The experience and expertise of Trek Law covers a wide range of constitutional, statutory and common- law issues. Our constitutional law practitioners are engaged in government counselling, advising possible constitutional challenges and analyzing proposed legislation. We enjoy a reputation of creative constitutional lawyers having ability to anticipate legal challenges.
We provide a wide range of services on constitutional law including formulating new legal and policy documents, developing complex legal theories, advancing constitutional arguments on legislative documents and managing complex litigation.
We have substantial experience representing state, governments, corporations, and public interest groups against constitutional challenges and advising clients on the constitutional implications of legislation. We frequently handle the cases involving constitutional law before the Supreme Court and the High Courts of Pakistan.
At the Supreme Court of Pakistan, we have argued in numerous leading constitutional cases including Overseas Pakistanis right to vote case, Chairman OGRA appointment case, panama case, rigging in general elections case, verification of pleadings in election matters case, ombudsman jurisdiction case and many other leading cases.
We have expertise in cases involving a broad range of technologies including mobile devices, computer software, wireless communication standards, chipsets, blockchain, games, cartoons, entertainment, copyrights, trademark, patents, social media, artificial intelligence, robotics, medical devices and software, semiconductors and consumer electronics etc. We lend valuable insight to our high-tech clients
Trek Law provides a wide range of business legal services including institutional and acquisition financing. Our extensive experience in finance allows us to handle all aspects of domestic and cross-border corporate transactions. Understanding the industry and the day-to-day issues faced by our clients is critical to our success.
That is why alongside their legal experience, our corporate lawyers have additional industry-specific focus – whether it is Banking, Energy, Healthcare, Hospitality and leisure, Insurance, Life sciences, Manufacturing, Technology or other sectors.
We represent Corporations, Limited Companies, Unlimited Companies, Limited liability partnerships, NGOs, NPOs, INGOs, Companies limited by guarantee, Partnerships and Sole Proprietorships.
Trek Law specializes in the laws related to International Trade. We provide highly qualified representations in solving international investment disputes, international trade disputes and international construction disputes. We have extensive experience in dispute resolution and in the areas of litigation related to cross- border trade, cross- border construction, cross- border investment and services such as letter of credit etc
Trek Law is one of the elite firms in the country actively engaged in advising and assisting the bodies corporate, sports boards and the governments on the issues related to sports law.
Having extensive experience in numerous international jurisdictions and international enforcement proceedings, we are representing the clients in telecommunication, energy, manufacturing, trade, construction, real estate, insurance and other industries to international arbitration
Trek Law is engaged in protecting legal rights of our clients to their inventions, designs and artistic works against unauthorized use of their intellectual property such as Copyright, Patents, Trademark, Industrial designs, geographical indications, Trade Secrets by enforcing their rights through courts of law.
We provided specialized services in Copyrights including literary works such as novels, poems, plays, reference works, newspapers and computer programs, Databases, Films, musical compositions, and choreography, Artistic works such as paintings, drawings, photographs and sculpture, Architecture, and Advertisements, maps and technical drawings.
We deal in the eligible subject matters including Discoveries of materials or substances already existing in nature, Scientific theories or mathematical methods, Plants and animals other than microorganisms, and essentially biological processes for the production of plants and animals, other than non-biological and microbiological processes, Schemes, rules or methods, such as those for doing business, performing purely mental acts or playing games, Methods of treatment for humans or animals, or diagnostic methods practiced on humans or animals
Trek Law provide a wide range of services on constitutional law including formulating new legal and policy documents, developing complex legal theories, advancing constitutional arguments on legislative documents and managing complex litigation.
We have substantial experience representing state, governments, corporations, and public interest groups against constitutional challenges and advising clients on the environmental implications of legislation. We frequently handle the cases involving environment law before the Supreme Court and the High Courts of Pakistan
Trek Law has been engaged in numerous human rights cases and human rights regulatory compliance matters.
Our team, with nearly two decades of experience in human rights, helps clients navigate increasingly complex human rights issues.
We advise on regulatory and litigation risks, as well as implementation of the UN guiding principles on Human Rights. Key aspects of our practice include designing human rights policies and compliance systems and advising on human rights-related internal and external litigation. In Pakistan jurisdiction, following are fundamental rights guaranteed by the constitution which are dealt by our team of human rights experts;
Our dedicated team of professional lawyers and consultants best assists their clients in understanding the tax law of Pakistan. Virtually every business decision today has tax consequences. You deserve the most practical, tuned-in and well-crafted tax solutions. We provide a comprehensive range of services from the completion of tax returns under corporation tax, self-assessment to complex consultancy assignments and strategic tax planning.
Our ability to focus on our clients and deliver innovative tax solutions is enhanced by our knowledge of specific business environments including financial services, leisure, retail, sport, high growth companies, manufacturing and automotive, technology and communications, public sector, property and utilities. We also have a number of specialist tax groups who deal with specific complex areas of tax law. Our consultants can help you plan, grow and structure your business. We are known for our straightforward approach to solving our clients’ most complex business challenges. We work hand-in-hand with clients to improve the business performance, drive shareholder value and create the competitive advantage
Tax planning is the analysis of a financial situation or strategy from a taxation standpoint. The persistence of tax planning is to ensure the tax efficiency. Through tax planning, all foundations of the financial strategy work together in the most tax-friendly manner possible. Our dedicated team of professional tax experts best assists their clients as to business tax planning in Pakistan. Trek Law tax practice brings with it over four decades of experience in dealing with the complexities of Pakistan’s Taxation system. Our tax experts are adept at finding answers to business problems across varied sectors, as well as objectively analyzing solutions proposed by others.
Our team of experienced professionals offers sound, dependable, and cost-effective tax planning and compliance services to both Pakistani and International clients that are controlled and co-ordinated from our offices throughout Pakistan. In keeping with Treklaw value proposition, our team of experts go that extra mile – establishing credibility with tax authorities, while keeping a tab on the frequent changes and amendments made to tax laws. We also ensure that our clients are not left in the dark, making it our business to keep them abreast with important changes made to Pakistan’s tax laws and reminding them about impending deadlines, through frequent tax alerts, reminders, a tax calendar etc
We deal in the matters of appointment of an employees or employers, cases of Civil Servants, regarding workers or workmen, appointment and termination matters, cases about recruitment appointment, promotion and reversion to a lower grade or service, removal form service, matters of pension, gratuity and provident fund, all kinds of cases regarding service and employment.
Labour Law in Pakistan is very comprehensive and contains several Ordinances, Acts, Rules & Regulations and all other statutes relating to Industrial, Commercial and Labour Establishments which are widely scattered and inaccessible statutes. These different laws give authentic guide to the Employers, the Employees, the Trade Unions and the concerned Agencies to realize their respective responsibilities and to become aware of their prescribed legal rights to be asserted. Our Law Firm has the main object to provide the legal services concerning these Labour Laws to the Employers and the Employees for the smooth running of the business in order to achieve the target of higher productively, reasonable profits and better wages.
– Drafting & Vetting of Employment Contracts and Agreements;
– Legal Notices & Replies;
– Legal Opinion;
– Cases before Labour Courts;
– Cases before Labour Tribunals;
– Cases before Social Security Courts and Appeals;
– Cases before NIRC;
– Cases before High Courts; and
– Cases before Supreme Court
Consumer protection law or consumer law is considered as an area of law that regulates private law relationships between individual consumers and the businesses who are selling those goods and services.
The idea of consumer protection laws was firstly adopted in Pakistan by the Federal Government in 1995 when The Islamabad Consumer Protection Act, 1995 was passed. Later on The Provincial Governments followed this pattern and the provincial assembly of Khyber Pakhtunkhwa passed The Khyber Pakhtunkhwa Consumer Protection Act, 1997. The provincial assembly of Baluchistan passed The Balochistan Consumer Protection Act, 2003, the provincial assembly of Punjab passed The Punjab Consumers Protection Act, 2005 and provincial assembly of Sindh passed a Consumer Protection Bill in 2015 to protect the rights of consumers. The basic purpose of making these Acts, a part of our legislation, is to establish a prosperous society where all consumers may feel themselves secured and where there is no room exists for fraudulent acts.
After the approval of these Acts, district consumer courts are established for all the districts of Islamabad, Punjab, Khyber Pakhtunkhwa and Balochistan while the enactment in Sindh province is in process, so that people may easily access to these courts for the protection of their rights. Along these district consumer courts a network of district consumer protection councils has been spread in all four provinces of Pakistan. These councils are established to create awareness among masses about their basic rights and benefits as a consumer.
A copyright is an intellectual property right granted by the government that gives the owner exclusive rights to use the original expressive work with some limited exceptions. Notable instances entitled to copyright protection include the original works of fictional writings, non-fictional writings, music, lyrics, architectural design, artistic works, paintings, and sculptures etc.
It is the right of literary property as recognized and sanctioned by a positive law, the Copyright Ordinance, 1962 as amended by Copyright (Amended) Act 1992. An intangible, incorporeal, right granted by these statutes to the author or originator of certain literacy or artistic productions, whereby he is invested for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.
Are you seeking a law firm that may efficiently protect your artistic work from potential or real threats? Our team of copyright lawyers and consultants in Pakistan possesses extensive experience in filing copyright application, registration and securing your copyrights in Pakistan. Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include following categories:
Musical Works including any accompanying words;
Dramatic Works, including any accompanying music;
Pantomimes and choreographic works;
Pictorial, Graphic, and Sculptural works;
Motion pictures and other audio-visual works; and
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.
Common Law Copyright is that right which author has in his unpublished literary creations, a kind of property right whose extent is to give him control over first publication of his work or to prevent its publication.
Copyright, in a literary work may be infringed in several ways:
By reprinting the whole work verbatim;
By reprinting verbatim a part of it;
By imitating the whole or part, or by reproducing the whole or part under abridged form;
By reproducing the whole or part with colourable alternation;
By converting it into a dramatic work;
By making mechanical contrivance whereby it may be reproduced;
By performing it in public; and
By dealing with copies made or imported in contravention of Copyright Act.
Nothing can with greater propriety be called in man’s property then the fruit of his brain. The property in any article or substance accruing to him by virtue of his own mechanical labour is never denied to him, the labour of his mind is no less arduous and consequently no less worthy of the protection of the law. It has nevertheless been a matter of frequent controversy whether copyright is a natural right or one entirely dependent on statute.
If it is a natural right then the period of protection must be logically to have been unlimited.
Know Your Legal Device
We deal in copyright registration, help in making agreements to get license, protect international copyright and infringement. Though frequently overlooked in the business world, copyright is an inexpensive, yet powerful, legal device. By protecting the expression of innovative ideas such as publications, computer applications, and designs, a strategic copyright program helps to ensure continued success for technology-based enterprises.
