commission of any crime, there can be no separate offense of simple
illegal possession of firearms. Since direct assault with multiple
THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000.]
PEOPLE OF THE PHILIPPINES, appellee, vs.
WALPAN LADJAALAM y MIHAJIL alias
"WARPAN", appellant.
The Solicitor General for plaintiff-appellee.
Atty. Jose E. Fernandez for accused-appellant.
SYNOPSIS
Appellant Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals
before us the September 17, 1998 Decision of the Regional Trial Court
(RTC) of Zamboanga City (Branch 16), which found him guilty of three
out of the four charges lodged against him. He was found guilty of the
crimes of (1) Violation of Section 15-A, Article III, of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended; (2) Illegal Possession of Firearm and Ammunition penalized
under Presidential Decree No. 1866, as amended by Republic Act No.
8294; (3) the crime of Direct Assault with Multiple Attempted Homicide.
The Supreme Court affirmed with modification the decision of the trial
court and found appellant guilty only of direct assault and multiple
attempted homicide and maintaining a drug den. The Court ruled that
that the trial court erred in convicting appellant of illegal possession of
firearms. According to the Court, a simple reading of Section 1 of
Republic Act 8294 shows that if an unlicensed firearm is used in the
1
attempted homicide was committed in this case, appellant can no
longer be held liable for illegal possession of firearms. The Court also
ruled that when the crime was committed on September 24, 1997, the
original language of PD 1866 had already been expressly superseded by
RA 8294 which took effect on July 6, 1997. In other words, no longer in
existence was the earlier provision of PD 1866, which justified a
conviction for illegal possession of firearms separate from any other
crime. It was replaced by RA 8294 which, among other amendments to
PD 1866, contained the specific proviso that "no other crime was
committed."
SYLLABUS
1.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; DEFENSE
OF FRAME-UP; CANNOT BE GIVEN CREDENCE ABSENT ANY SHOWING
OF IMPROPER MOTIVE ON THE PART OF THE POLICE OFFICERS
COUPLED WITH THE PRESUMPTION OF REGULARITY ON THE PART OF
THE SAID OFFICERS. — This Court has invariably held that the defense
of frame-up is inherently weak, since it is easy to fabricate, but terribly
difficult to disprove. Absent any showing of an improper motive on the
part of the police officers, coupled with the presumption of regularity in
the performance of their duty, such defense cannot be given much
credence. Indeed, after examining the records of this case, we
conclude that appellant has failed to substantiate his claim. On the
contrary, his statements in his Counter Affidavit are inconsistent with
his testimony during the trial.
2.CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972, AS AMENDED;
MAINTENANCE OF A DRUG DEN ESTABLISHED; CASE AT BAR. — We
agree with the trial court that appellant was guilty of maintenance of a
drug den, an offense for which he was correctly sentenced to reclusion
perpetua. His guilt was clearly established by the testimony of
Prosecution Witness Rino Bartolome Locson, who himself had used the
extension house of appellant as a drug den on several occasions,
including the time of the raid. The former's testimony was corroborated
by all the raiding police officers who testified before the court. That
appellant did not deny ownership of the house and its extension lent
credence to the prosecution's story.
3.ID.; COMPLEX CRIMES; TRIAL COURT PROPERLY CONVICTED
APPELLANT OF THE CRIME OF DIRECT ASSAULT WITH MULTIPLE
ATTEMPTED HOMICIDE. — The trial court was also correct in
convicting appellant of direct assault with multiple counts of attempted
homicide. It found that "[t]he act of the accused [of] firing an M14 rifle
[at] the policemen[,] who were about to enter his house to serve a
search warrant . . . " constituted such complex crime. We note that
direct assault with the use of a weapon carries the penalty of prision
correctional in its medium and maximum periods, while attempted
homicide carries the penalty of prison correctional. Hence, for the
present complex crime, the penalty for direct assault, which constitute
the "most serious crime," should be imposed and applied in its
maximum period.
4.ID.; ILLEGAL POSSESSION OF FIREARMS (PRESIDENTIAL DECREE
NO. 1866, AS AMENDED); REPUBLIC ACT 8294; NO SEPARATE
OFFENSE OF ILLEGAL POSSESSION OF FIREARMS IF AN UNLICENSED
FIREARM IS USED IN THE COMMISSION OF ANY OTHER CRIME. — A
simple reading thereof shows that if an unlicensed firearm is used in
the commission of any crime, there can be no separate offense of
simple illegal possession of firearms. Hence, if the "other crime" is
murder or homicide, illegal possession of firearms becomes merely an
aggravating circumstance, not a separate offense. Since direct assault
with multiple attempted homicide was committed in this case, appellant
can no longer be held liable for illegal possession of firearms.
2
5.ID.; ID.; ID.; PD 1866 NO LONGER IN EXISTENCE AT THE TIME THE
CRIME WAS COMMITTED. — We reject the OSG's contention that PD
1866, as worded prior to its amendment by RA 8294, should be applied
in this case. When the crime was committed on September 24, 1997,
the original language of PD 1866 had already been expressly
superseded by RA 8294 which took effect on July 6, 1997. In other
words, no longer in existence was earlier provision of PD 1866, which
justified a conviction for illegal possession of firearms separate from
any other crime. It was replaced by RA 8294 which, among others
amendments to PD 1866, contained the specific proviso that "no other
crime was committed." DcTAIH
6.ID.; ID.; ID.; RA 8294; SECTION 1, SECOND PARAGRAPH THEREOF;
PROVISO THAT "NO OTHER CRIME WAS COMMITTED BY THE PERSON
ARRESTED" NOT LIMITED. TO THE CRIMES OF MURDER AND
HOMICIDE. — Just an unacceptable is the interpretation of the trial
court. We find no justification for limiting the proviso in the second
paragraph to murder and homicide. The law is clear: the accused can
be convicted of simple illegal possession of firearms, provided that "no
other crime was committed by the person arrested." If the intention of
the law in the second paragraph were to refer only to homicide and
murder, it should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish, neither should
we.
7.ID.; LIBERAL CONSTRUCTION OF PENAL LAWS; REPUBLIC ACT
8294'S PLAIN LANGUAGE IS MOST FAVORABLE TO APPELLANT. —
Moreover, penal laws are construed liberally in favor of the accused. In
this case, the plain meaning of RA 8294's simple language is most
favorable to herein appellant. Verily, no other interpretation is justified
for the language of the new law demonstrates the legislative intent to
favor the accused. Accordingly, appellant cannot be convicted of two
separate offenses of illegal possession of firearms and direct assault
with attempted homicide. Moreover, since the crime committed was
direct assault and not homicide or murder, illegal possession of firearms
cannot be deemed an aggravating circumstance.
8.POLITICAL LAW; JUDICIAL DEPARTMENT; SUPREME COURT; NO
DISCRETION TO GIVE STATUTES NEW MEANING DETACHED FROM
THE MANIFEST INTENDMENT AND LANGUAGE OF THE LEGISLATURE.
— The Court is aware that this ruling effectively exonerates appellant of
illegal possession of an M-14 rifle, an offense which normally carries a
penalty heavier than that for direct assault. While the penalty for the
first prision mayor, for the second it is only prision correctional. Indeed,
the accused may evade conviction for illegal possession of firearms by
using such weapons in committing an even lighter offense, like alarm
and scandal or slight physical injuries, both of which are punishable
by arresto menor. This consequence, however, necessarily arises from
the language of RA 8294, whose wisdom is not subject to the Court's
review. Any perception that the result reached here appears unwise
should be addressed to Congress. Indeed, the Court has not discretion
to give statutes a new meaning detached from the manifest intendment
and language of the legislature. Our task constitutionally confined only
to applying the law and jurisprudence to the proven facts, and we have
done so in this case.
DECISION
PANGANIBAN, J : p form." 5
Republic Act No. 8294 penalizes simple illegal possession of firearms,
provided that the person arrested committed "no other crime."
Furthermore, if the person is held liable for murder or homicide, illegal
possession of firearms is an aggravating circumstance, but not a
3
separate offense. Hence, where an accused was convicted of direct
assault with multiple attempted homicide for firing an unlicensed M-14
rifle at several policemen who were about to serve a search warrant, he
cannot be held guilty of the separate offense of illegal possession of
firearms. Neither can such unlawful act be considered to have
aggravated the direct assault.CTacSE
The Case
Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before
us the September 17, 1998 Decision 1 of the Regional Trial Court (RTC)
of Zamboanga City (Branch 16), which found him guilty of three out of
the four charges lodged against him.
Filed against appellant were four Informations, 2 all signed by Assistant
Regional State Prosecutor Ricardo G. Cabaron and dated September 25,
1997. The first Information 3 was for maintaining a den for the use of
regulated drugs. It reads as follows:
"That on or about September 24, 1997, in the City of
Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Walpan
Ladjaalam being then the owner of a residential house located
at Rio Hondo, 4 this City, conspiring and confederating
together, mutually aiding and assisting . . . his co-accused
wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did
then and there wilfully, unlawfully and feloniously, maintain
said house as a den, where regulated drug [was] used in any
The second Information 6 charged appellant with illegal possession of
firearms and ammunition. We quote it below:
 "That on or about September 24, 1997, in the City of
Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together, mutually aiding and assisting with one
another, without any justifiable reason or purpose other than
to use it in the commission of crime, did then and there,
wilfully, unlawfully, and feloniously have in their possession
and under their custody and control, the following weapons,
to wit: one (1) M14 rifle with SN 1555225 with magazines and
seven (7) rounds of live ammunition; two (2) magazines with
twenty (20) and twenty [-one] (21) rounds of live
[ammunition]; one (1) homemade caliber .38 revolvers with
five (5) live ammunition; one (1) M-79 (single) rifle with pouch
and with five (5) empty shell[s]; one (1) home made caliber .
38 with SN-311092 with five live ammunition and one empty
shell of [a] cal. 38 . . . Smith and Wesson; two (2) .38
Caliber paltik revolver with Serial Number 311092 and one
defaced M79 grenade launcher paltik, without first having
obtained the necessary license and or permit therefor from
authorities concerned, in flagrant violation of the
aforementioned law." 7
The third Information, 8 for multiple attempted murder with direct
assault, was worded thus:
"That on or about September 24, 1997, in the City of
Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused being then armed
with M-14 Armalite Rifles, M-16 Armalite Rifles and other
assorted firearms and explosives, conspiring and
confederating together, mutually aiding and assisting . . . one
another and with intent to kill, did then and there wilfully,
unlawfully and feloniously try and attempt to kill SPO1
WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1
AMADO A. MIRASOL, JR., and SPO1 RICARDO J.
LACASTESANTOS, in the following manner, to wit: by then
4
and there firing their M-14 Armalite Rifles, M-16 Armalite
Rifles and other assorted firearms and explosives, aimed and
directed at the fatal parts of the bodies of the above-named
police officers, well known to the accused as members of the
Philippine National Police, Zamboanga City Police Office, and
as such, agents of a person in authority, who at the time of
the attack were engaged in the performance of their duties,
that is, on the occasion when said officers were about to serve
the Search Warrant legally issued by the Regional Trial Court,
this City, to the person of the accused thus commencing the
commission of crime of multiple murder directly by overt acts,
and if the accused did not accomplish their unlawful purpose,
that is, to kill the above-named Police Officers, it was not by
reason of their own voluntary desistance but rather because
of the fact that all the above-named police officers were able
to seek cover during the firing and were not hit by the bullets
and explosives fired by the accused and also by the fact said
police officers were able to wrestle with two (2) of the
accused namely: Walpan Ladjaalam y Mihajil a.k.a. 'Warpan'
and Ahmad Sailabbi y Hajairani, who were subdued and
subsequently placed under arrest; whereas accused PO2
Nurhakim T. Hadjula was able to make good his escape and
has remained at-large." 9
In the fourth Information appellant was charged with illegal possession
of drugs. 10
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad
Sailabbi y Hajaraini were dismissed upon motion of the Office of the
City Prosecutor, which had conducted a reinvestigation of the cases as
ordered by the lower court. The accused were consequently released
from jail.
The arraignment of appellant on all four (4) charges took place on
January 6, 1998, during which he entered a plea of not guilty. 11 After
pretrial, the assailed Decision was rendered, the dispositive part of
which reads:
"WHEREFORE, the Court finds accused WALPAN LADJAALAM y
MIHAJIL a.k.a. 'WARPAN' —
1.in Criminal Case No. 14636, GUILTY BEYOND REASONABLE
DOUBT of Violation of Section 15-A, Article 111, of Republic
Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, and SENTENCES said accused to the
penalty of RECLUSION PERPETUA and to pay a fine of FIVE
HUNDRED THOUSAND (P500,000.00) and to pay the costs;
"2.In Criminal Case No. 14637, NOT GUILTY of Violation of
Section 16, Article III, in relation to Section 21, Article IV, of
Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended, and ACQUITS him of said
crime with costs de oficio;
"3.in Criminal Case No. 14638, GUILTY BEYOND REASONABLE
DOUBT of the crime of Illegal Possession of Firearm and
Ammunition penalized under Presidential Decree No. 1866, as
amended by Republic Act. No. 8294, and SENTENCES said
accused to suffer an indeterminate penalty of SIX (6) YEARS
of prision correccional as minimum to EIGHT (8) YEARS
of prision mayor as maximum and to pay a fine [of] THIRTY
THOUSAND (P30,000.00) and pay the costs;
"4.in Criminal Case No. 14639, GUILTY BEYOND REASONABLE
DOUBT of the crime of Direct Assault with Multiple Attempted
Homicide and SENTENCES said accused to an indeterminate
penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision
correccional as minimum to SIX (6) YEARS of prision
correctional as maximum and to pay a fine of ONE THOUSAND
(P1,000.00) and to pay the costs." (emphasis in the original)
5
Hence, this appeal. 12
The Facts
Prosecution's Version
In its Brief, 13 the Office of the Solicitor General presents the facts in
this wise:
"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut
filed an application for the issuance of a search warrant
against appellant, his wife and some John Does (Exh. C). After
the search warrant was issued about 2:30 p.m. of the same
day, a briefing was conducted inside the office of the Anti-
Vice/Narcotics Unit of the Zamboanga City Police Office in
connection with the service of the search warrant. The
briefing was conducted by SPO2 Felipe Gaganting, Chief of the
Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela
Peña was assigned as presentor of the warrant. SPO1 Ricardo
Lacastesantos and PO3 Enrique Rivera were designated to
conduct the search. Other policemen were assigned as
perimeter guards (TSN, March 3, 1998, pp. 33-36).
"After the briefing, more than thirty (30) policemen headed by
Police Superintendent Edwin Soledad proceeded to the house
of appellant and his wife at Folio Hondo on board several
police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p.
54). Before they could reach appellant's house, three (3)
persons sitting at a nearby store ran towards the house
shouting, '[P]olice, raid, raid' (Ibid., March 3, 1998, pp. 41,
43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were
met by a rapid burst of gunfire coming from the second floor
of the house. There was also gunfire at the back of the house
(Ibid., March 5, 1998, pp. 14-16).STIEHc
"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3
Dela Peña who were with the first group of policemen saw
appellant fire an M14 rifle towards them. They all knew
appellant. When they were fired upon, the group, together
with SPO2 Gaganting, PO3 Obut and Superintendent Soledad,
sought cover at the concrete fence to observe the movements
at the second floor of the house while other policemen
surrounded the house (Ibid., March 4, 1998, pp. 50-51).
"In front of the house was an extension building connected to
the concrete fence (Ibid., pp. 45-46, 57-59, 73-76).
Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut
entered the door of the extension building. Gaganting opened
the main (steel) gate of the house. The other members of the
team then entered. Lacastesantos and Mirasol entered the
house through the main door and went inside the sala of the
ground floor while other policemen surrounded the house.
Two (2) old women were in the sala together with a young
girl and three (3) children. One of the old women took the
children to the second floor while the young girl remained
seated at the corner (Ibid., pp. 19-21).
"Lacastesantos and Mirasol proceeded to the second floor
where they earlier saw appellant firing an M14 rifle at them
through the window. While they were going upstairs,
appellant noticed their presence. He went inside the bedroom
and, after breaking and removing the jalousies, jumped from
the window to the roof of a neighboring house. Seeing this,
Mirasol rushed downstairs and asked help from the other
members of the raiding team to arrest appellant.
Lacastesantos went to the second floor and shouted to the
policemen outside not to fire in the direction of the second
floor because there were children. Mirasol and SPO1 Cesar
Rabuya arrested appellant at the back of his house after a
brief chase (Ibid., pp. 21-23).
6
"At the second floor, Lacastesantos saw an M14 rifle (Exh. B-
3) with magazine on top of the sofa at the sala on the second
floor (Ibid., p. 2-7). The rifle bore Serial No. 1555225. He
removed the magazine from the rifle and the bullet inside the
chamber of the rifle. He counted seventeen (17) live
ammunition inside the magazine. He saw two (2) more M14
rifle magazines on that sofa, one with twenty (20) live
ammunition (Exh. G-3) and another with twenty-one (21) live
ammunition (Exh. G-4). He likewise saw three (3) M16 rifle
magazines (Exh. G-2) in a corner at the second floor (TSN,
March 5, 1998, pp. 23-32, 53-57).
"After Lacastesantos and Mirasol entered appellant's house,
Rivera, Dela Peña, Gregorio and Obut followed and entered
the house. After identifying themselves as members of the
PNP Anti-Vice/Narcotics Unit, Obut presented to the old
women a copy of the search warrant. Dela Peña and Rivera
then searched appellant's room on the ground floor in the
presence of Punong Barangay Elhano (TSN, March 3, 1998,
pp. 41-43). On top of a table was a pencil case (Exh. J) with
fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each
containing methamphetamine hydrochloride or 'shabu'.
"Other items were found during the search, namely, assorted
coins in different denominations (Exh. W; TSN, April 28, 1998,
pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2)
with five (5) live [ammunition], one (1) M79 single rifle with
[a] pouch containing five (5) empty shells of an M79 rifle
(Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April
23, 1998, pp. 30-32).
"Rino Bartolome Locson was an informer of the Anti-
Vice/Narcotics Unit of the Zamboanga Police. [O]n the
morning of September 24, 1997, he was instructed by SPO2
Gaganting to go to appellant's house to buy 'shabu.' Locson
knew appellant as a seller of 'shabu' (TSN, April 22, 1998, p.
5) and had been to appellant's house about fifteen (15) times
before. He went to Rio Hondo and arrived at appellant's house
at 3:20 p.m. He bought P300.00 worth of 'shabu' from
appellant. The latter got three (3) decks of shabu from his
waist bag. Appellant instructed Locson to go behind the
curtain where there was a table. There were six (6) persons
already smoking. There was a lighted kerosene lamp made of
a medicine bottle placed on the table. They asked Locson to
smoke 'shabu' and Locson obliged. He placed the three (3)
decks of 'shabu' he bought on the table (Ibid., pp. 8-15).
"While they were smoking 'shabu,' Locson heard gunfire
coming from appellant's house. They all stood and entered
appellant's compound, but were instructed to pass [through]
the other side. They met appellant at the back of his house.
Appellant told them to escape 'because the police are already
here.' They scampered and 'ran away because there were
already shots.' Locson jumped over the fence and ran towards
the seashore. Upon reaching a place near the Fisheries
School, he took a tricycle and went home (Ibid., pp. 17-19).
"The following day, September 25, 1997, he went to the
police station and executed an affidavit (Exh. M) narrating
what transpired at appellant's house [o]n the afternoon of
September 24, 1997.
"After the search and before returning to the police station,
PO3 Dela Peña prepared a Receipt for Property Seized' (Exh. P
& 3) listing the properties seized during the search. The
receipt was signed by Dela Peña as the seizure officer, and by
Punong Barangay Hadji Hussin Elhano and radio reporter Jun
Cayona as witnesses. A copy of the receipt was given to
appellant but he refused to acknowledge the properties seized
(TSN, April 23, 1998, pp. 11-12).
7
"An examination conducted by Police Inspector Mercedes D.
Diestro, Forensic Chemist of the PNP Crime Laboratory Service
Office 9, on the paraffin casts taken from both hands of
appellant yielded positive for gunpowder nitrates (Exh. A-3),
giving rise to the possibility that appellant had fired a gun
before the examination (TSN, March 3, 1998, p. 11).
Gunpowder residue examinations conducted on September
26, 1997 showed that the following firearms 'were fired' (Exh.
B-5): a .38 caliber revolver (homemade) with Serial No.
311092 (Exh. B-1), another .38 caliber revolver (homemade)
without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S.
rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle
without a serial number (Exh. B-4). They were fired within five
(5) days prior to the examination (TSN, March 3, 1998, pp.
16-21).
"With respect to the crystalline substances, an examination
conducted by Police Inspector Susan M. Cayabyab, likewise a
Forensic Chemist of the PNP Crime Laboratory Service Office
9, on the fifty (50) pieces of folded aluminum foils each
containing white crystalline granules with a total weight of
1.7426 grams (Exh. J-1 to J-50) yielded positive results for the
presence of methamphetamine hydrochloride (shabu) (Exh.
L). However, the examination of one (1) crystalline stone
weighing 83.2674 grams (Exh. K) yielded negative results for
the presence of methamphetamine hydrochloride (Exh. L).
"The records of the Regional Operation and Plans Division of
the PNP Firearm and Explosive Section show that appellant
'had not applied/filed any application for license to possess
firearm and ammunition or . . . been given authority to carry
[a] firearm outside of his residence' (Exh. X)" 14
Defense's Version
Appellant Ladjaalam agrees with the narration of facts given by the
lower court. 15 Hence, we quote the pertinent parts of the assailed
Decision:
"Accused Walpan Ladjaalam y Mihajil a.k.a. 'Warpan', 30 years
old, married, gave his occupation as 'smuggling' (tsn, p. 2,
May 4, 1998). He used to go to Labuan in Malaysia and bring
cigarettes to the Philippines without paying taxes (tsn, pp.
4041, id.). He said that his true name [was] Abdul Nasser
Abdurakman and that Warpan or Walpan Ladjaalam [was]
only his 'alias'. However, he admitted that more people kn[e]w
him as Walpan Ladjaalam rather than Abdul Nasser
Abdurakman (tsn. pp. 39-40; 46-47, id.). He testified that [o]n
the afternoon of September 24, 1997, when he was arrested
by the police, he was sleeping in the house of Dandao, a
relative of his wife. He was alone. He slept in Dandao's house
and not in his house because they ha[d] 'a sort of a
conference' as Dandao's daughter was leaving for Saudi
Arabia. He noticed the presence of policemen in his
neighborhood at Aplaya, Rio Hondo when he heard shots. He
woke up and went out of the house and that was the time
that he was arrested. He said he was arrested ". . . [at] the
other side of my house; at the other side of the fence where I
was sleeping . . . . At the back of my house' (tsn, p. 7, id.). He
does not know who arrested him 'considering that the one
who arrested me does not have nameplate.' He was arrested
by four (4) persons. Not one of those who arrested him
testified in Court. He was handcuffed and placed inside a jeep
parked at Rio Hondo Elementary School. According to him, he
did not fire a gun at the policemen from [t]he second floor of
his house. He said the 'policemen' [were] 'the one[s] who
fire[d] at us' (tsn, p. 5, id.). If he fired a gun at the policemen
for sure they [would] die '[b]ecause the door is very
near . . . the vicinity of my house'. He does not own the M14
rifle (Exh. 'B-3') which according to policemen, he used in
firing at them. The gun does not belong to him. He does not
8
have a gun like that (tsn, p. 15, id.). A policeman also owns
an M14 rifle but he does not know the policeman (tsn, pp. 16-
17, id.). He said that the M79 rifle (Exh. 'B-4'), the three (3)
empty M16 rifle magazines (Exh. 'G'; 'G-1' to 'G-2'), the two
(2) M14 magazines with live ammunition (Exhs. 'G-3'; 'G-4');
the two (2) caliber .38 revolvers (Exhs. 'B-1'; 'B-2'), the fifty
(50) aluminum foils each containing shabu (Exhs. 'J-1' to 'J-
50') placed inside a pencil case (Exh. 'J', the assorted coins
placed inside a blue bag (Exh. 'W') and the white crystalline
stone (Exh. 'K') all do not belong to him. He said that the
policemen just produced those things as their evidence. The
firearms do not belong to him. They were brought by the
policemen (tsn, p. 43, May 4, 1998). Regarding the blue bag
containing assorted coins, he said: 'that is not ours, I think
this (is) theirs, . . . they just brought that as their
evidence' (tsn, pp. 15-24, id.)
"Walpan Ladjaalam declared there were occupants who were
renting his extension house. He affirmed that he owns that
house. Four (4) persons were staying in the extension house.
He could only recognize the husband whose name is Momoy.
They are from Jolo. They left the place already because they
were afraid when the police raided the place. (tsn, pp. 8-10,
May 4, 1998). He does not know prosecution witness Rino
Locson y Bartolome. Although Locson recognized him, in his
case he does not know Locson and he does not recognize him
(tsn, p. 11, id.). He did not sell anything to Locson and did not
entertain him. He is not selling shabu but he knows 'for a fact
that there are plenty of person who are engaged in selling
shabu in that place,' in that area known as Aplaya, Rio Hondo.
One of them is Hadji Agbi (tsn, pp. 11-14, id.).
"After his arrest Walpan Ladjaalam was brought to the police
station where he stayed for one day and one night before he
was transferred to the City jail. While at the police station, he
was not able to take a bath. He smokes two packs of cigarette
a day. While he was at the police station, he smoked [a]
cigarette given to him by his younger sister. He lighted the
cigarettes with [a] match. From the police station, he was
brought to the PNP Regional Office at R.T. Lim Boulevard
where he was subject to paraffin examination (tsn, pp. 24-26,
May 4, 1998).
"During the raid conducted on his house, his cousin Boy
Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the
younger brother of his wife were killed. Walpan Ladjaalam
said that he saw that 'it was the policeman who shot them[,]
only I do not know his name.' They were killed at the back of
his house. He said that no charges were filed against the one
responsible for their death (tsn, pp. 30-33, May 4, 1998).
"Anilhawa Ahamad, more or less 80 years old, a widow was in
the house of Walpan Ladjaalam whom he calls ' Hadji Id' at the
time the police raided the house. She is the mother of Ahma
Sailabbi. She was together with Babo Dandan, two small
children and a helper when 'soldiers'entered the
house. '(W)hen they arrived, they kept on firing (their guns)
even inside the house' (tsn, p. 5, May 5, 1998). They were
armed with short and long firearms. They searched the house
and scattered things and got what they wanted. They entered
the room of Walpan Ladjaalam. They tried to open a bag
containing jewelry. When Anilhawa tried to bring the bag
outside the room, they grabbed the bag from her and poked a
gun at her. At that time Walpan Ladjaalam was not in the
house. Ahamad Sailabbi was also not in the house. A Search
Warrant was shown to Anilhawa after the search was
conducted and just before the policemen left the place.
Anilhawa Ahamad said that 'it was already late in the
afternoon[;] before they left that was the time the Search
Warrant (was) given to us by . . . Barangay Captain Hussin
Elhano' (tsn, pp. 6-8, May 5, 1998). Barangay Chairman
Elhano arrived 'already late in the afternoon, almost
9
sundown' (tsn, p. 9, id.). Anilhaw declared that aside from a
bag containing jewelry and a bag full of money, she had not
seen anything else that was taken from Walpan Ladjaalam's
house (tsn, pp. 9-12, id.).
"Akmad (Ahmad) Sailabbi, 37 years old, married testified that
about 4:00 o'clock [o]n the afternoon of September 24, 1997,
he was standing in front of his house when policemen arrived
and immediately arrested him. He was about to go to the City
Proper to buy articles he was intending to bring to Sabah. He
had 'around P50,000.00' placed inside a waist bag tied around
his waist. The policemen told him to lie down in prone position
and a policeman searched his back. They pulled his waist bag
and took his DiaStar wrist watch. He was shot three times and
was hit on the forehead leaving a scar. His injury was not
treated. He was taken to the police station where he was
detained for one day and one night. He was detained at the
City Jail for three months and five days after which he was
released (tsn, pp. 25-29, May 5,1998).
"Melba Usma, 20 years old, a widow, testified that [o]n the
afternoon of September 24, 1997, she was in the house of her
parents lying together with her husband Sikkal Usma. There is
only one house between her parents' house and the house of
Walpan Ladjaalam. Her husband Sikkal Usman is the brother
of Nur-in Ladjaalam, Walpan's wife. When Melba heard shots,
she went downstairs. A policeman was looking for her
husband. The policeman called her husband. When her
husband went down, he was instructed by the policeman to lie
down in prone position. Then the policeman shot her
husband. The policeman had two other companions who also
shot her husband while he was lying down in prone position
(tsn, pp. 2-7, May 5,1998).
"Murkisa Usman, 30 years old, married, declared that [o]n the
afternoon of September 24, 1997, she was sitting at the door
of her house watching her children playing when a
motorcycle, driven by a person, stopped near her house. The
driver was Gaganting whom she called a soldier. He went
down from his motorcycle, pulled a gun and poked it at
Murkisa. Murkisa stood up and raised her hands. She got her
children and when she was about to enter the room of her
house, Gaganting again poked a gun at her and ' there was a
shot.' As a result of firing, three persons died, namely, Sikkal
Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May
5, 1998).
"Barangay Captain Hadji Hussin Elhano, 51 years old, testified
that about 4:00 o'clock [o]n the afternoon of September 24,
1997, he was fetched by two policemen at Catabangan where
he was attending a seminar. Because of traffic along the way,
they arrived at the Rio Hondo already late in the afternoon.
He saw policemen were already inside the house. Upon
entering the gate, he saw Walpan at the gate already
handcuffed. Walpan called him that the police advised him not
to approach Walpan. The search was already over and things
were already taken inside the house. When he went inside the
house, he saw 'the things that they (policemen) searched, the
firearms and the shabu' (tsn, p. 17, May 8, 1998). He did not
see the Search Warrant. What was shown to him were the
things recovered during the search which were being listed.
They were being counted and placed on a table. 'Upon seeing
the things that were recovered during the search, I just
signed the receipt (Exh. "P"; "P-1") of the things . . . taken
during the search" (tsn, pp. 17-18, May 8, 1998). He saw
three dead bodies at the side of the fence when he went to
the other side of the house. The three persons were killed
outside the fence of Walpan Ladjaalam (tsn, p. 18, id.)." 16
The Trial Court's Ruling
10
The trial court observed that the house of appellant was raided on
September 24, 1997 by virtue of Search Warrant No. 20 issued on the
same day. However, the lower court nullified the said Warrant because
it had been issued for more than one specific offense, 17 in violation
of Section 3, Rule 126 of the Rules of Court. 18 The court a quo ruled:
"It should be stated at the outset that Search Warrant No. 20
is totally 'null and void' because it was issued for more than
one specific offense . . . contrary to Section 3, Rule 1[2]6 of
the Rules of Court which provides that 'A search warrant shall
not issue but upon probable cause in connection with one
specific offense . . . .' In Tambasan vs. People, 246 SCRA 184
(1995), the Supreme Court ruled that a search warrant for
more than one offense — a 'scatter shot warrant' violates
Section 3, Rule 126 of the [R]evised Rules of Court and is
'totally null and void."' 19 (emphasis in the original)
aIcDCH
Nevertheless, the trial court deemed appellant's arrest as valid. It
emphasized that he had shot at the officers who were trying to serve
the void search warrant. This fact was established by the testimonies of
several police officers, 20 who were participants in the raid, and
confirmed by the laboratory report on the paraffin tests conducted on
the firearms and appellant. 21 Additionally, the judge noted that
Appellant Ladjaalam, based on his statements in his Counter Affidavit,
impliedly contradicted his assertions in open court that there had been
no exchange of gunfire during the raid. 22 The trial court concluded
that the testimonies of these officers must prevail over appellant's
narration that he was not in his house when the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of
appellant, reasoning thus:
"Under the circumstances, the policemen 'had authority to
pursue and arrest Walpan Ladjaalam and confiscate the
 firearm he used in shooting at the policemen and to enter his
house to effect said arrest and confiscation of the
firearm.' Under Rule 113, Section 5 (a), of the Rules of
Court, 'A peace officer or a private person may, without a
warrant, arrest a person . . . (w)hen in his presence, the
person to be arrested has committed, is actually committing,
or is attempting to commit an offense.' An offense is
committed in the presence or within the view of an officer,
within the meaning of the rule authorizing an arrest without a
warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and
proceeds at once to the scene thereof. At the time the
policemen entered the house of accused Walpan Ladjaalam
after he had fired shots at the policemen who intended to
serve the Search Warrant to him, the accused was engaged in
the commission of a crime, and was pursued and arrested
after he committed the crime of shooting at the policemen
who were about to serve the Search Warrant." 23
As a consequence of the legal arrest, the seizure of the following was
also deemed valid: the M14 rifle (with a magazine containing seventeen
live ammunition) 24 used by appellant against the police elements, two
M14 magazines, and three other M16 rifle magazines. 25 The trial court
observed that these items were in "plain view" of the pursuing police
officers. Moreover, it added that these same items were "evidence [of]
the commission of a crime and/or contraband and therefore, subject to
seizure" 26 since appellant "had not applied for a license to possess
firearm and had not been given authority to carry firearm outside his
residence." 27
For being incredible and unsupported by evidence, appellant's claim
that the items that were seized by the police officers had been planted
was disbelieved by the trial court. It ruled that if the police officers
wanted to plant evidence to incriminate him, they could have done so
during the previous raids or those conducted after his arrest. To its
11
mind, it was unbelievable that they would choose to plant evidence,
when they were accompanied by the barangay chairman and a radio
reporter who might testify against them. It then dismissed these
allegations, saying that frame-up, like alibi, was an inherently weak
defense. 28
The trial court also convicted the accused of the crime of maintaining a
drug den. It reasoned as follows:
"The testimony of Rino Bartolome Locson, corroborated by
SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr.
clearly established that Walpan Ladjaalam operated and
maintained a drug den in his extension house where shabu or
methamphetamine hydrochloride, a regulated drug, was sold,
and where persons or customers bought and used shabu or
methamphetamine hydrochloride by burning the said
regulated drug and sniffing its smoke with the use of an
aluminum foil tooter. A drug den is a lair or hideaway where
prohibited or regulated drugs are used in any form or are
found. Its existence [may be] proved not only by direct
evidence but may also be established by proof of facts and
circumstances, including evidence of the general reputation of
the house, or its general reputation among police officers. The
uncorroborated testimony of accused Walpan Ladjaalam a.k.a.
'Warpan' that he did not maintain an extension house or a
room where drug users who allegedly buy shabu from him
inhales or smokes shabu cannot prevail over the testimonies
of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He
admitted that he is the owner of the extension house but he
alleged that there were four (4) occupants who rented that
extension house. He knew the name of only one of the four
occupants who are allegedly from Jolo, a certain Momoy, the
husband. Aside from being uncorroborated, Walpan's
testimony was not elaborated by evidence as to when or for
how long was the extension house rented, the amount of
 rental paid, or by any other document showing that the
extension house was in fact rented. The defense of denial put
up by accused Walpan Ladjaalam a.k.a. 'Warpan' is a weak
defense. Denial is the weakest defense and cannot prevail
over the positive and categorical testimonies of the
prosecution witnesses. Denials, if unsubstantiated by clear and
convincing evidence, are negative and self-serving evidence
which deserve no weight in law and cannot be given
evidentiary weight over the testimony of credible witnesses
who testify on affirmative matters. As between the positive
declaration of the prosecution witnesses and the negative
statements of the accused, the former deserve more
credence." 29
In conclusion, the trial court explained appellant's liability in this
manner:
In his Brief, appellant submits the following Assignment of Errors:
". . . . The act of the accused in firing an M14 rifle to the
policemen who were about to enter his house to serve a
search warrant constitutes the crime of direct assault with
multiple attempted homicide, not multiple attempted murder
with direct assault[,] considering that no policeman was hit
and injured by the accused and no circumstance was proved
to qualify the attempted killing to attempted murder.
"The accused Walpan Ladjaalam a.k.a. 'Warpan' cannot be
held liable [for] the crime of Violation of Section 16, Article
111, in relation to Sections 21, Article IV, of Republic Act 6425
otherwise known as the Dangerous Drugs Act of 1992, as
amended, because the fifty (50) pieces of folded aluminum
foils having a total weight of 1.7426 grams all containing
methamphetamine hydrochloride or shabu allegedly found in
his house are inadmissible as evidence against him
considering that they were seized after [a] search conducted
12
by virtue of Search Warrant No. 20 which is totally null and
void as it was issued for more than one offense, and were not
found in 'plain view' of the police officers who seized them.
Neither could the accused be held liable for illegal possession
of firearms and ammunition except for the (1) M14 rifle with
Serial Number 1555225 and with magazine containing fifteen
(15) live ammunition and two more M14 rifle magazines with
twenty (20) and twenty-one (21) live ammunition respectively
considering that the policemen who recovered or seized the
other firearms and ammunition did not testify in court. The
blue bag containing assorted coins cannot be returned to the
accused Walpan Ladjaalam a.k.a. 'Warpan' because according
to the accused the blue bag and assorted coins do not belong
to him[;] instead the said assorted coins should be turned
over to the National Treasury." 30
The Issues
I
"The trial court erred when it concluded that appellant Walpan
Ladjaalam y Mihajil [had] fired first at the police officers who
went to his house to serve a search warrant upon him which
led to an exchange of fire between Ladjaalam and the police
officer.
II
"The trial court erred when it denied the appellant the right
and opportunity for an ocular inspection of the scene of the
firefight and where the house of the appellant [was]
located. EaISDC
III
 "The trial court erred when it ruled that the presumption of
regularity in the performance of their duties [excluded] the
claim of the appellant that the firearms and
methamphetamine hydrochloride (i.e. shabu) were planted by
the police." 31
In the interest of simplicity, we shall take up these issues seriatim: (a)
denial of the request for ocular inspection, (b) credibility of the
prosecution witnesses, and (c) the defense of frame up. In addition, we
shall also discuss the proper crimes and penalties to be imposed on
appellant.
The Court's Ruling
The appeal has no merit.
First Issue:
Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an
ocular inspection of the Ladjaalam residence. He argues that an ocular
inspection would have afforded the lower court "a better perspective
and an idea with respect to the scene of the crime." 32 We do not
agree.
We fail to see the need for an ocular inspection in this case, especially
in the light of the clear testimonies of the prosecution witnesses. 33 We
note in particular that the defense had even requested SPO1 Amado
Mirasol Jr. to sketch the subject premises to give the lower court a
fairly good idea of appellant's house. 34 Viewing the site of the raid
would have only delayed the proceedings. 35 Moreover, the question
whether to view the setting of a relevant event has long been
13
recognized to be within the discretion of the trial judge. 36 Here, there
is no reason to disturb the exercise of that discretion.37
Second Issue:
Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution
witnesses. 38 Suffice it to state that the trial court's assessment of their
credibility is generally accorded respect, even finality. 39 After carefully
examining the records and finding no material inconsistencies to
support appellant's claim, we cannot exempt this case from the general
rule. 40 Quite the contrary, the testimonies of these witnesses
positively showed that appellant had fired upon the approaching police
elements, and that he had subsequently attempted to escape. SPO1
Amado Mirasol Jr. 41 testified thus:
"PROSECUTOR NUVAL:
Q:And, this trail is towards the front of the house of the
accused?
A:Yes.
Q:And it's there where you were met by a volley of fire?
A:Yes, Your Honor.
COURT:
Q:How far were you from the concrete fen[c]e when you were
met by a volley of fire? . . . You said you were fired
upon?
A:More or less, five (5) meters.
 xxx xxx xxx A:I did not mind those two old women because those two
women were sitting on the ground floor. I was
PROSECUTOR NUVAL: concentrating on the second floor because Ladjaalam
was firing towards our group so, I, together with
Q:Now, you said you were able to enter the house after the Ricardo Lacastesantos, went upstairs to the second
gate was opened by your colleague Felipe Gaganting . . floor of the house.
. I will reform that question.
Q:Were you able to go to the second floor of the house?
Q:Who opened the gate Mr. Witness?
A:Yes.
A:SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos
Obut. Q:What happened when you were already on the second
floor?
Q:And, at that time you were hiding at the concrete fence?
A:While we were proceeding to the second floor, Walfan [sic]
A:Yes. Ladjaalam, noticed our presence and immediately went
inside the bedroom [o]n the second floor and he went
Q:Now, when this gate was opened, you said you went inside immediately and jumped from the window of his
the house, right? house . . . leading to the roof of the neighbor's house.

