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Petitioner: KHIZAR HAYAT Ann 3 Other VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Rustam S. Sidhwa Title: KHIZAR HAYAT Ann 3 Other vs THE STATE Case No.: Criminal Appeal No. 185 of 1979 and Murder Reference No. 78 of 1979 Date of Judgment:- Reported As: PLD 1981 Lahore 669 Result: Order accordingly
JUDGMENT
JUDGMENT JAVID IQBAL, J.-(1) Khizar Hayat son of Sultan Mahmood, aged 32, (2) Muhammad Yar son of Wali M muhammad, aged 32, (3) Muhammad A.I son of Bahawal Bakhsh, aged 60, (4) Dost Muhammad alias Dosa son of Bahawal Bakhsh, aged 42 (since deceased), (5) Wali Muhammad alias Walla son of Murad, aged 70, (6) Muhammad Khan alias Manda son of Wali Muhammad, aged 30, (7) Umar Daraz son of Muhammad A.I, aged 26, (8) Zaffar Iqbal son of Muhammad Inayat, aged 24, and (9) Muhammad Yusouf son of Sahiba, aged 32, have been convicted and sentenced as follows vide judgment dated 16-1-1979 of the Additional Sessions Judge, Sargodha. All of them were convicted under section 302/149, P. P. C. For the murders of Umar Hayat, aged 55, Khan Muhammad, aged 65, and Ziaullah, aged 35, in the following order: For the murder of Umar Hayat Muhammad A.I convict No. 3 was sentenced to death plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine or Rs. 1,000 or in default to undergo one year rigorous imprisonment. If the fine is realized from them, it should be paid as compensation to the heirs of Umar Hayat deceased. For the murder of Khan Muhammad, Khizar Hayat convict No. 1 was sentenced to death plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. If the fine is realized from them it should be paid as compensation to the heirs of Khan Muhammad deceased. For the murder of Ziaullah deceased, Muhammad Yar convict No. 2 was sentenced to death ,plus fine of Rs. 5,000 or in default to undergo two years rigorous imprisonment and each of the rest of them was sentenced to imprisonment for life plus fine of Rs. 1,000 or in default to undergo one year rigorous imprisonment. If the fine is realized from them, it should be paid as
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compensation to the heirs of Ziaullah deceased. All the convicts have also been convicted under section 307/149, P. P. C. For murderous assaults on Mukhtar Ahmad P. W. 8, Muhammad A.I P. W. 10 and Mst. Sughran Bibi P. W. 12 and each of them was sentenced to three year's rigorous imprisonment on each count plus fine of Rs 1,000 or in default to undergo six months rigorous imprisonment. All the convicts were likewise convicted under section 148, P. P. C. And each of them was sentenced to two years rigorous imprison--ment. Only Dost Muhammad, convict No. 4 (since deceased) bad been convicted under section 379, P. P. C. For taking away the gun belonging to one Sultan and was sentenced to one year rigorous imprisonment. The sentences of imprisonment were ordered to run concurrently. The relationship inter se of the accused-party is as follows: The convicts belong to the families of two separate ancestors, namely, Murad and Bahawal Bakhsh. Murad had two sons, namely, Wali Muhammad convict No. 5 and Noora. He had one daughter Mst. Mehran. Noora is married to Mst. Rehmat Bibi and she is aunt (Khala) of R.I Zamanullah .P. W. 7 complainant, in the instant case. Mst. Mehran is married to Muhammad A.I convict No. 3 son of Bahawal Bakhsh of the other family. Muhammad Yar convict No. 2 and Muhammad Khan convict No. 6 are brothers and sons of Wali %4uhammad convict No. 5. Wali Muhammad convict No. 5 had also a daughter, who is married to Khizar Hayat convict No. 1. Muhammad Yar convict No. 2 is married to Mst. Khurshid, who is daughter of Sahiba son of Bahawal Bakhsh of the other family. Bahawal Bakhsh had four sons, namely, Sahiba, Muhammad Inayat, Muhammad A.I convict No. 3 and Dost Muhammad convict No. 4 (since deceased). Muhammad Yusouf convict No. 9 is son of Sahiba. Zaffar Iqbal convict No: 8 is son of Muhammad Inayat and brother of Afaq. Umar Daraz convict No. 7 is son of Muhammad A.I convict No. 3 from Mst. Mehran daughter of Murad of the other family. Thus, the members of the accused