ACT NO. I OF 2013
INVESTIGATION FOR FAIR TRIAL ACT, 2013
An Act to provide for investigation for collection of evidence by means of modern techniques and devices to prevent and effectively deal with scheduled offences and to regulate the powers of the law enforcement and intelligence agencies and for matters connected therewith or ancillary thereto
[Gazette of Pakistan, Extraordinary, Part-I, 22nd February, 2013]
No. F. 9(21)/2012-Legis.–The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 20th February, 2013, is hereby published for general information:-
WHEREAS in order to prevent the law enforcement and intelligence agencies from using their powers arbitrarily it is necessary regulate the said powers and provide for their permissible and fair uses in accordance with law and under proper executive and judicial oversight;
AND WHEREAS further being mindful that the existing laws neither comprehensively provide for nor specifically regulate advance and modern investigative techniques such as covert surveillance and human intelligence, property interference, wire tapping and communication interception that are used extensively in other jurisdictions to successfully prevent the offences and as an indispensable aid to the law enforcement and administration of justice;
AND WHEREAS in order to neutralize and prevent the threat or any attempt to carry out scheduled offenses it is necessary that the law enforcement and other agencies be given certain specific authorizations to obtain evidence in time and only in accordance with law;
AND WHEREAS it is also in order to declare the admissibility and use of the material obtained during lawful investigation under the present law, in judicial proceedings and all other legal proceedings or processes to ensure fair trial:
It is hereby enacted as follows: –
1. Short title, extent and commencement.–(1) This Act may be called the Investigation for Fair Trial Act, 2013.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Application.—(1) The provisions of this Act shall apply to–
(a) all citizens of Pakistan within or outside Pakistan;
(b) all persons within Pakistan or on board on any ship or aircraft registered in Pakistan wherever it may be; and
(c) all transactions or communications originated or concluded within Pakistan or originated or concluded outside Pakistan by any person.
(2) Any person liable for investigation under the provisions of this Act for a scheduled offence committed partly or fully outside Pakistan shall be dealt with according to the provisions of this Act in the same manner as if such an offence had been committed within Pakistan.
3. Definitions.–In this Act, unless there is anything repugnant in the subject or context,–
(a) 'applicant' means, Directorate General Inter Services Intelligence, the three Services Intelligence Agencies, Intelligence Bureau and Police;
(b) 'authorized officer', means any officer not below the rank of BPS-20 or equivalent who is working with the applicant and is notified under Section 4 to represent the applicant when making application or taking up any proceedings under this Act;
(c) 'competent authority' includes the Judge;
(d) 'Court' means the High Court;
(e) 'Designated Agency or Body' means any one or more Agency or Body designated by the Federal Government through notification for the purposes of this Act, having capability for implementing warrant of interception;
(f) 'expert', means a person qualified or trained or experienced in conducting surveillance or interception who is nominated by the applicant or the Federal Government as an expert for analysis of the intercepted materials;
(g) `Intercepted material' means evidence collected under Section 17 and will refer,–
(i) for the purposes of `Surveillance' to include,–
(a) data, information or material in any documented form, whether written, through audio visual device, CCTV, still photography, observation or any other mode of modem devices or techniques obtained under this Act; and
(b) documents, papers, pamphlets, booklets; and
(ii) for the purposes of `Interception' to, include-mails, SMS, IPDR (internet protocol detail record) or CDR (cell detail record) and any form of computer based or cell phone based communication and voice analysis. It also includes any means of communication using wired or wireless or IP (internet protocol) based media or gadgetry;
(h) 'Judge' means a Judge of the High Court;
(i) `Minister’ means the Federal Minister for Interior;
(j) 'Register' means the register maintained under subsection (2) of Section 9 by the Judge, containing the serial number of the file received by the Judge in Chambers which has been returned to the applicant for safe custody, and the register shall also contain name, contact, address of the authorized person and the applicant;
(k) 'Suspect' means a person in respect of whom there is a suspicion that he may be involved in any scheduled offence and includes foreigners and groups as well as organizations;
(l) 'Schedule’ means schedule to this Act;
(m) 'Scheduled offence' means an offence specified in schedule I;
(n) 'Service provider' means any person, entity or company related to any equipment, technology, data, circumstances that given it ability or power or control to implement the warrants issued under Sections 11 and 21;
(p) 'Warrant' means warrant of surveillance or interception, and includes warrant issued under Sections 11 whereby the applicant is allowed by the Judge to collect evidence through interception, recording through audio or video or any means of communication or surveillance of movements and actions through minimum interference in property and privacy of any person including human intelligence.
APPLICATION FOR WARRANT
4. Notification of authorized officer.–The applicant shall, before making an application, first notify an appropriate officer not below BPS-20or equivalent, duly authorized by him to represent the said applicant for making an application under this Act.