A:Yes. xxx xxx xxx

Q:What did you see inside the house? COURT:

A:I, together with SPO1 Ricardo Lacastesantos, entered the Reform. That is leading
main door of the house of Walfran [sic] Ladjaalam at
the ground floor. We went inside the sala on the Q:What happened when you entered and he jumped to the
ground floor of his house[;] I saw two old woman. roofing of the neighbor's house?

xxx xxx xxx A:Immediately, I myself, we immediately went downstairs and

asked the assistance of the members of the raiding
PROSECUTOR NUVAL: team to arrest Walfan Ladjaalam.

Q:Now, what did you do with these two old women? xxx xxx xxx

PROSECUTOR NUVAL:
14
 Q:Were you able to go down? A:Yes.

A:Yes. Q:Why can you identify that?

Q:What happened when you were there? A:The Serial No. of M14 is 1555225 and I marked it with my
initial.
A:We immediately went out and I asked the assistance of the
members of the raiding team and the investigator of Q:Now, I have here M14 rifle[;] will you please tell us where is
the unit especially SPO1 Cesar Rabuya. I was able to the Serial No. of this?
manage to arrest Walfan Ladjaalam." 42
A:1555225 and I put my initial, RJL.
What happened thereafter was narrated by Senior Police Officer
Ricardo Lacastesantos, 43 as follows: FISCAL NUVAL:

"Q:What did you notice [o]n the second floor?
A:I went where the firing came from, so, I saw [an] M14 rifle
and I shouted from the outside, 'do not fire at the
second floor because there [are] a lot of children here.'
Q:Now, that rifle you said [was an] M14, where did you find
this?
This is already marked as our Exhibit 'B-3' with magazine, one
magazine and seven round [ammunition].
Q:After recovering this, what did you do with this firearm?
A:When I recovered it I removed the bullets inside the
chamber[.] I removed the magazine and I turned it
over to the investigator.

A:At the sala set. Q:Where did you turn it over?

Q:This sala set where is this located? A:At the crime scene.

A:Located [on] the second floor of the house. Q:Now, that magazine, can you still identify this?

Q:Is there a sala [o]n the second floor? A:Yes.

A:Yes. Q:Why?

Q:Can you still identify that M14 rifle which you said you A:I put . . . markings.
recovered from the sale set?
xxx xxx xxx

15
COURT A:RJL." 44

So, a[si]de from the magazine attached to the M14 rifle you These were confirmed by the results of the paraffin tests conducted on
found six more magazines? DCAHcT
appellant and on the weapons seized during the raid. Both of his hands
as well as the weapons, particularly the M-14 which he had used, were
A:Yes, so, all in all six magazines, three empty M16 rifle positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro
magazines and three M14.
explained in open court:
Q:The M16 magazines [were] empty?
"Q:Okay. Now, what was the result of your examination,
Madam Witness?
A:Empty.
A:The result of the examination [was] that both hands of the
Q:How about the M14?
subject person, ha[d] presence of gun powder nitrates.
A:Found with [ammunition].
Q:What do you mean Madam Witness, what does that
indicate?
xxx xxx xxx
A:It indicates there is presence of powder nitrates.
Q:So, where are the three M16 magazines?
Q:Can we conclude that he fired a gun?
A:In the corner.
A:I cannot conclude that he fired a gun because there are so
Q:What did you do with [these] three magazines of M16?
many circumstances [why] a person [would be]
positive on his hands for gun powder nitrates.
A:I turned [them] over to the investigator.

Q:Can you identify them?

Q:But, most likely, he fired a gun?
A:Yes, because of my initials[.]
A:Yes.
Q:Where are your initials?
xxx xxx xxx
A:On the magazines.
PROSECUTOR NUVAL:
Q:RJL?

16
Q:What about, Madam Witness this Exhibit 'B-3', which is the COURT:
M14 rifle. What did you do with this?
Q:The firing there indicates that the gun was recently fired,
A:SPO3 Abu did the swabbing both in the chamber and the during the incident?
barrel wherein I observed there [were] black and traces
of brown residue on the bolt, chamber and in the A:Yes.
barrel.
Q:And also before the incident it was fired because of the
Q:And, that indicates Madam Witness . . .? brown residue?

A:It indicates that the gun was fired. A:Yes, Your Honor." 45 (emphasis supplied)

Q:Recently? Duly proven from the foregoing were the two elements 46 of the crime
of illegal possession of firearms. Undoubtedly, the established fact that
A:Because of the traces of brown residue; it could be possible appellant had fired an M-14 rifle upon the approaching police officers
that the gun was fired before the incident . . . . clearly showed the existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the second element was the
COURT:
prosecution's Certification 47 stating that he had not filed any
Q:There is also black residue? application for license to possess a firearm, and that he had not been
given authority to carry any outside his residence. 48 Further, it should
A:Yes. be pointed out that his possession and use of an M-14 rifle were
obviously unauthorized because this weapon could not be licensed in
Q:What does it indicate? favor of, or carried by, a private individual. 49

A:It indicates that the firearm was recently fired. Third Issue:
Q:And, where is this swab used at the time of the swabbing of Defense of Frame-up
this Exhibit?
From the convoluted arguments strewn before us by appellant, we
A:This one. gather that the main defense he raises is frame-up. He claims that the
items seized from his house were "planted," and that the entire
PROSECUTOR NUVAL:
Zamboanga police force was out to get him at all cost.
May we ask that this be marked as Exhibit 'B-3-A'.
This Court has invariably held that the defense of frame-up is inherently
weak, since it is easy to fabricate, but terribly difficult to
17
disproved. 50 Absent any showing of an improper motive on the part of
the police officers, 51 coupled with the presumption of regularity in the
performance of their duty, such defense cannot be given much
credence. 52 Indeed, after examining the records of this case, we
conclude that appellant has failed to substantiate his claim. On the
contrary, his statements in his Counter Affidavit are inconsistent with
his testimony during the trial. 53 He testified thus:
"QNow, Mr. Witness, do you remember having executed an
Affidavit/ a Counter-Affidavit?
AI could not remember.
QI have here a Counter-Affidavit and it was signed before this
representation on the 8th day of December 1997[;] tell
us whose signature is this appearing above the
typewritten name.
FISCAL NUVAL:
Q. . . Walpan Ladjaalam, whose signature is this?
(Showing)
AYes, Sir. This is mine.
QNow, in paragraph[s] 1, 2, 3, 4, 5, 6, 7 and 8; you stated in
this Counter-Affidavit which I quote: 'that I was resting
and sleeping when I heard the gunshots and I noticed
that the shots were directed towards our house.. and I
inspected and . . . we were attacked by armed persons.
. . and I was apprehended by the persons who attacked
. . . our house'; [the] house you are referring to [in]
this paragraph, whose house [are you] referring to, is
this [what] you are referring to [as] your house or the
18
house of your neighbors [from] which you said you
heard gunshots?
AOur house.
QNow, in paragraph 6 of your Counter-Affidavit you stated
and I quote: 'that [o]n that afternoon of September 24,
1997, I was at home in my house Aplaya, Riohondo,
Bo. Campo Muslim, my companions in my house [were]
the two old women and my children, is this correct?
AThey were not there.
QNow, in that statement Mr. Witness, you said that you were
at home in [your] house at Aplaya, Riohondo, Bo.
Campo Muslim[;] which is which now, you were in your
house or you were in your neighbors, house at that
time when you heard gunshots?
AI was in the house near my house.
QSo, your statement particularly paragraph 6 of your Counter-
Affidavit that you were at home in [your] house at
Aplaya Riohondo Bo. Campo Muslim, is . . . not correct?
AYes, Sir. This is not correct." 54
Crime and Punishment
The trial court convicted appellant of three crimes: (1) maintenance of
a drug den, (2) direct assault with attempted homicide, and (3) illegal
possession of firearms. We will discuss each of these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance
of a drug den, an offense for which he was correctly sentenced
to reclusion perpetua. His guilt was clearly established by the testimony
of Prosecution Witness Rino Bartolome Locson, who himself had used
the extension house of appellant as a drug den on several occasions,
including the time of the raid. The former's testimony was corroborated
by all the raiding police officers who testified before the court. That
appellant did not deny ownership of the house and its extension lent
credence to the prosecution's story. TIAEac
Direct Assault with Multiple
Attempted Homicide
The trial court was also correct in convicting appellant of direct
assault 55 with multiple counts of attempted homicide. It found that
"[t]he act of the accused [of] firing an M14 rifle [at] the policemen[,]
who were about to enter his house to serve a search warrant . . ."
constituted such complex crime.56
We note that direct assault with the use of a weapon carries the
penalty of prision correccional in its medium and maximum periods,
while attempted homicide carries the penalty of prision
correccional. 57 Hence, for the present complex crime, the penalty for
direct assault, which constitutes the "most serious crime," should be
imposed and applied in its maximum period. 58
Illegal Possession of Firearms
Aside from finding appellant guilty of direct assault with multiple
attempted homicide, the trial court convicted him also of the separate
offense of illegal possession of firearms under PD 1866, as amended by
RA 8294, and sentenced him to 6 years of prision correccional to 8
years of prision mayor.
19
The Office of the Solicitor General (OSG) disagrees, on the ground that
the trial court should not have applied the new law. It contends that
under the facts of the case, the applicable law should have been PD
1866, as worded prior to its amendment by RA 8294.
The trial court's ruling and the OSG's submission exemplify the legal
community's difficulty in grappling with the changes brought about by
RA 8294. Hence, before us now are opposing views on how to interpret
Section 1 of the new law, which provides as follows:
"SECTION 1.Section 1 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"Section 1.Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty
of prision correccional in its maximum period and a fine
of not less than Fifteen thousand pesos (P15,000) shall
be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime
was committed.
"The penalty of prision mayor in its minimum period
and a fine of Thirty thousand pesos (P30,000) shall be
imposed if the firearm is classified as high powered
firearm which includes those with bores bigger in
diameter than .30 caliber and 9 millimeter such as
caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357
 and caliber .22 centerfire magnum and other firearms
with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime
was committed by the person arrested.
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm
shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of rebellion
or insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime
of rebellion or insurrection, sedition, or attempted coup
d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible
officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly
allow any of the firearms owned by such firm,
company, corporation or entity to be used by any
person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms
or firearms without any legal authority to be carried
outside of their residence in the course of their
employment.
"The penalty of arresto mayor shall be imposed upon
any person who shall carry any licensed firearm outside
his residence without legal authority therefor."
Citing People v. Jayson, 59 the OSG argues that the foregoing provision
does not cover the specific facts of this case. Since another crime —
direct assault with multiple unlawful homicide — was committed,
20
appellant cannot be convicted of simple illegal possession of firearms
under the second paragraph of the aforecited provision. Furthermore,
since there was no killing in this case, possession cannot be deemed as
an aggravating circumstance under the third paragraph of the
provision. Based on these premises, the OSG concludes that the
applicable law is not RA 8294, but PD 1866 which, as worded prior the
new law, penalizes simple illegal possession of firearms even if another
crime is committed at the same time. 60
Applying a different interpretation, the trial court posits that appellant
should be convicted of illegal possession of firearms, in addition to
direct assault with multiple attempted homicide. It did not explain its
ruling, however. Considering that it could not have been ignorant of
the proviso 61 in the second paragraph, it seemed to have construed
"no other crime" as referring only to homicide and murder, in both of
which illegal possession of firearms is an aggravating circumstance. In
other words, if a crime other than murder or homicide is committed, a
person may still be convicted of illegal possession of firearms. In this
case, the other crime committed was direct assault with multiple
attempted homicide; hence, the trial court found appellant guilty of
illegal possession of firearms.
We cannot accept either of these interpretations because they ignore
the plain language of the statute. A simple reading thereof shows that
if an unlicensed firearm is used in the commission of any crime, there
can be no separate offense of simple illegal possession of firearms.
Hence, if the "other crime" is murder or homicide, illegal possession of
firearms becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable for illegal
possession of firearms.
Moreover, penal laws are construed liberally in favor of the
accused. 62 In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law demonstrates
the legislative intent to favor the accused. 63Accordingly, appellant
cannot be convicted of two separate offenses of illegal possession of
firearms and direct assault with attempted homicide. Moreover, since
the crime committed was direct assault and not homicide or murder,
illegal possession of firearms cannot be deemed an aggravating
circumstance.
We reject the OSG's contention that PD 1866, as worded prior to its
amendment by RA 8294, should be applied in this case. When the
crime was committed on September 24, 1997, the original language of
PD 1866 had already been expressly superseded by RA 8294 which
took effect on July 6, 1997.64 In other words, no longer in existence
was the earlier provision of PD 1866, which justified a conviction for
illegal possession of firearms separate from any other crime. It was
replaced by RA 8294 which, among other amendments to PD 1866,
contained the specific proviso that "no other crime was committed."
Furthermore, the OSG's reliance on People v. Jayson 65 is misplaced.
True, this Court sustained the conviction of appellant for illegal
possession of firearms, although he had also committed homicide. We
explained however, that "the criminal case for homicide [was] not
before us for consideration."
Just as unacceptable is the interpretation of the trial court. We find no
justification for limiting the proviso in the second paragraph to murder
and homicide. The law is clear: the accused can be convicted of simple
illegal possession of firearms, provided that "no other crime was
committed by the person arrested." If the intention of the law in the
second paragraph were to refer only to homicide and murder, it should
21
have expressly said so, as it did in the third paragraph. Verily, where
the law does not distinguish, neither should we.
The Court is aware that this ruling effectively exonerates appellant of
illegal possession of an M-14 rifle, an offense which normally carries a
penalty heavier than that for direct assault. While the penalty for the
first is prision mayor, for the second it is only prision correccional.
Indeed, the accused may evade conviction for illegal possession of
firearms by using such weapons in committing an even lighter
offense, 66 like alarm and scandal 67 or slight physical
injuries, 68 both of which are punishable by arresto menor. 69 This
consequence, however, necessarily arises from the language of RA
8294, whose wisdom is not subject to the Court's review. Any
perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give
statutes a new meaning detached from the manifest intendment and
language of the legislature. Our task is constitutionally confined only to
applying the law and jurisprudence 70 to the proven facts and we have
done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the
MODIFICATION that appellant is found guilty only of two offenses: (1)
direct assault and multiple attempted homicide with the use of a
weapon, for which he is sentenced to 2 years and 4 months to 6 years
of prision correccional and (2) maintaining a drug den, for which he
was correctly sentenced by the trial court to reclusion perpetua. Costs
against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines
for a possible review, at its sound discretion, of RA 8294.IESTcD
SO ORDERED.
Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
 disclosed that the only illumination available to them were from two
improvised lamps inside the house, one on the second floor and the
other on the first floor where the victims were drinking liquor. There
were no electric posts outside the house and that the short durations of
SECOND DIVISION flashes from the exploding barrels of the guns were not sufficient for
anyone to identify assailants covered by the darkness of the night.
[G.R. No. 102706. January 25, 2000.] Contrary to his testimony was his own sworn statement executed the
day after the shooting that he did not see the assailants and that he
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. based Lumilan's liability on the fact that he saw him in the company of
LEON LUMILAN, ANTONIO GARCIA and FRED the Atty. Olalia and his men who were suspected as the perpetrators of
ORBISO, accused-appellants. the crime. The prosecution did not present any weapons used. The trial
court relying heavily on the credibility of witnesses rendered judgment
acquitting appellants of Qualified Illegal Possession of Firearms Used in
The Solicitor General for plaintiff-appellee. Murder but convicted appellants for murder, frustrated murder and
attempted murder. Motion for reconsideration having been denied,
Benjamin V. Olalia for accused-appellants. appellants filed this appeal. Meanwhile, PD 1866 was amended by RA
8294. It considered the use of an unlicensed firearm merely as an
SYNOPSIS aggravating circumstance and not a separate offense when use in the
commission of homicide or murder. aSCHIT

