' AJMAL MIAN, J.-The petitioner has impugned the judgment dated 29-11-1981 passed by the learned Additional District Judge & Election Tribunal, Tharparkar, at Mirpurkhas, in Election Petition No, 388/79 unseating the present petitioner and ordering fresh election.
' The relevant facts leading to the filing of the above petition are that inter alia petitioner and respondent No, 1 contested the Union Council Election from Constituency of Unit No, 3 Union Council, Kaplore, taluka Umerkot. It seems that at the initial counting the petitioner was found to have secured 375 votes, whereas respondent No, 1 was found to have obtained 374 votes. However, on re-counting and after including 3 votes which were discarded initially, it was found that the petitioner as well as respondent No, 1 secured 376 votes each. According to the averment of the petitioner, by oral consent of the parties, the Returning Officer resolved the above tie by tossing the coin instead of drawing of a lot as contemplated under rule 42 of the Sind Local Council Election Rules, 1979 (hereinafter referred to as the Rules), whereas according to respondent No, 1 there was no oral agreement as to the tossing of the coin instead of drawing of a lot and that in fact he protested and walked out from the office of the Returning Officer. Respondent No, 1 had filed the above election petition which has been allowed by the Election Tribunal in the aforesaid terms. The petitioner being aggrieved by the above order has filed the present petition.
2. In support of the above petition Mr. Abdul Kadir Halepota, learned counsel for the petitioner has made the following submissions:
(i) That tossing of a coin is covered by the term of drawing of a lot;
(ii) that in any case the parties have agreed to tossing of coin instead of drawing of a lot and, therefore, respondent No, 1 was not entitled to raise this plea before the Election Tribunal.
' On the other hand Mr. A. R. Kazi, learned counsel for respondent No, 1 has urged the following points :-
(i) That Rule 42 of the Rules does not contemplate tossing of a coin instead of drawing of a lot;
(ii) that there was in fact no oral agreement between the parties and that this was not the case pleaded by the petitioner before the learned Election Tribunal.
3. Reverting to the first contention of the learned counsel for the parties, it may be pertinent to refer to Rule 42 of the Rules, which reads as follows :- "R.
42. Equality of votes.-(1) Where, after consolidation of the results of the count under rule 41 it is found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Returning Officer shall forthwith draw a lot in respect of such candidates, and the candidate on whom the lot falls shall be deemed to have received the highest number of votes entitling him to be declared elected.
(2) The lot shall be drawn in the presence of such of the contesting candidates and their election agents as may be present.
(3) The Returning Officer shall keep a record of the proceedings in writing, and obtain thereon the signatures of such candidates and election agents as have been witnesses to the proceedings."
It may be noticed that the relevant words used in the above rule are "the Returning Officer shall forthwith draw a lot in respect of such candidates". The words 'shall forthwith draw a lot' clearly indicate that the tie between the two candidates in case of equal votes is to be resolved through drawing of slips/chits and not through tossing of a coin.
' Mr. Halepota in support of his above contention has referred to the Black's Law Dictionary, Revised 4th Edition, wherein the word 'lot' has been inter alia defined as follows :- "The arbitrament of chance; hazard. That which fortuitously determines what course shall be taken or what disposition be made of property or rights."
' On the other hand Mr. A. R. Kazi has referred to the definition of the words, lot, draw and toss given in Collin's English Dictionary, 1981 Edition which define the words inter alia, as follows :- "Lot.-Any object, such as a slip of paper, drawn from others at random to make a selection or choice."
"Draw.-To bring, take or pull (something) out, as from a drawer holster, etc." (3) To extract or pull out or take out, to draw a card from a pack."
"Toss.-To throw lightly or with a flourish specially with the palm of hand upwards. To fling or he flung about."
' He has also referred to the book known as{{URDU TEXT}} by Dr. Justice Tanzilur Rehman (now Mr. Justice) in which the words 'draw' and 'lot' have been defined as follows :- {{URDU TEXT}} ' In our view the definition of the word 'hit' relied upon by Mr. Halepota given in Black's Law Dictionary does snot negative the meaning of the above word given in the above other dictionaries inasmuch as the drawing of a lot through chit/slip also involves chance and hazard. The aforesaid words employed in the above-quoted rule 42 of the Rules do not admit tossing of a coin.
4. As regards the second contention of the learned counsel for the parties, it may be observed that Mr. A. R. Kazi has referred to the pleadings of the parties before the Election Tribunal, particularly para. 3 of the election petition and para. 4 of the written statement thereto. From the above paras, it seems that the petitioner had not pleaded expressly before the Election Tribunal that there was any oral agreement or that the parties had verbally given their consent to the resolving of the tie, by tossing of coin. Mr. Halepota has referred to the case of Munawar Khan v. Jafar Ali and 2 others, in which a D. B. Of the Lahore High Court while construing rule 40(7) of the Local Council Election1 Rules, 1979 enforced in Punjab, which is also couched in the same words as rule 42 in question, held that tossing of a coin with the consent of the parties would not violate the above rule. Since we have held that petitioner had not pleaded before the learned Election Tribunal that there was any consent of the parties as to the adopting of other mode than provided for in rule 42, in our view it is not necessary for us to advert to this aspect.
5. However, we are inclined to hold that the learned Election Tribunal has committed error by holding that the Returning Officer has become functus officio and therefore, fresh election is to be held. Since the election petition is in continuation of the election process, in our view the Returning Officer, i,e, the Civil Judge & F. C. M., Umarkot, who is still available in the Constituency in question could be asked to resolve the tie between the petitioner and respondent No, 1 by drawing of a lot in terms of above rule 42. We, accordingly, modify the order of the Election Tribunal to the extent that there will not be any fresh election to the Union Council in question. The matter is remanded to Mr. Qamar Ahmed Shaikh, Civil Judge & F. C. M., Umarkot (who acted as the Returning Officer), who shall after notice as per rule 42 of the Rules draw a lot.
' In the circumstances of the case there will be no order as to costs. 1982 CLC 1060