P L D 1960 (W (PLP)

"The Courts have, more often, restricted the use of the term obscenity to sexual immorality only. Such matters as would tend to stir in persons, into whose hands such matter is ordi narily expected to reach, sex impulse which lead to sexually impure and lustful thoughts, are declared as obscene, attracting the jurisdiction of the Court to ban out such publications. The true test is not to find out what depraves the morals in any way whatsoever, but what leads to deprave only in one way, viz., by exciting sensual desires and lascivious thoughts. The effect produced on an ordinary member of a society, or a particular class or readers for which a particular publication may be meant has to be ascertained. It is neither a man of wide culture or rare character nor a person of a depraved mentality who should be thought of as being the reader of such literature. The standard of readers is neither one of exceptional sensibility nor one without any sensibility whatsoever. "Scientific treatises and Journals are not to be tested in the same way as books and papers which are published for being read by the common and ordinary man and women." It was further held in this case that the manner in which the pictures had been selected and the various descriptions were given had only one effect. Its sole object was to exploit the base instinct in human nature and the passages and the pictures came within the purview of section

292. The decision reported as M. Ramamurthy v. State of Mysore (A I R 1954 Mys. 164) related to the case of the Editor of a monthly journal known as "Kama Kala". The allegation was that the accused was distributing and had put into circulation this journal which contained obscene writings and pictures. The test laid down by Chief Justice Cockburn in Hicklin's case was followed in this case as well and it was further observed as follows :‑ "It is the effect of the publication on the mind of an ordinary young person that has to be considered in deciding whether it is obscene or not. Whether the book is obscene is a matter in which the Court is entitled to rely on its own judg ment as well as the evidence of witnesses in support of this finding of fact." Paragraph 6 of the judgment in the above case opens with the observation: "It may be added that works of art are never considered as obscene." However, there is no discussion of the point, nor is there‑ any reference to it in the whole of this para graph except the opening sentence which stands more or less in isolation from the rest of the paragraph. Mr. Ejaz Hussain, however, placed his reliance on this sentence in this judgment.

11. In a recent decision of the Central Criminal Court reported in R. v. Martin Secker Warburg, Ltd. (All E R Vol. II 683) which dealt with the publication of a novel called "The Philanders by Stanley Kauffman, Stable, J. observed as follows:-- "In applying the test of obscenity laid down in R. V. Hicklin (1868) (L R 3 Q B 371) the jury must decide whether the tendency of any publication alleged to be obscene is to corrupt and deprave those whose minds today are open to immoral influence and into whose hands the publication may fall at the time when it is published or in the future. Accordingly, in deciding whether a recently published novel, admittedly absorbed with the sex relationship of man and woman and purporting to describe contemporary life, is an obscene libel, it is necessary to take into account the changed approach to the question of sex since R. v. Hicklin was decided. A book is not obscene merely because it is in bad taste or because it is an undesirable book."

12. In the well‑known case of Crown v. Saadat Hassan Minto (P L D 1952 Lah. 284) Chief Justice Munir of the Lahore High Court as he then was, observed as follows :‑ "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 representations 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". Referring to the evidence of a number of literary men who had been examined as witnesses evidently to extol the literary and artistic aspects of the book to prove that they did not consider it obscene, the learned Chief Justice observed as follows :‑ "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 differ ence 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 word does not prevent it from being obscene if the descriptions in it are in themselves obscene".

13. Upon examination of these cases, the conclusions which I have reached and which are relevant for the decision of the present petition are these:‑-"Obscenity" as understood in law consists of publishing or exhibiting such matter or object which has the tendency to corrupt the minds of those who are open to immoral influences by exciting in them sensuality and carnal desire. In determining whether a certain picture or writing is or is not obscene, it would not do to apply the test of an artist because if that were so, obscenity perhaps would never be culpable for to people who profess to represent art perhaps nothing might be obscene unless the so‑called object of art is clumsy, vulgar, commonplace and wholly lacking in technical efficiency. But for the purposes of construing "obscenity" in penal law, this standard would be wholly inapplicable. Strictly speaking a picture may be perfect in its technique and may also depict the beauty of human body, yet if the overall effect of it upon the minds of those who are open to immoral influence is such that it has a tendency to exercise sensuality and give rise to immoral thoughts, it would, in my opinion, be obscene within the meaning of section 292 of the Pakistan Penal Code. When I speak of the minds which are open to immoral influences, I am certainly not thinking of abnormal cases of persons who are easily excited sexually or whose minds are depraved I am thinking of a normal person, particularly of the youth, whose minds have not reached such a stage of artistic maturity that they would be completely impervious to such exposition so long it has certain artistic value. The normal man, therefore, in this context is neither an artist, nor the lover of art nor a physician nor a surgeon, nor, on the other hand, the sexual pervert and the mentally depraved. In order to determine whether a picture or writing is obscene or not, it would also be necessary to see the prevailing normal standards and conditions of the society in which such an object is circulated, or is likely to be seen or read. Because it may be that what may be considered obscene in a strictly religious or dogmatic society might not be so considered by those who claim to be of more advanced ideas and of liberal way of thinking. But I do not believe that even in a so‑called liberal society the exposing of the female form with all the nakedness of the flesh would fail to have an immoral influence in some measure upon the normal members of such a society.

