2013 S C M R 1281

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Mian Saqib Nisar, Ejaz Afzal Khan, Muhammad Ather Saeed and Iqbal Hameedur Rahman, JJ

ABDUL RASHID alias TEDDI—Appellant

Versus

The STATE and others—Respondents

Criminal Appeal No.6 of 2006, decided on 25th March, 2013.

(On appeal from judgment of Lahore High Court, Multan Bench, dated 13-12-2005, passed in Civil Revision No.241 of 2005.)

(a) Criminal Procedure Code (V of 1898)—

—-S. 345—Penal Code (XLV of 1860), S. 302(b)—Qatl-e-amd—Compounding of offence—Compromise by legal heirs of deceased—Right of successors of a legal heir to enter into a compromise for purpose of compounding the offence—Scope—Question as to whether successors of a legal heir of deceased were equally competent to enter into a compromise with the convict—Trial Court convicted convict in question under S.302(b), P.P.C. and sentenced him to death—Death sentence of convict was confirmed by High Court and also by the Supreme Court—Deceased at the time was survived by five legal heirs, her mother and four uncles—Mother and three uncles of deceased compromised with the convict and waived their right of Qisas, however one of the uncles (legal heir) refused to forgive the convict and remained adamant not to do so even till the time of his death—After death of said legal heir, his successors however compromised with the convict, whereafter an application was moved before Trial Court for effecting a compromise, but same was dismissed on the basis that one of the legal heirs in his life time refused to forgive the convict—High Court also upheld order of Trial Court with the observation that despite subsequent compromise with successors of legal heir, who had not forgiven the convict in his lifetime, application for compromise was liable to be dismissed—Validity—Not only the surviving legal heirs of the victim had legal authority to waive right of Qisas and compound the offence with the convict upon payment of compensation of Diyat or without payment in lieu of pleasure of God, but such right was equally inheritable by the successors of any legal heir of the victim, who during life time had either not entered into compromise with the convict or refused to enter into such compromise, as despite his earlier refusal such legal heir was competent to change his mind and subsequently enter into compromise with the convict—Principle of estoppel would not be attracted in such a situation to debar successors of such a legal heir from exercising their right to compromise independently at their own free will—Appeal was disposed of accordingly.

Muhammad Jabbar v. The State and 10 others 2000 PCr.LJ 1688; Ahmad Nawaz v. The State PLD 2007 Lah. 121 and Safdar Ali v. The State PLD 1991 SC 202 ref.

(b) Criminal Procedure Code (V of 1898)—

—-S. 345—Compounding of offence—Concept—Purpose and Islamic significance— Compromise between convict and legal heirs of deceased—Islam was a religion of peace and harmony, which for the first time in history of mankind introduced and encouraged concept of afw, darguzar/condoning and compounding of offences, even those relating to heinous crimes—Through dictates of various verses from the Holy Quran and Sunnah of Prophet Hazrat Muhammad (pbuh), a workable and practicable scheme for compounding of offences had been outlined under the Islamic criminal law— Purpose behind such a scheme was to provide a respectable and fair mode, based on the principles of equality of all human beings to reach some settlement/compromise in the larger interest of civil society and to bury the hatchet of revenge once and for all, so as to save other generations from facing the consequences of enmity amongst different segments of society, aimed for satisfaction of endless personal vendetta.

(c) Criminal Procedure Code (V of 1898)—

—-S. 345—Compounding of criminal offence—Interpretation of S.345, Cr.P.C.—Scope—Provisions of law relating to compounding of criminal offences were to be interpreted and applied liberally for the benefit of society and the humanity at large, but at the same time as per Injunctions of Islam.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.

Asjad Javed Goral, Additional P.G. (Punjab) for the State.

Date of hearing: 25th March, 2013.

ORDER

ANWAR ZAHEER JAMALI, J.— In this criminal appeal, leave was granted by the Court vide its order dated 4-1-2006, to examine the question of law, as to whether the legal heirs existing at the time of death of the deceased or at the time of entering into a compromise are competent to effect a compromise and to pardon a convict sentenced to death by way of Ta’zir.

