TARIQ SALEEM SHEIKH, J.---Through this judgment I propose to decide Writ Petitions Nos. 3102/2020, and 6749/2020 as they involve identical questions of law .
2. The facts of W.P. No. 3102/2020 are that Respondent Ehsan Ali lodged FIR No. 9/2020 dated 18.1.2020 at Police Station FIA/CC, Multan Circle, against Petitioner Dilawar Khan and three others for offences under sections 60, 66A, 67C of the Copyright Ordinance, 1962, read with sections 109, 420, 468, 471, P.P.C. accusing them of infringing the registered copyright "Triple Five (555)" of his principal, Shaukat Ali, and selling counterfeit tobacco snuff (Naswar) in Sahiwal. The Federal Investigating Agency ("FIA") obtained search warrants from the Senior Civil Judge, Sahiwal, and raided the Petitioner's factory at Puli Chak No.134/9-L, Sahiwa l, and seized a huge quantity of the counterfeit product, raw materials, packaging and some machines. The Petitioner's two brothers, Shehryar Khan and Khushdil Khan, were arrested from the spot who disclosed that it was their family business and the Petitioner and their father Ain-ud-Din were also associated with them as partners. The Presiding Officer, Intellectual Property Tribunal, Lahore, has admitted Shehryar and Khushdil to post-arrest bail and the other accused to pre- arrest bail. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks quashing of FIR No. 9/2020.
3. Writ Petition No. 6749/2020 has also been filed by Dilawar Khan. In this petition he has challenged the jurisdiction of FIA to register FIRs under the Copyright Ordinance, 1962 (the "Copyright Ordinance"), and prayed for a writ of prohibition restraining them from registering FIRs and harassing him and his family .
4. Learned counsel for the Petitioner contends that all matters and complaints related to offences under the Copyright Ordinance are to be dealt with under the Intellectual Property Organization of Pakistan Act, 2012 ("IPO- Pakistan Act"), which is a special law. The FIA has no jurisdiction to register FIRs in respect of the said offences and investigate them. In the alternative, he argues that the FIA can only entertain cases in which there is violation of some copyright of the government. Infringement of copyrights of private parties are beyond its sway . The learned counsel has relied upon Director General, FIA, and others v. Kamran Iqbal and others (2016 SCMR 447), Syed Mushahid Shah and others v. Federal Investigating Agency and others (2017 SCMR 1218), The State through Deputy Attorney-General v. Muhammad Amin Haroon and 14 others (2010 PCr.LJ 518) and Dr. Syed Iqbal Raza v . Justice of Peace and others (2019 CLD 881 ) in support of his contentions.
5. The learned Assistant Attorney General for Pakistan and the learned counsel for Respondents Ehsan Ali and Shaukat Ali Khan have vehemently opposed these petitions. They contend that the Copyright Ordinance is mentioned at Serial No.26 in the Schedule of the Federal Investigation Agency Act, 1974 ("FIA Act"), so the FIA is competent to inquire into and investigate all the of fences punishable under the said Ordinance.
Determination by the Court
6. Intellectual property is usually divided into two branches industrial property and copyright. Industrial property comprises patents for inventions, industrial designs (aesthetic creations related to the appearance of industrial products), trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition.' On the other hand, copyright relates to works of authorship.2 In today's world, protection of copyright and related rights is of immense importance. It is necessary for preservation of national culture and identity and indispensable for international economic cooperation. "Without this, a country may not be able to attract foreign investment in a number of important fields, and may not get access to certain cultural and information products and services in such an obstacle-free manner as it would be desirable for the acceleration of the social and economic development. "3 Pakistan is a party to the following international treaties protecting rights related to copyright: i) Berne Convention for the Protection of Literary and Artistic W orks (Berne Convention). ii) Universal Copyright Convention (UCC Geneva). iii) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). {{FOOT NOTE}} 1 Understanding Industrial Property , https://www .wipo.int>wipo pub 895 2016.pdf 2 Intellectual Property and Developing Countries, An Overview . (December 2003) Available at: https://www .hsdl.org/?view&did=446296 .
3 "The Importance of Copyright and Related Rights for Economic Development with Special Reference to SMEs", WIPO/CR/KR7/05/10. Available at: wino.int/edocs/mdocs/arab/en/wipo cr krt 05/wipo cr krt 05-10.pdf 4 This Convention has lost significance because almost all its members are also members of TRIPS. {{FOOT NOTE}}
7. TRIPS is the most comprehensive multilateral agreement on intellectual property to date and has established a new discipline for member countries. It covers copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organizations); trademarks, geographical indicators; industrial designs; patents including the protection of new varieties of plants; the layout-designs of integrated circuits and undisclosed information including trade secrets and test data.' Every country that wanted to be a member of the World Trade Organization (WT O) had to accept the TRIPS obligations due to "single undertaking requirement." So has Pakistan.
