The Legal Mentors - TLM

Draft/Specimen/Format:
Appeal Against Acquittal filed before High Court against Judgment passed by Additional Sessions Judge.

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BEFORE HONOURABLE HIGH COURT,LAHORE.

CRIMINAL APPEAL NO: _____________________/2017
____________, Son of ______, District _____.
…..Appellant
V E R S U S
1. THE STATE
2. _______, Son of _____, Caste __, Resident of ___, Tehsil & District ___.
3. _______, Son of _____, Caste __, Resident of ___, Tehsil & District ___.
4. _______, Son of _____, Caste __, Resident of ___, Tehsil & District ___.
5. _______, Son of _____, Caste __, Resident of ___, Tehsil & District ___.
….Respondents

________________________
Case F.I.R No: 300/12
Dated 22.08.2012
Offence Under Section 302 PPC
Police Station Sadar Gujrat
________________________

A P P E A L
AGAINST ACQUITTAL UNDER SECTION 417 OF Cr.P.C AND ALL OTHER ENABLING PROVISIONS OF LAW AGAINST JUDGEMENT AGAINST DATED 22.12.2016 PASSED BY LEARNED ADDITIONAL SESSIONS JUDGE GUJRAT, WHEREBY THE LEARNED TRIAL COURT ACQUITTED RESPONDENTS NO. 2 TO 5.
_______________________
CHARGE: Under Section 302 of Pakistan Penal Code 1860
______________________
Respectfully Sheweth:
1. That the Appellant who is the complainant of this case, got registered vide F.I.R No. 300/12 dated 22.08.2016 under section 302 of Pakistan Penal Code.
2. That the FIR was lodged on the ground that on 21.08.2012 at 8:30 pm Appellant/Complainant son namely Farasat Ali told the complainant that he was going on Rasm-e-Mehndi of the Brother of his Friend Bakar Husain and he would come late. Farasat Ali went there through Car (Centro LEA-9134). The Appellant/Complainant and his Son-In-Law namely Nasir Mehmood, who came on the occasion of Eid-ul-Fitar at the home of complainant, called the victim at 11:45pm on the mobile number (0301-6170330) of Farasat Ali but the call was not answered. At 1:00 am they again called the victim but he mobile phone was switched off, after a while they went to Sleep. On the next morning, appellant/complainant received phone call from the S.H.O that body of the Farasat Ali found in the area of Manju Chak. On this information complainant along with Iqbal Shah and Atta went to the spot and saw that appellant’s son Farasat Ali was murdered. Complainant identified the dead body of Farasat Ali. Complainant moved an application for the registration of F.I.R against the unknown persons. On 23.08.2012 complainant was in his house with the reference of Fatiha Khwani of Farasat Ali when Mubashar Ali (Pw9) and Shahid Ali (Pw10) told the Complainant that on 21.08.2012 Farasat Ali called them and they went to see Sumera Ashraf (Respondent No.3) in Mohallah Khalidabad, Gujrat and they used to go along with Farasat Ali. Both Mubashar and Shahid Pw 9 & 10 along with Farasat Ali went to see Sumera Ashraf. Both Mubashar and Shahid Pw 9 & 10 were standing in the street and Farasat Ali entered into the house of Sumera Ashraf/Respondent No.3 and about 3:15am they heard hue and cry, they entered into the house and saw that Sumera Ashraf/Respondent No. 3 caught hold of Farasat Ali and Usman Aslam/Respondent No. 2 made a danda blow which hit backside of head of Farasat Ali, Babar Ali/ Respondent no. 5 delivered danda blow which hit on the head of Farasat Ali below the earlier injury; Shahbaz/Respondent No.4 made Danda Blow on Farasat Ali which hit on the head and there after accused made danda blows on different part of the body of Farasat Ali.Mubashir and Shahid Pw 9 & 10 attempted to rescue Farasat Ali but accused extended threats of life, therefore, they came back from the house of Sumera Ashraf/Respondent No.3. Complainant asked the Mubashar and Shahid Pw 9 & 10 the reason behind the murder of Farasat Ali, they told the complainant that Farasat Ali developed illicit relations with Sumera Ashraf/Respondent No.3 and it was the reason for the murder of Farasat Ali. Later on complainant on the same day i.e. 23.08.2016 moved an application for the nomination of all four accused person.
3. That after investigation all four accused were found involved in the murder for Farasat Ali. They were charged by the Learned Trial Court under section 302 PPC. Learned trial court through its judgment dated 22.12.2016 acquitted the all accused while given benefit of doubt.
4. That the findings of the Learned Trial Court as regards acquitted accused are fanciful, illogical and based on tatal disregard of the evidence on record. The judgment of Learned Trial Court is liable to be set-aside. Accused are liable to be sentence to death for the murder of Farasat Ali on the following grounds.
GROUNDS OF APPEAL
i. That the impugned judgment dated 22.12.2016 passed by the Learned Additional Sessions Judge, Gujrat is legally not sustainable.
ii. That the learned trial court has totally ignored the evidence on record which has fully implicated the accused with commission of the offence of murder of Farasat Ali. Prosecution has proved that all the accused were liable to be awarded the punishment of death for the offences committed by them.
iii. That the prosecution version was also supported by the two eye-witnesses namely Mubashar and Shahid Pw 9 & 10. Both the witnesses was only the eye-witness they were also aware with the relationship of Farasat Ali and Sumera Ashraf/Respondent No.3.
iv. That the evidence of two witnesses is sufficient for conviction if it is believed to be true and trustworthy and while cross examination both witnesses remained affirm on the occurrence and its way of happening.
v. That both witnesses Mubashar and Shahid testified that Farasat Ali was killed due to danda blows and while investigation of police Usman Aslam/Respondent No.2 made disclosure that he could get recovered danda same was recovered from the house of Sumera Ashraf/Respondent no.3
vi. That the Post-Mortem report describe that Farasat Ali was bearing injuries of Lacerated wounds and bruises and while cross examination Dr. Ehtisham-ul-Haq/Pw 7 testified that lacerated wound can be caused with blunt weapon e.g. weapon having broad and rounded end such as Danda.
vii. That accused and Farasat Ali and Prosecution Witnesses 9 & 10 have no enmity in past and nothing was brought on the record.
viii. That all the accused in their statement u/s 342 Cr.P.C deposed that Farasat Ali was the man of bad character, notorious and vagabond and he used to tease the girls. Both the Prosecution Witnesses 9 & 10 testified that Farasat Ali had developed illicit relations with the Sumera Ashraf/Respondent No.3 and they were not cross examined on that point.
ix. That the judgment of the learned trial court to the extent of acquittal of accused is based on surmises and conjectures and not based on sound appraisal of evidence, hence liable to be set-aside.
x. That there was no enmity between the parties, therefore, false implication of the respondents in the instant case is out of question.
xi. That the Appellant very humbly seeks permission to raise additional grounds at the time of hearing of this appeal.

