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Republic of the PhilippinesSUPREME COURT

ManilaTHIRD DIVISION

G.R. No. 181826 January 9, 2013PEOPLE OF THE PHILIPPINES, Appellee, vs.HONG YENG E and TSIEN TSIEN CHUA, Appellants.

D E C I S I O NABAD, J.:This is about the duty of the prosecution to prove beyond reasonable doubt that the illegal sale of drugs was consummated. Absence of proof of consummation, the accused may be acquitted for illegal sale of drugs. Nonetheless, accused may be convicted for "illegal possession of prohibited drugs"-penalized in Section 8 of Republic Act (R.A.) 6425, as amended-as possession is necessarily included in the crime charged in the Information.The Facts and the CaseThe City Prosecutor of Manila separately charged the accused Hong Yen E @ "Benjie Ong" (Yen E), Tsien Tsien Chua (Chua), and Gun Jie Ang (Ang) before the Regional Trial Court (RTC) of that city for violation of Section 15, Article III in relation to Section 2(e), (f), (m), and (o), Article I in relation to Article 21 of R.A. 6425, as amended by Presidential Decree 7659.1

The National Bureau of Investigation (NBI) Special Investigator (SI) Roy Rufino C. Suñega (Suñega) testified that Atty. Ruel Lasala, Chief of the Narcotics Division, ordered him to place accused Yen E under surveillance and arrange a possible buy-bust involving him. Subsequently, Suñega went to Jollibee, Masangkay Branch, together with SI Noel C. Bocaling for a pre-arranged meeting with Yen E. At that meeting, Yen E agreed to sell two kilograms of shabu to Suñega for P600,000.00 per kilogram. He was to deliver the shabu in the evening of the following day at the same place.Suñega caused the preparation of boodle money, consisting of 24 bundles of 100 10-peso bills with four 500-peso bills to cover the top and the bottom of each bundle. He had the 500-peso bills marked with "RS-1," "RS-2," "RS-3" and "RS-4" at the right top portion.2 As agreed, the NBI agents met with Yen E again on the evening of September 5, 2001. Yen E arrived but requested the police buyers to meet him at Lai-Lai Restaurant. Before he left, Yen E took a peek at the money.At the Lai-Lai Restaurant, Chua and Ang arrived and approached Yen E. Upon the latter’s instruction, Chua handed over the plastic bags she had to Suñega. Convinced that these contained shabu, Suñega lit his cigarette, the signal that the buy-bust had been completed. After the arrest of the three, Suñega placed the shabu in plastic bags and marked these with "H. YEN-1" and "H.YEN-2" with the date "9-06-2001."3 The police then submitted the suspected shabu for laboratory examination. Yvette Ylao, an NBI forensic analyst testified that, upon examination, the contents of the plastic bags proved to be methamphetamine hydrochloride.Accused Chua denied the charges and testified that it was a case of "hulidap" and they tortured her. They divested her of her jewelry and demanded P2 million for her release. Yen E also denied the charges and complained of being a victim of "hulidap." He testified that the arresting officers demanded P2 million for his release. Ang, on the other hand, jumped bail and thus waived his right to adduce evidence.On April 29, 2004 the RTC found the three accused guilty beyond reasonable doubt of the crime charged and sentenced them to suffer the penalty of reclusion perpetua and to pay a fine of P500,000.00 each without subsidiary imprisonment in case of insolvency.On appeal to the Court of Appeals (CA) in CA-G.R. CR-H.C. 02168,4 the latter affirmed in toto the RTC Decision. It also denied the accused’s motion for reconsideration on August 6, 2007, hence, this appeal.The Issue PresentedThe sole issue in this case is whether or not the CA erred in finding that the prosecution succeeded in proving beyond reasonable doubt the consummation of the illegal sale of prohibited drugs.The Ruling of the CourtOne. To prove the crime of illegal sale of dangerous drugs, the prosecution's evidence should establish the following elements: (1) the identity of the buyer and seller, object and consideration; and (2) the delivery of the thing sold and the payment. Absent any of these two elements, the prosecution’s case must fail.Here, while SI Suñega claimed that Yen E offered to sell to him two kilograms of shabu for P1.2 million and that he agreed to buy the same, the sale was not consummated. He thus narrated:Q: What happened when this Chinese lady handed to you the plastic bag?A: Well, I immediately inspected the contents of the said bag and I noticed the bag has two transparent plastic bags and crumpled newspapers covered it.Q: And what was the content of this?A: Based on my initial examination, I am convinced that it is shabu. Based on its appearance.Q: What happened, Mr. Witness, when this Chinese lady handed to you the plastic bag?A: Well, I immediately lighted a cigarette. And the lighting of the cigarette is a pre-arranged signal to our back-up team that the drugs are there already and that is a signal to conduct the arrest. (sic)

x x x xQ: What happened, Mr. Witness, when you testified that you gave a pre-arranged signal?A: After that, I already saw my back-up team approaching our position and then before I could hand over the money to Mr. Benjie Ong, the arrest was already made.5 (Emphasis supplied)During the re-cross examination, SI Suñega admitted that the back-up team immediately arrested the appellants before he could deliver the buy-bust money to the appellants, thus:Q: Okay, there was no payment whatsoever?A: I have the money with me to pay but before I can do so, the back-up team already assisted me in conducting the arrest.Q: In other words, you did not actually pay for what you claim you have received? Hindi mo binayaran ang sinasabi mong inabot sa iyo. Is that correct?A: That's correct, sir.6

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It is material in illegal sale of dangerous drugs that the sale actually took place. What consummates the buy-bust transaction is the delivery of the drugs to the poseur-buyer and, in turn, the seller’s receipt of the marked money.7While the parties may have agreed on the selling price of the shabu and delivery of payment was intended, these do not prove consummated sale. Receipt of the marked money, whether done before delivery of the drugs or after,8 is required.In an attempt to prove a consummated sale, the prosecution heavily relied on the testimony of SI Suñega that Yen E took a peek at the money before they went to the restaurant for the swap with shabu. But looking at a thing does not transfer possession of it to the beholder. Such a tenet would make window shoppers liable for theft.Two. Appellant’s exoneration from the sale of prohibited drugs does not spell freedom from all criminal liability as they may be convicted for illegal possession of prohibited drugs under Section 89 of R.A. 6425. This Court has consistently ruled that possession is necessarily included in the sale of illegal drugs.Given that illegal possession is an element of and is necessarily included in the illegal sale of prohibited drugs, the Court will now determine appellants culpability under Section 8.The elements of illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item or object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciously possessed the prohibited drug.10

The evidence on record clearly established that appellant Chua was in possession of the plastic bags containing prohibited drugs without the requisite authority. Applying Section 3(j), Rule 131 of the Rules of Court,11 a disputable presumption arises that she is the owner of the bag and its contents. It may be rebutted by contrary proof that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi.12 Here, Chua failed to present evidence to rebut the presumption. She claims that she was a victim of frame-up and extortion by the narcotics agents of the NBI. This defense is viewed with disfavor for it can be easily concocted.13The defense of frame-up, often imputed to police officers, requires strong proof when offered as a defense, because of the presumption that public officers acted in the regular performance of their official duties.14

Although the plastic bags containing shabu were found solely in the possession of Chua, it was evident that Yen E had knowledge of its existence. As the records would show, Yen E negotiated for the sale of dangerous drugs. When Chua arrived in the vicinity, she approached Yen E before delivering the shabu to Suñega.1âwphi1 These acts of the accused indubitably demonstrate a coordinated plan on their part to actively engage in the illegal business of drugs. When conspiracy is shown, the act of one is the act of all conspirators. Direct evidence of conspiracy is not necessary as it can be clearly deduced from the acts of the accused.1âwphi1Three. As to the accused’s argument that the NBI operatives failed to observe the chain of custody rule in dangerous drugs cases, we do not agree. The alleged failure of the apprehending team to inventory and photograph the confiscated items immediately after the operation, is not fatal to the prosecution’s cause. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be used in the determination of the guilt or innocence of the accused.15 Here, the integrity and evidentiary value of the seized drugs had been preserved as there is evidence to account for the crucial links in the chain of custody of the seized shabu, starting from its confiscation to its presentation as evidence in the RTC.WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR-H.C. 02168 dated March 30, 2007 is hereby MODIFIED. The Court FINDS Hong Yen E@ "Agi/Benjie Ong" and Tsien Tsien Chua guilty of illegal possession of prohibited drugs under Section 8 of Republic Act 6425; IMPOSES on them, in accordance with the Indeterminate Sentence Law, imprisonment for 8 years as minimum to 12 years as maximum; and ORDERS them to pay a fine of P12,000.00. Costs de oficio.SO ORDERED.ROBERTO A. ABADAssociate JusticeWE CONCUR:

PRESBITERO J. VELASCO, JR.Associate Justice

Chairperson

JOSE PORTUGAL PEREZ*

Associate JusticeJOSE CATRAL MENDOZA

Associate Justice

MARVIC MARIO VICTOR F. LEONENAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.PRESBITERO J. VELASCO, JR.Associate JusticeChairperson, Third Division

C E R T I F I C A T I O NPursuant to Section 13, Article VIU of the Constitution and the Division Chairperson's Attestation, I certify that the c0nclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.MARIA LOURDES P. A. SERENOChief Justice

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Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISIONG.R. No. 180514 April 17, 2013PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.DANTE L. DUMALAG, Accused-Appellant.

D E C I S I O NLEONARDO-DE CASTRO, J.:For review is the Decision1 dated July 3, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01847, which affirmed the Decision2 dated November 16, 2005 of the Regional Trial Court (RTC), Branch 19, of Laoag City in Criminal Case Nos. 1683-19 and 1684-19, tinding accused-appellant Dante L. Dumalag guilty beyond reasonable doubt of violating Article II, Sections 5 and 11 of Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002.The Informations against accused-appellant read:Criminal Case No. 1683-19, for violation of Rep. Act No. 9165 (Possession)That on or about 3:30 o'clock in the afternoon of January 5, 2005 at the Sexy Beach Resort located at Brgy. Estancia, Pasuquin, Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody three (3) heat sealed plastic sachets weighing 0.01 grams, 0.015 grams, and 0.04 grams respectively (sic) for Methamphetamine Hydrochloride otherwise known as "shabu", without having the authority, license or prescription to do so.3

Criminal Case No. 1684-19, for violation of Rep. Act No. 9165 (Sale)That on or about 3:30 o’clock in the afternoon of January 5, 2005 at the Sexy Beach Resort located at Brgy. Estancia, Pasuquin, Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously sell one (1) small heat sealed plastic sachet containing Methamphetamine Hydrochloride otherwise known as shabu, a regulated drug, weighing 0.023 grams to a police poseur buyer in a buy bust operation without the necessary license or authority to do so.4

Accused-appellant pleaded not guilty to both charges when he was arraigned on June 14, 2005.5

During the preliminary conference on June 27, 2005, the parties made the following admissions:The defense admitted the following proposals of the prosecution:

1. The identity of the accused as the same Dante Dumalag also known as Dato Dumalag who was arraigned in these cases.2. That the accused is a resident of Brgy. 2, Pasuquin, Ilocos Norte on or before January 5, 2005.3. That the accused was at the Sexy Beach [Resort] at Brgy. Estancia, Pasuquin, Ilocos Norte in the afternoon of January 5, 2005.4. That the prosecution witnesses namely: PO3 Rousel Albano, PO2 Danny Valdez, SPO4 Angel Salvatierra and PO2 Harold Nicolas are members of the Special Operations Group (SOG) on or before January 5, 2005.5. That the accused is not authorized to sell neither to possess prohibited drugs known as shabu.

For its part, the prosecution only admitted the proposal of the defense that the accused and PO2 Danny Valdez are town mates.6

The defense made additional admissions during pre-trial on June 28, 2005, which the RTC stated in its Order7 of even date:Upon proposal of the Court, the defense admitted the existence of the initial laboratory report, the confirmatory report and the result of the urine test issued by Police Senior Inspector (PSI) Mary Ann Cayabyab (Cayabyab) which were marked as Exhibits "I", "J" and "K", respectively.The prosecution and the defense also agreed that before 2:00 o’clock in the afternoon of the date of the incident, the accused had rented and was occupying room number 3 of the Resort Hotel and Restaurant located at Sexy Beach, Pasuquin, Ilocos Norte.Thereafter, the prosecution and defense considered the pre-trial closed and terminated.Thereafter, trial ensued.The prosecution called Police Officer (PO) 3 Rousel Al Albano8 (Albano) and PO2 Danny U. Valdez9 (Valdez) to the witness stand, while dispensing with the testimony of Police Senior Inspector (PSI) Mary Ann Cayabyab (Cayabyab) in view of the stipulation of the parties as to the substance of her testimony.10 The prosecution likewise submitted the following object and documentary evidence: (a) the Joint Affidavit11 dated January 6, 2005 executed by the Special Operations Group (SOG) members who conducted the buy-bust operation on January 5, 2005, including PO3 Albano and PO2 Valdez; (b) the Extracted Police Blotters12 dated January 6, 2005 which recorded the events prior to and after the buy-bust operation; (c) two pieces of P100.00 marked bills used in the buy-bust operation;13 (d) the Request for Laboratory Examination14 dated January 5, 2005 of one heat-sealed sachet marked "RA" and three heat-sealed sachets marked "R" of suspected shabu confiscated from accused-appellant; (e) Request for Drug Test Examination15 dated January 5, 2005 of accused-appellant’s person; (f) one heat-sealed sachet of suspected shabu marked "RA";16 (g) three heat-sealed sachets of suspected shabu marked "R";17 (h) PSI Cayabyab’s Chemistry Report No. D-003-200518 dated January 5 and 6, 2005 stating that the sachets submitted for examination tested positive for methamphetamine hydrochloride; (i) PSI Cayabyab’s Chemistry Report No. CDT-002-200519 dated January 6, 2005 stating that accused-appellant’s urine sample tested positive for methamphetamine hydrochloride; (j) the Certification of Seized Items20 dated January 5, 2005 prepared by PO3 Albano and PO2 Valdez enumerating the items seized from accused-appellant’s possession when arrested; (k) several pieces of crumpled aluminum foils;21 (l) a purple disposable lighter;22 and (m) an empty Winston cigarette pack.23

