P L D 2012 Balochistan 197
Before Qazi Faez Isa, C.J. and Syeda Tahira Safdar, J
Syed SHAMSUDDIN ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary, Home and Tribal Affairs
and 7 others ---Respondents
Constitutional Pet ition No.109 of 2011, decided on 2nd May, 2012.
(a) Criminal Procedure Code (V of 1898) ---
----S. 86 -A---Penal Code (XLV of 1860), Ss. 34, 419 & 420 ---Constitution of Pakistan
Arts.199 & 247(7) ---Constitutional petition ---Removal of petitioner's custod y from Pishin
(Balochistan) to Kohat Tribal Area at the request of Assistant Political Agent (APA), Frontier
Region, Kohat (Khyber Pakhtunkhwa) ---Complaint against petitioner's brother under Ss.419,
420 read with S.34, P.P.C. and Frontier Crimes Regulation pending before APA for recovery
of loan given to him abroad by complainant ---Constitutional petition by petitioner after his
release on bail by APA challenging act of officials of Balochistan Government handing over
his custody to APA without complying wi th provisions of S.86 -A, Cr.P.C. ---Validity ---
Neither alleged in complaint that petitioner had borrowed any money from complainant nor
did complaint make out commission of any criminal offence by petitioner ---Alleged cause of
action against petitioner's br other had accrued to complainant abroad and not within limits of
Kohat Tribal Area and/or in Pakistan ---Such complaint could not be construed to be in
relation to a Tribal Area, thus, High Court had jurisdiction to decide such matter ---
Assistant P olitical Agent and Commissioner, Kohat Division had misused their powers by
seeking arrest and removal of petitioner from Pishin to Kohat ---Official respondents of
Balochistan had violated mandatory provision of S.86 -A, Cr.P.C. by not producing petitioner
before Magistrate at Pishin, wherefrom he was abducted and taken to Kohat ---Complainant
had exploited entire machinery of State for private purposes and officers of two Provincial
Governments had acted as his handmaidens ---Impugned action of official respo ndents was
patently unlawful and illegal ---High Court while accepting constitutional petition directed
the Federal Government to instruct Assistant Political Agent, Commissioner, Kohat
Division and Home Secretary of Khyber Pakhtunkhwa Province not t o take any action
against the petitioner pursuant to such complaint ---High Court further directed Government
of Pakistan, Government of Balochistan and complainant to pay Rs.10,000 each to the
petitioner as costs.
Muhammad Siddiq v. Govern ment of Pakistan 1981 SCMR 1022; Nabi Bakhsh v. The State
PLD 1991 Pesh. 10; Dawood Ahmed's case 1994 PCr.LJ 1984; Zareef Khan v. Sessions
Judge, Peshawar PLD 1995 Pesh. 118; Muhammad Sharif Khan v. S.D.M. 1997 MLD 152;
Fazal Subhan v. State PLD 2006 Pesh. 1; Ihsanullah v. Commissioner, F.C.R, Peshawar,
1968 SCMR 974; Said Jamal v. Asstt. Political Agent (F.R.), 1992 MLD 2043; Muhammad
Ashfaq v. State PLD 1973 SC 368; Khudai Dad v. State PLD 1997 Quetta 69; Shaukat Khan
v. Asstt. Political Agent PLD 2002 SC 526 Qaum Bangash v. Qaum Turi 1991 SCMR 2400;
Muhammad Raziq v. Najeeb Ullah, 2000 YLR 590 and Saeed -ur-Rehman v. Amanullah 2010
MLD 1294 ref.
Muhammad Shafique v. Political Agency, Khyber Agency 1998 PCr.LJ 1347; Noor Jamal v.
The State PLD 2001 Presh. 154; Ghulam Qasim v. State - PLD 1992 Pesh. 83; Muhammad
Sharif Khan v. S.D.M 1997 MLD 152; Daweed Ahmed v. Government of Sindh 1994
PCr.LJ 1984; Khalid Pervez v. Federation of Islamic Republic PLD 1987 Lah. 323 rel.
(b) Jurisdiction ---
----Exclusion of jurisdiction clauses would be construed very strictly.
Nabi Bakhsh v. The State PLD 1991 Pesh. 10; Muhammad Sharif Khan v. S.D.M. 1997
MLD 152 and Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66 rel.