8. The Parliament has enacted IPO-Pakistan Act (XXII of 2012) to establish Intellectual Property Organization of Pakistan (the "Organization") "to provide for institutional arrangement in the State setup, for taking up exclusively and comprehensively all subjects and matters relating to intellectual property rights in an integrated manner and for matters connected therewith or incidental thereto."6 Clause (g) of section 2 of the IPO-Pakistan Act states that "'intellectual property' includes a trademark, patent, industrial design, layout-design (topographies) of integrated circuits, copyright and related rights and all other ancillary rights."
9. IPO-Pakistan Act is a special law and section 39 thereof expressly states that it shall have effect notwithstanding anything contained in any other law for the time being in force. Section 13 describes the powers and functions of the Organization. Clauses (xix) and (xx) thereof are relevant for our present purposes which are reproduced below for ready reference:4
13. Powers and functions of the Organization.--- The powers and functions of the Organization shall be to-
(xix) initiate and conduct inquires, investigations and proceedings related to of fences in the prescribed manner;
(xx) refer matters and complaints, related to offences under the laws specified in the Schedule, to the concerned law enforcement agencies and authorities as may be necessary for the purposes of this Act.
Copyright Ordinance is mentioned at Serial No.2 of the Schedule to the IPO-Pakistan Act. {{FOOT NOTE}} 5 Farzana Noshab, Intellectual Property Rights: Issues and Implications for Pakistan. Strategic Studies, Vol. 21, No.2 (Summer 2001), pp. 61-76, https://www .jstor .org/stable/45242255 6 Preamble of the IPO-Pakistan Act. {{FOOT NOTE}}
10. Section 13(xix) read with section 39 confers exclusive jurisdiction on the Organization to initiate and conduct inquiries, investigations and proceedings related to offences under the laws spec ified in the Schedule. Thus, any person alleging infringement of his copyright must approach the Organization. Then, under section 13 (xx) the latter would refer his complaint to the concerned law enforcement agency or authority . It is thus clear that the FIA cannot entertain any complaint directly and register FIR This has a purpose. The organization is a bulwark against frivolous complaints and undue harassment. It is a specialized body which has the expertise and the requisite data to verify whether there is actually a case of infringement of intellectual property rights under the applicable law. The following observations of the Hon`ble Supreme Court of Pakistan in Messrs Farooq Ghee and Oils Mills (Pvt.)
Ltd. v . Registrar of T rade Marks, T rade Mark Registry and others ( 2015 SCMR 1230 ) are instructive: "A copyright material cannot be allowed to be used as an alternate and or in substitution for the trademark, unless, of course, such copyright in the artistic work was also registered under the Trade Marks Act, 1940. It may be noted that practice of using copyright as a substitute for the trademark was deprecated and defence of the infringer resting on registration of copyright was sternly rejected in large number of cases including cases reported as Tapal Tea (Pvt) Ltd. v. Shahi Tea Co. (2002 CLD 1113), Pak Drug House v. Rio Chemical (2003 CLD 1531 ), as upheld by a learned Division Bench in the case reported as Pak Drug House v. Rio Chemical (2003 CLD 1531 ), Messrs ADT Services AG v. ADT Pakistan (Pvt.) Ltd. (2005 CLD 1546 ), Muhammad Wahid v. Adnan Memon (2010 CLD 450). In most of the reported cases, the courts have rightly desired amendments to prote ct valuable rights and obligations in intellectual property under various statutes regulating such rights and obligation and arrest, misuse and abuse of such statute to the determent of honest and truthful traders and entrepreneurs."
11. The Organization is required to exercise the powers and functions under section 13(xix) of the Copyright Act in the manner prescribed by the rules framed under section 34. It is, however , observed that the requisite rules have not been made. But would this neglect/failure impact the enforcement of the IPO-Pakistan Act, more particularly clauses (xix) and (xx) of section 13 there of ? Previously the judicial opinion was that an Act of the Parliament and the rules form part of a composite schem e and the Act cannot be enforced in the absence of the rules. However , that view has now changed. In Orissa State Prevention and Control of Pollution Board v. Messrs Orient Pape r Mills and another (AIR 2003 SC 1966) declaration of an area as an Air Pollution Control Area was challenged.
Section 54(2)(k) of the Air (Protection and Control of Pollution) Act, 1981, contemplated making of rules prescribing the procedure but the state government had not framed them. The Supreme Court of India held: "Even if the State Government has not framed under section 54(2)(k) Rules prescribing the manner in which an area is to be declared as air pollution control area, the State Government is empow ered to declare any area within the State as an Air Pollution Control Area by notification in the official Gazette. It may, however , be after consultation with the Board and in the manner as may be prescribed. Absence of rules will not render the Act inoperative. The Act under section 19 vests the State Government with power to notify any area, in an official Gazette, as Air Pollution Control Area, but it cannot be said that exercise of such power is solely dependent upon framing of the rules prescribing the manner 1 which an area may be declared as Air Pollution Control Area."
