Says unauthorised recordings for extortion or evidence violate privacy, 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 authored by Justice Muhammad Hashim Khan Kakar, the court upheld the acquittal of the accused in a case where the petitioner relied primarily on a clandestine audio recording that allegedly contained a conversation between two accused persons regarding the payment of a bribe of Rs5,000.
The judgment states that the Prevention of Electronic Crimes Act 2016 (Peca) recognises unauthorized surveillance as a criminal offence.
While Section 389 of the Pakistan Penal Code (punishment for criminal intimidation) has been invoked in cases involving blackmail through concealed cameras, Section 23 of Peca explicitly criminalises the unauthorized taking, capturing, or transmission of a person’s image or voice with dishonest intent.
A three-member bench of the Supreme Court led by Justice Kakar observed that a clear distinction exists between routine recordings made in the ordinary course of official duty and recordings made with the intention of laying a trap to procure evidence.
“The individual responsible for recording audio or video should not be the same person who creates such recordings with the intention of setting a trap to obtain evidence,” the judgment stated.
The court further noted that the prosecution failed to present any independent witnesses or other incriminating evidence.
In this context, the court examined whether secret audio or video recordings intended to humiliate, disgrace, scandalise, outrage, insult, trap or extort an accused or any other individual could be considered lawful and admissible under Pakistani law.
It observed that when a complainant resorts to unlawful surveillance, he effectively transforms from a victim into an offender. 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 earlier 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 the privacy of the home.
Secretly recording a citizen’s private conversation and later using it as a weapon in judicial proceedings constitutes a violation of this constitutional guarantee. Such practices, the court warned, risk reducing society to a “surveillance theatre where the end justifies the means.”
The judgment also emphasised that the right to privacy is deeply rooted in both Islamic jurisprudence and constitutional thought. Citing the Quran, the court noted that the command “Do not spy” establishes the sanctity of the home and prohibits unwarranted surveillance.
The court cautioned that granting citizens a general licence to conduct warrantless surveillance against one another would effectively legitimise convictions based on illegally obtained evidence.
Such a practice, the court said, would lead to societal disorder and a serious erosion of fundamental values, as individuals would assume the roles of prosecutor, technician and witness while bypassing constitutional safeguards and lawful investigative procedures.
“To grant judicial legitimacy to such illegal and unethical conduct would amount to a violation of the Constitution,” the order concluded, adding that private surveillance conducted in violation of the law is incompatible with both Islamic principles and fundamental rights.
