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 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 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) 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 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 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 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 counsel for the applicant/accused that the aforesaid judgment of Sindh High Court was assailed before the Hon'ble Supreme Court in Crl. Appeals Nos, 14-K and 15-K of 2010 (The State v. Muhammad Amin Haroon and others) which was dismissed vide judgment dated 24.09.2010 on merits, whereas, according to learned counsel, the legal issue regarding jurisdiction of FIA in case of violation of copyright was not decided by the Hon'ble Supreme Court in view of the fact that the learned counsel appearing on behalf of the respondent in the aforesaid appeal conceded on the point of jurisdiction of FIA in copyright matters on the analogy of their jurisdiction over Banking Offences held to be legal by Hon'ble Lahore High Court vide their Judgment reported as PLD 2002 Lahore 416, which as stated in Para 3 (c) above, stood overruled by Apex Court vide their Judgment cited as 2016 SCMR 447. Learned Counsel for the parties were, specifically inquired as to whether the judgment of Sindh High Court as referred to hereinabove on the point of jurisdiction of FIA Authorities "in cases involving infringement of copyright between private parties, involving civil disputes are to be default are to be dealt and investigated by the normal police, whereas, the cases which involved infringement of copy right of some government work and the offences relatable to government are to be dealt and investigated by FIA", has been set aside by the Hon'ble Supreme Court in the aforesaid civil appeal or not. In response to such query of Court, learned counsel have candidly conceded that the Hon'ble Supreme Court has not recorded any finding on the above legal issue as it was conceded by the learned counsel appearing on behalf of the respondent in view of the fact that the appeal was otherwise dismissed on merits. It has been further argued by the learned counsel for the applicant/accused that unless, the judgment of High Court is set aside in appeal by the Hon'ble Supreme Court or any finding recorded on legal issue is reversed, the judgment of the High Court holds field and has the binding effect on the subordinate Courts and Tribunal. Learned Prosecutor for FIA and the counsel for the complainant in some of the cases could not dispute the above contention of the learned counsel for the applicant/accused as referred to hereinabove. I am of the humble view that unless decision of High Court on "a legal issue i,e, jurisdiction of FIA in cases involving infringement of copyright between the private parties having no involvement of infringement of copy right of some government work" is set-aside and reversed by the Hon'ble Supreme Court, then such decision remained binding on the subordinate Courts and the Tribunals.
I am fortified in my view with regard to jurisdiction of FIA even in Banking Offences by a recent judgment of the Hon'ble Supreme Court in the case of Director General, FIA and others v. Kamran lqbal and others (2016 SCMR 447), wherein the Hon'ble Supreme Court has been pleased to hold as under:-
(5) "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".
(6) "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 SRO 977(1)/2003, Section 489-F, 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".
(7)
(8) In the present case as noted earlier, the dispute is between two private individuals. It is in respect purely 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".
(9) In the circumstances, we are of the view, that the FIA has had no jurisdiction in the matter and the learned Judge has rightly allowed the respondent's petition. The appeal is, therefore, dismissed but with no order as to cost."
5. I would also like to record my findings regarding contention of the learned Prosecutor FIA to the effect that to empower FIA over Copyright Offences was to meet an obligation on Pakistan under International Agreement/Treaties on Intellectual Property Rights, including Copyright. In my humble opinion such contention is misconceived as none of such Agreements/Treaties cast any obligation on Government of Pakistan to take suo motu/Ex Officio action in local or even in foreign Copyright Infringement matters and assume jurisdiction in every case as if it is an offence against State. Even the latest Agreement on the subject viz: W.T.O TRIPS (Trade Related Aspect of Intellectual Property Rights) Agreement 1994 provides for a voluntary provision to be added in domestic legislation of a member State/Country, if it so desires, to provide for Ex. Officio/Suo motu actions by State in case of Intellectual Property Rights Infringement matters. Those Agreements/Treaties only require providing effective and efficient Administrative, Judicial and quasi-Judicial forums compulsorily to combat menace of Copyright Piracy and Trademark Counterfeiting. Therefore, the Police already available as an Enforcement and Prosecution Agency should have been geared up and made more effective B and efficient to deal with Copyright Offences instead of conferring parallel jurisdiction over FIA, which is meant to deal with/prosecute Offences against State only. One of such measures to make offence of copyright infringement as heinous, the government has already made it cognizable and non-bailable long ago. Even otherwise, the Copyright Ordinance, 1962 by virtue of section 13 (d) takes care of and stipulates such situations where State (Government of Pakistan) may itself be an aggrieved party as Copyright owner, then in such cases only, exercise of jurisdiction by FIA would be proper and legal to act as Prosecution Agency. As such, the argument of Learned Prosecutor in this behalf is repelled. Accordingly, the legal issue stands decided in terms of para 3 above in favour of applicants/accused.
