BEFORE THE HONOURABLE GENERAL ELECTIONS 2013

INQUIRY COMMISSION

=====================================================

(WITHOUT PREJUDICE)

RESPONSE ON BEHLAF OF

PAKISTAN TEHREEK-E-INSAFTO

QUESTIONNAIRE FOR POLITICAL PARTIES GIVEN DURING THE HEARING OF THE HONOURABLE

COMMISSION ON 27-4-2015 ==========================================

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A. PTI’s submissions on the underlying scheme and intent of the Ordinance in the context of and response to the Questionnaire formulated by the Honourable Commission

1. Under instructions from and on behalf of the Pakistan Tehreek-e-Insaf (“PTI”) and in response to the questionnaire given to political parties during the hearing of 27-4-2015 (“Questionnaire”) of the Honourable General Elections 2013 Inquiry Commission (“Commission”) it is respectfully submitted as under:

At the outset, the PTI with utmost respect reiterates the following points which are germane in the context of the response to the Questionnaire:

(i) Upon a cumulative reading of the Ordinance, it is self evident that it is the Commission which “shall inquire into and determine” the answer to the three questions set out in Section 3(a) to 3(c) of the Ordinance having regard to the time period prescribed in Section 7(1) of the Ordinance. Accordingly, it follows, inevitably, that the statutory obligation to undertake the enquiry and to make determinations is that of the Commission. This obligation, for instance, would remain and subsist even if assuming,

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arguendo, no political parties or other persons had appeared before the Commission after the promulgation of the General Elections 2013 Inquiry Commission Ordinance, 2015 (“Ordinance”) and constitution of the same. In such circumstances, the Commission would perforce have to continue to perform and carry out its stated function as set forth in Section 3 of the Ordinance read with Section 7 thereof. This also shows that the onus to prove any allegation cannot be placed entirely on any political party or person raising the same before the Commission. It is submitted that, at most, there may be an onus on a political party to establish a prima facie basis for its allegations after which it is the Commission which exercising its powers of investigation and enquiry and exercising and in pursuance of its inquisitorial role has to ascertain the truth with assistance, to the extent available and possible, from the political party in question. The Commission may take (judicial) notice of the fact that both the Election Commission of Pakistan (“ECP”) and PML-N – the latter in power through the Federal Government and the Provincial Governments in the Punjab and through coalition in Balochistan have the control and custody of all the relevant public records and documents which can only me summoned through the orders of the Commission. Similarly, the witnesses suggested by the PTI are not its witnesses to whom summons will have to be issued by the Commission to appear.

(ii) In order to carry out, perform and fulfil its functions, the Ordinance has conferred substantial powers and vested the Commission with the necessary authority. Admittedly, the interest and rights of the political parties which participated in the 2013 Elections has been recognised in terms of Section 5(3) of the Ordinance to enable such political parties, as a matter of right (should the political party so elect) to “submit evidence or material” and “make submissions thereon for consideration of the Commission”.

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However, it is submitted with utmost respect that, in spite of this provision, it is the Commission which remains under a statutory duty to perform its functions, undertake its enquiry and submit its final report on the matter in Sections 3(a) to 3(c) of the Ordinance.

(iii) The PTI being one of the political parties which has indeed raised allegations against the “official” results of the 2013 Elections considers its primary role in relation to the proceedings before and enquiry by the Commission, as the provider of assistance to the Commission so as to enable the latter to focus on the key issues and aspects requiring enquiry, investigation and analysis so that the three questions in Section 3 of the Ordinance may be duly answered by the Commission and to also identify the matters in respect of which it is necessary and appropriate for the Commission to exercise its powers under Sections 4(1), 4(2) and 6 of the Ordinance. The PTI so as to assist the Commission has proposed relevant witnesses for its enquiry. It is pertinent to also underscore that the PTI has already provided considerable assistance in this regard to the Commission prior to the receipt of the Questionnaire in terms of the PTI Submission, statements and other written submissions, applications and material filed with the Commission on its behalf.

(iv). The PTI respectfully submits that it is an opposition political party in the National Assembly and in the Punjab Provincial Assembly. It is certainly not the State. Hence, it does not and cannot have direct access to all the material and evidence relevant to the three questions set out in Section 3 of the Ordinance. However, this does not mean that the allegations or contentions are frivolous, reckless or irresponsible. For every issue raised by PTI there is sufficient evidence which has been indicated and identified and also to the extent possible already produced.

