Writ Petition On Pornography (II)

"IN THE LAHORE HIGH COURT AT LAHORE


 

WRIT PETITION No._____/2011
Kashif Waseem son of Waseem Wajahat resident of Krishan Nagar , Lahore  
                                                                                       PETITIONER

VERSUS

1. Pakistan Telecommunication Authority through its Chairman, PTA Headquarters , Islamabad,
2. Pakistan Electronic Media Regulatory Authority through its Chairman,  Adjacent to Pakistan Nuclear Regulatory Authority, Mauve Area, G-8, Aiwan-e-Sanat-o-tijarat Road, Islamabad
3. Pakistan Telecommunication Company limited through its President, PTCL Headquarters G-8/4, Mauve Area, Aiwan-e-Sanat-o-tijarat Road, Islamabad
4. Internet Service Providers Association of Pakistan through its C.E.O, Mr. Shaheed Ahmad Khan resident of  Sarwar  Shaheed Road, Ground Floor, Lakson Square Building No.2 , Karachi , opposite Karachi Press Club.
5. Wateen Telecom Ltd Po Box 3527, Lahore,
6. WorldCall Telecom Limited , An Omantel Company, Tahawar Plaza, Shop # 6, Main Boulevard ( Near Landmark Citi Bank) Lahore,
7. LINKdotNET , 6 - Usman Block, Awami Complex New Garden Town ,
8. wi-tribe Wireless Broadband Internet Service, Hot Mail Services, 653- Umar Block Ait ( Basement Kashmir Bakery),
9. Broadband Internet Service Provider, Qubee Pakistan, 11, M. M. Alam Road, C/1, Gulberg III, Lahore
10. Mobilink Infinity, Mobilink House 5-P, Gulberg II, Lahore.
11. COMSATS Internet services, First Floor, Building 9, Shahrah-a-Jamhooriat Sector G-5/2, Islamabad- 44000, Pakistan  First floor, Building 9, Shahrah-e-Jamhuriat Sector G-5/2, Islamabad – 44000 Pakistan
12. Pakistan Software Houses Association for IT & ITES, through its President, Room No. 310, 3rd Floor, Business center, Block 2, PECHD, Main Shahrah-a-Faisal, Karachi.
13. Board of Information & Technology, Government of the Punjab through its Chairman, 5 Model Town, Lahore.
14. Inspector General of Police Punjab, Lahore

                                                                                     RESPONDENTS
  
WRIT PETITION UNDER THE PROVISIONS OF ARTICLE 199 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973

Respectfully Sheweth:

That the brief facts leading to the filling of the instant writ petition are given hereunder:-

1. That  it is submitted with respect that the petitioner is a citizen of Pakistan  and has filed the instant petition in pro bono publico , is an aggrieved person with sufficient interest in the redresser of his grievances couched in the gist of the instant writ petition . it is further significant to be noted here that if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of High Court. There exist flagrant abuse of trust on the part of the Respondents No.1-15 reposed by the Public to act in accordance with law in as much as Public functionaries are supposed to understand the importance and meaning of democratic welfare State.
2. That it is submitted with humility that Pornography is one of the Internets’ worst crimes against our children; a crime justifying sex myths and actual sexual abuse, as well as helping pedophiles to, via the Internet, make appointments with the client. Pornography is, thus, not only an expression of certain individual’s sexual fantasies, but also leads to the growing evil spiral of sexual abuse in practice. The easy availability of obscene material, websites on the internet is resulting in increasing number of cases of sexual violence against women, however Respondent No. 1-11 are not inclined to take a serious notice of the issue so far , despite filling of multiple writ petitions on the subject before this Honourable Court.
3. That it is submitted with respect that In Pakistan, with the growing use of Internet, Net cafes and Internet Clubs, the pornography is gaining space. Contrary to the West, the Internet Club users in Pakistan largely comprise children below 18-20 because normally majority of them have no access at homes. Teenagers throng Internet Clubs and then they go to video shops to have porno movies. The watching of such material which is now easily accessible, they tend to act as they see in porno material. It is an undeniable fact that these materials always provoke to have a sexual act. Though there is no data available which can show the gravity of the situation in Pakistan, but circumstantial evidences prove that our children are becoming vulnerable to pornography owing to a variety of reasons. Earlier, only a couple of cinema houses in urban centre were supposed to screen porno shows. Now, the situation is different, the children who have access to Internet can see what they want with a click of mouse. They can download pictures, movies and texts. The most dangerous trend emerging out of children’s access to pornography is the growing cases of incest in middle class in urban areas. Incest cases in our society are not reported in normal circumstances.
4. That it is submitted here with respect that the Respondent No. 1 & 2 has issued a list of 1,70,000, websites to the Respondents No. 4 to 12 to block , however the Respondents No. 5 to 11 are adamant to obey the commandments of the Respondent No. 1 & 2 in this regard,
5. That the petitioners seeks the gracious indulgence of this Honourable Court for the redresser of their grievances on the following amongst other inter alia

