Summary: Criminal Procedure Code (V of 1898) --- ----S. 497--- Constitution of Pakistan, Arts. 199, 9, 10, 14 & 175(2)--- Specific Relief Act (I of 1877), Ss.56(d), 56(e), 56(i) & 56(j)--- Constitutional jurisdiction exercised by the High Court in passing restraining/injunctive orders in a bail matter involving factual controversy including medical grounds---Legality---Contention of the respondent (accused in a criminal case) was that passing of restraining order by High Court in his bail application sought on serious medical grounds amounted to depriving him of his fundamental rights guaranteed under Arts. 9, 10 & 14 of the Constitution and no injunctive order could be passed by High Court in criminal cases---Validity---High Court in the exercise of its writ jurisdiction does not delve into factual controversies requiring inquiry, evidence etc.---While the admissibility and weightage of a medical opinion might be considered by a trial/appellate court, however, no case was apparent before the High Court as to how the same merited interference via direct recourse to writ jurisdiction---Art.199 of the Constitution contemplates discretionary relief, however, such discretion may only be exercised if permissible under the law---Such discretion can never be unfettered, and it has to be exercised per settled judicial principles and cannot be employed to defeat the manifest legislative intent---Any restraint placed upon proceeding with a bail application would judicially presume that a person/respondent was disentitled to bail, which determination was for the court of competent criminal jurisdiction, and the court concluding appropriate proceedings, and under no circumstances within the remit of High Court---Ordinary course of criminal proceedings could not be allowed to be deflected by resort to writ jurisdiction---Statutory fora were competent to determine the viability of the relevant criminal proceedings and regulate the custody of any accused and no case had been set forth before High Court to merit the invocation of the discretionary writ jurisdiction of High Court in such regard---Constitutional petition was dismissed with costs accordingly. 2016 CLC 1; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415; Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Abdul Rehman Bajwa v. Sultan and others PLD 1981 SC 522; Abdul Aleem v. Special Judge (Customs) Lahore and others 1982 SCMR 522; A Habib Ahmed v. MKG Scott Christian and others PLD 1992 SC 353; Haji Sardar Khalid Saleem v. Muhammad Ashraf and others 2006 SCMR 1192; Syed Iqbal Hussain Shah Gillani v. PBC and others 2021 SCMR 425 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 rel. Muhammad Afzal Jagirani and Muhammad Ibrahim Lashari for Petitioner. Abdul Rehman Mughal for Respondent No.6. Abdul Hamid Bhurgri, Additional Advocate General and Aitbar Ali Bullo, Deputy Prosecutor General for Official Respondents. Date of hearing: 15th May, 2024.

Summary: ----S. 95(5), (6), (7) & (8)---Constitution of Pakistan, Art.199---Consolidation of results---Recounting of ballot papers---Jurisdiction of Election Commission of Pakistan (ECP)---Scope---Interference by ECP after completion of process of consolidation of results by Returning Officer (R.O.)---Legality---Long investigation of ECP in resolving the controversy as to consolidation of results---Effect---Plea of haste on part of R.O. in completing the consolidation results---Validity---Recount of ballot papers and the power to be exercised by ECP has to be done before conclusion of the consolidation proceedings and if the exercise of power is not completed as contemplated by S.95(6), of Elections Act, 2017 ECP cannot thereafter proceed to exercise such power on the misplaced notion that it can do so by invoking the provisions of S.8 of the Elections Act, 2017, (Act) or any other provision in law or the Constitution---ECP delayed the matter and initiated inquiries into the entire process of election,which was not the mandate of S.95(6) of the Act as when an application was made to ECP it merely had to see whether the R.O. had proceeded in accordance with law while refusing recount of votes under the powers conferred by S.95(5) and no more---In any case, it could only have done so prior to completion of the consolidation proceedings by the Returning Officer---Returning Officer could have awaited the period prescribed for consolidation proceedings to be completed and given in proviso to S.95(7)of the Act but that was for ECP to instruct the R.Os. and indeed some time must be given to ECP to exercise its powers in terms of S.95(6) of the Act---Provision for further time in that regard could only be done by an amendment in the law regarding which High Court was not empowered to issue a direction and it was for the legislature to look into the same---Constitutional petition was dismissed, in circumstances. Ch. Bilal Ejaz v. Election Commission of Pakistan and others (W.P. No.16416 of 2024) rel. Abid Hussain Khichi for Petitioner. Muhammad Shan Gul for Respondent No.3. Asad Ali Bajwa and Ch. Imtiaz Elahi, D.A.Gs. Hassan Ijaz Cheema, A.A.G. Imran Arif Ranjha, Legal Advisor for E.C.P with Haroon Kasi, Director (Law) and Bushra Rasheed Chaudhry, Deputy Director Law ECP. Date of hearing: 15th May, 2024.

