PARTICULARITY OF DESCRIPTION 12. BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, petitioners, vs. HON.

JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, et al, respondents. DECISION VILLAMOR, J: This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized and existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null and void Search Warrant No. 2-M70 issued by respondent Judge on February 25, 1970; to order respondents to desist from enforcing the same and/or keeping the documents, papers and effects seized by virtue thereof, as well as from enforcing the tax assessments on petitioner corporation alleged by petitioners to have been made on the basis of the said documents, papers and effects, and to order the return of the latter to petitioners. We gave due course to the petition but did not issue the writ of preliminary injunction prayed for therein. The pertinent facts of this case, as gathered from record, are as follows: On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon, one of herein respondents, to make and file the application for search warrant which was attached to the letter. In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers: respondent Veras aforesaid letter request; an application for search warrant already filled up but still unsigned by respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a deposition in printed form of respondent Logronio already accomplished and signed by him but not yet subscribed; and a search warrant already accomplished but still unsigned by respondent Judge. At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had adjourned, respondent Judge was informed that the depositions had already been taken. The stenographer, upon request of respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge asked respondent Logronio to take the oath and warned him that if his deposition was found to be false and without legal basis, he could be charged for perjury. Respondent Judge signed respondent de Leons application for search warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and accordingly issued. Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant to petitioners at the offices of petitioner Corporation on Ayala Avenue, Makati, Rizal. Petitioners lawyers protested the search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The agents nevertheless proceeded with their search which yielded six boxes of documents. On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be issued, that the search warrant be declared null and void, and that the respondents be ordered to pay petitioners, jointly and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru the Solicitor General, filed an answer to the petition. After heari ng, the court, presided over by respondent Judge, issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner

corporation in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized. Petitioners came to this Court. The petition should be granted for the following reasons: 1. Respondent Judge failed to personally examine the complainant and his witness. The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are: (3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Art. III, Sec. 1, Constitution.) SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. No search warrant shall issue for more than one specific offense. SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. (Rule 126, Revised Rules of Court.) The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the judge himself and not by others. The phrase which shall be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, appearing in the said constitution al provision, was introduced by Delegate Francisco as an amendment to the draft submitted by the Sub-Committee of Seven. The following discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional Convention, Vol. III, pp. 755-757) is enlightening: SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano. En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria que causaria cierta demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o si Su Seoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los derechos del individuo en su persona, bienes etcetera, etcetera. SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se atendra solamente a sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin examiner a los testigos. SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito siempre requeriria algun tiempo?. SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males debemos escoger. el menor. xxx xxx xxx

MR. LAUREL.. . . The reason why we are in favor of this amendment is because we are incorporating in our constitution something of a fundamental character. Now, before a judge could issue a search warrant, he must be under the obligation to examine personally under oath the complainant and if he has any witness, the witnesses that he may produce . . . The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it requires the judge, before issuing a search warrant, to personally examine on oath or affirmation the complainant and any witnesses he may produce . . . Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants except upon probable cause. The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary. In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant (respondent De Leon) and his witness (respondent Logronio). While it is true that the complaina nts application for search warrant and the witness printed-form deposition were subscribed and sworn to before respondent Judge, the latter did not ask either of the two any question the answer to which could possibly be the basis for determining whether or not there was probable cause against herein petitioners. Indeed, the participants seem to have attached so little significance to the matter that notes of the proceedings before respondent Judge were not even taken. At this juncture it may be well to recall the salient facts. The transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the depositions of the complainant and his witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent Judge was at the sala hearing a case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and witness Logronio went to respondent Judges chamber and informed the Judge that they had finished the depositions. Respondent Judge then requested the stenographer to read to him her stenographic notes. Special Deputy Clerk Gonzales testified as follows: A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them, requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and without legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon. Q A Q A Q A And thereafter? And thereafter, he signed the deposition of Mr. Logronio. Who is this he? The Honorable Judge. The deposition or the affidavit? The affidavit, Your Honor.

Thereafter, respondent Judge signed the search warrant. The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2-M-70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning against the commission of perjury , and to administering the oath to the complainant and his witness. This cannot be considered a personal examination. If there was an examination at all of the complainant and his witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the rules require a personal examination by the judge. It was precisely on account of the intention of the delegates to the Constitutional Convention to make it a duty of the issuing judge to personally examine the complainant and his witnesses that the question of how much time would be consumed by the judge in examining them came up before the Convention, as can be seen from the record of the proceedings quoted above. The reading of the stenographic notes to respondent Judge did not constitute sufficient compliance with the constitutional mandate and the rule; for by that manner respondent Judge did not have the opportunity to observe the demeanor of the complainant and his witness, and to propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to

conceive. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause. 2. The search warrant was issued for more than one specific offense. Search Warrant No. 2-M-70 was issued for [v]iolation of Sec. 46(a) of the National Internal Revenue Code in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209. The question is: Was the said search warrant issued in connection with one specific offense, as required by Sec. 3, Rule 126? To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to above. Thus we find the following: Sec. 46(a) requires the filing of income tax returns by corporations. Sec. 53 requires the withholding of income taxes at source. Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent returns. Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information required under the Tax Code. Sec. 208 penalizes [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article subject to a specif ic tax, without having paid the privilege tax therefore, or who aids or abets in the conduct of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . ., and provides that in the case of a corpora tion, partnership, or association, the official and/or employee who caused the violation shall be responsible. Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output removed, or to pay the tax due thereon. The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated. The second is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of Sec. 208 (unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to make a return of receipts, sales, business or gross value of output actually removed or to pay the tax due thereon). Even in their classification the six above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on Business and Occupation). Respondents argue that Stonehill, et al. vs. Diokno, et al., L-19550, June 19, 1967 (20 SCRA 383), is not applicable, because there the search warrants were issued for violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code; whereas, here Search Warrant No 2-M-70 was issued for violation of only one code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because it was precisely on account of the Stonehill incident, which occurred sometime before the present Rules of Court took effect on January 1, 1964, that this Court amended the former rule by inserting therein the phrase in connection with one specific offense, and adding the sentence No search warrant shall issue for more than one specific offense, in what is now Sec. 3, Rule 126. Thus we said in Stonehill: Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court tha t a search warrant shall not issue but upon probable cause in connection with one specific offense . Not satisfied with this qualification, the Court added thereto a paragraph, directing that no search warrant shall issue for more than one specific offense. 3. The search warrant does not particularly describe the things to be seized. The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this manner:

Unregistered and private books of accounts (ledgers, jour nals, columnars, receipts and disbursements books, customers ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications, accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970. The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized. In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said: The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, cre dit journals, typewriters, and other documents and/or paper showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pert aining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants. While the term all business transactions does not appear in Search Warrant No. 2-M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for the language used therein is so all-embracing as to include all conceivable records of petitioner corporation, which, if seized, could possibly render its business inoperative. In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of the requirement that the warrant should particularly describe the place to be searched and the things to be seized, to wit: . . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made, that abuses may not be committed. That this is the correct interpretation of this constitutional provision is borne out by American authorities. The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio; 57 Phil. 384); or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

Respondents contend that certiorari does not lie because petitioners failed to file a motion for reconsideration of respondent Judges order of July 29, 1970. The contention is without merit. In the first place, when the questions raised before this Court are the same as those which were squarely raised in and passed upon by the court below, the filing of a motion for reconsideration in said court before certiorari can be instituted in this Court is no longer a prerequisite. (Pajo, etc., et al. vs. Ago, et al., 108 Phil., 905). In the second place, the rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. (Matutina vs. Buslon, et al., 109 Phil., 140.) In the case at bar time is of the essence in view of the tax assessments sought to be enforced by respondent officers of the Bureau of Internal Revenue against petitioner Corporation. On account of which immediate and more direct action becomes necessary. (Matute vs. Court of Appeals, et al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the deprivation of petitioners fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity. (Matute vs. Court of Appeals, et al., supra.) It is next contended by respondents that a corporation is not entitled to protection against unreasonable search and seizures. Again, we find no merit in the contention. Although, for the reasons above stated, we are of the opinion that a n officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination . . . (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.) In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to a corporation, the ground that it was not privileged from producing its books and papers. But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way. (Silverthorne Lumber Company, et al. v. United States of America, 251 U.S. 385, 64 L. ed. 319.) In Stonehill, et al. vs. Diokno, et al., supra, this Court impliedly recognized the right of a corporation to object against unreasonable searches and seizures, thus: As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or the interest of each of them in said corporations, whatever, the offices they hold therein may be. Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity . . . In the Stonehill case only the officers of the various corporations in whose offices documents, papers and effects were searched and seized were the petitioners. In the case at bar, the corporation to whom the seized documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score, petitioner Corporation here stands on a different footing from the corporations in Stonehill. The tax assessments referred to earlier in this opinion were, if not entirely as claimed by petitioners at least partly as in effect admitted by respondents based on the documents seized by virtue of Search Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months after the search and seizure on February 25, 1970, is a strong indication that the documents thus seized served as basis for the assessments. Those assessments should therefore not be enforced.

PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said search warrant; the documents, papers and effects seized thereunder are ordered to be returned to petitioners; and respondent officials the Bureau of Internal Revenue and their representatives are permanently enjoined from enforcing the assessments mentioned in Annex G of the present petition, as well as other assessments based on the documents, papers and effects seized under the search warrant herein nullified, and from using the same against petitioners in any criminal or other proceeding. No pronouncement as to costs. 13. Printed 14. THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant, vs. JOSE MA. VELOSO, defendantappellant. MALCOLM, J.: This is an appeal from a judgment of the Court of First Instance of Manila finding the accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the authority, in violation of article 252 of the Penal Code, and sentencing him to four months and one day imprisonment, arresto mayor, with the accessory penalties, to pay a fine of P200, with the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. The errors assigned by counsel for the accused as appellant, go to the proposition that the resistance of the police was justifiable on account of the illegality of the John Doe search warrant. In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the House of Representative of the Philippine Legislature. He was also the manager of the club. The police of Manila had reliable information that the so-called Parliamentary Club was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad, had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge Garduo of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a little after three in the afternoon of the date above- mentioned. They found the doors to the premises closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke in the outer door. Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not John Doe, and that the police had no right to search the house. Townsend answered that Veloso was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend required Veloso to show him the evidence of the game. About five minutes was consumed in conversation between the policemen and the accused, the policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit to the search. At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only to meet with the latters resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another part of the body, which injured the policeman quite severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper, of reglas de monte, cards, cardboards, and chips were taken from his pockets. All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again refused to obey and shouted offensive epithets against the police department. It was necessary for the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three policemen were needed to place him in the patrol wagon. In the municipal court of the City of Manila, the persons arrested in the raid were accused of gambling. All of them were eventually acquitted in the Court of First Instance for lack of proof, with the sole exception of Veloso, who was found

guilty of maintaining a gambling house. This case reached the appellate court where the accused was finally sentenced to pay a fine of P500. (No. 22163. 1 ) The foregoing are the principal facts taken mainly from the findings of the trial judge, the Honorable Vicente Nepomuceno. Counsel for the appellant makes no effort to impugn these findings, except that he stresses certain points as more favorable to the case of his client. The defense, as previously indicated, is planted squarely on the contention that since the name of Veloso did not appear in the search warrant, but instead the pseudonym John Doe was used, Veloso had a legal right to resist the police by force. The nature of this defense makes it advisable to set forth further facts, relating particularly to the search warrant, before passing to the law. There are found in the record the application for search warrant, the affidavit for search warrant, and the search warrant. The application reads: UNITED STATES OF AMERICA PHILIPPINE ISLANDS IN THE MUNICIPAL COURT OF THE CITY OF MANILA THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant. APPLICATION FOR (G) SEARCH WARRANT Testimony taken before Hon. L. Garduo, Judge, Municipal Court, Manila. Andres Geronimo, being duly sworn, testifies as follows: Q. What is your name, residence and occupation? A. Andres Geronimo, No. 47 Revellin, detective. Q. Are you the applicant of this search warrant? A. Yes, sir. Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C., City of Manila? A. Yes. sir. Q. Do you know who occupies said premises? A. I do not know. According to the best of my information the house is occupied by John Doe. Q . What are your reasons for applying for this search warrant? A. It has been reported to me by a person whom I consider to be reliable that in said premises there are instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games kept. It has been reported to me by a person whom I consider to be reliable that there are or there will be gambling conducted in said premises. The aforesaid premises are known as gambling house. I have watched the foregoing premises and believed it to be a gambling house and a place where instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games are kept. I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing questions and answers and that I find the same to correct and true to the best of my knowledge and belief. (Sgd.) ANDRES GERONIMO Subscribed and sworn to before me this 25th day of May, 1923. (Sgd.) L. GARDUO Judge, Municipal Court The affidavit and the search warrant are so nearly alike that it will suffice to copy the search warrant alone. This document reads: UNITED STATES OF AMERICA PHILIPPINE ISLANDS IN THE MUNICIPAL COURT OF THE CITY OF MANILA THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff, vs. JOHN DOE, Defendant. SEARCH WARRANT (G) The People of the Philippine Islands, to any member of the Police Force of the City of Manila. GREETING: Proof by affidavit having this day been made before me by Andres Geronimo that he has good reason to believe and does believe that John Doe has illegally in his possession in the building occupied by him and which is

under his control, namely in the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in violation of the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte and that the said John Doe keeps and conceals said devices and effects with the illegal and criminal intention of using them in violation of the Gambling Law. Now therefore, you are hereby commanded that at any time in the day or night within ten (10) days on or after this date to make a search on the person of said John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the above described devices and effects and if you find the same or any part thereof, you are commanded to bring it forthwith before me as provided for by law. Given under my hand, this 25th day of May, 1923. (Sgd.) L. GARDUO Judge, Municipal Court Coming now to the legal aspects of the case it is first worthy of mention that by reason of the Fourth Amendment to the United States Constitution and the eleventh and eighteenth paragraphs of the Philippine Bill of Rights, as found in the present Organic Act, the security of the dwelling and the person is guaranteed. The organic act provides "that the right to be secured against unreasonable searches and seizures shall not be violated." It further provides "that no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized." In the Philippine Code of Criminal Procedure are found provisions of the same import although naturally entering more into detail. It is therein provided, among other things that "a search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person of thing to be seized." (Section 97.) After the judge or justice shall have examined on oath the complainant and any witnesses he may produce, and shall have taken their depositions in writing (section 98), and after the judge or justice is satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant which must be substantially in the following form: . . . You are, therefore, commanded, . . . to make immediate search on the person of ............................, or in the house situated ...................................... (describing it or any other place to be searched with reasonable particularity, as the case may be) for the following property: . . . ." (Section 99.) It is finally provided that "a person charged with a crime may be searched for dangerous weapons or anything which may be used as proof of the commission of the crime. (Section 105). A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued. Otherwise it has rightly been held, must be absolutely legal, "for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect." The warrant will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.) The search warrant has been likened to a warrant of arrest. Although apprehending that there are material differences between the two, in view of the paucity of authority pertaining to John Doe search warrants we propose to take into consideration the authorities relied upon by the appellant, thus following the precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of the issuance of the search warrant was also questioned. In the lower court, and again in this court, the attorneys for the defense quoted from Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1 of the Tenth Edition, is found the following: Form and Sufficiency of Warrant. Technical accuracy is not required. . . . xxx xxx xxx

Name and description of the accused should be inserted in the body of the warrant and where the name is unknown there must be such a description of the person accused as will enable the officer to identify him when found. xxx xxx xxx

Warrant for apprehension of unnamed party, or containing a wrong name for the party to be apprehended is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused. xxx xxx xxx

John Doe' Warrants. It follows, on principle, from what has already been said regarding the essential requirements of warrants for the apprehension of persons accused, and about blank warrants, that a warrant for the apprehension of a person whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in unknown," is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such a warrant must, in addition, contain the best descriptio personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified. Person apprehended in act of committing a crime, under a "John Doe" warrant, on the other hand, the apprehension will not be illegal, or the officer liable, because under such circumstances it is not necessary that a warrant should have been issued. The authority most often cited to sustain the text, and quoted with approval by the United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10 Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the police court Lee, charging that "John Doe or Richard Roe, whose other or true name is to your complainant unknown," had committed an assault and battery upon him; upon which complaint a warrant was issued against "John Doe or Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing complaint." Neither the complaint nor the warrant contained any further description or means of identification of the person to be arrested. Crotty resisted the arrest upon the ground that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court of Massachusetts, said: We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendants at the time of the alleged riot was insufficient, illegal and void. It did not contain the name of the defendant, nor any description or designation by which he could be known and identified as the person against whom it was issued. It was in effect a general warrant, upon which any other individual might as well have been arrested, as being included in the description, as the defendant himself. Such a warrant was contrary to elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights, article 14, which declares that every subject has a right to be secure from all unreasonable searches and seizures of his person, and that all warrants, therefore, are contrary to this right, if the order in the warrant to a civil officer to arrest one or more suspected persons or to seize their property be not accompanied with a special designation of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an ancient common law right. It was always necessary to express the name or give some description of a party to be arrested on a warrant; and if one was granted with the name in blank, and without other designation of the person to be arrested, it was void. (1 Hale P. C. 577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and cases cited.) This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. (1 Chit. Crim. Law, 39, 40.)