Appellants pleaded not guilty to an information for Qualified Illegal

Murder or homicide does not include or is necessarily included in
Possession of Firearms Used in Murder. It, however, described the
qualified illegal possession of firearms used in murder. The trial court
crimes of illegal possession of firearms, murder and
can not validly convict an accused for the former crime under an
frustrated/attempted murder. Simeon, a survivor of the assault,
information charging the latter offense and vice versa. Where a
identified appellants as the persons who entered the premises
complaint or information charges two or more offenses and the accused
immediately after the shooting on the night of October 12, 1987. He
failed to quash the information he may be convicted of as many distinct
attributed the delay of 5 months in the execution of his sworn
charges as are alleged in the information and proved during trial.
statement for fear of reprisal from appellants. However, the records
Appellants were acquitted.
disclosed that he was already in the protective custody of the then OIC
Mayor when he made his sworn statement and that he even delivered a
speech during a political rally identifying appellants, among others, as SYLLABUS
the authors of the shooting incident. Benito testified that while drinking
inside the house, with the light emitted by the flames from the 1.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS (P.D. 1866, AS
firearms, he saw appellants by the fence shoot at them. Evidence AMENDED); VIOLATIONS THEREOF UNDER THE TAC-AN DOCTRINE
22
(182 SCRA 601 [1990]) SEPARATE AND DISTINCT FROM MURDER OR
HOMICIDE PUNISHABLE UNDER THE REVISED PENAL CODE. — At the
time the trial court promulgated its judgment of conviction in
September 1990, it had already been six (6) months since We held
in People v. Tac-an that the unlawful possession of an unlicensed
firearm or ammunition, whether or not homicide or murder resulted
from its use, on one hand, and murder or homicide, on the other, are
offenses different and separate from and independent of, each other.
While the former is punished under a special law, the latter is penalized
under the Revised Penal Code. Consequently, the prosecution for one
will not bar prosecution for the other, and double jeopardy will not
lie. Tac-an was reiterated in People v. Tiozon, People v. Caling, People
v. Jumamoy, People v. Deunida, People v. De Gracia, People v.
Tiongco, People v. Fernandez; People v. Somooc and People v.
Quijada.
2.REMEDIAL LAW; CRIMINAL PROCEDURE; DOUBLE JEOPARDY;
CONSTRUED. — Under Sec. 7 of Rule 117 of the Revised Rules of
Court, double jeopardy lies when after the accused has pleaded to the
first offense charged in a valid complaint or information and he is
subsequently convicted or acquitted or the case against him is
dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, he is prosecuted for a second offense
or any attempt to commit the same or frustration thereof or any other
offense, which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.
3.ID.; ID.; INFORMATION; MURDER OR HOMICIDE DOES NOT
NECESSARILY INCLUDE OR IS INCLUDED IN QUALIFIED ILLEGAL
POSSESSION OF FIREARMS USED IN MURDER OR HOMICIDE. — It
cannot be said that murder or homicide necessarily includes or is
necessarily included in qualified illegal possession of firearms used in
murder or homicide. To state otherwise is to contradict Tac-an and its
23
progeny of cases where We categorically ruled out the application of
double jeopardy in the simultaneous prosecution for murder or
homicide and qualified illegal possession of firearms used in murder or
homicide against same accused involving the same fatal act. cHSIAC
4.ID.; ID.; JUDGMENT; VARIANCE BETWEEN OFFENSE CHARGED AND
THAT PROVED; UNDER QUIJADA RULING, ACCUSED CHARGED WITH
MURDER OR HOMICIDE CANNOT BE VALIDLY CONVICTED OF
QUALIFIED ILLEGAL POSSESSION OF FIREARMS AND VICE VERSA. —
Sec. 4, Rule 120 of the Revised Rules of Court provides that an accused
may not be convicted of an offense other than that with which he is
charged in the information, unless such other offense was both
established by evidence and is included in the offense charged in the
Information. Since murder or homicide neither includes or is necessarily
included in qualified illegal possession of firearms used in murder or
homicide, the trial court may not validly convict an accused for the
former crime under an Information charging the latter offense.
Conversely, an accused charged in the Information with homicide or
murder may not be convicted of qualified illegal possession of firearms
used in murder or homicide, for the latter is not included in the
former. People v. Quijada (259 SCRA 191 [1996])
5.ID.; ILLEGAL POSSESSION OF FIREARMS AND MURDER OR
HOMICIDE WITH USE OF UNLICENSED FIREARM UNDER PD 1866 AS
AMENDED BY RA 8294, A SINGLE OFFENSE. — In People v. Molina, We
already declared that the intent of Congress to treat as a single offense
the illegal possession of firearms and the commission of murder or
homicide with the use of an unlicensed firearm, is clear from the
unequivocal wording of the third paragraph of Sec. 1 of P.D. No. 1866,
as amended by R.A. No. 8294, which reads: "If homicide or murder is
committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating
circumstance." Where an accused uses an unlicensed firearm in
committing homicide or murder, he may no longer be charged with
what used to be the two separate offenses of homicide or murder
under the Revised Penal Code and qualified illegal possession of
firearms used in homicide or murder under P.D. No. 1866. As amended
by R.A. No. 8294, P.D. No. 1866 now mandates that the accused will be
prosecuted only for the crime of homicide or murder with the fact of
illegal possession of firearms being relegated to a mere special
aggravating circumstance. To obviate any doubt, R.A. No. 8294
expressly restricts the filing of an information for illegal possession of
firearms to cases where no other crime is committed. Thus, illegal
possession of firearms may now be said to have taken a dual
personality: in its simple form, it is an offense in itself, but when any
killing attends it, illegal possession of firearms is reduced to a mere
aggravating circumstance that must be alleged in the information in
order to be appreciated in the determination of the criminal liability of
the accused.
6.ID.; ID.; MOTION TO QUASH; FAILURE TO QUASH DEFECTIVE
INFORMATION CONSTITUTES WAIVER; CASE AT BAR. — Sec. 13, Rule
110 of the Revised Rules of Court provides that a complaint or
information must charge but one offense, except only in cases where
the law prescribes a single punishment for various offenses. Duplicity or
multiplicity of, charges is a ground for a motion to quash under Sec.
2(e), Rule 117 of the Revised Rules of Court. The accused, however,
may choose not to file a motion to quash and be convicted of as many
distinct charges as are alleged in the information and proved during the
trial. In the same vein, failure to interpose any objection to the defect
in the information constitutes waiver.
7.ID.; ID.; ID.; ID.; CASE AT BAR. — We come to the conclusion, thus,
that whether considered in the light of our ruling in Tac-an and its
progeny of cases or in the context of the amendments introduced by
R.A. No. 8294 to P.D. No. 1866, the Information charging appellants
24
with Qualified Illegal Possession of Firearms Used in Murder, is
defective, and their conviction for Murder, Frustrated Murder and
Attempted Murder, is irregular. The decisive question, however, is: do
such defect in the Information and the irregular conviction of
appellants, invalidate the criminal proceedings had in the trial court?
No. Appellants waived their right to quash the information, and they
effectively defended themselves against the charges for murder,
frustrated murder and attempted murder. HDIaST
8.ID.; ID.; INFORMATION; DESCRIPTION OF CRIMINAL ACTS
CONTROLS AND NOT THE TECHNICAL NAME SUPPLIED BY
PROVINCIAL FISCAL. — The appellation of the crime charged as
determined by the provincial fiscal may not exactly correspond to the
actual crimes constituted by the criminal acts described in the
Information to have been committed by the accused, but what controls
is the description of the said criminal acts and not the technical name
of the crime supplied by the provincial fiscal.
9.ID.; EVIDENCE; CREDIBILITY; THIS COURT DOES NOT ORDINARILY
INTERFERE WITH TRIAL COURT'S JUDGMENT ON TRUSTWORTHINESS
OF WITNESSES. — This Court does not ordinarily interfere with the trial
court's judgment on the trustworthiness of witnesses. However, when
there appear on record, as in this case, facts or circumstances of real
weight which might have been overlooked or misapprehended, We can
not shirk from our duty to apply the law and render justice.
10.ID.; ID.; ID.; IMPAIRED BY 5 MONTHS DELAY IN EXECUTION OF
SWORN STATEMENT IMPLICATING APPELLANTS. — On March 21,
1988, more than five (5) months after the incident, Pacano executed
his sworn statement before the Ilagan, Isabela police authorities
implicating appellants and Fred Orbiso. It is true that initial reluctance
to volunteer information regarding the crime due to fear of reprisal is
common enough that it has been judicially declared as not affecting a
witness' credibility. However, Pacano can not really claim to be afraid
for his life inasmuch as he was under the custody of then OIC Mayor
Bonifacio Uy after the shooting incident.
11.ID.; ID.; GUILT BEYOND REASONABLE DOUBT; NOT ESTABLISHED
BY EARLIER PRESENCE OF APPELLANTS ARMED WITH RIFLES AT
VICINITY. — Benito Alonzo went to the police authorities on October
13, 1987 to give his sworn statement regarding the shooting incident
the day before. In said sworn statement, Alonzo categorically admitted
that he did not see the assailants. However, he suspected Atty.
Benjamin Olalia, whom he allegedly had a misunderstanding over the
latter's cow, and his men as perpetrators of the crime considering that
they were the only person who went to their barangay in Gayong-
Gayong Sur on October 12, 1987 armed with long firearms. He stated
that he saw Atty. Olalia together with other persons including
appellants Lumilan and Garcia at the house of Hilario Lagua at about
4:00 o'clock of the same date attending the wedding of Lagua's son.
Upon seeing appellant Lumilan and two others whom he did not know
carrying armalite rifles, he left the place and proceeded to the house of
Policarpio Palomo. This isolated circumstance is certainly not sufficient
to hold appellants liable for the shooting incident.
DECISION
DE LEON, JR., J : p
Before us is an appeal from the Decision 1 dated September 20, 1990 of
the Regional Trial Court (RTC) of Ilagan, Isabela, Branch 16, in Criminal
Case No. 955, finding accused-appellants Leon Lumilan and Antonio
25
Garcia guilty beyond reasonable doubt of three (3) counts of murder,
two (2) counts of frustrated murder, and three (3) counts of attempted
murder, under an Information charging them and accused Fred
Orbiso 2 with the crime of Qualified Illegal Possession of Firearms Used
in Murder, in violation of Presidential Decree (P.D.) No. 1866. LLphil
The Information 3 reads as follows:
"The undersigned Provincial Fiscal accuses FRED ORBISO,
LEON LUMILAN and ANTONIO GARCIA of the crime of
QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN
MURDER, in violation of Presidential Decree No. 1866,
committed as follows:
That on or about the 12th day of October 1987, in the
municipality of Ilagan, Province of Isabela, Philippines, and
within the jurisdiction of this Honorable Court, the herein
accused, not being authorized or allowed by the law to keep,
possess and carry firearms, did then and there wilfully,
unlawfully and feloniously have in their possession and under
their control and custody, firearms without first having
obtained the necessary permit and/or license to possess the
same, and that on the occasion of such possession, the herein
accused with treachery did then and there wilfully, unlawfully
and feloniously with intent to kill suddenly and unexpectedly
and without giving them chance to defend themselves, fired
[sic] at and shoot Meliton Asuncion, Modesto Roque, and
Eliong dela Cruz inflicting upon them gunshot wounds which
directly caused their deaths; andfurther inflicting on the same
occasion gunshot wounds upon Jerry Palomo, Romeo Pacho,
Nolasco Estrada, Mario Palomo and Simeon Pacano, which
injuries would ordinarily cause the death of the said Jerry
Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and
Simeon Pacano, thus performing all the acts of execution
which should have produced the crime of murder with respect
 to the last named victims as a consequence, but nevertheless,
did not produce it by reason of causes independent of their
will, that is, by the timely and able medical assistance
rendered to the said Jerry Palomo, Romeo Pacho, Nolasco
Estrada, Mario Palomo and Simeon Pacano which prevented
their deaths.
CONTRARY TO LAW." 4
Upon being arraigned, appellants Leon Lumilan and Antonio Garcia
entered the plea of "not guilty."
The evidence of the prosecution reveals that in the early evening of
October 12, 1987, Meliton Asuncion, Modesto Roque, Eliong dela Cruz,
Jerry Palomo, Simeon Pacano, Benito Alonzo, Nolasco Estrada, Mario
Palomo and Romeo Pacho were drinking liquor inside the house of
Policarpio Palomo when it was sprayed with bullets. The successive
gunshots emanated from the fence about six (6) meters away from
where they were drinking, killing Meliton Asuncion, Modesto Roque,
and Eliong dela Cruz and seriously wounding Jerry Palomo, Simeon
Pacano, Nolasco Estrada, Mario Palomo and Romeo Pacho. Prosecution
eyewitness Simeon Pacano was hit in the left leg causing him to fall on
his face. When the firing ceased, he remained in the said position
pretending to be dead, as he recognized accused Fred Orbiso who
entered the house and checked the bodies of the victims for survivors.
Pacano also claims to have also recognized appellants Leon Lumilan
and Antonio Garcia who joined Orbiso inside the house. They were
purportedly after a certain Ben Estrada who was the barangay captain
of Gayong-Gayong Sur, Ilagan, Isabela. 5
Prosecution eyewitness Benito Alonzo corroborated the eyewitness
account of Simeon Pacano on the shooting incident. Benito Alonzo
recalled that they were drinking at the house of Policarpio Palomo when
successive gunshots were fired by three persons outside the fence of
26
Palomo's house. He identified appellants Leon Lumilan and Antonio
Garcia as two of the alleged assailants. 6
Both Lumilan and Garcia interposed the defense of alibi. Appellant
Garcia testified that he was in the company of Atty. Benjamin Olalia
who stood as sponsor in the wedding of the daughter of a certain
Hilario Lagua in Gayong-Gayong Sur, Ilagan, Isabela. They had late
lunch at the house of Hilario Lagua and stayed there until 4:00 o'clock
in the afternoon. Thereafter, Garcia and Atty. Olalia returned to the
latter's house in Osmenia, Ilagan, Isabela, together with Martin Lagua,
Juan Lorenzo, Felix Aguda, Romeo Callo, Rodrigo Junio, a driver, and
two other individuals. They spent the rest of the day at the house of
Atty. Olalia who corroborated Garcia's testimony. 7 On the other hand,
appellant Lumilan testified that he was in Alibagu, Ilagan, Isabela the
whole day of October 12, 1987. 8
After an assessment of the evidence, the trial court declared that no
proof beyond reasonable doubt was adduced by the prosecution to
justify the conviction of appellants for Qualified Illegal Possession of
Firearms Used in Murder. However, the trial court convicted the
appellants for Murder, Frustrated Murder and Attempted Murder as it
ruled that:
". . . The eyewitness account of Simeon Pacano which was
corroborated by Benito Alonzo can not be discounted. Both
testified in a straightforward and candid manner, leaving no
doubt as to their veracity.
"xxx xxx xxx
"From the evidence adduced, it is clear that the accused
moved in concert, driven by a pre-conceived design that made
each of them is (sic) liable in equal degree with the others for
each of the three killings and for wounding five others. . . .
 "As heretofore alluded to, the killing and wounding of the
victims constituted the crime of Murder, Frustrated Murder
and Attempted Murder, qualified by treachery. . . .
"In view of the eyewitness account of Pacano and Alonzo, the
defense of alibi interposed by the (sic) both accused can not
hold water.
"What crime or crimes were committed?
"1.There is no sufficient evidence to prove Illegal Possession
of Firearms.
2.Relative to the death of Meliton Asuncion, Modesto Roque
and Eliong dela Cruz, the crime committed was Murder.
3.Relative to the injuries sustained by Jerry Palomo and
Simeon Pacano, the crime committed was Frustrated Murder
while as to Romeo Pacho, Nolasco Estrada, and Mario Palomo,
the crime committed is Attempted Murder.
[4].As to the charge of Illegal Possession of Firearms, no
evidence has been adduced to p[rove the charge. The guns
were never presented. dctai
xxx xxx xxx." 9
Accordingly, appellants were meted out the following penalties:
"WHEREOF, in view of all the foregoing, the Court finds the
accused Antonio Garcia and Leon Lumilan guilty beyond
reasonable doubt of the crime of 1) MURDER as defined and
penalized under Article 248 of the Revised Penal Code in
conjunction with Article 6 of the Revised Penal Code and in
view of the absence of any mitigating or aggravating
circumstances attending the commission of the crime, hereby
27
sentences Antonio Garcia and Leon Lumilan to suffer the
penalty of RECLUSION PERPETUA on three counts each for
the killing of Meliton Asuncion, Modesto Roque and Eliong dela
Cruz; 2) FRUSTRATED MURDER and are sentenced to a prison
term of 8 years and 20 days as minimum to 14 years, 10
months, and 21 days as maximum on two counts each for the
wounding of Jerry Palomo and Simeon Pacano and; 3)
ATTEMPTED MURDER and are sentenced to a prison term of 5
years as minimum to 8 years and 21 days as maximum on
three counts each for the wounding of Nolasco Estrada, Mario
Palomo and Romeo Pacho, and to indemnify the heirs of the
deceased MELITON ASUNCION damages in the amount of
P30,000.00, moral damages of P10,000.00 each, actual
damages of P4,150.00 and lost earning of P27,000.00 for one
year as farmer; the deceased MODESTO ROQUE damages of
P30,000.00, moral damages of P10,000.00 each actual
damages of P8,000.00 and lost earning of P10,000.00 for one
year as farmer; and the deceased ELIONG DELA CRUZ,
damages of P30,000.00 and moral damages of P10,000.00
each; for the wounding of SIMEON PACANO and JERRY
PALOMO, moral damages of P10,000.00 each and actual
damages of P11,550.00 for JERRY PALOMO; and for an
attempt on the life of NOLASCO ESTRADA and MARIO
PALOMO, an actual damages of P100.00 for NOLASCO
ESTRADA and actual damages of P200.00 and lost earning of
P10,500.00 for one year as farmer for MARIO PALOMO, with
costs.
SO ORDERED" 10
Appellants file a motion for reconsideration which was, however, denied
by the trial court in its Resolution 11 dated October 24, 1991. Hence,
the instant appeal.
Appellants Leon Lumilan and Antonio Garcia raise the following errors:
I charged in a valid complaint or information and he is subsequently
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN
FINDING THAT THE GUILT OF APPELLANTS WAS PROVEN
BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN
NOT GIVING CREDENCE TO THE EVIDENCE OF APPELLANTS.
The important first question We must answer is whether or not
appellants may be properly convicted of murder, frustrated murder and
attempted murder under an Information that charges them with
qualified illegal possession of firearms used in murder in violation of
Section 1 of Presidential Decree (P.D.) No. 1866, as amended. 12
At the time the trial court promulgated its judgment of conviction in
September 1990, it had already been six (6) months since We held
in People v. Tac-an13 that the unlawful possession of an unlicensed
firearm or ammunition, whether or not homicide or murder resulted
from its use, on one hand, and murder or homicide, on the other, are
offenses different and separate from and independent of, each
other. 14 While the former is punished under a special law, the latter is
penalized under the Revised Penal Code. Consequently, the prosecution
for one will not bar prosecution for the other, and double jeopardy will
not lie. 15
Tac-an was reiterated in People v. Tiozon, 16 People
v. Caling, 17 People v. Jumamoy, 18 People v. Deunida, 19 People
v. De Gracia, 20 People v. Tiongco,21 People v. Fernandez, 22 People
v. Somooc 23 and People v. Quijada. 24
28
Under Sec. 7 of Rule 117 of the Revised Rules of Court, double
jeopardy lies when after the accused has pleaded to the first offense
convicted or acquitted or the case against him is dismissed or otherwise
terminated without his express consent by a court of competent
jurisdiction, he is prosecuted for a second offense or any attempt to
commit the same or frustration thereof or any other offense, which
necessarily includes or is necessarily included in the offense charged in
the former complaint or information. Cdpr
It cannot be said that murder or homicide necessarily includes or is
necessarily included in qualified illegal possession of firearms used in
murder or homicide. To state otherwise is to contradict Tac-an and its
progeny of cases where We categorically ruled out the application of
double jeopardy in the simultaneous prosecution for murder or
homicide and qualified illegal possession of firearms used in murder or
homicide against same accused involving the same fatal act.
Sec. 4, Rule 120 of the Revised Rules of Court provides that an accused
may not be convicted of an offense other than that with which he is
charged in the Information, unless such other offense was both
established by evidence and is included in the offense charged in the
Information. Since murder or homicide neither includes or is necessarily
included in qualified illegal possession of firearms used in murder or
homicide, the trial court may not validly convict an accused for the
former crime under an Information charging the latter offense.
Conversely, an accused charged in the Information with homicide or
murder may not be convicted of qualified illegal possession of firearms
used in murder or homicide, for the latter is not included in the former.
As We have amplified in Quijada:
"The unequivocal intent of the second paragraph of Section 1
of P.D. 1866 is to respect and to preserve homicide or
murder as a distinct offense penalized under the Revised
Penal Code and to increase the penalty for illegal possession
of firearm where such firearm is used in killing a person. Its
clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal
Code, in such a way that if an unlicensed firearm is used in
the commission of homicide or murder, either of these crimes,
as the case may be, would only serve to aggravate the
offense of illegal possession of firearm and would not anymore
be separately punished. Indeed, the words of the subject
provision are palpably clear to exclude any suggestion that
either of the crimes of homicide and murder, as crimes mala
in se under the Revised Penal Code, is obliterated as such and
reduced as a mere aggravating circumstance in illegal
possession of firearm whenever the unlicensed firearm is used
in killing a person. The only purpose of the provision is to
increase the penalty prescribed in the first paragraph of
Section 1 — reclusion temporal in its maximum period
to reclusion perpetua — to death, seemingly because of the
accused's manifest arrogant defiance and contempt of law in
using an unlicensed weapon to kill another, but never, at the
same time, to absolve the accused from any criminal liability
for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish
homicide or murder with death if either crime is committed
with the use of an unlicensed firearm, i.e., to consider such
use merely as a qualifying circumstance and not as an
offense. That could not have been the intention of the
lawmaker because the term 'penalty' in the subject provision
is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. . .
xxx xxx xxx
Evidently, the majority did not . . . create two offenses by
dividing a single offense into two. Neither did it resort to the
29
'unprecedented and invalid act of treating the original offense
as a single integrated crime and then creating another offense
by using a component crime which is also an element of the
former.' The majority has always maintained that the killing of
a person with the use of an illegally possessed firearm gives
rise to two separate offenses of (a) homicide or murder under
the Revised Penal Code, and (b) illegal possession of firearm
in its aggravated form." 25
Since Quijada, however, many changes have been introduced to Sec. 1
of P.D. No. 1866 by Republic Act (R.A.) No. 8294. 26 Said section now
reads:
"SECTION 1.Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — The penalty of prision
correccional in its maximum period and a fine of not less than
Fifteen Thousand pesos (P15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower,
part of firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm
or ammunition: Provided, that no other crime was committed.
The penalty of prision mayor in its minimum period and a fine
of Thirty Thousand pesos (P30,000) shall be imposed if the
firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .
357 and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed
by the person arrested.
 If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident
to, or in connection with the crime of rebellion or insurrection,
sedition, or attemptedcoup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or
insurrection, sedition or attempted coup d'etat.
The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.
The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor." 27
Without doubt, the foregoing amendments blur the distinctions
between murder and homicide, on one hand, and qualified illegal
possession of firearms used in murder or homicide, which we have
enunciated beginning in Tac-an and culminating in Quijada.
In People v. Molina, 28 We already declared that the intent of Congress
to treat as a single offense the illegal possession of firearms and the
commission of murder or homicide with the use of an unlicensed
firearm, is clear from the unequivocal wording of the third paragraph of
Sec. 1 of P.D. No. 1866, as amended by R.A. No. 8294, which reads:
30
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance." llcd
Where an accused uses an unlicensed firearm in committing
homicide or murder, he may no longer be charged with what used
to be the two separate offenses of homicide or murder under the
Revised Penal Code and qualified illegal possession of firearms used
in homicide or murder under P.D. No. 1866. As amended by R.A.
No. 8294, P.D. No. 1866 now mandates that the accused will be
prosecuted only for the crime of homicide or murder with the fact of
illegal possession of firearms being relegated to a mere special
aggravating circumstance. To obviate any doubt, R.A. No. 8294
expressly restricts the filing of an information for illegal possession
of firearms to cases where no other crime is committed. Thus, illegal
possession of firearms may now be said to have taken a dual
personality: in its simple form, it is an offense in itself, but when any
killing attends it, illegal possession of firearms is reduced to a mere
aggravating circumstance that must be alleged in the information in
order to be appreciated in the determination of the criminal liability
of the accused.
Now We observe that the Information charging appellants with
Qualified Illegal Possession of Firearms Used in Murder, violates Sec. 1
of P.D. No. 1866, as amended by R.A. No. 8294, which obliterated the
now obsolete concept of qualified illegal possession of firearms or illegal
possession of firearms in its aggravated form, i.e., where the penalty
for illegal possession is increased to reclusion perpetua or death by the
attendance of homicide or murder. In fact, qualified illegal possession
of firearms, which used to be a distinct offense, no longer exists in our
statute books.
We come to the conclusion, thus, that whether considered in the light
of our ruling in Tac-an and its progeny of cases or in the context of the
amendments introduced by R.A. No. 8294 to P.D. No. 1866, the
Information charging appellants with Qualified Illegal Possession of
Firearms Used in Murder, is defective, and their conviction for Murder,
Frustrated Murder and Attempted Murder, is irregular.
The decisive question, however, is: do such defect in the Information
and the irregular conviction of appellants, invalidate the criminal
proceedings had in the trial court?
No. Appellants waived their right to quash the Information, and they
effectively defended themselves against the charges for murder,
frustrated murder and attempted murder.
The Information in the instant case reads:
"The undersigned Provincial Fiscal accuses FRED ORBISO,
LEON LUMILAN and ANTONIO GARCIA of the crime of
QUALIFIED ILLEGAL POSSESSION OF FIREARMS USED IN
MURDER, in violation of Presidential Decree No. 1866,
committed as follows:
"That on or about the 12th day of October 1987, in the
municipality of Ilagan, Province of Isabela, Philippines, and
within the jurisdiction of this Honorable Court, the herein
accused, not being authorized or allowed by the law to keep,
possess and carry firearms, did then and there wilfully,
unlawfully and feloniously have in their possession and under
their control and custody, firearms without first having
obtained the necessary permit and/or license to possess the
same, and that on the occasion of such possession, the herein
accused with treachery did then and there wilfully, unlawfully
and feloniously with intent to kill suddenly and unexpectedly
and without giving them a chance to defend themselves, fired
31
[sic] at and shoot Meliton Asuncion, Modesto Roque, and
Eliong de la Cruz inflicting upon them gunshot wounds which
directly caused their deaths; and further inflicting on the same
occasion gunshot wounds upon Jerry Palomo, Romeo Pacho,
Nolasco Estrada, Mario Palomo and Simeon Pacano which
injuries would ordinarily cause the death of the said Jerry
Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo and
Simeon Pacano, thus performing all the acts of execution
which should have produced the crime of murder with respect
to the last named victims as a consequence, but nevertheless,
did not produce it by reason of causes independent of their
will, that is, by the timely and able medical assistance
rendered to the said Jerry Palomo, Romeo Pacho, Nolasco
Estrada, Mario Palomo and Simeon Pacano which prevented
their deaths.
CONTRARY TO LAW."
While the Information specifically states that appellants are being
accused of the crime of Qualified Illegal Possession of Firearms Used in
Murder in violation of P.D. No. 1866, its text is so worded that it
describes at least three (3) crimes: LLphil
Illegal Possession of Firearms —
"the herein accused, not being authorized or allowed by the
law to keep, possess and carry firearms, did then and there
wilfully, unlawfully and feloniously have in their possession
and under their control and custody, firearms without first
having obtained the necessary permit and/or license to
possess the same, and"
Murder —
"that on the occasion of such possession, the herein accused
with treachery did then and there wilfully, unlawfully and
 feloniously with intent to kill suddenly and unexpectedly and
without giving them a chance to defend themselves, fired [sic]
at and shoot Meliton Asuncion, Modesto Roque, and Eliong de
la Cruz inflicting upon them gunshot wounds which directly
caused their deaths; and"
Frustrated/Attempted Murder —
"further inflicting on the same occasion gunshot wounds upon
Jerry Palomo, Romeo Pacho, Nolasco Estrada, Mario Palomo
and Simeon Pacano which injuries would ordinarily cause the
death of the said Jerry Palomo, Romeo Pacho, Nolasco
Estrada, Mario Palomo and Simeon Pacano, thus performing
all the acts of execution which should have produced the
crime of murder with respect to the last named victims as a
consequence, but nevertheless, did not produce it by reason
of causes independent of their will, that is, by the timely and
able medical assistance rendered to the said Jerry Palomo,
Romeo Pacho, Nolasco Estrada, Mario Palomo and Simeon
Pacano which prevented their deaths."
The Information is undeniably duplicitous. Sec. 13, Rule 110 of the
Revised Rules of Court provides that a complaint or information must
charge but one offense, except only in cases where the law prescribed
a single punishment for various offenses. Duplicity or multiplicity of,
charges is a ground for a motion to quash under Sec. 2 (e), Rule 117 of
the Revised Rules of Court. The accused, however, may choose not to
file a motion to quash and be convicted of as many distinct charges as
are alleged in the information and proved during the trial. 29 In the
same vein, failure to interpose any objection to the defect in the
information constitutes waiver. 30
In the instant case, appellants did not file any motion to quash the
Information. More significantly, the bulk of the evidence that they
presented during the trial was intended to disprove their complicity in
32
the murder, frustrated murder and attempted murder of the victims.
Appellants were undeniably defending themselves, not so much with
the charge of qualified illegal possession in mind, as it was common
knowledge even in the beginning of the trial that no weapon was
retrieved from the crime scene and it was evident that the prosecution
was never going to present any weapon in evidence against them, but
with the full awareness that they were as well and more vigorously
being prosecuted for murder, frustrated murder and attempted murder.
As such, appellants cannot pretend that the Information did not fully
apprise them of the charges against them as to cause them surprise in
the event of conviction. The appellation of the crime charged as
determined by the provincial fiscal may not exactly correspond to the
actual crimes constituted by the criminal acts described in the
Information to have been committed by the accused, but what controls
is the description of the said criminal acts and not the technical name
of the crime supplied by the provincial fiscal. 31 Since appellants
defended themselves not only against the offense of Qualified Illegal
Possession of Firearms Used in Murder as specified in the Information,
but also, and more seriously against the crimes of Murder, Frustrated
Murder and Attempted Murder as described in the body of the
Information, it cannot be said that their conviction for the latter crimes
is infirm and invalid.
This now leads us to the main business of every criminal appeal: the
determination of the liability of appellants for the crimes they have
been convicted of.
The appeal is meritorious. Appellants must be acquitted on the ground
of reasonable doubt.
The trial court found appellants guilty of three (3) counts of murder,
two (2) counts of frustrated murder, and three (3) counts of attempted
murder on the strength of the direct testimonies of prosecution
eyewitnesses Simeon Pacano and Benito Alonzo.
Simeon Pacano testified, thus:
"QAnd while you and the persons you mentioned were
drinking, do you recall if there was anything unusual
which happened?
AThere was, sir. That was the time when I heard a gun
report.
QAnd from what direction did the gun report emanate?
AOutside the fence, sir. On the road outside the fence or road
leading to Salindingan.
xxx xxx xxx
QAnd do you know what happened to you and your
companions when as you stated you heard firings?
AI know, sir, because my companions died during that
incident.
QWho of your companions died?
AMeliton Asuncion, Modesto Roque, and Eliong dela Cruz.
Three of them, sir.
QAbout you, did you suffer any injuries or not?
AYes, sir.
QWhat part of your body was hit?
33
AMy left leg, sir. (Witness pointed to his left leg which was
already amputated).
QBesides you and three others whose names you mentioned
as having died, do you know if any of your other
companions suffered any injury or injuries?
ARomeo Pacho was injured, sir. Francisco Macugay and the
two brothers of Policarpio Palomo, Mario Palomo and
Oly Estrada.
xxx xxx xxx
QAnd while you were in that position as you have stated face
downward on the ground, do you know what later
happened?
AWhen I was in that position, sir, face downward, I heard no
gun reports and that was the time that one of the
gunmen went to the place where we were and that was
the time that I was able to recognize him.
QWhat did that gunman whom you recognized do, if he did
anything?
AHe turned us around, sir, to see if we were already dead.
QAnd can you tell the Court who is the person you
recognized?
AFred Orbiso. LLpr
QWill you look into the persons inside the courtroom who are
seated there in the benches and tell the Court if that
Fred Orbiso is here in Court or not?
AHe is not in Court.
QAnd after you recognized Fred Orbiso as you stated, what
else happened?
AWhat I heard, sir, that other companion of the gunman said
that they are looking for Boy Estrada.
xxx xxx xxx
QAnd you said that persons entered including the person you
earlier recognized. Did you come to know how many
persons entered?
AI remember, sir.
QHow many of them?
AThree (3), sir.
QNow, you recognized one of them as Fred Orbiso. About the
other persons, were you able to recognize them or not?
AI also recognized them, sir.
QCan you tell the Court the name or the persons whom you
recognized other than Fred Orbiso?
AManong Tony Garcia. (Witness pointed to a man seated at
the third row of the benches of the Court, and when
asked, he gave his name as Antonio Garcia).
QAbout the third person?
34
AThe man seated beside Antonio Garcia, sir.
QWhat is his name?
AThat I know is Leon Lumilan. (Witness pointed to a man
seated beside Antonio Garcia, and when asked, he gave
his name as Leon Lumilan."32
And Benito Alonzo corroborated him in this wise:
"QWhat was that unusual incident that happened?
AWhile we were drinking inside the house, we heard gun
reports firing at the door of the house of Poling.
xxx xxx xxx
QYou stated that while you were inside the house of Poling
Policarpio you heard gun reports. Are you in a position
to tell the Court from what direction did these gun
reports come or emanate?
AIt is possible, sir.
QWhere did the firing emanate or originate?
AComing from the gate of the fence of Mang Poling and the
other firings took place on the fence because there
were three(3) persons who fired.
QHow did you come to know that there were three (3)
persons who fired?
AI can see the flame of the firings coming from the firearms
going toward us.
 QAre you in a position to tell the Court if you were able to
identify these three (3) persons?
AYes, sir.
QPlease name the persons?
ALeon Lumilan, Tony Garcia, and Fred Orbiso, sir.
QYou have mentioned as one of the persons you saw that
evening as Leon Lumilan. Please look around the
courtroom and tell the Court if that person is here now
in the courtroom?
AYes, sir.
QPlease stand and point to the Court the persons of Leon
Lumilan and that of Antonio Garcia.
AThat is Leon Lumilan, sir. (The witness pointing to a man in
the courtroom and when asked, he gave his name as
Hermenegildo Lumilan). And that is Tony Garcia. (The
witness pointing to another man in the courtroom and
when asked, he gave his name as Antonio Garcia)." 33
This Court does not ordinarily interfere with the trial court's judgment
on the trustworthiness of witnesses. However, when there appear on
record, as in this case, facts or circumstances of real weight which
might have been overlooked or misapprehended, 34 We can not shirk
from our duty to apply the law and render justice.
We entertain serious doubt as to whether prosecution eyewitness
Simeon Pacano did see the assailants. He testified that he was about to
leave the house of Policarpio Palomo together with Romeo Pacho at
around 7:00 o'clock in the evening when successive gunshots
35
emanated from the fence which was more or less six (6) meters away
from the doorway of the house. He was hit in the left leg and fell to the
ground on his face as he felt terrible pain that almost immobilized him.
After the firing had ceased and while he was in the said position
pretending to be dead, the alleged assailants entered the premises. He
recognized Fred Orbiso when the latter turned the bodies of the victims
to ascertain if they were already dead. He also claimed to have seen
appellants enter the premises 35 and noticed appellant Lumilan holding
an armalite rifle. 36
A nexus of logically related circumstances, however, render Pacano's
testimony as doubtful. First, it was already 7:00 o'clock in the evening
when the shooting incident occurred. It was dark outside the house of
Policarpio Palomo where he was shot near the doorway. Inside the
house, the only source of light was the illumination coming from the
two improvised kerosene lamps made of bottle and wick. One was
placed on the second floor while the other was placed at the
groundfloor inside the house where they were drinking. 37
Pacano admitted that he did not notice the presence of the assailants
on the other side of the fence. 38 Likewise, no evidence was shown that
he actually saw the assailants while they were in the act of firing their
guns.
Second, the incident occurred so fast and he was admittedly very
afraid. He pretended to be dead by closing his eyes and holding his
breath, avoiding any sign of life, so to speak, to avoid detection by the
assailants when they entered the premises and inspected the bodies for
survivors. 39
Third, after the shooting incident, Pacano was treated in the Isabela
Provincial Hospital for six (6) days after which he was transferred to the
National Orthopedic Hospital in Manila. Upon his discharge on
December 8, 1987, he returned to Ilagan, Isabela and since then
stayed in the house of Bonifacio Uy who was the OIC Mayor of Ilagan,
Isabela. On March 21, 1988, more than five (5) months after the
incident, Pacano executed his sworn statement 40before the Ilagan,
Isabela police authorities implicating appellants and Fred Orbiso. 41 It is
true that initial reluctance to volunteer information regarding the crime
due to fear of reprisal is common enough that it has been judicially
declared as not affecting a witness' credibility. 42 However, Pacano can
not really claim to be afraid for his life inasmuch as he was under the
custody of then OIC Mayor Bonifacio Uy after the shooting incident.
During the political rally of Bonifacio Uy on January 16, 1988 in Centro
Ilagan, Isabela, Pacano even delivered a speech implicating Fred
Orbiso, Leon Lumilan, Antonio Garcia, Juan Lorenzo and Martin Lagua,
who were identified with the camp of Uy's opponents as the authors of
the shooting incident on October 12, 1987. 43
We also can not subscribe reliability to the testimony of prosecution
eyewitness Benito Lorenzo. First, he claims to have recognized
appellants and Fred Orbiso with the help of the light of the flames
coming out of their respective firearms when they were firing
them. 44 This is patently unbelievable, considering that he was drinking
liquor inside the house of Policarpio Palomo when the shooting
occurred. It was already 7:00 o'clock in the evening and the only light
there came from inside the house, not outside.
Second, Benito Alonzo went to the police authorities on October 13,
1987 to give his sworn statement regarding the shooting incident the
day before. In said sworn statement, 45 Alonzo categorically admitted
that he did not see the assailants. However, he suspected Atty.
Benjamin Olalia, whom he allegedly had a misunderstanding over the
latter's cow, and his men as perpetrators of the crime considering that
they were the only persons who went to their barangay in Gayong-
Gayong Sur on October 12, 1987 armed with long firearms. He stated
36
that he saw Atty. Olalia together with other persons including
appellants Lumilan and Garcia at the house of Hilario Lagua at about
4:00 o'clock of the same date attending the wedding of Lagua's son.
Upon seeing appellant Lumilan and two others whom he did not know
carrying armalite rifles, he left the place and proceeded to the house of
Policarpio Palomo. This isolated circumstance is certainly not sufficient
to hold appellants liable for the shooting incident. cdll
In the light of all the foregoing, this Court is constrained to acquit the
appellants on the ground of reasonable doubt. The constitutional
presumption of innocence in favor of the appellants was not over-
turned by the evidence adduced by the prosecution.
WHEREFORE, the Decision of Branch 16 of the Regional Trial Court of
Ilagan, Isabela in Criminal Case No. 995 is REVERSED and SET ASIDE.
The accused-appellants, Leon Lumilan and Antonio Garcia, are hereby
ACQUITTED on the ground that their alleged guilt was not proven
beyond reasonable doubt. Costs de officio. cdrep
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
EN BANC
[G.R. No. 142675. July 22, 2005.]
VICENTE AGOTE Y MATOL, petitioner, vs. HON.
MANUEL F. LORENZO, Presiding Judge, RTC,
Branch 43, Manila and PEOPLE OF THE
PHILIPPINES, respondents.
 DECISION
GARCIA, J : p
In this appeal by way of a petition for review on certiorari under Rule
45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to
annul and set aside the following resolutions of the Court of Appeals
in CA-G.R. SP No. 2991-UDK, to wit:
1.Resolution dated September 14, 1999, 1 dismissing the
Petition for Certiorari with Prayer for the Issuance of a
Temporary Restraining Order filed by the petitioner
against the Honorable Manuel F. Lorenzo, Presiding
Judge, Regional Trial Court, Manila, Branch 43 for
refusing to retroactively apply in his favor Republic Act
No. 8294 2 ; and,
2.Resolution dated February 8, 2000, 3 denying petitioner's
motion for reconsideration.
As culled from the pleadings on record, the following are the
undisputed factual antecedents:
Petitioner Vicente Agote y Matol was earlier charged before the sala of
respondent judge with Illegal Possession of Firearms under Presidential
Decree No. 1866 4 and violation of COMELEC Resolution No.
2826 5 (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-
149821, respectively, allegedly committed, as follows:
CRIMINAL CASE NO. 96-149820
That on or about April 27, 1996 in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully, knowingly have in possession and under his
37
custody and control, One (1) .38 cal. Rev. without serial no.
with four (4) live bullets. Without first having secured from the
proper authorities the necessary license therefor.
CONTRARY TO LAW.
CRIMINAL CASE NO. 96-149821
That on or about April 27, 1996, in the City of Manila,
Philippines, the said accused did then and there, willfully,
unlawfully and knowingly have in his possession and under his
custody and control one (1) .38 cal. Rev. without serial
number, with four (4) live ammunition/bullets in the chamber,
by then and there carrying the same along V. Mapa Ext. Sta.
Mesa, this City, which is a public place on the aforesaid date
which is covered by an election period, without first securing
the written authority from the COMELEC, as provided for by
the COMELEC Resolution No. 2828, in relation to RA No. 7166
(Gun Ban).
CONTRARY TO LAW. CAcIES
On arraignment, petitioner pleaded "Not Guilty" to both charges.
Thereafter, the two (2) cases were tried jointly.
Eventually, in a decision dated May 18, 1999, the trial court rendered a
judgment of conviction in both cases, separately sentencing petitioner
to an indeterminate penalty of ten (10) years and one (1) day
of prision mayor, as minimum, to eighteen (18) years eight (8) months
and one (1) day ofreclusion temporal, as maximum, in accordance with
PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of
firearm), and to a prison term of one (1) year in Crim. Case No. 96-
149821 (violation of the COMELEC Resolution on gun ban).
Meanwhile, on June 6, 1997, Republic Act No. 8294 6 was approved
into law.
Pointing out, among others, that the penalty for illegal possession of
firearms under P.D. No. 1866 has already been reduced by the
subsequent enactment of Rep. Act No. 8294, hence, the latter law,
being favorable to him, should be the one applied in determining his
penalty for illegal possession of firearms, petitioner moved for a
reconsideration of the May 18, 1999 decision of the trial court.
In its order dated July 15, 1999, 7 however, the trial court denied
petitioner's motion, saying:
While the law (R.A. 8294) is indeed favorable to the accused
and therefore should be made retroactive we are also guided
by Art. 4 of the Civil Code which states that laws shall have no
retroactive effect, unless the contrary is provided. Republic Act
8294 did not so provide that it shall have a retroactive effect.
The Supreme Court likewise in the case of Padilla vs.
CA declared: 'The trial court and the respondent court are
bound to apply the governing law at the time of the
appellant's commission of the offense for it is a rule that laws
are repealed only by subsequent ones. Indeed, it is the duty
of judicial officers to respect and apply the law as it stands.
Therefrom, petitioner went to the Court of Appeals on a petition
for certiorari with prayer for a temporary restraining order, thereat
docketed as CA-G.R. SP No. 2991-UDK.
In the herein assailed resolution dated September 14, 1999, 8 the
appellate court dismissed petitioner's recourse on two (2) grounds, to
wit: (a) the remedy of certiorari availed of by petitioner is improper
since he should have appealed from the July 15, 1999 order of the trial
38
court; and (b) lack of jurisdiction, as the issue involved is a pure
question of law cognizable by the Supreme Court.
With his motion for reconsideration having been denied by the
appellate court in its subsequent resolution of February 8,
2000, 9 petitioner is now with us, submitting for resolution the following
issues: (1) whether the Court of Appeals erred in dismissing his petition
for certiorari; and (2) whether the courts below erred in not giving Rep.
Act No. 8294 a retroactive application.
The petition is partly meritorious.
At the outset, it must be stressed that petitioner never put in issue the
factual findings of the trial court. What he questions is said court's legal
conclusion that Rep. Act No. 8294 cannot be retroactively applied to
him. Unquestionably, the issue raised is one purely of law. As we have
said in Macawiwili Gold Mining and Development Co., Inc. v. Court of
Appeals. 10
For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented
by the litigants or any one of them. And the distinction is well-
known: there is a question of law in a given case when the
doubt or difference arises as to what the law is on a certain
state of facts; there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of the facts
alleged.DAEICc
Considering that "judgments of regional trial courts in the exercise of
their original jurisdiction are to be elevated to the Court of Appeals in
cases when appellant raises questions of fact or mixed questions of fact
and law", while "appeals from judgments of the [same courts] in the
exercise of their original jurisdiction must be brought directly to the
Supreme Court in cases where the appellant raises only questions of
law" 11 , petitioner should have appealed the trial court's ruling to this
Court by way of a petition for review on certiorari in accordance
with Rule 45 of the 1997 Rules of Civil Procedure, as
amended, 12 pursuant to Rule 41, Section 2 (c) of the same Rules, viz:
SEC. 2.Modes of appeal. —
(a) . . .
(b) . . .
(c)Appeal by certiorari. — In all cases where only questions of
law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with
Rule 45.
By reason, then, of the availability to petitioner of the remedy of a
petition for review under Rule 45, his right to resort to a petition
for certiorari underRule 65 was effectively foreclosed, precisely because
one of the requirements for the availment of the latter remedy is that
"there should be no appeal, or any plain, speedy and adequate remedy
in the ordinary course of law", 13 the remedies of appeal
and certiorari being mutually exclusive and not alternative or
successive. 14
As correctly observed by the Court of Appeals, what petitioner should
have done was to take an appeal from the trial court's order of July 15,
1999 which denied his motion for reconsideration of the May 18, 1999
judgment of conviction.
Petitioner's case is worse compounded by the fact that even his period
for appeal had already prescribed when he filed with the Court of
Appeals hiscertiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of
said case reveals that petitioner received his copy of the trial court's
39
order denying his motion for reconsideration on July 20, 1999. As the
same Rollo shows, it was only on August 23, 1999, or after more than
fifteen (15) days when petitioner filed his wrong remedy
of certiorari with the appellate court.
Be that as it may, the Court feels that it must squarely address the
issue raised in this case regarding the retroactivity of Rep. Act No.
8294, what with the reality that the provisions thereof are undoubtedly
favorable to petitioner. For this purpose, then, we shall exercise our
prerogative to set aside technicalities in the Rules and "hold the bull by
its horns", so to speak. After all, the power of this Court to suspend its
own rules whenever the interest of justice requires is not without legal
authority or precedent. In Solicitor General, et. al. vs. The Metropolitan
Manila Authority, 15 we held:
Unquestionably, the Court has the power to suspend
procedural rules in the exercise of its inherent power, as
expressly recognized in the Constitution, to promulgate rules
concerning 'pleading, practice and procedure in all courts.' In
proper cases, procedural rules may be relaxed or suspended
in the interest of substantial justice, which otherwise may be
miscarried because of a rigid and formalistic adherence to
such rules. . . .
xxx xxx xxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere
tools designed to facilitate the attainment of justice.
Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided. . . . Time
and again, this Court has suspended its own rules and
 excepted a particular case from their operation
whenever the higher interests of justice so require. ADEHTS
We shall now proceed to determine whether the provisions of Rep. Act
No. 8294 amending P.D. No. 1866 can be retroactively applied to this
case.
Here, the two (2) crimes for which petitioner was convicted by the trial
court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and
(2) violation of COMELEC Resolution No. 2826 on gun ban, were both
committed by the petitioner on April 27, 1996. For the crime of illegal
possession of firearms in Crim. Case No. 96-149820, he was sentenced
to suffer a prison term ranging from ten (10) years and one (1) day
of prision mayor, as minimum, to (18) eighteen years, eight (8) months
and one (1) day of reclusion temporal, as maximum, in accordance
with P.D. No. 1866, Section 1 of which reads:
SECTION 1.Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms of Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess any firearm, part of
firearm, ammunition or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition. (Emphasis supplied)
When Rep. Act No. 8294 took effect on July 6, 1997, 16 the penalty for
illegal possession of firearms was lowered, depending on the class of
firearm possessed, viz:
40
SECTION 1.Section 1 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
'SECTION 1.Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty
of prision correccional in its maximum period and a fine
of not less than Fifteen thousand pesos (P15,000) shall
be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime
was committed.
The penalty of prision mayor in its minimum period and
a fine of Thirty thousand pesos (P30,000) shall be
imposed if the firearm is classified as high powered
firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as
caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357
and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime
was committed by the person arrested. (Emphasis
supplied)
Based on the foregoing, petitioner contends that the reduced penalty
under Rep. Act No. 8294 should be the one imposed on him.
Significantly, in itsManifestation In Lieu of Comment, 17 the Office of
the Solicitor General agrees with the petitioner, positing further that the
statement made by this Court in People vs. Jayson 18 to the effect that
the provisions for a lighter penalty under Rep. Act No. 8294 does not
apply if another crime has been committed, should not be applied to
this case because the proviso in Section 1 of said law that " no other
crime was committed" must refer only to those crimes committed with
the use of an unlicensed firearm and not when the other crime is not
related to the use thereof or where the law violated merely criminalizes
the possession of the same, like in the case of election gun ban, as
here.
As early as August 1997, the month after Rep. Act No. 8294 took
effect, 19 this Court has pronounced in Gonzales vs. Court of
Appeals 20 that said law must be given retroactive effect in favor of
those accused under P.D. No. .1866. Since then, this Court had
consistently adhered to the Gonzales ruling. 21
For sure, in People vs. Valdez, 22 where the accused was charged with
the complex crime of multiple murder with double frustrated murder
and illegal possession of firearms and ammunitions under two separate
informations, this Court even took a bolder stance by applying Rep. Act
No. 8294 retroactively so that the accused therein may not be
convicted of the separate crime of illegal possession of firearms, but
refused to apply the same retroactively so as to aggravate the crime of
murder. The Valdez ruling had been applied in a host of subsequent
cases. 23
Yet, in other cases, 24 although the Court had given Rep. Act No. 8294
retroactive effect so as to prevent the conviction of an accused of the
separate crime of illegal possession of firearm when the said unlicensed
firearm was "used" to commit the crime of murder or homicide, the
Court did not appreciate this "use" of such unlicensed firearm as an
aggravating circumstance as provided therein, when the "use" of an
41
unlicensed firearm was not specifically alleged in the information, as
required by the Rules on Criminal Procedure. EaHDcS
In the light of the existing rulings and jurisprudence on the matter, the
present case takes center stage presenting, this time, another twist, so
to speak. Petitioner, who was charged of illegal possession of firearms
was also charged of another offense: Violation of COMELEC Resolution
No. 2826 (Gun Ban), but the unlicensed firearm was not "used" or
discharged in this case. The question then which appears to be of first
impression, is whether or not the unlicensed firearm should be actually
"used" and discharged in the course of committing the other crime in
order that Sec. 1, Rep. Act No. 8294 will apply so that no separate
crime of illegal possession of firearms may be charged.
Let us take a look at the jurisprudence once again. In Cupcupin vs.
People, 25 the accused was charged and convicted for two (2) separate
crimes of illegal possession of firearms, and illegal possession of
prohibited drugs. In the more recent case of People vs.
Almeida, 26 however, although the accused was acquitted of the
separate charge of illegal possession of firearm for lack of evidence, the
Court nevertheless made the following clear pronouncement:
Furthermore, in any event, the Court has ruled in previous
cases that in view of the enactment of Republic Act No.
8294, there can be no separate offense of illegal possession
of firearms and ammunition if there is another crime
committed such as, in this case, that of illegal possession of
dangerous drugs. (Emphasis supplied)
In Almeida, it should be noted that the unlicensed firearm was merely
found lying around, together with the prohibited drugs, and therefore,
was not being "used" in the commission of an offense.
Given this Court's aforequoted pronouncement in Almeida, can the
accused in the present case still be separately convicted of two (2)
offenses of illegal possession of firearms and violation of gun ban, more
so because as in Almeida, the unlicensed firearm was not actually
"used" or discharged in committing the other offense?
In People vs. Walpan M. Ladjaalam, 27 this Court, interpreting the
subject proviso in Section 1 of Rep. Act No. 8294, applied the basic
principles in criminal law, and categorically held:
. . . A simple reading thereof shows that if an
unlicensed firearm is used in the commission of any
crime, there can be no separate offense of simple
illegal possession of firearms. Hence, if the 'other crime' is
murder or homicide, illegal possession of firearms becomes
merely an aggravating circumstance, not a separate offense.
Since direct assault with multiple attempted homicide was
committed in this case, appellant can no longer be held liable
for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the
accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no
other interpretation is justified, for the language of the new
law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault
with attempted homicide. . . .
xxx xxx xxx
. . . The law is clear: the accused can be convicted of
simple illegal possession of firearms, provided that 'no
other crime was committed by the person arrested'. If
the intention of the law in the second paragraph were to refer
42
only to homicide and murder, it should have expressly said so,
as it did in the third paragraph. Verily, where the law does not
distinguish, neither should we. (Emphasis supplied) .
The aforementioned ruling was reiterated and applied in the
subsequent cases of People vs. Garcia, 28 where the judgment of
conviction of the accused-appellants for illegal possession of firearms
was set aside there being another crime — kidnapping for ransom —
which they were perpetrating at the same time; People vs.
Bernal, 29 where the Court retroactively applied Rep. Act No. 8294 in
accused-appellant's favor because it would mean his acquittal from the
separate offense of illegal possession of firearms; and People vs.
Bustamante, 30 where, in refusing to convict the accused-appellant of
the separate offense of illegal possession of firearms, the Court
declared that insofar as it is favorable to the appellant, the provisions of
Rep. Act No. 8294 should be applied liberally and retroactively in that
appellant must be acquitted of the charge of illegal possession of
firearms.
DIHETS
Guided by the foregoing, the Court cannot but set aside petitioner's
conviction in Criminal Case No. 96-149820 for illegal possession of
firearm since another crime was committed at the same time, i.e.,
violation of COMELEC Resolution No. 2826 or the Gun Ban.
Admittedly, this ruling is not without misgivings considering that it
would mean petitioner's acquittal of the more serious offense of illegal
possession of firearms which carries a much heavier penalty than
violation of the COMELEC gun-ban resolution. However, as we have
rationalized in Ladjaalam: 31
. . . Indeed, the accused may evade conviction for illegal
possession of firearms by using such weapons in committing
 an even lighter offense, like alarm and scandal or slight
physical injuries, both of which are punishable by arresto
menor. This consequence, however, necessarily arises from
the language of RA 8294, whose wisdom is not subject to the
Court's review. Any perception that the result reached here
appears unwise should be addressed to Congress. Indeed, the
Court has no discretion to give statutes a new meaning
detached from the manifest intendment and language of the
legislature. Our task is constitutionally confined only to
applying the law and jurisprudence to the proven facts, and
WHEREFORE, Criminal Case No. 96-149820 for illegal possession of
firearms is hereby DISMISSED while the judgment of conviction in
Criminal Case No. 96-149821 for violation of COMELEC Resolution No.
2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED.
Since petitioner has already served more than the penalty imposed
upon him by the trial court in Criminal Case No. 96-149821, his
immediate release from custody is hereby ORDERED unless detained
for some other lawful cause. HIESTA

we have done so in this case.