12. In Jantia Hill Truck Owners Association v. Shailang Area Coal Dealer and Truck Owner Association and others [(2009) 8 SCC 492], while considering the question whether the state government could issue an executive order in respect of the matters required to be prescribed by the rules, the Supreme Court of India observed: "It is, however , a well-settled principle of law that even in a case where the statute provides for certain things to be done, subject to rules, any action taken without framing the rules would not render any (sic that) action invalid. If a statute is workable even without framing of the rules, the same has to be given effect to. The law itself except in certain situations does not envisage vacuum."
13. In my opinion, if Respondents Ehsan Ali and Shaukat Ali had any complaint against the Petitioner regarding infringement of copyright, it was incumbe nt on them to approach the Organization in the first instance. They could not directly lodge FIR with Police Station FIA/CC, Multan Circle. Inasmuch as the merits of their claim have not been argued before me, I would not go into them. '
14. The second moot point is the nature and extent of jurisdiction of the FIA in respect of the offences under the Copyright Ordinance.
15. FIA is a federal force constituted under the Federal Investigation Agency Act,1974 whose preamble reads as follows: "Whereas it is expedient to provide for the constitution of a Federal Investigation Agency for the investigation of certain of fences committed in connection with matters concerning the Federal Government, and for matters connected therewith."
16. Preamble is a part of a statute though not its operative part. IB Nevertheless, it provides a useful guide to find out the legislative intent. Coke said: "The preamble of the statute is a good mean s to find out the meaning of the statute, and as it were a key to open the understanding thereof."'
17. In Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Governme nt of Pakistan, Works Division and 2 others (PLD 1972 SC 279) the Hon`ble Supreme Court of Pakistan held that "the preamble is a legitimate aid in discovering the purpose of a statute." In Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236) a Division Bench of the Sindh High Court held that preamble is the gateway to any statute; it is bedrock to understand the scope, purpose and object to any statute." Similarly , in Kamil Khan Mumtaz and others v.
Province of Punjab through Chief Secretary , Government of Punjab, Lahore and others (PLD 2016 Lahore 699) a Division Bench of this Court ruled: "A preamble is, therefore, a window to the main statute. Although the preamble does not control the main enactment, it certainly gives an inkling of the intention of the legislature and as to the policy of the Act. The concept relating to the policy of the Act is of param ount importance and all interpretation must be done in accordance with the policy and the intention of the legislature found therein."
18. Sometimes the purpose of the statute is not discernable from the preamble. In such a situation the court must look at the whole of it to find out the legislative intent. Maxwell on Interpretation of Statutes8 refers to the following observations of Lord T enterden in Doe v . Branding, (1828) 7 B & C 643 : "The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the statute. The evil recited is but the motive for legislation; the remedy may both consistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act, a wider intention than expressed in the preamble appears to be the real one, effect is to be given to it notwithstanding the less extensive import of the preamble. {{FOOT NOTE}}
7. Craies on Statute Law , 7th Edition, p. 200.
8. Eleventh Edition {{FOOT NOTE}} "The context of the preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it."
19. In Attorney-General v . H.R.H. Prince Ernest Augustus of Hanover , 1957 AC 436 , Lord Normand said: "When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is, therefore, clearly possible to have recourse to it as an aid to construing the enacting provisions.
The preamble is not, however , of the same weight as an aid to construction of the section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Act. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond or it may fall short of the indication that may be gathered from the preamble ... It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail."
The Hon`ble Supreme Court of Pakistan approvingly quoted the above statement of law in Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others (PLD 1981 SC 56) and Pakistan Railway v. Abdul Haqique and others (1991 SCMR 657 ).
20. The word "concerning" in the preamble of the FIA Act is of fundamental importance. According to the Black's Law Dictionary (Sixth Edition), it means "to pertain, relate, or belong to; be of interest or importance to; have connection with; to have reference to; to involve; to affect the interest of." In R. Dalmia v. The Commissioner of Income Tax New Delhi (AIR 1977 SC 988) the Supreme Court of India held that the word ['concern' is not a term of art having a precise, fixed meaning. It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum. It may mean `to have a relation to or bearing on, be of interest or importance' or `to have an anxiety , worry'. 'Concerned' as an adjective may mean ['interested' 'involved'. In one context, it may mean one thing and in a different context another . The best way therefore to construe this word is with reference to the context in which it is used."