P R A Y E R
In the given circumstances, it is respectfully prayed that the impugned judgment dated 22.12.2016 passed by the Learned Additional Sessions Judge, Gujrat whereby accused were acquitted while giving benefit of doubt may kindly be set-aside and the said accused be convicted under section 302 PPC and sentenced to death.

APPELLANT
THROUGH

ZEESHAN AHMAD MALIK
ADVOCATE HIGH COURT

66/3, Hajvery Complex, 2-Mozang Road, Lahore.
CERTIFICATE:
It is certified that upon instructions of my client it is the 1st Appeal against acquittal filed before this Honourable Court in the instant matter.

Advocate

Draft/Format/Specimen:
Service Matter/Service Tribunal

Proposition:
Appellant was regularized in service after appearing in examination conducted by Punjab Public Service. Department issued Seniority List, whereby, service of the employees was considered from the date of appointment and not from the date of regularization. Objections of the appellant were rejected and subsequently, her departmental appeal was also dismissed.
She filed appeal before Punjab Service Tribunal on the ground that service should have been considered from the date of regularization and not from the date of appointment on contract.

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BEFORE HONOURABLE PUNJAB SERVICE TRIBUNAL, LAHORE

SERVICE APPEAL NO: ____________________________/2023

______, WIFE OF ____, DISTRICT _____.
…….Appellant
V E R S U S

1. CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE.

2. SECRETARY, YOUTH AFFAIRS AND SPORTS, GOVERNMENT OF THE PUNJAB, PUNJAB STADIUM, LAHORE.

…….Respondents

A P P E A L
UNDER SECTION 4 PUNJAB SERVICE TRIBUNAL ACT

Respectfully Sheweth:

