OMAR SIAL, J.---It appears from the record that in the year 2009 several criminal cases were registered against various persons connected with the Pakistan Steel Mills. One such case originated from FIR No. 39 of 2009 that was lodged by the State against the petitioner , Rasool Bux Phulpoto, and others on 23-12-2009 under sections 109, 406, 409, 420. 468, 471 and 34, P .P.C. read with section 5(2) of the Prevention of Corruption Act, 1947.
2. While the FIA was investigating the various cases filed, the Honorable Supreme Court took notice of the corruption in Pakistan Steel Mills (Suo Motu Case No. 15 of 2009) and on 16-5-2012, passed a judgment, paragraph 53 of which directed as follows: Therefore, we direct the D.G. FIA to hand over all the record so far prepared/collected by the"FIA in this mega scam of the PSM to the Chairman NAB. Consequently , the Chairman NAB is directed to..
(i) supervise/appoint a team of honest and upright officers under his administration to further probe in the mega scam of losses of more than 26 billion rupees to the PSM, which pertains only to one financial year i.e. 2008-2009.
(ii) determine the accusation against the individuals responsible for such losses and misappropriation including negligence; since the sufficient material including the Forensic Audit Report will be before him, his team shall feel facilitated for further probing in the matter in its own manner;
(iii) ensure that immediate and stringent steps are taken for the recovery of looted money from the persons who are responsible for it;
(iv) also ensure completion of investigation/enquiry within the shortest possible time;
(v) further ensure the arrest of the accus ed who have been declared absconder or who may be found involved in the case;
(vi) that if in his opinion the bail obtained by some of the nominated accused is not justified, he shall direct his prosecution agency to seek cancellation of the same by filing application before the court of competent jurisdiction;
(vii) make it sure that after and on completion of enquiry/ investigation, references are filed against the persons found involved in the crime.
3. In compliance of the aforementioned directions of the Honorable Supreme Court, the then Chairman, NAB on 10-8-2012 made an application under section 16-A(a) of the National Accountability Ordinance, 1999 ("N.A.O., 1999") to the Special Judge, Anti-Corruption (Central-II), Karachi. The said application was allowed vide order dated 13-1 1-2012 by the learned Special Judge.
4. It appears from the record that after further investigation, NAB filed several supplementary references in the matter . The supplementary reference relevant for the present purposes was Refere nce No. 20 of 2012 filed by NAB before the learned Accountability Court No. IV on 23-5-2013 (" Reference No. 20 ").
5. The name of Phulpoto was not included in Reference No. 20. Paragraph 27 of the said Reference stated as follows: "During investigation, role of accused Rasool Bux Phulpoto nominated in FIR No. 39/2009 was examined. It has been found that he was not a member of price committee who took the decision to reduce the prices in the month of November 2008. In fact he was posted in PSM in December 2008. Similarly , the accused Sabin Sakina, one of the directors of Abbas Group was also nominated in FIR. The investigation shows that she was not a working director and did not take part in day to day affairs of the companies. As such incriminating evidence has not come on record against both the accused persons."
6. When Reference No. 20 was filed before the Accountability Court for its approval, the learned trial judge declined to accept that Phulpoto's name had been dropped from the list of accused and on 27-6-2013 ordered that: "In the circumstances, it is ordered that let name of accused Rasool Bux Phulpoto be added as accused in the supplementary Reference. The supplementary Reference is admitted in above terms."
It is this order of 27-6-2013 of the learned Accountability Court No. IV that has been impugned in these proceedings. Simply put, the learned counsel appearing for the petitioner has argued that the impugned order should be set aside as the learned trial judge did not have the suo motu power to order that Phulpoto's name be placed as an accused in Reference No. 20 and that the impugned order was in breach of section 18 of the N.A.O., 1999. The learned Special Prosecutor , NAB has also supported the stance taken by the learned counsel for the petitioner . The only argument therefore raised before us by both sides has been that the learned trial judge could not have ordered the inclusion of Phulpoto name as an accused. We have heard the learned counsel and examined the record which has been placed before us. Our observations are as follows.
7. As regards the only argument which has been raised i.e. the power of the trial court, to order inclusion of Phulpoto's name as an accused, this Court has decided in the case of Maqbool Ahmed Sheikh v. The State (2014 YLR 2644 ) that: "Moreover , in law, the Accountability Court has no power to either include new persons in the list of accused or conduct its own investigation or substitute its own opinion with that of investigating officer authorized under the Ordinance."
8. Keeping the aforementioned decision in mind, we conclude that the learned trial court erred in its order that Phulpoto's name be included in the Reference.
9. In our minds however , there is another aspect to the case which has not been raised by both sides i.e. whether the investigating officer of the case, in the first place, was empowered to exclude Phulpoto as an accused in the case?
10. As also mentioned above, an FIR in the matter had been lodged by the State which nominated Phulpoto as an accused and, we have been informed, that a challan had also been filed before the ordinary court prior to Chairman, NAB making an application under section 16-A(a) of the N.A.O., 1999 in compliance of the orders of the Honorable Supreme Court. There is no dispute to the proposition that in accordance with section 16-A(a) when a transfer of a case under this section is effected then such case "shall be deemed to be a reference under section 18 of the Ordinance" ......... To our minds this would mean that the original Reference which was filed was the case as transferred from the ordinary court to the accountability court. That case, and hence the Reference, included Phulpoto as an accused.
11. The learned trial court in its reasoning in the impugned order erred by not addressing to this aspect of the case.
12. The Honorable Supreme Court in the case of Anti-Corruption Establishment, Punjab v. National Accountability Bureau (2016 SCMR 92 ) has held as follows: "The aforesaid section 16-A(a) enables the Chairman NAB to apply to any court where a case involving an offence under NAO is pending. And upon receipt of an application submitted by the Chairman NAB under section 16-A(a) the court before which the case is pending is obliged to transfer it. However , herein the Special Judge Anti- Corruption did not pass any order transferring the case. The said section further provides that the transfer , "shall be deemed to be a reference under section 18" of NAO, however , NAB proceeded to exonerate a number of the listed accused, which after the filing of a refere nce it could not. At best NAB could have sought the transfer of the case, and if such transfer was allowed by the Special Judge Anti-Corruption, it was to be treated as a Reference and proceeded with by the Accountability Court." (emphasis supplied).
13. In view of the abovementioned observation of the Hon'ble apex court, the position which emerges is that original transferred case was the Reference whereas after further investigation, Reference No. 20 was a supplementary reference, in which NAB could not have exonerated a person who was an accused in the original Reference in the manner that it did. With much respect, we also do not find that the honourable Supreme Court's order in the Suo Motu Case No. 15 of 2009 had empowered NAB to exclude any person who was nominated as an accused in FIR No. 39 of 2009.
14. If NAB had intended to exonerate an accused, it could have resorted to the provisions of section 31-B of the N.A.O., 1999 which specifically provides for the procedure to be followed in case NAB wants to withdraw a prosecution. Similarly , if Phulpoto was of the view that the charge against him was groundless or that there was no possibility of a conviction he could have invoked section 265-K, Cr .P.C.
15. To summarize the above:
(i) The learned trial court could not have directed NAB to include the name of Phulpoto as an accused in a Reference.
(ii) NAB could not have exonerated Phulpoto through supplementary Reference No. 20.
In view of what has been discussed above, NAB and the learned trial court are directed to continue proceedings against Phulpoto in accordance with law . This petition stands disposed of in the above terms.