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 reliability of electronic evidence, including call data records, WhatsApp messages, CCTV footage, and forensic disk images; however, the statutory structures governing the evaluation of such evidence largely predate the technologies routinely presented in courts. This article traces the doctrinal development of electronic evidence from legislation to judicial practice. It first examines the overlapping provisions of the Qanun-e-Shahadat Order, 1984, the Electronic Transactions Ordinance, 2002, and the Prevention of Electronic Crimes Act, 2016. It then explores how these open-ended statutory provisions have been interpreted and applied by the superior courts, using the Supreme Court’s decision in Ishtiaq Ahmed Mirza v. Federation of Pakistan as an anchor. The analysis demonstrates that important safeguards, including requirements concerning the source, chain of custody, and prevention of tampering, have emerged primarily through judicial precedent rather than explicit legislative provisions. The article further examines institutional challenges, including limited forensic capacity, weaknesses in chain-of-custody practices, and deficiencies in judicial training, which affect the effective implementation of these doctrinal safeguards. It argues that Pakistan would benefit from a statutory authentication checklist that consolidates the various case-by-case judicial requirements for establishing the authenticity and integrity of electronic evidence and makes them readily accessible to legal practitioners and the public. Rather than relying on the presumed trustworthiness of computer-generated evidence or adopting a certification-based approach similar to India’s, which has demonstrated significant limitations in that context, a clear and comprehensive statutory framework could provide greater consistency, transparency, and reliability in the admission and evaluation of electronic evidence in Pakistan’s criminal justice system.