEF JUSTICE