Blackstone Law Journal

Volume 1 Issue 1

'Reforms in the Criminal Justice System of Pakistan'

September 2022

 Article 2

DIGITAL EVIDENCE AND THE ADMINISTRATION OF CRIMINAL JUSTICE

 BY

DR. GHUFRAN AHMED 

KHIZRA MALKA ZARYAB

FEHMIDA KANWAL

ABSTRACT

Digital evidence refers to generating, storing, or exchanging evidence in any electronic form. The role of digital evidence in the administration of criminal justice cannot be over-emphasized. Before 2002, Pakistan did not have any law related to the admissibility of digital evidence. However, acknowledging the rapid digitalization in all walks of life, the Electronic Transaction Ordinance, 2002(ETO) was promulgated. The ETO made certain changes in other laws including the Qanoon-e-Shahadat Order, 1984. Since then, digital evidence has become legally admissible as primary evidence. Nonetheless, criminal courts are still treating digital evidence just as circumstantial evidence requiring corroboration. This research aims to find out whether digital evidence can be relied upon as the sole evidence for holding a conviction in the absence of corroborations. Furthermore, this article makes some important recommendations and proposes reforms related to the sanctity of digital evidence regarding its storage, extraction, chain of custody, and authenticity.   

Keywords: Digital evidence, Administration of criminal justice, Reforms in the criminal justice system, Modern technique, Electronic document

A.    INTRODUCTION

Effective Criminal justice system is one of the basic requirements for upholding Rule of law, which underpins basic rights, civil liberties, and culpability mechanisms, and thus guarantees the equality of all individuals before the law. With an increase in modern technology and the complexities of cases, Pakistan’s criminal justice system needs reforms in some areas of the criminal justice system. To fill loopholes in the prevailing criminal justice system, criminal law should be molded with the requirement of time and with the needs of society. However, acknowledging the rapid digitalization in all walks of life reforms in digital evidence should be made for the speedy and efficient disposal of cases. Previously, Pakistani courts didn’t give much importance to digital evidence however due to the availability of digital devices/ information to the common person legislature and judiciary accepted the importance of digital evidence and promulgated the Electronic Transaction Ordinance, 2002(ETO) with changes in some other laws but still, digital evidence is not treated as primary evidence and a need corroboration with other material evidence in a court of law.[1] 

The ordinance made significant changes to the traditional law of evidence in civil and criminal trials. Essentially, the ordinance declared electronic or digital evidence to be primary. It also affirmed the originality of electronic documents, information, records, and transactions, dispelling the myth that digitally stored or exchanged information is hearsay evidence. While the adoption of ETO 2002 is commendable in that it clarified the status of digital evidence.[2]

 However, it appears that the evidence has been declared primary and capable of qualifying best evidence test to the extent of its admissibility, but its appreciation or weight is still left to the discretion of the court, based on some observations of judges of Pakistan's superior courts. As a result, it may not be incorrect to suggest that digital evidence is still corroboratory evidence in terms of weight.[3] 

B.    DEFINING ELECTRONIC EVIDENCE

The Council of Europe defined “electronic evidence” as

“Any evidence obtained from data contained in or created by any device, the operation of which depends on software or data stored or transmitted through a computer system or network (Council of Europe 2019)”.[4]

According to Electronic Transaction Ordinance, 2002 (ETO) electronic document under Section 2(m) is defined as:

“Electronic document” includes documents, records, information, communications or transactions in electronic form.”[5]

The International Court of Justice (ICC) faces different challenges regarding electronic pieces of evidence. Digital Evidence is defined as any information transmitted or stored in a digital format that can be used in court by a party to a case during proceedings. For instance, photographs, videos, audio recordings, emails, blogs, and social media (e.g. Facebook, Twitter).[6]

According to the National Institute of Justice (NIJ) Information stored or transmitted in binary form that can be used in court is known as digital evidence. It can be found on a computer hard drive, as well as a mobile phone. Electronic crime, or e-crime, such as child pornography or credit card fraud, is frequently associated with digital evidence. Digital evidence, however, is now used in the prosecution of all types of crimes, not just e-crime. Suspects' e-mail or mobile phone files, for example, could contain crucial evidence about their intent, whereabouts at the time of the crime, and relationships with other suspects.[7]