2. Consequent to the above, on 31-1-2013, in order to answer this important question of law, which is likely to affect a large number of cases, the honourable Chief Justice of Pakistan had ordered for constitution of a larger Bench.

3. Today, when this case has proceeded before us, we have heard the arguments of Mr. Zulfiqar Khalid Maluka, learned Advocate Supreme Court for the appellant and Mr. Asjad Javed Ghurral, learned Additional Prosecutor-General, Punjab, on this limited question of law with reference to the peculiar facts of this case.

4. After brief narration of relevant facts, disclosing the demise of two of the legal heirs of victim/deceased Mst. Sharnim alias Sheema i.e. Sardar Ali (uncle) and Mst. Imam Sain (mother), after the occurrence, in one case before entering into compromise with the appellant, Mr. Maluka made reference to the provisions of section 345, Cr.P.C. and argued that for entering into compromise in terms of this provision of law, there, is no legal impediment or any pre-condition under the Islamic principles of jurisprudence that only those legal heirs of the victim/deceased, who were his/her surviving legal heirs at the time of occurrence of compoundable offence, were competent and eligible to enter into such compromise with the offender/accused/convict and not their successors. In order to add force to this submission, firstly, he placed reliance upon the case of Muhammad Jabbar v. The State and 10 others (2000 PCr.LJ 1688), and argued that earlier this legal aspect was thoroughly examined by a learned Division Bench of the Lahore High Court in its judgment and answered that not only the legal heirs of the victim at the time of his/her death, but their successors were equally competent to enter into a compromise in a case of qisas, diyat as such right/benefit was not restricted only to the surviving legal heirs of the deceased at the time of occurrence of a compoundable offence, but inheritable by their successors. He further made reference to another judgment of the Lahore High Court in the case of Ahmad Nawaz v. The State (PLD 2007 Lahore 121) to show that in this case where the victim was unmarried and had left behind his father and mother as wali, considering the claim of his consanguine sisters after the death of one of the wali (father), making distinction between the heirs of the victim, having also left behind three real brothers and three sisters and the heirs of wali, in the context of right of diyat qua compromise claimed by the consanguine sisters, it was held that as otherwise consanguine sisters could not inherit directly from the estate of the victim having real brothers and sisters and under section 305(a), P.P.C. heirs of the victim are different from heirs of a wali of victim, therefore, consanguine sisters being not heirs of the victim will not inherit the right to compromise or share from diyat after the death of their father. He further referred to the case of Safdar Ali v. The State (PLD 1991 SC 202) to dilate upon the right of compounding of offence under the Islamic law and in terms of section 345, Cr.P.C. After making reference to these cases, he also made reference to a judgment of this Court dated 8-9-2004, whereby in an earlier case of present appellant, his request for compounding of offence was declined by the trial Court and the learned Division Bench of the Lahore High Court, while leave to appeal was refused by this Court with the following observations:–

“The High Court has also placed reliance upon (I) Muhammad Arshad alias Pappu v. Additional Sessions Judge, Lahore and 3 others (PLD 2003 SC 547), (II) Muhammad Aslam v. Shaukat Ali (1997 SCMR 1307). It may be observed that this court in the above decisions has held that, as in the instant case, sentence of death for causing of murder by way of Ta’zir can be compounded by all legal heirs with the permission of the court concerned. In the instant case admittedly all legal heirs of deceased have not compounded and waived their right of Qisas in favour of the petitioner, therefore the said application filed by the petitioner was rightly dismissed by learned Division Bench of the High Court and of Sessions Judge, Vehari.”

5. In the context of this judgment submission of the learned Advocate Supreme Court was that, firstly, the issue raised before the Court in the present appeal was not at all involved, discussed or dilated upon with reference to any provision of law and secondly, order of the trial Court regarding refusal of permission for compounding of offence was maintained by the learned Division Bench of the High Court and the apex Court on the factual belief that all the legal heirs of the deceased had not compounded and waived their right of diyat in favour of the appellant, therefore, compromise as per contemplation of law was not possible. But now the position in the present case is different as presently all the legal heirs of victim Mst. Shamim alias Sheema or their successor have voluntarily entered into such compromise with the appellant.

