Habeas Corpus in Pakistan ; What you need to know! Daily Legal Advice Series 9

 The law of Habeas Corpus in Pakistan is governed by Section 491 Code of Criminal Procedure, 1898 which gives any High Court of Pakistan, the ower to issue directions of the nature of a Habeas Corpus.

As per the wordings of the section, Any High Court may, whenever it thinks fit, direct:

(a)       that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law:

(b)       that a person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c)       that a prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d)       that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively.

(e)       that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f)        that the body of defendant within such limits be brought in on the Sheriff’s return of cepi corpus to a writ of attachment.

(2)       The High Court may, from time to time, frame rules to regulate the procedure in the cases under this section.

(3)       Nothing in this section applies to persons detained under any other law providing for preventive detention.

Below are some cases illustrating instances of the use and application of the Habeas Corpus Petitions ;

  1. Arrest was not recorded in daily dairy of the police:- Arrest of detention of the detenu, not recorded in daily dairy of the police post. or in any other record such as register of FIR-Detenu was summoned verbally and no written process was issued as required by Cr. P. C. ASI concerned violating Police Rules as well as provision of the Cr. P. C. by detaining the detenu – Held: Since no case is registered against detenu, he is released and set at liberty. 1999 P.Cr.R. 619
  2. Cercieve action by authority:- Collective process for recovery of arrears of income tax cannot be adopted by respondent in first instance and proper course would be to take over land and sell produce–Detention measure is last course to be adopted. PLJ 2000 Cr.C. (Lahore) 848 1993 MLD 1031 rel.
  3. Conduct of Police:- Lodging of FIR against public and abetter–According to statement of detenue, he was taken into custody by A.S.I. from his house–Thereafter, he was detained in illegal confinement for eight days without any basis, case, FIR or any other legal material–He was never produced before any Magistrate–No report was entered in daily diary register of P.S., no “Hukam-nama-Talbi” was also shown to bailiff or produced before High Court about arrest of detenue–Held : conduct of police officials amounts to commission of offence u/S. 365/342 PPC–Petition accepted let case be registered- PLJ 2000 Cr.C. (Lahore) 660
  4. Connection of detenue with the commission of offence:- Police is competent and has authority to take into custody any person U/S. 54 Cr.P.C. but there must be some evidence to connect person with commission of offence–Admittedly there is not iota of evidence against alleged detenue from 2.5.2000 till 18.5.2000 when investigation stood completed and challan was ordered to be submitted in Court–Merely on basis of application moved on 22.7.2000 evidence has been created in the form of statements to make out case against alleged detenue–This act of I.0 is highly regrettable–Held:Involvement of detenue is maneuvered one–Detention is declared illegal and he is set at liberty–Petition accepted. 2000 Lahore 2362
  5. Custody of minors:- Any arrangement or agreement in between spouses does not in any manner bind minor or his custody is to be decided by determining welfare of minor–Evidence is necessary and same can be done by Guardian Court–Minor is with father since last one year– Case is not of emergency–Petitioner may move guardian court. PLJ 2001 Cr.C. (Lahore) 678 High Court asked particularly from detenu regarding his own wish to remain with her father or with her mother–She replied positively that she wants to remain with her father–Court not inclined to exercise discretion in favour of petitioner as petitioner filed petition malafide, therefore, it did not remain of right and petitioner has alternative remedy under normal law of land–Held : Petitioner is at liberty to file application for her custody before Guardian Judge under law–Petition dismissed. PLJ 1998 Cr. C. (Lahore) 299 Minor was born on 26.8.1996–She was with mother till 24.7.1999 when she was arrested on basis of a FIR lodged by father of minor–Petitioner was bailed out on 25.7.1999 and asked respondent to hand over minor to her but he refused and since then minor is with father/respondent–Had there been no criminal case against petitioner, custody would have been with her–After her bail, respondent should have returned custody of child to mother and for assertion of his right, he should move Court of Guardian Judge which is proper forum–Interim custody of minor was given to petitionermother–She was directed to allow respondent to see his minor daughter every week–Petition allowed. PLJ 2000 Cr.C. (Lahore) 259 Minors were aged 1-1/2 years