2006 PLP 633 (MLD)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner has filed this Constitutional petition, seeking quashment of order dated 27-9-2005, whereby the learned Election Tribunal respondent No.l by accepting application of respondent No.2 with the consent of the petitioner, directed re-counting of votes at Polling Station No.2 Government Girls Primary School 433/TDA for the seat of Peasant Councillor of Union Council No.34.

2. Learned counsel for the .petitioner by placing reliance on "Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others "(2000 MLD 746), "Muhammad Speed Qazi and another v. Election Tribunal/Additional District and Sessions Judge, Lahore and 16 others" (2004 CLC 631) and "Malik Muhammad Munawar Khan v. Election Tribunal/District Judge, Lahore and 8 others" (1991 CLC 180), has argued that without recording evidence necessitating re-counting of votes, the Election Tribunal had got no jurisdiction to order re-counting of votes and that the consent attributed to the petitioner by the Election Tribunal is mistaken view of the situation, as before obtaining consent, the petitioner was not sufficiently explained the circumstances but the same was sought by way of query which the petitioner could not understand and thus the consent so obtained was neither legal nor binding on him.

3. On the other hand, learned counsel appearing on behalf of contesting respondent No.2/Election Petitioner has argued that the petitioner gave his consent after fully understanding the result and that there was no such-like situation terming it that same was bad mistaken view of the situation.

4. I have considered the arguments of learned counsel for the parties and gone through the record.

5. There is no cavil to the proposition that while deciding the question of re-counting, the Election Tribunal has no jurisdiction to direct such re-counting without recording evidence as well as recording findings on the subject necessitating re-counting of votes. However, in the instant case the position is not that as argued by learned counsel for the petitioner, as also held in the cited judgments. In the instant case the petitioner gave his consent with free-will in the presence of Sardar Manzoor Ahmad Khan, Advocate his learned counsel and his learned counsel answering the query by the tribunal, raised no objection about said re-counting. In such-like situation, the legal position as pointed above, is not applicable as held by the Hon'ble Supreme Court of Pakistan in the case "Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another" (PLD 1986 SC 542) that where a party to the proceedings before a Court or Tribunal enters into an agreement of its own free-will for disposal of the matter, it cannot turn round and successfully plead that the Tribunal could not act on the consent given by the petitioner and should not be allowed to do so. It was further held by the Hon'ble Supreme Court in the cited judgment that doctrine of election, or approbation and reprobation comes to play where party enters into an agreement of its own free-will for disposal of matter except where party denies having given consent, or pleads mistaken view of the situation or alleges to have been otherwise duped or taken in. Respectfully following the above dictum of law, I am, satisfied that the petitioner is debarred from challenging the consent given by him with free-will and consent before the learned Election Tribunal for re-counting of votes.

6. Even the impugned order is an interlocutory order, whereby the entire dispute has not been decided by the learned Election Tribunal and as held by the Hon'ble Supreme Court in the case "A.F. Ferguson & Co. v. The Sindh Labour Court and another" (PLD 1985 SC 429), High Court should refrain from exercising constitutional' jurisdiction in cases where the entire dispute has not been completely disposed of.

7. The result of above discussion is that this petition has no merit and is dismissed as such. H.B.T./M-61/L Petition dismissed.