party, who descend from two ancestors, namely, Murad and Bahawal Bakhsh are inter- related through female marriages. The complainant-party is likewise inter-related and are also related to the accused-party. They also descend from two separate ancestors, namely, R.I Allah Dad and Nawab. R.I Allah Dad had four sons, namely, Dost Muhammad, who is father of Mukhtar Ahmad P. W. 8 (injured), Muhammad Khan, who is father of R.I Zamanullah P. W. 7 (complainant), Umar Hayat deceased, who is father of Amjad, and Khan Muhammad deceased, who is father of Zia Ullah deceased. He also had one daughter, namely, Mst. Sakina, who is mother of Sarang P. W. 11. R.I Zamanullah P. W. 7 is married to Mst. Riaz Bibi, who is niece of Muhammad A.I P. W. 10 (injured). This Muhammad A.I P. W. 10 (injured) is son of Nawab and he has also two sisters, namely, Mst. Sughran P. W. 12 (injured) and Mst. Jannat Bibi. Ghulam A.I P. W. 9 (injured) is nephew of Muhammad A.I P. W. 10. It has already been pointed out that Mst. Rehmat Bibi wife of Noora, who is brother of Wali Muhammad convict No. 5, is aunt (Khala) of R.I Zamanullah P. W. 7. The nine convicts, in the instant ca3e, have filed two separate Criminal Appeals. Criminal Appeal No. 185 of 1979 has been filed by Khizar Hayat convict No. 1, Muhammad Yar convict No. 2, Muhammad Khan convict No. 6 and Wali Muhammad convict No. 5. Criminal Appeal No. 232 of 1979 has been filed by Muhammad A.I convict No. 3, Dost Muhammad convict No. 4 (since deceased), Muhammad Yusouf convict No. 9, Umar Daraz convict No. 7 and Zaffar Iqbal convict No. 8. There is also Criminal Revision No. 280 of 1979 for the enhancement of sentence awarded to- all the convicts other than Khizar Hayat, Muhammad Yar and Muhammad A.I convicts Nos. 1, 2 and 3, who have been sentenced to death. Similarly, there is a Petition for Special Leave. To Appeal No. 15 of 1979 against the acquittal of the accused persons (members of the complainant-party in the instant case) in the cross-case. Criminal Revision No. 280 of 1979 and P. S. L. A. No. 15 of 1979 have not been admitted so far. All these connected matters are being taken up and disposed of together with Reference for the confirmation of death sentence awarded to Khizar Hayat,
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Muhammad Yar and Muhammad A.I convicts Nos. 1, 2 and 3, by this judgment except P. S. L. A. No. 15 of 1979 which will be taken up separately and is excluded. 2. The occurrence took place at 10-30 a.m.. On 16-9-1977 in front of the houses of the parties within the Abadi of Chak No. 50 North at a distance of three miles from Police Station, Sargodha Cantt. District Sargodha. F. I. R. Exh. P. X. Was lodged by R.I Zamanullah P. W. 7 at 11-30 a.m. On the same day and it was recorded at the police station by Lal Hassain Shah S. I. P. W. 14. 3. The motive for crime, as stated in the F. I. R., was that Ghulam A.I P. W. 9 was present in front of the dera of Wali Muhammad appellant No. 5 in the morning of the day of occurrence when he was attacked by Afaq and his brother Zaffar Iqbal, appellant No. 8, and both of them gave severe beating to Ghulam A.I P. W. 9 with whip and iron-fists. As a result he sustained 17 injuries on his person. In order to protect himself Ghulam A.I P. W. 9 is stated to have caused one simple incised injury with his knife on the right arm of Zaffar Iqbal, appellant No. 8. When Ghulam A.I P: W. 9 returned to his house and explained as to how he had sustained the injuries to his relatives, who had come to his house in order to inquire about his condition, it is stated that the accused-party came there in order to avenge the one simple incised injury caused on the arm of Zaffar Iqbal, appellant No. 8, by Ghulam A.I P. W. 9 and they attacked the complainant side. It was in this background that the present occurrence took place in front of the houses of the parties. The other motive given in the F. I. R. Is that about 4/5 months prior to the present occurrence an altercation took place between two school boys, namely, Amjad son of Umar Hayat deceased and Afaq; brother of Zaffar Iqbal appellant No. 8. Ghulam A.I P. W. 9 and