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Petitioner: MUHAMMAD ASLAM and 3 others VS Respondent: The STATE and another
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Muhammad Waheed Khan Title: MUHAMMAD ASLAM and 3 others vs The STATE and another Case No.:Criminal Appeals Nos, 915, 1011, Criminal P.S.L.A. No,114 and Murder Reference
JUDGMENT
Reported As: 2019 YLR 1226 Result: Order accordingly Judgment JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Mohammad Aslam son of Muhammad Din, resident of Ajjowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Iftikhar Ahmad son of Fazal Ahma d, resident of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Muhammad Afzal son of Ghulam Haider , resident of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, Gulzar Ahmad son of Ghulam Haider , resid ent of Kakowal, Tehsil Malikwal, District Mandi Baha-ud-Din, appellants along with Zafar Iqbal (convict), Mst. Razia Begum, Fazal Ahmad, Muhammad Aslam, Ghulam Haider and Mst. Azhra (all since acquitted) and Modassar , Muhammad Iqbal and Muhammad Ameer (all since P.Os) were involved in case FIR No,431/2010, dated 08.08.2010, offence under Sections 302, 427, 428, 109, 148, 149, P.P.C., registered with Police Station Malikwal, District Mandi Baha-ud-Din. During the course of investigation except Muhammad Aslam, appellant, rest of the accused were found innocent and their names were placed in column No,2 of the report prepared under Section 173, Cr.P.C. The complainant being aggrieved preferred to file private complaint titled:- "Ghulam Abbas v . Muhammad Aslam, etc." under Sections 302, 109, 428, 429, 148, 149 and 395, P.P.C. On filing of complaint, learned trial court recorded preliminary/cursory statements of the prosecution witnesses and vide order dated 01.10.201 1 issued process against the accused/respondents. After recording of evidence and taking into consideration the material available on record, learned trial court vide judgment dated 06.05.2014 concluded that charge against the appellants/convict was proved, hence convicted and sentenced them as under:-- Sr# Name of the appellant/ convictSentence/Conviction
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(1) Muhammad Aslam > Under Section 302(b), P .P.C., sentenced to death as Ta'zir on four counts with direction to pay Rs,2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr .P.C. and to case of default in payment thereof, to undergo S.1. for six months on each count > Under Section 429, P .P.C., sentenced to undergo five years R.I. with fine of Rs, 10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/ 149, P .P.C. sentenced to undergo R.I. for three years. (2) Iftikhar Ahmad > Under Section 302(b), P .P.C., sentenced to death as Ta'zir on four counts with direction to pay Rs,2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544A, Cr .P.C. and in case of default in Payment thereof, to undergo S.I. for six months on each count > Under Section 429, P .P.C., sentenced to undergo five years R.I. with fine of Rs,10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/149, PPC, sentenced to undergo R.I. for three years. (3) Muhammad Afzal > Under Section 302(b), P .P.C., sentenced to death as Ta'zir on four counts with direction to pay Rs,2,00,000/-as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof, to undergo for six months on each count > Under Section 429, P .P.C., sentenced to undergo five years R.I. with fine of Rs,10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under . Sections 148/149, P .P.C., sentenced to undergo R.I. for three years. (4) Gulzar Ahmad > Under Section 302(b), P .P.C., sentenced to death as Taizir on four counts with direction to pay Rs,2,00,000/-as compensation to legal heirs of each of the deceased in terms of Section 544A, Cr .P.C. and in case of default in payment thereof, to undergo for six months on each count > Under Section 429, P .P.C. sentenced to undergo five years R.I. with fine of Rs,10,000 and in case of default in payment thereof, to further undergo S.I. for one month. > Under Sections 148/149, P .P.C., sentenced to undergo R.I. for three years. (5) Zafar Iqbal (convict) > Under Section 302(b), P .P.C.,(convict) sentenced to death as Ta'zir on four counts with direction to pay Rs,2,00,000/- as compensation to legal heirs of each of the deceased in terms of Section 544-A, Cr .P.C. and in case of default in payment thereof to undergo S.I. for six months on each count > Under Section 429, P .P.C., sentenced to undergo five years R.I. with fine of Rs,10,000 and in case of default in payment thereof, to further undergo S.I. for one month.
