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Friday March 29, 2024

An in-depth analysis of the ET judgment on NA-125

ISLAMABAD: An in-depth analysis of the 80-page judgement passed by Election Tribunal on NA-125 shows that the judge found no evidence of rigging, found out many evidence that polling at majority of the places was transparent but a visit of the office of Returning Officer (RO) by PTI candidate Hamid

By our correspondents
May 11, 2015
ISLAMABAD: An in-depth analysis of the 80-page judgement passed by Election Tribunal on NA-125 shows that the judge found no evidence of rigging, found out many evidence that polling at majority of the places was transparent but a visit of the office of Returning Officer (RO) by PTI candidate Hamid Khan three days before the election day to successfully get the poling staff of 40 polling station changed did the magic.
The polling staff can be changed only 15 days before the polling day while Hamid Khan managed it simply three days before the polling day in violation of rules and judge considered this irregularity so huge that mentioned it four times in the judgement and made it one of the basis of declaring the whole election void along with some other minor irregularities.
However, while mentioning these few irregularities, the judge at each and every point considered it important to mention repeatedly that neither the returned candidate Saad Rafiq nor any of his election or polling agents was responsible for any of these irregularities. He initially held polling staff responsible for this negligence (which is also reported) but later declared that most of these problems are caused because of poor planning and bad system and low quality of polling material and small size of polling bags and suggested measures to correct them in future.
He mentioned that these examples of negligence do not constitute charge of rigging and rejected all allegation leveled by petitioner. One gets an impression while going through initial 70-plus pages of the judgement as if a charge-sheet is being prepared against the petitioner Hamid Khan.
Page-to-page, line-to-line and word-to-word study of the judgement shows that judge worked very hard to probe the allegations leveled by Hamid Khan and declared each and every of the 14 allegation as wrong by tabulating data and compiling and consolidating different evidences. The judge repeatedly complained that petitioner failed to provide evidences of allegations, presenting doubtful witnesses, fake affidavits.
And thus judge used his own abilities to ground all complaints, objections and rigging allegation leveled by the petitioner by presenting complete analysis and examination of facts in his judgement but still accepted the petition on the last pages quoting some irregularities which have no impact on election process or result and declared that returned candidate Saad Rafiq had nothing to do with any such irregularities. The judgement does mention two sections of Representation of People’s Act 1976 but missed its most important section 68(2) which reads: (2) The election of a returned candidate shall not be declared void on the ground— (a) 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;
Following are 14 allegations leveled by PTI’s Hamid Khan with explanation how judge Javaid Rashid Mahboobi analysed each allegation deeply and rejected that allegation.
Allegation-1: While all other provincial secretaries were changed before Elections, the Secretary Schools Mr Aslam Kamboh, and Home Secretary Mr. Shahid Khan were not replaced, whereas most of presiding officers were employees of Education Department and the Police was under administrative control of Home Secretary.
Judge in para-85 of the judgement: Judge wrote that neither any evidence, document not any witness whatsoever was produced. The judge clearly pointed toward ill-intention behind leveling this allegation by writing that petitioner not even requested the tribunal to summon these secretaries. The judge declared, “The ground as such is found devoid of substance, and repelled.”
Allegation-2: Polling Scheme was not finalised till 10.5.2013 and certain polling stations were added beyond jurisdiction of NA-125.
Judge in paras-86-88: The judge wrote that petitioner failed to present any single evidence to the count. The judge wrote that he himself obtained relevant material from concerned offices and came to know that polling scheme was published in Gazette of Pakistan on April 30, 2013. Judge added that no evidence to the effect that this scheme was changed and was not finalised till May 10, 2013 was furnished. The judge added that it was not informed which polling stations were put into polling scheme beyond the limit of constituency and thus the allegation is “turned down”.
Allegation-3: Khwaja Saad Rafique, Mian Naseer and Yaseen Sohal and their agents with active connivance and support of polling staff and the police manipulated the polls to their benefit and caused massive rigging.
Judge in para-101: Judge wrote that petitioner failed to furnish any evidence on record. Not this but when the respondent (Khawaja Saad Rafiq) came in witness box to be cross-examined, no question to this count was made to him. The judge wrote that petitioner didn’t even confront other witnesses for these allegations. The judge set aside the allegation terming it baseless.
Allegation 4: Policy of ‘go slow’ was adopted at majority of polling stations, especially at female polling Stations to reduce number of votes cast.
Judge in para-88 & 89: The judge tabulated registered votes, polled votes and percentage of franchise on all the polling station about which complaint was made. He concluded that there was same franchise rate as was on other neighbouring polling stations and figures calculated by the judge show even high average of polling on the polling stations about which PTI has doubts.
Allegation-5: The polling process did not start at P.S.145 and 146 until 4pm.
Judge in para-104: There were errors in provided polling lists and thus polling could be started late but much before 4pm. The turnout thus was recorded low only in these two polling stations. But the judgement does not reflect any conspiracy here.
Allegation-6: Polling stations set up in suburbs and villages remained in possession and control of Khwaja Saad Rafique, Mian Naseer and Yaseen Sohail.
Judge in para-101: The judge discussed the allegation in complete detail and rubbished it completely. The judge almost criticised the petitioner for leveling the allegation but not confronting Saad Rafiq when he appeared in witness box on anything even closer to the allegation.