and seven months old and according to law right of “Hazanat” lay with the mother (petitioner) who was entitled to keep her daughter at least up to her attaining the age of puberty and her son up to the age of at least seven years— As far as the welfare of the minors was concerned, respondent (father) could approach the Guardians Court having jurisdiction for the final custody of the children— Since presently the minors were in the custody of the respondent who was their father, their temporary custody was given to the petitioner, their mother- Entitlement to custody of the minors on regular basis of the parties would depend upon the adjudication by the Guardian judge in accordance with law. PLD 2003 Kar. 54 Custody of minors claimed on the ground that respondent/father had forcibly taken them away from lawful custody, of petitioner/respondent–High Court under S. 491 Cr.P.C. was only concerned with fact= of allegations levelled against respondent that he had removed custody of children unlawfully and that their custody be handed over to petitioner/mother of minors–Minors being of tender age, mother was entitled to their custody–Court under Section 491 Cr.P.C. can hand over custody of minor children to mother in such like circumstances–Custody of children ws handed over to petitioner with the direction to her to arrange for the meeting of children with respondent if he wishes to meet them in the office of counsel for petitioner on every Saturday and they would remain with respondent for 24 hours and thereafter they would be handed back at the residence of petitioner–Such temporary arrangement has been made till final decision by Guardian Judge–Guardian Judge would decide such petition in accordance with law within shortest possible time un-influenced by observations made in present order. PLJ 2002 Lahore 309 Petitioner is real mother of minors, while Respondents Nos. 1 and 2 are strangers to them–Petitioner was arrested in murder case of her own husband and she was sent behind bars, since then, minor children are away from her, but during that period paternal grand mother of minors was alive who was appointed guardian by Court and she had preferential right because mother that contracted a second marriage but now that old lady has died and minors are now legal heirs of property of their paternal grand mother and live with respondents who had not blood relation with them–They have no right to keep custody of minors in any manner–Though mother had married second husband yet minors are product of her womb and mother even if a butcher cannot kill her own children–High Court can exercise jurisdiction u/S. 491 Cr. P.C. without prejudice to right of parties to have matter finally adjudicated upon by Guardian judge–Cutody of minors handed over to petitioner till adjudication, if pending or filed by any of parties before Guardian Judge–Petition allowed. PLJ 2000 Cr.C. (Lahore) 443 Petitioner (mother) demanding the immediate custody of her said son-Question whether the father was properly maintaining the son and also what was in the welfare of the minor-Held that: Such facts and a few others required thorough evidence to be recorded pros and cons-This could be done before a Guardian Court.1994 PLR 300 Absolute authority for determination of final custody of minor vests in a court of Guardian and Wards Act, which will finally decide case of minor, although a High Court enjoys parental jurisdiction in respect of minors and keeps into consideration relevant law governing minors–Wording of Section 491 Cr.P.C. shows that a High Court can exercise jurisdiction for issuing directions in nature of Habeas Corpus only–Respondents who were natural parents had not only handed over custody of their minor child to uncle and aunt of child, but father of child got appointed in court of Guardian Judge, his brother, appellant, as guardian of child—In these circumstances, it cannot legitimately be said that child, although in custody his foster parents, was in unlawful custody of her uncle, to attract provisions contained in S. 491 Cr.P.C. order of Guardian Judge about appointment ,of appellant No. 1 as guardian of minor was binding on parties till it was set aside–High Court could not have directed custody of said minor being removed from person legally appointed as guardian. PLJ 1998 SC 11 Normal remedy for a person from whose custody child has been removed is to make a petition under Section 25 of Guardian and Wards Act and to seek interim custody under Section 12 of same Act but in the instant case minor is in custody of her mother since the time of her birth and presently she is about nine years of age and there is no allegation that minor has been removed from custody of petitioner–In these circumstances custody of minor is neither illegal nor improper–Therefore, provisions contained under Section 491 Cr.P.C. are not attracted to facts and circumstances of present case—As for as apprehension of petitioner about removal of minor from country, suffice it to say that efficacious remedy is provided under Section 12 of Guardian and Wards Act and Court is competent under that Act to order for interim custody of minor–Controversial question of fact cannot be decided by High Court while exercising powers under Section 491 Cr.P.C.