Mohammad Munir Khan, J.~ This is an application for grant of pre-arrest bail to Allah Bachaya, petitioner, in case under sections 292/353,186/225, 506 PRC and section 18 of the Motion Pictures Ordinance,1979. Registered at police station Naushera Jadeed, district Bahawalpur, vide FIR No. 45/90.
2. The prosecution case is that on receiving information that Ghulam Haider, owner of a hotel situate in Mubarakpur, was exhibiting Indian film on V.C.R./T/V. and was charging Rs.5/- as a ticket, HC Muhammad Bashir of police station Naushera Jadeed conducted raid on the hotel. He found Allah Bakhsh and others, 13 persons named in the FIR seeing the film. He arrested, all the 13 persons present in the hall. He took into possession T.V.,V.C.R., and film . At this juncture, Allah Bachaya, petitioner, came there. He registered and got the accused released from the custody of the police and also snatched the V.C.R.,and T.V., from the police.
2. Learned counsel for the petitioner submits that the petitioner has been involved on account of malafide on the part of Muhammad Tufail SHO, against whom a case under section 377 P.P.C. For committing sodomy upon him (petitioner) was registered under the orders of the High Court; that since act of seeing Indian/Objectionable film on T.V./V.C.R. Was/is no offence under the law of land, therefore, the arrest of 13 persons seeing film was quite illegal and they were well within their legal right to resist their illegal arrest. While opposing this application, the learned Assistant Advocate General argued that act of seeing any film, exhibition whereof has not been certified by the Board, and of seeing an obscene object, is an offence under section 292 PPC.
3. I have considered the matter carefully. For the facility of the appreciation of arguments of learned counsel for the parties and of reference as well, the relevant provision of the law may be reproduce hereunder:-
(1) Section 18 of the Motion Pictures Ordinance.
18. Penalties and procedure. (1(Whoever -
(a) exhibits or causes or permits to be exhibited in any place, or abets the exhibition of, any film which, has not been certified by the Board or which, when exhibited, does not display the prescribed mark or has been altered or tampered with since such mark was affixed thereto; or
(b) without lawful authority, alters or tampers with, in any way ,film after it has been certified; or
(c) fails to comply with the provisions of Section 5 or of any order made under this Ordinance; shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to one lac rupees, or with both, and, in the case of a continuing offence, with a further fine which may extend to ten thousand rupees for each day during which the offence continues.
(2) If the owner or persons incharge of a cinematograph on any place uses it or allows it to be used in contravention of the provisions of this Ordinance or the rules made there under , or of the conditions and restrictions upon or subject to which any license has been granted under this Ordinance, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both and in the case of continuing offence, with a further fine which may extend to two thousand rupees for each day during which the offence continues.
(3) If any person is convicted of any offence punishable under subsection (1) or sub-section (2) committed by him in respect of any film, the Court may further direct that the film and the cinematograph used for its exhibition may be forfeited to the Board.
(4) Where the person convicted of an offence under this section is the holder of a license granted under section 13, the licensing authority may revoke the license.
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no Court shall take cognizance of an offence punishable under this section except upon a complaint in writing made by the Board or the licensing authority or persons authorised by any of them.
II. Sec.107 P.P.C. "A person abets the doing of a thing, who: First: Instigates any person to do that thing; or, Secondly: Engages with one or more other person or persons in any conspiracy for the do;ng of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: Interlineally aids, by any act or illegal omission, the doing of that thing."
III. Sec.292 P.P.C."Whoever: a) sells, lets to hire, distributes, publicly exhibits or in any manner put into circulation, or for purposes of sale, hire , distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paperdrawing painting, representation or figure or any other obscene object whatever, 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 led to hire, distributed or publically exhibited or in any manner put into circulation, or c) takes part in or received 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 obscene object can be procured from or through any person, or e) offers or attempts to do any act which in 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.
IV. Sec.225 P.P.C. Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue, any other person from any custody in which that person is lawfully detained for an offence shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both: or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a a tern wich may extend to three years and shall also be liable to fine; or, if the person to be apprehended or rescratch, or attempted to be rescued, is charged with or liable to apprehended for an offence punishable with death, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; or, if the person to be apprehended or rescued, or attempted to be rescued, is liable under the sentence of a Court of Justice, or by virtue of a commutation of such a sentence, to imprisonment for life, or imprisonment, for a term of ten years or up-wards, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine; or If the person to be apprehended or rescued, or attempted to be rescued, is under sentence of death, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine".
A bare reading of the language more particularly the word "whoever" used in section 18 of the Ordinance, 1979 will show that person who exhibits, causes or permits to be exhibited in any place or abets exhibition of any film which has not been certified by the Board' or which when exhibited does not display the prescribed mark and none-else, can be punished under this section. It is remarkable so note that section 18 of the Ordinance.1979 does not restrain any person from seeing any film exhibition/displaying whereof is not lawful. So, whoever, sees any film exhibited displayed in contravention of the provisions of Ordinance, 1979, would not incur any criminal liability under the Ordinance. Furthermore, the act of seeing a film illegally exhibited displayed does not amount to instigation or intentionally aiding or engaging with principal accused in any conspiracy for doing that act, therefore, the person seeing such film is not abettor within the meanings of section 107 P.P.C. Sub-section (5) of section 8 of the Ordinance, says: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), no Court shall take cognizance of an offence punishable under this section except upon a complaint in writing made by the Board or the Licensing Authority or persons authorised by any of them".
Learned Assistant Advocate General has frankly and rightly conceded that Muhammad Bashir, Head Constable on whose report the case has been registered against the petitioner and his 13 co- accused, has not been authorised by the Board or Licensing Authority to file complaint. This being the position, there remains no room for doubt that the arrest of the 13 persons seeing an Indian film on T.V/V.C.R. Was quite illegal and without authority, as such, the petitioner and 13 co-accused were well within their right to resist within the limits of law for their release from illegal arrest by the police and while doing so they had committed no offence.
4. The argument of the learned AA.G. That the act of seeing an objectionable/foreign film which has not been certified by the Board is an offence under section 292 P.P.C., as such, the police could arrest and prosecute the accused, is devoid of force and substance for the reasons that; Firstly: the offence under section 292 P.P.C, is not cognizable; Secondly; it relates to sale, distribution and publically exhibition of obscene books or any other obscene object.
This section, too, prescribes perishment for' the person who sells/distributes/publically exhibits any obscene book, etc. Or any other obscene object and also partner in the business of sale, distribution, etc. Of the obscene book and not the person who purchases any obscene book or sees obscene object. For all these reasons I am convinced that although the exhibition or displaying of a foreign/objectionable film in contravention of the restrictions imposed by the Ordinance, 1979 is an offence yet the act of seeing such a film is not punishable under section 18 of the Ordinance, 1979, or under any other provision of the law of land. So, the interim bail already granted to the petitioner is confirmed.
5. Lest this judgment is misunderstood, let it be added that from moral point of view I do not/have not approved the act of seeing obscene/immoral/objectionable films on T.V./V.C.R. I have simply interpreted and applied the law of the land as it is. Needless to say sitting as a Court of law, this Court is obliged to administer justice within the corners of the Code and according to the canon of the law regardless of consequences. I am convinced that unless amendment is made in the relevant law restraining act of seeing foreign/obscene/uncertified films, the person seeing such films on T.V/V.C.R. Is not criminally punishable. So, the Legislature may in its wisdom make suitable amendment to bring th seceinng of such films on V.C.R, within the purview of criminal liability.