' IJAZ AHMAD CHAUDHRY, CJ.---By virtue of this Cooperative Petition under section 11 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, the petitioner has called in question the vires of order dated 2-2-3010 passed by the learned Judicial Officer Punjab Cooperative Board for Liquidation whereby the claim filed by the petitioners for payment of Rs,20,50,000 was rejected.
2. Shorn of unnecessary details, the facts, forming background of the instant petition, are that Muhammad Hanif, predecessor in interest of the petitioners deposited an amount of Rs,26,65,000 with the National Industrial Cooperative Finance Corporation (NICFC) Limited, Chungi Amer Sidhu, Lahore on 29-10-1991. In lieu of said deposit Voucher No,058079 was issued in the name of predecessor in interest of the petitioners. On the basis thereof SMR No,225523 amounting to Rs,20,50,000 was issued in the name of the predecessor in interest of the petitioners whereas another SMR, amounting to Rs,6,30,000 was issued in the name of Muhammad Siddique, brother of the predecessor in interest of the petitioners. On 20-11-1991, predecesor in interest of the petitioners and his brother Muhammad Siddique filed a claim before Secretary Inquiry Commission for NICFC affairs High Court Building Lahore. The SMR in the name of Muhammad Siddique, brother of the predecessor in interest of the petitioners, was honoured whereas payment to the predecessor in interest of the petitioners was refused. Resultantly, predecessor in interest, of the petitioners filed Petition No,98-C of 1994 before the Hon'ble Cooperative Judge, Islamabad wherein he disowned SMR No,026429 dated 29-10-1991, amounting to Rs,20,00,000 and claimed that the number of his SMR was 225523 and the ,same was in the amount of Rs,20,50,000. However, the predecessor in interest of the petitioners could not pursue the said petition which was ultimately dismissed due to non-prosecution, on 6-6-1998. Thereafter, the predecessor in interest of the petitioners was assassinated on 14-9-1998. Petitioner No,1 after getting requisite succession certificate from the court of competent jurisdiction filed claim under File No,635 for recovery of amount of SMR in the name of her deceased husband. As the PCBL authorities did not take any action on the move of petitioner No,1, she approached the Chief Minister Secretariat for redressal of her grievance. The ' Deputy Secretary (Claims) PCBL, while addressing to Deputy Secretary (Assembly), Government of the Punjab, Lahore, disclosed that the SMR was fictitious one and the record regarding the said SMR was also tempered with. Thereafter, petitioner No,1 filed Cooperative Petition No,24 of 2011 before this Court which came up for final hearing on 23-5-2011 when the same was disposed of with a direction to the parties to approach the Judicial Officer PCBL for redressal of their grievance.
3. Pursuant to the direction issued by this court, while disposing of. Cooperative Petition No,24 of 2011, the petitioners filed their claim before the Judicial Officer PCBL for payment of Rs,20,50,000, in lieu of SMR No,225523 dated 29-10-1991. After going through the petition filed by the petitioner as well as the reply filed by the PCBL the learned Judicial Officer framed following Issues:-- "(i) Who tampered with the record of Day Book and shows issuing of transfer advice bearing No, 58079 for Rs,26,65,000? OP Parties.
(ii) Whether PCBL prepared a fake SMR No,026429 dated 29-10-1991 amounting to Rs,20 Lacs in order to cause loss to the predecessor in interest husband of the applicants? OPA.
(iii) Whether the applicants-claimants are entitled to the payment of a sum of Rs,20,50,000 on the basis of SMR No,225523 dated 29-10-1991? OPA.
(iv) Relief"
4. To discharge his liability to prove the onus placed on them the petitioners examined Bashiran Bibi as P.W.1, Muhammad Afzal Khan Khokhar, P.W.2 and Malik Majid Rasheed Khokhar as P.W.3. In addition to their oral evidence the petitioners also tendered in evidence documents (Exh.P2 to Exh.P6 and Mark-7 to Mark-16).
5. On the other hand, learned Law Officer PCBL opposed the petition on the grounds that the SMR issued in favour of predecessor in interest of the petitioners was adjusted against a loan sanctioned in favour of Land Mark Construction Company; that entries qua the said SMR in the counter record of NICFC were not available and that the record pertaining to the SMR was found to have been tempered with. Learned Law Officer PCBL also relied upon the documents (Exh.PCBL/1 to Exh.PCBL/13).