–Petition dismissed. PLJ 2001 Cr.C. (Lahore) 1169 The main anxiety of a Court in such matters is to put the minor in custody of the person who is entitled to such custody keeping in view the Muslim Law on the subject and welfare of the minor-No doubt ultimately the order of the Family Court would hold the field irrespective of the fact what order has been passed u/S. 491 Cr. P. C. Further held: That there is no illegality in dealing with the question of custody of a minor u/S. 491 Cr. P. C. if such minor is in illegal or unlawful-custody. PSC (Crl.) 1997 SC (Pak) 839 Petitioner is entitled to custody of children as she is real mother and she is ready and willing to reside with children in her own house at Multan–In this way study of children could be continued at Multan–Custody of minors is handed over to petitioner–However, Respondent (husband) can take children and keep them at Multan instead of Khanewal in his house weekly from 12.00 noon Friday to 12.00 noon Sunday–This temporary arrangement will continue unless application filed before Guardian Judge is decided. PLJ 2003 Cr.C. (Lahore) 482 Respondent does not want to hand over custody of minors to petitioner–As welfare of the minors is involved, petitioner may approach Guardianship court for interim and final custody of minors–Children have been produced in court by respondent and petitioners has met her children–This obviously shows that children are not in wrongful confinement. PLJ 1996 Cr.C. (Karachi) 1493
  6. Habeas corpus:- Detenus (petitioner) was recovered by bailiff and produced before High Court–Admittedly petitioner was never arrested as accused nor he was produced before any Magistrate and was being kept in police lockup in an illegal manner–Petitioner was in police lock up for the last five days–Police officials present in Court could not rebut such fact on record and instead conceded illegal confinement of petitioner in Police lock-up–S.H.O as well as Moharrir of police station having immediate custody of petitioner had committed criminal offence–Petitioner has also complained against S.H.O. of physical torture and sustaining of ineuries in police custody–Senior Superintendent of Police was directed to register case against S.H.0 and Moharrir of Police Station being responsible for keeping petitioner in illegal custody in police lock-up for causing torture and additionally he would also proceed against them departmentally for misuse of powers and misconduct–Petitioner was set at liberty fortwith, who would appear before Medical Superintendent, concerned for his medical examination, report whereof, would be sent to S.S.P by Medical Superintendent concerned–S.S.P. would submit compliance report to Additional Registrar of High Court within 10 days. PLJ 2000 Cr.C. (Lahore) 1454 No case stood registered against detenu—No case diary produced before bailiff, at time of raid–Facts and circumstances indicate that detenu was with police since 25.6.1998 in case FIR No. 317 only on suspicion of complainant–SHO states that no recovery was effected from detenu–No valid reason given in remand order by Judicial Magistrate–Held : Detention is unlawful–5HO is directed to submit explanation why he should not be punished u/S. 343 PPC for keeping detenu in wrongful confinement–Detenu set at liberty. PLJ 1998 Cr.C. (Lahore) 1571 Report of bailiff showed that there was no case registered against detenus and detenus complained of physical torture by police– Where bailiff found no case registered against detenus, their arrest was illegal–Detenus were set at liberty–Bailiff was directed to get medical examination of detenus and if injuries were found on their persons, detenus would have a right to file complaint or to get a case registered against responsible Police Officers. PLJ 2000 Cr.C. (Lahore) 1247 Conducted by bailiff in habeas corpus proceedings, had depicted extreme highhandedness towards bailiff of court and resorted to threats as well as intimidatory behaviour to bailiff during habeas corpus proceedings Said police official practically and physically detained bailiff for four hours in reporting room of police station and also passed certain derogatory remarks towards the court during raid conducted by bailiff – Police official did not contest show cause notice issued to him, but asked for unconditional apology and put himself at mercy of court with explanation that he had thirty nine years’ police service to his credit – Official had acted in a manner which amounted to bringing authority of court into disrespect and disrepute and obstructing process of the court – Bailiff when deputed to recover a detenu exercising powers under S. 491, Cr. P. C. or under Art 199 of constitution of Pakistan 1973) acted as a representative of High court – Contempt of court committed by police official could not be treated lightly despite his long service of thirty-nine years Said official after such a longs service should have been more careful instead of what he had matter sentenced the official to one month and a fine of Rs. 5,000. 