Digital evidence now considered primary one: SC

ISLAMABAD: The Supreme Court (SC) has held that digital evidence is now considered primary evidence, noting that if CCTV [closed-circuit television] footage meets the required standard, it does not need further authentication.

A three-member SC bench, headed by Justice Muhammad Hashim Khan Kakar, and comprising Justice Ishtiaq Ibrahim and Justice Ali Baqar Najafi, issued detailed judgment in Noor Mukadam murder case.

The court on May 20, 2025 had dismissed the appeal of Zahir Jaffer, who was convicted twice with death sentence in the high-profile Noor Muqadam murder case.

The court had upheld Zahir Jaffer’s death sentence but commuted the death penalty under the rape charges to life imprisonment.

Noor Muqadam (27), daughter of former Pakistani diplomat Shaukat Muqadam, was beheaded in a posh area of the federal capital in July 2021. The police had charged Jaffer, a US national with murder.

“In criminal cases, video footage obtained through a reliable system can automatically qualify as evidence,” says a 13-page detailed judgment authored by Justice Muhammad Hashim Khan Kakar.

The court declared that the appellant, Zahir Jaffer, is the brutal murderer of Noor Mukadam and, therefore, does not deserve any sympathy. Based on this, the decisions of both lower courts are declared unanimously valid.

The court noted that CCTV video showing the physical assault on Noor Mukadam, along with the DVR and hard disk, are admissible pieces of evidence, adding that there was no evidence of any tampering with the video recordings, and the identification of the accused was found to be accurate.

The court noted that the DNA report confirmed the occurrence of sexual assault, and the murder weapon also had the victim’s blood on it. Furthermore, the court held that the accused failed to provide any explanation for Noor Mukadam’s presence in his home. The court observed that, under the ‘Silent witness theory’, video evidence is admissible even without an eyewitness. Authentic footage can serve as evidence in itself.

“Recorded video or photographs can be presented as proof while footage obtained from a reliable system can be considered direct evidence,” said the detailed judgment. The court noted that in a bank robbery case, video footage was accepted without a witness, adding that the ‘Silent witness’ principle has been widely accepted in American courts. The court acknowledged that the videos of the physical assault on the victim presented by the prosecution were valid evidence. The court held that “it is a well-known fact that technology has become so ingrained in our lives that everyone is utilising one form of technology or another.

“Criminals are also employing this in our society, establishing a trail for digital forensics to follow in order to uncover their crimes,” the court ruled.

“It is important to note that we were unable to capitalise on digital evidence for an extended period of time due to the following factors: Firstly, our courts were previously reliant on traditional methods of evidence collection and presentation,” the court held.

Secondly, the court noted that digital evidence was admissible only under Article 164 of the Qanun-e-Shahadat Order, 1984 (“QSO of 1984), which allows the court to admit any evidence that is obtained through the use of modern devices if it is deemed appropriate.

“Thirdly, the evidence was considered hearsay. Nevertheless, in light of the growing importance of tracing and identifying the perpetrators, some critical legislative changes were implemented to grant digital evidence the status of primary evidence,” Justice Kakar ruled.

The court held that the Electronic Transactions Ordinance (ETO) was implemented in 2002 to capitalise on the advantages of information technology.

“This Ordinance has resulted in modifications to other laws, such as the QSO of 1984, that pertain to the admissibility of digital evidence and it has also designated such evidence as primary evidence,” the detailed verdict ruled.

In its decision, the court upheld the death penalty of Zahir Jaffer for the crime of murder. However, the death sentence for the rape charge was converted into life imprisonment. The court annulled the sentence for kidnapping Noor Mukadam but maintained a one-year imprisonment for unlawful confinement.

The sentences of co-accused — security guard Muhammad Iftikhar and household servant Muhammad Jan were also upheld, but the time they had already spent in custody was counted toward their sentences.

Justice Ali Baqar Najafi, a member of the bench, will also record a separate additional note on the case.