MUHAMMAD SHAN GUL, J.---This judgment will decide W.P. No.48553/2021 titled "Ahmad Latif Chief Operating Of ficer, etc. v . The Cane Commissioner , etc."
2. The facts of the matter are as follows. The petitioner is the Chief Operating Officer of G.B. Private Limited (formerly Pasrur Sugar Mills Ltd.) which operates and runs a Sugar Mill at Pasrur in Sialkot. On the request of private respondent No. 7, the Cane Commissioner , Punjab, by means of corres pondence-cum-complaint dated 17.7.2021 requested the District Police Of ficer, Kasur to register a criminal case against the petitioner .
Correspondence-cum-Complaint "To District Police Officer , Kasur .
Subject: REGISTRA TION OF FIR .
Please find enclosed herewith application of Mr. Naveed Hussain son of Muham mad Yaqoob resident of Chak No.24/RB, Tehsil Safdarabad, District Sheikhupura wherein he has complained that Ahmad Latif, Fateh Muhammad, Kamran Zahoor and Binyamin of Messrs Pasrur Sugar Mills, District Sialkot purchased sugarcane from him amounting to Rs.2,200,000/- from his village Khuddian, District Kasur which falls in the limits of Police Station Khuddian, Tehsil and District Kasu r. Sugarcane was purchased without license, CPRs were not issued and payment has not been made so far .
2. Purchase of sugarcane without license is prohibited under section 17 of the Punjab Sugar Factories (Control)
Act, 1950 read with Rule 12 of the Punjab Sugar Factories Control (Rules), 1950. Non-issuance of CPRs is prohibited under section 14 of the Act and non-payment of price of Sugarcane beyond the period of 15 days is prohibited under Rule 14(2) of the Rules, 1950 penalty of which is provided under section 21 of the Punjab Sugar Factories (Control) Act, 1950 which section has been made cognizable through the Sugar Factories (Control)
(Amendment) Act, 2021. First Information Report may be registered against the accused Ahmad Lauf, Fateh Muhammad, Kamran Zahoor and Binyamin of Messrs Pasrur Mill District Sialkot."
3. The petitioner filed a Constitutional Petition bearing No.47206 of 2021 challen ging this correspondence. The matter was fixed for hearing on 26.7.2021 and at the initial date of hearing the following order was passed:-- "Contends that this petition raises the same issue of law inter alia in W.P. No.4291 8 of 2021 in which notices have been issued.
2. Issue pre-admission notice to the respondents in this petition as well. Mr. Saqib Haroon Chishti, A.A.G. present on Court's call accepts notice and shall file a reply to this petition on the next date of hearing. To be heard along with connected petitions.
C.M. No.1 of 2021
3. Notice. Till the next date of hearing the impugned orders mentioned in para 9 of this petition shall remain suspended."
4. It is interesting to mention here that till 26.7.2021 no FIR whatsoever , on the basis of the correspondence of the Cane Commissioner had been registered.
5. However , an FIR dated 26.7.2021, on the basis of the correspondence of the Cane Commissioner , Punjab, was registered on 26.7.2021 at 1.20 p.m. It is pertinent to mention here that the order of the High Court reproduced above, suspending the operation of the correspondence-cum-complaint of the Cane Commissioner was passed before 11.00 a.m. on 26.7.2021 while the FIR in question was registered on 26.7.2021 at 1.20 p.m. This, even when the alleged occurrence is of a date much prior to 26.7.2021 and this gains importance and is determinative of the eventual shape that the decision in this constitutional petition shall take.
6. The counsel for the petitioner submits that the registration of FIR No.500/21 at Police Station Khuddian, Kasur is without any lawful authority and in fact void ab initio because what was passed by the High Court on 26.7.2021 on the application seeking interim relief was a stay order . Adds that a stay order is effective from the minute it is passed and does not have to be actually conveyed to any authority because it is not addressed to any authority and is rather aimed at temporarily bringing to a halt the order , correspondence, complaint or proceeding against which recourse has been had to constitutional jurisdiction. He submits that seen from any angle, viewed through any lens and measured by any yardstick, since the order suspending the operation of the correspondence of the Cane Commissioner was not addressed to any one in particular and rather only took life out of the correspondence temporarily and generally , the order passed by the High Court was a stay order for all intents and purposes and, therefore, effective from the moment it was passed. Submits that, therefore, all or any activity or exercise emanating out of, based upon or stemming from the correspondence of the Cane Commissioner was non- est. States that the letter-cum-complaint had been rendered vegetive! Rounds of by submitting that the registration of F.I.R. in question on the basis of the complaint of the Cane Commissioner was, therefore, certainly of no legal ef fect.
