P L D 1979 Lahore 279 (PLP)

Nemat Ali (petitioner in Writ Petition No. 5916/78), Muhammad Iqbal (petitioner in Writ Petition No. 5921/78) and Taj Muhammad (petitioner in Writ Petition No. 38/79) alongwith nine others were tried by Summary Military Court No. 2, Lahore for offences under section 292, P. P. C. read with section 1560)(89) of the Customs Act. They were convicted by the said Military Court vide its order dated 30-12-1976. Nemat Ali was sentenced to two months rigorous imprisonment and a fine of Rs. 3,

000. In default of fine he was to undergo rigorous imprisonment for one month. Muhammad Iqbal was sentenced to a fine of Rs.

500. He was to undergo one month's rigorous imprisonment in case of default in the payment of fine. Taj Muhammad was sentenced to two months' rigorous imprisonment and fine of Rs. 2,

000. In case of default in the payment of fine he ordered to undergo one month's rigorous imprisonment.

2. Nemat Ali, Muhammad Iqbal and Taj Muhammad have challenged their conviction and sentence by the said Summary Military Court by means of these three writ petitions. This judgment will dispose of the aforesaid three writ petitions.

3. Nemat Ali petitioner was charged under section 292, P. P. C. as having in his possession obscene literature on 19-1-1978 at Nemat Art Press. He was not charged under section 156(1) (89) of Customs Act. Muhammad Iqbal was charged as having in his possession obscene literature on 14-1-1978 at his house in Qila Guar Singh. He was found to be in possession of magazine entitled "Tip Top". He was charged for offence under section 292, P. P. C. Taj Muhammad was charged as having in his possession obscene literature on 19-1-1978 at his house in Dhaka Colony. The obscene literature was described as a magazine entitled "Roshani". He was further charged for having in his possession obscene smuggle) literature described as "Ram Lal Tegbram" punishable under section 156(1)(89) of Customs Act.

4. All the accused denied the allegations against them.

5. Nemat Ali submitted that he was owner of Nemat Art Press and he published books relating to Islam. He added that nothing whatever was recovered from his Press although his Press was raided on a number of occasions by the police. It was merely alleged that he has produced a magazine "Rosbani". Muhammad Iqbal stated that he has beets involved in this case falsely. He pleaded innocence. He stated that he was employed as peon in WAPDA and that he had never indulged in the sale of obscene literature as alleged by the prosecution. Taj Muhammad stated that he had nothing to do with the sale of obscene literature. He deposed that he sells School and children books as well as stationery goods. He further submitted that he was tortured by the police and treated in a most cruel manner and that he was given severe beating by the Police Inspector who demanded Rs. 2,000 from him as bribe.

6. Prosecution has produced five witnesses in the case. Muhammad Razzaq, Hav. Field Intelligence Unit appeared as P. W.

1. He deposed that his Commanding Officer, Major Abdul Hameed accompanied him in plain clothes when he purchased a magazine entitled "Tip Top" from Muhammad Iqbal petitioner for Rs.35. Muhammad Iqbal was arrested on 10-1-1978. During investigation it also transpired that Taj Muhammad was also dealing in obscene literature at his shop in Main Market, Gulberg. His shop was raided on 19-1-1978 and obscene literature was recovered from his shop which were taken into possession vide recovery memo. Exh. O. He also added that Nemat Ali voluntarily reported to C. I. A. Staff on 19-1-1978. He was detained at C. I. A. Headquarters and Nemat Art Press was raided and one Urdu magazine "Roshani" was recovered. It was taken into possession vide memo. Exh. Q, This witness also deposed about the other accused in the case but that would not be relevant for the present Writ Petitions. In cross-examination this witness admitted that Muhammad Iqbal was arrested by Major Abdul Hameed. This witness was not able to tell the correct name of the hook shop of Taj Muhammad. He further stated that when he joined the raiding party the accused/Taj Muhammad petitioner was in the custody of the polica. He stated that the accused's shop was searched after his arrival at the spot. He further admitted in cross-examination that at the time of recovery no public witnesses were present. As regards Nemat Ali petitioner, Muhammad Razzaq stated that he visited Nemat Art Press three times and that on two occasions the accused was not present there and the Press was searched and that the petitioner voluntarily appeared at C. I. A. Staff' alongwith the obscene magazine which was recovered from him. He also added that even at the time of raid of the press of Nemat Ali no public witness was present. Habib-ur-Rehman A. S. I., C. I. A., appeared as P. W.

2. This witness has not said a word about the present petitioners. He was not even cross-examined by them. Nazir Ahmad S. 1. (C. I. A) appeared as P. W.

3. He stated that on 14-1-1978 Abdul Razzaq P. W. 1 produced Muhammad Iqbal alongwith some co-accused and with some obscene literature which was recovered from the persons other than the present petitioners vide memo. Exh. M. He further added that on 19-1-1978 the shop of Taj Muhammad petitioner at Ghalib Market, Gulberg was raided. The accused revealed that he had some obscene literature with him at his house in Dhaka Colony. Taj Muhammad petitioner led them to his residence from where a bundle of obscene literature, books and magazines were recovered which were taken into possession vide recovery memo. Exh. O. He further deposed that no one from public was present at the time of recovery and no public witness joined the investigation at the time of the raid on the shop. Ch. Fazal Muhammad, Inspector C. I. A., P. W. 4 stated that on 14-1-1978 he got information that the obscene literature was being printed at Nemat Art Press under the supervision of Nemat Ali and others and that Muhammad Iqbal along with other accused used to sell the magazine in the open market. It was on this basis that a formal F. I. R. Exh. W/1 was recorded by Muhammad Aslam A. S. I. at New Anarkali Police Station. He investigated the case and challaned the accused in the case. He stated that Nemat Ali accused himself appeared before the police and voluntarily produced the obscene magazine "Roshani" from his possession which was taken into possession vide memo. Exh. Q-the magazine is exhibited as Q/1. In cross-examination he admitted that there was no public witness to the recovery of obscene material which was recovered from the custody of Taj Muhammad. He further admitted in cross-examination that at the time of raid of the Press of Nemat Ali no negative, positive or any material concerning the printing of obscene literature was recovered apart from the magzine "Roshani" Exh. Q. mentioned above. Once again no witness from public has attested any recovery or raid. Ch. Nazar Hussain S. I., C. I. A. P. W. 5 stated that it was at the pointing out of Nemat Ali that the magazine "Roshani" Exh. Q was recovered from his possession. He also added that the shop of Taj Muhammad was raided but obscene magazine was recovered from his house. He stated that it was not within his knowledge if any effort was made to get any one from the public to witness the raid or the recoveries although there were many houses in that locality.