SO ORDERED.
The solemn power and duty of the Court to interpret and apply the law
does not include the power to correct by reading into the law what is Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
not written therein. While we understand Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales,
respondent People's contention that the "use" of the firearm seemed to Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur.
have been the main consideration during the deliberations of the
subject provision of Rep. Act No. 8294, the fact remains that the word
"use" never found its way into the final version of the bill which
eventually became Rep. Act No. 8294. The Court's hands are now tied SECOND DIVISION
and it cannot supply the perceived deficiency in the final version
without contravening the most basic principles in the interpretation of [G.R. No. 126048. September 29, 2000.]
penal laws which had always leaned in favor of the accused. Under our
system of government where powers are allocated to the three (3) PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
great branches, only the Legislature can remedy such deficiency, if any, PO2 RODEL SAMONTE, accused-appellant.
by proper amendment of Sec. 1 of Rep. Act No. 8294.

As written, Sec. 1, Rep. Act No. 8294 restrains the Court from The Solicitor General for plaintiff-appellee.
convicting petitioner of the separate crime of illegal possession of
firearm despite the fact that, as in Almeida, the unlicensed firearm was Atty. Hermel R. Marantal for accused-appellant.
not actually "used". For sure, there is, in this case, closer relation
between possession of unlicensed firearm and violation of the SYNOPSIS
COMELEC gun-ban than the illegal possession of unlicensed firearm to
the crime of illegal possession of prohibited drugs inAlmeida.
43
A shooting incident occurred in Legaspi City resulting in the death of
Siegfred Perez. Herein accused-appellant PO2 Rodel Samonte was one
of the suspects in the fatal shooting. A prosecution witness, SPO4
Ruben Morales and Police Inspector Ricardo Gallardo confronted
Samonte in the City Mayor's office, where he was detailed. His service
revolver was confiscated. Upon his own initiative, he informed
Inspector Gallardo that there is another caliber .38 paltik revolver in his
house, which belonged to the victim. Both firearms were submitted for
ballistic examination. The results showed that the caliber .38 slug
recovered from the body of the deceased was indeed fired from the
(paltik) homemade revolver. Meanwhile, a prosecution witness, Elmer
Mabilin, who chanced upon both firearms at the police station identified
both to be that of accused-appellant. Murder and illegal possession of
forearms were separately filed against accused-appellant. Upon
arraignment, he pleaded not guilty. After trial, the court found accused-
appellant guilty of the crime of qualified illegal possession of firearms
and was sentenced accordingly. In another branch, he was acquitted of
the crime of homicide. Samonte appealed his conviction.
According to the Supreme Court, with the enactment of Republic Act
8294 amending PD 1866, qualified illegal possession of firearms and
homicide are no longer two distinct and separate offenses punishable
under separate laws. Under the amendment, if homicide or murder was
committed with the use of an unlicensed firearm, such use of the same
should only be considered as an aggravating circumstance. Thus, the
Court acquitted PO2 Samonte with the crime of illegal possession of
firearms.
SYLLABUS
1.CRIMINAL LAW; MURDER; COMMITTED WITH THE USE OF
UNLICENSED FIREARM; CONSIDERED AS AN AGGRAVATING
CIRCUMSTANCE WITH THE ENACTMENT OF REPUBLIC ACT 8294. —
44
In People vs. Quijada, the Court ruled that violation of Presidential
Decree No. 1866 is an offense distinct from murder. With the
enactment of Republic Act 8294 amending PD 1866, the Court has now
abandoned the doctrine in Quijada. Applying the new law (RA 8294)
in People vs. Molina, the Court declared, thus: "Fortunately, for
appellants, however, RA 8294 has now amended the said decree and
considers the use of an unlicensed firearm simply as an aggravating
circumstance in murder or homicide, and not as a separate offense.
The intent of Congress to treat as a single offense the illegal possession
of firearm and the commission of murder or homicide with the use of
such unlicensed firearm is clear from the deliberations of the Senate
during the process of amending Senate Bill No. 1148. Under the
amendment, if homicide or murder is committed with the use of an
unlicensed firearm, such use of the same should only be considered as
an aggravating circumstance. IASCTD
2.ID.; ID.; ID.; ID.; RETROACTIVE APPLICATION OF R.A. 8294 IN
CASE AT BAR. — From the information alone, it is evident that the
crime of Illegal Possession of Firearms was attended by another crime
— the killing of Siegfred Perez. In fact, during the presentation of
evidence for the prosecution, it is revealed that the evidence offered
were those used in the other case against accused-appellant. The
defense likewise showed that a separate case for murder was indeed
instituted. While the crime of Illegal Possession of Firearms in the
present case had been committed on June 13, 1993, we should give
retroactive application to RA 8294 which considers the use of an
unlicensed firearm in the killing of the victim as a mere aggravating
circumstance, as it is advantageous to accused-appellant. Even granting
that a simple case of illegal possession of firearms may be permitted
against accused-appellant, the same must still fail, for the prosecution
neglected to show any proof that the questioned firearm was
unlicensed. The fact that the subject firearm is apaltik revolver is of no
consequence. In People vs. De Vera, Sr., where the subject firearm was
a mere sumpac, the Court did not dispense with the requirement of
proving the same to be unlicensed. Withal, an acquittal is in order.
DECISION
BUENA, J : p
This is an appeal from the decision dated May 13, 1996 of the Regional
Trial Court, 5th Judicial Region, Branch 3, Legazpi City, finding accused-
appellant Rodel Samonte guilty of Qualified Illegal Possession of
Firearms under Presidential Decree No. 1866, thus:
"WHEREFORE, in view of all the foregoing considerations, this
Court finds accused RODEL SAMONTE GUILTY beyond
reasonable doubt of aggravated or qualified Illegal Possession
of Firearms as defined and penalized under Section 1, Par. 2
of PD No. 1866 which pertinently reads: 'If homicide or
murder is committed with the use of an unlicensed firearms,
the penalty of death shall be imposed.' And hereby sentences
him to suffer the DEATH PENALTY. However, by reason of
Section 19(1), Article III of the 1987 Constitution which
proscribes the imposition of the Death Penalty, the Death
Penalty is hereby reduced to the next lower degree,
or RECLUSION PERPETUA.
"This Court orders the forfeiture of the firearms, cal. .38 snub
nose without serial number Exh. 'F', (paltik), with four (4) live
ammunitions, and cal. .38 with serial # INP 1015903, Exh. 'E'
with six (6) live ammunitions and other incidental
paraphernalia Exhs. 'J, K, & L' found in the possession of the
accused in favor of the Philippine National Police (PNP) to be
disposed of in accordance with law." 1
45
The antecedents of the case are as follows:
On June 13, 1993, at about 1:00 AM, a shooting incident occurred
along Rizal Street, Old Albay District, Legazpi City, resulting in the
death of one Siegfred Perez. 2 Herein accused-appellant PO2 Rodel
Samonte, a policeman detailed in the Mayor's Office of Legazpi City,
was one of the suspects in the fatal shooting of Perez. On June 15,
1993, Prosecution witnesses — SPO4 Ruben Morales and Police
Inspector Ricardo Gallardo — confronted accused-appellant in the City
Mayor's Office and confiscated the latter's service revolver. Thereupon,
accused-appellant informed Inspector Gallardo that there is another
revolver, a caliber .38 paltik in his house which he (Samonte) allegedly
recovered from the culprit (apparently referring to Siegfred Perez) on
June 13, 1993. Both firearms were submitted to the proper authorities
for ballistic examination. 3
The results showed that the caliber .38 slug recovered from the body of
deceased Perez was indeed fired from the caliber .38 (paltik)
homemade revolver, marked Smith and Wesson, without serial
number. 4
Lastly, prosecution witness Elmer Mabilin who chanced upon the above-
mentioned firearms at the police station on June 15, 1993, identified
both to be that of accused-appellant. 5
Charges of Murder and Illegal Possession of Firearms were separately
filed against accused-appellant. This case before us stemmed from the
Information dated August 16, 1993, the accusatory portion of which
reads:
"That on or about the 13th day of June, 1993, in the City of
Legazpi, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there wilfully, unlawfully and feloniously have in his
 possession an unlicensed .38 Caliber snub nose revolver
(paltik) with four (4) live ammunitions, without first securing
the necessary and requisite license or permit therefore (sic)
from the proper authorities, which firearm was used in
shooting SIEGFRED PEREZ resulting in the death of the latter.
"CONTRARY TO LAW." 6
Upon arraignment on December 9, 1993, accused-appellant, assisted
by Atty. Alfredo Kallos, entered a plea of not guilty. 7
After the prosecution rested its case, accused-appellant, through
counsel, filed a Demurrer to Evidence but the same was denied in an
order dated September 21, 1994. 8 While accused-appellant opted not
to testify, the defense presented Police Officer Brandon Dyanko and
Lilia Santillan to testify on the police blotter regarding the June 13
shooting incident, and on the Memorandum for Preliminary
Investigation, 9 respectively. Thereafter, the trial court found accused-
appellant guilty of the crime charged and was sentenced accordingly.
Hence this appeal with the following assigned errors:
"The trial court erred as follows:
"IN CONVICTING THE ACCUSED-APPELLANT OF
AGGRAVATED OR QUALIFIED ILLEGAL POSSESSION OF
FIREARMS, THE TRIAL COURT INTERFERED WITH BRANCH 9
OF THE SAME REGIONAL TRIAL COURT WHICH ACQUITTED
HIM OF THE CRIME OF HOMICIDE.
"DESPITE THE PROSECUTION'S FAILURE TO ESTABLISH THE
ELEMENTS CONSTITUTIVE OF THE CRIME OF ILLEGAL
POSSESSION OF FIREARMS, THE TRIAL COURT CONVICTED
THE ACCUSED-APPELLANT." 10
46
In support of the first assignment of error, accused-appellant contends
that inspite of the fact that it was made known to the trial court that
Branch 9 of the same court (Regional Trial Court of Legazpi City)
acquitted him in Criminal Case No. 6336 for homicide, said court still
entertained Criminal Case No. 6337 for illegal possession of firearms
aggravated by homicide under P.D. 1866.
This contention is not tenable. There was no interference by the trial
court (Branch 3) with Branch 9 of the same Regional Trial Court which
acquitted the accused-appellant of the crime of homicide. As pointed
out by the Solicitor General, citing People vs. Quijada, 11 qualified
illegal possession of firearms and homicide are distinct and separate
offenses punishable under separate laws. Considering that accused-
appellant allegedly used an unlicensed firearm in killing Siegfred Perez,
he was charged with aggravated illegal possession of firearms. His
acquittal of the homicide did not preclude his prosecution for
aggravated illegal possession of firearms for they were two distinct and
separate crimes.
The trial court convicted the accused-appellant of aggravated or
qualified illegal possession of firearms as defined and penalized under
Section 1, Paragraph 2 of P.D. No. 1866. However, on June 6, 1997,
P.D. No 1866 was amended by R.A. 8294 which became effective on
July 6, 1997, fifteen days after its publication in Malaya and Philippine
Journal on June 21, 1997.
Section 1 of PD 1866, as amended by RA 8294, now reads:
"Section 1.Unlawful Manufacture, Sale, Acquisition, Disposition
or Possession of Firearms or Ammunition or Instruments Used
or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty of prision correccional in its
maximum period and a fine of not less than Fifteen Thousand
pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess,
any low powered firearm, such as rimfire handgun, .380 or .32
and other firearm of similar firepower, part of firearm,
ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
"The penalty of prision mayor in its minimum period and a fine
of Thirty Thousand pesos (P30,000) shall be imposed if the
firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .
357 and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed
by the person arrested. IAEcCT
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident
to, or in connection with the crime of rebellion or insurrection,
sedition, or attemptedcoup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or
insurrection, sedition, or attempted coup d'etat. ESCDHA
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
47
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor." (emphasis ours)
In People vs. Quijada, 12 we ruled that violation of Presidential Decree
No. 1866 is an offense distinct from murder. With the enactment of
Republic Act8294 amending PD 1866, we have now abandoned the
doctrine in Quijada. Applying the new law (RA 8294) in People vs.
Molina, 13 we declared, thus:
"Fortunately, for appellants, however, RA 8294 has now
amended the said decree and considers the use of an
unlicensed firearm simply as an aggravating circumstance in
murder or homicide, and not as a separate offense. The intent
of Congress to treat as a single offense the illegal possession
of firearm and the commission of murder or homicide with the
use of such unlicensed firearm is clear from the following
deliberations of the Senate during the process of amending
Senate Bill No. 1148:
'Senator Drilon. On line 18, we propose to retain the
original provision of law which says, 'If homicide or
murder is committed with the use of the unlicensed
firearm.' And in order that we can shorten the
paragraph, we would suggest and move that the use of
the unlicensed firearm be considered as an aggravating
circumstance rather than imposing another period
which may not be in consonance with the Revised
Penal Code.
'So that if I may read the paragraph in order that it can
be understood, may I propose an amendment to lines
18 to 22 to read as follows: 'If homicide or murder is
committed with the use of the unlicensed firearm,
SUCH USE OF AN UNLICENSED FIREARM SHALL BE
CONSIDERED AS AN AGGRAVATING CIRCUMSTANCE.'
xxx xxx xxx
'Senator Santiago. Mr. President.
'The President. With the permission of the two
gentlemen, Senator Santiago is recognized. DSATCI
'Senator Santiago. Will the principal author allow me as
co-author to take the [f]loor to explain, for the
information of our colleagues, the stand taken by the
Supreme Court on the question of whether aggravated
illegal possession is a complex or a compound offense.
May I have the [f]loor?
'Senator Revilla. Yes, Mr. President.
'Senator Santiago. Thank you.
'In 1995, the Supreme Court held that when the crime
of killing another person is committed with the use of
an unlicensed firearm, the ruling in the case of People
v. Barros was that the crime should only be illegal
possession of firearm in its aggravated form. But in the
later case, in May 1996, in the case of People v.
Evangelista, the court apparently took another position
and ruled that when a person is killed with the use of
an unlicensed firearm, it is possible to file two separate
information[s] — one for murder and one for illegal
possession of firearms.
48
'In other words, in two successive years, the Supreme
Court issued two different ways of treating the
problem. The first is to treat it as one crime alone in
the aggravated form, and the second is to treat it as
two separate crimes.
'So at this point, the Senate has a choice on whether
we shall follow the 1995 or the 1996 ruling. The
proposal of the gentleman, as a proposed amendment,
is to use the 1995 ruling and to consider the offense as
only one offense but an aggravated form. That could
be acceptable also to this co-author.
'The presiding Officer [Sen. Flavier.] So, do I take it
that the amendment is accepted?
'Senator Revilla. Yes, it is accepted, Mr. President.
'The Presiding Officer [Sen. Flavier.] Thank you. Is
there any objection to the amendment? [Silence] There
being none, the amendment is approved.'
"Although the explanation of the legal implication of the
Drilon amendment may not have been very precise,
such modification, as approved and carried in the final
version enacted as RA 8294, is unequivocal in language
and meaning. The use of an unlicensed firearm in a
killing is now merely an aggravating circumstance in
the crime of murder or homicide. This is clear from the
very wordings of the third paragraph of Section 1 of RA
8294, which reads:
'If homicide or murder is committed with the use
of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an
aggravating circumstance.'
 "Furthermore, the preceding paragraphs, also in
Section 1, state that the penalties for illegal possession
of firearms shall be imposed 'provided that no other
crime is committed.' In other words, where murder or
homicide was committed, the separate penalty for
illegal possession shall no longer be meted out since it
becomes merely a special aggravating circumstance."
Under the amendment, if homicide or murder is committed with the use
of an unlicensed firearm, such use of the same should only be
considered as an aggravating circumstance. 14
Similarly, the records of the present case bare just that.
WHEREFORE, the appeal is GRANTED. Accused-appellant PO2 Rodel
Samonte is ACQUITTED of the crime of Illegal Possession of Firearms
under PD 1866, as amended by RA 8294. His immediate release from
prison is hereby ordered unless he is held for other legal cause.
The Director of Prisons is ordered to report within ten (10) days his
compliance with this decision.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

