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ISLAMABAD, Nov 6 (APP): The President has
promulgated the Prevention of Electronic Crimes Ordinance, 2008 (Ordinance No. IX of 2008) to make
provision for prevention of the electronic crimes. This Ordinance may be called the Prevention of Electronic Crimes Ordinance,
2008. This Ordinance extends to the whole of Pakistan
and it shall apply to every person who commits an offence under this Ordinance irrespective of his nationality or citizenship whatsoever or in any place outside or inside
Pakistan, having detrimental effect on the security of Pakistan or its nationals or
national harmony or any property or any electronic system or data located in
Pakistan or any electronic system or data capable of being connected, sent to,
used by or with any electronic system in Pakistan.
It shall come into force at once and shall be deemed to have taken effect on the
29th September, 2008.
Following is the text of the Ordinance:
WHEREAS it is expedient of prevent any action
directed against the confidentiality, integrity and availability of electronic system, networks and data as well as the misuse of such system, networks and data by providing for
the punishment of such actions and to provide mechanism for investigation, prosecution and trial of offenses and for matters connected herewith or
ancillary thereto;
AND WHEREAS THE the National Assembly is not in session and the President is
satisfied that the circumstances exist which render it necessary to take
immediate action;
NOW, THEREFORE, in exercise of the powers
conferred by clause (1) of
Article 89 of the Constitution of the Islamic Republic of Pakistan, and in exercise of all powers enabling in that behalf, the President is pleased to make and promulgate the following Ordinance:-
2. Definitions.- (1) In this Ordinance, unless there is anything repugnant in the subject or context,-
(a)
“access” means gaining access to any electronic system or data held in an
electronic system or by causing the electronic system to perform any function to
achieve that objective;
(b)
“Authority” means the Pakistan Telecommunication Authority established under
section 3 of the Pakistan Telecommunication (Re-organization) Act, 1996 (XVII of
1996);
(c)
“Code” means the Code of Criminal Procedure, 1898( Act V of 1898);
(d)
“Constitution” means Constitution of the Islamic Republic of Pakistan;
(e)
“data” means representations of information or of concepts that are being prepared or have been prepared in a form suitable
for use in an electronic system
including but not limited to computer program,
text, images, sound, video and information within a database or electronic
system;
(f) “decision of the Authority” means decision given, determination made or
order passed by the Authority under any of the provisions of the Pakistan Telecommunication (Re-organization) Act, 1996
(XVII of 1996) on any matter relating to one or more licensed operators pursuant
to the powers conferred upon the Authority by any other law, rule, regulation or
directive for the time being in force which includes any interim order passed by
the Authority pending final decision;
(g)
“Electronic Certification Accreditation Council” means the council established
under section 18 of the Electronic Transaction Ordinance, 2002 (LI of 2002);
(h)
“electronic” includes but not limited to electrical, digital, analogue, magnetic, optical, biochemical, electrochemical,
electromechanical,electromagnetic, radio electric or wireless technology;
(i)
“electronic device” means any hardware which performs one or more specific
functions and operates on any form or combination of electrical energy;
(j) “electronic mail message” means any data generated by an electronic system
for a unique electronic mail address;
(k) “electronic mail address” means a destination, commonly expressed as a
string of characters, consisting of a unique user or group name or mailbox,
commonly referred to as the local part, and a reference to an internet or
intranet domain, commonly referred to as the domain part, whether or not
displayed, to which an electronic mail message can be sent or delivered or
originated from and includes an electronic mail address which may be permanent,
dynamic or disposable;
(1) “electronic system” means any electronic device or a group of
interconnected or related devices, one or more of which, pursuant to a program
or manual or any external instruction, performs automatic processing of
information or data and may also include a permanent, removable or any other
electronic storage medium;
(m)
“encrypted data” means data which has been transformed or scrambled from its
plain version or text to an unreadable or incomprehensible format and is
recoverable by an associated decryption or decoding technique, regardless of the
technique utilized for such transformation or scrambling and irrespective of the
medium in which such data occurs or can be found for the purposes of protecting
such data;
