Muhammad Waqar vs The State etc
This matter arises from a post-arrest bail application filed by the petitioner in case FIR No. 934/2024, registered under Sections 302, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Saddar Kasur. The prosecution alleged that the petitioner, along with co-accused, tortured the complainant's son and drowned him in a tube well pool. The legal question before the High Court was whether the petitioner was entitled to post-arrest bail given the forensic and medical evidence regarding the cause of death. The High Court dismissed the application, holding that the ocular account of drowning was directly corroborated by the postmortem report, police investigation, and the forensic histopathological analysis from the Punjab Forensic Science Agency, which confirmed ante-mortem drowning through a positive diatom test matching the control water sample. The Court established that a positive diatom test from internal organs matching control water corroborates ocular accounts of ante-mortem drowning, disentitling the accused to post-arrest bail in murder cases.
- Whether a positive diatom test in internal organs matching control water establishes ante-mortem drowning?
- Can post-arrest bail be granted in a murder case where ocular testimony of drowning is fully corroborated by medical and forensic evidence?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through this application, the Petitioner seeks post-arrest bail in case FIR No.934/2024 dated 28.03.2024 registered at Police Station Saddar Kasur, District Kasur, for offences under sections 302, 148 & 149 PPC.
2. The allegation against the Petitioner is that on 26.03.2024, he, along with his co-accused, subjected the Complainant's son, Umar Farooq, to torture at the dera of Col. Farooq Bahadur. They then dragged him to the pool of a tube well located there, forcibly pushed him into it, and drowned him.
3. Arguments heard. Record perused.
4. The Petitioner is specifically named in the FIR. PWs Muhammad Arshad and Imran have recorded statements under section 161 Cr.P.C., supporting the prosecution's case. On 29.03.2024, Dr. Muhammad Awais Qarni, Medical Officer at DHQ Hospital, Kasur, conducted Umar's postmortem and confirmed that the cause of death was drowning, thereby substantiating the ocular account.
5. The diatom test is an effective method for determining whether death was caused by drowning.
When a person is alive, and death occurs due to true drowning, referred to as ante-mortem drowning, it means the individual inhaled water while their mouth and nose were submerged.
During this process, diatoms present in the water enter the lungs and, through blood circulation, reach the liver or other organs as blood continues to flow in the arteries and veins. In such cases, both the diatoms in the control water sample and those in the deceased's liver test positive. On the other hand, if the individual was already dead before entering the water, the lungs may contain diatoms, but the liver will not test positive for diatoms because blood circulation ceases after death. In this scenario, diatoms in the control water sample test positive, whereas those in the deceased's liver test negative. Modi explains the diatom test as follows:[1] "Finding of diatoms by microscopic examination of tissues like brain, liver or bone marrow from the femur or humerus, after acid digestion is also helpful in confirming death from drowning. Diatoms are a class of tiny unicellular algae of different shapes found in fresh or seawater. There are about 15,000 types of diatoms of which half are found in fresh water and the rest in seawater. They may be fan shaped (stellate), ribbon like and seen singly or in groups. They vary in size from 2m-1.0 millimeter, the usual size being 10.80m. They have hard siliceous, almost indestructible outer covering (frustule) and can pass through the alveolar walls of the lungs of a living person to the brain, liver and bone marrow."
6. In this case, the Investigating Officer collected control water for diatoms and fixatives (10% formalin).
7. During Umar's postmortem, Dr. Muhammad Awais Qarni took out portions of the deceased's heart, lung, kidney, brain, and liver. He sealed them in separate jars and sent them to the Punjab Forensic Science Agency, Lahore (PFSA), for analysis. The PFSA's report dated 11.06.2024 gives the following histopathological findings: Histological examination of heart sections reveals patent coronaries. The myocardium sections are unremarkable. The lung sections reveal vascular congestion and presence of edematous fluid inside alveoli. The sections from liver reveal no pathological changes. The renal sections reveal renal tissue congestion and associated hemorrhages inside renal tissue. The brain tissue sections reveal congested blood vessels. Cytological examination of specially prepared smears from liver for Diatoms is positive and matched with present Diatoms in control water.
Based on the above findings, the Forensic Histopathologist has concluded that this is a case of ante-mortem drowning.
8. In this case, the ocular account provided by the prosecution witnesses is corroborated by both medical evidence and the forensic report. Furthermore, the police investigation has concluded that the Petitioner committed the alleged offence.
9. This application has no merit and is, therefore, dismissed.
10. The learned trial court shall decide the case on the basis of the evidence adduced before it without being prejudiced with this order.
1. Modi, A Textbook of Medical Jurisprudence and Toxicology, 27th Edn., p. 606-7