Young Legal Eagles - YEL

25/09/2026

25/09/2026

Section 34 PPC: Common Intention Cannot Be Presumed from Presence !

Jamshair v. The State — Criminal Petition No. 22-Q/2023, decided 25 August 2026

A significant reminder from the Supreme Court of Pakistan on the limits of vicarious liability under Section 34 PPC.

The Court held that Section 34 cannot be invoked merely because an accused was present at the place of occurrence, associated with the principal accused, or assigned a subsidiary role.

The prosecution must establish, through positive, cogent and confidence-inspiring evidence, that the criminal act was committed by several persons in furtherance of their common intention. Such intention may certainly be inferred from conduct and surrounding circumstances—but not from conjecture or surmise.

In the case, Jamshair was alleged to have been armed with a Kalashnikov and to have aimed it at the complainant and an eyewitness, while a co-accused allegedly fired the fatal shot. Yet, he neither fired at the deceased nor caused injury to the eyewitnesses.

The Supreme Court found that the evidence did not safely establish that he shared the intention to commit murder or that his conduct was proved to be in furtherance of such intention. His relationship with the absconding co-accused and the alleged general/subsidiary role could not substitute for proof of common intention.

The important distinction

This judgment does not mean that every accused must personally fire the fatal shot before Section 34 can apply.

Section 34 is precisely designed to impose joint liability where a criminal act is committed pursuant to a proved common intention.

The real question is therefore not:

“Who fired the shot?”

but:

“What evidence proves that this particular accused shared the intention to commit the offence and participated in furtherance of that intention?”

This distinction is crucial.

It also harmonises with the earlier jurisprudential position that mere presence is insufficient, while presence accompanied by a proved overt act facilitating the offence may justify application of Section 34. The earlier Jamshair case, reported as 2024 PCr.LJ 343, illustrates the other side of the evidentiary spectrum, where armed presence, threats and conduct facilitating the murder were treated as circumstances establishing common intention.

Thus, Section 34 is not a doctrine of guilt by association; it is a doctrine of liability upon proof of common intention.

For the prosecution, it demands an evidentiary bridge between the accused and the common criminal design.

For the defence, it demands that every accused be assessed individually, rather than through the conduct, relationship or alleged role of another.

And for the trial court, it requires a clear answer to one fundamental question:
Has common intention been proved—or merely inferred because the accused happened to be there?
Presence may be evidence.
Association may be a circumstance. But neither, standing alone, is common intention.

25/09/2026

BAR & BENCH — CORDIALITY AND PROFESSIONAL ETHICS

Learned Hand’s enduring observation in Brown v. Walter, 62 F.2d 798, 800 (2d Cir. 1933), deserves reflection:

“Justice does not depend on legal dialectics so much as upon the atmosphere of the court room, and that in the end depends primarily upon the judge.”

The observation carries a profound lesson for both Bench and Bar. The administration of justice is not merely a mechanical exercise in applying legal rules; the atmosphere in which justice is administered matters.

Judicial authority must therefore be exercised with restraint, courtesy and fairness. Equally, an advocate may vigorously disagree with an order or judicial approach without converting professional disagreement into personal confrontation. Respect is due to the Chair and the office, irrespective of the person occupying it.

The Pakistan Legal Practitioners and Bar Councils Rules, 1976, Chapter XII recognise that professional independence must coexist with the courtesy and respect due to the judge’s station—the proper foundation of cordial relations between Bench and Bar.

The principle is reciprocal. In R.K. Garg, Advocate v. State of Himachal Pradesh, (1981) 3 SCC 166, the Court described Bar and Bench as integral parts of the mechanism administering justice and emphasised the importance of courtesy and cultured professional conduct.

The Supreme Court of Pakistan has likewise treated abuse of court process and conduct unbecoming of an advocate as matters of professional misconduct. Syed Ali Zafar v. Bahria Town (Pvt.) Ltd., 2016 PLJ SC 90.

More recently, P. Abrar Hussain v. VIIth ADJ South, Karachi, 2025 SHC KHI 523, reiterated the advocate’s role as an officer of the Court and the obligation to observe the professional standards prescribed by Chapter XII.