21. In Shah Muhammad Khan v. The Federa tion of Pakistan and 2 others [PLD 1958 (W.P.) Lahore 137] a Division Bench of this Court had the occasion to consider the phrase "matters concerning the Provincial Government" occurring in the Pakistan Special Police Establishment Ordinance (VIII of 1948). It observed that it did not mean the same thing as the expression "matters of the Provincial Government". Relevant excerpt is reproduced hereunder: "We consider that the argument raised by Mr. Muhammad Iqbal on behalf of the petitioner that defalcation or misappropriation of funds of a District Board or other local authority , a major part of which may have been contributed by Government, is eminently a matter concerning the Provincial Gove rnment and would, therefore, be covered by the Ordinance has considerable force. It is significant that the expression is 'matters concerning the Provincial Government' and not 'matters or affairs of the Provincial Governm ent'. The consideration of the provisions of the District Boards Act would fortify the inference that the question of misappropriation of funds belonging to the District Board would be a matter of vital concern to the Provincial Government ... Having regard to the generality of the words used in the Ordinance, we have reached the conclusion that offences, relating to which investigation was taken in hand by the Special Police Establishment in the present case, concerning, as they did, the finances of the District Board, were offences 'in connection with matters concerning the Provincial Government', and, therefore, the Special Police Establishment has jurisdiction to conduct the relevant investigation."'
22. In Javed Iqbal and 2 others v. Federal Investigation Agency and 3 others (PLD 1986 Lahore 424), this Court held that the phrase matters concerning the Federal Government' in the preamble of the FIA Act had a wide connotation and any matter which is of some interest or importance to the Federal Government would fall within its ambit. In Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 1998 Lahore 287) this Court explained that the property interest could be one of the grounds or factors on account of which an institution and its affairs could become "matters concerning the Federal Government and for matters connected therewith". Even in absence of direct property interest, statutory and administrative control of the Federal Government over an institution or an organization may be sufficient to bring the matter in the amplitude of the provision. This view was upheld in Intra-Court Appeal by a learned Full Bench in Asif Saigol and 2 others v. Federatio n of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others ( PLD 2002 Lahore 416 ). {{FOOT NOTE}} 9 Shah Muhammad Khan's case was cited with approval by a Full Bench of this Court in Asif Saigol and 2 others v. Federation of Pakistan through Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 2002 Lahore 416 ) {{FOOT NOTE}}
23. Section 3 of the FIA Act provides for the constitution of the Federal Investig ation Agency and describes its jurisdiction. It enacts:
3. Constitution of the Agency .---(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into and investigation of the offences specified in the Schedule, including an attempt or conspiracy to commit and abetment of any such of fence.
(2) The Agency shall consist of a Director-General to be appointed by the Federal Government and such number of other of ficers as the Federal Government may , from time to time, appoint to be members of the Agency .
24. A plain reading of section 3, supra, shows that the FIA is empowered to inquire into or investigate the offences specified in the Schedule of the FIA Act (which the Federal Government can amend by a notification in the official Gazette under section 6). Albeit the language of section 3 and the Schedule is quite clear , the preamble has raised problems. There is a consensus of judicial opinion that the FIA does not have jurisdiction in matters between private individuals and that there must be some nexus between the offences complained of and the Federal Government' but the courts have dif fered on what matters concern the Federal Government.
25. In Province of West Pakistan and another v. Mahboob Ali and another (PLD 1976 SC 483) the Hon'ble Supreme Court of Pakistan held that "it is the duty of the court to find out the intention of the law maker . The whole purpose of interpretation of statute is to ascertain the intention of the law maker , and to make it effective." Lord Diplock made an extra-judicial comment that "... it is (for) the courts to ident ity the target of Parliamentary Legislation, then proper function is to see that it is hit: nor merely to record that it has been missed.'
26. Purposive construction is one of the important ways to give effect to the legisl ative intent. Justice Fazal Karim writes:12 It appears that 'purposive interpretation' is the modern name of what was, in Maxwell on Interpretation of Statutes, called the mischief rule', which meant that the court should where possible identify the mischief which existed before the statute, and then, if more than one construction is possible, favour that which will eliminate the mischief so identified.' {{FOOT NOTE}} 10 Director General, FIA and others v . Kamran Iqbal and others ( 2016 SCMR 447 )
11 Speech of Lord Diplock "Courts and Legislators", Birmingham (1965)
12 Fazal Karim, Judicial Review of Public Actions, Second Edition, p. 625 {{FOOT NOTE}} Lord Roskill also favoured purposive construction of a statute in Adnderson v . Ryan, (1985) 2 All ER 355 .
