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."

THIRD DIVISION
[G.R. Nos. 136149-51. September 19, 2000.]

SYLLABUS

PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN

LADJAALAM y MIHAJIL alias "WARPAN", appellant.

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.

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.

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.

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
commission of any crime, there can be no separate offense of simple illegal
possession of firearms. Since direct assault with multiple 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

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
1

for direct assault, which constitute the "most serious crime," should be imposed and
applied in its maximum period.

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.

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.

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.

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.

DECISION

PANGANIBAN, J p:
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 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

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
2

of the separate offense of illegal possession of firearms. Neither can such unlawful act
be considered to have aggravated the direct assault. CTacSE

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 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:

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 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

"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 coaccused 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 form." 5

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
3

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

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)

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.

Hence, this appeal. 12

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:

The Facts
Prosecution's Version

"WHEREFORE, the Court finds accused WALPAN LADJAALAM

y MIHAJIL a.k.a. 'WARPAN'

In its Brief, 13 the Office of the Solicitor General presents the facts in this wise:

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;

"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 Pea 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).

"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.

"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
4

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

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).
"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).

"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela

Pea 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. 5051).

"After Lacastesantos and Mirasol entered appellant's house, Rivera,

Dela Pea, 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 Pea 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'.

"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).

"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).

"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

"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'
5

(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).

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).

"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 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

"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
Pea prepared a Receipt for Property Seized' (Exh. P & 3) listing the
properties seized during the search. The receipt was signed by Dela
Pea 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).

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

"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
6

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 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. 1524, id.)

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. 2426, 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

"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
7

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 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.).

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).

"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).

"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

"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).

"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

The Trial Court's Ruling

8

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:

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

"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

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

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.

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 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

Prescinding from this point, the court a quo validated the arrest of appellant,
reasoning thus:

The trial court also convicted the accused of the crime of maintaining a drug den. It
reasoned as follows:

"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

"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
9

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

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 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
In his Brief, appellant submits the following Assignment of Errors:
I

In conclusion, the trial court explained appellant's liability in this manner:

"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.

". . . . 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[,]
10

II

discretion of the trial judge. 36 Here, there is no reason to disturb the exercise of that
discretion.37

"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

Second Issue:
Credibility of Prosecution Witnesses

III
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:

"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.

"PROSECUTOR NUVAL:

The Court's Ruling

Q:And, this trail is towards the front of the house of the accused?

The appeal has no merit.

A:Yes.

First Issue:

Q:And it's there where you were met by a volley of fire?

Denial of Request for Ocular Inspection

A:Yes, Your Honor.

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.

COURT:

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 recognized to be within the

A:More or less, five (5) meters.

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?

xxx xxx xxx

PROSECUTOR NUVAL:
11

Q:Now, you said you were able to enter the house after the gate was
opened by your colleague Felipe Gaganting . . . I will reform
that question.

A:Yes.

Q:Who opened the gate Mr. Witness?

A:While we were proceeding to the second floor, Walfan [sic]

Ladjaalam, noticed our presence and immediately went
inside the bedroom [o]n the second floor and he went
immediately and jumped from the window of his house . . .
leading to the roof of the neighbor's house.

Q:What happened when you were already on the second floor?

A:SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.

Q:And, at that time you were hiding at the concrete fence?

xxx xxx xxx

A:Yes.

COURT:

Q:Now, when this gate was opened, you said you went inside the
house, right?

Reform. That is leading

A:Yes.
Q:What happened when you entered and he jumped to the roofing of
the neighbor's house?

Q:What did you see inside the house?

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

the assistance of the members of the raiding team to arrest
Walfan Ladjaalam.

A:I, together with SPO1 Ricardo Lacastesantos, entered the main

door of the house of Walfran [sic] Ladjaalam at the ground
floor. We went inside the sala on the ground floor of his
house[;] I saw two old woman.

xxx xxx xxx

xxx xxx xxx
PROSECUTOR NUVAL:
PROSECUTOR NUVAL:
Q:Were you able to go down?
Q:Now, what did you do with these two old women?
A:Yes.
A:I did not mind those two old women because those two women
were sitting on the ground floor. I was concentrating on the
second floor because Ladjaalam was firing towards our group
so, I, together with Ricardo Lacastesantos, went upstairs to
the second floor of the house.

Q:What happened when you were there?

A:We immediately went out and I asked the assistance of the
members of the raiding team and the investigator of the unit
especially SPO1 Cesar Rabuya. I was able to manage to
arrest Walfan Ladjaalam." 42

Q:Were you able to go to the second floor of the house?

12

What happened thereafter was narrated by Senior Police Officer Ricardo

Lacastesantos, 43 as follows:

This is already marked as our Exhibit 'B-3' with magazine, one

magazine and seven round [ammunition].

"Q:What did you notice [o]n the second floor?

Q:After recovering this, what did you do with this firearm?

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.'

A:When I recovered it I removed the bullets inside the chamber[.] I

removed the magazine and I turned it over to the investigator.
Q:Where did you turn it over?

