P L D 1952 Lahore 384 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by Govern ment from an acquittal on a charge under section 292 of the Penal Code. The respondents are Arif Abdul Matin, Nasir Ahmad and Saadat Hasan Minto who were tried by Mian A. M: Saeed, Magistrate, 1st Class, Lahore, for having publishes obscene matter and convicted and sentenced the first two to a fine of Rs. 300 each and the third to three months' rigorous imprisonment and a fine of Rs.

300. On appeal Mr. Inayat Ullah Khan, Additional Sessions Judge, Lahore, reversed the Magistrate's decision and acquitted the respondent. Arif Abdul Matin is the editor and Nazir Ahmad the publisher of an Urdu magazine called "Jawed". In March 1949, this magazine published a short story entitled "Thanda Gosht" (cold flesh) which was contributed by Saadat Hasan Minto. The prosecution of the respondents was the result of the publication of this story which was alleged by the prosecution to be obscene and thus punishable under section 292 of the Penal Code. The authorship and the publication of the story were admitted but the defence taken was that the story was a piece of literature and not obscene. The learned Magistrate held the story to be obscene and convicted but the learned Additional Sessions judge has accepted the defence and allowed the appeal; The short question before us is whether that story is obscene within the meaning of section 292 of the Penal Code. There are only two characters in the story, Ishar Singh and his mistress Kulwant Kaur. Ishar Singh is portrayed as a strongly built and a swaggering swearing Sikh and Kulwant Kaur as an equally well‑built voluptuous woman. During the communal disturbances of 1947 Ishar Singh put to the sword several people and grabbed their belongings. Once he raided a house in which lived seven members of a family. He killed six of them and abducted the seventh who was a beautiful girl. Lifting her on his shoulders, he took her to some cactus bushes, laid her on the ground and was about to enjoy her when to his horror he found the girl to be dead. A few days later when he attempted to have sexual intercourse with Kulwant Kaur, he found himself helpless as his sex centres would not work Eight days after this, he again came to Kulwant Kaur having deter mined to have intercourse with her and though both of them did their best, Ishar Singh still found himself physically helpless. Kulwant Kaur guessed that some other woman had come in between herself and Ishar Singh and taxed him with queries. He had then to tell her what he had done and what had befallen him. In its outline the story is, perfectly innocuous though it is a question whether what is narrated is a likely sexual pheno menon. It is the details of the story and the words used by Ishar Singh in his conversation with Kulwant Kaur that are alleged by the prosecution to be obscene. Some of the expressions used are extremely vulgar while others are crude metaphors having reference to the performance of the sexual act. The most objectionable scene, however, is that where on his second visit to Kalwant Kaur Ishar Singh attempts to prepare her and himself for the sexual act. The technique of a debauch is described there in plain terms. The passage is full of references to Kulwant Kaur's naked body and describes in full details what he did to her in order to bring her to the pitch of a "boiling kettle". These preliminaries are described by a metaphor "phaintna" and the culminating act by "patty phainkna" Judged by every standard of decency, this passage is definitely obscene. It is true that morality and obscenity are comparative terms and what is obscene or immoral in one society may be considered to be quite decent and moral in another. But while considering the question whether certain words or representa tions are obscene or not, one has to apply standards that are current in the society in which those words have been 'uttered or representations made. In the present state of society in this country or anywhere else in the civilised world, there can be no doubt that a description of the acts preparatory to sexual intercourse, however graphic or lifelike that description may be, would be considered obscene. In the trial Court several men of letters were examined for the defence or as Court witnesses on the question whether the story in question was obscene. Dr. I. Latif, Head of the Department of Psychology, F. C. College, Lahore, as D. W. 7 stated that the story had the tendency to inflame sexual passions and that it should not have been published in a popular magazine. Maulana Ihsan Ullah Khan Tajwar Najibabadi, Professor Dyal Singh College, Lahore, C. W. 1, considered the article to be disgraceful, written in bad taste and low style and stated that during his forty years' literary life he had never come across such a despicable and filthy article. Similarly, Shorish Kashmiri, C. W. 2, expressed the opinion that keeping in view the society and family to which he belonged he would not publish such an obscene and naked article and that he would not let his boys and girls read it. Maulana Abu Said Basmi, Editor, Ihsan, Lahore, C. W. 3, deposed that the story had a tendency to degenerate morals. The point emphasized by Minto respondent in his written statement is that it is the intention of the author which deter mines whether the words used are obscene or not and this contention of his receives support from several literary gentle men who have given evidence for the defence, e.g., Mr. Abid Ali Abid, Principal, Dyal' Singh College, Lahore, Mr. Ahmad Said, Professor, Dyal Singh College, Dr. Khalifa Abdul Hakim, Head of the Department of Philosophy and Psychology and Ex. Dean of the Osmania University, Dr. Said Ullah, Civilian Officer, Royal Pakistan Air Force, and Sufi Ghulam Mustafa Tabassum, Professor Government College, Lahore. It is regrettable that this issue should have been made in the trial Court the subject of controversy between men of literature and surprising that there should have existed a difference of opinion between them in regard to the story in question being obscene. Whatever conception of art and literature those who considered the publication in question to be innocuous may have, it becomes necessary to remind them that they are completely mistaken in their conception of "obscenity" as used in law. Since the case of Reg v. Hicklin 1868 L R 3 Q B 360, one test of obscenity has always been whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to immoral influences and into whose hands a publication of this sort may fall and that the motive, or intention in publishing the work does not prevent it from being,, obscene if the descriptions in it are in themselves obscene. This definition has been consistently followed in several cases in this country of which the latest is Kailashchandra Acharjya v. Emperor I L R 60 Cal. 201, which is a fully argued out case on the subject. The passage in the story, to which special reference has been made earlier in this judgment, is full of grossly indecent and sexual details of a sexual episode and would undoubtedly suggest to the minds of the young of either sex, and even to persons of more advanced years, thoughts of~ lewd and libidinous situations. It is wholly immaterial what the intention of the author in writing the story was ; what matters in such cases is the tendency and not the intention. Were it otherwise, a girl parading the symmetry, outline and develop ment of her body by walking along the Mall in a state of nudity would not be guilty of any obscene act if her intention in so doing' were to display the physical advantages of the cult of nudism. But, in the instance given, can there be two opinions whether her act would or would not be obscene? It now remains to notice another point taken by the learned counsel for the respondents. We have already pointed out that the charge against the respondents related to the entire story. Learned counsel's objection is that the respondents having been acquitted by the learned Additional Sessions judge, it was the duty of the learned Advocate‑General to particularise the passages in the story which, according to the prosecution, were obscene, particularly when in the grounds of appeal it was alleged that only some passages in the story were obscene. We do not see any force in this contention because the publication alleged to be obscene is not a book but only a small story, the whole of which is alleged to be obscene. But apart from this, we adjourned the hearing of the appeal when this point was raised to enable learned counsel for the respond ents to receive notice from the Advocate‑General of the passages which the prosecution alleged to be obscene. These passages were consequently indicated and include the passage to which we have specially referred. For the reasons given above, we find all the respondents guilty and since very perverted notions of decency in literature seem to prevail in. some literary circles of Pakistan, of which Minto is a member, we sentence each of the respondents to pay a fine of R. 300 each or to undergo rigorous imprisonment for one month. A. H. Respondents sentenced.