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Petitioner: The STATE VS Respondent: AZMAT ALI and others
Court Name: Intellectual Property Tribunal Judge(s): Shakil Ahmed Abbasi Title: The STATE vs AZMAT ALI and others Case No.:Criminal Case Nos, 1, 7, 11, 15, 20, 21, 22, 24, 46, 48, 54, 56 and Criminal Misc.
Applications Nos, 1 to 12 of 2017 Date of Judgment:2018-01-31 Reported As: 2018 CLD 519 Result: Application allowed Judgment ORDER SHAKIL AHMED ABBASI, PRESIDING OFFICER.---The above Criminal Complaints had been pending at Evidence stages in respective courts of Judicial Magistrate and have been transferred to this Tribunal on having assumed jurisdiction by it in terms of sections 15, 16 and 18 of Intellectual Property Organization of Pakistan Act, 2012. The Accused Persons through their counsel have moved above Applications under section 249-A of Cr.P.C., while raising two important legal grounds, inter alia whereas other grounds relating to merit of each case, are not pressed at the moment. As these two grounds, reproduced hereunder, are common, therefore, all these Applications have been clubbed for hearing and disposal through consolidated order thereon. Ground No, 1. "Regarding challenge to the jurisdiction of FIA in prosecuting offences under the Copyright Ordinance, 1962. "That both the parties are private parties, therefore, the FIA does not have jurisdiction in the subject matter". "That, within the preview/meaning of the Copyright Ordinance, 1962, the so called complainant is not legally competent rather has no locus standi to move/initiate any complaint under Copyright Ordinance 1962". "That the so called complaint itself is beyond the scope and scheme of the Copyright Ordinance, 1962. Hence, has no legal value for the purpose of criminal proceedings." Ground No, 2. "Regarding challenge to the legality of lodging of FIR through attorney of the complainant". "That the FIR has been lodged by attorney of the company which has not been a recognized in the entire scheme of criminal procedure code, and the criminal case can be registered by the
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aggrieved person himself and not through an attorney". The notices were issued to the parties and hearing was fixed from time to time. The counsel of the parties attended and were heard at length. The Learned lead and senior counsel, Mr. Yasin Ali Advocate, in Criminal Misc. Applications Nos, 01, 03, 10, 11, 12 of 2017 opened the arguments. His contentions were adopted and reiterated by other learned counsel, Mr. Waqar Alam Abbasi, Advocate in Criminal Misc. Application No, 02/2017, Mr. Hassan Sabir, Advocate, in Criminal Misc. Application No, 04/2017. Mr. Nadir Khan Burdi, Advocate in Criminal Misc. Application No, 05/2017, Mr. Mehmood Baloch, Advocate, in Criminal Misc. Application No, 13/2017, Mr. Nasir Abbas Malik, Advocate, in Criminal Misc. Applications Nos, 06/2017 and 07/2017, Mr. Nasir Rizwan Khan, Advocate, in Criminal Misc. Application No, 08/2017 and Mr. Bilal Rasheed, Advocate, in Criminal Misc. Application No, 09/2017. 1. As regard ground No, 01, the learned Counsel vehemently challenged the jurisdiction of FIA to prosecute offences under the Copyright Ordinance, 1962 on the ground that very preamble of FIA Act, 1974 allows it to take cognizance of offences against State and not against private individuals or body corporate. He argued that since infringement of Copyright happens to be an offence against a private individual/body corporate entailing Civil/Tortuous liability in terms of monetary damages and compensation, but to make it more meaningful and effective, Criminal remedy by way of making it a cognizable and non bailable offence is also provided. He further argued that Police already had jurisdiction to try such offences on filing of FIR/complaint by private aggrieved copyright owners against the private individuals/corporate bodies/legal persons, in terms of section 74 of the Ordinance Ibid. The FIA, therefore, had no role or jurisdiction as state is not a party as none of its copyright is infringed or violation takes place. The crux of his contention was that where no copyright of state is infringed/involved, the FIA preamble does not permit it to assume jurisdiction to prosecute copyright offences despite an entry vis-a-vis offences under Ordinance Ibid having been made in its Schedule. He accordingly prayed to declare its assumption of jurisdiction and all actions so far taken by it as illegal and ultra vires of its own preamble. In this connection he relied upon the following reported and unreported case-law of Superior Courts. 1. Messrs Thar Production v. Deputy Director FIA (Writ Petition No, 1007/2007) 2. Kamran Iqbal v. D. G FIA and others (PLD 2009 Lahore 137). 