1. Petitioner Rana Sanaullah Khan through this election petition has taken exception to the bye- election of the Provincial Constituency No.PP-59 Faisalabad XVII held on 2-12-1993 wherein respondent No. l Muhammad Ismail was declared successful by a margin of 369 votes. According to Form XVII (result of the count) issued on 5-12-1993 Annex 'K' the returned candidate Mr. Muhammad Ismail respondent secured 25726 votes while the petitioner Rana Sanaullah Khan secured 25357 votes. It was among other argued that the count in the entire constituency was not conducted by Returning Officer in its proper perspective. The sanctity of fair and transparent election as propounded by the Interim Government was not adhered to in letter and spirit. It was argued on behalf of the petitioner that the respondent returned candidate has secured the seat with the help of the Provincial Government as he supervised the utility works particularly supply of Sui gas in the constituency.
2. Learned counsel after making forementioned submissions stated that keeping in view the short margin and the fact that earlier Returning Officer also undertook the exercise of recount but left it midway, as such in these circumstances, he categorically stated that if the recount of entire valid votes is undertaken he would not press this election petition.
3. This offer of the learned counsel was accepted in categorical terms by the learned counsel for the respondent in the presence of his client. It is pertinent to mention here that in Annex. 'K' Form XVII, the total number of valid votes polled were 51277 while the number of rejected votes were 380. It was now agreed between the parties that these rejected votes would not be taken into consideration. In this background, keeping in view the joint categorical request of the parties as well as their It learned counsel the Provincial Election Commissioner was directed to undertake the recount execrise/process either under his own supervision or appoint some senior official for the same.
4. Subsequent to the forementioned direction, the Provincial Election Commissioner, Punjab embarked upon the recounting process. Mr. Ahmad Nawaz Ranjha learned Civil Judge First Class/Returning Officer was deputed to make necessary arrangements for the production of the record from the treasury and its resealing after the recount process. The parties as well as their learned counsel were issued notices for the recount.
5. Accordingly the process of recount started on 31-8-1994 and continued till 5th of September, 1994 in the presence of the counsel as well as their parties. It is pertinent to mention here that before the start of recount the parties as well as their learned counsel agreed on a formula that the ballot papers without official stamps or having official stamp at its back would be rejected. It was also agreed that if stamp impression is carried on the ballot paper at its back the same shall also be rejected.
6. The process of counting started as mentioned above in the presence of the parties and 940 ballot papers were rejected in view of the agreed formula out of the whole count 51281. 329 votes were found disputed. The Provincial Election Commissioner submitted a detailed report mentioning all the aspects of the count.
7. Learned counsel for the petitioner has taken objection to this report. He has denied the execution of any verbal agreement on the part of the petitioner as mentioned in the report. He has further stated that in the recount process 329 votes have been found disputed and certain votes were rejected which exercise according to the learned counsel has not been undertaken in accordance with the order.
8. I have considered the contentions. It is not denied that the recount was ordered on the categorical assurance of the petitioner that he would abide by the outcome of the same. In the count conducted earlier at the time of bye-election, the difference between the petitioner and the respondent was of 369 votes as reflected from Form XVII (Annex. K) issued by the Returning Officer.
9. Now according to the present count, the respondent has secure 25075 votes while the petitioner has secured 24742 votes. Even in this count respondent Muhammad Ismail is leading by 333 votes.
10. It is reflected from the report that out of the total 329 disputed votes 213 are of respondent Muhammad Ismail while 116 votes are of petitioner which shows that even if all the 329 votes are counted towards the petitioner even then there would not be any material change in the outcome of the election. The argument of the learned counsel that the petitioner never entered into an oral agreement on the basis of which certain votes were rejected is devoid of any force. It is reflected from the report and is not denied by the learned counsel appearing for the petitioner that after the count of five polling stations, petitioner Sana Ullah Khan tried to wriggle out of the agreed formula.
11. However, this was strenuously objected too by the respondent who insisted to abide by the earlier decision agreed at between the parties and` the count accordingly proceeded. It is interesting to point out that respondent Muhammad Ismail himself repeated the same request and he too tried to wriggle out of the agreed formula at the count of Polling Station No.7. This time it was the petitioner who opposed the request and stated in categorical terms that the respondent would be estopped by his own conduct. He insisted that the recount was to be carried on in accordance with the agreed formula. The petitioner who is a literate person signed as a token of correctness certain documents from which it is reflected that a formula was entered into between the parties before the start of count. Learned counsel for the petitioner has not denied the signatures of the petitioner on these documents. Had there been any objection certainly the petitioner would not have put down his signature on these documents. It has been held in S. Ijaz Hussain Shah v. M. Aslam Bhatti (1990 ALD 598) that the main genesis for allowing recounting was to do complete and effectual justice between the parties and the petitioner having accepted the recount cannot turn back and raise objection to the recount of votes. It does not lie in the mouth of the petitioner at this stage to raise objection to the recount because he himself was main instrumental for this exercise and satisfactorily participated in the same which continued for six days. The petitioner is estopped by his own conduct to change the result of the recount exercise which was ordered mainly at his insistence. No ground has been made out by the petitioner to interfere in this report submitted by the Provincial Election Commissioner Punjab, Resultantly for what has been stated above, in view of the second recount no useful purpose would be served now by proceeding further in this issue and dismiss this election petition.