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(v). The demand of the PTI since the 2013 Elections has been that an independent, respected and duly empowered fact finding body should undertake an objective but detailed probe and enquiry into its allegations in respect of the 2013 Elections; which as shown in the PTI Submission, are also shared across the political spectrum; and stand further reinforced by the fact that approximately 21 political parties have joined the proceedings before the Commission. This initial demand of the PTI and its workers stood accepted on the promulgation of the Ordinance and constitution of the august Commission. It is now for the Commission to undertake the enquiry (employing the powers especially and uniquely conferred on and vested in it under the Ordinance) to answer the questions in Section 3 of the Ordinance. The role of the PTI and of all other political parties raising allegations in relation to the 2013 Elections cannot and ought not to be, therefore, be construed or treated as that of the “prosecutor” as this was neither the intent of the PTI nor is this consistent with the underlying letter, spirit and scheme of the Ordinance itself or the inquisitorial role and function of the Commission. It is axiomatic that the Commission being a creature and creation of the Ordinance has to have regard to the underlying spirit and scheme thereof. Therefore, it is respectfully submitted that care needs to be taken to ensure that the onus for furnishing of evidence and material is not shifted to or placed wholly or primarily on the political parties before the Commission. Having said that PTI would also reiterate that it is privileged to have the statutory right of audience before the Commission and has every intent to provide all the assistance and support it can possibly provide to facilitate and enable the Commission to timely carry out and perform its function as contemplated in the Ordinance.

2. Therefore, the response to the Questionnaire by PTI as given below is subject and strictly without prejudice to the

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above submissions and the rights of PTI under the Ordinance. The numbering below corresponds to the numbered questions in the Questionnaire.

B. PTI’s Response to Questionnaire (Subject to part A above)

1(a). Yes. The PTI has specifically made the allegation(s) mentioned in question 1(a) of the Questionnaire in its ‘Preliminary Submissions and Proposals’ dated 15-4-2015 (“PTI Submission”).

1(b). The reasons and basis for the allegation(s) (with reference to question 1(a) of the Questionnaire) are already given in the PTI Submission. In the interest of brevity, reference in this context may kindly be made to sections 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 3.3.1 to 3.3.3, 3.3.5 to 3.3.8, 3.4.1 to 3.4.2, 3.5.1 to 3.5.11, 3.6.1 to 3.6.2, 3.7.1 to 3.7.3, 3.8.1 to 3.8.3, 3.9.1 to 3.9.2, 3.10.1 to 3.10.2, 3.12.1 to 3.12.3, 3.13.1 to 3.13.2 of the PTI Submission which, inter alia, set out the reasons and basis for the said allegation(s).

1(c). In support of its allegation(s) as also referred to and mentioned in question 1(a) of the Questionnaire, the PTI relies on all of the material submitted to the Commission by and on behalf of PTI to-date. This includes, without limitation: (i) the material and details given in or referred to in the PTI Submission; (ii) the materials and evidence in respect of 74 specific National Assembly (“NA”) and Provincial Assembly (“PA”) constituencies submitted to the Commission on 25-4-2015 under cover of Civil Miscellaneous Application No. 22 which lists all of the constituencies; (iii) the video evidence (submitted on a USB) by the PTI on 22-4-2015 along with a list thereof which also includes the video evidence listed in section 4.1.2 of the PTI Submission; (iv) the information, data and findings contained in the NADRA Analysis Reports in respect of specific constituencies; and (iv) the witnesses listed in the application for summoning of witnesses for

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examination by the Commission bearing Civil Miscellaneous Application filed with the Commission on 22-4-2015. In addition to the foregoing and without prejudice to all of its rights under the Ordinance and the submissions above, the PTI also intends to rely on the further evidence and material that will come before the Commission as its proceedings progress, including but not limited to, evidence and material coming before the Commission as a result of: (a) examination, inspection and audit of the polling record and material (including Forms XIV to XVII as prayed for in the PTI Submission and also sought by other political parties); (b) statements and testimony of witnesses to be summoned and examined by the Commission; and (c) the result of investigations carried out by the Special Investigation Team(s) pursuant to the Ordinance into the matters specified in the PTI Submission and such other matters which the Commission may decide and direct to be probed into by such Special Investigation Team(s).

In its written proposal already submitted to the Commission on the procedure to be adopted and in the oral submissions by the Senior Counsel representing PTI on 27-4-2015 it has been strongly recommended that the provisions of “Discovery and Inspection” in Order XI of the Code of Civil Procedure, 1908 be adopted by the Commission so as to enable serving of interrogatories and notices to admit facts and documents and for production thereof. This would greatly facilitate the task of the political parties.