The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer . . . The defendants, therefore, in resisting the officer in making an arrest under the warrant in question, if they were guilty of no improper or excessive force or violence, did not do an unlawful act by lawful means, or a lawful act by unlawful means, and so could not be convicted of the misdemeanor of a riot, with which they are charged in the indictment. Appellant's argument, as based on these authorities, runs something like this. The law, constitutional and statutory, requires that the search warrant shall not issue unless the application "particularly" describe the person to be seized. A failure thus to name the person is fatal to the validity of the search warrant. To justify search and arrest, the process must be legal. Illegal official action may be forcibly resisted. For the prosecution, however, as the arguments are advanced by the Attorney-General, and as the law was summarized by the trial judge, there is much to be said. Careful and logical reflection brings forth certain points of paramount force and exercising a decisive influence. We will now make mention of them by correlating the facts and the law. In the first place, the affidavit for the search warrant and the search warrant itself described the building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the premises to be searched. It is the prevailing rule that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly authorized to break down the door and enter the premises of the building occupied by the so-called Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been held that an officer making an arrest may take from the person arrested any money or property found upon his person, which was used in the commission of the crime or was the fruit of the crime, or which may furnish the person arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.) Proceeding along a different line of approach, it is undeniable that the application for the search warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso as the person to be seized. But the affidavit and the search warrant did state that "John Doe has illegally in his possession in the building occupied by him, and which is under his control, namely, in the building numbered 124 Calle Arzobispo, City of Manila, Philippine Islands, certain devices and effects used in violation of the Gambling Law." Now, in this connection, it must not be forgotten that the Organic Act requires a particular description of the place to be searched, and the person or things to be seized, and that the warrant in this case sufficiently described the place and the gambling apparatus, and, in addition, contained a description of the person to be seized. Under the authorities cited by the appellant, it is invariably recognized that the warrant for the apprehension of an unnamed party is void, "except in those cases where it contains a description personae such as will enable the officer to identify the accused ." The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used for club purposes. It was not the home of Veloso; not the place of abode of the family, which the law carefully protects in all of its sanctity. It was a club partially public in nature. It was, moreover, a camouflaged club with a high sounding name calculated to mislead the police, but intended for nefarious practices. In a club of such a character, unlike in the home, there would commonly be varying occupancy, a number of John Does and Richard Roes whose names would be unknown to the police. It is also borne out by the authorities that, in defense of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence. But even in the home, and much less so in a club or public place, the person sought to be arrested or to be searched should use no more force than is necessary to repel the unlawful act of the officers. To authorize resistance to the agents of the authority, the illegality of the invasion must be clearly manifest. Here, there was possibly a

proper case for protest. There was no case for excessive violence to enforce the defendant's idea of a debatable legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42 Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.) The trial judge deduced from the searched warrant that the accused Veloso was sufficiently identified therein. Mention was made by his Honor of the code provision relating to a complaint or information, permitting a fictitious name to be inserted in the complaint or information, in lieu of the true name. The Attorney-General adds to this the argument that the police were authorized to arrest without a warrant since a crime was being committed. We find it unnecessary to comment on this contention. John Doe search warrants should be the exception and not the rule. The police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. The police should not be hindered in the performance of their duties, which are difficult enough of performance under the best of conditions, by superficial adherence to technicality or far fetched judicial interference. We agree with the trial judge and with the Attorney-General in their conclusions to the effect that the search warrant was valid, and that the defendant has been proved guilty beyond a reasonable doubt, of the crime of resistance of the agents of the authority. The information alleges that at the time of the commission of the crime, the accused was a member of the House of Representatives. The trial court was led to consider this allegation in relation with the facts as an aggravating circumstance, and to sentence the accused accordingly. We doubt, however, that advantage was taken by the offender of his public position when he resisted the officers of the law. The offender did not necessarily make use of the prestige of his office as a means to commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted the police just as stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls within the medium of that provided by the Penal Code. Finding present no reversible error, agreeing in all respects with the findings of facts as made by the trial judge, and concurring with the trial judge in his legal conclusion, with one exception, it results that the judgment appealed from must be, as it is hereby, affirmed, with the sole modification that the defendant and appellant shall be sentenced to two months and one day imprisonment, arresto mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment into effect issue. 15. HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN PANGANDAMAN, MACARIAN PANGANDAMAN, MAMINTAL PANGANDAMAN, PACALUNDO PANGANDAMAN, MANGORAMAS PANGANDAMAN, MACADAOB P. PANGORANGAN KILATUN PANGANDAMAN, MARIO PANGANDAMAN, MACABIDAR PANGANDAMAN, PUYAT P. ROMAMPAT, SANTORANI P. DIMAPENGEN, NASSER P. DIMAPENGEN and DIAMA OPAO petitioners, vs. DIMAPORO T. CASAR, AS MUNICIPAL CIRCUIT TRIAL JUDGE OF POONABAYABAO, TAMPARAN AND MASIU, LANAO DEL SUR and THE PEOPLE OF THE PHILIPPINES, respondents. NARVASA, J.: The petitioners ask this Court: 1) to annul the warrant for their arrest issued by respondent Judge Dimaporo T. Casar of the Municipal Circuit Court of Masiu, Lanao del Sur, in Criminal Case No. 1748 entitled People vs. Hadji Ibrahim Solay Pangandaman et al.; 2) to prohibit the Judge from taking further cognizance of said Criminal Case No. 1748; and 3) to compel the Judge to forward the entire record of Criminal Case No. 1748 to the Provincial Fiscal of Lanao del Sur for proper disposition. Their plea is essentially grounded on the claim that the warrant for their arrest was issued by the respondent Judge without a proper preliminary investigation. The Solicitor General agrees and recommends that their petition be granted and the warrant of arrest voided.

On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del Sur, which left at least five persons dead and two others wounded. What in fact transpired is still unclear. According to one version, armed men had attacked a residence in Pantao, Masiu, with both attackers and defenders suffering casualties. Another version has it that a group that was on its way to another place, Lalabuan, also in Masiu, had been ambushed. On the following day, Atty. Mangurun Batuampar, claiming to represent the widow of one of the victims, filed a lettercomplaint with the Provincial Fiscal at Marawi City, asking for a "full blast preliminary investigation" of the incident. The letter adverted to the possibility of innocent persons being implicated by the parties involved on both sides none of whom was, however, identified and promised that supporting affidavits would shortly be filed. Immediately the Provincial Fiscal addressed a "1st endorsement" to the respondent Judge, transmitting Atty. Batuampar's letter and requesting that "all cases that may be filed relative .. (to the incident) that happened in the afternoon of July 27, 1985," be forwarded to his office, which "has first taken cognizance of said cases." No case relative to the incident was, however, presented to the respondent Judge until Saturday, August 10, 1985, when a criminal complaint for multiple murder was filed before him by P.C. Sgt. Jose L. Laruan, which was docketed as Case No. 1748. On that same day, the respondent Judge "examined personally all (three) witnesses (brought by the sergeant) under oath thru .. (his) closed and direct supervision," reducing to writing the questions to the witnesses and the latter's answers. Thereafter the Judge "approved the complaint and issued the corresponding warrant of arrest" against the fourteen (14) petitioners (who were named by the witnesses) and fifty (50) "John Does." An "ex-parte" motion for reconsideration was filed on August 14, 1985 by Atty. Batuampar (joined by Atty. Pama L. Muti), seeking recall of the warrant of arrest and subsequent holding of a "thorough investigation" on the ground that the Judge's initial investigation had been "hasty and manifestly haphazard" with "no searching questions" having been propounded. The respondent Judge denied the motion for "lack of basis;" hence the present petition. While they concede the authority of the respondent Judge to conduct a preliminary investigation of the offenses involved, which are cognizable by Regional Trial Courts, the petitioners and the Solicitor General argue that the Judge in the case at bar failed to conduct the investigation in accordance with the procedure prescribed in Section 3, Rule 112 of the Rules of Court ; and that that failure constituted a denial to petitioners of due process which nullified the proceedings leading to the issuance of the warrant for the petitioners' arrest. It is further contended that August 10, 1985 was a Saturday during which "Municipal Trial Courts are open from 8:00 a.m. to 1:00 p.m. only, ..." and "... it would hardly have been possible for respondent Judge to determine the existence of probable cause against sixty- four (64) persons whose participations were of varying nature and degree in a matter of hours and issue the warrant of arrest in the same day;" and that there was undue haste and an omission to ask searching questions by the Judge who relied "mainly on the supporting affidavits which were obviously prepared already when presented to him by an enlisted PC personnel as investigator." The petitioners further assert that the respondent Judge conducted the preliminary investigation of the charges "... in total disregard of the Provincial Fiscal ..." who, as said respondent well knew, had already taken cognizance of the matter twelve (12) days earlier and was poised to conduct his own investigation of the same; and that issuance of a warrant of arrest against fifty (50) "John Does" transgressed the Constitutional provision requiring that such warrants should particularly describe the persons or things to be seized. There can be no debate about the proposition that in conducting a pre investigation of any crime cognizable by the Regional Trial Courts, a judge of an inferior court (other than in Metro-Manila or the chartered cities, where no authority to conduct preliminary investigation is vested in such officials) must observe the procedure prescribed in Section 3 of Rule 112, 1985 Rules on Criminal Procedure. And although not specifically so declared, the procedure mandated by the Rule actually consists of two phases or stages. The first phase consists of an ex-parte inquiry into the sufficiency of the complaint and the affidavits and other documents offered in support thereof. And it ends with the determination by the Judge either: (1) that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the provincial fiscal; or (2) that the complaint and the supporting documents show sufficient cause to continue with the inquiry and this ushers in the second phase.