The prosecution’s version of events was presented by the RTC as follows:At around 2:00 o’clock in the afternoon of January 5, 2005, a female police informant from Pasuquin, Ilocos Norte went to the office of the Special Operations Group (now Provincial Anti-Illegal Drugs Special Operations Team or PAID-SOT) located at Camp Juan, Laoag City and reported that a certain Dato Dumalag, a known drug personality of Brgy. 2, Pasuquin, Ilocos Norte was at Sexy Beach Resort owned by Bebot Ferrer selling shabu to customers. Acting upon the report, PO3 Rousel Albano and PO2 Danny Valdez relayed the information to their team leader, Police Inspector Rolando Battulayan, who then organized a team composed of PO3 Albano, PO2 Valdez, SPO4 Salvatierra and PO2 Harold Nicolas to conduct a buy bust operation against the suspect. PO3 Albano was assigned to act as poseur buyer while the rest of the team will act as perimeter back up. PO3 Albano was also tasked to mark the

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two pieces of P100 bills provided by Inspector Battulayan to be used as buy bust money and placed the letter "R" between the letters G and P of Republika Ng Pilipinas on the face of the bills. The pre-operation activity was also recorded in the police blotter. Afterwards, the team proceeded to the target place located in Brgy. Estancia, Pasuquin at around 2:30 o’clock that same afternoon.Upon reaching the place at around 3:00 o’clock, the police asked the caretaker of the beach resort if a person is occupying Room 03 as reported by the asset. The caretaker who was with another caretaker and both of whom were female gave them the information that indeed a male person was occupying the said room. After they prepared for the plan and have surveyed the area for five to seven minutes, they proceeded with the drug bust. The members of the back up security positioned themselves on the southern part of the alley about 15 meters away from Room 3 while PO3 Albano and the police asset went to the said room of the suspect which was located at northernmost part of the main building of the resort. When they were already at the door, the asset called out the name of the suspect Dato and PO3 Albano knocked at the door. After the asset also knocked at the door, a male person peeped through and upon recognizing the police asset, Dato Dumalag told her, "Mano Alaenyo, sumrek kay pay lang ngarud" (How much will you get, come in then). As they were already inside the room, PO3 Albano told the suspect, "Balor dos ti alaenmi" (We will get worth two). The suspect then went to the dresser located on the southern part of the room and west of the door and took one small plastic sachet and handed the same to PO3 Albano who immediately handed the two marked P100 bills. After the suspect had pocketed the money on his right front pocket, he told them, "Rumaman kay pay ngarud tig-P50.00 (Taste first, P50 worth for each of you). At that instance, PO3 Albano gave the pre-arranged signal to the members of the back up security that the sale was already consummated by pressing the button of his cellphone to retrieve and call the last dialed number which was the cell number of PO2 Valdez. After making the signal, PO3 Albano grabbed the right hand of the suspect and informed him of his authority. The suspect scuffled with the police officer who was however able to subdue him.In the meantime, after PO2 Valdez received the miss call of PO3 Albano, he and his companions rushed inside the room of the suspect. PO3 Albano had already handcuffed the suspect by then and was holding him at that time. While PO3 Albano frisked the accused where he confiscated a P50 bill in which three other sachets of suspected shabu were inserted, PO2 Valdez searched the room and confiscated some items which were on top of the dresser, such as five crumpled aluminum foil, stick of cigarette, cigarette foil, a lighter and a cellphone. Afterwards, they brought the suspect and the confiscated items to their headquarters in Laoag City where PO3 Albano marked the sachet of shabu bought from the suspect with his initials "RA". He also marked the other three sachets and theP50 bill in which he found the said sachets with the letter "R" on one side and the letters "DD" on the other side. He also prepared the confiscation receipt which the accused signed and the post operation report. On the other hand, PO2 Valdez marked the items that he confiscated with his initials "DUV". They then brought the confiscated items for laboratory examination together with a letter request.Upon receipt of the specimens, the Forensic Chemical Officer of the Ilocos Norte Provincial Crime Laboratory Office in Camp Juan, Police Senior Inspector Mary Ann Cayabyab, examined the same. Particularly with respect to the four sachets, she found the contents thereof to be methamphetamine hydrochloride. This is shown in her Initial Laboratory Report as well as in her confirmatory report, Chemistry Report No. D-003-2005. The said Forensic Chemical Officer also found the urine sample of the accused positive for methamphetamine hydrochloride as shown in Chemistry Report No. CDT-002-005.It must be noted that in the course of his testimony, PO3 Albano identified their Joint Affidavit of arrest, the extract of the police blotter showing the pre-operation activity; the extract of the police blotter containing the post operations report, the two pieces of P100 bills buy bust money bearing Serial Nos. *3664717 and PG656160, the three plastic confiscated from the possession of the accused with the marking letter "R" and "DD", the P50 bill in which the three sachets were supposedly rolled, the plastic sachet containing crystalline substance that was sold by the suspect and the Certification of Seized Items. In the case of PO2 Valdez, he identified those that he confiscated: the five (5) pieces of crumpled aluminum foil, the Nokia 3210 cellphone, the Winston cigarette pack, a stick of Winston cigarette and a purple cigarette lighter. Both witnesses also identified the letter request for laboratory examination and the letter request for urine examination.24 (Citations omitted.)Evidence for the defense were the testimonies of accused-appellant Himself25 and Kaichel Bolosan26 (Bolosan), and their respective Sworn Statements dated February 18, 2005.27 The defense averred that the police officers framed accused-appellant after failing to extort money from him. The RTC summed up the defense’s evidence, to wit:That afternoon of January 5, 2005, Kaishel Bolosan was with his friends Nathaniel Bolosan, Mark Milan, Jay Adaon and Benjie Galiza singing at a videoke establishment located at the corner of the entrance of Sexy Beach. While the said group was there, Dante or Dato Dumalag whom Kaishel had known because he usually played billiards in his (accused’s) house at Brgy. 2, Pasuquin but with whom he has not had any conversation before, passed by their place in a chop-chop motorcycle. Dante Dumalag was then with a female companion. As soon as Dante had parked his motorcycle, he and his female companion immediately went inside the hotel. This, Kaishel and his companions did not mind as they kept on singing. The caretaker and the cleaner of the hotel were there at that time when Dante Dumalag entered the hotel. Thirty (30) minutes after Dante and his female companion entered the hotel, six men arrived in a red pick up vehicle. Kaishel Bolosan knew them to be policemen because he recognized one of them to be Danny Valdez, a policeman who is a resident of Pasuquin and whom he usually saw in his uniform flagging down a ride in going to Laoag City, arrived in a red pick up vehicle. The police officers who were all male asked first the caretaker where the room of Dante Dumalag was and after looking for it for about five (5) minutes, Kaishel assumed that they entered the room of Dante because after they proceeded to the back, he did not see them anymore. Two of the police officers, however, remained at the side of the hotel, one of whom moved their pick up vehicle beside the hotel.In the meantime, as Dante Dumalag and his companion Irish Sao were already in the hotel where they were supposed to rest, they rented a room, particularly Room No. 3. When they were already inside, Dante Dumalag went to the bathroom to take a bath while his lady companion lay on the bed. After taking a bath, Dante heard somebody knocked at the door. Only wearing a short pants as he just came from the bathroom, he went to open the door and as he did so, police officer Rousel Albano whose name he came to know the following day, pushed the door, entered the room and pointed his gun at him. At that time, Irish Sao was then in front of the mirror. Officer Albano supposedly let Dante turn his back and without identifying himself and without giving any reason why, he handcuffed the accused, made him lie on the bed face down, placed a pillow on his head, pointed his gun at him and frisked him but did not find any contraband. The accused was then made to stand up and it was at that instance that the two policemen (including Danny Valdez) who followed Rousel Albano inside the room let Irish Sao leave the room and without telling what they were looking for, searched the room. They took his cellphone and that was the time that the policemen also showed him two sachets of shabu. Dante Dumalag however did not know from where they produced the shabu because he was made to bow his head on the bed. After showing the shabu, Rousel Albano placed the barrel of his gun inside the mouth of Dante Dumalag but removed it when one of his companions told him that he might accidentally pull the trigger. Rousel Albano then told him that they will just talk so that there will be no case. Dante Dumalag understood this to mean that he has to settle the case by giving them money. When he did not accede, Rousel Albano allegedly boxed and pushed him on the stomach, causing him to stoop down. They then let him put on his sando and because

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he was in handcuffs, Nicomedes or Medy Lasaten, a detainee who was with the policemen at that time, helped him do so. The policemen then brought Dante Dumalag to the vehicle.Before that, Kaishel Bolosan and his companions were still there at the video establishment. After the lapse of 15 minutes from the time they entered the hotel, Kaishel saw the four policemen re-appear and just stood by and afterwards, one of them called him and his companions to board the chop chop motorcycle of the accused in their pick up and after complying with the order of the policemen, they were asked to leave. When they have already returned to the videoke bar, that was the time that Kaishel saw Dante Dumalag brought out of the hotel by two policemen. Dante Dumalag was then boarded at the back of the pick up where he was sandwiched by three policemen while Danny Valdez was on the wheel and Irish Sao was at the passenger seat in front. The other two policemen rode at the back of the pick up. As the pick up left, it still stopped by the videoke bar where Danny Valdez in a threatening tone told Kaishel and his companions not to say anything and that they will arrest them all shabu users. At that time, Dante Dumalag did not see Kaishel because he was made to bow his head in his seat. When the pick up moved out of the place during which Kaishel allegedly saw Dante being boxed by one of the policemen, they first dropped by the house of Danny Valdez where they took something to cover the eyes of the accused, after which they proceeded to the camp.28

On November 16, 2005, the RTC promulgated its Decision finding accused-appellant guilty beyond reasonable doubt of the felonies charged and decreeing thus:WHEREFORE, judgment is hereby rendered finding the accused Dante Dumalag GUILTY beyond reasonable doubt as charged in Criminal Case No. 1683-19 for illegal possession of shabu aggregately weighing 0.065 gram and is therefore sentenced to suffer the indeterminate penalty of imprisonment ranging from TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS and to pay a fine of P400,000.00.Said accused is likewise found GUILTY beyond reasonable doubt as charged of illegal sale of shabu in Criminal Case No. 1684-19 and is therefore sentenced to suffer the penalty of life imprisonment and to pay the fine ofP2,000,000.00.The contraband subject of these cases are hereby confiscated, the same to be disposed of as the law prescribes.29

In an Order30 dated December 2, 2005, the RTC gave due course to accused-appellant’s Notice of Appeal and directed that the records of his cases be forwarded to the Court of Appeals within the period prescribed by the rules. Accused-appellant was then transferred to and committed at the New Bilibid Prison on December 5, 2005, pending his appeal.31

Accused-appellant insisted that he is innocent and that the charges against him were merely fabricated. According to accused-appellant, the prosecution failed to establish the factual details which led to his arrest.1âwphi1 Accused-appellant pointed out that he was consistent in stating that at the time he was arrested, he had a female companion with him, which was contrary to the police officers’ self-serving testimonies that accused-appellant was alone when he was arrested; that the prosecution failed to impeach the credibility of Bolosan who testified that there were six men who arrived at the resort shortly before accused-appellant’s arrest, thereby refuting the prosecution’s claim that the buy-bust team was composed of only four male police officers, plus the female informant; and that there would have been no doubt as to the existence of the female informant had the prosecution presented her during the trial. Accused-appellant further argued that the police officers who arrested him and purportedly confiscated the sachets of shabu from his possession failed to strictly comply with the mandated procedure under Section 21 of Republic Act No. 9165. The said provision of the law and jurisprudence on the matter require that the marking of the drugs be done immediately after they are seized from the accused; otherwise, reasonable doubt arises as to the authenticity of the seized drugs. Accused-appellant claimed that the sachets of shabu supposedly seized from his possession were marked when he was already at the police station and not at the place of his arrest.In its Decision dated July 3, 2007, the Court of Appeals affirmed in toto the RTC judgment of conviction.Thus, accused-appellant instituted this appeal32 anchored on the following grounds:THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO PROVE THE GUILT OF THE APPELLANT BEYOND REASONABLE DOUBT CONSIDERING THAT:

1. THE TESTIMONIES OF THE PROSECUTION’S WITNESSES ARE REPLETE WITH SUBSTANTIAL OR SIGNIFICANT INCONSISTENCIES WHICH PROVE THAT NO BUY BUST OPERATION WAS CONDUCTED.2. THE PROSECUTION FAILED TO COMPLY WITH THE PROCEDURES IN THE CUSTODY OF SEIZED PROHIBITED AND REGULATED DRUGS AS EMBODIED IN SECTION 21 OF REPUBLIC ACT 9165 WHICH RAISES DOUBT WHETHER THE SHABU PRESENTED IN COURT IS THE SAME FROM THE ONE ALLEGEDLY SEIZED FROM PETITIONER.33

The appeal is bereft of merit.Accused-appellant challenges the credence and weight accorded by both the RTC and the Court of Appeals to the testimonies of the witnesses for the prosecution as opposed to those of the defense.It is an established rule that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate court, are binding on this Court, unless significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case. Moreover, questions as to credibility of a witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness’ deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal.34

Accused-appellant herein failed to present any cogent reason to disturb the factual findings of the RTC and the Court of Appeals. The totality of the prosecution’s evidence established a logical, vivid, and detailed account of the buy-bust operation which ultimately led to accused-appellant’s arrest and the seizure of the plastic sachets of shabu from his possession. The alleged inconsistencies in the prosecution witnesses’ testimonies on the number and gender of the buy-bust team members are trivial and irrelevant for it does not involve any of the necessary elements for conviction of the accused-appellant for the illegal possession and sale of shabu.For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such possession is not authorized by law; and (c) the accused was freely and consciously aware of being in possession of the drug.35

In the prosecution for the crime of illegal sale of prohibited drugs, the following elements must concur: (1) the identities of the buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment thereof. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually occurred, coupled with the presentation in court of the substance seized as evidence.36

