The Electronic Transactions Ordinance 2002

PAKISTAN ELECTRONIC TRANSACTION ORDINANCE

to recognize and facilitate documents, records, information, communications and

transactions in electronic form, and to provide for the accreditation of certification

service providers.

WHEREAS it is expedient to provide for the recognition and facilitation of

documents, records, information, communications and transactions in electronic form,

accreditation of certification service providers, and for matters connected therewith and

ancillary thereto;

AND WHEREAS the President is satisfied that circumstances exist which render

it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the

fourteenth day of October, 1999, and the Provisional Constitution Order No. 1 of 1999,

read with the Provisional l Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:—

CHAPTER 1

PRELIMINARY

1 . Short title, extent and commencement.—(1) This Ordinance may be called

the Electronic Transactions Ordinance, 2002.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Definitions.—(1) In this Ordinance, unless there is anything repugnant in the

subject or context,—

(a) “accreditation certificate” means a certificate granted by the Certification

Council to a Certification Service Provider;

(b) “Accredited Certification Service Provider” means a Certification Service

Provider accredited under this Ordinance to issue certificates for the use of its

cryptography services;

(c) “addressee” means the person intended by the originator to receive the

electronic communication but does not include an intermediary;

(d) “advanced electronic signature” means an electronic signature which is

either—

(i) unique to the person signing it, capable of identifying such person,

created in a manner or using a means under the sole control of the

person using it, and attached to the electronic document to which it

relates in a manner that any subsequent change in the electronic

document is detectable ; or

(ii) provided by an accredited certification service provider and accredited

by the Certification Council as being capable of establishing

authenticity and integrity of an electronic document;

(e) “appropriate authority” means —

(i) in relation to items contained in the Federal Legislative List of the

Constitution of the Islamic Republic of Pakistan, 1973, the Federal

Legislature or Federal Government;

(ii) in relation to items contained in the Concurrent Legislative List of the

Constitution of the Islamic Republic of Pakistan, 1973, for which a

Federal law is in force, the Federal Legislature or Federal Government,

and, in all other cases, respective Provincial Legislature or Provincial

Government;

(iii) in relation to the functions of the Federal Government or respective

Provincial Governments being discharged by a statutory body, that

statutory body ; and

(iv) in relation to matters in respect whereof the Supreme Court or the High

Courts are empowered to make rules for the regulation of their

proceedings, the Supreme Court or High Court, as the case may be;

(f) “authenticity” means, in relation to an electronic document or electronic

signature, the identification of and attribution to a particular person or

information system;

(g) “automated” means without active human intervention;

(h) “certificate” means a certificate issued by a Certification Service Provider for

the purpose of confirming the authenticity or integrity or both, of the

information contained therein, of an electronic document or of an electronic

signature in respect of which it is issued;

(i) “Certification Council” means the Electronic Certification Accreditation

Council established under Section 18;

(j) “certification practice statement”, means the statement prepared by a

certification service provider specifying the practices it employs in relation to

the issuance of certificates and matters connected therewith;

(k) “cryptography services” means services in relation to the transformation of

contents of an electronic document from its original form to one that cannot be

understood or decoded by any unauthorized person;

(1) “electronic” includes electrical, digital, magnetic, optical, biometric, electro-chemical,

wireless or electromagnetic technology;

(m) “electronic document” includes documents, records, information,

communications or transactions in electronic form;

(n) “electronic signature” means any letters, numbers, symbols, images,

characters or any combination thereof in electronic form, applied to,

incorporated in or associated with an electronic document, with the intention

of authenticating or approving the same, in order to establish authenticity or

integrity, or both;

(o) “information” includes text, message, data, voice, sound, database, video,

signals, software, computer programs, codes including object code and source

code;

(p) “information system” means an electronic system for creating, generating,

sending, receiving, storing, reproducing, displaying, recording or processing

information;

(q) “integrity” means, in relation to an electronic document, electronic signature

or advanced electronic signature, the electronic document, electronic signature

or advanced electronic signature that has not been tampered with, altered or

modified since a particular point in time;

