' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Petition Nos.61-C, 56-C, and 58-C of 2006 jointly as all these petitions have been filed against the order dated 28-3-2006 passed by the Chairman PCBL whereby the following order was passed:--- "In view of the above finding on the issues I hereby dismiss the petition of the petitioner Abdul Rasheed Farooqi and Common Services Housing Society. I however, allow the petition of Riazul-Haq on the basis of his application dated 16-2-2006 subject to the condition that he will pay Rs,4,23,75,000 (four crore twenty-three lacs and seventy five thousand) plus 2% Liquidation Charges Rs,8,47,500 (Eight lacs forty seven thousand and five hundred). The total amount shall be paid within a period of 30 days from today failing which the application shall be deemed to have been dismissed. The NOC/Sale-deed shall be executed after payment of the required amount. A copy of the order be communicated to the Property Section for further process. File be consigned to the record." along with Petition No,641-C of 2000 about the same controversy.
2. Briefly the facts are that the Riaz-ul-Haq Sheikh petitioner (now deceased) was owner of land measuring 547 Kanals 7 Marlas situated at Ameen Pur District Lahore, who was alleged to have entered into transaction for the sale of the said land in favour of the SCCCL on 28-12-1985 through the general attorney, namely, Zulfiqar Hussain allegedly appointed on 12-12-1985 through S.M.K.
Lodhi, Advocate. On coming to know about the same on 26-4-1986 Riaz-ul-Haq Sheikh filed a suit for cancellation of general power of attorney and the sale-deed alleging to be forged and fabricated documents and stay order was issued. Simultaneously F.I.R. No,167 under sections 420/468/471, P.P.C. Was got registered on 30-4-1986 against Zulfiqar son of Faqir Muhammad and Zulfiqar Awan, Chairman of SCCCL. Then on 6-5-1986 Zulfiqar Awan Chairman, SCCCL filed a complaint against Zulfiqar son of Faqir Muhammad under section 420, P.P.C. And admitted that the power of attorney was forged. On 6-5-1986 Zulfiqar Ahmad Awan got his statement recorded before the learned Magistrate that the power of attorney dated 12-11-1985 was forged and he had been defrauded by Zulfiqar son of Faqir Muhammad. However, the said private complaint was dismissed as withdrawn vide order dated 1-11-1986. Afterwards Mr. S.M.K. Lodhi, Advocate, the alleged local commission of the power of attorney made a statement under section 164 Cr.P.C. On 18-11-1986. Admitting that the power of attorney was forged. Then on 25-7-1987 an application was moved by SCCCL for rejection of the plaint of the suit filed by Riaz-ul-Haq Sheikh on the ground that notice under section 70 of the Co-operative Societies Act was not given, which was dismissed vide order dated 22-4-1988 passed by the learned trial Court, but then revision petition was filed which having been accepted vide order dated 15-4-1989 the plaint was rejected. Riaz-ul-Haq Sheikh filed R.F.A. No,41 of 1989 before this Court and stay was granted. However, on 24-4-1989 Abdul Rashid Farooqi had purchased land measuring 390 Kanals and 16 Marlas out of the aforesaid land from SCCCL for a consideration of Rs,97,70,000 through registered Sale-deed No,780. On 6-6-1993 Riaz-ul-Haq Sheikh filed claim before the PCBL vide Diary No,8860, but no decision was taken. It was further claimed by Riaz-ulHaq Sheikh that an application for review of mutation was filed on 19-7-1987 and vide order dated 8-3-1990 the mutation in favour of SCCCL was reviewed and restored in the name of Riaz-ul-Haq Sheikh. Then appeal filed by SCCCL was dismissed vide order dated 16-2-1992 passed by the Commissioner and revision petition was also dismissed by the MBR on 4-10-1992 in consequence whereof Mutation No,701 was sanctioned in favour of Riaz-ul-Haq Sheikh. Vide order dated 20-4-1999 passed by the High Court, R.F.A. No,41 of 1989 filed by Riaz-ul-Haq Sheikh was disposed of having abated due to the provisions of section 16 of the Undesirable Co-operative Societies Act, 1993 and thereafter Riaz-ul-Haq Sheikh filed Petition No,641 of 2000, which is still pending before this Court. On the other hand Abdul Rashid Farooqi filed Petition No,1558-C of 2001 before this Court and vide order, dated 26-10-2002 the matter was referred to the PCBL for determination of its claim.
