' MUHAMMAD MUNIR PARACHA, J.---The petitioner, and respondents Nos. 5 to 17 contested the election for the membership of Provincial Assembly of Punjab from the Constituency PP-60, Faisalabad-X. The case of the petitioner is that Returning Officer on 19-2-2008 announced tentative result and copies of the same were delivered to all the candidates. According to the petitioner, in the above said result (Annexure-A), the petitioner was shown to have got 21610 votes as against 21375 votes secured by respondent No.5. The number of rejected votes was shown to be 3080. The petitioner pleads that on 20-2-2008, a revised tentative result sheet (Annexure-B) was issued by the Returning Officer showing the petitioner to have got 20610 votes, respondent No.5 having secured 21375 votes and the number of rejected votes as 4083. It is pleaded by the petitioner that on 19-2-2008, it was announced on the Pakistan Television and other Electronic Channels that the petitioner stood elected. Another document (Annexure-C) has also been annexed with the writ petition which the petitioner claims to have got from website of the Election Commission of Pakistan. This result is consistent with the result sheet Annexure-B except that in Annexure-B, a retired candidate namely Najam-ul-Hassan is shown to have got 26 votes whereas in Annexure-C, the number of votes secured by Najam-ulHassan .Is zero. The petitioner filed an application before the Chief Election Commissioner, Islamabad praying therein that the petitioner be declared to have been duly elected on the basis of the result sheet (Annexure-A) or in alternative the order of recounting be passed. Another prayer was that in Polling Stations 201, 202, 205, 206, 292 and 293 re- polling be ordered. The learned Election Commission vide order, dated 28-2-2008 dismissed the application filed by the petitioner holding that:-- "We are not inclined to grant the relief of recounting of votes prayed for as the record makes it manifest that the Returning Officer has already finalized the exercise of consolidation of result. In any event, commission of grave illegalities is not discernable from the facts apparent on the face of the record and the available material does not spell out any substantial ground for recounting.
As regards re-polling, the application does not meet the requirement of section 103-AA of the Representation of the People Act, 1976. The application is, therefore, rejected. The applicant be informed accordingly."
' The petitioner thereafter approached this Court through the present writ petition.
2. The writ petition was placed before us on 29-2-2008. We directed the Returning Officer to appear before the Court on 3-3-2008 and explain the variation between Annexure-A and Annexure-B. As an interim measure, we ordered that the notification of the returned candidate, if issued in the meanwhile, shall remain subject to the result of the writ petition. On 3-3-2008, the Returning Officer did not appear and it was noted that the process was not issued to him. The case was adjourned to 10-3-2008. On 10-3-2008, the Returning Officer appeared and he was examined. Order, dated 10- 3-2008 is reproduced to give an idea as to what was the stance taken by the Returning Officer:-- "In response to the notice issued by the Court, Mr. Parvez Ismail Joya, Returning Officer, PP-60, appeared. He states that on 19-2-2008, he prepared un-official results. The original copy has been placed on the record. He states that one independent candidate namely Najam-ul-Hassan, has retired before the polling date and that he (Returning Officer) did not mention the votes secured by Najam-ul-Hassan, in the un-official results.
' He sent these results to the Election Commission and the Election Commission informed him that there is difference of 26 votes in the result prepared and sent by him. The difference arose because of the fact that he did not mention 26 votes secured by Najam-ul-Hassan. He therefore prepared revised unofficial result on 20-2-2008, before consolidation of the results.
' He states that consolidation of the result was conducted later on 20-2-2008. He states that the document annexed as Annex. A, is a forged document. Consolidated results purportedly prepared on 19-2-2008, placed on record by the petitioner were shown to the Returning Officer. He stated that this document too is a forged document to the extent of the date. He states that there were no consolidation proceedings on 19-2-2008. The learned counsel for the petitioner states that he has obtained the above said two documents, that is Annex. A, placed at Page No.14 and the consolidated result shown to have been prepared on 19-2-2008 from the Deputy Election Commissioner. The learned counsel states that he has already applied for the attested copies of the documents. He requests for some time to place on record the attested copies of the above mentioned documents. Relict on 17-3-2008. The Returning Officer need not come on 17-3-2008. The original copies of the documents tendered by the R.O. Have been returned to him after getting photo copies of the same."
3. In pursuance of order, dated 10-4-2008 Section Officer (Law), Election Commission of Pakistan filed the following documents:--
(i) Un-official result, dated 19th February, 2008 received from the Returning Officer.
(ii) Un-official Revised result, dated 20th February, 2008 received from the Returning Officer.
(iii) Official Result, (Form-XVI) received from the Returning Officer; and
(iv) Official Result, dated 20-2-2008 (Form-XVII) received from the Returning Office.
' We mark these documents as Mark-I to Mark-IV respectively. Mark-I & II are consistent with Annexures-A and B respectively. Mark-III is Form-XVI and Mark-IV is Form-XVII. Mark-III shows that petitioner got 20610 votes, respondent No.5 got 21664 and the number of rejected votes is 4083.
Mark-IV also shows the same result.
4. We heard the arguments of the learned counsel Raja Muhammad Ibrahim Satti, Advocate, for the petitioner on 19-5-2008 whereas Dr. Khalid Ranjha, Advocate was heard on 20-5-2008.
5. The learned counsel for the petitioner submits that the application filed before the learned Election Commission was wrongly taken by the learned Commission to have been filed under section 103-AA of the Representation of the People Act, 1976. It is submitted by him that the petitioner has invoked the provisions of section 103 of the Act particularly Clause-(b) which empowers the Commission to review an order passed by an officer functioning under the Act. The argument of the learned counsel is that the petitioner having obtained the highest number of votes, 21610, as against 21375 votes secured by respondent No.5 ought to have been declared elected. The learned counsel submits that on 19-2-2008, the number of rejected votes was shown to be 3083: He pleads that in the revised un-official results his votes were reduced to 20610 and the number of rejected votes were increased to 4083. According to the learned counsel, the Returning Officer dishonestly deducted 1000 votes from the count of the petitioner and included those in the number of rejected votes increasing the number of 4083.