Summary: Trade Marks--- ----Infringement by use of deceptively similar sign---Likelihood of confusion---Unfair advantage/detriment to distinctive character or reputation---Joint liability of company directors as accessories---Strict liability tort---Knowledge requirement---Remedies---Account of profits---Apportionment ---Directors' personal liability---A person is not liable as an accessory for a strict liability tort, such as trade mark infringement, unless they have knowledge of the essential facts that make the act wrongful---Liability of accessories is not strict and requires a mental element; mere involvement in the company's activities is insufficient---An account of profits is an equitable remedy aimed at preventing unjust enrichment---It is not punitive and should not be ordered against a person who did not personally benefit from the infringement. The appellants, Lifestyle Equities CV and another, owned UK-registered trade marks for "BEVERLY HILLS POLO CLUB" and associated logos. They brought proceedings against Hornby Street Ltd and its directors, Mr Kashif Ahmed and Ms Bushra Ahmed, alleging that the company's use of "SANTA MONICA POLO CLUB" signs infringed their trade marks under sections 10(2) and 10(3) of the Trade Marks Act 1994. At first instance, the High Court found that Hornby Street Ltd had infringed the trade marks and that the Ahmeds were jointly liable as accessories, despite no findings that they knew or ought to have known of the infringement. The Ahmeds were ordered to account for profits, including a portion of their salaries and a director's loan. The Court of Appeal upheld the finding of liability but set aside the order regarding the director's loan. On appeal to the Supreme Court, the issues were: (1) whether a company director can be held liable as an accessory for the company's strict liability tort of trade mark infringement without knowledge of the essential facts constituting the tort; and (2) whether such a director can be ordered to account for profits not personally received. Accessory liability requires knowledge: A person will only be liable in tort as an accessory if they have knowledge of the essential facts that make the act in question tortious. This applies even where the underlying tort is one of strict liability, such as trade mark infringement under the Trade Marks Act 1994. Accessory liability arises under common law doctrines, principally procuring or authorising the tort, or participation in a common design, each of which requires a fault element. Strict liability applicable to the primary in fringer does not extend to accessories. For a director or third party to be held jointly liable, they must know or wilfully turn a blind eye to facts such as the likelihood of confusion or the unlawful character of the conduct. This requirement ensures that personal fault underlies secondary liability. Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co Ltd [1921] 2 AC 465, 488; Performing Right Society Ltd. v. Ciryl Theatrical Syndicate Ltd. [1924] 1 KB 1, 14-15; C Evans & Sons Ltd. v. Spritebrand Ltd. [1985] 1 WLR 317, Vestergaard Frandsen A/S v. Bestnet Europe Ltd. [2013] UKSC 31; [2013] 1 WLR 1556; Twinsectra Ltd. v. Yardley [2002] UKHL 12; [2002] 2 AC 164 and OBG Ltd. v Allan [2007] UKHL 21; [2008] AC 1 ref. There is a general principle of the common law that a person who knowingly procures another person to commit an actionable wrong will be jointly liable with that other person for the wrong committed. The liability of the procurer is an accessory liability. Where the primary wrong is a breach of contract, this accessory liability takes the form of a distinct tort. Where the primary wrong is a tort, however, there is no need to posit a separate tort of procuring another person to commit a tort. Where the general principle applies, the procurer is made jointly liable for the tort committed by the primary wrongdoer. There is a further, distinct principle of accessory liability by which a person who assists another to commit a tort is made jointly liable for the tort committed by that person if the assistance is more than trivial and is given pursuant to a common design between the parties. On the facts of a particular case both principles may be engaged. But on the present state of the law assistance which falls short of procuring the primary wrongdoer to commit the tort cannot lead to liability unless it is given pursuant to a common design. Although procuring a tort and assisting another to commit a tort pursuant to a common design are distinct bases for imposing accessory liability, they must operate consistently with each other and such that the law of accessory liability in tort is coherent. Considerations of principle, authority and analogy with principles of accessory liability in other areas of private law all support the