In the digital age, where communication is increasingly conducted via WhatsApp messages, emails, and social media, the importance of digital evidence in legal proceedings has grown exponentially. In Pakistan, the Qanoon-e-Shahadat Order, 1984 governs the admissibility of evidence in courts, including digital formats. However, understanding the legal standing of such evidence, especially WhatsApp chats, emails, and CCTV footage requires a deep dive into evolving judicial attitudes, statutory interpretation, and the role of expert witnesses.
Legal Framework Under Qanoon-e-Shahadat Order, 1984
The Qanoon-e-Shahadat Order (QSO), 1984, originally did not specifically address digital evidence, as it was enacted in a time when digital communication was not prevalent. However, with the passage of time and the development of jurisprudence, courts in Pakistan have begun to accept electronic records under the principles of documentary evidence.
Key Provisions Relevant to Digital Evidence:
- Article 2(q): Defines “document” to include electronic records.
- Article 73: Refers to the production of documents and includes electronic forms.
- Article 46: Talks about the opinion of experts, which includes IT experts when interpreting digital evidence.
Additionally, the Electronic Transactions Ordinance (ETO), 2002complements the QSO by legally recognizing digital documents and signatures. Section 3 of the ETO confirms that no information shall be denied legal effect solely because it is in electronic form.
Admissibility of Digital Evidence
Qanun-e-Shahadat Order, 1984 recognizes the role of modern technology in evidence presentation.
- Article 164 of the Qanun-e-Shahadat Order, 1984 allows the court to admit any evidence that has become available because of modern devices or techniques. This includes WhatsApp messages, emails, CCTV footage, and other forms of electronic data.
Electronic evidence is considered documentary evidence. The court in NUMAN alias NOMI and others Versus The STATE, 2023 PCRLJ 1394, has clarified that audio/video clips maintain a dual character as an electronic document as well as a material thing (physical evidence). The court held that such clips should be presented through a witness who recorded or watched it and that bringing such evidence on record through the complainant and the victim is permissible, particularly if certified as non-tempered and non-edited.
WhatsApp Messages and Emails
WhatsApp messages and emails are commonly presented as evidence in various cases.
- In TAIMOOR MIRZA Versus MALIHA HUSSAIN and others, 2020 CLC 1029, the Sindh High Court held that emails and other digital communications are admissible as documentary evidence, subject to the establishment of their integrity and authenticity. The court emphasized that a witness could be confronted with their previous statements, including digital communications made through email or social media, during cross-examination.
CCTV Footage
CCTV footage is increasingly used in criminal investigations and trials.
- In Muneer Khan and another Versus The STATE and another, 2022 MLD 157, the Islamabad High Court affirmed the admissibility of CCTV footage under Article 164 of the Qanun-e-Shahadat Order, 1984. The court emphasized that the person who prepared the CCTV footage should appear before the court and testify to its authenticity.
Role of IT Experts
IT experts play a crucial role in authenticating and interpreting digital evidence.
- Article 59 of the Qanun-e-Shahadat Order, 1984 states that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand -writing or finger impressions , the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of hand -writing or finger impressions [, or as to authenticity and integrity of electronic documents by or through an information system] [or as to the function ing, specifications, programming and operations of information systems, are relevant facts.
- The Punjab Forensic Science Agency Act, 2007 and The Balochistan Forensic Science Agency Act, 2015 also designates experts in forensic material under Article 59 of the Qanun-e-Shahadat Order, 1984.
Their responsibilities include:
- Authentication: Verifying the authenticity and integrity of digital evidence to ensure it has not been tampered with.
- Interpretation: Providing expert opinions on the technical aspects of digital evidence, such as IP addresses, metadata, and digital signatures.
- Explanation: Explaining complex technical concepts to the court in a clear and understandable manner.
Court’s Attitude Towards Digital Evidence
The courts in Pakistan have generally adopted a progressive approach towards the admissibility of digital evidence, recognizing its importance in modern legal proceedings.
- In Umair Ashraf v. The State, 2008 MLD 1442, the Sindh High Court held that evidence collected through modern devices is admissible under Article 164 of the Qanun-e-Shahadat Order, 1984, subject to the court’s discretion.
- However, the courts also emphasize the need for proper authentication and verification of digital evidence to ensure its reliability.
- In Rana MUHAMMAD YOUSAF KHAN ADVOCATE Versus The STATE and 3 others, 2024 P Cr. L J 1143, the Lahore High Court quashed trial proceedings due to the audio CD presented as evidence not being original and its authenticity not being forensically verified. The court emphasized the importance of adhering to established evidentiary standards when using modern devices as evidence, reiterating the need for forensic analysis and proper chain of custody.
Anti-Terrorism Act, 1997
- Section 27B of the The Anti-Terrorism Act, 1997 states that a person accused of an offence under this Act may be convicted on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to in Article 164 of the Qanun e Shahadat, 1984. However, the court must be fully satisfied as to the genuineness of such evidence.
Prevention of Electronic Crimes Act, 2016
The Prevention of Electronic Crimes Act, 2016 addresses cybercrimes, and its sections 20, 21, and 24 relate to offences that involve digital evidence.
Conclusion:
TheQanun-e-Shahadat Order, 1984, along with other relevant laws, provides a legal basis for the admissibility and evaluation of digital evidence in Pakistan. The courts recognize the importance of such evidence but emphasize the need for proper authentication and verification. IT experts play a crucial role in ensuring the reliability and accuracy of digital evidence, assisting the courts in making informed decisions. With the increasing use of technology, the legal framework surrounding digital evidence continues to evolve to address new challenges and opportunities.