The Prevention of Electronic Crimes Ordinance, 2007
THE GAZETTE OF PAKISTAN
EXTRAORDINARY
PUBLISHED BY
AUTHORITY
PART-I
Acts, Ordinances,
President’s Orders and Regulations Government of Pakistan
MINISTRY OF LAW, JUSTICE, HUMAN RIGHTS AND PARLIAMENTARY AFFAIRS
(Law, Justice and Human Rights Division)
F. No. 2(1)/2007-Pub.– The following Ordinance promulgated by the President is hereby
published for general information:---
ORDINANCE No. LXXII OF 2007
AN
ORDINANCE
to make provision for
prevention of the electronic crimes
WHEREAS it is expedient to 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 offences and for
matters connected therewith or ancillary thereto;
AND WHEREAS the National Assembly
stands dissolved 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 :-
CHAPTER I
1.
Short title, extent application and
commencement.- (1) This Ordinance may be called the Prevention of Electronic
Crimes Ordinance, 2007.
(2) It extends to the whole of Pakistan
(3) It shall apply to every person who
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.
(4) It shall come into force at once.
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 Vof 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 related to one or more licensed operators in pursuant to the powers
conferred upon the Authority by any other law, rules, 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, radioelectric 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;
(l)
“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 Organisation;
(p) “offence” includes,
(i) an offences 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 mean 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;
(v) 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 law. (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 3l; 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, 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, networksite,
electronic mail or any other similar means of communication to:---
(a) communicate obscene, vulgar,
profane, lewdl 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;
(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 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.- (1) Whoever establishes a website, or sends an electronic
message with 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 for a 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 1.- 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 any person 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.- (1) Whoever causes criminal access to any sensitive electronic
system in the course of the commission of any of the offences established for
that offence, under this Ordinance shall, in addition to the punishment
prescribed 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.
2I. Offences by corporate body.- A corporate body shall beheld 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 and 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 input, 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);
(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 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 cooperate 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 data 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 Transactions Ordinance 20O2 ( 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 to the
Ministry of Foreign Affairs of Government of Pakistan
CHAPTER-V
INTERNATIONAL COOPERATION
30.
International co-operation.- (1) The Federal Government may
cooperate with any foreign Government, lnterpol 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 a 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 or
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 sch 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 the 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 and allowances, and other terms
and conditions of services.- The salary allowances, privileges, and the other terms and
conditions of service of the Chairman and member 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 success or enters upon his office
whichever is earlier.
(2) The Chairman or a member of the
Tribunal shall not be removed from his office before the expiry of term
specified in 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 defect in
the constitution of the Tribunal.
36.
Employees of the Tribunal.- (1) The Federal Government shall
provide the Tribunal with such employees a 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 ICT 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 ICT 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 is more than ten million rupees.
(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 ICT Tribunal.
43.
Appeal to High Court.- (1) Any person aggrieved by,---
(i) 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 be taken in pursuanceof any power conferred
by or under this Ordinance.
45.
Transitory proceedings.- (1) Until the establishmerrt of the
Tribunal all cases, proceedings and appeals, subject matter of which is within
the jurisdiction of Tribunal, shall continue to be heard and decided by the
competent forum existing under any law for the tirne being in force.
(2) On the constitution of the Tribunal
all cases, proceedings and appeals shall stand transferred to and 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 that 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 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 necessaryfor removing
the difficulty.
THE FIRST SCHEDULE
[See section 3(s)]
1.
The Electronic Transactions Ordinance, 2OO2 (LI of 2O02).
2.
The Pakistan
3.
The Telegraph Act, 1885 ( XIII of 1885).
4.
The Wireless Telegraphy Act, 1933 (XVII of 1933).
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