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Official Citation: 2024 YLR 509
Court / Jurisdiction: Lahore High Court
Year of Decision: 2022
Decision Date: 2022-03-04
Parties: Maqsood Ahmad and others, Mst. Noor Bhari vs The State, etc., Murtaza, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2022-03-04, officially reported as 2024 YLR 509. In this matter between Maqsood Ahmad and others, Mst. Noor Bhari and The State, etc., Murtaza, etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 509
Court Name: Lahore High Court Judge(s): Aalia Neelum Title: Maqsood Ahmad and others, Mst. Noor Bhari vs The State, etc., Murtaza, etc Case No.: Crl. Appeal No.991 of 2012, Crl. Rev. No.949 of 2012, P.S.L.A. No.244 of 2012 Date of Judgment:2022-03-04 Reported As: 2022 LHC 2108, 2024 YLR 509 Result: Appeal dismissed
JUDGMENT
JUDGMENT AALIA NEELUM, J. The appellants-Maqsood Ahmad, Mumtaz Ahmad and Riaz Ahmad, all sons of Nazeer Ahmad, caste Joiya, residents of Khola Uttam Singh, District Pakpattan Sharif have assailed their conviction and sentence recorded by the learned Addl. Sessions Judge, District Pakpattan vide judgment dated 03.05.2012 in private complaint filed under sections 302/148/149 PPC P.S. Saddar, District Pakpattan titled {{"Mst. Noor Bhari Vs. Maqsood Ahmad, etc"}}, whereby the learned trial court convicted the appellants-Maqsood Ahmad and Riaz Ahmad under section 302(b) PPC and appellant-Mumtaz Ahmad under section 302(b) PPC read with section 34 PPC and sentenced them to undergo imprisonment for life each with the direction to pay Rs.50,000/- each as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C and in case of default in payment thereof, they would further undergo 03-months S.I each. The benefit of section 382-B Cr.P.C was also extended in favour of the appellants. 2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction through filing instant appeal bearing Criminal Appeal No.991 of 2012. It is pertinent to mention here that the complainant also filed Crl. Rev. No.949/2012 qua enhancement of sentence awarded to the appellants and P.S.L.A. No.244/2012 against acquittal of co-accused Murtaza, Muhammad Yar, Naveed and Jahangir. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through consolidated judgment. 3. Briefly, the prosecution story as alleged in the private complaint (Ex.PB) of Mst. Noor Bhari (PW-1)- the complainant is that on 20.05.2010, she (PW-1) alongwith her sons namely Tahir Wazir (the deceased), Tariq Hussain (given up PW) and Mubarak Ali (PW-2) visited the shrine of Baba Farid
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Masood Ganj Shakar (R.A) Pakpattan Sharif. At 09:00 p.m, her son Tahir Wazir received a mobile call of Jahangir (co-accused since acquitted) and after listening the phone call, Tahir Wazir (the deceased) stated that he received call of Jahangir (co-accused since acquitted) and he called him for necessary work at Chak No.16/S.P and he left for Chak No.16/S.P on his motorcycle but he did not return after sufficient time, whereupon, they become worried about him and Mst. Noor Bhari (PW-1)-the complainant, Tariq Hussain (given up PW) and Mubarak Ali (PW-2) left for Chak No.16/S.P on a motorcycle. At about 12:00 a.m. (midnight), when they reached Qilla No.1 of square No.49 in the area of Chak No.16/S.P, they saw Maqsood Ahmad-the appellant No.1 armed with pistol 30-bore, Mumtaz Ahmad-the appellant No.2 armed with 12-bore carbine, Riaz Ahmad-the appellant No.3 