MOHSIN AKHTAR KAYANI, J: Through the instant appeal, the appellant has assailed the judgment dated 30.09.2024 passed by the Special Court (Official Secrets), Islamabad, in case FIR No.03/2021 dated 15.02.2021, registered under Sections 3 and 4 of the Official Secrets Act, 1923 read with Section 409 PPC, at Police Station CTW, FIA, Islamabad. Through the impugned judgment, the appellant has been convicted and sentenced to three years' rigorous imprisonment under Section 3(3) of the Official Secrets Act, 1923, with the benefit of Section 382-B Cr.PC.
2. The brief facts referred in the instant case are that the complainant, Ijaz Ahmed Sheikh, Additional Director, FIA CTW (PW-07), lodged a complaint (Exh.PR) stating that on 15.02.2021, while posted as in-charge at PS FIA CTW, he received information from credible sources about a secret meeting between a foreign diplomat/agent and Syed Qalb e Abbas (the accused/appellant), who was then serving as President and an employee in the Ministry of Planning and Special Initiatives, Islamabad. The meeting was allegedly intended for the communication of secret information prejudicial to the safety and security of the State.
3. Acting upon this information, the complainant constituted a raiding party and proceeded to the designated location behind the PSO petrol pump at G-8 Markaz, Islamabad. The source informed him to wait as the suspect had momentarily left in a white Land Cruiser, bearing registration number QM-162, with tinted windows.
4. Upon the vehicle's return, the appellant was dropped off in the parking area in front of UBL Bank, G-8 Markaz, Islamabad. As he attempted to approach his parked black Honda car, Registration No.AJQ-301, he was intercepted and apprehended by the complainant and his team.
5. According to Ejaz Ahmed Sheikh, PW-07, the appellant failed to offer any plausible explanation regarding the purpose of his meeting. A personal search was conducted, which led to the recovery of the following items: a memory card, USB, cash amounting to Rs.110,000, CNIC, service card, arms license, ATM card, mobile phone, keys, vehicle registration book, driving license, and other miscellaneous items.
6. The complaint was transmitted to the police station through PW-04, Constable Abdul Manan, and upon submission, FIR No.03 dated 15.02.2021 was registered accordingly.
7. The investigation was entrusted to Inspector Muhammad Noman (PW-08), who issued various letters to the Ministry of Foreign Affairs and the Ministry of Planning and Special Initiatives to verify the appellant's credentials. He submitted the recovered USBs and mobile phone for forensic analysis, recorded the statements of witnesses, verified vehicle registration No. QM-162 from the Excise and Taxation Office, Islamabad, and after receiving the forensic report, submitted the challan under Section 173 Cr.PC before the Court.
8. The trial Court framed the charge on 28.05.2021 under Sections 3 and 4 of the Official Secrets Act, 1923, read with Section 409 PPC, to which the appellant pleaded not guilty. The prosecution examined 12 witnesses (PWs) and one Court witness (CW). The statement of the appellant was recorded under Section 342 Cr.P.C, after which the Court convicted him and awarded a sentence of 03 years' rigorous imprisonment under Section 3 of the Official Secrets Act, 1923. Hence, this appeal.
9. Learned counsel for the appellant submits that the trial Court has failed to properly appreciate the legal requirements regarding the search and seizure of the allegedly incriminating material. It is argued that the appellant was posted on the China Desk at the Ministry of Foreign Affairs, while performing his official duties, he was unlawfully abducted by the law enforcement agencies about a month prior to the registration of the instant FIR. The appellant was subjected to enforced disappearance, upon which his wife, Ms. Huma Abbas, filed a writ petition bearing No. 146/2021, and an FIR under Section 365 PPC was also lodged. After nearly 25 days of illegal confinement, the appellant was recovered and released and later on falsely implicated by FIA CTW in this case under fabricated allegations.
10. It is further submitted that the appellant never met any foreign agent, nor did he communicate any secret or confidential information. No evidence of such communication and sharing of information has been produced. The identity of the alleged foreign agent was never disclosed nor verified during the investigation.
