RE52

HIGH COURT OF
2022-23

MS AHMED (PETITIONER)

VERSUS

THE FEDERATION (RESPONDENT)

MEMORIAL FOR THE PETITIONER

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS...................................................................................................................

INDEX OF AUTHORITIES...................................................................................................................

STATEMENT OF JURISDICTION.........................................................................................................

STATEMENT OF FACTS........................................................................................................................

ISSUES RAISED......................................................................................................................................

SUMMARY OF ARGUMENTS..............................................................................................................

ARGUMENTS ADVANCED.................................................................................................................

FINAL SUBMISSION/PRAYER...........................................................................................................
 LIST OF ABBREVIATIONS

For the purposes of this document,

PLD stands for All Pakistan Law Decisions

SC stands for Supreme Court

SCMR stands for Supreme Court Monthly Review

CLC stands for civil law cases

IHC stands for Islamabad high court

LHC stands for Lahore high court

 INDEX OF AUTHORITY

Statutes

 Constitution of Pakistan, 1973

 Cyber crime Act
 Pakistan penal code
 CRPC

CASE LAW:

 Muhammad Bilal Khan v. Federation of Pakistan (PLD 2020 SC 416)

 Tariq Mehmood v. Federation of Pakistan (2019 CLD 1477)
 P L D 2011 Lahore 120
 2012 P L C (C.S.) Quette
 2007 PTD Supreme Court 67
 PLD 1967 Lahore 227
 PLD 1963 SC 486
 PLD 1957 SC 9
 2012 P L C (C.S.) 1211
 2002 C L C 1819
 STATEMENT OF JURISDICTION

The High court has writ Jurisdiction under Article 199 of the Constitution of Pakistan. As
the aforementioned Article explicitly states that; ‘ Challenging the vires of the
prevention of cybercrime act section 7.
 STATEMENT OF FACTS

The National Assembly of Pakistan has passed the National Cyber Crimes Act 2022 on
February 24, 2022. The Act was intended to criminalize certain online behavior, and with
the express purpose of giving the government the means of collecting data to combat
criminal activity.The relevant part of the Act is reproduced below:

1. Short title, extent, application and commencement.-

(1) This Act may be called the National Cyber Crimes Act 2022.

(2) It extends to the whole of Pakistan.

(3) It shall also apply to every citizen wherever he may be, and to every other person for
the time

being in Pakistan.

(4) It shall come into force at once.

7. Cyber offences against any personA 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.

Section 7 of the Act is provided as a cognizable offence.

On July 4, 2022, Ms. Ahmad, an avid social media blogger, and user of the popular social
media website Sparrow, has strong political views and is not afraid to voice them. 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.”
On July 7, 2022, an FIR was filed against Ms. Ahmad under Section 7 of the Cyber
Crimes Act. Taking cognizance of the FIR, law enforcement authorities apprehended Ms.
Ahmad. She was later released on bail.

On December 9, 2022, two people were also arrested under Section 7 of the Act after
they had allegedly posted a picture against a prominent police official in their district.
They were also later released on bail. In a similar incident, a group of seven college
students were also charged under Section 7 after they had doctored pictures of their
college professors. The pictures were altered to show as if the professors were consuming
illegal drugs.
 ISSUES RAISED

1. Does the High Court have the authority to declare a law unconstitutional? Ultra
vires?

2. Whether Section 7 of the Cyber Crimes Act is unconstitutional and violates

fundamental rights as guaranteed under the constitution.

3. Whether the offence as defined under the Act is too vague and ambiguous to be
applied to any person in the country.

4. Whether the offence under Section 7 of the Act meets the standard for
punishment under the principles of natural justice.
 SUMMARY OF ARGUMENTS

when we have a vast amount of laws related to defamation which has a civil jurisdiction
if someone is considered it harms his reputation then knock the civil jurisdiction whether
both parties fight the legal battle but through the legislation expressly criminalize the
criticism is against the letter of constitution and fundamental rights freedom of speech is
given by constitution to citizens when try to suppresses the voices actually abridged and
sabotages the constitution subject to article 6 being claiming a democratic country but
does not heard the criticism shows a fascism and also violation of international
obligation.in the few months such humiliation are at sky picked the people and detain
them under these laws it is a absolute violations of Human rights by virtue of dignity of
human fundamental rights given by constitution but our legislators petrified from
constitution and considered it a piece of paper. Criticism is important to mend the society
it helps to be on right side and stop you from being wronged on the other hand countries
provide a platform and invite the people to give their feedback but our government tries
to curb the critics and involved in the detention of its opponents and humiliate the critics
but controlling the voices makes a rebellion society. It is requesting that the honorable
high court null and void the section 7 and declared it unconstitutional and protect the
constitution.
 ARGUMENTS ADVANCED

1- Does the High Court have the authority to declare a law

unconstitutional? Ultra vires?

i. High court has jurisdiction to hear the writ petition under article 199

 Article 199

ii. The term 'ultra vires' literally means "beyond powers" or "lack of power". It
signifies a concept distinct from "illegality". In the loose or the widest sense,
everything that is not warranted by law is illegal but in its proper or strict
connotation "illegal" refers to that quality which makes the act itself contrary to
law.