From the information alone, it is evident that the crime of Illegal

Possession of Firearms was attended by another crime — the killing of
Siegfred Perez. In fact, during the presentation of evidence for the
prosecution, it is revealed that the evidence offered were those used in
the other case against accused-appellant. 15 The defense likewise
showed that a separate case for murder was indeed instituted. 16 SECOND DIVISION
While the crime of Illegal Possession of Firearms in the present case [G.R. No. 131144. October 18, 2000.]
had been committed on June 13, 1993, we should give retroactive
application to RA 8294 which considers the use of an unlicensed firearm
NOEL ADVINCULA, petitioner, vs. HON. COURT OF
in the killing of the victim as a mere aggravating circumstance, as it is
APPEALS, HON. SOLICITOR GENERAL, HON.
advantageous to accused-appellant. 17
EDELWINA PASTORAL, Presiding Judge, RTC-Br.
Even granting that a simple case of illegal possession of firearms may 91, Bacoor, Cavite, HON. HERMINIO P. GERVACIO,
be permitted against accused-appellant, the same must still fail, for the Provincial Prosecutor of Cavite, AMANDO OCAMPO
prosecution neglected to show any proof that the questioned firearm and ISAGANI OCAMPO, respondents.
was unlicensed. The fact that the subject firearm is a paltikrevolver is
of no consequence. InPeople vs. De Vera, Sr. 18 where the subject Alejandro and Anarna Law Office for petitioner.
firearm was a mere sumpac, we did not dispense with the requirement
of proving the same to be unlicensed. 19 Withal, an acquittal is in order. The Solicitor General for public respondent.
49
Ocampo Dizon & Domingo and Ramon Esguerra for SYLLABUS
private respondents.
1.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; ELEMENTS. —
SYNOPSIS The rule is well settled that in cases of Illegal Possession of Firearms,
two (2) things must be shown to exist: (a) the existence of the firearm,
and (b) the fact that it is not licensed.
Petitioner was the complainant in a charge of Illegal Possession of
Firearms filed before the Provincial Prosecutor of Cavite. For alleged
2.ID.; ID.; ID.; WITHOUT PERMIT TO CARRY, FIREARM CANNOT BE
lack of evidence, the complaint was dismissed on May 26, 1994.
CARRIED OUTSIDE RESIDENCE. — However, it should be noted that
Petitioner appealed the dismissal, and on June 6, 1996, the Secretary of
in People v. Ramos, citing People v. Gy Gesiong, this Court ruled: ". . .
Justice ordered the Provincial Prosecutor to file the corresponding
Even if he has the license, he cannot carry the firearm outside his
charges of Illegal Possession of Firearms against private respondents.
residence without legal authority therefor."
This prompted respondents to file a Petition forCertiorari and
Prohibition with the Court of Appeals. The appellate court granted 3.REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY
private respondents' petition and set aside the disputed resolution of INVESTIGATION; 15 DAY PERIOD TO APPEAL RESOLUTION OF
the Secretary of Justice. Hence, this petition. PROVINCIAL PROSECUTOR DISMISSING CRIMINAL COMPLAINT;
SECRETARY OF JUSTICE GIVEN WIDE DISCRETION WHEN ACTING
The Secretary of Justice, in his contested Resolution, made findings of
UPON DELAYED APPEALS PROVIDED GOOD GROUNDS EXIST TO DO
fact supported by evidence which cannot be disturbed by this Court.
SO UNDER DOJ CIRCULAR NO. 7. — The Court of Appeals also took
The rulings relied upon by the Court of Appeals and private
note of the fact that petitioner's appeal to the Secretary of Justice was
respondents deal with the quantum of evidence needed to convict a
filed out of time. Per DOJ Circular No. 7 dated 25 January 1990, the
person for Illegal Possession of Firearms. The petition arose from a
aggrieved party has fifteen (15) days to appeal resolutions of, among
case which was still in its preliminary stages, the issue being whether
others, the Provincial Prosecutor dismissing a criminal complaint.
there was probable cause to hold private respondents for trial. Probable
Petitioner filed his appeal four (4) months after receiving the Provincial
cause, for purposes of filing a criminal information, has been defined as
Prosecutor's decision dismissing his complaint. This notwithstanding,
such facts as are sufficient to engender a well-founded belief that a
the Secretary of Justice gave due course to the appeal. It can be
crime has been committed and that respondent is probably guilty
surmised then that DOJ Circular No. 7, while aimed at facilitating the
thereof. The procedure is in no wise in the nature of a trial that will
expeditious resolution of preliminary investigations, does not tie the
finally adjudicate the guilt or innocence of private respondents. The
hands of the Secretary of Justice if he thinks that injustice will result
requisite evidence for convicting a person of the crime of Illegal
from the dismissal of the criminal complaint when there is a good
Possession of Firearms is not needed at this point. It is enough that the
ground to file it.
Secretary of Justice found that the facts, as presented by both
petitioner and private respondents, would constitute a violation of PD
1866.
50
4.ID.; ID.; ID.; ONLY ISSUE IS PROBABLE CAUSE; DEFINITION
THEREOF. — This petition arose from a case which was still in its
preliminary stages, the issue being whether there was probable cause
to hold private respondents for trial. And probable cause, for purposes
of filing criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been
committed and that respondent is probably guilty thereof. The
procedure is in no wise in the nature of a trial that will finally adjudicate
the guilt or innocence of private respondents. The requisite evidence
for convicting a person of the crime of Illegal Possession of Firearms is
not needed at this point.
5.ID.; ID.; ID.; TERMINATED UPON FILING OF COMPLAINT IN COURT;
HENCEFORTH, ALL ANCILLARY REMEDIES MUST BE ADDRESSED TO
TRIAL COURT. — The filing of the Petition for Certiorari with the Court
of Appeals was not the proper remedy for private respondents. It
should be noted that when the Petition was filed, the Information was
already filed by the Provincial Prosecutor with the Regional Trial Court
of Bacoor, Cavite. The criminal case commenced from that time at its
course would now be under the direction of the trial court. As we held
in Crespo v. Mogul — The preliminary investigation conducted by the
fiscal for the purpose of determining whether a prima facie exits
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 . . . 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. cdphil
51
6.ID.; EVIDENCE; FACTUAL: FINDINGS OF SECRETARY OF JUSTICE
CANNOT BE DISTURBED BY THIS COURT. — The Secretary of Justice,
in his contested Resolution, thus made the following findings: Even if
Armando had the requisite license, there was no proof that he had the
necessary permit to carry it outside his residence; and Isagani's plain
denial could not overcome his positive identification by petitioner that
he carried a firearm in assaulting him. There are findings of fact
supported by evidence which cannot be disturbed by this Court.
7.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; CANNOT BE RESORTED
TO WHEN OTHER REMEDIES ARE AVAILABLE. — Certiorari, being an
extraordinary writ, cannot be resorted to when there are other
remedies available. Private respondents could file a Motion to Quash
the Information under Rule 117 of the Rules of Court, or let the trial
proceed where they can either file a demurrer to evidence or present
their evidence to disprove the charges against them.
8.ID.; ID.; ID.; SAVE FOR CERTAIN EXCEPTIONS, CRlMINAL
PROSECUTIONS MAY NOT BE RESTRAINED. — It is well settled that
criminal prosecutions may not be restrained or stayed by injunction,
preliminary or final, subject to certain exceptions, e.g., when the
determination of probable cause is done with grave abuse of discretion,
or where a sham preliminary investigation was hastily conducted, or
where it is necessary for the courts to do so for the orderly
administration of justice or to prevent the use of the strong arm of the
law in an oppressive and vindictive manner. None of these exceptions is
present in the instant case. Hence, the Court of Appeals erred in
granting private respondents' Petition for Certiorari and worse, setting
aside the Resolution of the Secretary of Justice.
DECISION
BELLOSILLO, J : p
NOEL ADVINCULA, in this petition for review, assails the Decision of the
Court of Appeals which set aside the resolution of the Secretary of
Justice ordering the Provincial Prosecutor of Cavite to file an
Information for Illegal Possession of Firearms against private
respondents Amando Ocampo and Isagani Ocampo.
As found by the Court of Appeals, on 1 October 1993 at around three
o'clock in the afternoon, private respondent Isagani Ocampo was on his
way home when petitioner Noel Advincula and two (2) of his drinking
companions started shouting invectives at him and challenging him to a
fight. Petitioner, armed with a bolo, ran after Isagani who was able to
reach home and elude his attackers. Petitioner kept cursing Isagani
who eventually left. A certain Enrique Rosas told private respondent
Amando Ocampo, father of Isagani, that petitioner had chased his son
with a bolo. Amando then got his .22 caliber gun, which he claimed was
licensed, and confronted petitioner who continued drinking with his
friends. But petitioner threatened to attack Amando with his bolo, thus
prompting the latter to aim his gun upwards and fire a warning shot.
Cooler heads intervened and Amando was pacified. He left to check on
his son. Later, however, he saw petitioner's drinking companions firing
at petitioner's house. 1
Petitioner however has a different version. According to him, on 1
October 1993 he and his friends were having a conversation outside his
house when Isagani passed by and shouted at them. This led to a
heated argument between him and Isagani. Then Isagani left but
returned with his father Amando and brother Jerry. Isagani and
Amando were each armed with a gun and started petitioner who ran
home to avoid harm but private respondents Isagani and Amando
continued shooting, hitting petitioner's residence in the process. 2
52
A series of criminal complaints were filed by petitioner on one hand and
private respondents on the other. But the controversy in this petition
arose from the complaint filed by petitioner on 5 April 1994 for Illegal
Possession of Firearms against private respondents before the
Provincial Prosecutor of Cavite. Petitioner's complaint was supported by
his complaint-affidavit, the affidavit of one Federico San Miguel,
photocopies of photographs showing bullet holes on petitioner's
residence, and certification of the Firearms and Explosives Unit of the
Philippine National Police that private respondents had no records in
that office.
After private respondents submitted their counter-affidavits, the
Assistant Provincial Prosecutor, with the approval of the Provincial
Prosecutor, dismissed on 26 May 1994 petitioner's complaint against
private respondents for Illegal Possession of Firearms for lack of
evidence. According to the Provincial Prosecutor —
After a close and careful study of the records of the instant
case, undersigned finds and so holds that the evidence
presented by the complainant is not sufficient to engender a
well founded belief that the crime for Illegal Possession of
Firearms has been committed and the respondents are
probably guilty thereof. While it is true that respondent
Amando Ocampo was possessing a gun on the date of the
incident per the allegations in his counter-affidavit that he
fired a gun upwards to prevent complainant from further
assaulting him yet the possession of said firearm cannot be
considered illegal or unlawful as the same is covered by a
firearm license duly issued by the chief of the Firearm and
Explosives Office.
With respect to respondent Isagani Ocampo, no convincing
evidence has been presented by the complainant except the
 allegations appearing in his affidavit and that of his witness
which is not sufficient to establish a prima facie case for
charging the former with Illegal Possession of Firearms. Even
the slug depicted in the xeroxed photo copies marked as
Annex "E" of the complaint do not show that said slugs were
fired from different firearms hence it can be presumed that
the same were fired from the gun of respondent Amando
Ocampo an indication that during the incident, only the latter
was in possession of a firearm. 3
On 21 October 1994 petitioner filed a petition for review with the
Secretary of Justice insisting that the pieces of evidence he presented
before the Provincial Prosecutor were sufficient to make a prima
facie case against private respondents and prayed that the dismissal of
his complaint be set aside. Private respondents filed their opposition
thereto stating in essence that Amando's gun was licensed and that
there was no proof other than petitioner's self-serving statement that
Isagani had carried a firearm.
In his Resolution of 6 June 1996 the Secretary of Justice granted
petitioner's appeal and ordered the Provincial Prosecutor of Cavite to
file the corresponding charges of Illegal Possession of Firearms against
private respondents. As the Secretary of Justice held —
There is no dispute as to the fact that respondent Amando
Ocampo, by his own admission, was in possession of a
firearm. His defense that it was duly licensed, however, by the
records of the Firearms and Explosives Office (FEO). Granting,
however, that said firearm was duly licensed by the Philippine
National Police, no evidence was submitted to prove that he is
possessed of the necessary permit to carry the firearm outside
of his residence. In other words, his possession of the firearm,
while valid at first, became illegal the moment he carried it out
of his place of abode.
53
With regard to respondent Isagani Ocampo, his bare denial
cannot overcome his positive identification by complainant and
his witnesses. Physical evidence, such as the bullet marks on
the walls of complainant's residence, indeed strengthen the
latter's allegation that respondents actually fired at him. The
case was nevertheless dismissed on the ground of lack of
evidence. This is erroneous. In cases falling under violations of
PD 1866, it is not indispensable that the firearm used be
presented in evidence as long as the possession and use
thereof have been duly established by the testimony of
several witnesses. (People v. Jumanoy, 221 SCRA 333). 4
On 25 June 1996, pursuant to the Resolution of the Secretary of
Justice, the Provincial Prosecutor of Cavite filed two (2) separate
Informations against Amando and Isagani Ocampo for Illegal
Possession of Firearms before the Regional Trial Court of Bacoor,
Cavite, docketed as Crim. Case No. B-96-141 and B-96-142,
respectively. On 17 December 1996, private respondents filed a Petition
for Certiorari and Prohibition under Rule 65 of the Rules of Court with a
prayer for Preliminary Injunction and Temporary Restraining Order with
the Court of Appeals questioning the Resolution of the Secretary of
Justice.
In giving due course to private respondents' petition, the Court of
Appeals agreed with the position of the Solicitor General —
A judicious examination of the records will show that there is
no probable cause to hail petitioners for trial for illegal
possession of firearms.
The weakness of the case against petitioners is highlighted by
the failure of the Information to allege the identity of the
firearms allegedly possessed by petitioners at the time of the
incident. No guns were seized or recovered from them. There
is no corpus delicti. It could not therefore be ascertained with
 verisimilitude that petitioners did not have the license to there was no convincing evidence that he was in possession of a gun
possess or carry guns. Given the mutual recriminations which during the incident involving him, his father and petitioner, except for
were generated by the incident, it would have been facile for the eyewitness account of petitioner and one Federico San Miguel.
any of the protagonists to concoct a charge of illegal
possession of firearms against their adversary . . . In crimes Indeed, the rule is well settled that in cases of Illegal Possession of
involving illegal possession of firearms, the prosecution has Firearms, two (2) things must be shown to exist: (a) the existence of
the burden of proving the elements thereof, viz.: The
the firearm, and (b) the fact that it is not licensed. 6 However, it should
existence of the subject firearm and the fact that the accused
be noted that in People v. Ramos, 7 citing People v. Gy Gesiong, 8 this
who owned or possessed the firearm does not have the
corresponding license or permit to possess the same. Negative Court ruled: " . . . Even if he has the license, he cannot carry the
allegation of the lack of a license is an essential ingredient of firearm outside his residence without legal authority therefor."
the offense which the prosecution must prove. How could the
people prove beyond reasonable doubt that petitioners This ruling is obviously a reiteration of the last paragraph of Sec. 1 of
committed the offense of illegal possession of firearms when PD 1866 —
the firearms are not even identified with certainty . . . 5
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
On the basis of the evidence on record, the Court of Appeals granted Possession of Firearms or Ammunition or Instruments Used or
private respondents' petition and set aside the disputed Resolution of Intended to be Used in the Manufacture of Firearms or
the Secretary of Justice. Hence, this petition. Ammunition . . . The penalty of prision mayor shall be
imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor.
The main issue to be resolved is whether the Court of Appeals erred in
granting private respondents' petition and in setting aside the
The Secretary of Justice, in his contested Resolution, thus made the
Resolution of the Secretary of Justice. In determining this question, we
following findings: Even if Amando had the requisite license, there was
need to address these questions: (a) Was there sufficient evidence to
no proof that he had the necessary permit to carry it outside his
warrant the filing of charges for Illegal Possession of Firearms against
residence; and Isagani's plain denial could not overcome his positive
private respondents; and (b) May the Court of Appeals set aside the
identification by petitioner that he carried a firearm in assaulting him.
Decision of the Secretary of Justice when the corresponding
These are findings of fact supported by evidence which cannot be
Information has already been filed with the trial court?
disturbed by this Court.
The Court of Appeals found that no charges for Illegal Possession of
Besides, the rulings relied upon by the Court of Appeals and private
Firearms could be filed against private respondents for two (2) reasons:
respondents deal with the quantum of evidence needed to convict
First, as to private respondent Amando Ocampo, he had the requisite
persons for Illegal Possession of Firearms. This petition arose from a
license to possess the firearm, which was established by sufficient
case which was still in its preliminary stages, the issue being whether
evidence on record. Second, as to private respondent Isagani Ocampo,
there was probable cause to hold private respondents for trial. And
54
probable cause, for purposes of filing criminal information, has been
defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondent is probably guilty
thereof. The determination of its existence lies within the discretion of
the prosecuting officers after conducting a preliminary investigation
upon complaint of an offended party. 9 Their decisions are reviewable
by the Secretary of Justice who may direct the filing of the
corresponding information or to move for the dismissal of the
case. 10 The procedure is in no wise in the nature of a trial that will
finally adjudicate the guilt or innocence of private respondents. The
requisite evidence for convicting a person of the crime of Illegal
Possession of Firearms is not needed at this point. It is enough that the
Secretary of Justice found that the facts, as presented by both
petitioner and private respondents, would constitute a violation of PD
1866. Hence, the Secretary of Justice did not commit grave abuse of
discretion in directing the filing of criminal Informations against private
respondents, and clearly, it was error for the Court of Appeals to grant
private respondents' petition forcertiorari.
The Court of Appeals also took note of the fact that petitioner's appeal
to the Secretary of Justice was filed out of time. Per DOJ Circular No. 7
dated 25 January 1990, the aggrieved party has fifteen (15) days to
appeal resolutions of, among others, the Provincial Prosecutor
dismissing a criminal complaint. Petitioner filed his appeal four (4)
months after receiving the Provincial Prosecutor's decision dismissing
his complaint. This notwithstanding, the Secretary of Justice gave due
course to the appeal. It can be surmised then that DOJ Circular No. 7,
while aimed at facilitating the expeditious resolution of preliminary
investigations, does not tie the hands of the Secretary of Justice if he
thinks that injustice will result from the dismissal of the criminal
complaint when there is a good ground to file it.
55
Assuming arguendo that the Secretary of Justice was not able to
establish probable cause to direct the Provincial Prosecutor to file the
charges of Illegal Possession of Firearms against private respondents,
the filing of the Petition for Certiorari with the Court of Appeals was not
the proper remedy for private respondents. It should be noted that
when the Petition was filed, the Information was already filed by the
Provincial Prosecutor with the Regional Trial Court of Bacoor, Cavite.
The criminal case commenced from that time at its course would now
be under the direction of the trial court. As we held inCrespo v.
Mogul 11 —
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie exists
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 . . . 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.
Whatever irregularity in the proceedings the private parties may raise
should be addressed to the sound discretion of the trial court which has
already acquired jurisdiction over the case. Certiorari, being an
extraordinary writ, cannot be resorted to when there are other
remedies available. Private respondents could file a Motion to
Quash the Information under Rule 117 of the Rules of Court, or let the
trial proceed where they can either file a demurrer to evidence or
present their evidence to disprove the charges against them. It is well
settled that criminal prosecutions may not be restrained or stayed by
injunction, preliminary or final, subject to certain exceptions, e.g., when
the determination of probable cause is done with grave abuse of
discretion, 12 or where a sham preliminary investigation was hastily
conducted, 13 or where it is necessary for the courts to do so for the
orderly administration of justice or to prevent the use of the strong arm
of the law in an oppressive and vindictive manner. 14 None of these
exceptions is present in the instant case. Hence, the Court of Appeals
erred in granting private respondents' Petition for Certiorari and, worse,
setting aside the Resolution of the Secretary of Justice.
WHEREFORE, the instant petition for review is GRANTED and the
assailed Decision of the Court of Appeals is REVERSED. The Resolution
dated 6 June 1996 of the Secretary of Justice is REINSTATED.
SO ORDERED.
Mendoza, Quisumbing and De Leon, Jr., JJ., concur.
Buena, J., took no part, concurred in CA decision.
EN BANC
[G.R. Nos. 133489 & 143970. January 15, 2002.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
RONALD a.k.a "RONALD"
GARCIA y FLORES, * RODANTE ROGEL yROSALES,
ROTCHEL LARIBA y DEMICILLO, and GERRY B.
VALLER, accused-appellants.
56
The Solicitor General for plaintiff-appellee.
Anthony L. Po for accused G.B. Valler.
Public Attorney's Office for accused-appellants.
SYNOPSIS
The penalty of death was imposed upon accused-appellants after the
trial court found them guilty of the crime of kidnapping with ransom
and serious illegal detention committed against Atty. Romualdo Tioleco.
Accused-appellants Rotchel Lariba and Rodante Rogel were also
convicted of illegal possession of firearms and ammunition in
connection with the same incident and each was sentenced to an
indeterminate prison term.
Hence, this automatic review.
Among others, accused-appellants assailed the finding of the trial court
that the evidence presented by the prosecution was sufficient to
warrant their conviction.
Issues of sufficiency of evidence are resolved by reference to findings
of the trial court that are entitled to the highest respect on appeal in
the absence of any clear and overwhelming showing that the trial court
neglected, misunderstood or misapplied some facts or circumstances of
weight and substance affecting the result of the case. Bearing this
elementary principle in mind, the Court found enough evidence to
prove beyond reasonable doubt the cooperation of all appellants in the
kidnapping for ransom of Atty. Tioleco. All the elements and qualifying
circumstances to warrant conviction of the crime of kidnapping for
ransom and serious illegal detention had been established beyond
reasonable doubt by the prosecution.
The Court, while affirming accused-appellants' conviction for the crime
of kidnapping for ransom and serious illegal detention, however,
disagreed with the trial court's finding on the criminal liability of each
accused-appellant. Contrary to the finding of the trial court, the Court
found that only accused-appellants Gerry Valler and Ronald Garcia
should be liable as principals while accused-appellants Rotchel Lariba
and Rodante Rogel should be liable only as accomplices. The Court
found the participation of accused-appellants Lariba and Rogel hardly
indispensable. There was no evidence indubitably proving that both
participated in the decision to commit the criminal act. As the evidence
stood, they were caught just guarding the house for the purpose of
either helping the other appellants in facilitating the success of the
crime or repelling any attempt to rescue the victim as shown by the
availability of arms and ammunition to them. These items contrasted
starkly with the tried and true facts against Valler and Garcia that
pointed to them as the agents ab initio of the design to kidnap the
victim and extort ransom from his family.
Anent the judgment of the trial court convicting Lariba and Rogel of
illegal possession of firearms and ammunition, the Court reversed and
set aside the same, ruling that both accused-appellants cannot be held
liable of the said crime there being another crime — kidnapping for
ransom — which they were perpetrating at the same time.
The decision of the trial court was modified. In Crim. Case No. Q-96-
68049 appellants Gerry Valler and Ronald Garcia were declared guilty
as principals of kidnapping for ransom and serious illegal detention and
were each sentenced to death, while appellants Rodante Rogel and
Rotchel Lariba were found guilty as accomplices of the same crime and
were each sentenced to reclusion perpetua. In Crim. Case No. Q-96-
68050, the decision convicting them of illegal possession of firearms
and ammunition was reversed and set aside.
57
SYLLABUS
1.CRIMINAL LAW; KIDNAPPING FOR RANSOM; ACTUAL DEMAND FOR
PAYMENT OF RANSOM, NOT REQUIRED; PAYMENT OF RANSOM AND
RECOVERY OF VICTIM, NOT A DETERRENT FOR A FINDING OF
CULPABILITY FOR THE CRIME; CASE AT BAR. — We do not find any
quantum of merit in the contention that kidnapping for ransom is
committed only when the victim is released as a result of the payment
of ransom. In People v. Salimbago we ruled — No specific form of
ransom is required to consummate the felony of kidnapping for ransom
so long as it was intended as a bargaining chip in exchange for the
victim's freedom. In municipal criminal law, ransom refers to the
money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity.
Neither actual demand for nor actual payment of ransom is necessary
for the crime to be committed. It is enough if the crime was committed
"for the purpose of extorting ransom." Considering therefore, that the
kidnapping was committed for such purpose, it is not necessary that
one or any of the four circumstances be present. So the gist of the
crime, as aptly stated in American jurisprudence from which was
derived the crime of kidnapping for ransom, is "not the forcible or
secret confinement, imprisonment, inveiglement, or kidnapping without
lawful authority, but . . . the felonious act of so doing with intent to
hold for a ransom the person so kidnapped, confined, imprisoned,
inveigled, etc." It is obvious that once that intent is present, as in the
case at bar, kidnapping for ransom is already committed. Any other
interpretation of the role of ransom, particularly the one advanced by
accused-appellants, is certainly absurd since it ironically penalizes
rescue efforts of kidnap victims by law enforcers and in turn rewards
kidnappers for the success of police efforts in such rescue operations.
Moreover, our jurisprudence is replete with cases,e.g., People v. Chua
Huy, People v. Ocampo and People v. Pingol, wherein botched ransom
payments and effective recovery of the victim did not deter us from
finding culpability for kidnapping for ransom. ASCTac
2.ID.; CRIMINAL LIABILITY; ACCOMPLICES; MERELY GUARDING THE
HOUSE FOR THE PURPOSE OF EITHER HELPING THE OTHER ACCUSED
IN FACILITATING THE EXECUTION OF THE CRIME OR REPELLING ANY
ATTEMPT TO RESCUE THE VICTIM MAKES ONE AN ACCOMPLICE; CASE
AT BAR. — Lariba and Rogel were caught inside the house where Atty.
Tioleco was detained. P/Chief Insp. Paul Tucay testified on their
involvement . . . Correlating this testimony with the other evidence, it is
clear that at the time Lariba and Rogel were caught, Atty. Tioleco had
already been rendered immobile with his eyes blindfolded and his
hands handcuffed. No evidence exists that he could have gone
elsewhere or escaped. At the precise moment of their apprehension,
accused-appellants Lariba and Rogel were unarmed although guns
inside one of the rooms of the house were available for their use and
possession. Assessing these established circumstances in the manner
most favorable to Lariba and Rogel, we conclude that they were merely
guarding the house for the purpose of either helping the other accused-
appellants in facilitating the successful denouement to the crime or
repelling any attempt to rescue the victim, as shown by the availability
of arms and ammunition to them. They thus cooperated in the
execution of the offense by previous or simultaneous acts by means of
which they aided or facilitated the execution of the crime but without
any indispensable act for its accomplishment. Under Art. 18 of The
Revised Penal Code, they are mere accomplices.
3.ID.; ID.; ACCOMPLICE DISTINGUISHED FROM A CONSPIRATOR;
CASE AT BAR. — In People v. De Vera we distinguished a conspirator
from an accomplice in this manner — Conspirators and accomplices
have one thing in common: they know and agree with the criminal
design. Conspirators, however, know the criminal intention because
they themselves have decided upon such course of action. Accomplices
58
come to know about it after the principals have reached the decision,
and only then do they agree to cooperate in its execution. Conspirators
decide that a crime should be committed; accomplices merely concur in
it. Accomplices do not decide whether the crime should be committed;
they merely assent to the plan and cooperate in its accomplishment.
Conspirators are the authors of a crime; accomplices are merely their
instruments who perform acts not essential to the perpetration of the
offense. In the instant case, we cannot deny knowledge on the part of
Lariba and Rogel that Valler and Garcia had kidnapped Atty. Tioleco for
the purpose of extorting ransom and their cooperation to pursue such
crime. But these facts without more do not make them co-conspirators
since knowledge of and participation in the criminal act are also
inherent elements of an accomplice. Further, there is no evidence
indubitably proving that Lariba and Rogel themselves participated in the
decision to commit the criminal act. As the evidence stands, they were
caught just guarding the house for the purpose of either helping the
other accused-appellants in facilitating the success of the crime or
repelling any attempt to rescue the victim as shown by the availability
of arms and ammunition to them. These items contrast starkly with the
tried and true facts against Valler and Garcia that point to them as the
agents ab initio of the design to kidnap Atty. Tioleco and extort ransom
from his family.
4.ID.; ID.; ABSENT THE REQUIRED QUANTUM OF PROOF TO
ESTABLISH CONSPIRACY, AND DOUBT CREATED WHETHER ACCUSED
ACTED AS PRINCIPAL OR ACCOMPLICE, ACCUSED IS CONSIDERED TO
HAVE ACTED AS ACCOMPLICE ONLY. — Significantly, the crime could
have been accomplished even without the participation of Lariba and
Rogel. As stated, the victim had been rendered immobile by Valler and
Garcia before the latter established contacts with Floriana Tioleco and
demanded ransom. The participation of Lariba and Rogel was thus
hardly indispensable. As we have held inGarcia v. CA, "in some
exceptional situations, having community of design with the principal
does not prevent a malefactor from being regarded as an accomplice if
his role in the perpetration of the homicide or murder was, relatively
speaking, of a minor character." At any rate, where the quantum of
proof required to establish conspiracy is lacking and doubt created as to
whether the accused acted as principal or accomplice, the balance tips
for the milder form of criminal liability of an accomplice.
5.ID.; ID.; ID.; ACCUSED IS RESPONSIBLE ONLY AS ACCOMPLICE
WHERE HELP GIVEN WAS NOT INDISPENSABLE TO THE END
PROPOSED; CASE AT BAR. — We are not unaware of the ruling
in People v. Licayan that conspiracy can be deduced from the acts of
the accused-appellants and their co-accused which show a concerted
action and community of interest. By guarding Co and Manaysay and
preventing their escape, accused-appellants exhibited not only their
knowledge of the criminal design of their co-conspirators but also their
participations in its execution. But the instant case is different.
Considering the roles played by Lariba and Rogel in the execution of
the crime and the state the victim was in during the detention, it
cannot be said beyond reasonable doubt that these accused-appellants
were in a real sense detaining Atty. Tioleco and preventing his escape.
The governing case law is People v. Chua Huy where we ruled — The
defendants' statements to the police discarded, the participation of the
other appellants in the crime consisted in guarding the detained men to
keep them from escaping. This participation was simultaneous with the
commission of the crime if not with its commencement nor previous
thereto. As detention is an essential element of the crime charged, as
its name, definition and graduation of the penalty therefor imply, the
crime was still in being when Lorenzo Uy, Tan Si Kee, Ang Uh Ang,
William Hao and Young Kiat took a hand in it. However, we are not
satisfied from the circumstances of the case that the help given by
59
these accused was indispensable to the end proposed. Our opinion is
that these defendants are responsible as accomplices only.
6.ID.; ILLEGAL POSSESSION OF FIREARMS; ACCUSED CANNOT BE
CONVICTED THEREOF IF ANOTHER CRIME, KIDNAPPING FOR
RANSOM, WAS PERPETRATED AT THE SAME TIME. — In the beginning,
we noted that neither Lariba nor Rogel who were both convicted of
illegal possession of firearms and ammunition in Crim. Case No. Q-96-
68049 filed a notice of appeal in accordance with established
procedures, although the records show that accused-appellant Gerry
Valler needlessly did so exclusively in his behalf. But in light of the
enactment of RA 8294 amending PD 1866 effective 6 July 1997, and
our ruling in People v. Ladjaalam followed in Evangelista v. Siztoza, we
nonetheless review this conviction to give effect to Art. 22 of The
Revised Penal Code mandating in the interest of justice the retroactive
application of penal statutes that are favorable to the accused who is
not a habitual criminal. In Ladjaalam we ruled that if another crime was
committed by the accused he could not be convicted of simple illegal
possession of firearms under RA 8294 amending PD 1866 — . . .
Accordingly, we are constrained to dismiss Crim. Case No. Q-96-68049
and set aside the judgment of conviction therein since accused-
appellants Rotchel Lariba and Rodante Rogel cannot be held liable for
illegal possession of firearms and ammunitions there being another
crime — kidnapping for ransom — which they were perpetrating at the
same time.
7.REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE TRIAL
COURT GENERALLY ENTITLED TO THE HIGHEST RESPECT ON APPEAL.
— Issues of sufficiency of evidence are resolved by reference to
findings of the trial court that are entitled to the highest respect on
appeal in the absence of any clear and overwhelming showing that the
trial court neglected, misunderstood or misapplied some facts or
circumstances of weight and substance affecting the result of the case.
Bearing this elementary principle in mind, we find enough evidence to
prove beyond reasonable doubt the cooperation of all accused-
appellants in the kidnapping for ransom of Atty. Tioleco.
8.ID.; ID.; JUDICIAL CONFESSION; A PERSON IS PRESUMED TO BE IN
FULL POSSESSION OF HIS FACULTIES AND CONSCIENCE. TO RESIST
EVIL. — Truly incriminating is the judicial confusion of accused-
appellant Garcia of his participation in the commission of the crime. He
admitted that he took part in actually depriving Atty. Tioleco of his
liberty and in securing the ransom payment from Floriana Tioleco. He
could not have been following mechanically the orders of an alleged
mastermind, as he claims, since by his own admission he was neither
threatened, forced or intimidated to do so nor mentally impaired to
resist the orders. In the absence of evidence to the contrary, he is
presumed to be in full possession of his faculties and conscience to
resist and not to do evil.
9.ID.; ID.; CREDIBILITY OF WITNESSES; POSITIVE IDENTIFICATION
OF ACCUSED; IT IS MOST NATURAL FOR VICTIMS TO STRIVE TO
REMEMBER THE FACES OF THEIR ASSAILANTS AND THE MANNER IN
WHICH THE CRAVEN ACTS ARE COMMITTED. — We find nothing
substantive in Valler's attempt to discredit the victim's positive
identification of him on the trifling observation that Atty. Tioleco was
too confused at the time of his abduction to recognize accused-
appellant's physical features accurately. It is truly evident from the
testimony of Atty. Tioleco that his vision and composure were not
impaired by fear or shock at the time of his abduction and that he had
the opportunity to see vividly and remember unerringly Valler's face — .
. . Even on cross-examination, Atty. Tioleco was steadfast in his
reference to Gerry Valler . . . As we held in People v. Candelario, it is
the most natural reaction for victims of crimes to strive to remember
the faces of their assailants and the manner in which the craven acts
are committed. There is no reason to disbelieve Atty. Tioleco's claim
60
that he saw the faces of his abductors considering that they brazenly
perpetrated the crime in broad daylight without donning masks to hide
their faces. Besides, there was ample opportunity for him to discern
their features from the time two (2) of his kidnappers approached and
forced him into their car and once inside saw the other two (2),
including Gerry Valler, long enough to recall them until he was
blindfolded.
10.ID.; ID.; AFFIDAVITS; CONSIDERED INCOMPLETE AND
INACCURATE. — The victim's identification of accused-appellant Valler
is not any bit prejudiced by his failure to mention Valler's name in his
affidavit. It is well-settled that affidavits are incomplete and inaccurate
involving as they do mere passive mention of details anchored entirely
on the investigator's questions.
11.ID.; ID.; ABSENT ILL MOTIVE, POSITIVE IDENTIFICATION OF
ACCUSED BY VICTIM PREVAILS OVER ACCUSED'S DENIAL. — In light
of the positive identification by the victim of accused-appellant Valler,
the latter's denial must fall absolutely. Clearly, positive identification of
the accused where categorical and consistent and without any showing
of ill motive on the part of the eyewitness testifying on the matter
prevails over his defense. When there is no evidence to show any
dubious reason or improper motive why a prosecution witness would
testify falsely against an accused or falsely implicate him in a heinous
crime, the testimony is worthy of full faith and credit. TIAEac
12.ID.; ID.; CREDIBILITY OF WITNESSES; MINOR INCONSISTENCIES
IN TESTIMONIES DO NOT AFFECT THE CREDIBILITY OF THE
WITNESS; CASE AT BAR. — [W]e do not see any merit in Valler's
enumeration of alleged inconsistencies in the testimony of P/Chief Insp.
Gilbert Cruz concerning (a) the time and place of meeting between the
PACC operatives and Floriana Tioleco; (b) the schedule of the first and
second ransom pay-offs; (c) the number of Floriana Tioleco's
companions during the aborted first pay-off; (d) the number of
occupants in the blue Toyota car; and, (e) the PACC operatives'
recognition of Floriana Tioleco during the ransom payments. This is an
argument that clutches at straws. For one, the purported
inconsistencies and discrepancies involve estimations of time or
number, hence, the reference thereto by the witness would
understandably vary. Furthermore, they are too minor to warrant the
reversal of the judgment of conviction. They do not affect the truth of
the testimonies of witnesses nor do they discredit their positive
identification of accused-appellants. On the contrary, such trivial
inconsistencies strengthen rather than diminish the prosecution's case
as they erase suspicion of a rehearsed testimony and negate any
misgiving that the same was perjured.
13.ID.; ID.; ID.; ACCUSED, NOT INNOCENT BYSTANDERS; AN
INNOCENT PERSON WOULD IMMEDIATELY REPORT TO THE
AUTHORITIES A CRIME COMMITTED. — We also do not believe that
accused-appellants Rogel and Lariba are innocent bystanders in this
case. It taxes the mind to believe Rogel's defense that as a caretaker of
the place where Atty. Tioleco was detained, he observed nothing
unusual about this incident. An innocent man would have immediately
reported such dastardly act to the authorities and refused to sit idly by,
but a guilty person in contrast would have behaved otherwise as Rogel
did
14.ID.; ID.; REASONABLE DOUBT MUST ARISE FROM EVIDENCE
ADDUCED OR FROM LACK OF EVIDENCE AND SHOULD PERTAIN TO
FACTS CONSTITUTIVE OF THE CRIME CHARGED. — [A]ccused-
appellants cannot rely upon the familiar phrase "reasonable doubt" for
their acquittal. As demonstrated by the fastidious references of Valler to
alleged inconsistencies of P/Chief Insp. Cruz, not all possible doubt is
reasonable since in the nature of things everything relating to human
affairs is open to some imaginary dilemma. As we have said in People
61
v. Ramos, "it is not such a doubt as any man may start by questioning
for the sake of a doubt; nor a doubt suggested or surmised without
foundation in facts or testimony, for it is possible always to question
any conclusion derived from testimony. Reasonable doubt must arise
from the evidence adduced or from the lack of evidence, and it should
pertain to the facts constitutive of the crime charged." Accused-
appellants have not shown the presence of such fatal defects in this
case. Clearly, all the elements and qualifying circumstances to warrant
conviction for the crime of kidnapping for ransom and serious illegal
detention have been established beyond reasonable doubt.
15.ID.; ID.; CONSPIRACY; PROOF OF CONSPIRACY NEED NOT REST
ON DIRECT EVIDENCE BUT MAY BE INFERRED FROM CONDUCT OF
PARTIES DISCLOSING A COMMON UNDERSTANDING BETWEEN THEM.
— There is no doubt that Gerry Valler and Ronald Garcia are principals
by direct participation and co-conspirators in the kidnapping for ransom
of Atty. Tioleco. Their respective participation in perpetrating the crime
cannot be denied. As regards their liability as co-conspirators, we find
the same to have also been shown beyond reasonable doubt.
Conspiracy exists when two or more persons come to agreement
concerning the commission of a felony and decide to commit it for
which liability is joint. Proof of the agreement need not rest on direct
evidence as the felonious covenant itself may be inferred from the
conduct of the parties before, during, and after the commission of the
crime disclosing a common understanding between them relative to its
commission. The acts of Valler and Garcia in coordinating the
abduction, collection of ransom and detention of their victim indubitably
prove such conspiracy.
16.CRIMINAL LAW; PENALTIES; DEATH PENALTY; IMPOSED ON
PRINCIPALS. — We affirm the conviction of Gerry Valler and Ronald
"Roland" Garcia as principals and Rotchel Lariba and Rodante Rogel as
accomplices for the crime of kidnapping for ransom and serious illegal
detention. This Court is compelled to impose the supreme penalty of
death on Valler and Garcia as mandated by Art. 267 of The Revised
Penal Code, as amended by RA 7659.
17.ID.; ID.; RECLUSION PERPETUA, IMPOSED ON ACCOMPLICES. —
The penalty imposable on Lariba and Rogel as accomplices is reclusion
perpetua, the penalty one degree lower than that prescribed for the
crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of
the Code.
18.CIVIL LAW; DAMAGES; AWARD OF MORAL DAMAGES, PROPER IN
CASE AT BAR. — As regards the moral damages against accused-
appellants to be paid by them in solidum, we find the amount of
P200,000.00 to be reasonable compensation for the ignominy and
sufferings Atty. Tioleco and his family endured due to accused-
appellants' inhumane act of detaining him in blindfold and handcuffs
and mentally torturing him and his family to raise the ransom money.
The fact that they suffered the trauma of mental, physical and
psychological ordeal which constitute the bases for moral damages
under the Civil Code is too obvious to require still the recital thereof at
the trial through the superfluity of a testimonial charade. Following our
finding that only Gerry Valler and Ronald "Roland" Garcia are principals
by direct participation and conspirators while Rotchel Lariba and
Rodante Rogel are accomplices, we apportion their respective
responsibilities for the amount adjudged as moral damages to be paid
by them solidarily within their respective class and subsidiarily for the
others. Thus, the principals, accused-appellants Ronald "Roland" Garcia
and Gerry Valler, shall pay their victim Atty. Romualdo Tioleco
P150,000.00 for moral damages and the accomplices P50,000.00 for
moral damages.
62
DECISION
PER CURIAM : p
In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a. Roland
Garcia y Flores, Rodante Rogel y Rosales, Rotchel Lariba y Demicillo
and Gerry B. Valler, along with a certain Jimmy Muit, were charged with
and convicted of kidnapping for ransom and were sentenced each to
death, except aforementioned Jimmy Muit who has remained at large,
for obvious reasons, and to indemnify their victim Romualdo Tioleco
P200,000.00 and to pay the costs. 1
In a related case, Crim. Case No. Q-96-68050, which was decided
jointly with Crim. Case No. Q-96-68049, accused-appellants Rotchel
Lariba and Rodante Rogel were also found guilty of illegal possession of
firearms and ammunition and each sentenced to an indeterminate
prison term of four (4) years, nine (9) months and eleven (11) days
of prision correccional as minimum, to eight (8) years, eight (8) months
and one (1) day of prision mayor as maximum, and to pay a fine of
P30,000.00 plus the costs. 2 No notice of appeal 3 was filed in this
criminal case; nonetheless, for reasons herein below stated, we take
cognizance of the case.
Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New
Manila, Quezon City, at about 5:30 o'clock in the morning of 5 October
1996. 4 He was heading towards 4th Avenue when he noticed a blue
car parked at the corner of this street. 5 As he was about to cross 4th
Avenue, the car lurched towards him and stopped. 6 Two (2) men
quickly alighted from the car. 7 One of them pointed a gun at Atty.
Tioleco while the other hit his back and pushed him into the back seat
of the car. 8 Once inside, he saw two (2) other men, one on the driver's
seat and the other on the back seat directly behind the driver. 9 He
found out later the identities of the driver whom he undoubtedly
recognized during the abduction to be accused-appellant Gerry Valler,
and of the other person on the passenger seat behind Valler as
accused-appellant Roland "Ronald" Garcia. 10 He described the man
who disembarked from the car and who pushed him inside to be 5'5" or
5'6" in height, medium built, and the other, who threatened him with a
gun, at 5'4" or 5'5" in height, dark complexioned and medium built
although heftier than the other. 11 These two (2) persons have since
the commission of the crime have remained at large. HTSaEC
While inside the car Atty. Tioleco was made to crouch on the leg
room. 12 As it sped towards a destination then unknown to the victim,
the men on board feigned to be military men and pestered him with the
accusation of being a drug pusher and the threat of detention at Camp
Crame. 13 As they were psyching him down, "they started putting
blindfold on [him] and packaging tape on [his] face and handcuffed
[him] on the back of [his] body." 14 His eyeglasses were taken off
"when they were putting blindfold on [him] . . .." 15 Then they divested
him of his other personal belongings, e.g., his keys, wristwatch, etc. 16
The car cruised for thirty (30) to forty-five (45) minutes. 17 When it
finally stopped, Atty. Tioleco was told to alight, led to a house and then
into a room. 18He remained blindfolded and handcuffed throughout his
ordeal and made to lie down on a wooden bed. 19 During his captivity,
one of the kidnappers approached him and told him that he would be
released for a ransom of P2 million 20 although the victim bargained for
an amount between P50,000.00 and P100,000.00 which according to
him was all he could afford. While still under detention, one of his
abductors told him that they had mistaken him for a Chinese national
and promised his release without ransom. 21 But he was just being
taken for a ride since the kidnappers had already begun contacting his
sister Floriana Tioleco.
63
Floriana was at her office when her mother called up about her
brother's kidnapping. 22 Floriana hurried home to receive a phone call
from a person who introduced himself as "Larry Villanueva" demanding
P3 million for Atty. Tioleco's ransom. 23 Several other calls to Floriana
were made during the day and in one of those calls the ransom was
reduced to P2 million. 24 Around 7:00 o'clock in the evening of the
same day, 5 October 1996, P/Sr. Insp. Ronaldo Mendoza of the
Presidential Anti-Crime Commission (PACC) arrived at Floriana's house
to monitor her brother's kidnapping upon the request of her
friends.25 Floriana received the following day about eight (8) phone
calls from the kidnappers still demanding P2 million for her brother's
safe release. 26
By the end of the day on 7 October 1996 Floriana was able to raise only
P71,000.00, 27 which she relayed to the kidnappers when they called
her up. 28They finally agreed to set her brother free upon payment of
this amount, which was short of the original demand. 29 The pay-off
was scheduled that same day at around 8:00 o'clock in the evening at
Timog Avenue corner Scout Tuazon in Quezon City near the
"Lighthaus" and "Burger Machine." 30 Upon instruction of P/Sr. Insp.
Mendoza, Floriana together with only two (2) female friends proceeded
to this meeting place. 31 They reached there at 8:40 o'clock in the
evening and waited for the kidnappers until about 10:30 or 11:00
o'clock that evening. 32
Meanwhile, P/Sr. Insp. Mendoza relayed the information about the pay-
off and other relevant facts to P/Chief Insp. Gilberto Cruz at the PACC
headquarters. 33 With the information from P/Sr. Insp. Mendoza,
P/Chief Insp. Cruz, together with P/Chief Inps. Winnie Quidato and Paul
Tucay with P/Sr. Insp. Nilo Pagtalunan, immediately went to Timog
Avenue corner Scout Tuazon near the "Lighthaus" and Burger Machine"
in Quezon City. 34 They surveyed this site and saw a blue Toyota
Corona with three (3) persons on board suspiciously stopping about
five (5) meters from Floriana and her friends and remaining there for
almost two (2) hours. 35
Floriana and her friends left the "pay-off site" after waiting for two (2)
hours more or less; 36 so did the blue Toyota Corona almost
simultaneously. 37 No payment of ransom took place. 38 P/Chief Insp.
Cruz then ordered P/Chief Insps. Quidato and Tucay and their
subordinates to tail this car which they did all the way to the De Vega
Compound at Dahlia Street in Fairview, Quezon City. 39 This compound
consisted of one bungalow house and was enclosed by a concrete wall
and a steel gate for ingress and egress. 40 They posted themselves
thirty (30) to forty (40) meters from the compound to reconnoiter the
place. 41 Meanwhile, the kidnappers explained in a phone call to
Floriana that they had aborted the pay-off on account of their belief
that her two (2) companions at the meeting place were police
officers. 42 But she assured them that her escorts were just her
friends. 43
At around 1:00 o'clock in the afternoon of 8 October 1996 Floriana
received a call from the kidnappers at her house 44 who wanted to set
another schedule for the payment of the ransom money an hour later
or at 2:00 o'clock. 45 This time the rendezvous would be in front of
McDonald's fastfood at Magsaysay Boulevard in Sta. Mesa,
Manila. 46 She was told by the kidnappers that a man would go near
her and whisper "Romy" to whom she would then hand over the
ransom money. Floriana agreed to the proposal. With her two (2)
friends, she rushed to the place and brought with her the
P71,000.00. 47 About this time, the same blue Toyota Corona seen at
the first pay-off point left the De Vega Compound in Fairview. 48 A
team of PACC operatives under P/Chief Insp. Cruz again stationed
themselves in the vicinity of McDonald's. 49
64
Floriana arrived at the McDonald's restaurant and waited for a few
minutes. 50 Not long after, the blue Toyota Corona was spotted
patrolling the area. 51The blue car stopped and, after dropping off a
man, immediately left the place. The man approached Floriana and
whispered "Romy" to her. 52 She handed the money to him who took
it. 53 Floriana identified this man during the trial as accused-appellant
Roland (Ronald) Garcia. 54
The PACC operatives tried to follow the blue car but were prevented by
traffic. 55 They were however able to catch up and arrest Garcia who
was in possession of the ransom money in the amount of
P71,000.00. 56 They brought him inside their police car and there
apprised him of his custodial rights. 57Garcia informed the PACC
operatives that Atty. Tioleco was being detained inside the De Vega
compound in Fairview. 58 With this information, P/Chief Insp. Cruz
ordered P/Chief Insps. Tucay and Quidato who had been posted near
the compound to rescue the victim. 59
The two (2) PACC officers, together with their respective teams,
entered the compound and surged into the bungalow house where they
saw two (2) men inside the living room. 60 As one of the PACC teams
was about to arrest the two (2) men, the latter ran towards a room in
the house where they were about to grab a .38 cal. revolver without
serial number loaded with six (6) rounds of ammunitions and a .357
cal. revolver with six (6) live ammunitions. 61The other PACC team
searched the house for Atty. Tioleco and found him in the other
room. 62 The two (2) men were arrested and informed of their
custodial rights. They were identified in due time as accused-appellants
Rodante Rogel and Rotchel Lariba. 63
P/Chief Insp. Cruz arrived at the De Vega compound 64 and
coordinated with the proper barangay authorities. 65 While the PACC
operatives were completing their rescue and arrest operations, the
house phone rang. 66 Accused-appellant Rogel answered the call upon
the instruction of P/Chief Insp. Cruz. 67 Rogel identified the caller to be
accused-appellant Valler who was then driving towards the De Vega
compound. 68 In the same phone call, Valler also talked with accused-
appellant Garcia to inquire about the ransom money. 69
Then a blue Toyota Corona arrived at the De Vega compound. 70 Valler
alighted from the car and shouted at the occupants of the house to
open the gate.71 Suspicious this time, however, he went back to his car
to flee. 72 But the PACC operatives pursued his car, eventually
subduing and arresting him. 73The operations at the De Vega
Compound ended at 8:30 in the evening and the PACC operatives,
together with Atty. Tioleco and the accused-appellants, left the De
Vega compound and returned to their headquarters in Camp Crame,
Quezon City. 74 The ransom money was returned intact to Atty.
Tioleco. 75
When arraigned, accused-appellants Ronald "Roland" Garcia, Rodante
Rogel, Rotchel Lariba and Gerry Valler pleaded not guilty to the charge
of kidnapping for ransom in Crim. Case No. Q-96-68049, although
during the trial Garcia admitted complicity in the abduction of Atty.
Tioleco and in the receipt of the ransom money from the victim's sister
Floriana. 76 In Crim. Case No. Q-96-68050 for illegal possession of
firearms and ammunition, Rodante Rogel and Rotchel Lariba also
pleaded not guilty. 77
During the trial, Gerry Valler denied being part of the kidnapping for
ransom and asserted that he was at the De Vega compound where he
was arrested on 8 October 1996 solely to pay for the fighting cocks he
had bought from one Jimmy Muit, alleged owner of the
compound. 78 Accused Ronald Garcia, despite his admission to the
crime, nevertheless disowned any role in planning the crime or knowing
the other accused-appellants since his cohorts were allegedly Jimmy
65
Muit and two (2) others known to him only as "Tisoy" and
"Tony." 79 He also alleged that it was Jimmy Muit's red Toyota car that
was used in the crime. 80 Explaining their presence at the De Vega
compound at the time they were arrested, Rogel claimed that he was
employed as a helper for breeding cocks in this compound 81 while
Lariba's defense focused on an alleged prior agreement for him to
repair Jimmy Muit's car. 82
Accused-appellants filed separate appellants' briefs. In the brief
submitted by the Public Attorneys Office in behalf of accused-appellants
Garcia, Rogel and Lariba, they argue that the crime of kidnapping for
ransom was not committed since Atty. Tioleco was released from
detention by means of the rescue operation conducted by the PACC
operatives and the ransom money subsequently recovered. 83 They
conclude that their criminal liability should only be for slight illegal
detention under Art. 268, of The Revised Penal Code. Accused-
appellants Rogel and Lariba further assert that they could not be held
guilty of illegal possession of firearms and ammunition since neither
was in complete control of the firearms and ammunition that were
recovered when they were arrested and no evidence was offered to
prove responsibility for the presence of firearms and ammunition inside
the room. 84
The brief filed for accused-appellant Gerry B. Valler asserts the same
defense he made at the trial that he was at the De Vega compound
only to pay his debts to Jimmy Muit, 85 arguing that Atty. Tioleco did
not have the opportunity to really recognize him so that his
identification as the driver of the car was tainted by police suggestion,
and that P/Chief Insp. Cruz' testimony is allegedly replete with
inconsistencies that negate his credibility. 86
Encapsulated, the issues herein focus on (a) the "ransom" as element
of the crime under Art. 267 of The Revised Penal Code, as amended;
(b) the sufficiency of the prosecution evidence to prove kidnapping for
ransom; (c) the degree of responsibility of each accused-appellant for
kidnapping for ransom; and, (d) the liability for illegal possession of
firearms and ammunition under RA 8294, amending PD 1866.
First. We do not find any quantum of merit in the contention that
kidnapping for ransom is committed only when the victim is released as
a result of the payment of ransom. In People v. Salimbago 87 we ruled
— findings of the trial court that are entitled to the highest respect on
No specific form of ransom is required to consummate the
felony of kidnapping for ransom so long as it was intended as
a bargaining chip in exchange for the victim's freedom. In
municipal criminal law, ransom refers to the money, price or
consideration paid or demanded for redemption of a captured
person or persons, a payment that releases from captivity.
Neither actual demand for nor actual payment of ransom is
necessary for the crime to be committed. It is enough if the
crime was committed "for the purpose of extorting ransom."
