An Islamic Legal Great. Al-Nu’man bin Thabit (699-767 A.D.)—commonly known by the kunyah2. Abu Hanifah—is considered the founder of one of the four

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Ab Hanfah: The Quintessence of Islamic Law (699-767 A.D.) fiHypocrisy and arrogance in any deed annul its reward.fl ŠABU HANIFA, AL-FIQH AL-AKBAR1 An Islamic Legal Great Al-Nu‚man bin Thabit (699-767 A.D.)Šcommonly known by the kunyah 2 Abu HanifahŠis considered the founder of one of the four schools or rites (s. maddhab, pl. madhhib) of Islamic legal knowledge ( fiqh) within the Sunni branch of Islam. 3 That school is eponymously labeled the Hanafi or Hanifite school.4 The Hanafi school of fiqh soon became the official school of jurisprudence in the ‚Abbasid caliphate.5 It was also adopted as the legal standard by the expansive Ottoman and Moghul Empire s, and so reached up through Asia Minor to the Balkans and was planted far beyond the Oxus River (the Amu Darya), into the heart of Asia. It remains the primary school for the Islamic nations that succeeded from those historical states, including Pakistan, Turkey, Albania, Central Asia, Afghanistan, China, India, and Iraq. Because of its wide acceptance, the Hanafi maddhab is the school of the majority of Sunni Muslims.6 Given his continuing and widespread influence on the Islamic religious law (shar‚a), its positive law (qnn), and on Islamic jurisprudence (fiqh) in general, Abu Hanifa is without question one of the Law™s Greats. His life™s work has affected billions of souls; surely that merits at least a nod from Westerners. Al-Nu‚man bin Th bit: Life as Kufan Merchant Around one hundred and thirty years after the birth of Muhammad and sixty-seven following his death, Abu Hanifa was born Al-Nu‚man bin Thabit in Kufa in modern day Iraq. Though there is some conflicting evidence about the lineage of his family, it is certain that it was not Arabic, but one of well-to-do Persian merchants. 7 Following the Arabic conquest of the region, Abu Hanifa™s grandfather may have been enslaved to a member of the Banu Tamim. If he was, he was later freed and considered a client (s. mawl, pl. mawl) of that Arabic tribe under the clientage system (wala™ ) used by the Umayyad dynasty to engraft non-Arabs Muslims into the Arabic tribal society.8 The town of Kufa, situated on the banks of the Euphrates in central Iraq, was founded in 637 A.D., only five years after Muhammad™s death. Its founding occurred shortly after the Ar ab victory over the Sassanid Persians at the Battle of The Law™s Greats: Ab Hanfah Page 1 of 22

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Qadisiyyah and the Byzantine Empire at the Battle of Yarmouk, and shortly before the Islamic conquest of Jerusalem. 9 Founded as a garrison town by Sa™d bin Abi Waqqas, a Companion of Muhammad, 10 it was used as a base for the Arab armies in their battle against the Sassanid Persians. The town quickly burgeoned in population and importance and became a leading cultural, religious, and gubernatorial center. Some of the Companions of the Prophet Muhammad emigrated from Medina to Kufa further raising the city™s prestige to a dar al-‚ilm, or center of learning, in dignity at par with the cities of Medina, Mecca, and Basrah.11 In 656 A.D. the town was chosen as the headquarters of the rival claimant to the caliphate, ‚Ali bin Abu Talib, and so it remained until his death in 661. Abu Hanifa™s early life and education took place at Kufa, andŠexcept for periodic pilgrimages ( hajj) and scholarly visits to Mecca, Medina, and other centers of learning and pilgrimage, and a period of exile at, MeccaŠmost of his life was spent in the city of his birth. He flourished in Kufa: first as a student, then a merchant, then as a student of fiqh, and finally a teacher (s. faqh, pl. fuqah™) and expert ( mujtahid or muft ) of Islamic jurisprudence. Kufa™s importance naturally attracted numerous peoples with their panoply of religions and cultures, including a variety of Christian, Jewish , and Persian sects. Yet Abu Hanifa™s father, Thabit (or Zawti), was Muslim, and under his paternal direction Abu Hanifa memorized the Qur™n, learning the ‚sim recitation (s. qirh™a, pl. qir™t).12 Abu Hanifa was not early marked for the law, as he came from a family of textile merchants specializing in khazz.13 He followed in the family™s trade, quickly establishing a reputation for honesty and fairness. 14 Many stories exist about his life as a merchant, but, like many hagiographical writings in any religious tradition, they have a fairytale- like aftertaste, stemming from a surfeit of devotion. Nevertheless, the stories are we ll worth relating, as they witness to the fact that even before studying law this great jurist had natural virtue, a kind heart, an honest disposition, and a generous personality. Many of the stories relate how, when a merchant, he refused to take adva ntage of persons with less knowledge of his trade, and shunned the temptation of obtaining excess profit in both buying and selling. He was to handle fiqh every bit as nobly as he handled khazz. One story describes his treatment of a woman who appeared at his store to sell a silk garment. She asked only a hundred dirhams for it, but Abu Hanifa would not buy it at that price, and told her it was worth more. The woman increased the sales price in increments of a hundred dirhams, but each time Abu Hanifa insisted that the silk garment was worth more. When she reached four hundred dirhams, the woman thought Abu Hanifa was mocking her, but an independent merchant was summoned to apprai se the garment, and he valued it for The Law™s Greats: Ab Hanfah Page 2 of 22