6. Based on the above submissions and the case law referred to and relied by him, learned Advocate Supreme Court for the appellant concluded his arguments by laying stress upon the legal proposition that not only the surviving legal heirs of the victim at the time of her death but also their successors were equally competent to enter into compromise for compounding of offence within the ambit of section 345 Cr.P.C., therefore, such question of law may be answered in the affirmative and in favour of the appellant.

7. Mr. Asjad Javaid Ghorral, learned Additional Prosecutor-General, Punjab, when confronted with the above noted submissions on behalf of the appellant, supported by the language of relevant section 345, Cr.P.C., and the case-law cited at the Bar, candidly conceded that surviving legal heirs of the victim at the time of her death and their successors are equally competent to compound such offence with the appellant/convict. Moreso, in the circumstances when there is no express bar and it is a beneficial piece of legislation, based on equitable Islamic principles of criminal jurisprudence, thus to be interpreted broadly and liberally in favour of the appellant/convict.

8. We have carefully considered the above submissions of the learned Advocate Supreme Court for the appellant, the learned Additional Prosecutor-General, Punjab, perused the case-law cited at the Bar and other material placed on record. The appellant was involved in a criminal case arising out of F.I.R. No.228 dated 9-9-1993, registered at Police Station Mitroo, Tehsil Mailsi, District Vehari, for offence under section 302, P.P.C. by committing qatl-e-amd of Mst. Shamim alias Sheema on her refusal to marry him. He was tried by the Court of Sessions Judge Vehari and convicted under section 302(b), P.P.C. on the said charge, and sentenced to death vide judgment dated 29-11-1995. He was further ordered to pay compensation of Rs.20,000 to the legal heirs of the deceased. The death sentence awarded by the trial Court was confirmed by the Lahore High Court, vide its judgment dated 21-4-1999 in Criminal Appeal No.336 of 1995, and also by the apex Court, wherefrom the criminal appeal of the appellant was dismissed on 24-5-2000.

9. At the time of her qatl-e-amd by the appellant Mst. Shamim alias Sheema was survived by following five legal heirs:–

(i) Mst. Imam Sain (mother)

(ii) Khurshid Muhammad son of Salhoon (uncle)

(iii) Said Ali son of Salhoon (uncle).

(iv) Sahib Ali son of Salhoon (uncle)

(v) Sardar Ali son of Salhoon (uncle)

Out of these legal heirs, firstly, only three of them entered into a compromise with the appellant and waived their right of qisas and pardoned the appellant, while the remaining two legal of the deceased, Mst. Imam Sain (mother) and Sardar Ali (uncle) did not enter into any compromise for waiving their right of qisas or pardoning the appellant. In the above circumstances, application under section 345, Cr.P.C. for compounding of offence was made by the appellant before the learned trial Court of Sessions Judge, Vehari on 16-7-2001, which was accepted by the trial Court with the observations that as three legal heirs of the deceased have entered into a compromise with the appellant, therefore, their compromise was legal and for the remaining two legal heirs, who had not entered into compromise, it was ordered/directed that diyat amount should be paid to them. Such order of the trial Court dated 27-7-2001 was challenged by Sardar Ali, uncle of the deceased Mst. Shamim alias Sheema in Criminal Revision No.267 of 2001, which was accepted vide order dated 12-3-2002 with the result that order of the trial Court dated 27-7-2001 was set aside and directions were given to the appellant to move a petition for this purpose before the honourable Supreme Court, as it had finally dismissed the appeal of the appellant vide judgment dated 24-5-2000. The appellant, therefore, moved criminal petition for leave to Appeal No.250-L of 2002 before the apex Court, which was disposed of vide order dated 12-7-2002 in the terms that order dated 12-3-2002 passed by the Lahore High Court as well as earlier order dated 27-7-2001 passed by the trial Court of Sessions Judge, Vehari were set aside and the appellant was again directed to file proper application for compounding the offence of qatl-e-amd with the legal heirs of the deceased before the trial Court, who would dispose of the same strictly in accordance with law.