11. Learned counsel for the appellant indicated more flaws in the investigation and asserted that the three main allegedly recovered items including mobile phone, USB, and SIM were not produced or exhibited during trial. Even the bag from which the amount of Rs.110,000 was allegedly recovered was also not exhibited as a piece of evidence. The statement of appellant under Section 164 Cr.PC was recorded on the third day of the appellant's arrest, and he was not remanded to judicial custody prior to such recording, which raises serious questions about the voluntariness of the statement. It is further contended that there are glaring contradictions and inconsistencies among the statements of the prosecution witnesses, which render the prosecution case doubtful and fabricated.
12. Conversely, the learned Special Prosecutor F.I.A opposed the contentions raised by the appellant's counsel. He submits that the appellant was found in possession of multiple classified documents. The digital forensic report confirmed the presence of confidential material in the recovered mobile phone and SIM, and the report was duly exhibited on record and corroborated by Muhammad Sibtain Ahmed Khan, Additional Director (Forensics), CW-01. Hence, according to the prosecution, the appellant's conviction is well-founded, and no doubt arises regarding his guilt.
13. Arguments heard. Record perused.
14. Perusal of the record reflects that the appellant was apprehended by Ijaz Ahmed Sheikh (PW- 07), Additional Director, FIA CTW Islamabad, based on spy information, with the allegation that the appellant, being an official of the Government of Pakistan, was meeting a foreign agent.
Consequently, a raiding team was constituted on 15.02.2021, pursuant to the secret information.
15. The raid was conducted behind the PSO petrol pump located at G-8 Markaz, Islamabad, where the appellant was reportedly dropped off from a white Land Cruiser bearing registration No.QM-162, allegedly driven by the foreign agent. However, during cross-examination, PW-07 did not mention the mobile number of the appellant in his examination-inchief. Furthermore, he failed to produce any copy of the Roznamcha report indicating his departure from the police station after receiving the spy information.
16. PW-07 also did not provide details of the raiding team through any entry in the Roznamcha. He was unable to confirm the make and model of the Land Cruiser, allegedly driven by the foreign agent, and admitted that no site plan was prepared. While acknowledging that the front windscreen of the vehicle was not tinted, he claimed that the remaining windows were tinted, yet he failed to describe the physical features or facial characteristics of the alleged foreign agent or the country of origin of such agent.
17. The most crucial aspect of the case was the communication of sensitive information which has not been substantiated by PW-07. The mode and manner of transmission of the sensitive information are neither mentioned in the complaint nor in his examination-in-chief.
18. PW-07 also admitted that no seizure memo (recovery memo) was prepared by him, and further conceded that neither he nor his officials made any serious attempt to stop or intercept the Land Cruiser allegedly driven by the foreign agent.
19. The investigation was conducted by Muhammad Noman (PW-8), Inspector, FIA CTW, who essentially reiterated the version of PW-7. However, his examination-in-chief is also silent regarding the recovery of the memory card, USB, CNIC, service card, arms license, ATM card, mobile phone, keys, registration book, and other documents allegedly recovered at the time of arrest from appellant. None of them were exhibited during trial. Now it is settled position of law that when material is neither produced nor exhibited, it would be presumed that it does not exist at all as held in 2023 SCMR 181 (Ahmed Ali Vs. State).
20. As per the Investigating Officer, the appellant was produced before the concerned Court on 16.02.2021 for physical remand. However, the appellant was sent to judicial custody on 18.02.2021 after recording of a confessional statement under Section 164 Cr.PC. No explanation was offered as to why the appellant was not sent to judicial custody prior to the recording of such statement, this omission indicates the non-voluntariness of confessional statement under Section 164 Cr.P.C. It is also an admitted fact that the confessional statement of the petitioner was not recorded in the language in which it was originally made, thereby breaching a mandatory legal requirement as stipulated under Section 364(1) of the Code of Criminal Procedure and Rule 11, Chapter 13 of the Lahore High Court Rules as held in MLD 2001 [Lahore] 807 (Muhammad Yar Vs. The State), that a "confessional statement shall be recorded in actual words". The parameters to record confessional / voluntary statement under section 164 Cr.P.C. before the Magistrate are enlisted in detail in 2021 SCMR 873 (The State Vs. Ahmer Omer Sheikh and others), which have not been observed.
