P L D 1952 Lahore 384

Before Muhammad Munir, C. J. and Muhammad Jan, J

CROWN-Appellant

versus

SAADAT HASSAN MINTO and two others Accused-Respondents

Crown's Appeal No. 584 of 1950, decided on 8th April, 1952, from the order of Inayat Ullah
Khan Additional Sessions Judge, Lahore, dated the 10th July 1950, acquitting the
accused-respondents.

Penal Code (XLV of 1860)------

-----S. 292-"Obscene"-Definition -Outline of story innocuous yet details may be obscene-

Obscenity to be determined with reference to standards current in society in which words are
uttered or published-Intention of author-Whether material in determining obscenity.

The outline of the story may be perfectly innocuous yet the details, wherein some of the
expressions used are extremely vulgar while others are crude metaphors having reference to
the performance of the sexual act, may be obscene.

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. 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. 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.

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 the
offending publication may fall and the motive or intention in publishing the work does not
prevent it from being obscene if the descriptions in it are in themselves obscene.

Where the objectionable passage was 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, the passage was
held to be obscene. It was wholly immaterial what the intention of the author in writing the
story was.

Reg v. Hicklin 1868 L R 3 Q B 360 rel.

Kailashchandra Acharjya v. Emperor I L R 60 Cal. 201 ref.

Abdul Aziz Khan, Advocate-General, for Appellant (Crown).

Abdur Rahman, for Respondents.

JUDGMENT

MUHAMMAD MUNIR, C. J.-This is an appeal by Government 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 determined 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 phenomenon. 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 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. 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 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?

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 respondents 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.