27. The courts in Pakistan also prefer purposive rather than a literal interpretation of statutory instruments.' In Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178 ) this Court held: "The meaning of a statute consists in the system of social consequences to which it leads or of the solution to all possible social questions that can arise under it. These solutions and systems of social consequences cannot be determined solely from the words used, but require a knowledge of the social conditions to which the law is to be applied as well as the circumstances which led to its enactment. Legal rules relate to human life, and grammer and formal logic alone will not enable us to reduce their juridical consequences. The meaning of a statute is, then, a juridical creation in the light of social demands. [Morris R. Conin, Law and Social Order (1933)] ... Therefore, not only is 'purpose' a legitimate aid to the interpretation of a statutory provision, contemporary canons of construction give primacy , if not total supremacy , to the purposive approach. This approach has, in my opinion, the great merit of preventing the Court, in this case, from failing in its primary task, namely , to interpret section 195, subsection (1), clause (c) [of Cr.P.C], 'according to the intent of them that made it', that is, 'in the sense of the purpose which the legislature intended to achieve.'"
28. The Hon`ble Supreme Court's holding in Director General, FIA and others v. Kamran Iqbal and others (2016 SCMR 447 ) is also instructive. It said: "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 legislative. Reliance in this regard may be placed on the case of Murree Brewery Company Limited v. Pakistan through the Secretary of 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 same." {{FOOT NOTE}} 13 Dr . Raja Aamer Zaman v . Omar Ayub Khan and others ( 2015 SCMR 1303 ) {{FOOT NOTE}}
29. Applying the above principles, in Shahbaz-ud-Din Chaudhry and 3 others v. The Director , FIA, C.B.C., Lahore and 2 others ( 1999 YLR 678 ) this Court examined the FIA Act and ruled: "If we examine the Federal Investigating Agency Act, 1974 (VIII of 1975) (came into effect in January , 1975) in the light of the foregoing rule, we note that it is a successor Act to Pakistan Special Police Establishment, Ordinance, 1948 (VIII of 1948) which Act was repealed by section 10 of the Federal Inves tigating Agency Act, 1974. The Preamble of the Pakistan Special Police Establishment Ordinance, 1948 (VIII of 1948) stipulated the purpose of the Ordinance as 'for the investigation of certain offences committed in connection with matters concerning the Central Government end to make provision for the powers, duties, privileges, liabilities, superintendence and administration of the said force.' Section 3 of the said Ordinance, mandated that the Central Government, 'by Notification in the official gazette, specify the offences or classes of offences committed in connect ion with matters concerning the Central Government.' This Ordinance did not contain any schedule. The major change which appears to have been brought by enacting FIA Act, 1974 is the addition of a Schedule which contains 131 Sections of Pakistan Penal Code and 38 Acts which cover offences having inter-provincial ramifications, anti-smuggling, immigration, bank frauds, evasion of taxes, currency racketeering and dangerous drugs."
The learned Judge further stated: "On a query , the Court was informed that to achieve the purpose of the Act, the F.I.A has been divided into three wings which are -Crime Wing, (ii) Economic Crime Wing and (iii) Immigration and Anti-Smuggling Wing. The Crime Wing deals with offences like corruption, bribery and fraud cases. The Economic Crime Wing and Anti-Smuggling Wings deal with offences committed by the private companies, corporations and autonomous bodies of the Federal Government and has eleven check-posts throughout Pakistan. The Economic Wing also deals with commercial crimes, relatable to leakage of Government revenues, the offences relatable to State Bank of Pakistan and the scheduled banks etc. The purpose of an Act cannot be discerned from mere recital of the preamble, the whole Act has to be read out to find out the legislative intent. A myopic interpretation of pream ble of the Federal Investigating Agency Act, 1974 may suggest that this Act is relatable only to offences which are relatable to the Federal Government. Such a view completely ignores the import of section 3 of the Act and the schedule attached thereto.
By addition of such a comprehensive schedule, the legislature wanted to remedy the mischief which was the rather narrow ambit of jurisdiction of the preceding Act. Full import of the Act therefore, cannot be comprehended unless the entire Act and particularly the schedule attached thereto is not understood in all its ramifications."
