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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: IIIRD ADDITIONAL SESSIONS JUDGE, HYDERABAD and JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Muhammad Faisal Kamal Alam Title:MUHAMMAD SIDDIQUE vs IIIRD ADDITIONAL SESSIONS JUDGE, HYDERABAD and
JUDGMENT
Reported As: 2019 YLR 1926 Result: Case remanded Judgment JUDGMENT AZIZ-UR-REHMAN, J. By means of this Constitutional Petition Under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner herein viz. Muhammad Siddique 'inter-alia' is seeking the setting aside of the impugned order dated 11.09.2013 [Annexure 'F' to the MoP]. The 'impugned order' as per Petitioner's stand besides being against the principle of law of natural justice is 'illegal'. The prayers sought by the Petitioner in the Memo of Petition [In short MoP], are as follows:- "a. To declare that the dispossession of the petitioner via "set aside" order 11.09.2013 and ineffective order is illegal. b. To direct the respondent Nos,4 and 5 to restore the possession of the petitioner . [Underlining is ours] c. To refrain respondent No,6 from issuing any illegal and unlawful mutation until the disposition of instant petition. d. To award cost of petition. e. To grant any other relief that this Honourable Court deems fit and proper and in the interest of justice." 2. The precise relevant facts leading to the filing of the instant Petition are that; the Petitioner herein, is holding a 'Registered Sale Deed' dated 23.09.201 1 [Annexure 'A' to the MoP], in his favour which as asserted has been duly executed between one Ghulam Raza Abro son of Ghulam Ali Abro and Muhammad Siddique Memon [Petitioner herein ]. The Petitioner , as such, is a lawful owner of Bungalow No, 170/100 admeasuring 100 sq yards situated at Street No, 06, Abdullah rown, Qasimaba d, Hyderabad [hereinafter referred to subject Bungalow ]. Per Petitioner's version, he was also in 'lawful possession' of the said Bungalow prior to his dis-possession i, e, pursuant to and in compliance with order dated 16.08.201 1 [Annexure 'B' to the MoP], passed by IVth Additional Sessions Judge, Hyderabad, in CRIMINAL I.D. COMPLAINT NO.37 OF 2010 [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and 2 others ]. The Petitioner , it is needless to say, at the time of passing Order dated 16.08.201 1, was not a
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Respondent and/or an accused in the said Criminal Illegal Dispossession Comp laint bearing No,37 of 2010 [In short Cr . I.D. Complaint ]. 3. Per record, Respondent lady No,2 herein, filed a Criminal Complaint No,37 of 2010 under Sections 3 (2), 5 and 7 of Illegal Dispossession Act, of 2005 [In short Cr. I.D. Complaint ], before the Court of learned IVth Additional Sessions Judge, Hyderabad, only against three [3] Respondents/Accused namely [i] Dr. Mumtaz Chandio son of not known, Shoaib Chandio son of not known and Imtiaz Chandio son of not known. In the Cr. I.D. Complaint No,37 of 2010, SHO Police Station Qasimabad , Hyderabad, was joined in the array of Respondents but not in his capacity as an accused. The prayers sought in the Cr . I.D. Complaint read as follows:- "(a) That this Honourable Court may be pleased to proceed against the accused persons according to law and restore the possession of the said bungalow to the complainant. (b) That this Court may be pleased to take cognizance of the case punish the private accused/ respondents Nos,1 to 3 under section 3(2) of Illegal Dispossession Act 2005 as prima facie the respondents have committed the offence under section 3(1)(2) of the said Act. (c) That this Honourable Court may be pleased to direct the respondent No,9 SHO Police Station Qasimabad Hyderabad to investigate the matter impartially and submit the report before this Honourable Court within 15 days and get restore the possession of the said bungalow to the complainant . [Underlining is