Updated: Friday September 30, 2016/AlJumaa
Thoul Hijjah 28, 1437/Sukravara
Asvina 08, 1938, at 08:47:21 PM
ORDINANCE XIV OF 2009
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 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:---
1. Short title, extent, application and commencement.- (1) This Ordinance may be called the
Prevention of Electronic Crimes Ordinance, 2009.
(2) It extends to the whole of
(3) 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 and
shall be deemed to have taken effect on 3rd July, 2009.
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;
(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 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
(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.
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.-(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 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
(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 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.
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 form 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 subsections (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 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 there under, 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.
(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 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.
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.
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.
50. Omission of sections 36 and 39,
Ordinance LI of 2002. In
the Electronic Transactions Ordinance, 2002 (LI of 2002), sections 36 and 39
shall be omitted.
(See section 2(p)(ii))
1. The
Electronic Transactions Ordinance, 2002 (LI of 2002).
2. The
3. The
Telegraph Act, 1885 (XIII of 1885).
4. The
Wireless Telegraphy Act, 1933 (XVII of 1933).
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