7. The petitioners also led evidence in their defence. These witnesses deposed about the good conduct of the petitioners.

8. Record has been produced by Mr. Asif Jan, learned Assistant Advocate-General and perused with the help of the learned counsel for the parties.

9. It may be mentioned at the very outset that this so-called "obscene literature" allegedly recovered from the petitioners in the case is not forthcoming on the record. Attention of the learned Assistant Advocate. General was specifically drawn to this. He submitted that he had been informed by Mr. Muhammad Zubair, Assistant Advocate-General posted in the Martial Law Headquarters, Assembly Chambers, Lahore, that the various exhibits/the alleged obscene literature (the very basis of the conviction of the petitioners) was not available in the record.

10. In exercising its power of judicial review this Court is concerned with the examination whether the impugned action reasonably falls within the mischief of section 292, P. P. C. and whether the material on the basis of which the present petitioners have been convicted is in fact obscene within the meaning of section 292, P. P. C. As stated in paragraph 9 above no alleged obscene literature has been placed on the record of this Court to enable it to exercise its power of judicial review nor has any witness adduced by the prosecution in the case described the nature of this obscene literature. The term `obscene' is not defined in the Code. The natural and ordinary meaning of the word `obscene' as given in the dictionary is this . "Offensive to chastity, or modesty, expressing or presenting to the mind or view something that delicacy, purity and decency forbid to be expressed ; impure as obscene language, obscene pictures. Offensive to modesty or decency ; expressing or suggesting unchaste and lustful ideas ; impure, indecent, lewd." The test of obscenity laid down by Cockburn, C. J., in R. v. Htcklfn (1) (1868) L R 3 Q B 360, which is invariably relied on in most of the later authorities on the point ie : "Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to immoral influence and in whose hands a publication of this sort may fall." The aforesaid dictum has been followed eversince 1868 by the courts in England as well as in the Sub-Continent. Some of these cases may be cited below . R. v. Reiter and others (1954) 1 All E R

741. R. v. Mar, in Seeker Warburg, Ltd. and others (1942) 2 All E R

683. Sreeram Saksena v. Emperor A I R 1940 Cal.

290. Yaqub Beg v. The State P L D 1960 Lah.

172. It is to be noted that what is obscene cannot be determined by the options of majority of witnesses nor is the opinion of any particular witness a true test whether a particular book/material is obscene or not. It is the. duty of Court to decide on the facts of each case whether the material is obscene or not. Whether a picture/photograph/article is obscene depends upon surrounding circumstances and facts in each and every case. 11.. In the present case not only that the so-called obscene literature allegedly recovered from the petitioners is not on the record, there is no observation by the trial Court which should point out or state distinctly what were the particular representations and words or pictures or photographs or caricatures which it found on evidence to be obscene within the C meaning of section 292, P. P. C., nor are we told that in what manners this `literature' or `magazines' had the tenancy to corrupt the mind of those who were open to immoral influence by exciting in them sensuality and carnal desire. In the circumstances I hold that there was no material/evidence on which the conviction and sentence of the petitioners could be sustained in this case.

12. There is nothing on the record to suggest that any warrant for the search or raids on the premises of the petitioners was ever issued by any Court of competent jurisdiction. Press of Nemat Ali was raided on number of occasions. Similarly shop and house of Taj Muhammad p petitioner was searched and raided without any warrant whatsoever. There has been a clear violation of sections 96 and 98 of the Criminal Procedure Code. Muhammad Razzaq P. W. 1 deposed that Major Abdul Hami arrested Muhammad Iqbal petitioner on 10-1-1978. There is nothing on the record to indicate that this Army Officer was competent to apprehend Muhammad Iqbal petitioner or for that matter investigate the case. His E entire conduct ire acting as a decoy witness and then arresting Muhammad Iqbal is not warranted by any law. The investigation in the case was required to be conducted under the provisions of Criminal Procedure Code. But it appears that neither Major Abdul Hamid, the Army Officer, nor other police officers who appeared as witnesses in the case bothered to follow the provisions of Criminal Procedure Code. Almost all the prosecution witnesses had deposed that no respectable inhabitant of the locality in which the premises of the petitioners were situated attended or witnessed the searches and various raids conducted by the police. In fact no public witness whatsoever had ever witnessed these raids/searches or attested various recoveries affected from the petitioners. There has been a deliberate violation of the provisions of section 103, Criminal Procedure Code in the case. The so-called recoveries, therefore, cannot be used against the petitioners.

13. In the light of the above discussion I hold that there was not material on the record on the basis of which the conviction and sentencd of the petitioners in the case could be maintained. Their conviction and sentence by the Summary Military Court is declared to be illegal and[ without lawful authority and is set aside. They shall be released forthwith unless they are wanted in any other criminal case. s. A. H. Petitions accepted. Convictions set aside.