Rape Laws in Pakistan

Q. What is rape under the laws of Pakistan?

A. Rape is defined in Section 375 of the Pakistan Penal Code, 1860 (the “PPC”) as follows:

Rape. A man is said to commit “rape” who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

(i) against her will,

(ii) without her consent,

(iii) with her consent, when her consent has been obtained by putting her in fear of death, or of hurt,

(iv) with her consent, when the man knows that he is not married to her and that her consent is given because she believes that the man is another person to whom she is or believes herself to be lawfully married; or

(v) with or without her consent when she is under sixteen (16) years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Q. What is the penalty for rape?

A. The maximum penalty for rape is death and/or imprisonment for twenty five (25) years and/or fine.

Q. Is marital rape provided for under the laws of Pakistan?

A. Although marital rape is not expressly criminalised in the PPC or other laws in Pakistan, the legal position of the law remains debatable. The previous law on rape, the repealed Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the “Zina Ordinance”), provided in Section 6(1), the definition of “zina bil jabr” as “a person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be, to whom he or she is not validly married, in any of the following circumstances, namely…” (emphasis added)

The Protection of Women (Criminal Laws Amendment) Act, 2006 omitted this Section and moved the offence of rape under the PPC. The definition of rape under Section 375 of the PPC, supra, did not include the words “to whom he or she is not validly married”. In light of this amendment, it is argued that the legislature intended that “validly married” should be removed as a defence for rape. There are, however, no reported judgements of the superior courts that clarify the position of the law.

Q. What is the procedure of reporting rape cases?

A. The victim is required to report the case to the police station and issue a statement. Firstly, the police reviews the contents of the statement of the victim to evaluate whether a cognizable offence has been committed. A magistrate oversees the workings of the police stations within the jurisdiction. However, a police office may investigate the offence if he sees sufficient grounds. If a court takes cognizance of an offence, it may initiate judicial proceedings against the accused with respect to the offence. The court considers, inter alia, as follows:

(i) whether the offence falling within its jurisdiction is made out or not;

(ii) whether the offence is committed in its territorial jurisdiction;

(iii) who are the persons responsible for the commission of the offence; and

(iv) whether in the Court’s opinion sufficient grounds exist for the commission of the offence.

The Criminal Procedure Code, 1989 (the “CPC”) does not award any discretion to the police to delay or refuse the lodging of an FIR by a complainant (see, Shehnaz vs. the State, 2010 PCrLJ 231 Federal Shariah Court).

Q. Is character or sexual history of the victim important to the decision in rape cases?

A. Case law provides that usually a statement by the victim if corroborated by medical evidence is sufficient to prove the allegation of rape punishable under Section 376, however, if the victims own character appears to be “doubtful” then her solitary statement cannot be deemed sufficient to prove the allegation (see, generally, Ghulam Mohay-ud-din vs. The State, 2012 PCrLJ 1903, Section 151 (4) and 21 (j) of the Law of Evidence).

A purview of the case law suggests that it is essential that the statement of the victim be trustworthy.

In Shakeel vs.The State, PLD 2010 Supreme Court 47, it was held that when various questions could not extract anything beneficial to the accused, then there was no reason to disbelieve the prosecutrix and conviction could be awarded on her solitary statement, where it was considered trustworthy. In such an event no corroboration would be needed. Even if it was admitted that prosecutrix was a girl of “easy virtue” no blanket authority could be given to rape her.

Moreover, if a girl who has otherwise attained puberty and is under sixteen (16) years of age admits to having entered into a marriage in explicit terms, then it is a valid marriage and intercourse is not unlawful (see, generally, Allah Nawaz vs. Station House Office, Police Station, Muzaffargarh, PLD 2013 Lahore 243).