(r) “intermediary” means a person acting as a service provider in relation to the

sending, receiving, storing or processing of the electronic communication or

the provision of other services in relation to it;

(s) “network service provider” means a person who owns, possesses, operates,

manages or controls a public switched network or provides telecommunication

services;

(t) “originator”, means a person by whom, or on whose behalf, electronic

document purports to have been generated or sent prior to receipt or storage, if

any, but does not include an intermediary;

(u) “person” includes an individual, appropriate authority, trust, waqf, association,

statutory body, firm, company including joint venture or consortium, or any

other entity whether registered or not;

(v) “prescribed” means prescribed by rules made under this Ordinance;

(w) “repository” means an information system for storing and retrieving

certificates or other information related thereto established under section 23;

(x) “security procedure” means a procedure which :

(i) is agreed between parties;

(ii) is implemented in the normal course by a business and which is

reasonably secure and reliable ; or

(iii) in relation to a certificate issued by a certification service provider, is

specified in its certification practice statement;

for establishing the authenticity or integrity, or both, of any electronic

document, which may require the use of algorithms or codes, identifying words and numbers, encryption, answer back or acknowledgment procedures, software, hardware or similar security devices;

(y) “subscriber” means a person who subscribes to the services of a certification

service provider;

(z) “transaction” means an act or series of acts in relation to creation or

performance of rights and obligations;

(aa) “valid accreditation certificate” means an accreditation certificate which has

not been suspended or revoked.

CHAPTER 2

RECOGNITION AND PRESUMPTION

3. Legal recognition of electronic forms.—No document, record, information,

communication or transaction shall be denied legal recognition, admissibility, effect,

validity, proof or enforceability on the ground that it is in electronic form and has not

been attested by any witness.

4. Requirement for writing.—The requirement under any law for any document,

record, information, communication or transaction to be in written form shall be deemed

satisfied where the document, record, information, communication or transaction is in

electronic form, if the same is accessible so as to be usable for subsequent reference.

5. Requirement for original form.—(1) The requirement under any law for any

document, record, information, communication or transaction to be presented or retained

in its original form shall be deemed satisfied by presenting or retaining the same if:

(a) there exists a reliable assurance as to the integrity thereof from the time when

it was first generated in its final form ; and

(b) it is required that the presentation thereof is capable of being displayed in a

legible form.

(2) For the purposes of clause (a) of sub-section (1);

(a) the criterion for assessing the integrity of the document, record, information,

communication or transaction is whether the same has remained complete and

unaltered, apart from the addition of any endorsement or any change which

arises in the normal course of communication, storage or display ; and

(b) the standard for reliability of the assurance shall be assessed having regard to

the purpose for which the document, record, information, communication or

transaction was generated and all other relevant circumstances.

6. Requirement for retention.—The requirement under any law that certain

document, record, information, communication or transaction be retained shall be

deemed satisfied by retaining it in electronic form if :

(a) the contents of the document, record, information, communication or

transaction remain accessible so as to be usable for subsequent reference;

(b) the contents and form of the document, record, information, communication or

transaction are as originally generated, sent or received, or can be

demonstrated to represent accurately the contents and form in which it was

originally generated, sent or received; and

(c) such document, record, information, communication or transaction, if any, as

enables the identification of the origin and destination of document, record,

information, communication or transaction and the date and time when it was

generated, sent or received, is retained.

7. Legal recognition of electronic signatures.—The requirement under any law

for affixation of signatures shall be deemed satisfied where electronic signatures or

advanced electronic signature are applied.

8. Proof of electronic signature.—An electronic signature may be proved in any

manner, in order to verify that the electronic document is of the person that has executed

it with the intention and for the purpose of verifying its authenticity or integrity or both.

9. Presumption relating to advanced electronic signature.—In any proceedings,

involving an advanced electronic signature, it shall be presumed unless evidence to

contrary is adduced, that:

(a) the electronic document affixed with an advanced electronic signature, as is

the subject-matter of or identified in a valid accreditation certificate is

authentic and has integrity; or

(b) the advanced electronic signature is the signature of the person to whom it

correlates, the advanced electronic signature was affixed by that person with

the intention of signing or approving the electronic document and the

electronic document has not been altered since that point in time.