7. He also submits that under Article 199(4) of the Constitution, a High Court is empowered to grant interim relief by way of an interim order . Adds that Article 199 of the Constitution does not speak about or envisage any injunction.
That in a petition under Article 199 of the Constitution, interim relief is sought under section 151 of Code of Civil Procedure, 1908 and which refers to interim orders and not an injunction. He further states that the ambit of interim relief provided by way of an order is wider than a temporary injunction granted under section 94, C.P.C. read with Order XXXIX, Rules 1 and 2, C.P.C. thereof, which is limited to specific grounds and which operates in specific and particular contexts. The learned counsel for the petitioner submits that cognizance by the police of a correspondence-cum-complaint that stands suspended by this Court is absolute nullity in administrative law and relies on "Muhammad Ayub Khuhro v. Pakistan, through the Ministry of Interior Government of Pakistan and 2 others" (PLD 1960 SC 237). Adds that the foundational basis being void all subsequent orders fall to the ground. Highlights "Moulana Atta-ur-Rehman v. Al Haj Sardar Umar Farooq and others" (PLD 2008 SC 663) and "Yousaf Ali v. Muhammad Aslam Zia and 2 others" (PLD 1958 SC 104).
8. Learned AAG has quite vociferously opposed the petition and submits that while some part of what the petitioner says may be true and possibly correct, the argument has to be measured with the fact that the letter-cum-complaint was addressed to the police much before the crucial date of 26.7.2021 (i.e. on 17.7.2021) and the offences complained of had taken place even before. He states that, therefore, the activity complained of has no bearing on the criminality of the petitioner or on the factum of the occurrence and hence the resultant FIR could not be declared to be of no legal effect, especially , because the basis on which the Constitutional Petition No.47206/2021 was filed (in which interim relief was provided by means of suspending the letter-cum-complaint) is yet to be judicially determined and only a temporary restraining order in the nature of prohibition has been passed. Adds that in the event W.P. No.47206/2021 is dismissed eventually , the letter-cum-complaint shall be brought back to life and shall stand resurrected and hence any declaration at this stage shall be premature, preemptive and, hence, unwarranted in law. Learned AAG has relied on the cases of "Aamir Shehzad v. The State and another" (PLD 2005 Lahore 568 ) and "Province of Punjab v . Zafar Ali Shah" ( 1994 SCMR 482 ) to reinforce his submissions.
9. The counsel for respondent No.7 i.e. the person on whose complaint the Cane Commissioner addressed the correspondence to the District Police Officer concerned, has adopted the arguments of the learned AAG and submits that there is no need for this Court to interfere in the matter . He further submits that the respondent supplied sugarcane to the petitioner and received part payment. That rest of the payment is still due to him and any interference at this stage will compromise the said payment.
10. The issue before this Court can be encapsulated in a nutshell. This being whether the order passed on 26.7.2021 in an application under section 151, C.P.C., filed alongside, and for seeking temporary relief in Constitutional Petition No.47206/ 2021 is a stay order or an injunction? This is the only question before this Court because if it is a stay order all consequential activity ensuant to the stay order becomes irrelevant and stands eclipsed. However , not so, if it is an interim injunction.
11. The following order was passed on the application on 26.7.2021.
C.M. No.1 of 2021
3. Notice. Till the next date of hearing the impugned orders mentioned in para 9 of this petition shall remain suspended."
12. It is manifest from a perusal of the Order passed by a learned Single Judge of this Court that he has suspended the operation of the correspondence-cum-complaint and by doing so has tempor arily halted the operation of the impugned order . In the case of Messrs Pak Furnishing Stores PLD 1985 Karachi 201, a learned Single Judge has defined the term "suspend" in the following manner: - "The word 'suspend' has been defined in Black's Law Dictionary as follows: 'Suspend: to interrupt, to cause or cease for a time, to postpone, to stay, delay or hinder to discontinue temporarily , but with an expectation or purpose of resumption, to cause a temporary cessation as of work by an employee.
In Ballantine's Law Dictionary the word 'suspend' has been defined as follows: 'Temporarily inactive or inoperative, held in abeyance'.
The word 'suspend' does not connote the meaning of cancellation or revocation of any permission or licence. It only temporarily deprives of the permission or privileges under the permission."
