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Petitioner: MUHAMMAD ANWAR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sh. Abdul Rashid, Raja Muhammad Sabir Title: MUHAMMAD ANWAR vs THE STATE Case No.: Criminal Appeals Nos.1290 to 1293 of 2000 Date of Judgment:2003-09-16 Reported As: 2004 YLR 255 Result: Order accordingly
JUDGMENT
JUDGMENT ' SH. ABDUR RASHID, J.---Four Criminal Appeals Nos.1290 to 1293 of 2000 have been filed by Muhammad Anwar son of Abdul Aziz, Kaisar Aziz, Iftikhar Khalid and Zulfiqar Ahmad sons of Jalal Din appellants against the judgment dated 26-8-2000 passed by Rao Shafe Ali Khan, Judge Special Court constituted under the Suppression of Terrorist Activities Act, 1975, Gujranwala in case F.I.R. No,102 dated 26-2-1997, under sections 302/ 324/148/149, P.P.C. Of Police Station Baghbanpura, Gujranwala, whereby, all the said convicts had been sentenced to death on two counts under section 302(b)/34, P.P.C., praying for their acquittal. 2. Abdul Waheed complainant has also filed Appeal No,1385 of 2000 in the same case against the acquittal of Abdul Aziz, Azhar Aziz sons of Jalal Din and Mst. Saleem Akhtar alias Salima praying for their conviction. 3. All the five appeals arise out of the same occurrence and are disposed of by this single order. 4. Briefly stated the facts of the prosecution case are that on 25-2-1997 at about 9-00 p.m. Abdul Waheed complainant was going to the house of his, father Abdul Aziz, who lived in Mohallah Chah Chohanwala and when he reached Ghalla Haji Abdul Aziz at about 9-30 p.m. He saw in the light of electric bulb that Iftikhar alias Fattu armed with .222 bore rifle, Zulfiqar Ahmad armed with .30 bore pistol, Abdul Aziz also armed with .30 bore pistol, all sons of Jalal Din, Muhammad Anwar armed with .30 bore pistol, all sons of Abdul Aziz, Caste Arain, residents of Mohallah Chah Chohanwala, were sitting in ambush with common object in a corner of the Chowk. Muhammad Saeed brother of the complainant came there riding on a motorcycle and seeing him Abdul Aziz called out Lalakara that he should be taught a lesson for his earlier firing at them and that he should not be spared and be killed, upon which Iftikhar, Zulfiqar, Abdul Aziz, Muhammad Anwar, Kaiser and Azhar
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with their respective weapons made Muhammad Saeed a target of their reckless firing, hitting the different parts of his body, who fell down. Upon reports of firing shots, Abdul Aziz father of the complainant Muhammad Saeed came over there. All the six accused with their respective fire- arms started reckless firing at him as well and their fire shots hit the different parts of his body. Abdul Waheed complainant being scared got aside. On the report of the fire shots, Abdul Hameed, Amanullah and Kausar Bibi P.Ws. Reached the place of occurrence and had witnessed the same. With the firing of the accused, one passerby Rashid Iqbal son of Muhammad Farid was also injured. While leaving from the place of occurrence, the accused took away motorcycle and licensed pistol of Muhammad Saeed deceased. 5. The motive for the occurrence was that about one and half years prior to the occurrence, an exchange of firing had taken place between the accused and the complainant party in which Abdul Aziz and Muhammad Anwar accused were injured and a case F.I.R. No,355 of 1995 under section 324, P.P.C. Was registered at Police Station Baghbanpura, Gujranwala. The said incident rankled in the mind of the accused due to which, they made murderous assault at Muhammad Saeed and his father Abdul Aziz being armed with deadly weapons. 6. Abdul Waheed complainant removed his father Abdul Aziz and brother Muhammad Saeed in injured condition to Civil Hospital, Gujranwala, where Abdul Aziz expired due to the injuries and Muhammad Saleem after his medical examination was referred to General Hospital, Lahore, for further treatment, while Muhammad Saeed was being shifted to Lahore on an ambulance, he also expired on the way. His dead body was brought back to the hospital at Gujranwala. 7. Nabi Ahmad, S.