Cyber Crime Legislation in Pakistan: A Critical Analysis from Islamic Law Perspective

: The advent of IT era has lightened our life but at the same time it has created various complex problems like regulatory issues and use of IT for criminal and other nefarious purposes by various anti-social elements. Regulatory issues related to the use of information technology require a legal framework and laws. In Pakistan, the latest and most comprehensive of these laws is the “Prevention of Electronic Crimes Act (PECA) 2016”. In fact, the subject of concern of this research work is understanding this law, its basic objectives, determining its effectiveness, and a critical analysis of the crimes and violations covered by this law in the light of Islamic law .


Introduction:
The event that prompted politicians to consider a large-scale anti-cybercrime bill was the attack on the Peshawar school. On 16 December 2014, an armed group of six stormed a school in Peshawar and opened fire on its students and teachers. By the time the attack was suppressed, nearly 150 children and teachers had been killed, and over 100 wounded. It was seen as the worst attack in Pakistan and was termed barbaric across the board. 1 In response to this attack, the Pakistani government has approved the National Action Plan in January 2015 which considered ways and means to root out extremism. The plan consisted of 20 measures to eliminate extremism, including the establishment of military courts to try terrorism suspects, a new counterterrorism unit in the army, and other measures to halt the operations of extremist organizations. 2 In the aftermath of the attack, government officials said they needed unlimited ability to monitor, locate and prosecute alleged militants. This desire for absolute power permeated other laws that were under discussion at that time. 3 One of these legal frameworks being debated at that time was the "The Prevention of Electronic Crimes Act, 2016". Drafting of this law started in early 2013 and has been overseen by a cybercrime expert. The draft was prepared over a period of 18 months and incorporated the input from industry experts and privacy groups. The final product, a 44-page draft (hereafter referred to as the "Stakeholder Draft") was welcomed and deemed a success because it reinforced the state's desire to effectively prosecute cybercrime while protecting freedom of expression. It has been submitted to the Standing Committee for consideration and vote. But in the wake of the Peshawar attack, the Standing Committee made several amendments to the stakeholder draft. The 44-page document has been reduced to 13 pages by removing privacy safeguards. The Standing Committee also made several overbroad sections, such as a clause to remove content if necessary i.e. inappropriate or not in keeping with Islam.They drafted this "model legislation" and claimed that people should only trust the government not to abuse the law. 4 On August 11, 2016, the "Prevention of Electronic Crimes Act (PECA)" was passed by the Pakistan National Assembly with the primary ambition to provide a comprehensive legal framework for defining different types of cybercrime, and mechanisms for investigation, prosecution and action related to cybercrime. The Prevention of Electronic Crimes Act (PECA) 2016 covered a series of crimes related to the Internet and cyberspace. In all, it listed 23 offenses: 1.
Unauthorized access to information system or data.

2.
Unauthorized copying or transmission of data. 3. Interference with information system or data.

4.
Unauthorized access to critical infrastructure information system or data.

5.
Unauthorized copying or transmission of critical infrastructure data. 6.
Interference with critical infrastructure information system or data. 7.
Hate speech. 10. Recruitment, funding and planning of terrorism. 11. Electronic forgery. 12. Electronic fraud. 13. Making, obtaining, or supplying device for use in offence. 14. Unauthorized use of identity information. 15 5 Qualitative research methodology has been adopted in this research paper. Moreover, analytical and descriptive approach has been used to conclude the research work. The study consists of critically examining the Sharīaʿh law with existing Pakistani law. The primary sources are utilized in the construction and writing of this article. Nevertheless, the secondary sources are also consulted and the opinions of the classical Muslim jurists are also discussed. The core objective of this research paper is to bring awareness among the entire Muslim population in general and the Muslims living in Pakistan in particular that how does Sharīʿah law conforms and differentiates with the existing Cybercrime legislation in Pakistan. Not only this, at the same time it also elucidates that how does the Islamic injunctions and principles of Islamic law laid down in the seventh century provide guidance with respect to the use of technology in the 21 st century. In order to know about these crimes, the following discussion and analysis is intended to assist in understanding the Islamic Law related to these crimes.

