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Petitioner: Dilawar Khan VS Respondent: Station House Officer, Police Station Fia/Cc, Multan and 3 JUDGMENT
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title:Dilawar Khan vs Station House Officer, Police Station Fia/Cc, Multan and 3
JUDGMENT
Reported As: 2021 CLD 1279, 2022 P Cr.L J 30 Result: Order accordingly Judgment JUDGMENT TARIQ SALEEM SHEIKH, J.---Through this judgment I propose to decide Writ Petitions Nos. 3102/2020, and 6749/2020 as they involve identical questions of law . 2. The facts of W.P. No. 3102/2020 are that Respondent Ehsan Ali lodged FIR No. 9/2020 dated 18.1.2020 at Police Station FIA/CC, Multan Circle, against Petitioner Dilawar Khan and three others for offences under sections 60, 66A, 67C of the Copyright Ordinance, 1962, read with sections 109, 420, 468, 471, P.P.C. accusing them of infringing the registered copyright "Triple Five (555)" of his principal, Shaukat Ali, and selling counterfeit tobacco snuff (Naswar) in Sahiwal. The Federal Investigating Agency ("FIA") obtained search warrants from the Senior Civil Judge, Sahiwal, and raided the Petitioner's factory at Puli Chak No.134/9-L, Sahiwa l, and seized a huge quantity of the counterfeit product, raw materials, packaging and some machines. The Petitioner's two brothers, Shehryar Khan and Khushdil Khan, were arrested from the spot who disclosed that it was their family business and the Petitioner and their father Ain-ud-Din were also associated with them as partners. The Presiding Officer, Intellectual Property Tribunal, Lahore, has admitted Shehryar and Khushdil to post-arrest bail and the other accused to pre- arrest bail. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks quashing of FIR No. 9/2020. 3. Writ Petition No. 6749/2020 has also been filed by Dilawar Khan. In this petition he has challenged the jurisdiction of FIA to register FIRs under the Copyright Ordinance, 1962 (the "Copyright Ordinance"), and prayed for a writ of prohibition restraining them from registering FIRs and harassing him and his family . 4. Learned counsel for the Petitioner contends that all matters and complaints related to offences under the Copyright Ordinance are to be dealt with under the Intellectual Property Organization of Pakistan Act, 2012 ("IPO- Pakistan Act"), which is a special law. The FIA has no jurisdiction to register FIRs in respect of the said offences
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and investigate them. In the alternative, he argues that the FIA can only entertain cases in which there is violation of some copyright of the government. Infringement of copyrights of private parties are beyond its sway . The learned counsel has relied upon Director General, FIA, and others v. Kamran Iqbal and others (2016 SCMR 447), Syed Mushahid Shah and others v. Federal Investigating Agency and others (2017 SCMR 1218), The State through Deputy Attorney-General v. Muhammad Amin Haroon and 14 others (2010 PCr.LJ 518) and Dr. Syed Iqbal Raza v . Justice of Peace and others (2019 CLD 881 ) in support of his contentions. 5. The learned Assistant Attorney General for Pakistan and the learned counsel for Respondents Ehsan Ali and Shaukat Ali Khan have vehemently opposed these petitions. They contend that the Copyright Ordinance is mentioned at Serial No.26 in the Schedule of the Federal Investigation Agency Act, 1974 ("FIA Act"), so the FIA is competent to inquire into and investigate all the of fences punishable under the said Ordinance. Determination by the Court 6. Intellectual property is usually divided into two branches industrial property and copyright. Industrial property comprises patents for inventions, industrial designs (aesthetic creations related to the appearance of industrial products), trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition.' On the other hand, copyright relates to works of authorship.2 In today's world, protection of copyright and related rights is of immense importance. It is necessary for preservation of national culture and identity and indispensable for international economic cooperation. "Without this, a country may not be able to attract foreign investment in a number of important fields, and may not get access to certain cultural and information products and services in such an obstacle-free manner as it would be desirable for the acceleration of the social and economic development. "3 Pakistan is a party to the following international treaties protecting rights related to copyright: i) Berne Convention for the Protection of Literary and Artistic W orks (Berne Convention). ii) Universal Copyright Convention (UCC Geneva). iii) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). {{FOOT NOTE}} 1 Understanding Industrial Property , https://www .wipo.int>wipo pub 895 2016.pdf 2 Intellectual Property and Developing Countries, An Overview . (December 2003) Available at: https://www .hsdl.org/?view&did=446296 . 3 "The Importance of Copyright and Related Rights for Economic Development with Special Reference to SMEs", WIPO/CR/KR7/05/10. Available at: wino.int/edocs/mdocs/arab/en/wipo cr krt 05/wipo cr krt 05-10.pdf 4 This Convention has lost significance because almost all its members are also members of TRIPS. {{FOOT NOTE}} 7. TRIPS is the most comprehensive multilateral agreement on intellectual property to date and has established a new discipline for member countries. It covers copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks, geographical indicators; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits and undisclosed information including trade secrets and test data.' Every country that wanted to be a member of the World Trade Organization (WT O) had to accept the TRIPS obligations due to "single undertaking requirement." So has Pakistan. 