AKN86

SUPREME COURT OF PAKISTAN

2022-23

MS AHMED (PETITIONER)

VERSUS

THE FEDERATION OF PAKISTAN (RESPONDENT)

MEMORIAL FOR THE RESPONDENT

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS...................................................................................................................3

INDEX OF AUTHORITIES...................................................................................................................4

STATEMENT OF JURISDICTION.........................................................................................................5

STATEMENT OF FACTS........................................................................................................................6

ISSUES RAISED......................................................................................................................................8

SUMMARY OF ARGUMENTS..............................................................................................................9

ARGUMENTS ADVANCED.................................................................................................................10

FINAL SUBMISSION/PRAYER...........................................................................................................21

2
 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

3
 INDEX OF AUTHORITY

Statutes

 Constitution of Pakistan, 1973

 Cyber Crime Act
 Pakistan penal code
 CRPC

CASE LAW:

 Muhammad Umar vs. The State (2017)

 Shoaib Ahmed Shaikh v. Federation of Pakistan (PLD 2017 SC 225)


4
 STATEMENT OF JURISDICTION

The High Court has the jurisdiction under

5
 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 person; 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.

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.

6
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.

7
 ISSUES RAISED

1. Does the Supreme Court have the authority to declare a law unconstitutional?

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.

8
 SUMMARY OF ARGUMENTS

The dignity of a man as subject to law shall be inviolable. By publishing the gif of the leader of a
political party distorting his face with Adolf Hitler has badly affected his profession and his
political stability as his reputation has been destroyed. Freedom of speech, expression and press
has been given by Article 19 of the Constitution of Pakistan 1973 but this freedom is not
absolute there are certain limitations as a famous phrase says, “The right to swing my fits ends
where the other man’s nose begins”. People should be free to act as they wish as long as their
actions do not cause harm to others. Ms. Ahmed has exceeded her freedom as distorting a face of
natural person is punishable under section 7 of the Cyber Crime Act. And distorting a face to
resemble Adolf Hitler shows brutality, a devastating inhumanity and genocide. This is not a
matter of freedom of expression but it’s quite reasonable to be in knowledge of Ms. Ahmed that
the gif was defamatory in nature. To humiliate someone under the veil of freedom of speech
shall not be allowed. We already have laws in PPC but now we have new modes of
communication, to highlight them with name is important for clarity. It’s important to remove all
loopholes and not to pave the way for accused to use the lacunas of laws for escape. To
criminalize the humiliation is important because sanctions create fear of being punished, and it
reduces the crime ratio. In the 21st century the mode of degrading the people has changed.
Through social media they insult people by using different photo-shopped pictures. This is a
modern form of suppressing the opponents by starting a filthy, muddy and ridiculous attacks.
When people without fear cross the limits, it makes a polarized society where no one bears
anyone. There is a difference between giving opinion and in deliberately disrespecting and
defaming someone.

9
 ARGUMENTS ADVANCED

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

unconstitutional?

 Muhammad Umar vs. The State (2017)

In this case, the Lahore High Court upheld the constitutionality of PECA and Section 7. The
court held that the provisions were necessary to protect national security and prevent cybercrime,
and that they did not violate the fundamental rights of freedom of expression or due process.

 PLD 2017 SC 225

In this case, the Supreme Court of Pakistan upheld the constitutional validity of the Cyber
Crimes Act and rejected the petitioner's argument that the law violated the right to free speech.
The court held that the law was necessary to curb cyber-crimes, which had become a serious
threat to the country's security.

10
 2-Whether Section 7 of the Cyber Crimes Act is unconstitutional
and violates fundamental rights as guaranteed under the
constitution?