This second phase is designed to give the respondent notice of the complaint, access to the complainant's evidence and an opportunity to submit counter-affidavits and supporting documents. At this stage also, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, need to be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or holding the respondent for trial, which shall be transmitted, together with the record, to the provincial fiscal for appropriate action. The procedure above described must be followed before the complaint or information is filed in the Regional Trial Court. Failure to do so will result in a denial of due process. Here, no information has as yet been filed with the Regional Trial Court. There is no pretense that the preliminary investigation has been completed, insofar as the respondent Judge is concerned, and that he does not intend to undertake the second phase. In this situation, it cannot be said that he has failed to observe the prescribed procedure. What has happened is simply that after receiving the complaint and examining the complainant's witnesses, and having come to believe, on the basis thereof, that the offenses charged had been committed, the respondent Judge issued the warrant now complained of against the fourteen (14) respondents (now petitioners) named and Identified by the witnesses as the perpetrators of the killings and injuries, as well as against 50 "John Does." The real question, therefore, is whether or not the respondent Judge had the power to issue the warrant of arrest without completing the entire prescribed procedure for preliminary investigation. Stated otherwise, is completion of the procedure laid down in Section 3 of Rule 112 a condition sine qua non for the issuance of a warrant of arrest? There is no requirement that the entire procedure for preliminary investigation must be completed before a warrant of arrest may be issued. What the Rule provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed without completing that procedure. But nowhere is it provided that the procedure must be completed before a warrant of arrest may issue. Indeed, it is the contrary that is true. The present Section 6 of the same Rule 112 clearly authorizes the municipal trial court to order the respondent's arrest even before opening the second phase of the investigation if said court is satisfied that a probable cause exists and there is a necessity to place the respondent under immediate custody in order not to frustrate the ends of justice. Sec. 6. When warrant of arrest may issue.xxx xxx xxx (b) By the Municipal Trial Court. If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shag issue a warrant of arrest. This was equally true under the former rules, where the first phase of the investigation was expressly denominated "preliminary examination" to distinguish it from the second phase, or preliminary investigation proper. Thus, the former Section 6 of Rule 112 provided: SEC. 6. Warrant of arrest, when issued. If the judge be satisfied from the preliminary e petition conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. In Mayuga vs. Maravilla, this Court found occasion to dwell in some detail on the process of preliminary investigation and, incidentally, to affirm the power of a justice of the peace or municipal judge conducting a preliminary investigation to order the arrest of the accused after the first stage (preliminary examination), saying:

Appellant should bear in mind that a preliminary investigation such as was conducted by the Justice of the Peace has for its purpose only the determination of whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof, and if so, the issuance of a warrant of arrest. And it should not be forgotten that a preliminary investigation has two stages: First, a preliminary examination of the complainant and his witnesses prior to the arrest of the accused; and, second, the reading to the accused after his arrest of the complaint or information filed against him, and his being informed of the substance of the evidence against him, after which he is allowed to present evidence in his favor, if he so desires. Probable cause, in regard to the first stage of preliminary investigation, depends on the discretion of the judge or magistrate empowered to issue the warrant of arrest. It suffices that facts are presented to him to convince him, not that a person has committed the crime, but that there is probable cause to believe that such person committed the crime charged. The proceeding is generally ex parte unless the defendant desires to be present and while under the old Rules the Justice of the Peace or investigating officer must take the testimony of the complainant and the latter's witnesses under oath, only the testimony of the complainant shall be in writing and only an abstract of the testimony of the other is required. Regarding preliminary investigation, it has thus been ruled that 'the occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. ... The rule on arrest after preliminary examination has, of course, been modified somewhat since the occurrence of the facts upon which Mayuga was decided, but not to abrogate the authority of the investigating judge to order such arrest, and only to prescribe the requirement that before he may do so, he must examine the witnesses to the complaint, the examination to be under oath and reduced to writing in the form of searching questions and answers. This modification was introduced by Republic Act 3838, approved June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the "searching questions and answers" requirement is incorporated in the present Section 6 of Rule 112 already quoted. The argument, therefore, must be rejected that the respondent Judge acted with grave abuse of discretion in issuing the warrant of arrest against petitioners without first completing the preliminary investigation in accordance with the prescribed procedure. The rule is and has always been that such issuance need only await a finding of probable cause, not the completion of the entire procedure of preliminary investigation . Also without appreciable merit is petitioners' other argument that there was scarcely time to determine probable cause against sixty-four persons (the fourteen petitioners and fifty "Does") within a matter of hours on a Saturday when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That argument founders upon the respondent Judge's positive affirmations that he had personally and closely examined under oath the three witnesses to the complaint and that he had issued the warrant of arrest "believing that the offense thus filed had been committed." Nothing in the record before this Court belies or discredits those affirmations which have, besides, the benefit of the legal presumption that official duty has been regularly performed. The contention that the witnesses to the complaint had merely sworn before the respondent Judge to statements prepared beforehand and submitted by a military investigator must, in view of the foregoing considerations and for lack of any support in the record, be dismissed as mere speculation. The same argument also unwarrantedly assumes that the respondent Judge limited the proceedings on preliminary examination to the usual Saturday office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any persuasive showing that such proceedings could not have been completed within that time-frame. For all that appears, said respondent could have put off the 1:00 p.m. adjournment until he had finished interrogating the witnesses to his satisfaction. And there is really nothing unusual in completing within a three-hour period the questioning of three witnesses in a preliminary examination to determine the existence of probable cause. The record which, lacking proof to the contrary, must be accepted as an accurate chronicle of the questioned proceedings, shows prima facie that the respondent Judge had personally examined the witnesses to the complaint, and a consideration of the latter's sworn answers to his questions satisfies this Court that the finding of probable cause against the petitioners was neither arbitrary nor unfounded. The three witnesses to the complaint, Misandoning Monasprang, a student, Lawandato Ripors, an engineering graduate, and Sanny Monib a farmer gave mutually corroborative accounts of the incident. Under separate questioning, they declared that they were members of a party that was passing by Pantao on its way to Lalabuan from Talaguian, all in Masiu, Lanao del Sur,

at about 10:00 a.m. on July 27, 1985, when they were ambushed and fired upon by an armed group which included the petitioners and about fifty other unidentified persons; that five of the party had been killed and two (the witnesses Lawandato Ripors and Sanny Monib) wounded; that even after they had killed their victims, the ambushers had continued to fire at the dead bodies; that the witnesses managed to escape their attackers and return to Talaguian, where they informed their relatives about what had happened, and thence went to the municipal hall in Masiu to report to the authorities; that the dead victims were recovered only late in the afternoon of that day because the authorities could not "penetrate" the area and the ambushers refused to release the bodies; and that the ambush was an offshoot of a grudge between the families of the ambushers and those of the victims. The witnesses named and Identified the dead victims as Cadar Monasprang, Macacrao Guiling Macrang Hadji Alawi, Alicman Ripors and Malabato Diator. All of them also Identified by name each of the fourteen petitioners as members of the ambush group. The respondent Judge can hardly be faulted for finding enough cause to hold the petitioners named in the statements of three eyewitnesses to killings perpetrated in broad daylight. In Luna vs. Plaza, this Court ruled that the term "searching questions and answers" means ...only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial," such questions as have tendency to show the commission of a crime and the perpetuator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible motives for its commission; the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore must to a great degree depend upon the Judge making the investigation. ... Upon this authority, and considering what has already been stated above, this Court is not prepared to question the propriety of the respondent Judge's finding of probable cause or substitute its judgment for his in the matter of what questions to put to the witnesses during the preliminary examination. Upon the facts and the law, therefore, the warrant of arrest in question validly issued against the petitioners, such issuance having been ordered after proceedings, to which no irregularity has been shown to attach, in which the respondent Judge found sufficient cause to commit the petitioners to answer for the crime complained of. Insofar, however, as said warrant is issued against fifty (50) "John Does" not one of whom the witnesses to the complaint could or would Identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once anathematized as "totally subversive of the liberty of the subject." Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized, the warrant must, as regards its unidentified subjects, be voided. The fact that the Provincial Fiscal may have announced his intention of investigating the incident himself did not, in the view of the Court, legally inhibit the respondent Judge from conducting his own inquiry into the matter if, as is made to appear here, it was regularly brought before him and no formal complaint was filed before the Fiscal. Courtesy may have dictated that in those circumstances he leave the investigation to the Fiscal and simply endorse to the latter the complaint filed with him; duty did not, and if he nonetheless chose to conduct his own investigation, nothing in the rules states or implies that he could not do so. Be that as it may, since the action and final resolution of the respondent Judge after completing the second stage of the preliminary investigation are subject to review by the Provincial Fiscal, practical considerations of expediency and the avoidance of duplication of work dictate that the latter official be permitted to take over the investigation even in its present stage.

WHEREFORE, the warrant complained of is upheld and declared valid insofar as it orders the arrest of the petitioners. Said warrant is voided to the extent that it is issued against fifty (50) "John Does." The respondent Judge is directed to forward to the Provincial Fiscal of Lanao del Sur the record of the preliminary investigation of the complaint in Criminal Case No. 1728 of his court for further appropriate action. Without pronouncement as to costs. SO ORDERED.

16. PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T. CHIONG, petitioner, vs. COURT OF APPEALS, JUDGE CAESAR CASANOVA, Presiding Judge, Regional Trial Court, Branch 80, Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED, MUJAHID KHAN, MOHAMMAD ASLAM, and MEHMOOD ALI, respondents. [G.R. No. 126379. June 26, 1998] DECISION NARVASA, C.J.: In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of Court from the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court of Appeals. Said judgment dismissed the Peoples petition for certiorari to invalidate (i) the order of Judge Caesar A Casanova of Branch 80 of the Regional Trial Court dated February 9 1996, as well as (ii) that dated May 28, 1996 denying the Peoples motion for reconsideration. Those orders were handed down in Criminal Case No. 43-M-96, a case of illegal possession of explosives after the accused had been arraigned and entered a plea of not guilty to the charge. More particularly, the Order of February 9, 1996: 1) quashed a search warrant (No. 1068 [95]) issued by Judge Marciano I. Bacalla of Branch 216 of the Regional Trial Court at Quezon City on December 15, 1995, 2) declared inadmissible for any purpose the items seized under the warrant, and 3) directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days to be released thereafter in favor of the lawful owner considering that said amount was not mentioned in the Search Warrant." The antecedents, culled from the records by the Appellate Court, are hereunder set out. 1. On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch 261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms and explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Ave. Sapang Palay, San Jose del Monte Bulacan. 2. The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain was issued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent to Abigail Variety Store resulting in the arrest of four (4) Pakistani nationals and in the seizure of their personal belongings, papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglasses and travelling bags including cash amounting to $3,550.00 and P1,500.00 aside from US $5,175.00 (receipted) which were never mentioned in the warrant. The sum of $5,175.00 was however returned to the respondents upon order of the court on respondents motion or request. Included allegedly are one piece of dynamite stick; two pieces of plastic explosives C-4 type and one (1) fragmentation grenade. But without the items described in the search warrant are: (a) three (3) Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemical ingredients for explosives; and (f) assorted magazine assg and ammunitions. 3. On December 19, 1995, three days after the warrant was served, a return was made without mentioning the personal belongings, papers and effects including cash belonging to the private respondents. There was no showing that lawful occupants were made to witness t he search. 4. On January 22, 1996, private respondents upon arraignment, pleaded not guilty to the offense charged; ** and on the same date, submitted their Extremely Urgent Motion (To Quash Search Warrant and to Declare Evidence Obtained Inadmissible), dated January 15, 1996; 5. ** According to the private respondents in their pleading (consolidated comment on petition for certiorari **): On January 29, 1996, an ocular inspection of the premises searched was conducted by respondent Judge and the following facts had been established as contained in the order dated January 30, 1996** to wit:

1) That the residence of all the accused is at Apartment No. 1 which is adjacent to the Abigails Variety Store; 2) That there is no such number as 1207 found in the building as it is correspondingly called only Apartment No. 1, 2, 3, and 4; 3) That Apartment No. 1 is separate from the Abigails Variety Store; 4) That there are no connecting doors that can pass from Abigails Variety Store to Apartment No. 1; 5) That Abigails Variety Store and Apartment No. 1 have its own respective doors used for ingress and egress. That there being no objection on the said observation of the Court, let the same be reduced on the records. SO ORDERED. 6. On February 9, 1996, respondent Judge ** issued its order duly granting the motion to quash search warrant **; 7. On February 12, 1996, private respondents filed the concomitant motion to dismiss **; 8. On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration and supplemental motion on the order quashing the search warrant**; 9. On February 27, 1996 and March 12, 1996, private respondent filed opposition/comment and supplemental opposition/comment on the motion for reconsideration **: 10. On May 28, 1996, respondent Judge ** issued its order denying the motion for reconsideration **; (and on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss**. Chiefly to nullify Judge Casanovas quashal Order of February 9, 1996 above referred to, the Solicitor General forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did not prosper, however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on September 11, 1996, dismissing the case for lack of merit. The judgment was grounded on the following propositions, to wit: 1. The place actually searched was different and distinct from the place described in the search warrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings wherein, not objected to by the People, were embodied in an order dated January 30, 1996. The place searched, in which the accused (herein petitioners) were then residing, was Apartment No. 1. It is a place other than and separate from, and in no way connected with, albeit and adjacent to, Abigails Variety Store, the place stated in the search warrant. 2. The public prosecutors claim -- that the sketch submitted to Judge Bacalla relative to the application for a search warrant, actually depicted the particular place to be searched -- was effectively confuted by Judge Casanova who pointed out that said SKETCH wasnot dated, not signed by the person who made it and not even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead ** directed them to search Abigail Variety Store Apartment 1207 ** in the Order ** dated December 15, 1995 -- this, too, being the address given in the Application for Search Warrant dated December 14, 1995 requested by P/SR INSP. Roger James Brillantes, the Team Leader. The untenability of the claim is made more patent by the Peoples admission, during the hearing of its petition for certiorari in the Court of Appeals, that said sketch was in truth not attached to the application for search warrant ** (but) merely attached to the motion for reconsideration . Quoted with approval by the Appellate Court were the following observations of Judge Casanova contained in his Order of May 28, 1996, viz.: (d)** ** it is very clear that the place searched is different from the place mentioned in the Search Warrant, that is the reason why even P/SR. INSP Roger James Brillantes, SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were all EDUCATED, CULTURED and ADEPT to their tasks of being RAIDERS and who were all STATIONED IN BULACAN were not even able to OPEN THEIR

MOUTH to say in TAGALOG with Honorable Judge who issued the Search Warrant the words KATABI, or KADIKIT or KASUNOD NG ABIGAIL VARIETY STORE ang papasukin namin or if they happen to be an ENGLISH speaking POLICEMEN, they were not able to open their mouth even to WHISPER the ENGLISH WORDS RESIDE or ADJACENT or BEHIND or NEXT to ABIGAIL VARIETY STORE, the place they are going to raid.**. 3. The search was not accomplished in the presence of the lawful occupants of the place (herein private respondents) or any member of the family, said occupants being handcuffed and immobilized in the living room at the time. The search was thus done in violation of the law. 4. The articles seized were not brought to the court within 48 hours as required by the warrant itself; (i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126 of the Rules of Court. 5. Judge Casanova correctly took cognizance of the motion to quash search warrant, pursuant to the doctrinal tenets laid down in Nolasco vs. Pao (139 SCRA 152) which overhauled the previous ruling of the Supreme Court in Templo vs. dela Cruz (60 SCRA 295). It is now the prevailing rule that whenever a search warrant has been issued by one court or branch thereof and a criminal case is initiated in another court or branch thereof as a result of the search of the warrant, that search warrant is deemed consolidated with the criminal case for orderly procedure. The criminal case is more substantial than the search warrant proceedings, and the presiding Judge in the criminal case has the right to rule on the search warrant and to exclude evidence unlawfully obtained (Nolasco & Sans cases). 6. Grave abuseof discretion cannot be imputed to the respondent Judge, in light of Article III, Section 2 of the Constitution and Rule 126 of the Rules of Court. 7. The proper remedy against the challenged Order is an appeal, not the special civil aciton of certiorari. The Solicitor General now seeks reversal of the foregoing verdict ascribing to the Court of Appeals the following errors, to wit: 1) sanctioning the lower Courts precipitate act of disregarding the proceedings before the issuing Court and overturning the latters determination of probable cause and particularity of the place to be searched; 2) sanctioning the lower Courts conclusion that the sketch was not attached to the application for warrant despite the clear evidence ** to the contrary; 3) ignoring the very issues raised in the petition before it: 4) holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which the return is made; 5) hastly applying the general rule that certiorari cannot be made a substitute for appeal although the circumstances attending the case at bar clearly fall within the exceptions to that rule; and 6) depriving petitioner of the opportunity to present evidence to prove the validity of the warrant when the petition before it was abruptly resolved without informing petitioner thereof. The whole case actually hinges on the question of whether or not a search warrant was validly issued as regards the apartment in which private respondents were then actually residing, or more explicitly, whether or not that particular apartment had been specifically described in the warrant. The Government insists that the police officers who applied to the Quezon City RTC for the search warrant had direct, personal knowledge of the place to be searched and the things to be seized. It claims that one of said officers, infact, had been able to surreptitiously enter the place to be searched prior to the search: this being the first of four (4) separate apartments behind the Abigail Variety Store; and they were also the same police officers who eventually effected the search and seizure. They thus had personal knowledge of the place to be searched and had the competence to make a sketch thereof; they knew exactly what objects should be taken therefrom; and they had presented evidence sufficient to establish probable cause. That may be so; but unfortunately, the place they had in mind -- the first of four (4) separate apartment units (No. 1) at the rear of Abigail Variety Store -- was not what the Judge who issued the warrant himself had in mind, and was not what was ultimately described in the search warrant.