Amjad gave beating to Afaq. But the matter was patched up through the intervention of elders and it was not reported to the Police. Both these earlier incidents have not been denied by the accused-party, It may be pointed out at this stage that the subsequent incident which took place about an hour or half before the present occurrence was also a sequence of the earlier incident of fight between the boys. There is no other background of enmity between the parties. Consequently, the trial Court has correctly relied on the motive version in para. 44 of the judgment at pages 104 and 105 of the Paper Book. However, for correctly understanding the position between the parties it is necessary to give some details as to how the occurrence followed. The prosecu--petition version is that the appellants Khizar Hayat was armed with gun, Muhammad Yar was armed with gun, Muhammad A.I was armed with hatchet, Dost Muhammad (since deceased) was armed with hatchet, Wali Muhammad was empty-handed, Muhammad Khan was armed with gun, Umar Draz was armed with gun, Zaffar Iqbal was armed with gun and Muhammad Yusuf was armed with lath!. Besides these nine, there was the tenth person on the accused-side called Muhammad I.Nayat, who was armed with lathi, but who was killed in the scuffle at the hands of the complainant-party. Two other members of the accused-party have sustained injuries at the hands of the complainant-side, namely, Umar Daraz appellant No. 7 and Zaffar Iqbal appellant No. 8. According to the prosecution version, all the members of the accused-party including Muhammad Inayat deceased on their side came armed, as described above, in order to avenge the incised injury caused to Zaffar Iqbal appellant No. 8 by Ghulam A.I P. W. And stood outside the house of the complainant-party in the lane. On hearing the noise, members of the complainant-party came out and they were attacked by the members of the accused-party. The defence has not denied the occurrence, but it has given its own version. The case of the accused-party is that Umar Daraz appellant No. 7, Zaffar Iqbal appellant No. 8 and Muhammad Inayat deceased on their side were present in their house when Khan Muhammad deceased, armed with a lath!, Ziaullah deceased, armed with a gun, Umar Hayat deceased, armed with a lath!, Mukhtar Ahmad P. W. 8 (injured) armed with a lath!, Ghulam A.I P. W. 9 (injured in the earlier incident) armed with a hatchet, Muhammad A.I P. W. 10 (injured) armed with a hatchet and
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Attaullah (not produced as a witness) armed with a lathi came. There in order to take revenge of the injuries caused to Ghulam A.I P. W. At the bands of Zaffar Iqbal .Appellant No. 8 and Afaq' and they stood out--side their house. When they came out, the complainant-party, armed as described above, attacked them causing injuries to Umar Daraz appellant No. 7 and Zaffar Iqbal appellant No. 8 and killing Muhammad Inayat, their companion. In other words, the defence version is that the complainant --party was the aggressor and the accused-side caused injuries to them in the exercise of their right of self-defence. It is claimed on behalf of the defence that the defence version was given to the Investigating Officer but he refused to register a cross-case, whereupon a Writ Petition (No. 2859 of 1979) was filed, which was dismissed on 25-10-1977. Thereafter, from the accused-side a private criminal complaint was instituted on 12-8-1978 as against the aforementioned seven members of the complainant-party under section 302/307/148/149, P. P. C. The challan case and the cross---complaint case were simultaneously heard by the same trial Court which, vide separate judgments, convicted and sentenced the members of the accused- party in the challan case and acquitted seven members of the complainant-party which had been named in the cross-complaint case. Against their acquittal, the petition for special leave to appeal has been filed as we have noted above. 