2(a) Yes. The PTI has made the allegation(s) mentioned in question 2(a) of the Questionnaire in the PTI Submission. In this regard, reference may be made, inter alia, to sections 2.1, 2.2, 2.5, 2.7, 3.2, 3.5.1, 3.5.8, 3.5.10, 3.9.2, 3.10.2, 3.12.1 of the PTI Submission.

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2(b) Some of the details with regard to the matters on which a response is sought in terms of questions numbered 2(b)A(i) and (ii), B(i) and (ii) and C(i) and (ii) are given in the PTI Submission along with the additional material, documents, list of witnesses and video evidence submitted by and on behalf of PTI to the Commission to-date. Reference in this context is also made to sections 2.1, 2.2, 2.5, 2.7, 3.2, 3.5.1, 3.5.8, 3.5.10, 3.9.2, 3.10.2, 3.12.1 of the PTI Submission as well the response above to question 1(c) as some of the same evidence and material is also relevant and material to the question set out in Section 3(b) of the Ordinance to which question 2(a) and 2(b) in the Questionnaire corresponds. The response to the questions 2(a) and 2(b) of the Questionnaire are also subject and without prejudice to the PTI’s submissions on the underlying scheme and intent of the Ordinance in the context of the Questionnaire in part A above.

2(b)A(i) The PTI has from inception alleged and maintained that it considers PML-N to have usurped the popular mandate through unfair means. This allegation has been reiterated in section 2.5 of the PTI Submission. The PTI has also stated in the same document that the true mandate it received from the electorate was illegally manipulated and stolen and that the true results are materially at variance from the officially notified (and disputed) results. Whilst reserving all of its rights and on a without prejudice basis, it is submitted that the architects of the plan were obviously the beneficiaries thereof - which is the PML-N, its supporters, accomplices, associates and cohorts. Although other political parties and persons may also have been part of this “plan and or design” as there appears to also be an element of quid pro quo on a Provincial basis between certain political parties.

2(b)(A)(ii) The PTI relies on all of the material submitted to the Commission by and on behalf of PTI to-date. This includes, without limitation: (i) the material and details given in or

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referred to in the PTI Submission; (ii) the materials and evidence in respect of 74 specific National Assembly (“NA”) and Provincial Assembly (“PA”) constituencies submitted to the Commission on 25-4-2015 under cover of Civil Miscellaneous Application No. 22 which lists all of the constituencies; (iii) the video evidence (submitted on a USB) by the PTI on 22-4-2015 along with a list thereof which also includes the video evidence listed in section 4.1.2 of the PTI Submission; (iv) the information, data and findings contained in the NADRA Analysis Reports in respect of specific constituencies; and (iv) the witnesses listed in the application for summoning of witnesses for examination by the Commission bearing Civil Miscellaneous Application filed with the Commission on 22-4-2015. In addition to the foregoing and without prejudice to all of its rights under the Ordinance and the submissions above, the PTI also intends to rely on the further evidence and material that will come before the Commission as its proceedings progress, including but not limited to, evidence and material coming before the Commission as a result of: (a) examination, inspection and audit of the polling record and material (including Forms XIV to XVII as prayed for in the PTI Submission and also sought by other political parties); (b) statements and testimony of witnesses (including, without limitation, the then Caretaker Chief Minister of the Punjab and the then Chief Secretary and Additional Chief Secretary of the Punjab) to be summoned and examined by the Commission; and (c) the result of investigations carried out by the Special Investigation Team(s) pursuant to the Ordinance into the matters specified in the PTI Submission and such other matters which the Commission may decide and direct to be probed into by such Special Investigation Team(s). The PTI also reserves the right to rely upon and refer to relevant material and evidence that may be placed on record or brought by any other political party or person before the Commission.

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2(b)B(i) The details of the plan will come to light as the enquiry and investigation and the Commission progresses. However, broadly, the PTI perceives, believes and alleges that, inter alia, the plan involved various elements the underlying object of which was to procure (through various unlawful means, corrupt and illegal practices, through co-opting and in collusion with, inter alia, Returning Officers and Presiding Officers and the manipulation and manoeuvring of the bureaucracy and election machinery) as many votes and seats as possible in the Punjab so as to enable a majority in the National Assembly. The “plan and or design” also has elements which focused on obtaining through similar or analogous illegal and unlawful means seats in the Provincial Assemblies.

