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Criminal Revision No. 1044 of 1958, decided on 5th Novem ber 1959.

S. 292‑"Obscenity"‑Question not to be determined by opinion of an artist but rather by reaction of a normal man and by prevailing normal standards and conditions of society‑Opinions of majority of witnesses, not a true test‑Duty of Court to decide‑Inhibitions and taboos‑Wholesome effect on society: [The Queen v. Hicklin 1868 L R 3 Q B 360 ; Emperor v. Thakar Datt 18 Cr. L J 126 ; Sreeram Saksena v. Emperor A I R 1940 Cal. 290; Sakunta Haider v. The State A I R 1952 Cal. 214; M. Ramamurthy v. State of Mysore A I R 1954 Mys. 164: R. V. Martin Secker Warburg, Ltd. All E. R. Vol. II 683 and Crown v. Saadat Hassan Minto P L D 1952 Lah. 284 ref].

S. 292‑Being in possession of obscene pictures‑ Accused's belief, that pictures were not obscene, held "with some reasonableness"‑Sentence of imprison ment altered to fine.

Ijaz Hussain for Petitioner.

Asad Ali Rizvi for Advocate‑General for Respondent.

Dates of hearing: 8th and 9th October 1959.

This is a revision application by Yaqub Beg who was convicted under section 292 of the Pakistan Penal Code and sentenced to three months' rigorous imprisonment by Mr. Muhammad Amin Lone, Magistrate 1st Class with section 30 Powers, Lahore, which judgment and sentence was upheld in appeal by Malik Muhammad Aslam Khan, Additional Sessions Judge, Lahore.

2. The petitioner is a bookseller whose shop is situated on Temple Road, Lahore. On the 6th of February 1957 Sub‑Inspector Altaf Husain seized from this shop about 22 albums which con sisted of nude pictures. The petitioner was prosecuted for an offence under section 292 of the Pakistan Penal Code on the ground that the pictures contained in the said albums were obscene.

3. The prosecution was content by proving the seizure of these exhibits from the possession of the petitioner as according to them these nude pictures were per se obscene.

4. The petitioner admitted the recovery of all the exhibits from his shop but stated that he had imported them from England and that none of them were obscene and, therefore, he had com mitted no offence. He produced five witnesses in his defence, and the learned trial Magistrate, who went into the matter in a most thorough manner, summoned as many as fifteen Court witnesses who have all given evidence in this case. I shall revert to all this evi dence presently.

5. Amongst the exhibits seized, there are fourteen copies of NUS' which is the French equivalent of Nude'. These are described as albums and are given serial numbers. These are printed in Paris and contain mostly life‑sized nude pictures of females, and in many of these the breasts, the waist, and the thighs are prominently brought out. In some of these even the pelvic region is exposed. The other set of albums bear the name 'VITUS' and appear to have been published in Switzerland. Amongst the various albums of 'NUS' and 'VITUS', I have noticed only three pictures of males. One of them is effectively covered and the other two are shown with their backs to the camera.

6. Amongst the witnesses examined at the trial, there were doctors, professors, students and some exponents of art besides a few others. D. W. 1 Shakir Ali, Principal, Mayo School of Art, Lahore, said that the photographic pictures and albums Exhs. P‑1 to P‑13 were specimens of fine art and they were not obscene. D. W. 2, Dr. Muzaffar Ahmad Qureshi, Lecturer, Clinical Psycho logy, Government College, Lahore, said that the pictures were not obscene and that a normal person would remain indifferent on their sight. D. W. 3, Dr. Khalid Ghaznavi, said that he was a sex specialist and that he had not been sexually stimulated on seeing the nude pictures in question. In his opinion, they did not evoke unchaste ideas in his mind. D. W. 4, Mr. Rashid Akhtar, Assistant Director, Radio Pakistan, Lahore, said that the photo graphic pictures contained in the albums were not obscene and that his own children had seen and possessed similar nude pictures. D. W. 5, Mr. Ishfaq Ahmad, Editor Dastango Monthly, Lahore, said that he was not sexually excited by these pictures.

