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Petitioner: MUHAMMAD IDDREES BUTT and 4 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Muzammal Khan, M. Javed Buttar Title: MUHAMMAD IDDREES BUTT and 4 others vs THE STATE Case No.: Criminal Appeals Nos.129 101, 102 and 200 of 2000 Date of Judgment:2004-06-21 Reported As: 2004 YLR 3017 Result: Order accordingly
JUDGMENT
JUDGMENT ' M. JAVED BUTTAR, J.---The appellants, (1) Muhammad lddrees Butt, (Criminal Appeal No.129 of 2000), (2) Asad Ullah (Criminal Appeal No.101 of 2000), (3) Ifiikhar Hussain (Criminal Appeal No.102 of 2000), (4) Muhammad Riaz and, (5) Abdul Khaliq (Criminal Appeal No.200 of 2000), were tried by Special Judge, Anti-Narcotics, Lahore, in crime case F.I.R. No.15 dated 24-5-1999, registered at Police Station, Anti-Narcotics Force, Lahore, under sections 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, 161, P.P.C., 5(2) of Prevention of Corruption Act, 1947, and 13 of the Pakistan Arms Ordinance XX of 1965, for the alleged recovery of heroin weighing 32 Kgs. From the possession of aforementioned appellants Nos. 1 to 3 and for aiding, abetment and association by aforementioned, appellants Nos.4 and 5 in the commission of narcotics offences. The learned trial Court, vide its judgment dated 14.2.2000, convicted the aforementioned appellants Nos.1 to 3, under section 9(c) read with sections 14 and 15 of Control of Narcotic Substances Act, 1997, and sentenced each of them to death. They were also awarded fines as under: (1) Muhammad Iddrees Butt Rs.50,000 (2) Asad Ullah Khan Rs.10,000 (3) Iftikhar Hussain Rs.10,000 ' The appellants, Muhammad Riaz and Abdul Khaliq, were also convicted under section 9 of Control of Narcotic Substances Act, 1997, and sentenced to five years R.I., each. ' They were, however, given the benefit as contemplated under section 382-B, Cr.P.C. ' The appellants have assailed the legality and correctness of their convictions and sentences, through the above-mentioned appeals, which are being disposed of through this single judgment.
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2. The prosecution case as set up in the complaint (Exh.P.C.) briefly is that on 24-5-1999, on receipt of secret information, a raiding party under the supervision of Major Abdul Rab and Syed Hassan ljaz Kazmi, Deputy Directors, comprising of Captain Mian Farooq Aziz, Inspector/S.11.0., Police Station A.N.F., Lahore, Ahmad Jalil Raja (P.W.4), Subedar Pervaiz Iqbal, Muhammad Sarwar Bhutta, S.-I., Havaldars Muhammad Ajmal and Muhammad Razzaq, Naik Shaheen, Lance Naik Ashraf; Maroof and Khalid, G.Ds, Sepoys Muhammad Aamar, Muhammad Shafique, Akbar, Umer Shahzad, Shah Nawaz, ljaz, Haji Abid, Iddrees, Allah Yar, Shaukat Ali H.C. (P.W.3), Constables Muhammad Saleem., Azmat Ali, Muhammad Shafique, Abdul Sattar Drivers Maroof; Sukhawat:, Mumtaz, Ramzan and Qayyum, was constituted by ANF, Lahore. The raiding party reached at Allama Iqbal Chowk near Railway Station Sialkot, on official vehicles and started secret surveillance, by parking its vehicles at a site. At about 1-30 p.m., on the pointation of the informer, a Suzuki Carry Van bearing Registration No.ADB-1888 was intercepted. Three persons were found sitting in the said Suzuki Carry Van. They disclosed their names as Dr. Muhammad Iddrees Butt son of Faqir Muhammad, resident of Street No.9, Mohallah Darbar Sharif: Pacca Garha, Sialkot, Asad Ullah son of Muhammad Yousaf Khan, caste Pathan, resident of Kotla Kahloonwan, Police Station, Kot Nainan, Tehsil Shakargarh, District Narowal, and Syed Iftikhar Ahmad Shah son of Syed Sadiq Hussain, resident of Rawali Wal, Police Station, Kotli Loharan, District Sialkot. Two motor cycles, one Yamaha and one Honda, driven by two persons, were seen following the Suzuki Carry Van. They were also apprehended. They disclosed their names as Muhammad Riaz son of Haji Rehmat Ali, resident of Dargaee Wala, Police Station, Ali Pur Chatthha, District Gujranwala, and Abdul Khaliq son of Abbas Ali, caste Mughal, Post Office Saukan Wind, Police Station Qila Qadir Wala, Tehsil Pasrur, District Sialkot. The raiding party headed by Ahmad Jalil Raji. (P.W.4) conducted the search of the Suzuki Carry Van and