-I., Police Station Baghbanpura, on learning about the incident reached the hospital and he recorded the statement Exh. P. A. Of Abdul Waheed complainant which was read over to him who signed the same in token of its correctness. The statement Exh.P.A. Was sent to the police station through Nasrullah Khan, Constable No,533/C for the registration of case. Muhammad Arshad, Moharrar H.C. Recorded the formal F.I.R. Exh.P.A./1 on the basis of the same. The said S.-I. Examined the dead body of Muhammad Saeed and Abdul Aziz deceased. He prepared the injury statement of the dead body of Abdul Aziz Exh.P.J. And inquest report Exh.P.K. He also prepared the injury statement of the dead body of Muhammad Saeed Exh.P.L. And inquest report Exh.P.M. He entrusted both the dead bodies to Zulfiqar Ali Constable 969 , and Amjad Ali, Constable 946 alongwith papers for post-mortem examination and thereafter he proceeded to the place of occurrence and upon reaching there, he carried out the site inspection and prepared its rough site-plan Exh.P.R. All the drawings and notes and writings on Exh.P.R. Are in his hand and bear his signatures. He secured the blood-stained earth from two places. The blood-stained earth from the place of injury of Muhammad Sated deceased was made into sealed parcel and was taken into possession vide memo. Exh.P.S. Which was attested by Abdul Hameed and Amanullah P.Ws. The blood-stained earth regarding Abdul Aziz was made into a sealed parcel and was taken into possession vide memo. Exh . P . V . Which was also attested by the said witnesses. The S.-I. Also took into possession three crime empties of .222 bore rifle and five crime empties of .30 bore pistol which were made into a sealed parcel and taken into possession vide memo. Exh.P.B. Which was attested by Abdul Hameed and Amanullah P.Ws. The S.-1. Recorded the statements of all the witnesses under section 161, Cr.P.C. 8. Ghulam. Nabi, S.-1. Also received information at the place of occurrence that a Motorcycre No, 2091-GAD Honda 100 CC, P.1, owned by Muhammad Saeed was lying near Al-Rai Hospital, Jinnah Road, Gujranwala. He proceeded to the said place and, took the motorcycle P.1 into possession vide memo. Exh.P.D. Which was attested by Mansha Tariq and Muhammad Shahbaz P.Ws. He recorded supplementary statement of the complainant Abdul Waheed and handed over sealed parcels containing the blood-stained earth, crime empties and the last-worn clothes of the deceased to Muhammad Arshad, H.C. For their safe custody in the Maal Khana.
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9. Dr. Abdul Latif, M.O. P.W.9 on 25-2-1997 at about 10-20 p.m. Medically examined Rshid Iqbal injured P.W. Who was brought by one Safdar Butt and he found following injuries on his person:-- 1.A Fire-arm lacerated wound of entry measuring 1 c.m. x 1 c.m. Going deep on lateral side of right side of abdomen. 8 c.m. Above the right iliac wrest. ' Injury was kept under observation for surgeon's opinion. Duration of injury was fresh, caused by fire-arm. Exh.P.E. Was attested copy of the said MLR issued by him which bore his signatures. 10. On the same day, the said Medical Officer also medically examined Muhammad Saeed son of Abdul Aziz, who was then semi-conscious and he found 15 injuries on his person out of which first 12 injuries had been caused by the fire-arm and the injuries Nos.13 to 15 had been caused by blunt weapons. The injuries had been suffered ' afresh and were all kept under observation. Exh.P.F. Is the copy of MLR which ' is in his handwriting and signed by hind. 11. On 26-2-1997, Dr. Zahid Butt conducted post-mortem examination on the dead body of Muhammad Saeed deceased and he found the following injuries on his person:-- ' INJURIES (1) Lacerated fire-arm wound. Of inlet .25 c.m. x 1.25 c.m. On the left side of thigh outer surface with fracture femur. (2) Fire-arm lacerated wound of outlet 5 c.m. x 3 c.m. On inner side of the thigh. (3) Lacerated fire-arm wound of inlet 11 c.m. Below the injury No,l. .25 c.m. x .2 c.m. On the left thigh. (4) Fire-arm lacerated wound of outlet 4.5 c.m. x .4 c.m. On lower thigh inner side. 6 c.m. From injury No,2. (5) Fire-arm lacerated -wound of inlet .5 c.m. x .5 c.m. Back of left knee joint, inner 4 c.m. Below the injury No,3. (6) Fire-arm lacerated wound of outlet 2.5 c.m. x 