In this case, prosecution witnesses, PO3 Albano and PO2 Valdez, categorically stated under oath that as members of the buy-bust team, they caught accused-appellant in flagrante delicto selling and possessing shabu. The prosecution was able to establish that (a) accused-appellant had no authority to

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sell or to possess any dangerous drugs; (b) during the buy-bust operation conducted by the police on January 5, 2005 at the Sexy Beach Resort in Barangay Estancia, Pasuquin, Ilocos Norte, accused-appellant sold and delivered to PO3 Albano, acting as a poseur-buyer, for the price of Two Hundred Pesos (P200.00), one heat-sealed plastic sachet containing 0.023 grams of white crystalline substance, chemically confirmed to be shabu; and (c) as a result of a search incidental to the valid warrantless arrest of accused-appellant, he was caught in possession of three more heat-sealed plastic sachets containing 0.01, 0.015, and 0.04 grams of white crystalline substance, all chemically confirmed also to be shabu. The two marked One Hundred Peso (P100.00) bills used as buy-bust money, as well as the aforementioned sachets of shabu were among the object evidence submitted by the prosecution to the RTC.As for the non-presentation by the prosecution of the informant, this point need not be belabored. The Court has time and again held that "the presentation of an informant in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative."37 The informant's testimony is not needed if the sale of the illegal drug has been adequately proven by the prosecution.38

In contrast, accused-appellant’s defense of frame-up was doubtful and uncorroborated. The defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions for violation of Republic Act No. 9165. In order to prosper, the defenses of denial and frame-up must be proved with strong and convincing evidence.39 In the instant case, accused-appellant failed to present, other than his own testimony, sufficient evidence to support his claims. Bolosan did not see and was not able to testify on the actual buy-bust operation, which took place inside accused-appellant’s room at Sexy Beach Resort, as Bolosan only witnessed the events taking place from outside the resort.Furthermore, the Court finds that the chain of custody of the sachets of shabu seized from accused-appellant had been duly established by the prosecution, in compliance with Section 21 of Republic Act No. 9165. As pertinently summarized by the Court of Appeals, the prosecution had proven each and every link of the chain of custody of the sachets of shabu from the time they were seized from accused-appellant, kept in police custody then transferred to the laboratory for examination, and up to their presentation in court, to wit:It has been established that: after the police officers reached appellant’s room at the Sexy Beach Resort, and PO3 Albano acted as poseur-buyer, he was handed one (1) heat-sealed plastic sachet containing shabu. After accused was arrested, the police officers were able to retrieve from appellant’s possession the marked money, as well as three (3) other heat-sealed plastic sachets containing shabu. They brought appellant to their office, together with the confiscated items, and prepared the necessary documents for the filing of the cases against him. PO3 Albano and PO2 Valdez signed the Certification of Seized Items (Exhibit "L") dated 05 January 2005. The team leader, Police Inspector Rolando Battulayan, prepared the Request for Laboratory Examination (Exhibit "E") dated 05 January 2005 of said heat-sealed plastic sachets containing alleged shabu, with the necessary markings on them, to determine if said items contain methamphetamine hydrochloride. The one (1) heat-sealed plastic sachet, subject of the illegal sale of dangerous drugs, was marked with letters "RA," while the three (3) heat-sealed plastic sachets, subject of the illegal possession of dangerous drugs, were marked with the letter"R" on one side and "DD" (initials of appellant), on the other side. PO3 Albano was the one who made said markings and delivered the same to the Ilocos Norte Provincial Crime Laboratory Office, Camp Capt. Valentin. Based on the Chemistry Report No. D-003-2005 (Initial Laboratory Report) dated 05 January 2005 (Exhibit "I") and Chemistry Report No. D-003-2005 (Exhibit "J") dated 06 January 2005 of Police Senior Inspector/Forensic Chemical Officer Mary Ann Nillo Cayabyab, the four (4) specimens (A, B1, B2 and B3), upon qualitative examination, tested positive for methamphetamine hydrochloride, a dangerous drug. Even appellant’s urine sample tested positive for methamphetamine, as stated in Chemistry Report No. CDT-002-2005 (Exhibit "K").40(Citations omitted.)Accused-appellant’s insistence that the police officers broke the chain of custody rule when they failed to mark the seized items immediately upon their confiscation at the place where he was apprehended lacks legal basis.It has already been settled that the failure of police officers to mark the items seized from an accused in illegal drugs cases immediately upon its confiscation at the place of arrest does not automatically impair the integrity of the chain of custody and render the confiscated items inadmissible in evidence.41 In People v. Resurreccion,42the Court explained that "marking" of the seized items "immediately after seizure and confiscation" may be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of an accused in illegal drugs cases. It was further emphasized that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused. The Court elaborated in this wise:Jurisprudence tells us that the failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody.The failure to strictly comply with Sec. 21(1), Art. II of RA 9165 does not necessarily render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused.As we held in People v. Cortez, testimony about a perfect chain is not always the standard because it is almost always impossible to obtain an unbroken chain. Cognizant of this fact, the Implementing Rules and Regulations of RA 9165 on the handling and disposition of seized dangerous drugs provides as follows:SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items x x x.Accused-appellant broaches the view that SA Isidoro’s failure to mark the confiscated shabu immediately after seizure creates a reasonable doubt as to the drug’s identity. People v. Sanchez, however, explains that RA 9165 does not specify a time frame for "immediate marking," or where said marking should be done:

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What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items – to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation.To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the presence of the accused and upon immediate confiscation. "Immediate confiscation" has no exact definition. Thus, in People v. Gum-Oyen, testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team.43 (Emphases supplied, citations omitted.)There is no question herein that the confiscated sachets of shabu and related paraphernalia were inventoried and marked in the presence of accused-appellant at the police station where he was brought right after his arrest.Finally, the penalties imposed by the RTC, as affirmed by the Court of Appeals, are correct.Article II, Section 11 of Republic Act No. 9165 provides that the penalty for illegal possession of shabu, with a total weight of 0.065 grams, is twelve (12) years and one (1) day to twenty (20) years, and a fine ranging from Three Hundred Thousand Pesos (P300,000.00) to Four HundredThousand Pesos (P400,000.00). Applying the Indeterminate Sentence Law, the accused shall be sentenced to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by law and the minimum term shall not be less than the minimum prescribed by the same. Thus, in Criminal Case No. 1683-19, the penalties imposed upon accused-appellant of imprisonment of twelve (12) years and one (1) day, as the minimum term, to fifteen (15) years, as the maximum term, and to pay a fine of Four Hundred Thousand Pesos (P400,000.00), are in order.The penalty for illegal sale of shabu (regardless of the quantity and purity involved), under Article II, Section 5 of Republic Act No. 9165, shall be life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Consequently, the Court upholds the sentence imposed upon accused-appellant of life imprisonment and the order for him to pay a fine of Two Million Pesos (P2,000,000.00) in Criminal Case No. 1684-19.WHEREFORE, in view of all the foregoing, the appeal of accused-appellant Dante L. Dumalag is DENIED and the Decision dated July 3, 2007 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01847 is AFFIRMED in toto.SO ORDERED.TERESITA J. LEONARDO-DE CASTROAssociate JusticeWE CONCUR:

MARIA LOURDES P. A. SERENOChief JusticeChairperson

LUCAS P. BERSAMINAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

BIENVENIDO L. REYESAssociate Justice

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.MARIA LOURDES P. A. SERENOChief Justice

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus - P A T E R N O L O R E N Z O y C A S A S ,

G . R . N o . 1 8 4 7 6 0 Present: CARPIO, J., Chairperson,BRION,DEL CASTILLO,ABAD, andPEREZ, JJ. Promulgated:

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D e f e n d a n t - A p p e l l a n t . April 23, 2010x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N PEREZ, J.

Assailed in this appeal via Notice of Appeal is the 14 June 2007 Decision [1] of the Court of Appeals in CA-GR HC No. 02184 which affirmed the 05 October 2005 Decision[2] promulgated by the Regional Trial Court (RTC) of San Mateo, Rizal, in Criminal Case Nos. 6991-93, finding accused-appellant Paterno Lorenzo y Casas guilty beyond reasonable doubt of violating Sections 5 and 11, Article II, of Republic Act No. 9165, otherwise known as the Dangerous Drugs Act of 2002. [3]

Accused-appellant was arrested and charged following a buy-bust operation.

On 12 September 2003, two (2) Informations were filed against accused-appellant Paterno Lorenzo y Casas (Lorenzo) charging him with violating Sections

5 and 11, Article II of Republic Act No. 9165, the accusatory portions thereof reading.

Criminal Case No. 6992That on or about the 10th day of September 2003 in the Municipality of San Mateo, Province of Rizal, Philippines and within the

jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control a total of 2.04 grams of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets which gave positive result to the test for Methylamphetamine Hydrochloride, a dangerous drug. [4]

Criminal Case No. 6993That on or about the 10th day of September 2003, in the Municipality of San Mateo, Province of Rizal, Philippines and within the

jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another 0.20 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet which gave positive result to the test for Metamphetamine Hydrochloride, a dangerous drug.[5]

The cases were raffled to Branch 76 of the RTC of San Mateo, Rizal and docketed as Criminal Case Nos. 6992-93. One Conrado Estanislao y Javier (Estanislao) was similarly charged in a different Information, which case was docketed as Criminal Case No. 6991. Estanislao was accused of possessing illegal drugs in violation of the provisions of Section 11, Article II of Republic Act No. 9165, the Information containing the following averments:

Criminal Case No. 6994 That on or about the 10th day of September 2003, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control of 0.05 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet which gave positive result to the test for Methylamphetamine Hydrochloride, a dangerous drug. On arraignment, both accused, with the assistance of counsel, entered ‘NOT GUILTY’ pleas. The three (3) cases having been consolidated, joint trial on the merits ensued. The prosecution presented as its lone witness, Police Officer 1 (PO1) Noel P. Pineda, who was a member of the buy-bust team. The evidence for the prosecution sought to establish that on 9 September 2003, upon a series of reports relayed by a confidential informant that a certain

Paterno Lorenzo was peddlingshabu in the Barangay Dulongbayan area, the team of PO3 Pineda embarked on a buy-bust operation against said drug peddler. Anticipating the operation, PO3 Pineda prepared two (2) pieces of marked P100.00 bills to be used as buy-bust money. At around 10:00 o’clock in the evening of the same day, PO3 Pineda, along with SPO1 Arellano and PO3 Tougan, proceeded to Barangay Dulongbayan and secretly met with their confidential informant. According to the confidential informant, he had not seen Lorenzo and raised the possibility that he was not in the area at the time. Assessing the situation, the police officers instructed the confidential informant to continue with his surveillance of the area and to inform them immediately if he comes across Lorenzo.

At around 1:00 o’clock in the morning of 10 September 2003, while PO1 Pineda and his companions were waiting at Gen. Luna Street, the confidential

informant reported that Lorenzo was already at the Daangbakal, Dulongbayan I area and was selling prohibited drugs. Riding an unmarked vehicle, the team proceeded to where Lorenzo was. On their arrival, Lorenzo was talking to a man at the corner of Pulong Diablo and Daangbakal. PO3 Tougan stepped out of their vehicle and hid in a place where he was not visible to Lorenzo. PO3 Pineda stayed close to SPO1 Arellano, who was then hiding inside a tricycle near Lorenzo. While this was happening, the confidential informant approached Lorenzo for the transaction. Lorenzo and the confidential informant were approximately four (4) meters away from PO3 Pineda. Because PO3 Pineda knew who Lorenzo was and considering the place was illuminated, PO3 Pineda recognized the suspect. The confidential informant and Lorenzo were talking for about one minute, after which the informant gave the marked money to Lorenzo. After taking the marked money, Lorenzo

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handed the shabu to the informant. PO3 Pineda and SPO1 Arellano alighted from the tricycle and approached Lorenzo, and introduced themselves as police officers. They arrested Lorenzo.

Upon being arrested, Lorenzo was bodily searched and PO1 Pineda was able to retrieve the marked money and 2 other sachets of shabu from him. Seeing what had happened to Lorenzo, the man he was talking to and later on identified as a certain Estanislao, attempted to escape the police officers and ran, but he was soon accosted by PO3 Tougan. A search of his pockets yielded one (1) sachet of shabu.

After the buy-bust operation, Lorenzo and Estanislao were taken to the police station where the incident was recorded in the police blotter. The plastic

sachets containing 2.04 and 0.20 grams of white crystalline substance bought from Lorenzo was sent to the PNP Crime Laboratory for laboratory examination. The results as contained in Chemistry Report no. D-1741-03E showed that the substance sold by Lorenzo was positive for Methylamphetamine Hydrochloride or shabu.[6]

Interposing the twin defenses of denial and frame-up, accused-appellant Lorenzo and Estanislao stood before the witness stand and presented their

version of the facts. Lorenzo was in his mountain bike on the way home to Dulongbayan sometime between 12:00 o’clock in the evening and 1:00 o’clock in the morning of 10

September 2003. Estanislao, who was also with him at the time, was riding in his motor cross style bike and was supposed to buy food at said place after playing ‘tong-its.’

While the two (2) were traversing Daangbakal and Delos Angeles Street, the chain on Estanislao’s bike went loose. During the time Estanislao was repairing his bike, PO3 Tougan, PO3 Pineda, and SPO1 Arellano, who were then on board an owner type jeepney, arrived and arrested Lorenzo and Estanislao. According to the police officers, they were to be brought to the Municipal Hall. The two (2) suspects protested, claiming not having done anything wrong but the police officers continued with the arrest. It was later that they were informed that the arrest was for illegal drugs. On 5 October 2005, the RTC rendered a Decision convicting Lorenzo for illegal possession and sale of dangerous drugs, but acquitting Estanislao, disposing as follows:

WHEREFORE, judgment is hereby rendered:(a) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for violation of Section 5, first paragraph, Article II of Republic

Act No. 9165 (Criminal Case No. 6993) or illegal selling of 0.20 gram of methylamphetamine hydrochloride (shabu), a dangerous drug, and is sentenced to suffer the penalty of life imprisonment and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

(b) Finding accused Paterno Lorenzo y Casas guilty beyond reasonable doubt for Violation of Section 11, second paragraph, No.3, Article II of

Republic Act No. 9165 (Criminal Case No. 6992) or illegal possession of 2.04 gram of methylamphetamine hydrochloride (shabu), a dangerous drug, and is sentenced to suffer imprisonment of Twelve (12) years and one (1) day as minimum to Twelve years and six (months) as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

(c) Finding accused Conrado Estanislao y Javier, for violation of Section 11, second paragraph, sub paragraph 3, Article II of Republic Act No.

