' IJAZ AHMAD CHAUDHRY, J.--- Through this application under section 497(5), Cr.P.C. The petitioner seeks cancellation of bail granted to respondent No,1 by the learned Additional Sessions Judge, Lahore vide order, dated 11-10-2005 in case F.I.R. No,694 of 2005 dated 20-9-2005, registered under sections 66 and 67 of Copyright Ordinance, 1962 at Police Station Gulberg-HI, Lahore on the statement of Ijaz-ul-Haq, the complainant.
2. The brief facts of the prosecution case narrated in the F.I.R. Are that the complainant is agent of one Nisar Sarwar, who is representative of Bloomsbury Publishing Company, which is either owner of literature, drama, software, theatre and cinema or has the licence of ownership rights and this company releases its works. Moreover, all these works are registered and have a protection in Pakistan under the International Treaty and its sale, distribution to the public without permission is a cognizable and non-bailable offence. According to the allegation levelled in the F.I.R. Messrs Variety Books, which is being run by respondent No,1, was selling the novel "Harry Potter" after getting it printed unlawfully and in proof of the allegation a book was purchased from the said shop, which is not genuine. Receipt of the books has been produced before the police. Hence this case.
3. The learned counsel for the petitioner contends that the respondent was selling a novel "Harry Potter" after getting it published unlawfully, which is violation of Copyright Ordinance, 1962. It is further contended that learned Additional Sessions Judge has granted bail to the respondent vide order, dated 11-10-2005 by relying upon 1999 M LD 844, but vide order, dated 1-9-2005 he had rejected the bail of Altaf Ahmad Khan, etc. Who were also accused in such-like offence while considering the offence as non-bailable in that particular case. It is also contended that bail before arrest has been confirmed without considering that there was no mala fide or ulterior motive on the part of the complainant for false implication of the respondent, but bail before arrest has been granted without considering the criteria laid down by the superior Courts in this regard.
4. The learned counsel for respondent No,1 contends that bail before arrest has not been granted while considering that offence was bailable. He further contends that the book in question has not been notified by the Federal Government for giving protection to the Copyright of the said Book and name of the book is not mentioned in the authority reference given to the Royal Bloomsbury Publishing Company. He further contends that there is no evidence on record that said book was not genuine, that investigation has been completed and challan has been submitted in the Court, which has taken cognizance thereof. He has relied upon 2005 PCr.LJ 1773 to contend that in every case to show mala fide of the complainant or the police is not a necessary ingredient for grant of bail before arrest, but firstly the prosecution is bound to make out a prima facie case against the accused.
5. I have heard the learned counsel for the parties and perused the record.
6. A perusal of section 66 of the Copyright Ordinance, 1962 reveals that for making out this offence the prosecution must be possessed with the evidence that the accused had acted with the knowledge that the product was protected by copyrights and he was not authorized to sell the same. Mere production of copy of the novel before the police that it was purchased from the shop of the respondent is not sufficient to prima facie make out a case against. The accused. The guilt of the respondent will be determined by the learned trial Court after recording evidence of the parties. The offence under section 67 (ibid) is also not attracted as no material was recovered by the police to show that the said book was being printed by the respondent-accused. Even otherwise the S.-I. Present with record has stated that after completion of the investigation, the challan has been submitted in the Court, which has taken the cognizance. In view of this situation, the sending of the respondent-accused to jail, will not be beneficial to the prosecution for any further development in the investigation. The offence at the most is punishable with three years imprisonment and grant of bail in such-like cases is a rule and refusal is an exception. The respondent-accused is not previously involved in such-like cases. No doubt in cases of pre-arrest bail the necessary ingredient is to show mala fide of the complainant for false implication of the accused, but this case is not of such nature. Here the complainant might have no mala fide against the accused-respondent, but there can be clashment on the business point of view. In such cases, the Courts can see the facts and circumstances before passing any order to curtail liberty of the citizens, who otherwise are doing their business lawfully to earn their livelihood. If the prosecution succeeds in proving the case against the accused-respondent, he can be convicted and sentenced under the law, but at this stage, I do not see any reason for cancellation of bail granted to the respondent-accused by the Court of competent jurisdiction, when there is no allegation that he has misused the said concession in any manner and the criteria for cancellation of bail is entirely different than grant of bail. This petition being devoid of any merit is dismissed.
7. Before parting from this order, I am constrained to observe that Mr. Khaliq-uz-Zaman, Additional Sessions Judge, Lahore has granted bail to the respondent vide order, dated 11-10-2005, but on the other hand he had rejected the bail of Altaf Ahmad Khan, etc. (accused) vide order dated 1-9-2005 on the similar facts and circumstances and it has been pointed out by learned counsel for the petitioner that contradictory orders have been passed by the said learned Additional Sessions Judge, Lahore. The learned Sessions Judge, Lahore is directed to hold an inquiry into the matter by calling for reply from the said learned Additional Sessions Judge and ascertain that whether there was any mala fide in passing of such contradictory orders. The report shall be submitted to this Court through the Additional Registrar (Judicial) within two months.