10. Stamp Duty.—Notwithstanding anything contained in the Stamp Act, 1899

(II of 1899), for a period of two years from the date of commencement of this Ordinance

or till the time the Provincial Governments devise and implement appropriate measures

for payment and recovery of stamp duty through electronic means, whichever is later,

stamp duty shall not be payable in respect of any instrument executed in electronic form.

11. Attestation and notarization.—Notwithstanding anything contained in any

law for the time being in force, no electronic document shall require attestation and

notarization for a period of two years from the date of commencement of this Ordinance

or till the time the appropriate authority devise and implement measures for attestation

and notarization of electronic documents, whichever is later.

12. Certified copies.—Where any law requires or permits the production of

certified copies of any records, such requirement or permission shall extend to printouts

or other forms of display of electronic documents where, in addition to fulfillment of the

requirements as may be specified in such law relating to certification, it is verified in the

manner laid down by the appropriate authority.

CHAPTER 3

ELECTRONIC DOCUMENTS

13. Attribution of communications.—(1) Unless otherwise agreed as between an

originator and the addressee, an electronic communication shall be deemed to be that of

the originator if it was sent:

(a) by the originator himself;

(b) by a person who had the authority to act for and on behalf of the originator in

respect of that electronic communication ; or

(c) by an automated information system programmed by, or on behalf of the

originator.

(2) Unless otherwise agreed as between the originator and the addressee, the

addressee is to regard an electronic communication as being that of the originator, and is

entitled to act on that assumption if:

(a) the addressee has no reason to suspect the authenticity of the electronic

communication; or

(b) there do not exist any circumstances where the addressee knows, or ought to

have known by exercising reasonable care, that the electronic communication

was not authentic.

14. Acknowledgment of receipt.—(1) Unless otherwise agreed where the

originator has stated that the electronic communication is conditional on receipt of

acknowledgment, the electronic communication is treated as though it has never been

sent, until the acknowledgment is received.

(2) Where the originator has not agreed with the addressee that the

acknowledgment be given in a particular form or by a particular method, an

acknowledgment may be given by:

(a) any communication, automated or otherwise, by the addressee ; or

(b) any conduct of the addressee, sufficient to indicate to the originator that the

electronic communication is received.

15. Time and place of dispatch and receipt of electronic communication.—(l)

Unless otherwise agreed between the originator and the addressee, the dispatch of an

electronic communication occurs when it enters an information system outside the

control of the originator.

(2) Unless otherwise agreed between the originator and the addressee, or unless

proved otherwise, the time of receipt of an electronic communication is determined as

follows:

(a) if the addressee has designated an information system for the purpose of

receiving the electronic communication, receipt occurs:

(i) at the time when the electronic communication enters the designated

information system ; or

(ii) if the electronic communication is sent to an information system of the

addressee that is not the designated information system, at the time

when the electronic communication is retrieved by the addressee;

(b) if the addressee has not designated an information system, receipt occurs when

the electronic communication enters and information system of the addressee.

(3) Sub-section (2) applies notwithstanding that the place where the information

system is located may be different from the place where the electronic communication is

deemed to be received under subsection (4).

(4) Unless otherwise agreed between the originator and the addressee, an

electronic communication is deemed to be dispatched at the place where originator

ordinarily resides or has his place of business, and is deemed to be received at the place

where the addressee ordinarily resides or has his place of business.

(5) For the purpose of this section:

(a) if the originator or the addressee has more than one place of business, the

place of business is that which has the closest relationship to the underlying

transaction or, where there is no underlying transaction, the principal place of

business ;

(b) if the originator or the addressee does not have a place of business, reference

is to be made to the usual place of residence ; and

(c) “usual place of residence” in relation to a body corporate, means the place

where it is incorporated or otherwise legally constituted.

16. Electronic documentation of appropriate authority.¾ ¾(1) Nothing

contained hereinbefore shall confer a right upon any person that any appropriate authority

should accept, issue, create, retain, preserve any document in electronic form or effect

monetary transaction in electronic form.

