1. The petitioner has been convicted of an offence punishable under Section 123, Motor Vehicles Act. The gist of the prosecution case is that a certain vehicle which was licensed as a lorry was being improperly used as a bus. The accused were the driver and owner and the petitioner who is alleged to have been the conductor. The prosecution only examined two witnesses, namely the police officers who detected the offence. None of the passengers I were examined to prove that the petitioner was acting as the conductor. There was only circumstantial evidence to the effect that the petitioner returned the fares to the passengers. The learned Magistrate would certainly have been entitled to find on this evidence that the petitioner was the conductor. But unfortunately he has also placed reliance upon a statement made by a co-accused, i.e., Wazid Ali--the driver. If the prosecution wished to rely upon this, they should have asked for a separate trial and examined Wazid Ali as a witness. As the present conviction has been based upon what is not evidence, it cannot be supported. The rule is accordingly made absolute, the conviction and sentence are set aside and I direct that the petitioner be retried by some other Magistrate. The prosecution will be at liberty to examine as witnesses the driver and any of the passengers.