2020 PLP 1203 (CLD)

ROZI KHAN BARRECH, J.

The instant appeal has been filed on behalf of Government of Pakistan through learned DAG under section 417, Cr.P.C. against the order dated 26.12.2014 (hereinafter the "impugned order") passed by learned Judicial Magistrate-XII, Quetta ("trial court") in Criminal Case No. 25 of 2014, FIR No. 13 of 2014 PS FIA Quetta whereby respondent Ikrarnullah son of Hameedullah was acquitted of the charge.

2. Briefly stated facts of the instant appeal are that a complaint was filed by complainant namely Nisar Ahmed Baloch before the Federal Investigation Agency (FIA) with the allegation that on 27.02.2014 the Manager Intellectual Property Rights (IPR) Oxford University Press Pakistan (OUPP) submitted a written complaint to Director FIA Quetta, wherein it was stated that there was rampant sale of pirated books of Oxford University Press (OUP) in Quetta city and unlawful sale of the same in the open market; that OUPP is a branch office of OUP, UK and is engaged in development, printing, promotion and marketing books in Pakistan; that the pirates are taking advantage by means of illegal sales of fake editions in the market, with ulterior motive of making illegal profits at the expense of OUP; that due to the act of accused the OUP has incurred loss. In this regard a raid was conducted at the shop of Mr. Books Gulistan Road Quetta; that in this respect it also surfaced that one Ikramullah is also engaged in selling pirated books in the market. The FIA authorities along with the complainant headed to the shop of said Ikramullah, where Ikramullah was present, who told the FIA authorities that he had purchased the pirated books from Mr. Book Shop but failed to produce any sale invoice, bill or warranty. Therefore, all such books were seized in presence of witnesses and the accused/ respondent was apprehended by the FIA officials. Consequently the aforesaid FIR was lodged. After completion of investigation, challan was submitted before the trial court, wherein charge was framed, to which the respondent did not plead guilty and claimed trial. During trial, the accused/respondent filed an application under section 249-A, Cr.P.C. before the trial court. After hearing arguments on application, the trial court vide impugned order dated 26.12.2014 acquitted the accused/respondent of the charge, hence this appeal.

3. We have considered the worthy arguments advanced by learned counsel for the parties and have gone through the material available on record.

4. The Federal Investigation Agency was created under Federal Investigation Agency Act, 1974 (the Act.). The preamble of the referred Act shows that Agency was created for investigation of certain offences admitted in connection with the matters concerning Federal Government and for matters connected thereto. In the case in hand there was a dispute between the private parties in respect of pirated books of OUP in Quetta City and alleged unlawful sale of same in the open market. The Oxford University is a private institution/organization who is doing a business in Pakistan privately and no government work is invokied, therefore the FIA has no jurisdiction in respect of infringement of copyright between the private parties as dispute, which is civil in nature.

5. It is worthwhile to mention here that Tribunal created under Intellectual Property Organization of Pakistan Act, 2012 has the exclusive jurisdiction to try the offences with respect to Intellectual Property laws. In this behalf, section 17 of the referred Act provides that Tribunal shall, in exercise of its criminal jurisdiction, try offences made punishable under this Act and for the said purpose, can exercise same power vested in the Court of Sessions under the Criminal Procedure Code, 1898. Under subsection (4) of section 17, it is provided that no court, other than the Tribunal, shall have or exercise any jurisdiction with respect to any matter, to which, the jurisdiction of the Tribunal extends under this Act. By virtue of referred position, the Tribunal has been conferred with the power to try an offence. Similar exclusivity of jurisdiction is provided in subsection (2) of section 18 of 2012 Act. Likewise, section 13 provides powers and functions of Intellectual Property Organization under sections 13(xix) and (xx), the Organization has the exclusive power to initiate and conduct inquiries/investigation/ proceedings relating to the offences in the prescribed manner. This also shows that Intellectual Property Organization has the authority to investigate into the offences arising out of Copy Right Ordinance, 1962. Reliance is placed on the reported judgment in the case of Syed Iqbal Raza v. Justice of Peace Islamabad (2019 PCr.LJ 1059). In view of the above, in our considered view the FIA has no jurisdiction to investigate the matter nor the trial court was having jurisdiction to proceed with the matter. In fact the appellant filed the appeal under section 417, Cr.P.C. against acquittal order passed by the trial court, whereby the accused/respondent was acquitted of the charge in an application filed under section 249-A, Cr.P.C. Section 561-A, Cr.P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect of any order under this code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. unless trial Court exercises its powers under section 249-A or 265-K, Cr.P.C. which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section 249-A or 265-K, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In view what has been discussed herein above, we are of the firms view that cognizance taken by the FIA authorities was illegal and beyond their jurisdiction. Without touching the merits of the case and without prejudice to the rights of the complainant to invoke the proper jurisdiction, we hereby hold that, the cognizance taken by the FIA authorities was without jurisdiction and as such proceeding initiated by them were without jurisdiction, therefore same stands quashed. Consequently, the appeal under section 417, Cr.P.C. is converted into an application under section 561-A, Cr.P.C. and the FIR No. 13 of 2014 of PS FIA Quetta is hereby quashed, however it is open to the complainant to initiate proceedings before the tribunal if opted. SA/139/Bal. Order accordingl