10. As a sequel of the above proceedings, the appellant moved another application under sections 308, 310 and 338-E, P.P.C. before the trial Court of learned Sessions Judge, Vehari, which was proceeded before the Court of Additional Sessions Judge, Vehari and dismissed vide order dated 6-6-2003. Against this order Criminal Revision No.230 of 2003 was filed by the appellant before the Lahore High Court, Multan Bench wherein, vide order dated 6-10-2003, impugned order dated 6-6-2003 was set aside and the case was remanded to the trial Court. In the post remand proceedings, the trial Court vide its order dated 27-12-2003 again dismissed the compromise application of the appellant on account of being made partially by only three out of five legal heirs, while one of the legal heirs Sardar Ali had no intention to forgive or compromise with him. This order dated 27-12-2003 was also assailed by the appellant before the Lahore High Court through Criminal Revision No.73 of 2004, which was dismissed on 5-4-2004. Against these two orders, the appellant thereafter moved Jail Petition No.269 of 2004 before this Court, which too was dismissed, vide order dated 8-9-2004, inter alia, with the observations as reproduced in the earlier part of this judgment. At a later stage, Mst. Imam Sain another legal heir of deceased Mst. Shamim alias Sheema, also waived her right of qisas and moved an application before the trial Court to record her compromise with the appellant as she had forgiven him in the name of God. This application was dismissed vide order dated 4-5-2005, passed by Sessions Judge, Vehari for the reason that the mere fact that Mst. Imam Sain too has effected compromise would not give any edge to the convict due to the death of Sardar Ali, another legal heir of the deceased, who remained adamant throughout his life, and till his death did not forgive the appellant despite the fact that during his life time except Mst. Imam Sain, who too subsequently favoured the convict, all other legal heirs have forgiven the convict. In the background of above proceedings, the matter was again brought by the appellant before the Lahore High Court, Multan Bench vide Criminal Revision No.241 of 2005, wherein impugned order, rejecting the request for effecting compromise was maintained with the observation that only legal heirs of the victim surviving at the time of her death were competent to enter into such compromise and waive the right of qisas, while in the instant case during his lifetime one of the legal heirs Sardar Ali had refused to enter into compromise with the appellant, therefore, despite subsequent compromise of the appellant with his successors/legal heirs such application was liable to be dismissed.

11. In the light of above stated facts, in order to examine the legal question as to whether the successor of any legal heir of the deceased were equally competent to enter into a compromise with the appellant/convict and such an application on that account could have been entertained under section 345, Cr.P.C., it will be useful to reproduce hereunder relevant provisions of section 345, Cr.P.C., which read thus:–

345. Compounding offences. (1) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table.

……. ……. ……. ……. ……. ……. …….

……. ……. ……. ……. ……. ……. …….

(2) The offences punishable under the sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in third column of that table.

……. ……. ……. ……. ……. ……. …….

……. ……. ……. ……. ……. ……. …….

Offence Sections of Pakistan Penal Code applicable Persons by whom offence may be compounded
Qatl-e-amd 302 By the heirs of the victim [other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices

……. ……. ……. ……. ……. ……. …….

……. ……. ……. ……. ……. ……. …….

2-A Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.

(3) Where any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.

(4) When the person who would otherwise be competent to compound an offence under this section is [under the age of eighteen years or is] as idiot a lunatic, any person competent to contract on his behalf may [with the permission of the Court] compound such offence.

(5) When the accused has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court before which the appeal is to be heard.

(5A) A High Court acting in the exercise of its powers of revision under section 439 [and a Court of Session so acting under section 439-A], may allow any person to compound any offence which he is competent to compound under this section.]

(6) The composition of an offence under this section shall have the effect of an acquittal of the accused [with whom the offence has been compounded].

(7) No offence shall be compounded except as provided by this section.”.