Discussion:
Chapter II of PECA, 2016 lists down offenses and punishments. Articles 3, 4, 5, 6, 7 and 8: section 3 to 8 is with regard to unauthorized access, copying or transmission and interference with information system or data, and therefore the law (PECA, 2016) provides punishment for the offender. Islamic Law prohibits unauthorized access to someone else information system or data. In the Holy Qur'ān Allah (SWT) says: and if you are told, "Turn back," then turn back. This will be most conducive to your purity; and God has full knowledge of all that you do". 6 Although the concept of access in the above verse refers to physical access it can still be applied in cases where one intends to access other's property such as the computer or Internet sites. The permission or consent is the requirement that needs to be fulfilled before the access. Similarly, digital piracy which is another form of criminal behavior through the growth of the internet technology is prohibited in Islam. Digital piracy is defined as "the copyright infringing transmission in a form that does not utilize "hard media" of any copyrighted material included recorded data, motion pictures, software, books and journals as well broadcast and recorded performances covered by copyright" 7 . A number of prominent Muslim scholars hold copyright to be binding and breaking the copyright law is sinful. The Prophet (SAW) says: ‫شروطهم"‬ ‫على‬ ‫"املسلمتون‬ "Muslims should abide by their stipulations" 8  thing, will be more entitled to own it (than others) " 9 . Copyright laws prohibit a person from making wide commercial use of something on the grounds that the person who invented it by his mental labor better deserves its commercial benefits, and no other person should be allowed to reap the monetary fruits of his former labor without his permission. It is clear that the author of the book who worked day and night to write a book is the best person worthy of publishing it for commercial purposes. If anyone else is allowed to publish the book without the author's permission, they are definitely violating the copyright, and copyright law protects them from such infringement of rights. The above discussion is further endorsed by the declaration of the Fiqh Council of the Muslim World League in Makkah Al-Mukarramah. The Islamic Fiqh Council, in its ninth session, held at the Muslim World League building in Makkah Al-Mukarramah from Saturday 12 Rajab 1406 AH to Saturday 19 Rajab 1406 AH, examined the issue of copyrights for authors of books, research and scientific messages: Are they established rights? It is owned by its owners, and is it legally permissible to substitute for it and contract with publishers for it, and is it permissible for anyone other than the author to publish and sell his books and research without his permission, on the grounds that they are permissible for everyone, or not? The council declared that the situation has changed with the change of time and the emergence of novelties in it, which has the main effect between what was and what has become, which requires a new view that preserves each one who exerts his effort and his right. It must be considered that the author and inventor have a right to what he composed or invented, and this right is legally his property, and it is not permissible for anyone to rob it without his permission, provided that the book or the research does not contain a call or preaching to legally denounced, heresy or any misguidance that contradicts the law of Islam. Otherwise, it must be destroyed, and it is not permissible to publish it. Likewise, it is not for the publisher with whom the author agrees, nor for anyone else to modify anything in the content of the book, or change something without the author's consent, and this right is inherited from its owner, and is bound by what is restricted by international treaties, systems and customs that do not contradict the Sharī'ah which regulate and specify this right after the death of its owner, a combination of his private right and the public right; Because every author or inventor uses the ideas and products of those who preceded him. As for the author or inventor who is renting from a publishing house to write a book for it, or from an institution to invent something for it for a purpose: what he produces is the right of the party renting it, and it follows the conditions agreed upon between them, which are accepted by the rules of the contract. 10 The prominent Muslim Scholar Sheikh Ibn-e 'Uthīmīn 11 has also adopted a similar approach. According to him, "if the state is preventing it, then this is not permissible, because God has commanded obedience to those in authority, except in disobedience to God, and refraining from recording it is not disobedience to God. As for companies, what I think is that if a person copies it only for himself, there is nothing wrong with it. But if he copies it for trade, then this is not permissible. Because it causes harm to others, it is like selling to a Muslim. Because if they sell it for one hundred and you copy it and you sell it for fifty, this is a sale based on your brother's sale." 12 Articles 9 and 10: Section 9 and 10 is with regard to Glorification of an offence, hate speech and Cyber terrorism, and therefore the law (PECA, 2016) defines punishment for the offender. Some people seduce others into sin, in order to collect some of the benefits of this world, or to feel the taste of sin, and then to claim an excuse for themselves that what is happening is not a matter of exclusivity, but by the generality in which most people have fallen, and then continues to insist on this sin for itself. Glorification to commit a crime or sin is one of the most dangerous things that a person can do as decorating disobedience is the favorite job of Satan and his Disbelieve, but when he disbelieves, he says: I am surely clear of you; surely I fear Allah, the Lord of the worlds." 