1. ' This application under section 561-A, Cr.P.C. for quashment of pending proceedings is filed on behalf of applicants Amanullah son of Muhammad Ismail and Syed Muhammad Salim son of Ibrahim who are facing charges before the learned Additional City Magistrate II, C.IA., Karachi for offences under sections 420, 471, 482, 485 and 486, P.P.C.
2. ' The facts leading to this application are that the complainant Shamimul Haq is the owner of a Soap Factory situated in PIB Colony and manufactures soap under a registered Trade Mark "Shecacaes" bearing Registraion No,47443. In 1985 applicant Amanullah was working in the factory of the complainant but later on he left the factory. Thereafter, said Amanullah started his own unit of manufacturing soap, in which he started counterfeiting the soap of the complainant and also supplied the same in the market. When the complainant came to know about it, he went and met the applicant in order to stop him from making the counterfeit soap, but the applicant continued to do so. On 12-1-1992, the complainant came to know that the applicant's salesman is going to supply the counterfeit soaps to the shops. On this information the complainant alongwith Shakeel Ilyas, Muhammad Ahmed and Nadeem Ahmed reached Soldier Bazar near Garden and at 3-20 p.m. stopped the salesman driving Suzuki No,KC 2599 and found the same contained the counterfeit soaps. In the meanwhile a police party of C.IA. was passing from there, the complainant informed A.S.I. Nazir Hussain about the facts, who arrested applicant Syed Muhammad Salim and also recovered 344 pieces of soaps under a Mashirnama. Thereafter he brought the accused and the property to C.IA. Centre where he recorded the report of the complainant at 4-10 p.m. being F.I.R. No,9 of 1992.
3. ' After initial investigation, the case papers were handed over to A.S.I. Zubair Khan who submitted the challan against both the applicants, who are on bail.
4. ' I have heard Mrs. Naveen Merchant learned counsel for the applicants and Mr. Muhammad Zahir Qureshi, Advocate for the State. The respondent No,1 and his counsel chose to remain absent without any intimation. It may be mentioned this matter was partly heard on 15-11-1992 on which date Mr. Muhammad Ali Jan, Advocate for respondent No,1 appeared and argued the matter. In fact, on that date, both the learned counsel for the applicants as well as the counsel for the respondent No,1 were fully heard, but a need arose for calling the police papers and the counsel for the State was busy before another Bench. On the subsequent dates Mr. Khalil Kizilbash appeared for respondent No,1 in place of Mr: Muhammad All Jan. However, on 20-12-1992 when this matter was taken up, Mr. Khalil Kizilbash made a statement that he will not be appearing in this matter and on instructions, he stated that some other Advocate will appear today. The matter was kept aside and again it was taken up at 1-30 p.m. but none appeared for the respondent No,1. At this stage Mr. Muhammad Ali Jan, Advocate was also called, he was also absent. As this was a challaned case and not a complaint case, therefore after hearing the counsel for the applicants and the State, the arguments were concluded.
5. ' It is the case of the applicants that there is a business rivarly between the applicant No,1 and the respondent No,1 who are both owners of their individual factories and the present case is the outcome of the said rivalry in order to harass the applicants. It was further argued that the circumstances in which the police officer A.S.I. Nazar Hussain has arrested co-accused Syed Muhammad Saleem and registered the case clearly indicates that the said police officer was in collusion with the complainant and in this way a false case has been registered against the applicants. It is further submitted that the applicant No,1 manufactures the soap under a registered Trade Mark "SWASTIK SOAP" bearing Registration No,80688 therefore the question of counterfeiting the complainant's soap does not arise. It was finally submitted that no case was made out against the applicants, therefore it is a case of abuse of the process of Court liable to be quashed.
6. ' On the other hand, Mr. Muhammad Zuabir Qureshi while conceding, submitted that the trial Court has erroneously framed the charge under sections 420, 471, 482, 485 and 486, P.P.C. as none of these offences are spelt out from the material in hand. The learned counsel has taken me through the charge framed by the trial Court and so also the challan submitted by the police in order to show that no evidence was forthcoming to establish that the applicant No,2 is the employee of applicant No,1. Similarly there was no evidence that the soaps recovered were counterfeit. For these reasons, he has lot opposed this application.
7. ' I have gone through the material available on record and I have carefully considered the points raised by the parties. At the very outset I may point out that as per the challan submitted in this case only three public witnesses are cited and the remaining two are the Investigating Officers. Out of the three public witnesses one is the complainant and other two are his close relatives and employees in his factory. The other two witnesses namely Nadeem Ahmed and Shameemul Haq had accompanied the complainant right from his factory as mentioned in the F.I.R. Be that as it may, I am conscious of the fact that under section 561-A, Cr.P.C. this Court will not embark on a course so as to appreciate the facts and the evidence. All that has to be seen in this case is that whether there is any abuse of the process of Court or indulgence of this Court is necessary in order to secure the ends of justice. Keeping in view this aspect of the matter I will now refer to the material available on the record.