Q:Now, that rifle you said [was an] M14, where did you find this?
A:At the crime scene.
A:At the sala set.
Q:Now, that magazine, can you still identify this?
Q:This sala set where is this located?
A:Yes.
A:Located [on] the second floor of the house.
Q:Why?
Q:Is there a sala [o]n the second floor?
A:I put . . . markings.
A:Yes.
xxx xxx xxx
Q:Can you still identify that M14 rifle which you said you recovered
from the sale set?

COURT

A:Yes.

So, a[si]de from the magazine attached to the M14 rifle you found
six more magazines? DCAHcT

Q:Why can you identify that?

A:Yes, so, all in all six magazines, three empty M16 rifle magazines
and three M14.

A:The Serial No. of M14 is 1555225 and I marked it with my initial.

Q:Now, I have here M14 rifle[;] will you please tell us where is the
Serial No. of this?

Q:The M16 magazines [were] empty?

A:Empty.

A:1555225 and I put my initial, RJL.

Q:How about the M14?
FISCAL NUVAL:
A:Found with [ammunition].
13

xxx xxx xxx

Q:Can we conclude that he fired a gun?

Q:So, where are the three M16 magazines?

A:I cannot conclude that he fired a gun because there are so many
circumstances [why] a person [would be] positive on his
hands for gun powder nitrates.

A:In the corner.

Q:What did you do with [these] three magazines of M16?
A:I turned [them] over to the investigator.

Q:But, most likely, he fired a gun?

Q:Can you identify them?

A:Yes.
xxx xxx xxx

A:Yes, because of my initials[.]

Q:Where are your initials?

PROSECUTOR NUVAL:

A:On the magazines.

Q:What about, Madam Witness this Exhibit 'B-3', which is the M14
rifle. What did you do with this?

Q:RJL?
A:SPO3 Abu did the swabbing both in the chamber and the barrel
wherein I observed there [were] black and traces of brown
residue on the bolt, chamber and in the barrel.

A:RJL." 44
These were confirmed by the results of the paraffin tests conducted on 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 positive for gunpowder nitrate. Police
Inspector Mercedes Delfin-Diestro explained in open court:

Q:And, that indicates Madam Witness . . .?

A:It indicates that the gun was fired.
Q:Recently?

"Q:Okay. Now, what was the result of your examination, Madam

Witness?

A:Because of the traces of brown residue; it could be possible that

the gun was fired before the incident . . . .

A:The result of the examination [was] that both hands of the subject
person, ha[d] presence of gun powder nitrates.

COURT:
Q:What do you mean Madam Witness, what does that indicate?
Q:There is also black residue?
A:It indicates there is presence of powder nitrates.
A:Yes.
14

Q:What does it indicate?

Defense of Frame-up

A:It indicates that the firearm was recently fired.

From the convoluted arguments strewn before us by appellant, we 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 Zamboanga police force was out to get him at all
cost.

Q:And, where is this swab used at the time of the swabbing of this
Exhibit?

This Court has invariably held that the defense of frame-up is inherently weak, since
it is easy to fabricate, but terribly difficult to 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:

A:This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit 'B-3-A'.
COURT:
Q:The firing there indicates that the gun was recently fired, during
the incident?

"QNow, Mr. Witness, do you remember having executed an

Affidavit/ a Counter-Affidavit?

A:Yes.

AI could not remember.

Q:And also before the incident it was fired because of the brown
residue?

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.

A:Yes, Your Honor." 45 (emphasis supplied)

Duly proven from the foregoing were the two elements 46 of the crime of illegal
possession of firearms. Undoubtedly, the established fact that appellant had fired an
M-14 rifle upon the approaching police officers clearly showed the existence of the
firearm or weapon and his possession thereof. Sufficing to satisfy the second element
was the prosecution's Certification 47 stating that he had not filed any 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 be pointed out that his possession and use
of an M-14 rifle were obviously unauthorized because this weapon could not be
licensed in favor of, or carried by, a private individual. 49

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

Third Issue:
15

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 house of your neighbors [from] which
you said you heard gunshots?

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

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?

Direct
Attempted Homicide

Assault

with

Multiple

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

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?

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

AI was in the house near my house.

Illegal Possession of Firearms
QSo, your statement particularly paragraph 6 of your CounterAffidavit that you were at home in [your] house at Aplaya
Riohondo Bo. Campo Muslim, is . . . not correct?

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.

AYes, Sir. This is not correct." 54

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.

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.
16

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:

"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.

"SECTION 1.Section 1 of Presidential Decree No. 1866, as

amended, is hereby further amended to read as follows:

"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.

"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 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, 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

"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.

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
17

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.

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.

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.

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.

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.

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.

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."

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.

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."

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

18

suspected as the perpetrators of 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
Murder but convicted appellants for murder, frustrated murder and attempted murder.
Motion for reconsideration having been denied, appellants filed this appeal.
Meanwhile, PD 1866 was amended by RA 8294. It considered the use of an
unlicensed firearm merely as an aggravating circumstance and not a separate offense
when use in the commission of homicide or murder. aSCHIT

SECOND DIVISION
[G.R. No. 102706. January 25, 2000.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEON
LUMILAN, ANTONIO GARCIA and FRED ORBISO, accusedappellants.