30. During the last five decades the FIA Act has been considered by the courts in a number of cases. There is almost a consensus that the FIA is competent to exercise jurisdiction when - i) the scheduled of fence is committed by the employees of the Federation;" ii) the scheduled offence is committed by the employees of the corporation set up, controlled and administered by the Federal Government; iii) the scheduled of fence is committed by public servants; iv) the offence relates to a banking comp any" [subject to the law laid down by the august Supreme Court in Syed Mushahid Shah and others v . Federal Investigating Agency and others (2017 SCMR 1218)] ; v) the of fences are punishable tinder the Emigration Ordinance, 1979." {FOOT NOTE}} 14 Zafar Iqbal and 3 others v . Ghulam Abid and 2 others ( 1995 MLD 1285 )
15 Mian Hamza Shahbaz Sharif v . Federation of Pakistan and others (1999 PCr .LJ 1584)15 16 16 Mian Hamza Sh thbaz Sharif v. Federation of Pakistan and others (1999 PCr.LJ 1584), Federal Employees Cooperative Housing Society through President v. Director General, Federal Investigation Agency , Islamabad and others (2019 PCr.LI 594) and Vita Pakistan Limited through Chief Executive v. Director-General, FIA and 3 others (PLD 201 1 Lahore 181 )
17 Asif Saigol and 2 others v. Federa tion of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 1998 Lahore 287), Shahbaz-ud-Din Chaudhry and 3 others v. The Director FIA, C.B.C., Lahore and 2 others (1999 YLR 678), Ifiikhar Hussain and others v. Government of Pakistan and others (2001 PCr.LI 146) and Asif Saigol and 2 others v. Federation of Pakistan throu gh Interior Secretary , Pakistan Secretariat, Islamabad and 2 others [ PLD 2002 Lahore 416 (Full Bench)] 18 Manzoor Ahmad Akhtar v. The Special Judge, Central, Lahore and another (PLD 1995 Lahore 1), Mrs. Surayya Farman v. The State (1998 PCr.LI 958), Malik Ghulam Yaseen and another v. The Deputy Director , FIA, Lahore and another (1990 PCr.LJ 1834), Ch. Alla-ud-D in v. S.S.P ., District Sargodha and 2 others (1999 PCr.LJ 1909) and Rafi Ahmed and another v . Special Judge Central, Lahore and another ( PLD 2010 Lahore 692 ) {{FOOT NOTE}}
31. A study of the case-law reveals that in some instances the courts sustained objection to the FIA's jurisdiction on the ground that there was no nexus between the offences complained of and the Federal Government Director General, FIA and others v. Kamran Iqbal and others (2016 SCMR 447) is the leading case on this point. The facts thereof were that in a business transaction the cheque given by a party was dishonoured. The aggrieved person lodged FIR under section 489-F , P.P.C. with the FIA. The question arose as to whether it was lawful as the matter was between private individuals. The Hon`ble Supreme Court answered in the negative holding that even though section 489-F , P.P.C. is mentioned in Entry No.1 of the Schedule of the FIA Act, the local police would investigate it. The Court reasoned: (a) the offence had no concern with the Federal Government; (b) to hold otherwise would result in overlapping of jurisdiction of the FIA and the local police creating an anomalous situation which could not be the intent of the legislative; and (c) SRO No.977(I)/2003 had made section 489-F , P.P.C. a scheduled offence under the FIA Act but it had not set any parameters to classify the cases which would be investigated by the FIA. This omission violates Article 25 of the Constitution.
32. S.R.O. No.321(I)/2005 dated 16.4.2005, by way of Entry No.26, included the offences punishable under Copyright Ordinance in the Schedule to the FIA Act.' The question as to whether the FIA has general jurisdiction in respect of the offences under the Copyright Ordinance or it is restricted to the complaints by the government about infringement of its copyright in some work has been very contentious. In The State through Deputy Attorney- General v. Muhammad Amin Haroon and 14 others (2010 PCr.LJ 518) the Sindh High Court held that cases involving infringement of copyright between private parties are to be dealt with by the local police while those involving a work of the Federal Government by the FIA." Relying on the ratio of Muhammad Amin Haroon and the analogy of Kamran Iqbal the Islamabad High Court came to the same conclusion in Dr. Syed Iqbal Raza and others v. Justice of Peace, Islamabad and others (2019 CLD 642: 2019 PCr.LJ 1059), a decision which was subsequently upheld by a Division Bench of that Court in I.C.A's Nos.102 and 103 of 2019 reported as Dr. Syed Iqbal Raza v. Justice of Peace and others (2019 CLD 881). The case of State through Deputy Attorney General v. Ikramullah (PLD 2021 Balochistan 1: 2020 CLD 1203 ) also endorses that' view. According to the learned counsel for the Petitioner , the legal position is thus well settled. {{FOOT NOTE}} 19 PLD 2005 Cent. St. 188 20 Also see Kamran Iqbal v . D.C., FIA and others ( PLD 2009 Lahore 137 ) {{FOOT NOTE}}
33. The Lahore High Court Research Centre has brought to my notice that State preferred Criminal Appeals Nos.14-K and 15-K of 2010 before the Hon`ble Supreme Court of Pakistan against the judgment in Muhammad Amin Haroon's case which was decided on 24.9.2010. Paragraph No.3 of the apex Court's judgment is of vital importance which is reproduced below: "3. Learned counsel for the respondents accused very candidly submitted that he cannot seriously disagree with the ratio of the Full Bench of the Lahore High Court in the case titled Asif Saigol v. Federation of Pakistan (PLD 2002 Lahore '416). He, therefore, conceded that on the question set out in the above leave granting order , the FIA has jurisdiction in copyright matters whether the copyright is owned by the Federal Government or not."