 P L D 2011 Lahore 120

It has been ascertained by way of judgment reported as, that a law established by
federal or provincial legislature has to stand the test of constitutionality. While a law
promulgated by delegated legislature, according to the legal principle, must also stand
the additional test of not being uncertain, unreasonable, ultra vires the parent statute
or in conflict with any other law.

So high court has a power to overturn the laws which is unconstitutional

 PLD 1967 Lahore 227

It has been highly emphasized by the court in the judgment reported as PLD 1967
Lahore 227, that “in cases of conflict between the supreme law of the Constitution
and an enactment it is the duty of the superior Courts as its preservers, protectors and
defenders to declare the enactment in question as invalid to the extent of its
 repugnancy with the Constitutional provision in the absence of any bar either express
or implied.”

NOT only the Fundamental rights of Public at large but also an individual is violated
which is right to freedom of speech.

On April 8, the PECA Ordinance, section 20 originally issued in February 2022, was
deemed ’unconstitutional’ by the IHC. Chief Justice of the IHC, stated that the ordinance
breaches Article 19 of the Constitution, which ensures the right to freedom of speech, as
well as Articles 9 and 14 this case was filed under article 199.

Section 7 of the Cybercrime Act is relevant to sec 20 of PECA which has been declared
unconstitutional by Islamabad high court so on the above-mentioned ground Ms. Ahmad
has reasonable grounds to file a writ petition against Section 7 of the Cyber Crimes Act in
high court.

The petitioner has a locus standi as well because the petitioner has reasonable grounds for
writ petition. As Section 7 of the Act is provided as a cognizable offence. The Code of
Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C.” or the “Code”), which
mandates that FIR should be registered in respect of cognizable offence right away
without any inquiry or investigation. The petitioner was arrested immediately without
investigation. Her fundamental right of fair trial was infringed. When a law already
exists, there was no need to add the same particular law under the cybercrime act.

10A. Right to fair trial:

  For the determination of his civil rights and obligations or in any criminal charge
against him a person shall be entitled to a fair trial and due process.

Article 14 (1)

of the constitution states the dignity of man and, subject to law, the privacy of home,
shall be inviolable. As arresting Ms. Ahmed has infringed her dignity
Article 18: Freedom of trade, business or profession.

“Subject to such qualifications, if any, as may be prescribed by law, every citizen shall
have the right to enter upon any lawful profession or occupation, and to conduct any
lawful trade or business”1

Article 18

of the constitution states; Subject to such qualifications, if any, as may be prescribed by

law, every citizen shall have the right to enter upon any lawful profession or occupation,
and to conduct any lawful trade or business.

So, MS Ahmad has the right to enjoy her profession because her job is to spread
awareness to public at large. It was a part of her job being a personality having strong
political views because not every common man can do this job. It’s her profession to
create political awareness among people and it’s just like a doctor, engineer, lawyer or a
teacher are performing their respective jobs.

2-Whether Section 7 of the Cyber Crimes Act is unconstitutional and

violates fundamental rights as guaranteed under the constitution.

Constitution is the supreme law of a country. All other statutes derive power from the
constitution and are deemed subordinate to it. If any legislation over-stretches itself
beyond the powers conferred upon it by the constitution, or contravenes any
constitutional provision, then such laws are considered unconstitutional or ultra vires the
constitution. When the Parliament makes a law, it does so in the exercise of its delegated
legislative powers given by the constitution. In each case, there is a law higher in
authority and the test to determine the vires is whether the subordinate law conflicts with
the higher law. If it does, then it must be held as of no legal effect and validity, to be
valid a law or amendment must be intra vires, reasonable in itself, certain in its terms and
must not be repugnant to the General Law or Constitution. It is settled principle of
interpretation that if subordinate legislation is directly repugnant to the General purpose
1
of the Act, which authorize it, or indeed is repugnant to any settled and well-established
principle of statute, it is ultra vires.

