Table of Contents
Assignment: Case Analysis of Dr. Nadeem Kiani v. Federation of Pakistan (2021 C L D 33)...................2
1. Court and Case Details.......................................................................................................................2
2. Parties Involved.................................................................................................................................2
3. Background and Facts of the Case.................................................................................................2
4. Legal Issues........................................................................................................................................3
5. Arguments of the Learned Counsels..................................................................................................3
6. Laws, Rules, and Precedents Cited....................................................................................................3
Statutory Law:...................................................................................................................................3
Constitutional Provisions:..................................................................................................................4
Case Law Precedents:........................................................................................................................4
International Instrument:..................................................................................................................4
7. Court's Analysis and Reasoning.........................................................................................................4
8. Judgment / Order (Decision)..............................................................................................................5
9. Conclusion and Significance...............................................................................................................6
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Assignment: Case Analysis of Dr. Nadeem Kiani v.
Federation of Pakistan (2021 C L D 33)
1. Court and Case Details
Court: High Court of Lahore
Judge: Justice Jawad Hassan
Case Title: Dr. Nadeem Kiani (Petitioner) vs. Federation of Pakistan
& Others (Respondents)
Writ Petition No.: 9629 of 2019
Date of Decision: 11th November, 2020
Citation: 2021 C L D 33
2. Parties Involved
Petitioner: Dr. Nadeem Kiani
Respondents:
1. Respondent No. 1: Federation of Pakistan (represented by
the Ministry of Commerce)
2. Respondent No. 3: The Registrar of Copyrights, Lahore
3. Respondent No. 4: Ms. Zeeshan Zia Raja (the main
contesting private party)
4. Respondent No. 5: American Lycetuff (Private) Limited (the
company whose intellectual property was in dispute)
3. Background and Facts of the Case
The case originated from a dispute over the intellectual property rights
(IPR) of American Lycetuff (Private) Limited, following the dissolution of
the relationship between the Petitioner (Dr. Nadeem Kiani) and
Respondent No. 4 (Ms. Zeeshan Zia Raja).
Respondent No. 4 filed an application before the Registrar of
Copyrights (Respondent No. 3) for the correction of the record in the
Register of Copyrights.
On 7th August 2018, the Registrar of Copyrights, exercising powers
under Section 41(1) of the Copyright Ordinance, 1962, decided in
favor of Respondent No. 4, holding that the copyright for "American
Lycetuff Junior and Upper School" belonged to her.
The Petitioner, aggrieved by this order, sought to challenge it by
filing an appeal. The statutory forum for such an appeal, as per
Section 76 of the Copyright Ordinance, 1962, is the Copyright
Board.
The core problem was that the Copyright Board, as mandated by
Section 45 of the Ordinance, had not been constituted by the
Federal Government, primarily because the post of its Chairman had
remained vacant for over two years.
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Being left without a functional appellate forum, the Petitioner filed
the present constitutional writ petition in 2019, praying the court to
direct the government to constitute the Copyright Board.
4. Legal Issues
The primary legal issue before the court was:
Whether the Federal Government's failure to constitute the
Copyright Board, thereby denying the Petitioner his statutory
right of appeal, constitutes a violation of his fundamental rights
under the Constitution of Pakistan?
5. Arguments of the Learned Counsels
Arguments by the Petitioner's Counsel (Mr. Muhammad
Saqlain Arshad):
1. The order of the Registrar of Copyrights adversely affected the
Petitioner's rights.
2. The statutory remedy of appeal under Section 76 of the
Copyright Ordinance, 1962, was unavailable because the
appellate forum, the Copyright Board, was non-functional.
3. This failure of the state machinery infringed upon the
Petitioner's fundamental rights, including the right to access
justice and the right to be dealt with in accordance with the
law.
Arguments by Respondent No. 4's Counsel (Mian Sultan
Tanvir Ahmad):
1. The writ petition was not maintainable.
2. He argued that as per Section 76, only an "aggrieved person"
could file an appeal, and the Petitioner did not qualify as one.
3. Therefore, since the Petitioner had no right to appeal in the
first place, he could not complain about the absence of the
appellate forum.
6. Laws, Rules, and Precedents Cited
Statutory Law:
o Copyright Ordinance, 1962 (XXXIV of 1962):
Section 45: Mandates the Central Government to
constitute a Copyright Board, including a Chairman who
is or has been a High Court Judge.
Section 76: Provides any person aggrieved by an order
of the Registrar of Copyrights the right to appeal to the
Copyright Board within three months.
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Constitutional Provisions:
o Article 37(d): A Principle of Policy mandating the State to
ensure the provision of inexpensive and expeditious justice.
o Article 4: Guarantees the right of individuals to be dealt with
in accordance with the law and to enjoy the protection of the
law.
o Article 5(2): Stipulates that obedience to the Constitution
and law is the inviolable duty of every citizen and, by
extension, the State.
o Article 199: Grants the High Court the power to issue orders
and directions for the enforcement of fundamental rights.
