HABIB-UL-WAHAB ALKHERI Versus FEDERATION OF PAKISTAN

TANZIL‑UR‑RAHMAN, C .J .‑‑By this petition, sections 292, 293 and 294 of the Pakistan Penal Code, relating to sale etc., of obscene books and other objects and the obscene acts and songs have been challenged as repugnant to the Injunctions of Islam. The said sections read as under:‑‑

"292. Sale, etc., of obscene books, etc. ‑‑Whoever‑‑

(a) sells, lets to hire, distributes, a public exhibit or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any, manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person. is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine or with both..

Exception ‑This section does not extend to any book, pamphlet, writing, drawing or painting kept or used bona fide for religious purposes or any representation sculptured, engraved, painted or otherwise represented on or in any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

293. Sale etc. of obscene objects to young‑person ‑‑Whoever sells, lets to hire, distribute, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or attempts so to do, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

294. Obscene acts and songs ‑‑Whoever, to the annoyance of others,

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

2. There are a number of Verses of Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) which strictly prohibit obscenity, abominableness, atrocity and indecency of action and language which are as follows:‑‑

(For he commands you what is evil and shameful, and that ye should say of God that of which ye have no knowledge. (Al‑Baqara 2:169).

(The Evil One threatens you with poverty and bids you to conduct unseemly. (Al‑Baqara 2:268).

(Say: "Nay, God never commands what is shameful; Do ye say of God what ye know not?) (Al‑Aaraf 7:28).

(Thus Did We order) that we might turn away from him (All) evil and shameful deeds; For he was one of Our servants, sincere and purified).

(And He forbids all shameful deeds, and injustice and rebellion; He instructs you, that ye may receive admonition) (Al‑Nahal 16:90).

(If any will follow the footsteps of Satan, he will (but) command what is shameful and wrong) (Al‑Noor 24:21).

(For prayer restrains from shameful and unjust deeds: and remembrance of God is the greatest (thing in life) without doubt). (Al‑Ankaboot 19:45).

(And those who, having done something to be ashamed of, or wronged their own souls, earnestly bring God to mind, and ask for forgiveness for their sins). (Al‑Imran 3:135).

(Ye have given them,‑‑except where they have been guilty of open lewdness). (Al‑Nisa 4:15)

Except where they have been guilty of open lewdness) (Al‑Nisa 4:19),

(It was shameful and odious.‑‑An abominable custom indeed). (Al- Nisa 4:22).

(When they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin). (Al‑Nisa 4:25).

(When they do aught that is shameful, they say; "We found our fathers doing so; and God commanded us thus). (Al‑Aaraf 7:28).

(Do ye commit lewdness such as no people in creation (ever) committed before you). (Al‑Aaraf 7:80).

(Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (To other evils). (AI‑Isra 17:32).

(Those who love (to see) scandal published broadcast among the Believers. will have a grievous Penalty).(Al-Noor 24 : 19).

(We also sent) Lut (as an apostle); behold. He said to his people, "Do ye do what is shameful though ye see (its iniquity)? (Al‑Naml 27:54).

('Ye do commit lewdness, such as no people in Creation (Ever) committed before you). (Al‑Ankaboot 29:28).

(If any of you were guilty of evident unseemly conduct, the punishment would be doubled to her). (Al‑Ahzab 33:30).

(And turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by God). (Al‑Talaq 65:1).

And for them;‑‑come not night to shameful deeds, whether open or secret). (Al‑Anaam 6:151).

(Say: The things that my Lord hath indeed forbidden are; shameful deeds, whether open or secret sins). (Al‑Aaraf 7:33).

(Those who avoid great sins and shameful deeds, only (falling into) small faults). (Al‑Najm 53:32).

3. There are also a number of traditions of the Holy Prophet (p.b.u.h.) who said:‑‑

(Obscenity and abominableness do not exist side by side Islam). (Masnad al‑Imam Ahmad Bin Hambal, Beirut, Vol. V, p.89).

Hazrat Ayishah narrated from the Holy Prophet (p.b.u.h.) that he said:

(Allah does not like any kind of obscenity and abominableness). (Sura Abu Dawood, Vol.II, p.288, Print Beirut).

It is narrated from Abu Darda that the Holy Prophet (p.b.u.h.) said:

(Allah(s) laths such person who is abominable and disgusting). (Al- Jame al‑Tirmiz: Vol.IV, p.362).

Hazrat Umme Salamah narrated that the Holy Prophet (p.b.u.h.) has forbidden us from any kind of obscenity. .

(He forbade us from all kinds of obscenity). (Masnad al‑Imam Ahmad Bin Hambal, Vol.I, p.202, Print Beirut).

