Says unauthorized 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 blackmail 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 primarily relied on a secret audio recording that allegedly contained a conversation between two accused persons about the payment of a bribe of Rs 5,000.
The judgment states that the Prevention of Electronic Crimes Act 2016 (Peca) recognizes unauthorized surveillance as a criminal offence.
While Section 389 of the Pakistan Penal Code (punishment for criminal intimidation) has been invoked in cases involving extortion through hidden cameras, Section 23 of Peca explicitly criminalises the unauthorized recording, recording 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 ordinary course of official duty and recordings made with the intention of laying a trap to procure evidence.
“The person 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 said.
The court further noted that the prosecution failed to present independent witnesses or other incriminating evidence.
In this context, the court examined whether secret audio or video recordings intended to humiliate, disgrace, scandalize, outrage, insult, trap or blackmail an accused or any other individual could be considered lawful and permissible under Pakistani law.
It noted that when a complainant resorts to illegal surveillance, he effectively transforms himself from a victim to a perpetrator. 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 that lacks a verified source or identifiable owner cannot be treated as admissible evidence in criminal cases.
Citing constitutional protections, the judgment said that Article 14 of the 1973 Constitution of Pakistan guarantees the inviolability of human dignity and privacy in the home.
Secretly recording a citizen’s private conversation and later using it as a weapon in legal proceedings constitutes a violation of this constitutional guarantee. Such a practice, the court warned, risks reducing society to a “surveillance theater where the end justifies the means.”
The judgment also emphasized that the right to privacy is deeply rooted in both Islamic jurisprudence and constitutional thinking. Citing the Koran, the court noted that the command “Do not spy” establishes the sanctity of the home and prohibits unjustified surveillance.
The court warned that granting citizens a blanket license to conduct surveillance-free surveillance against each other would effectively legitimize 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 role of prosecutor, technician and witness while circumventing constitutional guarantees and legal investigative procedures.
“Giving legal 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 inconsistent with both Islamic principles and fundamental rights.