6. After going through the evidence of the parties and the documents tendered in evidence the learned Judicial Officer, PCBL proceeded to dismiss the claim filed by the petitioners vide order dated 9-8-2011, hence this petition.
7. Learned counsel for the petitioners contends that the order passed by the learned Judicial Officer is against facts on record; that while passing the impugned order the learned Judicial Officer PCBL failed to appreciate that there was no occasion for the predecessor in interest of the petitioners to change his original SMR with the subsequent one and that too on the same day; that the amount of SMR initially issued in the name of predecessor in interest of the petitioners was never got debited; that the petitioners are wandering here and there for the last one decade to recover the amount deposited by their predecessor in interest way back in the year 1991; that the learned Judicial Officer PCBL accepted documents in evidence in violation of the law and procedure on the subject inasmuch as no witness was examined by PCBL; that learned Judicial Officer illegally relied upon the documents tendered by the PCBL contrary to the procedure and practice; that while passing the impugned order the Judicial Officer did not take into consideration that the petitioners did not find any occasion to temper with the record of the SMR in the name of their predecessors in interest; that though the claim was filed by the petitioner under SMR No,225523 but the entire order of the learned Judicial Officer revolves around SMR No,026429; that the issue- wise findings given by the learned Judicial Officer are totally contrary to the record and that in case the impugned order is not set aside the petitioners are bound to suffer immensely in the shape of starvation.
8. Conversely, learned counsel appearing on behalf of PCBL argues that since the documents relating to SMR No,026429 have been found tampered with, the petitioners' claim cannot be satisfied; that the amount deposited against the said SMR has already been adjusted against the loan advanced in favour of Land Mark Construction; that the learned Judicial Officer passed a well reasoned order after thrashing the evidence of the parties in addition to taking into consideration the material produced by the parties in support of their respective pleas; that the petitioner miserably failed to establish any fabrication by PCBL staff; that Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, being a special law overrides the general law; that the learned Judicial Officer admitted the documents in evidence tendered by PCBL in view of provisions of section 31 of the Cooperative Societies Act, Article 48 of the Qanun-eShahadat Order, 1984, and section 4 of Bankers Books Evidence Act, 1891, thus, the objection raised by the petitioner qua the admissibility of the documents in evidence produced by PCBL is not sustainable; that initially the petitioners based their claim on SMR No,026429 but later on coming to know that the same was fabricated one, shifted their claim to SMR No,225523 and that in case the impugned order is set aside, the petitioners would succeed to have benefit of their ill gotten eggs.
9. After hearing learned counsel for the parties and going through the documents appended with this petition, I have observed that the petitioners are trying to make head way for recovery of huge amount of Rs,20,50,000 deposited by their predecessor in interest about two decades ago. During the course of scrutiny of documents, I have observed that while filing cooperative petition before the Hon'ble Cooperative Judge, Islamabad, the predecessor in interest of the petitioners averred in unequivocal terms that his SMR bore No,225523 whereas SMR No,026429 being product of fabrication by the PCBL staff has no nexus with him. Further, according to the record of the PCBL SMR issued in favour of predecessor in interest of the petitioners bore No,225523 but they took the stance that the same was later on converted into SMR No,026429 and the amount deposited in the said SMR was adjusted in Loan Account No,217 favouring Land Mark Construction. It is astonishing to note that the PCBL has taken the said plea without establishing any connection in between the predecessor in interest of the petitioners and that of Land Mark Construction Company. Thus, prior to delving deep into merits of the case it is established that from day one by the predecessor in interest of the petitioners and till date by his successors/petitioners have based their claim on SMR No,225523 and they never owned SMR No, 026429.
' Now while adjudging the findings of the learned Judicial Officer on issue No,1, I have noted that onus to prove this issue was on the parties. Though the learned Judicial Officer has observed that the petitioners failed to establish any tampering with the record of the PCBL by its staff on the ground that the notification regarding dissolution of Cooperative Finance Corporations was issued on 6-11-1991 when the Punjab Cooperative Board for Liquidation had not seen the light of the day, thus, the staff of the PCBL found no opportunity to tinker with the record pertaining to the SMR in dispute but on the other hand the learned Judicial Officer PCBL feel contented to rely upon the mere assertion of the PCBL that since the petitioners are the ultimate beneficiaries of the said SMR, therefore, those are responsible for said tampering or interpolation with the record of PCBL. It is surprising to note that without corroboration from any quarter or document, the observation of the learned Judicial Officer does not appeal to reason, rather seems to be the product of imagination and speculation. As a matter of fact, as the onus to prove said issue was placed on both the parties, if the petitioners were failed to discharge their liability, it was incumbent upon the PCBL to prove the said issue against the petitioners. Further, the Judicial Officer has observed that the NICFC was dissolved much prior to the establishment of PCBL, therefore, the staff of PCBL was not able to tamper with the record of the NICFC. In this regard, it is observed that the learned Judicial Officer, perhaps, was not aware that after dissolution of NICFC the record till date remained in custody of the officials of PCBL and possibility of preparation' of bogus documents cannot be ruled out. Thus, the observation of the learned Judicial Officer PCBL qua Issue No,1 is bereft of judicial approach, what to talk of cogent reasons.