6. The other important ground raised by counsel for accused persons related to the question whether lodging of FIR through attorney of the complainant is permissible under the Criminal Law or not? In this behalf, the arguments were led by learned Counsel Mr. Hassan Sabir Advocate, which were adopted by other learned counsel appearing for other accused persons. The main thrust of their argument was that no situation is visualized under Cr.P.C. enabling an Attorney of the complainant to lodge FIR/complaint on his behalf, as such, such FIR/complaint is a nullity in law and any proceeding thereupon is illegal.
On the contrary the learned Prosecutor for FIA and counsel for complainant vehemently opposed the proposition arguing that despite no enabling provision under Cr.P.C., the special law, viz Power of Attorney of Contract Act may be applied by virtue of which a Principal (complainant) may authorize any agent or Attorney by general or special power to act upon his instructions which may include lodging of FIR/complaint for or on his behalf, in case he is not physically available for the purpose. It was further argued that in case of Foreign Corporate bodies/Corporation/Limited Companies who do not have subsidiaries or liaison offices or franchisees in Pakistan won't be practically able to initiate prosecution in case of violation/infringe of their rights which in this cases are intellectual property rights including copyrights entailing penal remedies by way of prosecution in respective laws. In support of their contention, both the learned counsel have cited following rulings:
(a) PLD 2008, Karachi 342 (Quaid Johor v. Murtuza Ali and another) In this Criminal Law Application the Hon'ble Sindh High Court held that "Criminal Complaint could not be agitated or defended through the Attorney. It was further held that "When query was made to him by the Court to show any law which empowers an attorney to proceed with the criminal case on behalf of the complainant or the accused but he completely failed to point out any law to show that an attorney can prosecute any person on behalf of the attorney. In my humble opinion also in criminal administration of justice, a criminal case or complaint could not be agitated or defended through the attorney."
(b) 2016 MLD 1238 (Muhammad Qasim v. SHO Police Station Khuda Dad, District Dadu and 70 others). In this criminal revision application the Hon'ble Sindh High Court held that: "With regard to plea that in criminal jurisdiction one cannot file direct complaint being attorney, it is worth to add here that in criminal administration of justice every person can bring the law into motion by lodging an FIR. Needless to add that a complaint under this Act is equated with that of an FIR lodged under section 154, Cr.P.C. Reference, if any, can well be made to the case of Inayatan Khatoon v. Mohammad Ramzan'."
"Now let's examine whether an attorney can act as a complainant or a witness in criminal matters or otherwise?. The term 'attorney', legally, in most general sense draws a picture of one who is not speaking for himself but for his 'principal'. As per Black's Law Dictionary (fourth addition) the term 'attorney' is defined as:-- 'In the most general sense this term denotes an agent or substitute or one who is appointed and authorized to act in the place of or stead another. Per Marriam Webster, it is defined as: one who is legally appointed to transact business on another's behalf "Since the 'Criminal administration of justice' recognizes only those as a witness or complainant who either have seen; heard or least perceived any fact towards the offence hence an 'attorney', being not speaking of his own knowledge, would not fall within meaning of 'witness/complainant'.
Thus, an attorney cannot legally, under such status of attorney, file the FIR or a criminal complaint." "Accordingly, I am of the clear view that the plea regarding competency of attorney to file direct complaint is having weight and thus anybody can bring the law into motion but not as an 'attorney' ."
(c) AIR 2009 Supreme Court 422 (Messrs Shankar Finance and Investments v. The State of Andra Pardesh and others). In this Appeal from Indian jurisdiction it was held that:- "This Court has always recognized that the Power of Attorney holder cannot initiate criminal proceedings on behalf of his Principal. In Ram Chander Prasad Sharma v. State of Bihar and another (AIR 1967 SC 349), the prosecution was commenced in regard to tampering of electric meter seals, with a charge-sheet submitted by the police after investigation on a first information report by one Bhattacharya, Mains Superintendent of Patna Electric Supply Co. ('PES Co.' for short).