8. ' It is an admitted position on the record that the applicant No,1 as well as respondent No,1 are both in the business of manufacturing soaps and they have their own independent units. It is also an admitted position on the record that the applicant No,1 is manufacturing soaps under a registered Trade Mark "SWASTIK SOAP" bearing Registration No,80688. On the other hand the respondent No,1 also prepares soaps in accordance with the registered Trade Mark "SHECACAES" bearing Registration No,47443. It will therefore appear that both the applicant No,1 and respondent No,1 are manufacturing soaps as per their registration Trade Mark. Therefore, it will be wrong to say that the applicant No,1 is counterfeiting the soaps of the respondent No,1. Incidentally it may be noted that it is the case of the respondent No,1 in the F.I.R. that the applicant is manufacturing counterfeit soap brick of his registered Trade Mark, but in this regard neither any expert opinion was sought nor the articles recovered by the police were sent to the Trade Mark Registry office. In the absence of such an evidence, the factum of counterfeiting cannot be established. It was also confirmed from the learned counsel for the State, who after going through the police papers categorically submitted that there is no evidence in hand available on this issue.
9. ' The report was lodged for offences under sections 420, 471, 482, 485 and 486, P.P.C. The trial Court also framed the charge against the applicants for having committed the same offences. It may at once be noted that, there is no question at all of the applicants being charged under sections 420 and 471, P.P.C. in this case. The section 420, P.P.C. implies that one person takes the property from another by practising deception. In this case no property whatsoever was acquired by the applicants from the complainant or any other person by deceptive means. Similarly section 471, P.P.C. is applicable in those cases where a forged document is used as genuine fraudulently or dishonestly. In this case there is no allegation whatsoever of the applicants having used any forged document as genuine. As such for all practical purposes sections 420 and 471, P.P.C. have been applied superfluously.
10. ' It may be mentioned that the case in hand pertains to infringement of trade mark if any, the section pertaining to such infringement falls under section 482, P.P.C. to section 488, P.P.C. All these offences are non-cognizable and bailable. It seems that sections 420 and 471, P.P.C. were purposely added in order to make the offence cognizable and in order to justify the arrest and investigation, otherwise the police did not have the power without first obtaining the permission from a Magistrate under section 155, Cr.P.C. An allegation has been levelled by the applicants that the Investigating Officer, A.S.I. Nazar Hussain has registered this false case being in collusion with the complainant.
11. ' Considering the case from the prima facie point of view, it is my considered opinion that even if we take the prosecution case as a whole with all its allegations none of the offences with which the applicants are charged are at all made out. What exactly is the prosecution case ? The prosecution case is that on 12-1-1992 the complainant alongwith his witnesses stopped one Suzuki vehicle which was being driven by applicant No,2. It contain 344 bricks of soap. At that time police party was passing from there from whom the complainant sought legal help, A.S.I. Nazar Hussain arrested applicant No,2 and seized the Suzuki containing the alleged soaps and thereafter the F.I.R. has been lodged by the complainant. From the version of the prosecution case it will be noted that the applicant No,1 was nowhere in the picture and there is no proper evidence on the record to establish that the soaps recovered from the Suzuki were owned by the applicant No,1. Similarly the prosecution has no evidence in hand to establish that the applicant No,2 was an employee of applicant No,1. As already mentioned, the prosecution is not in a position to establish that the soap recovered is a counterfeit as neither any soap of the complainant's side was called for comparison nor any expert opinion has been sought. Furthermore, prima facie the ingredients of the offences under sections 482, 485 and 486, P.P.C. are completely wanting in this case. Section 482, P.P.C. will be applicable in those cases where it is proved that the accused "used" any false trade mark. In the present case the evidence on such usage of a false trade mark is not forthcoming as the soaps were only found in the Suzuki and there is no allegation that the applicant No,2 had used any false trade mark. In respect of section 485, P.P.C. the main ingredients are that a person should be found "in possession of any die, plate or the other instrument for the purpose of counterfeiting a trade mark". In the present case no such articles were found in possession of any of the applicants.
12. Therefore section 485, P.P.C. is not applicable in this case at all. Section 486, P.P.C. is applicable where a person sells, exposes for sale or is in possession for sale any goods or things with a counterfeit trade mark. In the present case none of these ingredients are satisfied as the alleged soaps were in a Suzuki van and the applicant No,2 had done nothing to attract any of the ingredients of section 486, P.P.C. In these circumstances I am in agreement with the learned counsel for the State when he submits that none of the sections under which the applicants have been charged by the trial Court are supported from the material in hand by the prosecution.
13. ' It is quite obvious that the complainant who had been running a soap business was annoyed with the applicant No,1 who had also started the same business. As such clearly there was a business rivalry between them. The annoyance of the complainant is visible from the F.I.R. itself as she has stated in the F.I.R. that when he came to know about the manufacturing of soaps by the applicant No,1, the complainant actually went to the applicant No,1 and tried to stop him from maufacturing the soaps. Since the applicant No,1 was not prepared to concede to the dictates of the complainant, it appears that the complainant has managed the present case against the applicants. Even otherwise the story also appears to be somewhat absurd. It is not conceivable that the complainant could get prior information as to when and where the applicant No,2 would be available or that the complainant could manage to stop the Suzuki driven by the applicant No,2. and coupled with this, the sudden arrival of A.S.I. Nazir Hussain. Taking all these circumstances into consideration I am of the view that not only no case is made out against the applicant but in fact, it appears to be a false case so as to pressurize and harass the applicant to stop the manufacturing of soaps. In these circumstances there is no doubt in my mind that the proceedings pending against the applicants are an abuse of the process of Court and the same cannot be allowed to continue as it would operate or perpetuate a grave injustice.
14. In the light of my above discussion I am of the view that the proceedings pending against the applicants before the learned Additional City Magistrate II, C.I.A. Karachi, are an abuse of the process of Court. Accordingly I allow this application and quash the proceedings pending against the applicants.