conclusion that knowledge of the essential features of the tort is necessary to justify imposing joint liability on someone who has not actually committed the tort. This is so even where, as in the case of infringement of intellectual property rights, the tort does not itself require such knowledge. In the present case, the appellants, Mr and Ms Ahmed, were directors of two companies found liable for infringing the respondents' trade marks. The companies accepted liability for marketing clothing under "Santa Monica Polo Club" branding. The claimants argued that the directors were jointly liable by reason of their role in authorising the acts of infringement. However, the case advanced at trial was based solely on the directors' involvement and control, without proving that they knew of any likelihood of confusion or that the branding was legally infringing. No findings were made that the directors had knowledge or blind-eye knowledge of the relevant facts. Therefore, the legal test for accessory liability had not been satisfied, and the imposition of personal liability was ill-founded. Account of Profits limited to personal gains: The equitable remedy of an account of profits is directed at preventing unjust enrichment. It may be awarded against a defendant who has made gains from the wrongful use of another's property or rights, including trade marks. However, such an account is limited to the profits actually made by the defendant personally. It does not extend to profits earned by others, including companies, unless those profits were received or retained by the individual defendant. Colbeam Palmer Ltd. v. Stock Affiliates Pty Ltd (1968) 122 CLR 25 ref. An account of profits is not punitive in nature; it is compensatory and restorative. Accordingly, where no profit was made by the individual, regardless of their level of involvement in the tort, the remedy will be unavailable. This principle also safeguards against the improper use of the account as a means of indirectly punishing or extending liability to non-beneficiaries. Even if a director is found liable for participating in a tort, the account of profits can only be ordered in respect of benefits directly acquired by the individual, and the remedy remains discretionary. In the present case the respondents (Lifestyle) sought to recover both the profits made by the infringing companies and the personal profits of Mr. and Ms Ahmed. Court of Appeal was correct in concluding that the directors could not be liable for company profits in the absence of evidence that those profits were transferred to or retained by them. As there was no finding of personal benefiteven if liability had been established, no account of profits could be granted. A defendant cannot be required to account for someone else's profits. Since no personal gain from infringing acts was proven, and the account was based only on strict liability, no order for an account of profits could be sustained. Salaries and loans not subject to account: A salary paid to a director or employee is not, without more, considered a profit arising from infringing acts. Likewise, the repayment of a legitimate loan advanced by the director to the company is not a benefit derived from infringement. Only where it is shown that such payments were inflated, excessive, or causally connected to infringing profits can they be brought within the scope of an account. General remuneration for services or repayment of legitimate loans will not be considered "profits" derived from wrongful conduct for the purposes of an account. Court of Appeal was right in holding that it was wrong in principle to treat the loan as a profit. A person does not make a profit just by borrowing a sum of money. If the loan is interest-free or at a rate of interest lower than a commercial rate, this difference might generate a profit for the borrower. But Lifestyle had not attempted such a calculation or put its case in this way. Equally, had it been shown that the loan was not really a loan at all but a disguised dividend, the position would be different. But there was no evidence or finding to that effect. Lifestyle had argued that the loan became a profit when Hornby Street was dissolved. This was not an argument which Lifestyle could have made at the trial, as the company was then still in existence and in the hands of administrators. But in the Court of Appeal Lifestyle argued that, even if the judge were wrong to characterise the loan as a profit, his decision should be upheld because the subsequent dissolution of the company meant that what had been a loan had become a profit. Alternatively, Lifestyle argued that, even at the time of the trial, it was apparent that the administrators were not going to pursue Mr. Ahmed for repayment of the loan. The Court of Appeal rightly regarded these matters as