(emphasis added)
34. Asif Saigol's case questioned the jurisdiction of FIA to register cases in relation to offences committed in private banks. A learned Single Bench dismissed the constitutional petition and refused to quash the FIR.2 An Hon`ble Full Bench upheld its judgment in Intra-Court Appeal holding that (a) there is no ambiguity in section 3(1) of the FIA Act and there is no need to refer to the preamble; (b) there is nothing in section 3(1) of the FIA Act to limit or restrict the power of FIA to government-owned banks; (c) banking is a subject allocated by the Constitution to the Federation under the Federal Legisla tive; and (d) the State Bank of Pakistan (which is established under Act XXXIII of 1956) supervises the banking business in Pakistan so the matter concerns the Federal Government by all means.
35. I have also been able to lay my hands on the judgment dated 10.10.2019 passed by the august Supreme Court of Pakistan in Criminal Appeal No.233 of 2019 (titled: "Oxford University Press, Peshawar v. Inayat-ur-Rahman etc.") in which FIA had booked the respondents for offences under sections 66, 66-A and 67 of the Copyright Ordinance read with sections 486 and 109, P.P.C. The allegation against them was that they had infringed copyrights of the appellant company . After submission of challan the respondents filed applications under section 249-A, Cr.P.C. before the Judicial Magistrate, Peshawar , for their acquittal which were dismissed and that order was maintained by the Sessions Court in revision. However , while invoking section 561-A, Cr.P.C., the High Court quashed the FIR and the proceedings in the trial {{FOOT NOTE}} 21 The decision is reported as Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others ( PLD 1998 Lahore 287 ) {{FOOT NOTE}} on the ground that the alleged violation had no nexus with the affairs of the Feder al Government. The apex Court set aside that order holding as under: "It has been admitted before us by all concerned that according to section 3 of the Federal Investigation Agency Act, 1974 the Federal Investigation Agency has the competence and jurisdiction to inquire into and investigate all the offences specified in the Schedule of the said Act and according to Entry No.26 of the Schedule to the said Act the Copyright Ordinance, 1962 is one such law the offences whereunder can be inquired into and investigated by the Federal Investigation Agency . The said Entry No.26 in the Schedule to the said Act was inserted through. S. R.
0. No.321(1)/2005 on 16.04 .2005. The said Schedule and the S.R.O. are still a valid part of the law and the said law had never been challenged by the respondents before any Constitutional forum or Court. Be that as it may, the Schedule to the said Act or the S.R.O. through which the Entry regarding the Copyright Ordinance, 1962 was inserted in the Schedule to the Act have not, and could not be, struck down by the High Court while exercising its jurisdiction under section 561-A, Cr .P.C. which jurisdiction is restricted to matters of a court below only ."
36. It follows from the above discussion that the Hon`ble Supreme Court has dissented from Muhammad Amin Haroon and approved the ratio of this Court's Full Bench judgment in Asif Saigol's case.
37. The FIA's jurisdiction is attracted if two conditions are satisfied: first, the offence is included in the Schedule of the FIA Act, and secondly , the offence must be in connection with matters concerning the Federal Government. The offences under the Copyright Ordinance fulfil both of them. As regards the second condition, my reasons are as follows: i) Article 90 of the Constitution stipulates that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government and, by virtue of Article 97, it extends to the matters with respect to which the Parliament has power to make laws. Copyright is a federal subject having been expressly mentioned in the Federal Legislative List of the Constitution at Serial No.25 of Part-I of the Fourth Schedule. It can also be read into Item Na.27 of the said Legislative List which relates to international and inter-provincial trade and commerce, and standard of quality of goods exported out of Pakistan. ii) Item No.56 of the Federal Legislative List extends the authority of the Parliament and the Federal Government to offences against laws with respect to copyrights. iii) Copyright protection is an international obligation of Pakistan. In view of Item Nos. 3 and 32 of the Federal Legislative List and the Rules of Business, it is the duty of the Federal Government to draw legislative proposals and make policies to honour the country's international commitments. In District Bar Association, Rawalpindi and others v. Federation of Pakistan and others (PLD 2015 SC 401) the Honble Supreme Court also observed: "It is for the Federal Government to ensure that the course of action undertaken by them does not offend against the Public International Law or any International commitment made by the State, which may have adverse repercussions for Pakistan."
Again, in Dewan Salman Fiber Ltd. and others v. Federation of Pakistan through Secretary Ministry of Finance and others ( 2015 PTD 2304 ) the Islamabad High Court held: Owe lay great stress on the importance of the Government adhering to sovereign commitments made by it, whether in the form of the statutory orders or notification issued by it or in the shape of policies announced by it.
The commitments made on behalf of the Government of the Islamic Republic of Pakistan should neither be lightly disregarded nor deliberately ignored. The orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of the duly constituted governmental authorities. The importance of this underlies the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments will be duly honoured and acted upon in letter and spirit."
