1. The relevant facts for the disposal of this second appeal are that on 26th November 1973 the respondent No. 1 filed a suit in the Court of Assistant Commissioner. Sarawan for the recovery of Rs.
2. 7,000 against the appellant and the respondent No. 2. It was alleged by the plaintiff/respondent No. 1 that about six months before the institution of the suit, the defendants Jhangi Khan and Hassan Khan had entered into an agreement for the purchase of 100 bags of onions at the rate of Rs. 15 per bag. At the time of transaction Rs. 3,560 were paid as advance money by them. After this transaction, the crop of onions was damaged due to flood. Some respectable persons Intervened in the transaction and the parties agreed upon new terms and conditions. The defendants wanted to take back the advance money paid by them, therefore, through the intervention of the respectable it was agreed between the parties that the plaintiff would pay double the amount of the advance, received by him, from the defendants and thus he agreed to pay Rs. 7,0;10 to the defendants. Both the parties accepted this decision. Thereafter the plaintiff disposed of the onions lying with him to one Mir Mohim Khan, the respondent No. 3. In those days the plaintiff was arrested and the plaintiff pressed for the payment of the amount, agreed upon between the parties as per compromise. The plaintiff therefore directed Mir Mohim Khan to pay Rs. 7,003 to the defendants, but the defendants through misrepresentation received Rs. 14,000 instead of Rs. 7,000 from the respondent No. 3. It was therefore, prayed by the plaintiff that a decree for the return of Rs. 7,000 be passed jointly against the two defendants. Jhangi Khan and Hassan Khan the defendants in their written statements, denied the allegations made by plaintiff in his plaint. In substance the defence of the defendants was that the plaintiff had separately entered into agreements with the defendants. He had sold hundred bags of the onions to the appellant at the rate of Rs. 20 per bay;, whereas he had sold hundred bags of onions to Jhangi Khan the respondent No. 2 at the rate of Rs.
3. 15 per bag. Re. 1,500 were paid as advance by the respondent No. 2 and Rs. 2,000 were paid by the appellant as an advance money to the plaintiff. Both the defendants had separately entered into agreement with the plaintiff and there was no joint contract. Due to the increase of rate of onions the plaintiff/respondent No. 1 backed out of the contract and sold the onions to Mir Mohim Khan.
4. The dispute was settled between the parties, in this way, that the plaintiff would pay to each of the defendants at the rate of Rs. 120 per bag for hundred bags. Therefore Mir Mohim Khan made payment of Rs. 7,000 each to the defendant and Rs. 5,000 each of the 2 defendants were still due against the plaintiff.
5. Mir Mohim Khan was also added in the array of defendants and he also submitted his written statement.
6. The Assistant Commissioner after framing the issues, sent the file to Qazi Sarawan for disposal. The Qazi also framed some additional issues, then recorded the evidence of the parties. On 11-11-1974 the plaintiff entered into a compromise with respondent No. 2, and in terms of compro--mise a decree for the sum of Rs. 1,030 was passed in favour of plaintiff and against the defendant Jhangi Khan. On 5th March, 1975 the learned Qazi granted a decree for Re. 3,000 in favour of the plaintiff and against the appellant. It was held by the learned Qazi that the plaintiff was entitled to recover Re. 7,000 from the defendant/appellant but as the plaintiff had only prayed for the recovery of Re.
7. 3,000 therefore he was entitled to that amount.
8. The appellant being aggrieved challenged the decree of the Qazi before Majlis-e-Shoora. The Majlis-e-Shoora also dismissed the appeal vide its judgment dated 15th August, 1975. The first appellate Court affirmed the findings of the lower Court that the agreement between the parties was void and the appellant was only entitled to recover the amount of Re. 2.000 from the plaintiff, which he had paid to him as advance for the said contract. According to both the Courts below the contract in question was not a valid contract, because the object which was not in existence at the time of agreement could not be the subject-matter of a valid contact. The agreement was executed between the parties when the onions were not available for the delivery of possession to the purchaser. Both the Courts have referred to some passages of the authoritative books on this subject, such as Hedayat, Jamie-Al-Ramooz and Sharah Qaduri and Durr-ul-Makhtar.
9. The learned counsel for the appellant has contended that the concurrent findings of the two Courts below are not correct, because both the Courts have misinterpreted the law prevalent in the area.
10. According to the learned counsel the Contract Act has been made applicable by the Central Laws (Statute Reforms) Ordinance (XXI of 1960) to former B. S. D. And therefore the principles of Contract Act are applicable to the present case. The two Courts below therefore are not correct in deciding the matter in accordance with the dictates of Shariat. In substance the learned counsel has submitted that the principles enumerated in Chapter VI of the Contract Act are applicable to the facts of the present case and therefore the appellant was entitled for the compensation for the lose or damage caused by breach of contract. The precise question therefore is whether the principles of Shariat are attracted in the present case or the controversy has to be resolved in accordance with the principles laid down by the Contract Act.