ours] (4) This Honourable Court may be pleased to compensate the complainant in accordance with provisions of section 544, Cr .P..C. (e) Costs of the complain be borne upon the respondents. (f) Any other relief which this Honourable Court deems fit and proper may please be awarded to the complainant." '4. During pendency of the aforesaid Criminal I.D. Complaint No,37 of 2010 , the Complainant lady/Respondent No,2 herein, also opted to file an APPLICA TION UNDER SECTION 7 (1) OF ILLEGAL DISPOSSESSION ACT, 2005 [Act XI of 2005] , with a prayer for issuing direction to the aforesaid three [3] accused persons for putting the Complainant lady/Respondent No,2 herein [Mst. Suriya. Kausar Qureshi daughter of Muhammad Ameer Bux Qureshi ] in possession of the 'Subject Bungalow' No, 170/100 admeasuring 100 sq. yards situated at street No,06, Abdullah Town, Qasimabad , Hyderabad, which subject Bungalow , as per the Complainant lady/ Respondent No,2's stand was purchased by her through a Registered Sub-Lease Deed No,2996 dated 29.06.1999 , from M/s. Hussain Private Limited through its' Director Muha mmad Ehsan Qureshi son of Abdullah Qureshi. The 'Subject Bungalow', as claimed, has also been entered in the name of Complainant lady/Respondent No,2, in 'Deh Form-VII' of the Revenue Record. 5. On 16.08.201 1, when the Application under section 7(1) of Illegal Dispossession Act, 2005, filed in the Criminal I.D. Complaint No,37/2010 , [Mst. Suriya Kausar [Retired Professor] daughter of Muhammad Ameer Bux Qureshi v. Dr. Mumtaz Chandio son of not known and 3 others ], came-up before the court of learned IVth Additional Sessions Judge, Hyderabad, then, the said Application Under Section 7[1] was allowed and resultantly , SHO, Police Station Nasim Nagar , Hyderabad, was directed not only to take-over possession of the 'Subject Bungalow' by breaking open the locks of door[s] but also hand over possession thereof, to the Complainant lady/Respondent No,2 herein. The 'relevant part' of order dated 16.08.201 1 [Annexure 'B' to the MoP], for ready reference is reproduced herein below:- "I have heard the learned counsel for the complainant, perused documents of the bungalow in question, report of SHO and Mukhtiarkar , which reveal that the complainant is real owner of the aforesaid bungalow and the respondents have illegally occupied the said bungalow without any title documents and at present as per report of Process Server , the respondents are not residing in the bungalow in question and have put the lock to the bungalow , the complainant is appearing in the court since 2010, looking the above situation I allow application under section 7(1) of Illegal Dispossession Act and direct the SHO Nasim Nagar to take the possession of the aforesaid bungalow to the complainant after breaking the locks of the door of bungalow and handover the same to the complainant." (Underlining is ours] 6. The present petitioner namely Muhammad Siddique son of Khalid Memon upon getting knowledge about the aforesaid Order dated 16:08.201 1, [Annexure 'B' to the MoP], passed by the learned IVth Additional Sessions
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Judge, Hyderabad, opted to challenge the said Order in a 'CRIMINAL REVISION APPLICA TION NO.172 OF 2011' [Muhammad Siddique v. IVth Additional Sessions Judge, Hyderabad and 5 others ], before this Court. The said CRIMINAL REVISION APPLICA TION NO.S-172 OF 2011 when later on, came-up before a Single Bench of this Court on 12.10.2012, then, the 'impugned order' dated 16.08.201 1 [Annexure 'B' to the MoP], passed in Criminal I.D. Complaint No,37 of 2010 [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and 3 others], by learned IVth Additional Sessions Judge, Hyderabad, was SET ASIDE and the case was REMANDED to the trial court for conducting proper investigation by officer, incharge regarding illegal dispossession of the Complainant lady/Respondent No,2 herein. The 