1. SHAKIL AHMED ABBASI, PRESIDING OFFICER.---By this order, I intend to dispose of the above Cr.
2. Complaint at Challan stage.
3. The facts of the instant case are the investigating officer S.I.O/Inspector Liaquat Ali Jutt of Police Station Arambagh has submitted the Charge Sheet under section 173, Cr.P.C. for taking cognizance through the Assistant District Public Prosecutor, I have heard the learned counsel for complainant, learned A.D.P.P for the State and learned Counsel for accused person and the Investigating officer as well as have gone through the available case record, especially the complainant's registered/copyrighted artistic work and of the accused's allegedly infringed artistic work.
4. Initially this matter was pending before the Judicial Magistrate No. XII (South), Karachi, having jurisdiction of Arambagh Police Station Karachi, thereafter, due to establishment of this Tribunal and transfer of jurisdiction, the matter was transferred to it for hearing and decision in the matter as per law.
5. The contention of the complainant's counsel was that the present FIR was lodged by one Shahid Zafar claiming to be representative of Ms. Dollar Industries Pakistan on the basis of written complaint made by complainant to S.S.P who ordered for the registration of the FIR. It is also urged by counsel for the complainant that in the FIR complainant is representative of Dollar industries Pakistan having factory at D-85, SITE, Karachi and manufacturing and selling top quality pencils and other products and with logo and monogram, design, color scheme as well as size and shape registered as artistic work under the Copyright Ordinance 1962.
6. It is further urged by the counsel for the complainant that some other persons/shopkeepers/distributors are selling similar pencils of similar color schemes to their brand in the market for which they have no authority. On the basis of complaint lodged by complainant the police on 26/01/2017 raided the shop of the accused and found branded/similar/ duplicate pencils hence the act of the shopkeeper/accused is an offence falling under section 56/66/67 of the Ordinance ibid. Lastly the counsel for complainant contended that this Tribunal have no authority/power to disagree with the conclusion of I.O. submitted in shape of Challan under section 173, Cr.P.C. and it is binding upon this Tribunal to take cognizance of the offence as suggested by the I.O. in Challan in terms of section 190, Cr.P.C.
7. As the counsel for the complainant has put objection upon authority of this Tribunal, prior the deciding the case, this point is necessary to be determined/answered first. It is held by Superior Courts in number of cases that trial court was not bound by report submitted by the police under section 173, Cr.P.C. and it might or might not agree with the conclusion reached by investigating officer, moreover from perusal of Criminal Procedure Code reveals that there is no specific provision in it, under which question of cancellation of registered criminal case can be dealt with, however, the wording of section 173(3), Cr.P.C. clearly indicates that it gives inherent powers to the Magistrate to cancel the case.
8. This Tribunal being also empowered with power of magistrate can utilize Administrative and supervisory power and may be agree or disagree with the conclusion of the I.0 under section 173(3), Cr.P.C. and it being administrative power does not hit by the doctrine of "res judicata" or doctrine of " Functus Officio" and both the doctrines are not to apply to prevent exercise of administrative power. This point is also clearly discussed by the Superior Courts in number of case i.e. Syed Paryal Shah v. Behram Ali and 3 others 2012 PCr.LJ 189; Gul Muhammad v. The State 2015 PCr.LJ 1329; NLR 1991 Criminal 725, Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Muhammad Shahid Khattak and another v. The State PLD 2013 Sindh 220; Zafarul Haq Khan v.
9. Muhammad Amin and others PLD 2005 Karachi 3751; Jamshed alias Jammi v. The State 2004 PCr.LJ 1239; Akhtar Ali Khan v. The State PLD 2003 Karachi 433 and Anwar Shamim and another v.
10. The State 2010 SCMR 1791.
11. Further, it is clear from the bare perusal of record that I.O. of the case failed to record the statement of witnesses under section 161, Cr.P.C. and without fulfilling the requirement of law filed charge sheet No. 22/2017 on 06.02.2017 before this Tribunal, whereas the I.O. was directed to proceed according to the law.
