' AMIR HANI MUSLIM, J.---The petitioner has impugned the order of the respondent No,4 whereby he has allowed the application of the respondent No,1 in Election Petition No,1 of 2005 for re-count of votes filed by him against the Petitioner and others.
' The facts as they appear from the pleadings of the parties are that the petitioner and respondents Nos. 1 and 2 contested the Sindh Local Bodies Election for the office of Taluka Nazim Bhiria. The results were announced on 6-10-2005 and the petitioner was declared as returned candidate. The petitioner according to the results had secured 63 votes as against the respondent No,1 who secured 62 votes. The record reveals that on 7-10-2005 the respondent No,1 had approached the respondent No,5 for re-count of the votes which application appears to have not been decided as a result of which the respondent No,1 filed C.P. No,457/05 before the principal seat of this Court and by order dated 25-10-2005 this Court had disposed of the said Constitution Petition inter alia, on the ground that since the Election Tribunal has been constituted therefore the respondent No,1 may avail his remedy by approaching the Tribunal.
' The respondent No,1 had filed Election Petition No,1 before the Respondent No,4 in terms of Rule 67 of Sindh Local Government Election Rules, 2005 against the petitioner and others. In the Petition No,1 of 2005, the respondent No,1 had challenged the qualification of the petitioner to hold the office of Taluka Nazim. The Respondent No,1 further alleged that in connivance the Presiding Officers of the Polling Stations has got rejected three valid votes of respondent No,
1. It was also alleged that petitioner in connivance of Election Authorities has committed corrupt practice in order to succeed in the elections. In the Election Petition it was prayed that the election, of the petitioner be declared void and respondent No,1 be declared as returned candidate. After service of the notices the petitioner filed written statement along with an application under Order VII, Rule 11,, C.P.C. For dismissal of election petition whereas the respondent No,1 has also filed in application for re-count of the votes during the pendency of the election petition. Both these applications were heard together by the learned respondent No,4 and by two separate orders passed on 18-1-2006 the Respondent No,4 has allowed the application of re-count of the respondent No,1 and has dismissed the application of the petitioner under Order VII, Rule 11, C.P.C. The petitioner being aggrieved against the order allowing the application of respondent No,1 for re-count has filed the present proceedings.
' It has been contended by the learned counsel for the petitioner that the impugned order is without reasons and is not a speaking order. It was further contended by him that the learned Tribunal has failed to incorporate the contentions of the petitioners counsel and has passed the impugned order mechanically without application of mind. His next contention was that the learned Tribunal should have disposed of the entire petition while allowing the application of the respondent No,
1. Mr.Abdul Fattah Malik in support of his contention has relied upon the case of Muhammad Naeem Kasi and another v. Abdul Latif and 7 others reported in 2005 SCM R 1699. He has relied upon the definition of natural justice given in the Words and Phrases by Mian Muhibullah Kakakhel Vol. II, Edition 1996.
' As against this the counsel for the respondent No,1 has submitted that the order impugned was lawful and both the counsel were heard at length and there is no bar in the Sindh Local Government Ordinance which could restrict the respondent No,4 from deciding the application for re-count of votes during the pendency of the election petition. Mr. Imdad Ali Awan has relied upon the case of Sheikh Iftikahr-ud-Din and another v. District Judge, reported in 2002 SCM R 1523, Messrs Airport Support Services v. The Airport Manager, Quaide-Azam International Airport, Karachi and others reported in 1998 SCM R 2268 and the case of Moula Bux v. Muhammad Rahim reported in 2003 CLC 310.
' We have heard the learned counsel and have perused the record. We find that the order impugned is a reasoned order which has taken note of the Judgments of the Hon'ble Supreme Court as well as the judgment of D.B. Of this Court on the issue of re-count therefore we do not accept the contention of the learned counsel for the petitioner that the order impugned was without reasons. As far as his next contention is concerned that the contentions raised by him before the learned Tribunal on behalf of the petitioner were not incorporated and therefore the order be declared bad in law. We have not been assisted by the learned counsel on this proposition of law. Admittedly the counsel were heard at length which fact is reflected from the tenor of the order. Mere non-incorporation of the arguments of one of the counsel cannot be made a ground to declare such an order as nullity unless such order ex facie is without reasons. The further contention of the learned counsel for the petitioner that the disposal of the application of re-count was erroneous as the learned Tribunal should have disposed of the entire petition while allowing the application of the respondent No,1 for re-count does not appeal to reason inasmuch as a re-count can be ordered on an application in a election petition. We have perused the election petition in which the allegation of corrupt practice and disqualification of the B petitioner has been made. Therefore mere disposal of application of recount of the respondent No,1 would not deprive the respondent No,1 from agitating the other grounds in the election petition in case if he fails to succeed in the election on the basis of re-count. In this respect we are fortified by the judgment of the Hon'ble Supreme Court in the case of Sheikh Iftikhar-ud-Din and another v. District Judge, in which their Lordship have held that the order of re-count is of interim nature and a constitution petition does not lie against such an order. It has further been held in the said case by the Hon'ble Supreme Court that order of re-count does not prejudice either party. Even Division Bench of this Court in the case of Moula Bux v. Muhammad Rahim reported in 2003 CLC 310 has held that the Election Tribunal can order re-count of votes without recording evidence which order is of interim nature and it could not be challenged by invoking the constitutional jurisdiction of this Court. Election laws do not debar the Tribunal from passing order of recount on an application of a party during pendency of an election petition. The cases relied upon by the learned counsel for the petitioner are inapplicable to the facts of the case in hand. Under these circumstances, for the aforesaid reasons we find that the order impugned in these proceedings was proper as the record reveals that on 7-10-2005 the re-count was requested by the Respondent No,1 which request was not acceded to and thereafter a constitution petition was also filed which was disposed of on account of constitution of the Election Tribunals. For the aforesaid reasons this petition merits dismissal along with all listed-applications.