section 36 and 37 of ETO 2002 are not attracted to the facts and circumstances of the instant case. The above are the reasons of our short order dated 24.05.2024 whereby while refusing leave to appeal, the petition was dismissed.

IN THE SUPREME COURT OF PAKISTAN

( Appellate Jurisdiction )

Present:

Justice Jamal Khan Mandokhail

Justice Syed Hasan Azhar Rizvi

Justice Naeem Akhtar Afghan

CRIMINAL PETITION NO.128 OF 2024

(0n appeal against the order dated 04.12.2023 passed by the

Islamabad High Court, Islamabad, in Criminal Revision No.163/2023)

Mst. Uzma Mukhtar

…

Petitioner

Versus

The State thr. Deputy Attorney

…

Respondent(s)

General and another

For the petitioner

Agha Muhammad Ali Khan, ASC

Syed Rifaqat Hussain Shah, AOR

For the State

Mr. Irfan Zia, Addl. PG Pb.

Date of hearing

24.05.2024

JUDGMENT

Naeem Akhtar Afghan, J. On the basis of application dated

03.08.2016 (Exh.PE) submitted by the petitioner (Mst. Uzma Mukhtar) to

Federal Investigation Agency (FIA), FIR No.45/2016 was registered on

18.08.2016 with Police Station (PS) FIA, Cyber Crime Circle, Islamabad,

u/s 36 and 37 of Electronic Transactions Ordinance (ETO) 2002 r/w

section 500, 506 and 509 of Pakistan Penal Code (PPC) against respondent

No.2 (accused Muhammad Zain-ul-Abideen Sagheer).

In her application dated 03.08.2016 submitted to FIA, the petitioner

stated that she had a pure relationship with respondent No.2 to turn into a

legitimate one; she has no idea as to how respondent No.2 took her

personal pictures without her consent; respondent No.2 has been

harassing, threatening and blackmailing her for the last one year by

sending her personal pictures on her cell phone through whatsapp; so far

she has given an amount of Rs.2,00,000/- to respondent No.2 for keeping

her dignity and honour intact; whenever she shows any kind of resistance,

Crl.P.128/2024

respondent No.2 threatens that he will show her absurd/personal picture

to everyone through social media.

After registration of FIR investigation was conducted by FIA and

interim, supplementary as well as final reports u/s 173 Cr.P.C. were

submitted on different dates. The trial proceedings commenced before

learned Judge, Prevention of Electronic Crimes Court, Islamabad, (PECC).

After reading over charge u/s 36 and 37 ETO, 2002 r/w section 500,

506 and 509 PPC to respondent No.2, statements of 09 prosecution

witnesses were recorded at the trial. The statement of respondent No.2 has

also been recorded u/s 342 Cr.P.C. on 02.11.2022.

On the basis of statement made by Assistant Director (Legal) FIA,

about non attraction of section 36 and 37 of ETO 2002, the learned Judge,

PECC deleted section 36 and 37 of ETO 2002 and transferred the case to

the Court of competent jurisdiction vide order dated 17.07.2023

The above order was challenged by the petitioner before Islamabad

High Court by filing Criminal Revision No.121/2023 which was accepted

vide order dated 04.09.2023. After setting aside the order dated

17.07.2023, Islamabad High Court directed the learned Judge PECC to

decide the matter afresh by providing proper opportunity of hearing to the

complainant and accused and to pass a speaking order with reasonings for

non-attraction of section 36 and 37 of ETO.

In the meanwhile, petitioner submitted an application u/s 227

Cr.P.C. for altering the charge and to read over charge to respondent No.2

u/s 20, 21 and 24 of Prevention of Electronic Crimes Act (PECA) 2016,

instead of section 36 and 37 ETO 2002 r/w section 500, 506 and 509 PPC.

