FROM STATUTE TO COURTROOM: ADMISSIBILITY, JUDICIAL REASONING, AND INSTITUTIONAL GAPS IN PAKISTAN'S TREATMENT OF ELECTRONIC EVIDENCE

Abstract

Pakistan's criminal justice system has increasingly come to rely on the dependability of electronic evidence (call data records, WhatsApp messages, CCTV footage, forensic disk images) but the statutory "structures" created to evaluate this evidence pre-date the technologies regularly brought to trials. A doctrinal journey from statute to court is traced here. It first charts the overlapping rules of the Qanun-e-Shahadat Order 1984, the Electronic Transactions Ordinance, 2002 and the Prevention of Electronic Crimes Act, 2016. It then looks at how, in if left at large, these open-ended clauses have been worked out in practice by the superior courts, using a Supreme Court decision as an anchor – Ishtiaq Ahmed Mirza vs the Federation of Pakistan – to reveal that meaningful safeguards, such as, the source requirement, the custody requirement, and the need for non-tampering have emerged largely from case law rather than legislation. The article then moves to the institutional level – forensic capacity, the chain-of-custody practice, and judicial training deficits affecting the practice of doctrine-level protections. The article points out that Pakistan would be better served with a statutory authentication checklist that brings together the various case-by-case judicial rules on authentication and makes it available in the public domain, instead of relying on the assumed "trustworthiness" of computer-based technology, like the Indian certification-based process which has proven flawed in that context.