Mst. UZMA MUKHTAR vs State Ss — 2024 SCMR 1520 SUPREME-COURT

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Mst. UZMA MUKHTAR VS State Ss. 20, 21, 24 & 54---electronic Transactions Ordinance (LI of2002), Ss. 36 & 37---Penal Code (XLV of 1860), Ss. 500, 506 & 509---Constitution of Pakistan, Art. 12---Harassing, threatening and blackmailing a female by sending her personal pictures on her cell phone through social media---Non-applicability of prevention ofelectronic Crimes Act, 2016, and the electronic Transactions Ordinance, 2002---After trial proceedings commenced before the Judge, prevention of electronic Crimes Court (PECC), the Judge concluded that sections 36 and 37 of electronic Transactions Ordinance, 2002 ("ETO 2002") were not attracted to the facts ofthe instant case; the proceedings could not be continued under section 54 of prevention of electronic Crimes Act, 2016 ('PECA 2016') as the provisions of PECA 2016 were also not attracted for the reason that at the time of commission of alleged offences i.e. one year prior to the petitioner's (complainant's) application dated 03.08.2016 submitted by the petitioner to FIA for registration ofFIR, PECA 2016 was not in field as it came into force on 18.08.2016---In view of the above conclusions, after deletion ofsections 36 and 37 of ETO 2002, Judge PECC ordered to place the case file before Sessions Judge for its further entrustment to the court of competent jurisdiction---High Court maintained the order of the Judge PECC---Validity---Assent of the President ofPakistan 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---Offences mentioned by the petitioner in her application dated 03.08.2016 were allegedly committed by respondent (accused) much prior to promulgation ofPECA 2016---While providing protection against retrospective punishment, Article 12 of the Constitution 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---Therefore, both the Courts below had not committed any illegality in rejecting the application of the petitioner for altering the charge/reading over the charge to respondent under sections 20, 21 and 24 of PECA 2016---Furthermore, allegations levelled by the petitioner against respondent in her application and the incriminating material collected during investigation did not attract sections 36 and 37 of ETO 2002 as respondent had neither attempted nor gained access to any information system with or without intent to acquire the information contained therein; he had 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 had neither attempted nor done any act to impair the operation of any information system; he had neither attempted nor done any act to prevent or hinder access to any information contained in any information system---Thus, both the Courts below had not committed any illegality in concluding that sections 36 and 37 ofETO 2002 were not attracted to the facts and circumstances of the instant case---Petition was dismissed and leave to appeal was refused.

Mst. UZMA MUKHTAR vs State Ss — 2024 SCMR 1520 SUPREME-COURT

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