The Lahore High Court (LHC) delivered a landmark judgment on Thursday, clarifying the scope of criminal liability in cases involving WhatsApp groups. Justice Tariq Saleem Sheikh held that merely creating or administering a WhatsApp group does not automatically render a person criminally liable for every message posted by its members. Similarly, passive membership, receipt of content, or failure to leave a group does not constitute a criminal offence.
Court’s Key Observations on Liability
Justice Sheikh observed that criminal liability must be based on a person’s own identifiable acts rather than their status as a group creator, administrator, or member. The court noted that an administrator ordinarily has no power to moderate or approve messages before they are posted and cannot be held vicariously liable for objectionable content shared by others unless evidence shows common intention, conspiracy, abetment, or active participation in circulating unlawful material.
These observations came while dismissing a post-arrest bail petition filed by an individual arrested in a cybercrime case involving allegations of circulating blasphemous material through WhatsApp groups. The petitioner sought bail in FIR No. 57/2024, registered by the Federal Investigation Agency’s (FIA) Cyber Crime Wing, Lahore, under Sections 295-A, 295-B, 295-C, 298-A, and 109 of the Pakistan Penal Code (PPC), along with Section 11 of the Prevention of Electronic Crimes Act (PECA), 2016.
Background of the Case
According to the prosecution, the complainant was added to two WhatsApp groups where several members allegedly shared blasphemous posts. After preserving screenshots, he approached the FIA Cyber Crime Wing, which registered an inquiry. Another complaint regarding the same groups was later merged into the inquiry. Investigators concluded that the petitioner had uploaded, shared, and disseminated the offensive material, leading to the registration of the FIR.
The petitioner’s counsel argued that his client had been falsely implicated and that the prosecution failed to establish he was the creator or administrator of the groups. He maintained that mere membership and recovery of a mobile phone could not prove the petitioner uploaded or disseminated the content. The defence also challenged the reliability of technical evidence, noting that the petitioner’s Vivo Y22 mobile phone, seized on April 8, 2024, remained in official custody for over five weeks before a technical analysis report was prepared, creating the possibility of misuse or tampering.
Prosecution’s Stand and Forensic Evidence
Opposing the bail plea, the assistant attorney general, assisted by the complainant’s counsel, argued that the case was not based merely on the petitioner’s membership. He submitted that six suspects had been arrested, and their phones seized. The petitioner’s phone underwent forensic examination, which specifically linked him to uploading, sharing, and disseminating the impugned material. The prosecution denied any tampering and maintained that the device remained secure throughout the forensic process.
The court noted that the Technical Analysis Report dated May 17, 2024, attributed the seized Vivo Y22 to the petitioner, identified three active WhatsApp accounts on the device, and found the allegedly offending material stored in the WhatsApp backend “sent” folder. Rejecting the defence’s challenge to the forensic evidence at the bail stage, the court observed that the mere passage of five weeks between seizure and the report did not establish tampering. The report recorded that the device was received in sealed condition through a documented chain of custody, and no independent material suggested unauthorised access or data insertion after seizure.
Legal Framework Under PECA and PPC
Examining Section 11 of PECA, Justice Sheikh observed that it criminalises preparing or disseminating information through an information system or device that advances interfaith, sectarian, or racial hatred. The court noted that although the provision does not expressly use the word “intentionally”, preparing and disseminating information are inherently voluntary acts, and criminal liability cannot arise from accidental, involuntary, or passive receipt of content.
Regarding abetment under Section 109 PPC, the court ruled that criminal liability cannot arise merely because a person created or administered a WhatsApp group. Instead, the prosecution must establish instigation, conspiracy, or intentional assistance supported by evidence.
Categorisation of Liability
For analytical clarity, the court classified potential liability in WhatsApp group cases into different categories. For group creators and administrators, mere creation or administration does not attract criminal liability. However, liability may arise where the administrator actively participates in circulating unlawful content, facilitates or encourages its dissemination, or where evidence establishes common intention, conspiracy, or abetment.
For ordinary members, mere membership, passive receipt of messages, remaining in the group, or failing to exit does not amount to preparation, dissemination, or abetment. Criminal liability must be founded upon an identifiable act such as uploading, forwarding, sharing, soliciting, or intentionally participating in the circulation of unlawful content.
The judgment further held that persons who themselves upload, forward, send, or circulate objectionable material stand on a different footing because their liability is based on their own actions. A mere emoji, expression of agreement, or brief reaction to a message should not, by itself, be treated as dissemination or preparation of unlawful content. Similarly, failure by an administrator to remove objectionable content does not automatically amount to criminal liability unless accompanied by other legally relevant circumstances demonstrating facilitation, conspiracy, abetment, or a statutory duty to act.
Application to the Present Case
Applying these principles, the court noted that the prosecution relied not merely on the petitioner’s alleged membership but also on technical evidence. The court held that although the presence of material in the “sent” folder alone may not conclusively prove that the registered user personally transmitted every message, the device was recovered from the petitioner, and at the bail stage, he did not claim that anyone else had access to or used the phone.
Concluding that sufficient incriminating material existed against the petitioner, the court held that the case did not fall within the scope of “further inquiry” under Section 497(2) of the Code of Criminal Procedure. Accordingly, the LHC dismissed the post-arrest bail application while clarifying that its observations were tentative, confined to deciding the bail petition, and would not prejudice the trial. It also directed the trial court to expedite proceedings as the suspect remained in custody.