14. Mr. Ejaz Husain says that according to the majority of the witnesses, who gave evidence in this case, these photographs were not obscene. These witnesses, according to him, are drawn from various classes of persons and if in the opinion of the majority these pictures did not excite immoral thoughts, the inference should be 'that they are not obscene from the normal standard. I do not, however, think that is the true test, or the correct method by which the obscenity of an object is to be decided for the purpose of deciding whether a certain matter is or is not obscene within the meaning of the Penal Code. I do not say that such evidence as comes before the Court in a case of this character has to be disregarded and I also do not say that the witnesses who deposed in this case in favour of the proposi tion that these pictures were not obscene had any consideration other than the exposition of their own view as it occurred to them, but I must point out that the duty of determining whether a certain writing or a picture is or is not obscene must ultimately devolve upon the Court which, of course, will take into considera tion the evidence before it but which ultimately must be the judge of the question in so far as it comes within the mischief of section

292. The consideration which seems to have weighed with most of these witnesses on whose evidence Mr. Ejaz Husain relies was the fact that they thought that these photographs were work of art and, therefore, they were not obscene. For, I am quite sure that none of these witnesses would have subscribed to a proposition that a young woman with a beautiful physical form could go about naked openly on the road without being guilty of causing obscenity. But what is the difference, as far as the visual effect is concerned, between a naked live woman and the photograph of a naked woman who somewhere exists in flesh and blood, with the tender parts of her. body magnified and emphasised under the expert handling of a cameraman. In spite of all this talk about artistic considerations the fact remains that woman in our society still cover their bodies when they appear in public. If the exposure of the body of the human form was purely a thing of art and, as such, not objectionable, why is it that in all civilized societies it has not been considered decent to appear in public without proper covering of the body. Even the bikini covers the breasts and the private parts and the hips. There must be some reason why these parts are not exposed. The only explanation can be that if so exposed, they have a tendency to excite sensual thoughts. In Minto's case this is what Chief Justice Munir observed :‑ "Were it otherwise, a girl parading the symmetry, outline and development 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 ? " In this particular case, we know it that this shop is visited by students of colleges and schools because it is students' book shop and these albums are almost certain to fall into their hands. Could it then be doubted that the seeing of these photographs would suggest lewd and immoral thoughts in most of them ? It will be interesting to note that even some of these witnesses, who started by saying that they did not consider these pictures to be obscene, had to admit that they would not like them to be seen by boys and girls because, as they put it, their minds might not be mature and cultured enough not to be immorally influenced. This shop is not visited only by students of art or professors and doctors. These albums could be brought by anyone who was interested in seeing these photographs, and it is a matter of common knowledge that people who are most anxious to buy such pictures or literature are those who are not generally motivated by artistic sense. Besides, it may be well to note that the pictures in question are not drawings so as to suggest the artistic representation of an imaginary person, but they are all photographs of real living females and it will be very difficult for a normal person, particularly the youth, to completely become oblivious of the fact that the picture was of someone who was very much a physical reality.

15. But Mr. Ejaz Hussain says that sex by itself is not obscenity and the causing of sexual excitement is not the test ; that may be the result of inhibitions and taboos. But can it be denied that what are described as inhibitions and taboos marked the beginning of the civilised society ? Sex, of course, constitutes a strong urge, but is it not for that very reason that society has applied certain restraints upon it in the larger interest of its stability and sanctity of family life ? The institution of marriage is a patent example of such a restraint. "Taboos" may sound horrifying to some, but haven't some of the taboos exercised a constructive influence in subordinating the animal instinct in a man for the larger good of the community ? The laws are also fashioned in order to apply the restraints for the maintenance of orderliness in society. And it is the more impetuous member of the society whom the law is designed particularly to restrain and apply a curb upon. If our urges were allowed to run amuck without any proper checks, the society itself might disintegrate.

16. It is interesting to note that except for three photographs all these albums which have been exhibited in this case contain only the naked form of the female ? Surely, it could not be said that the beauty of human body is limited to the female form only‑? On the other hand, men who are more given to exercises and body‑building pursuits surely could be the more popular object of exposition of the beauty and prowess of the physical form. But why then the exposition of female form only ? The reason is obvious. Because that would not have the necessary appeal and, therefore, their publication might not be profitable commercially. In the book "Sexual Behaviour in the Human Female" cited before me the learned counsel for the petitioner the following appears at page 653 :‑ "Photographs of female nudes and magazines exhibiting nude or near nude females are produced primarily for the consump tion of males." At page 652 of this book, there are some further interesting facts and comments. This is what has been said :‑ "Something more than half (54 per cent.) of the males in our sample had been erotically aroused by seeing photographs or drawings or paintings of nude females, just as they were aroused upon observing living female's." And why, one is compelled to ask, the beauty of the female form is capable of being exposed only by nudity ? The exposition of the beauty of the female form could still be achieved if the breasts and private parts were covered. But obviously such pictures would not have the same appeal nor what is more important the same market.

17. For the foregoing reasons, I have come to the conclusion that most of the photographs in the albums seized in this case from the shop of the petitioner have clearly the tendency to corrupt the minds of persons in whose hands they are likely to fall and they are obscene within the meaning of section 292 of the Pakistan Penal Code. I, therefore, uphold the conviction of the petitioner. But as for the punishment, I do not think that a sentence of imprisonment is called for. As we have seen there was sizable diversity of opinion even amongst the highly educated people with regard to the fact whether these pictures were obscene and the petitioner may have also held the same view with some e reasonableness: That is no consideration so far as the question) of the determination of the offence is concerned, but it can certainly be taken into account in the matter of sentence. I, therefore, set aside the sentence of three months' rigorous imprisonment passed upon the petitioner by the learned Magistrate and upheld by the learned Additional Sessions Judge, and instead impose upon him a fine of Rs. 1,

000. In default of payment of this fine, the petitioner shall bear rigorous imprisonment for three months. I, therefore, allow this petition on the question of sentence, but with this modification I dismiss the revision petition. A.H. Order accordingly.