3. DG FIA and others v. Kamran lqbal and others (2016 SCMR 474) 4. Muhammad Farooq Umar v. Government of Pakistan and others (2006 YLR 3142) 5. The State through DAG v. Muhammad Ameen Haroon and 14 others (2010 PCr.LJ 518) 2. The learned Counsel further argued that the Judgment of Lahore High -Court (Multan Bench) and Sindh High Court, Karachi, on the subject still hold field insofar as those have not been overruled vis-a-vis the offences under the Copyright Ordinance, 1962 by the Honorable Apex Court. As such, assuming jurisdiction by FIA over Copyright Offences may be held to be illegal, the action taken by FIA in this regard may be declared as Coram Non-Judice and consequently all FIRs lodged investigation made and cases prosecuted by them may be declared to be unwarranted under the law. Conversely, exercising his right of rebuttal, the learned Prosecutor FIA vehemently opposed the contention of learned counsel for accused persons. He argued that FIA rightly assumed jurisdiction of trial of offences under the Ordinance Ibid as the same having been brought through an entry in the schedule of the FIA Act 1974. He further argued that realizing seriousness of infringement and violation of Copyright especially of foreign copyright owners/individuals corporate entities, the Federal Government thought it expedient and perhaps under foreign pressure of big film producers, book and software publishers to bring copyright offences within its fold in addition to Police Authorities holding concurrent jurisdiction, as it being member/signatory of International Conventions and Agreement especially on Intellectual Property Rights including the Copyright whereby, it was obligated on each State/Member Country to make
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enforcement of copyright effective and meaningful. 3. I have given anxious thought to the arguments advanced by learned counsel on both sides and have carefully gone through the cited case-law at the bar. I find myself in agreement with the contentions of learned counsel of accused persons and hold that FIA has no jurisdiction to prosecute offences under Ordinance Ibid and all its actions so far taken, proceedings initiated 'and carried on are declared to be illegal and without lawful authority. I am fortified in my view by relying upon the cited Judgment of Sindh High Court and un-reported Judgment of Lahore High Court (Multan Bench), which according to my humble opinion are still holding field as said Judgments have not been overruled by Apex Court as far as holding of FIA jurisdiction over Copyright Offences as illegal is concerned. However, it will be worthwhile to go into back ground of this issue for which I will venture to dilate upon each case-law, while concurring with the ratio and wisdom of Superior Courts encompassing each aspect of the matter in detail, insofar as Copyright Offences are concerned and whereby the arguments of both sides advanced before this Tribunal have already been considered by Hon'ble Superior Courts. (a) In unreported case of Messrs Thar Production v. Deputy Director FIA (Case No, W.P. No 1004/2007), the Hon'ble Lahore High Court ruled for the first time vis-a-vis the jurisdiction of FIA over Copyright offences and was pleased to hold as under: "On the other hand it has been argued that it is not denied that the offences punishable under the copyrights Ordinance, 1962 are given in the schedule of Federal Investigation Agency Act, 1974 but jurisdiction of FIA to take cognizance of the offences under the Ordinance arises if the matter comes under section 13(D) of the Ordinance, 1962 which provides "In case of the Government work, the Government shall in the absence of any agreement to the contrary, be the first owner of the copyright therein; that according to the preamble of the Federal Investigation Agency Act, 1974, the FIA can take cognizance of offences committed in connection with the matters concerning with the Federal Govt. and for matter connected therewith and that the issue in the present case is between the private parties and, therefore, the FIA has no jurisdiction to take cognizance in the matter and the concerned local police authorities are competent to take cognizance in to the matter. In this respect, reliance is placed upon Iftikhar Hussain and others v. Government of Pakistan and others (2001 PCr.LJ 146), Murree Brewery Co. Ltd. Pakistan through the Secretary to Government of Pakistan and others (PLD 1972 SC 279), Muhammad Hussain Patel v. Ghaffar Wali Muhammad and others (PLD 1972 Kar. 421) and Syed Akhlaque Hussain v. Habib Ismail Bajwa (PLD 1969 Lahore 563)" It was further held by Hon'ble Court that: "Although the offences under the Copyright Ordinance, 1962 are included in the Schedule of Federal Investigation Agency, Act, 1974 but the local police have also got concurrent jurisdiction in the matter and they can even register the cases under the Copyright Ordinance 1962. The contention of the respondent that the FIA can only entertain the application filed by the Government under section 13(d) of the Copyrights Ordinance, 1962 read with the preamble of the Federal Investigation Agency Act, 1974 is fully supported by the Judgment