13 Glorification of crime or sin in the hearts of people comes in many forms, including what is to obtain worldly benefits, such as convincing from some drug dealers to their victims that hashish or heroin has a unique feeling, which makes them feel happy, and then insists on you to experience it, if you do so they catch you, you become addicted, ready to steal all because of entering into buying the drugs. It also includes the insistence of some of your colleagues at work or employment to receive the bribe, and to convince you that it is not a form of bribery but rather a tip. This is always in order to ensure that you participate with them in the crime, for fear that their matter will be exposed, or they will be reported. What is more severe is when you leave the room for others to commit crime, and then you watch him from afar even if he is assured that no one will see him, you surprise him and threaten him with payment, arrest him, or report him.
O community of people, who believed by their tongue, and belief did not enter their hearts, do not back-bite Muslims, and do not search for their faults, for if anyone searches for their faults, Allah will search for his fault, and if Allah searches for the fault of anyone, He disgraces him in his house." 14 If the sources and means of committing crimes throughout the ages have been numerous, the sources and means in our time are more numerous, and its effects are more powerful and dangerous to help the offenders and friends of the evil, such as video, satellite broadcasting, the Internet and mobile phone in Spreading criminal behaviors, encouraging them and promoting them. This results on thinking of the people to underestimate in view of their need to use these modern innovations and modern technologies and their dependence on them in their daily lives. On the other hand if a person does not come under the effects of these modern means and guards himself against the negative impact of these devices and uses them to benefit according to the principles of the Sharī'ah then he becomes safe from being preyed. Some of the minor and major sins that occur through these modern means especially in the younger generations of boys and girls, from neglecting the prayers, imitating the unbelievers and infidels, speaking obscenities, correspondence between young men and women, quarrels, looking at faults, hearing evil things, falling into ugly deeds, and vile traits, enjoying watching sins, and being happy with them, wasting time in collecting and watching them, and participating in publishing and sharing them. there is for him its reward and the reward of those who act upon it after him without anything being diminished from their rewards. And whosoever introduces an evil practice in Islam, will shoulder its sin and the sins of all those who will act upon it, without diminishing in any way their burden" 15 This Ḥadith explicitly condemns and denounce the act of seducing other people to commit a crime or sin, publishing or spreading any illegal thing with intent to chastise that thing to get followed and acted by others. Spreading and disseminating scandalous news and gossip is a widespread social evil. Particularly in the modern era it is carried out through computer systems, mobile phone and other means. Allah says in the Holy Qur'ān, " published broadcast among the Believers, will have a grievous Penalty in this life and in the Hereafter: Allah knows, and ye know not." 17 "The direct interpretation of the verse, in the context in which it occurs, is this: Those who cast aspersions, propagate evil, publicize it and bring Islamic morality into disrepute deserve punishment. The words in the text, however, comprehend all the various forms that can be employed for the propagation of evil. These include actual setting up of brothels, production of erotic stories, songs, paintings, plays and dramas as well as all kinds of mixed gatherings at clubs and hotels, which induce the people to immoralities. The Qur'ān holds all those who resort to such things as criminals, who deserve punishment not only in the Hereafter but in this world as well. Accordingly, it is the duty of an Islamic government to put an end to all such means of propagating immorality. Its penal law must hold all those acts as cognizable offenses which the Qur'ān mentions as crimes against public morality and declares the offenders punishable. "You do not know": You do not visualize the full impact of individual acts on society as a whole: Allah knows best the number of people who are affected by these acts and their cumulative effect on the collective life of the community. You should accordingly trust in Him and do all you can to eradicate and suppress the evils pointed out by Him. These are not trivial matters to be treated lightly; these have very serious repercussions, and the offenders must be dealt with severely". 