C.   QANOON-E-SHAHADAT ORDER 1984 AND DIGITAL EVIDENCE

Pakistan’s legal regime gives admissibility to digital evidence in the form of modern and technical devices, Article 59 and 164 deal with digital evidence.  According to Article 46-A of the QSO, digital evidence or evidence derived or stored through the mechanical process is relevant. This article supplements the QSO article, which states that evidence may only be given about facts in issue or relevant facts. Similarly, an explanation has been added to Article 73 QSO stating that all electronic documents, including electronic documents, are considered primary evidence.[8]  In Mian Khalid Pervaiz v The STATE (2021 SCMR 522) Supreme Court held that documentary evidence which is regarded as digital evidence such evidence was admissible under Article 164 of Qanoon e Shahadat order 1984, Article 46-A and 78-A of Qanoon-e-Shahadat order, as well as provisions of Electronic Transactional Ordinance 2002, provides a procedure to receive and prove such documentary evidence. [9]Gilgit-Baltistan Chief court in Shoaib Ahmad Vs. State (2019 PCRLJ 57) also accept the admissibility of modern devices evidence under article 164 of Qanoon-e-Shahadat, in which crime was detected in CCTV footage and the accused was arrested.[10] 

Article 73 declares electronic documents as primary evidence; however, it can be argued that the article refers to computer-generated information rather than computer-stored information because additional copies can be made from stored information. Nonetheless, judicial interpretation is required because LHC Judge Mr. Shahid Kareem recently ruled that electronic documents will be treated as primary evidence subject to cross-examination. Furthermore, there are certain standards for admitting electronic evidence all over the world, including authenticity, reliability, and admissibility, and meeting these standards necessitates a chain of custody, ensuring that evidence is not tampered with or destroyed during the collection process, and who were first responders article 164 was added in Qanoon-e-Shahadat order, 1984 with the following mentions:

"Construction of evidence that has become accessible due to the use of modern devices; the court may allow producing any available evidence because of modern devices and technology if consider appropriate." [11]

Modern services were carried out efficiently, but there were legislative and procedural stumbling blocks because the services and communication were delivered via electronic means. Un-signed and un-attested makers' issues, creating execution uncertainties, these modes of communication were difficult and insufficient to believe in the court procedure. Despite the uncertainty of the un-signed proof of the makers through electronic devices under the Electronic Transactions Ordinance, some legal obstacles were removed by that law, with the implementation of 2002, the Electric Transactions Ordinance has become a part of Qanoon-e-Shahadat order, 1984 under the enactment of Article 2 (e).[12]

D.   ELECTRONIC TRANSACTIONS ORDINANCE & DIGITAL EVIDENCE IN PAKISTAN

The very first objection that was raised to digital evidence was that it is not a piece of direct or first-hand information that is directly extracted from a device rather than we need additional information to support the evidence such as getting printout, but after the promulgation of Electronic Transactions Ordinance (hereinafter referred to as ETO) 2002 the objection was removed. The amendments in the ETO proposed that any information that is gathered digitally in a form of a document, transaction, communication, and audio-visual cannot be rejected just because it is in digital form. Such evidence is regarded as relevant and admissible as they are regarded as direct evidence. For proving a certain circumstance digital evidence is used as a piece of direct evidence. On the other hand, digital evidence will need corroboration from facts and circumstances along with other evidence when digital evidence is available as a piece of sole evidence.[13]

Under Article 5 of ETO, 2002 another change was brought in the admissibility of digital evidence. Article 5 of ETO states that if digital evidence is complete and unmodified, then it will be considered admissible evidence irrespective of the nature or by mistake-caused additions. All of these reforms are intended to meet the needs of today's society, in which most transactions are conducted digitally, including payments, and contracts are accepted or deemed to be binding on the parties.[14]

However, it is difficult to say that the introduction of ETO and the corresponding changes brought in QSO have changed the status of digital evidence from corroborating to direct or original. While clearly article 73 declares documents produced by applying electronic process as primary evidence, however, it can be argued that the article speaks of computer-generated and not computer-stored information because further copies can be made out of stored information, still, this conclusion requires judicial interpretation because the LHC’s Judge Mr. Shahid Kareem has recently held that electronic documents will be treated as primary evidence subject to cross-examination. Furthermore, all over the world, there are certain standards of admitting electronic evidence, these include authenticity, reliability, and admissibility and fulfillment of these standards necessitates chain of custody, making sure that evidence is not tampered with or destroyed in the process of collecting, who were first responders.[15]

E.   ADMISSIBILITY AND WEIGHT OF EVIDENCE

All of the amendments in ETO confirm the admissibility of digital evidence, which is a positive step forward, but they say little about the weight or value of evidence. The evidence must be reliable, authentic, and admissible to give weight to the digital evidence at the point of appreciation and this is the point where Pakistani courts should provide guidance. Pakistan is a common law country, so, understandably, everything is not written in the law. Court precedents are necessary to know the wording of the statute in common law countries. The need for court interpretation is just as great as it is when it comes to elaborating on how to make digital evidence admissible. Even though ETO 2002 and subsequent amendments to the QSO have clarified the primary status of digital evidence, the circumstances under which it will be given weight are not specified.[16]