'operative part' of order dated 12.10.2012 [Annexure :C' to the MoP], passed by a Single Bench of this Court in Criminal Revision Application No,172 of 2011, filed by Petitioner herein, reads as follows:- "Be that as it may, in view of the above, I set aside the impugned order dated 16.8.201 1 and remand the case to the trial Court for conducting proper investigation by officer incharge regarding "illegal dispossession" of complainant/Suriya Kausar and only then a proper speaking order touching the question of illegal dispossession of the complainant shall be passed by the trial Court in accordance with law. The applicant who claims to be the owner of subject property on the basis of certain title documents and also claims to be in possession of the subject Bungalow regarding which the impugned order , whereby interim possession of the said Bungalow was handed over to the complainant, may also be heard and if necessary , may be impleaded as a party in the proceedings. Office is directed to send the R&Ps back to the trial Court." (Underlining is ours] 7. Pursuant to passing of the aforesaid order dated 12.10.2012 , when the CRIMINAL I.D. COMPLAINT NO.37/2010 , filed by Respondent No,2 lady herein [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and 2 others ] and then pending, came-up before the Court of IIIrd Additional Sessions Judge , Hyderabad, then, a well detailed and speaking Order dated 06.02.2013 , was passed. Being relevant `Para-10' therefrom, for ready reference is reproduced here-in-below:- "10. In the circumstances, prima-facie the case is made out not only against the respondents Nos, 1, 2 and 3 but also against Muhammad Siddique and Ghulam Murtaza, so they are directed to join and impleaded as accused persons. The complaint, is, therefore, registered and cognizance is taken against them, their attendance is directed to be secured that bailable warrants in the sum of Rs,50,000/- each with surety of like amount. Since the court has taken the cognizance and the complainant lady has sold out the property to one Ameer Ali Shah, therefore, it is further directed complainant will not execute the sale deed in favour of the Ameer Ali Shah, nor to create any third party interest and status quo in respect of the said property will be maintained by all parties concerned till final disposal of the case. Order accordingly ." [Underlining is ours] 8. The Petitioner herein, somehow , again feeling 'aggrieved ' and 'dis-satisfied' with order dated 06.02.2013 [Annexure 'C' to the MoP], filed another `CRIMINAL REVISION APPLICA TION NO.S-26 OF 2013' [Muhammad Siddique v. IIIrd Additional Sessions Judge, Hyderabad and 6 others ], before this Circuit Court, Hyderabad, on 11.02.2013 , with a prayer for setting aside the impugned order dated 06.02.2013 [Annexure `E' to the MoP ]. 9. The aforesaid CRIMINAL REVISION APPLICA TION NO.S-26 OF 2013, filed by the Petitioner herein, [Muhammad Siddique v. Hird Additional Sessions Judge, Hyderabad and 6 others ] when later on, came-up before a Single Bench of this Circuit Court, Hyderabad, on 27.02.2014 then, the same was 'disposed of as having served its' purpose . The Petitioner herein, nevertheless, was also directed to seek adequate remedy , if, available to him, from the competent forum. For convenie nce purpose, the relevant part of Order dated 27.02.2014 , passed by Hon'able Single Bench of this Court in `CRIMINAL REVISION APPLICA TION NO.S- 26 OF 2013' , is reproduced hereinbelow:- "Mr. Zaheeruddin Sahito, Advocate filed Vakalatnama on behalf of respondent No,2, taken on the record. Learned counsel for applicant filed copy of daily newspaper `Kawish' wherein the notice has been published. On the other side, learned counsel for respondent No,2 Mst. Suriya Kausar , by filing his Vakalatnama submits that respondent No,2 has got the possession of disputed property by order of IIIrd