1. That through the instant appeal, the appellant humbly seeks indulgence of this Honourable Tribunal for setting aside Seniority List dated 04.02.2021, order dated 15.04.2021 passed by Respondent No. 2 whereby objections raised by the appellant were dismissed and order dated 15.06.2023 passed by Respondent No. 1, whereby, appeal preferred by the appellant was dismissed.
2. That succinctly stated facts giving rise to the filing of instant Service Appeal are that the appellant is working as Tehsil Sports Officer (TSO). The appellant was appointed as TSO in the Youth Affairs and Sports, Government of the Punjab as TSO through Departmental Selection Committee on contract basis on 20.10.2007.
3. That after promulgation of The Punjab Regularisation of Service Act, 2018, a list of 49 contract employees was sent to Punjab Public Service Commission for regularization after clearing suitability test. PPSC cleared 42 candidates and the name of the appellant was placed at Serial Number 9 in the merit list. Copy of merit list is attached herewith as Annex-A for kind perusal of this Honourable Tribunal.
4. That subsequently, the respondent department issued a seniority list dated 04.02.2021, prepared on the basis of date of joining, of all the employees including Tehsil Sports Officers/Administrators /Caretakers/Officer Incharge (BS-16), wherein the appellant was placed at Serial No. 41. Copy of seniority list dated 04.02.2021 is Annex-B.
5. That feeling aggrieved of above-mentioned seniority list, the appellant and other employees raised objections before Respondent No. 2 through an application for reviewing the seniority list dated 04.02.2021 and for restoring seniority list issued by PPSC. However, application of the appellant was dismissed by Respondent No. 2 through order dated 15.04.2021. Copies of application and order are appended herewith as Annex-C & C/1 for kind perusal of this Honourable Tribunal.
6. That thereafter, the appellant and other employees filed Writ Petition No. 31625/2021 before Honourable Lahore High Court, Lahore. However, said writ petition was disposed of vide order dated 08.12.2022 with the observation that the appellant and other employees may prefer appeal against order dated 15.04.2021 under section 12 of Punjab Regularization of Service Act, 2018. Copies of order dated 08.12.2022 passed by Honourable Lahore High Court, Lahore and writ petition No. 31625/2021 are Annex-D & D/1.
7. That afterwards, the appellant and other employees submitted appeal before Respondent No. 1 against seniority list dated 04.02.2021 and order dated 15.04.2021 passed by Respondent No. 2. Copy of appeal is Annex-E.
8. That the appeal filed by the appellant was put in cold storage, therefore, the appellant was constrained to file Writ Petition No. 14848/2023 before Honourable Lahore High Court, Lahore. Vide order dated 06.03.2023, Honourable Lahore High Court, Lahore was pleased to issue direction to Respondent No. 1 to decide the appeal pending before him in accordance with law within 3o days. Copies of order dated 06.03.2023 and writ petition No.14848 are Annex-F & F/1.
9. That despite issuance of direction of Honourable Lahore High Court, Lahore dated 06.03.2023, Respondent No. 1 did not decide appeal of the appellant. Therefore, a contempt petition was filed before Honourable Lahore High Court, Lahore. During proceedings of contempt petition, the respondent department on 02.11.2023 produced order dated 15.06.2023 passed by Respondent No. 1, whereby, appeal filed by the appellant was dismissed. As the appellant and other employees had no knowledge regarding order dated 15.06.2023 earlier, therefore, contempt petition was withdrawn for preferring appeal before this Honourable Tribunal. Copy of order dated 02.11.2023 and contempt petition are Annex-G & G/1 and order dated 15.06.2023 is Annex-H.
10. That Impugned Seniority List dated 04.02.2021, order dated 15.04.2021 passed by Respondent No. 2 whereby objections raised by the appellant were dismissed and order dated 15.06.2023 passed by Respondent No. 1, whereby, appeal preferred by the appellant was dismissed are not sustainable in the eyes, suffer from surmises and conjectures, hence, liable to be set aside inter-alia on the following:
G R O U N D S
(i) That seniority list dated 04.02.2021 and orders dated 15.04.2021 and 15.06.2023 have been passed in sheer violation of law settled by Apex Court of Pakistan.
(ii) That Honourable Supreme Court of Pakistan has observed in various judgments that if contract employees are regularized, their seniority will be determined from the date of regularization and not from the date of their initial contractual appointment.
(iii) That in the matter in hand seniority of the appellant and other employees has been reckoned from the dates of their appointments and not from the date of their regularization which is against the law.
(iv) That the impugned orders have been passed in disregard of notification dated 24.02.2022 issued by S&GAD Department (Regulation Wing) whereby, it has been held that in case of selection through PPSC the seniority would be assigned in accordance with the merits assigned by the selection authority. Copy of notification dated 24.02.2022 is Annex-I.
(v) That when service of contract employees is regularized after competitive examination, seniority of such employees has to be determined from the date of their regularization in service and not from their initial appointment on contract basis.
In the matter in hand, the appellant and other employees of respondent department were regularized after clearing a test conducted by Punjab Public Service Commission and a merit list was also prepared by PPSC, therefore, the seniority list should have been prepared in the light of merit list prepared by PPSC.
(vi) That the respondents have even violated statutory provisions envisaged in service enactments. According to Section 7 of The Punjab Civil Servants Act, 1974, seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post.
(vii) That impugned orders amount to defeat the spirit of The Punjab Regularization of Service Act, 2018. Regularization of a contract employee is a fresh appointment into the stream of regular appointment and a contractual employee for the first time becomes a civil servant and the benefit of regularization extended to them is prospective in nature and there is no legal justification to give it a retrospective application. The respondents have thus given retrospective application to the regularization which is not warranted under law.
(viii) That it is pertinent to underline that the consistent Government Policies on regularization have finally manifested themselves in the Punjab Regularization of Service Act, 2018 which specifically provides for regularization from immediate effect. Therefore, there has been a consistent design behind the scheme of regularization and it has always been conceived from the date of regularization.
(ix) That through order dated 15.06.2023, the appeal preferred by the appellant and other employees was dismissed by Respondent No. 1. However, said order was passed at the back of the appellant and other employees as the same was not communicated to the appellant. The appellant attained knowledge regarding impugned order on 02.11.2023 after the order dated 15.06.2023 was submitted before Honourable High Court. Hence, the appeal in hand is within time. The appellant has also filed a separate application for condonation of delay.
(x) That the appellant humbly seeks permission of this Honourable Tribunal to raise additional grounds at the stage of arguments.
P R A Y E R
In aforementioned circumstances, it is prayed from this Honourable Tribunal that instant Service Appeal may be accepted and Impugned Seniority List dated 04.02.2021, order dated 15.04.2021 passed by Respondent No. 2, whereby, objections raised by the appellant were dismissed and order dated 15.06.2023 passed by Respondent No. 1, whereby, appeal preferred by the appellant was dismissed may be set aside. Moreover, respondents may be directed to issue a new Seniority List from date of regularization in the light of merit list prepared by Punjab Public Service Commission.
Any other relief which this Honourable Tribunal deems fit and appropriate may kindly also be granted.

APPELLANT
[AISHA SALEEM]
THROUGH

ZEESHAN AHMAD MALIK
ADVOCATE HIGH COURT

“THE LEGAL MENTORS”

38, 4TH FLOOR, C.M. CENTRE, LINK FARID KOT ROAD, LAHORE.