21. PW-08 admitted that he had addressed multiple letters to various ministries including the Ministry of Foreign Affairs for verification of the credentials and documents of the appellant. As per forensic report Exh.PL and Exh.PM, a reply was received confirming that the documents recovered during analysis were classified as confidential and secret.
22. It is further stated by PW-8 that the vehicle used by the foreign agent, i.e., QM-162, was verified through the Excise and Taxation Office (ETO) Exh.PK, which confirmed that the said registration number was actually allotted to a Mitsubishi Lancer car, not to a Land Cruiser. However, no documentary proof was provided under any law to justify the use of temporary or fake number plates by diplomatic vehicles.
23. During cross-examination, PW-08 conceded that he did not make any entry in the daily Roznamcha regarding his movement in connection with the raid. Whereas, under Police Rules, 1934, it is mandatory for every police official to record the entry of their movement in daily diary and its non-production causes serious doubts in prosecution case as held by Division Bench of Peshawar High Court in judgment reported as 2023 MLD 2014 (Shakeel Ahmed Vs. The State). He further admitted that he could not verify whether the front screen of the Land Cruiser was damaged or tinted. Neither did he take possession of the said vehicle, nor any site plan was prepared. As per Exh.PK, the vehicle was a black Mitsubishi model 2013, bearing altered registration number QM-162.
24. The I.O also admitted that no private person was associated as an independent witness during the proceedings concerning either the arrest of the accused or the recovery of items. He was also unable to recall the exact time when the recovery memo (Exh.PA) was prepared. In terms of Section 103 of the Cr.P.C., the law mandates the two or more inhabitants of the locality must be associated during search and recovery proceedings, to ensure fairness and eliminate doubts. The failure to associate any private witness from the locality constitutes a serious legal lapse. The Hon'ble Supreme Court in 2017 SCMR 898 (Muhammad Ismail v. The State) has categorically held that failure to associate independent witness of the locality casts doubt on the credibility of the alleged recovery
25. He further confirmed that no mobile number was taken into possession from the accused. The most critical flaw in the recovery process is that the recovery memo does not mention whether the articles were sealed or marked with any official seal or insignia. Non-sealing of the recovered items undermines sanctity of the entire recovery process because the adverse presumption of tempering gets attached to the recovery. The only purpose behind immediate sealing is to avoid evidence contamination or tempering with the evidence. This major defect is fatal in the light of law laid down in the case reported as PLD 2006 [Karachi] 698 (Khan Bacha Vs. The State) where it was held that failure to seal and secure recovered items raises serious doubts about the recovery proceedings and cannot be relied upon.
26. The I.O further failed to verify the origin or nationality of the alleged foreign agent. The complaint and FIR are completely silent on this crucial aspect as well. Not even a single letter was addressed to the Ministry of Foreign Affairs for initiating proceedings or verification of the said foreign agent.
27. The other most crucial aspect of the case is the communication of sensitive information, which remained unsubstantiated. The I.O candidly admitted that the complaint and F.I.R, are silent regarding the mode and manner of the alleged transfer of such sensitive information from the accused to the foreign agent. He also conceded that he is not aware of the address or identity of the foreign agent.
28. In a case where the main allegation pertains to the communication of sensitive information, it becomes crucial for investigation officer to establish the telephonic or electronic communication took place between the accused and the alleged foreign agent through the Call Data Record
(CDR) of the accused, or verify the location, which are missing in this case.
29. The Investigating Officer admitted that no CDR of the accused was obtained, nor was any request made to the mobile service provider to obtain call logs, messages, or tower location data, particularly for the date of occurrence, i.e., 15.02.2021.
30. In the absence of such records, the prosecution has failed to establish any electronic link between the appellant and the alleged foreign agent. No effort was made to verify the location of the accused through his mobile phone data to place him at the scene of the alleged meeting.
31. It is now well settled that electronic communication must be substantiated by forensic or telecom records, including CDR and GPS data, especially in cases involving allegations under the Official Secrets Act. The failure to secure such essential records renders the entire investigation incomplete and unreliable.