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> Under Sections 148/149, P .P.C., sentenced to undergo R.I. for three years. 2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Aslam, Iftikhar Ahmad, Muhammad Afzal and Gulzar Ahmad, appellants have assailed their conviction and sentence through filing Crl. Appeal No,915/2014. It is pertinent to mention here that at the time of pronouncement of judgment, Zafar Iqbal/convict slipped away and he did not file appeal against his conviction and sentence before this Court. Learned trial court forwarded Murder Reference No,204/2014 for confirmation of sentence of death inflicted upon the convicts. Ghulam Abbas son of Jalal Akbar complainant, filed Crl. Appeal No,101 1/2014 against acquittal of Mst. Razia Begum, Fazal Ahmad, Muhammad Aslam son of Ghulam Muhammad, Ghulam Haider and Mst. Azhra/ respondents whereas he also filed Crl. PSLA No,114/2014 against acquittal of aforesaid respondents/accused. It is pertinent to mention here that as the judgment was passed in a complaint case, therefore, remedy provided under the law against acquittal of accused is to file petition for leave to appeal, hence, Crl. Appeal No,101 1/2014 being on the same subject against same set of accused/ respondents is hereby dismissed. As all the remaining matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment. 3. Prosecution story as portrayed in the FIR (Exh.PI) lodged on the statement (Exh.PW) of Ghulam Abbas son of Jalal Akbar , caste Gondal (PW-11) is that the complainant is an employee of Pakistan Army and resident of Ajjowal. On 08.08.2010 the complainant had gone to his home to spend one month leave. At about 7.30 p.m., the complainant along with his father Jalal Akbar and brother Muhammad Anar, caste Gondal, Saifullah son of Maula Balksh, caste Muslim Sheikh, Bashir Ahmad son of Muhammad Din, caste Gujjar both residents of Ajjowal, Muhammad Walayat son of Ali Muhamma d, his nephew Taimoor-ul-Hassan son of Muhammad Anar, both Gondal by caste, residents of Ajjowal were present at their 'haveli'/cattle-shed for milking. All of sudden, accused (1) Muhammad Aslam armed with gun .12-bore, (2) Asad Nazir son of Muhammad Nazir , (3) Zafar Iqbal son of Muhammad Akbar , (4) Mudassar son of Muhammad Akbar , (5) Iftikhar Ahmad son of Fazal Ahmad, (6) Muhammad Afzal son of Ghulam Haider , (7) Muhammad Iqbal son of Ghulam Haider , (8) Gulza r Ahmad son of Ghulam Haider , all armed with firearms, (9) Mst. Razia Begum daughter of Muhammad Din carrying a bag of cartridges/bullets in her hand while raising 'lalkaras' entered the 'haveli' to teach lesson for murder of Ashraf and started straight/indiscriminate firing with their firearms. Muhammad Aslam accused made straight fire shot with his gun hitting Jalal Akbar father of the complainant on different parts of his body who fell down. Remaining accused persons made indiscriminate firing with their firearms and inflicted injuries to Muhammad Anar, Saifullah and Bashir on their different parts of bodies, who also fell down. The complainant, Muhammad Walayat and Taimoor-ul-Hassan saved their lives by hiding themselves in rooms. In the meanwhile on hearing the reports of firing, Ejaz Ahmad son of Muhammad Walayat, Nassar Iqbal son of Muhammad Hayat and Tanveer Abbas son of Maula Bakhsh arrived at the place of occurrence and witnessed the occurrence whereas the accused persons made their good escape while raising lalkaras'. The complainant party attended Jalal Akbar , Muhammad Anar, Bashir Ahmad and Saifullah who succumbed to the injuries at the spot as a result of firing made by accused persons. The complainant. alleged that due to firing of aforesaid accused two buffalos of the complainant also died at the spot whereas Muhammad Aslam accused took away licensed rifle .44-bore of his brother Muhammad Anar (deceased) with him. It was averred by the complainant that the aforesaid accused persons committed this occurrence on the abetment/instigation of (1) Fazal Ahmad son of Mirza, (2) Muhammad Aslam son of Ghulam Muhammad, (3) Muhammad Ameer son of Muhammad Din, (4) Ghulam Haider son of Motalli Khan and Azhra widow of Nazir and conspiracy was heard by Haji Ghulam Muhammad son of Mirza Khan, Mirza Khan son of Muhammad Hayyat, caste Gondal, residents of Badsha Pur made in the 'baithak' of Fazal Ahmad, some days prior to the occurrence. Motive behind the occurrence as disclose d in the crime report was that accused had suspicion. that Jalal Akbar and Muhammad Anar (deceased-persons) had murdered their brother Muhammad Ashraf and his children and in this regard a case stood registered at Police Station Civil Line, Mandi Baha-ud-Din. At the time of occurrence besides the above accused persons, two unknown accused were also accompanying them, who also made firing at the spot and killed father of the complainant, his brother and employees, as well as, buf falos.