Bar and Bench are two wheels of the same chariot of justice. Good Bars contribute to good Benches, and good Benches help cultivate good advocates. The relationship is reciprocal.

Differences in competence, temperament and approach are inevitable. They should, however, be addressed through dialogue, professional mechanisms and mutual respect—not confrontation or rowdyism.

Perhaps legal education should give greater emphasis to professional morality, courtroom ethics and judicial ethics, reinforced through continuing professional training.

Cordiality is not weakness.
Disagreement is not disrespect.
Authority is not arrogance.

Ultimately, the courtroom belongs neither to the Bar nor the Bench.
It belongs to justice.

16/09/2026

When Suspicion Meets Evidence — 2026 SCMR 1261 — Sikandar Ali Lashari and another v. The State.

The Supreme Court of Pakistan, in Sikandar Ali Lashari and another v. The State (2026 SCMR 1261), has reaffirmed a fundamental proposition of criminal jurisprudence: a grave allegation cannot substitute for legally admissible, reliable and confidence-inspiring evidence.

The case involved a murder carrying the death penalty. Yet the prosecution evidence, when subjected to judicial scrutiny, revealed significant evidentiary gaps.

First — digital evidence must be authenticated.
Messages allegedly exchanged between the deceased and the daughter of one appellant were relied upon to establish motive. But the phones were never taken into possession or produced in evidence, nor did any telephone-company official authenticate the messages. The Court therefore declined to treat them as reliable proof.

The same caution applied to the CDR evidence. A photocopy was produced without proper authentication; no relevant telephone-company official appeared; secondary evidence had not been judicially authorised; ownership of the SIM was not established; and there was no CDR or recording demonstrating communication between the alleged mastermind and the assassins.

Digital evidence is not self-proving merely because it is digital.

Second — a confession made to police while in custody has no evidentiary value. The Court reiterated the settled exclusionary rule concerning custodial confessions to police.

Third — forensic evidence cannot cure foundational defects. Fi****ms allegedly connected with the murder were recovered from the house of an absconding co-accused, not from the appellant’s exclusive possession. A positive firearms-examination report therefore could not, by itself, establish the appellant’s criminal participation.

Fourth — motive and conspiracy must be proved, not presumed. The alleged motive emerged after the FIR, while the prosecution’s own witness who could allegedly establish its factual foundation—the appellant’s cook—was never produced.

Fifth — identification evidence requires safeguards. Where the FIR contained no meaningful description of the unknown assailants, and the identification parade was conducted in court premises without establishing that the accused’s face had remained concealed, the Court found the identification unsafe.

The broader lesson is profound:

Criminal adjudication is not a contest between suspicion and innocence. It is an examination of whether the prosecution has converted suspicion into admissible, credible and legally sufficient proof.

The Supreme Court once again affirmed the cardinal rule: even a single circumstance creating reasonable doubt is sufficient to entitle an accused to acquittal.

In capital cases especially, the law cannot afford evidentiary shortcuts. The gravity of the crime may demand the highest degree of investigation; it cannot lower the standard of proof.

13/09/2026

The Anatomy of Truth: Splanchnology as the Silent Anchor of Forensic Pathology!!!

By Adv. Zulfikar Khan Nasir
Former Judge • Amicus Curiae • Forensic Criminologist • Criminal Defence Mentor

In the theater of criminal investigation, external testimony can waver, witness memories fade, and surface physical evidence can sometimes prove ambiguous. Yet, the human body retains an unalterable ledger of its final moments. When a life is cut short under suspicious circumstances, the pursuit of truth inevitably leads inward. Forensic medicine relies heavily on the detailed study of the body's internal cavities and visceral structures—a specialized discipline known as splanchnology.
For the criminal defense advocate and the forensic investigator alike, a profound grasp of visceral anatomy is not merely an academic pursuit; it is an indispensable tool for scrutinizing autopsies, interpreting post-mortem reports, and testing the integrity of the prosecution's medical narrative.
Mapping the Internal Landscape
Splanchnology focuses squarely on the viscera—the vital organs tucked away within the protective enclosures of the torso. These are anatomically categorized into three principal compartments:

* The Thoracic Compartment:

Enclosing the primary engines of circulation and respiration, specifically the heart and lungs.

