In the era of technology, cyber-crimes are increasing on a day-to-day basis and have rapidly caught the attention of state police, such as the Federal Investigative Authority (FIA), which are given powers under The Prevention of Electronic Crimes Act 2016 (hereinafter referred to as “Peca”) to make arrests for anyone committing online crimes.
As the name suggests, cyber-crime comprises those criminal acts which are committed by a person through the channels of social media. Recently Justice Athar Minallah declared the latest amendments that pertain to Section 20 as being unconstitutional in the writ petition “Pakistan Federal Union of Journalists versus The President of Pakistan” and the judicial reasoning behind this was that Section 20 was contrary to Article 14, Article 19 and 19-A of Pakistan’s 1973 Constitution.
Article 19 of the Constitution is reproduced below for ready reference:
19. Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, 33[commission of] 33 or incitement to an offence.”
The punishment for the offense was too grave and FIA was restrained from abusing power. Section 20 dealt with the punishments for online defamation which would be a non-bailable offense, increasing the prison term for defendants from three to five years. Most people saw this as a concerted campaign to restrict the freedom of expression.
There are many loopholes in the Act, and it has been widely criticised by Pakistan’s human rights defenders. While comparing the cyber-crime laws with the Data Protection Act 2018 of the United Kingdom, it can be clearly seen that the Pakistani act does not cater to the protection of specific ethnic backgrounds and monitoring of particular political agendas. Peca uses the term “spamming” to define the unsolicited messages on social media while “cyber-stalking” is threatening and harassing a person online. These things are becoming very common in Pakistan, as people have started making fake accounts on Facebook and Twitter to harass other people. Recently, FIA has arrested Sadaqat Hussain who operated fake Twitter accounts of “army officers” for a really long time.
FIA has warned some overseas Pakistanis that their names will be added to the Exit Control List (ECL) if they don’t stop defaming Pakistan’s army on social media. Again, whether this is an infringement of the Articles of the Constitution is a question that persists throughout. Pakistan is also a member of Interpol, which is the world’s largest police organisation. With the help of Interpol, FIA has arrested child pornography suspects in the country. The implementation of Peca works in consonance with Pakistan Penal Code (hereinafter referred to as “PPC”). Under Section 509 of the Act, anyone who insults a woman regarding her modesty – whether through gestures or words – can be charged with three years of imprisonment, or with a fine, or both. Similarly, under Section 496C, if a person makes false accusations against a woman, they will be punished with five years in prison and with a fine. Any indecent, vulgar act such as singing or reciting something offensive in this context will catch attention under section 354-A of PPC.
The biggest drawback in Peca is that most of the offences do not fall in the category of the “Prohibitory Clause” which deals with non-cognizable offenses. The Supreme Court has set standards with regards to conceding of post-arrest bail in offenses not falling inside the prohibitory provision of Section 497(1) of the Criminal Procedure Code 1898 (hereinafter referred to as “CrPC”) – those which are culpable with death, detainment forever or detainment as long as 10 years. The set standards/conditions were established in the case of PLD 1995 SC 34 which decline bail on exceptional cases such as:
(a) where there is the likelihood of the absconding of the accused;
(b) where there is the apprehension of the accused tampering with the prosecution evidence;
(c) where there is a danger of the, offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict
The accused takes shelter behind this. The general rule of law is that bails are usually accepted when the case is filed under Peca. Since spamming, spoofing and cyber-stalking have to interlink with one of the conditions which are aforementioned, the accused as a rule get free when they apply for bail under this segment, which shows Peca has limited abilities.
However, in a recent case 2022 SCMR 526 SUPREME-COURT, the court decided to deviate from the general patterns and give more meaning and significance to Peca.
In that case, the accused who was cyber-stalking and communicating frightful pictures of a lady was bailed. The plea of the accused was that the offenses claimed didn’t fall inside the ambit of the “Prohibitory Clause” of S. 497, CrPc. The court was of the view that upon the completion of investigation in criminal cases, falling outside the transmit of “restriction”, movements for discharge on bail are well gotten. Regardless, such practice isn’t without impediments. In the current case, the privacy of a young woman had shockingly been violated and turned into the sheer humiliation of her family; even her marriage went into danger. In the current realities and conditions of the case, the simultaneous perspective of the courts in denying bail to the accused was absolutely right. The petition for leave to appeal was excused, leave was declined and the accused was rejected bail.
PLD 1995 SC 34
2022 SCMR 526 SUPREME-COURT
W.P NO. 666/2022 Pakistan Federal Union of Journalists through its Secretary General Versus The President of Pakistan through the Secretary and four others