2(b)(B)(ii) The PTI relies on all of the material submitted to the Commission by and on behalf of PTI to-date. This includes, without limitation: (i) the material and details given in or referred to in the PTI Submission; (ii) the materials and evidence in respect of 74 specific National Assembly (“NA”) and Provincial Assembly (“PA”) constituencies submitted to the Commission on 25-4-2015 under cover of Civil Miscellaneous Application No. 22 which lists all of the constituencies; (iii) the video evidence (submitted on a USB) by the PTI on 22-4-2015 along with a list thereof which also includes the video evidence listed in section 4.1.2 of the PTI Submission; (iv) the information, data and findings contained in the NADRA Analysis Reports in respect of specific constituencies; and (iv) the witnesses listed in the application for summoning of witnesses for examination by the Commission bearing Civil Miscellaneous Application filed with the Commission on 22-4-2015. In addition to the foregoing and without prejudice to all of its rights under the Ordinance and the submissions above, the PTI also intends to rely on the further evidence and material that will come before the Commission as its proceedings progress, including but not

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limited to, evidence and material coming before the Commission as a result of: (a) examination, inspection and audit of the polling record and material (including Forms XIV to XVII as prayed for in the PTI Submission and also sought by other political parties); (b) statements and testimony of witnesses (including, without limitation, the then Caretaker Chief Minister of the Punjab and the Chief Secretary and Additional Chief Secretary of the Punjab) to be summoned and examined by the Commission; and (c) the result of investigations carried out by the Special Investigation Team(s) pursuant to the Ordinance into the matters specified in the PTI Submission and such other matters which the Commission may decide and direct to be probed into by such Special Investigation Team(s). The PTI also reserves the right to rely upon and refer to relevant material and evidence that may be placed on record or brought by any other political party or person before the Commission. It is a matter of which (judicial) notice must be taken that every significant political parties desirous of obtaining power through electoral process has a political cell and this was also the case for PML-N. This is the body which prepares and proposes to its leadership the plan and strategy as to how to implement the plan to win elections. The incumbent parties/governments are also tempted and prompted to enlist other support including from the various institutions, bodies, agencies and instrumentalities of the Government to execute the plan and achieve the objective of winning. As to what the objective of PML-N was, it is obvious that it wanted to win the elections at any cost. The heavy concentration of the plan was to illegally “sweep” the Punjab and Balochistan to secure its rule for the next five years. The events following the 2013 Elections are also relevant in this context.

2(b)(C)(i) the “plan or design” was “implemented” by and on behalf of the architects thereof - which is the PML-N, its supporters, accomplices, associates and cohorts. The

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Returning Officers, Presiding Officers and other polling officials, elements of the election machinery and the bureaucracy were also co-opted into this design and or plan and they too aided, abetted and facilities (through acts or omissions) the implementation of the “plan and or design”. Although other political parties and persons could also have been part of this “plan and or design” as there appears to also be an element of quid pro quo on a Provincial basis between certain political parties in this regard.

2(b)(C)(ii) Subject and without prejudice to its submissions in part A above, the material referred to in response to question 2(b)(B)(ii) is also relevant to and relied upon in this context by the PTI.

2(b)(D)(i) the “plan or design” was “implemented” by and on behalf of the architects thereof - which is the PML-N, its supporters, accomplices, associates and cohorts. The Returning Officers, Presiding Officers and other polling officials, elements of the election machinery and the bureaucracy were also co-opted into this design and or plan and they too aided, abetted and facilitated (through acts or omissions) the implementation of the “plan and or design”. Although other political parties and persons could also have been part of this “plan and or design” as there appears to also be an element of quid pro quo on a Provincial basis between certain political parties in this regard.

2(b)(D)(ii) Subject and without prejudice to its submissions in part A above, the material referred to in response to question 2(b)(B)(ii) is also relevant to and relied upon in this context by the PTI.

3(a). Both NA and PA constituencies, particularly in the Punjab, Sindh and Balochistan.

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3(b). Not applicable in view of response to 3(a) above.

Pakistan Tehreek-e-Insaf

Through:

Abdul Hafeez Pirzada Sikandar Bashir Mohmand Senior Advocate Supreme Court Advocate Supreme CourtHafeez Pirzada Law Associates Hafeez Pirzada Law Associates6A, Street 90A, G-6/3 6A, Street 90A, G-6/3Islamabad Islamabad

Dated: April 29, 2015

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BEFORE THE HONOURABLE GENERAL ELECTIONS 2013

INQUIRY COMMISSION

=====================================================

(WITHOUT PREJUDICE)

RESPONSE ON BEHLAF OF

PAKISTAN TEHREEK-E-INSAFTO

QUESTIONNAIRE FOR POLITICAL PARTIES GIVEN DURING THE HEARING OF THE HONOURABLE

COMMISSION ON 27-4-2015 ==========================================

===========

INDEX

Sr. No.

Description Date Page(s)

1 Response on behalf of Pakistan Tehreek-e-Insaf to the Questionnaire

29-4-2015

1-11

Through:

Counsel

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