armed with pistol 30-bore, Muhammad Yar (co-accused since acquitted) armed with pistol 30-bore, Muhammad Bashir armed with pistol 30-bore, Murtaza (co-accused since acquitted) armed with gun 12-bore, Naveed (co-accused since acquitted), Jahangir (co-accused since acquitted) alongwith one unknown persons were also present there, who were identified by the complainant and PWs in the light of motorcycle. The accused persons were encircling the son of complainant and also raising lalkaras that they would murder him for taking revenge of the murder of Yaseen. In their view, Maqsood Ahmad-the appellant No.1 caused two firearm injuries with his pistol 30-bore on the person of Tahir Wazir-the deceased hitting him on his left head and left cheek. Mumtaz Ahmad-the appellant No.2 fired with his 12-bore carbine hitting on the right arm of the deceased. Murtaza (co-accused since acquitted) caused two fire shots with his 12-bore gun towards the deceased hitting on right side of abdomen and right thigh of the deceased. Riaz (the appellant No.3) also made two fire shots with his pistol 30-bore, hitting the deceased on chest and ear at right side. Muhammad Yar (co-accused since acquitted) made fire with his pistol 30-bore, hitting on the back of the deceased. Bashir-accused fired twice with his pistol 30-bore, hitting on the right elbow and left chest of the deceased. Whereas, Naveed (co-accused since acquitted) and Jahangir (co-accused since acquitted) continued raising lalkara and accused persons on seeing the prosecution witnesses, left the place of occurrence alongwith their weapons. They attended Tahir Wazir, who succumbed to the injuries at the spot. 4. The motive behind the occurrence was that in the year 2003, brother of Maqsood, Riaz and Mumtaz (the appellants) namely Yaseen was murdered and case was registered against Tahir Wazir, Tariq Hussain and others, wherein Tariq Hussain was acquitted by the learned Addl. Sessions Judge and Tahir Wazeer was acquitted by the Hon'ble High Court, while after the acquittal of Tahir Wazeer, the complainant alongwith her sons had used to go to the shrine for fulfilling her "Mannat" and getting knowledge of the same, the accused persons, in collusion with Jahangir (co-accused since acquitted), called Tahir Wazeer and committed his murder. 5. The complainant Mst. Noor Bhari (PW-1) got recorded her statement (Ex.PA) before Muhammad Arshad S.I. (CW-8), who sent the same through Nadeem Sadiq 127/C to police station for registration of formal FIR. After registration of case, the investigation of this case was conducted by Muhammad Arshad S.I. (CW-8), who having found the accused/appellants guilty, prepared report under section 173 of Cr.P.C. Being dis-satisfied with the result of investigation, as the investigating officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file private complaint (Ex.PB) and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of offence, so they all were summoned to face the charge. Thereafter, the learned trial court formally charge sheeted the appellants on 01.02.2012 to which they pleaded not guilty and claimed trial. The complainant in support of its version produced as many as two (02) witnesses, whereas rest of the witnesses were produced by the prosecution as C.W-1 to C.W-9. The appellants were also examined in terms of Section 342 Cr.P.C., wherein they neither opted to appear as their own witness in terms of section 340(2) Cr.P.C., nor produced any defence evidence.