4. The prosecution has produced six eye-witnesses, in the instant case. The whole occurrence was witnessed by R.I Zamanullah P. W. 7, Ghulam A.I P. W. 9 (injured in the previous incident) and Muhammad A.I P. W. 10 (injured). Those, who witnessed the occurrence after the murder of Khan Muhammad deceased, are Mukhtar Ahmad P. W. 8 (injured) and Sarang P. W. 11. This Sarang P. W. Is nephew of Umar Hayat and Khan Muhammad deceased, being son of Mst. Sakina daughter of R.I Allah Dad. After the three murders Mst. Sughran Bibi P. W. 12 has been produced as a witness of her own injuries. Three other eye-witnesses, namely, Malla, Khizar Hayat and Muhammad Amir were cited in the F. I. R. But were given up as unnecessary. Out of these witnesses, R.I Zamanullah P. W. 7 and Sarang P. W. 11 are not injured. Similarly, Ghulam A.I P. W. Is not stated to have received any injuries in the present occurrence and if there are injuries on his person, he had received them in the earlier incident. 5. Umar Daraz appellant No. 7 and Zaffar lqbal appellant No. 8, who had been injured and were in the hospital, were arrested formally therefrom on 16-9-1979 by Lal Hussain Shah,, S. 1. P. W. 14. All the other appellants were arrested by the same Police Officer on 20-9-1977 when they voluntarily appeared before him. No 'crime-empty was picked up from the spot. However, from Khizar Hayat appellant No, 1 guff P. 30, from Muhammad Yar appellant No. 2 gun P. 29, from Muhammad A.I appellant No. 3 blood--stained hatchet P. 31, from Dost Muhammad appellant No. 4 (since deceased) stolen gun of Sultan P. 25 and blood-stained hatchet P. 32, and from Muhammad Khan appellant No. 6 gun P. 28 were recovered and taken into possession vide memos. Exhs. P. MM., P. LL, P. NN, P. Z, P. 00 and P. KK. All these recoveries were effected on 20-9-1977 and these are attested by R.I Ghulam Mehdi Khan P. W. 13, brother of Khan Muhammad and Umar Hayat deceased being fifth son of R.I Allah Dad, and Lai Hussain Shah S. I. P. W. 14. Sultan A.I, Ghulam Muhammad and Manzurul Hassan A. S. I., attesting witnesses, were not produced. From Zaffar lqbal appellant No. 8 gun P. 24 was recovered vide memo Exh. P. Y. Dated 24-9-1977. The attesting witnesses are R.I Zamanullah P. W. 7 and Lal Hussain Shah S. I. P. W. 14. Sultan A.I and Manzoorul Hassan A. S. I., other attesting witnesses, were not produced. Nothing was recovered from Umar Daraz appellant No. 7 and Muhammad Yusuf appellant No. 9. Wali Muhammad appellant No. 5 was empty-handed according to the prosecution. According to the report of the Serologist Exh. P. XX hatchet P. 31 recovered at the instance of Dost Muhammad appellant No. 4 (since deceased) and hatchet P. 31 recovered from Muhammad A.I appellant No. 3 were found to have been stained with human blood. According to the report of the Fire-aims Expert Exh. P. YY the four guns recovered, in the
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instant case, were in working condition but no opinion could be given as to when they were fired last. 6. The appellants, in their statements before the trial Court, did not deny the occurrence but they gave their own version of the same. Zaffar Iqbal appellant No. 8 admitted the earlier two incidents but denied that he had received any incised simple injury on his arm caused with a knife by Ghulam A.I P. W. His case was that since injuries ha,'. Been caused by him and Afaq to Ghulam A.I P. W., the seven members of the complainant-party, armed as described above, came to his house when Umar Daraz appellant No. 7 and Muhammad Inayat deceased were present there. They stood outside the house and when the appellants Zaffar lqbal and Umar Daraz accompanied by Muhammad Inayat deceased came out, they attacked them as aggressors and caused injuries to them. Umar Daraz appellant No. 7 supported the same version. He stated that on the day of occurrence he was present in the house of Muhammad Inayat deceased along with Zaffar lqbal appellant No. 8, Muhammad Inayat deceased and Afaq when they heard a lalkara outside the house. He, Muhammad Inayat deceased and Zaffar lqbal appellant No. 8 came out and saw Umar Hayat, Ziaullah, Khan Muhammad (three deceased in the instant case), Mukhtar Ahmad P. W. 8, Ghulam A.I P. W. 9, Muhammad A.I P. W. 10 and Attaullah present there