32. In view of the above discussion and the evidence brought on record, the following admitted facts emerge: i. The appellant, Syed Qalb e Abbas was abducted by unknown individuals on 12.01.2021. A criminal case was registered at Police Station Sabzi Mandi on the complaint of the appellant's brother. ii. It is alleged that on 10.01.2021, at around 5:45 p.m., the appellant was traveling in his Honda City vehicle bearing registration number AJQ-301 when he went missing. iii. Subsequently, the appellant's wife, Syeda Huma Abbas, filed Writ Petition No.146 of 2021 before the Islamabad High Court, which was disposed of by the then Honourable Chief Justice upon the return of the appellant on 10.02.2021. iv. During the period of his disappearance, the appellant remained in illegal detention of unknown individuals. He claimed that his disappearance amounted to an enforced disappearance by state agencies. v. The appellant was apprehended by the FIA on 15.02.2021, as noted in his statement under Section 342 Cr.P.C., through one Faisal, a person allegedly introduced to him during his illegal detention. vi. The appellant was charged under Sections 3 and 4 of the Official Secrets Act, 1923, on the allegation that he had met with a foreign agent and had transmitted/communicated official information of a confidential and secret nature. vii. The identity of the alleged foreign agent was never investigated by the Investigating Officer (IO) nor known till date. viii. It was claimed that the appellant was apprehended by FIA after being deboarded from a white Land Cruiser bearing registration number QM-162, near the PSO Petrol Pump, G-8, Islamabad.
However, this vehicle was never verified. The Excise and Taxation Office confirmed that the said registration number was allotted to a Mitsubishi car, as verified by the prosecution's own evidence. ix. No direct evidence was produced by the prosecution to show that any confidential or secret information was actually communicated to a foreign agent. x. The raiding team that intercepted and apprehended the appellant did not produce the blue plastic bag allegedly containing Rs.110,000 cash. xi. The IO also failed to produce or exhibit in the court, the three pieces of alleged technical evidence, namely: A mobile phone (Galaxy A71), A 4 GB Kingston USB flash drive, and A PlayStation USB. xii. The appellant's statement under Section 164 Cr.P.C. was recorded on the third day of his physical remand, without first sending him to judicial custody. xiii. No register (No.19 or No.21) of the concerned police station was produced to establish the safe custody of the allegedly recovered mobile phone and USB devices. xiv. The IO admitted that the USB and mobile phone were never sealed at the time of recovery, nor was any identification mark affixed to them. xv. No record was produced to show that the data allegedly recovered caused any prejudice to the national security of Pakistan or conferred any benefit to an enemy state. xvi. There was no office order, directive, or legal notification presented to establish that the recovered data had ever been classified as secret, confidential, or top secret by any competent authority. xvii. No official witnesses, such as the Director General of Human Resources or any official from the Ministry of Foreign Affairs (MOFA), were produced in Court to verify the nature of the documents. xviii. The appellant had already been repatriated to his parent Ministry of Planning and Special Initiatives from the Ministry of Foreign Affairs well before the alleged incident. xix. No Call Data Record (CDR) was collected by the IO to confirm the appellant's presence at the alleged place of arrest or any meeting with a foreign agent.
33. Keeping in view the above investigation flaws, it has been established that on the basis of mere allegations not supported by substantial or circumstantial evidence, conviction cannot be sustained. As per Article 117 of the Qanun-e-Shahadat Order, 1984, the burden of proof lies with the prosecution. Under the Official Secrets Act, 1923, the prosecution is obligated to prove the delivery of secret information through direct evidence, which may include: Eyewitness accounts of the alleged transmission of secret information; Documentary evidence such as emails, letters, or memos showing transmission of classified material; Circumstantial evidence reflecting a consistent pattern of behaviour that supports the allegation; Digital footprints, including logs of access to digital files or email correspondence involving classified content; Forensic analysis of devices used by the accused, like USB drives or mobile phones; Surveillance evidence such as CCTV footage or intercepted communications with foreign agents; Intelligence reports from law enforcement or intelligence agencies; and Expert testimony from cyber security or cryptography professionals.
