1988 PLP 1992 (CLC)

Writ Petition No. 5578 of 1987, decided on 14th December, 1987‑. ‑‑‑Local Council‑‑Declaration of result‑‑Both rival candidates having received equal number of votes consenting to declaration of result of election by coin toss‑‑Returning Officer holding toss in presence of both candidates and declaring respondent successful. as a result thereof‑‑Contention that there being only one polling station, it was Presiding Officer who alone could have declared result and that Returning Officer had no jurisdiction in matter, held, was not tenable and petitioner was estopped by his words and conduct to challenge result declared by Returning Officer. Ch. Azeemuddin for Petitioner. Syed Jamshed Ali for Respondent. Date of hearing: 14th December, 1987. QURBAN SADIQ IKRAM, J.‑‑In brief, the facts of this case are that Ajmal Khan petitioner and Mirza Khalid Beg alias Bills were rival candidates in election as Member Union Council Kahna Kachha from Ward No.16 Halqa No.120. Both the candidates received 239 votes each. The Returning Officer, therefore, decided the question by a "Coin Toss. In the toss Mirza Khalid Beg respondent No.5 was declared successful. Hence this petition.

2. We have heard the learned counsel appearing on behalf of the parties. It is contended on behalf of the petitioner that there being only one polling station it was the Presiding Officer who alone could have declared the result and that the Returning Officer who held the toss had no jurisdiction to declare the result. Secondly, that seven votes which did not bear the signature of the Presiding Officer were wrongly counted in favour of respondent No.5. It was, therefore, argued that the declaration of result of respondent No.5 was illegal, void, without lawful authority and of no legal effect. The learned counsel for respondent No.5 controverted the above contentions. It was, however, conceded by him that the Returning Officer was not authorised to declare result in the instant case. The' learned counsel pointed out that it will have no material effect on the result of the election‑ because the Presiding Officer had to refer the matter to the Returning Officer on account of lawlessness created by various persons at that time. He asserted that the procedure adopted by the Returning Officer was consented and agreed to by Ajmal Khan, petitioner and as such he was estopped from agitating the matter through a constitutional petition in this Court.‑ We have considered the respective arguments on behalf of the parties. A perusal of the declaration oft result sheet dated 1‑12‑1987 which has been placed on file of this petition indicates that Ajmal Khan and Mirza Khalid Beg received 239 valid votes each; that they both were present in person before the Returning Officer and that the coin toss procedure was adopted in their presence to declare the result in which Mirza Khalid Beg won. In view of the conduct and consent of Ajmal Khan, petitioner we are of the view 'that . he is* now estopped_ by his words and conduct to agitate the result declared .by the Returning Officer on 1‑12‑1987. In view of this we find no merit in this petition which is accordingly dismissed. M.Y.H./A‑338/L , . petition dismissed.