armed with guns, hatchets and dangs. They attacked them and first Muhammad Inayat deceased was injured and. He fell down. Then Ziaullah deceased fired at him and the shot hit him and he fell down uncocscious. His right arm was defective and could riot move. He was, therefore, incapable to fire. The other appellants denied having participated in the occurrence. They all had stated that they had been falsely implicated due to enmity and party-faction. Dr. Akhtar Aleem Hashmi D W. 1 was produced to show that Umar Daraz appellant No. 7 had a defective arm. He stated that the right arm of Umar Daraz appellant No. 7 was normal except that it could not be flexed at elbow joint. His left arm was normal. He was of the opinion that Umar Daraz appellant No. 7 could use the right arm but without flexation of the elbow joint and he could commit an offence with left arm or combination of both the arms. 7. In the F. I. R. The occurrence is stated to have taken place in the following manner: On hearing that Ghulam A.I P. W. 9 had sustained injuries at the hands of Afaq and Zaffar Iqbal appellant No. 8, R.I Zamanullah P. W. 7 along with Khan Muhammad deceased, Umar Hayat deceased and Muhammad A.I P. W. 10 was present in the hou3e of Ghulam A.I P. W. 9 in order to inquire about his health. In the meantime they heard noise in the street outside and they came out along with Ghulam A.I P. W. They saw the appellants including Muhammad Inayat deceased, armed as described above, standing in the street. On seeing them, Muhammad Inayat deceased and Muhammad A.I appellant No. 3 raised a lalkara to the effect that they had come to teach a lesson to them for causing knife injury to Zaffar Iqbal appellant No. 8. On this Khan Muhammad deceased advanced forward pleading that they should not go mad on the quarrel between the boys and that the matter could be mutually settled. But thereupon Wali Muhammad appellant No. 5 raised a lalkara to the others that they should not be spared. On this Khizar Hayat appellant No. 1 fired a shot through his gun which hit on the chest of Khan Muhammad deceased who fell down on the ground and died on the spot. R.I Zamanullah P. W. Raised alarm whereupon Ziaullah deceased, armed with gun, Sarang P. W . It, armed with lathi, and Mukhtar Ahmad P. W. 8, armel with lathi, came to the spot in order to rescue them. On thbir arrival Umar Daraz appellant No. 7 fired through his gun and the shot hit Mukhtar Ahmad P. W. On his left arm. The second shot was fired by Muhammad Yar appellant No. 2 which hit Mukhtar Ahmad P. W. On his chest. In the meantime Ziaullah deceased fired a shot through his gun in the exercise of his right of self'-defence and the shot hit Umar Daraz appellant No. 7 on his face and head. Thereupon, Zaffar Iqbal appellant No. 8 fired through his gun and the shot hit Ziaullah on. His left flank and left wrist. The second gunshot was fired by Muhammad Yar appellant No. 2 which hit Ziaullah deceased on his chest. As a result Ziaullah
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deceased fell down on the ground. Thereafter, the gun carried by Ziaullah deceased (belonging to Sultan who had produced its licence) was taken away by Dost Muhammad appellant No. 4 (since deceased) and Muhammad Yusuf appellant No. 9. Then Khizar Hayat appellant No. 1 fired through his gun and the shot hit Mukhtar Ahmad P. W. On his chest who also fell down on the ground. Umar Hayat deceased was caught by Muhammad Inayat, since deceased, and he instigated Muhammad A.I appellant No. 3 to hit him whereupon Muhammad A.I appellant No. 3 gave a hatchet blow which fell on the bead of Umar Hayat deceased and he too fell on the ground. Then Muhammad Khan appellant No. 6 proceeded to the western wall of the house of Ghulam A.I P. W. From where it was broken and fired into the courtyard of Ghulam A.I P. W. And as a result his shot hit Mst. Sughran Bibi P. W. 12 on her left buttock. Muhammad A.I P. W. Gave a dang blow to Zaffar Iqbal appellant No. 8 which fell on his left hand. Muhammad A.I P. W. Again gave two dang blows which fell on the head of Muhammad Inayat deceased. Thereupon, Muhammad Yusuf appellant