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4. On receipt of information regarding the occurrence, Riaz Hussain S.I. (CW-1) along with other police officials reached at the place of occurrence where Ghulam Abbas, complainant (PW-11) made his statement, which was reduced into writing (Exh.PW) and after endorsing police karvai the same was transmitted to Police Station through Shahid Imran 1557/C for registration of formal FIR. Thereafter Investigating Officer prepared inquest reports of deceased, Jalal Akbar (Exh.PO), Saifullah (Exh.PR), Bashir (Exh.PL) and Anar (Exh.PU). He also drafted injury statements of above mentioned four dece ased viz. Jalal Akbar (Exh.PP), Saifullah (Exh. PS), Bashir (Exh.PM) and Anar (Exh. PL). Subsequently Investigating Officer secured blood stained earth from the places of murder of four deceased persons, made it into sealed parcel and took into possession vide recovery memos Exh.CW -1/A, Exh.CW -1/B, Exh.CW -1/C and Exh. CW-1/D respectively . He inspected the place of occurrence and collected four crime empties of gun .12-bore and thirty two empties of Kalashnikov vide recovery memo Exh.CW -1/E. He prepared rough site plan of the place of occurrence (Exh. CW-1/F). Investigating Officer dispatched the dead bodies of the deceased to mortuary under the escort of Mahroof Waheed constable. After postmortem examination last worn clothes of the deceased were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.P A,. Exh.PB, Exh.PC and Exh. PD respectively . Upon the direction of Investigating Officer and pointing out of the PWs on 09.08.2010 Gulzar Ahmad, Draftsman (PW-09) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PL), which was made part of the file. On 19.08.2010, Investigating Officer arrested Muhammad Aslam appellant and obtained his, physical remand. During the course of interrogation in pursuance of disclosure on 25.08.2010, Muhammad Aslam appellant led to the recovery of rifle .44-bore (stolen at the time of occurrence) (P-13) along with a magazine containing five live bullets, which were taken into possession vide recovery memo Exh. PH. On 26.08.2018 Aslam appellant led to the recovery of gun .12-bore (P-13) which the Investigating Of ficer took into possession vide recovery memo Exh. PH. 5. After conducting the investigation, Investigating Officer submitted report under Section 173, Cr.P.C. while placing the name of Muhammad Aslam son of Muhammad Din appellant in column No,3, however , the names of remaining appellants along with co-accused were placed in column No,2 of the challan. The complainant preferred to file private complaint; wherein the accused were summoned. On 07.03.2012, learned Additional Sessions Judge formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as thirteen (13) prosecution witnesses while two court witnesses also made their statements. 6. Occular account in this case consists of the statements of complainant Ghulam Abbas (PW-11) and Muhammad Walayat (PW-13). Haji Ghulam Muhammad (PW-3) is the witness of abetment. Khalid Mehmood, ASI (PW.6) had chalked out formal FIR while Gulzar Ahmad, Draftsman (PW-9) had prepared scaled site plan of the place of occurrence. Dr. Muhammad Aslam (PW.12) is the veterinary doctor who conducted postmortem of one buffalo and examined four cattle. Investigation in this case was conducted by Riaz Hussain, S.I. (CW-1) and Shoukat Hayyat, S.P. (CW -2). On 09.08.2010, Dr. Muhammad Sattar (PW-10) had conducted postmortem examination over the dead body of Bashir Ahmad deceased and observed following injuries on his person:-- "1-A. A firearm lacerated entry wound 1 x 1 cm, at the inner pinna of right ear going deep with inverted margins. 1-B. A firearm lacerated exit wound 2 cm x 5 cm on the posterior side of left ear . 2-A. A firearm lacerated entry wound 1 cm x 1 cm on the lower side of front of right chest, 18 cm below right nipple and 14 cm right to umbilicus with inverted margins. 2-B. A firearm exit wound 2 x 2 cm on right side of back of chest 8 cm below right lower border of right scapula with averted margin. 3-A. A firearm entry wound 1 x 1 cm at the umbilicus with inverted margins going deep. 3-B. A firearm lacerated exit wound 2 x 2 cm on the right side of back of abdomen , 4 cm right to vertebral column, 10 cm, above the right iliac crest with averted margins. 4-A. A firearm entry wound 1 x .5 cm on right front of lower abdomen, 3 cm above right iliac crest with averted margins going deep.
