As time further progresses, technology advances in blink of an eye and while it is argued that the benefits brought by such advancement of technology in contemporary times weigh greater than the harm it brings, however one must not ignore the damages also that stem from the adverse impact of the harm itself. Cybercrime is frequently defined as any criminal activity that involves a computer, networked device or network. Either the computer itself is targeted by the cybercriminal (by using virus or other types of malware) or the cybercriminal himself is using the computer itself to commit cybercrime. Cybercrimes takes in multiple different forms, including but not limited to, online fraud, cyberextortion, theft of financial payment data, email and internet fraud, theft and sale of corporate data, etc., Usually, the main purpose is to make money by disabling or damaging the computer.
Therefore, it is wise for legislation to adapt with the contemporary times if one aims to minimize the adverse impact of cybercrime. The judgement held in case of Alamgir Khalid Chughtai vs. State [PLD 2009 Lahore p. 254] is said to be seminal, it triggered development of provisions of Art-2(e) of Qanoon-E-Shahadat, 1984, necessary for it to be read with Section 29 of Electronic Transaction Ordinance, 2002 (Schedule II). Though, the judgement being complex due to intricacy of the crime, it can certainly be understood that all the documents electronically prepared, produced or generated through modern devices are admissible as primary evidence.
In reference to Ali Haider alias Papu v Jameel Hussain and others (PLD 2021 SC 362), it is highlighted that for the law to serve people in a technologically complex society, it is extremely necessary for the courts to acknowledge and be particularly open to the growth of science, its principles, tools and techniques. It further expresses, ‘Article 164 of Qanoon-e-Shahadat Order 1984 is our gateway allowing modern forensic science to come into our courtroom… courts may allow any evidence that may have become available of modern devices and techniques.’
Nonetheless, it must be acknowledged that not every electronically gathered evidence concerns with cybercrimes and Alamgir is frequently referred in criminal law.
Demonstrating an example that concerns subject of emails, Mehmood Alam Sher v. HEC (2022 CLC 1337) affirms the fact that emails are here to stay as an everyday means of communication. As per the combined readings of Article 73 of QSO 1984 and S. 3 of ETO 2002, it ensures that documents, records, communications of transactions in electronic form cannot be denied status of primary evidence and that further includes printouts of emails yet one must outline the certain conditions that it is subjected to, that is stated in Explanations 3 and 4 under Article 73 of QSO 1984.
However, admissibility of evidence does not mean one cannot question the authenticity of evidence itself. These two requirements are separate and distinct from each other. As per Taimoor Mirza v. Maliha Hussain (2002) [CLC 1029] – ‘Besides getting some technical and expert assistance, a judge can overcome this problem of authentication of an email or text message through different ways which are;
- The adverse party admits that the texts were written by him
- A witness may come in witness box and say that he saw the message created
- Characteristic of the message itself speaks that it was created by the author for whom it is claimed as author of the same.
- Circumstances of the case proof that it was created as claimed.
- A ‘reply authentication’ specially for email, i.e an electronic reply showing both parties email addresses and text messages clearly indicating that the same was sent in response to the text message that was initially sent’
It has been outlined; ‘… reliability of email or other electronically generated documents may be subject to attack but a party cannot be restrained to present it in the Court as a documentary evidence.’
Qurban Ali and another v. The State (2007 PCr. LJ 675) is criminal case but its judgement adds another point regarding questioning the authenticity of an email, by stating that whatever electronic device that sent an email to the recipient can be identified by the sender’s IP address.
It has been observed that there are several, different ways of authentication , and application of them varies from case to case, particularly it depends on whether the nature of a case is civil or criminal. These ways include but are certainly not limited to;
- Admission by the other side
- Tracing IP address of the sender
- A reply from the other side or a conduct that reveals the receipt or a dispatch of disputed email
- A read receipt or;
- Witnesses who may be other recipients of the disputed email
On another note, it has been stressed that the different ways of authentication are seriously dependent on the facts, circumstances and the context of the what evidence is being presented after it gets admitted to the court.
