1. SHAKIL AHMED ABBASI, PRESIDING OFFICER.---By this order I will dispose of Application under section 249-A, Cr.P.C. filed on behalf of both the accused persons through their Counsel.
2. The facts of the prosecution case in nutshell are that the complainant Khurum Zakiuddin who was the authorized agent of the Casio Company made an application against the accused persons for making, illegally trading/assembling of Counterfeit watches of the said Company. Such application of the complainant was received by FIA Authorities on 13.1.2016 As such, on 23.01.2016, FIR was lodged against the accused persons and raid was conducted and accused persons were caught hold red handed having in possession of Counterfeit watches worth of Rs, 10,000/-. The FIA Authorities have taken action against the accused persons while they were committing violation of section 66-A (the correct applicable section 66 should have been mentioned) of the Copyright Ordinance, 1962, as such both the accused persons were produced before Judicial Magistrate and two days remand was granted. During remand both the accused persons were released on bail by the Trial Court and subsequently after completing all the investigation accused person were challaned before the Court of Judicial Magistrate (XVth) South (holding charge before transfer of the case to this Tribunal) by the FIA Authorities as such necessary documents were supplied to them.
3. Heard Mr. Bilal Rasheed Advocate, counsel for accused persons on Application under section 249-A ibid. He argued that accused persons are innocent, respectable members of business community and are being falsely implicated into this Criminal case by the complainant in connivance of FIA officials just to cause harassm ent and obtain pecuniary advantages from the accused persons.
4. Further he contended that whatsoever material was seized by the FIA authorities, accused have the computerized generated bills for the sale and purchase of those Casio watches. He further argued that accused have not manufactured the seized watches in violation of any provision of Copyright Ordinance, but as per receipt the seized watches were purchased from authorized person of the Casio company and the same were also furnished to the I.O. on investigation. Hence they committed no offence. He further urged that the matter is pending before the Hon'ble Court (now before this Tribunal) since January 2016 and complainant never appeared before the Hon'ble Court (now before this Tribunal) for the evidence, which shows that the lack of interest of complainant because the complainant knows that the accused has not committed any offence and he has filed a false case due to professional grudges. Furthermore, the goods which were seized by FIA authorities are still in custody of FIA. Lastly he prayed that this Tribunal to acquit the accused persons from the charge in the above case, as the charge is groundless and there is no probability of being convicted. The learned Counsel did not press the grounds Nos, 3 to 8 regarding wrong mentioning of provision of section 66-A and on the meaning of Copyright as per section 3 of the Copyright Ordinance Ibid, as such, I need not dilate upon those.
5. Mr. Bakhtiar Channa, learned Assistant Director Legal FIA, vehemently opposed the Application of the accused persons being devoid of the specific ground of Application under section 249-A, Cr.P.C. He further argued that the recovery was effected from the hand of the accused persons.
6. Hence, he requested for dismissal of instant Application.
7. I have considered with conscious thought the arguments advanced by both the Counsel and carefully examined the record of the case with their assistance. I tend to agree with the arguments advance by A learned counsel for accused persons which merit their acquittal under section 249-A ibid. Even otherwise, on perusal of record, following deficiencies/defects are noted to demolish the Prosecution case casting many doubts, the benefit of which should go to the accused persons.
8. Some of which are as under:
(a) It is found from the record that the case is pending for last more than one year for recording of evidence of Prosecution witnesses, but the same could not be produced for one reason or the other, causing delay in disposal of matter and most of the time delay is caused due to non- attendance of the prosecution side to produce witnesses and lead evidence;
(b) That the charge along with the pleas of accused persons is conspicuously found missing from the R & P of court file nor the same has been mentioned in the index sheet as well as the same have nowhere been numbered;
(c) That as per mashirnama no independent witness is found mentioned in it, nor as per list of prosecution witness no independent witness is found as cited as such mandatory compliance of section 103 bid is not made.
(d) The Prosecution has not taken any action against the supplier/manufacturer of the alleged infringed/counterfeit product as being pointed out by the accused persons to the I.O. during investigation.
(e) More importantly on perusal of record, it is found that the complaint is being made for violation of copyright of the complainant, whereas no evidence is being filed of its registration in the name of the complainant. Simply the copy of Application for registration is being filed which does not amount to registration to create a prima-facie evidence of ownership. Although registration of a copyright is not compulsory, yet no other evidence is being furnished to prove the creation and the use of the alleged infringed/counterfeit artistic work /logo of the complainant. Reliance of the prosecution in this regard upon Letter of Casio Company to the effect of owning the Copyright is immaterial to prove its bona fide ownership beyond reasonable doubt as the same is not being supported/enclosed with the alleged infringed/counterfeit artistic work/Logo under the title "Casio G-SHOCK". Even on factual ground while examining the case property in presence of both the counsel it is found that the artistic work/logo "Casio EDIFICE" is not found mentioned/appearing on the suspected seized case property, as mentioned in FIR and the Charge sheet. Interestingly the artistic work/logo appearing on those seized watches is entirely different from suspected logo i,e, "Casio Edifice". As such, the same is quite different artistic work/logo and also under a different title i,e, "Casio G-Shock" and distinguishable not at all likely to cause any deception or confusion to an unwary purchaser. The Prosecution should have examined this crucial and material aspect of the matter under the scheme of copyright law and given its finding in the charge sheet. Further the Prosecution should also not be influenced/misled by Trade Mark Registration under the Trade Marks Ordinance, while registering a case and placing charge sheet vis-a-vis offence of infringement/violation of a Copyright under the Copyright Ordinance.
9. In view of the above discussion and finding of facts, it is held that the Prosecution has miserably failed to make out its case beyond many reasonable doubts, as such no offence is found committed under section 56 ibid attract provisions of section 66 Ibid. Accordingly, the Accused Persons merit acquittal from the offence. Resultantly, the Application under section 249-A ibid is allowed. The accused persons are on bail, their bail bonds are cancelled and sureties stand discharged. Further, although the charge is not found on record and even if could be there it would have been groundless on the basis of which there would have been no probability of conviction of Accused Persons.
10. As regard the case property the accused persons may move an Application for return of it in terms of section 517 ibid which may be decided on its merits.