At TREKLAW, our copyright attorneys have extensive experience in helping clients file for copyright protection, and work proactively to identify ownership issues before they arise. In addition to counseling our clients on the registration of original works of authorship, we can assist them in establishing systems for policing and enforcing their copyrights.
In this day and age, maintaining control of digital works can pose special challenges for businesses. Our attorneys have expertise in the applicability of copyright to digital mediums such as software, digitized text, and electronic databases, and can provide insight into how the law impacts high-technology companies.
Seeking a Strong and Responsive Copyright Law Firm?
Our knowledgeable copyright attorneys have many years of pre-law industry experience, and can appreciate the sophistication of our clients’ technologies. The solid intellectual backbone of our firm allows us to cater to a wide range of electrical, chemical, mechanical, and biological arts. Representative technologies include communication systems and protocols, hybrid circuitry, power systems, integrated circuits, transducers, computer-implemented applications, quantum well devices, supercritical fluids, polymer compounds, textiles, and tools and related gadgetry.
In keeping with the firm’s core philosophy, our associates are dedicated to providing responsive and courteous service at all stages of copyright prosecution. We invite you to learn more about how our Law Firm can help safeguard your company’s valuable intellectual property assets.
COPYRIGHT PROTECTION UNDER COPYRIGHT ORDINANCE 1962
Duration of Copyright
The period of copyright of a literary, dramatic, musical or artistic work (other than a photograph) is the life of the author and 50 years thereafter. In the case of a cinematographic work and a photograph, copyright subsists until 50 years from the beginning of the calendar year from publication of the work.
Infringement of Copyright
The act of copying of work, which is entitled to copyright protection, by any method, either directly or with the aid of a machine or device constitutes an infringement of the copyright in the work. Section 56 of the Ordinance provides that copyright in a work shall be deemed to be infringed in the following cases:
Does anything the exclusive right to do which is by this Ordinance conferred upon the owner of the copyright; or
Permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for suspecting, that such performance would be an infringement of the copyright, or
When any person:
Makes for sale or hire or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
Distributes either for the purpose of trade to such as extent as to affect prejudicially the owner of the copyright, or
By way of trade exhibits in public, or
Imports into Pakistan, any infringing copies of the work.
Infringement of Computer Programmes
Pursuant to the restrictions imposed under Section 56 of the Ordinance, even the purchasers of computer programmes may not copy, adapt or make copies of adaption of the programmes in connection with their use by themselves or their employees. The unauthorized use of a computer programme in a computer is also infringement of the copyright. Accordingly, if a duplicate of a computer programme is acquired by someone who has no licence to use it, the copyright owner has the right to prevent him using it. Section 56 also restricts rental of computer programmes to un-authorised users. Intention to copy computer programmes is not an essential ingredient of infringement; nor is it essential that the copying be in the same medium. Thus, a computer programmme stored on diskettes (or any other magnetic media) can be infringed by copying the same on paper, or taking a print-out of the same.
Liability for Infringement
In the event of infringement, liability of infringement falls upon the person who, without the consent of the owner of the computer programme does any of the restricted acts; or authorizes any other person to do any such acts; or commits any acts of infringement.
Remedies for Infringement
There are two remedies for breach of copyright in Pakistan; civil proceedings and criminal proceedings. Accordingly, a person whose copyright has been infringed is able to sue for damages, claim an injunction, an account of the profits gained by the defendants as a result of the infringement, delivery up of infringing articles etc. Recently added section 74(3) of the Ordinance provides that all offences under the Ordinance are cognizable and non-bailable. Section 59 of the Ordinance provides that an action may be brought by the original owner of the copyright, which, inter alia, include the person to whom an exclusive licence has been granted. Amended Section 65 of the Ordinance provides that every suit or other civil proceedings regarding infringement, at the discretion of the applicant, should be instituted and tried in the Court of the District Judge.
Section 66 of the Ordinance, as amended by the Amendment Act, provides that any person who knowingly infringes or abets the infringement of the copyright in a work (defined to include computer programmes), or any other right conferred by the Ordinance shall be punishable with imprisonment which may extend to 3 years, or with fine which may extent to one hundred thousand rupees (one US dollars nearly equals twenty five rupees), or with both. Additionally, Section 70B of the Ordinance provides that where any person convicted for an offence punishable under, inter alia, Section 66 is again convicted for the same offence, he shall in such event be imposed with a fine (beside the imprisonment which may extent to 3 years) up to rupees two hundred thousand.
Recently amended Section 74(1) of the Ordinance now gives additional powers to police to seize infringing copies of the work. The section empowers any police officer, if he is satisfied that an offence in respect of infringement in any work has been, is being, or is likely to be committed, to seize without warrant all copies of the work and all plates and recording equipment used for the purposes of making infringed copies of the work, wherever found, and all copies, plates and recording equipment’s so seized shall, as soon as possible, be produced before a Magistrate.
Offences by Companies
Section 71 of the Ordinance provides that where an offence under the Ordinance is committed by a company, every person who at the time was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company is deemed to be guilty of such offence and is liable to be proceeded against and punished accordingly. Except in the circumstances, the accused proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of such offence, he is deemed guilty.
The term defamation is defined as “Holding up to a person to ridicule, scorn or contempt in a respectable and considerable part of the community; may be criminal as well as civil. Includes both libel and slander. Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule or obloquy. The unprivileged publication of false statements which naturally and proximately result in injury to another. A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.”
With regard to falsity the law is that if the matter is defamatory falsity is presumed until it is proved to be true. Words are prima facie defamatory when their natural, obvious and primary sense is defamatory, but there may be words and expressions which are prima facie innocent but in their secondary or latent meaning they may be defamatory.
There may be oblique references, suggestions and insinuations which may be no less defamatory merely because they are coached in language which prima facie is innocent. Apart from the allegations of fact there may be comments and these may themselves become defamatory if they do not come within the description of fair comment on a matter of public interest. And where the imputation is false or the comment is not fair and bona fide it would be deemed to be malicious; the maliciousness in law consisting of doing a thing without just cause or excuse. A matter will be deemed to be defamatory if it exposes the plaintiff to hatred, contempt ridicule or tends to injure him in his profession or trade. The words of the libel and the circumstances attending its publication themselves afford evidence of malice in fact.
An imputation harms a person’s reputation which in the estimation of others directly or indirectly either:
lowers his / her moral or intellectual character; or
lowers his / her character in respect of his / her caste or calling or his / her credit; or
causes it to be believed that his / her body is in a loathsome state, or in a state generally considered disgraceful.
Spoken words, even if defamatory, do not amount to a crime under the English law, except when they are seditious, blasphemous, grossly immoral or obscene. The Penal Code makes no distinction between spoken and written defamation. Nor does it recognize the distinction of English law whereby under certain circumstances, words might be libelous if written, but are not slanderous if spoken.
The English Doctrine that libel is an offence because it tends to a breach of the peace is not adopted in the Code. The definition in the Code applies to words as well as writings. The defamatory matter must be published i.e. communicated to a person other than the one defamed. According to the English law, if such matter is communicated to the person defamed it will be sufficient for an indictment, if it is likewise to provoke a breach of the peace. The person who makes the imputation intending to harm the reputation of another, as well as the person who publishes are alike guilty. The publisher need not be the maker of the defamatory matter.
Judge: A judge cannot be prosecuted for defamation for words used by him whilst trying a case in court even though such words are alleged to be false, malicious and without reasonable cause.
Counsel or pleader: Criminal proceedings can be instituted against a counsel or pleader for uttering words that are defamatory, or are calculated to hurt the feelings of others or are absolutely devoid of all solid foundation. The Bombay High Court has held that so long as an advocate acts on his instructions he has the fullest liberty of speech (Bhaisanker v. Wadia) 2 Bom. L R 3. Where express malice is absent, the advocate or pleader would be protected. (In re: Nagrriji Trikamji 19 B 340.
The following acts are made punishable: (1) Printing or engraving matter known to be defamatory, (2) Sale of printed or engraved substance containing defamatory matter.
Defamation according to Pakistani Law
Defamation Ordinance 2002 covers all matters pertaining to defamation accrued in Pakistan:
Section 3 of the Defamation Ordinance 2002 defines defamation and its forms:
Any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual form which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation.
Defamation is of two forms namely: (i) Slander and (ii) Libel
Any false oral statement or representation that amounts to defamation shall be actionable as slander.
Any false written documentary or visual statement made either by ordinary form or expression or by electronic or other modern means or devices that amounts to defamation shall be actionable as libel.
Section 4 makes the Defamation actionable:
The publication of defamatory matter is an actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed.
Defences to the law of defamation have been provided in Section 5
In defamation proceedings a person has a defence if he shows that:
he was not the author, editor, publisher or printer of the statement complained of;
the matter commented on is fair and in public interest and is an expression of opinion and not an assertion of fact and was published in good faith;
it is based on truth and was made for public good;
assent was given for the publication by the plaintiff;
offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;
an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;
the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and
the matter is covered by absolute or qualified privilege.
According to Section 6 of the Defamation Ordinance certain acts of the government does not come within the ambit of defamation, these are called absolute privileges: Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the perfection of absolute privilege.
Explanation: In this section legislature includes a local legislature, and Court includes any Tribunal or body exercising the judicial powers.
Section 7 exempts certain things from defamation, these are called qualified privileges: Qualified Privilege: Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privileges.
Section 8 prescribes that notice of action must be given by the plaintiff to the defendant before any legal action would be taken by the plaintiff against the defendant: No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to this notice or knowledge, given to the defendant, fourteen days notice in writing of his intention to bring an action, specifying the defamatory matter complained of.
Section 9 gives remedies in case the defamation is proved: Remedies: Where Defamation shall be proved to have occurred, the Court may pass order directing the defendant to render an apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs. 50,000 (Rupees fifty thousand) and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court.
Section 10 says that CPC and Qanoon-e-Shahadat Order will apply mutatis mutandis to the defamation proceedings.
Section 11: Ordinance not to prejudice action for criminal defamation: Nothing in this ordinance shall prejudice any action for criminal liable or slander under any law for the time being in force.
Section 12: Limitation for doing an action against:
an author, editor, proprietor or publisher of a newspaper;
the owner of broadcasting station;
an officer, servant or employee of the newspaper or broadcasting station; or
any other person.
for defamation contained in the newspaper or broadcast from the station or its publication otherwise shall be taken within 6 months after the publication of the defamatory matter come to the notice or knowledge of the person, defamed.