(n) “function” includes logic, control, arithmetic, deletion, storage and
retrieval and communication or telecommunication to, from or within an
electronic system;
(o) “Interpol” means International Criminal Police Organization;
(p) “offence” includes,-
(i)
an offence punishable under this Ordinance;
(ii) an offence punishable under the laws mentioned in the Schedule ; or
(iii) any other offence punishable under any other law for the time being in
force if committed through or by using any computer, electronic system,
electronic means or electronic device as a means or tool;
(q) “plain version” means original data before it has been transformed or
scrambled to an unreadable or incomprehensible format or after it has been
recovered by using any decryption or decoding technique;
(r) “rules” means rules made under this Ordinance; (s) “Schedule” means the
Schedule to this Ordinance;
(t) “sensitive electronic system” means an electronic system used directly in
connection with or necessary for,-
(i)
the security, defence or international relations of Pakistan;
(ii) the existence or identity of a confidential source of information relating
to the enforcement of criminal law;
(iii) the provision of services directly related to communications
infrastructure, banking and financial services, public utilities, courts, public
transportation, public key infrastructure, payment systems infrastructure or
e-commerce infrastructure ;
(iv) the protection of public safety including systems related to essential
emergency services such as police, civil defence and medical services ;
(iv) the purpose declared as such by the Federal Government in accordance with
the prescribed procedure ; or
(vi) containing any data or database protected as such, by any other laws.
(u) “service provider” includes but not limited to ,-
(i)
a person acting as a service provider in relation to sending, receiving,
storing or processing of electronic communication or the provision of other
services in relation to electronic communication through any electronic system;
(ii) a person who owns, possesses, operates, manages or controls a public
switched network or provides telecommunication services; or
(iii) any other person who processes or stores data on behalf of such electronic
communication service or users of such service;
(v) “subscriber information” means any information contained in any form that
is held by a service provider, relating to subscriber’s services other’than
traffic data and by which can be established,-
(i)
the type of communication service used, the technical provisions taken thereto
and the period of service;
(ii) the subscriber’s identity, postal geographic, “electronic mail address,
telephone and other access number, billing and payment information, available on
the basis of the service agreement or arrangement; or (iii) any other
information
on the site of the installation of communication equipment, ¦ available on the
basis of the service agreement or arrangement;
(w)
“traffic data” means any data relating to a communication by means of an
electronic system, generated by an electronic system that formed a part in
the chain of communication, indicating the communication’s origin,
destination, route, time, date, size, duration, or type of underlying
service;
(x) “Tribunal” means the Information and Communication Technologies Tribunal
constituted under section 31; and
(y) “unauthorized access” means access of any kind by any person to any
electronic system or data held in an electronic system or electronic device,
without authority or in excess of authority, if he is not himself entitled to
control access of the kind in question to the electronic system or electronic
device, or data and he does not have consent to such access from any person, so
entitled.
CHAPTER-II
OFFENCES AND
PUNISHMENTS
3. Criminal access .- Whoever intentionally gains unauthorized access to the
whole or any part of an electronic system or electronic device with or without
infringing security measures, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine not exceeding
three hundred thousand rupees, or with both.
4. Criminal data access,- Whoever intentionally causes any electronic
system or electronic device to perform any function for the purpose of gaining
unauthorized access to any data held in any electronic system or electronic
device or on obtaining such unauthorized access shall be punished with
imprisonment of either description for a term which may extend to three years,
or with fine or with both. 5. Data damage.- Whoever with intent to illegal
gain or cause harm to the public or any person, damages any data shall be
punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
Explanation .- For the purpose of this section the expression “data damage”
includes but not limited to modifying, altering, deleting, deterioration,
erasing, suppressing, changing location of data or making data temporarily or
permanently unavailable, halting electronic system, choking the networks or
affecting the reliability or usefulness of data.
6.