5. Record of Suspicious Conduct.–In case where any official of an applicant has reasons to believe that any person is likely to be associated with or is beginning to get associated with, any act leading to a scheduled offence, or is in the process of beginning to plan such an act, or is indulging in such a conduct or activity that arises suspicion that he is likely to plan or attempt to commit any scheduled offence and, therefore, it may be necessary to obtain warrant of surveillance or interception, he shall prepare a report thereof with supporting.
6. Material to be placed before the Minister.–An official of the applicant who has prepared the report under Section 5 shall present the same through the Head of the Department to the Minister for permission to make application to the Judge for issuance of the warrant of surveillance or interception.
7. Action by the Minister on the material presented to him.–(1) The Minister shall examine the report with supporting material and through a written order may either decline the permission sought or grant permission fully or partly.
(2) No application shall be made to the Judge except with prior written permission of the Minister.
8. Application for issuance of warrant.–After permission from the Minister, application for issuance of warrant shall be made by the authorized officer to the Judge,–
(a) preferably in the manner prescribed in schedule II;
(b) in case, the nature of warrant requested to be issued requires different description, then the application shall be made in writing on the letter head of the applicant justifying the issuance of warrant by mentioning all necessary details with supporting material alongwith proposed draft for warrant; and
(c) the application for the issuance of warrant shall be accompanied by,–
(i) a signed statement and affidavit of the authorized officer that the contents of the report and application are true and correct to the best of his information, knowledge and belief, and that the warrant shall be used only and exclusively for preventing or lawfully investigating a scheduled offence or to collect evidence in respect thereof and the same shall neither be misused in any manner, nor shall the approval of the warrant, be abused to interfere or intervene in the privacy of any person; and
(ii) details of all warrants obtained previously in respect of the person against whom the warrant is sought
ISSUE OF WARRANTS
9. Judge to issue warrant in Chambers.–(1) The warrant of surveillance or interception shall be issued by the Judge in chamber.
(2) The authorized officer shall personally present the application in chambers of the concerned Judge who after considering the same shall pass appropriate orders under Section 11. The file on which the orders shall be passed, shall be returned to the authorized officer for safe-custody who shall be duty bound to bring the same on any subsequent related hearings. The Judge shall cause to be maintained a register as provided for in Section 3(j).
10. Considerations for issuance of warrant.–(1) The Judge while passing an order for issuance of warrant shall consider the following, namely:–
(a) The issuance of requested warrant will enable the applicant to collect evidence; and
(b) the material or statement of the authorized officer whether indicates a reasonable threat or possibility of an attempt to commit a scheduled offence.
(2) The Judge while passing an order for the issuance of warrant shall ensure that:–
(a) the authorized officer is properly authorized to represent the applicant;
(b) the issuance of warrant shall not unduly interfere in the privacy of any person or property.
11. Issuance of warrant of surveillance or interception.–After considering the matters specified in Section 10, the Judge shall,–
(a) pass an order allowing the issuance of warrant in the manner prescribed in schedule IV or as presented before him in a proposed draft form;
(b) pass an order allowing the issuance of warrant with some modifications;
(c) pass an order allowing the issuance of warrant, but may make any observations regarding the manner and method of its implementation;
(d) restrict requested duration of any existing warrant; and
(e) decline to issue the warrant, if the Judge has reasons to believe that warrant is being procured with mala fide intention and the process under the Act is being abused.
12. Form of the warrant.–(1) The warrant shall be issued ordinarily in the manner prescribed in schedule IV:
Provided that the warrant may also be issued in a manner proposed by the authorized officer under Section 8(b) with or without modifications by the Judge.
(2) The warrant shall be signed by the Judge and a seal of the Court shall be affixed.
13. Record of the orders.–(1) While issuing the warrant, the Judge shall make a formal order indicating reasons for accepting the request of the applicant. The original copy of the formal order shall be given to the applicant for safe custody.
(2) The formal order and its record shall not be made public and shall be kept in safe custody.
14. Duration of warrant of interception.–Warrant shall be issued for a period of not longer than six days:
Provided that it may be re-issued after the said period by the Judge upon the request of the authorized officer of the applicant, if, after examining the gist of the intelligence and evidence collected by the applicant thus far, he is satisfied that as a consequence of issuance of warrant, suitable progress is being made and there is sound justification for re-issuance of warrant for another period not exceeding sixty days. Thereafter, the same consideration shall apply for every request for reissue of warrant for further periods not exceeding sixty days at a time.
15. Sanction in case of arbitrary request for warrant.–Where the Judge is of the view that any request for the issuance of warrant is based on insufficient or irrelevant considerations or it has resulted in undue and inappropriate interference in the privacy of any person or that the material and information collected or received within the period mentioned in Section 14 demonstrate that the officer concerned did not apply himself fully while making an application for the warrant, then he may recommend departmental action against the officer concerned.