Murder or homicide does not include or is necessarily included in qualified illegal

possession of firearms used in murder. The trial court can not validly convict an
accused for the former crime under an information charging the latter offense and
vice versa. Where a complaint or information charges two or more offenses and the
accused failed to quash the information he may be convicted of as many distinct
charges as are alleged in the information and proved during trial. Appellants were
acquitted.

The Solicitor General for plaintiff-appellee.

Benjamin V. Olalia for accused-appellants.
SYNOPSIS

SYLLABUS
Appellants pleaded not guilty to an information for Qualified Illegal Possession of
Firearms Used in Murder. It, however, described the crimes of illegal possession of
firearms, murder and frustrated/attempted murder. Simeon, a survivor of the assault,
identified appellants as the persons who entered the premises immediately after the
shooting on the night of October 12, 1987. He attributed the delay of 5 months in the
execution of his sworn statement for fear of reprisal from appellants. However, the
records 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 the authors of the shooting
incident. Benito testified that while drinking inside the house, with the light emitted
by the flames from the firearms, he saw appellants by the fence shoot at them.
Evidence 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 flashes from the exploding barrels of the guns
were not sufficient for anyone to identify assailants covered by the darkness of the
night. 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 based Lumilan's liability on
the fact that he saw him in the company of the Atty. Olalia and his men who were

1.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS (P.D. 1866, AS

AMENDED); VIOLATIONS THEREOF UNDER THE TAC-AN DOCTRINE (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
19

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.

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.

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 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

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.

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])

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 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

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,
20

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.

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
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.

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 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

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.

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

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
21

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.

three persons outside the fence of 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:

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

". . . 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. . . .

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
22

"In view of the eyewitness account of Pacano and Alonzo, the

defense of alibi interposed by the (sic) both accused can not hold
water.

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.

"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

SO ORDERED" 10

xxx xxx xxx." 9

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.

Accordingly, appellants were meted out the following penalties:

Appellants Leon Lumilan and Antonio Garcia raise the following errors:

"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 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

I
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.
23

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

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:

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
v. Jumamoy, 18 People
v. Tiongco,21 People
v. Quijada. 24

"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.

in People v. Tiozon, 16 People v. Caling, 17 People

v. Deunida, 19 People
v. De
Gracia, 20 People
v. Fernandez, 22 People
v. Somooc 23 and People

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. 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.

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

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,
24

subject provision is obviously meant to be the penalty for illegal

possession of firearm and not the penalty for homicide or murder. . .

two or three: Provided, however, That no other crime was committed

by the person arrested.

xxx xxx xxx

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.

Evidently, the majority did not . . . create two offenses by dividing a

single offense into two. Neither did it resort to the '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

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.

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 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.

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

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:
25

"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

No. Appellants waived their right to quash the Information, and they effectively
defended themselves against the charges for murder, frustrated murder and attempted
murder.

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.

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 [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.

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?

CONTRARY TO LAW."
26

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

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

Illegal Possession of Firearms

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 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.

"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"

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.

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."

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.

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.
27

Simeon Pacano testified, thus:

ARomeo Pacho was injured, sir. Francisco Macugay and the two
brothers of Policarpio Palomo, Mario Palomo and Oly
Estrada.

"QAnd while you and the persons you mentioned were drinking, do
you recall if there was anything unusual which happened?

xxx xxx xxx

AThere was, sir. That was the time when I heard a gun report.
QAnd while you were in that position as you have stated face
downward on the ground, do you know what later happened?

QAnd from what direction did the gun report emanate?

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.

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?

QWhat did that gunman whom you recognized do, if he did

anything?

AI know, sir, because my companions died during that incident.

AHe turned us around, sir, to see if we were already dead.

QWho of your companions died?

QAnd can you tell the Court who is the person you recognized?

AMeliton Asuncion, Modesto Roque, and Eliong dela Cruz. Three of

them, sir.

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?

QAbout you, did you suffer any injuries or not?

AYes, sir.

AHe is not in Court.

QWhat part of your body was hit?
QAnd after you recognized Fred Orbiso as you stated, what else
happened?

AMy left leg, sir. (Witness pointed to his left leg which was already
amputated).

AWhat I heard, sir, that other companion of the gunman said that
they are looking for Boy Estrada.

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?

xxx xxx xxx

28

QAnd you said that persons entered including the person you earlier
recognized. Did you come to know how many persons
entered?

AWhile we were drinking inside the house, we heard gun reports

firing at the door of the house of Poling.
xxx xxx xxx

AI remember, sir.
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?

QHow many of them?

AThree (3), sir.

AIt is possible, sir.

QNow, you recognized one of them as Fred Orbiso. About the other
persons, were you able to recognize them or not?

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.

AI also recognized them, sir.

QCan you tell the Court the name or the persons whom you
recognized other than Fred Orbiso?