Noorullah Kakar for Petitioner.
Malik Sikandar Khan, Deputy Attorney General on Court Notice.
Tariq Ali Tahir, Addl. Advocate General and Arbab Tahir for Respondent No.8.
Dates of hearing 5th May, 2011 and 12th March, 2012.
JUDGMENT
QAZI FAEZ ISA, C J. ---The respondent No.8 submitted a complaint to the Assistant
Political Agent, Frontier Region Kohat (respondent' No.4) for initiating action against Syed
Nizamuddin and his three brothers, including the petitioner. In the complaint it was stated
that respondent No.8 and Syed Nizamuddin ( the petitioner's brother) were doing business of
transport and import -export in Dubai United Arab Emirates ("UAE") and in connection with
business the respondent No.8 gave to Syed Nizamuddin an amount of UAE Dirhams 420,000
on November 26, 2006 as qarz -e-hasna, which Syed Nizamuddin was required to repay after
a period of one year, but failed to do so. The body of the complaint made no allegation
against the petitioner and only mentioned him in its title. After receipt of the complaint the
Assistant Politic al Agent Kohat took cognizance under sections 419, 420 read with section 34
of the Pakistan. Penal Code read with the Frontier Crimes Regulation ("FCR") and a request
was forwarded to the Government of Balochistan (respondent No.1) for execution of non -
bailable warrants of arrest, amongst others against the petitioner and sought his transfer from
Balochistan to Kohat. Whereupon, the Government of Balochistan directed the Deputy
Commissioner Pishin, "to provide necessary assistance to the Khussadars party he aded by
Political Moharrir Yousaf Hayat and Khassadars, Subedar Major Basir Khan, Subedur
Muhammad Shafi and Khassadar Imran Khan of FR Kohat for arresting/shifting of above
mentioned accused persons from Quetta (Balochistan) to District Kohat (Pesha war)," and
the Tehsildar, Pishin arrested the petitioner and sent him to Kohat and the petitioner landed in
Central Jail Kohat.
2. The petitioner was eventually released on bail, came to Quetta and filed this petition
stating that he was handed over to t he authorities in Kohat without complying with the
provisions of section 86 -A of the Criminal Procedure Code ("Cr.P.C."). It was further alleged
that the petitioner did not enter into any transaction with the complainant, did not borrow or
receive any mone y, the matter was admittedly of a civil nature and the cause of action, if any,
accrued at Dubai, UAE. Therefore, the action of arresting and transporting the petitioner to
Kohat was completely illegal, unlawful and unconstitutional, Mr. Noorullah Kakar, l earned
counsel of the petitioner placed reliance on the following six cases:
Muhammad Siddiq v. Government of Pakistan 1981 SCMR 1022;
Nabi Bakhsh v. The State PLD 1991 Peshawar 10;.
Dawood Ahmed's case 1994 PCr.LJ 1984;
Zareef Khan v. Sessions Jud ge, Peshawar PLD 1995 Peshawar 118;
Muhammad Sharif Khan v. S.D.M., 1997 MLD 152 and
Fazal Subhan v. State, PLD 2006 Peshawar 1.
3. The respondents Nos. 2 and 3, respectively the Deputy Commissioner and Tehsildar
Pishin, filed their respective replie s and admitted the facts as narrated by the petitioner, and
as noted in the first paragraph above. Mr. Muhammad Rafiq, Tehsildar Frontier Region
Kohat, appeared on behalf on respondents Nos.4, 5 and 6, respectively the Assistant Political
Agent, Political Agent and Commissioner, Kohat and placed on record certain documents,
which did not dispute the facts as mentioned in the petition, but did not file any comments or
counter affidavit. Counter affidavit to the petition was also not filed by the respondent No.8,
but Mr. Arbab Tahir, learned counsel for respondent No.8, stated that a petition in respect of
the Tribal Areas of Pakistan could not be filed under Article 199 of the Constitution as sub -
Article (7) of Article 247 of the Constitution of Pakistan spe cifically took away the
jurisdiction of the High Courts in such cases, and relied upon the following cases:
Muhammad Shafique v. Political Agency, Khyber Agency 1998 PCr.LJ 1347.