Q. What are the components of proving a case of rape and who has the burden of proof?

Proof of rape is dependant on the independent facts of every case and, inter alia, includes the following:

(1) Medical evidence and examination (see, Abdul Waheed vs. Dai, 2012 YLR 2701 (Karachi));

(2) Timing of the first information report (the “FIR”) with the Police (see, Abdul Waheed vs. Dai, (supra));

(3) Eye-witness account and the trustworthiness thereto (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court);

(4) Statement of the complainant (see, Mazhar vs. The State, 2012 YLR 652 (Federal Shariah Court), and Zakirullah vs. Safia Bibi, 2014 PCrLJ 1542 (Federal Shariah Court)).

Burden of proof is on the complainant/prosecution to prove “beyond shadow of doubt” (see, Muhammad Arshad vs. The State, 2012 YLR 886 Federal Shariah Court)

Q. What are the aggravating factors in respect of rape cases?

A. The aggravating factors are:

1. Gravity of the crime (see, Mazhar vs. The State, (supra), and Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar))

2. Conduct of the accused (see, Khadim Hussain vs. The State, 2011 PCrLJ 1442 (Federal Shariah Court), and Ali Hassan vs. The State, 2013 YLR 937 (Karachi))

3. Prior planning and intention (see, Hakim Jan vs. The State, 2014 PCrLJ 1355 (Peshawar), and Zahida Parveen vs. Muhammad Afzal, 2014 PCrLJ 819 (Peshawar))

4.Married status of offender. If offender was unmarried, the quantum of punishment was somewhat less than that of a married one (see, Zulfiqar Ali vs. The State, 2012 YLR 847 Federal Shariah Court).

5. Relationship with the accused.

Q. Are there any procedural rules to protect the victim in cases argued at court?

A. With the case of Salman Akram Raja vs. Government of Punjab, 2013 SCMR 203, the petitioner, Mr. Raja submitted that:

1. Trials for rape cases should be conducted in camera, by female judges, where possible, and after regular court hours, to allow the victim to make her statements free from psychological distress and trauma. He referred to the provisions of the Indian Code of Criminal Procedure which provides that in-camera trials should be conducted by a woman judge or magistrate;

2. A screen or some other arrangement should be made so that the victims and vulnerable witnesses do not have to face the accused;

3. Questions put in cross-examination on behalf of the accused should be given in writing to the Presiding Officer of the Court who should put them to the victim or the witnesses in a clear and non-degrading manner; and

4. Evidence of rape victims should be recorded through video conferencing so that the victims need not be present in court.

Furthermore, the court considered guidelines to police, hospitals/doctors, child welfare committees, sessions courts, magistrate courts, prosecutors and other concerned authority, prepared by the Delhi Commission of Women in the case Delhi Commission of Women vs. Delhi Police (W.P. No. 696/2008). Although such recommendations were submitted, they are still under consideration of the concerned authorities and are yet to be incorporated in the legislation. The Supreme Court of Pakistan considered the prayer of the petitioner, Mr. Raja and disposed the petition in light of such recommendations/prayers.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

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The Resignation of the Prime Minister under the Constitution and Long March Politics

26 August 2014

The following note is a brief memorandum on Article 95 of the, oft-ignored, foundation document of Pakistan, the Constitution of Pakistan, 1973 (the “Constitution”), long march politics and relevant examples from India.

A. The Constitution

(1) Article 95 of the Constitution provides as follows:

  1. Vote of no-confidence against Prime Minister.− (1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.

Article 95 provides the democratic procedure to remove the Prime Minister from his office if he loses confidence of the majority of the members of the National Assembly. In this respect a resolution for a vote of no-confidence is moved by not less than twenty percent (20%) of the total membership of the National Assembly. If the resolution is passed by majority of the total membership of the National Assembly, the Prime Minister immediately relinquished powers.

B. The History of Long Marches to Oust the Government in Pakistan

In Pakistan, “long march politics” has been witnessed during the regimes of elected governments since 1990. These have basically been exercised to bring about regime change, with the help of the army.

(1) 1992 – Benazir Bhutto formed the National Democratic Alliance and marched towards Islamabad from Lahore, against the government of Nawaz Sharif. The long march failed due to the lack of preparation from Bhutto and support from the then Chief of Army Staff (“COAS”), General Asif Nawaz.