QHow did you come to know that there were three (3) persons who
fired?

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).

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?

QAbout the third person?

AThe man seated beside Antonio Garcia, sir.

AYes, sir.
QWhat is his name?
QPlease name the persons?
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

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?

And Benito Alonzo corroborated him in this wise:

"QWhat was that unusual incident that happened?
29

AYes, sir.

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.

QPlease stand and point to the Court the persons of Leon Lumilan
and that of Antonio Garcia.

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

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

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

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 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

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.

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

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
30

considering that they were the only persons who went to their barangay in GayongGayong 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. cdll

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,

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 accusedappellants, 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

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:

SO ORDERED.

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:

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

CRIMINAL CASE NO. 96-149820

EN BANC

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 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.

[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.

CONTRARY TO LAW.
CRIMINAL CASE NO. 96-149821

DECISION
31

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).

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. 2991UDK.

CONTRARY TO LAW. CAcIES

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 court; and (b) lack of jurisdiction, as the issue
involved is a pure question of law cognizable by the Supreme Court.

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).

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.

Meanwhile, on June 6, 1997, Republic Act No. 8294 6 was approved into law.

The petition is partly meritorious.

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.

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

In its order dated July 15, 1999, 7 however, the trial court denied petitioner's motion,
saying:

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

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,
32

question of fact when the doubt or difference arises as to the truth or

the falsehood of the facts alleged. DAEICc

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.

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:

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. . . .

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.

xxx xxx xxx

We have made similar rulings in other cases, thus:

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

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

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.

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.

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 order denying his motion for reconsideration on July 20,
33

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:

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)

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)

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.

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:

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

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.

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
34

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 unlicensed firearm was not specifically alleged in the information, as
required by the Rules on Criminal Procedure. EaHDcS

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.

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.

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. . . .

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:

xxx xxx xxx

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)

. . . 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.
(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.

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 accusedappellant'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

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?
35

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

which had always leaned in favor of the accused. Under our system of government
where powers are allocated to the three (3) great branches, only the Legislature can
remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294.
As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner
of the separate crime of illegal possession of firearm despite the fact that, as
in Almeida, the unlicensed firearm was not actually "used". For sure, there is, in this
case, closer relation between possession of unlicensed firearm and violation of the
COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of
illegal possession of prohibited drugs inAlmeida.

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

WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is

hereby DISMISSED while the judgment of conviction in Criminal Case No. 96149821 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

. . . 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 done so in
this case.

SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna,
Tinga and Chico-Nazario, JJ., concur.

SECOND DIVISION

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 not written therein. While
we understand respondent People's contention that the "use" of the firearm seemed to
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 and it cannot supply the perceived deficiency in the final version
without contravening the most basic principles in the interpretation of penal laws

[G.R. No. 126048. September 29, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO2
RODEL SAMONTE, accused-appellant.
The Solicitor General for plaintiff-appellee.
36

Atty. Hermel R. Marantal for accused-appellant.

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

SYNOPSIS
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.

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.

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.

DECISION
SYLLABUS
BUENA, J p:

1.CRIMINAL LAW; MURDER; COMMITTED WITH THE USE OF

UNLICENSED
FIREARM;
CONSIDERED AS AN AGGRAVATING
CIRCUMSTANCE WITH THE ENACTMENT OF REPUBLIC ACT 8294.
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,

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:
37

"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.

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 accusedappellant. 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.

"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

"CONTRARY TO LAW." 6
Upon arraignment on December 9, 1993, accused-appellant, assisted by Atty. Alfredo
Kallos, entered a plea of not guilty. 7

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

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:

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

"IN
CONVICTING
THE
ACCUSED-APPELLANT
OF
AGGRAVATED OR QUALIFIED ILLEGAL POSSESSION OF
FIREARMS, THE TRIAL COURT INTERFERED WITH BRANCH 9
38

OF THE SAME REGIONAL TRIAL COURT WHICH ACQUITTED

HIM OF THE CRIME OF HOMICIDE.

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.

"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

"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

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 accusedappellant 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.

"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 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.

"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.

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
39

"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)

'The President. With the permission of the two gentlemen,

Senator Santiago is recognized. DSATCI
'Senator Santiago. Will the principal author allow me as coauthor 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?

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 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.

'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.

'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 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.'

'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 coauthor.

xxx xxx xxx

'Senator Santiago. Mr. President.

'The presiding Officer [Sen. Flavier.] So, do I take it that the

amendment is accepted?
40

'Senator Revilla. Yes, it is accepted, Mr. President.

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

'The Presiding Officer [Sen. Flavier.] Thank you. Is there any

objection to the amendment? [Silence] There being none, the
amendment is approved.'

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. 17

"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:

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 a paltikrevolver is of no consequence. InPeople vs. De Vera, Sr. 18 where
the subject 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.

'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.'

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.

"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."

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.