CERTIFICATE:
It is certified that upon instructions of my client, Mst. __________, it is the 1st Service Appeal filed before this Honourable Tribunal in the matter in hand.

ADVOCATE

Video Links of 25 Lectures delivered by Learned Resource persons at Bar Vocational Course conducted at Aiwan-e-Adal/Civil Court, Lahore with the collaboration of Lahore Bar Association & Punjab Bar Council:

Lecture 1: Professional Ethics & Etiquette in Courts by Justice (r) Hasnat Ahmad Khan
https://youtu.be/wF0QEp-py_s

Lecture 2: Legal System of Pakistan by Muhammad Saad Khan AHC
https://youtu.be/bQsLgw532d8

Lecture3: Basic Principles of Civil Law by Mehr Muhammad Iqbal ASC
https://youtu.be/55wU9iac9hw

Lecture 4: How a Civil Case Moves through the courts By Ahsan Shahzad AHC
https://youtu.be/LaFhjTLveI4

Lecture 5: File Preparation of a Civil Suit by Zeeshan Ahmad Malik, AHC
https://youtu.be/uZ1cPcfMmxY

Lecture 6: Introduction to The Specific Relief Act by Waqar A Khan
https://youtu.be/DNCfr4lhfmE

Lecture 7: How a criminal case moves through court by Syed Muntazir Mehdi
https://youtu.be/ujSC34f0ANk

Lecture 8: An Overview of Criminal Law by Mian Ali Haider, AHC
https://youtu.be/qdwRRvQH63o

Lecture 9: Bail, Post-Arrest, Protective Bail, Pre-Arrest by Tahir Pervez, AHC
https://youtu.be/QCminLvrhao

Lecture 10: Control Of Narcotics Substances Act 1997 by Malik Muhammad Aslam, AHC
https://youtu.be/-8WK_cGtcoA

Lecture 11: Child Custody & Guardianship Laws by Fahad Ahmad Siddiqi, AHC
https://youtu.be/xZnQh5BImHw

Lecture 12: Private Complaint by Asad Abbas Butt, AHC
https://youtu.be/bCzC9W8krl0

Lecture 13: Case Preparation & How to Argue by Barrister Haaris Ramzan, AHC
https://youtu.be/NTdGntQ_OTw

Lecture 14: Appeal, Revision, Review & Writ in Civil Matters by Syed Shahab Qutub, ASC
https://youtu.be/zFco5_1gNJI

Lecture 15: Family Laws in Pakistan by Fatima Tu Zara Butt, AHC
https://youtu.be/01dk8JeKKCM

Lecture16: Justice of peace 22A(6) Criminal Procedure Code by Rana Asim, AHC
https://youtu.be/PEXU_fvYEy4

Lecture17: Punjab Consumer Protection Act, 2005 by Baran Khan Sherwani, AHC
https://youtu.be/F6E1MvU4fdc

Lecture18: Part 1: Art of Cross Examination by Barrister Ambreen Qureshi, AHC
https://youtu.be/vjNRtb6LOqk

Lecture19: Part 2: Client Conference Skills by Barrister Ambreen Qureshi, AHC
https://youtu.be/qKerAfP_QNo

Lecture 20: Tax Laws in Pakistan by Zaroon Rasheed Pirzada, AHC
https://youtu.be/wFiC3u4qAug

Lecture 21: Rent laws in Punjab by Zeeshan Ahmad Malik, AHC
https://youtu.be/Y9Q3lpyyhCc

Lecture 22: Revenue Laws in Punjab & How to Read Revenue Documents by Sameer Ejaz, AHC
https://youtu.be/XQTGcuNnDkg

Lecture 23: Alternate Dispute Resolution ADR & International Arbitration by Rana Rizwan Hussain, AHC
https://youtu.be/68WIwtg-uJw

Lecture 24: An overview of Banking Laws in Pakistan by Atif Khan, AHC
https://youtu.be/cGoHjpuYTZI

Lecture 25: Professional Legal Ethics & Practice of Law by Muhammad Ahmad Qayyum, ASC
https://youtu.be/xs2pT9KFtDY

Lecture 28: Professional Legal Ethics & Practice of Law by Muhammad Ahmad Qayyum, ASC, BVC at LBA

https://youtu.be/iIpgbYg_fXw?si=DU05MQeiValAvMnl

Plea of Alibi Article 24 Qanoon e Shahadat QSO by Sir Khadim Hussain Malik

Specimen/Draft/Format:
Application for setting aside ex-parte proceedings

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IN THE COURT OF MR. __________, LEARNED CIVIL JUDGE, LAHORE.

