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Petitioner: Muhammad Ishaq and four others VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title: Muhammad Ishaq and four others vs The State and another Case No.: Murder Reference No. 08 of 2022, Criminal Appeal No. 205 of 2022 Date of Judgment:2023-01-26 Reported As: 2023 LHC 1725 Result: Murder Reference answered in Negative
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J. Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz , Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin (convicts) were tried along with Zain Ali and Salah-ud-Din (both accused since acquitted by the learned trial court) by the learned Additional Sessions Judge, Haroonabad in the case instituted upon the private complaint titled "Muhammad Sarwar Vs. Muhammad Ishaq and nine others" (relating to F.I.R. No. 89 of 2021 dated 16.02.2021 registered at Police Station Faqirwali, District Bahawalnagar) in respect of offences under sections 302, 148 and 149 P.P.C. for committing the Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased). The learned trial court vide judgment dated 29.03.2022, convicted Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz , Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin (convicts) and sentenced them as infra: Muhammad Ishaq son of Muhammad Nawaz: i) Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased namely Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default.
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ii) Rigorous Imprisonment for three years under section 148 P.P.C. and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to further undergo simple imprisonment of six months. The convict was ordered to be hanged by his neck till dead. Muhammad Ilyas son of Muhammad Nawaz :- i) Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased namely Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default. ii) Rigorous Imprisonment for three years under section 148 P.P.C. and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to further undergo simple imprisonment of six months. The convict was ordered to be hanged by his neck till dead. Muhammad Abbas son of Muhammad Nawaz:- i) Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased namely Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default . ii) Rigorous Imprisonment for three years under section 148 P.P.C. and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to further undergo simple imprisonment of six months. The convict was ordered to be hanged by his neck till dead. Mansha son of Muhammad Nawaz:- i) Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased namely Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default . ii) Rigorous Imprisonment for three years under section 148 P.P.C. and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to further undergo simple imprisonment of six months. The convict was ordered to be hanged by his neck till dead. Usama son of Mohsin:- i) Death on two counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the deceased namely Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased) ; in case of default thereof, the convict was directed to further undergo six months of simple imprisonment for each default . ii) Rigorous Imprisonment for three years under section 148 P.P.C. and directed to pay fine of Rs.50,000/- and in default of payment of fine the convict was directed to further undergo simple
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imprisonment of six months. The convict was ordered to be hanged by his neck till dead. Zain Ali and Salah-ud-Din, the co-accused of the convicts, were however acquitted by the learned trial court 2. Feeling aggrieved, Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin(convicts), lodged the Criminal Appeal No.205 of 2022, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.08 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants, namely Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin. We intend to dispose of the Criminal Appeal No. 205 of 2022 and the Murder Reference No.08 of 2022 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as stated by Muhammad Sarwar (PW-1), the complainant of the case, are as under:- "Stated that I am resident of Chak No. 165/7-R Tehsil Fortabbas and cultivator by profession. My son Muhammad Imran army personnel had come to house on leaves whose leaves had to end on 16- 02-2021 and he had to go back on duty. On 16-02-2021 at about 9:30 am. I alongwith Muhammad Imran, Usman Haider my sons, my brother Daryafat Ali, my nephew Gulzar Ahmad went to see my daughter who used to reside at Chak No. 105/6-R Tehsil Haroonabad. My both sons Muhammad Imran and Usman Haider were on one motor cycle and 1 alongwit (sic) my brother Daryafat Ali and Gulzar Anwar were on another motor cycle. My both sons Muhammad Imran and Usman Haider were going two acre ahead from us, when