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.
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

SECOND DIVISION
[G.R. No. 131144. October 18, 2000.]
41

NOEL
ADVINCULA, petitioner, vs. HON.
COURT
OF
APPEALS, HON. SOLICITOR GENERAL, HON. EDELWINA
PASTORAL, Presiding Judge, RTC-Br. 91, Bacoor, Cavite,
HON. HERMINIO P. GERVACIO, Provincial Prosecutor of
Cavite,
AMANDO
OCAMPO
and
ISAGANI
OCAMPO, respondents.

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.
SYLLABUS
1.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; ELEMENTS.
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.

Alejandro and Anarna Law Office for petitioner.

The Solicitor General for public respondent.

2.ID.; ID.; ID.; WITHOUT PERMIT TO CARRY, FIREARM CANNOT BE

CARRIED OUTSIDE RESIDENCE. However, it should be noted that in People v.
Ramos, citing People v. Gy Gesiong, this Court ruled: ". . . Even if he has the license,
he cannot carry the firearm outside his residence without legal authority therefor."

Ocampo Dizon & Domingo and Ramon Esguerra for private respondents.
SYNOPSIS

3.REMEDIAL
LAW;
CRIMINAL
PROCEDURE;
PRELIMINARY
INVESTIGATION; 15 DAY PERIOD TO APPEAL RESOLUTION OF
PROVINCIAL PROSECUTOR DISMISSING CRIMINAL COMPLAINT;
SECRETARY OF JUSTICE GIVEN WIDE DISCRETION WHEN ACTING UPON
DELAYED APPEALS PROVIDED GOOD GROUNDS EXIST TO DO SO UNDER
DOJ CIRCULAR NO. 7. 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.

Petitioner was the complainant in a charge of Illegal Possession of Firearms filed

before the Provincial Prosecutor of Cavite. For alleged lack of evidence, the
complaint was dismissed on May 26, 1994. Petitioner appealed the dismissal, and on
June 6, 1996, the Secretary of Justice ordered the Provincial Prosecutor to file the
corresponding charges of Illegal Possession of Firearms against private respondents.
This prompted respondents to file a Petition forCertiorari and Prohibition with the
Court of Appeals. The appellate court granted private respondents' petition and set
aside the disputed resolution of the Secretary of Justice. Hence, this petition.
The Secretary of Justice, in his contested Resolution, made findings of fact supported
by evidence which cannot be disturbed by this Court. The rulings relied upon by the
Court of Appeals and private respondents deal with the quantum of evidence needed
to convict a person for Illegal Possession of Firearms. The 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. Probable cause, for purposes of filing a
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

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
42

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.

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.

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

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.

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.

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

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.

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
43

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

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

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.

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

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

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.

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 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

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
44

and use thereof have been duly established by the testimony of

several witnesses. (People v. Jumanoy, 221 SCRA 333). 4

On the basis of the evidence on record, the Court of Appeals granted private
respondents' petition and set aside the disputed Resolution of the Secretary of Justice.
Hence, this petition.

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.

The main issue to be resolved is whether the Court of Appeals erred in granting
private respondents' petition and in setting aside the Resolution of the Secretary of
Justice. In determining this question, we need to address these questions: (a) Was
there sufficient evidence to warrant the filing of charges for Illegal Possession of
Firearms against private respondents; and (b) May the Court of Appeals set aside the
Decision of the Secretary of Justice when the corresponding Information has already
been filed with the trial court?

In giving due course to private respondents' petition, the Court of Appeals agreed
with the position of the Solicitor General

The Court of Appeals found that no charges for Illegal Possession of Firearms could
be filed against private respondents for two (2) reasons: First, as to private respondent
Amando Ocampo, he had the requisite license to possess the firearm, which was
established by sufficient evidence on record. Second, as to private respondent Isagani
Ocampo, there was no convincing evidence that he was in possession of a gun during
the incident involving him, his father and petitioner, except for the eyewitness
account of petitioner and one Federico San Miguel.

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 possess or carry guns. Given
the mutual recriminations which were generated by the incident, it
would have been facile for any of the protagonists to concoct a
charge of illegal possession of firearms against their adversary . . . In
crimes involving illegal possession of firearms, the prosecution has
the burden of proving the elements thereof, viz.: The existence of the
subject firearm and the fact that the accused who owned or possessed
the firearm does not have the corresponding license or permit to
possess the same. Negative allegation of the lack of a license is an
essential ingredient of the offense which the prosecution must prove.
How could the people prove beyond reasonable doubt that
petitioners committed the offense of illegal possession of firearms
when the firearms are not even identified with certainty . . . 5

Indeed, 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. 6 However, it should be noted that in People v.
Ramos, 7 citing People v. Gy Gesiong, 8 this Court ruled: " . . . Even if he has the
license, he cannot carry the firearm outside his residence without legal authority
therefor."
This ruling is obviously a reiteration of the last paragraph of Sec. 1 of PD 1866
Sec. 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 mayor shall be imposed upon any person
who shall carry any licensed firearm outside his residence without
legal authority therefor.
The Secretary of Justice, in his contested Resolution, thus made the following
findings: Even if Amando had the requisite license, there was no proof that he had the
45

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. These are findings of fact supported by evidence which cannot be
disturbed by this Court.

