He says unauthorized recordings for extortion or evidence violate privacy and constitutional rights
ISLAMABAD:
The Supreme Court of Pakistan has ruled that secretly collecting information about a private conversation without the consent of the person involved, with the intention of using it for extortion or other illegal purposes, constitutes criminal conduct.
In a five-page judgment written by Justice Muhammad Hashim Khan Kakar, the court upheld the acquittal of the accused in a case in which the petitioner relied primarily on a clandestine audio recording which allegedly contained a conversation between two accused regarding the payment of a bribe of Rs 5,000.
The judgment said the Prevention of Electronic Crimes Act 2016 (Peca) recognizes unauthorized surveillance as a criminal offense.
While Section 389 of the Pakistan Penal Code (punishment for criminal intimidation) has been invoked in cases of blackmail using concealed cameras, Section 23 of the Peca explicitly criminalizes the unauthorized taking, capturing or transmission of a person’s image or voice with dishonest intent.
A three-member bench of the Supreme Court, headed by Justice Kakar, observed that there is a clear distinction between routine recordings made in the course of a normal official function and recordings made with the intention of laying a trap to obtain evidence.
“The person responsible for the audio or video recording should not be the same person who creates such recordings with the intention of setting a trap to obtain evidence,” the judgment said.
The court further noted that the prosecution did not present any independent witnesses or other evidence against it.
In this context, the court considered whether secret audio or video recordings intended to humiliate, disgrace, scandalize, outrage, insult, entrap or extort an accused or any other person could be considered legal and admissible under Pakistani law.
She observed that when a complainant uses illegal surveillance, they effectively move from the status of victim to that of aggressor. Likewise, the person whose audio or video is secretly recorded and leaked should be considered a victim rather than an accused.
The court reiterated its previous position that any audio or video recording lacking a verified source or identifiable owner cannot be treated as admissible evidence in criminal proceedings.
Referring to constitutional protections, the judgment said that Article 14 of the Constitution of Pakistan, 1973 guarantees the inviolability of human dignity and privacy of the home.
Secretly recording a citizen’s private conversation and then using it as a weapon in a legal proceeding is a violation of this constitutional guarantee. Such practices, the court warned, risk reducing society to a “theater of surveillance where the end justifies the means.”
The judgment also highlights that the right to privacy is deeply rooted in both Islamic jurisprudence and constitutional thought. Citing the Quran, the court noted that the “Do Not Spy” order establishes the sanctity of the home and prohibits unwarranted surveillance.
The court warned that granting citizens blanket permission to conduct warrantless surveillance of each other would effectively legitimize convictions based on illegally obtained evidence.
Such a practice, the court said, would lead to societal unrest and a serious erosion of fundamental values, as individuals assume the roles of prosecutor, technician and witness while circumventing constitutional guarantees and legal investigative procedures.
“Granting judicial legitimacy to such illegal and unethical conduct would amount to a violation of the Constitution,” the order concludes, adding that private surveillance conducted in violation of the law is inconsistent with Islamic principles and fundamental rights.
