' CH. GHULAM SAWAR, J.---This Intra-Court Appeal under section 3 of the Law Reforms Ordinance, 1972, is directed against the judgment, dated 22-3-1992 passed by the learned Single Judge of this Court dismissing the writ petition filed by the appellant herein challenging the election of respondent No,1.
2. Islamud Din, appellant herein and respondents Nos.1 to 3 contested elections for a Muslim seat in Ward No,14 of Municipal Committee, Chiniot, District Jhang in the Local Councils Elections held on 28-12-1991, wherein both the appellant and respondent No,1 secured 505 votes each. Consequently, lots were drawn as a result of which appellant was declared successful. Respondent No,1 filed election petition under section 24 of the Punjab Local Government Ordinance, 1979. The appellant contested the petition by filing the reply to the election petition. During the pendency of the election petition the parties jointly agreed for recounting of the votes on 26-2-1992 which was done in the presence of both the parties and their learned counsel. As a result of the recounting, it was found by the Election Tribunal that the appellant got 503 votes, whereas respondent No,1 secured 506 votes. The learned Presiding Officer of the Election Tribunal directed the appellant to sign the recounting proceedings, but he failed to do so by leaving the premises. However, respondent No,1 and his counsel signed the proceedings whereupon respondent No,1 was declared successful. The relevant portion of the judgment of the learned Election Tribunal reads as under:--- "(3) At the very outset, Muniruddin petitioner and his counsel insisted only for recounting of votes.
Resultantly, votes were recounted in presence of both the parties and their counsel and it was found on opening the bag of Polling Station No,25, Government Primary School, Ghafoor Abad, that Muniruddin, petitioner has secured 291 votes, whereas, Islamuddin respondent No,1 got 290 votes.
Thereafter, envelope of spotted votes was opened and one valid vote in favour of Muniruddin, petitioner was also found in it. Thus, Muniruddin, petitioner obtained 292 votes and Islamuddin, respondent No,1 has obtained 290 votes from that Polling Station. Thereafter, the bag of Polling Station No,26, Government Girls Primary School, Ghafoor Abad, was also opened and it was found that Muniruddin, petitioner secured 214 votes, whereas Islamuddin, respondent No,1 obtained 213 votes. Then envelope of invalid votes was opened in which all the 26 votes were found invalid.
(4) In this way, Muniruddin, petitioner achieved 506 votes in total, whereas his rival candidate, Islamuddin, respondent No,1, secured 503 votes. So, Muniruddin, petitioner got three votes in excess.
5) After recounting, Islamuddin, respondent No,1 and his counsel were asked to sign the recounting proceedings, but they left this Court without signing the same. However, Muniruddin, petitioner and his counsel signed the proceedings of recounting."
3. The appellant herein assailed the order of the Election Tribunal by means of Writ Petition No,1910/92, wherein the following submissions were made:-- "The learned counsel for the petitioner has vehemently argued, that the proceedings before the Election Tribunal were initiated illegally, and the draw of lots had concluded the matter, and furthermore, the Election Tribunal had no authority and jurisdiction to recount the votes. It was further argued that it was not the prayer of the respondent before the Election Tribunal for the recounting, and the Election Tribunal fell into grave error by resorting to the recounting. It was further contended that no issues were framed, therefore, the proceedings are illegal and without lawful authority."
' The learned Single Judge in a well-reasoned judgment after carefully analyzing and scrutinizing the record and adverting to all the attending circumstances held "Recount of the votes in such like cases was essential for the determination of the controversy, because both the petitioner and respondent secured equal number of votes".
4. Mr. Asif Saeed Khan Khosa, learned counsel for the petitioner, vehemently argued that the learned Judge in Chamber had failed to appreciate that recounting could not be ordered as a matter of course as held in Kanwar Ijaz Ali v. Irshad All and others PLD 1986 SC 483. The submission that in the absence of any prayer for recounting in the election petition, the Election Tribunal had no jurisdiction to grant relief to the applicant which was never prayed.
5. We are not persuaded by the arguments of Mr. Asif Saeed Khan Khosa. It is true that while giving a direction for recounting what is required, is the satisfaction of the Tribunal that the request is reasonable. For disposing of the request for recounting the formulation of an issue and recording of evidence is not necessary on the strength of Rule 8 of the Punjab Local Councils (Election Petitions)
Rules, 1979. Here both the parties agreed for recounting of votes and coupled with the averments made in the election petition and the fact that both the parties secured equal number of votes furnished sufficient basis for recount. The case of Kanwar Ijaz Ali (supra) is distinguishable. In the precedent case the defeated candidate alone made a request for recounting the ballot papers which was not found reasonable and accordingly rejected by the Returning Officer. His decision was upheld by the Election Tribunal as well as by the Supreme Court. Here the learned Election Tribunal was satisfied that the request was reasonable, in that, both the parties agreed to the recounting and, therefore, the appellant is precluded from his conduct to challenge the procedure adopted by the learned Election Tribunal.
6. When faced with this, Mr. Asif Saeed Khan Khosa, vehemently submitted that the appellant never consented for recounting and the order purported to be passed for recounting by the Election Tribunal was a forged document. We are afraid, this plea is concluded by a finding of fact which is not open to scrutiny in the exercise of writ jurisdiction. In any event, the appellant having admittedly participated in the process of recounting before the Election Tribunal, cannot be permitted to turn round and object to his jurisdiction when he found that the result of recounting is unfavourable to him. Furthermore, the appellant cannot be allowed to approbate and reprobate in the same breath, inasmuch as, when the appeal came up for preliminary hearing, the learned counsel for the appellant again expressed his willingness for recounting, provided the same is done in the presence of the parties.This view was re-expressed by the learned counsel for the appellant on 24-10-1992. We, however, find that the recounting having once been done in the presence of the parties and the appellant and his counsel having left the premises of the Tribunal without signing the proceedings, there is no justification for recounting at this stage on any legal or equitable basis.
7. Mr. Asif Saeed Khan Khosa next contended that some preliminary objections were raised in the writ petition which were not adverted to by the learned Election Tribunal which has resulted in grave prejudice to the appellant. The contention is devoid of any merit. As pointed out above, the appellant having agreed for recounting is deemed to have abandoned the preliminary objection.
8. Mr. Asif Saeed Khan Khosa next eontenued that even if it is assumed but not conceded that recounting of votes could have been undertaken, the order of the Election Tribunal as well as the learned Single Judge are liable to be quashed, in that, safe custody and production of record was never ensured by the Election Tribunal. Elaborating his submission, Mr. Asif submitted that there was no separate packet sealed for spoiled votes at male-staff. The plea raised by the appellant relates to a controversial question of fact which cannot C be adjudicated upon in appeal.
Furthermore, this plea was never urged and pleaded before the learned Single Judge as is apparent from a bare reading of the impugned order. In any event, the enquiry sought to be conducted by the appellant regarding the votes cannot be undertaken in these proceedings.
9. Additionally it is alleged that this appeal is not maintainable in its present form, inasmuch as, the appellant has impleaded respondents Nos. 6, 7 and 8 as respondents, although they were not impleaded as parties in the writ petition. However, we find no force in this plea, inasmuch as, these respondents were duly impleaded in the amended writ petition.
' In view of the above, the. Appeal fails and is hereby dismissed with no order as to costs.