No, section 7 is not unconstitutional. It does not violate fundamental rights guaranteed under the
constitution. It specifically protects the reputation of a natural person and punishes the one who
distorts the face of a natural person. Ms. Ahmad exceeded her freedom of expression by
distorting the face of the leader of NDAP with Adolf Hitler which is Holocaust distortion.
Holocaust is the most horrifying example of the destruction and death to which unchecked hatred
can lead. An example of Holocaust distortion is the use of Holocaust imagery or language for
political or ideological purposes. By this distortion the viewers may think that the leader of
NDAP is cruel and brutal just like the Adolf Hitler. She has used her platform to spread enmity
and hatred among public at large. Modern day Holocaust distortion and denial have been
exacerbated, and amplified, through the use of digital tools and the ease with which
misinformation and disinformation can be spread on social media platforms. She has infringed
the dignity and respect of the plaintiff. Freedom of expression does not mean you can express
anything publicly. This freedom is not absolute there are certain limitations. As a famous phrase
says “The right to swing my fits ends where the other man’s nose begins”. People should be free
to act as they wish as long as their actions do not cause harm to others.

Section 7 expressly says

Cyber offences against any person; 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.

11
The word malicious intent is used. It’s prima facie that Ms. Ahmad could not distort a person’s
face with the Hitler in good faith. She definitely has malicious intent to destroy the reputation of
the plaintiff. This Act of Ms. Ahmed falls under section 7 which is a cognizable offence. And
when it is a cognizable offence, a person is arrested without any inquiry or investigation.

The Code of Criminal Procedure, 1898 mandates that FIR should be registered in respect of
cognizable offence right away without any inquiry or investigation.

So, none of her fundamental right has been violated and Section 7 of the Cyber Crime Act is in
Conformity with the constitution.

The Protection of Honour

In the address delivered on the occasion of the Farewell Hajj, the Prophet said that any
encroachment upon their (citizens) honour, respect and chastity were forbidden to one another.
The Holy Quran clearly lays down:

(a) "You who believe, do not let one (set of) people make fun of another set.

(b) Do not defame one another.

(c) Do not insult by using nicknames.

(d) And do not backbite or speak ill of one another" (49:11-12)

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

Section 7 of the Cyber Crime Act protects the reputation of a person. As Article 14 of the
constitution of Pakistan 1973 protects the fundamental right of dignity of man and says “the
dignity of a man shall be inviolable”. No one has a right to infringe the dignity of the other. Ms.
Ahmed has violated the right to dignity of the plaintiff by distorting his face. Section 7, Clause
(c) has mentioned expressly that whoever distorts the face of a natural person intending to cause

12
injury to the 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.

The offence, the conditions and the punishments are clearly mentioned so there’s no ambiguity
and vagueness in this particular part of the Act.

501 of PPC
Printing or engraving matter known to be defamatory: Whoever prints or engraves any matter,
knowing or having good reason to relieve that such matter is defamatory of any person, shall be
punished with simple imprisonment for a term which may extend to two years, or with fine, or
with both.

4. Whether the offence under Section 7 of the Act meets the

standard for punishment under the principles of natural justice?

Rules of natural justice are not codified cannons. They are principles ingrained in the conscience
of man. Justice is based substantially on natural ideas and values which are universal. What
particular form of natural justice should be implied and what its extent should be in a given case
must depend to a great extent on the facts and circumstances of that case and the framework of
the statute under which an action is taken. There are certain exceptions to the principles of
natural justice;

Where no right of person is infringed:

In some case it has been suggested that a claimant who is for some reason undeserving for
certain claims (due to absence of right to claim) may forfeit the right to procedural fairness.
Where no right has been conferred on person by any statute nor any such right arises from
common law the principles of natural justice are not applicable, this based on the principal Ebi
Jus ebi remedium and Injuria sine domino the earlier stands for ‘where there is right there is
remedy’ and later stands for ‘there shall be legal right or interest to claim some interest or
benefit’.

13
 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 the Cyber Crime Act is not unconstitutional
2. No fundamental right of the petitioner has been infringed
3. Freedom of expression is not absolute

14