9165, NOT GUILTY for failure of the prosecution to prove his guilt beyond reasonable doubt.

Detained accused Conrado Estanislao y Javier is ordered released from detention at the San Mateo Jail unless detained for some other lawful cause. The plastic sachets of shabu subject matter of the instant cases are ordered forfeited in favor of the government and the Officer-In-Charge of the Court is hereby ordered to safely deliver or cause the safe delivery of the same to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.[7]

Weighing the testimonies of the prosecution and defense witnesses, as well as the other evidence presented during trial, the trial court gave more veracity

to the prosecution’s version that Lorenzo was caught in flagrante delicto selling illegal drugs to a poseur-buyer during a buy-bust operation. The trial court gave credence to the prosecution’s evidence in accordance with the presumption of regularity in the performance of official functions accorded to police officers. According to the trial court, the prosecution proved beyond reasonable doubt the identity of the buyer in the buy-bust operation and the seller, object and consideration, including the delivery of the shabu sold by Lorenzo and the payment of the buy-bust money.

Invoking his innocence, Lorenzo appealed his conviction to the Court of Appeals, questioning the procedure followed by the police operatives in the

seizure and custody of the evidence against him. On 14 June 2007, the Court of Appeals affirmed the judgment of conviction rendered by the RTC, disposing to wit: WHEREFORE, premises considered, appeal is hereby dismissed and the assailed October 5, 2005 Decision of the Regional Trial Court of San Mateo Rizal, Branch 76, in Criminal Case Nos. 6991-93, is hereby AFFIRMED. Pursuant to Section 13 (C), Rule 124 of the 2000 Rules of Criminal Procedure, as amended by AM No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004. This judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed with the Clerk of Court of the Court of Appeals.

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SO ORDERED. Unyielding, Lorenzo appealed before this Court on Notice of Appeal,[8] adopting the same arguments raised before the Court of Appeals:

I.THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF VIOLATION OF SECTIONS 5 AND 11, REPUBLIC ACT NO. 9165; AND

II.

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANT’S DEFENSE OF DENIAL. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the

prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Corollary thereto, conviction must rest on the strength of the prosecution’s evidence and not on the weakness of the defense.

In fact, if the prosecution fails to meet the required quantum of evidence, the defense may logically not even present evidence on its behalf. In which

case, the presumption of innocence shall prevail and, hence, the accused shall be acquitted. However, once the presumption of innocence is overcome, the defense bears the burden of evidence to show reasonable doubt as to the guilt of the accused.

Whether the degree of proof has been met is largely left for the trial courts to be determined. Consistent with the rulings of this Court, it is but a

fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the case and find it necessary to reverse the appellate court’s decision convicting accused-appellant.

Essentially, Lorenzo questions his conviction on the basis of reasonable doubt. The defense anchors its claim on the failure of the prosecution to adopt the

required procedure under Section 21, Article II, Republic Act No. 9165, on the custody and disposition of confiscated, seized, or surrendered dangerous drugs. According to the defense, this alleged failure to follow proper procedure, i.e. inventory and photographing of the retrieved evidence, raises doubts as to whether the specimen examined by the forensic chemist and presented in court were indeed retrieved from accused-appellant. The defense also faults the police operatives for not having coordinated with the PDEA regarding the buy-bust.

Thus, for resolution by this Court is the sole issue of whether the prosecution discharged its burden of proving Lorenzo’s guilt beyond reasonable doubt for

the crime charged. We rule in the negative. The prosecution’s case fails for failure to establish the identity of the prohibited drug with moral certainty. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the

buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. [9] Material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale had actually taken place, coupled with the presentation in court of evidence of corpus delicti.[10] The term corpus delicti means the actual commission by someone of the particular crime charged.

On the other hand, in illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be

a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug. Similarly, in this case, the evidence of the corpus delicti must be established beyond doubt.

In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The

identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict.

 While buy-bust operations have been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy, a

buy-bust operation is susceptible to police abuse. Thus, courts have been mandated to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses.

Taking the aforementioned into consideration, specific procedures relating to the seizure and custody of drugs have been laid down under the

Implementing Rules and Regulations (IRR) for Republic Act No. 9165 and it is the prosecution’s burden to adduce evidence that these procedures have been complied with in proving the elements of the offense.

The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a),

paragraph 1 of Article II of Republic Act No. 9165, to wit:

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(a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads:(a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory

and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officers/team, shall not render void and invalid such seizures of and custody over said items.

Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements. Indeed, the evident purpose of the procedure is the

preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. Thus, the proviso stating that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers.

In People v. Sanchez,[11] we clarified that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained

the cited justifiable grounds. Accused-appellant claims that no physical inventory and no photographing of the drugs took place. Non-compliance by the police operatives with the

foregoing requirements in the instant case is fatal to the prosecution’s case. Although the prosecution recognized its failure to coordinate with the PDEA because of the urgency of the situation, it ignored the issue of specifically identifying the prohibited drug at the point of confiscation. There is absolutely nothing in the records to show that the inventory and photography requirements, or their credible substitute to prove integrity and evidentiary value, were ever followed.

In People v. Lim,[12] this Court held:xxx any apprehending team having initial custody and control of said drugs and/or paraphernalia, should immediately after seizure

and confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with such a requirement raises a doubt whether what was submitted for laboratory examination and presented in court was actually recovered from the appellants. It negates the presumption that official duties have been regularly performed by the PAOC-TF agents. In Bondad,  Jr.  v.  People,[13] where the prosecution did not inventory and photograph the confiscated evidence, this Court acquitted therein accused

reasoning that failure to comply with the aforesaid requirements of the law compromised the identity of the items seized. In People v. Ruiz,[14] this Court acquitted accused due to the failure of the prosecution to comply with the procedures under Republic Act No. 9165 and its

IRR as no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required. In People v. Orteza,[15] the Court explained the implications of the failure to comply with Paragraph 1, Section 21, Article II of Republic Act No. 9165, to wit:

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.

The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. To reiterate, the flexibility offered by the IRR of Republic Act No. 9165 is coupled with the proviso that the integrity and evidentiary value of the seized

items must be preserved. Thus, in Malillin v. People,[16] the Court explained that the “chain of custody” requirement performs this function in that it ensures that unnecessary doubts

concerning the identity of the evidence are removed. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. [17] Failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from accused is fatal to the prosecution’s case. There can be no crime of illegal possession or illegal sale of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.[18]

PO1 Pineda testified that it was their confidential agent who purchased the shabu from accused-appellant and that he only retrieved it from said

informant. He further testified that he marked the retrieved sachet of shabu together with the two other sachets of shabu that were allegedly seized from the accused, but it was not certain when and where the said marking was done nor who had specifically received and had custody of the specimens thereafter.

The Court also observes that the prosecution did not present the poseur-buyer who had personal knowledge of the transaction. The lone prosecution

witness was at least four meters away from where accused-appellant and the poseur-buyer were. From this distance, it was impossible for him to hear the conversation between accused-appellant and the poseur-buyer.

12

The foregoing facts and circumstances create doubt as to whether the sachets of shabu allegedly seized from accused-appellant were the same ones that

were released to Camp Crame and submitted for laboratory examination. We therefore find that this failure to establish the evidence’s chain of custody is damaging to the prosecution’s case.[19]

In sum, the totality of the evidence presented in the instant case failed to support accused-appellant’s conviction for violation of Sections 5 and 11, Article

II, Republic Act No. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense. Accordingly, the presumption of innocence should prevail.

WHEREFORE, the assailed Court of Appeals Decision dated 14 June 2007 in CA-G.R. CR-H.C. No. 02184, is hereby REVERSED and SET ASIDE. Accused-

appellant PATERNO LORENZO y CASAS is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this Decision the action he has taken. Copies shall also be furnished the Director General, Philippine National Police, and the Director General, Philippine Drugs Enforcement Agency, for their information. SO ORDERED.

J O S E P O R T U G A L P E R E ZA s s o c i a t e J u s ti c e

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

ARTURO D. BRION MARIANO DEL CASTILLO Associate Justice Associate Justice

ROBERTO A. ABAD Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice Chairperson, Second Division

CERTIFICATION

13

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO Chief Justice

1              Rollo, pp. 2-18; Penned by Associate Justice Vicente Q. Roxas, with the concurrence of Associate Justices Josefina Guevara-Salonga and Ramon R. Garcia.[2] CA Rollo, pp. 52-64; Penned by Judge Josephine Fernandez.[3] Section 5. Sale,  Trading,  Administration,  Dispensation,  Delivery,  Distribution and Transportation of Dangerous Drugs and/or  Controlled Precursors and 

Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.xxxSection 11. Possession   of  Dangerous  Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:Xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: (3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos ( P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or "shabu", or other dangerous drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana x xx

SECOND DIVISION

 

PEOPLE OF THE PHILIPPINES,

Appellee, - versus -

JOEL GASPAR y WILSON,

Appellant.

G.R. No. 192816

Present:

CARPIO, J., Chairperson,LEONARDO-DE CASTRO,*

BRION,PEREZ, andSERENO, JJ. Promulgated:

July 6, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

14

The Case Before the Court is an appeal assailing the Decision1 dated 16 March 2010 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02117. The CA affirmed with modification the Decision2 dated 3 February 2006 of the Regional Trial Court (RTC) of Pasig, Branch 70, in Criminal Case Nos. 12840-D, 12841-D, 12842-D, convicting appellant Joel Gaspar y Wilson of violation of (1) Section 5, paragraph 1, Article II (Illegal Sale of Shabu);3 (2) Section 11, 2nd paragraph, No. 3, Article II (Illegal Possession of Shabu);4 and (3) Section 12, Article II (Possession of Paraphernalia for Dangerous Drugs),5 all of Republic Act No. 91656 (RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.

The Facts On 25 August 2003, four separate Informations7 for different violations of RA 9165 were filed with the RTC of Pasig, Branch 70. Three informations were against Joel Gaspar y Wilson (Gaspar), docketed as Criminal Case Nos. 12840-D, 12841-D and 12842-D. The fourth information was against Leomar San Antonio (San Antonio), docketed as Criminal Case No. 12843-D. Theinformations state:

Criminal Case No. 12840-D

That, on or about the 22nd day of August, 2003 in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to sell any dangerous drug, did then and there willfully, unlawfully, and knowingly sell, deliver and give away to another, 0.04 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet, which was found positive to the test for Methylamphetamine Hydrochloride known as “shabu”, a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW.8

Criminal Case No. 12841-D

That, on or about the 22nd day of August, 2003 in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully, and knowingly, possess and have in his custody and control 0.08 gram of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets, with 0.04 gram each, which was found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW.9

Criminal Case No. 12842-D

That, on or about the 22nd day of August, 2003 in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully, and knowingly, possess and have under his custody and control ten (10) transparent plastic sachets, one (1) improvised water pipe, one (1) plastic container, two (2) disposable lighter, one (1) pair of scissors and one (1) wooden stick, which are all instrument, equipment, apparatuses, or paraphernalia fit or intended for smoking, sniffing, consuming and ingesting “shabu”, a dangerous drug, into the body, in violation of the above-cited law. CONTRARY TO LAW.10

Criminal Case No. 12843-D

That, on or about the 22nd day of August, 2003 in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to possess any dangerous drug, did then and there willfully, unlawfully, and knowingly, possess and have in his custody and control 0.04 gram of white crystalline substance contained in one (1) heat-sealed transparent plastic sachet, which was found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation of the above-cited law. CONTRARY TO LAW.11

At the arraignment on 6 October 2003, both accused pleaded not guilty. On 17 November 2003, at the pre-trial conference, the prosecution and defense entered into stipulations of facts regarding the due execution and genuineness of the recovered items marked in evidence, which dispensed with the presentation of the prosecution’s witness, Forensic Chemist Isidro Cariño. The stipulations of facts provide:

1. The due execution and genuineness of the Request for Laboratory Examination dated 22 August 2003 which was marked in evidence as Exhibit “A”, the Specimens Submitted to be marked as Exhibit “A-1” and the stamp showing receipt thereof by the PNP Crime Laboratory as Exhibit “A-2”;

15

2. The due execution and genuineness, as well as the truth of the contents, of Chemistry Report No. D-1618-03e dated August 22, 2003 issued by

Forensic Chemist P/Insp. Isidro Cariño of the Crime Laboratory, Eastern Police District Crime Laboratory Office, Mandaluyong City, which was marked in evidence as Exhibit “B”, the findings as appearing on the report as Exhibit “B-1” and the signature of the forensic chemist over his typewritten name likewise as appearing on the report as Exhibit “B-2”;

3. The existence of the plastic sachets, but not their source or origin, the contents of which was the subject of the Request for Laboratory Examination, which were marked in evidence as follows: as Exhibit “C” (the transparent plastic bag), as Exhibit “C-1” (the 1st plastic sachet marked JWG buy-bust), as Exhibit “C-2” (the 2nd plastic sachet marked JWG1), as Exhibit “C-3” (the 3rd plastic sachet marked JWG2), as Exhibit “C-4” (the 4th plastic sachet marked LASA), as Exhibit “C-5” (the 5th plastic sachet marked JWG9), as Exhibit “C-6” (the improvised water pipe marked JWG4), as Exhibit “C-7” (the plastic contained marked JWG3), as Exhibit “C-8” (the yellow disposable lighter marked JWG5), as Exhibit “C-9” (the scissors), as Exhibit “C-10” (the pink disposable lighter marked JWG7), as Exhibit “C-11” (the wooden stick marked JWG8) and as Exhibit “C-12” (the nine unused plastic sachets marked JWG10).12