Similar observations were made in Ch. Basharat Ali v. Federation of Pakistan through Secretary Labour and Manpower Division Islamabad and 4 others (2012 PLC 219), Engro Fertilizers. Limited v. Islamic Republic of Pakistan and Federation of Pakistan, Islamabad and others (PLD 2012 Sindh 50) and National Bank of Pakistan v . Iftikhar Rasool {{FOOT NOTE}} 22 See p. 745 of the law report. {{FOOT NOTE}} Anjum and others [2017 PLC (C. S) 453] . iv) Pakistan is facing new challenges in her international economic relations which can only be handled by the Federal Government. She is on the US Special 301 Watch List and the European Union also have concerns about widespread infringement of copyright and other intellectual property rights. Her failure to meet TRIPS obligations can impact her market access rights and other benefits under the WT O. v) WTO agreements require transparency in trade policies. Therefore, member countries are obligated to make periodic reports to the WTO Secretariat which are reviewed by appropriate councils and committees. Since the said reports are submitted at the State-level, in Pakistan, the duty lies with the Federal Government. vi) The Copyright Ordinance was not in the FIA Act's original Schedule. In 2015, when the IP management was overhauled to make it TRIPS-compliant it was included in the said Schedule as a part of the reform package.'
38. Having held that copyright is a "matte r concerning the Federal Government" no distinction can be drawn on the basis whether it is owned by the governm ent or an individual. Section 3 of the FIA Act does not admit any such classification. Reliance is placed on the ratio of Asif Saigol and 2 others v. Federation of Pakistan through the Interior Secretary , Pakistan Secretariat, Islamabad and 2 others (PLD 2002 Lahore 416) which was approved by the Hon`ble Supreme Court of Pakistan in Criminal Appeals Nos.14-K and 15-K of 2010.24 The authorities which hold that the offence must have some "nexus" with the Federal Government, in fact, mean that it should concern it in some way. In Woodland v. Essex County Council, [2013] UKSC 66, the Supreme Court of UK held that words of a judgment cannot be treated like those of a statute.22 25
39. The contention of the learned counsel for the Petitioner that the FIA cannot investigate private disputes is founded on Kamran Iqbal's {{FOOT NOTE}} 23 Country Report: Integrated Intellectual Property Management in Pakistan. Available at https://www .wipo.int/edocs/mdocs/aspaden/wipo ip han 11 ref 26-part2.pdf. This official, report expressly states that the FIA has been empowered to eliminate piracy by including the copyright legislation in the FIA Act.
24 See paragraphs 32 and 33 of this judgment.
25 Also reported as 2014 SCMR 258 {{FOOT NOTE}} case. I am afraid, the ratio of the said case is not applicable because its subject-ma tter did not relate to the Federal Government in any context.
40. However , this does not conclude the discussion. It was argued that the local police and the FIA have concurrent power to investigate copyright offences and the Organization may refer the compl aint to either of them. No, it is not so for two reasons: first, section 13(xviii) of the IPO-Pakistan Act ordains that the Organization shall initiate and monitor the enforcement and protection of intellectual property rights through designated law enforcement- agencies of the federal or provincial government. The inclusion of the Copyright Ordinance in the Schedule of the FIA Act has the effect of designating the FIA for enforcement in terms of the aforesaid clause. Secondly , it cannot be left to an officer of the Organization to choose between two agencies. Absence of reasonable classification and prescribed parameters impinges on the fundamental right guaranteed under Article 25 of the Constitution.
41. In view of the foregoing, the following orders are made: i) Impugned FIR No.9/2020 dated 18.1.2020 is declared to be without lawful authority and quashed. ii) Respondent Shaukat Ali may proceed against Petitioner Dilawar Khan and others afresh in accordance with the law elucidated above. iii) The Organization is directed to frame rules in terms of section 34 of the IPO-Pakistan Act for exercise of powers and functions under section 13 thereof, particularly clauses (xix) and (xx). This shall be done within six months from the date of announcement of this judgment positively . iv) Till such time the aforesaid rules are framed, the Organization shall ensure that proper orders are passed on every complaint made to it within minimal time which shall not in any case exceed seven days. v) The Organization shall forthwith develop an online portal for filing of complaints and provide unique identification numbers to them. The complaints that are filed manually shall also be assigned such number . Status of all the complaints, on-line as well as manual, shall be accessible through the said portal and their record shall be maintained from the date of filing till the time the matter is resolved or closed. {{FOOT NOTE}} 26 Director General, FIA, and others v . Kamran lqbal and others ( 2016 SCMR 447 ) {{FOOT NOTE}}
42. W rit Petitions Nos. 3102 and 6749 of 2020 are disposed of.