Section 13: Trial of Cases: The District Court shall have the jurisdiction to try cases under this ordinance.
Section 14: Court to decide cases expeditiously: The Court shall decide a case under this Ordinance within a period of ninety days.
Section 15: An appeal against the final decision and decree of the Court shall lie to the High Court within 30 days and the High Court shall decide the appeal within sixty days.
Provided that no appeal shall lie against an interlocutory order of the Court.
Section 499 through Section 502 of the Pakistan Penal Code elaborates the definition, explanation, exceptions and punishment to the Law of Defamation in Pakistan.
According to Section 499 of the Pakistan Penal Code, 1860, Defamation has been described as under:
Whoever by words either spoken or intended to be read, or by sign or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 1: It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be harmful to the feelings of his family or other near relatives.
Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3: An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4: No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly in the estimation of others, lower the moral intellectual character of that person in respect of his caste or of his calling, or lowers the credit of that person or causes it to be believed that the body of that person is in loathsome estate, or in a state generally considered as disgraceful.
There are certain exceptions to the section aforementioned:
First Exception: Imputation of truth which public requires to be made or published: It is not defamation to impute anything which is true concerning any person if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
Second Exception: Public conduct or public servants: It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception: Conduct of any person touching any public question: It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, as far as his character, appears in that conduct, and no further.
Fourth Exception: Publication of reports of proceedings of courts: It is not defamation to publish a substantially true report of the proceedings of a court of justice, or of the result of any such proceeding.
Explanation: A justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice is a Court within the meaning of the above section.
Fifth Exception: Merits of case decided in Court or conduct of witness and other concerned: It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
Sixth Exception: Merits of public performance: It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation: A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Seventh Exception: Censure passed in good faith by person having lawful authority over another: It is not defamation if a person having over another any authority, either conferred by law or arising out of a lawful contract made with that another, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception: Accusation preferred in good faith to authorized person: It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception: Imputation made in good faith to person for protection of his or other’s interests: It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
Tenth Exception: Caution intended for good of person to whom conveyed or for public good: It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person interested or for the public good.
According to Section 500 of the Pakistan Penal Code, 1860 punishment for defamation has been described here whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Printing or engraving matter known to be defamatory: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years or with fine, or with both.
Sale of printed or engraved substance containing defamatory matter: Whoever sells or offer for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Word “defamation” in Section 12 (3) of the West Pakistan Press & Publications Ordinance, 1963 is used in context of offence as referred to in Section 499, P.P.C. and not in its dictionary sense. In order to found an action for libel it must be proved that the statement complained of is:
Defamation has to be tried by the District Court under Section 13 of the Defamation Ordinance, 2002. Section 3 of this ordinance prescribes that defamation means to make a false statement causing injury to the reputation of a person or to bring him in ridicule, unjust criticism and dislike. A distinction in this context needs to be drawn between the statement, which is not proved and one which is explicitly found to be false for the purposes of Defamation Ordinance, 2002. All benefits under criminal law are to be granted to an accused and the prosecution must establish its case beyond a reasonable doubt. Very strong burden of proving a statement is to be discharged by the plaintiff in a suit for damages and the mere fact that it could not be proved does not necessarily show that it was false. If such a distinction is obliterated every accused granted the maximum benefit of doubt may upon acquittal bring an action for defamation, which does not appear to be the intention of law.
Requisites To The Law Of Defamation
(1) Publication – an essential ingredient
Under the Penal Code in order that an offence of defamation may be committed there must be making or publication of any imputation concerning any person by words either spoken or intended to be read, or by signs or by visible representations, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person. To constitute the offence of defamation there must, be making or publication of an imputation concerning any person and the making or publication must be with intent to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person. Unless there is publication there can be no offence of defamation committed. It must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
(2) Makes or publishes
Section 499 brings under the criminal law the person who published as well as the person who makes the defamatory imputation. So there can be no offence of defamation unless the defamatory statement was either made or published by the accused. Section 499 emphasizes the words “makes or publishes”, if there is no evidence that the petitioner had either made or published the defamatory imputation, then there is an end of the matter and the further question of justification or whether there was express malice will not arise. The offences then lie in the dissemination of harmful information concerning another. This is expressed in the section by the words “makes or publishes”. The word “makes” is intended to refer to the originator of the imputation, but it is equally applicable to one who, though not its author, repeats, writes or copies it. The word “makes” is intended to supplement the sense of “publishes”, which is, no doubt, used here in its etymological sense as connoting “to make public or to make known to people in general”.
(3) Journalists in better position than any other person
Journalists are in a better position than any other person. Even the truth of an allegation does not permit a justification under first exception to Section 499 unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant facts in issue.
(4) How made
The last essential requisite for action of defamation is the publication of the defamatory words. This consists of communication to others. Hence, if the words complained of are only communicated to the plaintiff who is defamed, there is no publication. For defamation is the injury to reputation; therefore, the wrong is only done when others are informed against the plaintiff which affect their opinion about him. Publication to third party is the essence of libel.
There will be no defamation if only the plaintiff is informed of the defamatory words. His opinion about himself is no consideration. It is what others think about him. Therefore the communication of the defamatory words to at least one other person is enough to injure the reputation. As remarked by Lord Esher, M.R., that “publication” is “the making known of the defamatory matter, after it has been written, to some person of whom it is written. If the statement is sent straight to the person of whom it is written there is no publication of it”. The uttering of a libel to the party libeled is clearly no publication for the purposes of a civil action. Thus “that material part of the cause of action in libel is not the writing, but the publication of the libel.”
The defamatory statement made in an affidavit, intended to be used in an affidavit, intended to be used in judicial proceedings is held to amount to sufficient publication without proof of the contents of the documents containing the libel being brought to the knowledge of any specific person other than the person defamed.
A wrong of defamation, as such consists in the publication of a false and defamatory statement concerning another person without lawful justification.
The gist of the offence of defamation lies in the dissemination of the harmful imputation. When a defamatory statement is published, it is not only the publisher, but also the maker, who becomes responsible and it is in that context that the word “makes” is used. It is of essence that in order to constitute the offence of defamation it must be communicated to a third person because what is intended by the imputation is to arouse the hostility of others. If a person merely writes defamatory words and keeps the writing with himself, the offence is not made out. Likewise if the libeler merely communicates the liable to the person defamed it does not constitute an offence under the said action though it may amount to an insult and may be punishable as such. The question whether the libel in fact has been communicated to a third person is material. It is not enough that the libeler posted it to a third person. It cannot be disputed that a communication to be defamed himself will not be a publication within the meaning of defamation law.
Here you may find information about trademark law and lawyers in Pakistan. Our dedicated team of professional lawyers best assists their clients in understanding the trademark law in Pakistan. We routinely interact with patent and trademark examiners in the Pakistan Patent and Trademark Office, and secure and protect intellectual property rights efficiently on a very cost-effective tariff. Treklaw intellectual property lawyers speak the business and technical languages of our clients. The whole focus of our IP counsel is securing for clients the maximum competitive advantage from effective exploitation and protection of their intellectual assets.
Intellectual property issues are critical to the success of any business, regardless of its size. Treklaw helps clients in virtually all industries, obtain, protect and enforce patents, trademarks, copyrights, trade secrets and other intellectual property rights. Our IP lawyers have strong technical backgrounds and extensive legal and commercial experience as in-house IP counsel, patent and trademark examiners. We routinely interact with patent and trademark examiners in the Pakistan Patent and Trademark Office, and secure and protect intellectual property rights efficiently on a very cost-effective tariff. Treklaw intellectual property lawyers speak the business and technical languages of our clients.
How do you protect your BRAND?
Registering a trade mark will give its owner the right to exclusively use, license or sell the mark within the categories for which it is registered, blocking others from using a mark that is substantially identical or deceptively similar. In this way, trade marks protect brand identity and secure a company’s rights; to its image. A trade mark remains registered indefinitely if it continues to be used.
What is a trademark?
The Trade Marks Ordinance 2001 defines a trademark any mark capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A sign can include a letter, word, name including personal name, signature, figurative element, numeral, device, brand, heading, label, ticket, aspect of packing, shape, color, sound or any combination of these features.
Why register a trademark?
If a trade mark isn’t registered and infringement is suspected, the owner must establish by extensive evidence that as a result of its use of and reputation in the mark the other person’s use is likely to cause deception or confusion. The dispute would be dealt with under the common law action of passing off.
What are the criteria for registration?
In order to be registered, a trademark cannot be one that other traders need to use to promote their own goods or services, such as a directly descriptive term, geographic word or common surname. It must also be capable of distinguishing the applicant’s goods or services from those of other traders and cannot mislead the public about the nature of the goods or services.
When has a trademark been infringed?
In Pakistan, a registered trade mark is infringed by the unauthorized use of that mark, or a mark that is substantially identical or deceptively similar to it:
In relation to any goods or services for which the trade mark is registered;
In relation to goods or services that are similar (Unless the alleged infringer establishes the use isn’t likely to deceive or cause confusion); or
Where the relevant mark is well-known in Pakistan and use (even on unrelated goods or services) indicates a connection with the owner and thereby adversely affects its interests.
What is the role of a trademark attorney?
Trademark attorneys are qualified to act on behalf of clients (along with registered patent attorneys and lawyers) in relation to matters arising under the Trade Marks Ordinance, 2001. They advised on issues relating to registration and enforcement of trade marks and prosecute the applications before the Trade Marks Registry.
Trademark Registration Process
Trademark Registration Process
Trademark Registration & Advice
Our network of offices and correspondent firms assists clients in establishing, maintaining, and enforcing trademark rights on a global basis. We provide practical guidance and precision in translation and other services needed during the local registration process. Rather than simply communicating problems and impediments, we create solutions.
Typical projects in the trademark area of our practice include:
Advising on selection and suitability of marks for registration;
Advising on proper use of trademarks in packaging, labeling, advertising in print and electronic media;
Searching prior registrations and applications;
Advising on prospects for obtaining registration;
Filing applications and prosecution to registration;
Conducting opposition proceedings;
Making renewal, assignment or modification of registered trademarks;
Advising on rights in trade names, trade dress, passing-off, unfair competition, and unregistered trademark rights acquired through use;
Negotiating and drafting agreements for the purchase, sale, or licensing of trademark rights;
Registering license and user agreements;
Trademark watching service for conflicting marks;
Advising in relation to infringing use;
Conducting consultations and investigations obtaining evidence concerning the infringement of trademarks, requesting for; and
Taking deregistration actions against rival marks that have been improperly registered or not used.