(2) 1993 – Bhutto planned another long march against the Sharif Government. This time, more prepared, and with the support of COAS, managed to achieve the abdication of the President and the Prime Minister and elections within ninety (90) days.

(3) 1996 – Sharif became Prime Minister after the dismissal of Bhutto’s Government by President Sardar Farooq Ahmed. Bhutto formed the Grand Democratic Alliance in 1998 and initiated the long march with the support of the then COAS, General Pervez Musharraf and the United States government.

(4) 2009 – Sharif joined the hype of the Lawyers Movement and led a long march from Lahore to Islamabad for the restoration of the judiciary and the resignation of the government. The COAS, General Ashfaq Kayani however, asked him to call off the march before he had reached Islamabad, confirming that his demands had been met.

C. Examples under Indian Jurisprudence:

1. In 1971, after a re-election victory over the opposition, Indira Gandhi became the fourth Prime Minister of India. However, during the next few years she presided over increasing civil unrest brought on by food shortages, inflation, and regional disputes. Moreover, the Socialist Party hailed charges that she had defrauded the 1971 election leading to a national scandal. In 1974, the Allahabad High Court convicted her of a minor election infraction and banned her from politics for six (6) years. She, instead, refused to resign and declared a state of emergency, which allowed her to arrest dissenters, censor the press, restrict various personal freedoms, and rewrite India’s Constitution.

In 1977, long-postponed national elections were held, and Gandhi and her party were voted out of office by a clear majority. The next year, Gandhi’s supporters broke from the Congress Party and formed the Congress (I) Party, with the “I” standing for “Indira.” Later in 1978, she was briefly imprisoned for official corruption. In 1979, divisions with the ruling Janata Party led to the collapse of its government. New elections were held in January 1980, and the Congress (I) Party, with Indira as its head, won back the lower Indian parliament in a stunning reversal of its political fortunes. Gandhi again became prime minister. The legal cases against her were subsequently dismissed.

2. Important points to consider:

(1) Gandhi was voted into power by a clear majority in 1975;

(2) Due to flawed governance and a strong opposition, she was tried and convicted for electoral fraud by the Allahabad High Court and banned from politics for six (6) years;

(3) She refused to resign and instead declared a state of emergency which allowed her to control to affairs of the State and amend the Constitution;

(4) She was eventually voted out in the next elections, in 1977;

(5) With the collapse of the government in 1979, and the elections in 1980, her party won back the lower parliament with Gandhi as its head.

Corruption, including electoral fraud, was alleged in India against a Prime Minister who refused to resign. As no further action was permissible and/or effective under the laws of the country, she was able to refuse resignation, declare a state of emergency and mould the State to her favour. She was eventually voted out of office in 1977.

3. On 5 April 2011, Anna Hazare began his hunger strike at Jantar Mantar in Delhi as a reaction to the rejection by Prime Minister Manmohan Singh of his request for the formation of a joint committee comprising government and civil society representatives. Hazare had wanted the committee to draft an anti-corruption bill containing stronger punishments and giving more independence to the Ombudsmen in the States). He said that he would continue the fast until the bill was passed and attracted considerable support, including about one hundred and fifty (150) people who joined him in fasting. No politicians were allowed to join in the fasting.

Protests spread to Bangalore, Mumbai, Chennai, Ahmedabad, Guwahati, Shillong, Aizawl and a number of other cities in India. There were also gatherings in solidarity around the world, including Washington, London, Glasgow, Los Angeles, New Jersey, Paris and Houston.

The Government responded as follows:

(1) The resignation on 6 April of Agriculture Minister, Sharad Pawar from the group of ministers that had been charged with reviewing the draft bill.

(2) The realization of the demands by the Government on 8 April. The Government stated that it would table the bill in Parliament in the upcoming session.

(3) The government’s agreement to have an equal distribution of the Government appointed officials and the members of the civil society on 9 April.