recovered a Nylon Bag lying in front of the feet of Dr. Muhammad Iddrees Butt accused, who was sitting on the driving seat of the said vehicle and from this Nylon Bag, 12 packets of heroin of one kilogram each (Exh.P.1/1-12) were recovered. Asad Ullah, accused, was sitting on the front seat of the said Carry Vali, besides the driving seat and from the place in tront of his feet, a bag was lying from which 10 packets of heroin of one kilogram each (Exh.P.2/13-22) were recovered. Syed Iftikhar Ahmad Shah, accused, was sitting on the rear seat of the Van and from the place in front of his seat, a bag containing 10 packets of heroin of one kilogram each (Exh.P.3/23-32) was recovered. The total weight of heroin recovered from these three appellants was 32 Kgs. The Investigating Officer, Ahmad Jalil Raja (P.W.4) separated five grams of heroin from each packet and prepared 32 sealed sample parcels for chemical analysis. The sealed sample parcels and the sealed parcel of rest of the heroin, were taken into possession by putting a seal of words `A.N.T.F.' and Suzuki Carry Van, vide recovery memo. Exh.P.A, which was prepared by P.W.4 on the spot and was signed by him besides Muhammad Sarwar Bhutta, S.-I. (given up) and Shaukat Ali, H.0 (P.W.3). He also took into custody motorcycles, bearing Registration No.GAF-9984 Honda CD-70 and Yamaha 100-CC, without registration number, vide recovery memo. (Exh.P.B.), signed by the same witnesses as of memo. (Exh.P.A.). These motorcycles and their riders namely Abdul Khaliq and Muhammad Riaz, accused (appellants) were alleged to be protecting the Suzuki Carry Van. The personal search of Abdul Khaliq accused led to the recovery of Colt Revolver .38 bore with 13 live bullets, which was also taken into possession. Later on it was discovered that it was licensed revolver in the custody of Abdul Khaliq. It is further alleged in the complaint that accused Dr. Muhammad Iddrees Butt informed that he with the help and connivance of accused Asad Ullah and Iftikhar Shah, who are A.S.-Is. In C.I.A., Sialkot, deals in the business of narcotics and today, these A.S.-Is. Had recovered this, heroin from two Pathans from Suzuki Carry Van No.ADB-1888 and let those Pathans off for illegal gratification of cash of Rs.40,000 and the aforesaid Suzuki Van and distributed the heroin and cash amount amongst themselves. Further stated that each of the three accused kept 10 Kgs. Of heroin each, for themselves and rest of heroin weighing 2 Kgs. Was the share of Riaz and Khaliq
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accused, who are Constables in C.I.A., Sialkot. Their share of heroin was to be sold and the sale money was to be paid to them. It is also mentioned that this accused went on to disclose that previously also, they had committed many such like offences. The Investigating Officer /P.W.4 prepared the complaint (Exh.P.C.) on the spot and sent the same through Muhammad Shafique, Constable, to the Police Station for registration of formal F.I.R., which was recorded by Nasir Aziz, S.-1. On the same day at 5-15 p.m. The complainant also prepared the site plan of the place of recovery (Exh.P.D.), recorded the statements of the P.Ws under section 161, Cr.P.C., obtained report of Chemical Examiner (Exh.P.E.), which was positive, got the confessional statement .Of Muhammad Iddrees Butt (appellant) recorded under section 164, Cr.P.C., from the Court of Ch. Irfan Qadir, Ilaqa Magistrate (P.W.5) on 3-6-1999, completed the investigation and sent up the challan against the accused persons vide his report dated 10-7-1999, under section 173, Cr.P.C. 3. The charge was framed on 23-9-1999, which was pleaded not guilty by the accused, who claimed trial. 4. The prosecution has examined five witnesses to prove its case. 5. P.W.1, Muhammad Sarwar, Moharrir/H.C., Police Station, ANF, Lahore, stated that on 24-5-1999, 32 samples of heroin were handed over to him by the Investigating Officer for safe keeping in the Mallkhana and he handed over the sealed samples on 25-5-1999 to Abdul Ghafoor, Constable for onward transmission to the office of Chemical Examiner, Lahore. In the cross-examination, he stated that the samples were sealed with the stamp of ANTF and that his statement in this regard was recorded by the Investigating Officer on 25-5-1999 and not on 24-5-1999. 