(2) Any appropriate authority pursuant to any law or procedure:

(a) accepts the filing of documents, or requires that documents be created or

retained;

(b) issues any permit, certificate, licence or approval ; or

(c) provides for the method and manner of payment, procurement or transaction

may notwithstanding anything contained to the contrary in such law or procedure:

(i) accept the filing of such documents, or creation or retention of such

documents in the form of electronic documents;

(ii) issue such permits, certificate, licence or approval in the form of

electronic document ; or

(iii) make such payment, procurement or transaction in electronic form.

(3) In any case where an appropriate authority decides to perform any of the

functions in clause (1) (i), (ii) and (iii) of sub-section (2) may specify:

(a) the manner and format in which such electronic documents shall be filed,

created, retained or issued;

(b) when such electronic documents has to be signed, the type of electronic

signature, advanced electronic signature or a security procedure required;

(c) the manner and format in which such signature shall be affixed to the

electronic document, and the identity of or criteria that shall be met by any

certification service provider used by the person filing the document;

(d) control process and procedures as appropriate to ensure adequate integrity,

security and confidentiality of electronic documents, procurement,

transactions or payments; and

(e) any other required attributes for electronic documents or payments that are

currently specified for corresponding paper documents.

CHAPTER 4

CERTIFICATION SERVICE PROVIDERS

17. Certification Service Providers.¾ ¾(1) Nothing in this Ordinance shall

impede or in any way restrict the rights of any certificate service provider to engage in

the business of providing certification services without being accredited.

(2) No person shall hold himself out as an accredited certification service provider

unless he holds a valid accreditation certificate issued under section 24 by the

Certification Council.

CHAPTER 5

CERTIFICATION COUNCIL

18. Establishment of the Certification Council.—(1) Within sixty days of the

promulgation of this Ordinance, the Federal Government shall, by notification in the

official Gazette, constitute an Certification Council to be known as Electronic

Certification Accreditation Council.

(2) The Certification Council shall be a body corporate with perpetual succession

and a common seal, and shall by the said name sue or be sued.

(3) The Certification Council shall comprise of five members, with four members

from the private sector. One of the Members shall be designated as the chairman.

(4) The members of the Certification Council shall be appointed by the Federal

Government for a term of three years and shall be eligible for reappointment once for an

equal term after the expiry of their first term of appointment.

(5) No act or proceeding of the Certification Council shall be invalid by reason

only of the existence of any vacancy among its members or any defect in its constitution

discovered after such act or proceeding of the Certification Council.

(6) Except for the grant, renewal, revocation or suspension of accreditation, the

Certification Council may from time to time delegate one or more of its functions and

powers to one or more of its members.

(7) A member of the Certification Council shall not be removed except on the

grounds of misconduct.

(8) No member, once appointed, shall have any direct financial interest in any

concern or business relating to cryptography services.

(9) Decisions of the Certification Council shall be taken by a majority of the

members, however in case of tie the Chairman shall have a casting vote.

(10) Save as provided herein, the terms and conditions of service of the members

of the Certification Council shall be such as may be prescribed.

19. Qualifications of member.—Of the five members of the Certification

Council:

(a) one shall be telecommunications engineer with at least seven years work

experience, of which at least one year is in the field of cryptography services;

(b) two shall be professional or academics with at least seven years work

experience in the field of information technology;

(c) one shall have an administrative background with at least seven years

experience in a private or public organization ; and

(d) one member shall be an advocate with at least seven years experience and

adequate knowledge of laws relating to information technology and

telecommunications.

20. Funds of the Certification Council.—The funds of the Certification Council

shall comprise of:

(a) grants from the Federal Government;

(b) fee for grant and renewal of accreditation certificate; and

(c) fee, not exceeding ten Rupees, for every certificate deposited in the repository.

(d) fines.

21. Functions of the Certification Council.—(1) The Certification Council shall

perform such functions as are specified in this Ordinance or may be prescribed.

