BASHARAT ALI CHAUDHRY Versus SABIR ALI

MUHAMMAD HASHIM KHAN KAKAR, J.--- Through this petition for leave to appeal the petitioner has assailed the order dated 13.01.2016 of the Lahore High Court, Lahore, whereby his appeal was dismissed and the order of acquittal of the respondents Nos. 1 and 2 by the Trial Court was upheld.

2.The prosecution case, in brief, is that FIR No. 77 dated 30.01.2004 was lodged by the petitioner against the respondents under sections 161, 4 20 and 409 P.P.C. read with section 5 of Prevention of Corruption Act, 1947 at Police Station ACE, Lahore, alleging that respondent No. 1, Sabir Ali, after accepting bribe from respondent No. 2, Sheikh Sadaqat Ali, caused fiscal loss to him and tape-record of conversation between them is available with him. It was also alleged in the FIR that accused Sabir Ali ASI through another person extended threats to the petitioner that in case he kept on pursuing the application he would be involved in different criminal cases. After regular trial, respondents/ accused were acquitted of the charges by the Trial Court, which order has been upheld by the High Court, hence this petition.

3.We have listened to the petitioner extensively, who primarily emphasized the existence of a clandestine audio recording that purportedly contains the conversation between the accused/respondents, Sabir Ali and Sheikh Sadaqat Ali, regarding the payment of a bribe in the amount of Rs. 5,000 /-. The prosecution lacks any additional independent witnesses or incriminating evidence. In this context, the critical inquiry that necessitates resolution is whether secret audio/video recordings that are intended to humiliate, disgrace, scandalize, outrage, insult, trap, or extort an accused or any individual are considered lawful and admissible under Pakistani law.

4.It is undeniable that the electronic evidence is capable of being admitted under the Qanun-e-Shahadat Order, 1984 ( "QSO 1984" ), Article 73 of the Electronic Transactions Ordinance, 2002 ( "ETO 2002" ), and has been classified as primary evidence. Nevertheless, its admissibility is contingent upon the fulfillment of stringent conditions, including the authentication of source-proof of the origin and method of obtaining the footage/recording as well as expert confirmation that the recording has not been tampered with or altered. In this regard, we are fortified by the judgment of this Court in the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675) wherein it was ruled that, " No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored ." The same dictum was also followed by this Court in the case of Ahmed Omar Sheikh v. State (2021 SCMR 873) .

5.The recording of a conversation in which you are a participant is generally not considered illegal wiretapping, even if the other person is oblivious. Nevertheless, it is illegal to record a conversation between two other individuals. The admissibility of audio recordings as evidence in court is subject to specific legal standards, and the courts are also obligated to evaluate the implications of such evidence in the context of established legal principles and ethical considerations. The evidence must be pertinent, duly obtained, and not infringe upon the rights of any of the parties involved. The act of secret recording is an offense in itself, and the complainant's illegality cannot serve as the solitary basis for convicting an accused.

6.It is important to note that the act of secretly collecting information about a private conversation of another individual without their consent in order to use it for the purpose of extortion or other illegal purposes is considered criminal conduct. The Prevention of Electronic Crimes Act, 2016 ( "PECA" ) also recognizes the act of unauthorized surveillance, despite the fact that section 389, P.P.C. (punishment for criminal intimidation) has been invoked in cases involving blackmail through concealed cameras. The unauthorized taking, capturing, or transmission of a person's image or voice with dishonest intent is explicitly criminalized in section 23 of PECA. It is important to note that there is a distinct distinction between (a) routine recordings that are made in the ordinary course of duty, and (b) recordings that are made "for the purpose of laying a trap to procure evidence." The latter, as established in Hakim Ali Bhatti v. Abdul Hakim (1986 CLC 1784) and subsequently reaffirmed in Ishtiaq Ahmed Mirza's case is punishable. The individual responsible for recording audio or video should not be the same person who has recorded the audio tape or video with the intention of establishing a snare to obtain evidence.

7.It is also important to note that when a complainant resorted to unlawful surveillance, he was transformed from victim to offender. Similarly, the individual against whom such audio and video were leaked is a victim, not an accused. In this regard, the case of Hamna Qaiser v. Chairman PEMRA (2024 MLD 243) can be cited, which established that any audio or video that lacks a source or proprietor cannot be considered as evidence in criminal proceedings against an accused individual. The inviolability of the dignity of man and the privacy of the house are guaranteed by Article 14 of the Constitution of the Islamic Republic of Pakistan, 1973. Recording a citizen's conversation in secret and subsequently using it as a weapon in judicial proceedings is a direct violation of this constitutional guarantee. It reduces society to a surveillance theater where the end justifies the means.

8.It is worth mentioning, the right of privacy is firmly embedded in Islamic jurisprudence and constitutional thought. The Holy Qur'an unequivocally commands: "Do not spy ( la tajassasu )" (Surah Al-Hujurat 49: 12). The injunction establishes the inviolability of the home and prohibit unwarranted surveillance. A well-known incident from the era of Hazrat Umar ibn al-Khattab (RA) reinforces this principle: it is reported that while patrolling at night, he observed light and heard voices from within a house and suspected wrongdoing. Upon entering by climbing over the wall, he found individuals engaged in drinking. When he reproached them, they responded that while they had committed one sin, he had violated multiple commands of Allah, in regards to spying, entering without permission, and not approaching through the proper door. Hazrat Umar (RA), acknowledging the breach, withdrew and refrained from imposing punishment. This incident illustrates that even in the face of suspected illegality, the sanctity of the home and the prohibition against surveillance without lawful authority remain paramount, thereby affirming privacy as a protected right that cannot be curtailed except strictly in accordance with law.

9.We are aware of the dictum established by this Court in the case of Zahir Jaffer (2025 SCP 220), in which the petitioner was sentenced to death under the doctrine of " Silent witness. " Nevertheless, it is important to note that the CCTV footage in Zahir Zakir Jaffar's case was obtained from a security system that was permanently installed and operated on a regular basis at the location where the offense was committed. The law enforcement agency extracted it from the original DVR and hard disk. The Punjab Forensic Science Agency conducted a forensic examination and certified that there was no editing as well as affirmative facial recognition. The evidence in the aforementioned case was forensically verified, authenticated, and primary. In the present circumstance, none of these characteristics are present. It is not the case that a CCTV camera that is stationary is performing its routine function. This is an instance in which a private individual secretly records a conversation with dishonest intent and subsequently attempts to convert his own criminality into the conviction of the respondents.

10.The issuance of a general license to every citizen engaging in warrantless surveillance of their fellow citizens would be equivalent to granting permission for conviction based on this type of evidence. It is certain that this will result in societal unrest and a significant erosion of its fundamental values. As a result, every citizen will be empowered to act as a prosecutor, technician, and witness, circumventing constitutional safeguards and investigative procedures. To imbue such illegality and unethical behavior with judicial legitimacy would be to violate our Constitution. It is impossible to justify private surveillance that violates the law, as it is in direct opposition to the principles of Islam and fundamental rights.

11.For the aforesaid reasons, we do not find any illegality, misreading or non-reading of evidence in the impugned judgements. Even otherwise, it is well settled principle of criminal jurisprudence that acquitted accused enjoys double presumption of benefit of doubt, one before the trial of the case and second after his acquittal and acquittal cannot be interfered without any strong and exceptional reasons which are lacking in the instant case. Consequently, this petition is dismissed and leave to appeal is refused.

JK/B-2/SC Petition dismissed.