2000 P.Cr.L.J 1016 Although a case under Article 10 of Offence of Zina Enforcement of Hudood Ord. VII of 1979 has been registered against accused persons, but Mst. S was detained in Police Station during relevant nights by SHO in violation of S. 167 Cr.P.C.–Practice to make accused persons sit in Police Station without showing their arrest in case diary and daily diary is adopting for following reasons:(i)To get more time than 14 days for investigation.(ii)To grab money as illegal gratification from accused as well as complainant according to gravity of case.(iii) In some cases extra judicial killings are made.(iv) To avoid maintenance of rule of law.All what happens in a Police Station is to be entered in Daily Diary, even arrival of Police Officers of same police station and that of other Police Station–Inefficient and corrupt Police Officer, are not only bringing bad name to Police Deptt. but are also creating bad practice in social set up- There was no necessity to retain Mst. S in Police Station after recovery of both female abductees–D.I.G. was directed to avoid repetition of such type of recalcitrant and illegal attitude of respondent. PLJ 2000 Cr.C. (Lahore) 7
  7. Handing over girl to police not warranted by law:- Father making F.I.R. alleging abduction of his daughter by some named persons. High Court without recording girl’s statement whether she was major or minor handing over girl’s custody to police for further investigation. Girl not being an accused held, could not be handed over to the police custody. Procedure of High Court not warranted by any provision of Criminal Procedure Code or any other law. Supreme Court recorded girl’s statement and on her statement that she was major, and married to M, and wished to go with M. set girl at liberty and allowed her to go with M. 1973 SCMR 351
  8. Illegal detention and maltreatment by in laws:- Statement of detenue reveals that she has been illegally confined/detained by respondents who have been beating and maltreating her–Petition accepted and detenue allowed to go with her mother–Respondent No. 1 shall hand over suckling baby, aged about one year to detenue (mother) immediately for the time being. PLJ 1998 Peshawar 237
  9. Illegal Detention:- Concerned official has failed to satisfy Court as to why tenant/detenu was arrested and why recovery proceedings were not initiated against owners of land–Held : No person other than owner of his land would be liable to pay agricultural income tax in his life time–Tenant of land cannot be held liable to pay said tax in default–It would mean “–Equality of citizen before law and in law and their right to be treated equally in accordance with law emphasized–Habeas corpus petition allowed and arrest and detention of detenue is declared illegal and without lawful authority-. PLJ 2000 Cr.C. (Lahore) 848 Detenu was not the accused of any criminal case and the house wherein he along with others was alleged to have been seen by the Police Officer was neither owned nor possessed by him and, as such, there was a no occasion for him to hide himself there – Detenu,, thus, was not liable under S. 216, PPC on the basis of which he was stated to have been arrested-Police appeared to have arrested the detenu to put pressure’ upon him for the production of his son who was involved in a criminal case, although he could not be held liable for the crime committed by his son-Detenu was set at liberty in circumstances. 1999 Cr. L. J. 347 Detenu was recovered from quarter of driver of police station–No entry with regard to arrest of detenu was made in Station Diary–Name of detenu does not appear in FIR—Report of SHO to link detenu with crime is afterthought–Detenu set at liberty. PLJ 2001 Cr.C. (Karachi) 223 Detenu was loanee of Bank and arrested u/Ss. 81 and 83 of Land Revenue Act–Liberty of person is most valuable right guaranteed by constitution is to be jealously guarded–Respondents have violated provisions of law and notices u/Ss. 81(5) and 82 of Land Revenue Act have been issued mechanically only to hoodwink spirit of law–Detention order passed by collector to confine detenu in jail for 30 days is set-asirie–Detenu be released if not required in any other case. PLJ 2001 Cr.C. (Lahore) 1257 The detenus were labourers by profession and were working as such in the brick-kiln-Bounded labour – Guide lines and directions given by the Supreme Court reported in PLD 1990 SC 513-Held: This petition in the nature of Habeas Corpus is accepted-The detenus are set at liberty. KLR 1996 Cr. C 12.