13. The practical effect of a stay order varies, depending on the context. Where the public authority has yet to make a final decision, the grant of stay prohibits it from taking further steps to make a decision. According to De Smith, where the final decision has been made but not yet implemented, a stay will preven t implementation of the decision which is suspended for the time being and any formal order that is so suspended is treated as temporarily being of no effect. Unlike an injunction, a stay of proceedings is an order directed not at a party but at the decision making process of the decision-maker . If the order passed by this Court dated 26.7.2021 is measured in these terms then it becomes clear that from all angles and in terms of any benchmark, the order qualifies as a stay order since it suspends the operation of the correspondence-cum-complaint in general and not by addressing it to a particular party or individual.
14. In Halsbury's Laws of England, 4th Edition, Volume-37, it has been noted that a stay puts a stop on the further conduct of proceedings. Therefore in its general meaning, 'to stay' is to forbearto act, vr to stop. A stay is generally a suspension of the case or of some designated proceedings whereas an interim injunction is a judicial order operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing.
An injunction and a stay have typically been understood to serve different purposes. While the former is a means by which a Court tells someone what to do or not to do and operating in personam, by contrast a stay operates upon the proceedings itself, postponing some portion of the proceedings or temporarily divesting an order of its enforceability (Black's Law Dictionary 6th Edition 1990 at Page-1413). Both, a stay and an injunction can have the practical effect of preventing some action before legality of that action has been conclusively determined. A stay achieves this result by temporarily suspe nding the source of an authority to act and not by directing the actors' conduct. A stay simply suspends variation or modification of the status quo.
15. It may also be worthwhile to mention here that in constitutional petitions, stay orders are granted against public functionaries and not prohibitory orders by way of injunction unless the language so prescribes and which language is conspicuously amiss in the present matter before this Court. According to a judgment of the Sindh High Court "Ardeshir Cowsjee v. Province of Sindh" (2002 CLC 284), "a stay order obtained in constitutional jurisdiction is passed under Article 199 and not under Order XXXIX; Rules 1 and 2, C. P.C. " The order dated 26.7.2021 since it is not addressed to any person and does not have any recipient and merely seeks to take life out of the correspon- dence-cum-complaint dated 17.7.2021, is a stay order . In this respect, very learned observations have been recorded in "Karam Ali and others v . Raja and others" ( PLD 1949 Lahore 100 ).
16. It may be added here that the Cane Commissioner was not restrained from writing to the police. The suspension order passed by the High Court did not direct him to do anything. Its effect was to make the letter-cum- complaint non-existent in law and take away the ef fect of the said letter-cum-complaint.
17. In the case reported as "Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax and another"( 1993 PTD 332), where the question in issue was whether in the presence of a stay order by the High Court suspending tax assessment, the plea of the revenue officials pertaining to ignorance of the order was acceptable or not, it was held that "the communication of the order was not relevant. Even if the Income Tax official was not aware of the stay order granted by this Court, all proceedings taken subsequent to the stay order were a nullity in the eye of law ."
18. In the case reported as "M.A. Aziz Khan v. Jamshed Ali Khan Mirza and 3 others" (1986 CLC 248), where the question pertained to a Director of the Housing Department having issued a title deed in the presence of the stay order of this Court, it was held, "even if the contention of the learned counsel about the Director not being informed of the stay order is correct, nevertheless, the order will have its effect from the moment it was made. Non- intimation would only have the effect that the person against whom the order of status quo is passed will not be punished for its violation."
19. In "Pervaiz Bashir Warraich and another v. Election Tribunal/District and Sessions Judge, Mandi Baha- ud-Din and 4 others" (2006 CLC 1407 ) it has been held that, "there is no cavil about the proposition that the prohibitory injunctions issued by subordinate courts under Order XXXIX, Rules 1 and 2, C.P.C. become operative upon service of those whom it directs to be effective but as regards stay orders issued by the Superior Courts of this country including this Court, these become operative the moment these are passed." Similar observations have been recorded in " Ms. Bushra Khanum v . Habib Bank Ltd. and others" ( 2003 CLD 528 ).
20. At any rate, the stay order/ suspensio n order passed by this Court in W.P. No.47206/2021 on 26.7.2021 was passed in the presence of a learned Assis tant Advocate General who accepted notice on behalf of the respondents and thus respondents were fully aware of the stay order . Additionally , the counsel for the petitioner has been at pains in informing the Court that the Moharrar of the relevant police station had also been conveyed the requisite information telephonically . He also volunteered to bring the Call Record Data (CDR) to reinforce his arguments, if so directed.