of the Division Bench, of this Court in case titled Iftikhar Hussain and others v. Government of Pakistan and others (2001 PCr.LJ I46)" "In view of the above prospective, the respondents had rightly refused the registration of a criminal case against respondents Nos, 3 to 5 as the issue in the present petition is between the private parties keeping in view the preamble of the Act, 1974 and the Judgment of the Division Bench of this Court reported in (2001 PCr.LJ 146). Therefore, this writ petition is dismissed". It is pertinent to point out that no appeal against this order was filed by FIA before Apex Court, as such, attained finality, yet FIA continued to prosecute copyright offences while the same offences were in issue before the Hon'ble Court. (b) In reported case cited as PLD 2009 Lahore 137 (Kamran Iqbal v. Director General FIA and others)
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the Hon'ble Lahore High Court held the similar view although in respect of Banking Offences that: "I have heard the Learned Counsel for the parties and have perused the record. I am of the considered view that the Federal Investigation Agency has no jurisdiction whatsoever to register and investigate the instant case for the reason that under section 3 of the FIA Act, 1974 the agency can investigation into offence as given in the Schedule attached to the Act and as per latest amendment which is quoted hereunder:-- S.R.O. 977(I)/2003---In exercise of the power conferred by section 6 of the Federal Investigation Agency Act, 1974 (VIII of 1975) the Federal Government is pleased to direct that the following further amendment shall be made in the schedule to the aforesaid Act namely:- "In the aforesaid Schedule, in entry (1) after the figure and letter "489E" the comma, figures and letter "489F" shall be inserted (F. No, 1/18/97 FIA). "Section 489-F has duly been incorporated as per above quoted notification in the FM Act, 1974. As per section 4 of FIA Act, 1974, on those cases where offences are alleged to have been committed by a public servant as define in section 21 of the P.P.C. or those offences are allegedly committed in connection with the matter pertaining, to the Federal Government or the same are committed by the employees of the corporation setup, controlled and administrated by Federal Government, but I am afraid in the instant case situated is altogether different, the petitioner had established a private concern which is neither affiliated with any of the Federal Government Organization nor has any concern directly or indirectly with any of the Federal Government Department, therefore, the petitioner being the owner of private concern is not liable to be tried or investigated by the FIA jurisdiction of FIA is restricted only to the Federal Government Employees as enunciated in section 21 of the P. P . C. " It was further held by Hon'ble Court that: "Section 489-F, P.P.C. is no doubt Schedule Offence as narrated in the above Gazette notification but it pertains to only Federal Government Employees. Since it has been established that the petitioner is a private concern and his private concern has no concern with any of the Federal Government Departments, hence FIR registered against him by the FIA authorities is illegal and without jurisdiction. Logic behind incorporating section 489-F, P.P.C. in the Schedule offence pertaining to FIA Act, 1974 is that any of the employees of the Federal Government or any organization attached or affiliated with the Federal Government shall be tried under the said provision of law. Moreover, investigation and submission of Challan in the trial Court emanating out of the said FIR is also illegal and without jurisdiction. In this context, 1 am fortified by DB judgment of this Court reported as Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others 1999 PCr.LJ 584 and while accepting this petition declare the entire proceedings comm non judice and also being strengthened by the judgments reported as Haji Muhammad Yousuf v. M. Abbas Khan and others (PLD 1968 Lahore 482) and (1994 SCMR 798) quash the aforesaid FIR as well as all subsequent proceedings emanating from the said FIR." (c) In this case, appeal against this order as per serial (2) above, filed before Hon'ble Supreme Court by FIA, the ruling of Lahore High Court was upheld vide Apex Court Judgment cited as 2016 SCMR 447 (D. G. FIA v. Kamran Iqbal and others) holding the jurisdiction of FIA even in Banking Offences as illegal. As such, the Apex Court Judgment attained finality. The Apex Court held as under: "There is no cavil to the proposition that the FIA has been established/constituted for Investigation of certain offences committed in connection with matter concerning the Federal Government and in connection therewith. Such is discernable from the preamble of the Federal Investigation Agency ("The Act"), which read as follows:- "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain offences committed in connection with matters concerning the Federal