Shortly after the pre-trial conference, San Antonio jumped bail and did not appear before the RTC during the trial. Thus, San Antonio was deemed to have waived the presentation of his evidence and the case was submitted for decision without any evidence on his part. The prosecution presented the only witness: Police Officer 1 German Soreta (PO1 Soreta), the poseur-buyer in the buy-bust operation. The other prosecution witness, PO1 Armalito Magumcia(PO1 Magumcia), failed to appear in court despite subpoenas sent to him; thus, his testimony was considered waived in an Order dated 26 April 2005. The prosecution summed up its version of the facts: On 22 August 2003, at around 11:30 in the morning, the San Juan Police Station Drug Enforcement Unit (DEU) through PO1 Soreta received an information via text message that sale of shabu was in progress at the house of a person named Joel Gaspar, appellant in this case, located at No. 26-A Third Street Barangay West Crame, San Juan. PO1 Soreta immediately informed the head of the DEU, Police Inspector Ricardo Marso (Inspector Marso), regarding the message received. Inspector Marso then directed PO1 Soreta, PO1Magumcia, PO1 Jeffrey Timado, and PO1 Dave Loterte to verify the report and, if necessary, to conduct a buy-bust operation. Inspector Marso gave PO1 Soreta, as poseur-buyer, two one-hundred peso bills to be used as buy-bust money. After coordinating with the Philippine Drug Enforcement Agency on the planned buy-bust operation, the police officers proceeded to the target area. Upon reaching the house of Gaspar, the police officers saw two persons just outside the door. One was later identified as Gaspar, who handed something to the other, later identified as San Antonio. After San Antonio left Gaspar’s house, the police officers stopped San Antonio and asked him, “Anong inabot sa iyo?” San Antonio replied, “Bakit?” The police officers said, “Puliskami.” San Antonio opened his hand and there was a sachet of shabu. The police officers immediately arrested San Antonio. PO1 Soreta and PO1 Magumcia informed San Antonio of his constitutional rights and turned him over to PO1 Timario. PO1 Soreta then approached Gaspar, who was already about to enter the house, and told him “Joel pa-iskor naman ng dalawang piso.” Gaspar went out and asked for payment. After receiving the amount of P200.00, Gaspar took out from his right pocket a small transparent plastic sachet and handed it to PO1 Soreta. PO1 Soreta introduced himself as a police officer and arrested and handcuffed Gaspar. The other police officers then rushed to the scene and assisted PO1 Soreta. The police officers recovered from Gaspar’s possession two other small transparent plastic sachets, as well as drug paraphernalia inside the house, which were in plain view from the widely open door. Gaspar and San Antonio were brought to the San Juan Police Station for investigation and filing of charges. The plastic sachets and drug paraphernalia recovered were appropriately marked and brought by PO1 Antazo to the Philippine National Police (PNP) Crime Laboratory for examination. PO1 Soreta also executed an Affidavit of Arrest narrating the circumstances which led to Gaspar’s apprehension. Based on Chemistry Report No. D-1618-03-E dated 22 August 2003,13 Forensic Chemist Isidro Cariño found the recovered sachets positive for methylamphetamine hydrochloride, a dangerous drug.The defense, on the other hand, presented Gaspar and Gloria Santiago (Santiago) as witnesses. Gaspar testified that on 22 August 2003 at about 8:00 in the morning, while he was sleeping with his wife at home, he was awakened by a loud noise and saw two men in civilian attire armed with guns who said, “Mga pulis Crame kami.” Gaspar asked the men what his offense was but they did not answer him and instead told him to stand up. Gaspar was then handcuffed by one while the other searched the house. The one who made the search, later identified as PO1 Soreta, who did not find anything illegal inside the house, told his companion, later identified as PO1 Magumcia, “Pare, dalhin natin sa Crame yan. Doon natin imbestigahan.” PO1 Magumcia then told Gaspar, “Tara, sumama ka na.” At the San Juan Police Station, PO1 Soreta told Gaspar, “Dito, kaya kitang ilubog dito. Kung magbibigay ka ng treinta, wala na tayong pag-uusapan pa, wala kang kaso.” Gaspar, believing that he did not commit any offense, told them to proceed with the filing of the charge. On 25 August 2003, Gaspar was brought for inquest. Here, Gaspar disclosed that he only came to know his co-accused San Antonio inside the jail. To corroborate Gaspar’s testimony, the defense presented Santiago, a neighbor of Gaspar’s who was washing clothes outside her house when the incident occurred. Santiago testified that on 22 August 2003 at around 9:00 in the morning, she saw three persons in civilian clothes kick open the door of Gaspar’s house. Two of them entered the house. Filled with fear, Santiago went inside her house and observed the incident from the window. After some time, she saw Gaspar being pulled out of his house. After the group left with Gaspar, Gaspar’s wife asked Santiago to accompany her to Camp Crame. Upon reaching

16

Camp Crame, they were told that Gaspar was not brought there. Later, they found out that Gaspar was brought to the San Juan Police Station, which they visited the next day. On cross-examination, Santiago admitted that she did not know what actually transpired inside the house since she only peeped through the window when the incident occurred. In its Decision dated 3 February 2006, the RTC found Gaspar and San Antonio guilty beyond reasonable doubt of violation of RA 9165. The RTC stated that given the presumption of regularity in the performance of the police officers’ official duty and absent any clear showing of bias, malice or ill-motive on the part of the prosecution witness, PO1 Soreta, the court gives credence to his testimony. The RTC added that the testimony of a single witness suffices to support a conviction if it is trustworthy and reliable, such as in this case. The dispositive portion of the decision states:

WHEREFORE, premises considered, judgment is hereby rendered as follows: In Criminal Case No. 12840-D accused Joel Gaspar is hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 5, Article II, Republic Act 9165 (Illegal Sale of Shabu), and is hereby sentenced to LIFE IMPRISONMENT and to pay a FINE of Five Hundred Thousand Pesos (PHP 500,000.00). In Criminal Case No. 12841-D accused Joel Gaspar is likewise found GUILTY beyond reasonable doubt of the offense of Violation of Section 11, Article II, Republic Act 9165 (Illegal Possession of Shabu), and is hereby sentenced to suffer imprisonment from Twelve (12) Years and One (1) Day to Twenty (20) Years and to pay a FINE of Three Hundred Thousand Pesos (PHP 300,000.00). In Criminal Case No. 12842-D accused Joel Gaspar is also found GUILTY beyond reasonable doubt of the offense of Violation of Section 12, Article II, Republic Act 9165 (Possession of Paraphernalia for Dangerous Drugs), and is hereby sentenced to Six (6) Months and One (1) Day to Four (4) Years imprisonment and to pay a FINE of Ten Thousand Pesos (PHP 10,000.00). In Criminal Case No. 12843-D accused Leomar San Antonio is hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 11, Article II, Republic Act 9165 (Illegal Possession of Shabu) and is hereby sentenced to suffer imprisonment from Twelve (12) Years and One (1) Day to Twenty (20) Years and to pay a FINE of Three Hundred Thousand Pesos (PHP 300,000.00). Considering the penalty imposed by the Court on accused Joel Gaspar relative to Criminal Case No. 12840-D, his immediate commitment to the National Penitentiary, New Bilibid Prisons, Muntinlupa City, is hereby ordered. Pursuant to Section 20 of Republic Act 9165, the amount of PHP 200.00 recovered from the accused Joel Gaspar representing the proceeds from the illegal sale of shabu is hereby ordered forfeited in favor of the government. Again, pursuant to Section 21 of the same law, representatives from the Philippine Drug Enforcement Agency (PDEA) are hereby ordered to take charge and have custody over the sachets of shabu and drug paraphernalia object of these cases for proper disposition. SO ORDERED.14

Gaspar filed an appeal with the CA. Gaspar imputed the following errors on the RTC: I. THE COURT A QUO GRAVELY ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF THE PROSECUTION’S LONE WITNESS AND IN

DISREGARDING THE THEORY OF THE DEFENSE.

II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR VIOLATION OF SECTIONS 5, 11 & 12 OF REPUBLIC ACT NO. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS FAVOR.15

The Ruling of the Court of Appeals In a Decision dated 16 March 2010, the CA affirmed with modification the decision of the RTC. The CA found that the prosecution fully discharged its burden of establishing all the elements of the crimes charged. The CA stated that the prosecution was able to prove that the chain of custody of the seized prohibited drugs remained intact from the time the drugs were recovered until they were submitted to the PNP Crime Laboratory for testing. As a result, the integrity and evidentiary value of the drugs seized from Gaspar were duly proven not to have been compromised. The CA added that the corpus delicti and the other elements of the crimes charged were sufficiently established by the prosecution beyond reasonable doubt. Thus, the evidence presented by the prosecution prevails over the defense of frame-up alleged by Gaspar, which was not substantiated by clear and convincing evidence. The dispositive portion of the decision states:

WHEREFORE, premises considered, the present appeal of accused-appellant Joel Gaspar y Wilson is DENIED. The Decision dated 3 February 2006 of the Regional trial Court, Branch 70, Pasig City convicting accused-appellant Joel Gaspar y Wilson of Violation of Sections 5, 11, and 12,

17

Article II of Republic Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act of 2002 in Criminal Case Nos. 12840-D, 12841-D and 12842-D is hereby AFFIRMED WITH MODIFICATION on the penalty imposed to wit: In Criminal Case No. 12840-D accused-appellant is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE of Five Hundred Thousand Pesos (PHP 500,000.00). In Criminal Case No. 12841-D accused-appellant is hereby sentenced to suffer the penalty of imprisonment of TWELVE (12) YEARS and ONE (1) DAY as minimum to FIFTEEN (15) YEARS as maximum and to pay a fine of THREE HUNDRED THOUSAND PESOS (P300,000.00), as provided in Section 11, Article II, RA No. 9165; and In Criminal Case No. 12842-D accused-appellant is hereby sentenced to suffer the penalty of SIX (6) MONTHS and ONE (1) DAY, as minimum, to TWO (2) YEARS and SEVEN (7) MONTHS, as maximum and to pay a fine of TEN THOUSAND PESOS (P10,000.00), as provided in Section 12, Article II, RA No. 9165. SO ORDERED.16

Appellant Gaspar now comes before the Court, submitting that the Decision dated 16 March 2010 of the CA is contrary to facts, law and applicable jurisprudence.

The Ruling of the Court

The appeal lacks merit. At the outset, we reiterate the fundamental rule that findings of the trial court, which are factual in nature and which involve the credibility of witnesses, are accorded respect when no glaring errors, gross misapprehension of facts or speculative, arbitrary and unsupported conclusions can be gathered from such findings.17 This rule finds an even more stringent application where said findings are sustained by the Court of Appeals, like in the present case. In a successful prosecution for offenses involving the illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the following elements must concur: (1) the identities of the buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment for it.18 What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.19

In Criminal Case No. 12840-D, all these elements were present. PO1 Soreta testified that he was the poseur-buyer in the buy-bust operation conducted and identified Gaspar as seller of the plastic sachet containing shabu in exchange for a consideration of P200.00. The sale was consummated after the exchange of buy-bust money and plastic sachet occurred. In People v. Encila,20 we held that the delivery of the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapment officers and the accused. The crime of illegal sale of dangerous drugs is committed as soon as the sale transaction is consummated. On the other hand, under Section 11, Article II of RA 9165, the elements of the offense of illegal possession of dangerous drugs are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.21

Again, in Criminal Case No. 12841-D, all of these elements were duly proven. PO1 Soreta properly identified appellant as the one he transacted with in the buy-bust operation and later arrested after the sale took place. After being arrested in flagrante   delicto , the police officers found in appellant’s possession two small transparent plastic sachets each containing 0.04 gram of shabu , a prohibited drug, which appellant was not authorized to possess. Next, appellant asserts that the recovery of the drug paraphernalia seen from outside the house because of the widely open door is unbelievable since no person in his right mind would display the same for anyone to see. We disagree. Drug pushing, especially the ones done on a small scale, happens instantly. The illegal transaction takes place after the offer to buy is accepted and the exchange is made. Since Gaspar was already about to enter the house, he may not have intended to keep the door open when PO1 Soreta approached him to carry out a sale transaction. Thus, at the time the arrest was made, it would not have been improbable for the drug paraphernalia to be seen from outside because of the open door.Appellant also claims that it is highly unlikely that PO1 Soreta could have easily bought shabu from him given that PO1 Soreta is a complete stranger. In drug related cases, what is relevant is the agreement and acts constituting the sale and delivery of the dangerous drug between the seller and buyer and not the existing familiarity between them. It is of common knowledge that pushers, especially small-time dealers, peddle prohibited drugs in the open like any articles of commerce.22 Drug pushers do not confine their nefarious trade to known customers and complete strangers are accommodated provided they have the money to pay.23 Thus, it is not improbable that Gaspar sold shabu to a complete stranger like PO1 Soretawho presented himself as a buyer. Appellant further insists that the courts relied mainly on the version of the prosecution’s lone witness and placed more weight on the presumption of regularity in the performance of duty instead of the accused’s right to be presumed innocent.

18

In People v. De Guzman,24 we held that in cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary suggesting ill-motive on the part of the police officers. Here, appellant failed to show that the police officers deviated from the regular performance of their duties. Appellant’s defense of denial is weak and self-serving. Unless corroborated by other evidence, it cannot overcome the presumption that the police officers have performed their duties in a regular and proper manner. Also, while an accused in a criminal case is presumed innocent until proven guilty, the evidence of the prosecution must stand on its own strength and not rely on the weakness of the evidence of the defense.25 In this case, the quantum of evidence necessary to prove appellant’s guilt beyond reasonable doubt had been sufficiently met. Thus, the prosecution was able to overcome appellant’s constitutional right to be presumed innocent. In sum, we find no cogent reason to depart from the decision of the RTC and CA. Gaspar is guilty beyond reasonable doubt of violation of Sections 5, 11 and 12, Article II of Republic Act No. 9165. WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 16 March 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 02117.SO ORDERED. ANTONIO T. CARPIOAssociate Justice WE CONCUR:

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRION JOSE PORTUGAL PEREZAssociate Justice Associate Justice MARIA LOURDES P.A. SERENOAssociate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.ANTONIO T. CARPIOAssociate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. RENATO C. CORONA

19

Chief Justice

* Designated acting member per Special Order No. 1006 dated 10 June 2011.1Rollo, pp. 2-15. Penned by Justice Florito S. Macalino with Justices Rosmari D. Carandang and Ramon M. Bato, Jr., concurring.2CA rollo, pp. 21-30. Penned by Judge Pablito M. Rojas.3Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. x x x4Section 11. Possession of Dangerous Drugs. - x x x Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:x x x(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or “shabu”, or other dangerous drugs such as, but not limited to, MDMA or “ecstasy”, PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred (300) grams of marijuana.5Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs. - The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body x x x.6An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs Act of 1972, As Amended, Providing Funds Therefor, and for Other Purposes. Approved on 23 January 2002 and took effect on 7 June 2002.