Trademark Laws in Protection of Intellectual Property Rights
Trade Marks Ordinance, 2001
Trade Marks Ordinance 2001 deals with the remedies regarding protection of Intellectual Property Rights in case of violation of any registered trade mark.
Infringement of Trade Marks
Section 39 and 40 of the Trade Marks Ordinance 2001 deal with the situations where an infringement of a registered trademark has been occurred. Section 39 says that a registered trademark deems to be a personal property of the proprietor. If any person other than the proprietor uses that mark for the trade which is similar to the goods or services for which that mark has been registered, it shall be deemed to be the infringement of the registered trademark under Section 40. If the words “registered goods” have been displayed on their packaging or on their container, it is a notice to prohibition of certain acts relating to those goods under Section 41.
No infringement in certain cases
Section 42 of the Trade Marks Ordinance 2001 describes certain conditions in which trade mark has not been infringed:
Where the person’s name or person’s place of business, so long as such use doesn’t result in a likelihood of confusion or otherwise interfere with an existing trade mark or other property right;
The name of the predecessor in business of the person or the name of the predecessor’s place of business;
The person uses the mark in a good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristics of goods or service; or
The person uses the mark for the purposes of comparative advertising.
Action for Infringement
Section 46 says that the action for infringement of the trade mark can be taken by the proprietor of the trade mark.
Remedies for Infringement
Any other remedies which are available to the person having some other property rights.
Place where the suit has to be instituted
According to Section 117 of the Trade Marks Ordinance 2001, any suit for the infringement of any trade mark shall be instituted before District Court.
The provisions of the Fourth Schedule shall have effect with respect to the transitional matters, including the treatment of trademarks registered under the Trade Marks Act, 1940, and applications for registration and other proceedings pending under that Act, on the commencement of the Trade Marks Ordinance 2001.
GENERAL REMEDIES UNDER THE CODE OF CIVIL PROCEDURE, 1908
Temporary Restraining Order and a Preliminary or Permanent Injunction
If you are being wronged, you may ask the appropriate court to grant a Temporary Restraining Order and a Preliminary or Permanent Injunction to prevent and/or stop further infringement under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure 1908.
Allegedly infringing items or articles can be impounded while the action is pending and may be ordered destroyed or subject to other disposition if there is an infringement. An infringer can be liable for actual damages plus additional profits of the infringer or statutory damages.
Liable for Injury to Business Reputation
Further, an infringer could be held liable for injury to business reputation or the dilution in the value of the copyright, patent, or trademark. Costs and attorneys’ fees sometimes also may be awarded to the prevailing party.
PENALTIES IN PAKSITAN PENAL CODE DESIGNED AGAINST INFRINGEMENT OF TRADE, PROPERTY AND OTHER MARKS
Trademark has been defined in Section 478 of the Pakistan Penal Code and Property Mark has been explained in Section 779 ibid. Section 480 defines the false trademark and 481 deals with the using of false property mark.
The text of Section 478 to 489 of the Pakistan Penal Code 1860, provide penalties against infringement of Trade, Property and other Marks which is given below:
Punishment for using a false Trademark or Property Mark
Section 482 says that whoever uses any false trademark or any false property mark shall be punished with: imprisonment of for a term which may extend to one year; or with fine; or with both.
Punishment for counterfeiting a Trademark or Property Mark
According to Section 483 the punishment for counterfeiting any trademark or property mark is two years with fine or confinement only or fine only.
Punishment for counterfeiting a mark used by a public servant
The offence under Section 484 is an aggravated form of the offence described in the preceding one. An enhanced punishment is, therefore, given where a mark used by a public servant is counterfeited. A three years punishment has been described for counterfeiting a property mark or any other mark used by a public servant.
Punishment for making or possessing any instrument for counterfeiting a Trademark or Property Mark
According to Section 485 whoever makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a trademark or property mark shall be punished with imprisonment for three years with or without fine or fine only.
Making a false mark upon any receptacle containing goods
Section 487 furnished the false marking of case, package, or receptacle containing goods in a manner reasonable calculated to deceive a public servant or any other person. It is not required that the mark should be a trade mark or property mark. A person making a false mark upon any receptacle containing goods can escape punishment under this section only if he proves that he acted without intent to defraud.
Punishment for making use of any such false mark
According to Section 488 whoever makes use of any such false mark in any manner prohibited by Section 487 be punished as if he has committed an offence against Section 487 unless he proves that he acted in good faith.
Punishment for tempering with Property Mark
Section 489 says whoever removes, destroys, defaces or adds to any property mark with intention to cause injury to any person shall be punished with one year imprisonment with fine or without fine or fine only.
PROTECTION UNDER CUSTOMS ACT, 1969
Section 15 specified certain goods which are not allowed to brought into Pakistan, whether by air, or by sea or by land. It includes: goods having applied a counterfeit trade mark; goods having applied a false trade description;
Goods made or produced outside Pakistan and having applied any name or trade mark of any proprietor, dealer or trader in Pakistan unless:
The name or trade mark is as to every application, accompanied by a definite indication of the goods that these are made or produced in a place outside Pakistan; the country in which that place is situated is in that indication shown in letters as large and conspicuous as any letter in the name or trade mark. Goods made or produced outside Pakistan and intended for sale and having applied a design in which copy right exists under the Patents and Designs Act.
Prohibition or restriction of importation or exportation of goods
According to Section 16, the Central Government may, from time to time, by notification in the official gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description under Section 15 by air, sea or land.
Confiscation of Goods
Section 17 of the Customs Act 1969 says that if any goods specified in Section 15 are imported into or attempted to be exported out of Pakistan shall be liable to detention or confiscation.
Here you may find information about patent law and and lawyers in Pakistan. Our team best assist their clients in understanding the Patent Law existing herein Pakistan. Increasing competition and global commerce have changed the way patents are approached and managed. Today, it is essential to have an intellectual property strategy that includes maximizing the potential value of a company’s patents as well as reducing unnecessary costs and risks.
The firm has filed patents with the Patent and Trademark Office in a wide range of disciplines including Information technology, Biotechnology / Life sciences, Chemicals, Manufacturing and Electronics etc. While obtaining patents is essential, it is only one step in developing a patent portfolio that offers the necessary protection, as well as optimizes marketability. Clients of Treklaw benefit from constant reviews of patent use, competitor actions and market trends. The firm establishes and manages portfolios of Pakistani and foreign patents for large corporations and large enterprises as well.
What is a patent?
A patent is a right of exclusion granted by a government to the inventor of an article, device, substance, process or method which is new, inventive and useful in return for its development and disclosure to the public.
What rights does a patent provided?
Patents provide the inventor with the right to exclude others from exploiting the invention for the life of the patent, which is generally up 20 years from filing.
What can be patented?
Virtually any new and useful advance can be patented, for example mechanical devices, electric circuits, chemical compounds, genetically altered life forms and the application of computer software and algorithms. Business methods and manufacturing process can also be patented, especially if they involve computers and information technology. The advance doesn’t need to be a major breakthrough – a small improvement or variation may be patentable. It is necessary, however, for there to be an inventive step, i.e. the improvement can’t be considered obvious to a skilled worker in the relevant filed.
What can’t be patented?
Generally, items such as plans, schemes, artistic creations and mental process cannot be patented. Since the law determining permissible subject matter for patents is based upon an accumulation of court decisions, what can be successfully patented has changed over the years and varies from country to country.
What are the different types of applications and patents?
The first step in filing a patent application in Australia is often the lodgment of an application, accompanied by a provisional specification, at the Patent Office. The provisional specification describes the invention and (in most cases0 its date of lodgment determines the ‘priority date’, on which date the invention must be new.
Complete application (leading to standard patent)
Within 12 months of lodging the provisional application can be lodged at the Patent Office. Where an invention is in development when a provisional specifications can be lodged in the 12-months period to include additional material. All such provisional specifications can be combined in a single with a series of numbered paragraphs called claim. The claims define the monopoly sought – both the particular embodiment of the invention as described in detail in the specification and variations.
Under the Patents Act 1990 it is possible to file a patent application that claims the same priority date as one previously filed and claims matter disclosed in an earlier application. These divisional in an application have a maximum term of 20 years, common with the parent case, but must be filed prior to sealing of the parent complete application.
The novelty test for an innovation patent, as for a standard patent, includes publication or use anywhere in the world. However a lower innovative step applies. The innovation patent contains a maximum of five claims, has a shorter term (eight years instead of 20) and no extension of term is available. Applications are not subjected to examination, however, for the patent to be relied on infringement proceedings – the patentee must request examination and the patent must be validated.
Patents of addition
An application for a patent of addition may be made for a single improvement in, or modification of, the main invention in an earlier patent. The owner must be the same as the earlier patent or a person authorized by the owner.
Is there a worldwide patent?
No. Patents are obtained on a country-by-country basis, although there are a small number of regional patent arrangements, including one in Europe. The Patent Cooperation Treaty also exists, however this only applies for a short time during the application stage and national patens still ultimately result.
What is the role of a patent attorney?
Patent attorneys provide the expertise required in order to obtain and protect IP rights. This involves managing the processes by which patents, trademarks’ rights are granted, and advising on the issues surrounding their validity and infringement. Patent attorney must have a degree in engineering or since.
What is a registered design?
A design is a feature of shape, configuration, pattern or ornamentation of an article capable of being judged by the eye. It is possible to register a design and there by obtain protection for the external appearance of a product. Protection is usually sought for either three-dimensional features of shape and /or configuration or two-dimensional features of pattern and/or ornamentation. The design must be new and original at the date of application for registration.
When has a registered design been infringed?
Generally, by the unauthorized application of the design (or an obvious or fraudulent imitation) to any article to which the design is registered – including importation, sale / hire and offering to sell / hire.
What could prevent your design from registered?
Any earlier registration, publication, sale or use in Pakistan of an article that differs only in immaterial detail, or in features commonly used in the trade, from the design for which protection is being sought.
Is there a worldwide registered design?
No. Registered designs are obtained on a country-by-country basis, although a single European Community Design has recently been introduced.
PROTECTION OF INTELLECTUAL PROPERTY UNDER PATENTS ORDINANCE 2000
Suit for infringement of a patent
A patentee may institute a suit under section 60 in the District Court which have the jurisdiction to try the suit against any person who during the continuance of the patent acquired by him under this law, in respect of an invention, makes, sells or uses the invention without his license, or counterfeits it, or imitates it.