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Government and for matters connected therewith". "Indeed, preamble to a Statute is not, an operative part thereof. However, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan, through the Secretary Government of Pakistan and others (PLD 1972 SC 279). It is equally well established principle that while interpreting a Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the case". The Apex Court finally held the view that: "Keeping in view the intent of the Act as spelt out from the preamble and the fact that through the Act the FIA, in terms of the Schedule to the Act has been granted jurisdiction and power to act in respect of several offences under the P.P.C. which are cognizance by the Local Police also, and also in order to avoid a conflict of jurisdiction, the only conclusion that the Court may draw is that for exercising jurisdiction in the matter of the offences enumerated in the Schedule to the Act there has to be some nexus between the offences complained of and the Federal Government or else there shall be overlapping of the jurisdiction of the local police and the FIA creating an anomalous situated which certainly is not the intent of the legislature. Another aspect of concern is that though in terms of notification, bearing S.R.0.977(1)/2003, section 489F, P.P.C. has been made a scheduled offence under the FIA Act, but no reasonable classification has been provided for exercising such power and it is left to the discretion of the concerned officer of the FIA to exercise his authority and jurisdiction under the Act in respect of the said offence, which militates against the protection enshrined by Article 25 of the Constitution of Islamic Republic of Pakistan. If a citizen is exposed to the proceedings in respect of an offence lodged against him which could be initiated before more than one forums, a reasonable classification is the requirement of the constitution" "In the present case as noted earlier, the dispute is between two private individuals. It is in respect furely of a business transaction, and there is not the remotest involvement of the Federal or for that matter any Government or any governmental entity and thus in view of the foregoing circumstances, the FIA has had no jurisdiction in the matter. It is now well settled that an investigation launched beyond jurisdiction is mala fide and without lawful authority and is liable to be struck down". (d) In this case cited as 2006 YLR 3142 (Muhammad Farooq Umer v. Government of Pakistan and others) SBLR 2006 Sindh 1188, involving the question of jurisdiction of FIA over dispute between Private parties and the matters pertaining to Federal Government, the Hon'ble Court held as under: A. Federal Investigation Agency Act, 1974--Preamble--- "Jurisdiction--While dealing with the question of jurisdiction of FIA to investigate the cases, observed that FIA could investigate only those cases which were given in the Schedule attached to the Act and the same were alleged to have been committed either by a public servant or were allegedly committed in connection with matters pertaining to Federal Government or by employees of the Corporation set up, controlled and administered by the Federal Government". B. Federal Investigation Agency Act, 1974---Jurisdiction---"The jurisdiction of FIA did not extend to investigate into cases between the private person or offences committed by private limited companies. Investigation carried on and Challan submitted in Court by the FIA in such cases was declared to be without jurisdiction". C. Federal Investigation Agency Act, 1974---Jurisdiction--- "Dispute between private persons--- FIA summoning the Petitioner repeatedly and holding enquiry into the alleged offence on -the basis of the complaint filed by complainant Muhammad Yousaf Mandviwala on behalf of his brother Azeem Mandviwala is without jurisdiction as the dispute is basically between two Private
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Parties namely the Petitioner and the said Azeem Mandvivalla action inquiries without jurisdiction as the dispute is basically between the two private parties". (e) In another case of Karachi Bench of Sindh High Court cited as 2010 PCr.LJ 518 (The State through DAG v. Muhammad Ameen Haroon and 14 others), the Hon'ble Court held the jurisdiction of FIA over Copyright Offences as illegal and ultra vires after detailed discussion on each and every aspect of the matter, as under: "Fazal Dad v. Col. (Retd.) Ghulam Muhammad Malik and others PLD 2007 SC 571. It has been held in the instant case that it is the trite principle of interpretation of statute that in order to determine the scope of statute the preamble is always a key to interpret such statute to bring the offence within the ambit of a particular statute. It is essential to examine that offence should have nexus with the object of the act and is covered by its relevant