In Re:

_______ VERSUS ________
(SUIT FOR SPECIFIC PERFORMANCE)

A P P L I C A T I O N FOR SETTING ASIDE EX-PARTE PROCEEDINGS INITIATED AGAINST THE APPLICANT/DEFENDANT ON 16.11.2017

Respectfully Sheweth:
1. That titled civil suit is pending for adjudication before this Learned Court for today i.e. 30.06.2018 before this Learned Court.
2. That this Learned Court was pleased to initiate ex-parte proceedings against the applicant vide order dated 16.11.2017. The applicant humbly seeks indulgence of this Learned Court for setting aside ex-parte proceedings inter-alia on the following:
G R O U N D S
(i) That non-appearance of the applicant was neither intentional nor deliberate rather same was due to the fact that the applicant had no knowledge about pendency of titled civil suit.
(ii) That the applicant never received either any notice or summon regarding pendency of titled civil suit.
(iii) That today i.e. 30.06.2018 when the counsel for the applicant appeared before this Learned Court in the case filed by the applicant for declaration titled as Riaz V. Azam, the counsel for the applicant came into knowledge about pendency of titled civil suit.
(iv) That valuable rights of the applicant are involved in the instant case, therefore, it is in the interest of justice that the applicant may be allowed to bring his version before this Learned Court after setting aside ex-parte proceedings, otherwise irreparable loss shall be suffered by the applicant.
(v) That the applicant humbly seek permission of this Learned Court to raise additional ground at the stage of arguments.
P R A Y E R
In aforementioned circumstances, it is humbly prayed that the instant application may kindly be accepted & order dated 16.11.2017, whereby ex-parte proceedings were initiated against the applicant may graciously be set aside.

DEFENDANT
Through

Counsel

Zeeshan Ahmad Malik, AHC, The Legal Mentors - TLM, conducted an interactive session today i.e. 26.10.2023, on 'Advocacy, Interpersonal Communication & Writing skills' at School of Law, Minhaj University, Lahore.

Draft/Format/Specimen:

2 Drafts:
Regular First Appeal - RFA
&
Regular Second Appeal - RSA

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Regular First Appeal RFA filed before HighCourt:

Suit of respondent for specific performance was decreed. Appellant preferred appeal on the ground that agreement to sell in her favour was prior in time.

BEFORE HONOURABLE LAHORE HIGH COURT, LAHORE.

REGULAR FIRST APPEAL NO: ________________________/2013

MEMO OF PARTIES

MST. _____, WIDOW OF ____, RESIDENT OF _____, LAHORE.

……APPELLANT
V E R S U S

1. ____, SON OF ___, RESIDENT OF ____, LAHORE.

2. ____, SON OF ___, LAHORE.
….RESPONDENTS

REGULAR FIRST APPEAL
AGAINST JUDGMENT & DECREE DATED 07.12.2012, PASSED BY LEARNED CIVIL JUDGE, 1ST CLASS, LAHORE, WHEREBY SUIT FOR SPECIFIC PERFORMANCE AND RECOVERY OF POSSESSION FILED BY RESPONDENT NO. 1 WAS DECREED.