EN BANC[G.R. No. 139615. May 28, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. AMADEO TIRA and CONNIE TIRA, appellants.D E C I S I O N

CALLEJO, SR., J.:This is an appeal of the Decision[1] of the Regional Trial Court of Pangasinan, Branch 46, finding appellants Amadeo Tira and Connie Tira guilty

beyond reasonable doubt of violating Section 16, in relation to Section 20, Article III of Republic Act No. 6425, known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659, sentencing each of them to suffer the penalty of reclusion perpetua and ordering each of them to pay a fine of P1,000.000.[2]

The IndictmentThe appellants Amadeo Tira and Connie Tira were charged in an Information which reads:

That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:- Three (3) (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue- One (1) brick of dried marijuana leaves weighing 721 grams- Six disposable lighter- One (1) roll Aluminum Foil- Several empty plastics (tea bag)- Cash money amounting to P12,536.00 in

different denominations believed to be proceedsof the contraband.

without first securing the necessary permit/license to possess the same.CONTRARY to SEC. 8 in relation to Sec. 20 of RA 6425, as amended.[3]

The Case for the Prosecution[4]

In the evening of February 24, 1998, SPO3 Asidelio Manibog received a verbal instruction from the Chief of Police Superintendent Wilson R. Victorio to conduct surveillance operations on the house of Amadeo Tira and Connie Tira at Perez Extension Street because of reported rampant drug activities in the said area. Manibog formed a team composed of SPO1 Renato Cresencia, PO3 Reynaldo Javonilla, Jr. and PO3 Efren Abad de Vera to conduct the ordered surveillance.

At around 8:00 p.m., the group, clad in civilian clothes, arrived at Perez Extension Street. As they stationed themselves in the periphery of a store, they observed that more than twenty persons had gone in and out of the Tira residence. They confronted one of them, and asked what was going on inside the house. The person revealed that Amadeo Tira sold shabu, and that he was a regular customer. The group went closer to the house and started planning their next move. They wanted to pose as buyers, but hesitated, for fear of being identified as PNP members. Instead, they stayed there up to 12:00midnight and continued observing the place. Convinced that illegal activities were going on in the house, the policemen returned to the station

20

and reported to P/Supt. Wilson R. Victorio. After hearing their report, P/Supt. Victorio instructed his men to make an affidavit of surveillance preliminary to an application for a search warrant.[5]

On March 6, 1998, SPO3 Asidelio Manibog, PO3 Efren Abad de Vera, SPO1 Renato Cresencia and PO2 Reynaldo Soliven Javonilla, Jr. executed an Affidavit of Surveillance, alleging, inter alia, that they were members of the Drug Enforcement Unit of Urdaneta, Pangasinan, and that in the evening of February 24, 1998, they confirmed reports of illegal drug-related activities in the house of the spouses Amadeo and Connie Tira. [6] On March 6, 1998[7] Police Chief Inspector Danilo Bumatay Datu filed an Application for a Search Warrant in the Municipal Trial Court of Urdaneta, Pangasinan, attaching thereto the affidavit of surveillance executed by his men and a sketch of the place to be searched.[8]

Satisfied with the testimonies of SPO3 Manibog, PO3 de Vera, SPO1 Cresencia and PO2 Javonilla, Jr., Judge Aurora A. Gayapa issued a search warrant commanding the applicants to make an immediate search of the Tira residence at anytime of the day or night, particularly the first room on the right side, and the two rooms located at Perez south, and forthwith seize and take possession of the following items:1. Poor Man’s Cocaine known as Shabu;

2. Drug-Usage Paraphernalia; and3. Weighing scale.[9]

P/Sr. Inspector Ludivico Bravo, and as head of the team, with SPO3 Cariaga, PO3 Concepcion, Cariño, Galima, Villaroya, Andaya, SPO1 Mario Tajon, SPO1 Asterio Dismaya, SPO1 Renato Cresencia, and PO3 Reynaldo Javonillo were directed to implement the search warrant. [10] They responded and brought Barangay Kagawad Mario Conwi to witness the search.[11] At 2:35 p.m. on March 9, 1998, the team proceeded to the Tira residence. The men found Ernesto Tira, the father of Amadeo, at the porch of the house. They introduced themselves and told Ernesto that they had a warrant authorizing them to search the premises. Ernesto led them inside. The policemen found the newly awakened Amadeo inside the first room [12] of the house.[13] With Barangay Kagawad Conwi and Amadeo Tira, the policemen proceeded to search the first room to the right (an inner room) and found the following under the bed where Amadeo slept:[14]

1. 9 pcs. suspected methamphetamine hydrochloride placed in heat-sealed transparent plastic sachets2. roll aluminum foil3. several empty plastic transparent4. used and unused aluminum foil[15]

5. disposable lighters6. 1 sachet of shabu confiscated from Nelson Tira[16]

They also found cash money amounting to P12,536 inside a shoulder bag placed on top of the television, in the following denominations: 1 pc. -P1,000.00 bill

4 pcs. - 500.00 bill 52 pcs. - 100.00 bill 36 pcs. - 50.00 bill 100 pcs. - 20.00 bill 53 pcs. - 10.00 bill 1 pc. - 5.00 bill

1 pc. - 1.00 coin[17]

The policemen listed the foregoing items they found in the house. Amadeo’s picture was taken while he was signing the said certification.[18] Ernesto (Amadeo’s father), also witnessed the certification.

A joint affidavit of arrest was, thereafter, executed by SPO3 Asidelio Manibog, SPO1 Mario C. Tajon, SPO1 Asterio T. Dismaya, SPO1 Renato M. Cresencia and PO3 Reynaldo S. Javonilla, Jr. for the apprehension of Amadeo Tira and Nelson Tira who were brought to the police station for custodial investigation. The articles seized were turned over to the PNP Crime Laboratory, Urdaneta Sub-Office, for examination. [19] In turn, a laboratory examination request was made to the Chief of the Philippine National Police Service-1, Sub-Office, Urdaneta, Pangasinan for the following:

a. Three (3) sachets of suspected methamphetamine hydrochloride approximately 0.5 grams;b. Six (6) opened sachets of suspected methamphetamine hydrochloride (SHABU) residue;c. Twenty-four (4) pieces of dried marijuana leaves sachet; andd. One (1) heat-sealed plastic sachet of suspected methamphetamine hydrochloride confiscated from the possession of Nelson Tira.

[20]

On March 10, 1998, P/Supt. Wilson R. Victorio executed a Compliance/Return of Search Warrant.[21]

On March 17, 1998, the PNP Crime Laboratory Group in Physical Science Report No. DT-057-98 reported that the test conducted by Police Superintendent/Chemist Theresa Ann Bugayong-Cid,[22]yielded positive for methamphetamine hydrochloride (shabu) and marijuana. The report contained the following findings:“A1 to A3, “B1 to B6,” “E” – POSITIVE to the test for methamphetamine hydrochloride (shabu), a regulated drug.“C” and “D1 to D4” – POSITIVE to the test for marijuana, a prohibited drug.CONCLUSION:Specimens A1 to A3, B1 to B6 and E contain methamphetamine hydrochloride (Shabu) and specimens C and D1 to D24 contain marijuana.[23]

A criminal complaint was filed by P/Supt. Wilson R. Victorio against Amadeo Tira and Connie Tira on March 10, 1998 for violation of Rep. Act No. 6425, as amended.[24] After finding probable cause, Assistant Provincial Prosecutor Rufino A. Moreno filed an Information against the Tira Spouses for illegal possession of shabu and marijuana, in violation of Section 8, in relation to Section 20 of Rep. Act No. 6425. [25] A warrant of arrest was issued against Connie Tira on May 13, 1998. However, when the policemen tried to serve the said warrant, she could not be found in the given address.[26] She was arrested only on October 6, 1998.[27]

During the trial, the court conducted an ocular inspection of the Tira residence.[28]

The Case for Accused Amadeo Tira[29]

Amadeo Tira denied the charge. He testified that he was a furniture delivery boy[30] who owned a one-storey bungalow house with two bedrooms and one master’s bedroom. There was also another room which was divided into an outer and inner room; the latter room had no windows or ventilation. The house stood twenty meters away from Perez Extension Street in Urdaneta, Pangasinan, and could be reached only by foot. [31] He leased

21

the room located at the western portion to his nephew Chris Tira [32] and the latter’s live-in-partner Gemma Lim for four hundred pesos a month.[33] Chris and Gemma were engaged in the buying and selling of bananas. He denied that there were young men coming in and out of his house.[34]

In the afternoon of March 6, 1998, he was in his house sleeping when the policemen barged into his house. He heard a commotion and went out of the room to see what it was all about, and saw police officers Cresencia, Javonilla and Bergonia, searching the room of his nephew, Chris Tira. He told them to stop searching so that he could contact his father, Ernesto, who in turn, would call the barangay captain. The policemen continued with their search. He was then pulled inside the room and the policemen showed him the items they allegedly found.[35]

Barangay Kagawad Mario Conwi testified that on March 9, 1998, while he was at Calle Perez, Urdaneta, Pangasinan, Capt. Ludivico Bravo asked to be accompanied to the Tira residence. Capt. Bravo was with at least ten other policemen. As they parked the car at Calle Perez, the policemen saw a man running towards the direction of the ricefields. Kagawad Conwi and some of the policemen chased the man, who turned out to be Nelson Tira. One of the policemen pointed to a sachet of shabu which fell to the ground near Nelson. The policemen arrested him and proceeded to the house of Amadeo Tira to serve the warrant.[36] When they reached the house, the other policemen were waiting. He saw Amadeo and Connie Tira sitting by the door of the house in the sala. Thereafter, he and the policemen started the search.[37] They searched the first room located at the right side (if facing south), [38] and found marijuana, shabu, money and some paraphernalia.[39] An inventory of the items seized was made afterwards, which was signed by Capt. Bravo and Ernesto Tira.[40]

Alfonso Gallardo, Amadeo’s neighbor, testified that he was the one who constructed the Tira residence and that the house initially had two rooms. The first room was rented out, while the second room was occupied by the Spouses Amadeo and Connie Tira. [41] Subsequently, a divider was placed inside the first room.[42] He also testified that his house was only three (3) meters away from that of the Tiras, and that only a toilet separated their houses.[43] He denied that there were many people going in and out of the Tira residence.[44]

The Ruling of the Trial CourtThe trial court rendered judgment on September 24, 1998, finding Amadeo Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams

of marijuana and 1.001 gram of shabu.  The decretal portion of its decision is herein quoted:WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused AMADEO TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Sections 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659. The Court sentences Amadeo Tira to suffer the penalty of Reclusion Perpetua and a fine of P1,000,000.00.The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable lighter and the aluminum foil are likewise forfeited in favor of the government.The Branch Clerk of Court of this Court is hereby ordered to prepare the mittimus.The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Amadeo Tira to the National Bilibid Prison with proper escort within fifteen (15) days upon receipt of this Order.[45]

The trial court upheld the validity of Search Warrant No. 3 issued by Judge Aurora Gayapa. It found Amadeo’s defense, that the room where the items were seized was rented out to the couple Cris Tira and Gemma Lim, unsubstantiated. It held that Amadeo, as owner of the house, had control over the room as well as the things found therein and that the inner room was a secret and practical place to keep marijuana, shabu and related paraphernalia.[46]

Amadeo appealed the decision.[47]

The Case Against Connie TiraAfter her arrest, Connie filed a motion to quash search warrant,[48] alleging that the police officers who applied for the said warrant did not have any

personal knowledge of the reported illegal activities. She contended that the same was issued in violation of Section 4, Rule 126 of the Rules of Court, as the judge issued the search warrant without conducting searching questions and answers, and without attaching the records of the proceedings. Moreover, the search warrant issued was in the nature of a general warrant, to justify the “fishing expedition” conducted on the premises.

On October 26, 1998, the presiding judge ordered Judge Aurora A. Gayapa to forward the stenographic notes of the applicant and the witnesses.[49] Connie was arraigned on November 9, 1998, pending the resolution of the motion. She pleaded not guilty to the charge of illegal possession of shabu and marijuana.[50] The trial court thereafter issued an Order on November 11, 1998, denying the motion to quash.[51] It did not give credence to the allegations of Connie Tira, and found that Judge Gayapa issued the search warrant after conducting searching questions, and in consideration of the affidavit of witness Enrique Milad.

Connie testified that she was engaged in the business of buying and selling of fruits, while her husband was employed at the Glasshouse Trading. One of the rooms in their house was occupied by their three boarders, two male persons and one female.

In the afternoon of March 9, 1998, she and her husband Amadeo were in their house, while their boarders were in their respective rooms. At 2:30 p.m., she was in the kitchen taking care of her one-year-old child. She had other three children, aged eight, four, and three, respectively, who were watching television. Her husband Amadeo was sleeping in one of the rooms. Suddenly, five policemen barged into their house and searched all the rooms. The policemen found and seized articles in the room occupied by one of their boarders. They arrested Amadeo, and her brother-in-law, Nelson Tira, and brought them to the police station. The boarders, however, were not arrested.