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

Besides, the rulings relied upon by the Court of Appeals and private respondents deal
with the quantum of evidence needed to convict persons for Illegal Possession of
Firearms. 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 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 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

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.

46

respondents' Petition for Certiorari and, worse, setting aside the Resolution of the
Secretary of Justice.

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.

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.

Hence, this automatic review.

SO ORDERED.

Among others, accused-appellants assailed the finding of the trial court that the
evidence presented by the prosecution was sufficient to warrant their conviction.

Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

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.

Buena, J., took no part, concurred in CA decision.

EN BANC
[G.R. Nos. 133489 & 143970. January 15, 2002.]

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.

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.
The Solicitor General for plaintiff-appellee.
Anthony L. Po for accused G.B. Valler.
Public Attorney's Office for accused-appellants.
SYNOPSIS

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

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
47

another crime kidnapping for ransom which they were perpetrating at the same
time.

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

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.

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.

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

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 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
48

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.

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 these accused was indispensable to the end proposed. Our opinion is that these
defendants are responsible as accomplices only.

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.

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.

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

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
49

reasonable doubt the cooperation of all accused-appellants in the kidnapping for

ransom of Atty. Tioleco.

incomplete and inaccurate involving as they do mere passive mention of details

anchored entirely on the investigator's questions.

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.

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.

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 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.

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

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
50

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 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.

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.

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.

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

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
51

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.

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.
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

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 accusedappellant 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

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

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

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

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
52

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

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

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

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

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

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

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
53

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 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

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
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.

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

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 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.

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.

Second. 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. 93 Bearing this elementary principle in mind, we find enough evidence to
54

prove beyond reasonable doubt the cooperation of all accused-appellants in the

kidnapping for ransom of Atty. Tioleco.

Q:What kind of vehicle was that?

A:Jimmy's car, a Toyota, somewhat reddish in color . . . .

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.

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?

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

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

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).

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 accusedappellant 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.

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.
55

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
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: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:So when you were inside the car, you had difficulty seeing things
inside the car because you were not wearing your eyeglasses?

Q:Now, could you please describe to this honorable court the person
who was seated on the driver's seat?

A:No, sir, that is not correct, because they were close, so I can see
them . . . . 103

A:He has a dark complexion, medium built and short hair at that
time.

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?

Q:If you see that person again will you be able to identify him sir?
A:Yes, sir.

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:And if he's present in the courtroom will you be able to point to

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: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.

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?

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

A:Yes, sir, that is correct.

Q:You were informed that his name is Gerry Valler?
56

A:When he went inside the house and the kitchen, they started
interviews, that is where I learned his name, Gerry
Valler . . . 104

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

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?

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

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.

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

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

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.

Q:Now, in Question No. 5 and I quote . . . Why did you not identify
here the name of the driver as one Gerry Valler?
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

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
57

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 kidnapping for ransom and serious illegal detention have
been established beyond reasonable doubt.

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?

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 coconspirators 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.

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.

Lariba and Rogel were caught inside the house where Atty. Tioleco was detained.
P/Chief Insp. Paul Tucay testified on their involvement

Q:Where were these revolvers placed, Mr. Witness?

Q:Okey, when you stormed the place, do you know where these two
men were?

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.

A:The two men were seated at the sala during that time, sir.

Q:How many revolvers were you able to recover?

Q:They were seated at the sala when you entered the place?

A:There were two revolvers.

A:Yes, sir.
58

Q:And can you please describe these revolvers to this Honorable

Court?

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.

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.

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 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

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

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

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.

The defendants' statements to the police discarded, the participation

of the other appellants in the crime consisted in guarding the
59

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.

Sec. 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.

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-9668049 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

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.

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 . . . .

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.

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:

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.

Sec. 1. Section 1 of Presidential Decree No. 1866, as

amended, is hereby further amended to read as follows:

The same penalty shall be imposed upon the owner,

president, manager, director or other responsible officer of
60

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 Court is aware that this ruling effectively exonerates accusedappellants . . . 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

The penalty of arresto mayor shall be imposed upon any

person who shall carry any licensed firearm outside his
residence without legal authority therefor.

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.

. . . 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.

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.

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 . . . . 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 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 accusedappellants' 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.
61

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.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Qui
sumbing, Pardo, Buena, Ynares-Santiago, De
Leon, Jr., SandovalGutierrez and Carpio, JJ., concur.

SECOND DIVISION

WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim. Case No. Q96-68049 (G.R. No. 133489) accused-appellants RONALD "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.

[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

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

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 convicted of Illegal
Possession of Firearms and on appeal to the Court of Appeals, the same was affirmed.

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.

The issue here is whether or not petitioner's right to be protected from any unlawful
warrantless arrest has been violated.

SO ORDERED.
62

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.

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 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

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, selfserving as well as baseless.

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

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
63

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.

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.

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.

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

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 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).

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
64

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.