6. P.W.2, Abdul Ghafoor, Constable, Police Station, ANF, Lahore, stated that on 25-5-1999, 32 sealed parcels with the seal of ANTF containing heroin were handed over to him by Muhammad Sarwar, Moharrir (P.W.1) and he deposited the same in the office of Chemical Examiner, Lahore, on the same day. In the cross-examination, he stated that it was not in his knowledge that the accused Iddrees Butt had given an application to S.H.O., Police Station Uggoke, against him and other officers of ANF, Lahore and denied the suggestions that they had conducted a raid at the house of Iddrees Butt and had taken away the letter pads, Rs.50,000 and other articles from his house and that a request was made that a case be registered against him and other police officials of ANF, Lahore. He, however, admitted that his name figured in the application dated 20-5-1999, which was given to S.H.O., Police Station Uggoke, by accused Muhammad Iddrees Butt. 7. P.W.3, Shaukat Ali, H.C., Police Station, ANF, Lahore, was member of the raiding party. He is also an attesting witness of recovery memos. Exh.P.A. (of heroin and Suzuki Van etc.) and Exh.P.B. (of motorcycles). In his examination-inchief he fully supported the prosecution case/complaint, detailed above. He further stated that during interrogation, Muhammad Iddrees Butt disclosed that some heroin was lying in his house. He led the raiding party to his house wherefrom 2 Kgs. Heroin was recovered and in this: connection a separate case (F.I.R. No.16 of 99 dated 24-5-1999, for the offences under sections 9(c) & 15 of Control of Narcotic Substances Act, 1997, and 13 of the Pakistan Arms Ordinance XX of 1965) was registered. In the cross-.Examination, he stated that he cannot deny the suggestion that he appeared in over 100 cases with Ahmad Jalil Raja, Investigating Officer and denied the suggestion that he had been cited as witness in every case of Ahmad Jalil Raja. He also stated that he is being marked present in the office of Model Town and remains on duty from 8-00 a.m. To 3-00 p.m. And that he did not go to Sialkot prior to 24-5-1999 in connection with the investigation of this case. He could not give the registration numbers of the four official vehicles in which the raiding party went to Sialkot. Similarly, he failed to tell the names of the drivers of those vehicles. He also could not tell the names of 5/6 other officials, who were sitting in the vehicle of Raja Jalil. He went on to state that they reached Sialkot at about 11-15 a.m., at the place of occurrence quite near to the Railway Station, they saw the Carry Van at about 1-30 p.m, it was coming from the Railway Station to
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Allama Iqbal Chowk, it was being driven by Muhammad Iddrees Butt, the keys of the Carry Van were taken into possession by the Investigating Officer, about 40/50 persons had assembled at the place of recovery, the Investigating Officer had asked some persons to become witness but nobody was prepared to do so and that the raid at the house of Muhammad Iddrees Butt, was conducted at about 4/4-30 p.m. He denied the suggestions put by the defence in regard to the innocence of the accused. P.W.4, Ahmad Jalil Raja, complainant/ Investigating Officer supported his complaint details of which have already been given above. He further deposed that he deposited the case property with Muhammad Sarwar, Moharrir/H.C. (P.W.1), on the same day i.e. 24-5-1999, for safe custody, in the Malkhana and during the investigation, he produced Muhammad Iddrees Butt along with other accused on 3-6-1999 in the Court of Mr. Irfan Qadir, Illaqa Magistrate, Lahore (P.W.5), where confessional statement of Muhammad Iddrees Butt (Exh.P.F.) was recorded under section 164, Cr.P.0 and during the interrogation, Muhammad Iddrees But led to the recovery of 2 Kg. Of heroin, 680 grams Charas and 280 grams Opium regarding which a separate case F.I.R. No.16 of 1999 was recorded against him. In the cross-examination, he denied the suggestions that he had met Muhammad Iddrees Butt in Saudi Arabia while he was performing