Ihsanullah v. Commissioner, F.C.R, Peshawar 1968 SCMR 974
Said Jamal v. Asstt. Political Agent (F.R.) 1992 MLD 2043
Muhammad Ashfaq v. State PLD 1973 SC 368
Khudai Dad v. State PLD 1997 Quetta 69
Shaukat Khan v. Asstt. Political Agent PLD 2002 SC 526
Qaum Bangash v. Qaum Turi 1991 SCMR 2400
Muhammad Raziq v. Najeeb Ullah 2000 YLR 590
Saeed -ur-Rehman v. Amanullah 2010 MLD 1294
4. Notice was issued to the Deputy Attorney General ("DAG") to assist the court on the
question of jurisdiction in respect of FATA and Mr. Malik Sikandar, the learned DAG,
appeared and stat ed that the petitioner was handed to the authorities of Kohat without
complying with the provisions of section 86 -A of the Criminal Procedure Code as the
concerned Magistrate should have first satisfied himself whether any offence had been
committed and sh ould also have recorded evidence, but as this was not done the arrest and
handing over of the petitioner to authorities of Kohat was without lawful authority. Reliance
was placed upon the cases of Noor Jamal v. The State PLD 2008 Peshawar 154, Ghulam
Qasim v. State PLD 1992 Peshawar 83 and Muhammad Sharif Khan v. S.D.M 1997 MLD
152, to support his contention that compliance with section 86 -A was mandatory. He also
stated that non -compliance with section 86 -A was tantamount to kidnapping. The learned
DAG fu rther stated that Article 247(7) of the Constitution was not attracted in this case as the
petition had been filed because of the contravention of section 86 -A, which had taken place
within the jurisdiction of this court and this court's jurisdiction under Article 199 could be
invoked. Mr. Tariq Ali Tahir, learned Additional Advocate General ("AAG") adopted the
arguments of learned DAG and also relied upon the cases of Dawood Ahmed v. Government
of Sindh 1994 PCr.LJ 1984, and Khalid Pervez v. Federation of Islamic Republic PLD 1987
Lahore 323.
5. Since the jurisdiction of this court has been assailed the first question to consider is
whether this court has jurisdiction in view of sub -Article (7) of Article 247 of the
Constitution. To appreciate the jurisdi ctional bar contained in sub -Article (7) of Article 247 it
would be appropriate to reproduce the Article 247 in its entirety reproduced hereunder:
"247. Administration of Tribal Areas. ---Subject to the Constitution, the executive authority of
the Federa tion shall extend to the Federally Administered Tribal Areas, and the executive
authority of a Province shall extend to the Provincially Administered Tribal Areas therein.
(2) The President may, from time to time, give such directions to the Governor of a Province
relating to the whole or any part of a Tribal Area within the Province as he may deem
necessary, and the Governor shall, in the exercise of his functions under this Article, comply
with such directions.
(3) No Act of Majlis -e-Shoora (Parliame nt) shall apply to any Federally Administered Tribal
Area or to any part thereof unless the President so directs, and no Act of Majlis -e-Shoora
(Parliament) or a Provincial Assembly shall apply to a Provincially Administered Tribal
Area, or to any part the reof unless the Governor of the Province in which the Tribal Area is
situate, with the approval of the President, so directs; and in giving such a direction with
respect to any law, the President or, as the case may be, the Governor, may direct that the la w
shall, in its application to a Tribal Area, or to a specified part thereof have effect subject to
such exceptions and modifications as may be specified in the direction.
(4) Notwithstanding anything contained in the Constitution, the President may, wit h respect
to any matter within the legislative competence of Majlis -e-Shoora (Parliament), and the
Governor of a Province, with the prior approval of the President, may, with respect to any
matter within the legislative competence of the Provincial Assembl y make regulations for the
peace and good Government of a Provincially Administered Tribal Area or any part thereof
situated in the Province.
(5) Notwithstanding anything contained in the Constitution, the President may, with respect
to any matter, make regulations .for the peace and good governance of a Federally
Administered Tribal Area or any part thereof
(6) The President may, at any time, by Order, direct that the whole or any part of a Tribal
Area shall cease to be Tribal Area, and such Order may contain such incidental and
consequential provisions as appear to the President to be necessary and proper:
Provided that before making any Order under this clause, the President shall ascertain, in
such manner as he considers appropriate, the views of t he people of the Tribal Area
concerned, as represented in tribal jirga.