3. During the proceedings of Petition No,641-C of 2000 this Court, vide order dated 5-4-2005, directed for the decision of the pending application of Riaz-ul-Haq Sheikh before the PCBL along with the application of Abdul Rashid Farooqi and Common Services. Consequently, application moved by Riaz-ul-Haq Sheikh for declaring the alleged general power of attorney and the sale transaction in favour of SCCCL was entertained by the PCBL. The amended petition was submitted on 8-9-2005. Out of the divergent pleadings of the parties, the following issues were framed:---
(1) Whether petition of Riaz-ul-Haq is maintainable in view of proceedings pending in the honourable High Court?
(2) Whether the petitioner Riaz-ul-Haq lodged his claim as required under section 14 of the Act I of 1993?
(3) Whether the petition of the petitioner is within time?
(4) Whether the Board has jurisdiction to take up the matter relating to the sale in favour of Abdul Rashid Farooqi?
(5) Whether the petitioner Riaz-ul-Haq did not execute the power of attorney dated 12-2-1985, if so what is its effect on the sale-deed in favour of SCCCL?
(6) What is the effect of proceedings in Civil Suit titled "Shakeela Begum and Riaz-ul-Haq" on the sale transaction in favour of the SCCCL?
(7) Whether sale in favour of Mr. Abdul Rashid Farooqi was with consideration?
(8) What is the effect of exchange of land between Abdul Rashid Farooqi and Common Services Housing Society?
4. The parties concerned led their evidence in support of their respective claims. Riaz-ul-Haq Sheikh appeared as R.W.1 and tendered certain documents in support of his claim while Abdul Rashid Farooqi appeared as A.W.3 and produced Dr. Nazir Ahmed (A.W.1) and Sarwar Rashid (A.W.2) whereas PCBL got examined Karam Din, Executive Incharge of the defunct SCCCL, Punjab as R.W.1. On conclusion of the trial, after hearing the parties concerned, the impugned order has been passed by the Chairman, PCBL on 28-3-2006, which has been impugned by filing the aforesaid matters before this Court. During the pendency of these matters, Riaz-ul-Haq Sheikh died and his legal heirs, namely, Mst. Rifat Riaz and 4 others have been substituted as petitioners in Petition No .61-C of 2006.
5. The learned counsel for the legal heirs of Riaz-ul-Haq Sheikh in both the petitioner contended that the power of attorney and sale-deeds on the basis of power of attorney were forged and fictitious documents and once execution thereof was denied by Riaz-ul-Haq Sheikh, the onus shifted to the beneficiary to prove the general power of attorney and then the sale-deed; that ncither Liquidation Board nor Abdul Rasheed Farooqi, the alleged beneficiary produced any evidence to show the genuineness of the power of attorney or the sale-deed; that not a single witness was ever produced to show the payment of consideration or in proof of the execution.
