Muhammad Alam Khan, J.--Sayed Hamid Shah son Sayad Kamal Shah has filed the instant Writ Petition under Article 199 of the Constitution, of Islamic Republic of Pakistan, 1973 vide which he has prayed for issuance of a direction to the official respondents that they should recount the votes of polling station in Union Council Hindi Khel and Jani Khel. And consequently excludes the bogus votes from count by rejecting the same being procured by Respondent No, 1 through corrupt and illegal practices.
2. It was averred in the petition that the petitioner alongwith Respondents No, 1 to 6 contested the general election of Provincial Assembly Constituency PF-72 which was held on 18.2.2008. It was alleged that Respondent No, 1 had started using of force and coercion on the morning of the election day and even prior to that on 17.2.2008, he used to pressurize the Presiding Officer and Assistant Presiding Officer to show favour to him and consequently, as a result of that the voters were not allowed to use their right of votes in various polling stations. It was also submitted that lady voters were not allowed to cast their votes and astonishingly that the result of the lady polling station was also compiled in the aforesaid two polling stations. It was also alleged that the polling staff including the Returning Officer was favouring the Respondent No, 1 and mass rigging has been committed in the process of election. On 28.2.2008 pre-admission notice was given to the respondent and interim relief was granted to the petitioner that final notification regarding the success of Respondent No, 1 shall not be issued. Pursuant to that Respondent No, 1 submitted written statement in which inter cilia preliminary objection was raised to the competency of the writ petition and jurisdiction of this Court in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 52 of the Representation of People Act, 1976.
3. Learned counsel for the petitioner submitted that the election result has been procured by using force and stopping the lady voter to poll their votes. It was also submitted that Respondent No, 1 use force and by using coercive and illegal practice has secured the result in his favour.
4. On the other hand Qazi Muhammad Anwar, learned counsel for Respondent No, 1 submitted that election tribunal have been constituted and the election dispute is the exclusive domain of the election tribunal. It was also argued that the allegation in the petition contain, factual objections and the same would require recording of evidence which cannot be done in the extra-ordinary constitutional jurisdiction ,of this Court. It was also submitted that the ouster of jurisdiction should not be taken lightly and under Section 103(aa) of the Representation of People Act, the commission has also the power to declare the poll in any constituency as illegal after summery inquiry on the ground of illegality and irregularity; Once the tribunals are constituted then the exclusive jurisdiction lies with the tribunal which would decide the matter after recording of evidence and .resolving the disputed controversies between the parties.
5. We have gone through the available record of the case and have considered the arguments of the learned counsels for the parties.
6. The allegations of the petitioner that on the day of polling or even prior to that on 17.2.2008 Respondent No, 1 has resorted to pre-poll rigging and used coercive means to extract the votes from the voters and also the question that lady voters were not allowed to cast their votes and inspite of that the result of the lady polling station was compiled are questions which pertains to factual controversy and the same would require the recording of evidence which cannot be done by this Court in its extra-ordinary constitutional jurisdiction. Election Tribunals have also been constituted for adjudication of election disputes and under Section 52 of the Representation of the People's Act read with Article-225 of the Constitution the exclusive jurisdiction lies with the election tribunal.
7. As factual controversy is involved in this case and alternate adequate and efficacious remedy is available to the petitioner for the redressal of his grievances before the election tribunal, he could not question the vires of the election or the dispute with respect to the election of Respondent No, 1 in the extra-ordinary constitutional jurisdiction of, this Court as held in the case of Election Commission of Pakistan through its Secretary Vs. Javed Hashmi reported in (PLD 1989 S.C. 396).
8. In view of the facts and circumstances of the case narrated above, this writ petition being not maintainable is dismissed in limine and the order with respect to the interim relief issued by this Court on 28.2.2008 prohibiting the issuance of notification regarding success of Respondent No, 1 is also vacated.