 P L D 2011 Lahore 120

It has been established by the court in the judgment reported as, that a law
promulgated through federal or provincial assembly has to stand the test of
constitutionality

On April 8, the PECA Ordinance, originally issued in February 2022, was deemed
’unconstitutional’ by the IHC. Chief Justice of the IHC, stated that the ordinance
breaches Article 19 of the Constitution, which ensures the right to freedom of speech,
as well as Articles 9 and 14. order stated that free speech, protected under Article 19
of the Constitution, and the right to receive information, protected under Article 19-A
of the Constitution, are essential for a society's development, progress, and prosperity,
and that their suppression under the PECA ordinance was unconstitutional and
contrary to democratic values. The court observed that “the criminalization of
defamation, protection of individual reputations through arrest and imprisonment and
the resultant chilling effect violates the letter of the Constitution and the invalidity
thereof is beyond reasonable doubt. The Prevention of Electronic Crimes
(Amendment) Ordinance, 2022 was promulgated in derogation of the Constitution
and the fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19 and
19-A. The jurisdictional preconditions were also not in existence”.

 PLD 2006 SC 697

Any law repugnant to any constitutional provision is liable to be struck down; “it is an
accepted principle of the Constitutional jurisprudence that a constitution being a basic
document is always treated to be higher than other statutes and whenever a document in
the shape of law given by the Parliament or other competent authority is in conflict with
the Constitution or is inconsistent then to that extent the same is liable to be declared
unconstitutional. This is not for the first time that a law like Ordinance, 2000 has come
for examination before the Court as in the past a number of laws were examined and
when found against the Constitution the same were declared void and of no legal effect.”
“The criminalization of defamation, protection of individual reputations through arrest
and imprisonment and the resultant chilling effect violates the letter of the Constitution
and the invalidity thereof is beyond reasonable doubt. The Prevention of cyber-Crimes
(Amendment) Act, 2022 was promulgated in derogation of the Constitution and the
fundamental rights guaranteed thereunder, particularly Articles 9, 14, 19.

However, the government’s move was aimed at silencing the dissent on social media and
controlling the media. the judiciary proved that no one can make the media and the
people blind, deaf and dumb,”. there is dire need to increase efforts to ensure that all
Pakistani journalists and media workers enjoy unfettered independence. Long-term
democracy and the rule of law require a free, independent, and responsible media.
“Pakistan has ratified the International Covenant on Civil and Political Rights (ICCPR),
which protects the right to freedom of expression. Article 19 of the ICCPR allows for
restrictions on freedom of expression to protect the reputations of others, but such
restrictions must be necessary and narrowly drawn. Amnesty International and Human
Rights Watch oppose all criminal defamation laws as a disproportionate and unnecessary
response to the need to protect reputations that chills freedom of expression. Expanding
PECA’s already overbroad criminal defamation provisions to online statements about
government institutions violates Pakistan's international obligations.

Article 14 (1) of the constitution states the dignity of man and, subject to law, the privacy
of home, shall be inviolable. As arresting Ms. Ahmed has infringed her dignity

Article 18 of the constitution states; Subject to such qualifications, if any, as may be

prescribed by law, every citizen shall have the right to enter upon any lawful profession
or occupation, and to conduct any lawful trade or business. So, MS Ahmad has the right
to enjoy her profession because her job is to spread awareness to public at large. It was a
part of her job being a personality having strong political views because not every
common man can do this job. It’s her profession to create political awareness among
people and it’s just like a doctor, engineer, lawyer or a teacher are performing their
respective jobs.
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. “The said statement of MS Ahmed does not contain
anything which has something related to the private life and character of the plaintiff. It is
regarding his public conduct because the gif that the plaintiff considers defamatory is the
picture from his recent press conference on his opposition to the recent proposed land
reforms. The defendant specifically said “Such people should have no place in our
political arena. It’s about time we do away with them.” As per the above-mentioned
exceptions of the Section 499 of PPC, the defendant has done in good faith and for the
public interest by just pointing out the public conduct of a public servant in the discharge
of his public functions. This statement “Such people should have no place in our political
arena. It’s about time we do away with them.” Shows that she’s just expressing her
perspective of the changing of the political leader. Being a citizen of Pakistan, the
defendant has the interest in the recent land reforms she also has a right to criticize as
politicians are open to criticism.

Section 500 of ppc Punishment for defamation: Whoever defames another shall be
punished with simple imprisonment for a term which may extend to two years, or with
fine, or with both. As per this section it is proved that there is already a law for
defamation which is generally applicable through the whole Pakistan then why they have
made a special section i-e 7 in cybercrime Act which is restricting the powers of
journalists and social media persons.

