| The clause (c) of Electronic Crime Act 2004 has been | | | | criminal act of the evasion taxation of e-service |
| defied Cyber Stalking as defined in XXII of the | | | | which is punishable under Pakistan tax statutes. It is |
| Pakistan Penal Code 1860 and also clause (g) defines | | | | recommended that unless the Central Board of |
| defamation which means Section 499 of the Pakistan | | | | Revenue does not have any administrative set up of |
| Penal code 1860; but no as such provision are | | | | own, the special wing constituted under this Act |
| included on matter connect with commission of | | | | must provide facility for discouraging the commission |
| offence of electronically misuse and infringement of | | | | of such offence.The Act has failed to provide the |
| Internet Domain Names as Trade Marks which have | | | | special procedure for trial of such offences. Without |
| defined in Chapter XIII Trade Marks Ordinance | | | | having detailed provisions of special procedure for |
| 2001.The section 8 has defined the offence of fraud | | | | electronic crimes, the Code of Criminal Procedure |
| but the misrepresentation has not been declared as | | | | 1898 will not meet the procedural requirement for |
| offence. The fraud and misrepresentation are two | | | | criminal proceeding of the accused. What I |
| different offences. I recommend here that new | | | | recommend here the act must include special |
| section should be added to include the | | | | procedure for trial of person accused of electronic |
| misrepresentation as offence. There are many | | | | crimes. The most glaring weakness of the act is that |
| offences committed by misrepresentation of facts, | | | | is failed to provide specific rule of investigation for |
| not falling under the heading of fraud.The section 18 | | | | electronic crimes as required by technicality of matter |
| has failed to address the root cause of offence of | | | | for purpose of adjudication. The section 29 has |
| pornography and the construction of statute is | | | | provided provisions for establishment of special |
| ambiguous in the definition of pornographic material | | | | agency which will investigate the electronic crimes. If |
| of material being hosted web hosting sites. The | | | | the code of criminal procedure 1898 is accepted as |
| pornographic material are made available to internet | | | | procedure for prosecution of electronic offences, |
| viewer by web hosting sites rather their location is | | | | then there must be made specific amendment in |
| within the Jurisdiction of Pakistan or not, that offence | | | | Code for making compactable with investigating |
| are committed browsed by viewer within the | | | | standard of the search and seizure required for |
| jurisdiction of Pakistan. The uncontrolled expansion of | | | | electronic crimes prosecution.The section 32 of |
| Pornography owns due to local ISPs but no criminal | | | | proposed electronic Crime Act 2004 has empower |
| liabilities have been shoulder on web hosting sites and | | | | the investigating office to take necessary steps for |
| ISPs in proposed Electronic Crime Act 2004. I | | | | expeditious preservation evidence including taking into |
| recommend here that the specific wordings should be | | | | safe custody up to a maximum period of fifteen |
| added to decrease the chance of misinterpretation of | | | | days or making or retaining a copy of such data. The |
| statute and to create consistency of precedent with | | | | wording of statutory has failed to provide the |
| intention of legislature.The construction of statute of | | | | methods of presentation of the evidence before |
| section 24 is too liberal and exhaustive. In the good | | | | court of law. What I recommend here the statutory |
| statutory construction such type of practice is often | | | | wording should be added of conversion of the |
| not appreciated. The section 27 has made proviso | | | | electronic evidence into paper base form for |
| that no Court inferior to the Court of Sessions shall | | | | presentation of the evidence before the court of |
| try any offence under this Act but the commission | | | | Law. The trickiest matter is an investigation of such |
| of other offences as given in section 24 which are | | | | offences is collection of evidence, and its |
| committed through electronic means implies | | | | presentation before the court law for prosecution. |
| jurisdiction have given to session court to try such | | | | The disposition of this act of investigation is |
| offences, but certain offence which are not falling | | | | inadequate for conducting of fair trial of offences |
| within the jurisdiction of session to try offence like | | | | which are exclusively falling in jurisdiction of Pakistan. |
| copyright infringements which are triable by | | | | The electronic crimes are requires most responsible |
| Magistrate but this proposed Act has barred the | | | | procedure due to difficulty of proving which may not |
| magistrate to try such offence. The Act has failed to | | | | falling within traditional legal frames. It is also possible |
| make any provision for commission of offence | | | | that the electronic crime may be falling within several |
| against the copyright publications on World wide | | | | jurisdictions. Proving the crime has been committed is |
| Pages. The specific provisions must be included to | | | | the most difficult stage of investigation, since |
| provide legal protect and safeguard to electronic | | | | experienced offenders cover their tracks; while going |
| commerce. The legal protection must be granted to | | | | through the justice system, especially in those |
| informative and online e-pages published on www | | | | countries which refuse to cooperate while collecting |
| formation. The misuse of electronic cards must also | | | | evidences and unless and until international co-operate |
| be declared as criminal act and there must be | | | | is sought. Mere the sanction of law will not server the |
| regulatory frame work for all online pages for protect | | | | end of justice.Electronic Crime Act will have to |
| of consumers in Pakistan. The internet trademark | | | | prepare Criminal courts for cyber and electronic |
| violations growing out of his operation of a pirated | | | | jurisprudence. Both the substantive laws and |
| Internet website should be regarded as crime so that | | | | procedural laws will require new exposition in the light |
| aggravating influx of uncontrolled flood of Web pages | | | | of the experience arising from technological |
| can may controlled.The Act has failed to provide | | | | complexities not envisioned hitherto in proposed |
| penal provision for the illegal sale of prescription drugs | | | | electronic Crime Act. The challenge before the courts |
| and controlled substances and online facilities are used | | | | would be how to evolve cyber jurisprudence |
| in the furtherance of a broad range of traditional | | | | consistent with our procedural requirements. Courts |
| unlawful activity. The rise of Internet pharmacies | | | | will have to exercise the powers of search and |
| creates a world of new conveniences. But it also | | | | seizures, data penetration and material collection |
| creates a number of legal issues which we need | | | | permitted under Code of Criminal Procedure 1898; |
| them to put under penal of Electronic Crime Act | | | | rather they will be able to initiate any such |
| 2004 so as to regulate the sale of prescription drugs. | | | | prosecuting where the complexities of technology will |
| In Addition to these unlawful activities, no provisions | | | | overwhelm them. The cyber regulatory law should be |
| has not included for prevention of the commission of | | | | a single comprehensive framework, which would deal |
| the offence of online gambling. There are many sites | | | | with civil and criminal laws. The legislation should |
| which are operating gambling internet and are | | | | address computers and computer material as unique |
| browsed within the jurisdiction of Pakistan.There are | | | | objects and cover all computer-related aspects in the |
| many illegal e-business operated in the jurisdiction of | | | | categories of crimes by means of computers and |
| Pakistan, the persons operating these are actively | | | | crimes against computers.What I recommend here, |
| concealing their identity and place of transaction for | | | | the power to summon as defined in subsection (1) of |
| purpose of evasion of taxation by e-commerce | | | | section 94 of Cr.P.C (Act V of 1898) shall be |
| means. These e-businesses are accessed and | | | | extended so as to add the power of police to |
| browsed by Pakistani Viewer. The active | | | | summon all persons who have committed cyber |
| concealment of operation of business is a criminal act | | | | crimes. I also recommend here that amendment |
| committed if it is not disclosed to Central Board of | | | | should be made in section 95 of the Cr.P.C. |
| Revenue but no penal provision has been included for | | | | |