21. In "Messrs Hakimuddin Hamnusji & Sons v. Messrs Ghafoor Textile Mills" (PLD 1978 Karachi 152), it has been held that, "the nature and incidence of an order of stay as understood in our judicial system is that it is addressed and binds a subordinate Court, Tribunal or Authority whereas an injunction is essentially directed against a party and that an order of stay takes effect immediately being passed even if it is not brought to the notice of the subordinate court or authority , whereas an injunction becomes operative only upon being served on the party against whom it is so directed."
22. In "Syed Nazir Ahmad v. Syed Muhamma d Saeed and another" (PLD 1955 Lahore 34), this Court while discussing the status of a decree passed after proceedings of the civil court had been stayed by the High Court prescribed a test which has to be applied to see if an order is an injunction or a stay. It was held that when a High Court has power to declare any proceedings as being invalid at the time of final determination of the matter , it follows that the intention of passing a stay order was that such order is to be operative immediately upon its pronouncement . "One has only to answer the question: Had the High Court jurisdiction to take away by its order the jurisdiction of the lower forum in respect of the proceed ings? It is a power of an entirely different kind, a power to deprive proceedings of their validity . If the answer to the question be, as it ought to be, in the affirmative, there can be no doubt that the 'intention in passing the order was to take away jurisdiction from the moment the order was passed."
23. The power of granting a certiorari being available to a High Court by way of ultimate and final relief, allowing it to declare any exercise or activity as being of no legal effect, the Order providin g interim relief dated 26.7.2017 eminently qualifies, therefore, as a stay order!
24. The U.S. Supreme Court in NKEN v. Holder , Attorney General 556 U.S. (2009), drew a distinction between a stay and an injunction, explaining the root of the difference between the two "a stay pending appeal certainly has some functional overlap with an injunction, particularly a temporary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined, a stay achieves this result by temporarily suspending the source of authority to act and not by directing an actors conduct."
25. The above judgments clearly state that an injunction is issued against a party prohibiting it from doing a certain act whereas a stay is dispossessing the order stayed of its effective force. Referre d to by the U.S. Supreme Court in [556 U.S. (2009) above] as "judicial alteration of the status quo" i.e. placing the parties at a position where they were prior to the passing of the assailed and stayed order . The position might reverse in future by the final decision but for now the stayed order does not exist for the purpose of operation.
EFFECTIVE TIME OF ST AY ORDER v . EFFECTIVE TIME OF INJUNCTION:
26. The question if an order staying the proceedings of a lower court takes effect from the time of its passing or when the order is communicated to the lower court was referred to a Full Bench of this Court in "Karam Ali and others v. Raja and others" (PLD 1949 Lahore 100). The reference was made since a number of judicial authorities passed by various High Courts (of the Indian sub-continent prior to Partition) held colliding views and the following question was referred to the Full Bench: "Does a stay order made by the High Court staying the execution of a decree or order under appeal take effect from the moment when it is passed or does it become operative only after it is communicated to the Court in which the execution is pending?"
27. A Full Bench of this Court evaluated all authorities and held that unlike an injunction, stay order , operates from the time it is made and at the very instant deprives the executing court of proceeding any further . This Court further evaluated if the proceedings so taken after the passing of stay order (before the communication of the same) could be allowed to stand or the those will be considered vitiated and held that if the order passed by the Higher Courts is of the nature of "Stay" and not "Injunction", the same is effective immediately upon its pronouncement and any action taken after the passing of such order before the communication of the same shall be invalid and will be liable to be recalled i.e. parties shall be placed at the position where they were at the time of passing of the stay order .