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five hundred dirhams. 15 Thus Abu Hanifa refused th e opportunity for an unjust profit, and settled for a fair trade. In a similar vein, another story involves a woman desiring to buy a silk garment. When she asked, no doubt a udaciously, to purchase a silk garment at cost, he offered her the ridiculously low sales price of four dirhams. The woman thought that Abu Hanifa was teasing her, but he explained to her that he had bought two of the garments, had sold one of them for the cost of both less four dirhams, so his basis in the remaining garment was only four dirhams. 16 Finally, the story is told about the time he sent his partner, Hafs ibn ‚Abdu™r-Rahman, to sell some cloth at a distant market. He pointed out a defect in the cloth, and instructed him to disclose it to the buyer when he sold it, and so price the cloth accordingly. Hafs sold the cloth; however, he forgot to point out the defect, and, to add insult to injury , could not remember the identity of the purchaser. Faced with the predicament of holding unjust profit, Abu Hanifa decided to forego both basis and profitŠthe significant sum of thirty thousand dirhamsŠand donated the proceeds to the poor.17 Conversion to the Study of Law (Fiqh) Abu Hanifa™s chance (or, better, providential) encounter with the faqh ash-Sha‚bi while on his way to the market was to convert him from the mundane life of a merchant, to the deep and fulfilling life of a scholar and jurist. As the young merchant walked by, ash-Sha‚bi detected in Abu Hanifa a natural intelligence in addition to his natural virtue. fiDo not be heedless,fl ash-Sha‚bi admonished the young mercer, fiYou must look into knowledge and sit with the scholars.fl The statement as it comes down to us appears bland and uninspiring; but whatever ash- Sha‚bi actually said pierced the heart of Abu Hanifa who, in what can only be characterized as a religious conversion, le ft the life of a merchant, and dedicated his life to the pursuit of knowledge.18 Abu Hanifa first dedicate d himself to the study (‚ ulum) of theology (kalm). After mastering theology, he concluded that the constant debates of jabar, qadar, tashbh, tanz h, ‚adl, and jaur19 did not result in an increase in virtue or religious devotion (dn), but rather inclined one to be fihard-hearted and thick- skinned,fl20 and tended toward a spirit of sectarianism. Some questions, moreover, simply had no answer and thus gave rise to endless, fruitless dispute. So, for example, he refused to debate the issue of predestination (qadar) because, as he put it using a wonderful image that John Calvin could have used, fiIt is a lock whose key is lost.fl21 It was Abu Hanifa™s conclusion: This intolerant sectarianism rent asunder the fabric of Muslim society, The Law™s Greats: Ab Hanfah Page 3 of 22