(2) Without prejudice to the generality of the foregoing subsection, the

Certification Council shall:

(a) grant and renew accreditation certificates to certification service providers,

their cryptography services and security procedures;

(b) monitor and ensure compliance by accredited certification service providers

with the terms of their accreditation and revoke or suspend accreditation in the

manner and on the grounds as may be specified in regulations;

(c) monitor compliance of accredited certification service providers with the

provisions of this Ordinance;

(d) establish and manage the repository;

(e) carry out research and studies in relation to cryptography services and to

obtain public opinion in connection therewith;

(f) recognize or accredit foreign certification service providers;

(g) encourage uniformity of standards and practices;

(h) give advice to any person in relation to any matter covered under this

Ordinance; and

(i) make recommendations to an appropriate authority in relation to the matters covered

under this Ordinance.

22. Application of Act XVII of 1996.—Notwithstanding anything contained in

the Pakistan Telecommunication (Re-organisation) Act, 1996 (XVII of 1996), the

Certification Council shall be exclusively responsible to grant, renew, suspend or revoke

the accreditation to certification service providers, their cryptography services and

security procedures:

Provided that, the foregoing provision shall not affect the applicability or

operation of the provisions of the Pakistan Telecommunication (Re-organisation) Act,

1996 (XVII of 1996) to the telecommunication systems or telecommunication services,

other than cryptography services, provided by the cryptography service providers.

23. Repository.—(1) The Certification Council shall establish and manage a

repository for all accreditation certificates, certificates issued by accredited certification

service providers and for such other information as may be specified in regulations made

by the Certification Council.

(2) The Certification Council shall take appropriate measures to ensure the

security of all information contained in the repository.

(3) All information contained in the repository shall be open to public inspection.

(4) Notice of suspension or revocation of any accreditation or of certificate issued

by an accredited certification service provider, shall be posted in the repository within the

prescribed time.

24. Grant of accreditation.—(1) The Certification Council may grant

accreditation to certification service provider, its cryptography services, electronic

signature or advanced electronic signature and security procedures who complies with the

criteria for accreditation specified in the regulations.

(2) The terms and conditions of the accreditation, including those relating to

duration of the accreditation, renewal, suspension or revocation, shall be specified in

regulations.

(3) The fee for grant and renewal of the accreditation shall be as prescribed.

(4) The form and manner of proceedings for the consideration of application for

grant, renewal, suspension or revocation of accreditation shall be specified in the

regulations.

Provided that, the regulations shall provide for a transparent procedure with due

regard to the right of hearing.

25. Certification practice statement.—(1) Each certification service provider,

desirous of being accredited, shall prepare and have at all times accessible a certification

practice statement in such form and with such details, particulars and contents as may be

specified in regulations made by the Certification Council.

(2) Without prejudice to the generality of the foregoing, the regulations may

provide for:

(a) prompt information to persons likely to be adversely affected by any event

relating to the information system of the certification service provider or

inaccuracy, invalidity or misrepresentation contained in a certificate;

(b) identification of subscribers;

(c) suspension or revocation of certificates;

(d) accuracy of information contained in a valid accreditation certificate;

(e) foreseeability of reliance on valid accreditation certificates; and

(f) deposit of certificates or notification of any suspension or revocation of any

accreditation certificate or any other fact or circumstance affecting the

certificate, in the repository.

(3) The certificate practice statement shall be submitted to Certification Council

for approval along with the application for accreditation.

(4) Any subsequent change in the approved certification practice statement shall

be initiated and processed in such manner as may be specified in regulations made by the

Certification Council, and upon approval by the Certification Council, shall be

incorporated in the certification practice statement.

(5) A copy of the certification practice statement shall be maintained at the office

of the Certification Council and shall be open to public inspection.

(6) Subject to such limitations as may be specified in the regulations made under

sub-section (1), a certification service provider shall, during the period of validity of an

accreditation certificate published for reliance by any person, be deemed to warranting to

such person that:

(a) the certification service provider has complied with the requirements of this

Ordinance, rules and regulations made under this ordinance ; and

(b) the information contained in the certificate is accurate.