Considering therefore, that the kidnapping was committed for
such purpose, it is not necessary that one or any of the four
circumstances be present.
So the gist of the crime, as aptly stated in American jurisprudence from
which was derived the crime of kidnapping for ransom, 88 is "not the
forcible or secret confinement, imprisonment, inveiglement, or
kidnapping without lawful authority, but . . . the felonious act of so
doing with intent to hold for a ransom the person so kidnapped,
confined, imprisoned, inveigled, etc." 89
It is obvious that once that intent is present, as in the case at bar,
kidnapping for ransom is already committed. Any other interpretation of
the role of ransom, particularly the one advanced by accused-
appellants, is certainly absurd since it ironically penalizes rescue efforts
66
of kidnap victims by law enforcers and in turn rewards kidnappers for
the success of police efforts in such rescue operations. Moreover, our
jurisprudence is replete with cases,e.g., People v. Chua Huy, 90 People
v. Ocampo, 91 and People V. Pingol, 92 wherein botched ransom
payments and effective recovery of the victim did not deter us from
finding culpability for kidnapping for ransom.
Second. Issues of sufficiency of evidence are resolved by reference to
appeal in the absence of any clear and overwhelming showing that the
trial court neglected, misunderstood or misapplied some facts or
circumstances of weight and substance affecting the result of the
case. 93 Bearing this elementary principle in mind, we find enough
evidence to prove beyond reasonable doubt the cooperation of all
accused-appellants in the kidnapping for ransom of Atty. Tioleco.
Truly incriminating is the judicial confession of accused-appellant Garcia
of his participation in the commission of the crime. He admitted that he
took part in actually depriving Atty. Tioleco of his liberty 94 and in
securing the ransom payment from Floriana Tioleco. 95 He could not
have been following mechanically the orders of an alleged mastermind,
as he claims, since by his own admission he was neither threatened,
forced or intimidated to do so 96nor mentally impaired to resist the
orders. 97 In the absence of evidence to the contrary, he is presumed
to be in full possession of his faculties and conscience to resist and not
to do evil.
We cannot also give credence to Garcia's asseveration that the persons
still at large were his co-conspirators. This posture is a crude attempt to
muddle the case as discerned by the trial court from his demeanor
when he testified —
Because he had been caught in flagrante delicto, Roland
Garcia admitted his participation in the crime charged. From
 his testimony, however, there appears a veiled attempt to
shield Gerry Valler from conviction. First, Garcia claimed that
the car they used was reddish in color (TSN, October 20,
1997, pp. 9, 19 & 20). Then he added that the owner of the
car was Jimmy Muit and not Gerry Valler (TSN, October 20,
1997, p. 9). Next, he said that there was no conspiracy and he
did not know then Gerry Valler, Rodante Rogel and Rogel
Lariba until they were placed together in Camp Crame (Ibid.,
p. 22).
The Court however cannot simply accept this part of his story. To begin
with, his repeated reference to the color of the car as reddish is quite
suspicious. He conspicuously stressed the color of the car in three (3)
instances without being asked. The transcripts of the notes bear out
the following:
ATTY. MALLABO:Did you use any vehicle while you were there
at Gilmore Street?
A:Yes, sir.
Q:What kind of vehicle was that?
A:Jimmy's car, a Toyota, somewhat reddish in color . . . .
Q:By the way, what car did you use when you were roaming
around Quezon City on October 6 in the evening?
A:Jimmy's car, which was somewhat red in color. Reddish.
Q:And what car did you use the following day when you took
the bag? The same car?
67
A:The same car, the Toyota car which was
somewhat reddish in color.
Such a clear attempt to mislead and deceive the Court with
such unsolicited replies cannot succeed. On October 8, 1996,
in the vicinity of McDonald's, he was seen alighting from the
blue Toyota Corona (TSN, March 17, 1997, pp. 28-32). As
earlier pointed out, the blue Toyota Corona car is owned by
Gerry Valler who was the one driving it in the afternoon of the
same day to the De Vega compound (TSN, April 28, 1997, pp.
64-67; and November 10, 1997, pp. 22-28). Gerry Valler was
also identified by Atty. Tioleco as the driver of the dark blue
car used in his abduction (TSN, April 10, 1997, pp. 10-11; and
TSN, April 14, 1997, pp. 21-27). 98
Accused-appellant Valler's profession of innocence also deserves no
consideration. Various circumstances indubitably link him to the crime.
For one, he was positively identified by Atty. Tioleco to be the driver of
the dark blue Toyota car used in the abduction on 5 October 1997,
which car was seen again twice during the occasions for ransom
payment. This was followed by a telephone call made by Valler to the
house where Atty. Tioleco was being detained and in fact talked with
accused-appellant Rogel to tell him that he was coming over 99 and
with accused-appellant Garcia to ask from him about the ransom
supposedly earlier collected. 100 Given the overwhelming picture of his
complicity in the crime, this Court cannot accept the defense that he
was only trying to pay his debts to Jimmy Muit when he was arrested.
We find nothing substantive in Valler's attempt to discredit the victim's
positive identification of him on the trifling observation that Atty.
Tioleco was too confused at the time of his abduction to recognize
accused-appellant's physical features accurately. It is truly evident from
the testimony of Atty. Tioleco that his vision and composure were not
impaired by fear or shock at the time of his abduction and that he had
the opportunity to see vividly and remember unerringly Valler's face —
Q:Where were these two unidentified men positioned inside
the car?
A:One of them was at the driver's seat and the other one was
immediately behind the driver's seat.
Q:Now, could you please describe to this honorable court the
person who was seated on the driver's seat?
A:He has a dark complexion, medium built and short hair at
that time.
Q:If you see that person again will you be able to identify him
sir?
A:Yes, sir.
Q:And if he's present in the courtroom will you be able to
point to him?
A:Yes, sir.
Q:At this juncture your honor we would like to request with
the court's permission the witness be allowed to step
down from the witness stand and approach the person
just described and tap him on his shoulder.
COURT INTERPRETER:Witness stepping down from the
witness stand and approached the person he had just
described and tapped him on his shoulder and who
when asked to identify himself he gave his name as
Gerry Valler. 101
68
Even on cross-examination, Atty. Tioleco was steadfast in his reference
to Gerry Valler —
Q:What stage was that when your eyeglasses were grabbed
by these persons inside the car?
A:That was after the other accused entered the vehicle and
the car zoomed away, that was when they were putting
a blindfold on me, that was the time when they started
removing my eyeglasses, sir . . . . 102
Q:So when you were inside the car, you had difficulty seeing
things inside the car because you were not wearing
your eyeglasses?
A:No, sir, that is not correct, because they were close, so I
can see them . . . . 103
Q:And as a matter of fact, it was the PACC operatives who
informed you that the person being brought in was also
one of the suspects, am I correct?
A:That is not correct, sir. They said that, but I know that is
one of the suspects because he was the person who
was driving the vehicle at the time I got kidnapped. So
I know him.
Q:So you saw him at the time you were kidnapped that is why
you were able to identify him when he was ushered in?
A:When he was brought into the kitchen I saw him. When I
saw him, I knew he was one of the suspects.
Q:When you saw him, he was in handcuffs?
A:Yes, sir, that is correct.
 Q:You were informed that his name is Gerry Valler?
A:When he went inside the house and the kitchen, they
started interviews, that is where I learned his name,
Gerry Valler . . . 104
Q:But I thought that when you were pushed inside the car,
you were pushed head first, how can you easily
describe this person driving the vehicle and the person
whom you now identified as Roland Garcia?
A:Even if they pushed my head, there was an opportunity for
me to see the face of the accused. 105
As we held in People v. Candelario, 106 it is the most natural reaction
for victims of crimes to strive to remember the faces of their assailants
and the manner in which the craven acts are committed. There is no
reason to disbelieve Atty. Tioleco's claim that he saw the faces of his
abductors considering that they brazenly perpetrated the crime in broad
daylight without donning masks to hide their faces. Besides, there was
ample opportunity for him to discern their features from the time two
(2) of his kidnappers approached and forced him into their car and
once inside saw the other two (2), including Gerry Valler, long enough
to recall them until he was blindfolded.
The victim's identification of accused-appellant Valler is not any bit
prejudiced by his failure to mention Valler's name in his affidavit. It is
well-settled that affidavits are incomplete and inaccurate involving as
they do mere passive mention of details anchored entirely on the
investigator's questions. 107 As the victim himself explained —
Q:Now, in Question No. 5 and I quote . . . Why did you not
identify here the name of the driver as one Gerry
Valler?
69
A:Because they never asked me the name. They just asked
me to narrate what happened. Had they asked me the
name, I could have mentioned the name. 108
In light of the positive identification by the victim of accused-appellant
Valler, the latter's denial must fall absolutely. Clearly, positive
identification of the accused where categorical and consistent and
without any showing of ill motive on the part of the eyewitness
testifying on the matter prevails over his defense. 109 When there is no
evidence to show any dubious reason or improper motive why a
prosecution witness would testify falsely against an accused or falsely
implicate him in a heinous crime, the testimony is worthy of full faith
and credit. 110
Finally, we do not see any merit in Valler's enumeration of alleged
inconsistencies in the testimony of P/Chief Insp. Gilbert Cruz concerning
(a) the time and place of meeting between the PACC operatives and
Floriana Tioleco; (b) the schedule of the first and second ransom pay-
offs; (c) the number of Floriana Tioleco's companions during the
aborted first pay-off; (d) the number of occupants in the blue Toyota
car; and, (e) the PACC operatives' recognition of Floriana Tioleco during
the ransom payments. This is an argument that clutches at straws. For
one, the purported inconsistencies and discrepancies involve
estimations of time or number, hence, the reference thereto by the
witness would understandably vary. Furthermore, they are too minor to
warrant the reversal of the judgment of conviction. They do not affect
the truth of the testimonies of witnesses nor do they discredit their
positive identification of accused-appellants. On the contrary, such
trivial inconsistencies strengthen rather than diminish the prosecution's
case as they erase suspicion of a rehearsed testimony and negate any
misgiving that the same was perjured. 111
We also do not believe that accused-appellants Rogel and Lariba are
innocent bystanders in this case. It taxes the mind to believe Rogel's
defense that as a caretaker of the place where Atty. Tioleco was
detained, he observed nothing unusual about this incident. An innocent
man would have immediately reported such dastardly act to the
authorities and refused to sit idly by, but a guilty person in contrast
would have behaved otherwise as Rogel did. 112
Accused-appellant Lariba's defense is similarly incredible. He joins Gerry
Valler in proclaiming that he too was allegedly at the wrong place at the
wrong time for the wrong reason of just wanting to tune up the car of
Jimmy Muit. But for all these assertions, he failed to produce
satisfactory evidence that he was indeed there to repair such car. Of all
the days he could have discharged his work, he chose to proceed on 8
October 1997 when the kidnapping was in full swing. There was even
no car to repair on the date that he showed up. Like the submission of
Rogel, Lariba's defense falls completely flat for he could have so easily
observed the kidnapping of Atty. Tioleco that was taking place in the
house of Jimmy Muit.
In sum, accused-appellants cannot rely upon the familiar phrase
"reasonable doubt" for their acquittal. As demonstrated by the
fastidious references of Valler to alleged inconsistencies of P/Chief Insp.
Cruz, not all possible doubt is reasonable since in the nature of things
everything relating to human affairs is open to some imaginary
dilemma. As we have said in People v. Ramos, 113 "it is not such a
doubt as any man may start by questioning for the sake of a doubt; nor
a doubt suggested or surmised without foundation in facts or
testimony, for it is possible always to question any conclusion derived
from testimony. Reasonable doubt must arise from the evidence
adduced or from the lack of evidence, and it should pertain to the facts
constitutive of the crime charged." Accused-appellants have not shown
the presence of such fatal defects in this case. Clearly, all the elements
and qualifying circumstances to warrant conviction for the crime of
70
kidnapping for ransom and serious illegal detention have been
established beyond reasonable doubt.
Third. We go into the criminal liability of each accused-appellant. There
is no doubt that Gerry Valler and Ronald Garcia are principals by direct
participation and co-conspirators in the kidnapping for ransom of Atty.
Tioleco. Their respective participation in perpetrating the crime cannot
be denied. As regards their liability as co-conspirators, we find the
same to have also been shown beyond reasonable doubt. Conspiracy
exists when two or more persons come to agreement concerning the
commission of a felony and decide to commit it for which liability is
joint. 114 Proof of the agreement need not rest on direct evidence as
the felonious covenant itself may be inferred from the conduct of the
parties before, during, and after the commission of the crime disclosing
a common understanding between them relative to its
commission. 115 The acts of Valler and Garcia in coordinating the
abduction, collection of ransom and detention of their victim indubitably
prove such conspiracy.
Lariba and Rogel were caught inside the house where Atty. Tioleco was
detained. P/Chief Insp. Paul Tucay testified on their involvement —
Q:Okey, when you stormed the place, do you know where
these two men were?
A:The two men were seated at the sala during that time, sir.
Q:They were seated at the sala when you entered the place?
A:Yes, sir.
Q:What happened after entering the gate?
A:We announced that we were police officers of the
Presidential Anti-Crime Commission.
Q:Do you know what happened with these two men during
that time?
A:They were caught by surprise and they were about to run to
the first room.
Q:What happened when these two men who were at the living
room or at the sala, when they ran to the first room?
A:We surprised them and cornered them in that room.
Q:What about the team of Major Quidato, where did they
proceed?
A:Major Quidato's team proceeded to the second room where
Atty. Tioleco was being kept.
Q:According to you, you gave chase to these two men who
were earlier in the sala and they ran upon your
announcement that you were police officers?
A:When we cornered them in that room, they were about to
grab the two revolvers loaded with six (6) rounds of
ammunitions.
Q:Where were these revolvers placed, Mr. Witness?
A:They were placed on top of a cabinet, which, when you
enter in the room, is placed on the right side of the
room.
Q:How many revolvers were you able to recover?
71
A:There were two revolvers.
Q:And can you please describe these revolvers to this
Honorable Court?
A:Yes, sir . . . . The revolvers confiscated on that raid are one
(1) .38 caliber revolver without serial number loaded
with 6 rounds of ammunition, live ammo, one .357 also
loaded with 6 rounds of live ammunitions. 116
Correlating the above testimony with the other evidence, it is clear that
at the time Lariba and Rogel were caught, Atty. Tioleco had already
been rendered immobile with his eyes blindfolded and his hands
handcuffed. No evidence exists that he could have gone elsewhere or
escaped. At the precise moment of their apprehension, accused-
appellants Lariba and Rogel were unarmed although guns inside one of
the rooms of the house were available for their use and possession.
Assessing these established circumstances in the manner most
favorable to Lariba and Rogel, we conclude that they were merely
guarding the house for the purpose of either helping the other accused-
appellants in facilitating the successful denouement to the crime or
repelling any attempt to rescue the victim, as shown by the availability
of arms and ammunition to them. They thus cooperated in the
execution of the offense by previous or simultaneous acts by means of
which they aided or facilitated the execution of the crime but without
any indispensable act for its accomplishment. Under Art. 18 of The
Revised Penal Code, they are mere accomplices.
In People v. De Vera 117 we distinguished a conspirator from an
accomplice in this manner —
Conspirators and accomplices have one thing in common: they
know and agree with the criminal design. Conspirators,
 however, know the criminal intention because they themselves
have decided upon such course of action. Accomplices come
to know about it after the principals have reached the
decision, and only then do they agree to cooperate in its
execution. Conspirators decide that a crime should be
committed; accomplices merely concur in it. Accomplices do
not decide whether the crime should be committed; they
merely assent to the plan and cooperate in its
accomplishment. Conspirators are the authors of a crime;
accomplices are merely their instruments who perform acts
not essential to the perpetration of the offense.
In the instant case, we cannot deny knowledge on the part of Lariba
and Rogel that Valler and Garcia had kidnapped Atty. Tioleco for the
purpose of extorting ransom and their cooperation to pursue such
crime. But these facts without more do not make them co-conspirators
since knowledge of and participation in the criminal act are also
inherent elements of an accomplice. 118 Further, there is no evidence
indubitably proving that Lariba and Rogel themselves participated in the
decision to commit the criminal act. As the evidence stands, they were
caught just guarding the house for the purpose of either helping the
other accused-appellants in facilitating the success of the crime or
repelling any attempt to rescue the victim as shown by the availability
of arms and ammunition to them. These items contrast starkly with the
tried and true facts against Valler and Garcia that point to them as the
agents ab initio of the design to kidnap Atty. Tioleco and extort ransom
from his family.
Significantly, the crime could have been accomplished even without the
participation of Lariba and Rogel. As stated above, the victim had been
rendered immobile by Valler and Garcia before the latter established
contacts with Floriana Tioleco and demanded ransom. The participation
of Lariba and Rogel was thus hardly indispensable. As we have held
in Garcia v. CA, "in some exceptional situations, having community of
72
design with the principal does not prevent a malefactor from being
regarded as an accomplice if his role in the perpetration of the
homicide or murder was, relatively speaking, of a minor
character." 119 At any rate, where the quantum of proof required to
establish conspiracy is lacking and doubt created as to whether the
accused acted as principal or accomplice, the balance tips for the milder
form of criminal liability of an accomplice. 120
We are not unaware of the ruling in People v. Licayan that conspiracy
can be deduced from the acts of the accused-appellants and their co-
accused which show a concerted action and community of interest. By
guarding Co and Manaysay and preventing their escape, accused-
appellants exhibited not only their knowledge of the criminal design of
their co-conspirators but also their participation in its execution. 121 But
the instant case is different. Considering the roles played by Lariba and
Rogel in the execution of the crime and the state the victim was in
during the detention, it cannot be said beyond reasonable doubt that
these accused-appellants were in a real sense detaining Atty. Tioleco
and preventing his escape. The governing case law is People v. Chua
Huy 122 where we ruled —
The defendants' statements to the police discarded, the
participation of the other appellants in the crime consisted in
guarding the detained men to keep them from escaping. This
participation was simultaneous with the commission of the
crime if not with its commencement nor previous thereto. As
detention is an essential element of the crime charged, as its
name, definition and graduation of the penalty therefor imply,
the crime was still in being when Lorenzo Uy, Tan Si Kee, Ang
Uh Ang, William Hao and Young Kiat took a hand in it.
However, we are not satisfied from the circumstances of the
case that the help given by these accused was indispensable
to the end proposed. Our opinion is that these defendants are
responsible as accomplices only.
Fourth. In the beginning, we noted that neither Lariba nor Rogel who
were both convicted of illegal possession of firearms and ammunition in
Crim. Case No. Q-96-68049 filed a notice of appeal in accordance with
established procedures, although the records show that accused-
appellant Gerry Valler needlessly did so exclusively in his
behalf. 123 But in light of the enactment of RA 8294 amending PD 1866
effective 6 July 1997, 124 and our ruling inPeople v.
Ladjaalam 125 followed in Evangelista v. Siztoza, 126 we nonetheless
review this conviction to give effect to Art. 22 of The Revised Penal
Codemandating in the interest of justice the retroactive application of
penal statutes that are favorable to the accused who is not a habitual
criminal. 127
In Ladjaalam we ruled that if another crime was committed by the
accused he could not be convicted of simple illegal possession of
firearms under RA 8294 amending PD 1866 —
Aside from finding appellant guilty of direct assault with
multiple attempted homicide, the trial court convicted him also
of the separate offense of illegal possession of firearms under
PD 1866, as amended by RA 8294, and sentenced him to 6
years of prision correccional to 8 years of prision mayor . . . .
The trial court's ruling and the OSG's submission exemplify the
legal community's difficulty in grappling with the changes
brought about by RA 8294. Hence, before us now are
opposing views on how to interpret Section 1 of the new law,
which provides as follows:
Sec. 1. — Section 1 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as
follows:
Sec. 1.Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition
73
Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty
of prision correccional in its maximum period and a fine
of not less than Fifteen thousand pesos (P15,000) shall
be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of
firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any
firearm or ammunition: Provided, That no other crime
was committed.
The penalty of prision mayor in its minimum period and
a fine of Thirty thousand pesos (P30,000) shall be
imposed if the firearm is classified as high powered
firearm which includes those with bores bigger in
diameter than .30 caliber and 9 millimeter such as
caliber 40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357
and caliber .22 centerfire magnum and other firearms
with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime
was committed by the person arrested.
If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm
shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of rebellion
or insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime
 of rebellion or insurrection, sedition, or attempted coup
d'etat.
The same penalty shall be imposed upon the owner,
president, manager, director or other responsible
officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly
allow any of the firearms owned by such firm,
company, corporation or entity to be used by any
person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms
or firearms without any legal authority to be carried
outside of their residence in the course of their
employment.
The penalty of arresto mayor shall be imposed upon
any person who shall carry any licensed firearm outside
his residence without legal authority therefor.
. . . A simple reading thereof shows that if an unlicensed
firearm is used in the commission of any crime, there can be
no separate offense of simple illegal possession of firearms.
Hence, if the "other crime" is murder or homicide, illegal
possession of firearms becomes merely an aggravating
circumstance, not a separate offense. Since direct assault with
multiple attempted homicide was committed in this case,
appellant can no longer be held liable for illegal possession of
firearms.
Moreover, penal laws are construed liberally in favor of the
accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no
other interpretation is justified, for the language of the new
law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate
74
offenses of illegal possession of firearms and direct assault
with attempted homicide. Moreover, since the crime
committed was direct assault and not homicide or murder,
illegal possession of firearms cannot be deemed an
aggravating circumstance . . . . The law is clear: the accused
can be convicted of simple illegal possession of firearms,
provided that "no other crime was committed by the person
arrested." If the intention of the law in the second paragraph
were to refer only to homicide and murder, it should have
expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we.
The Court is aware that this ruling effectively exonerates
accused-appellants . . . of illegal possession of an M-14 rifle,
an offense which normally carries a penalty heavier than that
for direct assault. While the penalty for the first is prision
mayor, for the second, it is only prision correccional. Indeed,
an accused may evade conviction for illegal possession of
firearms by using such weapons in committing an even lighter
offense, like alarm and scandal or slight physical injuries, both
of which are punishable by arresto menor. This consequence
necessarily arises from the language of RA 8294 the wisdom
of which is not subject to review by this Court. 128
Accordingly, we are constrained to dismiss Crim. Case No. Q- 96-68049
and set aside the judgment of conviction therein since accused-
appellants Rotchel Lariba and Rodante Rogel cannot be held liable for
illegal possession of firearms and ammunitions there being another
crime — kidnapping for ransom — which they were perpetrating at the
same time.
In fine, we affirm the conviction of Gerry Valler and Ronald "Roland"
Garcia as principals and Rotchel Lariba and Rodante Rogel as
accomplices for the crime of kidnapping for ransom and serious illegal
detention. This Court is compelled to impose the supreme penalty of
death on Valler and Garcia as mandated by Art. 267 of The Revised
Penal Code, as amended by RA 7659.
The penalty imposable on Lariba and Rogel as accomplices is reclusion
perpetua the penalty one degree lower than that prescribed for the
crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of
the Code. We however set aside the judgment in Crim. Case No. Q-96-
68049 convicting Lariba and Rogel of illegal possession of firearms and
ammunition in light of the foregoing discussion.
As regards the moral damages against accused-appellants to be paid by
them in solidum, we find the amount of P200,000.00 to be reasonable
compensation for the ignominy and sufferings Atty. Tioleco and his
family endured due to accused-appellants' inhumane act of detaining
him in blindfold and handcuffs and mentally torturing him and his
family to raise the ransom money. The fact that they suffered the
trauma of mental, physical and psychological ordeal which constitute
the bases for moral damages under the Civil Code 129 is too obvious to
require still the recital thereof at the trial through the superfluity of a
testimonial charade.
Following our finding that only Gerry Valler and Ronald "Roland" Garcia
are principals by direct participation and conspirators while Rotchel
Lariba and Rodante Rogel are accomplices, we apportion their
respective responsibilities for the amount adjudged as moral damages
to be paid by them solidarity within their respective class and
subsidiarily for the others. 130 Thus, the principals, accused-appellants
Ronald "Roland" Garcia and Gerry Valler, shall pay their victim Atty.
Romualdo Tioleco P150,000.00 for moral damages and the accomplices
P50,000.00 for moral damages.
WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim.
Case No. Q-96-68049 (G.R. No. 133489) accused-appellants RONALD
75
"ROLAND" GARCIA y FLORES and GERRY B. VALLER are declared guilty
as PRINCIPALS of kidnapping for ransom and serious illegal detention
and are sentenced each to death, while accused-appellants RODANTE
ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO are convicted
as ACCOMPLICES and are ordered to serve the penalty of reclusion
perpetua with the accessories provided by law for the same crime of
kidnapping for ransom and serious illegal detention. Accused-appellants
are further ordered to pay moral damages in the amount of
P200,000.00, with the principals being solidarity liable for P150,000.00
of this amount and subsidiarily for the civil liability of the accomplices,
and the accomplices being solidarity liable for P50,000.00 for moral
damages and subsidiarily for the civil liability of the principals.
Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the Decision
of the court a quo convicting RODANTE ROGEL y ROSALES and
ROTCHEL LARIBA yDEMICILLO of illegal possession of firearms and
ammunition is REVERSED and SET ASIDE in light of the enactment of
RA 8294 and our rulings in People v. Ladjaalam 131 and Evangelista v.
Siztoza. 132
Four (4) Justices of the Court maintain their position that RA 7659 is
unconstitutional insofar as it prescribes the death penalty; nevertheless,
they submit to the ruling of the majority that the law is constitutional
and the death penalty can be lawfully imposed in the case at bar.
In accordance with Art. 83 of The Revised Penal Code, as amended
by Sec. 25 of RA No. 7659, upon the finality of this Decision let the
records of this case be forthwith forwarded to the Office of the
President for the possible exercise of Her Excellency's pardoning power.
Costs against accused-appellants.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pang
aniban, Quisumbing, Pardo, Buena, Ynares-Santiago, De
Leon, Jr., Sandoval-Gutierrez and Carpio, JJ., concur.
SECOND DIVISION
[G.R. No. 123123. August 19, 1999.]
EDWIN CADUA, petitioner, vs. COURT OF APPEALS
and PEOPLE OF THE PHILIPPINES, respondents.
Antonio Enrile Inton, Jr. for petitioner.
The Solicitor General for respondents.
SYNOPSIS
One evening, PO3 Burdeous and companions, aboard a mobile unit,
received a radio dispatch concerning an alleged hold-up. There, the
victims, alleging that the holduppers had just fled, boarded the patrol
unit to search for the holduppers. They saw two men walking alongside
the street and the victims identified them as the culprits. Burdeous
approached the men but suspecting that petitioner was about to pull
something tucked on the right side of his waist, Burdeous pointed his
firearm at petitioner then frisked him and found in his possession a .38
caliber "paltik" revolver. Verification with the Firearms and Explosives
Unit revealed that petitioner is not a valid license holder of
the paltik revolver. Hence, information on Illegal Possession of Firearms
was filed. On the investigation for robbery, victims manifested doubts
as to the identity of the accused. Petitioner was then tried and
76
convicted of Illegal Possession of Firearms and on appeal to the Court
of Appeals, the same was affirmed.
The issue here is whether or not petitioner's right to be protected from
any unlawful warrantless arrest has been violated.
There was sufficient reason to justify a warrantless arrest of petitioner
of Illegal Possession of Firearms. Applicable here is Sec. 5(a) and (b) of
Rule 113 of the Rules of Court. A peace officer may arrest a person
without warrant 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. Here, through complainants, the police
officers ascertained that a robbery had just been committed, and
petitioner was directly implicated as a suspect. Then, actual possession
of an unlicensed firearm, which petitioner attempted to draw out, by
itself, amounts to committing an offense in the presence of the
arresting officer. The fact that the robbery case was never brought to
trial does not depend upon the indubitable existence of the crime. The
warrantless arrest of petitioner being lawful, the incident search and
subsequent seizure of the unlicensed firearm in question is likewise
lawful and valid pursuant to Sec. 12 Rule 126 of the Rules of Court.
SYLLABUS
1.REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; FINDINGS
OF TRIAL COURT, RESPECTED. — From a careful study of the records
of this case, we find no cogent reason to disturb the findings by the
trial court as affirmed by the appellate court. Petitioner's declaration
that the police officers trumped up a charge of illegal possession just so
that they would "not go home empty-handed" is far from persuasive.
Findings of the trial court as to the credibility of the testimonies of the
prosecution and the lone testimony of the defense deserve, in our view,
great weight. Jurisprudence has consistently held that, in the absence
of any clear showing that the trial court overlooked, misunderstood or
misapplied some facts or circumstances of weight or substance which
could have affected the result of the case, its findings on the credibility
of witnesses are entitled to the highest degree of respect and will not
be disturbed on appeal. Furthermore, the presumption of regularity in
the performance of official duty strengthens the foregoing doctrine on
the credibility of witnesses. The uncorroborated claim of the accused
that he had been framed is, to our mind, self-serving as well as
baseless.
2.ID.; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; WHEN
LAWFUL; CASE AT BAR. — Considering the circumstances in this case,
we find that there was sufficient reason to justify a warrantless arrest
of petitioner for illegal possession of firearms. Section 5 of Rule 113 of
the Rules of Court, provides that: A peace officer or a private person
may, without a 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; . . .. The findings of
the trial court, accepted by the appellate court, show the pertinence of
aforecited paragraphs (a) and (b) of Section 5. Through police dispatch
to the scene of a crime report and in the presence of complainants, it
was ascertained that a robbery had just been committed, and the
arresting officers had personal knowledge that petitioner was directly
implicated as a suspect. Then, actual possession of an unlicensed
firearm, which petitioner attempted to draw out, by itself, amounts to
committing an offense in the presence of the arresting office
contemplated in paragraph (a), Section 5 of the abovementioned Rule.
3.ID.; ID.; ID.; ID.; LEGALITY OF ARREST NOT TAINTED BY FAILURE
TO MAKE A CASE IN COURT. — The fact that the robbery case was
never brought to trial does not mean that the legality of the arrest was
77
tainted, for such arrest does not depend upon the indubitable existence
of the crime. It is not necessary that the crime should have been
established as a fact in order to regard the detention as legal. The
legality of apprehending the accused would not depend on the actual
commission of the crime but upon the nature of the deed, where from
such characterization it may reasonably be inferred by the officer or
functionary to whom the law at the moment leaves the decision for the
urgent purpose of suspending the liberty of the citizen. Furthermore,
the Court acknowledges that police authorities can stop a person
forcibly when such action is based on something more than a mere
"reasonable and articulable" suspicion that such a person has been
engaged in criminal activity. All told, the arresting officers reasonably
acted upon personal knowledge at the time, and not on unreliable
hearsay information, to effect a lawful arrest. The reason which
prompted complainants to refrain from identifying the accused during
the examination by the police regarding the robbery is not
determinative of the resolution of the present case. It bears stressing
that the case now before us is for the illegal possession of firearms, and
not for the robbery.CcHDaA
4.ID.; ID.; SEARCH AND SEIZURE; SEARCH INCIDENT TO LAWFUL
ARREST; CASE AT BAR. — The warrantless arrest of petitioner is lawful;
and the incidental search and subsequent seizure of the unlicensed
firearm in question is likewise lawful and valid pursuant to Section 12,
Rule 126 of the Rules of Court. A lawful arrest may be made either
while a crime is actually being committed, or soon after its commission.
The right to search includes in these instances that of searching the
person of one who is arrested, in order to find and seize things
connected with the crime as its fruits or as the means for its
commission. When petitioner was searched contemporaneously with
the arrest, the "paltik" was found in his possession, and seized. Such
seizure cannot be considered unlawful nor unreasonable. Moreover, at
that moment of search and seizure, there was in the mind of the
arresting officer more than a mere suspicion that petitioner was armed.
Petitioner's movements clearly suggested the presence of a weapon
tucked at the side of his waist.
5.ID.; ID.; ARREST; OBJECTION ON THE IRREGULARITY THEREOF
MUST BE MADE BEFORE ACCUSED ENTERS HIS PLEA. — In accordance
with settled jurisprudence, any objection, to the arrest, or question
concerning the defect or irregularity attending an arrest must be made
before the accused enters his plea. The records in this case shows no
such objection to the arrest, nor any question as to the irregularity of
his arrest, raised by petitioner.
6.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; ELEMENTS;
PRESENT IN CASE AT BAR. — For illegal possession of firearms, two
elements must be proved: (a) positively, the existence of the subject
firearm, and (b) negatively, the fact that the accused did not have a
license or permit to possess the same. We find both elements present
in this case. First, testimony of witnesses on record affirms that the
"paltik" revolver was taken from the person of petitioner at the time he
was arrested. Further SPO1 Cesar Gabitan, of the Firearms and
Explosive Unit, testified without contradiction that petitioner had no
license or permit to possess the gun. This Court has ruled in several
cases that either the testimony of a representative of, or a certification
from, the Philippine National Police-Firearms and Explosives Office
(PNP-FEO) attesting that a person is not a licensee of any firearm
suffices to prove beyond reasonable doubt the second element of illegal
possession of firearms.
7.ID.; ID.; R.A. 8294; PROPER PENALTY IN CASE AT BAR. — The
penalty imposed upon petitioner, however, deserves a review. At the
time that he was convicted, the penalty for Illegal Possession of
Firearms under Presidential Decree 1866 was reclusion temporal in its
maximum period to reclusion perpetua. The trial court, as affirmed by
78
the appellate court, imposed on petitioner the penalty of 12 years, 5
months and 10 days of reclusion temporal as minimum to 17 years, 4
months and 1 day of reclusion temporal as maximum. In view of the
enactment of Republic Act 8294 on June 6, 1997, certain provisions of
P.D. 1866 have been amended. With the passage of the
aforementioned law, the penalty for simple illegal possession of a low-
powered firearm, such as "paltik", has been reduced to prision
correccional in its maximum period and a fine of not less than fifteen
thousand pesos (P15,000.00). Therefore following R.A. 8294, the
penalty imposed on petitioner should now be lowered to benefit the
petitioner. For the penalty provided for simple illegal possession in the
amendment is lower than that provided for under the old law. Since the
provision of R.A. 8294 is favorable to petitioner, it should have a
retroactive effect, pursuant to Article 22 of the Revised Penal Code.
Moreover, in conjunction with the new law, we should also apply the
doctrine laid down in People vs. Martin Simon in relation to Section 1 of
the Indeterminate Sentence Law. Although Illegal Possession of
Firearms is considered a special law, the penalty provided is taken from
the range of penalties in the Revised Penal Code, thus, in relation to
Section 1 of the Indeterminate Sentence Law, it is covered by the first
clause of said section. And, consistent with the doctrine that an appeal
in a criminal case throws the whole case open for review, we find that
the appellate court may, in applying the new or amended law,
additionally impose a fine which if unpaid will subject the convict to
subsidiary imprisonment, pursuant to Article 39 of the Revised Penal
Code. Thus, here we find the imposition of a fine also in order.
DECISION
QUISUMBING, J : p
On appeal by certiorari are the Decision 1 of the Court of Appeals in CA-
G.R. No. 16312, promulgated on June 30, 1995, and the subsequent
Resolution 2dated December 15, 1995, denying petitioner's motion for
reconsideration.LexLib
The appellate court's decision affirmed in toto the judgment of the
Regional Trial Court of Quezon City in Criminal Case No. Q-92-
27261, 3 which disposed of the case as follows:
"WHEREFORE, in view of the foregoing, this Court finds the
accused Edwin Cadua guilty beyond reasonable doubt of the
crime charge (sic) against him, and hereby sentences him to
suffer an indeterminate penalty of 12 years 5 months and 10
days of Reclusion Temporal as Minimum to 17 years, 4
months and 1 day of Reclusion Temporal as Maximum, and to
pay the cost. The accused is entitled to the benefits of the
provision of Article 29 of the Revised Penal Code, as amended,
provided he does not fall within the exceptions thereof.
SO ORDERED." 4 LLphil
This case stemmed from a charge for Illegal Possession of Firearms.
The Information reads:
"The undersigned Assistant City Prosecutor accuses EDWIN
CADUA Y QUINTAYO ov (sic) violation of PD 1866 (Illegal
Possession of Firearms and Ammunitions), committed as
follows:
That on or about the 2nd day of January, 1992, in Quezon
City, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, without any
authority in law, did then and there wilfully, unlawfully and
feloniously have in his possession and under his control and
custody one (1) .38 cal. revolver "Smith and Wesson" paltik,
79
brown finished and wooden handle with four (4) live
ammunitions, without first having obtained the proper license
therefor from the proper authorities. LLpr
Contrary to law." 5
Assisted by counsel de oficio, petitioner was arraigned in open court,
waived the reading of the Information, and entered a plea of not
guilty. 6
As culled from the records, the following factual and procedural
antecedents are pertinent to this appeal. prcd
In the evening of January 2, 1992, between 6:30 and 7:00 in the
evening, PO3 Joselito Burdeos and companions, all assigned with the
Central Police District in Quezon City, were aboard mobile unit 118
patrolling the vicinity of Fairview, Quezon City. Their tour of duty was
from 3:00 p.m. to 11:00 p.m. While deployed, they received a radio
dispatch requesting them to proceed to Lot 10 Block 14, Alden Street,
North Fairview. Said dispatch was based on a report concerning an
alleged holdup of complainants Lourdes Bulos and her daughter
Bernadette, who were in need of police assistance. 7
At said address, police officers found both complainants who stated
that the alleged holduppers had just fled. PO3 Burdeos asked where
the robbery took place. Complainants replied that they were held up by
two (2) men at the corner of Archer and Regalado Streets, near their
house. The police officers also asked in what direction the alleged
holduppers fled and what they were wearing. Then, the police officers
requested the complainants to board the patrol unit in order to facilitate
the search for the two (2) men. 8 As they were patrolling around the
area, complainants informed the police officers that one of the suspects
was dressed in jeans and a t-shirt while the other was dressed in a
black top and black pants. The police officers then noticed two (2) men
walking alongside the street and as the officers slowed down the
mobile unit to get a closer look, the complainants identified the men as
the alleged holduppers, one of which is the petitioner in this case. The
police officers slowed down to a stop, alighted from the vehicle, and
called out to the suspects. As Burdeos was approaching the suspects,
he noticed that petitioner Cadua was about to pull something which
was tucked at the right side of his waist. Burdeos promptly pointed his
firearm at Cadua and warned him not to move. He then frisked Cadua
and found in his possession a .38 caliber "paltik" revolver. PO3 Reynoso
Bacnat then apprehended Cadua's companion, who was later identified
as Joselito Aguilar. In Aguilar's possession was found a fan knife. 9 prLL
Verification with the Firearms and Explosives Unit revealed that
petitioner-accused Edwin Cadua is not a valid license holder of a .38
caliber "paltik" revolver. 10
Originally, Chief Inspector Herminigildo Faustino referred to the City
Prosecutor's Office for investigation the cases of Robbery, Violation of
PD 1866 (Illegal Possession of Firearms) and Violation of PD 5121
(Concealment of a Deadly Weapon). 11 However, Assistant City
Prosecutor Edgaro Paragua by resolution dated January 6, 1992, found
only the case for Illegal Possession of Firearms warranting the filing of
an Information. According to Prosecutor Paragua, during the
investigation for robbery, complainants manifested their doubts as to
the identity of the respondents, hence he set this matter for further
investigation. As to the charge for Violation of City Ordinance 5121
against Aguilar, for concealment of a deadly weapon, it was found that
there was sufficient evidence to warrant the filing of an Information
against him. But, considering that said violation falls under the Rules of
Summary Procedure, it could not be included in the Information 12 for
alleged possession of firearms, which concerned only herein petitioner.
On the same day that this Resolution by Prosecutor Paragua was
released, the Information against petitioner was filed. 13
80
On arraignment, petitioner pleaded not guilty. Trial on the merits
ensued, resulting in his conviction. 14 cdphil
Petitioner seasonably appealed to the Court of Appeals, which affirmed
the decision of the trial court. The CA ruled that the warrantless arrest
of petitioner was based on probable cause and that the police officers
had personal knowledge of the fact which led to his arrest. The
subsequent search was therefore an incident to the arrest, making the
firearm found in his possession admissible in evidence. Moreover, the
CA stated that the positive declaration of prosecution witness Joselito
Burdeos, that the .38 "paltik" revolver was found in petitioner's
possession, already proved one of the essential elements of the crime
of Illegal Possession of Firearms. 15 The CA further held that:
". . . As between the positive declaration of prosecution
eyewitness and only the negative assertion of accused-
appellant, the former deserves more credence and is entitled
to greater evidentiary weight. (People vs. Regalario, 220 SCRA
368) Besides, courts generally give full faith and credence to
testimony of police officers as they are presumed to have
acted in the performance of official duty in a regular manner.
(People vs. Cabisada, 226 SCRA 383) Moreover, accused-
appellant has not imputed any ill motive on the said
prosecution witnesses as to why they would testify against
him, except to tell the truth. (People vs. Lizada, 225 SCRA
708)" 16 cdasia
Petitioner now comes before us on certiorari under Rule 45 of the Rules
of Court, assigning the following errors:
"THE COURT OF APPEALS ERRED IN AFFIRMING THE
CONVICTION AND NOT REVERSING THE SAME.
"THE COURT OF APPEALS ERRED IN RULING THAT THE
'PALTIK' WAS RECOVERED IN AN INCIDENTAL SEARCH
 DURING A WARRANTLESS ARREST MADE BY THE POLICE
OFFICERS, HENCE ADMISSIBLE IN EVIDENCE.
"THE COURT OF APPEALS ERRED IN BELIEVING THE
TESTIMONY OF THE POLICE OFFICERS WHEN IT IS CLEAR
THAT THE APPREHENSION OF THE ACCUSED WAS ILLEGAL
AND THAT THE FILING OF THE CHARGES FOR ILLEGAL
POSSESSION OF FIREARMS IS BUT AN AFTERTHOUGHT
SINCE THE PRIVATE COMPLAINANT ADMITTED THAT THE
ACCUSED CADUA WAS NOT THE HOLDUPPER. cdrep
"THE COURT OF APPEALS ERRED IN NOT ACQUITTING THE
ACCUSED BASED ON REASONABLE DOUBT." 17
Discussion of petitioner's assignment of errors may first be subsumed
into one principal inquiry: whether or not his right to be protected from
any unlawful warrantless arrest has been violated. According to
petitioner, since his arrest is null and void, the search conducted by the
police officers as an incident to his arrest is likewise defective. In
support of his claim, petitioner seeks to invoke his constitutional right
to be secure against unreasonable searches and seizures, 18 and the
corresponding prohibition against admitting into evidence anything
obtained in violation of such right. 19
Petitioner further claims that the police officers incorrectly premised
their action on the instances provided for in warrantless arrests. He
adds that since the complainants later on disclaimed petitioner's
identity as the holdupper and that no case of robbery was filed against
him, any probable cause or personal knowledge thereof, alleged by the
arresting officers, had been totally negated. Thus, petitioner now posits
that, absent probable cause or personal knowledge by the arresting
officers, the arrest and the incidental search are illegal; hence, the
"paltik" they seized is inadmissible in evidence. 20According to
petitioner, despite lack of probable cause, he was still arrested because
81
"[k]nowing that the police officers committed a blunder they concocted
a story that they were able to recover a 'paltik' from the accused, so
that even if the accused is freed from the robbery charge they can still
keep him for alleged possession of firearms." 21 Cdpr
"When police officers realized that they caught the wrong persons, they
would not [have] to (sic) go home 'empty handed'," 22 petitioner
asserts. In order to bolster his claim of innocence, he cites findings on
record which showed that he was negative for powder burns, although
the "paltik" at the time of its confiscation was positive for gun powder
residue. 23
Respondents, through the Office of the Solicitor General (OSG),
maintain that the search was an incident to a lawful arrest. Ergo, they
assert that the .38 "paltik" revolver recovered from petitioner is
admissible in evidence. They add that petitioner's denials cannot prevail
over the positive testimony of PO3 Burdeos. The finding that petitioner
was negative for powder burns is immaterial, according to respondents.
Both the trial and appellate courts, according to respondents, found
that at the time that petitioner was arrested, the police officers had
probable cause to arrest him based on the information which was given
by the complainants. Petitioner Cadua and his companion, Aguilar, were
positively identified by both complainants (mother and daughter) as the
perpetrators of the robbery even before the police officers alighted
from the car to approach petitioner and his companion, according to
respondents. When the police officers effected the arrest, they already
had probable cause and personal knowledge that petitioner was a
suspect in an offense just committed. As a logical consequence,
according to respondents, the search incidental to the arrest is valid,
and the revolver recovered admissible in evidence. 24 LLjur
According to the Solicitor General, apart from the warrantless arrest
covered under Section 5 (b), Rule 113 of the Rules of Court, wherein an
offense has just been committed and the arresting person has personal
knowledge of such offense, warrantless arrest is also provided for
under paragraph (a) of the aforementioned section, that is, when in the
presence of the arresting officer, the person is actually committing, or
is attempting to commit, an offense.
In this case, at the time petitioner was called by PO3 Burdeos,
petitioner was actually committing an offense when he made an
attempt to pull the revolver which was tucked in his waist, according to
the respondents. Taking this circumstance into account, they add, the
search and seizure are valid and lawful for being incidental to the
warrantless arrest. 25
Petitioner's denial regarding possession of the .38 "paltik" revolver has
no independent support nor corroboration, according to respondents.
On this matter, the Solicitor General comments as follows: LexLib
". . . PO3 Burdeos clearly testified that he saw the .38 paltik
revolver in the possession of petitioner when he arrested the
latter. Thus, petitioner's defense of denial, which is
uncorroborated and self-serving negative evidence, cannot be
given greater weight than the declaration of PO3 Burdeos who
testified on affirmative matters (People vs. Ballagan, 247
SCRA 535). Moreover, no proof was shown that the arresting
officers had improper or ill motive to testify falsely against
petitioner. Accordingly, PO3 Burdeos' testimony should be
given full faith and credit (People vs. Gazmen, 247 SCRA 414).
Besides, as an arresting officer who is duty-bound to enforce
the law, PO3 Burdeos is presumed to have regularly
performed his official duty (Section 3 [m], Rule 131 of the
Rules of Court; People vs. Basilgo, 235 SCRA 191; People
vs. Pacleb, 217 SCRA 92)." 26
82
Lastly, respondents refute petitioner's arguments that the negative
findings of gun powder residue should be taken to mean that he did
not have possession of the gun. Whether or not petitioner fired the gun
is not pertinent to the charge of illegal possession of firearms,
respondents argue. It does not follow that just because a person is
found negative for powder burns, he did not fire a gun, they add. They
also cite the findings that even if one has just fired a gun, he may be
negative for nitrates. 27 dctai
From a careful study of the records of this case, we find no cogent
reason to disturb the findings by the trial court as affirmed by the
appellate court. Petitioner's declaration that the police officers trumped
up a charge of illegal possession just so that they would "not go home
empty-handed" is far from persuasive. Findings of the trial court as to
the credibility of the testimonies of the prosecution and the lone
testimony of the defense deserve, in our view, great weight.
Jurisprudence has consistently held that, in the absence of any clear
showing that the trial court overlooked, misunderstood or misapplied
some facts or circumstances of weight or substance which could have
affected the result of the case, its findings on the credibility of
witnesses are entitled to the highest degree of respect and will not be
disturbed on appeal. 28 Furthermore, the presumption of regularity in
the performance of official duty 29 strengthens the foregoing doctrine
on the credibility of witnesses. The uncorroborated claim of the accused
that he had been framed 30 is, to our mind, self-serving as well as
baseless.
Considering the circumstances in this case, we find that there was
sufficient reason to justify a warrantless arrest of petitioner for illegal
possession of firearms. Section 5 of Rule 113 of the Rules of Court,
provides that: cdasia
 "SECTION 5.Arrest without warrant; when lawful. — A peace
officer or a private person may, without a 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. cdasia
In cases falling under paragraph (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 proceeded
against in accordance with Rule 112, Section 7."
The findings of the trial court, accepted by the appellate court, show
the pertinence of paragraphs (a) and (b) of Section 5 abovecited.
Through police dispatch to the scene of a crime report and in the
presence of complainants, it was ascertained that a robbery had just
been committed, and the arresting officers had personal knowledge
that petitioner was directly implicated as a suspect. As explained by a
respected authority on criminal procedure: cdll
"It has been ruled that 'personal knowledge of facts', in
arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of
suspicion. . . . Peace officers may pursue and arrest without
83
warrant any person found in suspicious places or under
suspicious circumstances reasonably tending to show that
such person has committed, or is about to commit, any crime
or breach of the peace. Probable cause for an arrest without
warrant is such a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves as to warrant a
reasonable man in believing the accused to be guilty. Besides
reasonable ground of suspicion, action in good faith is another
protective bulwark for the officer. Under such conditions, even
if the suspected person is later found to be innocent, the
peace officer is not liable. The cases hold that a peace officer
might arrest and detain in prison for examination persons
walking in the street at night whom there is reasonable
ground to suspect of felony, although there is no proof of a
felony having been committed; but the arrest would be illegal
if the person so arrested was innocent and there were no
reasonable grounds of suspicion to mislead the officer. The
reason of the rule is apparent. Good people do not ordinarily
lurk about the streets and uninhabited premises at midnight.
Citizens must be protected from annoyance and crime.
Prevention of crime is just as commendatory as the capture of
criminals. Surely the officer must not be forced to await the
commission of robbery or other felony. The rule is supported
by the necessities of life." 31
cdasia
Petitioner could not dispute that there was an initial report to the police
concerning the robbery. A radio dispatch was then given to the
arresting officers, who proceeded to Alden Street to verify the
authenticity of the radio message. When they reached said place, they
met up with the complainants who initiated the report about the
robbery. Upon the officers' invitation, both mother and daughter
boarded the mobile unit to join them in conducting a search of the
nearby area. The accused was spotted in the vicinity. Based on the
reported statements of complainants, he was identified as a logical
suspect in the offense just committed.
Moreover, at that time that PO3 Burdeos called out to petitioner, the Nothing in petitioner's testimony successfully rebuts Burdeos' narration.
latter was on the act of drawing out his "paltik" revolver. Burdeos' Actual possession of an unlicensed firearm, which petitioner attempted
testimony on this matter reads: to draw out, by itself, amounts to committing an offense in the
presence of the arresting officer contemplated in paragraph (a), Section
"WITNESS: 5 of the abovementioned Rule.
We alighted and approached and we noticed that there is The fact that the robbery case was never brought to trial does not
something the accused is trying to hide and also trying mean that the legality of the arrest was tainted, for such arrest does
to pull out. LibLex
not depend upon the indubitable existence of the crime. 33 It is not
necessary that the crime should have been established as a fact in
FISCAL:
order to regard the detention as legal. The legality of apprehending the
Was he able to pull that something? accused would not depend on the actual commission of the crime but
upon the nature of the deed, where from such characterization it may
WITNESS: reasonably be inferred by the officer or functionary to whom the law at
the moment leaves the decision for the urgent purpose of suspending
No. the liberty of the citizen. 34 Furthermore, the Court acknowledges that
police authorities can stop a person forcibly when such action is based
FISCAL: on something more than a mere "reasonable and articulable" suspicion
that such a person has been engaged in criminal activity. 35 All told,
And, what was that?
the arresting officers reasonably acted upon personal knowledge at the
WITNESS: time, and not on unreliable hearsay information, 36 to effect a lawful
arrest. cdphil