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deforming all its featuresŠreligion, morals, government, culture, civilization. In the midst of this a ll-pervading destruction there was only one constructive voice, that of Abu Hanifa, declaring aloud: fiOf the people of the Qiblah there is none whom we consider an infidel.fl 22 From the study of theology, which he mastered, he turned to the study of literature, grammar, and poetry, but thou ghtŠnot unlike PlatoŠthat it detracted from the religious life and the exercise of virtue (dn). He then studied the forms of Quranic recitation ( qir™t) and the Ahadth or Traditions, but found those disciplines incompatible w ith his temperament. When he recognized the link between virtue and law, 23 however, he took off his sandals, and sat cross-legged on the carpets of the mosque at Kufa, across, and later beside, the venerable teacher of fiqh, Hammad bin Abi Sulayman, where he devoted his life to the study of fiqh or Islamic jurisprudence: I saw that [the study of fiqh] involved sitting with scholars, fuqaha™, shaykhs [sheiks] and people of insight and taking on their character. I saw that it is only by knowing it that the obligations are properly performed and the deen [dn] and worship established. S eeking this world and the Next World can only be done through it. If anyone desires to seek this world through it, he seeks a weighty matter and will be elev ated by it. If someone wants to worship and divest himself, no on can say, fiHe worships without knowledge.fl Rather it will be said, fiThis is fiqh and acting by knowledge.fl24 Islamic fiqh was in a state of development at that time, and in order to form an understanding of it, Abu Hanifa studied fiqh as taught by a variety of different masters who formed personal schools of fiqh. Liberally inclined and naturally curious, he pursued knowledge with great openness and lack of bias. He did not even shun the Shi‚ia and other heretical sects in his quest for understanding; rather, he explored the rich legal veins of metropolitan Kufa and beyond, finding truth wheresoever it could be found. fiI was situated in a lode of knowledge and fiqh,fl Abu Hanifa observed, so fiI learned the fiqh of ‚Umar, the fiqh of ‚Ali, the fiqh of ‚Abdulla ibn Mas‚ud, and the fiqh of Ibn ‚Abbas.fl But ultimately, he tells us, fiI devoted myself to one of the fuqaha.fl The one faqh to whom he bound himself was Hammad bin Abi Sulayman. 25 He studied under him for eighteen years, rejecting any desires to break away and form his own school, even after he was recognized as a mujtahid.26 Following Hammad™s death in 12 0 A.H., Abu HanifaŠby then well into his fortiesŠtook his beloved master™s place. 27 Though a master of fiqh, Abu Hanifa never ceased to learn. fiA scholar continues to seek knowledge,fl he observed in a train of thought that is Socratic and therefore universal, because The Law™s Greats: Ab Hanfah Page 4 of 22

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fiwhen he thinks that he knows, he is ignorant.fl 28 He also never shunned learning other people™s perspectivesŠeven though he may not have accepted themŠas he felt that one could always learn by listening to and dialoguing with others. fiThe most knowledgeable of people,fl Abu Hanifa wisely observed, fiis the one with the most knowledge of people™s differences.fl 29 He knew that heresy was not absolutely false, but rather involved an exaggeration of one truth often at the expense of another. The emphasis that Abu Hanifa placed on knowledge was directly related to his notion of the right and the good. Explains th e Egyptian scholar Muhammad Abu Zahra: Abu Hanifa thought that righteous actions must be based on sound knowledge. In his view, a good person is not just someone who does good, but someone who can differentiate between good and evil, and who aims for good, out of knowledge, and avoids evil, understanding its evil. A just person is not someone who is just with out understanding injustice; a just person must recognize injustice and its consequences and justice and its results, and act with justice because of the nobility and good consequences it entails.30 The School (Maddhab) of Abu Hanifa Background During Abu Hanifa™s life, the Islami c world bubbled in ferment, ferment caused by the yeast of dispute in the areas of politics,31 religion, and, what may amount to almost the same thing in Islam, Islamic law. 32 After the death of Muhammad, Islamic law found itself in a sort of imbalance, and it took several generations before scholars found a point of equilibrium. After Muhammad™s death, the overwhelming influence of Me dina on doctrine and practiceŠwhose authority was largely that of the Comp anions of the ProphetŠwaned as the Companions moved to other cities and died, and schools in other citiesŠKufa, Basra, Baghdad, among others , began to claim equal wo rth to that of Medina. 33 Further, a great rift rose between two groups of scholarsŠthe scholars of tradition and the scholars of opinion, though often scholars exhibited tendencies of both schools.34 The first group of scholars were the traditionists (the ahl-al-hadith or ahl-al-riwayah as they were known),35 and, in construing the Quran, they focused on the hadth or reports on the sayings and deeds of Muhammad and his Companions. These scholars of hadith spent their energies in gathering up, memorizing, and ultimately transcribing the countless narrations and traditions about the Prophet The Law™s Greats: Ab Hanfah Page 5 of 22