(4) On 13 May, Prime Minister Singh stated that the Indian Government had completed the ratification of the UN Convention against Corruption.

The bill however, being week initiated another wave of Hazare’s “Infinate Fast” protests. On 1 August 2011, public interest litigation was filed in the Supreme Court of India by Hemant Patil, a social worker and businessman, to restrain Hazare, alleging that Hazare’s demands were unconstitutional and amounted to interference in the legislative process.

On 16 August 2011, Hazare was arrested four (4) hours before the planned hunger strike. After four (4) hours in detention he was released unconditionally on a request by the police, but refused to leave Tihar Jail where he demanded unconditional permission to fast at Ramlila Maidan. Hazare continued his fast inside the jail and continued to receive support from people across the country. His fast continued until he was hospitalized for weight loss and dehydration.

His supporters started the campaign known as “I am Anna Hazare”, with his cap (topi) becoming a sign of resistance and to be displayed whenever someone asked for a bribe.

In 2011, Hazare demanded an amendment to the electoral law to incorporate the option of “none of the above” in the electronic voting machines during the Indian elections. The “none of the above (“NOTA”)” is a ballot option that allows an electorate to indicate disapproval of all of the candidates in an electoral system, in case of non-availability of any candidate of his choice, as his right to reject. The Chief Election Commissioner of India, Shahabuddin Yaqoob Quraishi supported Hazare’s demand for the electoral reforms.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Can a foreign company sue in Pakistan?

4 August 2014

Under Section 456 of the Companies Ordinance, 1984 (the “Ordinance”), a foreign company may contract, deal or transact (with other companies) in Pakistan but unless the foreign company meets the requirements laid out under the laws of Pakistan, in the event of any conflict, dispute, or issue, the foreign company is not entitled to bring any suit, claim any set-off, make any counter-claim or institute any legal proceedings. Section 456 is as follows:

456. Company’s failure to comply with this part not to affect its liability under contracts, etc.-Any failure by a foreign company to comply with any of the requirements of section 451 or section 452 shall not affect the validity of any contract, dealing or transaction entered into by the company or its liability to be sued in respect thereof; but the company shall not be entitled to bring any suit, claim any set-off, make any counter-claim or institute any legal proceeding in respect of any such contract, dealing or transaction, until it has complied with the provisions of section 451 and section 452. (emphasis added)

Sections 450 to 460 of the Ordinance, inter alia, deal with the requirements that foreign companies must meet in order to effectively defend themselves or initiate proceedings in Pakistan.

Section 450 provides as follows:

450. Application of this Part to foreign companies.- This Part shall apply to all foreign companies, that is to say, companies incorporated or formed outside Pakistan which, after the commencement of this Ordinance, establish a place of business within Pakistan or which have, before the commencement of this Ordinance, established a place of business in Pakistan and continue to have an established place of business within Pakistan at the commencement of this Ordinance.

A “place of business” includes a branch, management, share transfer or registration office, factory, mine or fixed place of business but does not include an agency unless the agent exercises a general authority to negotiate and conclude contract or maintains stock of merchandise on behalf of the company.

Section 451 provides for the documents to be delivered to the registrar by foreign companies. These documents include:

(a) a certified copy of the memorandum and articles of the company (Form 38);

(b) full address of the registered or principal office of the company (Form 39);

(c) a list of the directors, chief executive and secretaries (if any) (Form 40);

(d) a return showing the full name and surname, father’s name, nationality, designation and full address in Pakistan of the principal officer of the company in Pakistan by whatever name called;

(e) the full name and surname, father’s name, nationality, designation and full address of some one (1) or more persons resident in Pakistan authorised to accept on behalf of the company service of process and any notice or other document required to be served on the company together with his consent to do so (Form 42);

(f) the full address of that office of the company in Pakistan which is deemed to be the principal place of business in Pakistan (Form 43); and

(g) particulars of principal officer of the company in Pakistan (Form 41).

Section 451 is read in line with with Rule 22 of the Companies (General Provisions and Forms) Rules, 1985.

