2008 PLP 383 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner seeks leave to appeal against the judgment, dated 7-5-2001 passed by a learned Judge of the Lahore High Court vide which petitioner's appeal against order, dated 17-7-1999 passed by the learned trial Court acquitting the respondent under section 249-A, Cr.P.C. was dismissed.

2. Facts in brief are that petitioner filed a private complaint alleging that he was the owner of Kiran Publications: that he published two books namely "Kiran English Grammar and Composition and Kiran Fawaid Insha Pardazi" and had been supplying those books to different educational institutions. It was further alleged by the complainant that it came to his notice that the respondent-accused had published the afore-referred books without proper authorization and, therefore, he committed an offence under section 66-A of the Copyright Ordinance, 1962 read with sections 420, 468, 482, 471, P.P.C. Statements of four witnesses were recorded as preliminary evidence whereafter the learned trial Court summoned the accused-respondents. On an application filed by them under section 249-A, Cr.P.C. they were acquitted by the learned trial Court on the ground that the complainant had not got his trade-mark duly registered and that there was nothing in evidence to show that the accused had installed a Printing Press. This order of acquittal was affirmed by the High Court while dismissed petitioner's appeal.

3. The learned counsel for the petitioner submits that the learned trial Court acted in haste invoking section 249-A, Cr.P.C. that there was sufficient material to proceed against the respondent-accused and that the order of acquittal is inconsistent with the order of summoning the accused on the same set of evidence. The learned counsel for the respondent defended the impugned judgments by submitting that in the face of preliminary evidence recorded there was no probability of conviction of the respondent-accused and the learned trial Court rightly acquitted them.

4. It is alleged in the private complaint that petitioner-complainant is owner of Messrs Kiran Publications which stands registered under the Companies Ordinance. The complainant while appearing as P.W.1 has specifically alleged that the two books in question were being published by his publishing company. Two fake purchasers were sent to the shop of the respondent-accused who purchased the books in question which it was alleged in evidence had been published by the respondent. It was on the basis of this preliminary evidence that the learned trial Court found that the complainant had a prima facie case pursuant to which the respondent-accused under section 249-A, Cr.P.C., the same Court acquitted the respondents by invoking section 249-A, Cr.P.C. without recording the prosecution evidence or forming the charge.

5. We have gone through the contents of the application moved by the respondent-accused under section 249-A, Cr.P.C. and note that the allegation that they got published the two books in. question had not been specifically denied. There is no cavil to the proposition that a Court can acquit the accused under section 249-A, Cr.P.C. if after hearing the Public Prosecutor it "considers that the charge is groundless or that there is no probability of the accused being convicted of any offence". If the allegations levelled in the complaint supported by the preliminary evidence are admitted to be true, it cannot be said at this stage that there is no probability of conviction of the respondent-accused. In the afore-referred circumstances, we are of the view that the learned trial Court acted in haste in passing the order of acquittal which is, therefore, not sustainable. Resultantly, this petition is converted into an appeal and allowed. The order of the trial Court dated 17-7-1999 and that of the High Court dated 7-5-2001 are set aside. The case shall be deemed to be pending before the trial Court which shall proceed with the same in accordance with law and will ensure that the same is concluded preferably within 5 months of the receipt of this order. N.H.Q./G-65/SC Case remanded. ***