counts instead of opening the ballot boxes saying that the difference of votes between the winning and runner up candidate was enormous, while the law required from the RO to open the ballot boxes and count the votes. “Had the RO opened the bags for final consolidation of results, any shortcomings in bags or missing articles would have come to his knowledge forthwith and might be recoverable with a prompt action.” The judge further wrote that there were discrepancies in the consolidated results and statements of counts.
The judgement says that question arises as to how the RO issued certified copies of pages of statements of counts which contained neither signatures nor thumb impressions of presiding officers? Hardly there is a single valid statement of count results of all the 19 contesting candidates. It further mentions that because of the negligence of the RO, the rejected vote count on one instance was 590 while actually 4,199 votes were rejected.
The judge added: “I also may take note of the existence of election cell in the office of the DRO, perhaps controlling the management of polls by taking decisions for selection of polling personnel for each constituency, even by providing substitutes. Identity of persons running such cell was not disclosed. They even made no written communications with the ROs. Data was transferred to computer systems through USBs. No statutory provisions or guidebooks refer to the need of setting up such election cells anywhere, or transferring to them the assignments of returning officers. There might be administrative justification to collect and distribute human resources to various returning officers to avoid duplication of duties but, then, this exercise could be done in a transparent manner, by reducing in writing and recording all communications between DRO and the departments and the DRO and ROs. Absence of such safeguards has disillusioned a laborious and sensitive task. The RO also was not aware of statutory provisions that once a list of polling personnel was finalised, he had no authority to make changes therein, but only the Election Commission was competent to do so.
“Now comes the issue of missing electoral record. Firstly, the presiding officers generally did not bother to seal the records of national and provincial constituencies, separately. It looks that after the polls and counting ballots, they causally trusted the record, including sensitive materials, into any bag they found around. Even at some places private bags were used to seal the contents. I have been examining polling bags for different constituencies in discharge of my duties and it is a fact that neither the fabric used for polling bags was strong enough to contain the record for years, nor the stitching was up to the mark. Most of the bags were torn and tattered during the use. Size of the bag also was not adequate to receive all the material after the polls. The paper envelopes provided to polling personnel for sealing ballot papers, electoral rolls and counterfoils were of such a small sizes that it was formidable to pack such documents therein. Resultantly, in almost all the bags, even marked ballot papers were thrown openly, without an envelope, what to talk of proper wax seals, and thus secrecy of ballot also was mutilated.
“It is also correct that hardly a polling bag was found with the copy of packing invoice, which is the only proof of finding out as to which seals were issued to the presiding officers, which serial numbers of ballot papers were supplied, what was the serial number of brass seal to be used for final wax seals, etc. Copies of statements of count, and ballot paper counts were seldom found in bags.
“Moreover, irrespective of observations recorded by the first commission about mismanaged and incomplete record, when this tribunal vide order dated 13.3.2015 selected at random 10 polling stations for scrutiny of record by the tribunal itself, complete record of even 10 polling stations could not be made available despite best efforts. On 19.3.2015 this tribunal had observed that marked electoral rolls from polling bag of PS 120 and 193 were not available, whereas for PS No. 195, two bags were received, but none of them contained ballot papers of NA-125, or their counterfoils. The successor RO was requested to locate the record, but, despite scanning all bags at the Treasury, could not be recovered. Consequently, this tribunal had to ask learned DSJ/DRO Lahore to get an inquiry conducted to fix responsibility for loss of aforesaid polling record and to get lodged the FIR against the persons responsible at the earliest.
“It is to be recalled that on the basis of evidence produced by the petitioner, only 7 polling stations were selected for forensic analysis. Complete record of all the 7 polling stations was however not found, and the available record was examined by the second and third commissions. It appears that over 50% of thumb impressions examined by the second commission, were not found technically comparable. Reasons could be accidental or intentional, or partly accidental and partly intentional, but no relevant evidence is available on record for determination of causes of so much bad thumb impressions on counterfoils and electoral rolls. It is also to be noticed that taking healthy thumb impressions for subsequent forensic analysis, is a skilled job. Polling personnel selected from various civil departments, having no proficiency in taking thumb impressions, may not be blamed for such neglect, especially when they had very short time for each voter, and they had to take hundreds of thumb impressions in limited polling time. It would be appropriate that in future, instead of ink impressions, digital thumb impressions be recorded, possibly linking the exercise with electronic voting. However, some instances of fake voting and double voting were also indicated in such reports by the third commission.
“It may conclude that the RO failed to perform his duty by not preparing list of polling personnel himself, for not getting the same approved at least 15 days before the polls, by making changes in the list of polling personnel which was used for appointments of staff, just a few days before the polls and without permission of the ECP, by not providing correct electoral rolls at PS-145, 146 for two booths and resulting into depriving voters of such booths in a large number, by receiving the statements of counts from presiding officers without their signatures and thumb impressions, by preparing the consolidated statement (final result) without opening the polling bags and without scrutiny of ballot papers excluded from count as well as the challenged votes, and by consigning to the Treasury incomplete polling bags which even lacked ballot papers, counterfoils and electoral rolls at some stations. I am also convinced that presiding officers generally were negligent in due performance of their duties and even statements of counts were not prepared in accordance with laws and ballot papers were put into polling bags without sealing on envelopes and by mixing records of national and provincial constituencies.
“The returning officer also acted unlawfully by refusing the opening of polling bags for examination of excluded ballot papers and challenged ballot papers and also he demonstrated no responsibility in selection of polling personnel, rather he has conceded that he had no role in such exercise and details of polling personnel were prepared by the election cell in the office of the district returning officer and such data was just fed into his computer. All these facts and reports of the commissions and forensic experts lead me to the conclusion that the returning officer and the polling staff failed to comply with the provisions of the Representation of the People Act and all the rules and guidelines provided them for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold that to the satisfaction of the tribunal the election has been materially affected, and thus this issue is decided in affirmative.”