Hajj, that thereafter he met him on 10-5-1999 in the office of A.N.F., Lahore, that he extended an offer to him to become an informer for Sialkot Region, that he threatened him to involve him in narcotics cases in case he refused to become an informer of A.N.F., that he (Muhammad Iddrees Butt) got published an appeal in Sialkot Post dated 8-5-1999 to 15-5-1999 and volunteered that the accused had fabricated this record (publication) after his arrest. He further denied the suggestion that news items in regard to the abandoned Carry Van and the raid at the house of MuhamMad Iddrees Butt were published in Sialkot Times dated 16-5-1999 to 31-5- 1999 and volunteered that these news items were fabricated by the accused persons after their arrest. Similarly, he denied the suggestion that an appeal was published in Inkaar Weekly dated 8-5-1999 to 14-5-1999 in regard to abandoned Carry Van and volunteered that these news items were got fabricated by the accused after their arrest and that these news items came to his knowledge two months after the arrest of the accused persons and he did not publish rebuttal of said news in any newspaper. He further stated that Abdul Qayyum, Editor, lnkaar Newspaper, volunteered to make a statement under section 164, Cr.P.C., he met him for the first time in the Court of Illaqa Magistrate, Mian Ghulam Hussain, when his statement under section 164, Cr.P.C., was recorded, admitted that aforementioned Abdul Qayyum was neither a cited witness nor accused of this case and as the challan had already been sent to the Court, therefore, the factum of statement of Abdul Qayyum, under section 164, Cr.P.C. Was not brought on the record. He admitted that Muhammad Iddrees Butt accused had moved a complaint against him and his superior Officers to S.H.O. Uggoke, Sialkot and that he was Incharge of Police Station, A.N.F., Lahore. He denied the suggestion that any Magistrate, who does not accept the illegal terms of A.N.F., is put into trouble and that Ch. Muhammad Ismail and Dr. 'Waqar Hussain,, MICs, had been arrested by A.N.F. At his instance as they had refused to act illegally. He further admitted that he had not written the statements of Abdul Qayyum Editor, Weekly Inkaar and Arshad Ehsan Elahi, Editor, Weekly Sialkot Post and Sialkot Times. He explained that he had hot associated any public person in the recovery proceedings, as nobody was willing to become witness in the instant case. Further admitted that the Carry Van was not in working condition and that it was toe chained from Sialkot to Lahore and that he did not report the incident of recovery of heroin at Police Station Kotwali, Sialkot, within whose jurisdiction Carry Dabba was taken into possession. It was also admitted that Major Abdul Rab was head of the raiding party, who was neither complainant nor a witness in the present case. Further admitted that Muhammad Riaz and Abdul Khaliq accused were searched but no recovery was effected from their possession and that lftikhar Hussain Shah and Asad Ullah, A.S.-Is., had made a statement
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before him during the course of investigation of this case that they had come to the place of occurrence for making the arrest: of drug smugglers and that they had been falsely implicated in the present case and that they had stated that on the day of occurrence, Iftikhar Hussain A.S.-I. And Muhammad Riaz, Constable, had attended the Court of Ch. Jamil Ahmad, Magistrate Section 30, Sialkot, in connection with their evidence in case F.I.R. No.2 of 1997 of Police Station, Civil Lines and similarly, Riaz accused had also stated before him to same effect. He denied the suggestions put to him by the defence in regard to the innocence of the accused. 