' MUHAMMAD ALAM KHAN, J.---The petitioner through the instant Writ Petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the action of respondent No,3 dated 26-2-2008 refusing the re-count of the votes with respect to. ,the election of National and Provincial Assembly seats for NA-16 Hangu and PF-42 Hangu in the recently held election on 18-2-2008.
2. It is averred in the petition that the general election in the country was conducted on 18-2-2008 pursuant to the notification dated 20-11-2007, which was subsequently amended through notification dated 2-1-2008. It is also alleged in the petition that even prior to the election respondent No, 10 was posing to be establishment's candidate and during the poll, he resorted to pre-poll rigging and even on the day of election he created law and order situation and had left no stone un-tuned to commit the gross illegality. It was also alleged that there were sectarian clashes in the area and the same resulted in polling of bogus votes.
3. On 28-2-2008 pre-admission notice was issued to the respondents, pursuant to which they appeared and submitted written statement in which inter alia preliminary objection was raised with respect to the competency of the writ petition in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 52 of the Representation of the People Act, 1976.
It was averred in the written statement that the result have already been consolidated and the allegations raised in the petition are exclusively amenable to the jurisdiction of the election tribunal which has duly been constituted by the Chief Election Commissioner through a notification.
4. Learned counsel for the petitioner contended that because of the mass rigging and irregularities conducted during the process of election, the election is liable to be set aside.
5. On the other hand learned counsel for the respondents submitted that once the result is consolidated then it become an election dispute, which cannot be questioned, in the extraordinary constitutional jurisdiction of this Court.
6. It was also argued that as the election tribunals have been constituted and thus the only forum available for such like disputes is the election tribunal. It was further submitted that at no stage the election or its process was objected to by the petitioner and thus, by his own conduct the petitioner is estopped to challenge the said election.
7. We have gone through the available record of the case and have considered the submission of the learned counsel for the parties the contention of the learned counsel for the petitioner that on the day of poll vast rigging was committed which resulted in polling of bogus votes is a controversial question of fact which require an elaborate inquiry and recording of evidence, which cannot be undertaken in this constitutional petition and specially when there are factual controversies, which requires the detailed recording of evidence which is the exclusive domain of the election tribunal.
8. Admittedly the election was held in the disputed constituency and the result was complied according to the available procedure. Election Tribunal have also been constituted for adjudication of the disputes regarding holding and conduct of general elections in the country. Once the tribunals are constituted, then the exclusive jurisdiction lies with those tribunals as envisaged under section 52 of the Representation of the People Act which provides that no election shall be called in question except by election, made by a candidate for that election. Similarly Article-225 of that Constitution of Islamic Republic of Pakistan, 1973 also provides that no dispute in connection with an- election to a House or Provincial Assembly shall be called in question except by an election petition.
9. Since factual controversy is involved in this, case and adequate and efficacious remedy in the shape of election petition is available to the petitioner he can raise the grievance before the competent forum i.e, the election tribunal and he cannot question the legality of the election before this Court in its extraordinary constitutional jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 as held in the case of Election Commission of Pakistan, through its Secretary v. Javed Hashmi reported in (PLD 1989 SC 396).
10. This writ petition being not maintainable is dismissed in limine. The interim relief granted by this Court on 28-2-2008 prohibiting the issuance of notification of respondent No, 10 also stands vacated.