Reliefs in suits for infringement
If a patent is infringed by infringer and a suit for infringement has been field against him then the remedies can be availed by the patentee. The Court can order to:
desist form infringement; infringer to pay the right holder damages adequate to compensate for the injury he has suffered because of infringement; pay the right holder expenses which may include appropriate attorney’s fee; the recovery of profits, damages and pre-established damages; dispose off the goods (which found to be the infringing) outside the channels of commerce without giving any compensation to the infringer;
dispose off the material, implements and predominant, use of which has been in infringing goods, outside the channels of commerce to minimize the risk of more infringement without giving any compensation to the infringer; infringer to inform the right holder of the identity of third parties involved in production and distribution of the infringing goods and their channel of commerce in case of serious infringement; adequate compensation to the party who has been wrongfully restrained by the party on whose request measures has been taken; the applicant to pay the defendants expenses including attorneys fee. prevent an infringement, if there are imported goods the court can order to prevent its customs clearance; preserve its relevant evidence in the alleged infringement; and provisional measures to prevent the delay which cause harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
PROTECTION UNDER REGISTERED DESIGNS ORDINANCE 2000
Remedies under Section 8
If any person infringes a registered proprietor’s right, the proprietor may:
bring a suit against him for the recovery of damages; and
bring a suit for an injunction for the continuance of the infringement.
Here you may find information about family law in Pakistan. Our team of family lawyers best assist their clients in resolving family law affairs herein Pakistan. The legal system is based on English common law and Islamic law. The former is more influential in commercial law while the later is more influential in personal status (and more recently, criminal and tax law to some extent).
After the partition of India in 1947, the legislation relating to Muslim family law introduced in British India continued to govern personal status. A seven-member Commission on Marriage and Family Laws was established in 1955 with a remit to consider the personal status laws applicable in the new state and determine the areas needing reform. The Commission submitted its report in 1956, suggesting a number of reforms, including, for example, the consideration of all triple talaqs (except for the third of three) as single, revocable repudiations.
The report led to much debate, with many leading ulama (including Maulana Abual Ala Maududi, leader of the Jamaat-i-Islami) opposing its recommendations. The Muslim Family Laws Ordinance, 1961 adopted some of the provisions of the Report of the Marriage and Family Laws Commission, aiming to reform divorce law and inheritance law relating to orphaned grandchildren, introduce compulsory marriage registration, place restrictions on the practice of polygamy, and reform the law relating to dower and maintenance in marriage and divorce, as well as to amend existing legislation with relation to marriage age. Again, various sectors of the ulama regarded this as unjustified interference or tampering with the classical law. When the first Constitution of Pakistan was finally promulgated in 1956, it included a provision that came to be referred to as the repugnancy clause. This clause stated that no law repugnant to Islamic injunctions would be enacted and that all existing laws would be considered in light of this provision, in order to institute appropriate amendments. This repugnancy provision has been retained and actually strengthened in the succeeding Constitutions.
After a military take-over in 1999, the Constitution was again suspended. During 2000, discussions continued about possible amendments to the Constitution.
Schools of Fiqh
The predominant madhhab is the Hanafi, and there are sizeable Jafari and Ismaili minorities. The legal status of the Ahmadis is somewhat unclear. They self-identify as Sunni Muslims, but were declared non-Muslims by the state. In 1974, then-Prime Minister Zulfiqar Ali Bhutto finally conceded to a long-standing campaign waged by conservative religious elements agitating for the official designation of Ahmadis as non-Muslims. There have been Ahmadi initiatives to adopt a modified version of the Muslim Family Laws Ordinance 1961 to be applied to Ahmadi personal status cases. There are also Christians, Zoroastrian, Hindu, Sikh and Jewish minorities in Pakistan.
Constitutional Status of Islamic Law
The third Constitution was adopted on 10th April 1973, suspended in 1977, and re-instituted in 1985; it has undergone numerous amendments over time. It was suspended again in 1999 and remained suspended at the time of writing.
Article 1 of the Constitution declares that Pakistan shall be known as “the Islamic Republic of Pakistan” and Article 2 declares Islam the state religion. In 1985, the Objectives Resolution contained in the preamble of the Constitution was made a substantive provision by the insertion of Article 2A, thereby requiring all laws to be brought into consonance with the Quran and sunnah. Chapter 3A establishes the Federal Shariat Court and stipulates that the Court shall take up the examination of any law or provision of law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah”. If a law or provision is determined to be repugnant, the Court is to provide notice to the federal or provincial government specifying the reasons for the decision. The Court may also examine any decisions relating to the application of the hudud penalties which have been decided by any criminal court, and may suspend the sentence if there is any question as to the correctness, legality or propriety of any finding, sentence or order or the regularity of the proceedings. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court and consisting of three Muslim Supreme Court judges and up to two ulama. Part IX of the Constitution is entitled Islamic Provisions and provides for the Islamization of all existing laws, reiterating that no laws shall be enacted which are repugnant to the injunctions of Islam. An explanation appended to Part IX clarifies that, with respect to personal law, the expression “Quran and Sunnah” means the laws of any sect as interpreted by that sect.
The Islamic provisions also provide for the creation of an Islamic Ideology Council of 8 to 20 members appointed by the President. They must have “knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan.” The Islamic Council is meant to represent various schools of thought as far as that may be practical, and at least one woman should be appointed. Its function is to make recommendations to the Majlis-e-Shoora (Parliament) and the Provincial Assemblies “as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah.” The Council also determines for the federal and provincial governments whether or not proposed laws are repugnant, and compiles for them in suitable form “such Injunctions of Islam as can be given legislative effect.
The judiciary is composed of three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts in every district of each province, having both civil and criminal jurisdiction though they deal mainly with civil matters. High Court of each province has appellate jurisdiction over the lower courts. Supreme Court has exclusive jurisdiction over disputes between federal and among provincial governments, and appellate jurisdiction over High Court decisions. Federal Shariat Court established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah.” If a law is found to be repugnant, the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The Court also has jurisdiction to examine any decisions of any criminal court relating to the application of hudud penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court. The West Pakistan Family Courts Act, 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only. The Family Courts have exclusive jurisdiction over matters pertaining to the dissolution of marriage, dower, maintenance, the restitution of conjugal rights, the custody of children, and guardianship.
Guardians and Wards Act, 1890
Child Marriage Restraint Act, 1929
Dissolution of Muslim Marriages Act, 1939
Muslim Family Laws Ordinance, 1961
(West Pakistan) Muslim Personal Law (Shariat) Application Act, 1962
(West Pakistan) Family Courts Act, 1964
Offence of Zina (Enforcement of Hudood) Ordinance, 1979
Law of Evidence (Qanun-e-Shahadat) Order, 1984
Enforcement of Sharia Act, 1991
Dowry and Bridal Gifts (Restriction) Act, 1976
Prohibition (Enforcement of Hudood) Order, 1979
Offence of Qazf (Enforcement of Hudood) Order, 1979
Execution of Punishment of Whipping Ordinance, 1979 (many provisions of this Ordinance were repealed later on so as to limit the number of crimes to which it is applicable)
The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
Repealed the 1937 Muslim Personal Law (Shariat) Application Act as well as provincial legislation on the application of Muslim personal law. The new Act directs the application of Muslim personal law, notwithstanding any custom or usage, to all questions of personal status and succession where the parties are Muslims. One particular provision of the new legislation states that, “the limited estates in respect of immovable property held by Muslim females under the customary law are hereby terminated”; this constitutes the opposite stance to customary land law to the 1937 enactment, and so the new Act provides that it will not apply retrospectively.
18 for males and 16 for females; penal sanctions for contracting under-age marriages, though such unions remain valid.
Governed by classical Hanafi law, though influence of custom is strong; in Abdul Waheed v. Asma Jehangir (PLD 1997 Lah 331), court confirmed that, under current law, adult Hanafi Muslim woman can contract herself in marriage without wal’s consent as essential requirement for validity of contract is the woman’s consent and not the wali’s.
The Muslim Family Laws Ordinance (MFLO), 1961 introduced reforms to various aspects of the classical law. The reforms concern the registration of marriage and divorce, inheritance rights of orphaned grandchildren, restrictions on polygamy, consideration of every talaq (except the third of three) as single and revocable, formalisation of reconciliation procedures in disputes relating to maintenance or dissolution of marriage, and recovery of mahr, along with specified penalties for non-compliance.
Penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage. The MFLO introduced marriage registration and provides for penalties of fines or imprisonment for failure to register. However, a Muslim marriage is still legal if it is contracted only according to the religious requisites.
The MFLO also instituted some limited reforms in the law relating to polygamy, with the introduction of the requirement that the husband must submit an application and pay a fee to the local Union Council in order to obtain prior written permission for contracting a polygamous marriage. The application must state the reasons for the proposed marriage and indicate whether the applicant has obtained the consent of the existing wife or wives. The chairman of the Union Council forms an Arbitration Council with representatives of the existing wife or wives and the applicant in order to determine the necessity of the proposed marriage. The penalty for contracting a polygamous marriage without prior permission is that the husband must immediately pay the entire dower to the existing wife or wives as well as being subject to a fine and/or imprisonment; any polygamous marriage contracted without the Union Council’s approval cannot be registered under the MFLO. Nevertheless, if a man does not seek the permission of his existing wife or the Union Council, his subsequent marriage remains valid. Furthermore, the difficulty in enforcing resort to the application process to the Union Council, combined with the judiciary’s reluctance to apply the penalties contained in the MFLO (as indicated by the case law), tend to restrict the efficacy of the reform provisions. This has led some observers to describe the provisions requiring the permission of the Arbitration Council as a mere formality.
Constraints placed on polygamy by requirement of application to the local Union Council for permission and notification of existing wife/wives, backed up by penal sanctions for contracting a polygamous marriage without prior permission; husband’s contracting polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution.
Obedience / Maintenance
The chairman of the Union Council will also constitute an Arbitration Council to determine the matter in cases where a husband fails to maintain his wife or wives, or fails to maintain co-wives equitably (at the application of one or more wife or wives, and in addition to their seeking any other legal remedy). Any outstanding dower or maintenance not paid in due time is recoverable as arrears of land revenue. Also, where no details regarding the mode of payment of mahr are recorded in the marriage contract, the entire sum of the dower stipulated therein is presumed to be payable as prompt dower.
Consideration of every talaq uttered in any form whatsoever (except the third of three) as single and revocable; formalisation of reconciliation and notification procedures, and procedures for recovery of mahr and penalties for non-compliance; talaq was generally rendered invalid by failure to notify in 1960s and 1970s, but introduction of Zina Ordinance led to changes in judicial practice so that failure to notify does not invalidate talaq.