No. 9 got hold of Muhammad A.I P. W. And instigated Dost Muhammad appellant No. 4 (since deceased) to hit him. On this Dost Muhammad appellant No. 4 (since deceased) gave a hatchet blow to Muhammad A.I P. W. Which fell on his left heel and he fell down on the ground. While he was in the fallen condition, Muhammad Yusuf appellant No. 9 gave him a lathi blow which fell on his back. On hearing alarm, Malla, Khizar Hayat as well as Muhammad Amir (none of them produced) were also attracted to the scene of crime and witnessed the same. After commission of crime the appellants ran away. The injured were taken to the Civil Hospital, Sargodha. Leaving behind Sarang P. W. To guard the dead body of Khan Muhammad deceased, R.I Zamanullah P. W. Proceeded to lodge the report. 8. Dr. Captain Umar Hayat Butcha P. W. 1 medically examined Umar Hayat . Deceased while he was still alive on 1b-9-1977 . At 12-00 noon and found on his person an incised wound 2J' x J' on the left side of skull. The injury was dangerous and had been caused by sharp-edged weapon. Umar Hayat deceased died at 3-30 p.m. On the same day and the same doctor conducted post- mortem examination on his dead body at 5-30 p.m. On the same day and noted the same injury on his person. In his opinion, death occurred by haemorrhage and shock caused by this injury which was sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that this injury to Umar Hayat deceased is attributed to Muhammad A.I appellant No. 3. On the same date at I1-45 a.m. He medically examined Ziaullah deceased while he was still alive and found on his person lacerated wound on the epigastrium, the edges of which were inverted, lacerated wound on left thigh upper part, lacerated wound on left thigh outer part and lacerated wound on front side of fore-arm. The first injury was dangerous to life whereas the other three were kept under observation. Ziaullah deceased died at 12-00 noon on the same day and the same doctor performed post--mortem examination on his dead body at 5-00 p.m. On the same day and he noted the same injuries on his person. The injuries had been caused by fire-arm. In his opinion, death occurred due to haemorrhage internal and external as well as shock caused by these injuries collectively. All the injuries were collectively sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that these injuries in the form of two gunshots have been attributed to Zaffar Iqbal appellant No. 8 and Muhammad Yar appellant No. 2. On the same date at 4-30 p.m. He conducted post-mortem examination on the dead body of Khan Muhammad deceased and found onhis person five lacerated wounds by gunshots on upper right sternum left side of chest and four lacerated wounds of exit on left back side of chest. In his opinion the injuries had been caused by gunshot and death was caused due to haemorrhage and shock caused by this injury which was sufficient to cause death in the ordinary course of nature. It may be pointed out at this stage that this injury is attributed in the form of a gunshot to Khizar Hayat appellant No. 1.
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On the same date at 12-30 p.m. He medically examined Muhammad A.I P. W. 10 and found on his person contusion mark on the left scapular region (back) and an incised wound on the left lower leg just above the ankle joint. The first injury was simple and the second was grievous. The first injury was caused by blunt-weapon and the second with sharp-edged weapon. It may be pointed out at this stage that the first injury was attributed to Muhammad Yusuf appellant No. 9 and second injury was attributed to Dost Muhammad appellant No. 4,, since deceased. On the same date at 12-45 p.m. He medically examined Mukhtar Ahmad P. W. 8 and found on his person lacerated wound on the left upper chest, multiple lacerated gunshot wounds on the left upper arm and a lacerated wound on left side of chest. The first injury was dangerous whereas the second and third were kept under observation. The injuries had been caused with gunshots. The second and third injuries subsequently were declared…
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