irrelevant. If, as a result of supervening events, a loan is forgiven or otherwise ceases to be repayable, that does not alter its character as a loan. Where the Court of Appeal erred was in upholding the judge's decision that part of the salaries paid to the Ahmeds could properly be treated as profits. Again, payments made ostensibly as remuneration may in reality be a way of extracting profits from a company. But there was no allegation, evidence or finding that the salaries paid to the Ahmeds were anything but ordinary remuneration for their services. Whereas an employer may of course profit from the labour of an employee in that the work done by the employee may earn more income for the employer than it costs to employ that person, an employee who receives in return for their services a sum no greater than the fair market value of those services does not make a profit. It was not suggested that the Ahmeds were paid more for their services to Hornby Street than their services were worth. Supreme Court dismissed the appeal filed by Lifestyle and allowed the one filed by Ahmeds. Peter Knox KC, Timothy Sampson and Adam Riley (Instructed by Ronald Fletcher Baker LLP (West End)) for Appellants (in Appeal 2021/0147). Thomas St. Quintin, Rory Brown (Instructed by Brandsmith (London)) for Respondents (in Appeal No.2021/0147) and for Appellant (in Appeal No.2021/0150). Peter Knox KC, Laurent Sykes KC and Timothy Sampson (Instructed by Ronald Fletcher Baker LLP (West End) for Respondents (in Appeal No.2021/0150). Dates of hearing: 20th and 21st February, 2023.

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Summary: Decision overturned ---- Facts: The petitioners, along with co-accused, were charged under sections 365-A/149 of the Pakistan Penal Code (PPC) and section 7(e) of the Anti-Terrorism Act (ATA) for kidnapping for ransom in FIR No. 86/2020, registered at Police Station Injra, District Attock. The trial court convicted the petitioners and sentenced them to death and forfeiture of property. The co-accused were acquitted due to the benefit of the doubt. The petitioners appealed to the Lahore High Court, which converted their death sentences to life imprisonment but upheld the conviction and forfeiture of property. The complainant and the state also filed appeals, which were dismissed. ---Issues: 1. Whether the evidence provided by the prosecution was sufficient and credible. ---2. Whether the investigation conducted by the police was thorough and in accordance with legal standards. ---3. Whether the defense’s claims of false implication due to a financial dispute were credible. ----Judgment: The Supreme Court found numerous inconsistencies and contradictions in the prosecution's evidence. The investigation was deemed casual and lacked thoroughness, including failures to document ransom currency notes properly, use modern technological methods like geofencing, and investigate key witnesses. The defense’s version of events was found credible, supported by defense witnesses, and consistent throughout cross-examination. The evidence against the petitioners, including the call data record (CDR), was found unreliable due to lack of proper authentication and supporting documentation. ----Holding: The appeal by Asmat Ullah (JP No. 431) was allowed, and he was acquitted. The property confiscation ordered by the trial court was to be released. The appeal by Lal Khan (Crl.P. No. 845) was partially allowed to the extent of property forfeiture, while the sentence of imprisonment for life was abated due to his death. The petition by Mehmood ur Rehman (Crl.P. No. 830) seeking to reinstate the death sentence was dismissed. -----Conclusion: The judgments by the Lahore High Court and the trial court were set aside. Asmat Ullah was acquitted and ordered to be released if not detained in any other case. Lal Khan's appeal was abated upon his death, but the order for property confiscation was overturned, benefiting his legal heirs. The petition by the complainant to reinstate the death sentence was dismissed. ---Key Legal References: Section 365-A/149 PPC: Kidnapping or abduction for ransom. Section 7(e) ATA: Anti-Terrorism Act provisions. Section 544-A Cr.P.C.: Compensation to victims. Relevant case laws cited for legal principles on handling call data records, investigation standards, and defense evidence evaluation. ----Reasoning: The Supreme Court emphasized the need for credible, consistent, and corroborated evidence to uphold convictions, especially in cases involving severe penalties like death sentences. The court criticized the investigation's lack of adherence to legal standards and the failure to use available technological tools. The defense's credible and consistent evidence cast significant doubt on the prosecution's case, leading to the petitioners' acquittal and release of property.