12. The bare reading of the above provision of law reveals that offence of qatl-e-amd is compoundable by the legal heirs of the victim. However, by subsequent amendment introduced vide Act 1 of 2005, upon addition of subsection (2-A), the only impediment in the acceptance of compromise in terms of this provision of law brought into force is regarding those offences which had been committed by an accused in the name of, or on the pretext of karokari, siyah kari or similar other customs or practices, in which case the offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. In the instant case, admittedly, the appellant has committed qatl-e-amd of Mst. Shamim alias Sheema on her refusal to marry him, therefore, it is yet to be seen whether in such a situation, due to any such custom or practice, the bar provided by section 345(2-A) will be attracted in the present case or not. Apart from it; reverting to other factual aspect of the case, we find that firstly three legal heirs of deceased Mst. Shamim alias Sheema, Khurshid Muhammad, Said Ali and Sahib Ali had voluntarily (as claimed) entered into compromise with the appellant by waiver of qisas and compounding of offence. Subsequently another legal heir Mst. Imam Sain, mother of the deceased, also voluntarily (as claimed) entered into compromise with the appellant, and after the death of remaining one legal heir Sardar Ali, who refused to enter into compromise with the appellant during his lifetime, all his legal heirs also voluntarily (as claimed) entered into compromise with the appellant. Thus, all the legal heirs of the victim either personally or through their successors waived their right of qisas and entered into compromise with the appellant as claimed by him.

13. In the case of Muhammad Jabbar (supra) a learned Division Bench of the Lahore High Court had taken pains to record the submissions of both the learned counsel for the parties in paragraphs Nos.4 and 5 of its judgment with specific reference to some verses from the whole Quaran and authentic Ahadith of our Holy Prophet Muhammad (peace be upon him) and based upon such arguments made the following useful discussion:–

“7. ……, we feel it is expedient to examine the relevant Injunctions of Islam as embodied in Holy Qur’an and opinions of various doctors of Islam on the concept of Qisas and power of Wali-e-Maqtool to condone/Afw. The first Verse, in time, is verse No.33 in Sura Bani Israeel, para. No.15 of the Holy Qur’an. It reads as follows:–

English translation from the Holy Qur’an, Commentary/Translation by A. Yusuf Ali).
Nor take life—which Allah has made sacred—except For just cause. And if Any one is slain wrongfully, We have given his heir Authority (to demand Qisas or to forgive): but let him not exceed bounds in the matter of taking life; for he is helped (by the law).

There are two Holy Verses Nos.178 and 179 occurring in Sura Al-Baqara, Para No.2. These Verses read as-follows:–

O ye who believed! The law of equality is prescribed to you in cases of murder: The free for the free, The slave for the slave The woman for the woman. But if any remission Is made by the brother Of the slain, then grant Any reasonable demand. And compensate him With handsome gratitude; This is a concession And a mercy From your Lord, After this whoever Exceeds the limits Shall be in grave penalty. (178)
In the law of Equality There is (saving of) Life To you, O ye men of understanding That ye may Restrain yourselves.” (179)

The fourth one is Verse No.45 occurring in Surah Al¬-Maidah in Para No.5. It is as follows:–

“We ordained therein for them ‘Life for life, eye for eye, Nose for nose, ear for ear, Tooth for tooth and wounds equal for equal’. But if Any one remits the retaliation By way of charity, it is An act of atonement for himself. And if any fail to judge By (the light of) what Allah Hath revealed, they are (no better than) wrong-doers.”

7. Sura Bani Israeel, according to consensus, is Mekkan Sura and ‘was revealed before Hijrah. So, it is first in line. It enjoins strict limitation on the right of wronged to take a life for life. It postulates the right of Qisas. It recognizes that a person whose, life is taken, his legal heirs have a right to demand the taking of life of wrong¬doer/murderer/assassin. This right is in consonance with interactions of instinctual human behaviours and satisfies the instincts of vengeance, retaliation and retribution. Briefly speaking it is a right of retribution. This right prescribes that the wrong-doer has to pay for his wrong; the sufferings, which he undergoes, restores the effect of injuries caused to wronged. This can be a satisfaction by way of retaliation. It is a message to all those who are inclined to commit wrongs. The system of Qisas, so prescribed by Holy scripture, keeps and ensures the balance and peace in the society and engenders the doctrine of fairness, transquillity and harmony. It saves the society from acts committed by wrong-doers. The first Verse also contain a divine commandment that in matter of Qisas the legal heirs of deceased/assassinated/ wronged person should not cross the limits and keep the balance while taking Qisas. The second Verse/178, occurring in Surah Al-Baqarah states that Wali-e-Maqtool are vested with the power to condone/Afw. The expression used for Wali-e-¬Maqtool is “Akhi” which literally means “brother”. No hard and fast definition of this expression is provided in Holy Qur’an. This has been explained by Holy Profit (may peace be upon him) with slight variation, that “Akhi” means Wali-¬e-Maqtool and right of Qisas is their proprietary right. Since both the parties admittedly follow Fiqah Hanfi, we find it necessary to quote from a High Authority i.e. Badai-Al¬-Sanai compiled by celebrated Imam Kaasani (Part Seven) at pages 559, 571, 582 and 583, as given below:–