7. Amongst the Court witnesses, Professor Siraj‑ud‑Din, Principal, Government College, Lahore (C. W. 1), said that in his opinion the photographic pictures were not obscene and that the purpose of the pictures was to depict and reveal the beauty of the human form. Prosessor Dilawar Husain, Principal, M.A.O. College, Lahore, (C. W. 2), said that the pictures were not obscene. He, however, went on to say that there was no absolute standard of obscenity and that he would not be very keen to show these pictures to his students, as he feared that they might show lack of artistic sense. Allama Ala‑ud‑Din Siddiqui, Head of the Department of Islamic Studies of the Punjab University (C. W. 3), stated that the pictures were obscene and had the tendency to deprave and corrupt and excite lecherous and lewd ideas. Mr. Hamid Nizami, Editor- in‑Chief, the Daily Nawa‑i‑Waqi, Lahore (C. W. 4), said that the pictures were obscene. Mrs. Anna Molk Ahmad, Head of the Department of Fine Arts, University of the Punjab (C. W. 5), stated that in her opinion the photographic pictures were not at all obscene and their obvious subject was to give beauty of design and form and, in other words, to awaken the minds of people to the sense of beauty and form. Professor Lester F. Pross, Fulbright Lecturer, Department of Fine Arts, Punjab University, Lahore (C. W. 6), said that he did not believe that the pictures were obscene and their object was to express beauty of human form. Hakim Ahmad Shuja, Secretary, West Pakistan Legislative Assembly (C. W. 7), said that the pictures were not obscene but that he would not be keen that young boys and girls should see them. He, however, thought that if they did see them, no harm would come out of them. Baidar Malik, student of the 6th year, Islamia College, Lahore (C. W. 8), said that the pictures were obscene and that the breasts and private parts of women shown in these pictures shocked his aesthetic sense. He admitted that the pictures had stimulated him sexually. Shafiq Ahmad, student of the 5th year, Islamia College, Lahore (C. W. 9), also considered that the pictures were obscene and said that be had been sexually stimulated by the sight of these pictures and they had excited in him lecherous thoughts. Maulana Ghulam Murshid, Khatib, Shahi Mosque, Lahore (C. W. 10), said that the pictures in question were obscene and that in his opinion the pictures had a strong tendency to corrupt and deprave the morals of the society. Chaudhri Muhammad Tufail, student of the 6th year, Islamia College, Lahore, (C. W. 11), said that in his opinion the pictures did not have corrupting and depraving influence. He, however, said that he would not like to look at these pictures because some parts of the female body have been so shown in them which offended his sense of modesty. Kazim Ali Kazmi, student of the 6th year, Islamia College; Lahore (C. W. 12), stated that the pictures were' not at all obscene and that their object was to impart sex education. Asad Zahur, student of the 6th year, Islamia College, Lahore (C. W. 13), said that the pictures were not obscene and that they were meant to promote keener appreciation of the beauty of human form. Sheikh Muhammad Aslam Principal, Islamia College, Lahore (C. W. 14), stated that in his opinion the pictures were obscene, pollute, indecent, offensive to morals and modesty, repulsive and disgusting, and they were likely to exercise a very demoralizing effect on those who saw them. Professor Hameed Ahmad Khan of Islamia College, Lahore (C. W. 15), stated that nudeness in itself was not obscene and that it was the point of view with which it was looked at that imported obscenity. He further stated that the symbol‑making power of imagination was immense and anything could be made into a symbol of obscenity. He said that the pictures in question were not obscene, though they could be made symbols of indecent excitation. This was all the evidence in the case.

8. Mr. Ejaz Hussain, the learned counsel for the petitioner, argued the case with great earnestness and, if I may say so, with ability. He argued that sex by itself was not obscene and the fact that the pictures caused sexual excitement was not the test to determine obscenity. That, according to him, depended upon the inhibitions of the individual. He then contended that it was only the reaction of a normal man which was to be taken into consi deration. He pointed out that out of the witnesses examined in this case, by far the majority had considered these pictures not to be obscene and that on an assessment of this evidence it was necessary to strike a norm. He said that the extreme view on either side had to be avoided and that a middle course, if adopted, would result in a norm, on which basis, he urged, these pictures could not be described as obscene. He said that merely because in these pictures the breasts of the female were emphasised it ought not to make it obscene, because emphasis of the breasts was like emphasis on any other part of the body, the purpose in each case being to depict the beauty of human form that these photographs were works of art and if these excited the sexual feelings in some people, that was not the fault of art. He produced before me a painting of Chughtai which illustrates a certain couplet of Ghalib and where also the breast is prominently shown. He further urged that the petitioner was a bookseller who mostly sold books to students and that these albums were not likely to fall into the hands of uneducated and uncultured, persons.

9. Mr. Ejaz Husain then cited a number of cases which I shall now proceed to examine. The first case is that of The Queen v. Hicklin (1868 LR 3 QB 360). The accused in this case was a member of a body styled "The Protestant Electoral Union" whose objects, inter alia, were to protest against those teachings and practices which were un‑English immoral and blasphemous, and in order to promote the objects of this society he sold from time to time at the central office of the society in London, copies of a pamphlet entitled "The Confessional Unmasked", showing the depravity of the Romish priesthood, the inquiry of the Confessional and the questions put to females in confession. Of these pamphlets, the accused sold between two and three thousand copies to any person who applied for them. It was held in that case that these pamphlets contained obscene matter and were, therefore, properly made the subject matter of indictment. Cockburn, C. J. observed in this case as follows :‑

"I think the‑test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This definition of obscenity has been almost throughout followed in later eases in most of which this decision has been noticed.

10. In Emperor v. Thakar Datt (18 Cr.LJ 126), which was a case decided by the Punjab Chief Court, the question which came for consideration was whether a journal described as "Desk Upkarak", which had been published for thirteen years and dealt primarily with questions relating to sexual health and the treatment of diseases relating to it, contained in some of its issues obscene matters. It was held in that case that "disease is a thing to be combated, and descriptions of it, with cures suggested, printed in a paper intended to reach sufferers and doctors and not likely to come into the hands of others are not criminal. On the other hand, description of defec tive sexual enjoyment, with advice for heightening and prolonging such enjoyment in the case of normal persons, should be kept out of public prints, as they amount to incentives to sensuality". This case came up before the Chief Court on appeal from an acquittal. The learned Judges held the view that whether a matter was obscene or not was a question of fact which must be left to the Magistrate. They, therefore, declined to interfere with the judg ment of the Court below. In a Calcutta case reported as Sreeram Saksena v. Emperor (A I R 1940 Cal. 290), it was held that a picture of a woman in the nude was not per se obscene, unless there was something in it which would shock or offend the taste of any ordinary or decent minded person, or was incentive to sensuality and excite impure thoughts in the minds of ordinary persons of normal temperament who may happen to look at them. Akram, J., who agreed with Henderson'. J in this decision, observed : "For the purpose of deciding whether a picture is obscene or not, one has to consider to. a great extent the surrounding circumstances, the pose, the posture, the suggestive element in the picture, the person into whose hands it is likely to fall, etc." and that no hard and fast rule could be laid down for determining obscenity. In another Calcutta case reported as Sukanta Halder v. The State (A I R 1952 Cal. 214), which related to the publication of a Bengal Monthly Magazine entitled "Nara Nari", it was held as follows:‑--

"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.

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