An objection was raised by the accused that the prosecution was incompetent as it was not launched by a person competent to do so. The said objection was based on Section 50 of the Indian Electricity Act, 1910, which provided that no prosecution shall be instituted against any person for any offence against that Act or any rule, licence or (Para 10 of order thereunder, except at the instance of the Government or an Electric AIR) Inspector, or of a person aggrieved by the same. This Court held [" ...The P.E. S. Co., however, is a body corporate and must act only through its directors or officers.
Here we have the evidence of Ramaswami to the effect that he held a general power of attorney from the P.E.S. Co., and that he was specifically empowered thereunder to act on behalf of P.E.S. Co., in all legal proceedings. The evidence shows that it was at his instance that Bhattacharya launched that first information report and, therefore, it would follow that the law was set in motion by the "person aggcieved". The objection based on Section 50 must, therefore, be held to be untenable."
(d) 2011 Pakistan Cr. Law General 774, Aman Ullah Khan v. The State, in this Cr. Bail Application, the Hon'ble Sindh High Court Held that: "On the question of lodging of FIR the attorney of the complainant is devoid of any merit. It is now a settled proposition that every member of the public has a right to set the wheels of criminal prosecution in motion and there is no embargo for any person to lodge a complaint or to be personally aggrieved."
7. In addition to hereinabove case-law relied upon by the learned counsel for the Parties, I could lay my hands on the following decisions on the issue regarding the validity and veracity of a complaint lodged through attorney, and the ration of such decisions is summarized in the following manner:-
(a) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (West Pakistan)
Peshawar 81 at 100 1 . The Court observed: "it is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case"
(b) Muhammad Hafeez v. Muhammad Hanif Khan and another 1991 MLD 1576 at 1578 A. The Court observed: "It is settled proposition of law that party personality knowing circumstances of the case is duty bound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited"
(c) Muhammad Abid v. Mst. Nasreen Yousuf and others 2004 1999 at 2006 A. the Court observed; "Admittedly the plaintiff in the instant case did not appear in the witness box for his cross- examination to assert his claim, with the result that his whole statement could -not come on record. It is cardinal principle of law and well settled that where a party has abstained from giving evidence in his own case, about the facts in his personal knowledge, presumption would be that the truth lay on the other side...."
(d) The Lahore High Court in the case of Muhammad Siddique v. Noor Bibi PLD 2016 Lahore 140 at 147B and 148 held that an attorney could appear on behalf of a party only in cases where a particular fact was to be proved through documentary evidence as it did not require any personal knowledge. Where the facts are exclusively in the knowledge of the principal, the evidence of the attorney carries no weight and is hearsay. The court observed; "Of course, there are cases where party without examining himself can establish his case possible by examining witnesses who can validly testify and in such a case, a party can give evidence through an attorney holder and such evidence cannot be ignored. For example, where a particular fact is to be proved by production of documentary evidence, the scope for leading oral evidence is very limited and in such a case personal knowledge does not matter. The documents in such a case can be adduced by the party or by his attorney holder as production of the document in evidence does not require any personal knowledge. Be that as it may, in the end, the court has to be satisfied from the material on record whether the case pleaded by the party has been proved or not. If the facts required to be proved are exclusively in the personal knowledge of the principal, the evidence of the attorney holder on those facts would be in the nature of hearsay evidence carrying no weight."
(e) The Indian Supreme Court in the case of Man Kaur v. Hartar Singh Sangha (2010) 10 Supreme Court Cases 512 at 523 para. 18, demarcated the bounders of attorney evidence. The Court held; "(18) We may now summarize for convenience, the position as to who should give evidence in regard to matter involving personal knowledge;
(a) An Attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transaction, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for acts done by the principal Or transactions or dealing of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has not personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder along with can give evidence in regard to the transaction. The frequently happens in case of principals carrying on business through authorized managers/attorneyholders or persons residing abroad managing their affairs through their attorney holder.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney to prove the transaction, and not a different or subsequent attorney holder.
