An FIR No. 5 dated 31.1.2002 of Police Station Harban, District Kohistan, under Section 188 PPC read with Section 26(3) of the Hazara Forest Act was registered. The case under Section 188 PPC was disposed of under Section 249-A Cr.P.C. on 15.11.2002 by the learned Magistrate/ Alaaqa Qazi, Dasu.
It was during the pendency of proceedings in case FIR No. 5 that a complaint was filed by Gul Khan Forest Guard Incharge Depot Shattyal and check post Harban Range, Kohistan Forest Division, Dasu of District Kohistan, on 16.2.2002. Without taking into consideration the said complaint, the learned Alaaqa Qazi acquitted Naseeb Khan accused, son of Abdul Qadir. An appeal No. 1/12 was filed by the prosecution in the Court of the learned Zilla Qazi, Kohistan, which was also dismissed. The accused was also acquitted in another case for offences under the Hazara Forest Act, and the revision was also dismissed on 16.5.2002. Vide the impugned judgment in Appeal No.7/12 of 2003, the learned Zilla Qazi, Kohistan, acquitted the accused-respondent on 3.11.2003, although the accused was convicted and sentenced by the learned A'ala Alaaqa Qazi, Kohistan, on 7.7.2003.
2. The present appeal was filed on 17.12.2003 by the learned Advocate General N.W.F.P. on behalf of the State.
3. I heard the arguments of the learned counsel for the parties and perused the record.
4. The learned counsel for the State argued that Article 13 of the Constitution of the Islamic Republic of Pakistan was not applicable for the purposes of the complaint in this case vis-a-vis the FIR No. 5 as the sections of law in both the cases were different. It was further contended that the present appeal was filed on the affidavit of Qazi Shabbir Ahmad Range Officer, though by the State. In support of the arguments, reliance was placed on PLD 2002 S.C. 687.
5. The learned counsel for the accused-respondent contended that the accused-respondent was duly charged in case FIR No. 5 and was acquitted and the appeal was dismissed on 3.11.2003, but no further action has been taken by the State in that respect. He also placed reliance on PLD 1990 Karachi 286 in support of his arguments.
6. Gul Khan Incharge Depot was the complainant. The State was, however, the Incharge of the prosecution and could file an appeal through Advocate, General in the light of the previsions of Section 417(1) Cr.P.C. The complainant has not come forward for proceedings under A Section 417(2) Cr.P.C., and the provisions of Section 417(4), therefore, are not applicable in this case.
7. The accused-respondent was previously acquitted in two cases based on the same facts, and the order or !us acquittal had attained finality. The same accused has been acquitted for the third time in this case, after taking into consideration the evidence in this case. There is no defect in the conclusion arrived at by the learned Zilla Qazi. Any prudent person would have formed the same opinion on the basis of the available evidence, specially when the fact of identification of the accused-respondent from amongst three hundred persons in the dark night is taken into consideration.
8. The learned counsel for the parties discussed the principles of res judicata and estoppal in criminal cases, and the effect of acquittal of an accused in a previous case based on the same facts.
9. A fact in issue in a previous litigation either proved or not proved or unproved cannot be allowed to be re-opened for further evidence, and the issue of fact regarding the same stands finally decided. An accused can be tried by two different judicial forum for two different sets of offences under two different laws, on the basis of the same facts. But once an accused is tried by a certain judicial forum for one or more offences, based on certain facts, the same Court cannot try the same accused, on the basis of the same facts, for some other offences arising out of the same facts. Such a Court can frame a charge for all of such offences initially or may alter the charge at any stage of the proceedings to include all or most of such offences in the charge. When a Court takes cognizance of the facts of a case, it is presumed that such a Court has applied its mind to all the facts of the case. Non inclusion of certain Sections of law, cognizable by the Court, shall, therefore, mean that such Court did not find it proper to include such leftover sections of law in the charge. The prosecution or the accused, however, has the right to request the Court, at any time before the announcement of judgment/order, to alter the charge.
10. Once no further action was taken by the prosecution after the acquittal of the accused- respondent in two different cases for different offences on the basis of the same facts, and dismissal of their appeal and revision, they have lost the chance to further contest the acquittal of the accused-respondent under Section 249-A Cr.P.C. The prosecution was available before the Court when charge was framed against the accused-respondent under Section 188 PPC. They could submit an application for alteration of the charge which they have not submitted at the relevant time. The complaint was already instituted and was to be brought to the notice of the Court if it had either not been so brought to the notice or was not taken into consideration by the Court. The same point should have been agitated during appeal and revision, and in further proceedings. There was every chance for inclusion or otherwise of the sections of law mentioned in the complaint in the charge framed under FIR No. 5, but that chance was not availed of. The said FIR was based on the same facts of the case, though certain sections of law were not included.
Once the decision in case FIR No. 5 has become final, the order of the learned Zilla Qazi in this case was legally correct, and there remained no ground for the complainant party/prosecution to bring the present appeal.
11.Finding no merit in the present appeal, it is hereby dismissed.