1 c.m. Back of left knee joint, inner. (7) Fire-arm lacerated wound of inlet .5 c.m. x .5 c.m. Back of left knee joint. (8) Fire-arm lacerated wound .25 c.m. x .25 c.m. Inlet on left leg 14 c.m. Below left knee outer. (9) Fire-arm lacerated wound of outlet 1 c.m. x .5 c.m. Adjacent to patella. (10) Fire-arm lacerated wound of inlet 5 c.m. x .5 c.m. On right thigh outer side. (11) Fire-arm lacerated wound of inlet 2.5 c.m. x 1.5 c.m. Inner side left leg. (12) Fire-arm lacerated wound of outlet 3.5 c.m. x 2 c.m. On right thigh inner side upper. (13) Fire-arm lacerated wound glancing on right ring finger with fracture middle pharyax .3 c.m. x 2 c.m. (14) Lacerated wound 3 c.m. x 1 c.m. 4.5 c.m. Above the left ear cruciate in shape on left side of head. (15) Lacerated wound 3 c.m. x 1.5 c.m., 2.5 c.m. Above the injury No,14. Cruciate in shape, with fracture skull. (16) Lacerated wound 3 c.m. x 2 c.m. Cruciate in shape .5 c.m. Before the injury No,15. ' On internal examination cranium, spinal cord, scalp and skull were found to be lacerated, vertebra was healthy. Spinal cord was found to be injured. All the organs of thorax and abdomen were healthy. In the opinion of M.O. The death was caused due to damage of brain and haemorrhage and shock which was sufficient to cause death in the ordinary course of nature and all the injuries were ante-mortem. Exh.P.G. Is the carbon copy of the postmortem report of Muhammad Saeed deceased, whereas, Exh.P.G./1 and Exh.P.G./2 are the diagrams which all are in the handwriting of M.O. And bears his signature. 12. On the same day at about 1-00 p.m. Dr. Zahid Butt, conducted the post mortem on the dead body of Abdul Aziz and found the following injuries:- INJURIES "(1) A lacerated wound of 2 c.m. x 1 c.m. On top of the head, scalp deep. (2) A lacerated wound 2.5 c.m. x 1 c.m. On back of head 9 c.m. Back from right ear.
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(3) A contusion on the left arm measuring 16 c.m. x 7 c.m. (4) Contusion on the left chest, 28 c.m. x 16 c.m. (5) A glancing fire-arm wound with blackening 1 c.m. x 0.5 c.m., 4 c-.m. Below the left sub-costal margins 11 c.m. From umbilicus. (6) A wound of inlet of fire-arm 1 c.m. x 1 c.m., 6 c.m. Below the injury No,5. (7) A fire-arm glancing lacerated wound of 1 c.m. x .02 c.m. On the left thigh, middle. (8) Lacerated fire-arm wound of inlet 0.5 c.m. x 0.5 c.m. On the left knee joint outer and middle. (9) A fire-arm outlet injury 2 c.m. x 1 c.m. Above the knee joint. (10) A lacerated fire-arm wound of inlet on left thigh 0.5 c.m. x 0.5 c.m. On back (middle). (11) A wound of outlet 9 c.m. Above injury No,9, 2 c.m. x 2 c.m. (12) A lacerated fire-arm wound of inlet 1 c.m x 0.5 c.m. Above the right (inner) malleolus. (13) A wound of outlet 2 c.m. x 1.5 c.m. Above the right malleolus (outer)." 13. On internal examination, cranium and spinal cord were found to be lacerated and the other organs, skull, vertebra, membranes, brain and spinal cord were found to be lacerated. Peritoneum was perforated containing blood, small intestines were also lacerated and other organs of abdomen were healthy. In the opinion of M.O. The injuries Nos.1 to 4 had been caused by blunt weapons, whereas injures Nos.5 to 13 have been caused by fire-arm. The probable time between the injuries and death was 15 to 20 minutes and the death had been caused due to haemorrhage and shock which was sufficient to cause death in the ordinary course of nature. Exh.P.H. Is the carbon crpy of the post-mortem report, whereas, Fxh.P.H./1 and Exh.P.H./2 are pictorial diagrams which are in the hand of said M.O and bears his signatures. 14. On 3-3-1997 Ghulam Nabi, S.-I. Got prepared scaled site-plan Exh.P.D. And its ccmy Exh.P.D./1 from Maqsood Ahmad Bhatti Draftsman and gave his notes in the red ink. 15. On 20-3-1997, Tassadaq Hussasin, Insoector arrested Muhammad Anwar and oth4 r accused. Muhammad Anwar accused Mile in custody led to the recovery of pistol .30 bore P.2 on 3-4-1994 from his facts ry which was lying beneath a cot wrapped in a black coloured shopper bag; upon unloading two live bullets were recovered and these were taken into possession vide memo. Exh.P.C. Which was attested by Asif and Ayyub P.Ws. 16. On 8-4-1997 four accused namely Kaiser, Abdul Aziz, Zulfiqar Ahmad and Iftikhar Ahmad were arrested by Tassadaq Hussain, S.