Relies upon PLD 2003 SC 31, 2004 MLD 875, PLD 2003 SC 676 and PLD 2005 SC 490. It is further contended that the Liquidation Board and Abdul Rasheed Farooqi even did not produce the original power of attorney or any of the sale-deeds and in absence of the original document, the certified copies are not admissible in evidence and relied upon PLD 2005 SC 418; that Riaz-ul-Haq Sheikh proved on record that both the general power of attorney and the sale-deed were the fictitious documents which is clear from the criminal complaint Mark 'C' at page 69 of the file, statement of Zulfiqar as Chairman of Services Cooperative Credit Corporation Exh.R.5 at page 75 of PN 61-C, the statement of the Local Commission at pages 75 to 78 Mark "E", the Forensic Science Laboratory report about the forgery of signature Mark "F" at page 94; that the power of attorney was shown to have been executed on 12-11-1985 and the execution of the sale-deed on the same date would clearly show the forgery as in the eventuality there was no reason to firstly execute the general power of attorney, but the sale-deed could be directly got entered by the owner; that Riaz- ul-Haq deceased himself was an Advocate and used to be present in the District Courts near the office of Sub-Registrar and there was no need to appoint General Attorney by him and this ground alone is sufficient to disclose the fraud; that the alleged sale-deed of Abdul Rasheed Farooqi was got executed on 23-4-1989 during the intervening period when the plaint was rejected on 15-4- 1989 and R.F.A. No,41 of 1989 was filed on 26-41989. Relies upon PLD 2006 Lah. 223 to contend that no importance can be attached to the said transaction. It is next contended that neither Abdul Rasheed Farooqi nor Service Cooperative Credit Corporation can claim to be bona fide purchaser as the power of attorney was fictitious and moreover even the Services Cooperative Credit Corporation was not recorded as owner in Revenue Record in spite of that the sale-deed was got executed; that sale-deed was without consideration as it is not believable that for Rs,25 lacs the cheques was given which was dishonoured and the huge amount of Rs,72 lacs had been paid in cash without any receipt or through cheques or bank draft and the sale-deed being without consideration has been rightly cancelled by the liquidation board, which finds support from the case-law reported in 2007 SCMR 729; that if the sale-deed at page 110 in favour "PASBAN" and sale- deed at page 116 of the file are perused, the forgery of the alleged sale-deed in favour of Abdul Rasheed Farooqi would come to light.
6. Learned counsel for the petitioner in Petition No,56-C filed by Abdul Rasheed Farooqi contends that sale-deed had been executed in favour of Abdul Rasheed Farooqi for the land measuring 398 Kanals, 16 Marlas for a total consideration of Rs,90,70,000; that the Liquidation Board has only held that an amount of Rs,25 lac was still outstanding against the petitioner which was mentioned in the sale-deed and was paid after the mutation; that the sale-deed has been cancelled only on the ground that Abdul Rasheed Farooqi had not made payment of the remaining amount; that he had purchased the property before the scam of the Cooperative Societies came on the surface on 27- 2-1992 and nofinding can be given by the Liquidation Board about the sale-deed, which was finalized much earlier when no suit was pending and there was no stay order in favour of anybody; that the Liquidation Board or the Cooperative Judge has no jurisdiction to decide the matter in hand as it was a dispute between the private parties. The learned counsel for the Services Cooperative Credit Corporation in Petition No,58-C of 2006 has adopted the argument of learned counsel for Abdul Rasheed Farooqi and stated that he would be stepping into the shoes of Abdul Rasheed Farooqi.
7. The learned counsel for the Liquidation Board stated that the sale-deed being a registered document the presumption of truth is attached to it and it was for Riaz-ul-Haq Sheikh to prove that the sale-deed was a forged document. So far as the jurisdiction of the Liquidation Board and this Court as a Cooperative Judge is concerned, the learned counsel for the Liquidation Board has refuted the argument of the learned counsel of Abdul Rasheed Farooqi on the ground that Abdul Rasheed Farooqi himself had invoked the jurisdiction of the liquidation Board as well as this Court and as such it is not proper for Abdul Rasheed Farooqi to argue that the Liquidation Board and the Cooperative Judge have no jurisdiction.