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and his Companions. Unfortunately, th ey did not use any critical apparatus (dirayat) to sort out the authentic hadith from the spurious, and as a result far too often counterfeit traditions were mindlessly if piously accepted as authentic.36 Further, the traditionists strictly, and largely uncritically, abided by hadith; where they thought they found a rule they would not depart from it. This presented a problem if the hadith was not authentic. Where the hadith had no rule on a matter, or where perhaps it had more than one rule or contradictory rules, the traditionists eschewed the application of non-litera l thought or analogical reasoning (qiys) to lead them out of their quandary. 37 Though performing a va luable service to the future of Islam in gathering up and preserving the traditions of the past, the benefits of this service were mixed w ith the propagation of inauthentic hadith and a vision of jurisprudence that promised a most stultifying and uncompromising law.38 The second group of scholars (known as the ahl-al-ra™y ) took a different tack. Though accused by their opponents, largely unfairly, of rejecting the teachings of Muhammad and the Companions, they in fact did not reject the Qur™n and hadth. Generally, the ahl-al-ra™y allowed themselves the liberty to assess a particular hadith critically to determine its authenticity and its level of authoritativeness. Additionally, when faced with a novel circumstance that required a judgment when there was no direct Quranic or hadithic guidance on the point, they allowed themselves the freedom to derive additional rules of law from the Qur™ n and the authentic hadith based on a reasoned opinion or judgment (ra™y) which allowed the extrapolation from these sources of law. 39 The great divide between these two schools somewhat followed geography, as most of the adherents of ahadth were in the Hijaz (Northwestern Arabia) and Syria, and most of the adherents of ra™y were in Iraq.40 By the time of the Tbi‚ -t-Tbi‚n,41 the dispute between these two school s of thought had intensified, and their advocates hurled virulent words at each other. Naturally, this debate threatened the unity of Islam. 42 Commonly, the great Islamic jurist Abu ‚Abd Allah ash-Shafi‚i (767-819 A.D.) is given the credit for reconciling these two streams of fiqh to give rise to the fifour-root edfl formulation of the so-called ficlassicalfl theory of Islamic law, the Usl al-fiqh.43 However, some Hanafites dissent to the honor being given to Shaf i‚i, who, after all, is the eponymous founder of a rival school, the Shafi‚ite. The highly-regarded Indian Muslim Hanafi scholar Mawlana Shibli Nu™mani expresses the Hanafi view: It is commonly thought that Shafi‚i was the first to formulate these rules, which are now called Usul-i-Fiqh (the roots or principles of jurisprudence). This idea is correct only in so far as reduction of the rules to writing is concerned. Before Shafi™ i set them forth regularly in writing the rules had been framed by Abu Hanifa, who had th us already laid the foundation of The Law™s Greats: Ab Hanfah Page 6 of 22