Allegation-7: Bogus/unverified votes were cast especially at Polling Stations No.162, 163 and 179.
Judge in para-90: No evidence whatsoever was provided on this count. The judge declared, “Allegation stands unproved.”
Allegation-8: Ballot boxes and paper were tampered with.
Judge in para-96-97 and many other paras: No evidence was provided. Witnesses could not state facts. Majority of witnesses admitted during cross examination that their affidavits were prepared and written in office of the petitioner and they didn’t even obtain these affidavits. Witness Ms Iram Akmal even acknowledged that she didn’t move written complaint on her objection regarding ballot box. The judge added that petitioner didn’t even feel the need to request summoning Presiding Officer to confront him on this count. The judge wrote that not a single Presiding Officer was summoned for cross examination on this count as it was not requested by the petitioner.
Allegation-9: Voters were harassed and assaulted by Khwaja Saad Rafique, Mian Naseer and Yaseen Sohail and their agents. Final result and polling material were returned by Presiding Officers on 12.5.2013 from 9am. to 4pm., leaving ample time to tamper with ballots/results.
Judge in Para-101, 107,108: Judge not only wrote that petitioner failed to provide evidence but rubbished the allegations. Judge mentioned that petitioner didn’t even confronted Saad Rafiq on these questions during cross examination.
Allegation-10: With reference to polling agents, the petitioner has quoted some instances of alleged malpractices, which were witnessed by his agents, which are not reproduced here butwould be taken up while discussing statements of polling agents as primary evidence.
Judge in paras-92 to 99 & 44 to 52: Judge narrated the postmortem conducted during the cross examination of witnesses and their ‘affidavits’ prepared in their names in office of petitioner. In paras 92099 the judge discussed malpractices as claimed by these witnesses, mostly polling agents and rejected the allegations.
Allegation-11: Despite extension of polling time till 6 pm. by order of Election Commission of Pakistan, the polling process was forcibly stopped at 5pm. at majority of polling stations by Presiding Officers.
Judge in para-91: Judge wrote that not only petitioner failed to name any single such polling station but even not requested tribunal to summon the presiding officer of such polling station. The allegation was turned down.
Allegation-12: No results were provided to RO after 9.30pm. on polling night and polling agents were physically threatened and removed from polling stations and were excluded from counting process, in collusion with Khwaja Saad Rafique, Mian Naseer and Yaseen Sohal and their Agents.
Explanation to Allegation-10 also bears answers to this. All allegations were rejected with proofs, evidences and findings by the judge.
Allegation-13: Statements of count were prepared in absence of petitioner’s polling agents, which was fraudulent, illegible, incorrect and lacking stamps or thumb impressions. Male Presiding Officer was posted at female P.S.No.129.
Explanation is same as for allegation-10 and allegation-12.
Allegation-A14: Hundred percent voting was recorded at P.S No.124, 23, 2, 57, 7, 253, 85,255 and 233, 171, 163, 288 and 261.
Judge in para-99 & 100: Judge completely rubbished allegation in case of all the 13 mentioned polling stations by tabulating “Assigned votes as per polling scheme”, “Total votes casted”, “Total Votes assigned in Form-XIV”, “Total votes as per Form-XVI” and Percentage of all these 13 polling stations. The judge informed the petitioner that presiding officers made little errors while filling one column, putting entries in a wrong column and that it was otherwise absolutely alright. The judge after providing complete data declared, “The allegation of showing hundred percent voting at such polling stations is thus misconceived”.
Other than these allegations, the DRO told tribunal during cross examination that he has not received any written or verbal complaint regarding any irregularity on election-day from any voter or candidate. In para-74, it is reflected that Saad Rafiq’s complaints on polling day were rejected by member election commission who was visiting polling stations after being contacted by PTI candidate. It is also interesting that ex-secretary election commission Ishtiaq Ahmad gave statement before the tribunal that he can recollect that Hamid Khan did call him on polling day to discuss a speech of PML-N chief on news channels (so no rigging was discussed).
The irregularities on the basis of which judge declared the election void include preparation of lists of polling staff by DRO and not ROs. Though petition itself mentioned that while appointing polling staff from the same city, DRO could have avoided duplication but he insists that under relevant provisions these lists could only be prepared by ROs, which can be later changed by DRO. The judge considered Hamid Khan’s visit to the office of RO three days before polling day to get successfully changed the polling staff at 40 polling stations as a major irregularity to declare the election void. The judge also objected to addition of votes, rejected votes, postal ballots etc, and other minor issues including RO’s refusal to recount. Judge did not consider victory margin of 40,000 votes. The judge also objected to few statements of counts without signatures and thumb impressions of presiding officers not considering the fact all votes of such polling stations could not reach to victory margin. The record of only one polling station no-195 was missing. But judge couldn’t explain whole constituency could be disturbed by only stealing one bag from Revenue Office though victory margin is 40,000.
The judge then advised many measures that should be taken in future adding that some problems with record were because of poor planning and small and low quality polling bags.
Though judge himself rubbished all allegations of rigging and even those of irregularities but still he can declare the result of constituency void on basis of Section 70 of ROPA 1976. But, as he has cleared Khawaja Saad Rafiq and all his election and polling agents from all allegations so Section 68(2) of ROPA 1976 was automatically invoked and the judgment is completely flawed merely on basis of this one point.