8. In order to appreciate the ratio and applicability of aforesaid judgments to instant cases, with particular reference to the relevant provisions relating to infringement of copy right under the Copy Right Ordinance 1962, it will be appropriate to understand the nature of offence of infringement of copy right as provided under section 66 of the Copy Right Ordinance. 1962 which reads as follows;- "S-66 Offences of infringement of copyright or other rights conferred by this Ordinance, ---Any person who knowingly infringes or abets the infringement of::-
(a) The copyright in a work, or
(ab) the rental rights in cinematographic works and computer programmers
(ac) the rights of performers or producers of sound recording: or
(b) Any other right conferred by this Ordinance, shall be punishable with imprisonment which may extent to three years, or with fine which may extend to one hundred thousand rupees" or with both
9. From perusal of hereinabove provision, it can be concluded that a person can only be convicted under this section, if he acts knowingly to the effect (i) makes of infringing copies, (ii) involved in distribution of infringing copies, (iii) having in his possession any plate for the purpose of making infringing copies, and (iv) cause any work in which copy right submits to be publicity performed. It is pertinent to note that under the Copyright Ordinance 1962, it is the owner or assignee or licensee of a copyright who can feel aggrieved on account of the infringement of that right in a particular work, section 66 of the Ordinance is intended to safeguard the right and interest of such author, assignee or licensee. It is open to these persons to ignore inurnment of their copyright in a work.
Though section 66 of the Ordinance does not contain any word suggesting that only the author, assignee or licensee of the copyright can take criminal action for infringement of copyright.
This section should be read to imply that the pirating person shall be liable to punishment for infringement only if such author assignee or licensee seeks to claim protection of law. If such person, notwithstanding the infringement, does not choose to take any action for the infringement, there is no harm caused to anyone else. The infringement of copyright is not to be regarded as an offence against the society at large, for which any one may move the machinery of criminal law. In fact, the infringement of copyright in a work suggests that the infringed work is of value to the society. Dissemination of parts of such a work by pirating the same by another author can hardly have an adverse effect on the society. Piracy of a work can adversely affect the financial interests of the author or assignee or licensee and therefore, he should alone be held entitled to claim the protection of criminal law. It must, therefore, be held that only the author of assignee or licensee of a work can maintain criminal action under section 66 of the Ordinance for protection of his copyright in that work, so, a joint author may file a criminal complaint for the offence of infringement of copyright or any other right conferred by this Act. But a person, whose copyright or any other right is not infringed by the accused, cannot file a complaint under this section.
Reliance in this regard can be placed on the following judgments of the Indian jurisdiction:-
(i) Nagin Chand v. State 1981 All LJ 1272: 1981 Cr.R 388
(ii) A Susiah v. S Muniswa my AIR 1966 Mad 175: 1966 Cr.LJ 553: (1965) 2 Mad LJ 377; (Ref: lyengar's Commentary on the Copyright Act, 8th Edition)
10. In view of hereinabove legal position, which has emerged from examination of above judgments and the relevant provisions of the Copyright Ordinance 1962. It can be safely concluded that the general principal of criminal law to the effect that "crime can be reported by any person to bring the State machinery into motion" cannot be applied in stricto sensu to the limited provision relating to offences of infringement of copyright or other right conferred by the Copyright Ordinance, for the reason that in violation or Infringement of copyright of a person does not amount to an offence against public at large. Moreover, copyright is personal right of a person having personal knowledge about its existence and violation by any 3rd person, whereas, in terms of section 67 of the Copyright Ordinance, 1962, unless such person feels aggrieved by violation of his copyright, criminal proceedings cannot be initiated by any other person or agency. In the instant cases, prosecution has failed to bring on record any material, which would suggest that the attorneys' through whom such complaints have been filed have the personal knowledge of the act, which could be established through their evidence on oath nor there has been any explanation as to why the owner/assignee/licensee of the copyright has not filed the complaint directly, so that any claim of existence copyright in his favour and its violation by any person could be established through primary evidence.
In view of hereinabove facts and circumstances of the case, I am of the opinion that complaint filed through attorney in the instant matters cannot be considered as valid complaint under the Copyright Ordinance, 1962, nor the criminal proceedings emanating on the basis of such complaint through attorney can be treated as lawful proceedings, therefore, the same are liable to be quashed on this account. Accordingly, second legal issue too decided in the aforesaid terms in favour of the applicants/accused. Resultantly, in all the cases sureties stand discharged and accused persons are acquitted.
11. The upshot of the above discussion is that in light of the findings on both the legal grounds, all Applications under section 249-A, Cr.P.C. moved by accused persons stand allowed and disposed of in above terms.
12. However, this order shall take effect on expiry of statutory period of appeal if not filed after the receipt of this order and in case, appeal is filed, but no stay order is passed by the Hon'ble High Court.