2005 PLP 1782 (YLR)

(c) in case of an artistic work, to do or authorize the doing of any of the following acts, namely:

(i) to reproduce the work in any material form; (ii) to publish the work; (iii) to use the work in a cinematographic work; (iv) to show the work in television; (v) to make any adaptation of the work; (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in subsections (i) to (iv)". Clause (a) to subsection (1) to section 10 of Copyright Ordinance, 1962, reads as under;-- "

10. Works in which copyright subsists.

(1). Subject to the provisions of this section and to other provisions of this Ordinance, Copyright shall subsist throughout Pakistan in the following classes of works that is to say:-- (a) Original, literary, dramatic, musical and artistic works". Section 66-A of the Ordinance, stipulates as under;-- "66-B. Penalty for unauthorized reproduction or distribution of counterfeit copies of sound recording and cinematographic work.

Any person who unauthorizely makes or distributes counterfeit of sound recording and cinematographic work for the purpose of business, profit or gain shall be punishable with imprisonment which may extend to three years, or with fine which may extend to one hundred thousand rupees, or with both". The provision of subsection (3) to section 74 of the Copyright Ordinance, 1962 stipulates as below:-- "(3) All offences under this Ordinance, shall be cognizable and non-bailable".

4. I have also gone through the provisions of the Pakistan Penal Code inserted into the F.I.R. A bare perusal of sections 48614871482, P.P.C. shows that the said sections arc bailable but section 66 read with section 74(3) of the Copyrights Ordinance, 1962, the same is non-bailable and cognizable. Petitioners had applied for bail before arrest before the learned Additional Sessions Judge which was not confirmed on 8-3-2005. Thereafter, they applied for the same relief before the learned Judicial Magistrate and requested for submission of bail bonds, the case was adjourned on which date the petitioners did not appear before the said learned Court and their application was dismissed. The facts are indicative of the fact that the petitioners are playing hide and seek with the Courts of law.

5. As far as contention of the learned counsel for the petitioners that no offence has been committed by the petitioners and that the petitioners have also applied for Registration of the Trade Mark and their application is still pending before the competent authority, has no force because the Original Certificate issued in favour of "Ding Dong" bearing Registration No.6048-Copr. Dated 24-3-1997 issued by the Registrar of Copyrights, Central Copyright Office, Karachi, Government of Pakistan is a Certificate on the basis of which the complainant was running his business. Whereas on Form- 1(Annexure-A) to the said Certificate), Serial Number 3455, Registration Number is 6048 in the name of Hilal Confectionary Limited of 865-Khai Road, Haroon Seja Lane, Hyderabad, Pakistan, against the Column of Artistic Work: Label Design is written while the firm was shown as Copyright owner.

6. To satisfy conscience of this Court and to reach at a just decision of the case, I have personally examined the packets of bubbles i.e. one belongs to the complainant party and the other to the petitioners. After careful perusal of both the packets, I have reached to the conclusion that there is so similarity that anyone can easily be deceived while purchasing the said item because there is no major change in the size of the packet, colour, pieces therein and apparent looking of the packets. Normally the people do not care about the name of the company whether it is "Hilal' or "Kits". The only difference in the packet of the petitioners is that against the work "Hilal" word "kits" while against the word of "Ding Dong" the word "Ding Dung is written. I am in agreement with the contention of the learned Additional Advocate-General Punjab, Ch. Muhammad Hanif Khatana that a case against the petitioners is made out which is cognizable and non-bailable attracting the provisions of Clause (c) to subsection (1) to section 3 of Copyright Ordinance, 1962 read with clause (c) to subsection (1) to section 10, section 66-A and section 74(3) of the said Ordinance read with the Schedule to the Criminal Procedure Code and they are not entitled to the concession of extraordinary concession of bail before arrest. Moreover this is a bail before arrest and considerations of the grant of bail after arrest and before arrest are different. Even the pre-requisites for the grant of pre-arrest bail are missing. In the afore-referred circumstances, the petitioners have failed to make out a case for confirmation of the bail before arrest already granted to them vide this Court's order dated 31-3-2005. Resultantly, this petition is hereby dismissed having no merit. N.H.Q./M-1019/L Bail refused.