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

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, brown finished and wooden
handle with four (4) live ammunitions, without first having obtained
the proper license therefor from the proper authorities. LLpr

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

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

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

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
65

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

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

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:

"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

". . . 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 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 "[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

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
66

"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

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 selfserving 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

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

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

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.

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

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
67

of witnesses. The uncorroborated claim of the accused that he had been framed 30 is,
to our mind, self-serving as well as baseless.

"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 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

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."

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.

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

Moreover, at that time that PO3 Burdeos called out to petitioner, the latter was on the
act of drawing out his "paltik" revolver. Burdeos' testimony on this matter reads:
68

"WITNESS:

The fact that the robbery case was never brought to trial does not mean that the
legality of the arrest was tainted, for such arrest does 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 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. 34 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. 35 All told, the arresting officers reasonably acted upon personal
knowledge at the time, and not on unreliable hearsay information, 36 to effect a
lawful arrest. cdphil

We alighted and approached and we noticed that there is something

the accused is trying to hide and also trying to pull
out. LibLex
FISCAL:
Was he able to pull that something?
WITNESS:
No.
FISCAL:

That the victims of the reported robbery failed to pursue a formal 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 called for the appropriate police response. As to
the element of personal knowledge, the officers could not be faulted. It is not correct
to say they acted without observing standards of reasonableness and probable cause.
They responded promptly to a legitimate complaint of the victims and they had a
reasonable suspicion that the persons 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 accused at that point in time when he was identified as a suspect by the
complainants.

And, what was that?

WITNESS:
The .38 paltik. LexLib
FISCAL:
When you saw [that] what did you do . . . when you saw the accused
pulling out that .38 paltik?

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 premise when, in support of his assigned errors, he argues that the arrest and
the search should be considered invalid merely because the robbery charge was never
formally filed and prosecuted. In Rabaja vs. Court of Appeals, 37 a Department of
Environment and Natural Resources employee, Rabaja, was charged with and
convicted of Illegal Possession of Firearms even though the private complainant
whom he threatened eventually dropped the charges against him. The charge for
illegal possession was pursued by the authorities. prLL

WITNESS:
I pointed [at] him my gun [then] shouted 'don't move or I'll shoot!'
" 32
Nothing in petitioner's testimony successfully rebuts Burdeos' narration. 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
contemplated in paragraph (a), Section 5 of the abovementioned Rule.
69

Petitioner avers that complainants "admitted that accused was not the
holdupper". 38 A perusal of the records shows no such admission. The resolution,
issued by Assistant City Prosecutor Paragua in the robbery case, stated that no
information could yet be filed because complainants manifested doubts as to the
identity of their assailants. 39 The resolution should not be taken to mean an
admission that petitioner Cadua had been totally ruled out as a suspect in the crime. If
petitioner wanted to impress the Court that even on probable cause he could not be
accosted, then that impression is inaccurate and wrong. On cross-examination,
petitioner himself did not object to the 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

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

Given the circumstances in this case, we are constrained to affirm the finding below
that the warrantless arrest of petitioner is lawful. We also 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:

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.

"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
Noteworthy, among the exceptions to the necessity for a search warrant is the right of
search and seizure as an incident to a lawful arrest. 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. 41

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?

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. The fact that Burdeos made an immediate draw for his service revolver
was an instinctive response to petitioner's actions which, under the circumstances,
indicated a high probability of an offensive attack with a lethal weapon. prcd

Here 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. 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
70

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

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.' " 48 dctai

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:

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 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:

"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 accusedappellant 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

"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
71

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

Hilario D. Quiambao for petitioner.

The Solicitor General for respondent.

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.

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.

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.

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

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.
72

(6) years and eight (8) months. The petition was granted and he was ordered
immediately released from confinement.

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.

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 (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

R ES OLUTIO N

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. 92109854 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

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

On appeal, the Court of Appeals affirmed the trial court's decision with
modification, to wit:
73

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 ofPrision Mayor as maximum in
Criminal Case No. 92-109710, and (2) an indeterminate penalty of
imprisonment of Twelve (12) 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.

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

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.

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:

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.

"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.

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
74

"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.

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.

"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.

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

"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:

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.

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,
75

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.

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.

xxx xxx xxx

SYNOPSIS

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.

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.

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

SYLLABUS

[G.R. No. 153087. August 7, 2003.]

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
76

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.

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.

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.

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.

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 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.

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.

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.
77

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 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.

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)

DECISION

-1- one pc. .22 long barrel

YNARES-SANTIAGO, J p:

-5- pcs live ammunition for caliber .38 revolver

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

-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.

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

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

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,
78

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:

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.

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.

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

SO ORDERED. 14

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:

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.

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.

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

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

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
79

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 identify the accused without
difficulty. 20

knowledge that the petitioners, in violation of PD 1866, were not

licensed to possess firearms, ammunitions or explosives. . .
xxx xxx xxx
When questioned by the judge, Bacolod stated merely that he
believed that the PICOP security guards had no license to possess the
subject firearms. This, however, does not meet the requirement that a
witness must testify on his personal knowledge, not belief.