APPELLANT
Through

ZEESHAN AHMAD MALIK
Advocate High Court


MEMO OF APPEAL

Respectfully Sheweth:
1. That the addresses of the parties for the purpose of service by this Honourable Court have correctly been given above.
2. That through the instant Regular First Appeal, the appellant humbly seeks indulgence of this Honourable Court for setting aside judgment & decree dated 07.12.2012 passed by Learned Civil Judge, Lahore, whereby suit filed by Respondent No. 1 was decreed. Copy of impugned judgment & decree dated 07.12.2012 is appended herewith for kind perusal of this Honourable Court.
3. That succinctly stated facts giving rise to the filing of instant Regular First Appeal are that the appellant and Respondent No. 2 entered into an agreement to sell regarding a piece of land measuring 7-Marlas comprising of Khasra No. 749 situated at Bismillah Colony, Green Town, Lahore on 07.07.2000 (hereinafter referred to as the “Disputed Property”). Total consideration amount was settled as Rs.9300000/-, whereas, Rs.530000/- was paid to Respondent No. 2 as earnest money by the appellant. It was settled that remaining amount would be paid by the appellant to the Respondent No. 2 on 07.10.2000 at the time of ex*****on of sale deed.
4. That after receiving earnest from the appellant, Respondent No.2 had handed over physical possession of the disputed property to the appellant, whereupon, the appellant built multi storied building additionally, utility connections at the disputed property were also got installed by the appellant.
5. That the appellant, thereafter, approached Respondent No. 2 many a time for the ex*****on of sale deed in her favour, however, Respondent No. 2 lingered on the matter on one pretext or other. Meanwhile, husband of the appellant was murdered and she was entangled in criminal proceedings.
6. That the appellant served a legal notice 06.07.2001 to Respondent and subsequently, filed a suit against him, however, upon promise of Respondent No. 2 that he would execute sale deed in favour of the appellant, the suit was not furthermore pursued by the appellant.
7. That thereafter, a suit for Specific performance and recovery of possession was filed by Respondent No. 1 against the appellant and Respondent No. 2 before Learned Civil Judge, Lahore. Respondent No. 1 had alleged therein that the disputed property was sold to Respondent No. 1 by Respondent No. 2 through an agreement to sell and the appellant was in occupation of the same as tenant.
8. That appellant appeared before the Learned Trial Court and contested the suitby filing written statement, however, Respondent No. 2 did not appear, therefore, ex-parte proceedings were initiated against him.
9. That from divergent pleadings of the parties, Learned Trial Court framed following issues vide order dated 21.03.2012:
(i) Whether the plaintiff is entitled to the decree for specific performance and possession? OPP
(ii) Whether the plaintiff instituted the suit in collusion with Defendant No.2? OPD1
(iii) Whether the suit is not maintainable and liable to be dismissed? OPD1
(iv) Whether the plaintiff is estopped by word and conduct? OPD1
(v) Whether the suit is false, frivolous and is liable to be dismissed with special costs? OPD1
(vi) Relief.
10. That after framing of issues, both the parties adduced their evidence. The Respondent No. 1 appeared as PW-1 and produced Sarfraz Khaliq & Shehbaz Rasool as PW-2 & PW-3 respectively. In documentary evidence, Respondent No 1 produced agreement to sell and sale deed as Ex-P/2 & Ex-P/1 respectively. On the other hand, the appellant appeared as DW-5 and produced Muhammad Bashir, Muhammad Yaqoob, Mukhtar Ahmad & Nazir Ahmad as DW-1, DW-2 DW-3 & DW-4 respectively. In documentary evidence monthly bills of water and electricity were produced as Ex-D1 to Ex.D13, agreement to sell Mark-A, Nikkahnama of sons Mark B and Mark C.
11. That after recording of evidences of both the parties, Learned Trial Court decreed the suit of Respondent No.1/plaintiff vide judgment & decree dated 07.12.2012.
12. That judgment & decree dated 07.12.2012, whereby Learned Trial Court decreed the suit of Respondent No. 1 are not sustainable in the eyes of law and same are liable to be set aside inter-alia on the following:
G R O U N D S O F O B J E C T I O N S
a. That the impugned judgment dated 07.12.2012 has been passed in completely disregard of law laid down by Apex Court of Pakistan and same is void and unwarranted.
b. That the impugned judgment is an outcome of complete disregard of material available on record and non-reading and misreading of evidence produced by the appellant.
c. That Respondent No. 1 had alleged in his plaint that the appellant was in occupation of the disputed property as tenant, however, Learned Trial Court completely failed to appreciate that Respondent No. 1 had failed to prove his claim. The appellant had proved through her evidence that she is in occupation of the disputed property not as tenant, rather, as an owner.
d. That the suit was filed by Respondent No. 1 in connivance and collusion with Respondent No. 2 and for that reason Respondent No. 2 did not, intentionally, appeared before Learned Trial Court.
e. That Learned Trial Court completely ignored this fact that a suit for specific performance filed by the appellant against Respondent No. 2 is also pending before Civil Court titled as ______V._____, wherein next date of hearing is 12.02.2012 in the court of Mr. Abdul Jabbar Hanjra, Civil Judge, Lahore.
f. That the agreement to sell in favour of Respondent No. 1 is an outcome of fraud & deception, even if for the sake of arguments it is presumed that he is subsequent vendee, even then he cannot be considered as bonafide purchaser, because admittedly, he knew that the appellant was in possession of the disputed property and he had complete knowledge of agreement to sell in favour of the appellant by Respondent No.2. It is duty of the purchaser to inquire about nature and extent of interest of party in possession. In the matter in hand, Learned Trial Court passed impugned judgment in complete disregard of the fact Respondent No. 1 had not discharged burdon to protect his title as bonafide purchaser.
g. That Learned Trial Court did not completely discuss the evidence adduced by the appellant in the impugned judgment. Learned Trial Court erroneously decided issues No. 3 to 6 collectively and the decision of said issues by relying on decision of Issues No. 1 & 2 is not warranted under law.
h. That the appellant humbly seeks permission of this Honourable Court to raise additional grounds of objections at the stage of arguments.
P R A Y E R
In the aforementioned circumstances, it is humbly prayed that instant appeal may kindly be accepted, judgment & decree dated 07.12.2012, passed by Learned Trial Court, whereby Learned Trial Court was pleased to decree the suit of Respondent No. 1 may kindly be set aside and suit of Respondent No. 1 may graciously be dismissed.

APPELLANT

THROUGH

Zeeshan Ahmad Malik
Advocate High Court

“THE LEGAL MENTORS”

66/3, Hajvery Complex, 2-Mozang Road, Lahore.

CERTIFICATE:
It is certified that upon instructions of my client Mst.____ it is the first appeal against judgment & decree dated 07.12.2012

ADVOCATE

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REGULAR SECOND APPEAL –
FORMAT/DRAFT/SPECIMEN:

Suit for recovery filed by the appellant/plaintiff against defendant/predecessor in interest of the respondents was decreed. However, appeal was accepted by Additional District Judge and judgment of trial court was reversed; resultantly, suit of the appellant was dismissed. Hence, RSA.

BEFORE HONOURABLE LAHORE HIGH COURT, LAHORE.

REGULAR SECOND APPEAL NO: ______________________/2014

____, SON OF ____, RESIDENT _____.

…..Appellant

V E R S U S

_______

ALL RESIDENTS _______.

…..Respondents

R E G U L A R S E C O N D A P P E A L
U/S 100 C.P.C. AGAINST JUDGMENT & DECREE DATED 08.10.2013 PASSED BY LEARNED ADDITIONAL DISTRICT JUDGE, GOJRA, WHEREBY APPEAL PREFERRED BY RESPONDENTS NO. 1 & 5 WAS ACCEPTED AND SUIT OF THE PETITIONER DECREED ON 30.06.2010 BY CIVIL COURT WAS DISMISSED.

Respectfully Sheweth:
1. That the addresses of the parties have been given above correctly for the purpose of service.