GROUNDS

1. That it is pertinent to be noted here that as per the Verse No. 151 of the Surah al Anaam, the Pornography is strictly prohibited. The said verse is reproduced below for the perusal of this Honourable Court

  ۞ قُلْ تَعَالَوْا أَتْلُ مَا حَرَّمَ رَبُّكُمْ عَلَيْكُمْ ۖ أَلَّا تُشْرِكُوا بِهِ شَيْئًا ۖوَبِالْوَالِدَيْنِ إِحْسَانًا ۖ وَلَا تَقْتُلُوا أَوْلَادَكُم مِّنْ إِمْلَاقٍ ۖ نَّحْنُ نَرْزُقُكُمْ وَإِيَّاهُمْ ۖ وَلَا تَقْرَبُوا الْفَوَاحِشَ مَا ظَهَرَ مِنْهَا وَمَا بَطَنَ ۖ وَلَا تَقْتُلُوا النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ ۚ ذَ‌ٰلِكُمْ وَصَّاكُم بِهِ لَعَلَّكُمْ تَعْقِلُونَ

“ Say (O Muhammad صلى الله عليه وسلم): "Come, I will recite what your Lord has prohibited you from: Join not anything in worship with Him; be good and dutiful to your parents; kill not your children because of poverty - We provide sustenance for you and for them; come not near to Al-Fawahish (shameful sins, illegal sexual intercourse) whether committed openly or secretly; and kill not anyone whom Allah has forbidden, except for a just cause (according to Islamic law). This He has commanded you that you may understand. “
(  سورة الأنعام  , Al-Anaam, Chapter #6, Verse #151)

1. That  Again in Surah l Nehal Chapter # 16 , Verse # 90, Allah Holds His Decree against Fawahish in the following words:

  ۞ إِنَّ اللَّهَ يَأْمُرُ بِالْعَدْلِ وَالْإِحْسَانِ وَإِيتَاءِ ذِي الْقُرْبَىٰ وَيَنْهَىٰ عَنِ الْفَحْشَاءِ وَالْمُنكَرِ وَالْبَغْيِ ۚ يَعِظُكُمْ لَعَلَّكُمْ تَذَكَّرُونَ

“Verily, Allah enjoins Al-'Adl (i.e. justice and worshipping none but Allah Alone - Islamic Monotheism) and Al-Ihsan [i.e. to be patient in performing your duties to Allah, totally for Allah's sake and in accordance with the Sunnah (legal ways) of the Prophet صلى الله عليه وسلم in a perfect manner], and giving (help) to kith and kin (i.e. all that Allah has ordered you to give them e.g., wealth, visiting, looking after them, or any other kind of help), and forbids Al-Fahsha' (i.e. all evil deeds, e.g. illegal sexual acts, disobedience of parents, polytheism, to tell lies, to give false witness, to kill a life without right), and Al-Munkar (i.e. all that is prohibited by Islamic law: polytheism of every kind, disbelief and every kind of evil deeds), and Al-Baghy (i.e. all kinds of oppression). He admonishes you, that you may take heed. “
(  سورة النحل  , An-Nahl, Chapter #16, Verse #90)

