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Assignment

(Memorial on behalf of Prosecution)

Course: Moots and

professional ethics
Submitted to: Ms. Hina Qayyum
Submitted by:
Mahnoor Paracha

Date of Submission: November 23, 2020

Department of Law

Fatima Jinnah Women University, Rawalpindi

Before

MEMORANDUM ON BEHALF OF THE DEFENDANT

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HIGH COURT OF PAKISTAN

Ms. Ahmed

-----Appellant

Versus

The State of Pakistan

-------Respondent

MEMORIAL ON BEHALF OF PROSECUTION

TABLE OF CONTENTS

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List of Abbreviations 04

Index of Authorities 04

Statement of Jurisdiction 05

Statement of Facts 06

Statement of Issues 07

Summary of Arguments 08

Argument Advanced 10

Prayer 16

LIST OF ABBREVIATIONS

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PECA Prevention of Electronic Crimes Act.

Sec. Section.

SC Supreme Court

p. Page No.

v. Versus.
FIR First Information Report.

(NDAP). National Democratic Alliance Party

STATEMENT OF JURISDICTION

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Ms. Ahmed filed a writ petition before the high court in which the provision of National Cyber

Crime Act, 2014 has been challenged and said to be against the fundamental rights mentioned in

constitution of Pakistan. Federal Investigation Authority had a jurisdiction to entertain the

criminal complains related to cybercrimes and in case of Appeal rest with the High Court.

Therefore, the Respondent, the state of Pakistan, humbly submits the written reply against the

petitioner, before Honorable High Court.

I. STATEMENT OF FACTS

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1. That a murder took place in the Lora lai district of Balochistan by a person named

as Dosso.

2. That he was arrested and was handed over to the Council Of Elders (Loya Jirga).

3. That the Tribal authorities charged him under FCR, 1901.

4. That the relatives of Dosso upon this filed a writ petition in Lahore High court against the

decision of Loya jirga.

II. .QUESTIONS PRESENTED

The respondent respectfully requests this Hon’ble Court to adjudge:

1. Whether the writ petition filed by Dosso’s relatives in Lahore High court against the

decision of Loya jirga on the grounds that the law of FCR was in contradiction with

Article 5 and 7 of the Constitution of Pakistan, 1956, was valid?

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SUMMARY OF ARGUMENTS

Arguments No. 01

Whether the standard of punishment for cyber-crime described under section 7 is against

the concept of natural justice?

No the punishment of section 7 is not against the concept of natural justice. It only applies to

those who violate the law and disturb the reputation of other individuals. Natural justice system

says that every person should be punished according to their crime so if any one defame any

person he should be punished according to law. Because making a reputation in society is such a

difficult task and no one has right to defame anybody in any sense.

Arguments No. 02

Whether the section 7 of the Cyber Crime Act is contradiction to article 19 of the

constitution of Pakistan?

Section 7 of cybercrime Act and Article 19 of constitution are not the contradiction because

article 19 gives the freedom of speech as well as freedom of expression but also explain some

restrictions to follow this law. Anything which is against the dignity of a person should not be

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acceptable. There should be clearly written that freedom of speech is subject to reasonable

restrictions imposed by law. If the law related to cybercrime which is Cyber Crime Act, 2014

imposed a restriction in section 7 is not considered contradict with Article 19 of constitution.

Argument No. 03

Whether the Act is vague to be apply to any person?

This is not too vague to apply to any person who is innocent. If there is any breach, then this law

is applying otherwise is not apply to all individuals.

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ARGUMENTS ADVANCED

Arguments No. 01

Whether the standard of punishment for cyber-crime described under section 7 is against

the concept of natural justice?

No the punishment of section 7 is not against the concept of natural justice. It only applies to

those who violate the law and disturb the reputation of other individuals.The expressions “natural

justice,” “procedural fairness” and “administrative fairness” are sometimes used interchangeably,

however, natural justice is the historical foundational concept that has been expanded to include

the more modern principles of procedural fairness and administrative fairness. Essentially,

natural justice requires that a person receive a fair and unbiased hearing before a decision is

made that will negatively affect them.

The three main requirements of natural justice that must be met in every case are: adequate

notice, fair hearing and no bias. Sometimes, all three of these concepts are grouped together as

“the right to a fair hearing.”

 The notice requirement means that the people affected by the decision must be told about

the important issues and be given enough information to be able to participate

meaningfully in the decision-making process.

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 The fair hearing requirement means that the people affected are given a reasonable

opportunity to present their point of view and to respond to facts presented by others, and

that the decision-maker will genuinely consider what each person has told them when

making the decision.

 The no bias requirement means that the person making the decision must act impartially

when considering the matter, and must not have any relationships with anyone that could

lead someone to reasonably doubt their impartiality.1

So section 7 of Cyber Crime Act is not against the natural justice system because Ms. Ahmed

defame the leader of political party and liable to punishment. There are many laws which deals

that deformation is such a big crime whose liability shell not be in monetary form.

Conclusion

Challenge this law by Ms. Ahmed not legal because there is no contradiction between them and

law is made by passing many stages. Many legislators make it and review it number of times so

no individual challenge it on such a little issue. She commits a crime and want to save herself

from punishment.