F.    GUIDELINES FOR AUTHENTICITY, RELIABILITY, AND ORIGINALITY OF DIGITAL EVIDENCE

Certain guidelines have been developed by American Law Reports and UK police Chiefs that must be followed and should be included in police investigation rules. Important guidelines are as follows:

a.     All of the procedures applied to the evidence must be documented, and a copy must be made.

b.     Digital evidence differs from paper evidence in that it can be destroyed. The delete button does not delete it; rather, it makes room in the storage device for new chapters or data input. Backup operations can be used to recover the detected data. Even if the hard disc has been formatted, hidden data can be recovered.

c.     A third party should be able to perform the same operations as first responders or forensic experts and achieve the same results.

d.     All rules that govern conventional evidence should be applied to digital evidence as well. While the Federal Sharia Court (FSC) has declared this, there have been conflicting statements about the digital evidence's best evidence status and hearsay issues.

e.     Along with the final report, proper documentation should be prepared.[17]

All these steps are critical for determining the evidence's authenticity, dependability, and accuracy.  All of the changes made to QSO as a result of ETO 2002 concern the admissibility of evidence rather than its weight or value. The fact that the amendments are focused on computer-generated evidence supports this assertion.[18]

G.   COMPUTER-GENERATED VS. COMPUTER-STORED

Computer-generated documents cannot be deviated by printing copy after duplicate, computer-stored evidence can be subjected to decay, additions, and modifications, and the Pakistani system has no policy guidelines in place to prevent this. As a result, either case law or legislation must clarify how digital evidence should be derived, saved, and treated to increase its weight rather than admissibility. One of the reasons for the LHC Judge's decision that an electronic record will only be admissible if it can be cross-examined was because of this.[19]

H.  RECENT APPROACH TO COURTS REGARDING DIGITAL EVIDENCE

The Pakistani judicial system has warmly welcomed electronic evidence with its interpretation but in recent case law Rehana Anjum v. ASJ, etc (PLD 2016 LHR 570). The amendments introduced through ETO 2000 were discussed and, interestingly, authored by Mr. Shahid Kareem, Judge of the LHC, who recently ruled that electronic documents will be treated as primary evidence which will be subjected to cross-examination. Furthermore, there are certain standards for admitting electronic evidence, including authenticity, reliability, and admissibility, and meeting these standards necessitates a chain of custody, ensuring that evidence is not tampered with or destroyed during the collection process, who were first responders.[20]

The Supreme Court of Pakistan ruled in 2021 SCMR 873 that video evidence regards as an important piece of evidence, but it can only be presented in a court of law if the following conditions are met first before its admission in court of law it is important to know the origin and explain how it is assimilated. Second, a report should be submitted before the court of law explaining that the presented video is not edited and that report should be a forensic report. Video evidence has no probative value if the above-mentioned conditions are not fulfilled.[21] 

Concerning the case hearing, 2019 PLD 675, according to article 164 of Punjab Forensic Science Agency Act (XIII of 2007), audiotape or video recording providing the admissibility of evidence requires verification and testing technological forensics to check the authenticity before presenting in front of the court of law.[22] All of the changes made to QSO as a result of ETO 2002 concern the admissibility of evidence rather than its weight or value. This assertion is supported by the amendments' emphasis on computer-generated evidence. QSO and ETO made it clear that digital evidence is admissible in a court of law but still, the court needs material corroboration for its acceptance likewise It is clear that Pakistani courts have begun to prioritize probative value over mere admissibility of digital evidence. The amendments in QSO resulting from ETO 2002 relate to the admissibility of the evidence and not to its weight or appreciation.[23] 

RECOMMENDATIONS

Following recommendations are provided that will help Pakistan deal with the issue of admissibility of the digital evidence in Pakistan.

·      Rules and regulations should be made regarding custody, storage, authenticity, and reliability of digital evidence.

·      Precedent should be set forth by relying upon digital evidence as to the sole evidence for a conviction.

·      An expert in the digital world should be appointed who will assist the court in analyzing the digital evidence.

·      In each district, an expert team should be prepared to account for the extraction, addition, or deletion, preservation, storage, authenticity, and reliability of digital evidence.

·      Digital evidence should be given precedence not only in inadmissibility but also in the appraisal or weight of evidence.

CONCLUSION

This article concludes that the use of modern devices as evidence representation appeared and proved useful in judicial procedures. Art. 164 QSO has been supplemented by ETO 2002 and the changes brought about by QSO 1984, which is a positive evolution. The changes are intended to convert digital evidence into primary evidence. Article 164 QSO made all such evidence derived from modern devices relevant. However, the admissibility of such evidence was left to the court's discretion. As a result, courts have regarded such evidence as secondary evidence that requires corroboration from the maker. However, following the aforementioned legal changes, it cannot be considered hearsay evidence. Some court decisions have indicated that, following the promulgation of ETO 2002, although the admissibility of such evidence has become undisputed, it will be given more weight at the time of appraisal if it is corroborated by ocular or physical evidence. However, to establish the sanctity of electronic evidence, Pakistan must develop guidelines and rules for digital evidence storage, extraction, chain of custody, authenticity, and reliability.

