The Recording of Conversation in which you are a Participant is generally not considered Illegal Wiretapping

The Recording of Conversation in which you are a Participant is generally not considered Illegal Wiretapping

...V.V.V.V. IMPORTANT MUST READ JUDGEMENT...

The recording of a conversation in which you are a participant is generally not considered illegal wiretapping, even if the other person is oblivious. Nevertheless, it is illegal to record a conversation between two other individuals. The admissibility of audio recordings as evidence in court is subject to specific legal standards, and the courts are also obligated to evaluate the implications of such evidence in the context of established legal principles and ethical considerations. The evidence must be pertinent, duly obtained, and not infringe upon the rights of any of the parties involved. The act of secret recording is an offense in itself, and the complainant's illegality cannot serve as the solitary basis for convicting an accused.

It is important to note that the act of secretly collecting information about a private conversation of another individual without their consent in order to use it for the purpose of extortion or other illegal purposes is considered criminal conduct. The Prevention of Electronic Crimes Act, 2016 ("PECA") also recognizes the act of unauthorized surveillance, despite the fact that section 389 PPC (punishment for criminal intimidation) has been invoked in cases involving blackmail through concealed cameras. The unauthorized taking, capturing, or transmission of a person's image or voice with dishonest intent is explicitly criminalized in section 23 of PECA. It is important to note that there is a distinct distinction between (a) routine recordings that are made in the ordinary course of duty, and (b) recordings that are made "for the purpose of laying a trap to procure evidence."

It is also important to note that when a complainant resorted to unlawful surveillance, he was transformed from victim to offender. Similarly, the individual against whom such audio and video were leaked is a victim, not an accused.

It is worth mentioning, the right of privacy is firmly embedded in Islamic jurisprudence and constitutional thought. The Holy Qur'an unequivocally commands: "Do not spy (la tajassasu)" (Surah Al-Hujurat 49: 12). The injunction establishes the inviolability of the home and prohibit unwarranted surveillance. A well-known incident from the era of Hazrat Umar ibn al-Khattab (RA) reinforces this principle: it is reported that while patrolling at night, he observed light and heard voices from within a house and suspected wrongdoing. Upon entering by climbing over the wall, he found individuals engaged in drinking. When he reproached them, they responded that while they had committed one sin, he had violated multiple commands of Allah, in regards to spying, entering without permission, and not approaching through the proper door. Hazrat Umar (RA), acknowledging the breach, withdrew and refrained from imposing punishment. This incident illustrates that even in the face of suspected illegality, the sanctity of the home and the prohibition against surveillance without lawful authority remain paramount, thereby affirming privacy as a protected right that cannot be curtailed except strictly in accordance with law.

We are aware of the dictum established by this Court in the case of Zahir Jaffer (2025 SCP 220), in which the petitioner was sentenced to death under the doctrine of" Silent witness." Nevertheless, it is important to note that the CCTV footage in Zahir Zakir Jaffar's case was obtained from a security system that was permanently installed and operated on a regular basis at the location where the offence was committed. The law enforcement agency extracted it from the original DVR and hard disk. The Punjab Forensic Science Agency conducted a forensic examination and certified that there was no editing as well as affirmative facial recognition. The evidence in the aforementioned case was forensically verified, authenticated, and primary. In the present circumstance, none of these characteristics are present. It is not the case that a CCTV camera that is stationary is performing its routine function. This is an instance in which a private individual secretly records a conversation with dishonest intent and subsequently attempts to convert his own criminality into the conviction of the respondents.

The issuance of a general license to every citizen engaging m warrantless surveillance of their fellow citizens would be equivalent to granting permission for conviction based on this type of evidence. It is certain that this will result in societal unrest and a significant erosion of its fundamental values. As a result, every citizen will be empowered to act as a prosecutor, technician, and witness, circumventing constitutional safeguards and investigative procedures. To imbue such illegality and unethical behaviour with judicial legitimacy would be to violate our Constitution. It is impossible to justify private surveillance that violates the law, as it is in direct opposition to the principles of Islam and fundamental rights.

Criminal Petition No. 248-L/2016

Basharat Ali Chaudhry vs Sabir Ali, etc.

24-02-2026