ISLAMABAD: The Supreme Court (SC) on Thursday adjourned hearing of a case filed by Pakistan Tehreek-e-Insaf (PTI) candidate Ali Asjad Malhi against the Election Commission of Pakistan’s (ECP) decision over re-election in NA-75 Sialkot-IV (Daska) constituency till Friday.
A three-member bench, headed by Justice Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Sajjad Ali Shah, heard the petition.
During the course of proceedings, Advocate Salman Akram Raja, counsel for Pakistan Muslim League-Nawaz (PML-N) candidate Nausheen Iftikhar, said the commotion was seen in at least 40 polling stations.
However, the impression was that there was a commotion in the whole constituency, he added.
Addressing the counsel, Justice Bandial said that he (Salman) had informed the court that polling staff remained missing for many hours. He said that 20 presiding officers (POs) were missing.
He further stated the court had defined lawlessness in Waheeda Shah case.
Salman Akram Raja, while reading the judgment in Waheeda Shah case, said that if a PO was harassed or pressurised, it was illegal.
He said that he wanted to draw the attention of the court to the media reports and press release of the Election Commission. Media reports and Election Commission confirmed such incidents, he added.
Raja said that in such situations, the standard of investigation for the election tribunal would be different from that of the Election Commission. The ECP was a constitutional body that conducted its own investigations, he argued.
He maintained the order issued by the ECP would be used to prevent such incidents in the future. “I request the court to declare the decision of the Election Commission as effective on the basis of these two reasons,” he added.
Justice Munib Akhtar asked the counsel to tell the court how many presiding officers there were in the area under the control of police officer Omar Virk.
The counsel replied that the number of missing presiding officers in the area was eight.
Election Commission lawyer Mian Abdul Rauf presented the investigation report in court. He said the presiding officer was required to deliver the election material in the vehicle provided by the ECP but immediately after the polling, the polling staff went beyond the boundaries of the constituency.
According to the information provided to the Election Commission, the polling staff went to Sialkot, he informed.
Justice Munib Akhtar said the ECP found out about the location later, but according to initial reports, the staff was missing. Justice Sajjad Ali Shah remarked that the ECP had contact numbers of the driver, presiding officer and police officer.
To this, the ECP counsel said that all three numbers were powered off at that time.
The Election Commission counsel said that in case of non-implementation of all the provisions of the Election Act, the election was declared null and void.
Justice Bandial said that the court knew that there was firing, rioting and unrest in the constituency.
He asked if the incidents at select polling stations could affect the other polling stations where peaceful voting took place. The ECP counsel replied that the overall impression in the constituency was unrest and re-election was ordered because of this impression.
Justice Bandial said that the word impression was a dangerous concept that was also exaggerated.
On March 25, the SC had postponed for an indefinite period the by-election in NA-75 – a seat in Daska Tehsil of Sialkot city – which was scheduled to be held on April 10.
Suspecting irregularities, the ECP in February, while hearing the request of PML-N hopeful Nosheen, had ordered re-election in the entire constituency – a decision challenged in the apex court by PTI candidate Ali Asjad Malhi.
“The ECP has no jurisdiction to pass a short order as this jurisdiction vests only with the Supreme Court, which already held in the 1993 Nawaz Sharif versus President of Pakistan [Ghulam Ishaq Khan] and the 1998 Benazir Bhutto versus President of Pakistan cases that merely because several illegalities had taken place in certain polling stations, no justification existed in annulling elections of all polling stations,” the petition had said.
In a short order, a three-judge bench – headed by Justice Umar Ata Bandial and consisting of Justice Sajjad Ali Shah and Justice Yahya Afridi – had said it needed more time to decide the case.
“The court will hear the arguments of both sides before issuing a final judgment.”
During the hearing, Advocate Salman Akram Raja, had informed the court that of the 76 polling stations in Daska, complaints had been received from 34 of those stations.
He had stressed that 20 presiding officers (PO) had also been made to “disappear”.
“The question is who created these problems on the day of polling and why. Was one candidate strong so the other one had these actions taken?” Justice Bandial had asked, referring to the fact that the apex court had previously been informed that polling at 10 stations had been suspended for an extended amount of time.
Advocate Raja had argued that PML-N candidate Iftikhar’s father had been elected in the constituency five times and her family is influential in the area.
“Nosheen Iftikhar got 46,000 votes while the PTI candidate got 11,000 votes. [The perpetrators’] purpose was to affect the polling process,” he had said.
Upon this, Justice Bandial had remarked that it was the PML-N workers who had started the unrest and questioned why they would need to do so if the party held sway in the area.
He had added that the PML-N seemed to be happy with the election results since it had not raised any objections to which Raja replied that the party had filed a petition with the ECP in connection with the NA-75 by-polls.
The judge had questioned why polling in the entire NA-75 consistency was deemed necessary when the issues seemed only to relate to 23 polling stations. He had also asked the PML-N counsel whether the POs had left the polling stations as per procedure, to which the counsel replied that they had left along with police officials.
The bench had observed that Raja’s arguments had not yet finished while the other respondents also had to be heard.
“[For now] the decision of the election commission to hold re-election stands,” Justice Umar Ata Bandial had said on the occasion. “But the court is postponing its holding on April 10.”