Moreover, a foreign company is required to obtain a permission letter from the Board of Investment with a specific validity period for opening and maintaining of its branch/liaison office in Pakistan. Copy of such permission letter is required to be furnished with the documents meant for registration.

Section 454 of the Ordinance provides the statutory obligations that the foreign company is required to comply with. These include, among others, maintaining registers of Pakistani members, directors and officers at its principal place of business and keeping it open to inspection, stating the country of origin in every prospectus, exhibition of the name of the company.

Disclaimer: This post is intended as an introduction and for information only and should be read with the relevant legislation. This post does not provide or intend to provide an alternate to legal advice by a competent counsel. For any further queries or assistance, please contact Myra Khan at lawyereadia@gmail.com.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

The Contra Proferentem Rule

22 July 2014

The contra proferentem rule states, broadly, that where there is doubt about the meaning of the contract, the words will be construed against the person who put them forward. The courts only apply the principle in cases where the clause under question is ambiguous. The principle operates against the drafters of the contract for two (2) reasons:

First, they rely upon the [impugned] clause to exclude or to limit the liability alleged against them; and

Secondly, they are responsible for introducing during the negotiating process the particular parts of the clause on which they now rely on.

The principle is applied to encourage the drafter of a contract to be as clear, precise and explicit as possible and to take into account as many foreseeable situations as possible. The rule reflects an inherent rejection of standard-form contract and allows room for negotiation and a balanced document. The contra proferentem rule further places the cost of losses on the party that was in the best position to avoid the harm (by drafting the contract intelligently).

The courts, therefore, emphasize on scrutinizing the plain and clear meaning of the words with particular care before applying the principle, if required (see, BHP Petroleum Limited vs. British Steel Plc, [2000] 2 All ER (Comm) 133).

The superior courts in Pakistan have discussed this rule as follows:

(1) Munib Akhtar, J, in Muhammad Shahnawaz vs. Karachi Electric Supply, 2011 PLC (C.S.) 1579 (Sindh High Court) explained the principle of contra proferentem.

Under this principle, the court held that “any ambiguity or doubt in the scope of the power should be construed against the employer and in favour of the employee” where the employer was the drafter of the contract. 

(2) In Muhammad Amin Brothers (Pvt.) Limited vs. Pakistan Agricultural Storage and Services Corporation Limited, 2007 CLD 1445 (Lahore), and Bari Rice Mills Limited vs. Passco, 2007 CLD 857 (Lahore), the Lahore High Court highlighted the scope of the principle:

… Principle of contra proferentem can be resorted to if there is an ambiguity which makes the contract difficult to ascertain the intention of the contracting parties ….

(3) In Muhammad Shahnawaz vs. Karachi Electric Supply Company, supra, Clause 1.2 of the contract conferred a power on Karachi Electric Supply Company to alter the termination clause of the contract. The Court held that the rule of contra proferentem would apply in order to remove the ambiguity in the Clause.

(4) In Bari Rice Mills Limited vs. Passco, supra, applying the same rule, the courts held that the words under question were considered to be sufficiently clear in order to not apply the principle of contra proferentem.

 … There is no warrant whatsoever for construing the term “as is where is” as overriding the clear and unambiguous obligation of the respondent to supply Basmati Special Rice. In this view of the matter, I do not need to consider the argument advanced on behalf of the appellant that the principle of contra proferentem be applied for interpreting the contract (Exh.P.2) which was drafted by the respondent. This principle can be resorted to if there is an ambiguity which makes it difficult to ascertain the intention of the contracting parties…. (emphasis added)

The principle of contra proferentem has been discussed by the similar jurisdictions of India and the United Kingdom and in the writings of legal publicists and scholars. It has also been codified in international instruments such as the UNIDROIT Principles and the Principles of European Contract Law.

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Myra Khan is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Are emails considered “original documents”? Can they be used as official documents or as evidence in court?

24 March 2014

Are emails/faxes considered “original documents” for the purposes of record keeping or as evidence in court or is it essential to provide a traditional certified/attested hard copy of the same?