After hearing learned counsel for the parties and learned Assistant

Director (Legal), FIA, the learned Judge PECC concluded vide order dated

23.09.2023 with detailed reasonings that section 36 and 37 of ETO 2002

are not attracted to the facts of the instant case; the proceedings cannot be

continued u/s 54 of PECA 2016 as the provisions of PECA 2016 are also

not attracted in the instant case for the reason that at the time of

commission of alleged offences i.e. one year prior to the application dated

Crl.P.128/2024

03.08.2016 submitted by the petitioner to FIA for registration of FIR, PECA

2016 was not in field as it came into force on 18.08.2016.

In view of the above conclusions, after deletion of section 36 and 37

of ETO 2002, learned Judge PECC ordered to place the case file before

learned Sessions Judge (West) Islamabad for its further entrustment to the

court of competent jurisdiction.

The petitioner challenged the order dated 23.09.2023 of learned

Judge PECC before Islamabad High Court by filing Criminal Revision

No.163/2023 which has been dismissed in limine vide order dated

04.12.2023. Feeling aggrieved, the petitioner has filed the instant Criminal

Petition for Leave to Appeal.

10.

After hearing learned counsel for the petitioner and learned APG, we

have perused the available record which reveals that assent of the President

of Pakistan was received on 18.08.2016 for promulgation of PECA 2016 and

notification dated 19.08.2016 was published in the Gazette of Pakistan on

22.08.2016. The offences mentioned by the petitioner in her application

dated 03.08.2016 (Exb.PE) were allegedly committed by respondent No.2

since the last year i.e. much prior to promulgation of PECA 2016.

While providing protection against retrospective punishment, Article

12 of the Constitution of the Islamic Republic of Pakistan, 1973 lays down

that no law shall authorize the punishment of a person for an act or

omission that was not punishable by law at the time of the act or omission.

11.

In view of the above it is concluded that both the Courts below have

not committed any illegality in rejecting the application of the petitioner for

altering the charge/reading over the charge to respondent No.2 u/s 20, 21

and 24 of PECA 2016.

12.

Sections 36 and 37 of ETO 2002 read as follows:

“36.

Violation of privacy of information:- Any person who gains or

attempts to gain access to any information system with or without intent to

acquire the information contained therein or to gain knowledge of such

information, whether or not he is aware of the nature or contents of such

information, when he is not authorised to gain access, as aforesaid, shall be

guilty of an offence under this Ordinance punishable with imprisonment of

either description of a term not exceeding seven years, or fine which may

extent to one million rupees, or with both.

Crl.P.128/2024

37.

Damage to information system etc:- (1) any person who does or

attempts to do any act with intent to alter, modify, delete, remove, generate,

transmit or store any information through or in any information system

knowingly that he is not authorised to do any of the foregoing, shall be guilty

of any offence under this Ordinance.

(2)

Any person who does or attempts to do any act with intent to impair

the operation of, or prevent or hinder access to any information contained in

any information system, knowingly that he is not authorised to do any of the

foregoing, shall be guilty of an offence under this Ordinance.

(3)

The offences under sub-section (1) and (2) of this section will be

punishable with either description of a term not exceeding seven years or fine

which may extend to one million rupees or with both”

The allegations levelled by the petitioner against respondent No.2 in

her application dated 03-08-2016 (Exh.PE) and the incriminating material

collected during investigation do not attract section 36 and 37 of ETO 2002

as respondent No.2 has neither attempted nor gained access to any

information system with or without intent to acquire the information

contained therein; he has neither attempted nor done any act with intent to

alter, modify, delete, remove, generate, transmit, or store any information

through or in any information system being not authorised to do so; he has

neither attempted nor done any act to impair the operation of any

information system; he has neither attempted nor done any act to prevent

or hinder access to any information contained in any information system.

13.

In view of the above it is concluded that both the Courts below have

not committed any illegality in concluding that section 36 and 37 of ETO

2002 are not attracted to the facts and circumstances of the instant case.

The above are the reasons of our short order dated 24.05.2024

whereby while refusing leave to appeal, the petition was dismissed.

Judge

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