34. Even in cases involving national security, the law demands a minimum threshold of evidence.
The absence of any technical or corroborative proof in this matter undermines the prosecution's case. To establish guilt under the Official Secrets Act, the prosecution must also prove: That the transmitted information was officially classified and protected under law; That the accused had access to such classified material; That the accused intentionally communicated such information to an unauthorized person, knowing it to be classified.
35. The classification status of such information must be proven through a competent authority, who should be produced as a witness to demonstrate that the documents / information were marked as confidential, secret, or top secret, and that unauthorized access to such documents is illegal.
36. Furthermore, classification protocols, secure transmission procedures, and document handling regulations should also be framed to demonstrate procedural lapses.
37. Although the appellant previously served on the China Desk in MOFA dealing with CPEC matters, he had already been transferred to his parent Ministry vide notification dated 28.09.2020 after the repatriation from Ministry of Foreign Affairs vide Notification dated 07.09.2020, prior to the alleged incident. No mobile number allegedly used by the appellant was confirmed through telecom records by the I.O. Mere recovery of old official data from mobile device of accused which he possessed by virtue of the position he was holding, cannot form the basis of conviction under the Official Secrets Act, 1923, especially when: The accused is no longer in a position of access to classified information; The identity of the alleged foreign agent remains unverified; The vehicle from which the appellant was allegedly deboarded (QM-162) is unverified, rather registration received reflects Mitsubishi vehicle car.
38. The prosecution was unable to establish any mensrea or criminal intent of the appellant through direct or circumstantial evidence, including behaviour, background, or conduct indicating deliberate disclosure of secret information.
39. I have also attended to the Digital Forensic Analysis Report submitted by the Cybercrime Wing, marked as Exh.CW-1/76, prepared by the forensic expert Mohammad Sibtain Ahmed Khan, Assistant Director (Forensics), who appeared as CW-01 in this case. He stated that he received three devices one mobile phone and two USBs for forensic analysis, and submitted a report comprising 77 pages and he conceded that his statement under Section 161 Cr.P.C. was not reduced into writing and his report comprised of three pages only annexed as Exh.PW3, Exh.PW4, and Exh.PW5 out of the total 77 pages. While the remaining pages comprised of, data retrieved from the devices. He did not refer to a single instance from which it could be presumed, on the basis of the forensic analysis, that any data had been transferred to any recipient or to whom it was allegedly sent.
40. He further stated that such determination was not within the scope of forensic analysis. CW-01 also admitted that he did not mention the cell number (or SIM number) in the digital analysis report a key factor required to establish the connection between the appellant and the recovered mobile phone. He also conceded that it is correct to say that the documents retrieved were not verified from the Ministry of Foreign Affairs (MOFA).
41. In view of these admissions by the forensic expert, the second prosecution witness, PW-03 Masood Ali, Deputy Director FIA (In-charge Forensics, CCW-FIA), also appeared in the witness box and deposed that he received two USB devices on 16.02.2021 and one mobile phone on 18.02.2021, allegedly recovered from the accused, for the purposes of extracting secret documents from these devices. However, the timeline indicates that these recovered devices were neither immediately forwarded to the forensic expert nor were they sealed at the time of recovery.
42. Turning now to the Digital Forensic Analysis Report (Exh.CW-1/76) from another perspective, specific findings were made in Clause 4.1 of the report, which are as under: 4.1. Facts and Finding of Samsung Mobile Phone A71 in FIR-03/21 CTW During the course forensic examination of the evidentiary item Mobile phone Samsung bearing IMEI:352639111312681, the data as per scope of the case was searched and the official documents related to MOFA SMS related to MOFA, official Correspondence, china visit, correspondence with china regarding gawader has been identified and extracted and annexed at Flag-C. The investigation officer can identify the facts as per case requirement from extracted data provided in DVD attached. Few detail is annexed at page no.0950.
4.2. Facts and Finding of USB Kingston Silver color in FIR-03/21 CTW During forensic examination of USB silver color the data as per scope of the case was searched and official documents has been identified and annexed at Flag-D. It is pertinent to mention that the malware was also identified in USB. The detail is annexed at page no.51-70.