"I respectfully agree with these cases where the distinction between stay order simpliciter and an injunction or prohibitory order has been brought out. A prohibitory order or injunction restrains a party from doing something and is necessarily addressed to the person whose act is intended to be restrained . Such order is not, therefore, effective unless it is communicated . But an order under Rule 5 is not and injunction or a prohibitory order in that sense but an order in the proceedings which give rise to a changed legal position the moment it is made. As pointed out by Woodroffe and Mookerjee JJ. in Hukum Chand Boid v. Kamalanand Singh I L R 33 Cal. 927, the question of communication of an order arises only in these cases where absence of the knowledge of that order is under the substantive law a defence to any action proposed to be taken on the ground of disobedience of that order . But no question of disobedience of an order arises in cases under Rule 5 because that Rule relates to the respective powers of the appellate Court and the lower Court and unlike Rule 2(3) of Order 39 has nothing to do with the disobedience of any order . Naturally the Court will proceed until it is apprised of the stay order and will require the party , resisting execution on the ground that a stay order by the appellate Court has been made, to produce that order , but this does not mean that the proceedings taken by it in ignorance of the stay order must be held to be with jurisdiction if as a matter of fact the stay order had been made though it was not communicated to it can, therefore, see no injustice or inconvenience if a sale in favour of an auction-purchaser is set aside or treated void on the ground of its having been held after a stay order was made. On the other hand, if communication to the executing Court were made a condition precedent to the operation of an order of stay , great inconvenience will result "A stay usually operates upon all subsequent proceedings, within the purpose of the stay order . "
"The principle of the American cases and the English cases is in my humble judgm ent relevant to a determination of the point before us. I consider that both on principle and authority as well as on a plain construction of Order XLI, Rule 5 the answer to the question referre d is that a stay order under Order XLI, Rule 5 operates from the time that such order is made and not from the time it is communicated to the executing Court."
28. The rule decided by the Lahore High Court in "Karam Ali and others v. Raja and others" (PLD 1949 Lahore 100) was sought to be revisited in "Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar" (1974 SCMR 509).
Subsequent to a stay of proceedings granted by the High Court after a suit for possession was decreed, possession was delivered by the executing court to the Decree Holder . Upon an application of the Judgement Debtor informing the Executing Court about the prior stay order , the possession was restored i.e. parties were placed at the position they were at the time of passing of the stay order . The Hon'ble Supreme Court of Pakistan dismissed the appeal and held that: "........learned counsel for the petitioners, has contended that contrary view expressed by the Calcutta High Court, Dacca High Court, and Allahabad High Court should be taken into consideration and the decision of the Lahore High Court requires reconsideration. We have considered the contention of the learned counsel and in our opinion, the view expressed by the Lahore High Court is in accordance with law. It is not necessary to re- examine the question already decided."
29. In "Hail Abdul Jalil v. Javid Ahmad" (1983 SCMR 869), the Hon'ble Supreme Court of Pakistan held that when a stay order and an order alleged to be passed in contravention of the same are of the same date, the time of passing of each will be the deciding factory .
"5. There is no dispute with the principle that stay order takes effect from the time it is passed irrespective of the fact whether or not it has been served on the person concerned. But the question in this case is whether the stay order dated 2.11.1976 was passed by the learned District Judge, Peshawar , prior to the passing of the ex parte order of ejectment by the Rent Controller on 2.11.1976. Since it is the respondent who alleges that ,the stay order was already operative when the learned Rent Controller passed the ex parte order of his eviction, the onus of proving that it had been passed earlier in time, lies on him. But as already mentioned above, he has not cared to turn up despite service of notice. Nor has he made any arrangement for his being represented through a counsel to contest the appeal. As such in the absence of any material on the record to the effect that the stay order had been passed prior to the passing of the order of respondent's eviction, we are unable to hold that the order of eviction dated 2.1 1.1976 had been passed during the existence of the stay order ."
30. In the present matter , it is conspicuo us that the stay order was passed before 11.00 a.m. on 26.7.2021 while the FIR was registered at 1.20 p.m. Hence, nothing more needs to be established!
31. Later , in "Din Muhammad and 2 others v. Abdul Rehman Khan" (1992 SCMR 127), the Hon'ble Supreme Court of Pakistan declared a stay order passed by the higher courts analogous to the passing of a statutory enactment which is enforceable at the time it is enacted irrespective of its commun ication to anyone it is enacted to govern.
"4. In the case to hand, order of this Court was communicated to the High Court who further forwarded it to the trial Court, though the communication is not on the file of the trial Court. Such a contingency was envisaged in the Full Bench case of the Lahore High Court in "Karam Ali v. Raja" (PLD 1949 Lah. 100 at 114) where it was observed that "the order may, by collusion between the party interested and the ministerial officer of the appellate Court or the executing Court, be suppressed". Nevertheless it was held that a stay order will "operate from the time that such order is made and not from the time it is communicated to the executing Court". Besides the reasons in the precedent cases it has also to be kept in view that just as law operates the moment it is enacted and ignorance of it is no defence, so an order made by a superior Court operates when it is made and non- knowledge or ignorance will not permit the lower Court to render the order of the superior Court ineffective or nullity . It is the other way round. No doubt, non-knowledge will not entail liability for any action taken but action will not be clothed with legality when legal authority to proceed had been stopped or stayed."