(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under the
Constitution in relation to a Tribal Area, unless Majlis -e-Shoora (Parliament) by law
otherw ise provides:
Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a
High Court exercised in relation to a Tribal Area immediately before the commencing day.
[emphasis added]
A reading of the above Article and j urisdiction -exclusion clause (sub -Article (7) of Article
247) suggests that for this court's jurisdiction to be excluded the complaint must be in respect
of a matter "in relation to a Tribal Area". Settled principles of interpretation and precedents of
the superior courts construe exclusion of jurisdiction clauses very strictly. In Manzoor Elahi
v. Federation of Pakistan PLD 1975 SC 66, Salahuddin Ahmad, J. in the context of the import
of the above Article observed (at page 116), that:
"... the words in r elation to a Tribal Area under Article 247(7) of the present Constitution are
not comprehensive enough to include the contravention of a Fundamental Right in respect of
person residing outside a Tribal Area, arrested outside the Area and not subject to the Tribal
usage or customs. Consistent with the aforesaid principles governing the interpretation of a
Constitutional instrument, the words 'in relation to the Tribal Area' in my opinion, have
reference to matters covered by the provisions of clauses (1) to (6) of Article 247 that
precede clause (7) thereof"
"It would, indeed, be anomalous and absurd that while the arm of an authority in a Tribal
Area is long enough to reach the person residing outside the area, the Supreme Court or a
High Court is p owerless to come to the rescue of a person whose Fundamental Rights have
been flagrantly violated within its own territorial jurisdiction. According to the accepted
principles on interpretation the ouster of such jurisdiction should not be lightly assumed, and
therefore unless there is clear and definite provision of the Constitution that bars the
jurisdiction, it must be held that the jurisdiction exists. The mere fact that a person has been
hastily and surreptitiously removed to a Tribal Area will not, in my opinion, rob the Supreme
Court or a High Court of its jurisdiction to grant him relief and thus, allowed to defeat the
clear intent of the Constitution."
Following Manzoor Elahi a Divisional Bench of the Peshawar High Court in the case of
Muhammad Sh arif Khan (supra) held:
"The settled principle of law is that the jurisdiction of superior Courts cannot be excluded in
matters in which any part of cause of action accrues at a place outside tribal area and inside
the settled area. In the instant case a citizen of Pakistan stands arrested within the limits of
Abbottabad District and is removed there from to the tribal area. The major infringement of
right has admittedly taken place within the settled area and thus this Court has got the
jurisdiction to h ear the matter and adjudicate upon under Article 199 of the Constitution."
In Nabi Bakhsh's case (supra) a Divisional Bench judgment of the Peshawar High Court held
that:
"The mere fact that one of the parties to the dispute originally belonged to Trib al Area would
not confer jurisdiction on the Political authorities nor take away the jurisdiction of the
ordinary Civil and Criminal Courts within whose jurisdiction the subject -matter of the dispute
situates, the transaction has taken place, the parties r eside or the cause of action has arisen."
"For the reasons stated above we have no hesitation in holding that on facts and
circumstances of the case the Political Authorities had no jurisdiction in both these matters
and that they have acted in colourful exercise of their powers for usurping the powers of the
ordinary Civil and Criminal Courts by compelling them to be subjected to their jurisdiction
which did not vest in them."
6. In the present case the petitioner admittedly did not enter into any tran saction with the
complainant (respondent No.8), did not borrow or receive any money from him, the
petitioner's brother was purportedly given a loan (and that too qarz -e-hasna) which was
sought to be recovered, the cause of action, if any, did not accrue wi thin the limits of Kohat
Tribal Area, and not even in Pakistan, but in another country. It is also contended that the
official respondents of Balochistan completely ignored, and thus violated, the mandatory
provision of section 86 -A Criminal Procedure Code . Sub -Article (7) of Article 247 of the
Constitution is an exception to the power vesting in this court under Article 199 to enforce
the Fundamental Rights enshrined in the Constitution. Such Fundamental Rights cannot be
lightly interfered with or obviated , and any person seeking to do so has a heavy burden to
discharge. By no stretch of the imagination can the subject matter of the complaint be
construed to be in relation to a Tribal Area, therefore, the jurisdiction of this court cannot be
excluded, and w e have no hesitation in holding that this court has jurisdiction under Article
199 and sub - Article (7) of Article 247 of the Constitution is not attracted.