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6. The learned trial court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellants in the afore stated terms. 7. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file. 8. In the instant case, the incident took place on 21.05.2010 at 12:00 a.m (midnight) in the area of Chak No.16/S.P, square No.49/1, Qilla No.1, which falls within the jurisdiction of Police Station Saddar, District Pakpattan, which is at a distance of 06-kilometers from the place of occurrence, whereas FIR was got registered on 21.05.2010 at 01:00 a.m. (night) on the basis of " ( "Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant and mother of Tahir Wazir deceased, made on 21.05.2010 at 12:30 a.m. It is note-able that the occurrence took place at 12:00 a.m. (night) on 21.05.2010 and distance between the place of occurrence and police station was 06-kilometer, whereas Mst. Noor Bhari (PW-1)-the complainant reported the matter to police at 12:30 a.m. at Peer Ghani Road, in the area of Chak Bodla. Mst. Noor Bhari (PW-1)-the complainant submitted private complaint (Ex.PB) on 04.07.2011, after fourteen (14) months of the occurrence. Mst. Noor Bhari (PW-1)-the complainant alleged that police got her signature on the blank paper and her statement was not read over to her; the police in collusion with the accused persons spoiled the case of the prosecution. Muhammad Arshad S.I. (CW-8)-investigating officer admitted during cross-examination conducted by the complainant that he got thumb impression of the complainant on a blank paper and did not record her statement correctly. The contents of the complaint (Ex-PA) could not be considered as true. However, the version of Mst. Noor Bhari (PW-1)-the complainant came on the record after fourteen months from the date of occurrence. The statement made by Mst. Noor Bhari (PW-1)-the complainant before the Court on oath is an oral evidence and documents produced for the inspection before the Court are documentary evidence. The documents produced cannot be considered unless supported by oral evidence. The procedure for verification of the complaint through witnesses is only for the purpose of increasing its weightage. Soon after the occurrence, the version of Mst. Noor Bhari (PW-1)-the complainant did not come on the record. The one in the shape of " ( "Ex.PA) is disowned by Mst. Noor Bhari (PW-1)-the complainant. However, Mubarik Ali (PW-2)-the eye witness-brother of the deceased, admitted that his statement was recorded by Muhammad Arshad S.I. (CW-8)-investigating officer and he did not state that the same was also changed by the investigating officer. Mubarik Ali (PW-2)-the eye witness-brother of the deceased, deposed that, "My statement u/s 161 Cr.P.C. was recorded at 11:00 a.m. by the police at the police station. I had never visited the place of occurrence prior to the occurrence. The place of occurrence is situated between Chak No.16/S.P and Chak No.17/S.P.---------It was 01:30 p.m. when Lambardar told us the detail like Killa number etc. I went to call Lambardar." Mst. Noor Bhari (PW-1)-the complainant has not specifically deposed that when and where she reported the incident to the police. However, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during examination-in-chief that on 21.05.2010, he (CW-8) was posted at P.S. Saddar, Pakpattan. On that day, he (CW-8) was present at Peer Ghani Road in the area of Chak Bodla where Mst. Noor Bhari (PW-1)-complainant met him. Thereafter, he (CW-8) visited the place of occurrence, where the dead body of Tahir Pervaiz deceased was lying. This part of the deposition of Muhammad Arshad S.I. (CW-8)-the investigating officer has not been denied by the complainant during cross- examination conducted by complainant side on him (CW-8). However, he (CW-8)-the investigating officer deposed during cross examination conducted by the defence side that, "Chak Bodla is at a distance of 21/2 KMs from place of occurrence and same is the distance from place of occurrence." The entire prosecution evidence is silent on the point that with whom Mst. Noor Bhari (PW-1)-the complainant proceeded to police station for reporting the incident, when at Peer