-I. Kaiser accused while in custody led to the recovery of rifle .222 bore P.6 from beneath a bed lying in the drawing room of his house which was unloaded and four live bullets were recovered. The rifle and bullets were taken into possession vide memo. Exh.P.V. On the same day, Zulfiqar Ahmad in the custody led to the recovery of .30 bore pistol P.7 from the Bethak of his house which was lying beneath a sofa which was taken into possession vide memo. Exh.P.X. 17. All the sealed parcels were delivered to the Moharrar H.C. And upon completion of the investigation, the appellants alongwith their acquitted accused namely Azhar Aziz1 Abdul Aziz sons of Jalal Din and Mst. Salima Akhtar alias Seema wife of Abdul Aziz were challaned in this case, who were all charged under sections 302/324/148/149, P.P.C. By the learned trial Court to which they all pleaded not guilty. 18. The prosecution produced Abdul Waheed complainant P.W.1, Mst. Kosar Bibi eye-witness P.W.2, Muhammad Mansha Tariq P.W.3, Muhammad Asif P.W.4, Masood Ahmad Bhatti, Draftsman P.W.5, Hameed Ullah Constable P.W.6, Muhammad Arshad, Moharrar H.C. P.W.7, Riyasat Ali, Constable P.W.8, Dr. Abdul Latif, M.O. P.W.9, Dr. Zahid Butt, M.O. P.W.10, Zulfiqar Ahmad, Constable P.W.11, Nabi Ahmad, S.-I./I.O. P.W.12, Masood Ahmad, S.-I./ I.O. P.W.13, Tassadaq Hussain, Inspector/ I.O. P.W.14 and Khushi Muhammad, D.S.P./ I.O. P.W.15 in support of its case. The learned A.P.P. Tendered in evidence the report of Serologists regarding blood-stained earth Exh.P.Y., report of Chemical Examiner regarding blood-stained earth Exh.P.Z.,
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report of Chemical Examiner Exh.P.Z./1, report of Serologists regarding bloodstained earth Exh.P.Z./2. He gave up the remaining witnesses and closed the prosecution case. 19. The statements of the appellant and their co-accused under section 340(2), Cr.P.C. Without oath were recorded and all the incriminating prosecution evidence was put to them which they controverted and they took up the plea that it was a night occurrence and blind murder. No P.W. Was present at the spot at the time of occurrence and that they all had been falsely involved due to their enmity. 20. At close of trial, the learned trial Court vide impugned judgment, acquitted. Azhar Aziz, .Abdul Aziz sons of Jalal Din and Mst. Saleem Akhtar alias Seema and convicted the appellants as mentioned above. Feeling aggrieved by which, the appellants have filed separate criminal appeals and feeling aggrieved by the acquittal of the three accused, the complainant has filed appeal against their acquittal. 21. The learned counsel for the appellants has argued that the motive as alleged by the prosecution is extremely weak, as the first occurrence of firing had taken place one and half years prior to the occurrence and enough time had elapsed to assuage the feelings of the accused party and there was no fresh reason to attack the deceased. It has been argued that the occurrence had taken place during night time and no one had witnessed the same. The deceased by their conduct had annoyed others as well and the appellants and their co-accused were involved in occurrence merely on account of suspicion by concocting a false story. It has been argued that F.I.R. Of this case has been lodged with considerable delay. The occurrence allegedly took place at 9-00 p.m. On 25-2-1997 and the F.I.R. Was lodged at about 1-45 a.m. On the said date despite the fact that the police station was at a distance of one kilometre from the place of occurrence. It has also been argued that no crime empty and the fire-arms allegedly recovered from the appellants and the co-accused had been sent to the fire-arm expert and as such these recoveries will not be of corroborative value to the ocular version. Even the recoveries of fire-arm from the accused has been assailed. It has further been argued that the entire prosecution case hinges on the testimony of two eyewitnesses namely Abdul Waheed P.W.1 and Mst. Kausar Bibi P.W.2, who both are related to the deceased and inimical