P L D 2009 Peshawar 26 (PLP)

MUHAMMAD ALAM KHAN, J.

Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner Jehanzeb has asked for declaration that the entire election of NA-41 of South Waziristan Agency be declared as illegal, null and void and ab initio illegal.

2. Briefly the facts of the case as narrated in the petition are that the Election Commission of Pakistan respondent No.1 held election to the Constituency NA-41 Tribal Area South Waziristan Agency Wana on 18-2-2008.

3. It was alleged that the situation in the area was bad due to frequent Military Operation, in which, many people lost their lives and this fact was admitted by respondent No.4 Political Agent in his letter dated 13-2-2008. It is further averred that the respondent No.4 was showing undue favour to respondent No.5 Maulana Abdul Malik and they suddenly changed the notified polling stations of the whole Tehsil Tiazra to the Zam Public School Political Katchery in District Tank, which was 150 kilo meters away from Tehsil Tiazra.

4. Learned counsel for the petitioner submitted that all this was done in order to do favour to respondent No.5 at the cost of other contesting respondents. The change of the polling station created great hardship to the voters of the area as most of the inhabitants of Mahsud tribes had migrated to various parts of the country due to the law and order situation and thus, they were deprived of their right of franschise.

5. The learned counsel for the petitioner submitted that the change of venue of polling and shifting of polling stations were not within the competence of Election Commission and all this has been done in order to unnecessarily favour respondent No.5 and to deprive the Mahsud tribe from their right of franchise.

6. It was also argued that, after all if there was a necessity of the change of the polling station that must have been done with a prior notice to all the candidates and notice whereof should have been given to them in time.

7. We have gone through the available record of the case and considered the argument of the learned counsel for the petitioner. The allegation of the petitioner regarding the change of the polling station, allegedly to favour certain candidates pertains to the factual controversy requiring the recording of evidence, which cannot be done in the extraordinary constitutional jurisdiction of this court. Election Tribunals have been constituted and under section 52 of the Representation of the People Act, such like grievances can only be agitated before the Election Tribunal, which provides that no election shall be called in question except by election petition made by candidate for that election. Article 225 of the Constitution also provides that no dispute arising in connection with or election to a house or any Provincial Assembly shall be called in question except through an election petition.

8. Since factual controversy is involved in this case and alternate adequate and efficacious remedy is available to the petitioner as provided in section 52 of the Representation of the People Act, 1976 and Article 225 of the Constitution. Petitioner has to redress his grievances before the Election Tribunals and, he cannot question the validity of the same under Article 199 of the Constitution of the Islamic Republic of Pakistan as held in the case of Election Commission of Pakistan through its Secretary v. Javed Hashmi and others reported in PLD 1989 SC

396. This writ petition being not maintainable is dismissed in limine. H.B.T./199/P Petition dismissed.