1. That it is submitted here with respect that "Surely Allah enjoins justice, kindness and the doing of good, to kith and kin; and He forbids all that is shameful, indecent, evil, rebellious and oppressive. Pornography and the culture of pornography have all the three elements which Allah has prohibited in the above verse of the Quran: Fahsha; Munkar, Baghy. Here is a bit of terminology before we review the rest of the evidence prohibiting pornography.

i.      Fahsha:
According to the Al-Mawrid Arabic-English dictionary of Munir Baalbaki, Fuhash is obscenity, vulgarity, indecency, shamelessness and something that is dirty, filthy and foul.
Fahsha, translated as anything shameful, is a Quranic term which in the Quran and Hadith has been used widely for unIslamic sexual behavior. The Quran uses it as in the above verse (Quran 16:90). It is a set of vices that embraces the whole range of evil and shameful deeds. Scholars of the Quran have included every vice which is intrinsically of a highly reprehensible character into this category whether it is fornication, nudity, public foreplay as depicted in films and photos, pornography, hurling abuses and curse words, promiscuous mixing, or dresses designed to expose the body. At the highest level of Fahsha, Allah has included adultery (Quran 17:32) and same gender sex (Quran 7:80; 27:54).
All scholars agree pornography is included in the term Fahsha.
     ii.      Al-Munkar
Al-Mawrid English - Arabic Dictionary describes Munkar as gross, abominable, detestable, atrocious, outrageous, and flagrant.
As a major Quranic term it means something which is universally acknowledged as bad and immoral. This category includes all evils which have been unanimously condemned by the human conscience and which have been forbidden by Divine Law in all ages

          iii.      Al-Baghi
According to Al-Mawrid English - Arabic dictionary, this term means wrong, injustice, outrage, and transgression.

1. That  It is further submitted with respect that the Holy Prophet also strictly condemns all kinds of shameful sins , the relevant Hadith is reproduced hereto below for the perusal of this Honourable Court

(1).    “Narrated Abdullah bin Mas'ud: Allah's Apostle said, "None has more sense of ghaira than Allah, and for this He has forbidden shameful sins whether committed openly or secretly, and none loves to be praised more than Allah does, and this is why He Praises Himself."  (Book #60, Hadith #161)”
(2).    No man or woman should look at the naked body of each other (unless married). Sahih Muslim
(3).    By God, I would prefer to be thrown from the skies and spattered in parts than to look at someone's private parts or let someone look at my private parts. Narrated by Salman. Almabs ooth kitabul istehsan.
(4).    don’t expose your thigh to anyone and don't look at the thigh of any person even if s/he is dead. Narrated Ali ibn abi Talib. Ibn e Maja, Abi Dawud, Darqutani. Tafseer Kabeer.
(5).    “Narrated Abdullah bin Mas'ud: Allah's Apostle said, "None has more sense of ghaira than Allah, and for this He has forbidden shameful sins whether committed openly or secretly, and none loves to be praised more than Allah does, and this is why He Praises Himself."  (Book #60, Hadith #161)”