8. I have heard the arguments of the learned counsel of the parties and also perused the record.
9. First of all I take up the question about the jurisdiction of the PCBL and this Court as a Co- operative Judge into the matter in hand. Abdul Rasheed Farooqi claimed to have purchased the property from Service Co-operative Credit Corporation Ltd., which was declared undesirable society. Therefore, all its assets and liabilities were to be determined under section 7 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and according to section 7(c) thereof that Liquidation Board is competent to determine the assets and liabilities of the undesirable society. Similarly under clause (e) of section 7 the Liquidation Board can cancel all agreements entered into by undesirable cooperative society or its previous management or Director Officer which in the opinion of the Cooperative Board were against the interest of such society. As such the Liquidation Board was competent to decide as to whether the alleged sale-deed in favour of Abdul Rasheed Farooqi was a genuine document and it was executed and registered in the interest of such society. Moreover, Riaz-ul-Haq Sheikh claimed that the power of attorney dated 12-11-1985 was a forged document, and the sale in favour of the Services Co-operative Credit Corporation was a fictitious document, and who had filed the claim on 6-6-1993 and also after abatement of R.F.A. No,41 of 1989 filed Petition No,641-C of 2000 under section 16 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993. The aforesaid matters can only be' determined by the Liquidation Board and the Cooperative Judge. Moreover, if the general power of attorney is declared to be forged, then obviously the sale-deed will have to be cancelled with would also affect the claim of Abdul Rasheed Farooqi. Moreover, he had himself invoked the jurisdiction of the Liquidation Board and after its decision on 23-3-2001 filed a petition under section 11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 before this Court as a Cooperative Judge whereupon the case was remanded. Thereafter he again submitted to the jurisdiction of the liquidation Board and after the decision of the Board Abdul Rasheed Farooqi or Common Services cannot object to the jurisdiction of the Liquidation Board. In arriving at this view I am fortified by the case-law reported in 2001 SCMR 1959, 2004 CLC 960, 2006 SCMR 1630=2006 PLC (C.S.) 1173.
10. The transfer through sale-deed in favour of Services Cooperative Credit Corporation Ltd. Vide Datawize No,29573, Jild No,2156 on 28-11-1985 was on the basis of a general power of attorney allegedly got executed by Riaz-ul-Haq Sheikh in favour of Zulfiqar Hussain son of Faqir Muhammad.
Riaz-ul-Haq Sheikh from the very first day had been vehemently denying the execution of the power of attorney, who also appeared before the Liquidation Board and denied to have ever executed the said general power of attorney in favour of Zulfiqar Hussain son of Faqir Muhammad.
After refusal of the execution of power of attorney the onus of proving of the genuineness of the document i,e, power of attorney and the sale-deed had shifted to the beneficiary to prove that the power of attorney and the sale-deed had been validly executed documents, but they did not produce any evidence. Even the original power of attorney or the sale-deed of any of the beneficiary were not produced. In the absence of the original documents the certified copies of the aforesaid documents would not be admissible without proving the non-availability of the original documents. The honourable Supreme Court in a case titled Imam Din v. Bashir Ahmad PLD 2005 SC 418 at page 426 observed as under:- "This is settled law in absence of the original documents, its certified copy if not admissible evidence and notwithstanding the presumption of correctness being attached with the certified copy of a document pertaining to official record if the validity or the existence of the document is disputed and the original is not produced its certified copy would not be admissible in evidence without proving the non-availability of the original".
11. The beneficiaries were bound to prove the execution and attestation of the power of attorney by the production of the two marginal witnesses and in the absence of their production the power of attorney cannot be held to have been executed and the transaction of sale would be invalid as it is settled law that if the foundation is bad, all the J structure laid thereon would automatically fall on the ground. The production of two marginal witnesses of the power of attorney is mandatory in spite of the power of attorney being a registered document and onus to prove the power of attorney was on the beneficiary. The honourable Supreme Court while interpreting the aforesaid proposition of law in Masood and others v. Salman Ali PLD 2003 SC 31 at page 37 held as under:--- "As far as tampering with the power of attorney Exh.D.2 is concerned it is apparent on record particularly with reference of the signature of D.W. Muhammad Sadiq. The examination of the document with naked eye reveals that this witness had put his signatures subsequently with the different ink. Essentially the onus to prove that the document was a valid one was upon the appellant Masood Ahmad because it was his assertion that on the basis of power of attorney property owned by respondent measuring 71 Kanals, 18 Marlas have been legally transferred by him on the name of his brother Muhammad Ayoub but he failed to discharge his burden as per Article 17 of the Order."