From the foregoing examination, it is, thus, clear (1) that Islam prescribes the right of Qisas which is retributive in nature, satisfies the element of deterrent and disabling theories of criminal jurisprudence. It is beautiful amalgamation of all these theories. It is blessing for mankind and humanity. It is the right of wronged to be put in the place where wrong-doer has put him. This is, in short, the right of legal heirs of wronged. It is the right of Wali-e-Maqtool/his heirs; (2) that this right is compoundable. Wali-e-Maqtool have right to compound/ condone/Afw on the payment of compensation/Diyat or without such compensation in lieu of pleasure of God Almighty on the day of resurrection; (3) that this right is like a property and heritable and is excusable by the legal heirs. Resultantly, this right accrues to those legal heirs who are entitled to inherit the legacy of the deceased/wronged persons according to rules of Muslim Inheritance which are applicable to them in the matter of devolution of legal estate left by the deceased; (4) that the rule of exclusion i.e. nearer in degree excludes the more remote. The rule of priority of blood-tie and the principle of Ta’sib do apply in the case of Qisas/Diyat/Afw; (5) that the right of Afw is to be exercised in demeanour which is free from duress, coercion and manipulation. This is to be used in view seeking the pleasure of God Almighty and for no other affirmation. The legal heirs are not exceeded the reasonable limits and so the responsibility of the murderer/wrong-doer.”

14. To put it in other words, Islam is a religion of peace and harmony. It has for the first time in the history of mankind introduced and encouraged the concept of afw, darguzar/condoning and compounding of offences, even those relating to heinous crimes. Particularly, the one which relate to disputes between two or more private parties and carry an element of revenge, thus, harming the peace and tranquility in the society at large. For this purpose, through the dictates of various verses from the Holy Qur’an and Sunna of our Holy Prophet Hazrat Muhammad (Peace be upon him), a workable and practicable scheme for compounding of offences has been outlined under the Islamic criminal law. The purpose behind it is to provide a respectable and fair mode, based on the principles of equality of all human beings, to reach some settlement/compromise in the larger interest of the civil society and to bury the hatchet of revenge once for all, so as to save other generations from facing the consequence of enmity amongst different segments of society, aimed for satisfaction of endless personal vendetta. On this account too, such provisions of law relating to compounding of criminal offences are to be interpreted and applied liberally for the benefit of society and the humanity at large, but at the same time as per injunctions of Islam.

15. Thus, after a careful reading of the provisions of section 345, Cr.P.C., other relevant guiding principles of Islamic jurisprudence in this regard and the cases cited at the Bar, we are of the opinion that not only the surviving legal heirs of the victim have legal authority to waive right of qisas and compound the offence with the appellant/convict upon payment of compensation of diyat or without payment in lieu of pleasure of God, but such right is equally inheritable by the successors of any legal heir of the victim, who during his life time had either not entered into compromise witch the appellant/convict or refused to enter into such compromise, as despite his earlier refusal he was competent to change his mind and to subsequently enter into such compromise with the appellant/convict, while the principle of estoppel was not attracted in such situation to debar his successor from exercising such right independently at their own free will.

16. Above are the reasons for our short order dated 25-3-2013.

MWA/A-15/SC Order accordingly.

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