they Muhammad Imran and Usman Haider reached at a distance of 3/4 acre from chak No.140/6-R on "Kacha Path" suddenly Muhammad Ishaq, Muhammad Ilyas, Muhammad Abbas and Muhammad Mansha sons of Muhammad Nawaz armed with deadly fire arm weapons, Usama S/O Mohsin armed with fire armed weapon, Zain-Ali S/O Muhammad Mansha armed with fire armed weapon, Salaho-u-Din S/O Faqir Hussain armed with fire arm weapon, all Jutt by caste and R/O Chak No.165/7-R came in front of my sons. Muhammad Mansha accused raised Lalkara to teach a lesson to my sons Usman Haider etc for the murder of Aqib Haroon son of Muhammad Mansha and the accused persons tried to stop my both sons forcibly. My both sons Muhammad Imran and Usman Haider due to fear and to save their lives run towards the north-west side in the crop by leaving the motor cycle. At the same time accused Usama S/O Mohsin made two fires with his fire arm weapon on my son Muhammad Imran and Usman Haider which were not hit them. All the above said accused persons chased my both sons by brandishing their fire arm weapons. In the meanwhile, I, my brother Daryafat Ali and Ghulzar Anwar PW also followed the accused persons to save lives of my sons. On our hue and cry one Majid Mahmood S/O Mahmood Ali caste Jutt R/O Adda Rafiq Abad who was going to take the fodder for the cattle from Chak No. 140/6-R, also came there and joined us. At a distance of 8-acre accused persons Usama S/O Mohsin and Ishaq S/O Nawaz circled my son Muhammad Imran whereas accused Muhammad Ilyas, Muhammad Abbas, Zain Ali, Muhammad Mansha and Salah- u-Din stopped my son Usman Haider at a distance of 1 1/2 acre ahead from my son Imran. In our scene accused Usama S/O Mohsin made a fire with his fire arm weapon which hit on the left side of nose of Muhammad Imran (my son). Muhammad Ishaq accused made a fire which hit above the umbilical region of my son Imran. Ishaq accused made a second fire which hit on the umbilical region of my son Muhammad Imran. Accused Muhammad Ilyas made a fire with his fire arm weapon which hit on the upper side of left eye of my son Usman Haider. Accused Muhammad Abbas made a fire shot with his fire arm weapon which hit on the left side of neck of Usman Haider my son. Accused Muhammad Abbas accused again made a fire shot with his fire arm weapon
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which hit on the front of neck of my son Usman Haider. Accused Muhammad Mansha made a fire shot with his fire arm weapon which hit on the left shoulder of my son Usman Haider. Accused Zain Ali made a fire shot with his fire arm weapon which hit on the left palm of my son Usman Haider. Accused Salaho-u-Din S/O Faqir Hussain made a fire shot with his fire arm weapon which hit on the left wrist of my son Usman Haider. My both sons fell down on the ground. We tried to apprehend the accused persons but they by brandishing their weapons threatened us that if we came near to them they will done to death us and they succeeded to flee away. I alongwith PWS attended my sons Muhammad Imran and Usman Haider who succumbed to their injuries at the spot. The above said occurrence was committed on the abetment of Muhammad Waris, Muhammad Nawaz sons of Muhammad Sharif and Maqsood Ahmad S/O Asghar Ali all Jutt by caste and R/O Chak No. 165/7-R. The motive behind this occurrence is that one Aqib Haroon son of Muhammad Mansha (accused) caste Jutt was murdered by some unknown person in the year 2019. Muhammad Mansha accused got registered the case against my son Usman Haider etc at P.S. Khichi Wala. My son Usman Haider etc was acquitted by the learned court of ASJ, Fortabbas in the said case. Accused persons had nourished grudge of the acquittal of my son Usman Haider etc, due to this grudge, all the accused persons murdered my both sons with their common object. I submitted a written application Exh PA to the police P.S. Faqir Wali on the same day on 16-02-2021 upon which case FIR No.89/2021 u/s 302/148/149/109 PPC P.S. Faqir Wali Exh-PB was registered. After post mortem examination of both the dead bodies I received the dead bodies of my both sons in lieu of receipts Exh-PC and Exh-PD. During the investigation I produced the solid evidence alongwith eye witnesses to the I.O. but the I.O. of the case declared the accused persons Muhammad Ilyas, Zain Ali, Salaho-u-Din, Muhammad Waris, Muhammad Nawaz sons of Muhammad Sharif and Maqsood Ahmad as innocent being in league with the accused persons. I.O. also wrote a fake supplementary statement by showing the date 17-02-2021 on my behalf and on behalf of the PWs in which I.O. mentioned that Muhammad Latif alias Changa S/O Muhammad Ali resident of Chak No.138/6-R Tehsil Haroonabad and accused Muhammad Mansha fired at my son Muhammad Imran (deceased) alongwith co-accused. I and PWs did not got recorded any supplementary statement before the I.O. I.O. wrote our supplementary statement only to give the benefit to the accused persons in league with them. That is why I filed this private complaint Exh-PE bearing my signature. I submit attested copy of judgment dated 27.02.2020 passed by Mr. Khalid Mahmood Chaudhary, learned ASJ, Fortabbas as Exh- PF. Accused persons are my real culprits, they be summoned to face trial and they be punished in accordance with law." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Sarwar Vs. Muhammad Ishaq and nine others" (relating to F.I.R. No. 89 of 2021 dated 16.02.2021 registered at Police Station Faqirwali, District Bahawalnagar) in respect of offences under sections 302, 148 and 149 P.P.C. for committing the Qatl-i-Amd of Muhammad Imran son of Muhammad Sarwar (deceased) and Usman Haider son of Muhammad Sarwar (deceased). The learned trial court framed the charge against the accused on 08.12.2021, to which the accused pleaded not guilty and claimed trial. 5. The complainant of the case in order to prove his case got recorded statements of as many as two witnesses. The ocular account of the case was furnished by Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2). 6. The learned trial court also examined as many as seven witnesses as court witnesses. Mazhar Farid 1292/C (CW-1) stated that on 18.02.2021, a photographer produced photographs (P-1/1-5) of the dead body of the deceased which photographs (P-1/1-5), the Investigating Officer of the case took into his possession and on 01.03.2021, the Investigating Officer of the case took into possession Call Data Record comprising twenty five pages (P-2/1-25). Abdul Shakoor (CW-2) prepared the
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scaled site plan of the place of occurrence (Exh.CW-2/A). Waseem Afzal 466/C (CW-4) stated that on 16.02.2021, he escorted the dead bodies of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examinations of the dead bodies of the deceased. Muhammad Azhar 775/HC (CW-6) stated that on 16.02.2021, the Investigating Officer of the case handed over to him two sealed parcels said to contain blood stained earth, two sealed parcels said to contain empty shells , one motorcycle and other articles of the deceased recovered from the place of occurrence and on 22.02.2021, he handed over the sealed parcels to Shaukat Ali, ASI (CW-5) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and on 06.03.2021, the Investigating Officer of the case , handed over to him two sealed parcels said to contain weapons and on 07.03.2021, the Investigating Officer of the case handed over to him two other sealed parcels said to contain weapons which on 14.03.2021, he handed over all the said sealed parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Ghulam Shabbir, Inspector (CW-7), investigated the case from 16.02.2021 till 30.03.2021, arrested the appellants namely Muhammad Ishaq son of Muhammad Nawaz, Mansha son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz and Usama son of Mohsin, on 25.02.2021 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 7. The learned trial court also examined Dr. Kashif Nazir (CW-3), who on 16.02.2021 was posted as Medical Officer at THQ hospital Haroonabad and on the same day conducted the post mortem examination of the dead body of Usman Haider son of Muhammad Sarwar (deceased). Dr. Kashif Nazir (CW-3), on examining the dead body of Usman Haider son of Muhammad Sarwar (deceased) observed as under:- " Description of injuries. 1. Massive lacerated wound measuring 6cm x 3cm on left eye brow, brain matter was out, clotted blood, fractured skull, blackening present. 2. Lacerated wound measuring 4cm x 2.5 cm on right side of skull 4cm away from right eye brow, white brain matter out. 3. Multiple entry wound measuring 2cm x 1.8cm on left side of neck, blackening present, bullet recovered. 4. Entry wound measuring 3.2cm x 2.6cm on front of neck region. Bone exposed. 5. Multiple entry wound on left shoulder, blackening present measuring 1.9cm x 1.7cm on left shoulder, bullet recovered. 6. Lacerated wound 3.5cm x .9 cm on palmer surface on left hand. 7. Abrasion measuring 3cm x .8 cm on left wrist joint. EXAMINATION OF NECK. 1. Lacerated wound measuring 2cm x 1cm on left side of neck multiple (entry wound). 2. Lacerated wound measuring 4.3cm x 3.1cm on front of the neck region, bone exposed. FINAL OPINION: In my opinion death occurred due to multiple fire arm injury leading to excessive blood loss and brain death secondary to cardiopulmonary arrest." On the same day, Dr. Kashif Nazir (CW-3), also conducted the post mortem examination of the dead body of the deceased, namely Muhammad Imran son of Muhammad Sarwar. Dr. Kashif Nazir (CW-3), on examining the dead body of the deceased namely Muhammad Imran son of Muhammad Sarwar, observed as under:- "DESCRIPTION OF INJURIES: 1. Entry wound measuring 2cm x 1.8cm on nasal bone, blackening present. 2. Exit wound measuring 3cm x 2.8 cm on the back of skull, blood oozing, fractured skull.