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Ghani Road Chak Bodla, she (PW-1) met with Muhammad Arshad (CW-8)-the investigating officer. Even, Muhammad Arshad S.I. (CW-8)-the investigating officer has not deposed that after recording of "Fard Biyan" (Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant, the complainant (PW-1) also accompanied him to the place of occurrence. Rather, during cross-examination, he (CW-8)-the investigating officer deposed that when he reached about 01:00 a.m. (night) at the place of occurrence, the complainant and PWs were present there. During cross examination conducted by the complainant side, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed that, "I reached on the spot at about 01:00 a.m. (night). When I reached at the place of occurrence, the complainant and PWs were already present there." Mst. Noor Bhari (PW-1)-the complainant during cross-examination deposed that, "The case was registered in the next morning and we mentioned the details like Killa Number etc. We were at the place of occurrence when the Thanedar came there and recorded my statement at 02:00/02:30 night." From the deposition of Mst. Noor Bhari (PW-1)-the complainant and Mubarik Ali (PW-2)-the eye witness, mother and brother of the deceased-Tahir Wazeer respectively, it reveals that witnesses of ocular account were chance witnesses. Even, Muhammad Arshad S.I. (CW-8)-the investigating officer deposed during cross examination that, "I have recorded the statement of Abdul Ghaffar son Kareem Bakhsh of village Kholla Uttam Singh and he stated that Noor Bhari and her son Babar Ali were present in their village and she said that her deceased son was not available. I do not know the reality of the narration, but as it was stated before me, I recorded it." All this raises grave doubts about the authenticity of the prosecution version and presence of the witnesses as the place of occurrence. 9. As per prosecution story narrated in the private complaint (Ex.PB), Mst. Noor Bhari (PW-1)-the complainant alongwith her sons namely Tahir Wazir, Tariq Hussain and Mubarak Ali visited the shrine of Baba Farid Masood Ganj Shakar (R.A) Pakpattan Sharif at 09:00 p.m. on 20.05.2010. At about 09:00 p.m, her son Tahir Wazir received a mobile call of Jahangir (co-accused since acquitted) and after listening, he informed her that Jahangir (co-accused since acquitted) made call for necessary work at Chak No.16/S.P and he left for Chak No.16/S.P on his motorcycle but he did not return after sufficient time, whereupon, they became worried about him and Mst. Noor Bhari (PW-1)-the complainant, Tariq Hussain (given up PW) and Mubarak Ali (PW-2) left for Chak No.16/S.P on a motorcycle. At about 12:00 a.m. (midnight), when they reached Qilla No.1 of square No.49 in the area of Chak No.16/S.P, they saw Maqsood Ahmad-the appellant No.1 armed with pistol 30-bore, Mumtaz Ahmad-the appellant No.2 armed with 12-bore carbine, Riaz Ahmad-the appellant No.3 armed with pistol 30-bore, Muhammad Yar (co-accused since acquitted) armed with pistol 30-bore, Muhammad Bashir armed with pistol 30-bore, Murtaza (co-accused since acquitted) armed with gun 12-bore, Naveed (co-accused since acquitted), Jahangir (co-accused since acquitted) alongwith one unknown persons were also present there, who were found present by the complainant and PWs in the light of motorcycle. Mst. Noor Bhari (PW-1)-the complainant and Mubarik Ali (PW-2)-the eye witness attributed specific roles to the accused persons named in the private complaint (Ex.PB). As per prosecution case, Maqsood Ahmad-the appellant No.1 caused two firearm injuries with his pistol 30-bore on the person of Tahir Wazir-the deceased hitting him on his left side of head and at left cheek. Mumtaz Ahmad-the appellant No.2 fired with his 12-bore carbine hitting on the right arm of the deceased. Murtaza (co-accused since acquitted) caused two fire shots with his 12-bore gun towards the deceased hitting on right side of abdomen and right thigh of the deceased. Riaz (the appellant No.3) also made two fire shots with his pistol 30-bore, hitting the deceased on chest and ear at right side. Muhammad Yar (co-accused since acquitted) made fire with his pistol 30-bore, hitting on the back of the deceased. Bashir-accused fired twice with his pistol 30-bore, hitting on the right elbow and left chest of the deceased. Whereas, Naveed (co-accused since acquitted) and Jahangir (co-accused since acquitted) continued raising