18 Commenting those who wage war against Allah and His messenger and strive to make mischief in the land is only this, that they should be murdered or crucified or their hands and their feet should be cut off on opposite sides or they should be imprisoned; this shall be as a disgrace for them in this world, and in the hereafter they shall have a grievous chastisement" 22 Islam is not only prohibits the practice of terrorism, but bars its support in various forms such as incitement, financing, sheltering it and propagating it. Islam encourages its followers to work together for the common good and not to work together in inappropriate matters. Cooperation in good deeds will increase good and virtue in society. The only way to discourage evil from spreading in society is when people don't work together for it when they don't support it; they refuse to help each other and through it they show disapproval of the act. This, in turn, will reduce the appearance of such evils in society. Based on these verses we may conclude that according to Sharī'ah, electronic forgery is the attempt of falsehood which changes originality of something in the computer system. With regard to Internet fraud, the textual evidence necessary for the prohibition of fraud and forgery is found in the Qur'ānic verses and Prophetic Ḥadīth that forbid fraud and deception and criminalize the acquisition of property by illegal means. Article 13: Section 13 of PECA 2016, is with regard to making, obtaining or supplying device for use in offense. Anyone who introduces a sin or crime by any means with malafide intention will receive its sin and a burden of sin equivalent to that of those who follow it and will continue even after the death of that person no matter how many years or centuries pass. killed unjustly, but the share of (this offence of his also) falls upon the first son of Adam, for he was the first to introduce killing". 34 Article 14: Section 14 of PECA 2016 prohibits the unauthorized use of identity information and provides punishment for the culprit. The Sharī'ah protects identities not only through general rules, but also based on specific rules and regulations (rulings). Laws of theft, forgery, fraud, espionage, and disclosure of secrets, as well as the sanctity of property apply to at least some forms of identity theft. In addition, other Sharī'ah laws such as the sacredness of homes, the inviolability of human honor, the prohibition of espionage and the prohibition of confidential disclosure can also be used to reduce identity theft in the digital age. Following the rule of Sharī'ah with regard to unauthorized use of identity information, we can say that from the Islamic law perspective keeping secrets is a matter of utmost importance. "Messenger of Allah (SAW) sent me on an errand." She asked, "What was it?" I said, "It is a secret." My mother said; "Do not disclose to anyone the secret of Messenger of Allah (SAW)." Anas (May Allah be pleased with him) said to Thabit (May Allah be pleased with him): By Allah, were I to tell it to anyone I would have told you." 35 This Prophetic tradition indicates that keeping a secret was essential in early Islamic period. Thus, keeping secrets includes everything such as confidential information, private matters, conversations, correspondence, etc.). Since, the identity thieves also work under this umbrella, therefore, it can be said that the rule of secrecy can apply to their activities, at least in some cases. what rankles in your mind and that you disapprove of its being known to the people." 43 Likewise, unauthorized interception has fostered digital financial fraud which can sometimes lead to suicide. Thus, the consequences of unauthorized interception on the victims can be verified through Islamic injunctions that prohibit theft, fraud, suicide and anything that can lead to it.
interception discussed previously in section 17 and all the Qur'anic verses and Prophetic traditions provided with respect to the offence of unlawful interception are relevant with regard to Cyber Stalking.
This act does not firstly cover the blasphemy materials against any religion, and secondly it only talks about removing the objectionable materials and does not entail the punishment of the offender. With regard to "pornography," the source quotes Section 19 (1) (a) (b) (c) and Section 34. Section 19 1 (a) (b) (c) deals primarily with the offense against a person's modesty, to which a person face is attached on sexually implied image. It is not stated anywhere in this section or in any other part of the act that those who upload and share real pornography will be considered to have committed a crime and will therefore be punished. Section 34 authorizes only the Authority (PTA) to ban any substance including that which is contrary to "public morals or decency" but does not consider it a punishable crime.