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Abu Hanifa summarized his Usl al-fiqh thus: I would take the book of God, and, if I could not find an injunction therein, then I would refer to the Sunna of the Prophet. If I failed to discover an injunction in either of the main texts, then I would go to the words and states, aqwl, of the Prophet™s companions. From these I would either take or leave evidence as I saw fit. I would not refer to anyone else. When I came to the tabi™n such as Ibrhim, Sha™bi, Ibn S rin, At™ and Sa™ d b. al-Musayyab, I would exercise my own opinion as they would do, since they are only men like me. 50 As a last refuge to arriving at an answer to a legal problemŠwhere qiys applied to the sources yielded no rule or gave no guidanceŠAbu Hanifa would rely on custom (‚urf).51 Application of Analogy (Qiys) In exercising his fiown opinionfl based on the Qur™n, Sunnah, and consensus ( ijm), Abu Hanafi used a system of analogical thinking ( qiys). Though it is fi[q]uite simply a tool used by lawyers to compare cases,fl qiys is fione of the most important methods developed by Islamic law to deal with new cases and issues, the details of which were not explicitly covered by the Qur™an, Sunna and ijm [consensus].fl52 In order to apply the process of qiys, a number of elements (known as shurt) must be met. In essence the application of qiys requires: (i) the identification of a text which has an injunction known as the base (asl), (ii) a branch case which has no similar injunction (far™), and (iii) a common reasoning (‚illa) between the two. Once the ‚illa between the asl and far™ is found, the injunction applicable to the base can be extended to the branch case, subject only to the application of istihsan.53 As an example of the application of qiys is the issue confronting a Muslim who has before him a shot of whiskey or a glass of fermented date juice. The Quran prohibits the drinking of grape wine ( khamr),54 but does not mention alcoholic beverages derived from fermented da te juice or barley or grains. If he approached a faqh for a fatwa, the faqh would have to apply qiys to the Quranic prohibition to derive the answer as to whether or not the Quran also prohibits the drinking of the beverages before him ( far™). The reason (illa) behind that Quranic injunction against drinking grape wine (the asl) is the causing of intoxication and its ill effects. Because intoxication and its ill effects will result in the ingestion of fermented date juice or beer, an analogy (qiys) may appropriately be made, the same injunction applicable to grape wine (a prohibition) can be applied to fermented date juice or beer.55The Law™s Greats: Ab Hanfah Page 8 of 22

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Abu Hanifa was often accused of appl ying reasoning at the expense of tradition, but this was an accusation he vehemently denied.56 According to his method: fiWe only use analogy when there is a strong need for it. We look for evidence about the Question in the Book, the Sunna and the decisions of the Companions. If we do not find anything [there] then we use analogy since there is silence about the matter.fl 57 For Abu Hanifa, the Qur™ n and the Sunnah are fiinseparable as the basis of the Shari‚afl and the use of qiys did not detract from them, but broadened them. 58 Handling Inauthentic Hadith In identifying the sources of law and applying analogical reasoning ( qiys) Abu Hanifa confronted the problem of inauthentic hadith that was entwined with authentic hadith. Bukhari and Muslim were not yet there to select sound Traditions from this tangled mass. Abu Hanifah™s preoccupation with Fiqh did not permit him to undertake this work, but he did the next best thing, which was to devise a system of criticizing narrations and lay down rules and regulations for it. His standard of criticism has been considered extremely rigorous, so that the muhaddithin have given him the title of mushaddid fi al-riwayat (i.e., stringent in narration) . . . .59 The development of principles of criticism (known as dirayat) to be applied to the ahadth to sort out the auth entic from the inauthentic and to therefore determine the level at which they bound the lawmaker, was considered to be one of Abu Hanifa™s fimost valuable contri bution[s],fl and one of his figreatest achievementsfl in the area of fiqh.60 There is, in theory, no essential difference between the Qur™n and the Sunnah as they are both considered revelation. The only distinction is their mode of transmission, as the Qur™ n is considered written revelation (wahi matlu ) and the ahadth which is evidentiary of the Sunnah is considered unwritten revelation (wahi ghair matlu). Because of the suspect nature of many ahadth, however, there is a significant difference between the Qur™n and the ahadth with respect to proof. If a particular hadth is definitely and unchallengeably authentic, it ranks equivalent with the Qur™n as a source of law. Each hadth, however, varies with respect of degree of proof, and this variation must be taken into account in deducing le gal directions from them. The proof of the ahadth relates to two distinct issues. The first relates to the accuracy of their transmission,61 and second to their use as a source of law. It is in this latter area that Abu Hanifah was called upon to undertake it as a pioneer in the systematization of fiqh. From the point of view of proof as legal sources, he divided the ahadth into three grades: mutawatir, mashhur, and ahad.62 A rule of The Law™s Greats: Ab Hanfah Page 9 of 22