  10. Jurisdiction of Guardian Court:- Parties had separated on 1-9-1999 after the petitioner (wife) was divorced by the respondent (husband) and thereafter, even according to the petitioner, due to some mutual agreement or arrangement between them the minor had been handed over to the respondent – Evidence in circumstances was necessary to determine the welfare of the minor which could better be recorded by the Guardian Court -Section 491. Cr. P. C. was not meant to pre-empt the jurisdiction of Guardian Court if, however, the child had been forcibly taken away or retained by the father or any one else which could be hazardous to the minor then the custody would be handed over to the mother who had the first right to custody – Child was with the father since 1-9-1999 and the case being not of emergency it was not appropriate to invoke the jurisdiction under S.491, Cr. P. C. PLD 2001 Lah.347
  11. Kidnapping of minors by father after death of mother:- In matter of custody of minors, welfare of minors is paramount consideration–In absence of mother, maternal grand mother has preferential right of immediate custody than father–Custody of minors with father is not proper and it is prima facie against law when their maternal grand mother is alive–Matter of immediate custody of minors should be settled promptly and for this purpose jurisdiction of H/court can be invoked through habeas petition–Minors handed over to grand maternal mother (petitioner)–Respondent was asked to seek his remedy for custody of his minor children before court. of competent jurisdiction–Petition allowed. PLJ 1998 Cr. C. (Lahore) 1215
  12. Mala-fide of Police Officials:- High Court after having found that report of arrest of detenu under S.55, Cr. P. C. as mala – fide, directed to transfer the officials, responsible for the illegal detention, to Police Lines and to conduct inquiry against the officials – Contention of the accused officials was that the observations of High Court might prejudice the inquiry – Police Officer who had to conduct inquiry would conduct the same independently and would submit his report to the High Court S.C. directed that in case the Inquiry Officer would find the accused officials not involved in the matter, the officer could make recommendation to the High Court that the order for keeping the officials in Police Lines might be withdrawn – Petition was disposed of accordingly. 2002 SCMR 1819
  13. Minor Children in father’s custody:- In petition u/S. 491 Cr. P. C. it was held that the minors were not in wrongful confinement. Petitioner-mother   may   approach   the Guardianship Court. PLJ 1996 Cr. C (Kar.) 1493
  14. Offence of Zina:- High Court only allowed MSt. “S” to reside with person of her choice and not finally settled bona fide of marriage of parties – Held further: Order of High court was neither a certificate of acknowledgment of marriage nor its repudiation and thus order thus itself cannot stand in way of taking cognizance of alleged offence of zina of found established by tangible evidence. (SHO ordered to take cognizance and proceed under law in case report in made in alleged offence of zina. KLR 1985 Cr. C 196
  15. Official Secrets Act:- Civilian detained for an offence under Officer Secrets Act (1923)—Military custody under Pakistan Army Act (1952) as applicable in Azad Kashmir-Ss. 2 (d) and 59 of the Act as amended in Pakistan not applicable in Azad Kashmir-Definition of “Commanding Officer” remaining unchanged—Detention being illegal, set aside—Held also that eight days could hardly be available for committal of a civilian to Military custody under S. 73 r/w S. 75, Army Act (1952). P L J 1980 Cr. C. (AK) 175
  16. Order of custody was binding un-till set aside:- In the instant case the facts were peculiar in their nature-Held that: Here was the case where the natural parents had not only handed over the custody of their minor child to be Uncle and Aunt of the child but the father of the child had even got appointed in the Court of Guardian Judge his brother as guardian of the child-Further held: That in the circumstances it could not legitimately said that the child though in custody of the foster parents was in unlawful custody of her uncle-To attract the provisions contained in S. 491 of Cr. C.P.-The order of custody of the minor was binding till the same was set aside-Further held: That the learned High Court could not have directed custody of said minor although such custody was being given to the natural parents. PSC (Crl.)1997 SC (Pak.) 645
  17. Person:- Word ‘person’, held, does not include animal. High Court, held, could pass order if any person is illegality or improperly detained. 1985 P. Cr. L J 149