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Additional District and Sessions Judge and thereafter , the applicant may have to avail remedy available to him by seeking adequate remedy from the competent forum. In such view of the matter , purpose of filing of instant criminal revision application has been served, which is accordingly disposed of, with direction that the applicant may have to seek adequate remedy , if available to him, from the competent forum ." [Underlining is ours] 10. The Complainant lady/Respondent No,2 herein, despite passing of the earlier Order dated 06.02.2013 , [referred to and reproduced in Para 10 hereof] passed in 'CR. I.D. COMPLAINT NO.37 OF 2010' [Annexure `D' to the MoP], whereby inter alia the Complainant lady/Respondent No,2 herein, was restrained from EXECUTING ANY SALE DEED in favour of one Ameer Ali Shah, all other parties to the said CR. I.D. COMPLAINT NO.37 OF 2010, were also directed to maintain status quo, however, in her own wisdom and in a calculated manner opted to file a 'STATEMENT' dated 11.09.2013 [Annexure 'F' to the MoP] in the then, pending 'CRIMINAL I.D. COMPLAINT NO. 37 OF 2010' [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and 2 others], with a prayer therein, for withdrawal of the aforesaid Cr. I.D. Complaint on the plea, as possession of the 'Subject Bungalow' had already been given / handed over to her i,e, under the 'Interim Order' dated 16.08.2011, earlier passed on the Complainant lady/Respondent No,2's Application under section 7(1) of Illegal Dispossession Act, 2005. [Act XI of 2005], by IVth Additional Sessions Judge, Hyderabad. 11. The said 'statement' dated 11.09.2013, filed by the Complainant lady viz. Mst. Suriya Kausar Qureshi daughter of Muhammad Ameer Bux Qureshi/Respondent No,2 herein, and the `impugned order' passed thereon, both dated 11.09.2013 , are reproduced at [a] and [b], respectively , here-in-below:- STATEMENT [a]. Undersigned do hereby withdraw from case as such possession is handed over to the complainant. Hyd. Dated. 1 1.09.2013. Sd/ Advocate for Complainant. Sd/-11.9.13. " Complainant. [b]. ORDER I.D is disposed being withdrawn. Sd/-1 1.9.13. Judge 12. The Petitioner herein, thus for 3rd time feeling 'aggrieved' and 'dis-satisfied' with the disposal of I.D.Complaint No,37 of 2010 , through order dated 11.09.2013 , passed by learned 3rd Additional Sessions Judge, Hyderabad, opted to approach this Court by way of filing the instant Constitutional Petition, on 03.03.2014 , 'inter -alia' for setting aside the 'impugned order' dated 11.09.2013 , mainly on the ground that since, the learned trial Court i,e, 3rd Additional Sessions Judge, Hyderabad, has already joined the Petitioner herein, as a party in the Criminal I.D. Complaint No,37 of 2010, vide its' Order dated 06.02.2013 [i,e, pursuant to and in compliance with order dated 12.10.2012, passed by Honourable Single Bench of this Court, in Cr. Rev. Appl. No,S-172 of 2011] and has also taken the cognizance of case against the Petitioner herein and another as such, the trial Court, after `REMAND OF CASE' and of taking cognizance and registration of the ease, i,e, Criminal I.D. Complaint No,37 of 2010 , filed by Complainant lady/Respondent No,2 herein [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and others including the Petitioner ], was not justified in permitting the Comp lainant lady/Respondent No,2 herein to withdraw the said Cr. I.D. Complaint without affording proper opportunity of hearing to the Petitioner herein, and/or re- possessing/re-taking back the possession of the 'Subject Bungalow' having handed over to the Complainant lady/ Respondent No,2 herein, in compliance with an Interlocutory orders of 16.08.201 1, passed by learned IVth Additional Sessions Judge, Hyderabad, on the Application under Section 7[1] of Illegal Dispossession Act, 2005 [Act XI of 2005 ], filed by the Complainant lady/ Respondent No,2 herein, in Criminal I.D. Complaint No,37 of 2010.