4.3. Facts and Finding of USB Kingston Black color in FIR-03/21 CTW During forensic examination of USB silver color the data as per scope of the case was searched and official documents has been identified. It is pertinent to mention that the malware was also identified in USB and annexed at Flag-E. The detail is annexed at page no.71.
43. A plain reading of this portion, which relates to the three devices forming the primary evidence in this case, shows that certain documents were recovered from the mobile phone and USB drives.
In this regard, the Investigation Agency submitted a list identifying ten different documents, of which four were marked as "secret", which is as under: S.No.Subject Status Classification page 1 Flight Clearance of Chinese PLA Air Force from China on 4 Sept to 19 Sept, 2020China Division Confidential 12-38 and 41 2 U.O. Note dated 83-2019 and Draft MoU on Establishing Friendly Cooperation Relationship between the Jiangsu Provincial Public security Department of the People's Republic of China and the Punjab Police of the Islamic Republic of Pakistan.China Division Ordinary 39 3 Note Verbale dated 26-6-20 and list of 93 Pakistani professionals working in different Chinese Organizations, Banks, Companies, Universities, and also include legal representatives of Pakistani banks in China and their families.China Division Ordinary 12 35-37 and 44 4 Fax Message to Prep Guangzhou dated 4 June, 2020 regarding detention of Mr. Asad Muhammad S/o Jehangir Muhammad Passport No.AG1876502 arrested in China on Account of drug Smuggling.China Division Confidential 49 5 MoU between the Ministry of Industry and Information Technology of the People's Republic of China and the Ministry of Information Technology and Telecommunication of the Islamic Republic of Pakistan on Cooperation in Information and Communications Technology.China Division Secret 52 6 Executive Brief Prime Minister's Visit to China for the Belt and Road Forum 25-28 April, 2019 BeijingChina Division Court Matter 53 to 55 7 Implementation of Order of Supreme Court in Criminal Petition No.299 of 2020 dated 7th April 2020 (Foreign Women Prisoners)China Division Secret 56 8 First FMs' Strategic Dialogue 17-20 March, 2019, Beijing (TPs)China Division Secret 56 to 59 9 Tentative Visit Programme/List of Chinese Delegation of Vice Foreign Minister Kong Xuanyou to Pakistan 9-10 December, 2018China Division Secret 66 to 67 10 First Round of Pakistan-China Bilateral Political Consultations (Islamabad, 9-10 December 2018)
Executive BriefChina Division Secret 68 to 70 th
44. The documents marked as "secret" are related to past events, from 2018 and 2019, which had already taken place much before the alleged recovery whereas, the appellant was charged in 2021 after his repatriation from MOFA to his parent department. Thus, the nature of the documents reflect ordinary correspondence consistent with the nature of the appellant's previous official responsibilities. While the documents bear the label "secret" alone cannot establish that they were conveyed or transferred to a foreign agent before or during the timeline of those events.
45. From a technical angle, Clause 4.2 and 4.3 of the report further state that malware was detected in the USB devices. Malware (short for "malicious software") refers to any code or program intentionally designed to disrupt, damage, or gain unauthorized access to a computer system or network. It includes: Viruses, which replicate when opened; Worms, which spread without user interaction; Trojan horses, which disguise as legitimate software; Spyware, which secretly monitors activity; Ransomware, which encrypts data for ransom; Rootkits and key loggers, which record keystrokes and hide deep within systems.
46. In the context of Pakistan's cyber-related jurisprudence, the presence of malware raises serious concerns about the integrity and reliability of the digital evidence. As per evidentiary principles, the existence of malware may render the contents of a device unreliable, as external non-human agents may have compromised its authenticity beyond the user's control. Where digital evidence is to be relied upon, a certified digital forensic expert such as CW-01 must conduct a forensically sound examination[1].47. The forensic report must conform to the standards of expert testimony under Article 59 of the Qanun-e-Shahadat Order, 1984, and must clearly demonstrate the extent of the malware intrusion and its forensic implications. This serves as the basis for determining the evidentiary value of the electronic device.
