1. ' AJMAL MIAN, C.J.---This is a petition for leave to appeal against the judgment, dated 11-6-1998 filed by present respondent No,4, allowing the same as follows:-- "The perusal of the record shows that the result as notified by the Returning Officer is not in accordance with the results as declared by the Presiding Officers of Polling Station Chak Sheru, Election Unit No,2 and, as such, the results as notified by the Returning Officer of the above said ward are set aside and the Returning Officer is directed to notify the election results as declared by the Presiding Officer, of the Polling Stations.
2. ' Disposed of with the above observations."
3. ' The brief facts are that the petitioner and respondent No,4 contested District Council Election for electoral unit No,2, Gujrat. It appears that the result was notified on 21-5-1998. Thereupon, respondent No,4 approached the Punjab Local Council Election Authority with the allegations that 239 votes obtained by him in one of the polling stations were fraudulently converted into 39 votes.
4. The Election Authority declined to interfere with the above matter on the ground that it has no jurisdiction. After that, the above writ petition was filed by respondent No,4, which was allowed in the above terms. The petitioner has, therefore, filed the present petition for, leave to appeal. When the above matter was placed in Chamber, notice was ordered to be issued to the respondents as well as to the learned Advocate-General Punjab. In response to above notice, Mr. M. Munir Peracha, learned counsel has appeared for the contesting respondent No,4 and Mr. Altaf Ilahi, Additional Advocate-General Punjab has put in appearance for the official respondents.
5. ' In support of the above petition Mr. Maqbool Elahi Malik, learned counsel for the petitioner, has vehemently contended that once the result was notified the proper remedy available was by way of an election petition in view of section 24 of the Local Government Ordinance and Rule 13 of the Local Government Election Rules, 1979.
6. ' On the other hand, Mr. M. Munir Peracha, learned counsel for respondent No,4, has submitted that the above fraudulent act was so patent that the High Court could look into it and interfere with the same in exercise of Constitutional jurisdiction. According to him, section 24 of the Local Government Ordinance does not bar the Writ Jurisdiction of the High Court.
7. ' Mr. Altaf Ilahi, learned Additional Advocate-General appearing for official respondents, has urged that the High Court after examination of the record discovered the above mistake which was corrected in presence of both the parties and, therefore, the impugned order is unexceptionable.
8. 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 Limitation Act will not be applicable.
9. ' We would allow the above petition, convert it into appeal and set aside the impugned judgment.
10. 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 the respondent No,4 will work as Member.