11. The learned counsel has vehemently argued that as the Contract Act applies to the Kalat Division, therefore, it has taken the place of the Shariat in resolving the present matter. The learned counsel has referred to Mir Sald Muhammad and another v. Mir Chakar and 6 others (PLD 1973 Quetta 43) wherein the scope of section 24 of the Dastoorul Amal Diwani Kalat was considered and it was held that section 24 corresponds to provisions of section 100, C. P. C. Therefore the second appeal is competent only on limited grounds provided in section 100, C. P. C. This authority is of no help to the appellant. On the other hand it has been held in Dur Muhammad and another v. Takri Abdul Hameed and 8 others (PLD 1971 Quetta 93) that "section 22 of Dastoorul Amal Diwani, Kalat, makes it very clear that a Qazi is required to decide a civil matter brought before him in accordance with Shariat. No departure is either envisaged or provided for. In consequence, once the matter reaches the Qazi the rule of decision in trial, and in appeals arising out of the decisions of the Qazi, is Shariat and nothing else." Only the corresponding provisions of Dastoorul Amal Diwani Kalat have been repealed and there is no corresponding provisions of section 22 in Civil Procedure Code, which even by implication can be said to have been repealed. Section 22 of Dastoor-ul- Amal Diwani Kalat reads as under ;- Section 22 is not a procedural law, but it is a substantive law therefore, the Courts of Qazis in Kalat Division are bound to decide the matters in accordance with the Shariat. Even there is no corresponding provisions in the A Contract Act. Contract Act cannot be pressed into service for resolving the present dispute. Because the principal point involved in this dispute is about the validity of contract executed between the parties. Hedayat as translated by Charles Hamilton refers in Chapter VI of the book about invalid sale. Sale is invalid where it is lawful with respect of its essence but not with respect of its quality, and null, where the subject is not of an appreciable nature. In the Hedayat it is further laid down that the sale of fish which is not yet caught is null as it is not in the State property ; in the same manner also, the sale of a fish which the vendor may have caught and afterwards thrown into a large fountain from which it cannot be taken without difficulty is null, because there the delivery is impracticable. So also the sale of milk in the udder is null ; because there is a possibility of fraud, in the udder's being perhaps void of milk and full of wind. It is recorded in the Nakl Saheeh, that : "The Prophet prohibited the sale of wool upon the animal, of milk in the udder, and of butter in the milk. It is not lawful to sell dates growing upon a tree in exchange for dates which have been plucked. The case in hand is commonly known in Shariat as Bai Salem.
12. Bai Salem is a kind of sale which originates from the 'Saying' of the Holy Prophet, meaning a prohibition of sale of anything which is not in existence with the seller. Muslim Jurists have placed some clogs on the contract of sale of such kind, Imam Abu Hanifa (easy peace be upon him) has prescribed 7 conditions necessary for Salem-the description of the article with its kind, such as wheat barely, etc. (2) Its description relating to its weight and whether from canal irrigated land or Barani. (3) Its quality such as best, good or moderate etc. (4) Its quantity described by some standard scale on weight. (5) The time to be delivered to the vendor, the duration thereof being the same as given out by the Holy Prophet (which has been quoted and commented upon by the jurists (one month). (6) The quantity of the Rasulmal, (the consideration) and if some article which is weightable or countable, its detail and description. (7) The place where the article is to be delivered with details as to the transport and the expenses thereof, if expected to be measuring.
13. Imam Abu Yousuf and Imam Mohammad (may peace be upon him) consider that the description and definition with regard to Rasulmal (consideration) is not necessary if there it a 'pointing' to it not the description of the place where the article Is to be delivered, as in the absence thereof the article would be delivered at the place where the contract is made.
14. On these two points the Sahibain (the two Imams) have differed with Imam Abu Hanifa. The argument of the Sahibain regarding the first point is that often the condition of the description/definition of the consideration is satisfied by 'pointing'. The Rasulmal pointed to in such circumstances is the consideration or remuneration. It would be as if a person makes a slam on cloth by saying, "I make a slam upon this cloth pointing to it, without describing it in yard'."
15. Argument of Imam Abu Hanifs, however, is that often the Darhams (money) which constitute the Rasulmal (consideration) may contain counterfeit or false coins and in the same sitting it may not be possible to change them, and the number of such coins being not be known at the time it should not be possible to say for how much (remainder) the slum is due. Similarly it may happen with the person with whom the slam is made who may not have control or power upon the article for which reason he would be bound to return or refund the Rasulmal i.e. The consideration. Then if the consideration is not defined the refund or return would not be possible. The substance of the contents of the Muslim Jurists therefore is that the contract of slam of things which can be within the control for delivery may be valid and for things which are not within the control far delivery cannot be the subject matter of a contract. In this behalf the saying of the Holy Prophet is well- known when he (may peace be upon him) said, people do not contract Salam of fruit unless they start showing ripeness.
16. Now we advert to the question of cancellation of sale or rescission of contract. AKALA in the language of law means the cancellation or the dissolution of a sale. The dissolution of a sale is lawful, provided it be for an equivalent to the original price, because the prophet has said "Whosoever rakes an AKALA with one who has repented of his bargain, shall receive an AKALA of his sins from Clod, on the Day of Judgment" (Chapter VI, page 280 of Hedays Second addition by Hamilton).
17. It is further laid down that if a greater or lesser sum than the original price be stipulated as the condition of the dissolution, such condition is null, and the dissolution holds good ; and the seller must return to the purchaser sum equal to the original price. Hence it appears that if a stipulation be made, that the seller shall return to the purchaser a sum greater than the origins price, the dissolution, according to the tenets of Haneefa would be held good to the amount of original price.
18. AKALA is a dissolution and a dissolution cannot possibly relate to the excess, as there is no sale which might be opposed to such excess; and It is impossible to dissolve when does exist, therefore the condition is invalid but not the dissolution.
19. For the reasons discussed above the present appeal has no substance. The same is hereby dismissed, with no order as to costs.