provisions." It was further held that: "From a reading of the above, it becomes obvious that the object of framing the law of FIA was to set-up an Investigating Agency to investigate into offences committed in connection with matters concerning Federal Government and matters connected therewith. Though the preamble is not an operative part of the statute but nevertheless it does provide a useful guide for finding out the intention of the legislature and therefore, cannot be ignored while interpreting the law. In this view of the matter, I am guided by the case of Hon'ble Supreme Court i,e, Murree Brewery Co, Ltd v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279. The ratio of this judgment was also followed by a Division Bench of Lahore High Court in the case of Iftikhar Hussain and others v. Government of Pakistan 2001 PCr.LJ 146. The combined reading of the preamble to the Act, Section 3 and Section 6 of the FIA Act read with Schedule attached therewith, goes to show that there has to be some nexus, even though remote and indirect, between the acts complained of and the Federal Government in order to attract jurisdiction of the FIA. It is pertinent to mention that the scope and jurisdiction of the FIA vis-a-vis the normal investigating agency i,e, Police, is concurrent in nature and the provision of FIA Act, prevail upon normal law under specified circumstances as provided, in the Schedule to the Act itself. FIA Act, being a special law will prevail over the normal law in such circumstances. Since after insertion of Entry No,26 by SRO No,321(I)/2005 dated 16th April 2005 offences punishable under the Copyright Ordinance, 1962 were made part of the Schedule, therefore, the FIA was authorized to take cognizance of violation of Copyright Ordinance, 1962. Since there was no provision inserted either in the FIA Act, Copyright Ordinance, or P.P.C. and Cr.P.C., ousting the jurisdiction of the Police to take cognizance of offence under Copyright Ordinance, 1962, it emerges that the jurisdiction of FIA is concurrent in nature. If we make a combined reading of the FIA Act, and the relevant provision of Copyright Ordinance, it further appears that the cases involving infringement of Copyright between private parties involving civil disputes are to be dealt and investigated by the normal police, whereas the cases which involved infringement of Copyright of some Government work and the offences relatable to the Government are to be dealt and investigated by FIA. Any other interpretation in this regard will lead to overlapping of the jurisdiction of two agencies which cannot be the intent of legislature. In view of herein above, I am of the view that FIA has jurisdiction to proceed in the cases pertaining to violation of Copyright Ordinance, 1962 particularly after insertion of Entry No,26 in the Schedule to the FIA Act, 1974. However, the FIA having been given the concurrent jurisdiction, can take cognizance of such cases where violation of some Government work is involved, and had no jurisdiction in respect of infringement of Copyright between private parties or disputes, which are civil in nature." It was also held by Hon'ble Court that: "In view of herein above, I am of the view that for establishing infringement of copyright there has to be some owner/claimant of the original work. Reverting to the facts of the instant criminal
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acquittal appeals it appears that in Criminal Acquittal Appeal No,213 of 2008 though there was complainant who was claiming copyright through assignment, but later on such complainant withdrew from such claim hence, the case falls into the category where there is no owner or claimant of the copyright. Similarly, in Criminal Acquittal Appeal No,202 of 2008 there is no owner or claimant of any purported copyright, whereas cognizance has been taken by the State through FIA. On perusal of FIR and challan submitted before the learned trial Court, it does not reveal as to whether alleged infringement of copyright is in respect of Government work or is relatable. to Government work. Similarly, it does not reveal as to how provision of sections 53 and 54 read with Section 66-B of the Copyright Ordinance are attracted in the instant case as neither any notification in terms of sections 53 and 54 of the Copyright Ordinance has been issued by Central Government nor there has been any provision of law cited whereby suo motu cognizance can be taken by the FIA in terms of Copyright Ordinance for the alleged infringement of Copyright and violation of the provision of Copyright Ordinance. Under the circumstances, the orders passed by the learned trial Court in both the cases do not suffer from any factual impropriety and legal defect. In view of herein above, I find no merits in the instant Criminal Acquittal Appeals, which are hereby dismissed with no order as to cost." 4. It has been informed by the learned…
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