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lalkara and accused persons on seeing the prosecution witnesses i.e. PW-1 & PW-2, left the place of occurrence alongwith their weapons. Mst. Noor Bhari (PW-1)-the complainant deposed during examination in chief that the police got her thumb impression on a blank paper and her statement (Ex.PA) was not read over to her by the investigating officer. Although, Mst. Noor Bhari (PW-1)-the complainant denied the contents of " J" (Ex.PA) as her correct version. But on her pointing Ghulam Mustafa (CW-7)-Draftsman prepared the scaled site plans (Ex.CW-7/A and Ex.CW-7/B). Ghulam Mustafa (CW-7)-Draftsman, visited the place of occurrence on 23-05-2010 and on the pointing of the prosecution witnesses he (CW-7) prepared the scaled site plans (Ex.CW-7/A and Ex.CW-7/B). It was written at the bottom of scaled site plans (Ex.CW-7/A and Ex.CW-7/B) as under:- " 2010/523: " The scaled site plans (Ex.CW-7/A and Ex.CW-7/B) were prepared on the instructions of Mst. Noor Bhari (PW-1)-the complainant and witnesses. Ghulam Mustafa (CW-7)-Draftsman deposed during cross-examination conducted by the complainant side as under:- "It is incorrect that I did not prepare the site plans properly as pointed out by the complainant and PWs. It is incorrect that I deliberately missed some details narrated by the PWs and complainant to me at the time of my inspection." During cross-examination the complainant has not brought on the record the specific details narrated by the PWs to Ghulam Mustafa (CW-7)-Draftsman, which were not mentioned in the scaled site plans (Ex.CW-7/A and Ex.CW-7/B) by Ghulam Mustafa (CW-7)- Draftsman. However, Ghulam Mustafa (CW-7)-Draftsma n, deposed during cross-examination conducted by the defence as under:- "It is correct that the PWs had not disclosed to me any source of identification at the time of occurrence and as such I have not mentioned the same in the scaled site plans.---------- It is also correct that the PWs had not disclosed the specific attribution of injury to any individual accused and as such I have not mentioned the same in the site plans. It is correct that the PWs had not disclosed about the presence of any motorcycle at the place of occurrence and as such I have not mentioned its presence in the site plans." On the other hand, Mubarik Ali (PW-2)-the eye witness has not deposed a single word that he had not got recorded his statement to the investigating officer (CW-8) whereas in Court statement Mubarak Ali (PW-2)-the eye witness, has improved his versions of what he has stated at first instance. The defence brought contradictions of material prosecution witness on record. Mubarak Ali (PW-2)-the eye witness deposed during his cross-examination as under:- "I had mentioned in my police statement that when we were present at the said Darbar, a telephonic message of Jahangir accused was received by Tahir Wazeer deceased and he told us that he was going to Chak No.16/S.P on summoning of Jahangir accused in connection with an urgent piece of work. Confronted with Ex.D-A, wherein it is not recorded, however, it is mentioned that the deceased had told that a friend of his had summoned him in Chak No.16/SP. It is incorrect that I have improved my statement regarding the summoning of deceased on telephone by Jahangir accused. It is incorrect that I have false statement in this respect at the trial to involve Jahangir accused in this case. I had mentioned the time of occurrence as 12:00 midnight in my police station. Confronted with Ex.D-A, where the time of occurrence is not recorded at all. I had mentioned in my police statement that I, Mst. Noor Bhari and Tariq Hussain PW left for Chak No.16/SP on a motorcycle. Confronted with Ex.D-A, wherein no motorcycle is mentioned in this context. I had mentioned in my police statement that we had identified the accused persons in the light of our motorcycle. Confronted with Ex.D-A, wherein it is not so recorded. I had mentioned in my police statement that Riaz accused also fired twice hitting the deceased on his right chest and right ear, Muhammad Yar accused fired which hit on the back of deceased, Basheer accused fired twice which hit on the right elbow and left chest of the