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law derived from a mutawatri hadth he considered mandatory and fundamental; it could, in some cases, even abrogate an express command in the Qur™ n. A rule of law derived from a mashhur h adth was not mandatory, bu t could be used to define, explain, or supplement a legal precept contained in the Qur™ n. An ahad hadthŠi.e., one considered neither mutawatri or mashurŠcould not affect in any manner a clear Quranic injunction. 63 The Liberality of the Hanafi School The Hanifite school is regarded as (rela tively) liberal, so much so that the liberal nature of the school is practically proverbial in Islamic circles. 64 Of all other schools, the Hanifite seems to take the most liberal stance toward the fipeople of the Bookfl (Ahl al-Kitb), that is Christians and Jews under the jurisdiction of an Islamic state. Yet that liberality is very relative, as it remained wed to the concept of dhimmitude, and the re strictions, social and civil, associated with that status.65 Perhaps the relative liberality of the Hanafi school is best exemplified by a comparison of the level of strictness between the Hanafi maddhab and the other three Sunni orthodox schools on the issue of the punishment for theft ( sariqah), which, under the shar‚a is the cutting of the right hand.66 Though it may not appear liberal by our mores, the Hanif ite position, given the limitations imposed by the Quranic texts, is consistently less rigorous that the competing Sunni schools. Contrary to the other Sunni sc hools, Abu Hanifa held that many thefts were not punishable through the Quranic injunction mandating the cutting of the right hand: Hanifite School67Other Schools Theft of an article less than an ashrafi68 of value Theft of an article less than ¼ of an ashrafi of value Theft committed jointly Hanbal teaches each participant must pay with his hand Theft by a minor Malik holds a minor must pay with loss of hand Theft of shroud not punishable by loss of hand Other imams teach that it is Theft of a spouse™s or father™s goods Malik disagrees Theft of the goods of a near relative Other imams disagree Theft by failure to return collateral Other imams disagree The Law™s Greats: Ab Hanfah Page 10 of 22

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When thief obtains title to stolen goods through post-theft gift or purchase Other imams disagree Theft of perishable goods Other imams disagree Abu Hanifa™s Codification As a result of a distinction attributed to Abu Hanifa, the Hanafi body of law, that is its fiqh, is divided into two broad categor ies. The first category is the divine law of the shar ‚a, and the second category involves law where the shar‚a is silent, where the human lawgiver and prudential judgment steps in ( qnn).69 Some have stated that Abu Hanifa™s fimost valuable contributionfl to fiqh was the distinction he made between the shar‚a and the qnn.70 In relation to the first category of rules the faqih is a commentator and expounder, and the qualifications he needs in that capacity are command of language, knowledge of texts, power of deduction, ability to rectify inconsistencies and skill in appraising arguments. In relation to the second category of rules his is a lawgiver an d must possess gifts comparable with those of the world™s famous lawgivers. These two capacities are quite distinct from each other. In Islam there have been many renowned exegetes and commentators upon the Qur™an and the Hadith who had no ability to frame laws. Similarly, there have been great lawmakers who had no talent for explaining texts of the Shari‚ah. I know of no other manŠwhether mutahid or imamŠin the whole of Islam™s long history who combined in himself qualities of the two orders to the high degree that Abu Hanifa did.71 Abu Hanifa became convinced that a systematic, written treatment of fiqh was urgent, and though he was fiendo wed with an original mind and an extraordinary flair for law,fl72 he also knew that a project of systematizing fiqh in written form was too large for one man to tackle. Accordingly, Abu Hanifa put together a group of forty of his best pupils. These brightest pupils, under the headship of their master, occupied themselves for thirty years in systematizing and compiling fiqh through a series of books ( katib).73 The compilation was massive, comprehensive, and by the time it was complete entailed hundreds of thousands of legal propositions (masa™il ), perhaps even more than one million.74 The compilation became central in the education of students of law: The Imam™s school, thanks to the compilation, became a veritable law college whose alumni were appointed in large numbers to judicial and administrative posts, in which they used it as their vade mecum.75 Yet this massive compilation has been lost to the world, and though its The Law™s Greats: Ab Hanfah Page 11 of 22

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