1. That it is submitted with respect that The Constitution of the Islamic Republic of Pakistan, under its principle of policy clause 37 (g), provides that the state shall prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation  and display of obscene literature and advertisements.
2. That it is further most humbly stated here that multiple provisions of Pakistan Penal Code are also envisaged to curb shameful sins and acts within Pakistan.  Like Section 292 prohibits the sale of obscene literature and/or books; the punishment is three months imprisonment or a fine or both. Under Section 298 the selling of such obscene literature and/or books to children under 20 year of age is punishable by imprisonment for six months or a fine or both.  Under Section 294 obscene acts and songs are punishable by imprisonment of three months or a fine or both.
3. That it is submitted here with respect that the values that pornography propagates are against the concept of a family. Pornography completely weakens the traditional values that favour marriage, family and children. Is that where we want our society to head. The stance of the petitioner is further fortified from the fact that Pornography clearly exploits women and is complicit in violence against women. Pornography is synonymous with domination, humiliation, and coercion of women, and reinforces sexual and cultural attitudes promoting sexual harassment.  Forget kids for a second. Think about this… In a conservative society like ours a person can throw all caution to the wind and get full access to sexually explicit content with very little hurdles. What then?  Where does this frustration vent out? Pre-marital affairs, extra marital affairs, rape, child molestation and what not!!!
4. That it is further submitted with respect that as per the details of a rough data collection , almost One out of every 20 Pakistanis is officially committed to internet porn(5% of total population), one out of 33 Pakistani’s (3%) has an illicit sexual relationship (possibly more, not less). 1 out of 50 (2%) get divorced due to infidelity/want of illigitimate lust 12% of Pakistans now officially think that adultery should not be a crime in the ‘Islamic republic of Pakistan’.  One out of every nine children has viewed porn in Pakistan (11%). Which implies that you have at least one sibling/cousin on each side (paternal +maternal) who is into porn, even if they are under 15. One out of 40 people (2.5%) access google pakistan to search for porn(for entire population). One out of four internet users in Pakistan use it for searching porn. 1 out of 4 women that see you at work (22.5%) have sexual thoughts about you. 1 out of 4 (25%) men who see you at work have sexual thoughts about you too. That the stance of the petitioner if further fortified from the fact that if you want to map these stats to KHI/ISB/LHR, multiply them by 3, as they are urban areas (internet penetration is greater) and literacy is at 30 %. The bottom line is – 1 out of two people using the internet turns to porn daily. Which implies that as the internet penetration percentage increases, the entire society is going to turn into a vast majority of porn addicts, who have nothing but sex on their minds, and don’t have the time to focus on their families, their work, or their loved ones, let alone greater social issues. All they will be thinking about is what someone would look like without clothes on, or what sexual position would be best for which figure they see.
5. That it is submitted here with respect that our children are our most valuable asset. They are considered to be the future of the nation. They are also the most vulnerable members of our society. Protecting our children against the fear of crime and from becoming victims of crime must be a national priority. Unfortunately the same advances in computer and telecommunication technology that allow our children to reach out to new sources of knowledge and cultural experiences are also leaving them vulnerable to exploitation and harm by computer-sex offenders. It is significant to be noted here that it is the responsibility on the part of the Respondent No.1 to procure all measures which could maintain the public morality in the Country; it is the duty of the state to exercise its writ on this particular subject which is threatening our future i.e. the young generation of Pakistan. In which it apparently failed to its maximum.
6. That  the stance of the petitioners is further fortified from the fact that The country also is tops -- or has been No. 1 -- in searches for "sex," "camel sex," "rape video," "child sex video" and some other searches that can't be printed here. Google Trends generates data of popular search terms in geographic locations during specific time frames. Google Insights is a more advanced version that allows users to filter a search to geographic locations, time frames and the nature of a search, including web, images, products and news.  Pakistan ranked No. 1 in all the searches listed above on Google Trends, but on only some of them in Google Insights. As per the reports published in FOX News in their 14th July 2010, publication. The copy of the publication is appended herewith as ANNEXURE “B”.
7. That it is submitted with respect that This country has its own social values and norms that 99.8 percent of the population strictly follows. I remember there was a time, when Anwar Maqsood was asked to not to write a scene where a brother and sister were supposed to be shot in a room with no one else present there. Today, the situation has changed a lot – we need to think upon the customs our Television channels are preaching. We don’t want to hinder the concept of enlightened moderation, however, when such moderation is causing the mental and physical health of our youth, it should be questioned by authority concerned, i.e. PEMRA. However the authority concerned is dumb and numb in this regard for reasons apparently extraneous in this regard.