TL;DR: Yes. Emails etc. are considered original documents provided that they meet a certain legibility and authenticity criteria.

Detailed Response:

The relevant authority vis-à-vis this query is the Electronic Transactions Ordinance, 2002 (the “ETO”):

1. Section 4 of the ETO  provides as follows:

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. (emphasis added)

2. The requirement under the law if that any document (including record, information, communication or transaction) should be in “written form”.  The requirement under Section 4 of the ETO for, inter alia, a document or communication to be in “written form” shall be deemed to be satisfied, provided that the same is accessible for any future reference.

3. Section 5, of the ETO, provides the requirement for original form:

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. (emphasis added)

The requirement of the law is that a document should be in its “original form”. Under Section 5 this requirement is deemed to be satisfied if the integrity of such document or communication is assured and if the same is capable of being presented in legible form. The criteria for integrity and legibility is provided in Section 5(2).

4. In view of the provisions of Section 5 of the ETO, a fax/ email shall be considered to be an original document provided that there is reliable assurance from the recipient that the content of such fax/ email has remain unaltered from the time it was generated by the sender. Furthermore, the recipient shall be required to produce the fax/ email in legible form to be able to have the same treated as an original document.

5. The ETO further provides for the criteria required for retention of any electronic document. Section 6 provides as follows:

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. (emphasis added)

6. In light of Section 6 of the ETO, if a fax/ email is retained by the recipient in a form that such fax/ email: (1) remains accessible so as to be available for subsequent reference; and (2) represents accurately the content and form in which the same was originally generated; (3) while clearly providing the particulars in respect of its origin, destination, date and time, then the criteria laid down in Section 6 of the ETO shall be sufficiently satisfied.

7. The ETO by virtue of Section 29, read with the Schedule attached thereto, has amended the Qanun-e-Shahadat Order, 1984 (law of evidence) (the “Order”), the relevant amended Articles of which are provided/ discussed hereunder:

(a)                Certain expressions provided in the Order are to bear the meanings as provided in the ETO, including the expressions “automated”, “electronic”, “electronic document”, “information”, “information system” and “security procedure”. 

“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.

(b)               Article 73 of the Order has been amended by inclusion of the following new explanations:

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 an 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.

(c)                A new Article 78-A has been inserted, in the Order, by virtue of the ETO as follows:

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.

8. As per the aforementioned relevant amendments to the Order, if a fax/ email is reproduced and presented in court, the same would be deemed to be evidence in primary form if the automated information system used by the recipient for obtaining the output of the fax/ email is in working order or if the same has been subject to a security procedure i.e. (i) has been obtained through a mechanism which has already been agreed between the recipient and its sender; or (ii) has been subject to implementation of a secure and reliable procedure carried out in the normal course of business; or (iii) which 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 acknowledgement procedures, software, hardware or similar security devices.

9. Furthermore, in the event a sender challenges the authenticity of the fax/ email received by the recipient, then as provided under the new Article 78-A of the Order, the application of any of the security procedures (as provided above) to the relevant fax/ email shall have to be proved by the recipient.

*italics have been used to differentiate the quotations from the rest of the text and to avoid confusion in the numbering. Italic and Underlined form is only to avoid confusion and provide emphasis, respectively.

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Can I be stopped from undertaking competitive work after resignation from a company?

Restriction in a Contract: Professional / Employment / Trade Freedom

13 March 2014

Companies and firms in Pakistan usually contain a non-compete clause in their agreements. The wording of such clause can range from restricting another company from partaking in competitive work while engaged with the restricting party to restricting an employee from working with a competing firm after resignation.

Is such a clause valid and enforceable in Pakistan?

Yes, provided that it is reasonable.

Although Section 27 of the Contract Act, 1872 provides that any agreement that restrains a person from exercising a lawful profession, trade or business is void to that extent; the courts in Pakistan have held that a restraint of trade clause or a non-compete clause in an agreement is valid and is not hit by Section 27 provided that it is “reasonable”.