Joy Fernandez, a neighbor of the Tiras, lived approximately ten meters away from the latter. Since they had no television, she frequently went to her neighbor’s house to watch certain programs. In the afternoon of March 9, 1998, she was at the Tira residence watching “Mirasol,” while Connie was in the kitchen nursing her baby. Suddenly, about five or ten persons ran inside the house and handcuffed Amadeo Tira.[52]

The Ruling of the Trial CourtThe trial court found Connie Tira guilty beyond reasonable doubt of illegal possession of 807.3 grams of marijuana and 1.001 gram of shabu. The

dispositive portion of the decision reads:WHEREFORE, JUDGMENT is hereby rendered CONVICTING beyond reasonable doubt accused CONNIE TIRA for Illegal Possession of Marijuana weighing 807.3 grams and shabu weighing 1.001 gram penalized under Article III, Section 16 and 20, of Republic Act 6425, known as [the] Dangerous Drugs Act of 1972, as amended by Republic Act 7659, the Court sentences Connie Tira to suffer the penalty of Reclusion Perpetua and a fine ofP1,000,000.00.The amount of P12,536.00 is hereby forfeited in favor of the government which forms part of the fine; the marijuana weighing 807.3 grams and shabu weighing 1.001 gram are hereby forfeited in favor of the government; the disposable lighter and the aluminum foil are, likewise, forfeited in favor of the government.

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The Warden, Bureau of Jail Management and Penology (BJMP) is hereby ordered to transmit the person of Connie Tira to the National Bilibid Prisons with proper escort within fifteen (15) days upon receipt of his Order.[53]

The trial court did not believe that Connie Tira had no knowledge, control and possession of the shabu and marijuana found in the first or inner room of their house. It stressed that Connie and Amadeo Tira jointly controlled and possessed the shabu and marijuana that the policemen found therein. It ratiocinated that it was unusual for a wife not to know the existence of prohibited drugs in the conjugal abode. Thus, as husband and wife, the accused conspired and confederated with each other in keeping custody of the said prohibited articles. [54] The court also held that Connie Tira’s flight from their house after the search was an indication of her guilt. Connie, likewise, appealed the decision.[55]

The Present AppealIn their brief, the appellants Amadeo and Connie Tira assigned the following errors committed by the trial court:

ITHE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS DESPITE FAILURE ON THE PART OF THE PROSECUTION TO PROVE THEIR GUILT BEYOND REASONABLE DOUBT.

IITHE TRIAL COURT ERRED IN NOT HOLDING THAT THE SEARCH WAS ILLEGALLY MADE.

IIIASSUMING THAT ACCUSED-APPELLANT AMADEO TIRA IS GUILTY AS CHARGED, THE TRIAL COURT ERRED IN HOLDING THAT THERE WAS A CONSPIRACY BETWEEN HIM AND HIS WIFE CONNIE TIRA.[56]

The Court shall resolve the assigned errors simultaneously as they are interrelated.The appellants contend that the search conducted by the policemen in the room occupied by Chris and Gemma Lim, where the articles and

substances were found by the policemen, was made in their absence. Thus, the search was made in violation of Section 7, Rule 126 of the Rules of Criminal Procedure, which provides:SEC. 7. Search of house, room, or premise, to be made in presence of two witnesses. – No search of house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality.

The appellants posit that the articles and substances found by the policemen in their house are inadmissible in evidence, being the fruits of a poisonous tree. Hence, they contend, they should have been acquitted of the crime charged. The appellants further assert that the prosecution failed to prove that they owned the prohibited drugs, and that the same were in their possession and control when found by the policemen. They insist that it cannot be presumed that they were in control and possession of the said substances/articles simply because they owned the house where the same were found, considering that the room was occupied by Chris Tira and his live-in partner, Gemma Lim.

The appellant Connie Tira avers that she never fled from their house after the policemen had conducted the search. Neither was she arrested by the policemen when they arrested her husband.

The appeals have no merit.Contrary to the appellants’ claim, appellant Amadeo Tira was present when the policemen searched the inner room of the house. The articles and

substances were found under the bed on which the appellant Amadeo Tira slept. The policemen did not find the said articles and substances in any other room in the house:

Q So when you reached the house of Amadeo Tira at the Tira’s compound, you saw the father and you told him you are implementing the Search Warrant and your group was allowed to enter and you are allowed to search in the presence of Amadeo Tira?

A Yes, Sir.PROS. DUMLAOQ In the course of your search, what did you find?WITNESS:A We found out suspected marijuana leaves, Sir.Q Where, in what particular place did you find?A Under the bed inside the room of Amadeo Tira, SirQ What else did you find aside from marijuana leaves?A We also find suspected sachet of shabu, Sir.Q What else?A Lighter, Sir.COURT:Q If that shabu will be shown to you, could you identify the same?WITNESS:A Yes, Sir.Q About the marijuana leaves, if shown to you could you identify the same?A Yes, Sir.PROS. DUMLAO:Q What else did you find out aside from the marijuana leaves, shabu and lighter?

…A I have here the list, Sir.

One (1) brick of marijuana24 pcs. tea bag of marijuana9 pcs. sachets of suspected “shabu”6 disposable lighters1 roll of aluminum foilseveral empty plastic; several used

23

and unused aluminum foilone (1) sachet of shabu confiscated from Nelson Tira; andP12,536.00 cash in different denominations proceeds of the contrand (sic).

COURT:Q Where did you find the money?

…A Near the marijuana at the bag, Sir.Q About the money, could you still identify if shown to you?A Yes, Sir.Q When you found shabu, lighter, marijuana, and money, what did you do?A We marked them, Sir.Q All of the items?A Only the marijuana, Sir.Q What mark did you place?A My signature, Sir.[57]

…PROS. TOMBOC:

…Q And when you were allowed to enter the house, did you notice who was present?A I noticed the presence of Connie Tira, Sir.Q When you said Connie Tira, is she the same Connie Tira the accused in this case?A Yes, Sir, she was taking care of the baby.Q Who else?A We also noticed the presence of Amadeo Tira, Sir.Q What was he doing there?A He was newly awake, Sir.Q Upon entering the house, what did you do?A We entered and searched the first room, Sir.Q What did you find out?A Shabu and Marijuana and paraphernalia, Sir.Q Are you one of those who entered the house?A Yes, Sir.Q Can you mention to the Honorable Court those items that you searched in the house of Connie Tira and Amadeo Tira?A As per in (sic) our records, we found three (3) sachets containing suspected Methamphetamine Hydrochloride “Shabu” residue; one (1)

brick of suspected dried marijuana leaves weighing more or less 750 grams; twenty-four (24) tea bags containing dried marijuana leaves; six (6) disposable lighter; one (1) roll aluminum foil; several empty plastics (tea bag); several used and unused aluminum foil; and cash money amounting to P12,536.00 in different denominations believe[d] to be proceeds of the contraband, Sir.

Q You said you recovered one (1) brick of marijuana leaves, showing to you a (sic) one (1) brick suspected to be marijuana leaves, is this the one you are referring to?

A Yes, Sir, this is the one.[58]

Appellant Amadeo Tira was not the only witness to the search; Kagawad Mario Conwi and Ernesto Tira, Amadeo’s father, were also present. Ernesto Tira even led the policemen inside the house. This is evidenced not only by the testimony of Kagawad Conwi, but also by the certification signed by the appellant himself, along with Kagawad Conwi and Ernesto Tira.[59]

The trial court rejected the testimony of appellant Amadeo Tira that the inner room searched by the policemen was occupied by Chris Tira and his girlfriend Gemma Lim with the following encompassing disquisition:… The defense contention that a couple from Baguio City first occupied the first room, the Court is not persuaded because they did not present said businessmen from Baguio City who were engaged in vegetable business. Secondly, the same room was rented by Chris Tira and Gemma Lim. Chris Tira and Gemma Lim, engaged in banana business, were not presented in Court. If it were true that Chris Tira and Gemma Lim were the supposed lessees of the room, they should have been apprehended by the searching party on March 9, 1998, at about 2:30 p.m. There was no proof showing that Chris Tira and Gemma Lim ever occupied the room, like personal belongings of Chris Tira and Gemma Lim. The defense did not even show proof showing that Chris Tira reside in the first room, like clothings, toothbrush, soap, shoes and other accessories which make them the residents or occupants of the room. There were no kitchen plates, spoons, powder, or soap evidencing that the said room was occupied by Chris Tira and Gemma Lim. Amadeo Tira contended that Chris Tira and Gemma Lim are engaged in banana business. There are no banana stored in the room at the time of the search and both of them were out of the room at the time of the search. And why did not Amadeo Tira supply the police officers of the personal identities and address where they could find Chris Tira and Gemma Lim at the time of the search. If they were banana dealers, they must be selling their banana in the market and they could have pointed them in the market.[60] …

We are in full accord with the trial court. It bears stressing that the trial court conducted an ocular inspection of the house of the appellants, and thus, had first hand knowledge of the layout of the house. Besides, the testimony of the appellant Amadeo Tira, that the inner room was occupied by Chris Tira and Gemma Lim who were not there when the search was conducted, is belied by the testimony of the appellant Connie Tira that the room was occupied by two male and one female boarders who were in the room when the policemen searched it. Thus:

Q You said that while taking care of your baby, several policemen barged [sic] your house?…A Yes, Sir.Q And they proceeded to your room where your husband was sleeping at that time?

24

A Yes, Sir.Q And it is in that room where your husband was sleeping and where those articles were taken?A No, Sir.Q Where are (sic) those things came (sic) from?A At the room where my boarders occupied, Sir.Q So, at that time where were those boarders?A They were inside their room, Sir.Q How many of them?A Two (2) male persons and one woman, Sir.Q And do you know their whereabout[s], Madam Witness?A No more, Sir.Q When did they leave, Madam Witness?A At that time, they left the house, Sir.Q They were not investigated by the police?A No, Sir.[61]

We agree with the finding of the trial court that the only occupants of the house when the policemen conducted their search were the appellants and their young children, and that the appellants had no boarders therein.

Before the accused may be convicted of violating Section 8 of Republic Act No. 6425, as amended by Rep. Act No. 7659, the prosecution is burdened to prove beyond reasonable doubt the essential elements of the crime, viz: (1) the actual possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and, (3) the accused freely or consciously possessed the said drug.[62]

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. [63] On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. [64] Exclusive possession or control is not necessary.[65] The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.[66]

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would not exonerate the accused.[67] Such fact of possession may be proved by direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug.[68] Since knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place over which the accused has control or dominion, or within such premises in the absence of any satisfactory explanation.[69]

In this case, the prohibited and regulated drugs were found under the bed in the inner room of the house of the appellants where they also resided. The appellants had actual and exclusive possession and control and dominion over the house, including the room where the drugs were found by the policemen. The appellant Connie Tira cannot escape criminal liability for the crime charged simply and merely on her barefaced testimony that she was a plain housewife, had no involvement in the criminal actuations of her husband, and had no knowledge of the existence of the drugs in the inner room of the house. She had full access to the room, including the space under the bed. She failed to adduce any credible evidence that she was prohibited by her husband, the appellant Amadeo Tira, from entering the room, cleaning it, or even sleeping on the bed. We agree with the findings and disquisition of the trial court, viz:The Court is not persuaded that Connie Tira has no knowledge, control and possession of the shabu and marijuana (Exhibits “M,” “N,” “O” and “P”) found in their room. Connie Tira and Amadeo Tira jointly control and possess the shabu (Exhibits “M” and “N”) and marijuana (Exhibits “O” and “P”) found in the room of their house. It is unusual for a wife not to know the existence in their conjugal abode, the questioned shabu and marijuana. The husband and wife (Amadeo and Connie) conspired and confederated with each other the keeping and custody of said prohibited articles. Both of them are deemed in possession of said articles in violation of R.A. 6425, Section 8, in relation to Section 20.

The Crimes Committed by the AppellantsThe trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended. The Office of the

Solicitor General (OSG) asserts that the appellants should be convicted of violating Section 8 of Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold that the appellants are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, (b) violation of Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one Information was filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and shabu in one Information which reads:That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:- Three (3) pieces (sic) sachets of shabu

- Six (6) pieces opened sachets of shabu residue- One (1) brick of dried marijuana leaves weighing 721 grams

- Twenty-four (24) tea bags of dried marijuana leaves weighing 86.3 grams- Six [6] disposable lighter- One (1) roll Aluminum foil- Several empty plastics (tea bag)

- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.

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without first securing the necessary permit/license to posses[s] the same.CONTRARY TO SEC. 8, in relation to Sec. 20 of R.A. 6425, as amended.”[70]

The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged. The said Rule provides:SEC. 3. Judgment for two or more offenses. - When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.

The Proper Penalties On the AppellantsThe crime of violation of Section 8, Article II of Rep. Act No. 6425, as amended, for illegal possession of 807.3 grams of marijuana, a prohibited drug,

is punishable by reclusion perpetua to death. Considering that there are no qualifying circumstances, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably to Article 63 of the Revised Penal Code and are ordered to pay a fine of P500,000.00.

Under Section 16, Article III of Rep. Act No. 6425, as amended, the imposable penalty of possession of a regulated drug, less than 200 grams, in this case, shabu, is prision correccional to reclusion perpetua. Based on the quantity of the regulated drug subject of the offense, the imposable penalty shall be as follows: QUANTITY IMPOSABLE PENALTY Less than one (1) gram to 49.25 grams prision correccional

49.26 grams to 98.50 grams prision  mayor 98.51 grams to 147.75 grams reclusion temporal

          147.76 grams to 199 grams reclusion perpetuaConsidering that the regulated drug found in the possession of the appellants is only 1.001 grams, the imposable penalty for the crime is prision 

correccional.  Applying the Indeterminate Sentence Law, the appellants are sentenced to suffer an indeterminate penalty of from four (4) months and one (1) day of arresto mayor in its medium period as minimum, to three (3) years of prision correccional  in its medium period as maximum, for violation of Section 16 of Rep. Act No. 6425, as amended.

IN LIGHT OF ALL THE FOREGOING, appellants Amadeo and Connie Tira are found GUILTY beyond reasonable doubt of violating Section 8, Article II of Rep. Act No. 6425, as amended, and are hereby sentenced to suffer the penalty of reclusion perpetua, and ORDERED to pay a fine of P1,000,000.00. The said appellants are, likewise, found GUILTY beyond reasonable doubt of violating Section 16, Article III of Rep. Act No. 6425, as amended, and are sentenced to suffer an indeterminate penalty of from Four (4) Months and One (1) Day of arresto mayor in its medium period as minimum, to Three (3) years of prision correccional, in its medium period, as maximum.