12. On facts during the proceeding the letter of The Deputy Registrar of Copyright addressed to the I.O. came on record in which the Deputy Registrar specifically informed that file F/21-1905/2016 was in the name of Mr. Imran Ghani, Rizwan, Rashid Aziz, Khalid Aziz, Riazuddin, Ikhlas Ahmed partners of M/s. Dollar Industries Pakistan regarding title work of Dollar My Pencil WOW (triangle shape) having status as registered under registration No. 35272. The Deputy Registrar further informed the I.O. that the title of "WOW" does not grant any monopoly right to anyone. The Copyright Office also registered the artistic works under title "WOW" of different applicants having no similarities in the respective artistic works. The Deputy Registrar further pointed out that file No. F/2152232/2016 was in the name of Danish Nazeer proprietor Al-Basit Stationery World in respect of title work "Stark WOW" and "WOW the shining stars" with status Registered under No.35917.
13. The Deputy Registrar also clarified that Title/name/brand/ marks given by applicants in their respective application forms or appearing on work is not registered but the Expression/Style/Getup of the work is registered/protected under the copyright law.
14. That during the hearing of the said matter several times the complainant as well as counsel for the complainant were directed to produce extract of their artistic work alleged to have been copied/infringe by accused. However, inspite of several opportunities provided to the them and his counsel they failed to produce such Extract or any other evidence for the purpose of comparison of 2 artistic work of both the parties.
15. On the other hand the counsel of accused person filed written arguments along with copy of General Power of Attorney executed by M/s. Dollar Industries in favour of Mr. Abdullah Feroz, one of Director of Company, and urged that as per contents of power of attorney, attorney has no power to delegate such powers or appoint any sub-attorney with regard to judgment of FIR or initiating any proceeding on behalf of the company, hence the instant FIR has been registered without any lawful authority by complainant Mr. Shahid Zafar.
16. That counsel for the accused has also brought on record the order dated: 27.02.2017 passed by Intellectual Property Tribunal Lahore where by initially interim injunction was issued in respect of infringement of Trademarks and Copyright titled "Dollar My Pencil WOW" and from passing off his goods, but in final order The Hon'ble Tribunal at Lahore held that "The above discussion show prima facie that the marks of the petitioners and respondent are different visually and phonetically without there being any material similarity, that the word WOW is not dominant feature of their mark and that the petitioners' claim of reputation and prior use require further evidence".
17. That the learned counsel for the accused further brought on record the Order dated 14.09.2017 passed by Registrar Copyright, Karachi on the same issue who also specifically stated/observed that "In view of the above, following is decided since both artistic work are different therefore the opposition of M/s Dollar Industries stands refused".
18. It is further urged by the counsel for the accused that the FIR was lodged on 06.02.2017, wherein the date and time of occurrence is available as 26.01.2017 at 1300 hours, further, it is urged by the complainant in FIR that the company Dollar is manufacturing and selling top quality pencils and other products with logo and monogram design color scheme as well as size and shape of every pencil which are registered with Central Copyright Office, Karachi, but on direction of this Tribunal due to failure of the complainant to furnish extract, the Extract produced by the Deputy Registrar Copyright reflects that the Dollar Company has got registered the said artistic work on 14.02.2017 with the Registrar Copyright, which is even after the registration of the FIR. Hence the statement creates doubt as to commission of offence. It is declared that no offence is made out.
19. In order to appreciate the contentions of the complainant, the tribunal called from I.O. the seized pencils recovered by him from the shop of the accused and examine the same with the pencils being manufactured by the complainant. On examination it is found that the title of work "WOW" is not registered but only the Expression/Style and Getup of the work is registered and in my opinion there is vast difference between the pencils manufactured by the complainant and the goods seized from the accused on comparison of Packing, Color scheme etc of the products. Accordingly, keeping all the facts and view there is not a remotest chance of causing any confusion or deception between the artistic works appearing on the products of the complainant and of the accused as being different from each other. (Annexures A and B).
20. In the foregoing circumstances and facts, I have come to conclusion that there is no material evidence available to connect the accused with the alleged crime. Therefore, exercising powers under section 190 of Cr.P.C. and being fortified by the ruling of the superior Courts on the subject cited as: 1.NLR 1991 Criminal 725 2.PLD 2003 Karachi 433 3.2004 PCr.LJ 1239 4.PLD 2005 Karachi 375 5.PLD 2007 Supreme Court 31 6.2010 SCMR 1791 7.2012 PCr.LJ 189
8. PLD 2013 Sindh 220 and
9. 2015 PCr.LJ 1329, The charge sheet under section 173 Ibid submitted by the I.O. is disapproved and I cancel the present FIR under "B" class, being totally false and bogus evidence leading to filing of FIR. However, taking a lenient view, I have refrained myself to initiate proceedings under section 182, P.P.C. against the complainant.
21. The matter stands disposed of in above terms.