Efforts were also made to reform the classical law as it relates to the exercise of talaq. The MFLO requires that the divorcing husband shall, as soon as possible after a talaq pronounced “in any form whatsoever”, give the chairman of the Union Council notice in writing. The chairman is to supply a copy of the notice to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of repudiation, the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation. Should that fail, a talaq that is not revoked, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was delivered to the chairman. If the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. The classical law regarding the requirement of an intervening marriage in order to remarry a former husband who has repudiated the same woman three times is retained. Failure to notify invalidated the talaq until the late 1970s and early 1980s, but the introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the MFLO’s notification procedure. Thus, judicial practice has, since the early 1980s, recognised as valid repudiations in contravention of the notification procedure. The rules regarding notification and arbitration apply, mutatis mutandis and so far as applicable, to delegated divorce (talaq al-tafwid), or to marriage dissolved other than by talaq.
Grounds on which women may seek divorce include: desertion for four years, failure to maintain for two years or husband’s contracting of a polygamous marriage in contravention of established legal procedures, husband’s imprisonment for seven years, husband’s failure to perform marital obligations for three years, husband’s continued impotence from the time of the marriage, husband’s insanity for two years or his serious illness, wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated), husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognized as valid for the dissolution of marriage under Muslim law; judicial khula may also be granted without husband’s consent if wife is willing to forgo her financial rights; leading case Khurshid Bibi v. Md. Amin (PLD 1967 SC 97)
The Dissolution of Muslim Marriages Act, 1939
Continues to govern divorce in Pakistan. The Act has been amended by the Muslim Family Laws Ordinance 1961 to include the contracting of a polygamous marriage in contravention of the MFLO in the grounds entitling a woman to a decree for the dissolution of her marriage. Another amendment raises the age at which a woman has to have been married by her father or other guardian to exercise her option of puberty from 15 to 16; thus, the option of puberty may be exercised if the girl was married before the age of 16 if she repudiates the marriage before the age of 18 so long as the marriage was not consummated. The “judicial khula” is a significant feature of divorce law in Pakistan. It is welcomed by some as giving women the right to divorce regardless of grounds, provided that she is prepared to forgo her financial rights (i.e., repaying her dower). It is criticized by others who point out that judges may rule for a judicial khula in cases where women are clearly entitled to a judicial divorce under the terms of the DMMA without losing their financial rights. In Khurshid Bibi v. Mohd. Amin (PLD 1967 SC 97), the question for the Supreme Court to determine was stated as follows: “(Is) a wife, under the Muslim law, entitled, as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations.” The Supreme Court stated that the Muslim wife is indeed entitled to khula as of right, if she satisfies the Court that she would be forced into a hateful union if the option of khula was denied her by her husband.
Post-Divorce Maintenance / Financial Arrangements
Governed by classical law In terms of maintenance during and after marriage, the classical law is applied. The post-independence changes to the Indian Criminal Procedure Code that allow a divorced wife who is unable to support herself to claim maintenance from her former husband have not been reflected in the Criminal Procedure Code of Pakistan. While the Indian Criminal Procedure Code was extended so as to apply to divorce, no such reforms have been made to section 488 of the Criminal Procedure Codes of either Pakistan or Bangladesh.
General rule is that divorced wife is entitled to custody until 7 years for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as best interests of the ward are considered paramount according to Guardians and Wards Act, 1890.
Governed by classical law; reform introduced in post-independence legislation allows for orphaned grandchildren through sons and daughters to inherit the share their father / mother would have been entitled to had they not predeceased the grandparents.
The Qanun-e-Shahadat (Law of Evidence) Order, 1984
Replaced the Evidence Act 1872, though it essentially restates the original legislation, but as it was intended to bring the law of evidence closer to Islamic injunctions, there were changes which specifically impacted upon women. The Order introduced changes to the law as it relates to the presumption of legitimacy. The original Evidence Act did not provide for a minimum period of gestation, and the maximum was 280 days. Now, the minimum gestation period is set at six months and the maximum at two years, bringing the provision into accordance with the majority position in classical Hanafi fiqh. With regard to the changes introduced relating to womens testimony, practice since the Orders issuance has been for instruments pertaining to financial or future obligations to be attested by two men, or one man and two women while courts may accept or act on the testimony of one man or one woman in all other cases.
The Offence of Zina (Enforcement of Hudood) Ordinance, 1979
Introduced the concepts of fornication and adultery into criminal law. The Pakistani Penal Code had not afforded any recognition to fornication as a crime, and adultery was only defined as an offence under section 497 if a man had intercourse with the wife of another man without his permission; the woman involved bore no criminal liability. The Zina Ordinance provides for severe penalties for committing adultery or fornication, and reiterates the classical distinction between married and unmarried parties in determining punishments. Thus, the hadd punishment for a married person convicted of zina is rajm, stoning to death, a penalty that has not been carried out by the state, and the hadd for an unmarried person found guilty of zina is one hundred lashes in a public place. The Ordinance also makes a distinction between tazir and hadd punishments for zina, as hadd punishments are generally more severe and require a more rigorous standard of proof. If the accused confesses to the crime, or if there are four pious adult Muslim male eye-witnesses to the actual act of penetration, the hadd penalty may be applied. Often the higher standard of evidentiary requirements is not met, and if there are other complications as well (appeals, retractions of confessions, etc.), the usual course has been to apply tazir punishments, defined as imprisonment for up to ten years, thirty lashes, and a fine.
The Enforcement of Sharia Act, 1991
Affirms the supremacy of the sharia, (defined in the Act as the injunctions of Islam as laid down in the Holy Quran and Sunnah) as the supreme law of Pakistan. The Act states that all statute law is to be interpreted in the light of sharia and that all Muslim citizens of Pakistan shall observe the sharia and act accordingly. Section 20 of the Act states that notwithstanding anything contained in this Act, the rights of women as guaranteed by the Constitution shall not be affected.
Law / Case Reporting System
The decisions of Pakistani courts are published in Pakistan Legal Decisions (PLD), Civil Law Cases (CLC), Monthly Legal Digest (MLD) and a number of other law reports.
International Conventions & Reports to Treaty Governing Bodies
Pakistan signed the CRC in 1990, and ratified the Convention the same year. The reservation made upon signature regarding the CRC being interpreted in light of Islamic legal principles and values was withdrawn in 1997.
Pakistan acceded to the CEDAW in 1996, with a general declaration to the effect that Pakistan’s accession to the Convention is subject to the provisions of the national Constitution.
Court system of Pakistan is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial.
Pakistan has three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts exist in every district of each province, with civil and criminal jurisdiction. The High Court of each province has appellate jurisdiction over the lower courts. The Supreme Court has exclusive jurisdiction over disputes between and among provincial governments, and appellate jurisdiction over High Court decisions.
The Federal Shariat Court was established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah.” If a law is found to be ‘repugnant’, the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The Court also has jurisdiction to examine any decisions of any criminal court relating to the application of hudud penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court.
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only.
Anti Terrorism Court of Pakistan
Pakistan Penal Code
Blasphemy law in Pakistan
Copyright protection in Pakistan
Gay rights in Pakistan
The Oath of Judges Order, 2000
A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws. In common law and civil law states, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, those accused of a crime have the right to present their defense before a court.
Court facilities range from a simple farmhouse for a village court in a rural community to huge buildings housing dozens of courtrooms in large cities. A court is a kind of deliberative assembly with special powers, called its jurisdiction, to decide certain kinds of judicial questions or petitions put to it. It will typically consist of one or more presiding officers, parties and their attorneys, bailiffs, reporters, and perhaps a jury.
The term “court” is often used to refer to the president of the court, also known as the “judge” or the “bench”, or the panel of such officials. For example, in the United States the term “court” (in the case of U.S. federal courts) by law is used to describe the judge himself or herself.
In the United States, the legal authority of a court to take action is based on three major issues: (1) Personal jurisdiction; (2) Subject matter jurisdiction; and (3) Venue.
Jurisdiction, meaning “to speak the law” is the power of a court over a person or claim. In the United States, a court must have both personal jurisdiction and subject matter jurisdiction. Each state establishes a court system for the territory under its control. This system allocates work to courts or authorized individuals by granting both civil and criminal jurisdiction (in the United States, this is termed subject-matter jurisdiction). The grant of power to each category of court or individual may stem from a provision of a written constitution or from an enabling statute. In English law, jurisdiction may be inherent, deriving from the common law origin of the particular court.
Trial and Appellate Courts
Courts may be classified as trial courts (sometimes termed “courts of first instance”) and appellate courts. Some trial courts may function with a judge and a jury: juries make findings of fact under the direction of the judge who reaches conclusions of law and, in combination, this represents the judgment of the court. In other trial courts, decisions of both fact and law are made by the judge or judges. Juries are less common in court systems outside the Anglo-American common law tradition.
Civil Law Courts and Common Law Courts
The two major models for courts are the civil law courts and the common law courts. Civil law courts are based upon the judicial system in France, while the common law courts are based on the judicial system in Britain. In most civil law jurisdictions, courts function under an inquisitorial system. In the common law system, most courts follow the adversarial system. Procedural law governs the rules by which courts operate: civil procedure for private disputes (for example); and criminal procedure for violation of the criminal law.
The Federal Shariat Court (FSC) of Pakistan consists of 8 muslim judges including the Chief Justice. These Judges are appointed by the President of Pakistan choosing from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court.
Of the 8 judges, 3 are required to be Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President.
The FSC, on its own motion or through petition by a citizen or a government (federal or provincial), has the power to examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme Court, consisting of 3 muslim judges of the Supreme Court and 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the injunctions of Islam, the government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam.
The court also exercises revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.
Ever since its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy in the society. Created as an islamisation measure by the military regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution. It is stated that this court merely duplicates the functions of the existing superior courts and also operates as a check on the sovereignty of Parliament. The composition of the court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this court does not fully meet the criterion prescribed for the independence of the judiciary. That is to say, it is not immune to pressures and influences from the Executive.
In the past, this court was used as a refuge for the recalcitrant judges. And whereas some of its judgments, particularly the ones which relying on the Islamic concept of equity, justice and fair play, expanded and enlarged the scope and contents of individual’s rights were commended, others that tend to restrict the rights of women, are severely criticized and deplored. In brief there is a need for a serious discussion on the status, utility and functions of this Court.
Cybercrime, also known as computer crime, the use of a computer as an instrument to perform an illegal act, such as committing fraud, trafficking in child pornography and intellectual property, stealing identities, or violating privacy. Cybercrime, especially through the Internet, has grown in importance as the computer has become central to commerce, entertainment, and government.