2. That through the instant Regular Second Appeal, the appellant humbly seeks indulgence of this Honourable Court for setting aside judgment & decree dated 08.10.2013 passed by Learned Additional District Judge, Gojra, whereby appeal preferred by Respondents No. 1 & 5 was accepted and suit of the appellant which was decreed by Learned Trial Court vide judgment & decree dated 30.06.2010 was dismissed. Copy of judgment & decree dated 08.10.2013 passed by Lower Appellate Court is appended herewith for kind perusal of this Honourable Court as Annex-A.

3. That succinctly stated, facts giving rise to the filing of instant Regular Second Appeal are that while the appellant was settled at Holland, his father in law/ Asghar Ali deceased/defendant s/o Ghulam Muhammad (predecessor in interest of the respondents) persuaded him to purchase immovable property at Pakistan. From the period 1995 to 2001, the appellant sent him an amount of Rs.4135935 (Forty One Lacs, Thirty Five Thousands & Nine Hundred Thirty Five Rupees) at different occasions through HBL, Toba Tek Singh & HBL Gojra. Through said money, Asghar Ali deceased purchased five pieces of immovable property through registered sale deeds, thus, spent Rs. 1737000/- (Seventeen Lacs, Thirty Seven Thousands Rupees). An amount of Rs. 2491935/- (Twenty Four Lacs, Ninty One Thousands & Nine Hundred Thirty Five Rupees) was outstanding at the part of deceased Ali Asghar/defendant. On demand of the appellant of rendition of accounts, Ali Asghar deceased had sent him a letter dated 30.07.2001, wherein, he mentioned certain expenses to usurp huge amount of the appellant. On refusal of Ali Asghar deceased to return the amount of the appellant, the appellant was constrained to file a suit for recovery of Rs. 2491935/- against the defendant/Ali Asghar deceased.

4. That the suit was contested by the defendant/predecessor-in-interest of the respondents inter-alia on the grounds that the suit of the appellant was time barred and he had no cause of action. Moreover, it was alleged in the written statement that on the purchase of immovable property Rs. 2695000/- were spent and Rs.1719662/- were incurred at miscellaneous expenses. Ali Asghar deceased pleaded a counter claim of Rs.1719662/- against the appellant.

5. That from divergent pleadings of the parties, the Learned Trial Court vide order dated 11.01.2005 framed following issues:
(i) Whether the plaintiff is entitled to recover Rs.24,91,935/- from the defendant? OPP
(ii) Whether the suit is barred by time? OPD
(iii) Whether the suit is not maintainable in its present form? OPD
(iv) Whether in case of dismissal of suit, the defendant is entitled to recover compensatory costs; if so of what amount? OPD
(v) Whether this court lacks territorial jurisdiction to entertain the suit? OPP
(vi) Relief.

6. That after framing of issues, both the parties adduced their evidence on their respective contention on the issues framed. The appellant/plaintiff himself appeared as PW-3 and examined two witnesses P.W.1. Sarwar Hussain, Officer OG-III, HBL, Gojra, PW.2. Liaqat Ali, Manager Operations, HBL, Toba Tek Singh. In documentary evidence, the documents produced were (i) Statement of account No.17497-8 of Ali Asghar deceased as Ex.P1 (ii) Statement of account No.28228-3 of Ali Asghar deceased as Ex.P2 (iii) Sale deed dated 08.05.1996 as Ex.P3 (iv) Sale deed dated 17.07.1999 as Ex.P4 (v) Sale deed dated 12.09.1996 as Ex.P5 & (vi) Sale deed dated 13.11.1998 as Ex.P6.
In Rebuttal, Ali Asghar/Defendant/Predecessor in interest of the respondents appeared as Dw-1 and produced Muhammad Zafar Khan as DW-2. In documentary evidence he produced sale deed dated 08.05.1996 as Ex.D-1, sale deed dated 17.07.1999 as Ex.D-2, sale deed dated 12.09.1996 as Ex.D-3, sale deed dated 17.11.1998 as Ex.D-4 & receipt dated 10.03.2001 as Mark-A.
7. That the Learned Trial Court after conclusion of evidence decreed the suit vide judgment & decree dated 30.06.2010. Thereby, the appellant was held entitled to recover Rs.2061612/- from the defendant/predecessor in interest of the respondents. Copy of judgment & decree dated 30.06.2010 passed by Learned Trial Court whereby suit of the appellant was decreed is appended herewith for kind perusal of this Honourable Court as Annex-B.

8. That aggrieved of judgment & decree dated 30.06.2010 passed by Learned Trial Court, the defendant/predecessor in interest of respondents preferred an appeal before Learned Additional District Judge, Gojra. During pendency of the appeal, defendant died, therefore, respondents were impleaded therein as his legal heirs. The appeal of the respondents was accepted and resultantly, suit of the appellant was dismissed vide judgment & decree dated 08.10.2013 passed by Learned Additional District Judge, Gojra.

9. That judgment & decree dated 08.10.2013 passed by Learned Additional District Judge, Gojra, whereby appeal preferred by the respondents was accepted and suit of the appellant was dismissed is contrary to law, result of non-reading and misreading of evidence, perverse and suffers from surmises & conjectures; hence, liable to be set aside/reversed inter-alia on the following:
G R O U N D S
(i) That impugned judgment dated 08.10.2013 passed by Lower Appellate Court is uncertain in its meaning and the finding is vague and un-conclusive and lacks reasons.