The test then falls simply on the question of whether such clause is “reasonable” which is evaluated on a balance of probabilities and evidence.

The High Court of Sindh in Exide Pakistan Limited vs. Abdul Wadood, 2008 CLD 1258 (Karachi) provided that:

reasonableness of the clause will vary from case to case and will inter alia, depend upon the following:–

the extent of duration;

the extent of the geographical territory.

The case law in Pakistan, briefly, illustrates the following principles:

(1) The restraint of trade clause should only be aimed at protecting interest of the employer and not aimed at penalizing the employee or causing him inconvenience.

(2) The clause should not be vague and generalized but should be rather specific.

(3) The clause shall only be the applicable to the particular type of business in which the employer is actually engaged in and not to any business activity in which the employer would possibly engage in the future.

(4) The restriction cannot be termed to be unreasonable as to time and scope i.e. “for eleven (11) months in XYZ Company”. By such covenant the defendant is not restrained from getting employment in an organization other than XYZ Company which is neither fair nor reasonable (see, Al-Abid Silk Mills Limited vs. Syed Mudassar Rizvi, 2003 MLD 1947 (Karachi)).

(5) A restriction may be placed as a form of good-will on the part of an ex-employee and to protect the ex-employer from having to compromise the fruits of his business because an ex-employee has opened up a competitive business in the same neighbourhood (see, generally, Shabih Haider Zaidi vs. Muhammad Zahoor Uddin, 2001 CLC 69 (Karachi)).

(6) In global contracts, incorporation of a restraint clause cannot be said to be hit by doctrine of restraint of trade, provided it is reasonable, on equal bargaining strength, is not unilateral and operates during the currency of the agreement (see, generally, Pak China Chemicals vs. Department of Plant Protection, 2006 CLD 210 (Lahore)).

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com

Directors of a Company in Pakistan

14 February 2014

1. What do the Board of Directors do?

(1) Under the law, the Board of Directors is the repository of all corporate powers, except those powers which, by law, are to be undertaken by the shareholders or such powers which have been given to the shareholders under the Articles of Association of a company.

Section 196 of the Companies Ordinance, 1984 outlines the powers of the Directors.

(2) Directors have almost all the powers over the operation and management of the Company until they are removed. It has been held that the shareholders cannot undertake functions allowed to the Board under law (Abdul Malik vs. Janana De Malucho Textile Mills Limited, PLD 1973 Note 116 (Lahore)).

2. Can Directors hold Board Meetings through telephone/video conferencing?

Circular Number 20/2005 dated 10 November 2005 issued by the Securities and Exchange Commission of Pakistan allows the Board to conduct board meetings through telephone/video conferencing.

3. What if the matter is urgent and the Directors have no time to hold a regular meeting?

If the matter is urgent then the Directors may exercise certain powers on behalf of the Company without their formal meeting through a circular resolution or a resolution in writing, provided that this permission has been granted in the Articles of Association of the Company.

4. What are the fiduciary (ethical/legal) duties of Directors?

(1) In the Companies Ordinance, 1984, there are strict provisions for disclosure of interest/ conflict of interest of Directors (Sections 215 and 216)

(2) Directors must exercise their powers for (only) the purposes for which they were conferred and if they are for the benefit of the Company as a whole.

(3) Directors should ensure that they do not put themselves in a position in which their duties to the Company and their personal interests may conflict (Section 214).

(4) The Directors have a duty to take care of the Company.

5. What is the benchmark expected of a Director?

In discharging his duties, Directors must act honestly and must exercise such care as might be expected from an ordinary man (see, generally, Govind Narayan Kakade vs. Rangnath Gopal Rajopadhye, 1930 AIR Bombay 572). If a Director so acted, and the decision led to irregularities or losses, he would not be liable in negligence for breach of his duty of care (see, generally, Dovey vs. Cory, (1901) AC 477: (1895-9) All ER Rep 724 (HL)).

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Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.

Any queries may be directed to lawyereadia@gmail.com