There is no doubt that Information Technology has intruded in our life in such a manner and extent that presently nobody can imagine a well-facilitated and luxury life without it. Computers, Scanners, World Wide Web Sites, Intranet and Internet Electronic Messaging and Mails, Electronic Data Transfers and Exchange of Information, Electronic Commerce and Banking System, all are necessities of life based on or using different components based on the use of Information Technology, which are abundantly in use in our domestic, social and business life. Mobile phones, laptops and latest computers are using Digital Databases for different purposes. Similarly, Digital Databases are accessible through Intranet and Internet at International level without any problem or loss of time.
The dawning of Information Technology age has facilitated our life but at the same time it has given birth to different complex problems like its regulatory matters and use of the Information Technology for criminal and other heinous purposes by different anti-social elements. Regulatory matters regarding use of Information Technology require legal frame works and laws. Similarly, misuse and anti-social elements that are causing fear and disturbance not only in personal lives but also in the smooth running of social and commercial life, as a whole.
However, as the use of Information Technology has no boundaries, thus it is very difficult to design its regulatory regimes and regulatory laws to determine strict liability in case wrong and criminal application of different Software, Information Technology techniques and other related matters. Presently, all the nations and countries are facing the same problems for establishing effective regulatory regimes and legal systems for proper benefit of Information Technology within certain parameters which are beneficial to the society.
In Pakistan, in addition to the Pakistan Telecommunication (Re-Organization) Act, 1996, (Act XVII of 1996), The Electronic Transactions Ordinance, 2002 (Ordinance LI of 2002) is the first law to regulate different aspects and uses of Information Technology but the same has not solved all the problems. Thereafter, other laws have been made and promulgated to address different issues relating to Information Technology and its use for different purposes. After promulgation and enforcement of these laws, there was a need to compile these laws with case laws developed during this period for the benefit of legal professionals, academicians, researchers and general public.
It is also to point out that the Pakistan Telecommunication (Re- organization) Act, 1996 (XVII of 1996), is the basic legal framework given by the Parliament to achieve the ambitious goals in the telecommunication and Information Technology Sector in Pakistan providing different key organizations including the Pakistan Telecommunication Authority. Pakistan Telecommunication Authority has made a lot of efforts to regulate each and every aspect of the telecommunication sector in Pakistan and to meet the internationally posed challenges of competition and transparency. However, the Pakistan Telecommunication (Re-organization) Act, (XVII of 1996), The Telegraph Act, 1885 (Act XIII of 1885), and the Wireless Telegraphy Act, 1993 (Act XVII of 1933), have been introduced in different regimes. Prevention of Electronic Crimes Ordinance, 2007 (Ordinance LXXII of 2007) relating to Telecommunication Sector in Pakistan covering all aspects regarding telecommunications and Information Technology in their legal, national and international perspectives which may be consulted and used if you feel necessary and suitable to boost up your knowledge and information about basic regulatory regimes and frameworks in the telecommunications and information fields.
The growing danger from crimes committed against computers, or against information on computers, is beginning to claim attention in national capitals. In most countries around the world, however, existing laws are likely to be unenforceable against such crimes. This lack of legal protection means that businesses and governments must rely solely on technical measures to protect themselves from those who would steal, deny access to, or destroy valuable information.
Self-protection, while essential, is not sufficient to make cyberspace a safe place to conduct business. The rule of law must also be enforced. Countries where legal protections are inadequate will become increasingly less able to compete in the new economy. As cyber crime increasingly breaches national borders, nations perceived as havens run the risk of having their electronic messages blocked by the network. National Governments should examine their current statutes to determine whether they are sufficient to combat the kinds of crimes. Where gaps exist, Governments should draw on best practices from other countries and work closely with industry to enact enforceable legal protections against these new crimes.
What’s Different about Cyber Crime?
Undeterred by the prospect of arrest or prosecution, cyber criminals around the world lurk on the Net as an omnipresent menace to the financial health of businesses, to the trust of their customers, and as an emerging threat to nations’ security. Headlines of cyber attacks command our attention with increasing frequency. According to the Computer Emergency Response Team Coordination Center (CERT/CC), the number of reported incidences of security breaches in the first three quarters of 2000 has risen by 54 percent over the total number of reported incidences in 1999. Moreover, countless instances of illegal access and damage around the world remain unreported, as victims fear the exposure of vulnerabilities, the potential for Copycat Crimes, and the loss of public confidence. Cyber crimes—harmful acts committed from against a computer or network—differ from most terrestrial crimes in four ways. They are easy to learn how to commit; they require few resources relative to the potential damage caused; they can be committed in a jurisdiction without being physically present in it; and they are often not clearly illegal.
The laws of most countries do not clearly prohibit cyber crimes. Existing terrestrial laws against physical acts of trespass or breaking and entering often do not cover their “virtual” counterparts. Web pages such as the E-Commerce sites recently hit by widespread, distributed denial of service attacks may not be covered by outdated laws as protected forms of property. New kinds of crimes can fall between the cracks, as the Philippines learned when it attempted to prosecute the perpetrator of the May 2000 Love Bug virus, which caused billions of dollars of damage worldwide.
Effective Law Enforcement is complicated by the transnational nature of cyberspace. Mechanisms of cooperation across national borders to solve and prosecute crimes are complex and slow. Cyber criminals can defy the conventional jurisdictional realms of sovereign nations, originating an attack from almost any computer in the world, passing it across multiple national boundaries, or designing attacks that appear to be originating from foreign sources. Such techniques dramatically increase both the technical and legal complexities of investigating and prosecuting cyber crimes.
Six weeks after the Love Bug attack, the Philippines outlawed most computer crimes as part of a comprehensive e-commerce statute. In order to prevent a repeat of the catastrophe that prompted this action, however, the future of the networked world demands a more proactive approach, whereby Governments, Industry, and the Public Work together to devise enforceable laws that will effectively deter all but the most determined cyber criminals.
Poor Information Security Reduces the Competitiveness of Nations
In considering nations’ information security, the evaluated public trust in the security of information processed and stored on networks in each country. In this context, information security included: an assessment of the strength of legal protections and progress in protecting intellectual property rights, especially for software; the extent of efforts to protect electronic privacy; and the strength and effectiveness of the legal framework to authorize digital signatures. The existence of legal frameworks to prosecute cyber criminals, for a predictable environment of strong deterrence for computer crime is critical to the effective protection of valuable information and networks.
Although several countries, particularly in Europe and Asia, were found to have addressed a number of these broader information security factors, few countries were able to demonstrate that adequate legal measures had been taken to ensure that perpetrators of cyber crime would be held accountable for their actions. Overall, nearly half of the countries were rated as needing substantial improvement in information security. In addition, only a small fraction of countries needing substantial improvement indicated that progress was currently underway.
Outdated laws and regulations and weak enforcement mechanisms for protecting networked information, create an inhospitable environment in which to conduct e-business within a country and across national boundaries. Inadequate legal protection of digital information can create barriers to its exchange and stunt the growth of e-commerce. As e-business expands globally, the need for strong and consistent means to protect networked information will grow.
The Cyber Crime Laws of Nations
In the wake of the Philippines inability to prosecute the student responsible for the virus, McConnell International surveyed its global network of Information Technology policy officials to determine the state of cyber security laws around the world. Countries were asked to provide laws that would be used to prosecute criminal acts involving both private and public sector computers.
Over fifty national governments responded with recent pieces of legislation, copies of updated statutes, draft legislation or statements that no concrete course of action has been planned to respond to a cyber attack on the public or private sector. Countries were provided the opportunity to review the presentation of the results in draft, and this report reflects their comments.
Countries that provided legislation were evaluated to determine whether their criminal statutes had been extended into cyberspace to cover ten different types of cyber crime in four categories: Data-Related Crimes including interception, modification and theft; Network-Related Crimes including interference and sabotage; Crimes of Access including hacking and virus distribution and Associated Computer-Related Crimes including aiding and abetting cyber criminals, computer fraud and computer forgery.
Thirty-three of the countries surveyed have not yet updated their laws to address any type of cyber crime. Of the remaining countries, nine have enacted legislation to address five or fewer types of cyber crime, and ten have updated their laws to prosecute against six or more of the ten types of cyber crime.
Countries with fully, substantially or partially updated laws, in Pakistan, successful prosecutions of computer-related fraud have effectively updated the law. Pakistan also provides an example of a phenomenon in many countries—that law enforcement officials have strong confidence that existing laws provide sufficient coverage against the “computer-related crimes” of aiding and abetting cyber crimes, and computer-related fraud and forgery.
Even among these countries, crimes are not treated uniformly. In some, unauthorized access is a crime only if harmful intent is present; in others, data theft is a crime only if the data relates specifically to an individual’s religion or health, or if the intent is to defraud. Laws tend to be biased in favor of protecting public sector computers.
Discrepancies exist even within countries. For example, in September 2000, the Australian Democratic Party criticized the South Australian (state) government for creating a haven for cyber criminals by not having updated its laws to combat computer-based crime in accordance with the laws of Australia’s other states. Moreover, there is little uniformity across nations in terms of which types of crimes have been addressed through updated statutes.
The penalties provided in updated criminal statutes vary widely. Mauritius, the Philippines, and the United States have stronger penalties than many other countries for convictions of covered cyber crimes.
Finally, of the 33 countries with no updated laws in place, 13 indicated that progress toward the adoption of updated legislation to combat cyber crime is underway. Seven of these 13 countries are in Africa or the Middle East, indicating that, although these regions have not yet adequately addressed the issue of cyber crime, many countries are aware that action is needed.
Law Is Only Part of the Answer
Extending the rule of law into cyberspace is a critical step to create a trustworthy environment for people and businesses. Because that extension remains a work in progress, organizations today must first and foremost defend their own systems and information from attack, be it from outsiders or from within. They may rely only secondarily on the deterrence that effective law enforcement can provide.
Reliance on terrestrial laws is an untested approach
Despite the progress being made in many countries, most countries still rely on standard terrestrial law to prosecute cyber crimes. The majority of countries are relying on archaic statutes that predate the birth of cyberspace and have not yet been tested in court.
Weak penalties limit deterrence
The weak penalties in most updated criminal statutes provide limited deterrence for crimes that can have large-scale economic and social effects.
Self-protection remains the first line of defense
The general weakness of statutes increases the importance of private sector efforts to develop and adopt strong and efficient technical solutions and management practices for information security.
A global patchwork of laws creates little certainty
Little consensus exists among countries regarding exactly which crimes need to be legislated against, even in the 19 countries that have already taken steps to address cyber crimes. In the networked world, no island is an island. Unless crimes are defined in a similar manner across jurisdictions, coordinated efforts by law enforcement officials to combat cyber crime will be complicated.