7. The cases relied upon by Mr. Arbab Tahir, Advocate (cited in paragraph 3 above) in
support of his contention that this court does not have jurisdiction have been examined by us.
The case of Muhammad Shafique does not assist the respondent No.8 as in that case a
Divisional Bench of the Peshawar High Court held that warrants of arrest can not be issu ed
and proceedings initiated under section 86 -A upon the failure of the petitioners to appear
before the Assistant Political Agent of the Khyber Agency. Ihsanullah's case is
distinguishable on facts as a dacoity had been committed in Peshawar and the procl aimed
offenders took shelter in the Khyber Agency and under such circumstances the Supreme
Court held that the High Court did not have jurisdiction in view of sub -Article (5) of Article
223 of the 1962 Constitution (equivalent to sub -Article (7) of Article 227 of the 1973
Constitution). Similarly in Said Jamal case the Peshawar High Court did not entertain the
petition in view of sub -Article (7) of Article 227 of the 1973 Constitution in respect of the
petitioner, who was a resident of Darra Adam Khel FATA, and who had been convicted by a
Jirga in respect a number of criminal offences. The cases of Muhammad Ashfaq and Khudai
Dad do not pertain to Tribal Areas and simply stipulate that, when a statute provides an
appeal other remedies should not be availed of . In Shaukat Khan's case the Hon'ble Supreme
Court upheld the decision of the Peshawar High Court which held that its jurisdiction had not
been extended, "to the area in question, namely Khuram Agency forming part of the
Federally Administered Tribal Area" and followed the earlier decision of the Supreme Court
in the case of Qaum Bagash, in which case jurisdiction was sought to be bestowed solely on
the ground that the Commissioner, F.C.R. had passed an order at Peshawar, despite the fact
that the dispute r elated to land situated in Khyber Agency, FATA, and death and injuries in
respect of the said dispute too took place there. In the cases of Muhammad Raziq, of a
learned single judge of the Lahore High Court, and of Saeed -ur-Rehman, of a Divisional
Bench of the Peshawar High Court, petitions were not entertained in view of sub -Article (7)
of Article 227 of the 1973 Constitution, despite the fact that private parties raised money
claims that had not been incurred in the Tribal Areas, therefore, with great res pect, we can
not persuade ourselves to agree with these two judgments.
8. Section 86 -A of the Criminal Procedure Code stipulates, as under:
"86-A. Procedure for removal in custody to Tribal Area. --Where a person arrested under
section 85 is to be remov ed in custody to any place in the Tribal Areas, he shall be produced
before a Magistrate within the local limits of whose jurisdiction the arrest was made, and
such Magistrate in directing the removal shall hear the case in the same manner and have the
same jurisdiction and powers, as nearly as may be, including the power to order the
production of evidence, as if the person arrested were charged with an offence committed
within the jurisdiction of such Magistrate: and such Magistrate shall direct the remov al of the
arrested person in custody if he is satisfied that the evidence produced before him raises a
strong or probable presumption that the person arrested committed the offence mentioned in
the warrant."
Admittedly, the above mandatory procedure was not followed. The facts of this case are
similar to the facts of Muhammad Shafiq v. Political Agent, Khyber Agency 1998 PCr.LJ
1347: wherein Nasir -ul-Mulk, J as Judge of the Peshawar High Court (before his elevation to
the Hon'ble Supreme Court) wrote:
"We are only concerned with the question as to whether warrant of arrest can be executed
in view of the provisions of section 86 -A, Cr. P. C. which provides that a person can only
be removed to tribal area if there is, prima facie, evidence of the commission of a crime by
him in the tribal area. We only have to refer to the comments of respondent No.2, the
Assistant Political Agent, to resolve the issue. In the last para under note brief facts, the
respondents staled "that this matter is of civil n ature but in view of the constant absence of
the petitioner's party, warrant of arrest under section 419/420, P.P.C./8, F.C.R. was issued by
the Court of A.P.A./A.D.M, Jamrud at Khyber House, Peshawar Cantt." As respondent No.2
himself admits that the disp ute between the parties is of civil nature, the Magistrate has no
authority to exercise powers under section 86 -A, Cr.P.C. as the petitioners can only be
removed if they are charged for the commission of a crime. Failure to attend the Court in civil
cases is definitely not a crime for which warrant of arrest can be issued."