to the P.Ws. And they have improved their evidence from the police version in order to bring it in conformity with the medical evidence and thus are unworthy of credibility. It has further been argued that both the eye-witnesses had no reason to be at place of occurrence to witness the same and their entire conduct during the occurrence is reflective of their non-presence at the place of occurrence. It has been also argued that in case both the P.Ws. Were present, they would have also been injured, as the alleged motive of the appellants and their acquitted co-accused, weighed equally against Abdul Waheed complainant as well. It has also been argued that Tasaddaq Hussain, Inspector/Investigating Officer found four accused namely Abdul Aziz, Azhar Aziz, Muhammad Anwar and Iftikhar Khalid innocent which included Muhammad Anwar and Zulfiqar Ahmad appellants also and there is no corroborative material against the said convicted two appellants to distinguish their case from the other two acquitted accused to justify their conviction. It has also been argued that the ocular version is completely at variance with the medical evidence for which no reliable justification is available and had the two eye-witnesses been present at the place of occurrence and had witnessed the same, this conflict between the medical evidence and ocular version would not have occurred. 22. Regarding motive, the prosecution version is that about one and half years prior to the occurrence, an exchange of firing had taken place between the complainant party and the appellants in which Muhammad Anwar appellant and his father Abdul Aziz were injured and a case vide F.I.R. No,355 of 1995, under section 324, P.P.C. Was registered at the Police Station Baghbanpura against the complainant party and the said incident rankled in the mind of the appellants and their acquitted co-accused and impelled them to commit the occurrence.
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23. Abdul Waheed P.W.1 in his evidence supported the said motive. In cross-examination he conceded that the accused of the motive occurrence were bailed out after one and half months of the occurrence and thereafter no quarrel of both the parties took place nor any case was registered between them. 24. After the motive occurrence, the complainant party of this case abandoned their residence from the Mohallah of the appellants and about one and half months prior to the occurrence Abdul Aziz and Muhammad Saeed both deceased again took up residence in the Mohallah of the appellants and during the said period no quarrel took place between the parties and no case was registered between them. Both the deceased used to pass from the same street daily where the house of the accused w. Situated. Thus, the accused had every opportunity to take revenge from both the deceased even earlier in case they nourished grudge regarding the tiring incident which took place about one and half years ago. These facts clearly indicate that the earlier rancour between the parties had mollified as none of them ever tried to attack the other. This motive incident narrated by the prosecution witnesses in more of a source of suspicion on the part of the complainant party against the appellants, then actually being a cause for the attack. 25. Abdul Waheed complainant was also an accused in the earlier firing incident and the appellants nourished the same strength of motive against him as well. Had this occurrence taken place on account of the alleged motive then the appellants and their co-accused who were armed with deadly weapons could have easily targeted him as well. The very fact that the complainant despite being visible to the accused was not fired at reflects the weakness rather non-existence of any motive on the part of the appellants and the co-accused to launch an attack on the deceased. 26. During police investigation, the recoveries of fire-arms had been effected from the appellants. However, the three crime empties of .222 bore rifle and five crime empties of .30 bore pistol taken into possession from the place of occurrence by Nabi Ahmad, S.