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13. On filing the instant Petition on 03.03.2014 , when the same came-up before the Court on 27.03.2014 , then, notices were issued to the Respondents Nos,2 to 7 and learned A.A.G. On service , learned A.A.G. filed `para-wise comments' on behalf of official Respondents Nos,4 to 7. The private Respondents however , remained un-served. Finally , on 16.05.2017 , private Respondents were ordered to be served through all modes of service including `Publication ' for 30.05.2017 . Despite, isinance of notices by all modes including Publication , the private Respondents however , in their own wisdom either failed and/or otherwise, avoided to come forward and contest the Petition in hand. On 30.05.2017 , service, nonetheless, was ` held good' upon the private Respondents herein. 14. Lastly , on 17.10.2018 , when the above Petition came-up before this bench [by that time one Hon'able member of the earlier Bench was not available at Hyderabad Circuit Court due to change of roster ], as being a 'part-heard' matter then, learned counsel for the Petitioner who, only had argued this matter on 12.09.2018 , to some extent and learned A.A.G. who yet to begin/start his arguments, opted to argue this matter `afresh ' [before us as being treated to be a de-part heard' matter , as they wished/ wanted a 'swift disposal' of this case pending since, 03.03.2014]. 15. Under circumstances, white, arguing the matter afresh , Mr. Mashooque Ali Bhurgri, learned counsel for the Petitioner forcefully contended that this Court while, `SETTING-ASIDE' , the earlier order dated 16.08.201 1, by REMANDING the case vide Order dated 12.10.2012 , the learned Trial Court was directed to conduct proper investigation by an officer incharge viz-a-viz the alleged illegal 'dispossession ' of the Complainant lady viz. Suriya Kausar Qureshi and only thereafter , a 'proper speaking order' as directed by a single bench of this court was to be passed in accordance with law . 16. Moreover , in Order dated 12.10.2012 , regarding Petitioner's claim of 'ownership ' and 'possession ', it was observed that the Petitioner herein [who was Applicant in Cr. Rev. Appl. No,5-172 of 2011] since, is claiming 'ownership' and 'possession' of the subject property [Subject Bungalow], on the basis of `certain documents' as such, Petitioner be also heard and if, necessary he also be impleaded in 'Criminal I.D. Complaint No,37 of 2010' [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and 3 others ], as a party . Mr. Mashooque Ali Bhurgri, learned counsel for the Petitioner in view of the above, vehemently contended that the learned Trial Court, under such scenario, was not legally justified in permitting the 'withdrawal ' of the Criminal I.D. Complaint No,37 of 2010 vide the 'impugned order' dated 11.09.2013 and that too at the back of the Petitioner herein. Even otherwise, passing of the 'impugned order' without getting back the possession of the 'Subject Bungalow' having already been given/ handed over to the Complainant lady/ Respondent No,2 herein, under an Interim Order dated 12.10.2012 , passed by the learned trial Court on the Comp lainant's Application, filed under subsection [1] of Section 7 of Illegal Dispossession Act, 2005 [Act XI of 2005], as urged, is not only erroneous, contrary to law but also illegal, as such, the same is liable to be set-aside. 17. Mr. Mashooque Ali, next contended that the learned Trial Court , even did not take care of its' own order dated 06.02.2013 [Annexure 'D-2' to the MoP]. Elaborating his contention, Petitioner's counsel made reference to `Para- 10' of order dated 06.02.2013 and submitted that Trial Court itself, had observed that not only a prima facie case had been made out against Respondents/ accused No-[i] Dr. Mumtaz Chandio son of not known, [ii] Shoaib Chandio son of not known and [iii] Imtiaz Chandio son of not known but also against Muhammad Siddique [Petitioner herein] and one Ghulam Raza who, were also ordered to be joined / impleaded as accused in Criminal I.D. Complaint No,37 of 2010 [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chand io and others ] then pend before the trial Court. Moreover , under order 06.02.2013, the Complaint filed on 06.05.2010 by the Complainant lady/Respondent No,2 herein, was also `registered' and 'cognizance' of the case was taken against the newly added / joined accused persons as well. Besides, to ensure the attendance of accused persons by the trial Court, bailable warrants in the sum of Rs,50,000/- each with surety amount of the like amount were also then issued by the Court of IIIrd Additional Sessions Judge, Hyderabad. 18. From perusal of 'Order dated 06.02.2013' , it reveals that the Trial Court , not only taken cognizance of the offence but also keeping in view the alleged Sale of 'Subject Bungalow' bearing No,A-170 /100 admeasuring 100 Sq. Yards situated in Street No,6, Abdullah Town, Qasimabad, Hyde rabad, by Respondent No,2 herein/ Complainant lady to one AMEER ALI SHAH , further direction was issued to her i,e, the Complainant lady not to execute any Sale Deed in favour of the said AMEER ALI SHAH or otherwise, any 3rd party interest be
