1984 PLP 1286 (CLC)

‑‑ Art. 9‑Punjab Local Councils (Election) Rules, 1979, r. 40(7) Election‑‑Chairmanship of Union Council‑‑Both parties getting equal votes and agreeing to decide result by throwing a toss‑‑No illegality, held, can be found in mode adopting by Presiding Officer to decide result by tossing a coin‑ Petitioner, having taken a chance to toss but luck not favouring him, has to accept result of his own choice. Soomar v. Jamal and 2 others P L D 1982 Kar. 384 ref. Munawar Khan v. Jafer and 2 others ‑1982 C L C 1060 rel. ABDUL SHAKURUL SALAM, J.‑The petitioner and respondent No. 2 contested an election for Chairmanship of Union Council No. 121 Mari Kamboh, Tehsil Depalpur District Okara on 8th November, 1983. Both the parties got equal votes 5 each. The result was sought to be decided by throwing a toss. The petitioner chose one side of the coin and his opponent the other. The petitioner was unlucky and toss fell in favour of the respondent. The latter was elected. The petitioner has filed this Constitutional petition.

2. The learned counsel has contended that in view of rule 40(7) of Local Councils Election) Rules, 1979 in case of equality of votes, the result has to be determined by drawing lots and not by toss. He has placed reliance on Soomar v. Jamal and 2 others (P L D, 1982 Kar. 384). 3. .A perusal of the aforesaid judgment would‑ show that in that case since the other contesting candidate had not agreed to the throwing of the toss, the result was set aside.' However the learned Bench has referred with approval to a decision of this Court re ported in Munawar Khan v. safer and 2 others (1982 C L C 1060) wherein it has been held that tossing of a coin with the consent of parties would not violate the above rule. Therefore, it would follow that, the learned Bench of the Karachi High Court has not held that the result arrived at by drawing of toss would be invalid if that be with the consent of the parties. The judgment of the Lahore High Court referred to above lays down that "As the drawing of lot as provided in rule 40(7) is only a mode of decision by a chance we do not find any illegality in the mode adopted by the Presiding Officer" (which was by tossing a coin)". It was particularly so when both the parties had agreed to it. There is no question of any estoppel. The respondent ought to have accepted the decision as it was made with his agreement on the basis of a choice". So is the position in the present case. The petitioner having taken a chance to toss, if luck did not favour him he had to thank his own star. It is just bad luck. The learned counsel for the petitioner also submitted that some of the voters were not allowed to cast their votes. In reply to the report earlier called for it is stated that nobody had appeared on the day of polling nor any order of the Honourable High Court had been produced before the Returning Officer. From the proceedings of the election also it does not appear that any objection had been taken by the petitioner regarding non‑participation of eligible voters.

4. In view of what has earlier been stated the petitioner has to accept the result of his own choice. The petition has no force. It is, accordingly, dismissed. M. Y. H. ‑‑‑‑‑ Petition dismissed.