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3. Exit wound measuring 2.8cm x 2.cm on back region. 4. Entry wound measuring 1.8cm x 1.8 cm on above umbilical region, blackening present. 5. Multiple blackening mark on below umbilical region. OPINION: In my opinion death occurred due to multiple gunshot injury leading to massive blood loss and leading to brain death and cardiopulmonary arrest." 8. On 12.01.2022, the learned counsel for the complainant gave up the witnesses namely Gulzar Anwar and Majid Mahmood as being unnecessary. On 08.02.2022, the learned counsel for the complainant gave up the witnesses namely Mudassir Rehman 1414/C, Muhammad Waqas CSIU and Mubashir Hussain as being unnecessary. On 24.02.2022, the learned Assistant District Public Prosecutor closed the prosecution evidence after submitting the report of the Punjab Forensic Science Agency, Lahore (Exh.PG) regarding the analysis of blood stained earth and the report of the Punjab Forensic Science Agency, Lahore (Exh.PH) regarding the comparison of empty shells of bullets and cartridges with the weapons recovered from the accused. 9. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, the appellants replied that they had been involved in the case falsely and were innocent. The appellants, namely Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin, opted not to get themselves examined under section 340(2) Cr.P.C, and did not adduce any evidence in their defence. 10. At the conclusion of the trial, the learned Additional Sessions Judge, Haroonabad convicted and sentenced the appellants as referred to above. 11. The contention of the learned counsel for the appellants precisely is that the whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2) were not worthy of any reliance. The learned counsel for the appellants further submitted that the recovery of the motorcycle (P-18) from the appellant namely Muhammad Abbas and the recovery of the Repeater gun (P-19) from the appellant namely Muhammad Abbas, the recovery of the rifle (P-21) from the appellant namely Mansha, the recovery of the gun (P-23) from the appellant Muhammad Ishaq and the recovery of the gun (P- 25) from the appellant Usama were full of procedural defects, of no legal worth and value and result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 12. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellants namely Muhammad Ishaq son of Muhammad Nawaz, Muhammad Ilyas son of Muhammad Nawaz, Muhammad Abbas son of Muhammad Nawaz, Mansha son of Muhammad Nawaz and Usama son of Mohsin. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also
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corroborated the statements of the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2) . The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the motorcycle (P-18) from the appellant namely Muhammad Abbas and the recovery of the Repeater gun (P-19) from the appellant namely Muhammad Abbas, the recovery of the rifle (P-21) from the appellant namely Mansha, the recovery of the gun (P-23) from the appellant Muhammad Ishaq and the recovery of the gun (P-25) from the appellant Usama and the report of the Punjab Forensic Science Agency, Lahore (Exh. P.H.) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant, prayed for the rejection of the appeal. 13. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and, with their assistance, perused the record and evidence recorded during the trial. 14. A perusal of the prosecution evidence reveals that it is an admitted aspect of the prosecution case that the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2) were indeed not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2), the occurrence took place in Chak No.140/6-R, whereas both the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2) were residents of Chak No.165/7-R, which place was at a distance from the place of occurrence the prosecution witness namely Muhammad Sarwar (PW-1), during cross-examination stated as under:- " The distance between my house and the place of occurrence is about 2 1/2 to 3 squares. It is incorrect to suggest that my residence falls at a distance of about 2-km from place of occurrence. It is correct that my house falls in the area of police station Khichi Wala Tehsil Fort Abbas and the place of occurrence falls in the area of police station Faqirwali Tehsil Haroonabad towards south. Daryafat Ali PW is my real brother, Gulzar PW is my nephew and permanent resident of Chak No.428/6-R. volunteered that he resides with me. Chak No.428/6-R is at the distance of 25/30 km away from my village." (emphasis supplied) The above-referred portions of the cross-examination of the prosecution witness namely Muhammad Sarwar (PW-1) reflect that the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat (PW-2) can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Muhammad Sarwar (PW-1) and Muhammad Daryafat…
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