48. Pursuant to Articles 46-A, 47, and 164 of the Qanun-e-Shahadat Order, 1984, digital evidence must meet the requirements of relevance, authenticity, and reliability to be admissible. If a device is found to be compromised by malware or subjected to unauthorized modification, the Court may declare it inadmissible. This exclusion safeguards procedural fairness and ensures that no tainted or manipulated evidence is relied upon. In such cases, the forensic expert must: Establish the timeline of malware intrusion; Identify the entry vector (e.g., phishing, USB, remote access); Assess the impact on data integrity; and Confirm whether the malware altered or fabricated evidence.
49. In the realm of digital forensics, every digital action leaves a trace. Even if files are deleted, traces remain whether on local storage or cloud services, which can be retrieved. In contrast, physical evidence can often be destroyed completely.
50. Under Article 5 of the Electronic Transactions Ordinance, 2002, if digital evidence is complete and unadulterated, it is admissible regardless of minor changes caused by natural or accidental factors. Additionally, Articles 46-A and 73 of the Qanun-e-Shahadat Order, 1984, clarify that only relevant facts and facts in issue are admissible. The explanation appended to Article 73 affirms that electronic documents are primary evidence, and Article 46-A recognizes that digital or mechanically generated evidence is also relevant.
51. Pakistani jurisprudence, especially the Lahore High Court in 2021 MLD 1215 (Shafqat Masih and others versus the state), affirms that electronic evidence may be considered as primary evidence, provided subject to cross-examination[2]. However, in the light of judgments reported as 2020 SCMR 873 (Ahmed Bakhsh vs Ameer Ali khan), 2021 MLD 1415 Lahore (Shafqat Masih and others versus the state), PLD 2019 SC 675 (Ishtiaq Ahmed Mirza Vs Federation of Pakistan), and PLD 2019 Lahore 366 (Yasir Ayya z vs state), a common principle emerges: for digital evidence to be admissible, two primary conditions must be fulfilled: i. Its origin must be accounted for (i.e., how the evidence was acquired); ii. A forensic certificate must verify that the video or digital evidence is unedited and intact.
52. Thus, for digital evidence to carry probative value, the prosecution needs to prove the case against the accused, while relying on the report of forensic expert which must adhere to the following principles that: The data must not be altered; Its source must be clearly disclosed; It must be unedited; The chain of custody must be fully described; Computer-generated evidence is preferred over computer-stored, since the former minimizes the risk of duplication or manipulation.
53. At the conclusion of this evaluation, this Court is of the considered view that the electronic devices including Samsung mobile phone A71, Kingston USB (silver), and Kingston USB (black), allegedly recovered and formed the foundation of the prosecution's case were neither produced in Court nor sealed at the time of recovery. Moreover, the digital expert failed to provide any timeline of malware intrusion or the date of its entry into the system, hence, following additional defects noted by this Court in digital forensic analysis report are as under: i. Digital forensic analysis report is silent on the point as to how and to whom official data has been shared by the appellant. ii. Report is silent regarding mode and manner of sharing of alleged information / data. iii. No I.D, email, etc. of any person to whom alleged information has been shared was mentioned. iv. CW.1 has not given any statement regarding receiving of sealed articles from police station, its opening of the seal and again sealing of the same after conducting digital forensic analysis. v. The report has not mentioned anything regarding storage of alleged phone from where documents were retrieved nor mentioned capacity of the alleged phone. vi. No details is provided in the report with regards to any folder (my app, documents, photos, photos hidden, document wallet, etc.) from which secret information was retrieved. vii. The report is also silent with respect to retrieved information / data was obtained from cloud storage or else. viii. The report is silent with respect to any google I.D. of android phone to substantiate that alleged phone belongs to appellant. ix. No passwo rd cracking method has been mentioned in digital forensic analysis report to establish as to how expert secured access of the phone. x. No details of any foreign agent phone number has been confirmed in the report.
54. These omissions lead to the irresistible conclusion that the digital evidence/data referred to by the forensic expert cannot be treated as primary evidence, particularly when its integrity is demonstrably compromised and its transmission/communication to someone (foreign agent in this case) is also not being proved through the forensic report. The answers given by the forensic witnesses during cross-examination are not fulfilling the essential principles of admissibility of digital evidence enshrined in the Qanun-e-Shahadat Order, 1984, including the origin, copying, originality, communication, transmission etc. thereby collapsing the entire edifice of the prosecution's case against the appellant.