' It was further held in para 12 of the same judgment as under:- "As we held hereinabove that in the instant case the registered power of attorney was executed to deal with financial and future application of the respondent, therefore the attestation of the instrument by two witnesses under Article 17(2)(a) of the Order was mandatory"
' In 2004 MLD 875 this Court followed the same view as well.
12. The beneficiaries badly failed to prove the execution of the power of attorney by producing the two marginal witnesses, but they even did not produce the alleged general attorney to state at the trial that the power of attorney had been validly executed. As such the beneficiaries failed to discharge the onus and power of attorney in spite of being registered could not be proved on record and the sale-deed on the basis thereof about the aforesaid property in the absence of the proof shall be a void document. In PLD 2006 SC 676 the august Supreme Court while dealing with the proof of the registered power of attorney observed at page 685 as under:--- "S.60--- Certificate of registration is only to show the execution of the document and presumption beyond that could not be drawn therefrom."
"S.60--- Certificate of registration---Presumption---Only presumption, which could be drawn from the certificate of endorsement was that registration proceedings were regular and honestly carried out---If however, in the given circumstances of a case, genuineness or bona fides with regard to the execution of a document were in doubt then the inquiry could be held in this behalf and no presumption to the effect that such and such document had actually been executed by a genuine person in all circumstances, could be drawn."
' Similarly at page 686 in para 14 the honourable Supreme Court observed that:--- "Adverting to the facts of the case in hand, it would appear that the respondent, who allegedly authorized Munir Ahmad P.W.1 to act as attorney on her behalf and to compromise the suit was neither summoned for evidence nor called upon to produce the original power of attorney. She was statedly identified to the Sub-Registrar by Hafiz Shabbir Muhammad, Sarbrah Lumberdar of Chak No,107 Shaumali, who was known to the Registrar but no attempt was made to examine this person.
The Sub-Registrar namely G.M. Innayat was also not produced at the trial to prove execution of the document whereas the scribe of the document i,e, Mehr Din, though summoned, was not produced in the witness box. As noticed earlier, marginal witness Innayat Ullah P.W.3, though examined at the trial of the suit, denied his signature on any power of attorney or the execution of such document in his presence. It would, thus, be legitimate to infer that the appellant was fully conscious of the fact that he was legally obliged to prove the execution of power of attorney in favour of Munir Ahmad, irrespective of its registration but he miserably failed to establish this fact. In the absence of execution of a power of attorney by the respondent, signatures on compromise application culminating in a consent decree would appear to be a farce. Learned Judge in the High Court, was, thus, perfectly justified in drawing an interference that the respondent was illegally deprived of a valuable right to property by wrongful means, which could not be permitted at law. Indeed, the conclusion arrived at that the judgments of the two Courts below suffered from gross misreading and misconstruction of documentary and oral evidence is perfectly right and justified by the material on record, which does not warrant any interference by this Court."
' Similar views have been expressed by the honourable Supreme Court in 2005 SCMR 490 and 2007 SCMR 760.
13. In view of the aforesaid law laid down by the august Supreme Court Liquidation Board claiming to be the beneficiary failed to prove the execution of the power of attorney or the genuineness of the sale-deeds and so is the case of Abdul Rasheed Farooqi.
