1. No one appears to oppose this Rule, and we are of opinion that it mast be made absolute on the grounds on which it was issued. It appears that on the 28th September last there were 42 witnesses present on behalf of the person against whom the proceedings were taken. Of the forty-two 20 were examined and this having the result that the defence witnesses had then equalled in number the witnesses examined on behalf of the prosecution, the remaining 22 witnesses the trying Magistrate declined to examine. It is fairly obvious that witnesses are not to be counted by heads in this manner, and that it is not open to the trying Magistrate to put such an arbitrary limit on the witnesses whose evidence the defence desires to adduce. There was further a petition praying that one hundred more witnesses should be summoned and thereafter examined on behalf of the defence. But it is not suggested here that the Magistrate was wrong in refusing to accede to an application of that sort made at so late a stage and no grievance is now founded on the order declining the issue of process for the attendance of the 100 additional witnesses.
2. Then the second ground on which this Rule was issued is that in the judgments both the trial Court and the Appellate Court relied on evidence which is not admissible. That evidence is to be found in the confession of one of the accused persons, namely, Mangla Fakir. It appears that in connection with a certain dacoity he was arrested and he made a confession implicating himself and two others amongst the petitioners before us. Now, no doubt,' as against Mangla Fakir that confession is admissible, but at the same time it would seem to us that in connection with that confession the Court should also take into consideration the fact that in the proceedings in connection with that offence of dacoity, notwithstanding the confession, Mangla Fakir was in fact released or discharged. However that may be, as against the two co-accused it is clearly inadmissible, the provisions of Section 30 of the Evidence Act not being applicable in a case such as the present.
3. For these reasons we make this Rule absolute, set aside the orders of both the lower Courts and direct that the trial be resumed at the point reached on the 28th-September last and that the, 22 witnesses who were then present be now examined, if the petitioners still desire to examine them. In these terms this Rule is made absolute.