Arguments No. 02

Whether the section 7 of the Cyber Crime Act is contradiction to article 19 of the

constitution of Pakistan?

7. Cyber offences against any person-

1
Faiq khan, natural justice system, 2016.

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A person commits an offence when that person, with malicious intent, knowingly and publicly

Exhibits, displays, transmits any electronic communication that:

a) harms the reputation of a natural person;

b) Threatens any sexual acts against a natural person; or,

c) distorts the face of a natural person;

without the express or implied consent of the person in question, intending that such electronic

communication cause that person injury or threatens injury to his or her reputation, shall be

punished with imprisonment for a term which may extend to two years or with a fine which may

extend to one million rupees, or with both.2

Article 19 of constitution of Pakistan

Under the Article 19 of the Constitution of Pakistan, 1973, every citizen shall have the right to

freedom of speech, freedom of expression and freedom of the Press, subject to any ‘reasonable

restriction’, imposed by law in the interest of the glory of Islam or the integrity, security or

defense of Pakistan or any part.3

Section 7 of cybercrime Act and Article 19 of constitution of Pakistan are not the contradict to

each other. Article 19 of constitution deals with freedom of speech and expression but there are

some restrictions as explained at the end of Article 19. As constitution give a right to freedom of

speech but this right should not be used against the dignity of any person. All laws are made for

the welfare of peoples not to hurt anyone. An individual must follow all the prohibition and

restrictions that are given in any special or other laws. Under section 7 of Cybercrime Act no one
2
N.a, national Cyber Crime Act, 2014.
3
M. Rafiq Butt, Constitution of pakistan, 1973(Mansoor book house,2015)

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can perform any act which harm the reputation of others or not distort the face of natural person

but Ms. Ahmad posted a picture of a political figure from the National Democratic Alliance

Party (NDAP). The picture posted depicted the leader of the NDAP during his recent press

conference on his opposition to recently proposed land reforms. The gif had the face of the

leader distorted to resemble Adolf Hitler, with a comment posted by Ms. Ahmad that read:

“Such people should have no place in our political arena. It’s about time we do away with

them.”

This is against to section 7 and she has no right to pass such comments and make such cartoons.

This is against the law and she is liable for punishment.

Section 7 and article 19 are not unconstitutional because there is also written in Article 19 that

there should be some restriction on freedom of speech.

Case law

PLD 1975 Lah. 1198

Freedom implies, freedom to say and publish what every citizen wants as long as rights of others

or not trampled upon. Refusal of permission to bring out a newspaper is not justified.4

Conclusion

The freedom of speech and expression has been protected as a fundamental right by Article 19 of

the Constitution of the Islamic Republic of Pakistan,1973. It is thus a right that every individual

in Pakistan can enjoy subject to certain limitations and it is the individual duty to ensure that it is

not unreasonably curtailed.

4
M. Rafiq Butt, Constitution of pakistan, 1973(Mansoor book house,2015) page no. 89.

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Argument No. 03

Whether the Act is vague to be apply to any person?

The cyber-Crime Act is not vague to apply to all persons. It is only applying to those who violate

the conditions given in section 7 ofcybercrime Act that are not

a) harms the reputation of a natural person;

b) threatens any sexual acts against a natural person; or,

c) distorts the face of a natural person;

without the express or implied consent of the person in question, intending that such electronic

communication cause that person injury or threatens injury to his or her reputation, shall be

punished with imprisonment for a term which may extend to two years or with a fine which may

extend to one million rupees, or with both.

Ms. Ahmed is a social blogger and make a cartoon of leader of the NDAP and resemble it with

Adolf Hitler, with a comment posted that is:

“Such people should have no place in our political arena. It’s about time we do away with

them.”

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This badly effect the reputation of leader of party and is against the dignity of person so law must

be applying to Ms. Ahmed and she must be punished.

As she is blogger on social media and has strong political views and is not afraid to voice them

but she only has to power to speak social and political issues not to effect the reputation of others

by making cartoons etc. this is the violation of law and also infringe the basic rights as well.

Leader of that party has some political value and reputation in society so no one has a right to

infringe them. Ms. Ahmed make herself exceptional person that she is social media blogger and

has right to say anything about any politician but she will not be allowed to do such acts which

harms the reputation of any person. It is against the ethics and immoral. As the act fully and

clearly drafted the provisions to be applied to particular person who does this criminal act by

doing anything which harms the reputation of any person.5

Conclusion

Act is not vague in invoking the implementation of law against any person rather a words any

person refers to such person who does commit the crime under section 7 of Cyber Crime

Act,2014. This is against the law of ethics and morality to defame any person and effect their

reputation is illegal

5
Mehboob Usman, cyber crime- Pakistani perspective, 2013.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon‘ble Court be pleased to pass an order in favor of the prosecution AND/OR Pass any other
order it may deem fit, in the interest of Justice, Equity and Good Conscience.

Date: May 29, 2013 PUBLIC PROSECUTOR

MEMORANDUM ON BEHALF OF THE DEFENDANT