A model approach is needed
Most countries, particularly those in the developing world, are seeking a model to follow. These countries recognize the importance of outlawing malicious computer-related acts in a timely manner in order to promote a secure environment for e-commerce. But few have the legal and technical resources necessary to address the complexities of adapting terrestrial criminal statutes to cyberspace. A coordinated, public-private partnership to produce a model approach can help eliminate the potential danger from the inadvertent creation of cyber crime havens.
The weak state of global legal protections against cyber crime suggests three kinds of action.
Firms should secure their networked information
Laws to enforce property rights work only when property owners take reasonable steps to protect their property in the first place. As one observer has noted, if homeowners failed to buy locks for their front doors, should towns solve the problem by passing more laws or hiring more police? Even where laws are adequate, firms dependent on the network must make their own information and systems secure. And where enforceable laws are months or years away, as in most countries, this responsibility is even more significant.
Governments should assure that their laws apply to cyber crimes
National governments remain the dominant authority for regulating criminal behavior in most places in the world. One nation already has struggled from, and ultimately improved, its legal authority after a confrontation with the unique challenges presented by cyber crime. It is crucial that other nations profit from this lesson and examine their current laws to discern whether they are composed in a technologically neutral manner that would not exclude the prosecution of cyber criminals. In many cases, nations will find that current laws ought to be updated. Enactment of enforceable computer crime laws that also respect the rights of individuals are an essential next step in the battle against this emerging threat.
Firms, governments, and civil society should work cooperatively to strengthen legal frameworks for cyber security
To be prosecuted across a border, an act must be a crime in each jurisdiction. Thus, while local legal traditions must be respected, nations must define cyber crimes in a similar manner. An important effort to craft a model approach is underway in the Council of Europe. The Council is crafting an international Convention on Cyber Crime. The Convention addresses Illegal Access, Illegal Interception, Data Interference, System Interference, Computer-related Forgery, Computer-related Fraud, and the Aiding and Abetting of these crimes. It also addresses investigational matters related to jurisdiction, extradition, the interception of communications and the production and preservation of data. Finally, it promotes cooperation among law enforcement officials across national borders.
Late in its process, the Council began to consider the views of affected industry and civil society. This process is making the Council’s product more realistic, practical, efficient, balanced and respectful of due process that protects individual rights. At this point, most observers support provisions to improve law enforcement cooperation across borders. However, industry, through the World Information Technology and Services Alliance argues that the requirements on service providers to monitor communications and to provide assistance to investigators, as outlined in the Draft Convention, would be unduly burdensome and expensive. Another provision considered objectionable could criminalize the creation and use of intrusive software, or hacking programmed, which are designed for legitimate security testing purposes. This action could stifle the advances in technology vital to keep up with evolving cyber threats. Privacy and Human Rights Advocates object to the Draft Convention’s lack of procedural safeguards and due process to protect the rights of individuals, and to the possibility that the ensuing national laws would effectively place restrictions on privacy, anonymity and encryption.
Types of Cyber Crimes
Theft of Telecommunications Services
Communications in furtherance of Criminal Conspiracies
Dissemination of Offensive Materials
Electronic Money Laundering and Tax Evasion
Electronic Vandalism, Terrorism and Extortion
Sales and Investment Fraud
Illegal Interception of Telecommunications
Electronic Funds Transfer Fraud
Electronic Vandalism, Terrorism and Extortion
Stealing Telecommunications Services
Pornography and other Offensive Material
Electronic Fund Transfer Crime
Electronic Money Laundering
LAWS RELATING TO CYBER CRIME IN PAKISTAN
The Electronic Transactions Ordinance, 2002
The purpose of this ordinance is to recognize and facilitate Documents, Records, Information, Communications and Transactions in electronic form, and to provide for the accreditation of Certification Service Providers.
Defendant, according to sales contract, was to supply 1,600 M.T. steel rods, but it supplied only 500 M.T. of steel rods. Plaintiff filed suit claiming damages against defendant in respect of balance 1,100 M.T. of steel rods. Defendant filed application for stay of plaintiff’s suit seeking direction from the Court to order plaintiff to refer the dispute to arbitration as the parties by the very said contract had agreed to settle all disputes by arbitration. Claim of plaintiff was that sale transaction was based on pro forma invoice, purchase order and correspondence by faxes and E-mails and that plaintiff had never entered into any sales contract containing an agreement to arbitration.
In a paragraph of the Order, it has been observed that “The learned counsel for the Plaintiff has also argued that the Sales Contract has not been signed and therefore is not enforceable. As discussed above, the Defendant has established that sales contract was electronically sent to the plaintiff who acted on the same and opened a Letter of Credit in accordance with its terms and conditions, which also contained an arbitration clause. The submissions of the learned Advocate for the Plaintiff have no force in view of the provisions of the Electronics Transactions Ordinance, 2002 (Ordinance LI of 2002) – It is further to be pointed out that after promulgation of Electronic Transactions Ordinance, 2002, the Qanun-e- Shahadat, 1984 (P.O. 10 of 1984) stands amended in terms of section 29 of the Ordinance, 2002 – By the said amendments various definitions of the Qanun-e-Shahadat Order have been changed and specifically by addition of section 2(e) in the said Order all the documents produced or generated through modern devices have been given evidentiary value…
It is further observed in Paragraph 11 of the Order thereof that in view of the aforesaid provisions of the Electronic Transactions Ordinance 2002, as well as amendment in the Qanun-e-Shahadat Order, it appears that it is no longer necessary for electronically transmitted documents, which include Commercial / Banking Contracts, to be manually signed or for the same to be attested by any witness.
The Payment Systems and Electronic Fund Transfers Act, 2007. The purpose of the Act is to provide regulatory framework for payment systems and electronic fund transfers. “Electronic fund” means the money transferred through an electronic terminal, ATM, telephone instrument, computer, magnetic medium or any other electronic device to order, instruct or authorize Banking Company, a Financial Institution or any other Company or Person to debit and credit an account. The Act gives powers to State Bank of Pakistan that if it finds it necessary in the public interest, it can designate a “Payment System” (means a system relating to payment of instruments, or transfer, clearing, payment settlement, supervision, regulation or infrastructure etc.) as a Designated Payment System by a written order. State Bank can revoke the designation of payment system.
It also deals with Payment Systems, Real Time Gross Settlement System (RTGS), Operator Arrangement, Clearing and other obligations, Documentation of Transfers, Notification of Error, Liability of parties and penalties etc.
The Prevention of Electronic Crimes Ordinance, 2007. Aim of the Ordinance is to make provision for prevention of Electronic Crimes. Prevention of 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 punishment of such actions and to provide mechanism for investigation, prosecution and trial of offences and the other matters connected thereto.
It deals with Criminal access, Criminal data Access, Data damage, System damage, Electronic fraud, Electronic forgery, Misuse of Electronic System or Electronic Device, Unauthorized access to Code, Misuse of encryption, Malicious code, Cyber stalking, Spamming, Spoofing, Unauthorized Interception, Cyber Terrorism it also deals with their punishments, abetting, aiding and attempts to commit offences, prosecution and trial of offences, establishment of investigation and prosecution agencies etc.
The Pakistan Telecommunication (Re-Organization) Act, 1996. The aim of the Act is the re-organization of telecommunication system. It provides for re-organization of telecommunication system in Pakistan by establishing the Pakistan Telecommunication Authority, the Frequency Allocation Board, National Telecommunication Corporation and the Pakistan Telecommunication Employees Trust, Regulation of Telecommunication Industry, Transfer of Telecommunication Services to private sector and matters connected and incidental thereto.
It elaborates the powers, functions and responsibilities of the Pakistan Telecommunication Authority. Cognizance of the offences punishable under the Pakistan Telecommunication (Re-Organization) Act, 1996, could only be taken by the Court on a complaint in writing by an officer authorized by the Authority or the Board.
The Telegraph Act, 1885. The Act deals with telegraphs in Pakistan. The Federal Government may grant a license to any person that he may establish, maintain or work a telegraph within any part of Pakistan. The Government and the telegraph officer both shall not responsible for any loss or damage which may occur in consequence of failure to the receipt, transmission or delivery of any message unless the telegraph officer is negligent in performing his duties.
The Wireless Telegraphy Act, 1933. Wireless Telegraphy Act deals with the possession of wireless telegraphy apparatus. It prohibits the possession of wireless telegraph apparatus without a license. The Federal Government has power to exempt any person or class of persons from the operation of this Act by making rules on it either generally or on conditions. It also prescribes offences and penalties in case of violation of this Act.
The Anti-Money Laundering Ordinance, 2007. The Ordinance is made for prevention of money laundering. A person shall be guilty of the offence of money laundering if he acquires, converts, possesses or transfers property, knowing or having reason to believe that such property is proceeds of crime, or renders assistance to another person for the acquisition, conversion, possession or transfer of, or for concealing or disguising the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime. The punishment for money laundering shall be one year but may extend to ten years according to the gravity of the offence and he shall also liable to fine which may extend to one million rupees and shall also be liable to forfeiture of property involved in the money laundering.
Trek Law deal in all kinds of Cyber Crime Laws including Anti-Money Laundering Ordinance, 2007. If you have any queries please do not feel hesitate to contact us.
Banking law that governs how banks and other financial institutions conduct business. Banks must comply with a myriad of federal, provincial and domestic regulations. Lawyers perform a wide array of functions that relate to creating, following and enforcing the banking regulations. Bank regulation, on the other hand, is a form of government regulation which subjects banks to certain requirements, restrictions and guidelines, designed to create market transparency between banking institutions and the individuals and companies with whom they conduct business, among others.
Our dedicated team of professional lawyers may best assists their clients in resolving banking law issues in Pakistan. We deal in establishment, incorporation and share capital in Banking Companies, Cooperative Banks and Financial Institutions, Transactions of Banking Business, Suspension of Business and Winding up of Banking Business, Recovery of Loans, Mortgage Matters, Landlord & Tenant, Debtor & Creditor, Contracts, Bankruptcy, Bank Secrecy Matters and Negotiable Instruments etc.
We also deal with the matters relating to borrowing, raising or taking up of money, the lending or advancing of money either upon or without security, all kinds regarding bills of exchange, hundis, promissory notes, coupons, drafts, bills of lading, railway receipts, warrants, debentures, certificates including participation term certificates, modaraba certificates and musharika certificates etc and dealing in bullion and species, buying and selling of foreign exchange including foreign bank notes, the acquiring, holding, issuing on commission, underwriting and dealing in stock, funds, shares, debentures, bonds, obligations and securities, all kinds of investments, the receiving of all kinds of bonds, scripts or valuable on deposits.