' Insofar as findings of the learned Judicial Officer on Issue No,2 are concerned, I am of the view that approach of the learned Judicial Officer PCBL also seems to be shorn of judicial approach inasmuch as the learned Judicial Officer has observed that none of the witnesses had seen the PCBL staff while tampering with the record, therefore, their testimony was discarded by him. The learned Judicial Officer failed to note that right from the deposit of the amount by the predecessor in interest of the petitioners firstly the record was with the concerned branch and after its dissolution in the year 1994 it remained with the PCBL throughout, therefore, the petitioners never found an occasion to do away with the record of the PCBL. The learned Judicial Officer further went on to observe while giving his observation on-the said issue that since the documents were not got adjudged as fabricated by the petitioners from any forum despite the proceedings were pending for the last 10 years, therefore, they could not agitate that the same were fabricated by the PCBL staff. The said approach speaks volumes about the lack ' of legal acumen of the learned Judicial Officer for the reason that the parties were directed to get their dispute resolved from him as he has the power to adjudicate upon the matter, record evidence of the parties and to adopt all necessary measures including referring the matter to the Hand Writing Expert to arrive at a just conclusion but instead of unearthing the truth he chose an easy passage to get rid of said question.
' Now coming to the finding on Issue No,3, I am stunned to observe that the learned Judicial Officer decided the said issue in favour of PCBL merely on the basis of assertion of the PCBL that amount of SMR No,225523 was debited on 29-10-1991 for issuance of Advice No,058079 in the amount of Rs,26,65,000 by including another amount of Rs,6,15,000 from SMR No,010304. The learned Judicial Officer erred in law by not appreciating that on the one hand the PCBL claimed that the SMR issued in favour of predecessor in interest of the petitioners was debited for issuance of Advice No,058079 for purchase of land situated in Mauza Dev Kalan but on the other by taking U-Turn, the PCBL claimed that on the same day the said advice was debited for issuance of SMR No,026421 worth Rs,6,65,000 whereas the said SMR was debited for issuance of Advice No,021843. The said self contradictory stances of the PCBL do not synchronize with each other and while placing reliance on said assertions the learned Judicial Officer totally proceeded on totally wrong track. Another important question involved under the said issue is that according to the PCBL the amount of SMR of the predecessor in interest of the petitioners was adjusted against loan account No,217 in the name of Land Mark Construction Company but without establishing any connection between the said construction company and the predecessor in interest of the petitioners it was not open for the learned Judicial Officer PCBL to take the said assertion of the PCBL as gospel truth.
' Another important question involved in this matter is that the learned Judicial Officer proceeded to allow the PCBL to exhibit documents which were not produced by the person who in routine is the custodian of those documents. Thus the reliance by the learned Judicial Officer on the documents which were not legally produced before him is also questionable.
Even otherwise, despite lengthy cross-examination on petitioner No,1 as well as the other witnesses while appearing in the witness box; the PCBL miserably failed to shatter their veracity rather on material points they all remained consistent. On the other hand, the PCBL instead of producing any evidence to prove their claim opted to produce documents through the law officer which wrongly relied upon by the Judicial Officer while passing the impugned order.
' As a necessary corollary to the above discussion, I am of the view that the claim of the petitioners is very much established from the documents produced by them before the learned Judicial Officer who wrongly confined, his findings to SMR No,026429 inasmuch as the petitioners filed their claim under SMR No,225523. Further, the findings of the learned. Judicial Officer on all the issues are not confidence inspiring rather runs contrary to the record. Consequently, this petition is accepted and the PCBL is directed to pay Rs,20,50,000 to the petitioners along with interest at the bank rate.