(7) The Certification Council may suspend or revoke the accreditation of a

certification service provider for failure to comply with the provisions of this section:

Provided that, an order for suspension or revocation of accreditation shall be made

in the manner specified in regulations made under sub-section (1) after providing

reasonable right of hearing.

26. Decision of Certification Council.—All applications and matters coming

before the Certification Council shall be decided through a speaking order, as

expeditiously as possible but not later than ninety days except in extraordinary

circumstances and for reasons to be recorded.

27. Appointment of offices, employees and advisers.—The Certification

Council may appoint such officers, employees and advisers as it may consider necessary

for the efficient performance of its functions on such terms and conditions as it may

prescribe by regulations.

(2) The Certification Council may establish regional or local offices as may be

necessary for efficient performance of its functions.

CHAPTER 6

AMENDMENTS OF CERTAIN LAWS

28. Amendment of Act XVII of 1996.—(1) In the Pakistan Telecommunication

(Re-organisation) Act, 1996 (XVII of 1996), clause (b) of sub-section (2) of section 57

shall be omitted.

(2) Any provision in any licence issued by the Pakistan Telecommunication

Authority under the aforesaid Act prohibiting the provision or use of cryptography

services shall cease to have effect subject to provisions of this ordinance.

29. Amendment of Presidential Order No. X of 1984.—For the purposes of this

ordinance, the Qanun-e-Shahadat Order, 1984, (P.O. No. 10 of 1984) shall be read

subject to the amendments specified in the Schedule to this Ordinance.

30. Extension to electronic forms.¾ ¾ Notwithstanding anything contained in any

other law for the time being in force, the expressions “attestation”, “books”, “books of

accounts”, “certificate”, “charts”, “deed”, “document”, “document of title”, “execution”,

“instrument”, “ledger”, “map”, “original”, “plans”, “publish”, “record”, “register”, “seal”,

“signature”, “witnessing”, “words”, “writing”, or other words assuming paper or other

tangible medium in relation thereto, shall, mutatis mutandis, extend to electronic forms

thereof.

CHAPTER 7

OTHER LAWS AND JURISDICTION

31. Application to certain laws barred. ¾ ¾(1) Subject to sub-section (2), nothing

in this Ordinance shall apply to:

(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments

Act, 1881 (XXVI of 1881);

(b) a power-of-attorney under the Powers of Attorney Act, 1881 (VII of 1882);

(c) a trust as defined in the Trust Act 1882 (II of 1882), but excluding

constructive, implied and resulting trusts;

(d) a will or any form of testamentary disposition under any law for the time

being in force; and

(e) a contract for sale or conveyance of immovable property or any interest in

such property.

(2) The Federal Government after consultation with the provinces may, by

notification in the official Gazette and subject to such conditions and limitations as may

be specified therein, declare that the whole or part of this Ordinance shall apply to the

whole or part of one or more instruments specified in clauses (a) to (e) of sub-Section (1).

32. Application to acts done outside Pakistan. ¾ ¾ The provisions of this

Ordinance shall apply notwithstanding the matters being the subject hereof occurring

outside Pakistan, in so far as they are directly or indirectly connected to, or have an effect

on or bearing in relation to persons, information systems or events within the territorial

jurisdiction of Pakistan.

33. Overriding effect.¾ ¾ The provisions of this Ordinance shall apply

notwithstanding anything to the contrary contained in any other law for the time being in

force.

CHAPTER 8

OFFENCES

34. Provision of false information, etc. by the subscriber.¾ ¾(1) Any

subscriber who:

(a) provides information to a certification service provider knowing such

information to be false or not believing it to be correct to the best of his

knowledge and belief;

(b) fails to bring promptly to the knowledge of the certification service provider

any change in circumstances as a consequence whereof any information

contained in a certificate accepted by the subscriber or authroised by him for

publication or reliance by any person, ceases to be accurate or becomes

misleading, or

(c) knowingly causes or allows a certificate or his electronic signatures to be used

in any fraudulent or unlawful manner,

shall be guilty of an offence under this Ordinance.