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created in respect of the Subject Bungalow . Besides, all parties concerned, were directed to 'maintain Status quo' in respect of the `Subject Bungalow' till 'final disposal' of the Criminal 1.D. Complaint No,37 of 2010 [Mst. Suriya Kausar Qureshi v. Dr. Mumtaz Chandio and others including the Petitioner viz. Muhammad Siddique and one Ghulam Raza ], filed by Complainant lady / Respondent No,2 herein. 19. Lastly , learned counsel for the Petitioner urged that Order dated 11.09.2013 whereby , the Criminal I.D. Complaint No,37 of 2010, was 'disposed of as withdrawn needs to be set-aside, as it has been passed in clear violation of Order dated 12.10.2012 [Annexure 'C' to the MoP], passed by a single bench of this Court in Cr. Rev. Appl: No, 172 of 2-011 [Muhammad Siddique v. IVth Additional Sessions Judge Hyderabad and others ], as well as, of trial Court's own order dated 06.02.2013 [Annexure 'D' to the MoP]. Per Mr. Mashooque Ali Bhurgri, the `impugned order' dated 11.09.2013, if, not set-aside then, of-course, the Petitioner herein shall be seriously prejudiced , inter alia for the obvious reason the trial Court has failed to retake / restore the possession of the Subject Bngalow having already been given/ handed over to the complaniant lady/Respondent No,2 herein, on the basis of an Interim Order dated 16.08.201 1, having passed by trial Court on an Application under section 7[1] of Illegal Dispossession Act, 2005 [Act XI of 2005 ], moved/filed in Criminal I.D. Complaint No,37 of 2010 by the Complainant lady/Respondent No,2 herein initially before the Court of IVth Additional Sessions Judge, Hyderabad. 20. On the other hand, Mr. Allah Bachayo Soomro, learned Additional Advocate General while, arguing the case referred to 'para-wise comments' of the official Respondents Nos, 4 to 7 and submitted that as per 'para-wise comments' of the SHO, P.S. Qasimabad , Hyderabad [Respondent No,4 herein ], the `Subject Bungalow' No,170/100, is situated within the jurisdiction of Police Station Nasim Nagar , as such, the joining of SHO, Police Station Qasimabad , Hyderabad/Respondent- No,4 herein, in the array of Respondents besides, being irrelevant also needs to be deleted if, `impugned order' is set-aside. Per learned A.A.G, no doubt, a dispute is going on between private parties not, only over the `possession' of the 'Subject Bungalow' , but also `over ownership' thereof. Nevertheless, as urged, by learned A.A.G, 'Official Respondents' do nothing / not concerned with such dispute at all until and unless law and order situat ion is created and / or otherwise, official Respondents are under legal obligation to render assistance/comply with the orders if any passed by Courts. Per A.A.G, the officer-in-charge of a Police Station if failed to render such assistance then, no doubt, he shall expose himself to mis-conduct for which the Court may direct departmental action against him. 21. Heard and perused the record. 22. Before proceeding further , we would like to refer to and reproduce therein, the 'substantive provisions' of Section 3 of Illegal Dispossession Act, 2005 [Act XI of 2005 ], which speak about the nature of offence and offender in the terms as below:- "3. Prevention of illegal possession of property , etc.---(1) No one shall enter into or upon any property to dispossess , grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property . (2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code." [Underlining is ours] 23. Manifestly , the aforesaid provisions of Section 3 of Illegal Dispossession Act, 2005 [Act XI of 2005 ], not only describe the offence but also offender and needless to say, clearly demonstrates that whoever commits the offence of Illegal Dispossession, as described under the Illegal Dispossession Act, 2005 [Act XI of 2005 ], against a lawful owner or…
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