6. Dr. Khalid Ranjha, Advocate contends that this Court has no jurisdiction in view of bar contained in Article, 225 of the Constitution of Islamic Republic of Pakistan. It is submitted by him that the petitioner had an adequate legal remedy of challenging the election through an election petition.
The learned counsel submits that the constitutional jurisdiction may not be exercised in the case.
The learned counsel argues that while exercising the constitutional jurisdiction, the High Court has to confine itself to examine the legality or otherwise of the order passed by the functionary.
According to the learned counsel, there being no jurisdictional defect in the order passed by the learned Election Commission, the writ cannot be issued.
7. After hearing the learned counsel for the parties, we are convinced that the questions of facts are involved in the case which cannot be resolved in the constitutional jurisdiction. Although, the Returning Officer stated before us on 10-3-2008 that Annexure-A is a forged document but Mark-I placed on the record by the Section Officer (Law), Election Commission of Pakistan proves the existence of Annexure-A. In Mark-I, the petitioner has been shown to have got 21610 votes and respondent No.5 21375 votes. In Mark-II, the number of votes secured by the petitioner is shown to be 20610 and that of respondent A No.5 as 21375 votes. In Forms XVI and XVII the petitioner is shown to have got 20375 votes and respondent No.5 21664 against 21375 votes shown in Mark I and H. We have examined Form-XVI. None of the candidates' got any postal ballot. The difference does not seem to have arisen because of re-examination of the ballot papers excluded from the count by the Presiding Officer as the number of rejected ballot papers remains the same, 4083. It is not the case that the Returning Officer recounted the ballot papers under subsection (6) of section 39. No explanation for the difference between 21375 votes shown to have secured by respondent No.5 in Mark-I and II and 21664 mentioned in form VI and XVII is available on the record.
8. The controversy, therefore, is regarding number of votes secured by the candidates particularly the petitioner and respondent No.5. Thus controversy could only be resolved by an Election Tribunal. We asked the learned counsel for the petitioner whether election petition has been filed by him or any other candidate. The reply given was in negative. We have, therefore, decided to send this writ petition to the Election Commission of Pakistan with the direction to treat the same as an election petition. This course is permissible in view of the judgment of the Hon'ble Supreme Court reported as Asghar Ali v. Punjab Local Councils Election Authority, Lahore and 4 others (1999 SCM R 1123). It was observed by the Hon'ble Supreme Court in the present case:-- "In our view, the basic question is whether the High Court could have interfered with in an election matter after the result was notified. The question as to whether there has been manipulation or alteration in the figure of 239 votes allegedly obtained by respondent No.4 was a question of fact, which was within the competence of Election Tribunal under the Ordinance (ibid). Mr. Peracha, learned counsel for respondent No.4, submits that by now the election petition has become barred by time and it will not be possible for him to avail the remedy. He further submits that section 5 of the Limitation Act will not be applicable.
' We would allow the above petition, convert it into appeal and set aside the impugned judgment.
However, keeping in view the difficulty pointed out by Mr. Peracha, the writ petition filed by respondent No.4 in the High Court should be remitted to the District and Sessions Judge, Gujrat (Election Tribunal, Gujrat) with the direction to treat the same as election petition and decide the matter within a period of two months from the date of receipt of copy of this order. Mr. M. Munir Peracha, Advocate Supreme Court undertakes to deposit the requisite fee within a period of one week from today. The course which we have adopted in this case, more or less, followed in the case of Muhammad Anis and others, v. Abdul Haseeb and others (PLD 1994 SC 539) wherein the writ petitions filed by a civil servant working in the Customs Department were remitted to the Service Tribunal with the direction to treat the same as service appeals in order to avoid the question of limitation. In the meanwhile, till the above election petition is decided, both the parties shall maintain status quo and neither the petitioner nor respondent No.4 will work as Member."
' This course was adopted by the Lahore High Court, Lahore in a case reported as Shahid Khan v.
Senior Civil Judge/Returning Officer and 9 others (2002 M LD 1945 Lahore) wherein it was observed:- "As the time for the filing of election petition has already elapsed but since the petitioner had challenged the election through this writ petition in wrong forum yet in time and the same remained pending for a considerable period and notices were issued to the respondents and hearing was also given, hence, it will be equitable and just if this writ petition is remitted to the Election Tribunal to treat the same as an election petition. I am fortified in my view by placing reliance on the judgment of the august Supreme Court reported as "1994 SCM R 1299" in which the Supreme Court in such like circumstances remitted the petition to the Election Tribunals as it was not safe to pronounce the judgment on the basis of the contentions raised by the concerned parties and recording of evidence was necessary and it was held that only the Election Tribunal will be efficacious and adequate forum to decide the same issue. The delay was condoned which occurred due to the pendency of the proceedings before the august Supreme Court. As the time fixed for the filing of the election petition has already expired, hence this writ petition is remitted to the Election Tribunal which shall be treated as an election petition and it is directed that the same shall be decided on its own merits within the shortest possible time by the Election Tribunal after affording opportunity of hearing to the contesting parties."
9. This writ petition is, therefore, sent to the Election Commission of Pakistan which shall treat it as an election petition and entrust the same to an Election Tribunal. The Election Commission may require the petitioner to fulfil the procedural requirements of an election petition like the deposit of one thousand rupees etc.
10. The writ petition is disposed of in the above terms.