55. The ordinary understanding of "communication" involves sharing, transmitting, or disclosing sensitive information which poses a risk to the state's interests. However, no such unauthorized sharing of sensitive information has been proved in this case.56. Consequently, the entire digital evidence loses its efficacy, legal sanctity, and admissibility for the purposes of conviction.
57. The prosecution failed to prove that the information allegedly shared was classified, or that its disclosure harmed national interests, or that there was any association between the appellant and a foreign agent.
58. While the Official Secrets Act does allow for presumptions regarding unauthorized communication being prejudicial to the state, such presumptions require a foundational evidentiary basis, which is completely lacking in this case.
59. The learned trial Court, while discussing Sections 3 and 4 of the Official Secrets Act, 1923, relied upon the post-amendment version of the law. However, the appellant's case falls within the pre- amendment period making it a significant legal error and oversight. Consequently, the principal allegations under Sections 3 and 4 of the Act are not proved within the statutory framework applicable, conviction cannot be sustained.
60. Section 3(1)(c) of the pre-amendment Official Secrets Act criminalizes the act where any person: "obtains, collects, records or publishes or communicates to any other person any secret official code or passwo rd, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy."
61. In the appellant's case, no such material has been presented on the record. The prosecution has failed to produce any document, sketch, code, or information allegedly shared, nor has it identified what was shared or with whom. The alleged foreign agent remains unidentified, with no name, address, or confirming evidence of his status as an agent of a foreign power.
62. Furthermore, Section 3(2) allows a presumption of prejudicial purpose only where there is a recovery of sensitive material and the accused's conduct or known character supports such a presumption. It provides: "...and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State..."
63. On the contrary, the appellant's Annual Confidential Reports (ACRs) (as referred in Mark-DA
(PER) in answer to question No.10 of the statement under section 342 Cr.P.C.) rate him as an outstanding officer, and there is no material on record suggesting prior misconduct, disloyalty, or suspicious conduct. As per article 67 of the QSO, the previous good conduct is relevant in criminal cases. Thus, not only there is a complete absence of incriminating material, but the appellant's known professional character and integrity also negates the presumption of intent under Section 3(2) of the Act.
64. In a nutshell, the appellant was kidnapped and remained in unlawful detention prior to the registration of the criminal case under Section 3/4 of the Official Secrets Act, 1923. This aspect stands established through the habeas corpus proceedings conducted by the Islamabad High Court in the writ petition filed by the appellant's wife. The entire prosecution evidence lacks consistency, clarity, and fails to establish a chain of evidence, either through direct or circumstantial means. Even the eyewitnesses who apprehended the appellant have not demonstrated the basic legal requirements concerning the sealing of the incriminating articles, which were further not substantiated through digital forensic analysis report. Likewise, the confessional statement was recorded in a discrepant manner without adhering to the requisite legal formalities. No element of transmission or communication of secret information prejudicial to the interest of the State has been proven. The identity of the alleged foreign agent was neither confirmed nor brought on record. The entire forensic report was not prepared in accordance with the legally prescribed standards, and the digital forensic experts also failed to substantiate the allegations. Hence, a benefit of doubt has arisen on record, and the appellant is entitled to such benefit as a matter of right and not as a matter of grace, as held in 1997 SCMR 25 (Muhammad Ilyas Vs. State) and 1995 SCMR 1345 (Tariq Parvez Vs. State).
65. In view of above, instant criminal appeal is ALLOWED and the judgment dated 30.09.2024, passed by the Special Court (Official Secrets), Islamabad, is hereby SET-ASIDE. The appellant is ACQUITTED from the charge. The appellant is on bail, his surety stands discharged.
1. 1 Creating a forensic image of the device; Verifying hash values; Identifying Indicators of Compromise (IOCs); and Constructing a technical timeline of intrusion.
2. Dr Usman Hameed, Zarfishan Qaiser and Khushbakht Qaiser, 'Admissibility of Digital Evidence: A Perspective of Pakistani Justice System' (2021) 5(4) Pakistan Social Sciences Review 518.