(2) The offence under sub-section (1) shall be punishable with imprisonment

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

ten million rupees, or with both.

35. Issue of false certificate, etc.—(1) Every director, secretary and other

responsible officer, by whatever designation called, connected with the management of

the affairs of a certification service provider, which:

(a) issues, publishes or acknowledges a certificate containing false or misleading

information;

(b) fails to revoke or suspend a certificate after acquiring knowledge that any

information contained therein has become false or misleading;

(c) fails to revoke or suspend a certificate in circumstances where it ought

reasonably to have been known that any information contained in the

certificate is false or misleading;

(d) issues a certificate as accredited certification service provider while its

accreditation is suspended or revoked;

shall be guilty of any offence under this Ordinance.

(2) The offence under sub-section (l) shall be punishable with imprisonment either

description of a term not exceeding seven years, or with fine which may extend to ten

million rupees, or with both.

(3) The certification service provider or its employees specified in sub-section (1),

shall also be liable, upon conviction, to pay compensation for any foreseeable damage

suffered by any person or subscriber as a direct consequence of any of the events

specified in clauses (a) to (d) of sub-section (1).

(4) The compensation mentioned in sub-section (3) shall be recoverable as arrears

of land revenue.

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 either

description of a term not exceeding seven years, or fine which may extend to one million

rupees, or with both.

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 an 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.

38. Offences to be non-bailable, compoundable and cognizable.—All offences

under this Ordinance shall be non-bailable, compoundable and cognizable.

39. Prosecution and trial of offences.—No Court inferior to the Court of

Sessions shall try any offence under this Ordinance.

CHAPTER 9

MISCELLANEOUS

40. Limitation on liability of network service providers.—In the absence of

intent to facilitate, aid or abet, a network service provider shall not be subject to any civil

or criminal liability solely for the reason of use of his telecommunication system in

connection with a contravention of this Ordinance by a person not subject to the direction

or control of the network service provider.

Explanation.—Telecommunication system in this section shall have the meaning

given thereto under the Pakistan Telecommunication (Re-organisation) Act, 1996 (XVII

of 1996).

41. Immunity against disclosure of information relating to security

procedure.—(1) Subject to sub-section (2), no person shall be compelled to disclose any

password, key or other secret information exclusively within his private knowledge,

which enables his use of the security procedure or advanced electronic signature.

(2) Sub-section (1) shall not confer any immunity where such information is used

for the commission of any offence under any law for the time being in force.

42. Power to make rules.—The Federal Government may, by notification in the

official Gazette, make rules to carry out the Purposes of this Ordinance.

43. Power to make regulations.—(l) The Certification Council may, with the

prior approval of the Federal government, make regulations to carry out the purpose of

this Ordinance.

(2) Without prejudice to the generality of the sub-section (1), regulations may

provide for:

(a) safety, control or management of keys, passwords or other secret information

relating to use of services of accredited certification service providers;

(b) standards, procedures and practices for time and date stamping;

(c) minimum qualifications of staff of accredited certification service providers;

(d) adequacy of facilities and equipment for secure and reliable operation;

(e) privacy and protection of data of subscribers;

(f) inspection of operations;

(g) cross-certifications, accreditation, recognition, bridge certification or other

arrangements with certification service providers based in other countries;

(h) development of certification management system;

(i) reparation to subscrib ers for damage arising from negligence of certification

service provider with conditions for and limits to liability;

(j) identification of areas of commerce or governance for use of certificates;

(k) standardization and technology relating to protocols, algorithms,

interoperability of systems, applications and infrastructure for accredited

certification service providers;

(1) form and contents of applications for accreditation;

(m) suspension or revocation of certification;

(n) suspension or revocation of accreditation;

(o) certificate profiles with mandatory and optional fields and extension fields, if

any;

(p) certificate revocation and suspension list profiles with mandatory and optional

fields, and extension fields (if any);

(q) retention of records by certification authorities and the repository;

(r) recommended code of practice for handling and storage of business

information and records in elections form; and

(s) regulation of access and audit trails.