System damage.- Whoever with intent to cause damage to the public or any person
interferes with or interrupts or obstructs the functioning, reliability or
usefulness of an electronic system or electronic device by inputting,
transmitting, damaging, deleting, altering, tempering, deteriorating or
suppressing any data or services or halting electronic system or choking the
networks shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine or, with both.
Explanation .- For the purpose of this section the
expression “services” include any kind of service provided through electronic
system.
7.
Electronic fraud.- Whoever for wrongful gain interferes with or uses any data,
electronic system or electronic device or induces any person to enter into a
relationship or with intent to deceive any person, which act or omission is
likely to cause damage or harm to that person or any other person shall be
punished with imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.
8.
Electronic forgery.- Whoever for wrongful gain interferes with data, electronic
system or electronic device, with intent to cause damage or injury to the public
or to any person, or to make any illegal claim or title or to cause any person
to part with property or to enter into any express or implied contract, or with
intent to commit fraud by any input, alteration, deletion, or suppression of
data, resulting in unauthentic data with the intent that it be considered or
acted upon for legal purposes as if it were authentic, regardless of the fact
that the data is directly readable and intelligible or not shall be punished
with imprisonment of either description for a term which may extend to seven
years, or with fine or with both.
9.
Misuse of electronic system or electronic device.- (1) Whoever produces,
possesses, sells, procures, transports, imports, distributes or otherwise makes
available an electronic system or electronic device, including a computer
program, designed or adapted primarily for the purpose of committing any of the
offences established under this Ordinance or a password, access code, or similar
data by which the whole or any part of an electronic system or electronic device
is capable of being accessed or its functionality compromised or reverse
engineered , with the intent that it be used for the purpose of committing any
of the offences established under this Ordinance, is said to commit offence of
misuse of electronic system or electronic devices:
Provided that the provisions of this section shall
not apply to the authorized testing or protection of an electronic system for
any lawful purpose.
(2)
Whoever commits the offence described in sub-section (1) shall be
punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
10.
Unauthorized access to code.- Whoever discloses or obtains any password, access
as to code, system design or any other means of gaining access to any
electronic system or data with intent to obtain wrongful gain, do reverse
engineering or cause wrongful loss to any person or for any other unlawful
purpose shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
11.
Misuse of encryption.- Whoever for the purpose of commission of an offence or
concealment of incriminating evidence, knowingly and willfully encrypts any
incriminating communication or data contained in electronic system relating to
that crime or incriminating evidence, commits the offence of misuse of
encryption shall be punished with imprisonment of either description for a term
which may extend to five years, or with fine, or with both.
12.
Malicious code.- (1) Whoever willfully writes, offers, makes available,
distributes or transmits malicious code through an electronic system or
electronic device, with intent to cause harm to any electronic system or
resulting in the corruption, destruction, alteration, suppression, theft or loss
of data commits the offence of malicious code:
Provided that the provision of this section shall
not apply to the authorized testing, research and development or protection of
an electronic system for any lawful purpose.
Explanation,- For the purpose of this section the
expression “malicious code” includes but not limited to a computer program or a hidden function in a program that damages data or compromises the electronic system’s performance or uses the electronic system resources without proper
authorization, with or without attaching its copy to a file and is capable of spreading over
electronic system with or without human intervention including virus, worm or
Trojan horse.
(2) Whoever commits the offence specified in sub-section (1) shall be punished
with imprisonment of either description for a term which may extend to five
years, or with fine or with both.
13.
Cyber stalking.- (1) Whoever with intent to coerce , intimidate, or harass any
person uses computer, computer network, internet, network site ,electronic mail
or any other similar means of communication to,-
(a) communicate obscene, vulgar, profane, lewd, lascivious , or indecent
language, picture or image;
(b) make any suggestion or proposal of an obscene nature;
(c) threaten any illegal or immoral act;
(d) take or distribute pictures or photographs of any person without his
consent or knowledge; or
(e) display or distribute information in a manner that substantially increases
the risk of harm or violence to any other person, commits the offence of cyber
stalking.
(2) Whoever commits the offence specified in sub-section (1) shall be punishable with imprisonment of either description for a term which may extend to seven years or with fine not exceeding three hundred thousand rupees, or
with both:
Provided that if the victim of the cyber stalking under sub-section (1) is a
minor the punishment may extend to ten years or with fine not less than one
hundred thousand rupees, or with both.
14.
Spamming.- (1) Whoever transmits harmful, fraudulent, misleading, illegal or
unsolicited electronic messages in bulk to any person without the express
permission of the recipient, or causes any electronic system to show any such
message or involves in falsified online user account registration or falsified
domain name registration for commercial purpose commits the offence of
spamming. (2) Whoever commits the offence of spamming as described in
sub-section (1) shall be punishable with fine not exceeding fifty thousand
rupees if he commits this offence of spamming for the first time and for every
subsequent commission of offence of spamming he shall be punished with
imprisonment of three months or with fine, or with both.
15.
Spoofing.(l) Whoever establishes a website, or sends an electronic messagewith a
counterfeit source intended to be believed by the recipient or visitor or its
electronic system to be an authentic source with intent to gain unauthorized
access or obtain valuable information which later can be used for any unlawful
purposes commits the offence of spoofing. (2) Whoever commits the offence of
spoofing specified in sub-section (1) shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or
with both.
16.
Unauthorized interception.- (1) Whoever without lawful authority intercepts by technical means, transmissions of data to, from
or within an electronic system including electromagnetic emissions from an
electronic system carrying such data commits the offence of unauthorized
interception. (2) Whoever commits the offence of unauthorized interception
described in sub-section (1) shall be punished with imprisonment of either
description fora term which may extend to five years, or with fine not exceeding
five hundred thousand rupees, or with both.
17.
Cyber terrorism.- (1) Any person, group or organization who, with terroristic
intent utilizes, accesses or causes to be accessed a computer or computer
network or electronic system or electronic device or by any available means, and
thereby knowingly engages in or attempts to engage in a terroristic act commits
the offence of cyber terrorism.
Explanation l.- For the purposes of this section
the expression “terroristic intent” means to act with the purpose to alarm,
frighten, disrupt, harm, damage, or carry out an act of violence against any
segment of the population, the Government or entity associated therewith.
Explanation 2.- For the purposes of this section
the expression “terroristic act” includes, but is not limited to,-
(a)
altering by addition, deletion, or change or attempting to alter information
that may result in the imminent injury, sickness, or death to any segment of the
population;
(b)
transmission or attempted transmission of a harmful program with the purpose of
substantially disrupting or disabling any computer network operated by the
Government or any public entity;
(c)
aiding the commission of or attempting to aid the commission of an act of
violence against the sovereignty of Pakistan, whether or not the commission of
such act of violence is actually completed; or
(d)
stealing or copying, or attempting to steal or copy, or secure classified
information or data necessary to manufacture any form of chemical, biological or
nuclear weapon, or any other weapon of mass destruction.
(2)
Whoever commits the offence of cyber terrorism and causes death of anyperson shall be punishable with death or imprisonment for life, and with fine
and
in any other case he shall be punishable with imprisonment of either description
for a term which may extend to ten years, or with fine not less than ten-million
rupees, or with both.
18.
Enhanced punishment for offences involving sensitive electronic systems.-(l)
Whoever causes criminal access to any sensitive electronic system in the course
of the commission of any of the offences established under this Ordinance shall,
in addition to the punishment prescribed for that offence, be punished with
imprisonment of either description for a term which may extend to ten years, or
with fine not exceeding one million rupees, or with both. (2) For the
purposes of any prosecution under this section, it shall be presumed, until
contrary is proved, that the accused had the requisite knowledge that it was a
sensitive electronic system.
19.
Of abets, aids or attempts to commits offence .- (1) Any person who knowingly and willfully abets the commission of or
who aids to commit or does any act preparatory to or in furtherance of the
commission of any offence under this Ordinance shall be guilty of that offence
and shall be liable on conviction to the punishment provided for the offence.
(2) Any person who attempts to commit an offence
under this Ordinance shall be punished for a term which may extend to one-half
of the longest term of imprisonment provided for that offence.
Explanation.- For aiding or abetting an offence to
be committed under this section, it is immaterial whether the offence has been
committed or not.
20.
Other offences.- Whoever commits any offence other than those expressly provided
under this Ordinance, with the help of computer electronic system, electronic
device or any other electronic means shall be punished, in addition to the
punishment provided for that offence, with imprisonment of either description
for a term which may extend to two years, or with fine not exceeding two hundred
thousand rupees, or with both.
21.
Offences by corporate body.- A corporate body shall be held liable for an
offence under this Ordinance if the offence is committed on its instructions or for its benefit. The corporate body shall be
punished with fine not less than one hundred thousand rupees or the amount involved in
the offence whichever is the higher:
Provided that such punishment shall not absolve
the criminal liability of the natural person who has committed the offence.
Explanation.- For the purposes of this section
corporate body, includes a body of persons incorporated under any law such as
trust, waqf, an association, a statutory body or a company.
CHAPTER-III
PROSECUTION AND
TRIAL OF OFFENCES
22.
Offences to be compoundable and non-cognizable.- All offences under this Ordinance shall be compoundable, non-cognizable
and bailable except the offences punishable with imprisonment for seven years or
more.
23.
Prosecution and trial of offences.- (1) The Tribunal shall take cognizance of
and try any offence under this Ordinance .
(2) In all matters with respect to which no
procedure has been provided in this Ordinance or the rules made thereunder, the
provisions of the Code shall, mutatis mutandis, apply for the trial.
(3) All proceedings before the Tribunal shall be deemed to be judicial
proceedings within the meanings of sections 193 and 228 of the Pakistan Penal
Code, 1860 (XLV of 1860) and the Tribunal shall be deemed to be a Court for the
purposes of sections 480 and 482 of the Code.
24.
Order for payment of compensation.- The Tribunal may, on awarding punishment of
imprisonment or fine or both for commission of any offence, make an order for
payment of any compensation to the victim for any damage caused to his
electronic system or data by commission of the offence and the compensation so
awarded shall be recoverable as arrears of land revenue:
Provided that the compensation awarded by the
Tribunal shall not prejudice any right to a civil remedy for the recovery of
damages beyond the amount of compensation awarded.
CHAPTER-IV
ESTABLISHMENT OF
INVESTIGATION AND PROSECUTION AGENCIES
25.
Establishment of investigation agencies and prosecution.- The Federal Government shall establish a specialized
investigation and prosecution cell within Federal Investigation Agency to
investigate and prosecute the offences under this Ordinance:
Provided that till such time any agency is so
established, the investigation and prosecution of an offence shall be conducted in accordance
with the provisions of the Code:
Provided further that any police officer investigating an offence under this
Ordinance may seek assistance of any special investigation agency for any
technical in-put, collection and preservation of evidence.
26.
Powers of officer.- (1) Subject to obtaining search warrant an investigation
officer shall be entitled to,-
(a) have access to and inspect the operation of any electronic system;
(b) use or cause to be used any such electronic system to search any data
contained in or available to such electronic system;
(c) have access to or demand any information, code or technology which has the
capability of retransforming or unscrambling encrypted data contained or
available to such electronic system into readable and comprehensible format or
plain version;
(d) require any person by whom or on whose behalf, the investigating officer
has reasonable cause to believe, any electronic system has been used;
(e) require any person having charge of, or otherwise concerned with the operation of such electronic system to provide him
reasonable technical and other assistance as he may require for the purposes of
clauses (a), (b) and (c); and (f) require any person who is in possession of decryption information of under
investigation electronic system , device or data to grant him access to such
decryption information necessary to decrypt data required for the purpose of
investigating any such offence.
Explanation.- Decryption information means
information or technology that enables a person to readily retransform or
unscramble encrypted data from its unreadable and from cipher text to its plain
text.
(2) The police officer may, subject to the proviso, require a service provider to submit subscriber information relating to such
services in respect of a person under investigation in that service provider’s
possession or control necessary for the investigation of the offence:
Provided that the investigating officer shall get
prior permission to investigate any service provider from the licensing
authority where prior permission of the licensing authority is required under
any law to investigate the licensed service provider.
(3) Any person who obstructs the lawful exercise of the powers under sub-sections (1) or (2) shall be liable to
punishment with imprisonment of either description for a term which may extend to one
year, or with fine not exceeding one hundred thousand rupees, or with both.
27.
Real-time collection of traffic data.- (1) The Federal Government may require a
licensed service provider, within its existing or required technical capability,
to collect or record through the application of technical means or to co-operate
and assist any law enforcement or intelligence agency in the collection or
recording of traffic data or data, in real-time, associated with specified
communications transmitted by means of an electronic system. (2) The Federal
Government may also require the service provider to keep confidential the fact
of the execution of any power provided for in this section and any information
relating to it.
28.
Retention of traffic data,- (1) A service provider shall, within its existing or
required technical capability, retain its traffic data minimum for a period of
ninety days and provide that data to the investigating agency or the
investigating officer when required. The Federal
Government may extend the period to
retain such date as and when deems appropriate.
(2) The service providers shall retain the traffic data under sub-section (1) by
fulfilling all the requirements of data retention and its originality as provided under sections 5 and 6 of the Electronic Transaction Ordinance, 2002
(LI of 2002).
(3) Any person who contravenes the provisions of this section shall be
punished with imprisonment for a term of six months, or with fine, or with both.
29. Trans-border
access.- For the purpose of investigation the Federal Government or the investigation agency may, without the permission of any
foreign
Government or international agency access publicly available electronic system or data notwithstanding the geographically location of such electronic system or data, or access or receive, through an electronic system, data located in
foreign country or territory, if it obtains the lawful and voluntary consent of the
person who has the lawful authority to disclose it:
Provided that such access is not prohibited under the law of the foreign
Government or the international agency:
Provided further that the investigating agency shall inform in writing the Ministry of Foreign Affairs of Government of Pakistan and other relevant
agencies as the case may be about the investigation conducted under this section.
CHAPTER - V
INTERNATIONAL
COOPERATION
30. International
cooperation.- (1) The Federal Government may cooperate with any foreign Government, Interpol or any other international agency with
whom
it has, or establishes, reciprocal arrangements for the purposes of
investigations or proceedings concerning offences related to electronic system
and data, or for the collection of evidence in electronic form of an offence or
obtaining expeditious preservation and disclosure of traffic data or data by
means of an electronic system or real-time collection of traffic data associated
with specified communications or interception of data.
(2)
The Federal Government may, without prior request, forward to such foreign
Government, Interpol or other international agency, any information obtained
from its own investigations if it considers that the disclosure of such
information might assist the other Government or
agency in initiating or carrying out investigations or proceedings concerning any
offence.
(3)
The Federal Government may require the foreign Government, Interpol or other
international agency to keep the information provided confidential or use it
subject to some conditions.
(4)
The investigating agency shall, subject to approval of the Federal Government, be responsible for sending and
answering requests for mutual assistance, the execution of such requests or
their transmission to the authorities competent for their execution.
(5)
The Federal Government may refuse to accede to any request made by such foreign Government, Interpol or international
agency if the request concerns an offence which is likely to prejudice its
sovereignty, security, public order or other essential interests.
(6)
The Federal Government may postpone action on a request if such action would
prejudice investigations of proceedings conducted by its investigation agency.
Chapter - VI
INFORMATION AND COMMUNICATION TECHNOLOGIES
TRIBUNAL
31. Information and Communication
Technologies Tribunal .- (1) As soon as possible after the
commencement of this Ordinance , the Federal Government shall, by notification in the
official Gazette, constitute the
Information and Communication Technologies Tribunal whose principal seat shall be
at Islamabad.
(2) The Tribunal may hold its
sittings at such place or places as the Federal Government may decide.
(3) The Tribunal shall consist
of a chairman and as many members as the Federal Government may determine but
not more than seven members.
(4) The Chairman may constitute
Benches of the Tribunal and unless otherwise directed by him a Bench shall
consist of not less than two members. A Bench shall exercise such powers and
discharge such functions as may be prescribed. There shall be established at
least one Bench in each province.
(5) The Federal Government shall
appoint the Chairman and members of the Tribunal.
32. Qualifications for
appointment.- (1) A person shall not be qualified for appointment as Chairman
unless he is, or has been, or is qualified for appointment as a judge of a High
Court.
(2) A person shall not
be qualified for appointment as a member unless he -
(a) has for two years served as
a District and Sessions Judge;
(b) has for a period of not less
than ten years been an advocate of a High Court; or
(c) has special knowledge of
legislation and professional experience of not less than ten years in the
field of telecommunication and information technologies.
33. Salary, allowances and other
terms and conditions of services.- The salary, allowances, privileges and the
other terms and conditions of service of the Chairman and members of the
Tribunal shall be such as the Federal Government may, by notification in
official Gazette, determine.
34. Resignation and removal.- (1)
The Chairman or a member of the Tribunal may, by writing under his hand
addressed to the Federal Government, resign his office:
Provided that the
Chairman or a member shall, unless he is permitted by the Federal Government to
relinquish his office sooner, continue to hold office until the expiry of three
months from the date of receipt of such resignation or until a person duly
appointed as his successor enters upon his office whichever is earlier.
(2) The Chairman or a member of
the Tribunal shall not be removed from his office before expiry of the term
determined under section 33, by the Federal Government except as may be
prescribed.
(3) The Federal Government may,
by rules, regulate the procedure for the investigation of misconduct or physical
or mental incapacity of the Chairman and a member of the Tribunal.
35. Saving Tribunal’s
proceedings.- No act or proceedings of the Tribunal shall be called in question
in any manner on the ground merely of any defeat in the constitution of the
Tribunal.
36. Employees of the Tribunal.-
(1) The Federal Government shall provide the Tribunal with such employees as the
Government may deem appropriate in consultation with the Chairman of the
Tribunal.
(2) The employees of the
Tribunal shall perform their duties under general superintendence of the
Chairman of the Tribunal.
(3) The salaries, allowances and
other conditions of service of the employees of the Tribunal shall be such as
may be prescribed by the Federal Government.
37. Right to legal
representation.- The parties in appeal may either appear in person or
authorize one or more legal practitioners, and in case of a corporate body any
of its officers, to present the case before the Tribunal.
38. Amicus curiae. - (1) The
Tribunal may, if it so requires, be assisted in technical aspects in any case by
an amicus curiae having knowledge and experience in information communication
technologies, finance and economics.
(2) The Federal
Government shall maintain a list of amicus curiae having relevant qualifications
and experience.
(3) The Tribunal in consultation
with the Federal Government shall determine the remuneration of the amicus
curiae and the Tribunal may decide the party or parties to pay such
remuneration, keeping in view the circumstances of each case.
39. Procedure and powers of
Tribunal.- (1) Subject to the provisions of this Ordinance and the rules made
thereunder, the Tribunal,--
‘
(i) may, where it deems
necessary, apply the procedures as provided in the Code or, as the case may be,
in the Code of Civil Procedure, 1908 (Act V of 1908);
(ii) in the exercise of its
civil jurisdiction, shall have powers vested in the civil court under the Code
of Civil Procedure, 1908; and
(iii) in the exercise of its
criminal jurisdiction, shall have the same powers as are vested in the Court of
Session under the Code.
40. Appeal to Tribunals.- (1) Any
person aggrieved by any of the following orders may, within fifteen days from
the date of such order, prefer an appeal to the Tribunal, namely :--
(a) any decision of the
Authority; or
(b) any decision of the
Electronic Certification Accreditation Council:
Provided that no appeal shall
lie to the Tribunal from an order passed by the Authority or the Electronic
Certification Accreditation Council with the consent of the parties.
(2) Any appeal against a
decision of the Authority shall be accompanied by a court fee,-
(a) ten thousand rupees where
the valuation of the subject matter in issue is not more than five
million rupees;
(b) fifty thousand rupees where
the valuation of the subject matter in issue is more than five million rupees
but not more than ten million rupees; and
(c) one hundred thousand rupees
where the valuation of the subject matter in issue is more than ten million
rupees. if,
(3) The appeal filed before the
Tribunal under sub-section (1) shall be dealt with by it as expeditiously as
possible and the Tribunal shall dispose of the appeal finally within ninety days
from the date of receipt of the appeal.
41. Powers of Tribunal.- The
Tribunal while hearing an appeal under section 40 shall have all the
powers as are vested in the court of first appeal under the Code in exercise of its civil
jurisdiction in respect of appeal against any decision or order of the
Authority or the Electronic Certification Accreditation Council,
42. Limitation”.- The provisions
of the Limitation Act, 1908 (IX of 1908), shall, mutatis mutandis ,
apply to the proceedings of Tribunal. 43. Appeal to High Court. - (1)
Any person aggrieved by -
(1) any decision or order of the
Tribunal made under section 40 may prefer second appeal to the respective High
Court within thirty days from the date of the decision or order of the Tribunal:
Provided that appeal
under this clause shall lie only if the High Court grants leave to appeal;
(ii) an order of
conviction passed by the Tribunal in respect of any offence under this Ordinance
may prefer an appeal to the respective High Court within thirty days of the
decision or order of the Tribunal.
(2) An appeal against an order
of the Tribunal under section 40 or an order of sentence
exceeding ten years shall be heard by the Division Bench of the High Court.
44. Civil court not to
have jurisdiction.- No court shall have jurisdiction to entertain any
suit or proceeding in respect of any matter which the Tribunal constituted under
this Ordinance is empowered by or under this Ordinance to determine and no
injunction shall be granted by any court or other authority in respect of any
action taken or to betaken in pursuance of any power conferred by or under this
Ordinance.
45. Transitory
proceedings.- (1) Until the establishment of the Tribunal all cases,
proceedings and appeals, subject matter of which is within jurisdiction of the
Tribunal, shall continue to be heard and decided by the competent forum existing
under any law for the time being in force.
(2) On the constitution of the
Tribunal all cases, proceedings and appeals shall stand transferred to
and be heard and disposed of by the Tribunal.
(3) On transfer of cases,
proceedings and appeals under sub-section (2), the Tribunal shall proceed
from the stage the proceedings had reached immediately prior to the transfer and
shall not be bound to recall any witness or again record any evidence mat may
have been recalled.
CHAPTER - VII MISCELLANEOUS
46. Ordinance to
override other laws.- The provisions of this Ordinance shall have effect
notwithstanding anything to the contrary contained in any other law for the time being in
force.
47. Power to amend
Schedule.- The Federal Government may. by notification in the official Gazette, amend
the Schedule so as to add any entry thereto or modify or omit any entry therein.
48. Powers to make
rules. - (1) The Federal Government may , by notification in the official
Gazette, make rules for carrying out purposes of the Tribunal.
49. Removal of
difficulties. - If any difficulty arises in giving effect to the provisions of
this Ordinance, the Federal Government may, by order published in the official
Gazette , make such provisions not inconsistent with the provisions of this
Ordinance as may appear to be necessary for removing the difficulty.
THE FIRST SCHEDULE
(See section 2(p)(ii))
1. The Electronic Transactions
Ordinance, 2002 (LI of 2002).
2. The Pakistan
Telecommunication (Re-organization) Act, 1996 (XVII
of 1996).
3. The Telegraph Act, 1885
(XIII of 1885).
4. The Wireless Telegraphy Act,
1933 (XVII of 1933).
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