18/01/2025
Technical and Digital Evidence in Pakistan: A Legal Overview
1. Understanding Technical and Digital Evidence
Technical Evidence
Technical evidence encompasses information obtained through scientific, mechanical, or electronic means. Examples include:
Surveillance footage from CCTV or drones.
Forensic reports, including ballistics and DNA analysis.
Outputs from advanced tools such as GPS trackers or biometric devices.
Sim networks
Locations/Geo fencing
Digital Evidence
Digital evidence refers to data stored or transmitted in digital form, pivotal in cybercrime and terrorism investigations. Examples include:
Emails, social media messages, and digital photographs.
Computer logs, browsing history, and metadata from devices.
Data retrieved from cloud services or encrypted networks.
Live data on Internet
Deleted Data on Servers
2. Key Legal Framework in Pakistan
Pakistan’s legal landscape provides robust provisions for the admissibility and collection of technical and digital evidence through various laws:
a. Pakistan Penal Code (PPC)
The PPC lays the groundwork for general crimes, including those involving technical and digital evidence. The PPC is the General Law and provides punishment generally for offence commited and Police is authorized to collect data in investigation whenever an FIR is lodged.
b. Qanun-e-Shahadat Order, 1984 (QSO)
This law governs the admissibility of evidence, including modern forms. Key provisions include:
Article 46: Recognizes electronic records and documents as evidence.
Article 78: Facilitates the use of modern devices such as recordings and photographs.
Article 164 Modern Devices: The data collected through Modern Devices is admissible in Evidence. Now the courts can record statements through Skype, Viber Whatsapp as well. So is admissible in evidence
Article 59 : Expert opinion is relevant is Pakistani Evidence Laws and reports generated by Experts are Presumed to be true.
Article 129g : Withholding such best evidence will have negative impact on party withholding it. 129(g) of the QSO serves as a powerful tool in the judicial process, ensuring that parties are held accountable for their evidence presentation. It underscores the importance of transparency and diligence in legal proceedings, as the consequences of withholding evidence can significantly impact the outcome of a case
c. Prevention of Electronic Crimes Act (PECA), 2016
PECA addresses cybercrimes and outlines the handling of digital evidence. Critical sections include:
Section 29: Authorizes officers to collect, preserve, and analyse digital evidence.
Section 32: Allows forensic evidence from digital devices to be admissible in court.
Section 41: Mandates the retention of digital data for investigation purposes.
d. Anti-Terrorism Act (ATA), 1997
The ATA permits the use of technical and digital evidence to counter terrorism. Relevant provisions include:
Section 19: Admissibility of recordings, wiretaps, and other evidence in terrorism cases.
Section 19 c : The authorized officer can collect undercover operations with permission of court to collect evidence, Intercept, Record with the permission of Court.
e. Investigation of fair Trial Act 2013
The Investigation of Fair trial act also mandates the Investigation Agencies with the permission of Court to collect evidence Digital or technical and is admissible in evidence whenever produced in evidence having legal backing. If obtained through proper procedure and all requirements are fulfilled then data produced is admissible in Evidence.
f. Criminal Procedure Code (CrPC), 1898
The CrPC provides general procedural guidance, including the seizure of evidence under lawful warrants.
3. Evidence Collection by Law Enforcement Agencies
a. Digital Evidence Collection
Search and Seizure: Devices such as computers and mobile phones are seized under lawful warrants.
Digital Forensics: Specialized agencies like the FIA Cybercrime Wing, CTD, recover deleted data, email logs, and other critical information using advanced software.
Preservation: Maintaining the chain of custody ensures the integrity and authenticity of digital evidence.
b. Technical Evidence Collection
Wiretapping: Conducted under PECA or ATA for counterterrorism purposes.
Surveillance: Gathering evidence through CCTV footage, GPS tracking, and drone monitoring.
Scientific Analysis: Forensic labs analyze fingerprints, DNA, and ballistics to corroborate investigations.
4. Applications in Terrorism Cases
Case 1: Digital Evidence in Terrorism Financing
Evidence such as transaction logs, email trails, or cryptocurrency records is collected to trace illicit financing under PECA.
Case 2: Technical Evidence in Bomb Blast Investigations
CCTV footage helps identify suspects, while forensic analysis of ballistics connects recovered weapons to the crime scene.
Case 3: Social Media Evidence
Social media posts promoting violence or recruitment for terrorism are gathered under PECA to prosecute offenders.
5. Admissibility and Challenges
a. Admissibility Requirements
Evidence must be authenticated and free from tampering.
Maintaining a clear chain of custody is critical.
Forensic procedures must comply with international standards.
b. Challenges in Practice
Tampering Risks: Digital evidence is highly susceptible to alteration, necessitating rigorous verification.
Technical Expertise: Law enforcement often lacks the advanced skills required for digital forensics.
Jurisdictional Complexities: Cross-border cybercrimes pose challenges in evidence collection and enforcement.
Conclusion
Technical and digital evidence is indispensable in modern criminal investigations, particularly in counterterrorism efforts in Pakistan. Laws like PECA, ATA, QSO, and CrPC provide a comprehensive framework for the collection and admissibility of such evidence. However, addressing challenges like tampering risks, lack of expertise, and jurisdictional issues requires investment in training, advanced forensic tools, and international collaboration.
By leveraging these resources, Pakistan’s legal system can enhance its capacity to combat evolving threats and ensure justice.