9. P.W.5, Mr. Irfan Qadir, Judicial Magistrate/Illaqa Magistrate, A.N.F. Lahore Cantt, stated that on 3- 6-1999, Ahmad Jalil Raja, Investigating Officer of case F.I.R. No.15 of 1999, produced before him Muhammad Iddrees Butt at 1-00 p.m, for recording his statement under section 364, Cr.P.C. And at that time other accused of this case were also present in the Court, he turned out whole of the staff of A.N.F. From the Court room before recording his statement and explained to the above named accused that he was not bound to make any confessional statement and in case he made the same, it could be used against him and further time was also given to him to think over it and after about half an hour, when asked, the accused agreed to make the statement voluntarily without any pressure or inducement, whereupon his statement (Exh.P.F.) was recorded and read over to him, his co-accused cross-examined him, Muhammad Iddrees Butt, after hearing and understanding his statement, put his signatures as Exh.P.F./1 and the co-accused of the maker of the statement, also put their signatures as Exh.P.F./2, Exh.P.F./3, Exh.P.F./4 and Exh.P.F./5. This witness also recorded the certificate at the end of the statement as required under section 364, Cr.P.C. In the cross-examination he stated that he cannot recall if the accused made any complaint of torture before him or not and denied the suggestion that the accused person had made a request for their medical check-up. He admitted that he did not record, in the proceedings, that the handcuffs of the accused had been removed. He further stated that he directed the other accused to separately cross-examine Muhammad Iddrees Butt. He admitted that he had not recorded specifically in the proceedings that A.N.F. Had been sent out of the Court room. He denied the suggestion that Muhammad Iddrees Butt got published news against him and because of this grudge he, in collusion with the A.N.F., had forged this statement under section 164, Cr.P.C. He admitted that he did not record in his proceedings that the accused will not be given in police custody and will be sent to Jail after recording of his statement. 10. The summary of the, statement given by Muhammad Iddrees Butt before P.W.5 is as follows:-- ' He stated that he deals in the business of sports, his brother Mohsin was often apprehended by the police as he used to take heroin and he (Muhammad Iddrees Butt) in this connection, used to visit police station quite often. He became acquainted with accused Asad Ullah, Iftikhar Hussain Muhammad Riaz and Abdul Khaliq in 1993/94 and all of them became involved in the' narcotics trade at a small level and the heroin, involved in the present case, was also managed by them through some Pathans and he was informed by these police officials that he should contact them as the heroin had arrived and on the same day when he reached near Railway Station, the raid was conducted and all of them got apprehended by the police. ' The Court summoned Abdul Qayyum, Editor, Weekly Inkaar, Sialkot and Arshad Ehsan Elahi, Editor, Sialkot Time and Sialkot Post, as C.W.1 and C .W .2 . 12. C.W.1, Abdul Qayyum, Editor, Weekly Inkaar, stated that the above named newspaper, though weekly, this mostly published on fortnightly basis. The Weekly Inkaar for the period 8-5-1999 to 14- 5-1999 was produced as Exh.P.C./1. He went on to state that Issues Nos.37 and 38 (Exh. P.C.3) were published on 7-4-1999 and thereafter Issues Nos.39 and 40 were published for the period from 15- 5-1999 to 21-5-1999 (Exh. P.0 ./2) and no issue was published for the period from 8-5-1999 to 14-5- 1999. He further stated that he got recorded his statement under section 164, Cr.P.0 (Exh. P.C.) before the learned Maga Magistrate on 18-9-1999. He admitted in the cross-examination that
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Exh.P.C./2 was published by him for the period, from 15-5-1999 to 21-5-1999 and the news about the abandoned Carry Van at Taxi Stand and the raid of the Anti Narcotics Force were published in this issue. He denied the suggestion that the appeal of Hajji Muhammad lddrees Butt was published in the weekly in Issue No.38 (Exh.P.C./1) for the period from 8-5-1999 to 14-5-1999. He further stated that he cannot say that from which press the publication for the period from 8-5-1999 to 14-5-1999 (Exh. P.C./1) ,was got printed and admitted that he did not publish the rebuttal of Exh.P.C./1 in any newspaper. 