IHC Chief Justice Athar Minallah declared that the offence under section 20 of the Peca
2016 to the extent of the expression “or harms the reputation” and the punishment thereof
was unconstitutional, invalid beyond a reasonable doubt.

IMRAN KHAN CASE

3. Whether the offence as defined under the Act is too vague and
ambiguous to be applied to any person in the country.

the offence as defined under the Act is too vague to be applied to any person in the
country, as the same offence is being punished under the defamation ordinance 2002 with
due process of law and is non-cognizable but under the cyber-crime act it is cognizable.

Pakistan already has defamation laws under PPC such laws are used to silence protesting
voices and go against international laws, conventions and treaties signed by Pakistan.
Most importantly against fundamental laws.

In Pakistan, the first ever study conducted by Shaheen (2008) investigated the political
activism through using social networks among students during political crises and
emergency imposed by the Government of Pakistan in 2007. The findings concluded that
social media was used by the students to promote democracy, freedom of expression and
greater awareness about their rights during the political crises in Pakistan. Later, the
researchers investigated the use of social media for political practices by political
personalities. For example, Zafar et al. (2013) measured Facebook “likes” and “talking
about this” options among Facebook users to find opinion about political figures. The
findings shows that PTI got top rank among other political parties on Facebook. Another
study by Eijaz (2013) indicated Facebook as a most popular SNS among youth in order to
spread political information in comparison with other tools i.e., Twitter, my space, blogs,
and email etc. The youth found to be mobilizing social media for the issues of load-
shedding, socio-economic factors, etc. Article 19: Freedom of speech, etc. Article 19 of
the Constitution talks about the freedom of speech, freedom of expression and freedom of
the press. By enjoying her fundamental right Ms. Ahmad has done nothing wrong. This
section not give exception to any one it makes the journalism also a crime. Everyone
comes under this a may be arrested if they criticized someone specially a powerful one.
4. Whether the offence under Section 7 of the Act meets the standard
for punishment under the principles of natural justice.

Reasonableness, Fair trail, protection from double jeopardy

This law is unreasonable because when civil jurisdiction can be used then criminalized it
is only a humiliation when we have a vast amount of laws related to defamation which
has a civil jurisdiction if someone is considered it harms his reputation then knock the
civil jurisdiction whether both parties fight the legal battle but through the legislation
expressly criminalize the criticism is against the letter of constitution and fundamental
rights freedom of speech is given by constitution to citizens when try to suppresses the
voices actually abridged and sabotages the constitution subject to article 6 being claiming
a democratic country but does not heard the criticism shows a fascism and also violation
of international obligation.in the few months such humiliation are at sky picked the
people and detain them under these laws it is a absolute violations of Human rights by
virtue of dignity of human fundamental rights given by constitution but our legislators
petrified from constitution and considered it a piece of paper. Criticism is important to
mend the society it helps to be on right side and stop you from being wronged on the
other hand countries provide a platform and invite the people to give their feedback but
our government tries to curb the critics and involved in the detention of its opponents and
humiliate the critics but controlling the voices makes a rebellion society.

 P L D 2007 Karachi 116,

Statutory rules are derived from their respective statutes. Therefore, the rules are
considered subordinate to their parent statutes. Any such rules, if found to be
unreasonable, can be declared ultra vires. In the judgment of the case, the court held that
the impugned condition was unreasonable inasmuch as it was neither fair nor meant to
achieve any useful purpose.
  2012 P L C (C.S.) 1211,

In another case, the court ruled that the impugned condition was liable to be struck down
because it was not only unreasonable but also uncertain repugnant to the enactment and
in violation of the object and reasons of the enactment.

Fair trial

As Section 7 of the Act is provided as a cognizable offence. The Code of Criminal

Procedure, 1898 (hereinafter referred to as “Cr.P.C.” or the “Code”), which mandates that
FIR should be registered in respect of cognizable offence right away without any inquiry
or investigation. The petitioner was arrested immediately without investigation. Her
fundamental right of fair trial was infringed.

protection from double jeopardy

we have already a defamation laws and PPC laws then Another laws the person will be
subject to accused for the same crime but under different jurisdiction which is a against
the principle of natural justice.

Section 8

SECTION 499

SECTION 500
 FINAL SUBMISSION OR PRAYER:

Wherefore in light of the issues raised, arguments advanced and authorities cited, the Petitioner
most humbly and respectfully asks that this Honorable Court should declare that:-

1. Section 7 of cybercrime Act is unconstitutional

2. Declared it against the natural justice
3. Stop the government from making a legislation which is against the fundamental
rights