Case Law Precedents:
o Ghulam Qadir v. Sh. Abdul Wadood (PLD 2016 SC
712): Emphasized that an appeal is a substantive right, not
a mere procedural formality. It is a continuation of the original
suit where the entire matter is reopened.
o Ovex Technologies v. PCM PK (PLD 2020 Isl.
52): Reiterated that an appellate court exercises the same
powers as the trial court and can re-examine the entire case.
o Watan Party v. Federation of Pakistan (PLD 2011 SC
997): Affirmed that Article 4 of the Constitution is an
inalienable right, ensuring that no detrimental action is taken
against a person's property (including intellectual property)
except in accordance with the law.
o Presson-Descon International v. Joint Registrar of
Companies (PLD 2020 Lah. 869): Highlighted the
importance and valuation of intellectual property rights.
International Instrument:
o Universal Declaration of Human Rights (UDHR), 1948:
Article 8: Right to an effective remedy.
Article 10: Right to a fair and public hearing by an
independent tribunal.
7. Court's Analysis and Reasoning
The court's analysis was comprehensive and multi-faceted:
1. Statutory Obligation Breached: The court first established that
the use of the word "shall" in Section 45 of the Copyright Ordinance
imposes a mandatory duty on the Federal Government to constitute
the Copyright Board. The government's failure to appoint a
Chairman for over two years was a clear breach of this statutory
obligation.
2. Appeal as a Substantive Right: The court robustly rejected the
notion that an appeal is a mere procedural formality. Relying on
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Supreme Court and Islamabad High Court precedents, it held that an
appeal is a substantive right and a crucial mechanism for a higher
forum to correct errors of law or fact from a lower forum.
3. Violation of Constitutional Rights: The court linked the denial of
this substantive right to multiple constitutional violations:
o Article 37(d): The State's failure to provide a functional
appellate forum directly contravened the principle of providing
"inexpensive and expeditious justice."
o Article 4: The Petitioner's inalienable right to be treated in
accordance with the law was violated, as he was prevented
from exercising his legal right to appeal.
o Article 5(2): The State itself was failing in its duty to obey
the law (the Copyright Ordinance) by not constituting the
Board.
4. Dismissal of Respondent's Objection: The court implicitly
overruled Respondent No. 4's objection regarding the Petitioner's
status as an "aggrieved person." By entertaining the petition and
granting relief, the court recognized that the Petitioner had a
legitimate grievance that warranted an appeal, and the state's
failure was the primary impediment.
5. Policy and International Context: The court noted that the
inaction also went against the directives of the National Judicial
Policy Making Committee (NJPMC) to fill vacancies for speedy
justice. It also referenced the UDHR to underscore that the "right to
access justice" and a "fair hearing" are universally recognized
principles.
8. Judgment / Order (Decision)
The High Court, exercising its constitutional jurisdiction under Article 199,
allowed the writ petition and passed the following orders:
1. Mandatory Direction: The Secretary, Ministry of Commerce
(Respondent No. 1), was directed to prioritize the appointment
of the Chairman of the Copyright Board as per Section 45 of
the Ordinance.
2. Strict Timeline: The entire process for the appointment was
ordered to be completed within one month.
3. Remedy for the Petitioner: Once constituted, the Petitioner was
permitted to file his appeal before the Copyright Board under
Section 76 of the Ordinance.
4. Condonation of Delay: Crucially, the court ruled that the
intervening period of approximately two years, during which the
Board was non-functional, would not be counted against the
Petitioner for the purpose of the three-month limitation period. The
appeal was to be decided strictly on its merits.
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9. Conclusion and Significance
This judgment is a significant affirmation of the judiciary's role in holding
the executive accountable for its statutory and constitutional duties. The
Lahore High Court:
Upheld the Sanctity of Substantive Rights: It firmly established
that a statutory right of appeal is a fundamental component of the
justice system.
Enforced Constitutional Principles: It gave practical teeth to the
Principles of Policy (Article 37) and fundamental rights (Articles 4 &
5), demonstrating that they are not merely aspirational but
enforceable.
Protected Intellectual Property Rights: By ensuring the
availability of an appellate mechanism, the judgment strengthened
the framework for protecting intellectual property, which is crucial
for a modern economy.
Provided Effective Relief: The court did not just declare the law
but provided a concrete, time-bound solution, including condoning
the delay, to ensure that justice was ultimately served.
The case serves as a precedent that government inaction, which renders
statutory remedies illusory, is a violation of fundamental rights and will be
remedied by the writ jurisdiction of the High Courts.
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