' ABDUL SHAKURUL SALAM, J.-The petitioner and respondent No, 1 had a close contest in an election to Unit No, 3 Bajjar of Union Council Raiba Kalan, Tehsil Shakargarh, District Sialkot on 28th September, 1983. Petitioner got 152 votes out of which 12 votes were declared invalid, leaving 140 valid votes. His rival respondent No, 1 secured 151 votes out of which 15 votes were declared invalid, he thus had 136 valid votes. The latter filed an election petition. Both the parties submitted before the Election Tribunal that they did not want to produce any evidence except that they wanted to get the polling bags opened in their presence and votes re-counted. It was so done. In the ballot- box of the petitioner 140 valid votes were found but 8 pertaining to the election of another body, that is to say, Zila Council. The bag of respondent No, 1 was opened from which 136 valid votes came out, out of which one vote related to Zila Council. Thus, from the bag of the petitioner out of 140 valid votes, 8 votes relating to Zila Council were excluded, leaving him with 132 votes. From the bag of the respondent out of 136 votes, one vote relating to Zila Council was excluded, leaving him with 135 votes. The learned Election Tribunal finding the respondent had a lead of 3 votes declared him elected. This was vide order dated 26th March, 1984. This is challenged by the petitioner through the Constitutional petition.
2. Learned counsel for the petitioner has contended that respondent No, 1 had not taken the point in the election petition about the exclusion of the Zila Council votes, nor had the petition got amended under rule 8 (4) of the Election Petition Rules, therefore these votes could not be excluded by the Election Tribunal. Secondly, votes could only be declared invalid under rule 34 (8) read with rule 40 (4) of the Election Rules, 1979 and none of the grounds thereunder existed.
3. The contentions have no force for the simple reason that the matter had been decided on the asking of the parties that the recounting should take place. In the recounting votes cast in respect of another Constituency i. e. Zila Council could not be counted towards the Constituency for which the petitioner had contested. As regards the first contention that A the point about Zila Council votes was not taken in the petition nor was that amended is immaterial in the circumstances because the petitioner had consented before the Election Tribunal for the recounting. A point may be taken before a Court or Tribunal by the mutual consent of the parties if they seek decision thereon. The votes of Zila Council have been exclude because those did not relate to the Constituency in question. There was no question of their invalidity.
4. For the reasons given above, the petitioner should abide by the result of his own asking which is in accordance with law. The petition is dismissed in limine.