14. In spite of the beneficiaries having failed to establish the execution of the power of attorney Riaz-ul-Haq Sheikh proved the same to be a forged and ingenuine document. He produced complaint (at page 68) of the file of P.N.61-C of 2006 filed by Zulfiqar Awan, Chairman Services Co- operative Credit Corporation and his statement Exh.R.5 made in the Court admitting the power of attorney to be a forged document. He also produced statement of Local Commission under section 164, Cr.P.C. Specifically asserting that his report and signature were forged and he had never acted as Local Commission. Similarly the report of Forensic Science Laboratory also supported the version of Riaz-ul-Haq Sheikh that his signatures on the power of attorney were forged. Apart from the circumstance that the power of attorney had been executed and registered on 12-11-1985, the execution of sale-deed on the same date though registered thereafter would clearly show that if the sale-deed was to be executed on the same day then there was no reason to execute the power of attorney. This stance itself shows that the power of attorney was forged rather Riaz-ul-Haq Sheikh had been defrauded. In the presence of the aforesaid fact the power of attorney is proved to be forged document and the sale-deed on the basis of aforesaid power of attorney also held to be in genuine document and the property vested in Riaz-ul-Haq Sheikh, which had never been transferred to the Services Co-operative Credit Corporation Ltd. And sale-deed is hereby declared to be void and cancelled.
15. Once the sale-deed allegedly executed in favour of the Services Cooperative Credit Corporation is held to be cancelled and no right transferred to the Services Co-operative Credit Corporation as such the further transaction allegedly executed in favour of Abdul Rasheed Farooqi will also be in genuine and hereby cancelled. Moreover the alleged sale-deed dated 23-4-1989 having been allegedly executed during the period of filing of R.F.A. No,41 of 1989 is hit by the principle of lis pendence as held in PLD 2006 Lah. 223 and Abdul Rasheed Farooqi having allegedly purchased the land during the pendency of the litigation had no independent right and shall be bound by the declaration regarding sale-deed in favour of Services Co-operative Credit Corporation. The aforesaid principle is supported by law laid down in PLD 2003 SC 303, 2004 SCMR 581, 1997 SCMR 315, 2007 CLC 177 and 2005 CLC 897. Even otherwise if sale-deed at page 110 of the file of PN 61-C of 2006 and alleged sale-deed in favour of Abdul Rasheed Farooqi at p.117 are perused and compared together the alleged sale-deed in favour of Abdul Rasheed Farooqi on the face of it is a forge document. It is also unbelievable that for sum of Rs,25 lac a cheques had been given, which was bounced while Rs,72 lac would be paid in cash and the remaining amount had never been accounted for in the record of the Service Cooperative Credit Corporation Ltd. Therefore, the sale- deed being without consideration on this score also the sale-deed allegedly executed in favour of Abdul Rasheed Farooqi is void being without consideration as laid down in 2007 SCMR 729. The finding on this issue of the Chairman, PCBL is maintained.
16. There is another aspect of the case that while deciding issue No,5 the Liquidation Board observed that in view the statement Riaz-ul-Haque the property is being transferred subject to the payment of Rs,84,75,000 plus 20% mark-up right from the date of execution of sale-deed up to date and further 2% liquidation charges as it is established that the power of attorney is a forged document and sale-deed in favour of the Services Cooperative Credit Corporation on the basis of the aforesaid power of attorney is also a void document and property always vested in Riaz-ul- Haq Sheikh and was never transferred to Services Co-operative Credit Corporation Ltd. As such the finding on issue No,5 is reserved to the extent of the imposition of the aforesaid amount and the alleged application mentioned at page 16 of the impugned judgment which had been perused also shows that the same was made by counsel and stated that a naked fraud has been committed. As such the imposition of the cost of the land is wholly unlawful.
17. In view of the aforesaid facts the Petitions Nos.641-C of 2000 and 61-C of 2006 are accepted. The sale-deed dated 28-12-1985 in favour of the Services Co-operative Credit Corporation along with all subsequent transfer deeds are declared to be void, set aside and cancelled and the Petition No,56-C of 2006 and Petition No,58-C of 2006 are hereby dismissed.