' Through this Constitutional petition the petitioners seek setting aside of the result declared by respondent No,2 as null and void, having no legal effect and a direction for re-polling of the votes in the Constituency.
2. The brief facts of the case are that the petitioners and respondents Nos.3 and 4 contested the election along with others for the Seat of Nazim and Naib-Nazim of Union Council No,19, Chah Miran, Lahore. Respondents Nos.3 and 4 were declared as successful candidates and the Election Commission has issued their notification in this respect.
3. Learned counsel for the petitioners contends that unfair means had been used by respondent No,3 who was facilitated by the Presiding Officers and their polling staff at all the Polling Stations and the malpractices were openly done. The Presiding Officers caused harassment to the voters of the petitioners and also gave undue support to benefit respondent No,3. The result has been tabulated in violation of rule 39-A of the Punjab Local Government Election Rules, 2000. He further contends that apart from malpractices and unfair means at Polling Section No,10, Muhammad Ashraf Khan, was the Presiding Officer of polling which was held at M.C. Junior Model Girls School, Chah Muhammadi, Sultanpura, who disappeared alongwith the ballot papers polled and ballot- box and did not deposit the result on 2-T2001. Then by respondent No,2. Returning Officer. D.S.P., Old Anarkali Circle, Lahore, was asked to search for the Presiding Officer. He was found in the hostel at 12 midnight and on telephone he contacted respondent No,2 and told him that the polling result and ballot papers etc., were lying in the School and would be produced before him in the morning of 4-7-2001. Ile contends that respondent No,2 then tabulated the result of the candidates and according to him it has been held in violation of the rules. He relied upon rule 39 (ibid) which provides that the Presiding Officer shall count the votes in the presence of the electoral agents but as no votes were counted by the Presiding Officer and even he did not deposit in time the results, no sanctity is attached to the result not only of the Polling Station No,10 but all of the Polling Stations. He further contends that violation of Rule 40 of the Election Rules, 2000 is also there. He further contends that as the mandatory rules have been violated which is supported by the documentary evidence this Court shall issue a writ for declaring the election of Union Council No,19 as illegal and void and the re-polling may be ordered.
4. Dr. A. Basit, Advocate learned counsel appearing on behalf of respondents Nos.3 and 4 has argued that the difference of votes between the petitioners and respondent No,3 is 752 votes. The dispute regarding Polling Station No,10 even if is admitted will not affect the result as a whole in that Polling Station petitioner No,1 obtained 118 votes while respondent No,3 obtained 199 votes. Due to the lead of 752 votes, it cannot be said that the result has been affected by non-counting of votes by the Presiding Officer at the moment as it has not caused any difference. He further contends that factual controversies cannot be resolved in writ jurisdiction, whether the allegations levelled by the petitioners are correct or incorrect that can be seen after recording of evidence and affording opportunities of cross-examination on the witnesses which questions cannot be resolved in writ jurisdiction and the writ petition is liable to be dismissed. He further contends that as the result has been notified by the Election Commission under rule 70 of the Punjab Local Government Electicn Rules, 2000, no election shall be called in question except by an election petition hence the petitioners have alternate remedy by filing an election petition and this provision is just like Article 225 of the Constitution of the Islamic Republic of Pakistan. In judgment reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), the Hon'ble Supreme Court finally held that the election petition is the only remedy available to the unsuccessful candidate and the writ petition is not maintainable. He has relied upon judgments reported as Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others (1999 SCM R 1123) and Ghulam Rabbani v. Malik Ahmad Khan and others (1999 SCM R 152), in which the august Suipreme Court held that instead of election petitions the unsuccessful candidate filed writ petitions which were accepted by this Court and orders were set aside on the ground that in the rules a remedy has been given by way of filing an election petition hence writ petitions were not maintainable.
5. I have heard the learned counsel for the parties and also perused the documents attached with this petition. The first question before proceeding further is whether this Court can assume the jurisdiction and can decide the writ petition on merits when rule 70 of the Punjab Local Government Elections Rules, 2000 is there which is as under:--
70. Election petition.---(1) No election shall be called in question except by an election petition made by a candidate for that election (hereinafter referred to as the petitioner).
(2) An election petition shall be presented to the Tribunal appointed by the Chief Election Commissioner within thirty days of the publication in the official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Chief Election Commissioner a sum of one thousand rupees, as fee for the petition.
(3) An election petition shall be presented by a petitioner and shall be deemed to have been presented, when it is delivered in person by the petitioner, or by a person authorised in this behalf by him, to the Tribunal appointed by the Chief Election Commissioner for the purpose."
' This rule is no doubt similar to Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 which is also reproduced as under:--.
"225. Election dispute. ----No election to a House or a Provincial Assembly shall be called in a question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlise-Shoora (Parliament)."
' The Hon'ble Supreme Court of Pakistan in the case of Javaid Hashmi , (supra) has held that when the election petition cab be filed the High Court cannot interfere in writ jurisdiction as the alternate remedy is available to the unsuccessful candidate. Similarly in both the judgments relied upon by the learned counsel for the respondents Nos.3 and 4, the Supreme Court of Pakistan has held that the allegation that a manipulation has been done in the figure of votes, allegedly obtained by the successful or unsuccessful candidates was a question of fact which, was within the competence of Election Tribunal and the High Court could not interfere with the matter. Similarly in Ghulam Rabbani's case (supra) the. Supreme Court of Pakistan has held that this Court has no jurisdiction in election matters. The jurisdiction being vested in an Election Tribunal, the operation of the High Court's judgment passed in writ jurisdiction was suspended. I am also fortified in my view by the following cases of the august Supreme Court of Pakistan in judgments reported as "2000 SCMR 149" and "2000 SCM R 998". As in this case there are certain questions of fact which cannot be resolved in writ jurisdiction and the recording of evidence is necessary this Court cannot decide these issues in writ jurisdiction and even otherwise the petitioners have alternate remedy by filing an election petition which is exhaustive remedy hence the petitioners can avail the said remedy under the law.
When the equal and efficacious remedy is available and the petitioners can avail such remedies this Court cannot interfere in writ jurisdiction.
6. For what has been discussed above this writ petition is dismissed as being not maintainable.
However, in view of the peculiar circumstances of the case regarding the documentary evidence produced/attached with this writ petition I do not want to comment on the factual controversies lest it may cause any prejudice to the case of either of the parties in the appropriate proceedings.
The election Tribunal is directed to decide the election petition within sixty days from the filing of the same, if any, after receipt of this order.