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Writ Petition No. 682 of 1981, decided on 6th April, 1981.

‑‑ R. 40 (7)‑Election--Both parties obtaining equal number of votes‑--Drawing of lot only mode of decision in such circumstances‑No illegality, held, lay in mode adopted by Presiding Officer by tossing particularly when both parties agreed to same.

Ch. M. A. Saleem for Petitioner.

Abdur Rashid Qureshi for Respondent.

Date of hearing : 6th April, 1981.

.‑In an election to a seat in Union Council Handal, Tehsil and District Kasur, the petitioner and respondent No. 1 secured ,equal number of votes. According to rule 40 (7) of the Local Councils (Election) Rules, the Presiding Officer decided to draw a lot by tossing a coin. In the toss the respondent asked for the side with Minar‑e‑Pakistan and the petitioner asked for figure 10'. On tossing the coin the petitioner's side came up with the result that he was declared elected. The respondent filed an election petition. The only point raised there was that as the draw of lot' meant not tossing by coin but drawing a lot, the procedure adopted by the Presiding Officer was unlawful. The plea found favour with the Tribunal who set aside the petitioner's election and directed that the Presiding Officer shall draw a lot. :‑‑

2. It is contended by the learned counsel for the petitioner before us that as the draw of lot means selection by chance and as the parties had agreed to do the same by tossing a coin, the Election Tribunal had no juris diction to set aside the result.

3. The learned counsel for the contesting respondents states that as the law provided the drawing of a lot, the same ought to have been done and the other mode of decision by tossing of coin has been rightly set aside. He further states that as there was a mode provided in law, the accep tance by the parties of a different mode would not have estopped the respon dent to challenge the result.

4. As the drawing of lot as provided in rule 40(7) is only a mode of decision by chance we do not find any illegality in the mode adopted by the Presiding Officer. It is particularly so as 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 chance.

In view of the above the impugned order is declared to be without lawful authority and of no legal effect. The parties are however, left to bear their own costs.

M. Y. H. Petition accepted.

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