' RAHMAT HUSSIAN JAFFERI, J.---Brief facts giving rise to the present appeal are that on September 16, 2000, complainant Inspector Khaliduddin along with his subordinate staff left the police station to detect narcotic crimes. When they reached near Kala Pul, complainant received spy information that a car bearing No.ABF-328, was parked outside Embassy Hotel on Shahrah-e-Faisal, in which one person was sitting, who was in possession of big quantity of heroin. On receipt of such information the complainant party reached the pointed place where they found the car parked, in which one person was sitting. The said car was put under surveillance. After about half an hour the person, sitting in the car, started it, therefore, the complainant party surrounded the car. On interogation the driver of the car disclosed his name as Muhammad Irshad, the respondent. The complainant found two packets lying in the lap of the respondent. He also found eight packets lying on the foot mat of front seat of the car. All the ten packets were opened, which contained heroin powder. Each packet weighted 1 kilogram, total weight came to be 10 kilograms. The complainant drew 10 grams of heroin from each packet and sealed them separately for sending them to Chemical Analyzer. The property was sealed, the appellant was arrested and such Mashirnama was prepared. The complainant brought the appellant and property to the police station where he lodged the report. After usual investigation, police challaned the respondent in the Court.
' The learned Judge, Special Court-II, CNS, Karachi tried the appellant, and acquitted him under the impugned judgment dated May 26, 2005. The State, being dis-satisfied with the said judgment through Deputy Director Law filed the present Appeal.
2. We have heard the Special Prosecutor for ANF, Advocate for the respondent and perused the record of this case very carefully.
3. The learned special prosecutor has stated that the trial Court gave much importance to the property, which was destroyed without considering the fact that the samples were produced before the trial Court, which is sufficient to represent the entire property, as provided under section 516-A, Cr.P.C.; that the trial Court has misread the evidence and has arrived at a wrong conclusion, therefore, a miscarriage of justice has occurred, hence he has requested for setting aside the impugned judgment by awarding adequate sentence to the respondent.
4. Conversely, the learned advocate for the respondent has stated that the property was destroyed without any notice to the respondent; that there is no evidence to show that samples were drawn from the property of this case as there is no verification of the said property; that the samples drawn by the learned Judge do not bear the seal and signature of the Judge; that the said samples were not intact when they were produced in the Court; that no supporting evidence or mashirnama, which was prepared at the time of preparation of samples, has been produced, as such the property allegedly secured from the possession of the respondent was not produced in Court; that the learned trial Judge has appreciated the evidence in accordance with the settled principles of law; that there is no misreading or non-reading of the evidence; that the trial Court has assigned cogent and valid reasons for acquitting the respondent; that the criteria for deciding the acquittal appeal and appeal for conviction are different; that the impugned judgment can only be set aside if the reasoning is perverse or foolish but the trial Court has given valid reasons. He has supported the impugned judgment.
5. We have given due consideration to the arguments of the parties counsel, perused the evidence with the assistance of learned Special Prosecutor and found that P.W.1 Nisar Ahmed and complainant P.W.2 Khaliduddin gave the same details of the incident as mentioned in the earlier part of the judgment. They specifically stated that ten packets, containing heroin powder, weighing 1 kilogram each, were secured from the lap of the respondent and foot-mat of the car, in which the respondent was sitting and driving the same. They specifically stated that ten grams of heroin powder from each packet was drawn as sample for sending them to Chemical Analyzer for examination and report. Both the P.Ws further deposed that the remaining property was destroyed under the supervision of the learned Judge, Special Court, CNS, Karachi on the application moved by the prosecution and that the learned Judge drew ten samples from the property, which the P.Ws. Produced as Article C/1 to C/10. The complainant further deposed that the said samples were drawn in his presence.
6. The prosecution produced the order of the Court, by which the application under section 516-A, Cr.P.C. Filed by the prosecution for destruction of the property, was allowed, as Exhibit P/7. The prosecution also produced memo. Of preparation of samples of the property and certificate of destruction of property as exhibits P/8 and P/9. The prosecution also examined Ahmed Saba, the then Deputy Director (Law), ANF. His evidence reveals that he filed an application before the Court for destruction of property, which was allowed and then the remaining property was destroyed. His evidence further shows that when the samples were drawn he was not present nor he signed the mamo. Of preparation of samples (Exh. P/8) but he was present when the property was destroyed and it bore his signature vide Exh. P/9.
7. The perusal of order (Exhibit P/7) shows that when the application under section 516-A, Cr.P.C.
Was filed by the prosecution, notice of such application was not given to the respondent. The order was passed in his absence. When the learned Judge went to prepare the samples from the property, at that time the respondent or his representative was not present, as such, the sample was drawn in the absence of the respondent. No doubt, under section 516-A, Cr.P.C., it is provided that the property can be destroyed and sample can be prepared, which can represent the entire property. However, it does not mean that the sample should be prepared in the absence of accused as it is against the principle of natural justice. In order to give full opportunity to the accused to participate in the process and safeguard his interest, it should be done in his presence.
Hence, it was incumbent upon the trial Court to have issued notice to the respondent in respect of application under section 516-A, Cr.P.C. And after hearing him order could have been passed but the order was passed in his absence. Not only that the sample was drawn in the absence of respondent or his representative. The respondent was not given any opportunity to verify as to whether the sample, which was to be used against him, was drawn from the property of the case or otherwise. As such, a valuable right of the respondent was infringed. Thus, his defence was prejudiced, which has occasioned a failure of justice. The defects in the destruction of property are such, which cannot be cured under section 537, Cr.P.C. As such the said proceedings cannot be fairly used against the respondent particularly when all the proceedings were conducted in his absence and without notice and knowledge.
8. Furthermore, the memo. (Exhibit P/8), shows that the samples were sealed but when the property was produced in Court it was not intact, there was no seal of the Court or signature of the Judge on the sample. The cover of the packet was torn and it was in damaged condition. Thus, the sample produced in the Court has not been proved, beyond any reasonable doubt that it was the sample drawn from the property so as to represent the property of the case. Thus, the prosecution have failed to produce the required evidence of the property before the trial Court. If the said piece of evidence is taken out of the consideration then without the case property in the Court the case of prosecution becomes highly doubtful.. The learned trial Judge has appreciated the said piece of evidence in accordance with the settled principles of law and has arrived at the just and proper conclusion in discarding such piece of evidence.
9. Apart from the above position, it is pointed out that this is an acquittal appeal, in which criteria for deciding such appeal is different from the criteria of deciding the appeal against conviction. In acquittal Appeal presumption of innocence of accused is double. It can only be interfered with on the ground that the acquittal order was not supported from the evidence on record, or the conclusion reached by the trial Court was such that no reasonable person could have conceivably reached the same or the judgment of acquittal is perverse and the reasons given for are artificial and ridiculous. Acquittal judgment can only be interfered with in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice and for no other purpose. Reliance is placed on the case of Sikandar Hayat v. Muhammad Nawaz PLJ 1995 SC 351.
10. In the present case, we have gone through the evidence and the impugned judgment and found that the trial Court has considered the evidence produced by the parties, assessed and appreciated, the same on the settled principle of law. The reasons for arriving at the conclusion of acquittal are supported by the evidence and are not artificial or ridiculous, therefore, the impugned judgment, does not require any interference.
11. Above are the reasons of our short order dated December, 8, 2006, by which we had dismissed the appeal.