44. Prior publication of rules and regulations.—(1) All rules and regulations

proposed to be made by the Federal Government and the Certification Council under this

Ordinance shall be published in the official Gazette and in at least one English and one

Urdu daily with nationwide circulation, in draft form at least thirty days before the

intended date of coming into operation.

(2) The Certification Council shall keep record of all comments received on

the draft of the rules or regulations, and shall prepare a report thereon addressing each

comment.

(3) The notification of the rules or regulations in their final form in the official

Gazette shall be accompanied with a report of the Certification Council referred to in sub-section

(2).

45. Removal of difficulties.—The Federal Government may by notification in the

official Gazette, make provisions for removal of difficulties in a manner not inconsistent

with the provisions of this Ordinance.

SCHEDULE

(See section 29)

AMENDMENT IN QANUN-E-SHAHADAT ORDER, 1984 (P.O. No. 10 OF

1984)

1. Amendment of Article 2, P.O. No. 10 of 1984.—In the Qanun-e-Shahadat

Order, 1984 (P.O. No. 10 of 1984), hereinafter referred to as the said Order, in clause (1),

after sub-clause (d), the following new sub-clauses (e) and (f) shall be added, namely:

“(e) the expression, “automated”, “electronic”, “information”, “information

system”, “electronic document”, “electronic signature”, “advanced electronic

signature” and “security procedure”, shall bear the meanings given in the

Electronic Transactions Ordinance, 2002;

(f) the expression “certificate”, where the context so admits, includes the meaning

given to it in the Electronic Transactions Ordinance, 2002.”

2. Amendment of Article 30, P.O. No. 10 of 1984.—In the said Order, in Article

30, for the full stop at the end a colon shall be substituted and thereafter the following

explanation shall be added, namely:

“Explanation.—Statements gene rated by automated information systems may

be attributed to the person exercising power or control over the said

information system.”

3. Insertion of new Article 46, P.O. No. 10 of 1984.—In the said Order, after

Article 46, the following new Article shall be inserted, namely:¾

“46-A. Relevance of information generated, received or recorded by

automated information system.—Statements in the form of electronic

documents generated, received or recorded by an automated information

system while it is in working order, are relevant facts.

4. Amendment of Article 59, P.O. No. 10 of 1984.—In the said Order, in Article

59—

(a) after the word “impressions” the comma and the words “, or as to authenticity

and integrity of electronic documents made by or through an information

system” shall be inserted ; and

(b) for the words “are relevant facts” the words and commas “or as to the

functioning, specifications, programming and operations of information

systems, are relevant facts” shall be substituted.

5. Amendment of Article 73, P.O. No. 10 of 1984.—In the said Order, in Article

73, after the second Explanation, the following new Explanations shall be added, namely:

“Explanation 3.—A printout or other form of output of an automated

information system shall not be denied the status of primary evidence solely

for the reason that it was generated, sent, received or stored in electronic form

if the automated information system was in working order at all material times

and, for the purposes hereof, in the absence of evidence to the contrary, it shall

be presumed that the automated information system was in working order at

all material times.

“Explanation 4.—A printout or other form of reproduction of a Electronic

Document, other than a Document mentioned in Explanation 3 above, first

generated, sent, received or stored in electronic form, shall be treated as

primary evidence where a security procedure was applied thereto at the time it

was generated, sent, received or stored.”

6. Insertion of new Article, P.O No. 10 of 1984.—In the said Order, after Article

78, the following new Article shall be inserted, namely :—

“78-A. Proof of electronic signature and electronic document.—If an

electronic document is alleged to be signed or to have been generated wholly

or in part by any person through the use of an information system, and where

such allegation is denied, the application of a security procedure to the

signature or the electronic document must be proved.”

7. Amendment of Article 85, P.O No. 10 of 1984.—In the said Order, in Article

85, after clause (5), the following new clause (6) shall be added, namely:

“(6) certificates deposited in a repository pursuant to the provisions of the

Electronic Transactions Ordinance, 2002.”

GENERAL,

PERVEZ MUSHARAF,

President.