1. HAMOODUR RAHMAN, C. J.-The appellant in this case, who is a s.-hoot teacher in Government High School No. 1, Kohat, was tried for the murder of another teacher of the same school in the staff room thereof at 9-25 a.m, of the 9th of September 1971. The learned Additional Sessions Judge, Kohat, convicted him under section 302, P. P. C. But gave him tie lesser sentence of life imprisonment.
2. The Political Agent, Malakand, went up in revision to the High Court contending that the award of the lesser punishment had, in the facts and circumstances of this case, caused grave miscarriage of justice.
3. The High Court, after going through the evidence, came to the conclusion that the murder was a want on one and there was nothing on the file which would justify the award of the lesser punishment. The sentence was accordingly enhanced to death.
4. The appellant filed a direct appeal in this Court on the 23rd of June 1973, claiming that such an appeal was maintainable under the provisions of sub-clause (b) of clause (2) of article 186 of the Interim Constitution of the Islamic Republic of Pakistan.
5. These provisions read as follows:- "186. (1)
(2) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court shall lie as of right where--
(a) ------------------------------------..
(b) the High Court has sentenced a person to death, transportation for life or imprisonment for life: or
(c) ---------------------------------------.
(3) --------------------------------------- The provisions of sub-clause (b) of clause (2) of Article 5S of the Con--stitution of 1962 dealing with the appellate jurisdiction of the Supreme Court were identical in terms and they came up for interpretation in the case of Rashid Ahmad v. State. (1). The majority of the Court took the view that the words "has sentenced" in this sub-clause necessarily referred to a case in which the sentence passed was a "new sentence" within the meaning of section 377, Cr. P. C. And that it did not apply to a case of "alteration" of sentence by the High Court. In the view of the majority, sub-clause (b) of clause (2) of Article 58 only applied "in a case where after setting aside an order of acquittal the High Court passes a sentence of death or trans--portation for life or as a Court of first instance passes such a sentence."
6. Before this decision was announced on the 19th of May 1969, Martial Law was proclaimed for the second time on the 25th of March 196", and a Provisional Constitution Order was promulgated on the 4th 'of April, 1969. Under clause (6) of this Order it was provided that "no appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings except when the High Court-
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death or transportation for life . . . . . . . . . ."
7. It may incidentally be pointed out that the above provisions were identical with the provisions of clause (a) of Article 159 of the Constitution of 1956. Even though the Constitution of 1962 had made some change in the terminology, this Court held in the case of Rashid Ahmad that the intention remained the same. The original pattern has now been reverted to again in the permanent Constitution of the Islamic Republic of Pakistan adopted on the 12th of April 1972 with slight modification. Under sub-clause (a) of clause (2) of Article 185 of this Constitution, an appeal lies to the Supreme Court as of right "if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or transportation for life or imprisonment for life; or on revision enhanced a sentence as aforesaid". It will thus be observed that if this appeal had been filed under the provisions of the permanent Court came into force, it would have been, by reason of the modifications introduced thereby, maintainable as an appeal as of right. But, in view of the interpretation given by this Court to the provisions identical with those of sub-clause (b) of clause
(2) of Article 185 of the Interim Constitution,' we are unable to hold that this appeal is maintainable as on appeal as of right.
8. Nevertheless, as indicated in the earlier decision in the case of Rashid Ahmad we can still treat this memorandum of appeal as a petition for special leave.
9. Treating it as such, we invited learned counsel to address us on the merits of the case.
10. Learned counsel has drawn our attention to the statement of the appellant under section 342, Cr. P.
11. C. Wherein he stated as follows: - "I used to take intoxicants and sedatives like senopials, carbonates, charas, tincture, etc. To which I was an addict and Abdur Rehman deceased used to restrain me from this by reprimanding me. At the time of occurrence, I was under the influence of these intoxicants which I had taken on the previous night till 2 or 3 a.m. At that time I was under the influence of these intoxicants."
12. Additional Sessions Judge had taken these facts into consideration and found that there was neither any motive for the crime in the case nor was the offence committed with any premeditation, the murder partook "more the nature of a tragedy than that of a cold-blooded crime." Hence he was in every way justified in imposing the lesser penalty, particularly since the offence in this case, according to the learned Additional Sessions Judge, seemed more to be the outcome of "the folly and failure of a decent human being rather than to be the act of a monster".
13. These were by no means irrelevant or unreasonable considerations and the High Court, in the circumstances, it is contended, ought not to have interfered with the sentence.
14. We have with the assistance of the learned counsel gone through the evidence which seems to indicate that the appellant had au exchange of hot words with the deceased a day before at about 4-30 p.m. Fortunately, the situation was saved at that time by Nasrullah Jan (P. W. 12) who caught hold of the deceased and took him aside but even then he heard the appellant saying to the deceased that he would "see with him". Then, on the 9th, as soon as they met in the staff' room at about 9-25 a.m.. The appellant drew his pistol and fired three shots at the deceased. Then he tried to escape on his bicycle. Another teacher, who had heard the shots, kicked the bicycle and threw him down, thus enabling, others to apprehend the appellant near the gate of the school. He was disarmed and kept there till the police arrived and took him into custody.
15. On the same day he was produced before a Magistrate and he made a confessional statement to the following effect:- "Today in the third period, I was sitting in the Staff Room of Government High School No. 1, Kohat. My third period was be vacant. Abdur Kahman deceased, the 2nd Master came to the Staff Room and asked me what is meant by "Natural Lubricant".
16. At this I took out my tamacha Exh. P. 1 and fired at him (deceased), The deceased was hit and then he fell down on the ground. I was then decamping from the school to my house on my cycle but Drawing Master Muhammad Sadique pushed and kicked my cycle and I fell on the ground and received injury on my right cheek."
17. The appellant stuck to this confession throughout and pleaded guilty. In spite of his plea of guilty, the trial Court called upon the prosecution to prove its case which it succeeded in doing and it is only at this stage, during his examination under section 342, Cr. P. C., that the appellant added the explanation that he was under the influence of intoxicants at the time he committed the crime.
18. Even assuming that he was under the influence of intoxicants, he was so by his own volition as admitted by him and, therefore, this plea could not exculpate him. Under section 85 of the Penal Code, an offence done by a person, who at the time of doing it is incapable of knowing the nature of the act, by reason of intoxication, is excused provided that the thing which is intoxicating him has been administered to him without his know--ledge or against his will. In the present case, the admission of the appellant is that he himself was a drug addict and, therefore, this was not a case which comes within the terms of section 85. It could nevertheless have been treated as a mitigating circumstance, if there was any evidence on the record to show that at the time that the act was done or immediately before or after it the appellant was under the influence of intoxicants, Even the subsequent conduct of the appellant seems to indicate that he was quite sane at the time and well knew as to what he was doing, for, immediately after he had fired the shots, he realised that he had killed the deceased Abdur Rehman and immediately took to his heels. He tried to escape; but when he was caught almost red-handed, he made a confession. This is not consistent with the conduct of a person under the influence of intoxicants. It does not suggest that he was under the influence of any intoxicant or that he was at the time or even immediately after it incapable of understanding as to what he had done. We are unable, therefore, to agree with the learned counsel that the High Court had unjustifiably enhanced the sentence.
19. For the reasons given above, we do not consider this to be a fit case in which leave to appeal should be granted.
20. The memorandum of appeal is accordingly treated as a petition for special leave to appeal and is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.