The .38 paltik. LexLib

That the victims of the reported robbery failed to pursue a formal

FISCAL: complaint is not decisive in this case. What is material is that the
officers acted in response to the events which had just transpired and
When you saw [that] what did you do . . . when you saw the called for the appropriate police response. As to the element of
accused pulling out that .38 paltik? personal knowledge, the officers could not be faulted. It is not correct
to say they acted without observing standards of reasonableness and
WITNESS:
probable cause. They responded promptly to a legitimate complaint of
the victims and they had a reasonable suspicion that the persons
I pointed [at] him my gun [then] shouted 'don't move or I'll
shoot!' " 32 pointed out at the scene were the perpetrators of the offense. This in
itself is sufficient justification for the officers to call the attention of the
84
accused at that point in time when he was identified as a suspect by
the complainants.
The reason which prompted complainants to refrain from identifying
the accused during the examination by the police regarding the robbery
is not determinative of the resolution of the present case. It bears
stressing that the case now before us is for the illegal possession of
firearms, and not for the robbery. Petitioner proceeds from a wrong
agree that the incidental search and subsequent seizure of the
unlicensed firearm in question is likewise lawful and valid pursuant
to Section 12, Rule 126 of the Rules of Court, to wit:
"SECTION 12.Search incident to lawful arrest. — A person
lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an
offense, without a search warrant." LibLex

premise when, in support of his assigned errors, he argues that the

Noteworthy, among the exceptions to the necessity for a search
arrest and the search should be considered invalid merely because the
warrant is the right of search and seizure as an incident to a lawful
robbery charge was never formally filed and prosecuted. In Rabaja
arrest. A lawful arrest may be made either while a crime is actually
vs. Court of Appeals, 37 a Department of Environment and Natural
being committed, or soon after its commission. The right to search
Resources employee, Rabaja, was charged with and convicted of Illegal
includes in these instances that of searching the person of one who is
Possession of Firearms even though the private complainant whom he
arrested, in order to find and seize things connected with the crime as
threatened eventually dropped the charges against him. The charge for
its fruits or as the means for its commission. 41
illegal possession was pursued by the authorities. prLL

When petitioner was searched contemporaneously with the arrest, the

Petitioner avers that complainants "admitted that accused was not the
"paltik" was found in his possession, and seized. Such seizure cannot
holdupper". 38 A perusal of the records shows no such admission. The
be considered unlawful nor unreasonable. Moreover, at that moment of
resolution, issued by Assistant City Prosecutor Paragua in the robbery
search and seizure, there was in the mind of the arresting officer more
case, stated that no information could yet be filed because
than a mere suspicion that petitioner was armed. Petitioner's
complainants manifested doubts as to the identity of their
movements clearly suggested the presence of a weapon tucked at the
assailants. 39 The resolution should not be taken to mean an admission
side of his waist. The fact that Burdeos made an immediate draw for
that petitioner Cadua had been totally ruled out as a suspect in the
his service revolver was an instinctive response to petitioner's actions
crime. If petitioner wanted to impress the Court that even on probable
which, under the circumstances, indicated a high probability of an
cause he could not be accosted, then that impression is inaccurate and
offensive attack with a lethal weapon.
wrong. On cross-examination, petitioner himself did not object to the prcd

question but admitted the fact that the complaint was withdrawn, but
not for the reason that he was ruled out as the person who committed
the offense. 40
Given the circumstances in this case, we are constrained to affirm the
finding below that the warrantless arrest of petitioner is lawful. We also
85
Petitioner's counsel mistakenly relies on the case of People
vs. Aminnudin. 42 In said case, Aminnudin was acquitted on the charge
of illegally transporting marijuana because the Court found that the
search could not be considered an incident to a lawful arrest
considering that the circumstances did not come under the exceptions
provided for by applicable law and the Rules of Court. It was therein
held that the warrantless arrest and the subsequent search were illegal,
hence the evidence thereby obtained was inadmissible.
However, Aminnudin differs radically from the case now before us.
In Aminnudin, "[i]t is clear that they had at least two days within which
they could have obtained a warrant to arrest and search Aminnudin
who was coming to Iloilo on the M/V Wilcon 9. His name was known.
The vehicle was identified. And from the information they had received
they could have persuaded a judge that there was probable cause,
indeed to justify the issuance of a warrant." 43
A situation involving a surveillance mission like that of Aminnudin could
not compare to that of an unexpected crime of holdup-robbery. Police
behavior in the latter case would necessitate a different course of
action as well as different rules of engagement, compared to the
former. In the case now before us, there is no supervening event,
much less considerable amount of time between reaching the scene of
the crime and the actual apprehension of the suspect.
Furthermore, in accordance with settled jurisprudence, any objection,
to the arrest, or question concerning the defect or irregularity attending
an arrest must be made before the accused enters his plea. 44 The
records in this case shows no such objection to the arrest, nor any
question as to the irregularity of his arrest, raised by petitioner.LLjur
Petitioner's arrest having been found valid and the seizure of the
firearms lawful, we now focus on the second issue for resolution,
whether or not petitioner is liable for the offense of illegal possession of
firearms?
Here two elements must be proved: (a) positively, the existence of the
subject firearm, and (b) negatively, the fact that the accused did not
86
have a license or permit to possess the same. 45 We find both elements
present in this case.
First, testimony of witnesses on record affirms that the "paltik" revolver
was taken from the person of petitioner at the time he was arrested.
Further SPO1 Cesar Gabitan, of the Firearms and Explosive Unit,
testified without contradiction that petitioner had no license or permit
to possess the gun. 46 This Court has ruled in several cases that either
the testimony of a representative of, or a certification from, the
Philippine National Police-Firearms and Explosives Office (PNP-FEO)
attesting that a person is not a licensee of any firearm suffices to prove
beyond reasonable doubt the second element of illegal possession of
firearms. 47 cdasia
Petitioner's claim that since he was found negative for gun powder
burns, he should be held innocent and acquitted of the charge,
considering that the "paltik" at the time of its confiscation was positive
for gun powder residue, does not quite add up logically. The appellate
court's holding on the matter deflates petitioner's defense:
"Neither do [w]e find accused-appellant's assertion that he
was negative for gun powder burns to be relevant in this case.
Whether or not accused-appellant fired the gun in question
does not erase his offense of illegally possessing the said gun.
Besides, being negative of gunpowder burns does not
necessarily mean that accused-appellant has not fired the
gun. . . .
LLphil
xxx xxx xxx
"As stated by the trial court:
'On questioning by the Court, witness cited several
factors wherein a person who has fired his firearm but
was negative for nitrates; the type of caliber of the
 ammunition of the firearm itself; a new firearm or
revolver type would be so close that nitrates could not
escape from the bridge of the gun, whereas an old
firearm where the mechanism is already a little bit
loose, more nitrates appear on the subject who fired
the gun; the direction of the wind if the subject is firing
the firearm against the target, the nitrates will be
blown away from the scene and so he would also be
negative of nitrates; depending on the velocity of the
wind, humidity of the area where the shooting
happened; in a closed room or place and [where] there
is no wind on or against the firearm, he could be
positive for nitrates; whereas outside the room he
would be negative and the less humid area the less fall
of nitrates on the subject, and another possibility is if
the subject is using something to cover his hand firing
the gun it would be negative for nitrates and in using
a .45 caliber gun, which has a close and tight
compartment where the bullet is set and with the
revolver type firearm which has an open chamber, the
former has a greater possibility that he would be
negative for nitrates.' " 48dctai
The penalty imposed upon petitioner, however, deserves a review. At
the time that he was convicted, the penalty for Illegal Possession of
Firearms under Presidential Decree 1866 was reclusion temporal in its
maximum period to reclusion perpetua. The trial court, as affirmed by
the appellate court, imposed on petitioner the penalty of 12 years, 5
months and 10 days of reclusion temporal as minimum to 17 years, 4
months and 1 day of reclusion temporal as maximum. 49 In view of the
enactment of Republic Act 8294 on June 6, 1997, certain provisions of
P.D. 1866 have been amended. With the passage of the
aforementioned law, the penalty for simple illegal possession of a low-
powered firearm, such as "paltik", has been reduced to prision
correccional in its maximum period 50 and a fine of not less than
87
fifteen thousand pesos (P15,000.00). Therefore following R.A. 8294,
the penalty imposed on petitioner should now be lowered to benefit the
petitioner. For the penalty provided for simple illegal possession in the
amendment is lower than that provided for under the old law. Since the
provision of R.A. 8294 is favorable to petitioner, it should have a
retroactive effect, pursuant to Article 22 of the Revised Penal
Code. 51 Moreover, in conjunction with the new law, we should also
apply the doctrine laid down in People vs. Martin Simon 52 in relation
to Section 1 of the Indeterminate Sentence Law. 53 Although Illegal
Possession of Firearms is considered a special law, the penalty provided
is taken from the range of penalties in the Revised Penal Code, thus, in
relation to Section 1 of the Indeterminate Sentence Law, it is covered
by the first clause of said section. Here applicable by analogy and
extension is the holding in Simon:
"It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised
Penal Code, states that 'if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same.' We hold that
this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was
not taken from and is without reference to the Revised Penal
Code, as discussed in the preceding illustrations, such that it
may be said that the 'offense is punished' under that law .
(Emphasis Supplied) 54 llcd
Finally, consistent with the doctrine that an appeal in a criminal case
throws the whole case open for review, we find that the appellate court
may, in applying the new or amended law, additionally impose a fine
which if unpaid will subject the convict to subsidiary imprisonment,
pursuant to Article 39 of the Revised Penal Code. 55 Thus, here we find
the imposition of a fine also in order.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with
the MODIFICATION that petitioner is hereby SENTENCED to 2 years, 4
months, and 1 day of prision correccional medium as minimum, to 5
years, 4 months, and 20 days of prision correccional maximum as
maximum, there being no aggravating and mitigating circumstances,
plus a fine of P15,000.00 with subsidiary imprisonment should
petitioner fail to pay. However, since petitioner has already served
more than seven (7) years, (5) months in prison, which is now beyond
the maximum principal penalty imposed at present for his offense, even
if a subsidiary penalty for unpaid fine is included, he is hereby ordered
RELEASED immediately, unless he is being held for any other lawful
cause. Cdpr
SO ORDERED.
Bellosillo, Mendoza and Buena, JJ., concur.
SECOND DIVISION
[G.R. No. 143881. August 9, 2001.]
DANILO EVANGELISTA y SOLOMON, petitioner, vs.
HON. PEDRO SISTOZA, DIRECTOR, BUREAU OF
CORRECTIONS, MUNTINLUPA CITY, METRO
MANILA, respondent.
Hilario D. Quiambao for petitioner.
88
The Solicitor General for respondent.
SYNOPSIS
Petitioner was indicted for robbery and illegal possession of firearm
which was allegedly used in the commission of the robbery before
Branch 4 of the Regional Trial Court (RTC) of Manila. After trial,
petitioner was convicted of both crimes. On appeal, the Court of
Appeals affirmed the trial court's decision with modification. He was
sentenced to suffer the indeterminate prison terms for robbery and for
illegal possession of firearm. On July 6, 1997, Republic Act No. 8294
took effect. The said law effectively reduced the imposable penalty for
the offense of illegal possession of firearms. Petitioner Danilo
Evangelista filed this petition for the issuance of a writ of habeas
corpus to seek his release from imprisonment on the ground that after
giving retroactive application to the provisions of Republic Act No.
8294, the Court shall find that he had already served more than the
maximum imposable penalty for the crimes he has committed.
Considering that petitioner had already served a total of nine (9) years
and three (3) months (computed with good conduct time allowance),
he contended that he had already served the maximum period of the
two prison terms imposed upon him, and he was entitled to be restored
to his liberty.
The Supreme Court did not free with petitioner. Under Article 70 of the
Revised Penal Code, when the culprit has to serve two or more
penalties, he should serve them simultaneously if the nature of the
penalties will so permit; otherwise said penalties shall be executed
successively, following the order of their respective severity. In the case
at bar, the terms of imprisonment should be served successively. Thus,
the second sentence did not commence to run until the expiration of
the first. However, the Court also ruled that should petitioner's case be
reviewed in light of recent jurisprudence, he may be found guilty only
of the crime of robbery. The reason for this is the pronouncement
in People vs. Walpan Ladjaalam that the accused can be convicted of
simple illegal possession of firearms, provided that no other crime was
committed by the person arrested. Petitioner Danilo Evangelista was
deemed to have committed only the crime of robbery for which he had
already served more than the maximum period of the penalty imposed
upon him. The petitioner has been incarcerated for nine (9) years and
three (3) months already, or for more than the maximum imposable
penalty for the crime of robbery he committed, which is only six (6)
years and eight (8) months. The petition was granted and he was
ordered immediately released from confinement.
SYLLABUS
1.CRIMINAL LAW; PENALTIES; SERVICE OF TWO OR MORE
PENALTIES; SHOULD BE SERVED SIMULTANEOUSLY IF THE NATURE
OF THE PENALTY WILL SO PERMIT; OTHERWISE TERMS OF
IMPRISONMENT SHOULD BE SERVED SUCCESSIVELY; APPLICATION IN
CASE AT BAR. — Article 70 of the Revised Penal Code is clear on the
matter of service of two or more penalties. When the culprit has to
serve two or more penalties, he should serve them simultaneously if
the nature of the penalties will so permit; otherwise said penalties shall
be executed successively, following the order of their respective
severity. Terms of imprisonment must therefore be served successively.
Thus, we have held that in the service of two prison terms, the second
sentence did not commence to run until the expiration of the first. It
stands to reason that the penalty for robbery which is imprisonment of
four (4) years, two (2) months and one day of prision correccional as
minimum to six (6) years and eight (8) Months of prision mayor as
maximum has to be served by petitioner first before service of the
second sentence for illegal possession of a low powered firearm, which
is imprisonment of four (4) years, two (2) months, and one day to six
89
(6) years, may even commence. Thus, the maximum period of
petitioner's incarceration is twelve (12) years and eight (8) months.
Petitioner's service of nine (9) years and three (3) months of the prison
terms imposed upon him is therefore not sufficient to meet the
maximum period of twelve (12) years and eight (8) months, and he
cannot be released from confinement on this basis. DEIHSa
2.ID.; ILLEGAL POSSESSION OF FIREARMS (AS AMENDED BY
REPUBLIC ACT NO. 8294); CRIMINAL LAWS SHALL BE GIVEN
RETROACTIVE EFFECT IF FAVORABLE TO THE ACCUSED;
APPLICATION IN CASE AT BAR. — Fortunately, however, petitioner can
and shall be restored to his liberty in light of recent jurisprudence,
specifically this Court's ruling in People vs. Walpan Ladjaalam y Mihajil
alias "Warpan" which shed light on the correct interpretation of Section
1 of Republic Act No. 8294. The Office of the Solicitor General which
did not interpose any objection to this petition is correct in pointing out
that should petitioner's case be reviewed in light of recent
jurisprudence, he may be found guilty only of the crime of robbery. In
other words, he would be exonerated of the offense of illegal
possession of firearm. The reason for this is our pronouncement
in People vs. Walpan Ladjaalam that the accused can be convicted of
simple illegal possession of firearms, provided that no other crime was
committed by the person arrested. Conversely stated, if another crime
was committed by the accused, he cannot be convicted of simple illegal
possession of firearms. It bears reiterating that this Court's
interpretation of laws are as much a part of the law of the land as the
letters of the laws themselves. Meaning, our interpretation of Republic
Act No. 8294 forms part of the said law. In view of the well-entrenched
rule that criminal laws shall be given retroactive effect if favorable to
the accused, petitioner Danilo Evangelista is deemed to have committed
only the crime of robbery for which he has already served more than
the maximum period of the penalty imposed upon him.
 RESOLUTION
DE LEON, JR., J : p
Petitioner Danilo Evangelista comes to us via the instant Petition for the
Issuance of a Writ of Habeas Corpus to seek his release from
imprisonment on the ground that after giving retroactive application to
the provisions of Republic Act No. 8294, 1 we shall find that he has
already served more than the maximum imposable penalty for the
crimes he has committed.
Petitioner was indicted for robbery and illegal possession of the firearm
used in the commission of the robbery before Branch 4 of the Regional
Trial Court (RTC) of Manila. After trial, petitioner was convicted of both
crimes. In Criminal Case No. 92-109854 for illegal possession of
firearms, petitioner was sentenced to suffer the indeterminate penalty
of imprisonment of eighteen (18) years of reclusion temporal as
minimum to reclusion perpetua as maximum. On the other hand, the
indeterminate penalty of imprisonment of six (6) years of prision
correccional as minimum to ten (10) years of prision mayor as
maximum was imposed by the trial court upon the petitioner in Criminal
Case No. 92-109710 for robbery. 2
On appeal, the Court of Appeals affirmed the trial court's decision with
modification, to wit:
WHEREFORE, in view of the foregoing, with the modification
that the accused-appellant is hereby sentenced to suffer: (1)
an indeterminate penalty of imprisonment of Four (4) Years,
Two (2) Months and One (1) Day of Prision Correccional as
minimum to Six (6) Years and Eight (8) Months of Prision
Mayor as maximum in Criminal Case No. 92-109710, and (2)
an indeterminate penalty of imprisonment of Twelve (12)
90
Years, Five (5) Months and Eleven (11) days of Prision
Mayor as minimum to Seventeen (17) Years, Four (4) Months
and One (1) day of Reclusion Temporal as maximum in
Criminal Case No. 92-109854, the decision being appealed
from is AFFIRMED in all other respects.
SO ORDERED. 3
On July 6, 1997, Republic Act No. 8294 took effect. The said law
effectively reduced the imposable penalty for the offense of illegal
possession of firearms. Hence, for the illegal possession of a low
powered firearm such as that of the petitioner's, the penalty is
now prision correccional in its maximum period which has a duration of
four (4) years, two (2) months, and one day to six (6) years, and a fine
of not less than Fifteen Thousand Pesos (P15,000.00). 4 It is the
retroactive application of this provision of law which petitioner seeks to
forward his cause. Thus, petitioner contends that the penalty of
imprisonment imposed upon him by the trial court, as modified by the
Court of Appeals, for the offense of illegal possession of firearms has
been lowered to imprisonment of four (4) years, two (2) months and
one day to six (6) years by virtue of Section 1 of Republic Act No. 8294.
Petitioner is of the mistaken belief that the two terms of imprisonment:
[1] four (4) years, two (2) months and one day of prision
correccional as minimum to six (6) years and eight (8) months
of prision mayor as maximum for the crime of robbery, and [2] four (4)
years, two (2) months and one day to six (6) years for the offense of
illegal possession of firearms, are to be served
simultaneously. 5 Considering that petitioner has already served a total
of nine (9) years and three (3) months (computed with good conduct
time allowance), 6 he contends that he has already served the
maximum period of the two prison terms imposed upon him, and he is,
therefore, entitled to be restored to his liberty.
We disagree. Article 70 of the Revised Penal Code is clear on the
matter of service of two or more penalties. 7 When the culprit has to
serve two or more penalties, he should serve them simultaneously if
the nature of the penalties will so permit; otherwise said penalties shall
be executed successively, following the order of their respective
severity. 8 Terms of imprisonment must therefore be served
successively. Thus, we have held that in the service of two prison
terms, the second sentence did not commence to run until the
expiration of the first. 9
It stands to reason that the penalty for robbery which is imprisonment
of four (4) years, two (2) months and one day of prision correccional as
minimum to six (6) years and eight (8) Months of prision mayor as
maximum has to be served by petitioner first before service of the
second sentence for illegal possession of a low powered firearm, which
is imprisonment of four (4) years, two (2) months, and one day to six
(6) years, may even commence. Thus, the maximum period of
petitioner's incarceration is twelve (12) years and eight (8) months.
Petitioner's service of nine (9) years and three (3) months of the prison
terms imposed upon him is therefore not sufficient to meet the
maximum period of twelve (12) years and eight (8) months, and he
cannot be released from confinement on this basis. ESaITA
Fortunately, however, petitioner can and shall be restored to his liberty
in light of recent jurisprudence, specifically this Court's ruling in People
vs. WalpanLadjaalam y Mihajil alias "Warpan". 10 which shed light on
the correct interpretation of the following provisions of Republic Act No.
8294:
"SECTION 1.Section 1 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
91
"SECTION 1.Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition . — The penalty
of prision correccional in its maximum period and a fine of not
less than Fifteen Thousand Pesos (P15,000.00) shall be
imposed upon any person who shall unlawfully manufacture,
deal in, acquire, dispose, or possess, any low powered
firearm, such as rimfire handgun, .380 or .32 and other
firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition: Provided, That
no other crime was committed.
"The penalty of prision mayor in its minimum period and a fine
of Thirty Thousand Pesos (P30,000.00) shall be imposed if the
firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .
357 and caliber .22 center-fire magnum and other firearms
with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed
by the person arrested.
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident
to, or in connection with the crime of rebellion or insurrection,
sedition, or attemptedcoup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or
insurrection, sedition, or attempted coup d'etat.
"xxx xxx xxx."
The Office of the Solicitor General which did not interpose any objection
to this petition is correct in pointing out that should petitioner's case be
reviewed in light of recent jurisprudence, he may be found guilty only
of the crime of robbery. In other words, he would be exonerated of the
offense of illegal possession of firearm. 11 The reason for this is our
pronouncement in People vs. Walpan Ladjaalam that the accused can
be convicted of simple illegal possession of firearms, provided that no
other crime was committed by the person arrested. Conversely stated,
if another crime was committed by the accused, he cannot be convicted
of simple illegal possession of firearms. Thus, we ratiocinated:
We cannot accept either of these interpretations because they
ignore the plain language of the statute. A simple reading
thereof shows that if an unlicensed firearm is used in the
commission of any crime, there can be no separate offense of
simple illegal possession of firearms. Hence, if the "other
crime" is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate
offense. Since direct assault with multiple attempted homicide
was committed in this case, appellant can no longer be held
liable for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the
accused. In this case, the plain meaning of RA 8294's simple
language is most favorable to herein appellant. Verily, no
other interpretation is justified, for the language of the new
law demonstrates the legislative intent to favor the accused.
Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault
with attempted homicide. Moreover, since the crime
committed was direct assault and not homicide or murder,
illegal possession of firearms cannot be deemed an
aggravating circumstance.
xxx xxx xxx.
92
Just as unacceptable is the interpretation of the trial court. We
find no justification for limiting the proviso in the second
paragraph to murder and homicide. The law is clear: the
accused can be convicted of simple illegal possession of
firearms, provided that "no other crime was committed by the
person arrested." If the intention of the law in the second
paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third paragraph.
Verily, where the law does not distinguish, neither should
we. HTSaEC
The Court is aware that this ruling effectively exonerates
appellant of illegal possession of an M-14 rifle, an offense
which normally carries a penalty heavier than that for direct
assault. While the penalty for the first is prision mayor, for the
second it is only prision correccional. Indeed, the accused may
evade conviction for illegal possession of firearms by using
such weapons in committing an even lighter offense, like
alarm and scandal or slight physical injuries, both of which are
punishable by arresto menor. This consequence, however,
necessarily arises from the language of RA 8294, whose
wisdom is not subject to the Court's review. Any perception
that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to
give statutes a new meaning detached from the manifest
intendment and language of the legislature. Our task is
constitutionally confined only to applying the law and
jurisprudence to the proven facts, and we have so in this case.
xxx xxx xxx
It bears reiterating that this Court's interpretation of laws are as much
a part of the law of the land as the letters of the laws
themselves. 12 Meaning, our interpretation of Republic Act No. 8294
forms part of the said law. In view of the well-entrenched rule that
criminal laws shall be given retroactive effect if favorable to the
accused, petitioner Danilo Evangelista is deemed to have committed
only the crime of robbery for which he has already served more than
the maximum period of the penalty imposed upon him.
WHEREFORE, considering that as of October 18, 2000, 13 the
petitioner has been incarcerated for nine (9) years and three (3)
months already, or for more than the maximum imposable penalty for
the crime of robbery he committed, which is only six (6) years and
eight (8) months, the petition is hereby GRANTED. The Director of the
Bureau of Corrections is hereby ORDERED to immediately RELEASE
from confinement petitioner DANILO EVANGELISTA ySOLOMON unless
further detention is justified by other lawful cause, and to inform this
Court of the action taken therein within five (5) days from receipt
hereof.
SO ORDERED. ICTHDE
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
FIRST DIVISION
[G.R. No. 153087. August 7, 2003.]
BERNARD R. NALA, petitioner, vs. JUDGE JESUS M.
BARROSO, JR., Presiding Judge, Regional Trial
Court, Branch 10, 10th Judicial Region, Malaybalay
City, respondent.
Noel B. Vedad for petitioner.
93
SYNOPSIS
A search warrant was issued by the trial court to search the person and
residence of petitioner in connection with the latter's alleged illegal
possession of firearms. Petitioner filed an Omnibus Motion seeking to
quash the search and seizure warrant and declare inadmissible the
items seized under the said warrant. However, said motion and the
subsequent motion for reconsideration were denied. Hence, this
petition.
In granting the petition, the Supreme Court ruled that the search
warrant was void for lack of probable cause. Probable cause, as applied
to illegal possession of firearms, would be such facts and circumstances
which would lead a reasonably discreet and prudent man to believe
that a person is in possession of a firearm and that he does not have
the license or permit to posses the same. In the case at bar, the
applicant and his witness did not have personal knowledge of
petitioner's lack of license to posses firearms, ammunitions and
explosive, and did not adduce the evidence required to prove the
existence of probable cause that petitioner had no license to possess a
firearm. Hence, the search and seizure warrant issued on the basis of
the evidence presented was void. Conformably, the articles allegedly
seized in the house of petitioner cannot be used as evidence against
him because access therein was gained by the police officers using a
void search and seizure warrant. It is as if they entered petitioner's
house without a warrant, making their entry therein illegal, and the
items seized, inadmissible.
SYLLABUS
1.REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE;
SEARCH WARRANT; REQUISITES FOR VALIDITY. — [T]he requisites of
a valid search warrant are: (1) probable cause is present; (2) such
presence is determined personally by the judge; (3) the complainant
and the witnesses he or she may produce are personally examined by
the judge, in writing and under oath or affirmation; (4) the applicant
and the witnesses testify on facts personally known to them; and (5)
the warrant specifically describes the person and place to be searched
and the things to be seized.
2.ID.; ID.; ID.; ID.; VALID IF IT CONTAINS
A DESCRIPTIO PERSONAE THAT WILL ENABLE THE OFFICER TO
IDENTIFY THE ACCUSED WITHOUT DIFFICULTY; CASE AT BAR. —
[T]he failure to correctly state in the search and seizure warrant the
first name of petitioner, which is "Bernard" and not "Romulo" or
"Rumolo," does not invalidate the warrant because the additional
description "alias Lolong Nala who is said to be residing at Purok 4,
Poblacion, Kitaotao, Bukidnon" sufficiently enabled the police officers to
locate and identify the petitioner. What is prohibited is a warrant
against an unnamed party, and not one which, as in the instant case,
contains a descriptio personae that will enable the officer to identify the
accused without difficulty.
3.ID.; ID.; ID.; ID.; PROBABLE CAUSE FOR A VALID SEARCH
WARRANT, HOW DETERMINED. — The "probable cause" for a valid
search warrant has been defined as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an
offense has been committed, and that objects sought in connection
with the offense are in the place sought to be searched. This probable
cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere
hearsay. In determining its existence, the examining magistrate must
make a probing and exhaustive, not merely routine or pro
forma examination of the applicant and the witnesses. Probable cause
must be shown by the best evidence that could be obtained under the
circumstances. On the part of the applicant and witnesses, the
94
introduction of such evidence is necessary especially where the issue is
the existence of a negative ingredient of the offense charged, e.g., the
absence of a license required by law. On the other hand, the judge
must not simply rehash the contents of the affidavits but must make his
own extensive inquiry on the existence of such license, as well as on
whether the applicant and the. witnesses have personal knowledge
thereof.
4.ID.; EVIDENCE; ADMISSIBILITY; PROHIBITED ARTICLES SEIZED IN
THE COURSE OF THE SEARCH BY VIRTUE OF A VOID SEARCH
WARRANT ARE INADMISSIBLE AGAINST ACCUSED. — The settled rule
is that where entry into the premises to be searched was gained by
virtue of a void search warrant, prohibited articles seized in the course
of the search are inadmissible against the accused. In Roan
v. Gonzales, the prosecution sought to charge the accused with illegal
possession of firearms on the basis of the items seized in a search
through a warrant which the Court declared as void for lack of probable
cause. In ruling against the admissibility of the items seized, the Court
said — "Prohibited articles may be seized but only as long as the search
is valid. In this case, it was not because: 1) there was no valid search
warrant; and 2) absent such a warrant, the right thereto was not validly
waived by the petitioner. In short, the military officers who entered the
petitioner's premises had no right to be there and therefore had no
right either to seize the pistol and bullets." Conformably, the articles
allegedly seized in the house of petitioner cannot be used as evidence
against him because access therein was gained by the police officer
using a void search and seizure warrant. It is as if they entered
petitioner's house without a warrant, making their entry therein illegal,
and the items seized, inadmissible.
5.CRIMINAL LAW; MALUM PROHIBITUM; SEARCH WARRANT IS
NECESSARY BEFORE SUBJECTS OF THE OFFENSE MAY BE SEIZED. —
[I]t does not follow that because an offense is malum prohibitum, the
subject thereof is necessarily illegal per se. Motive is immaterial in mala
prohibita, but the subjects of this kind of offense may not be summarily
seized simply because they are prohibited. A warrant is still necessary,
because possession of any firearm becomes unlawful only if the
required permit or license therefor is not first obtained.
6.REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE;
SEARCH WITHOUT WARRANT, ALLOWED UNDER THE PLAIN VIEW
DOCTRINE; REQUISITES. — [A]dmissibility of the items seized cannot
be justified under the plain view doctrine. It is true that, as an
exception, the police officer may seize without warrant illegally
possessed firearm, or any contraband for that matter, inadvertently
found in plain view. However, said officer must have a prior right to be
in the position to have that view of the objects to be seized. The "plain
view" doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification
for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; (c)
it is immediately apparent to the officer that the item he observes may
be evidence of a crime, contraband or otherwise subject to seizure. The
law enforcement officer must lawfully make an initial intrusion or
properly be in a position from which he can particularly view the area.
In the course of such lawful intrusion, he came inadvertently across a
piece of evidence incriminating the accused. The object must be open
to eye and hand and its discovery inadvertent.
7.ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. — No
presumption of regularity may be invoked in aid of the process when
the officer undertakes to justify an encroachment of rights secured by
the Constitution. In this case, the firearms and explosive were found at
the rear portion of petitioner's house but the records do not show how
exactly were these items discovered. Clearly, therefore, the plain view
doctrine finds no application here not only because the police officers
95
had no justification to search the house of petitioner (their search
warrant being void for lack of probable cause), but also because said
officers failed to discharge the burden of proving that subject articles
were inadvertently found in petitioner's house.
DECISION
YNARES-SANTIAGO, J : p
In determining the existence of probable cause for the issuance of a
search warrant, the examining magistrate must make probing and
exhaustive, not merely routine or pro forma examination of the
applicant and the witnesses. 1 Probable cause must be shown by the
best evidence that could be obtained under the circumstances. The
introduction of such evidence is necessary especially where the issue is
the existence of a negative ingredient of the offense charged, e.g., the
absence of a license required by law. 2
This is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to annul the October 18, 2001 3 and February 15,
2002 4 Orders 5 of the Regional Trial Court of Malaybalay City, Branch
10, which denied petitioner's Omnibus Motion to Quash 6 Search and
Seizure Warrant No. 30-01. 7
On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a
warrant to search the person and residence of petitioner Bernard R.
Nala, who was referred to in the application as "Rumolo 8 Nala alias
Long" 9 of "Purok 4, Poblacion, Kitaotao, Bukidnon." 10 The application
was filed in connection with petitioner's alleged illegal possession of one
caliber .22 magnum and one 9 mm. pistol in violation of Republic Act
No. 8294, which amended Presidential Decree No. 1866, or the law on
Illegal Possession of Firearms. On the same day, after examining
Alcoser and his witness Ruel Nalagon, respondent Presiding Judge of
RTC of Malaybalay City, Branch 10, issued Search and Seizure Warrant
No. 30-01, against "Romulo Nala alias Lolong Nala who is said to be
residing at Purok 4, Poblacion, Kitaotao, Bukidnon ."
At around 6:30 in the morning of July 4, 2001, Alcoser and other police
officers searched petitioner's house and allegedly seized the following
articles, to wit —
-1- one piece caliber .38 revolver (snub-nose) with Serial
Number 1125609
-1- one pc. fragmentation grenade (cacao type)
-1- one pc. .22 long barrel
-5- pcs live ammunition for caliber .38 revolver
-4- four pcs. of disposable lighter and unestimated numbers of
cellophane used for packing of shabu 11
On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P
for illegal possession of firearms, ammunitions and explosives were
filed against the petitioner before the 5th Municipal Circuit Trial Court of
Kitaotao, Bukidnon. 12
On August 8, 2001, petitioner filed an Omnibus Motion 13 seeking to —
(1) quash Search and Seizure Warrant No. 30-01; (2) declare
inadmissible for any purpose the items allegedly seized under the said
warrant; and (3) direct the release of the air rifle seized by the police
officers.
96
Respondent judge denied the Omnibus Motion to Quash but ordered
the return of the air rifle to petitioner. As to the validity of the search
warrant, respondent found that probable cause was duly established
from the deposition and examination of witness Ruel Nalagon and the
testimony of PO3 Macrino L. Alcoser who personally conducted a
surveillance to confirm the information given by Nalagon. The fact that
the items seized were not exactly the items listed in the warrant does
not invalidate the same because the items seized bear a direct relation
to the crime of illegal possession of firearms. Respondent judge also
found that petitioner was sufficiently identified in the warrant although
his first name was erroneously stated therein as "Romulo" and not
"Bernard", considering that the warrant was couched in terms that
would make it enforceable against the person and residence of
petitioner and no other. The dispositive portion of the questioned Order
reads:
WHEREFORE, finding the Omnibus Motion to be without merit,
the same is hereby DENIED. However, as to the questioned
Air Rifle, the same is allowed to be withdrawn and ordered
returned to herein movant.
SO ORDERED. 14
Petitioner filed a motion for reconsideration but the same was denied
on February 15, 2002. 15 Hence, he filed the instant petition alleging
that respondent judge committed grave abuse of discretion in issuing
the questioned orders.
The issues for resolution are as follows: (1) Was petitioner sufficiently
described in the search and seizure warrant? (2) Was there probable
cause for the issuance of a search and seizure warrant against
petitioner? and (3) Whether or not the firearms and explosive allegedly
found in petitioner's residence are admissible in evidence against him
even though said firearms were not listed in the search and seizure
warrant.
At the outset, it must be noted that the instant petition for certiorari
was filed directly with this Court in disregard of the rule on hierarchy of
courts. In the interest of substantial justice and speedy disposition of
cases, however, we opt to take cognizance of this petition in order to
address the urgency and seriousness of the constitutional issues
raised. 16 In rendering decisions, courts have always been
conscientiously guided by the norm that on the balance, technicalities
take a backseat against substantive rights, and not the other way
around. Thus, if the application of the Rules would tend to frustrate
rather than promote justice, it is always within our power to suspend
the rules, or except a particular case from its operation. 17
Article III, Section 2 of the Constitution guarantees every individual the
right to personal liberty and security of homes against unreasonable
searches and seizures, viz:
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 searched and the
persons or things to be seized.
The purpose of the constitutional provision against unlawful searches
and seizures is to prevent violations of private security in person and
property, and unlawful invasion of the sanctity of the home, by officers
of the law acting under legislative or judicial sanction, and to give
remedy against such usurpations when attempted. 18
97
Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal
Procedure provide for the requisites for the issuance of a search
warrant, to wit:
SEC. 4.Requisites for issuing search warrant. — A search
warrant shall not issue except upon probable cause in
connection with one specific offense to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witness he may
produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the
Philippines.
SEC. 5.Examination of complainant; record. — The judge
must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under
oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted.
More simply stated, the requisites of a valid search warrant are: (1)
probable cause is present; (2) such presence is determined personally
by the judge; (3) the complainant and the witnesses he or she may
produce are personally examined by the judge, in writing and under
oath or affirmation; (4) the applicant and the witnesses testify on facts
personally known to them; and (5) the warrant specifically describes
the person and place to be searched and the things to be seized. 19
On the first issue, the failure to correctly state in the search and seizure
warrant the first name of petitioner, which is "Bernard" and not
"Romulo" or "Rumolo", does not invalidate the warrant because the
additional description "alias Lolong Nala who is said to be residing at
Purok 4, Poblacion, Kitaotao, Bukidnon" sufficiently enabled the police
officers to locate and identify the petitioner. What is prohibited is a
warrant against an unnamed party, and not one which, as in the instant
case, contains a descriptio personae that will enable the officer to Bacolod appeared during the hearing and was extensively
identify the accused without difficulty. 20 examined by the judge. But his testimony showed that he did
not have personal knowledge that the petitioners, in violation
The "probable cause" for a valid search warrant has been defined as of PD 1866, were not licensed to possess firearms,
such facts and circumstances which would lead a reasonably discreet ammunitions or explosives. . .
and prudent man to believe that an offense has been committed, and
xxx xxx xxx
that objects sought in connection with the offense are in the place
sought to be searched. This probable cause must be shown to be within When questioned by the judge, Bacolod stated merely that he
the personal knowledge of the complainant or the witnesses he may believed that the PICOP security guards had no license to
produce and not based on mere hearsay.21 In determining its possess the subject firearms. This, however, does not meet
existence, the examining magistrate must make a probing and the requirement that a witness must testify on his personal
exhaustive, not merely routine or pro forma examination of the knowledge, not belief.
applicant and the witnesses. 22 Probable cause must be shown by the
best evidence that could be obtained under the circumstances. On the xxx xxx xxx
part of the applicant and witnesses, the introduction of such evidence is
necessary especially where the issue is the existence of a negative Moreover, Bacolod failed to affirm that none of the firearms
seen inside the PICOP compound was licensed. Bacolod
ingredient of the offense charged, e.g., the absence of a license
merely declared that the security agency and its guards were
required by law. 23 On the other hand, the judge must not simply
not licensed. He also said that, some of the firearms were
rehash the contents of the affidavits but must make his own extensive owned by PICOP. Yet, he made no statement before the trial
inquiry on the existence of such license, as well as on whether the court that PICOP, aside from the security agency, had no
applicant and the witnesses have personal knowledge thereof. license to possess those firearms. Worse, the applicant and his
witnesses inexplicably failed to attach to the application a
In Paper Industries Corporation of the Philippines (PICOP) v. copy of the aforementioned "no license" certification from the
Asuncion, 24 we declared as void the search warrant issued by the trial Firearms and Explosives Office (FEO) of the PNP, or to present
court in connection with the offense of illegal possession of firearms, it during the hearing. Such certification could have been easily
ammunitions and explosives, on the ground, inter alia, of failure to obtained, considering that the FEO was located in Camp
prove the requisite probable cause. The applicant and the witness Crame where the unit of Bacolod was also based. . . . 25
presented for the issuance of the warrant were found to be without
personal knowledge of the lack of license to possess firearms of the
management of PICOP and its security agency. They likewise did not
In the case at bar, the search and seizure warrant was issued in
testify as to the absence of license and failed to attach to the
connection with the offense of illegal possession of firearms, the
application a "no license certification" from the Firearms and Explosives
elements of which are — (1) the existence of the subject firearm; and
Office of the Philippine National Police. Thus —
(2) the fact that the accused who owned or possessed it does not have
98
the license or permit to possess the same. 26 Probable cause as applied
to illegal possession of firearms would therefore be such facts and
circumstances which would lead a reasonably discreet and prudent man
to believe that a person is in possession of a firearm and that he does
not have the license or permit to possess the same. Nowhere, however,
in the affidavit and testimony of witness Ruel Nalagon nor in PO3
Macrino L. Alcoser's application for the issuance of a search warrant
was it mentioned that petitioner had no license to possess a firearm.
While Alcoser testified before the respondent judge that the firearms in
the possession of petitioner are not licensed, this does not qualify
as "personal knowledge" but only "personal belief" because neither he
nor Nalagon verified, much more secured, a certification from the
appropriate government agency that petitioner was not licensed to
possess a firearm. This could have been the best evidence obtainable
to prove that petitioner had no license to possess firearms and
ammunitions, but the police officers failed to present the same.
Regrettably, even the examination conducted by the respondent judge
on Nalagon and Alcoser fell short of the required probing and
exhaustive inquiry for the determination of the existence of probable
cause. Thus —
COURT: [To witness Ruel Nalagon]
QI am showing you this document/sworn statement of Ruel
Nala[gon] given to PO3 Rodrigo Delfin, Investigator,
SCOT/PDEU Bukidnon Police Provincial Office, Camp
Ramon Onahon, Malaybalay City on or about 12:30 in
the afternoon of June 25, 2001, in the presence of PO3
Macrino Alcoser, Operative of Special Case Operation
Team. Are you the same Ruel Nalagon who has given a
statement before the above-named police officer?
AYes, Sir.
99
QYou have given a statement before the above-named police
officer or Investigator that you have personal
knowledge that a certain Romulo Nala in Purok 4,
Poblacion, Kitaotao, Bukidnon has in his possession a .
22 magnum pistol and 9MM pistol[?] Why and how do
you know that he has in his possession such pistols?
ABecause I personally saw and witnessed him bringing or
carrying said pistols.
QWhere did you see him bringing or carrying said pistols?
AI saw him personally in the public market of Kitaotao,
Bukidnon. I also witnessed him firing said pistol
especially when he is drunk.
QHow often did you see him carrying and firing said pistols?
AMany times.
QDo you know Romulo Nala? Are you friends with said
person?
AYes, sir because we are neighbors in Purok 4, Poblacion,
Kitaotao, Bukidnon.
QThis Romulo Nala, is he bringing these two (2) pistols at the
same time?
ANo sir, he is bringing often times the .22 magnum and I saw
him only twice bringing 9MM pistol.
QDo you have something more to add or say in this
investigation?
ANone as of this moment.
That is all. 27
COURT:
Next witness [PO3 Macrino L. Alcoser]
xxx xxx xxx
QRegarding this application filed by your office, what is your
basis in arriving into a conclusion that this certain
Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon
has in his possession illegal firearms?
ABased on the report of our reliable asset, a civilian agent
who was able to personally witness . . . this Mr. Romulo
Nala who has in his possession one (1) .22 magnum
and one (1) 9MM pistols which are unlicensed.
QWhat action [was] commenced by your office if any as to the
report made by your asset regarding the alleged
possession of Mr. Romulo Nala of unlicensed firearms?
AOur officer through authorized personnel, conducted
surveillance operation on the spot, headed by this
affiant.
QWhat was the result of the surveillance conducted by your
office?
AThe result turned out to be positive and we have [concrete]
evidence that indeed this Romulo Nala is engaged with
the above illegal act.
QAre there more information you wish to inform this Court.
ANone, as of the moment.
100
QDo you affirm . . . the truthfulness of the above statement
made by you and [will you] voluntarily sign the same?
AYes, Sir.
That is all. 28
It did not even occur to the examining judge to clarify how did the
police officers conduct an "on the spot" surveillance on June 25, 2001
on a 2-hour interval between 12:30 p.m., 29 when Nalagon executed
the affidavit, and 2:30 p.m., 30 when PO3 Macrino L. Alcoser testified
before the respondent judge that they "conducted surveillance
operation on the spot" right after Nalagon executed his affidavit. Even if
we apply the presumption of regularity in the performance of duty, the
"on the spot" surveillance claimed by Alcoser contradicts his statement
in the application for the issuance of warrant that he "conducted long
range surveillance" of petitioner. At any rate, regardless of the nature
of the surveillance and verification of the information carried out by the
police officers, the fact remains that both the applicant, PO3 Macrino L.
Alcoser, and his witness Ruel Nalagon did not have personal knowledge
of petitioner's lack of license to possess firearms, ammunitions and
explosive; and did not adduce the evidence required to prove the
existence of probable cause that petitioner had no license to possess a
firearm. Hence, the search and seizure warrant issued on the basis of
the evidence presented is void.
Can petitioner be charged with illegal possession of firearms and
explosive allegedly seized from his house? Petitioner contends that said
articles are inadmissible as evidence against him because they were not
the same items specifically listed in the warrant. The Office of the
Provincial Prosecutor, on the other hand, claims that petitioner should
be held liable because the items seized bear a direct relation to the
offense of illegal possession of firearms. These arguments, however,
become immaterial in view of the nullity of the search warrant which
made possible the seizure of the questioned articles.
The settled rule is that where entry into the premises to be searched
was gained by virtue of a void search warrant, prohibited articles seized
in the course of the search are inadmissible against the accused.
In Roan v. Gonzales, 31 the prosecution sought to charge the accused
with illegal possession of firearms on the basis of the items seized in a
search through a warrant which the Court declared as void for lack of
probable cause. In ruling against the admissibility of the items seized,
the Court said —
Prohibited articles may be seized but only as long as the
search is valid. In this case, it was not because: 1) there was
no valid search warrant; and 2) absent such a warrant, the
right thereto was not validly waived by the petitioner. In
short, the military officers who entered the petitioner's
premises had no right to be there and therefore had no right
either to seize the pistol and bullets." 32
Conformably, the articles allegedly seized in the house of petitioner
cannot be used as evidence against him because access therein was
gained by the police officer using a void search and seizure warrant. It
is as if they entered petitioner's house without a warrant, making their
entry therein illegal, and the items seized, inadmissible.
Moreover, it does not follow that because an offense is malum
prohibitum, the subject thereof is necessarily illegal per se. Motive is
immaterial in mala prohibita, but the subjects of this kind of offense
may not be summarily seized simply because they are prohibited. A
warrant is still necessary, 33 because possession of any firearm
becomes unlawful only if the required permit or license therefor is not
first obtained. 34
101
So also, admissibility of the items seized cannot be justified under the
plain view doctrine. It is true that, as an exception, the police officer
may seize without warrant illegally possessed firearm, or any
contraband for that matter, inadvertently found in plain view. However,
said officer must have a prior right to be in the position to have that
view of the objects to be seized. The "plain view" doctrine applies when
the following requisites concur: (a) the law enforcement officer in
search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of
the evidence in plain view is inadvertent; (c) it is immediately apparent
to the officer that the item he observes may be evidence of a crime,
contraband or otherwise subject to seizure. The law enforcement
officer must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area. In the course of
such lawful intrusion, he came inadvertently across a piece of evidence
incriminating the accused. The object must be open to eye and hand
and its discovery inadvertent. 35
No presumption of regularity may be invoked in aid of the process
when the officer undertakes to justify an encroachment of rights
secured by the Constitution. In this case, the firearms and explosive
were found at the rear portion of petitioner's house 36 but the records
do not show how exactly were these items discovered. Clearly,
therefore, the plain view doctrine finds no application here not only
because the police officers had no justification to search the house of
petitioner (their search warrant being void for lack of probable cause),
but also because said officers failed to discharge the burden of proving
that subject articles were inadvertently found in petitioner's house.
The issue of the reasonableness of the implementation of the search
and seizure warrant, i.e., whether the search was conducted in the
presence of witnesses and whether the air rifle which the trial court
ordered to be returned to petitioner was indeed among the items
seized during the search, are matters that would be best determined in
the pending administrative case for grave misconduct and irregularity in
the performance of duty against the police officers who conducted the
search.
Considering that the search and seizure warrant in this case was
procured in violation of the Constitution and the Rules of Court, all the
warrant. Search and Seizure Warrant No. 30-01 dated June 25, 2001 is
declared VOID and the articles seized by virtue thereof are declared
inadmissible in evidence. Pending resolution of Criminal Case Nos.
10943-2001-P and 10944-2001-P for illegal possession of firearms,
ammunitions and explosive against petitioner, the items (caliber .38
revolver with Serial Number 1125609 and 5 pieces live ammunitions;
fragmentation grenade; and .22 long barrel) subject thereof, must
remain in custodia legis. The four pieces of disposable lighter and
cellophane seized should be returned to petitioner. IACDaS