EXECUTION OF WARRANTS
16. Authorization under the warrant.–(1) The warrant of surveillance or interception to be issued by the Judge may authorize and allow the lawful doing of any or all of the following acts, namely–
(a) interception and recording of telephonic communication of the suspect with any person;
(b) video recording of any person, persons, premises, event, situation etc;
(c) interception or recording or obtaining of any electronic transaction including but not limited to e-mails, SMS etc;
(d) interception and taking over of any equipment used in the communication in respect of which the warrant is issued, including but not limited to telephone, cell phone, mobile sims, electronic database, demonstrating linking of electronic communication with the database belonging to the persons in respect of whom the warrant has been issued:
Provided that the Judge shall authorize take-over of equipment only where the material or statement of the authorized officer discloses a substantial threat or possibility or an attempt to commit a scheduled offence;
(e) collection of evidence through any modern devices in addition to the ones mentioned above;
(f) use of human intelligence;
(g) covert surveillance and property interference; and
(h) access to any information or data in any form related to a transaction, communication or its content.
(2) Any other form of surveillance or interception that the Federal Government may notify in this behalf.
17. Method of executing the Warrant.–(1) Where the warrant is issued, the applicant in case of the warrant of interception, shall approach the designated agency or body, for serving the same on service provider in the manner provided for in Schedule III and the designated agency or body shall duly serve the said warrant on the service provider or give effect to it within seven days.
(2) The service provider shall not extend technical facilities of interception to any person or organization other than the Designated Agency or Body.
(3) Where nature of surveillance or interception is such that it is not necessary to serve the warrant on anyone, then the same shall not be served and its issuance alone shall be sufficient basis to collect evidence.
(4) While executing the warrants each applicant shall act within the mandate provided for it under the law.
18. Indemnity for service provider.–Access granted by the service provider in accordance with this law shall not be called in question under any law by any person who may have been prejudiced by such access.
19. Immunity service provider.–The service provider shall have immunity in any civil or criminal legal proceedings that any person may commence against his corporate entity or against his office bearers or employees, for having complied with the warrant issued under this Act.
20. Service provider to cooperate.–In the event the service provider declines, fails or interferes in any manner in the execution of warrant then he shall be liable to have committed an offence under this Act for obstructing investigation and justice and shall be punished with fine upto ten million rupees.
21. Service provider to ensure confidentiality.–The service provider shall also be responsible for ensuring the confidentiality of the execution of warrant from his staff members except those necessary to execute the warrant and in case of unauthorized disclosure or misuse of data by any of his staff member, the officials of the service provider and the concerned staff shall be punished with imprisonment which may extend to one year or with fine which may extend to ten million rupees.
ADMISSIBILITY OF MATERIAL OBTAINED UNDER THE WARRANT
22. Registration of case.–(1) The evidence including data, information and material collected or received pursuant to the warrant shall be examined by the officer authorized by the applicant in this behalf and if he is satisfied that the same discloses elements of commission, harbouring, abetting or conspiring or attempting to commit any scheduled offence, he may immediately cause registration of a report (FIR) under Section 154 of the Code of Criminal Procedure, 1898 (Act V of 1898) and in that event he shall hand over all the evidence including material, information, and data to the concerned Investigating Officer so that it forms part of his record for the purposes of investigation and prosecution:
Provided that before the evidence is handed over to the Investigating Officer, the authorized officer shall certify that it has been collected strictly in accordance with the warrant and has not been tampered with or altered in any manner whatsoever.
(2) If the evidence which has been collected or received in respect of scheduled offence is insufficient to justify registration of a report (FIR) under Section 154 of the Code of Criminal Procedure, 1898 (Act V of 1898), such evidence including data, information and material collected or received shall be kept confidential in safe custody and shall not be used without the permission of the Court.
23. Admissibility of warrant based information.–(1) Notwithstanding anything contained in the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984) or any other law for the time being in force, the evidence including data, information, documents or any other material collected or received under this Act shall be admissible as evidence in the legal proceedings.
(2) Nothing contained in sub-section (1), shall debar the admissibility of evidence collected or received, prior to the coming into force or this Act, under the provisions of any other law for the time being in force.
24. Presumption of validity of warrant.–The warrant of surveillance and interception whenever presented in the Trial Court or any other Court, shall be presumed to have been validly and lawfully issued.
(2) The intercepted material collected or received pursuant to the warrant of surveillance or interception under this Act and the material based on which the warrant of surveillance or interception was applied for by the applicant shall be admissible in evidence.
25. Report of expert.–In case where an analysis of the intercepted material collected pursuant to the warrant of surveillance or interception is required, then the same shall be carried out by a person referred to in Section 3(f) being suitably qualified, trained or experienced, who shall be deemed to be an expert as described under Section 510 of the Code of Criminal Procedure, 1898 (Act V of 1898) and his report shall have the same effect as given to the report of the experts of different fields mentioned in the said section.
26. Non-discloser.–Any person performing any function under this Act who fails to secure complete secrecy of the process or makes any disclosure which may compromise future capabilities of intelligence gathering shall, in addition to any other punishment to which he may be liable under applicable law and rules, be punished with imprisonment of upto five years or with fine of upto ten million rupees or with both.