8. The Parliament has enacted IPO-Pakistan Act (XXII of 2012) to establish Intellectual Property Organization of Pakistan (the "Organization") "to provide for institutional arrangement in the State setup, for taking up exclusively and comprehensively all subjects and matters relating to intellectual property rights in an integrated manner and for matters connected therewith or incidental thereto."6 Clause (g) of section 2 of the IPO-Pakistan Act states that "'intellectual property' includes a trademark, patent, industrial design, layout-design (topographies) of integrated circuits, copyright and related rights and all other ancillary rights." 9. IPO-Pakistan Act is a special law and section 39 thereof expressly states that it shall have effect notwithstanding anything contained in any other law for the time being in force. Section 13 describes the powers and functions of the Organization. Clauses (xix) and (xx) thereof are relevant for our present purposes which are reproduced below for ready reference:4
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13. Powers and functions of the Organization.--- The powers and functions of the Organization shall be to- (xix) initiate and conduct inquires, investigations and proceedings related to of fences in the prescribed manner; (xx) refer matters and complaints, related to offences under the laws specified in the Schedule, to the concerned law enforcement agencies and authorities as may be necessary for the purposes of this Act. Copyright Ordinance is mentioned at Serial No.2 of the Schedule to the IPO-Pakistan Act. {{FOOT NOTE}} 5 Farzana Noshab, Intellectual Property Rights: Issues and Implications for Pakistan. Strategic Studies, Vol. 21, No.2 (Summer 2001), pp. 61-76, https://www .jstor .org/stable/45242255 6 Preamble of the IPO-Pakistan Act. {{FOOT NOTE}} 10. Section 13(xix) read with section 39 confers exclusive jurisdiction on the Organization to initiate and conduct inquiries, investigations and proceedings related to offences under the laws spec ified in the Schedule. Thus, any person alleging infringement of his copyright must approach the Organization. Then, under section 13 (xx) the latter would refer his complaint to the concerned law enforcement agency or authority . It is thus clear that the FIA cannot entertain any complaint directly and register FIR This has a purpose. The organization is a bulwark against frivolous complaints and undue harassment. It is a specialized body which has the expertise and the requisite data to verify whether there is actually a case of infringement of intellectual property rights under the applicable law. The following observations of the Hon`ble Supreme Court of Pakistan in Messrs Farooq Ghee and Oils Mills (Pvt.) Ltd. v . Registrar of T rade Marks, T rade Mark Registry and others ( 2015 SCMR 1230 ) are instructive: "A copyright material cannot be allowed to be used as an alternate and or in substitution for the trademark, unless, of course, such copyright in the artistic work was also registered under the Trade Marks Act, 1940. It may be noted that practice of using copyright as a substitute for the trademark was deprecated and defence of the infringer resting on registration of copyright was sternly rejected in large number of cases including cases reported as Tapal Tea (Pvt) Ltd. v. Shahi Tea Co. (2002 CLD 1113), Pak Drug House v. Rio Chemical (2003 CLD 1531 ), as upheld by a learned Division Bench in the case reported as Pak Drug House v. Rio Chemical (2003 CLD 1531 ), Messrs ADT Services AG v. ADT Pakistan (Pvt.) Ltd. (2005 CLD 1546 ), Muhammad Wahid v. Adnan Memon (2010 CLD 450). In most of the reported cases, the courts have rightly desired amendments to prote ct valuable rights and obligations in intellectual property under various statutes regulating such rights and obligation and arrest, misuse and abuse of such statute to the determent of honest and truthful traders and entrepreneurs." 11. The Organization is required to exercise the powers and functions under section 13(xix) of the Copyright Act in the manner prescribed by the rules framed under section 34. It is, however , observed that the requisite rules have not been made. But would this neglect/failure impact the enforcement of the IPO-Pakistan Act, more particularly clauses (xix) and (xx) of section 13 there of ? Previously the judicial opinion was that an Act of the Parliament and the rules form part of a composite schem e and the Act cannot be enforced in the absence of the rules. However , that view has now changed. In Orissa State Prevention and Control of Pollution Board v. Messrs Orient Pape r Mills and another (AIR 2003 SC 1966) declaration of an area as an Air Pollution Control Area was challenged. Section 54(2)(k) of the Air (Protection and Control of Pollution) Act, 1981, contemplated making of rules prescribing the procedure but the state government had not framed them. The Supreme Court of India held: "Even if the State Government has not framed under section 54(2)(k) Rules prescribing the manner in which an area is to be declared as air pollution control area, the State Government is empow ered to declare any area within the State as an Air Pollution Control Area by notification in the official Gazette. It may, however , be after consultation with the Board and in the manner as may be prescribed. Absence of rules will not render the Act inoperative. The Act under section 19 vests the State Government with power to notify any area, in an official Gazette, as Air Pollution Control Area, but it cannot be said that exercise of such power is solely dependent upon framing of the rules prescribing the manner 1 which an area may be declared as Air Pollution Control Area." 12. In Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others [(2009) 8 SCC 492], while considering the question whether the state government could issue an executive order in respect of the matters required to be prescribed by the rules, the Supreme Court of India observed:
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"It is, however , a well-settled principle of law that even in a case where the statute provides for certain things to be done, subject to rules, any action taken without framing the rules would not render any (sic that) action invalid. If a statute is workable even without framing of the rules, the same has to be given effect to. The law itself except in certain situations does not envisage vacuum." 13. In my opinion, if Respondents Ehsan Ali and Shaukat Ali had any complaint against the Petitioner regarding infringement of copyright, it was incumbe nt on them to approach the Organization in the first instance. They could not directly lodge FIR with Police Station FIA/CC, Multan Circle. Inasmuch as the merits of their claim have not been argued before me, I would not go into them. ' 14. The second moot point is the nature and extent of jurisdiction of the FIA in respect of the offences under the Copyright Ordinance. 15. FIA is a federal force constituted under the Federal Investigation Agency Act,1974 whose preamble reads as follows: "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain of fences committed in connection with matters concerning the Federal Government, and for matters connected therewith." 16. Preamble is a part of a statute though not its operative part. IB Nevertheless, it provides a useful guide to find out the legislative intent. Coke said: "The preamble of the statute is a good mean s to find out the meaning of the statute, and as it were a key to open the understanding thereof."' 17. In Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Governme nt of Pakistan, Works Division and 2 others (PLD 1972 SC 279) the Hon`ble Supreme Court of Pakistan held that "the preamble is a legitimate aid in discovering the purpose of a statute." In Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236) a Division Bench of the Sindh High Court held that preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object to any statute." Similarly , in Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary , Government of Punjab, Lahore and others (PLD 2016 Lahore 699) a Division Bench of this Court ruled: "A preamble is, therefore, a window to the main statute. Although the preamble does not control the main enactment, it certainly gives an inkling of the intention of the legislature and as to the policy of the Act. The concept relating to the policy of the Act is of param ount importance and all interpretation must be done in accordance with the policy and the intention of the legislature found therein." 18. Sometimes the purpose of the statute is not discernable from the preamble. In such a situation the court must look at the whole of it to find out the legislative intent. Maxwell on Interpretation of Statutes8 refers to the following observations of Lord T enterden in Doe v . Branding, (1828) 7 B & C 643 : "The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the statute. The evil recited is but the motive for legislation; the remedy may both consistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act, a wider intention than expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble. {{FOOT NOTE}} 7. Craies on Statute Law , 7th Edition, p. 200. 8. Eleventh Edition {{FOOT NOTE}} "The context of the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it." 19. In Attorney-General v . H.R.H. Prince Ernest Augustus of Hanover , 1957 AC 436 , Lord Normand said: "When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, clearly possible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however , of the same weight as an aid to construction of the section of the Act as are other
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relevant enacting words to be found elsewhere in the Act or even in related Act. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond or it may fall short of the indication that may be gathered from the preamble ... It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail." The Hon`ble Supreme Court of Pakistan approvingly quoted the above statement of law in Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others (PLD 1981 SC 56) and Pakistan Railway v. Abdul Haqique and others (1991 SCMR 657 ). 20. The word "concerning" in the preamble of the FIA Act is of fundamental importance. According to the Black's Law Dictionary (Sixth Edition), it means "to pertain, relate, or belong to; be of interest or importance to; have connection with; to have reference to; to involve; to affect the interest of." In R. Dalmia v. The Commissioner of Income Tax New Delhi (AIR 1977 SC 988) the Supreme Court of India held that the word ['concern' is not a term of art having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean `to have a relation to or bearing on, be of interest or importance' or `to have an anxiety , worry'. 'Concerned' as an adjective may mean ['interested' 'involved'. In one context, it may mean one thing and in a different context another . The best way therefore to construe this word is with reference to the context in which it is used." 21. In Shah Muhammad Khan v. The Federa tion of Pakistan and 2 others [PLD 1958 (W.P.) Lahore 137] a Division Bench of this Court had the occasion to consider the phrase "matters concerning the Provincial Government" occurring in the Pakistan Special Police Establishment Ordinance (VIII of 1948). It observed that it did not mean the same thing as the expression "matters of the Provincial Government". Relevant excerpt is reproduced hereunder: "We consider that the argument raised by Mr. Muhammad Iqbal on behalf of the petitioner that defalcation or misappropriation of funds of a District Board or other local authority , a major part of which may have been contributed by Government, is eminently a matter