The discrepancy appears to have resulted from the officers own faulty depiction of the premises to be searched. For in their application and in the affidavit thereto appended, they wrote down a description of the place to be searched, which is exactly what the Judge reproduced in the search warrant: premises located at Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan. And the scope of the search was made more particular -- and more restrictive -- by the Judges admonition in the warrant that the search be limited only to the premises herein described. Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the area involved: the store known as Abigails Variety Store, and four (4) separate and independent residential apartment units. These are housed in a single structure and are contiguous to each other although there are no connecting doors through which a person could pass from the interior of one to any of the others. Each of the five (5) places is independent of the others, and may be entered only through its individual front door. Admittedly, the police officers did not intend a search of all five (5) places, but only one of the residential units at the rear of A bigails Variety Store: that immediately next to the store (Number 1). However, despite having personal and direct knowledge of the physical configuration of the store and the apartments behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 in the warrant. Even after having received the warrant -- which directs that the search be limited only to the premises herein described, Abigail Variety Store Apt 1207 -- thus literally excluding the apartment units at the rear of the store -- they did not ask the Judge to correct said description. They seem to have simply assumed that their own definite idea of the place to be searched -- clearly indicated, according to them, in the sketch they claim to have submitted to Judge Bacalla in support of their application -- was sufficient particularization of the general identification of the place in the search warrant. The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff, AFP, allegedly to the effect that the executing officers prior knowledge as to the place intended in the warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file. Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed an obvious typographical error. The application in said case was for seizure of subversive material allegedly concealed in two places: one at No. 19. Road 3, Project 6, Quezon City; and the other, at "784 Units C & D. RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued -- No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at 784 Units C & D, RMS Building, Quezon Avenue, Quezon City because both search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the application for the search warrants speci fied two (2) distinct addresses, and that in fact the address, 784 Units C&D, RMS Building, Quezon Avenue, Quezon City appeared in the opening paragraph of Warrant 20 -82 (b), this Court concluded that evidently, this was the address the judge intended to be searched when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the obviously typographical error, the officer executing the warrant could consult the records in the official court file.[12] The case at bar, however, does not deal with the correction of an obvious typographical erro r involving ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediately perceptible on the face of the warrants in question. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched -- although not that specified in the warrant -- is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigails Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers own perso nal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as

well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if not be that delineated in the warrant. It would open wide the door to abuse of search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. The Government faults Judge Casanova for having undertaken a review of Judge Bacallas finding of probable cause, as if he were an appellate court. A perusal of the record however shows that all that Judge Casanova did was merely to point out inconsistencies between Judge Bacalla' Order of December 15, 1995 and the warrant itself, as regards the identitie s of the police officers examined by Judge Bacalla. In Judge Casanovas view, said inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the determination of the facts on which the search warrant was founded. The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in the search warrant -- which, of course, is the only place that may be legitimately searched in virtue thereof -- was not that which the police officers who applied for the warrant had in mind, with the result that what they actually subjected to search-andseizure operations was a place other than that stated in the warrant . In fine, while there was a search warrant more or less properly issued as regards Abigails Variety Store, there was none for Apartment No. 1 -- the first of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondents were then residing. It bears stressing that under Section 2, Article III of the Constitution, providing that: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be serched, and the things to be seized., it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge after examination under oath, or affirmation of the complainant and the witnesses he may produce; it is essential, too, that it particularly describe the place to be searched , the manifest intention being that the search be confined strictly to the place so described. There was therefore in this case an infringement of the constitutional requirement that a search warrant particularly describe the place to be searched; and that infringement necessarily brought into operation the concomitant provision that (a)ny evidence obtained in violation ** (inter alia of the search-and-seizure provision) shall be inadmissible for any purpose in any proceeding. In light of what has just been discussed, it is needless to discuss such other points sought to be made by the Office of the Solicitor General as whether or not (1) the sketch of the building housing the store and the residential apartment units -- the place to be searched being plainly marked -- was in fact attached to the application for the search warrant; or (2) the search had been conducted in the presence of the occupants of the place (herein petitioners), among others; or (3) the validity of the search warrant was diminished by the tardiness by which the return was made, or (4) the Court of Appeals had improperly refused to receive evidence which ** (the People) had earlier been denied opportunity to present before the trial court; or (5) the remedy of the special civil action of certiorari in the Court of Appeals had been erroneously availed of. The resolution of these issues would not affect the correctness of the conclusion that the search and seizure proceedings are void because the place set forth in the search warrant is different from that which the officers actually searched, or the speciousness of their argument that anyway, the premises searched were precisely what they had described to the Judge, and originally and at all times had in mind. Only one other matter merits treatment. The Solicitor Generals Office opines that where a search warrant has been issued by the court other than the one trying the main criminal case, the proper recourse of persons wishing to quash the warrant is to assail it before the issuing court and not before that in which the criminal case involving the subject of the warrant is afterwards filed. In support, it cites the second of five (5) policy guidelines laid down by this Court in Malaloan v. Court of Appeals concerning possible conflicts of jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by another court for the seizure of personal property intended to be used as evidence in said criminal case. Said second guideline reads:

2. When the latter court (referring to the court which does not try the main criminal case) issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, other they shall be deemed waived. The guidelines have been misconstrued. Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash the warrant ( or to retrieve things thereunder seized) may be filed only with the issuing Court. Such a motion may be filed for the first time for the first time in either the issuing Court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, and the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. This is clearly stated in the third policy guidelines which indeed is what properly applies to the case at bar, to wit: 3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to supress evidence are alternative and not cummulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appopriate higher court. In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at Quezon City, and the return was made to said court. On the other hand, the criminal action in connection with the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this situation, a motion to quash the search warrant, or for the return of the personal property seized (not otherwise contraband) could have properly been presented in the QC RTC. No such motion was ever filed. It was only after the criminal action had been commenced in the Bulacan RTC that the motion to quash and to suppress evidence was submitted to the latter. The case thus falls within guideline No. 3 above quoted in accordance with which the latter court must be deemed to have acted within its competence. WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996 -- which dismissed the Peoples petition for certiorari seeking nullification of the Orders of Branch 80 of the Regional Trial Court dated February 9, 1996 and May 28, 1996 in the Criminal Case No. 43-M-96 -- is, for the reasons set out in the foregoing opinion, hereby AFFIRMED without pronouncement as to costs. SO ORDERED.

ALLOWABLE WARRANTLESS SEARCHES AND SEIZURES

22. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SATURNINA SALAZAR y PALANAS, accusedappellant. [G.R. No. 98060. January 27, 1997] DECISION PANGANIBAN, J.: As her defense in this appeal, appellant alleges violation of her constitutional rights against warrantless search and seizure, and to counsel during custodial investigations. However, the search, being merely an incident of a legitimate buybust operation against illegal drugs, needed no warrant. And while her right to counsel during the custodial investigation was indeed violated, there were other evidence sufficient to warrant her conviction beyond reasonable doubt. This appeal seeks the reversal of the Decision in Criminal Case No. 925 of the Regional Trial Court of Oroquieta City, Branch 13, finding appellant Saturnina Salazar y Palanas guilty beyond reasonable doubt of violation of Section 4, Article II of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended by Presidential Decree No. 1675, and imposing upon her the penalty of life imprisonment and payment ofP20,000.00 as fine, with costs. The Facts According to the Prosecution Appellant was tried under an Information the accusatory portion of which reads: "'That on or about the 23rd day of August 1988, at 1:35 o'clock in the afternoon, more or less, in Barangay Poblacion II, Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there and without authority of law, wilfully, unlawfully and feloniously sell, deliver and give away five (5) marijuana sticks to a NARCOM Agent posing as a buyer in consideration of the amount of Five Peso (P5.00) marked bill with Serial No. FJ526501; and, as a result of the said Buy-Bust operation, confiscated from the control and possession of the accused were six (6) marijuana sticks and five (5) grams, more or less, of dried marijuana leaves in addition to the five (5) marijuana sticks aforestated.' Contrary to law." On arraignment, appellant, assisted by counsel pleaded not guilty to the crime charged. The prosecution presented Sgt. Jim Cubillan, Cpl. Emilio de Guzman, and Forensic Chemist Bernabe Arenga and various evidence proving the following facts: After being informed of the activities of drug pushers in Oroquieta City, Sgt. Cubillan and Cpl. de Guzman of the Narcotics Command (NARCOM) of the Philippine Constabulary (PC), left Ozamis City on August 23, 1988, for the former city. Upon their arrival at noon, they were met by the police informer who accompanied them to the place where a pusher operated. Near the City Hall, the informer pointed to them the residence-cum-store of appellant and thereafter left the two constabulary operatives. Right then and there, Sgt. Cubillan took a five-peso bill with Serial No. FJ526501 from his billfold, marked it with his initials and handed it to Cpl. de Guzman. The latter then went to the store and told the woman seated on the windowsill that he wanted "to score" ("mag-score nga ako"). The woman nodded. After indicating that he wanted five (5) sticks of marijuana, Cpl. de Guzman asked her if what she was about to give him was "genuine" and gave her the five-peso bill. After the woman gave him five sticks of marijuana, Cpl. de Guzman unwrapped one stick. He smelled its contents and at the same time noticed the seeds therein. He then placed the contraband in his pocket, showed his identification card to the woman and told her that he was a NARCOM agent. At that moment, Sgt. Cubillan approached the two. He had positioned himself at the back of the store, around four or five meters away from Cpl. de Guzman and the woman. He and Cpl. de Guzman arrested the woman, whom they later learned to