Authors:

Dr. Ghufran Ahmed, Assistant Professor Department of Law, University of Chakwal, Punjab, Pakistan. He can be reached at ghufran.ahmed@uoc.edu.pk.

Ms. Khizra Malka Zaryab is a final year law student at Fatima Jinnah Women University, Rawalpindi and can be reached at hizradar@gmail.com.

Ms. Fehmida Kanwal is a final year law student at Fatima Jinnah Women University, Rawalpindi and can be reached at fehmida200@gmail.com and

References:

[1] Usman Hameed, 'Admissibility of Digital Evidence: A Perspective of Pakistani Justice System' (2021) 5 Pakistan Social Sciences Review.

[2] Electronic Transaction Ordinance, 2002, 2002.

[3] Matiur Rahman, 'Evidential Representation of Using the Modern Devices and Decision- Making Feasibility in Pakistan' (2021) 14 Bioscience Biotechnology Research Communications https://www.advancelrf.org/wp-content/uploads/2021/12/Vol-3.-No.-2-2.pdf

[4] Ahmad Fekry Moussa, 'Electronic Evidence and Its Authenticity in Forensic Evidence' (2021) 11 Egyptian Journal of Forensic Sciences.

[5] (Pakistanlaw.com, 2022) http://www.pakistanlaw.com/eto.pdf

[6] Aida Ashour, Caleb Bowers and Cherrie Warden, 'AN OVERVIEW OF THE USE OF DIGITAL EVIDENCE IN INTERNATIONAL CRIMINAL COURTS' (Humanrights.berkeley.edu, 2013) https://humanrights.berkeley.edu/sites/default/files/publications/an-overview-of-the-use-of-digital-evidence-in-international-criminal-courts-salzburg-working-paper.pdf

[7] 'Digital Evidence and Forensics' (National Institute of Justice, 2005) https://nij.ojp.gov/digital-evidence-and-forensics

[8] Qanoon-e-Shahadat order 1984.

[9] Mian Khalid Pervaiz v The STATE [2021] Supreme Court, SC (Supreme Court).

[10] Shoaib Ahmad Vs State [2019] Gilgit Baltistan Chief court, PCRLJ (Gilgit Baltistan Chief court).

[11] Usman Hameed, 'Admissibility of Digital Evidence: A Perspective of Pakistani Justice System' (2021) 5 Pakistan Social Sciences Review.

[12] Aftab Hussain Gillani, 'Evidential Representation of Using the Modern Devices and Decision- Making Feasibility in Pakistan' (2021) 3 Journal of Law & Social Studies (JLSS).

[13] Dr. Usman Ahmed, Zarfishan Qaiser and Khushbakh Qaiser, Admissibility of Digital Evidence: A Perspective Of Pakistani Justice System (5th edn, PSSR 2021) https://pssr.org.pk/issues/v5/4/admissibility-of-digital-evidence-a-perspective-of-pakistani-justice-system.pdf

[14] Electronic Transactions Ordinance 2002.

[15] Dr. Usman Ahmed, Zarfishan Qaiser and Khushbakh Qaiser, Admissibility of Digital Evidence: A Perspective Of Pakistani Justice System (5th edn, PSSR 2021) https://pssr.org.pk/issues/v5/4/admissibility-of-digital-evidence-a-perspective-of-pakistani-justice-system.pdf

[16] Id.

[17] Afrasiab Ahmed Rana, Admissibility of Evidence Produced Via Modern Devices and Techniques: A Look In Pakistani Prospective (5th edn, 2021) http://file:///C:/Users/HP/Downloads/13%20(1)%20(1).pdf.

[18] Id.

[19] Dr. Usman Ahmed, Zarfishan Qaiser and Khushbakh Qaiser, Admissibility of Digital Evidence: A Perspective Of Pakistani Justice System (5th edn, PSSR 2021) https://pssr.org.pk/issues/v5/4/admissibility-of-digital-evidence-a-perspective-of-pakistani-justice-system.pdf

[20] Rehana Anjum v ASJ etc [2016] Lahore high court, LHR (Lahore high court).

[21] State V Ahmed Omar sheikh [2021] SC, SCMR (SC).

[22] Ishtiaq Ahmed Mirza v Federation of Pakistan [2019] SC, PLD (SC).

[23] Aftab Hussain Gillani, Evidential representation of using the modern devices and decision- making feasibility in Pakistan, 3 Journal of Law & Social Studies (JLSS) 79-86 (2021).