concerning the Provincial Gove rnment and would, therefore, be covered by the Ordinance has considerable force. It is significant that the expression is 'matters concerning the Provincial Government' and not 'matters or affairs of the Provincial Governm ent'. The consideration of the provisions of the District Boards Act would fortify the inference that the question of misappropriation of funds belonging to the District Board would be a matter of vital concern to the Provincial Government ... Having regard to the generality of the words used in the Ordinance, we have reached the conclusion that offences, relating to which investigation was taken in hand by the Special Police Establishment in the present case, concerning, as they did, the finances of the District Board, were offences 'in connection with matters concerning the Provincial Government', and, therefore, the Special Police Establishment has jurisdiction to conduct the relevant investigation."' 22. In Javed Iqbal and 2 others v. Federal Investigation Agency and 3 others (PLD 1986 Lahore 424), this Court held that the phrase matters concerning the Federal Government' in the preamble of the FIA Act had a wide connotation and any matter which is of some interest or importance to the Federal Government would fall within its ambit. In Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 1998 Lahore 287) this Court explained that the property interest could be one of the grounds or factors on account of which an institution and its affairs could become "matters concerning the Federal Government and for matters connected therewith". Even in absence of direct property interest, statutory and administrative control of the Federal Government over an institution or an organization may be sufficient to bring the matter in the amplitude of the provision. This view was upheld in Intra-Court Appeal by a learned Full Bench in Asif Saigol and 2 others v. Federatio n of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others ( PLD 2002 Lahore 416 ). {{FOOT NOTE}} 9 Shah Muhammad Khan's case was cited with approval by a Full Bench of this Court in Asif Saigol and 2 others v. Federation of Pakistan through Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 2002 Lahore 416 ) {{FOOT NOTE}}
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23. Section 3 of the FIA Act provides for the constitution of the Federal Investig ation Agency and describes its jurisdiction. It enacts: 3. Constitution of the Agency .---(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit and abetment of any such of fence. (2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of other of ficers as the Federal Government may , from time to time, appoint to be members of the Agency . 24. A plain reading of section 3, supra, shows that the FIA is empowered to inquire into or investigate the offences specified in the Schedule of the FIA Act (which the Federal Government can amend by a notification in the official Gazette under section 6). Albeit the language of section 3 and the Schedule is quite clear , the preamble has raised problems. There is a consensus of judicial opinion that the FIA does not have jurisdiction in matters between private individuals and that there must be some nexus between the offences complained of and the Federal Government' but the courts have dif fered on what matters concern the Federal Government. 25. In Province of West Pakistan and another v. Mahboob Ali and another (PLD 1976 SC 483) the Hon'ble Supreme Court of Pakistan held that "it is the duty of the court to find out the intention of the law maker . The whole purpose of interpretation of statute is to ascertain the intention of the law maker , and to make it effective." Lord Diplock made an extra-judicial comment that "... it is (for) the courts to ident ity the target of Parliamentary Legislation, then proper function is to see that it is hit: nor merely to record that it has been missed.' 26. Purposive construction is one of the important ways to give effect to the legisl ative intent. Justice Fazal Karim writes:12 It appears that 'purposive interpretation' is the modern name of what was, in Maxwell on Interpretation of Statutes, called the mischief rule', which meant that the court should where possible identify the mischief which existed before the statute, and then, if more than one construction is possible, favour that which will eliminate the mischief so identified.' {{FOOT NOTE}} 10 Director General, FIA and others v . Kamran Iqbal and others ( 2016 SCMR 447 ) 11 Speech of Lord Diplock "Courts and Legislators", Birmingham (1965) 12 Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 625 {{FOOT NOTE}} Lord Roskill also favoured purposive construction of a statute in Adnderson v . Ryan, (1985) 2 All ER 355 . 27. The courts in Pakistan also prefer purposive rather than a literal interpretation of statutory instruments.' In Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178 ) this Court held: "The meaning of a statute consists in the system of social consequences to which it leads or of the solution to all possible social questions that can arise under it. These solutions and systems of social consequences cannot be determined solely from the words used, but require a knowledge of the social conditions to which the law is to be applied as well as the circumstances which led to its enactment. Legal rules relate to human life, and grammer and formal logic alone will not enable us to reduce their juridical consequences. The meaning of a statute is, then, a juridical creation in the light of social demands. [Morris R. Conin, Law and Social Order (1933)] ... Therefore, not only is 'purpose' a legitimate aid to the interpretation of a statutory provision, contemporary canons of construction give primacy , if not total supremacy , to…
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