10. That  it is further submitted here with respect that Section 27 (a) of the Pakistan Electronic Media Regulatory Authority Ordinance 2002, As Amended by the Pakistan  Media Regulatory Authority Amendment Act 2007 ( Act No. II of 2007)
“27. Prohibition of broadcast media or distribution service operation:-   The Authority shall by order in writing, giving reasons therefore,  prohibit any broadcast media or  distribution service  operator from – 
(a) broadcasting or re-broadcasting or distributing any programme or advertisement if it is of the opinion that such particular programme or advertisement is against the ideology of Pakistan or is likely to create hatred among the people or is prejudicial to the maintenance of law and order or is likely to disturb public peace and tranquility or endangers national security or is pornographic, obscene or vulgar or is offensive to the commonly accepted standards of decency;”
11.  That it is submitted here with respect that the petitioners have pinned their hopes in this Honourable Court as there exist no other efficacious, adequate or alternate remedy available for the redresser of their grievances except to invoke the Extra Ordinary Constitutional Jurisdiction of this Honourable Court.

PRAYER
That Under the Circumstances, it is therefore most humbly prayed that the instant writ petition may very graciously be accepted in the interest of the principles of natural justice, fair play and equity.
That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No.1 to cancel the licenses of the Respondents No. 5-11 for continuously displaying airing and circulating the porn websites through their mediums of services despite the orders passed by the Respondent No. 1 to place the adult websites on a prohibition.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No. 1-4 to appear in this Honourable Court and to state the effective measures that has been initiated by them to curb the obscene display of material and placing a restriction on easy approach to porn sites in Pakistan.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No. 3 to draft a regulation which could monitor cyber porn traffic in the country as they have devised to control Telephony Traffic regulation  under the name and title of “Monitoring and Reconciliation of Telephony Traffic Regulations, 2009”, As per the said regulation, all telecom service providers will install system at their own cost to make it possible for authority to monitor telephony traffic.

That it is further most humbly requested that a direction may further be issued to the Respondent No.2 to ensure placement of permanent ban on pornographic sites by placing a continuous check on the ISP’s working in Pakistan in consultation with the Respondent No.1 & 2 and submit an affirmative report in this Court accordingly in as much as the effective steps they have ensured to protect the order of public morality in Pakistan.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No.2 to ensure effective measures to be adopted by the Internet Service Providers working in Pakistan under its Certificate in respect of placing a ban on display and airing of adult sites via internet in Pakistan.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No.1 & 4 to establish a permanent authority, having legal status, which would monitor such objectionable activities across the world, so that Pornographic websites should be banned forever.

That That it is further most humbly prayed that a direction be issued to the Respondent No.8 to get criminal cases registered under the appropriate provisions of Pakistan Penal Code and other relevant provisions of Pakistan Penal Code (PPC) against those who are operating this website in question in Pakistan and punishing them accordingly.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No. 4-12 to appear in person before this Honourable Court and to explain those extraneous considerations that abstained them from placing the adult and explicit websites under prohibition despite repeated directions from the the Respondents No. 1-4 in this regard. It is further prayed that a direction may further be issued to the Respondents to ensure strict compliance of the provisions of Section 27 (a) of the PEMRA Act, 2007, as mentioned above.

That it is further most humbly prayed that a direction may very graciously be issued to the Respondent No. 14 to get criminal cases registered against the Respondents No. 5-11 for the violation of law on the subject and for propagating vulgarity within the People of Pakistan

That it is further most humbly prayed that any other relief that this Honourable Court deems just and proper may very graciously be extended in the favour of the petitioners under the peculiar circumstances of the instant matter.

                                                          PETITIONER


Through

                                                Fahad Ahmad Siddiqi
                                                Advocate High Court
                                Qadeer Ahmad Siddiqi Law Associates
                               Ground Floor, Siddiqi Plaza, 7- Turner Road, Lahore
                                P.L.H. C.C. No. 19737

 Dated: 11.01.2012"


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