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deceased, while Naveed, Jahangir and one unknown accused continued raising Lalkaras. Confronted with Ex.D-A, wherein it is not so recorded. It is incorrect that I had got recorded in my statement Ex.D-A that Riaz Ahmed, Muhammad Yar and Muhammad Basheer fired with their pistols, which hit on the different parts of the body of Tahir Wazeer deceased. Confronted with Ex.D-A, wherein it is so recorded. It is incorrect that I have made the above referred dishonest improvements to involve innocent persons in this false case." From statement (Ex.DA) of Mubarak Ali (PW-2)-the eye witness, it reveals that same is in line with the contents of " ( "Ex.PA) of Mst. Noor Bhari (PW-1)-the complainant. The defence brought contradictions of material prosecution witness on record. Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "I had mentioned in my statement Ex.P-A that I, Tariq Hussain and Mubarik Ali PWs left for Chak No.16/SP on a motorcycle. Confronted with Ex.P-A, wherein it is not recorded that they had gone on the motorcycle. I had also mentioned in my statement Ex.P-A that we reached Killa No.1 of Square No.49 at about 12:00 midnight. Confronted with Ex.P-A where no such time is recorded. I had not mentioned in my statement Ex.P-A that two unknown persons were with Maqsood Ahmed accused etc at the time of occurrence. Confronted with Ex.P-A, wherein it is so recorded. I had mentioned in my statement Ex.P-A that we had identified the accused persons in the light of the motorcycle. Confronted with Ex.P-A, wherein it is not so recorded. I had mentioned in my statement Ex.P-A that Maqsood Ahmed, Mumtaz and Riaz Ahmed had hired Basheer Ahmad etc, the remaining accused persons, for the murder of my son Tahir Wazeer deceased. Confronted with Ex.P-A, wherein it is not so recorded. I had mentioned in my statement Ex.P-A that a telephonic message of Jahangir accused was received by my son Tahir Wazeer deceased and thereafter the deceased told me that he was going to Chak No.16/SP, because Jahangir accused had called him there for some urgent work. Confronted with Ex.P-A, wherein it is not so recorded, however, it is mentioned that at about 09:00 p.m my son Tahir Wazeer told me that a friend of his had called him in Chak No.16/SP and he was going to see him.--------I had mentioned in my statement Ex.P-A that Riaz accused also fired twice, hitting the deceased on his chest, right ear and right chest. Confronted with Ex.P-A, wherein it is not so recorded. I had also mentioned in Ex.P-A that Muhammad Yar accused fired, which hit on the back of deceased. Confronted with Ex.P-A, wherein it is not so recorded. I had also mentioned in my statement Ex.P-A that Basheer Ahmed accused fired twice which hit on the right elbow and left chest of the deceased. Confronted with Ex.P-A, wherein it is not so recorded, however, it is mentioned that Riaz Ahmed, Muhammad Yar and Basheer accused made fires with their pistols, which hit on the different parts of the body of Tahir Wazeer. It incorrect that I have dishonestly made improvements regarding the attribution of specific injuries to the deceased at the hands of Riaz, Muhammad Yar and Basheer Ahmed accused persons. ----------I had mentioned in Ex.P-A that we had been come to the shrine of Hazrat Baba Fareed-ud-Din Ganj Shakar (R.A) to perform the "Mannat" on each Thursday. Confronted with Ex.P-A, wherein it is not so recorded." On the basis of discussion made above the prosecution witnesses cannot pass test of trustworthiness and truthfulness. These facts, raise grave doubt about the authenticity of the prosecution version qua the involvement of the appellants in the crime. 10. Learned Counsel for the appellants laid great stress on the circumstance that it was a dark night and occurrence took place at about 12:00 a.m. (night) and in absence of source of light the assailants could not be identified at the relevant time. Mst. Noor Bhari (PW-1)- the complainant deposed that in the light of motorcycle they witnessed the occurrence. Whereas, Ghulam Mustafa (CW-7)-draftsman deposed during cross-examination that:- "It is correct that the PWs had not disclosed to me any source of identification at the time of occurrence and as such I have not mentioned the same in the scaled site plans.-----It is correct
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that the PWs had not disclosed about the presence of any motorcycle at the place of occurrence and as such I have not mentioned its presence in the site plans." Mubarak Ali (PW-2)-the eye witness deposed during his cross-examination as under:- "I had mentioned in my police statement that I, Mst. Noor Bhari and Tariq Hussain PW left for Chak No.16/SP on a motorcycle. Confronted with Ex.D-A, wherein no motorcycle is mentioned in this context. I had mentioned in my police statement that we had identified the accused persons in the light of our motorcycle. Confronted with Ex.D-A, wherein it is not so recorded." Mst. Noor Bhari (PW-1)-the complainant deposed during her cross-examination as under:- "I had mentioned in my statement Ex.P-A that I, Tariq…
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