CH. IJAZ AHMAD, J. -- Brief facts out of which the present writ petition arises are that the vehicle in question was taken into custody by the police from the petitioner on 7.3.1990. Petitioner submitted an application before the Illaqa Magistrate for obtaining possession of the vehicle in question on superdari. The IIlaqa Magistrate accepted application of the petitioner vide order dated 8.3.1990 after obtaining report from the police. The police did not hand over the vehicle in question to the petitioner and intimated to the learned Illaga Magistrate that respondent No. 5 also claimed the ownership of the vehicle in question. The learned IIlaqa Magistrate has recalled his order on 8.3.1990. Respondent No, 5 also filed application before the learned IIlaqa Magistrate on 13.3.1990.
The learned Assistant Commissioner/SDM Kallurkot dismissed the application of both the parties i.e. Petitioner and respondent No. 5 and parties were directed to take up the matter-before the Civil Court and for the time being vehicle No. 7009/QAD was ordered to remain in the custody of Police Station, Kallurkot till the decision of the Civil Court. Respondent No. 5 being aggrieved filed revision petition before the Additional Sessions Judge, Bhakkar without impleading the petitioner as respondent. The Additional Sessions Judge accepted the revision petition of respondent No. 5 and the order of the learned Trial Court was set aside. Learned Trial Court was directed to hand over the vehicle in question to respondent No. 5 on interim custody on his furnishing the security bond in the sum of Rs. 1,00,000/- to the satisfaction of the Trial Court vide order, dated 17.4.1990. Petitioner being aggrieved filed this writ petition.
2. Operation of the impugned order was suspended and police was directed to take the pick up in its possession vide order dated 25.9.1999. Notice was also sent to respondent to appear before this Court on 15.10.1990. Respondent No. 5 did not enter appearance on 15.10.1990 and bailable warrant in the sum of Rs. 50,000/- with two sureties each in the like amount returnable to the District Magistrate, Bhakkar be issued against respondent No.. 5 for his appearancE in this Court on 10.11.1990. The order dated 30.7.1991 reveals that warrants have not been executed till 30.7.1991.
Therefore, non-bailable warrants were issued against respondent No. 5. For 17.9.1991 vide order dated 30.7.1991. Respondent No. 5 did not enter appearance ;inspite of bailable warrants issued against him. On 17.9.1991, fresh non-bailable warrants were also issued against respondent No. 5 for 28.10.1991 vide order dated 17.9.1991. The Addl. Advocate General was also directed, to contact some senior police officials to locate the whereabouts of respondent No. 5 and produce him in Court.
Notice was also sent to the surety Sher Bahadur Khan son of Fateh Sher Khan for the said date.
Muhammad Riaz, ASI. Requested more time to find out the whereabouts of respondent No. 5 as is evident from order dated 28.10.1991. Copy of the warrants had been given to Muhammad Farooq, ASI who was directed that these warrants were executed before the next date of hearing and the case was adjourned for 30.11.1991. The previous orders were not implemented on 15.1.1992. Non- bailable warrants were again issued to do the needful and notice was also issued to Sher Bahadur Khan surety for his appearance on 19.2.1992. The order dated 19.2.1992 reveals that Muhammad Farooq, ASI entered appearance and stated that non-bailable warrants against Muhammad lqbal could not be executed as he was not available at the address given. He further pointed out that.
Sher Bahadur, the surety of the case had already been arrested in a case registered vide F.I.R. No.'
90 u/Ss. 406/420, PPC. The Police Station, Kaliurkot was directed to appear in this case on 4.3.1992 on which date he should also secure .The presence of Haq Nawaz who was SHO of the Police Station at the time of passing of the impugned order. Notice was also sent to Mr. Javaid Anwar, Assistant District Attorney, Bhakkar to appear on the aforesaid date. The order dated 15.4.1992 reveals that Habib Ullah, ASI was directed to convey the order to the ADA as well as SHO for compliance. The order dated 15.5.1995 also reveals that presence of respondent No. 5 could not be , secured. Ahmed Nawaz, -ASI was directed to procure the presence of Sher Bahadur, the surety for his appearance on 4.6.1995. Order dated 4.6.1995 reveals that Ahmed Nawaz, ASI had placed on record the Death Certificate of Sher Bahadur Khan who stood surety for Muhammad iqbal respondent No. 5 for supardari of the disputed vehicle. Office was directed to issue fresh non- bailable warrants for his appearance for a date to be fixed in the second Week of July, 1995. The aforesaid orders, reveals that the respondent No. 5 did not enter appearance inspite of the coercive measures adopted by this Court. Learned counsel for the petitioner submits that respondent No. 5 did not enter appearance with the connivance of the police. He further submits that police did not execute the warrants of arrest as directed by this .Court on account of the influence of respondent No. 5. He further submits that the impugned order is not sustainable in the eyes of law as the same was passed without impleading the petitioner as respondent. He further submits that the impugned order was passed on the concessional statement of ADA who had no .
Authority to give concession 'on behalf of the petitioner.
3. The aforesaid orders reveals that the respondent No. 5 avoided to appear before this. Court. In this view of the matter I have no other alternative except to decide the case ex-parte against respondent No. 5.
4. I have given my anxious consideration to the Contentions of the learned counsel for the petitioner and perused the record myself. The impugned order is not sustainable in the eyes of law as the same was passed without providing personal hearing to the petitioner specially when the petitioner was also party, before Trial. Court. Therefore, same is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in the following judgments:- PLD 1965 S.C. 90 (Zakir Ahmad's case)
PLD 1987 S.C. 304 (Pakistan 84. Another Vs. Public at Large).
Disposed of with these observations.