32. In the case of "Muhammad Nawaz v. The State and 2 others" (2015 PCr.LJ 1514): A Justice of Peace issued directions to register an FIR on 26.09.2014. The Lahore High Court on 01.10.2014 at 8:30 a.m. suspended the operation of the order of Justice of Peace . Police, stately oblivious of the order passed by the Lahore High Court, lodged an F.I.R. on the same day i.e. on 01.10.2014 at 1:20 p.m. This Court relying upon "Din Muhammad and 2 others v. Abdul Rehman Khan" (1992 SCMR 127) (above) and after discussing the jurisprudence developed since "Karam Ali and others v Raja and others" (PLD 1949 Lahore 100) ordered the quashing of the FIR holding: "3.......It is well-established law that a restraining order passed by a Court would go into effect the very moment it is passed, regardless of the fact whether the same was conveyed to the quarters concerned or not.
4. The plea of the SHO Police Station Civil Lines, District Dera Ghazi Khan that the injunctive order dated 1-10- 2014 passed in Writ Petition No.13401/14 was not communicated to him at the time of registering FIR No.376/14 at 1-20 p.m.(noon) is of no avail in the face of the law laid down by the apex Court. I am constrained to observe that I had passed the order on 1-10-2014 at 8-30 a.m., and keeping in view the distance between the Court and the police station, I am not willing to accept the argument that the order was not duly conveyed to SHO Police Station Civil Lines, District Dera Ghazi Khan. Furthermore, the message is conveyed to the quarters concerned within no time on cell phone. Probably , he was under, the impression that he would steal a march over the order of this Court. He was and is mistaken in his view . His impression needs to be dispelled for good."
33. In "Messrs National Electric Company (Pvt.) Ltd., Gujranwala- v. The Commissioner of Income Tax, Gujranwala Zone, Gujranwala" (1996 PTD 901), where the facts were that on 20.6.1983, the Hon'ble Court was pleased to direct that the status quo be maintained till 03.7.1983. However , on 30.6.1983 the reassessment was completed by the Income Tax Officer. The Hon'ble Court decided the following question (b) Whether under the facts and circumstances of the case the Hon'ble Tribunal was justified to hold that the Income Tax Officer could make the order on 30.6.1983 despite the fact that the Supreme Court of Pakistan had order ed for the status quo till 3rd day of July , 1983, on the ground that the stay order was not communicated to the respective Income Tax Of ficer?
"8. It is an undisputed fact that on 20-6-1983 the Supreme Court while hearing an application for stay has directed maintenance of status quo till 3-7-1983. In law stay order , unlike an injunction, operates the moment it is passed and its effectiveness is not dependent upon its communication. Consequently ignorance of the Income Tax Officer about the stay order issued by the Suprem e Court does not in any manner validate the proceedings taken by him subsequent to the issuance of stay. A Full Bench of this Court in Karam Ali and others v. Raja and othe rs PLD 1949 Lahore 100 held that all proceedings taken by a lower forum after a stay order has been issued by a superior Court are nullity notwithstanding that the stay order issued was not in the knowle dge of the Court. This principle was affirmed by the Supreme Court in Haji Abdul Jalil v . Javed Ahmad 1983 SCMR 869 .
9. .............. Be that as it may, the date of communication has hardly any relevance to the controversy as stay order , operates from the time when it is issued and all proceedings taken subsequent thereto stand vitiated."
34. In "Muhammad Anwar v. Muhammad Akbar and others" (PLD 2000 SC 52), it has been held that, "It is a settled proposition of law that a stay order operates from the time when such order is made and not from the time it is communicated. Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR 127 may be cited, wherein it was observed that ignorance would not permit lower Court to render order of superior Court ineffective or nullity , and such action would not be clothed with legality when legal order to proceed had been stopped or stayed."
STATUS OF ACTS COMMITTED AFTER ST AY ORDER:
35. The following judgements hold that since the passing of stay order , in effect, takes away the power of the authority/court to proceed any further , no further action can be taken and such action, if taken, even if it involves rights of a third person (sale to auction purchaser) etc., shall be void.
"Karam All and others v. Raja and others" (PLD 1949 Lahore 100) (above): sale in favour of auction purchaser was set aside since it was held after the pronouncement of a stay order .
"Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar". (1974 SCMR 509): that if the possession was delivered in execution of a decree after High Court had stayed the decree and before the communication of High Court stay order ,' the possession shall be restored to the Judgement Debtor since no order of granting possession could have been passed after the stay order was pronounced by the High Court.
"Persumal and others v. Government of Pakistan and others" (PLD 1960 (W.P) Karachi 690): The Sindh High Court set aside all proceedings taken up or orders passed after the stay was granted by the higher appellate forum.
"Din Muhammad and 2 others v. Abdul Rehman Khan" (1992 SCMR 127): The Hon'ble Supreme Court of Pakistan held that if any act is committed after passing of stay order , the doer of the act shall not be penalized if he was not aware of the stay order but the act done shall remain illegal since legal authority to do the very act had been suspended.
"Messrs National Electric Company (Pvt.) Ltd., Gujranwala v. The Commissioner of Income Tax, Gujranwala Zone, Gujranwala" (1996 PTD 901): The Lahore High Court set aside the assessment done by the FBR authorities after the stay order was passed though not communicated to the concerned of ficer.
"Persumal and others v. Government of Pakistan and others" (PLD 1960 (W.P) Karachi 690): The rule laid down in PLD 1949 Lahore 100 was held to be applicable to the orders of executive, authorities . Custodian of Evacuee Property (Higher forum) under Pakistan (Administration of Evacuee Property) Act (XII of 1957) issued a stay regarding the proceedings pending before the Deputy Custodian. Despite the stay order , Deputy Custodian decided the matter . The order of Deputy Custodian was set aside by the Custodian both for having being passed in breach of stay order but also on merits. In a connected petition, appeal against order of Deputy Custodian was dismissed despite that the order assailed was made during the subsistence of stay order .
The Sindh High Court relied upon "Syed Nazir Ahmad v. Syed Muhammad Saeed and another" (PLD 1955 Lahore 34) and declared that not only was the order of the Deputy Custodian a nullity since it was passed after the pronouncement of stay order but the order of the Custodian was also invalid since it had the effect of attaching legality to an illegal order .
"8. It seems to us that the orders of the Deputy Custodian in each case, on which the orders of the Custodian under reference proceeded, were a complete nullity and non-ex istent in the eyes of law. The Custodian, while dealing with them, could not put any life into them to give them a legal existence. An order , which is void ab initio, cannot be quashed any more than it can be upheld, because a thing which has never existed is not capable even of destruction . In 'the recent judgment of the Supreme Court in the case of Muhammad Ayub Khuro v. Pakistan (PLD 1960 SC (Pak.) 237), it was held by their Lordships that "the proceedings, which are void ab initio, are not capable of any 'confirmation, because nothing is brought into life by a void order which may be confirmed by a confirmatory order ." In this view of the matter , the orders of the Custodian of Evacuee Property , which are the subject-matter of the references made by the Central Government and which being a nullity added to a nullity , do not declare any, evacuee to be non evacuee nor evacuee property to be non- evacuee property , which is a pre-requisite of a valid reference under section 43.A. ...."
36. In AIR 1926 All. 457 (Nand Kishore v. Shadi Ram) , the Allahabad High Court has held that an execution sale held after a stay order by the Appellate Court but before its communication to the executing Court is illegal:- "A sale held in ignorance of the order for stay passed by an Appellate Court is without jurisdiction and must be set aside . An order to stay passed by an Appellate Court is an order to a Subordinate Court to stay its hands, and in that sense it bears no analogy to an injunction, which is an order to a party to refrain from doing a certain act. The former takes effect from the time of its pronouncement, and its communication is only needed to make it known to the Court which is directed to carry it out. Its force is not suspended till it is formally communicated to the Court concerned. An injunction is, however , binding on the party to whom it is issued from the time it is communicated, for there can be no contempt unless the party concerned knows what he is required to do or to abstain from doing, and a Court cannot punish a man for doing what he did not know he was forbidden to do."
37. Perhaps, the rationale for the rule has been most eloquently captured by the Calcutta High Court in (ILR 33 Cal. 92 Hukam Chand Boid v. Kamalanand Singh), where a decree for possession of immovable property had been executed by delivery of possession to the plaintif f before the appellate Court's order staying execution on the defendant's appeal had been communicated to the executing Court.