items seized in petitioner's house, being "fruits of the poisonous tree",

are "inadmissible for any purpose in any proceeding." The exclusion of SO ORDERED.
these unlawfully seized evidence is the only practical means of
enforcing the constitutional injunction against unreasonable searches Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.
and seizures. 37 Hence, the complaints filed against petitioner for illegal
possession of firearms and explosive based on illegally obtained
evidence have no more leg to stand on. 38 Pending resolution of said
cases, however, the articles seized are to remain in custodia legis. 39 THIRD DIVISION
Finally, the Court notes that among the items seized by the officers
[G.R. No. 164815. February 22, 2008.]
were "four pcs. of disposable lighter and unestimated numbers of
cellophane used for packing of shabu." These items are not
contraband per se, nor objects in connection with the offense of illegal SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE
possession of firearms for which the warrant was issued. Moreover, it is PEOPLE OF THE PHILIPPINES, respondent.
highly preposterous to assume that these items were used in
connection with offenses involving illegal drugs. Even granting that they
were, they would still be inadmissible against the petitioner for being DECISION
products of an illegal search. Hence, the subject articles should be
returned to petitioner. 40
REYES, R.T., J : p

WHEREFORE, in view of all the foregoing, the petition is GRANTED. The

October 18, 2001 and February 15, 2002 Orders of the Regional Trial THE law looks forward, never backward. Lex prospicit, non respicit. A
Court of Malaybalay City, Branch 10, are REVERSED and SET ASIDE new law has a prospective, not retroactive, effect. 1 However, penal
insofar as it denied petitioner's omnibus motion to quash the search laws that favor a guilty person, who is not a habitual criminal, shall be

102
given retroactive effect. 1-a These are the rule, the exception and
exception to the exception on effectivity of laws.
Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan.
Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay
pabor sa taong nagkasala na hindi pusakal na kriminal.
We apply the exception rather than the rule in this petition for review
on certiorari of the decision of the Court of Appeals (CA), affirming with
modification that of the Regional Trial Court (RTC) in Quezon City,
finding petitioner liable for illegal possession of a firearm.
Cdpr
The Facts
On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of
the Criminal Investigation Division, Central Police District Command,
received a dispatch order 2 from the desk officer. 3 The order directed
him and three (3) other policemen to serve a warrant of arrest 4 issued
by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso
in a case for kidnapping with ransom. 5
After a briefing, the team conducted the necessary surveillance on
petitioner, checking his hideouts in Cavite, Caloocan, and
Bulacan. 6 Eventually, the team proceeded to the Integrated National
Police (INP) Central Station at Culiat, Quezon City, where they saw
petitioner as he was about to board a tricycle. 7 SPO2 Disuanco and his
team approached petitioner. 8 They put him under arrest, informed him
of his constitutional rights, and bodily searched him. 9 Found tucked in
his waist 10 was a Charter Arms, bearing Serial Number 52315 11 with
five (5) live ammunition. 12
Petitioner was then brought to the police station for questioning. 13
103
A verification of the subject firearm at the Firearms and Explosives
Division at Camp Crame revealed that it was not issued to petitioner
but to a certain Raul Palencia Salvatierra of Sampaloc,
Manila. 14 Epifanio Deriquito, the records verifier, presented a
certification 15 to that effect signed by Edwin C. Roque, chief records
officer of the Firearms and Explosive Division. 16
Petitioner was then charged with illegal possession of firearm and
ammunition under Presidential Decree (P.D.) No. 1866, 17 as
amended. The Information read:
That on or about the 10th day of July, 1996, in Quezon City,
Philippines, the said accused without any authority of law, did
then and there willfully, unlawfully and knowingly have in
his/her possession and under his/her custody and control CaSAcH
One (1) cal. 38 "Charter Arms" revolver bearing Serial
No. 52315 with five (5) live ammo.
without first having secured the necessary license/permit
issued by the proper authorities.
CONTRARY TO LAW.
Quezon City, Philippines, July 15, 1996.
(Sgd.)
GLORIA VICTORIA C. YAP
Assistant City Prosecutor 18
With the assistance of his counsel de parte, Atty. Oscar Pagulayan,
petitioner pleaded not guilty when arraigned on October 9,
1996. 19 Trial on the merits ensued.
SPO2 Disuanco and Deriquito testified for the prosecution in the
manner stated above.
Upon the other hand, the defense version was supplied by the
combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3
Agustin R. Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in the
boarding house of his children located at Sagana
Homes, Barangay New Era, Quezon City. 20 He was roused from his
slumber when four (4) heavily armed men in civilian clothes bolted the
room. 21 They trained their guns at him 22 and pulled him out of the
room. They then tied his hands and placed him near the faucet. 23 The
raiding team went back inside and searched and ransacked the
room. 24 SPO2 Disuanco stood guard outside with him. 25 Moments
later, an operative came out of the room and exclaimed, "Hoy, may
nakuha akong baril sa loob!" 26
Petitioner was told by SPO2 Disuanco that "we are authorized to shoot
you because there's a shoot to kill order against you, so if you are
planning do so something, do it right now." 27 He was also told that
there was a standing warrant for his arrest. 28 However, he was not
shown any proof when he asked for it. 29 Neither was the raiding
group armed with a valid search warrant. 30
According to petitioner, the search done in the boarding house was
illegal. The gun seized from him was duly licensed and covered by
necessary permits. He was, however, unable to present the
documentation relative to the firearm because it was confiscated by the
police. Petitioner further lamented that when he was incarcerated, he
was not allowed to engage the services of a counsel. Neither was he
allowed to see or talk to his family. 31
AEITDH
104
Petitioner contended that the police had an axe to grind against him.
While still with the Narcotics Command, he turned down a request of
Col. Romulo Sales to white-wash a drug-related investigation involving
friends of the said police officer. Col. Sales was likewise subject of a
complaint filed with the Ombudsman by his wife. Col. Sales was later
on appointed as the head of the unit that conducted the search in his
boarding house. 32
SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to
petitioner a Memorandum Receipt dated July 1, 1993 33 covering the
subject firearm and its ammunition. This was upon the verbal
instruction of Col. Angelito Moreno. SPO3 Timbol identified his
signature 34 on the said receipt. 35
Adrian Yuson, an occupant of the room adjacent to where petitioner
was arrested, testified that on July 10, 1996, two (2) policemen
suddenly entered his room as he was preparing for school. 36 They
grabbed his shoulder and led him out. 37 During all those times, a gun
was poked at him. 38 He was asked where petitioner was staying.
Fearing for his life, he pointed to petitioner's room. 39
Four (4) policemen then entered the room. 40 He witnessed how they
pointed a gun at petitioner, who was clad only in his underwear. 41 He
also witnessed how they forcibly brought petitioner out of his
room. 42 While a policeman remained near the faucet to guard
petitioner, three (3) others went back inside the room. 43 They began
searching the whole place. They forcibly opened his locker, 44 which
yielded the subject firearm. 45
RTC and CA Dispositions
On May 6, 1998, the trial court found petitioner guilty as charged,
disposing as follows:
 WHEREFORE, the Court hereby finds the accused guilty
beyond reasonable doubt of Violation of Section 1 of
Presidential Decree No. 1866 as amended by Republic Act No.
8294 and hereby sentences him to suffer the penalty
of prision correccional in its maximum period or from 4 years,
2 months and 1 day as minimum to 6 years as maximum and
to pay the fine in the amount of Fifteen Thousand Pesos
(P15,000.00). ICAcTa
The gun subject of this case is hereby ordered confiscated in
favor of the government. Let the same be put in trust in the
hands of the Chief of the PNP.
SO ORDERED. 46
Petitioner moved to reconsider 47 but his motion was denied on August
27, 1998. 48 He appealed to the CA.
On May 4, 2004, the appellate court affirmed with modification the RTC
disposition. The fallo of the CA decision reads:
Verily, the penalty imposed by the trial court upon the
accused-appellant is modified to 4 years and 2 months as
minimum up to 6 years as maximum.
WHEREFORE, with the foregoing MODIFICATION as to the
penalty, the decision appealed from is hereby AFFIRMED in
all other respects.
SO ORDERED. 49
His motion for reconsideration 50 having been denied through a
Resolution dated August 3, 2004, 51 petitioner resorted to the present
petition under Rule 45.
105
Issues
Petitioner raises the following issues for Our consideration:
I.THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF LAW IN AFFIRMING THE
CONVICTION OF PETITIONERDESPITE THE ABSENCE
OF PROOF BEYOND REASONABLE DOUBT.
II.THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING
THE LEGALITY OF THE SEARCH AND THE VALIDITY
AND ADMISSIBILITY OF THE EVIDENCE OBTAINED
THEREFROM DESPITE THE OVERWHELMING PROOF
THAT THE SAME IS THE FRUIT OF THE POISONOUS
TREE. cCAIaD
III.THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE
REGULARITY AND VALIDITY SURROUNDING THE
ISSUANCE OF THE MEMORANDUM RECEIPTS (SIC) IN
FAVOR OF PETITIONER WHICH PROVES HIS
INNOCENCE OF THE CRIME
CHARGE (SIC). 52 (Underscoring supplied)
Our Ruling
In illegal possession of firearm and ammunition, the prosecution has
the burden of proving the twin elements of (1) the existence of the
subject firearm and ammunition, and (2) the fact that the accused who
possessed or owned the same does not have the corresponding license
for it. 53
The prosecution was able to discharge its burden.
The existence of the subject firearm and its ammunition was
established through the testimony of SPO2 Disuanco. 54 Defense
witness Yuson also identified the firearm. 55 Its existence was likewise
admitted by no less than petitioner himself. 56
As for petitioner's lack of authority to possess the firearm, Deriquito
testified that a verification of the Charter Arms Caliber .38 bearing
Serial No. 52315 with the Firearms and Explosives Division at Camp
Crame revealed that the seized pistol was not issued to petitioner. It
was registered in the name of a certain Raul Palencia Salvatierra of
Sampaloc, Manila. 57 As proof, Deriquito presented a certification
signed by Roque, the chief records officer of the same office. 58
The Court on several occasions ruled that either the testimony of a
representative of, or a certification from, the Philippine National Police
(PNP) Firearms and Explosive Office attesting that a person is not a
licensee of any firearm would suffice to prove beyond reasonable doubt
the second element of possession of illegal firearms. 59 The
prosecution more than complied when it presented both. DTEAHI
The certification is outside the scope
of the hearsay rule.
The general rule is that a witness can testify only to those facts which
he knows of his personal knowledge; that is, which are derived from his
own perception. 60 Otherwise, the testimony is objectionable for being
hearsay. 61
On this score, the certification from the Firearms and Explosives
Division is an exception to the hearsay rule by virtue of Rule 130,
Section 44 of the Rules of Court which provides:
106
Sec. 44.Entries in official records. — Entries in official records
made in the performance of his official duty by a public officer
of the Philippines, or by a person in the performance of a duty
specifically enjoined by law, are prima facie evidence of the
facts therein stated.
It may be true that the contents of said certification are only prima
facie evidence of the facts stated there. However, the failure of
petitioner to present controverting evidence makes the presumption
unrebutted. Thus, the presumption stands.
Petitioner, however, raises several points which he says entitles him to
no less than an acquittal.
The assessment of credibility of
witnesses lies with the trial court.
First, petitioner says that the seizure of the subject firearm was invalid.
The search was conducted after his arrest and after he was taken out
of the room he was occupying. 62
This contention deserves scant consideration.
Petitioner's version of the manner and place of his arrest goes into the
factual findings made by the trial court and its calibration of the
credibility of witnesses. However, as aptly put by Justice Ynares-
Santiago in People v. Rivera: 63
. . . the manner of assigning values to declarations of
witnesses on the witness stand is best and most competently
performed by the trial judge who had the unmatched
opportunity to observe the witnesses and assess their
credibility by the various indicia available but not reflected on
record. The demeanor of the person on the stand can draw
the line between fact and fancy or evince if the witness is
 telling the truth or lying through his teeth. We have
consistently ruled that when the question arises as to which of
the conflicting versions of the prosecution and the defense is
worthy of belief, the assessment of the trial courts are
generally viewed as correct and entitled to great weight.
Furthermore, in an appeal, where the culpability or innocence
of the accused depends on the issue of credibility of witnesses
and the veracity of their testimonies, findings of the trial court
are given the highest degree of respect if not
finality. 64 (Underscoring supplied) caIACE
The trial court found the prosecution version worthy of credence and
belief. We find no compelling reason not to accept its observation on
this score.
Worth noting is the fact that petitioner is a ranking police officer who
not only claims to be highly decorated, 65 but have effected a number
of successful arrests 66 as well. Common sense would dictate that he
must necessarily be authorized to carry a gun. We thus agree with the
Office of the Solicitor General that framing up petitioner would have
been a very risky proposition. Had the arresting officers really intended
to cause the damnation of petitioner by framing him up, they could
have easily "planted" a more incriminating evidence rather than a gun.
That would have made their nefarious scheme easier, assuming that
there indeed was one.
The pieces of evidence show that
petitioner is not legally authorized to
possess the subject firearm and its
five (5) ammunition.
Second, petitioner insists that he is legally authorized to possess the
subject firearm and its ammunition on the basis of the Memorandum
Receipt issued to him by the PNP Narcotics Command. 67
107
Although petitioner is correct in his submission that public officers like
policemen are accorded presumption of regularity in the performance of
their official duties, 68 it is only a presumption; it may be overthrown
by evidence to the contrary. The prosecution was able to rebut the
presumption when it proved that the issuance to petitioner of the
Memorandum Receipt was anything but regular.
IDSETA
SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to
petitioner based on the verbal instruction of his immediate superior,
Col. Moreno. 69However, a reading of Timbol's testimony on cross-
examination 70 would reveal that there was an unusual facility by
which said receipt was issued to petitioner. Its issuance utterly lacked
the usual necessary bureaucratic constraints. Clearly, it was issued to
petitioner under questionable circumstances.
Failure to offer an unlicensed
firearm as evidence is not fatal
provided there is competent
testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition
should have been excluded as evidence because they were not formally
offered by the prosecution 71 in violation of Section 34, Rule 132 of the
Rules of Court. 72
We note that petitioner contradicted himself when he argued for the
validity of the Memorandum Receipt and, at the same time, for the
exclusion in evidence of the subject firearm and its ammunition.
Petitioner's act may result to an absurd situation where the
Memorandum Receipt is declared valid, while the subject firearm and
its ammunition which are supposedly covered by the Memorandum
Receipt are excluded as evidence. That would have made the
Memorandum Receipt useless.
In any case, petitioner's contention has no leg to stand on.
Contrary to petitioner's claim, the subject firearm 73 and its five (5) live
ammunition 74 were offered in evidence by the prosecution. 75 Even
assumingarguendo that they were not offered, petitioner's stance must
still fail. The existence of an unlicensed firearm may be established by
testimony, even without its presentation at trial. In People v.
Orehuela, 76 the non-presentation of the pistol did not prevent the
conviction of the accused. DHcEAa
The doctrine was affirmed in the recent case of People v. Malinao. 77
As previously stated, the existence of the subject firearm and its five
(5) live ammunition were established through the testimony of SPO2
Disuanco. 78Yuson also identified said firearm. 79 Petitioner even
admitted its existence. 80
We hasten to add that there may also be conviction where an
unlicensed firearm is presented during trial but through inadvertence,
negligence, or fortuitous event (for example, if it is lost), it is not
offered in evidence, as long as there is competent testimony as to its
existence.
Penal and civil liabilities
Petitioner was charged with the crime of illegal possession of firearms
and ammunition under the first paragraph of Section 1 of P.D. No.
1866, as amended. It provides that "[t]he penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any firearm, part of firearm, ammunition or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition." CSTEHI
108
P.D. No. 1866, as amended, was the governing law at the time
petitioner committed the offense on July 10, 1996. However, R.A. No.
8294 amended P.D. No. 1866 on July 6, 1997, 81 during the pendency
of the case with the trial court. The present law now states:
SECTION 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — The penalty of prision
correccional in its maximum period and a fine of not less than
Fifteen Thousand Pesos (P15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low-powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower,
part of firearm, ammunition, or machinery, tool or instrument
used or intended to be used in the manufacture of any firearm
or ammunition: Provided, That no other crime was committed.
(Underscoring supplied)
As a general rule, penal laws should not have retroactive application,
lest they acquire the character of an ex post facto law. 82 An exception
to this rule, however, is when the law is advantageous to the accused.
According to Mr. Chief Justice Araullo, this is "not as a right" of the
offender, "but founded on the very principles on which the right of the
State to punish and the commination * of the penalty are based, and
regards it not as an exception based on political considerations, but as
a rule founded on principles of strict justice." 83
Although an additional fine of P15,000.00 is imposed by R.A. No. 8294,
the same is still advantageous to the accused, considering that the
imprisonment islowered to prision correccional in its maximum
period 84 from reclusion temporal in its maximum period to reclusion
perpetua 85 under P.D. No. 1866. EcDATH
Applying the Indeterminate Sentence Law, prision
correccional maximum which ranges from four (4) years, two (2)
months and one (1) day to six (6) years, is the prescribed penalty and
will form the maximum term of the indeterminate sentence. The
minimum term shall be one degree lower, which isprision
correccional in its medium period (two [2] years, four [4] months and
one [1] day to four [4] years and two [2] months). 86 Hence, the
penalty imposed by the CA is correct. The penalty of four (4) years and
two (2) months of prision correccional medium, as minimum term, to
six (6) years ofprision correccional maximum, as maximum term, is in
consonance with the Court's ruling in Gonzales v. Court of
Appeals 87 and Barredo v. Vinarao. 88

As to the subject firearm and its five (5) live ammunition, their proper
disposition should be made under Article 45 of the Revised Penal
Code 89 which provides, among others, that the proceeds and
instruments or tools of the crime shall be confiscated and forfeited in
favor of the government.

WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is

AFFIRMED in full. CDTSEI

SO ORDERED.

Ynares-Santiago, Austria-Martinez, Chico-Nazario and Nachura,

JJ., concur.

109