1. ' MUHAMMAD AFZAL ZULLAH, C.J.--This appeal through leave. Of the Court is directed against the acceptance of Constitutional (Writ) Petition of the respondent's side by the High Court in a criminal matter.
2. ' Briefly stated the facts are that the parties are closely related to each other. They had a land dispute which was stated to have been settled through respectable in 1956. The implementation of the decision by the respectables took a long time. Ultimately the implementation of an order, passed by Additional Secretary Home and Tribal Affairs Department of the N.-W.F.P. Dated 31-7- 1985, took place on 30-104986 and as stated in the memorandum, prepared in that behalf, the possession of the property was also delivered. The respondents' side made a complaint for an offence under section 447, P.P.C. On 17-11-1986 stating therein that despite the delivery of possession on 30-10-1986 the appellants/accused side had committed the offence of trespass on 15-111986 on the same property. The present appeal has arisen out of this complaint.
3. ' According to learned counsel for the appellants this complaint was enquired into and was found false and was filed as not proved. Despite the failure of the respondent side somehow or the other it was revived for purpose of review and a fresh inquiry/trial commenced. The appellants challenged the review/revival of the criminal case as illegal and without jurisdiction. The Additional Commissioner who heard the matter rejected the appellants' plea against the revival. They then filed a revision petition before the Government which was allowed on 21-5-1987 with observation that the possession had already been delivered; that there was no sense in re-opening the same.
4. The order of the Government was challenged by the respondents' side in the High Court in its Constitutional (Writ) jurisdiction. The High Court upheld the plea raised by the respondents' side that the original complaint filed for offence under section 447, P.P.C. Had not been properly tried by a proper forum, therefore, it required to be re-investigated and re-tried. In consequence of the acceptance of the Writ Petition the case was "sent back to the trial Court" for fresh proceedings.
5. Leave to appeal was granted for -the consideration of the plea that it was a case of autrefois acquit. The basis for this plea was that the appellants' side having been tried in the police case, for the same offence for trespass together with theft (during the said trespass) by a Magistrate. First Class (EAC Malakand) they were finally acquitted by the judgment dated 13-3-1989 and this acquittal remained unchallenged till the decision of the -writ petition by the High Court on 17-4- 1990.
6. ' We have gone through the F.I.R. Which was the basis of the criminal case launched against the appellants. The case was registered under sections "447/427/188/148/149, P.P.C. And section 14 of Islamic Law". The allegation made in the F.I.R. Consists of two parts. One, trespass and the other theft of certain articles during the same trespass. The learned counsel for the respondents' side admitted that the land/immovable property is the same which was the subject-matter of a complaint filed by the respondents' side out of which the present appeal has arisen.
7. ' We have also perused the judgment of acquittal in the police case. It confirms the concession for the learned counsel for the respondents that both the cases related to the same land/property.
8. The trespass alleged in the complaint, it seems, had continued up to the time that the repeated trespass is alleged to have taken place and which is the subject-matter of the second case which was registered by the police. There is no mention either in the F.I.R. Or any other plea, averment or document that the trespass which is the subject-matter of the complaint did not continue till the F.I.R. Was lodged. Thus it is the same trespass/offence which allegedly continued upto the lodging of the F.I.R. It however, failed and met very bad fate. The judgment of acquittal in the police case dated 13-3-1989 clearly shows the working of the mind of the learned Presiding Magistrate. It was to the effect that it was a false case. Expressions as reproduced below were also used in the judgment of acquittal: "(1) There is no foundation of the F.I.R. Lodged by the complainant---------------
(2) Whatever has been narrated in the F.I.R. Can only be done by an insane person------
(3) That no man if he would have got the slightest intelligence would have kept in his costly articles worth thousands of rupees in barren Kota/room - - - -
(4) The entire evidence produced by the prosecution is untrustworthy because nothing has been proved against the accused to connect them with the commission of the offence------
(5) After mentioning the subject of trespass- - - -No single word about the commission of the offence by the accused has been uttered by these PWs-------
(6) "----------The prosecution has badly failed to prove, this case by any stretch of imagination.
(7) There is not iota of truth in the prosecution case.
(8) The prosecution case is quashed and the accused are acquitted."
9. This judgment was not challenged by the respondents' side in any higher forum nor an attempt was made to move any other Court or forum for re-examination of the findings rendered by the Criminal Court in the aforementioned judgment of acquittal. The Constitution and the Code of Criminal Procedure read with General Clauses Act do not permit the re-trial of an offence in which a person which having once been tried as accused stands finally acquitted. The said judgment by the Magistrate having attained finality the same accused cannot be re-tried for the same offence in the complaint case. Accordingly for this reason alone this appeal merits to be accepted. The same is allowed with the result that the impugned judgment of the High Court remanding the case for fresh trial in accordance with the law is set aside.
10. ' Before closing it needs to be observed that in this case the parties were wrongly advised to launch and pursue futile criminal proceedings. The matter which stood settled by the respectable in 1956, got unsettled by the law enforcing agencies. Instead of again opening the settled issue which is evidenced by delivery of possession through proper documentation, the proper course would have been to get the demarcation done or redone either through official agencies or through the elders or respectable. It can even now be done as Islamic mode. With these observations this appeal is allowed as ordered above.