be Saturnina "Nena" Salazar. They recovered from appellant the P5.00-bill. Upon being informed by Cpl. de Guzman that appellant had taken the five marijuana sticks from a plastic container on the table inside the store, Sgt. Cubillan took the container which had six (6) more marijuana sticks and around five (5) grams of dried marijuana leaves. The NARCOM agents took appellant to the local PC headquarters. On board a motorcar, Sgt. Cubillan asked her if she knew of other pushers in the vicinity. She pointed to the place of Josephine Bayotas. When they passed by Bayotas' residence, the two PC operatives also arrested her. At the PC headquarters in Camp Naranjo, Sgt. Cubillan interrogated appellant while Cpl. de Guzman took her bio-data. Her fingerprints were also taken. Thereafter, Cpl. de Guzman made her sign her bio-data and the paper containing her fingerprints. It was Sgt. Cubillan who instructed her to sign the piece of bond paper which was used to wrap the marijuana sticks before they were submitted to the laboratory for examination. For their part, Sgt. Cubillan and Cpl. de Guzman executed a joint affidavit to support the complaint that was to be filed against appellant. The confiscated and dried leaves were turned over to Sgt. Dominador Berjuega who sent the specimen to the National Bureau of Investigation (NBI) in Cagayan de Oro City. NBI Forensic Chemist Bernabe Arenga, who conducted the examination, executed a Certification, dated August 29, 1988, (Exh. D) stating that the laboratory examinations conducted on the eleven (11) confiscated cigarette sticks and the "crushed dried stalks and flowering tops suspected to be marijuana" yielded "positive results for marijuana." He also submitted Dangerous Drugs Report No. DDM-88-107 (Exh. E) finding: "Gross weight of specimens . . . . . .15.3280 grams Microscopic, chemical and chromatographic examinations conducted on the above-mentioned specimens gave POSITIVE RESULTS for MARIJUANA." According to the Defense The defense presented Jeanife Mission, appellant's 12-year-old daughter, to testify on the manner by which the arrest was conducted by the NARCOM agents. According to Jeanife, at around 1:35 p.m. on August 23, 1988, she was at home with her mother. Jeanife was watching their sari-sari store in front of their house as her mother took a nap. Two persons arrived and went inside their house. One of them ransacked their things. When her mother woke up, she was held by one of the two persons and taken to the sala. Jeanife failed to hear their conversation, but she saw the two persons take her mother away. It was at the jail when she next saw her mother. In her own defense, Nena Salazar testified that at around 1:30 p.m. of August 23, 1988, she was sleeping in the only bedroom of their house which was separated from the sala by a bamboo divider. When she heard someone "doing something" in the sala, she stood up to see what the matter was, but she was met by a big fellow who, by the identification card he showed her, was named Jimmy Cubillan. She also identified the other person as de Guzman by his ID card. Cubillan held her left hand. She tried to untangle herself from Cubillan's hold and asked him, " why do you hold my hand, sir?" Cubillan said, "This is (a) raid, we are looking for something." He did not, however, show any search warrant, but he asked her where she had placed the marijuana that she was allegedly selling. She denied selling the contraband as she was still on probation after she had been convicted of selling marijuana in 1986. Because Cubillan could not find marijuana in her house, he pulled out his pistol and told her threateningly that should she refuse to tell him where the marijuana was, he would "salvage" her. The two persons brought her to the PC headquarters where she was investigated by Cubillan. She was not informed of her right to counsel nor her right to remain silent. However, she kept silent, not answering any of Cubillan's questions. Later, they held her right hand and forced her to sign something. They also asked her to affix her thumbmark to a piece of paper, telling her that she could refuse to do so only if she would divulge to them the names of drug pushers in the area. She just signed and affixed her thumbmark to a piece of paper the contents of which she was not even allowed to read. By then, it was almost midnight. The following day, she was brought to the city jail. Bayotas was also arrested, but she was already in the PC headquarters when she (appellant) was brought there.

As stated earlier, Saturnina "Nena" Salazar was convicted of the crime charged. Thus, the case was disposed in this wise: "WHEREFORE, finding the accused Saturnina Salazar guilty beyond reasonable doubt of selling a prohibited drug without being authorized by law, she is hereby sentenced to life imprisonment and to pay a fine of P20,000.00. Costs against accused. SO ORDERED." Through her counsel, she interposed the instant appeal. After the parties had filed their respective briefs, appellant, through the Public Attorney's Office, filed an urgent manifestation and motion stating that since she was found in possession of five (5) grams of dried marijuana leaves and eleven (11) sticks of marijuana which, at .02 gram per stick, would all sum up to less than 6 grams only and therefore would involve a penalty of only six (6) years, her appeal should be referred to the Court of Appeals for review. As legal basis therefor, she cited the Decision in People vs. Simon and the August 15, 1994 Resolution in G.R. No. 113360, People vs. Margarita Joseco y Magbanua, where the total weight of the subject illegal drugs was 400 grams. However, in the Resolution of March 27, 1995, the Court merely noted the said urgent manifestation and motion. Hence, notwithstanding the insignificant amount of marijuana involved, the Court itself shall consider this case. After all, the penalty actually imposed by the trial court was life imprisonment. Ruling of the Trial Court The trial court gave full faith and credence to the testimonies of the prosecution witnesses. On the other hand, it found that the defense was unable to sufficiently rebut the presumption of regularity in the government witnesses' performance of their duty, finding it hard to believe that the NARCOM agents brought her to their headquarters to force her into divulging the identity of other drugs pushers in the area and that the case against her was only a "trumped-up charge". Appellant's defense consisting of denials did not overcome the positive testimony of the prosecution witnesses. Assignment of Errors Appellant alleges in this appeal that the trial court gravely erred in (a) convicting her of the crime charged despite the unreasonable and unlawful search and seizure conducted by the NARCOM agents; (b) disregarding her constitutional right to presumption of innocence, and (c) finding her guilty beyond reasonable doubt of the offense charged. The Court's Ruling Appelant's Guilt Sufficiently Proven Section 4, Article II of R.A. 6425 provides: "SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. xxx xxx xxx"

Indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission of proof that the sale of the illicit drug took place between the poseur-buyer and the seller thereof, coupled with the presentation of the corpus delicti as evidence in court. The element of sale must be unequivocally established in order to sustain a conviction. This is precisely the import of the testimony of Cpl. de Guzman when he said:
"Q And what was your purpose in coming to Oroquieta City? A We came here because we were informed by our informant that there were drug (sic) pushers here. xxx xxx xxx

Q And after you met your informant in Oroquieta City what happened next? A He accompanied us to the store of the pusher. xxx xxx xxx Q And what happened when you reached the place where the pusher was? A When he pointed to us the alleged drug pusher we talked with Sgt. Cubillan who got a marked money and I posed as a buyer. Q Did you approach the store pointed to you by your informant? A Yes. Q And what happened at the store (sic) of the alleged pusher? A I went to the store and talked to the owner that I wanted to buy marijuana. Q How exactly did you tell the owner of the store? A I said I wanted to score. COURT: Q Do you know what is the meaning of score? A That is the term used by the users so that they will not be identified. Q And what did the suspected pusher say? A She nodded. xxx xxx xxx FISCAL RAMOS: Q What happened after she gave you the five sticks of marijuana? A I bought five sticks of marijuana and asked her if this is genuine and I gave the money. I opened one stick, I smelled and saw that there were seeds inside. I placed it in my pocket and then I showed my ID and edentified (sic) myself as a NARCOM agent. Q What made you conclude that the 5 cigarette sticks which the alleged pusher gave you were marijuana cigarettes? A I learned that from my training and schooling. Q What happened after you identified yourself as a NARCOM agent? A Sgt. Cubillan came near and he arrested her. Q What happened after that? A I informed Sgt. Cubillan that the container from where the marijuana was (sic) taken is on the table and in it were 6 sticks and 5 grams of dried leaves. Q What did Sgt. Cubillan do when you pointed to the container? A He took it and looked inside. Q And what happened after that? A We brought her to the PC." Sgt. Cubillan corroborated Cpl. de Guzman's account testifying that: "Q And what did you do upn (sic) being informed that there is a pusher in Oroquieta City? A I asked him to accompany me to where is (sic) pusher is. Q Did your informant lead you to where the pusher was? A Yes. Q And what happened thereat? A He led us and pointed to a woman inside a store and said that she is a pusher. xxx xxx xxx Q And after your informant pointed to you a particular woman inside a store as a pusher what step if any did you take? A I and Cpl. de Guzman decided to conduct a buy bust operation. Q Please explain how (sic) that is done? A That is entrapment by the use of marked money. Q And from whom will this marked money come from? A From me. Q And who will be the buyer in that buy bust operation? A Cpl. de Guzman. Q And so you conducted a buy bust operation against the woman with Cpl. de Guzman as the buyer, what happened next? A I got a P5.00 bill in my folder and signed my signature thereon and gave it to Cpl. de Guzman to buy marijuana. Q How much was the money? A P5.00. xxx xxx xxx FISCAL RAMOS: Q What happened next after you gave this P5.00 bill to Cpl. de Guzman? A He went to the store. Q And how about you, where were you? A I was just outside at the back of the store. Q And did you see what happened after Cpl. de Guzman went to the store? A Cpl. de Guzman talked to the woman. Q Did you hear their conversation?