13. The summary of the statement of C.W.1, Abdul Qayyum, (Exh.P.C.) under section 164, Cr.P.0 before Mian Ghulam Hussain, Judicial Magistrate Section 30, Lahore, on 18-9-1999, is as follows: ' He stated that on 4/5-6-1999, Arshad Ehsan Elahi, Editor, weekly Sialkot Times, came to him and he gave him two news (photo copies Marks-A and B) at the instance of Muhammad Iddrees Butt, signed by Muhammad Iddrees Butt on 20-5-1999 and requested him to publish these news in his Issues Nos.39/40 for the period from 15-5-1999 to 21-5-1999 of Weekly Inkaar, which was yet to be published and as Iddrees Butt and Arshad Ehsan Ellahi used to get published various news through him and also used to oblige him by giving him advertisement business, therefore, he in good faith published the two news Marks All and B/1 regarding raid of Anti-Narcotics Team and the abandoned Carry Van at the Taxi Stand in Editions Nos.39/40, which was printed and distributed in the first week of June, 1999. He explained that in routine, their newspaper is published one/two weeks latter than the date given in the paper and that news in regard to the present occurrence of 24-5-1999 was published in his Issues Nos.41/42, which is Mark-C and that Issue 4o.38 for the period from 8-5-1999 to 14-5-1999 carrying the appeals of Muhammad Iddrees Butt to the President of Pakistan, Prime Minister etc. (Mark-D) is absolutely bogus and it was not published by him and in fact it was got published by Mudassar Butt brother of Iddrees Butt in collusion with Arshad Ehsan Elahi to show Iddrees Butt as innocent. 14. C.W.2, Arshad Ehsan Elahi, Editor, Sialkot Times and Sialkot Post, stated that he published weekly Sialkot Times from 16-5-1999 to 21-5-1999 (Exh.P.C./4) and Sialkot Post from 8-5-1999 to 15-5-1999 (Exh.P.C./5) and in Sialkot Times, the news regarding abandoned Carry Van and an unsuccessful raid at the house of Muhammad Iddrees Butt, were published and in Sialkot Post the appeals of Muhammad Iddrees Butt were published. In the cross-examination, he admitted that in Exh.P.C./4 and Exh.P.C./5, the date of printing is not recorded and further admitted that some of the past news items are also published in the subsequently printed issues. He admitted that the cases of fraud, forgery and impersonation were registered against him but he was acquitted in those cases. 15. The Prosecutor gave up P.Ws., Nasir Aziz, S.-I. And Muhammad Sarwar Bhutta, S.-I. As being unnecessary. 16. The appellant, Muhammad Iddrees Butt, answered question No.5, that why this case against him and that why the P.Ws. Have deposed against him, as follows:-- "I have no concern with the recovery of narcotics. I am a social and political person at Sialkot. I contested the Elections of M.P.A. In the year 1988. I performed Hajj, twice. I hate dealing in narcotic drugs. I deal in sports manufacturing and is running shop of sports with the name and style of Idress Sports at Sialkot. I am an Income Tax Payee and earns my livelihood by way of hard labour in the manufacturing of sports goods. I went to perform Hajj in the year 1999. I was staying at Maktab No.14 whereas Raja Ahmad Jalil, D.S.P., Narcotics also went to perform Hajj in the year 1999 and was staying at Maktab No.17, which was quite adjacent to Maktab No.14. We became friends at Makkatul Mukarrama and used to sit together daily for hours. I was informed by Raja Ahmad. Jalil regarding his departure from Makkatul Mukarrama to Madinatul Munawra and also regarding his departure to Jeddah. Due to our intimacy with each other, I was being informed about the departure of Raja Ahmad Jalil. He had been informing me on telephone. On 10-5-1999, Raja Ahmad Jalil asked me to meet me at his office of A.N.F., Lahore. So I, in good faith, visited him in the said office where he
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asked me to become an informer regarding the drugs sellers for Sialkot, I being the social man refused to become the informer. I was threatened by Raja Ahmad Jalil to be involved me in criminal cases if I refused to become the informer. I left the office of A.N.F. On the said date and came to Sialkot where I got published an appeal to the President of Pakistan etc. In Haftroza Sialkot Post commencing from 8th May to 15th May, 1999 and Haftroza Inkaar commencing from 8th May to 14th May, 1999, copies of which have already been…
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