(ii) That Learned Lower appellate Court while passing the impugned judgment, without giving any reason, altogether ignored the most important and considerable pieces of evidence on record on which Learned Trial Court had based its judgment. Such omission on part of Learned Appellate Court below, is sufficient to upset its judgment in which conclusion drawn by Learned Trial Court was dissented from without any respect to opinion expressed by Learned Trial Court.

(iii) That Learned Appellate Court has observed in its impugned judgment that although the appellant/plaintiff presented Bank Managers (PW-1 & PW-2), who presented bank statement of the defendant Ex.P-1 & Ex.P-2, however, those statements did not show that any of the amount mentioned therein was sent by the appellant. Said observation of Learned Lower Appellate Court is a result of material mistaken assumption. It is submitted that PW-2 had stated in his examination in chief that defendant received amount in his account through foreign Demand Draft and that a Foreign Demand Draft does not bear the name of the person who sends amount. This portion of the statement was never cross examined by the defendant. Meaning thereby, this portion was admitted to be correct, hence, this inference could not be drawn that because the statements did not bear the name of the appellant, therefore, the appellant had failed to prove that the said amount was sent by him to the defendant.

(iv) That finding of Lower Appellate Court is contrary to the pleadings and evidence. The appellant/plaintiff had categorically mentioned in his plaint as well as examination in chief that he had sent the amount in question from Holland to the account of the defendant. It is pertinent to mention here that the defendant did not deny in his written statement that no amount was sent by the appellant from Holland. Even a perusal of cross examination upon the appellant/PW-3 by the defendant would reveal that the appellant was never cross examined that he did not send any amount from Holland to the account of the defendant.

(v) That Learned Trial Court had rightly come to this conclusion while deciding issue No. 1 that defendant did not deny receiving an amount of Rs.41,35,939/-. Learned Lower Appellate Court reversed the judgment of Learned Trial Court with the observation that the defendant had been denying all the claim of the appellant/plaintiff in his written statement and in his statement as DW-1. Said observation of Learned Lower Appellate Court is perverse and same has been given without any perusal of the written statement and evidence on record.

(vi) That the appellant had stated in his plaint as well as examination in chief that he was persuaded by the defendant to invest in property, said portion of examination in chief was never cross examined. Therefore, finding of Learned Lower Appellate Court is without considering and appreciating material evidence.

(vii) That finding of Learned Lower Appellate Court is based on misread evidence and relevant evidence is also kept out of consideration, moreover, inadmissible evidence has been made foundation of the impugned judgment dated 08.10.2013; hence, same is based on wrong application of law, therefore, findings of lower appellate Court are not tenable.
(viii) That Learned Lower Appellate Court observed in its judgment that defendant in his statement as DW-1 stated that his sons, who were residing abroad, had been sending amount to him and that he was not cross examined that his sons were not settled abroad and had been sending amount to him, therefore, that portion of his statement would be considered as correct. Said observation of Learned Lower Appellate Court is contrary to law and not reasonable. It was not the case of the defendant that no amount was sent to him by the appellant/plaintiff and that his sons had been sending him amount. Defendant had never taken this plea in his written statement. Defendant for the first time took this instance in his examination in chief for improving his case.

(ix) That it is well settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. Law does not allow a party to improve his case in evidence, against the provisions of Order VI, Rule 1 CPC, wherein no parties are allowed to lead evidence in respect of plea which is inconsistent with the pleadings and even if any evidence is led the same cannot be considered as evidence in the case and should be overlooked.
(x) That observation of Lower Appellate Court that defendant was not cross examined that his sons were not residing abroad and were sending him money therefore, that portion was correct is against the law. Defendant could not be given any benefit if the appellant/plaintiff had not cross-examined his inadmissible piece of evidence. It is also pertinent to mention here that defendant was cross examined by putting this suggestion that he had not pleaded in his written statement that his sons had been sending him amount.

(xi) That without prejudice to what has been stated above it is submitted that Learned Lower Trial Court completely ignored that defendant had been taking contradictory pleas and same is evident from perusal of the record. In his written statement he had made out the case that expenses incurred on the purchase of the immovable property was Rs.2695000/- and miscellaneous expenses were Rs.1719662/- and spent an amount of Rs.4414662/- and that amount incurred on miscellaneous expenses were outstanding towards the appellant. Whereas, a contradictory plea was taken while adducing evidence.

(xii) That judgments of both the lower courts are at variance.

(xiii) That the appellant humbly seeks permission of this Honourable Court to raise additional grounds at the stage of arguments.
P R A Y E R
In aforementioned circumstances, it is humbly prayed that instant Regular Second Appeal may kindly be accepted, impugned judgment & decree dated 08.10.2013 passed by Learned Lower Appellate Court may kindly be set aside and judgment & decree of Trial Court may kindly be restored/upheld.
Any other relief which has Honourable Court deems fit and proper and which has inadvertently not been prayed for may kindly also be granted.

APPELLANT
Through

ZEESHAN AHMAD MALIK
Advocate High Court
The Legal Mentors - TLM
66/3, Hajvery Complex,
2-Mozang Road, Lahore.

CERTIFICATE:
It is certified that upon instructions of my client, it is the 1st Regular Second Appeal filed before this Honourable Court against judgment & decree dated 08.10.2013 passed by Learned Additional District Judge, Gojra.

Advocate

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