Sardar Muhammad Raza, J another Judge of the Peshawar High Court (before his elevation to
the apex court) writing for the Divisional Bench in the case of Muhammad Sharif Khan v.
S.D.M. , 1997 MLD 152, held that:
"Removal in custody of a citizen of Pakistan from the settled area of Pakistan to the Tribal
area is elaborately provided by section 86 -A of the Cr.P.C. It is mandatory for a police officer
in such circumstances to produce the person arrested before a Magistrate within the local
limits of whose jurisdiction the arrest is made."
9. The complaint, even if it is accepted on face value and in its entirety, still does not
make out the commission of any criminal offence, therefore, the Assistant Political Agent
Kohat could not have issued warrants of arrest of the petitioner, as purportedly done
under sections 419, 420 read with section 34 of the Pakistan Penal Code, and resort could not
be made to any provision of the FCR to non-Tribal Areas of Pakistan, including Pishin from
where the petitioner was 'arrested'.
10. The Assistant Political Agent Kohat, Political Agent Kohat and Commissioner Kohat
Division misused their respective authorities by seeking the arrest and remova l from Pishin,
Balochistan of the petitioner to Kohat Tribal Area. The conduct of the Government of
Balochistan and its functionaries. including the Deputy Commissioner Pishin and Tehsildar
Pishin, was no better, acting as they did in complete and utter ig norance of the law and by
violating the provisions of section 86 -A of the Criminal Procedure Code. None of the official
respondents demonstrated the slightest interest in the liberty of a citizen and it appears made
no attempt to read, let alone understand , the complaint. Four officials came all the way from
Kohat to Pishin, undoubtedly at considerable public expense, in respect of a simple civil
dispute to execute warrants of arrest and 'arrested' the petitioner, whose brother apparently
did not repay a lo an (garz -e-hasna) given by a private person abroad. The entire machinery of
the State was successfully exploited by respondent No.8 for his private purposes and the
officers of two provincial governments acted as his handmaidens. The petitioner was also no t
produced before the Magistrate at Pishin, where the petitioner resides and from where he was
effectively abducted and taken to Kohat, in total contravention of section 86 -A of the
Criminal Procedure Code: the action of the official respondents is thus pa tently unlawful and
illegal. The waste of public resources in such manner is utterly shameful and may well be
categorized as criminal.
11. We therefore declare that the official respondents had no jurisdiction in respect of the
matter of the said complai nt submitted by the respondent No.8 and in arresting the petitioner
from Pishin in Balochistan and transporting him to Kohat in the Tribal Area acted in
contravention of section 86 -A of the Criminal Procedure Code and violated the petitioner's
constitution al Fundamental Rights, including Article 4 (right to be dealt with in accordance
with law), Article 9 (security of person), Article 10 (safeguards as to arrest and detention),
Article 10A (right to fair trial and due process) of the Constitution of Pakista n therefore their
said acts were wholly illegal and unconstitutional. The Federal Government is directed to
instruct respondents Nos.4, 5 and 6, all of whom are within its executive authority (sub -
Article (1) of Article 247), not to take any action against the petitioner pursuant to the
complaint submitted by respondent No.8. Since the petitioner was illegally arrested,
transported and incarcerated at the hands of officers exercising executive authority vested in
them by Government of Pakistan (respondents Nos.4, 5 and 6) and Government of
Balochistan (respondents Nos. 1, 2 and 3) on a frivolous and vexatious complaint submitted
by the respondent No.8. and as he must have suffered acutely the Government of Pakistan
Government of Balochistan and respondent No .8 should each pay to the petitioner Rupees ten
thousand total Rupees thirty thousand, as costs.
12. The petition is allowed in the aforesaid terms.
S.A.K./35/Bal. Petition accepteThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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