NIAZ AHMED vs THE STATE
The petitioner sought leave to appeal against the judgment of the High Court, which had reduced his sentence from seven years to five years under section 9(c) of the Control of Narcotic Substances Act, 1997, upon his counsel's explicit request limiting the challenge to sentence reduction rather than the merits of the conviction. The core legal question was whether a petitioner can subsequently challenge his conviction on merits after having availed the benefit of a sentence reduction obtained through his counsel's concession, and whether alleged mala fide by the investigating officer warrants interference. The Supreme Court held that a petitioner cannot approbate and reprobate by retaining the benefit of the sentence reduction while simultaneously assailing the conviction, especially when no lack of authority of the counsel was pleaded and the petition was barred by time without sufficient cause. The key principle laid down is that a party cannot blow hot and cold by accepting the favorable portion of a judicial order while challenging the remainder, nor can a belated petition proceed without establishing sufficient cause for delay.
- Can a petitioner challenge a conviction on merits after his counsel has expressly conceded the conviction before the High Court to obtain a reduction in sentence?
- Whether a petitioner can retain the benefit of an order reducing his sentence while simultaneously assailing the same order before the Supreme Court?
- Does a prior criminal case by a relative against the investigating officer constitute sufficient proof of mala fide to vitiate a narcotics conviction?
- Section 9(c), Control of Narcotic Substances Act 1997
ORDER
MIAN SAQIB NISAR, J.--- The petitioner was convicted for the offences under section 9(c) of the Control of Narcotic Substances Act, 1997 in a case registered at Police Station, Saddar Gujrat, by the learned Judge, Special Court (C.N.S.), Gujrat vide judgment dated 24-12-2009. Against the above, the petitioner filed an appeal and at very outset hearing of its, his counsel refrained to argue the case on merits, rather requested for the reduction of the sentence. This request was acceded to by the learned High Court and his sentence was reduced from seven years to five years. Despite having not argued the case on merits and conceding the conviction, the instant petition for leave to appeal against the said judgment has been initiated.
' It has been argued by the counsel for the petitioner that notwithstanding the above in the cases where there is no evidence for the conviction; or the case strikingly is founded upon mala fide; the act of the counsel shall not be an impediment in the way of the petitioner to seek the decision of his case on merits. In this behalf, reference has been made to the statement of P.W.4 to argue that, petitioner's brother got a criminal case against the investigating officer and the instant F.I.R. Was registered in revenge and retaliation of the above.
2. We are not convinced that the aforementioned submission has any force and should be considered as vital ground to establish mala fide on the part of the police for the registration of the present case. Moreover, it has been conspicuously noted than ground has been set out in the petition about the lack of authority of the counsel who acting on behalf of the petitioner restricted his case only to the reduction of sentence and did not challenge the conviction; the petitioner got the benefit of the above and his sentence was accordingly reduced: it is ludicrous that on the one hand the petitioner wants to retain the benefit of the order and on the other has assailed the same; besides this petition is barred by eleven days for which no 'sufficient cause' has been propounded in the application for the condonation of delay. Resultantly, ' we find no merit in this petition, which is hereby dismissed. Leave to appeal declined.