-I. Were not sent to the fire-arm expert to match with fire-arms recovered from the appellants. Therefore, the alleged recovery of the fire-arms from the appellants is of no significance and it cannot be held that the weapons allegedly recovered from the appellants were the same which had been used in the occurrence. Furthermore, the weapons had been allegedly recovered from the appellants in suspicious condition. The weapons had been allegedly kept by the appellants in their rooms or factory premises in open being visible and accessible to others. It is against the human conduct that the weapon of offence would be stored in such negligent manner, so that any person could lay its hand on it. Thus, ' the recoveries of weapon of offence made in this case also do not lend support to the ocular version. 27. The prosecution case mainly hinges on the testimony of Abdul Waheed complainant P.W.1 and Mst. Kausar Bibi P.W.2. Abdul Waheed P.W.1 in his evidence stated that accused Iftikhar, Abdul Aziz, Zulfiqar are real brothers. Kaiser Aziz, Muhammad Anwar and Azhar Aziz are also real brothers. Mst. Saleem Akhtar is real mother of Azhar Aziz etc'. About two years and 9 months ago, at about 9-30 a.m. He reached Ghalla of Haji Abdul Aziz, the electric bulb was on in the corner of Chowk, he saw Abdul Aziz armed with .30 bore pistol, Iftikhar Ahmad armed with .222 rifle, Zulfiqar armed with .30 bare pistol, Muhammad Anwar armed with .30 bore pistol, Kaiser Aziz armed with .7 mm rifle and Azhar Aziz armed with .30 bore pistol, standing in the Chowk. Meanwhile, his brother Muhammad Saeed came there on a motorcycle. Abdul Aziz raised Lalkara that Muhammad Saeed be taught a lesson for previous firing. On his Lalkara, all the accused started firing with their weapons. Muhammad Saeed received fire-shot injuries on different parts of his body and fell down on the ground. The noise of firing attracted his father Abdul Aziz son of Ibrahim. Iftikhar Ahmad gave a butt blow on the head of his father, who fell down on the ground. The accused then made reckless firing on his deceased father with their weapons. Iftikhar and Abdul Aziz gave "Thudda" blows to his father
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and brother when they were fluttering on the ground. When the accused were to free Mst. Saleem Akhtar alias Seema came over there and stated that the deceased were still alive and that they be killed otherwise they would kill them. The accused again returned and started reckless firing on Muhammad Saeed and Abdul Aziz. The accused took away motorcycle and pistol of his deceased father, when they decamped from the place of occurrence. The occurrence was witnessed by this P.W., Mst. Kausar Bibi, Muhammad Saeed, AmamiIlah sons of Faiz Ali and Abdul Hameed son of Ibrahim. Rashid Iqbal a passerby was also injured in the firing. 28. Mst. Kausar Bibi appearing as P.W.2, stated that about two years and 9 months ago, at about 9- 30 p.m. She came out from her house in the street, where an electric bulb was alit. Abdul Aziz accused armed with .30 bore pistol, Iftikhar Khalid armed with .222 rifle, Zufliqar Ahmad armed with .30 bore pistol, Muhammad Anwar armed with .30 bore pistol, Kaiser Aziz armed with .7 mm rifle, Azhar Aziz armed with .30 bore pistol were standing in the Chowk. Her deceased husband Muhammad Saeed was coming on a motorcycle. Abdul Aziz raised Lalkara to teach him lesson for previous firing. All the accused including Abdul Aziz made reckless firing at his deceased husband who after sustaining fire-shots fell on the ground. On hearing the noise of firing, her father-in-law Abdul Aziz came over there. Iftikhar Khalid gave a butt blow on the head of her deceased father-in- law Abdul Aziz, who fell down on the ground. All the six accused made reckless firing on Abdul Aziz. Iftikhar Khalid and Abdul Aziz accused gave 'Thudda' blows to Abdul Aziz deceased when he was fluttering on the ground. When the accused were to flee Mst. Salima Bibi came over there and told the accused that both the injured were alive and if they survived, they would kill them. The accused then again made firing on the deceased person. The accused took away motorcycle of her deceased husband alongwith his pistol when…
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