* The Abdominal Compartment: Housing a complex network of metabolic, digestive, and filtration organs, including the liver, stomach, intestines, pancreas, spleen, and kidneys.

* The Pelvic Compartment:

Containing the urinary bladder and reproductive organs.
During a medico-legal autopsy, these regions are systematically opened and inspected. Each organ acts as a potential archive, documenting disease states, toxic exposures, and structural trauma.
Key Medico-Legal Implications
The forensic examination of the viscera serves several critical functions in a criminal inquiry:

* Establishing the True Cause of Death:

External injuries often tell only part of the story. Internal examination allows pathologists to differentiate between primary natural pathology (such as an undiagnosed cardiac arrest or advanced pulmonary disease) and homicidal trauma.

* Uncovering Hidden Toxicology:

When foul play involving chemical substances or lethal compounds is suspected, the digestive tract and metabolic organs become the primary focus. Preserving specific portions of the stomach, intestines, liver, and kidneys enables toxicologists to isolate poisons, drugs, or their metabolic byproducts. This is routinely supplemented by collecting biological fluids like blood, urine, and bile to build a comprehensive toxicological profile.

* Evaluating Blunt and Penetrating Force:

The physical impact of violence frequently transfers energy deep into the body. Examining internal organs reveals critical indicators of trauma, such as lacerations, tissue ruptures, and internal hemorrhaging, which help reconstruct the exact mechanics and severity of an assault.

The Legal Imperative

As a criminal defense mentor, I frequently emphasize to young advocates that an uncritical acceptance of autopsy findings can lead to grave miscarriages of justice. The meticulous dissection and histopathological study of tissue samples bridge the gap between raw physical evidence and courtroom argument.
Ultimately, splanchnology strips away the uncertainty of external appearances. By reading the silent language of the viscera, forensic science ensures that the physical realities of a case are brought to light with absolute scientific precision.

10/09/2026

2026 MLD 1244

The Juvenile Justice System Act 2018 classifies offences into three categories: minor, major, and heinous. Section 6(3) states that where a juvenile is arrested or detained for the commission of a minor or a major offence, he shall be treated as if he was accused of commission of a bailable offence. Section 6(4) provides that where a juvenile above the age of sixteen is arrested or detained for a heinous offence, the Juvenile Court may withhold bail if it finds reasonable grounds to believe that he is involved in its commission. In contrast, section 6(5) stipulates that any juvenile, regardless of age, who has been detained for a continuous period exceeding six months without conclusion of trial shall be released on bail, unless the delay is attributable to the juvenile himself. In Mehran, the Supreme Court ruled that while section 6(4) deals with the matter of bail on merits, section 6(5) provides a distinct statutory ground for bail based solely on delay. Since minor and major offences are treated as bailable under section 6(3), the rigour of section 6(5) applies only to juveniles accused of heinous offences. The Supreme Court further held that a juvenile detained for a heinous offence is entitled to post-arrest bail as of right, whether below or above sixteen years of age, if the requirements of section 6(5) are met.
Crl. Misc. No. 8607/B/2025
Muhammad Naveed Vs The State and another
2026 MLD 1244

09/09/2026

Postmortem Jurisprudence in Pakistan: From the Scalpel to the Screen

The dead cannot testify—but their bodies can speak through science.

In criminal trials involving unnatural death, the postmortem report is more than a medical document. It is a critical link between the crime scene, investigation, prosecution narrative and judicial truth.

In Waqas Ahmad v. The State (2025 SCMR 1087), the Supreme Court examined rigor mortis, gastric contents and the condition of the body against the prosecution’s timeline, demonstrating how forensic science can expose a fabricated narrative.

Rigor mortis, livor mortis, body cooling, gastric contents and decomposition may assist in estimating the time since death. But these are probabilistic indicators—not forensic clocks. Environmental and biological variables must always be considered.

Where medical findings materially contradict ocular testimony, courts must examine the conflict carefully. Science may corroborate testimony—but it may also destroy a false narrative.

The future lies beyond conventional dissection.

Digital autopsy (virtopsy) using CT/MRI imaging can preserve a three-dimensional record of fractures, internal injuries, foreign bodies and other findings, allowing later examination without disturbing the remains.

For Pakistan, the question is no longer whether technology belongs in forensic medicine, but how our evidentiary jurisprudence should accommodate it.

The body does not speak in words. It speaks through science. And justice must learn to listen from the scalpel, the microscope and increasingly, the screen.

07/09/2026

APOLOGY, ADMISSION AND THE LAW OF EVIDENCE

Should Remorse Be Treated as Proof of Liability?

By: Adv. Zulfikar Khan Nasir
Former Judge | Amicus Curiae | Forensic Criminologist | Criminal Defence Mentor | Honorary Researcher, International Federation of Neurolegal Sciences | Trustee – Mundi Societas Professionalum Ultimam ad Justitiam

Introduction

An apology has always possessed a significance extending beyond the courtroom. It can de-escalate conflict, restore dignity, facilitate reconciliation and, in appropriate cases, prevent litigation or contempt proceedings from becoming unnecessarily adversarial.

Yet the law has historically created an unfortunate disincentive to apologise. Where an apology may subsequently be introduced as evidence of liability, the person who most needs to communicate honestly may remain silent.

The central evidentiary question is therefore deceptively simple:

Does saying “I am sorry” prove that I am legally responsible?

Ordinarily, the answer should be no.

An expression of sympathy or remorse does not, by itself, establish duty, breach, causation, mens rea or legal liability. A person may sincerely regret an injury, death or unfortunate outcome without having caused it through negligence or wrongdoing.

The distinction becomes critical when the law treats an expression of regret as an implicit admission of culpability.

Apology Is Not Necessarily an Admission

The traditional distinction between sympathy and admission was recognised in Denton v. Park Hotel, Inc., 343 Mass. 524 (1962). The court treated an expression of regret following an accident as an expression of sympathy rather than an admission of responsibility. The underlying principle is compelling: ordinary human compassion should not automatically acquire incriminating evidentiary significance.

The same reasoning appears in Gallo v. Veliskakis, 357 Mass. 602 (1970), where expressions of regret and concern were distinguished from statements establishing responsibility.

The logic is straightforward.

“I am sorry that this happened” is not equivalent to “I caused this to happen.”

The former describes a state of mind; the latter asserts a fact capable of bearing upon legal responsibility.

The Problem of the “Self-Critical Apology”

The evidentiary difficulty begins when an apology contains language such as:

“I should have prevented it.”

“I failed to recognise the danger.”

“It was my fault.”

Traditional evidentiary doctrine has often treated such statements as admissions because they appear to cross the boundary between sympathy and factual acknowledgment.

In Winship v. 326 Mass. 380 (1950), for example, an expression of regret accompanied by the statement that the accident was “all my fault” was treated as an admission rather than merely an expression of sympathy.

More recently, Nunes v. Duffy, 101 Mass. App. Ct. 460 (2022) similarly distinguished between the apologetic expression and the accompanying admission of fault. The court treated “I’m so sorry” differently from “It was all my fault.”

This approach reflects a conventional evidentiary assumption:

The more self-critical the apology, the greater its supposed probative value concerning liability.

But that assumption deserves critical examination.

Remorse Is Not Proof of Culpability

A person may feel genuine remorse even where the law would impose no liability.

A physician may comply with the applicable standard of care and nevertheless tell a grieving family:

“I am deeply sorry. I wish I could have prevented this.”

A driver may regret an accident notwithstanding the absence of negligence.

A public authority may apologise for harm suffered by a citizen without conceding that the harm resulted from unlawful conduct.

In each example, the emotional response does not logically establish the legal elements of liability.

Indeed, the relationship may operate in the opposite direction: a blameless person may be deeply remorseful, while a culpable person may express no remorse whatsoever.

Consequently, the evidentiary proposition that remorse implies culpability is logically unsound unless accompanied by independent evidence establishing the relevant legal elements.

Comparative Jurisprudence: Two Competing Models

Comparative jurisprudence reveals two fundamentally different approaches.

The first protects only expressions of sympathy while leaving admissions of fault admissible.

The Supreme Judicial Court of Maine adopted this position in Strout v. Central Maine Medical Center, 2014 ME 77, 94 A.3d 786. Maine’s apology statute expressly protected expressions of apology, sympathy and benevolence but preserved the admissibility of a “statement of fault.” The Court therefore held that a statement of fault contained within an otherwise sympathetic communication remained admissible.[1]

The second approach provides broader protection to the entire apologetic communication.

Ohio provides a particularly instructive example. In Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, the Supreme Court recognised the legislative purpose of allowing healthcare providers to apologise and console patients without fear that their statements would later be used as admissions of liability.[2]

The controversy became more pronounced in Stewart v. Vivian, 2017-Ohio-7526, where the Ohio courts considered whether an apology could encompass statements of fault. The jurisprudence recognised that the ordinary meaning of “apology” can include an admission of error accompanied by regret. Ultimately, Ohio’s statutory protection was interpreted broadly enough to encompass fault-containing apologetic statements.[3]

The contrast with Strout is instructive.

Strout says, in substance:

Protect the apology, but not the admission of fault.

Stewart represents the broader philosophy:

If the legislature intends to encourage genuine apologies, protection should not necessarily disappear merely because the apology contains self-criticism.

The Policy Behind Apology Protection

The modern apology statutes are based upon a practical insight: legal rules influence human behaviour.

If every expression of compassion carries evidentiary risk, lawyers may advise clients, doctors may avoid speaking to patients, institutions may issue sterile legal statements, and parties may lose an opportunity for early reconciliation.

The Supreme Court of Ohio in Estate of Johnson expressly recognised this policy: apology legislation is intended to permit healthcare providers to apologise and console victims of unexpected medical outcomes without fear that those communications will subsequently be used as admissions of liability.[4]

The law therefore faces a difficult balance.

On one side lies the traditional evidentiary principle that relevant admissions should not be artificially excluded.

On the other lies the public interest in encouraging candour, reconciliation and humane communication.

The Real Evidentiary Question

The better analytical approach is not to ask merely:

“Was an apology made?”

The court should ask:

1. What exactly was said?
2. Was the statement an expression of sympathy, regret or remorse?
3. Did it contain an objectively verifiable factual assertion?
4. Did it expressly admit breach, causation or responsibility?
5. What legal proposition is the prosecution or claimant seeking to prove through it?
6. Is the alleged inference logically supported, or is remorse merely being converted into presumed culpability?

This distinction is essential.

“I regret what happened” is fundamentally different from:

“I ignored the safety warning and that caused the injury.”

The first is an emotional response. The second contains a potentially material factual admission.

Relevance Is Not the Same as Emotional Persuasiveness

Evidence law should guard against a particularly subtle danger: evidence may be emotionally powerful without being logically probative.

An apology can profoundly influence a fact-finder because it sounds like an acknowledgment of wrongdoing. But emotional impact cannot substitute for proof.

The fact-finder must not reason:

“He apologised; therefore, he must have been negligent.”

That is an evidentiary non sequitur.

Liability must ordinarily be established through evidence directed toward the legally relevant elements—not through the psychological assumption that only a guilty person would express remorse.

Implications for Pakistani Evidence Law

The comparative jurisprudence offers a useful framework for Pakistan.

Under the Qanun-e-Shahadat Order, 1984, an admission derives its evidentiary significance from what it actually proves. The mere fact that a person expresses regret should not automatically transform the communication into an admission of every fact necessary to establish civil or criminal liability.

The distinction between an admission of a fact and an emotional response to an event therefore deserves careful judicial attention.

Particularly in criminal proceedings, an apology should not be treated as a substitute for proof of the ingredients of the offence. A statement amounting to a specific admission of a material fact may, of course, attract the applicable rules of evidence. But an expression of remorse, sympathy or regret should not acquire incriminating force merely because the fact-finder considers it morally significant.

Conclusion

The law should not inadvertently create a paradox in which the more humane a person is, the more evidentially vulnerable that person becomes.

An apology can be an act of dignity without being an admission of liability.

Remorse can coexist with innocence.

Regret can coexist with due care.

Compassion can coexist with absence of fault.

The crucial evidentiary distinction is therefore between “I am sorry for what happened” and “I admit the legally material facts that make me responsible for what happened.”

The first should not be converted into the second by inference alone.

A mature law of evidence should encourage truth, reconciliation and responsible communication while preserving the requirement that legal liability be proved by legally relevant evidence—not presumed from the human capacity to regret.

The ultimate principle may therefore be stated simply:

An apology is evidence of an apology. It becomes evidence of liability only when the lawfully admissible content of the communication independently establishes a material fact relevant to liability. Remorse, by itself, is not culpability.

05/09/2026

BEYOND THE SCREEN

Rethinking Digital Evidence, Cell Towers, and the Human Cost of Technological Illusion in Criminal Trials !!!

Adv. Zulfikar Khan Nasir
Former Judge • Amicus Curiae • Forensic Criminologist • Criminal Defence Mentor • Honorary Researcher (IFNLS) • Trustee – (MSPUI)
📧 [email protected] | 📱 +92 300 7600232 • +92 334 4551214

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Introduction

Criminal justice has entered an age of invisible witnesses.

Every call, message, GPS interaction, Wi-Fi connection, Bluetooth pairing and digital transaction may leave behind an electronic footprint. Consequently, Call Detail Records (CDRs), Cell Site Location Information (CSLI), geo-fencing data, smartphone extractions and wearable-device artefacts are increasingly finding their way into criminal trials.

These technologies can be extraordinarily useful. But technological sophistication carries a dangerous psychological temptation: the belief that whatever appears on a screen must be accurate.

A colourful map, a precise-looking timestamp or a pulsing red location marker can create an impression of scientific certainty. Yet an algorithm is not a witness, a database is not infallible, and a digital trace does not automatically establish human conduct.

The judicial question therefore cannot simply be:

What does the device show?

It must be:

What exactly does the data prove, how reliably does it prove it, and what alternative explanations remain?

The distinction is fundamental because, in a criminal trial, liberty cannot be sacrificed upon technological illusion.

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1. The Smartphone: A Digital Shadow, Not a Digital Truth

The modern smartphone is an extraordinary repository of human activity. Depending upon the device and circumstances, forensic examination may reveal messages, application data, browser history, photographs, location information, cloud synchronisation, Wi-Fi connections, Bluetooth interactions and deleted or residual data.

But volume is not reliability.

Digital evidence is only as trustworthy as the processes through which it is identified, preserved, acquired, examined, interpreted and presented.

A sound mobile-forensic methodology ordinarily requires a disciplined sequence:

Identification → Preservation → Acquisition → Examination/Analysis → Interpretation → Reporting

Any weakness in this chain can affect the evidentiary value of the final product.

The investigator must therefore establish:

* who seized the device;
* when and from where it was seized;
* whether its condition was documented;
* how it was isolated from networks;
* how its contents were acquired;
* whether the acquisition was forensically sound;
* what tools and methodology were employed;
* whether the original data remained preserved; and
* whether the resulting report accurately distinguishes raw data from expert interpretation.

The central principle is simple:

An extracted file is not automatically a proven fact.

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2. Cell-Tower Evidence: The Myth of the “Dot on the Map”

Perhaps nowhere is technological overconfidence more dangerous than in cellular-location evidence.

A CDR may demonstrate that a particular SIM or device communicated through a particular cell site at a particular time. But that does not necessarily establish that the accused was physically present at the crime scene.

A cell tower is not a GPS beacon.

Its effective coverage may depend upon tower configuration, antenna orientation, terrain, buildings, network architecture, signal propagation, network congestion, sectorisation and the availability and behaviour of neighbouring cells.

The device may connect to a cell that is not geographically the closest cell.

Therefore, the proposition:

“The accused’s phone connected to Tower X; therefore the accused was at the crime scene”

contains a critical logical gap.

Pakistani case law has recognised that a CDR is not conclusive evidence for determining and establishing the identity or exact presence of a person at a particular locale.¹

At most, cellular evidence may place a device or SIM within an area served by particular network infrastructure, subject to the technical characteristics and limitations of that network.

It does not, by itself, establish:

1. the precise location of the handset;
2. that the handset was physically with the accused;
3. that the accused personally used the handset; or
4. that the accused participated in the offence.

A cellular association is not an identification of a human being.

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3. Geo-Fencing: A Net for Investigation, Not a Verdict

Geo-fencing can be an effective investigative technique. It may identify devices that were active within a defined geographical area during a specified period.

But its evidentiary significance must not be overstated.

A geo-fence captures devices, not offenders.

Within a defined area may be residents, workers, commuters, delivery riders, emergency personnel, visitors and entirely innocent bystanders.

The presence of a device inside a geo-fenced area may therefore generate an investigative lead, but it does not automatically establish criminal participation.

The danger arises when an investigative filter is transformed into proof of guilt.

A digital net may identify thousands of devices; the prosecution must still establish which human being committed the crime and how the digital evidence connects that person to the criminal act.

Otherwise, an investigative tool risks becoming a mechanism by which the accused is effectively required to explain an otherwise innocent digital presence.

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4. Wearables and the Internet of Things: The New Digital Witnesses

The evidentiary frontier is expanding beyond smartphones.

Smartwatches, fitness trackers, wireless earbuds, vehicle systems and other Internet-of-Things devices can generate valuable forensic artefacts.

Even devices such as Apple AirPods may leave ecosystem-related traces, including Bluetooth identifiers, pairing information, connection events and associated telemetry.

Such artefacts may sometimes assist in reconstructing a timeline.

For example, a connection or disconnection event may become relevant when examining an alleged journey, meeting, vehicle movement or alibi.

But sophisticated technology does not eliminate the need for elementary forensic caution.

Investigators and courts must consider:

* time-zone differences;
* clock synchronisation;
* device clock drift;
* duplicated or shared accessories;
* account sharing;
* automated background connections;
* incomplete logs;
* software updates; and
* limitations of the particular extraction methodology.

A timestamp is evidence of a recorded event.

It is not necessarily proof of the human intention behind that event.

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5. Digital Evidence Has Two Questions: Authenticity and Meaning

One of the most important distinctions in digital-evidence litigation is between:

“Is this data authentic?”

and

“What does this authentic data actually prove?”

Even reliable data can be given an unreliable interpretation.

A genuine CDR may establish a communication.

It does not necessarily establish who was holding the phone.

A genuine location record may establish a device’s interaction with a network.

It does not necessarily establish the precise physical location of its owner.

A genuine digital message may establish that a message existed on a particular account or device.

It does not automatically establish who physically authored it.

Thus:

Authenticity does not equal culpability.

The court must separately examine the evidentiary inference sought to be drawn from the authenticated material.

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6. The Legal Gatekeeping: Digital Evidence Must Be Proved, Not Presumed

The Qanun-e-Shahadat Order, 1984 recognises evidence becoming available through modern devices, while the law governing electronic evidence requires the court to examine its relevance, authenticity and manner of proof.²

The Supreme Court in Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others, PLD 2019 SC 675, laid down important safeguards concerning audio and video evidence, including proof of genuineness and absence of tampering or doctoring, and emphasised that even when such material is allowed into evidence, it must still be proved in accordance with the law of evidence.³

The jurisprudence therefore does not support a proposition that electronic material becomes trustworthy merely because it has been extracted from a computer, mobile phone or telecommunications system.

The courtroom should never become a place where technological appearance substitutes for legal proof.

The relevant questions include:

* Was the material lawfully obtained?
* Was the original source identified?
* Was the device or system properly secured?
* Was the chain of custody maintained?
* Was the extraction methodology reliable?
* Is the expert competent to interpret the material?
* Are the timestamps reliable and synchronised?
* Does the evidence identify a person—or merely a device?
* Are there innocent or alternative explanations?
* Does the digital evidence independently connect the accused with the criminal act?
* Is the inference consistent with the remainder of the prosecution evidence?

The Supreme Court’s jurisprudence on electronic evidence consequently calls for **authentication, integrity and lawful proof—not technological reverence.**³

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7. The Defence Lawyer’s Digital-Evidence Checklist

For the criminal defence, digital evidence should never be approached merely as a technical report to be accepted or rejected wholesale.

It should be deconstructed.

Identity

Does the evidence identify the accused—or merely a SIM, account, device or IP address?

Location

Does it establish precise physical presence, or merely association with a network, tower or geographical area?

Possession

Who actually controlled or possessed the device at the relevant time?

Integrity

Has the original data remained intact from seizure through analysis?

Methodology

What forensic tool, version, procedure and extraction method were used?

Chronology

Are the relevant systems synchronised? Could timestamps have been affected by time zones, clock drift or system settings?

Chain of Custody

Who handled the device or data, when, where and for what purpose?

Interpretation

Is the conclusion contained in the forensic report actually supported by the underlying data?

Alternative Explanation

Can the same digital circumstance reasonably exist without the accused committing the offence?

This last question may be decisive.

Criminal evidence must exclude reasonable doubt; it is not enough that technology makes the prosecution’s theory appear plausible.

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8. The Human Cost of Technological Illusion

There is a deeper constitutional dimension to this discussion.

A technological error in a commercial dispute may cause financial loss.

A technological error in a criminal trial can take away a person’s liberty—or life.

That is why the courtroom must resist automation bias: the unconscious tendency to give excessive weight to information merely because it appears to have been generated by a machine or sophisticated system.

The law does not require the court to distrust technology.

It requires the court to understand its limits.

The proper judicial attitude is neither technological scepticism nor technological worship.

It is forensic neutrality.

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Conclusion: Look Beyond the Screen

Technology will continue to evolve. Tomorrow’s courtroom may contain evidence from devices that today do not even exist.

But one principle should remain unchanged:

The sophistication of the evidence does not determine the strength of the proof.

A smartphone is not its owner.

A SIM card is not a person.

An IP address is not an identity.

A cell tower is not a precise address.

A geo-fence is not a crime-scene identification.

A timestamp is not human intention.

And a digital trace is never, by itself, synonymous with guilt.

The ultimate purpose of criminal adjudication is not to achieve technological certainty, but to reach lawful, rational and reliable proof beyond reasonable doubt.

The modern criminal court must therefore learn to look beyond the screen.

Because when liberty is at stake, the question is not whether technology can tell a story—it is whether the evidence proves that story beyond reasonable doubt.

In criminal justice, pixels may inform the inquiry; only legally reliable proof can justify a conviction.

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Footnotes

1. See Muhammad Imran v. The State, 2020 SCMR 857; see also the jurisprudence recognising that a CDR is not conclusive for determining the identity or exact presence of a person at a particular place. The proposition has also been expressly applied in subsequent Pakistani case law concerning CDR evidence. (PLJ Law Site)

2. Article 164, Qanun-e-Shahadat Order, 1984. The provision recognises evidence made available through modern devices, subject to the court’s determination of its propriety and evidentiary value.

3. Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others, PLD 2019 SC 675. The Supreme Court laid down requirements concerning the genuineness, integrity and proof of audio/video evidence, including protection against tampering or doctoring and compliance with the law of evidence. (Case Law)

4. State v. Ahmed Omar Sheikh, 2021 SCMR 873. The Supreme Court’s jurisprudence concerning electronic/audio evidence emphasises that such material must satisfy the applicable requirements of legality, relevance, authenticity and proof before judicial reliance. The case is also subsequently cited in Pakistani jurisprudence dealing with electronic evidence. (Pak Legal Database)

5. Ali Raza v. The State, 2019 SCMR 1982. The Supreme Court’s jurisprudence concerning modern-device evidence reinforces the requirement that electronic material be subjected to the applicable evidentiary safeguards rather than receiving automatic evidentiary acceptance. (Case Law)

6. Article 14, Constitution of the Islamic Republic of Pakistan, 1973, concerning the dignity of man and privacy of home, is also relevant where digital investigation involves intrusive surveillance or acquisition of private communications. The jurisprudence concerning secret recordings has treated privacy and dignity as important constitutional considerations. (Pak Legal Database)