P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑This is an election petition by thirty ladies to challenge the election of Jahangir Perwaiz, respondent No. 4, in an election held on the 5th of November 1964, on the ground that they were deprived of the exercise of their right of franchise and thus his election was void. An Election Tribunal was appointed, and his election has been challenged by Fakhrud- Din, a contesting candidate, by an election petition, which is stated to be pending. 2. The contention of the learned counsel for the petitioners is that as a right of franchise has been denied to them, they have a right to move this Court under Article 98 of the Constitution, as they have no adequate alternative remedy available to them. The contention raised is that as there was an arrangement between the contesting candidates that women will not be allowed to cast their votes, they were prevented from doing so by the Presiding Officer, who denied that he prevented any woman from voting or declined to record women s' votes. His version is that after 14/15 women had cast their votes, no woman went to him to cast her vote though the female staff at the polling booth remained in attendance till 3 p.m. We do not find it possible to accept the statements made in the affidavits of the petitioners that when they went to the Presiding Officer to exercise their votes, the Presiding Officer declined to record their votes. 3. But can the election of the respondent be called in question by a group of voters and otherwise than by an election petition`: The answer to these questions is to be found in section 58 of the Electoral College Act which provides :‑ Section 58.‑(1) No election shall be called in question except by an election petition under subsection (2). (2) Any candidate may make an election petition challenging the election at which he was a candidate. Both the questions have to be answered in the negative in this case. The challenge to the election in this case is neither by an, election petition, nor by a candidate. The Electoral College Act does not thus authorise the present challenge by the petitioners to the election of the respondent. 4. A right to vote is not a common law right, but is a creation of the statute. A dispute as to casting of votes or other matters at an election must be decided under and in accordance with the enacted law. Therefore, in the instant case the election could only be challenged under section 58 of the Electoral College Act, that is, by an election petition by a candidate, this not being a case falling under Article 98 (2) (b) (ii) of the Constitution. 5. Nor it is possible for the petitioners to challenge the election under Article 98 of the Constitution, since this is not a case falling under Article 98 (2) (b) (ii) of the Constitution, and otherwise the petitioners cannot be treated as aggrieved by the election of the respondent. Their allegation cannot be accepted that they were deprived of their right to exercise their votes. 6. This writ petition is, therefore, dismissed, but there will be no order as to costs. K. B. A. Petition dismissed.