  18. Proceedings of summary nature:- Power of High Court under Section 491 Cr.P.C. is limited and normally High Court does not embark upon an inquiry or investigation with regard to disputed facts–When a competent authority states that a certain person has been detained under statutory provision of law or under some substantive offence i.e. a penal law, then High Court cannot question validity or invalidity of such detention–For redress of such a grievance an alternate and adequate remedy is provided by law and forums are created–In view of this, contention of learned counsel for applicant that action for wrongful detention of detenue may be taken by High Court is misconceived–Consequently application merits no consideration and it is dismissed accordingly. PLJ 2000 Cr.C. (Karachi) 714 Court can require detaining authority to lay before it record on basis of which detention has been ordered subject to valid claim of privilege. Even privileged record can be inspected though not be made public—Proceedings may not continue after release of detenu except in certain circumstances. Court to satisfy itself that detention is not contrary to law. Relevant considerations: purpose of detention and circumstances entailing order of detention. Court to satisfy itself also that detaining authority applied its mind honestly and based satisfaction on reasonable grounds —Standard of reasonableness is that of ordinary, prudent and reasonable person —Court cannot sit in appeal over executive authority. If view taken by detaining authority is possible in spite of possibility of another view; no interference is to be effected. PLJ 1980 Lahore 180
  19. Recovery of minors from custody of father:- Provisions of Section 491 Cr.P.C. do not run counter to provisions of section 25 of Guardian and Wards Act and grant of refusal of custody of minors to applicant under Section 491 Cr.P.C. is always temporary and shall subject to elaborate decision by Guardian Court–Respondent No. 1 is at liberty to approach appropriate forum as it is only Guardian Court, who is competent to probe in depth on basis of evidence of parties and to decide about welfare of minors–Held : Till such time custody of three minor daughters shall remain with petitioner, mother–Petition accepted. PLJ 1998 Cr. C. (Lahore) 346
  20. Recovery of wife:- Factum of marriage has not been denied-No charge of kidnapping-Held: High Court can inclined to allow this petition and permit the alleged detenu in this case to join the petitioner (her husband). KLR 1996 Sh.C. 19
  21. Right of liberty:- Where a person attained majority and vehemently refused to join guardian apprehending danger to his or her life–He or she cannot be handed over to guardian against his/her will–Right of liberty is guaranteed by Constitution. PLJ 1998 Cr.C. (Lahore) 1453
  22. Rule Nisi:- Applicant urging that detenu be directed to 90 with him who was her husband-Held that: What Court required to do as was to find out whether the detenu was illegally or improperly detained in the custody of respondent and it was so then to set her at liberty-Further held: That if the person (detenu) be made over to the guardian-But if the person be major he to be set free but Status quo ante cannot be restored against the wishes of the person brought before it such course to lead to curtailment of liberty where for there is no warrant u/S. 491 nor any such be sustainable u/S. 561-A Cr. P. C. in some cases discretion of the Court was not exercised in handing over the custody of the detenu to the paramour Such being not the case here. KLR 1989 Cr. C 574.
  23. Sui Juris un-married girl:- Whether a juris can be allowed to go with the paramour in preference to her parents-Question of-Detenue, wishing to go with her paramour instead of petitioner – In view social environment prevailing in a Muslim community – Held: A young un-married girl cannot be allowed to love with a person who is stranger to her Detenue was directed to live with her mother. KLR 1996 Cr. C 602.
  24. Validity of marriage:- Habeas corpus petition-Inappropriate and undesirable, if not illegal for the High court to have determined the validity of marriage on the touchstone of injunctions of Islam, in proceedings under S. 491, Cr.P.C. P L D 2004 SC 219
  25. Welfare of child:- In cases pertaining to custody of a child, courts are not supposed to go into technicalities of law-Although ordinarily a petition under Section 491 Cr.P.C is not found to be competent when there is no element of illegal custody by father of his own child but in welfare of child as well as to ensure that rights which have been conferred upon child are fully protected in a suitable manner, courts should also pass appropriate orders in exercise of its inherited jurisdiction-custody of minor aged two years was handed over to her mother with observation that parties shall be at liberty to approach guardian judge for redresssal of their grievance if any. PLJ 2004 SC 45 When a minor is illegally or improperly detained the High Court would interfere by way of habeas corpus, but the interest of the minor is a paramount consideration and the High Court would not use the powers under section 491 if the remedy under the Guardians and Wards Act, 1890 is more suitable. 1952 Cr.LJ 578 = 31 Cr.LJ 985 = 31 Cr.LJ 719

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