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.21 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. 22 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 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. 23 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.

xxx xxx xxx

Moreover, Bacolod failed to affirm that none of the firearms seen
inside the PICOP compound was licensed. Bacolod merely declared
that the security agency and its guards were not licensed. He also
said that, some of the firearms were owned by PICOP. Yet, he made
no statement before the trial court that PICOP, aside from the
security agency, had no license to possess those firearms. Worse, the
applicant and his witnesses inexplicably failed to attach to the
application a copy of the aforementioned "no license" certification
from the Firearms and Explosives Office (FEO) of the PNP, or to
present it during the hearing. Such certification could have been
easily obtained, considering that the FEO was located in Camp
Crame where the unit of Bacolod was also based. . . . 25

In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion, 24 we

declared as void the search warrant issued by the trial court in connection with the
offense of illegal possession of firearms, ammunitions and explosives, on the
ground, inter alia, of failure to prove the requisite probable cause. The applicant and
the witness 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 testify as to the absence of
license and failed to attach to the application a "no license certification" from the
Firearms and Explosives Office of the Philippine National Police. Thus

In the case at bar, the search and seizure warrant was issued in connection with the
offense of illegal possession of firearms, the elements of which are (1) the
existence of the subject firearm; and (2) the fact that the accused who owned or
possessed it does not have 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

Bacolod appeared during the hearing and was extensively examined

by the judge. But his testimony showed that he did not have personal
80

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.

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.

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

QDo you know Romulo Nala? Are you friends with said person?
AYes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao,
Bukidnon.

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?

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.

AYes, Sir.

That is all. 27

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?

COURT:
Next witness [PO3 Macrino L. Alcoser]
xxx xxx xxx

ABecause I personally saw and witnessed him bringing or carrying

said pistols.

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?

QWhere did you see him bringing or carrying said pistols?

81

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.

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.

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?

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.

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.

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

QAre there more information you wish to inform this Court.

ANone, as of the moment.
QDo you affirm . . . the truthfulness of the above statement made by
you and [will you] voluntarily sign the same?

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

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

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.
82

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

Considering that the search and seizure warrant in this case was procured in violation
of the Constitution and the Rules of Court, all the items seized in petitioner's house,
being "fruits of the poisonous tree", are "inadmissible for any purpose in any
proceeding." The exclusion of these unlawfully seized evidence is the only practical
means of enforcing the constitutional injunction against unreasonable searches 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

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

Finally, the Court notes that among the items seized by the officers 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 possession of firearms for which the warrant was issued. Moreover, it is 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 products of an illegal search. Hence, the subject
articles should be returned to petitioner. 40

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.

WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October
18, 2001 and February 15, 2002 Orders of the Regional Trial Court of Malaybalay
City, Branch 10, are REVERSED and SET ASIDE insofar as it denied petitioner's
omnibus motion to quash the search 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. 109432001-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

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.

SO ORDERED.
Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.
83

THIRD DIVISION

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

[G.R. No. 164815. February 22, 2008.]

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE
OF THE PHILIPPINES, respondent.

Petitioner was then brought to the police station for questioning. 13

DECISION

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

REYES, R.T., J p:
THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a
prospective, not retroactive, effect. 1 However, penal laws that favor a guilty person,
who is not a habitual criminal, shall be given retroactive effect. 1-a These are the rule,
the exception and exception to the exception on effectivity of laws.

Petitioner was then charged with illegal possession of firearm and ammunition under
Presidential Decree (P.D.) No. 1866, 17 as amended. The Information read:

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.

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

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

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.

The Facts

CONTRARY TO LAW.

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

Quezon City, Philippines, July 15, 1996.

(Sgd.)
GLORIA VICTORIA C. YAP
84

Assistant City Prosecutor 18

Sales was later on appointed as the head of the unit that conducted the search in his
boarding house. 32

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.

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

SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated
above.

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

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

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

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

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

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
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 whitewash 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.

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.
85

SO ORDERED. 46

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)

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:

Our Ruling

Verily, the penalty imposed by the trial court upon the accusedappellant is modified to 4 years and 2 months as minimum up to 6
years as maximum.

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

WHEREFORE, with the foregoing MODIFICATION as to the

penalty, the decision appealed from is hereby AFFIRMED in all
other respects.

The prosecution was able to discharge its burden.

SO ORDERED. 49
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

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.

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

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.

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

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

The
certification
of the hearsay rule.
86

is

outside

the

scope

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

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

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:
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.

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.

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.

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.

Petitioner, however, raises several points which he says entitles him to no less than an
acquittal.
The
assessment
witnesses lies with the trial court.

of

credibility

of

The
pieces
petitioner
is
possess
the
five (5) ammunition.

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.

of
not
subject

evidence
legally
firearm

show
authorized
and

that
to
its

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

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

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

. . . 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
87

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
firearm
as
evidence
provided
there
testimony as to its existence.

an
is
is

not

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

unlicensed
fatal
competent

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

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

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:

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.

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)

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 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

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
88

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.

89