Updated: Thursday October 02, 2014/AlKhamis
Thoul Hijjah 08, 1435/Bruhaspathivara
Asvina 10, 1936, at 09:17:21 PM
The Prevention of Electronic Crimes Ordinance, 2007
THE
GAZETTE OF
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
(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
(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
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
(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
3.
The Telegraph Act, 1885 ( XIII of 1885).
4.
The Wireless Telegraphy Act, 1933 (XVII of 1933).
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