2002 PLP 688 (YLR)

Mrs. Shaheen Kiran for Appellant. Mian Muhammad Danishmund for Respondent No.

1. M. Jehangir Wahla, A.A.‑G. for the State. Date of hearing: 31st May, 2002. Muhammad Nawaz respondent herein was booked by the Police of Police Station Samanabad, Lahore to face trial in a case under sections 420 and 417, P.P.C. read with section. 66‑A of the Copyright Ordinance, 1962 through F.I.R. No.31 registered on 16‑2‑1995 on the written complaint Exh.P.B of Ahmad Fraz, the present appellant.

2. Investigation was, conducted by Muhammad Azam, S.‑I. who on the pointation of the accused took into possession the incriminating articles vide recovery memos. Exh.P.C and Exh.P.D. After completion of the investigation, the accused was challaned to face the trial.

3. The learned trial Magistrate recorded the evidence of 4 P.Ws. Out of these P.Ws. Ahmad Fraz, the complainant appeared as P.W.1, Muhammad Yaqoob son of Ch. Jan Muhammad was examined as P.W.2 while two Police Constables were produced as P.Ws. 3 and

4. It will not be out of place to mention here that Investigating Officer of the case was yet to be examined. But an application was moved allegedly on 25‑6‑1998 under section 249‑A, Cr.P.C. before the trial Magistrate which was allowed vide order dated 4‑5‑2000 and the accused respondent was acquitted of the charge. Hence this appeal.

4. Learned counsel for the appellant in support of this appeal submits that the learned trial Court had not granted proper opportunity to the prosecution to produce the witnesses inasmuch as two important witnesses including the Investigating Officer were yet to be examined when the impugned order was passed. Further submits that the provisions of sections 417 and 420, P.P.C. read with section 66‑A of the Copyright Ordinance are fully applicable and attracted to the facts of the case and the trial Magistrate was wrong in acquitting the accused respondent. According to the learned counsel, the charge was not ground‑less, so there was no question of acquitting the accused by invoking the provisions of section 249‑A, Cr.P.C. To supplement his arguments, learned counsel has placed reliance on PLD 1969 Supreme Court 398, 1999 M.L.D. 1645, 2000 PCr.LJ 752 and 2000 M.L.D. 605.

6. On the other hand, learned counsel for the accused respondent contends that F.I.R. having been registered in the year 1995, order of acquittal passed in 2000 and respondent having suffered the agony of protracted trial for 5 years, it would not be proper at this stage to take a different view to the view already taken by the trial Court. Further submits that prosecution cannot be given the benefit of its own negligence because during the long period of 5 years only four P.Ws. were examined. As to merits of the case, learned counsel submits that the respondent did not adduce anybody for the purpose of cheating, the F.I.R. was lodged with mala fide because according to the complainant appellant the accused was publishing the books since 1980, though he had explained before the trial Court that he remained out of country from 1982 to 1986 but there is no explanation for keeping mum from 1986 to 1995, nobody from the Mavra Publishers was produced with whom the appellant has entered into agreement for the purpose of publishing the books and that the learned trial Court was right in acquitting the respondent. In support of his submissions, learned counsel has relied upon PLD 1967 Karachi 440, PLD 1993 S.C. 399, PLD 1994 S.C. 667, 1995 SCMR 616, PLJ 1995 PSC (Crl.) 813, 1995 SCMR 664; PLD 1997 SC 275; 1985 PCr.LJ 23, 1993; P.Cr.L.J. 2053 and PLD 1995 Lah. 98. 6‑A. Learned A.A.‑G submits that in view of the peculiar facts and circumstances of the case, the matter may be remanded to the trial Court.

7. I have heard learned counsel for the parties and have gone through the record and also the precedents cited by learned counsel for both the sides with respect. In the instant case, the F.I.R, was registered on 16‑2‑1995. The respondents joined the investigation and the challan was submitted before the trial Court on 2‑11‑1995. The trial continued till 3‑5‑2000 and it was on 4‑5‑2000 that respondent was acquitted by the trial Court under section 249‑A, Cr.P.C. The respondent suffered the agony of protracted trial for 5 years. So, at, this belated stage, I, in the interest of justice do not deem it proper to remand the case for re‑trial. The books taken into possession vide memo. Exh.P.C does not in any way show that those were published at the instance or advice of the respondent. The complainant appellant in his statement before the trial Court while appearing as P.W.1 stated that he had entered into an agreement for publication of his books with Mavra Publishers and also tendered in evidence a photo copy thereof as mark A but did not either produce or cite any one from Mavra Publishers as a witness to prove the existence of any agreement. Further according to the complainant himself he carne to know in 1980 that some books are being published by unauthorised persons but he kept mum and only in the year 1995 got registered the F. I. R. He though stated that he had gone out of Pakistan but in cross‑examination he admitted that he came back to Pakistan in 1986 after having gone in the year 1982. He also admitted that Muhammad Yaqoob P.W.2 was his subordinate. The other two witnesses who appeared as P. Ws. were the witnesses of recovery of books. The objection of learned counsel for the appellant that the Investigating Officer was most important and necessary witness to prove the prosecution case is ill‑founded because he did not take any step either to go to Mavra Publishers with whom the complainant had a contract nor he collected any book from the Bazar. Even if he would have been produced in the witness, he could not have said anything more what the four P. Ws. whose statements have been recorded, had stated. Moreover, the books taken into possession by the prosecution were printed by Mauzam Printing Press but none from that press was even produced or cited by the prosecution. The learned trial Judge was therefore, right in observing that there was no evidence of publishing, printing or sale of the pirated books against the accused. The conclusion drawn by the trial Judge is thus neither arbitrary, fanciful nor artificial in nature. The settled law in an appeal against acquittal is that the Appellate Court is slow in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. In the case of Muhammad Akram and others v. The State (1995 SCMR 1359) it was ruled by at Full Bench of the Honourable Supreme Court ruled that acquittal judgment is not to be interfered with lightly and due consideration and weight is to be attached to the observations made in the acquittal judgment and that this rule is to be followed more strictly if the acquittal judgment is recorded by the trial Court which has the opportunity of examining the witnesses and observing their demeanour in the Court. The view that approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because of presumption of double innocence of the accused is attached to the order of acquittal has been reiterated in the case of Munawar Shah v. Liaqat Hussain and others (2002 S.C.M.R. 713), decided on 2nd January, 2002. Section 249‑A, Cr.P.C. shows that trial Magistrate is given powers acquitting an accused person at any stage of the case, if after hearing the prosecutor and the accused and for the reasons to be recorded, he considers that charge is groundless or there is no probability of the accused being convicted of any offence. The use of words "at any stage" indicates the intention of the Legislature that such order can be passed even before recording of evidence, if the facts of the case are such that the Court is satisfied that no useful purpose would be served by prosecuting further in the matter. After having taken into consideration the over facts and circumstances of the case and the enunciation of law made by the Honourable apex Court, I find that the well‑reasoned impugned order of acquittal does not suffer from any legal infirmity or arbitrariness so as to render the impugned decision open to any exception. Resultantly, this appeal being meritless is dismissed. H.B.T./A‑582/L Appeal dismissed.