Said Maroof Khan, J.--Sadeed-ur-Rehman petitioner in W.P. No, 218/2008 and Dr. Afsarul Mulk petitioner in W.P. No, 223/2008 alongwith Amir Muqam etc impleaded as Respondents 7 to 13 in the aforesaid two writ petitions contested the election for the seat of National Assembly held on 18-2- 2008 from constituency NA-31 Shangla whereas Muhammad Yar Khan petitioner in W.P. No, 219/2008 and Engineer Hamid Iqbal petitioner in W.P. No, 224/2008 alongwith Muhammad Zahir Shah etc. Respondents 7 to 10 were the contesting candidates in the election for the seat of Provincial Assembly from PF-87 Shangla-I and one Sher Alam Khan petitioner in W.P. No, 225/2008 alongwith Fazalullah etc Respondents 6 to 14 contested the election for the seat of Provincial Assembly from PF-88 Shangla-II. The results of election were consolidated and transmitted by the Returning Officer to the Election Commission of Pakistan on Form XVI whereby the respondents Amir Muqam, Muhammad Zahir Shah and Fazalullah were unofficially declared as returned candidates from NA-31, PF-87 and PF88 respectively.
2. The petitioners being aggrieved of election of the above named three respondents filed the above mentioned independent constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying therein that the election in the above constituencies having been held in violation of the relevant law and rules may be declared void and that the official-respondents may be directed to conduct re-election in the above constituencies of District Shangla.
3. In W.P. No, 225/2008 filed by Sher Alam Khan petitioner, a candidate from PF-88 Shangla-II, the main allegation is that respondents 6 and 8, in connivance with Respondent No, 5, had cast bogus ballot papers and they had also prevented the supporters of the petitioner from casting their votes in his favour and that at some of the polling stations they had taken the election material into their possession and that they themselves stamped the ballot papers in their favour. That at various polling stations the female polling staff was not deputed and as a result the female voters could not cast their votes.
4. In other four writ petitions the petitioners alleged that the respondents Amir Muqam and Haji Muhammad Zahir Shah had used the Government machinery in order to achieve the desired results. That the Naib Nazim Union Council Maira Besham had brought Transformers on behalf of Amir Muqam Respondent No, 7 to village "Kooz Batkot" where these were intercepted by the people and to this effect a complaint was made to the Returning Officer but he did not take any action.
That in some of the polling stations the required number of polling staff was not deputed. That on the polling day at 02.30 p.m. about 100 to 150 persons had attacked polling station Barbatkot and they took the entire election material including ballot papers and ballot boxes in to their custody and then started polling bogus votes. That on the close of the polls the entire election material of Polling Stations No, 48 to 53 and 79 to 102 of NA-31 and PF-87 was collected jointly in the Court premises of Returning Officer PF-87 at Bisham and on its way from Bisham to Alpuri on 20-2-2008 some unknown persons had burnt the entire election material relating to the said Polling Stations.
That they had applied for recounting and in the alternative for re-election but their applications were rejected by the Election Commission of Pakistan. Since both the provincial constituencies i,e, PF-87 and PF-88 form part of NA-31 and the allegations relating to alleged irregularities and illegalities in all the above writ petitions are almost the same, all the five petitions are being disposed of by this single judgment.
5. The learned counsel for the petitioners contended that in order to achieve success in the election the respondents Amir Muqam, Zahir Shah and Fazalullah had used corrupt practice and illegal means and that they had also managed to cast bogus votes in their favour. That they had also snatched the election material from the Presiding Officers of some of the polling stations and that after taking the same in their custody they destroyed the original election results prepared by the Presiding Officers and subsequently managed to furnish bogus statement of counts on plain papers to the Returning Officer and that the same being not on the prescribed form the consolidated statements of results being based on such bogus statements of counts could not be relied upon. It was next submitted that the election material including the original statements of counts of various polling stations of PF-87 and NA-31 were burnt on its way from Bisham to Alpuri and that the above facts clearly indicate that the election was not conducted honestly, fairly and in accordance with law. It was further contended that the petitioners submitted applications for recounting but their applications were illegally dismissed.
6. On the contrary, the learned counsel representing Amir Muqam, Zahir Shah and Fazalullah respondents on pre-admission notice contended that till the end of the election on 18-2-2008 neither the petitioners nor any other person had made any complaint regarding the alleged corrupt practices and illegal means allegedly used by the above named respondents and that such allegation being an afterthought could not be taken into consideration. That in the applications for recounting submitted before the Returning Officers after two days of election there was no allegation that the above named respondents or any other person on their behalf had either cast bogus votes or prevented any one of the voters from casting votes and as such the applications for recounting were rightly rejected. It was further submitted that the results prepared by the Presiding Officers, in the presence of the parties or their polling agents, were intact and on the basis of the same the Returning Officers correctly prepared the consolidated statements of counts and accordingly the three respondents having secured the highest number of votes were unofficially declared as returned candidates and that their election could not be questioned under Article 199 of the Constitution. It was lastly contended that the facts alleged in the writ petitions require elaborate inquiry and recording of evidence and the High Court in exercise of its constitutional jurisdiction could not venture upon such like disputes. That being an election dispute, it could be conveniently adjudicated by an Election Tribunal and not by this Court in exercise of its constitutional jurisdiction.
7. We have considered the submissions of the learned counsel for the parties and perused the available record. None of the points raised by the learned counsel for the petitioners and the allegations levelled against the respondents in the writ petitions could be appreciated and commented upon by this Court in exercise of the powers under Article 199 of the Constitution because the facts agitated in the writ petitions being controversial questions of fact require detailed inquiry and recording of evidence and the High Court in its constitutional jurisdiction cannot resolved such like complicated disputed questions of fact requiring elaborate inquiry.
8. As per available record the respondents Amir Muqam, Zahir Shah and Fazalullah secured the highest number of votes and they have been unofficially declared as returned candidates from constituencies No, NA-31, PF-87 and PF-88 Shangla respectively. The petitioners had contested the election under the provisions of Representation of the People Act and they have questioned the validity of election mainly on the ground that the respondents had used corrupt practice and illegal means for wining the election. Chapter VII of the Representation of the People Act reveals that when there is a dispute about the conduct or validity of election and there are allegations of corrupt or illegal practice or other illegal act is stated to have been committed during election it could only be challenged through an election petition which is the only statutory remedy as provided under Section 52 of the Representation of the People Act. The Election Commission has already constituted Election Tribunals for adjudication of election disputes.
9. It is well settled law that where a right is created by a statute which itself provides the procedure for enforcement of that right resort must be had to that procedure before invoking the jurisdiction of the High Court under Article 199 of the Constitution. Section 52 of the Representation of the People Act specifically mentions that no election shall be called in question except by an election petition made by a candidate for that election. Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 also provides that the election disputes have to be dealt with by the Election Tribunal.
10. Since disputed questions of fact are involved in all the five cases and alternate adequate remedy of election petition as provided in Section 52 of the Representation of the People Act and Article 225 of the Constitution is available to the petitioners for redressal of their grievance, they cannot question the validity of the election of the three contesting respondents under Article 199 of the Constitution. All the five writ petitions being not maintainable are, therefore, dismissed and consequently the interim orders dated 27-2-2008 and 28-2-2008 issued in Writ Petition No, 218 of 2008 and connected Writ Petitions No, 219 and 225 of 2008 stand recalled. The above are the reasons for our short orders of even date in the writ petitions mentioned above.