GHULAM MUSTAFA Versus State Mian Saeed-ud-Din Ahmad , Muhammad Shakil Abid, Muhammad Sharif
This matter concerns a petition for pre-arrest bail filed by the petitioner, Ghulam Mustafa, who was accused in an FIR registered under sections 66 and 67 of the Copyright Ordinance, 1962, for allegedly manufacturing ink using a trademark similar to the complainant's. The core legal question was whether the petitioner was entitled to the extraordinary relief of pre-arrest bail given the allegations of trademark infringement and the existence of parallel civil litigation. The Lahore High Court held that the petitioner failed to establish mala fide on the part of the complainant or the police. The Court observed that the petitioner was specifically nominated in the FIR with a distinct role, and prima facie evidence connected him to the offence, noting that the similarity in packaging was sufficient to deceive consumers. Consequently, the Court dismissed the bail petition and recalled the ad interim pre-arrest bail previously granted. The key principle laid down is that pre-arrest bail is not a matter of right and requires the demonstration of mala fide or exceptional circumstances, which are absent when prima facie evidence of the offence exists.
- Is pre-arrest bail available where there is prima facie evidence connecting the accused to the alleged offence?
- Does the existence of parallel civil litigation regarding trademark infringement automatically entitle an accused to pre-arrest bail in a criminal case?
- What is the effect of a failure to demonstrate mala fide on the part of the complainant in a pre-arrest bail application?
- Section 66, Copyright Ordinance 1962
- Section 67, Copyright Ordinance 1962
- Section 497, Code of Criminal Procedure 1898
ORDER
FAZAL-E-MIRAN CHAUHAN, J .---Ghulam Mustafa, the petitioner, is seeking pre-arrest bail, in case F.LR. No.385, dated 29-9-2007, offences under sections, 66 and 67 of the Copy Right Ordinance, 1962, registered at Police Station, New Anarkali, Lahore.
2. Learned counsel for the petitioner states that, the petitioner is innocent and has been falsely roped in this case by the complainant with mala fide intention. In fact, the matter, in issue, is purely a civil nature and civil suits under Trade Mark Ordinance, 2001 are pending adjudication between the parties before the learned Additional District Judge, Lahore. Further states that, it is yet to be determined by the trial Court, whether any infringement of Trade Mark is being trade or not. No incriminating material is available with the prosecution to connect the petitioner with the alleged offence. The offences alleged to have been committed by the petitioner do not fall within the prohibitory clause of section 497, Cr.P.C., therefore, the petitioner deserves extraordinary relief of bail before arrest.
3. Conversely, learned counsel for the complainant and the learned Deputy Prosecutor General for the State has vehemently opposed this bail petition.
4. Having given the anxious considerations to the respective arguments advanced by learned counsel for the parties and perused the record it transpires that, the petitioner is specifically nominated in the FIR. with specific role of manufacturing the ink with the name and style "Best Dollar Ink", having no permission to use this trade mark, which is similar with the T.M, being used by the complainant. Recovery is yet to be effected from his possession. Prima facie, sufficient material is available on record to connect the petitioner with the alleged offence. The petitioner has failed to show any mala fide on the part of the complainant or the police for his false implication in this case. To my mind, there is so similarity that any one can easily be deceived while purchasing the said item, because there is no major change in the size of the packet, colour, pieces therein. Normally the people do not care about the name of company. Even otherwise, pre-requisites of grant of bail before arrest are missing in this case.
5. In this view of the matter, this bail petition is dismissed and ad interim pre-arrest bail, already granted to the petitioner by this Court on 12-11-2007, is hereby recalled.
H.B.T./G-92/K Bail refused.