A No, because she has a low voice. Q What else did you see? A I saw that the woman gave something to Cpl. de Guzman. Q And what did Cpl. de Guzman do after receiving that something given by the woman? A He looked at it and examined it and smelled it. Q And what happened next after Cpl. de Guzman examined and smelled that something given by the woman? A Cpl. de Guzman showed an ID and when I saw him do that I went near him. Q What happened after you went near him? A We arrested her. Q And will you please tell us why you arrested that woman? A We arrested her because our Narcom agent bought marijuana from her (sic) and after that we arrested her. xxx xxx xxx A We arrested her because she sold a suspected marijuana cigarette. Q How many suspected marijuana cigarettes were sold to Cpl. de Guzman? A Five sticks. Q Were you able to recover those five sticks of suspected marijuana cigarettes? A These were delivered to Cpl. de Guzman and those five suspected sticks of marijuana were in the possession of Cpl. de Guzman. Q What else if any were you able to recover from the woman? A The marked money, P5.00 bill, and also Cpt. de Guzman told me that the marijuana was taken by the woman from the table in a plastic container. Q And this table were (sic) the plastic container was placed from where the five suspected marijuana cigarettes were taken, where was it located? A Inside the store. Q And what did you do after you were informed by de Guzman that the five suspected marijuana cigarettes were taken from the plastic container? A I got the plastic container and I saw six sticks of suspected marijuana cigarettes and five grams of dried marijuana leaves. xxx xxx xxx Q What did you do after confiscating from the woman the 6 suspected marijuana cigarettes and 5 grams more or less dried marijuana leaves in addition to the five rolled suspected marijuana cigarettes, what happened next? A I brought the suspect to the PC headquarters at Camp Naranjo." Combined with the findings of Forensic Chemist Arenga that the cigarette sticks confiscated from appellant were marijuana, the corpus delicti of the crime had thus been established with certainty and conclusiveness.

Search Warrant Unnecessary In alleging that the NARCOM agents conducted an unlawful search and seizure in her house, appellant contends that, because said agents had known of alleged drug-pushing activities in Oroquieta City, they should have obtained a search warrant before intruding into her residence. Appellant's contention is devoid of merit as the necessity of acquiring a search warrant has not been proven in this case. In going to Oroquieta City on the strength of reports of drug-pushing activities, the NARCOM agents did not know of the identity of the alleged pushers. When they conducted the buy-bust operation, it was precisely for the purpose of entrapping and identifying the culprit. A buy-bust operation has been considered as an effective mode of apprehending drug pushers. If carried out with due regard to constitutional and legal safeguards, a buy-bust operation deserves judicial sanction. Because the drug pusher had been caught in flagrante delicto, the arresting officers were duty-bound to apprehend the culprit immediately and to search her for anything which may be used as proof of the commission of the crime. The search, being an incident of a lawful arrest, needed no warrant for its validity. In fact, in People vs. Figueroa, this Court said: "The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one arrested to include the premises or surrounding under his immediate control. Objects in the 'plain view' of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence." Hence, appellant may not successfully claim the right against a warrantless search, even as regards the plastic container with dried marijuana leaves which was found on the table in her house/store. Contrary to appellant's contention, the contraband seized from her, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Informer's Testimony Merely Corroborative

Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer who pointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-presentation of the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. Appellant's claim that she was threatened by the NARCOM agents is self-serving. That her daughter corroborated that portion of appellant's account did not make her claim credible. The trial court, which was in a better position than this Court in determining the issue of credibility, unequivocally said: "The Court finds that the defense has not sufficiently rebutted the presumption of regularity in the government witnesses' performance of duty. Jeanife (sic) Mission, for the defense, sought refuge from cross-examination by resorting to evasive 'I don't knows' and her demeanor on the stand did not inspire this Court's faith in her testimony. Accused herself claimed that she has stopped selling marijuana after being charged in 1986, for which she is now under probation, but she had no satisfactory explanation as to why she was brought to PC headquarters despite the fact that the Narcom agents did not find any contraband in her house. The Court finds it hard to believe that the Narcom agents brought her to headquarters only for the purpose of forcing her to divulge the names of drug pushers in the city, failing in which they would hie her off to court on trumped-up charges." It should be added that, according to appellant, she recognized the NARCOM agents by the 5" x 7" identification cards they pulled from their shirts, which they showed her. It is simply contrary to human experience for an officer of the law to exhibit his identification card if his intention in arresting an offender is to commit mischief. Violation of Appellant's Right to Counsel We find appellant's claim that she was not informed of her right to counsel during custodial investigation to be correct. Moreover, the NARCOM agent's admission that they made her sign and thumbmark the bond paper which they used to wrap the marijuana found in her possession was violative of her constitutional right to counsel. While the bond paper does not appear to have been considered as a pivotal piece of evidence against appellant, such act of the NARCOM agents is worth noting if only to provide guidance to law enforcement operatives. In People vs. Simon, where the accused was made to sign the booking sheet and arrest report stating that he was arrested for selling two tea bags of suspected marijuana and the receipt for the seized property, the Court said: "x x x. Appellant's conformance to these documents are declarations against interest and tacit admissions of the crime charged. They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel. Although appellant manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence. Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect." Prosecution's Other Evidence Sufficient for Conviction As in the Simon case, where the non-admission of certain pieces of evidence did not weaken the prosecution's case, there is proof beyond reasonable doubt of the consummation of the sale of marijuana by appellant to a NARCOM agent. Hence, the presumption of innocence in her favor has been sufficiently overturned in accordance with law. Her contention that a mother-of-five like her would not resort to selling illegal drugs in such a small amount as the marijuana involved in this case, is belied by her own admission that when she committed the crime, she was still on probation for having been caught in another occasion selling marijuana in 1986. Neither could the location of her residence and store behind the DSWD office and near the city jail as well as the fact that she did not know Cpl. de Guzman deter her from committing the offense. In People vs. Simon, the Court noted that "x x x (D)rug-pushing, when done on a small scale as in this case, belongs to that class of crimes that may be committed at any time and in any place. It is not contrary to human experience for a drug pusher to sell to a total stranger, for what matters

is not an existing familiarity between the buyer and seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves. x x x." Appellant's contention that she could not have taken the risk of selling the five (5) marijuana sticks for only five pesos and therefore the contraband was "planted," is totally baseless. She herself did not bring out this alleged irregularity in the performance of the NARCOM agents' duty at the witness stand. On the other hand, the testimony of the two (2) peace officers carried with it the presumption of regularity in the performance of official functions. Appellant claims that the prosecution evidence is weak because Sgt. Cubillan was allegedly caught lying on the witness stand. She alleges that the prevarication of said witness was reflected by his testimony that after arresting appellant, they proceeded to the PC headquarters. Later, he testified that they still dropped by Bayotas' residence to arrest her. This alleged change in testimony which was explained by the witness himself, is too inconsequential to dent the prosecution's compelling evidence on the fact of sale of illegal drugs. The Court also finds too preposterous to merit scrutiny appellant's contention that in convicting her, the trial court relied on her previous conviction for violation of the Dangerous Drugs Law. Her being under probation was not alleged in the Information. It was brought out in the trial where she herself admitted that she was on probation when she committed the offense in this case. However, while the trial court mentioned that fact in the Decision of March 1, 1991, it based its findings on evidence presented by both the prosecution and the defense and not on the fact that appellant was a probationer convicted of engaging in the abominable trade of illegal drugs when she committed the offense. The Proper Penalty As in all other cases decided by the Court after the effectivity of Republic Act. No. 7659 on December 31, 1993, the beneficial provisions of said law shall be applied to this case although the offense was committed prior thereto. Because the marijuana recovered from appellant was less that 750 grams, the penalty imposable upon her shall, under the ruling in the Simon case, range from prision correccional to reclusion temporal or more specifically the penalty of prision correccional, considering that the marijuana involved was less that 250 grams. No mitigating circumstances have been proven in this case. In regard to aggravating circumstances, the prosecutor volunteered at the start of the trial that appellant was then on probation. Appellant herself admitted that she was on probation when she was arrested by Sgt. Cubillan and Cpl. de Guzman. As such, the circumstance of quasi-recidivism should ideally aggravate her offense considering that she committed the felony after having been convicted by final judgment and before serving sentence. That she was on probation would not erase the fact of her conviction even though service of her sentence was suspended. However, for its appreciation as an aggravating circumstance, quasi-recidivism must be proven by records of the previous sentence. As this Court stated in People vs. Capillas, the evidence (or the lack of it) must prevail over appellant's admission that she was a probationer when she committed the crime. Consequently, under Art. 64 (1) of the Revised Penal Code which provides that in the absence of mitigating and aggravating circumstances the medium period of the penalty shall be imposed, the penalty should be the medium period of prision correccional. There being no circumstance to disqualify appellant from availment of the benefits of the Indeterminate Sentence law, the same must be applied. Prescinding from the foregoing, this Court is convinced that the guilt of appellant has been sufficiently proven beyond reasonable doubt by the evidence on record. WHEREFORE, the appealed Decision convicting appellant Saturnina Salazar y Palanas of the crime of violation of Section 4, Article II of Republic Act. No 6425, as amended, is hereby AFFIRMED subject to the MODIFICATION that appellant shall suffer the indeterminate sentence of four (4) months of arresto mayor as minimum penalty to four (4) years and two (2) months of prision correccional as maximum penalty. Considering that appellant has been detained for the maximum penalty herein imposed, her IMMEDIATE RELEASE from custody, unless she is being held for other valid reasons, is hereby ordered. SO ORDERED.

42. ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 101837 February 11, 1992] FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond posted by petitioner and ordered his release. Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio (own impulse) issued an Order, embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. On 27 August 1991, petitioner filed a petition for habeas corpus in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim (point by point). In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc ., v. Ramos, et al. where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantless arrest. Since there had been no lawful warrantless arrest, Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when the shooting had in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the

same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured . After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action . While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused, or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case such as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a reinvestigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment.At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial " without previously claiming that they did not have the benefit of a preliminary investigation." In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If petitioner submitted to arraignment at trial, he did so "kicking and screaming", in a manner of speaking. During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his " continuing objection." Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due

process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED.