[governance] Text of Pakistan's Prevention of Electronic Crimes Ordinance, 2008 (Ordinance No. IX of 2008)
Fouad Bajwa
fouadbajwa at gmail.com
Thu Nov 6 16:27:55 EST 2008
President promulgates ordinance to prevent electronic crimes
http://www.app.com.pk/en_/index.php?option=com_content&task=view&id=58277&Itemid=1
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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