4. Dr. Muhammad Tufail of Islamic Research Institute, Islamabad, has submitted a detailed note, on request of the Court, relating to the aforementioned sections. It seems proper to reproduce certain portions therefrom which are as under:‑‑

5. As to the meaning of the word Fawahish sing. Fahsh the learned scholar stated that-

6. The learned scholar quoting the Traditions of the Holy prophet stated that:-

7. As to the punishment the learned scholar opined that :‑

8. The learned scholar also quoting Imam Ibn Tayimia has stated that‑

9. While going through the provisions of law, challenged before us, in so far as sections 292 and 293, P.P.C. are concerned, we do not find anything repugnant to the Injunctions of Islam as laid down in the Our'an and Sunnah of the Prophet. However, the sentences prescribed in sections 292, 293 and 294 are inadequate, but on that ground alone we cannot strike down the said provisions, as it is within the legislative competence of our Parliament to prescribe such punishments for offences liable to Ta'zir as it deems necessary and proper. We would, however, like to recommend that these punishments were prescribed by the British Rulers in 1860, more than one and a quarter century ago and, perhaps, they require revision. The area of obscenity as to its mode, species, dimension and effect is now so wide that it could not even be contemplated in or about 1860. Council of Islamic Ideology as long back as 1978, had suggested sentences of imprisonment not exceeding three years. In fact, a new law on the eradicati6n of obscenity was also framed by the Council, which must be lying with the Ministry of Religious Affairs or Ministry of Law and Parliamentary Affairs. If the 0yovernmcnt so wishes, it may derive benefit out of it so that the law relating to obscenity may be brought in line with the condition of the present day society.

10. As regards section 294, the opening words "whoever does, to the annoyance of others" an obscene act in public have been used as a condition precedent which, to our mind, is objectionable from Islamic point of view. This, in fact, reflects English concept of morality. .

11. In Islam this concept of "people's accepted morality" does not form the basis of law, for if the question of morality is left to its acceptability by common man, it means that the people by counting of heads may decide a thing to be immoral which, according to Qur'an it is not, or vice versa. It will thus be in contradiction of the express Commandment of Almighty Allah, which is, not permissible in any case and in any form whatsoever. Refer "Law, Morality of Society" by Justice Dr. Tanzil‑ur‑Rahman, PLD 1989 Journal 94.

12. In Pakistan, law and morality have to play a special role. In the Constitution of Pakistan it has been guaranteed that no law will be enacted against Islam. The word "Islam" is to be understood in its widest import and meaning. Islam is a complete code of life in which all the principles governing our individual as well collective life stand predetermined in the light of the Qur'an and Sunnah. Therefore, the responsibilities of our law‑making institutions are not only greater but also different from those of contemporary institutions of the West. It is our duty to see that our laws conform to Islam and correspond exactly to Islamic moral values, particularly after the insertion of Article 2‑A in the. Constitution of 1973.

13. We may also refer to the learned observation made by Mr. Justice Muhammad Haleem the then Chief Justice of Pakistan in his leading judgment in Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 wherein referring to the Qur'anic Verse 151, Surah Al‑Anam, VI:

(Draw not near to shameful deeds that which be apparent and that which be concealed).

It has been observed that:‑‑

"This being the moral code, every Muslim is enjoined to obey it. This verse is the touchstone what is moral and what is immoral. Necessarily, morality is part and parcel of Islamic Ideology of Pakistan and included in the expression `Integrity' of Pakistan. Therefore, not only individually but also collectively Muslims have to live within an exclusively moral framework as enjoined by the Holy Qur'an and the Sunnah. No civilised society can deny this standard of morality .." It goes without saying that morality provides the basis for the society's spiritual values .."

14. The mandate of Allah the Almighty as contained in the above Verse is prohibitory in nature "do not commit 'any shameful deeds be that open or secret". It is general in nature and any condition as to the said shameful deed to cause "annoyance to others" is neither attached to it nor it may be allowed to go with it. The shameful deed is to be analysed objectively in the light of the teachings of Islam. It has not been left to the subjective captivity, because the concept of obscenity differs between man and man. To consider the question of immorality and obscenity Muslim society is bound to apply standards which are prescribed in the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah".

15. "The Arabic word (indecencies) applies to all kinds of impure acts, whose obscenity is absolutely obvious. The Qur'an declared adultery, sodomy, nudism, calumny, marriage with father's wife as "indecencies". Besides these, theft, drinking and beggary are also included in the list of indecencies in the traditions. Likewise, all other obscene acts are also indecencies and the Divine Commandment demands that such acts should not be committed openly or secretly" (The Meaning of the Qur'an by S. Abul A'ala Maududi, English rendering by Ch. Muhammad Akbar, Vol. III, p.170).

16. For the aforesaid discussion, it is declared that the phrase "to the annoyance of others" occurring in section 294, P.P.C. is repugnant to the Injunctions of Islam. The Federation of Pakistan is directed to delete this phrase within six months from today whereafter the said phrase occurring in the aforesaid provision shall cease to have effect and the judgment of this Court will be operative as and on from 7‑11‑1992.

In result, the petition is partly accepted to the extent as stated hereinabove.

M.BA./689/FSC

Order accordingly.