Woodrof fe J:-- An order for stay is made on the day that it is pronounced and not on that on which it is drawn up (cf. In re The Risca Coal and Iron Company (1861) 31 L J Ch. 429 or communicated. No doubt in the case of a prohibitory order by way of injunction, which also operates from the date of the order being made in the sense stated and which is directed to a party and not to a Court, communication is necessary , for the Court will not punish a man for doing what he did not know it was forbidden to him to do. No such considerations here arise. And I can see no reason why the operation of an order of this Court is to be made contingent, say, upon the due performance of the duties of the Post-of fice. When the Court has said that execution of a decree is not to take place, from that moment the Court, to which application has been made for execution, has no authority to execute it and delivery of possession under the authority of an order , which was not then in force, but had been suspended upon a stay granted by a superior Court, is in my opinion invalid."
Mookerjee J. :- "In my opinion that delivery of possession was ultra vires and illegal . No doubt the mere issue of a rule by this Court calling upon the opposite party to show cause, why execution should not be stayed, does not operate as a stay of execution, it may also be conceded that a conditional order for stay of execution, for example, an order for stay of execution upon furnishing security to the satisfaction of the Court below has no effect on the proceedings, till the condition has been fulfilled, but when as in the case before us this Court has made an unconditional order for stay of execution, the moment the order is made it becomes operative and suspends the power of the Subordinate Court to carry on further the execution proceeding."
38. From the judgements above, it appears that acts and exercises undertaken by both judiciary and executive have been set aside and declared nullity if those have been undertaken in contravention of a stay order issued by a Superior Court in appellate and revisional jurisdiction (stay against judicial forums) or constitutional jurisdiction (stay against executive orders), irrespective of whether the stay order was communicated to them or not.
39. The rationale in setting aside acts committed in oblivion of, but after the time of pronouncement of a stay order , lies in the effect of a stay order and which is that though the order assailed is not altogether erased its force and effect is suspended and hence no furthe r action can be taken on the basis of the assailed order . It exists but in a state of hibernation till it is either revived or killed through the final adjudication; till then it cannot budge.
40. From the narrative and judicial references discussed above, it appears that: i. An interim injunction is issued against a party/third person. The order is passed not because the intended recipient of the order (Party/third person) does not have the power to do the act prohibited. For example, if in a suit for specific performance, a defendant is shown to be owner of the property . His right of disposing off the property is not contested. It is only contended that he is bound to sell it to the plaintif f. Considering the factors (prima facie case, balance of convenience, irreparable loss), if the defendant is restrained from exercising his otherwise valid right, such an injunction will only be ef fective after it is communicated to the defendant. ii. On the other hand a stay issued against a court order or decision of an executive authority tentatively reflects upon the availability or vesting of jurisdic tion i.e either the jurisdiction isn't possessed by the authority or court which passed the order or the jurisdiction appears to have been illegally and incorrectly assumed and exercised.
In such cases, the very foundation of the order assailed appears to be wobbly and hence the stay order would have the effect of stripping the relevant authority of the jurisdiction/ power to proceed any further or giving effect to the order assailed (e.g stay of execution) instantaneously the moment it is passed without there being any consideration of communication. iii. When a stay order divesting a lower authority of the jurisdiction to deal with a matter is issued, it makes the order assailed redundant till final adjudication and no valid action can commence on the basis of or in consequence of the stayed order . iv. Acts done which have the effect of nullifying a stay order are a nullity because the very authority/jurisdiction to do any such thing is suspended and does not exist operationally .
41. In view of the above, it is beyond argument that the FIR registered on 26.7.2021 is, for the present at least, a nullity . However , partly taking heed from the rationale contained in "Aamir Shehzad v. The State and another"
(PLD 2005 Lahore 568) and being guided by the fact that the basis on which the stay order was passed is yet to be judicially determined finally , instead of quashing the FIR and declaring it, by way of issuance of certiorari, to be of no legal effect, it is safe, proportionate and reasonable to suspend its operation and ensuing consequences for the present and till the time the matter raised in W.P. No.47206/ 2021 is finally determined. Therefore, and in line with paragraph 4 of this judgment, the operation of the crime report shall remain suspended for the present and will be of no legal effect until the issue and controversy raised in W.P. No.47206/2021 filed by the present petitioner is decided against him or the stay order dated 26.7.2021 in the said constitutional petition is vacated.
42. The shape and form this decision has taken also addresses in part the objections raised by the Cane Commissioner through the agency of the learned Assistant Advocate General. As for the judgment reported as "Province of Punjab v. Zafar Ali Shah" (1994 SCMR 482) and relied upon, by the Province the same is distinguishable on facts besides being a case based and focused on initiating proceedings in contempt.
43. Allowed in the above terms.