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4-B. A firearm lacerated exit wound 4 x 1.5 cm on right side of back of abdomen, 15 cm lateral to veritable column with averted margins. 5-A. A firearm lacerated entry wound, 1 x 1 cm on right side of back of skull with averted margins going deep. 5-B. A firearm lacerated exit wound 2 x 1 cm on base of left ear , back side with averted margins. 6-A. A firearm lacerated entry wound on the lateral side of left upper arm in the center of shoulder and elbow with averted margins. 6-B. A firearm lacerated exit wound 2 x 2 cm on the medial side of left upper arm in auxiliary region with averted margins. After conducting postmortem examination doctor rendered the following opinion: - "After careful examination of dead body , I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, brain lung etc and excessive hemorrhage and shock, which leads to cardiopulmonary arrest and death. Injury Nos, 1 to 5 were individually fatal in ordinary course of nature of death: Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 10-12 hours." On the same day, at about 7.40 a.m., he conducted postmortem examination on the dead body of Jalal Akbar deceased and observed following injuries on his person:- "1. A firearm entry wound 6 x 4 on front of right shoulder with inverted margins going deep. 2 A firearm entry wounds 9 in number , on front of chest, left side size being 1 x 1 cm and 1 x 1.5 cm going deep with averted margins. 3. A firearm entry wound 1 cm x 1 cm on the lateral aspect of upper end of upper right arm. 4. A firearm lacerated entry wound 4 in number , in front of neck size being 1 x 1 cm. 5-A. A firearm entry wound 1 x 1.5 cm below left side of mandibular margin going deep with inverted margin. 5-B. A firearm exit wound 1.5 x 1.5 cm on right side of neck below right side of ,chin with averted margins. 6-A. A firearm entry wound 1 x 1.5 cm, on left side of abdomen, 10 cm above left iliac crust with inverted margin going deep. 6-B. A firearm lacerated wound exit wound 2 x 1.5 cm, left side of lower part of abdomen, 3 cm above iliac crust with averted margins. 7-A. A firearm entry wound 1 x 1 cm on the right buttock with averted margin going deep. 7-B. A firearm lacerated exit wound 3 x 2.5 cm on the interior aspect of middle of right thigh. 8-A. A firearm lacerated entry wound 8 in number size being 1 x 1 cm each, on the posterior aspect of upper part of right forearm with inverted margins. 8-B. There is a shattered wound 8 cm x 7 cm with fracture of radius and ulna, all the muscles and bones were exposed. 9-A. A firearm entry wound on the front of abdomen with inverted margins in right iliac fossa. 9-B. A firearm lacerated wound 3 x 2.5 cm on the back of right side of midline with averted margins. 10. A firearm lacerated exit wound on back of chest, on right side 2 x 2 cm with averted margins. After conducting postmortem examination doctor rendered the following opinion: - "After careful examination of dead body , I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc. and excessive hemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature. Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 1 1-13 hours." On the same day, at about 8.25 a.m., PW-10 conducted postmortem examination on the dead body of Saifullah son of Maula Bakhsh and observed following injuries:-- "1 A firearm entry wound 1 x 1 cm, with inverted margins, with colour of abrasion on right side of chest, in right armpit going deep. 1-B. A firearm lacerated wound 2 x 2.5 cm, on the left side of chest with inverted margins.
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1-C. A firearm lacerated entry wound 1 x 1 cm on medial side of left upper arm, on middle part with inverted margins going deep. 1-D. A firearm lacerated 1.5 x 1.5 cm, on the lower 1/3 of upper arm, 10 cm about olecranian process of ulna, this is exit wound with averted margins. 2. A firearm entry lacerated wound on right side of abdomen, right iliac fossa with averted margins going deep, which was entry wound of 1 x 1 cm. 3-A. A firearm lacerated entry wound 3 x 2 cm on the left buttock going deep with inverted margins. 3-B. A firearm lacerated exit wound 4 x 3 cm on outer aspect of left thigh with averted margins 20 cm from left iliac fossa. 4-A. A firearm lacerated entry wound 2 x 2 cm, on buttock with inverted margins going deep. 4-B. A firearm lacerated exit wound with averted margins on medial side of right upper thigh, 4 x 3 cm. 5. A firearm lacerated entry wound 4 x 3 cm, on the outer aspect of lower 1/3 of left thigh going deep. 6-A. A firearm lacerated entry wound 5 x .5 cm with inverted margins in front of right knee going deep. 6-B. A firearm lacerated exit wound 1.5 x 1.5 cm with averted margins on medial side of right knee. 7. A firearm entry exit wound 1.5 x 1.5 cm, in front of lower leg 5 cm below left knee. After conducting postmortem examination doctor rendered the following opinion:-- "After careful examination of dead body , I was of the opinion that all the injuries were ante mortem caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc and excessive hemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature. Injuries Nos,1-A and 1-b are individually fatal in ordinary course of nature of death. Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 12-14 hours." On the same day, at about 9.30 a. m, doctor conducted postmortem examination on the dead body of Muhammad Anar son of Jalal Akbar and observed following injuries.-- "1. A firearm lacerated entry wound 2 x 1 cm, on occipital region, left side of head with inverted margins going deep. 2. A firearm lacerated entry wound on left side of perital region going deep. 3. A firearm lacerated entry wound 1 cm x 1 cm on the back of left ear with inverted margins going deep. 4. A firearm lacerated entry wound 3 in number , with inverted margins below left ear in a line anteroposterior in between distance of wound is 3 cm going deep. 5. A firearm lacerated shattered exit wound 15 cm x 20 cm with deformed skull and face on right side, brain matter pouring out. 6-A. A firearm lacerated wound 1 x 1 cm on back of chest just above left scapula going deep with inverted margins. 6-B. A firearm lacerated exit wound 6 x 3 cm, in front of right shoulder with averted margins. 7-A. A firearm lacerated entry wound 1 x 1 cm with inverted margins on back of chest, medial to left scapula going deep. 7-B. A firearm lacerated exit wound 3 x 3 cm, in front of right side of chest 6 cm above right nipple with averted margins. 8-A. A firearm lacerated wound 1 x 1 cm, going deep with inverted margins below left scapula. 8-B. A firearm lacerated exit wound 3 x 3 cm, with inverted margins on outside of right chest in armpit. 8-C. A firearm lacerated wound 1.5 x 1.5 cm, with inverted margins on medial side of right arm at the level of injury No,8-B going deep. 8-D. A firearm lacerated exit wound 2.5 x 2.5 with inverted margins in front of right upper arm. 9-A. A firearm lacerated entry wound 1 x, 1 cm, going deep with inverted margins , lateral to left scapula on lower part. 9-B. A firearm lacerated exit wound 2.5 x 2.5 cm with averted margins 2 cm lateral to injury No, 7-B, in front of right side chest.
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10-A. A firearm lacerated entry wound 1.5 x 1.5 cm with inverted margins going deep on back of upper part of left thigh. 10-B. A firearm lacerated exit, wound 3 x 3 cm with inverted margins on medial side of left thigh, on upper part. 11&12. Two firearms lacerated wounds 1 x 1 cm each, going deep with inverted margins between distance is 2 cm on back of left thigh. 13. A firearm lacerated entry wound 4 x 4 cm on antero medial side of left thigh with inverted margins. 14-A. A firearm lacerated entry wound 3 x 2 cm, on lower part in front of neck going deep 7 x 5 cm on outer aspect of left armpit with averted margins. 15. A firearm lacerated wound 7 x 5 cm on medial and back of right writ with fracture of underline bone and joint open. 16. A firearm lacerated entry wound at right little finger with fracture, only stump of skin present. After conducting postmortem examination doctor rendered the following opinion:- "After careful examination of dead body , I was of the opinion that all the injuries were ante motion caused by firearm. Death had occurred collectively by all the injuries, leading to damage to vital organs, lungs etc and excessive haemorrhage and shock, which leads to cardiopulmonary failure and death in ordinary course of nature. Probable time between injury and death was immediate, whereas probable duration between death and postmortem was 13-15 hours." Statements of rest of the prosecution witnesses are formal in nature. 7. Vide his statement recorded on 23.10.2013 learned DDPP gave up Rizwan Faisal No,869/C, PW, being unnecessary whereas learned counsel for the complainant vide his statement recorded on 26.04.2014 gave up Taimoor , Ejaz, Tanveer Abbas, Nassar Iqbal, Muhammad Afzal, Mirza, Waqar Hussain Pigs being un-necessary and also gave up Anar son of Hayat being won over by the accused and Mahroof constable being unavailable having proceeded abroad. On 30.04.2014 after tendering in evidence report of Chemical Examiner (Exh.PZ), report of Serologist (Exh.PZ/1) and report of Forensic Science Laboratory (Exh.PZ/2) learned ADPP closed the prosecution evidence. 8. The appellants were examined under Section 342, Cr.P.C. wherein they refuted the accusations levelled against them in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, Muhammad Aslam, appellant, made the following deposition:- "This case has falsely been registered against me, due to previous enmity . Complainant and PWs are inimical to me since long and they have made false statements in this case and involved me in this case just to pressurize and to affect compromise in case FIR No,278/09 under section 302, P.P.C., in which brother of the complainant has already been awarded death sentence." Iftikhar Ahmad, appellant, while replying to this…
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