No costs.SO ORDERED.Vitug,   Panganiban,   Quisumbing,   Ynares-Santiago,   Sandoval-Gutierrez,   Carpio,   Austria-Martinez,   Corona,   Carpio-Morales,   Azcuna, and Tinga, 

JJ., concur.Davide, Jr., C.J., on official leave.Puno, J., on official leave.

FIRST DIVISION[G.R. No. 135323. June 25, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. EDELMA LAGATA y MANFOSTE, appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

26

Edelma Lagata was accused of having in her possession, custody and control Methamphetamine Hydrochloride or “shabu” without authority of law. The information reads:

That on or about the 10th day of December, 1996, in Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, EDELMA LAGATA Y MANFOSTE aka BABY, without authority of law, did then and there willfully, unlawfully and feloniously have in her possession, custody and control 257.422 grams of Methamphetamine Hydrochloride (SHABU), a regulated drug, without a corresponding license.CONTRARY TO LAW.[1]

The case was docketed as Criminal Case No. 96-9539 of the RTC of Pasay City, Branch 110.Upon arraignment on January 21, 1997, accused assisted by her counsel de parte pleaded not guilty to the crime charged against her.After trial, the court rendered its judgment, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused EDELMA LAGATA y MANFOSTE, GUILTY beyond reasonable doubt of the offense of Violation of Section 16 Article III in relation to Section 20 Republic Act 6425, as amended by Republic Act 7659, and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns said accused to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.The 257.422 grams of Methamphetamine Hydrochloride or “shabu” (Exhibit “B”, “B-1-a” “B-1-b”) are hereby declared confiscated in favor of the government but in view of the fact that said specimen is in the possession of Forensic Chemist, Mrs. Lilia B. Ariola of the Forensic Chemistry Division of the National Bureau of Investigation, said Forensic Chemist or her duly authorized representative hereby ordered to cause the delivery and transportation thereof to the Dangerous Drugs Board for disposition in accordance with law.The accused shall be credited in full for the period of her detention at the Pasay City Jail during the pendency of this case provided that she agreed in writing to abide by and comply strictly with the rules and regulations of the said City Jail.SO ORDERED.[2]

On December 10, 1996, while appellant was tending her mother’s store at 1742 Tramo St., Pasay City, a short and dark complexioned man wearing jeans and a pair of slippers approached and asked her to deliver a package wrapped in newspaper and placed in plastic bag to a certain Chinggay, a boarder in her mother’s house. Fernando Hernandez, one of the defense witnesses, was at the store buying softdrinks. Appellant did not examine the contents of the package and the man hurriedly left the store. She entered the living room of the house to give the package to Chinggay, who was in one of the rooms of the house, when she saw two men sitting on the sofa. The men approached her and introduced themselves as agents of the National Bureau of Investigation. The men took the package from her and opened it. To her surprise, it contained shabu. The NBI agents immediately arrested her.

Appellant does not deny the fact that at the time of her arrest she was in possession of the package which turned out to contain shabu. However, she denied knowledge of the contents of the package handed to her by the unidentified man.[3]

The prosecution has a different version of the events.On November 27, 1996, Agents Dave Segunial and Rommel Vallejo of the Special Task Force Office of the National Bureau of Investigation received a

tip from its informant that a certain “Baby” and “Chinggay”, both residents of 1742 Tramo St., Pasay City, were engaged in drug trafficking. They were immediately instructed by their Executive Officer, Atty. Edmund Arugay, to conduct surveillance and validation of the information and, if found positive, to plan for a test buy or apply for a search warrant. Thus, they took pictures of the subject house and, on December 1, 1996, a test buy was conducted where their confidential informant, accompanied by Agent Vallejo, posed as buyer of shabu and Agent Segunial acted as their driver. They were able to buy P1,000.00 worth of substance weighing .1045 grams which, when submitted for laboratory examination, proved positive for shabu. The following day, they obtained a search warrant against “Baby” and “Chinggay” from the Regional Trial Court of Manila.

The team tried to serve the search warrant twice but their operations were aborted. On their first attempt, they were unable to gain entrance to the premises since the house had two steel gates and they could not force themselves into the premises, otherwise, the subjects will be able to dispose of the shabu and elude arrest. On the second occasion, they encountered watchers outside the house who, based on their experience, acted as look-out who would give signals to the subjects if they see suspicious looking people.

On December 10, 1996, at around 9:00 a.m., the team proceeded to the area with another confidential informant known to the subjects. When they arrived at the house, the informant talked to the person inside the store and they were allowed to enter the house. The first steel gate was opened by a man from across the street, while the second gate was opened by a lady who came from inside the house. They were led inside by another lady and were told to wait in the living room. A few minutes later, appellant entered the living room from the store, carrying a plastic bag. The informant gestured that she was Baby, one of the subjects. Agent Vallejo stood up and showed his badge. At the same time, Agent Segunial pressed the beeper to signal the rest of the team. Appellant cried, “huwag po, huwag po!” They confiscated the plastic bag with pink stripes, which contained two pouches of white crystalline substance, later found to be Methamphetamine Hydrochloride or shabu.

After appellant was arrested, Agent Vallejo heard running footsteps upstairs, so he immediately went up the stairs. He forcibly opened the door and saw a woman fleeing through another staircase at the back of the house. He chased the woman but failed to catch her.

The team searched the house but found no other articles or paraphernalia. At around that time, the media men and the barangay captain arrived.[4]

The only issue to be resolved in this appeal is whether or not appellant is guilty of the crime charged against her.For one to be convicted of illegal possession of prohibited or regulated drugs, the following elements must concur: (1) the accused is in possession

of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[5]

In the case at bar, the presence of the first two elements of the offense is uncontroverted. Appellant does not deny that she had in her possession “shabu” at the time of her arrest. She certainly did not have the authority to possess the said regulated drug. What appellant contends to be wanting in this case is the third element.

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Appellant maintained that the package of shabu did not belong to her; that she was merely asked to hand the package to a boarder in her mother’s house; and that she was not aware of the contents thereof when it was handed to her. Even the prosecution failed to prove that she had knowledge of the contents of the package. Thus, it cannot be said that she was caught in flagrante delicto, since she was not consciously committing a crime when the NBI agents accosted her.[6]

The trial court, on the other hand, considered appellant’s defense as absurd, preposterous and unworthy of belief.We are very much aware of the well-settled rule that factual findings of the trial court deserve utmost respect and will not be disturbed on appeal

because the trial court, unlike reviewing tribunals, had a firsthand opportunity to observe the demeanor and the conduct of the witnesses and could thus better assess their capacity to speak the truth.[7] Nevertheless, such rule admits of exceptions, such as when the trial court has overlooked certain facts or circumstances of substance and value, which if considered would change the result of the case. After a painstaking review of the records of the case, we find certain circumstances which if weighed would tilt the scales of justice in favor of appellant and cast a doubt on her guilt.

Anent the third element, we have held that possession of illegal drugs must be with knowledge of the accused or that animus possidendi existed together with the possession or control of said articles.[8] Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary.Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case. [9]

The existence of animus possidendi is only prima facie. Thus, it is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so.[10]

Under the facts and circumstances obtaining in this case, we find that appellant’s explanation of how she came into possession of the package without knowing that it contained “shabu” is credible and sufficient to rebut the prima facie presumption of animus possidendi. Simply put, she just happened to be at the wrong place at the wrong time.

Appellant’s narration was supported by credible corroboration from an unacquainted and disinterested person, Fernando Hernandez, who testified thus:

ATTY. OLIVETEQ. Mr. witness, on Dec. 10, 1996 will you tell the Honorable Court where were you?WITNESSA. I was at the store buying softdrinks.ATTY. OLIVETEQ. Do you remember the location of that store?WITNESSA. Yes sir.

x x x x x x x x x

ATTY. OLIVETEQ. Why were you at the store at about 11:00 o’clock in the morning on that Dec. 10, 1996?WITNESSA. I was buying softdrinks while waiting for the owner of the house who went out to buy electrical materials for the construction of a nearby

building.COURTQ. You mean to say there was nobody manning the sari-sari store?WITNESSA. There was Your Honor.ATTY. OLIVETEQ. After, or… as you were buying softdrinks at the store did you recall if you ever noticed something?WITNESSA. Yes sir.ATTY. OLIVETEQ. What is that thing you noticed while you were buying softdrinks at the store?WITNESSA. I chanced upon a person who did not buy and he was carrying with him a plastic bag sir.ATTY. OLIVETEQ. So you noticed a man arrived with a package, will you please tell the Court what this particular man did as he was beside in the store?WITNESSA. The plastic then he was carrying, he was then holding was handed to the person who was tending to the store.COURTQ. The man you said who gave something to the person inside the store, do you know him?WITNESSA. No, Your Honor.COURTQ. Have you ever seen that person prior to your seeing him the first time at the store?WITNESSA. No, Your Honor.COURTQ. The person to whom he gave that package did it appear to you that they know each other?

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WITNESSA. No answer.COURTQ. Do you feel that they do not know each other, just answer yes or no, why are you so evasive?WITNESSA. No, Your Honor, they do not know each other.

x x x x x x x x x

ATTY. OLIVETEQ. What did the man do when he went near the store?WITNESSA. The man who approached the store asked a favor from the person inside the store to give the package to a certain person whose name I

could no longer recall sir.ATTY. OLIVETEQ. Could you recall the gender of the person to whom that particular package to be given?WITNESSA. It is a woman. The package is for a woman sir.ATTY. OLIVETEQ. And what did the person inside the store do when after the request for the package to be delivered was uttered?WITNESSA. The person went inside the house to get the softdrinks I was buying and to hand the package to that person who the package is addressed

to, sir. [11]

Appellant’s lack of knowledge of the contents of the plastic bag becomes all the more credible considering that when the NBI agents conducted a test buy to validate the tip given to them by their confidential informant, they relied entirely on the information that a certain “Baby” and “Chinggay” were selling “shabu”. Agent Vallejo, narrating how the test buy was conducted, testified as follows:

COURTContinue. Last question- that we asked was about you decided to have a test buy. What amount were you able to buy?

A P1,000 worth of shabu.COURT

How many grams were you able to buy from that P1,000?A We were able to purchase…COURT

...Who acted as buyer?A The informant, your Honor.COURT

You mean to say the informant was admitted? In this sketch, there is a steel gate. According to you, you stayed outside the house.A Yes, your Honor.COURT

You were able to enter the gate?A Yes, they opened the gate for us. It is bolted from inside. A lady unbolted the gate.

x x x x x x x x x

COURTWhy did you not accompany the informant?

A I was not allowed to enter the house.COURT

Who did not allow you to enter the house?A The lady who opened the gate.COURT

Is that lady the same accused?A No, your Honor.COURT

She is another person?A Yes, your Honor.COURT

Continue.COURT

So you were just allowed inside the compound but your informant was able to enter.A Yes, your Honor.

x x x x x x x x x

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FISCAL TILLADAMr. Vallejo, you said that the informant was able to buy shabu from the suspect. Did you come to know from whom the informant was

able to buy the shabu?A Yes, ma’am.Q From whom?A From Baby.Q The informant later on told you that she was able to buy shabu from Baby.A Yes, ma’am.[12]

When cross-examined, the witness further narrated, thus:

ATTY PAZZIUAGGANSo you could not see what was happening from outside to the inside?

A Yes, ma’am.Q So you have no personal knowledge of what transpired inside when your informant went inside the house?A No.Q And you merely relied on the information told to you afterwards?A Yes, ma’am.Q You had no way of checking the truth?A We trusted our informant.[13]

The foregoing testimony reveals that the NBI agents had no personal knowledge that herein appellant was peddling shabu. In fact, they did not know the identity of the appellant before December 10, 1996, when they served the search warrant. [14] Only the informant who transacted the test buy saw the alleged pushers. This notwithstanding, the prosecution did not present the confidential informant as witness. We have held in many cases[15] that the testimony of the poseur-buyer becomes material and indispensable when the appellant denies having committed the prohibited act. Without the testimony of the poseur-buyer, more often than not, there is no convincing evidence that she did sell or possess the prohibited or regulated drug.[16] Especially if there are no other eyewitness to the illicit transaction, the non-presentation of the poseur buyer can be fatal to the case of the prosecution.[17] In fine, what they reportedly learned from the informant was indubitably hearsay as the latter was never called to appear and testify at the trial. [18]

The likelihood of having mistaken appellant as the pusher is further bolstered by the fact that during the search, the NBI agents employed another confidential asset other than the one who acted as the poseur buyer during the test buy. Furthermore, as testified to by Agent Vallejo, there were three ladies inside the house, including the appellant. The first lady was the one who opened the gate, the second lady was the one who brought them in the house and went upstairs, and the third lady was appellant, who entered the living room through the door connecting to the store. [19] NBI agents placed too much reliance on their informants that a certain Baby lived in the house subject of the search warrant, making no initiatives to find out whether it was true, or at the very least ascertain the identity of the alleged “pushers”.

True, appellant was arrested while in possession of the regulated drug. This fact is not denied. However, appellant’s lack of knowledge of the contents of the plastic bag casts a reasonable doubt as to her guilt. Her guilt cannot be sustained where the prosecution’s evidence is anchored on shaky foundations. The prosecution has the onus  probandi of establishing the guilt of the accused beyond reasonable doubt. [20] Much as we abhor the proliferation of drug pushers, we cannot allow the incarceration of an individual based on insufficient factual nexus of said person’s participation in the commission of the offense.[21]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Pasay City, Branch 110, in Criminal Case No. 96-9539, finding appellant Edelma Lagata y Manfoste guilty beyond reasonable doubt of violation of Section 16, Article III, Republic Act No. 6425 (The Dangerous Drugs Act of 1972), as amended, is REVERSED and SET ASIDE. Appellant is ACQUITTED of the offense charged on the ground of reasonable doubt. She is ordered RELEASED from detention unless she is being held for some other lawful cause.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

THIRD DIVISION

PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee,

- versus -

G.R. No. 186467 Present:

30

JAIME GATLABAYAN Y BATARA, Accused-Appellant.

CARPIO,* J.VELASCO, JR., Chairperson,ABAD,MENDOZA, andSERENO,* * JJPromulgated: July 13, 2011

x ----------------------------------------------------------------------------------------x

D E C I S I O N MENDOZA, J.:

This is an appeal from the July 29, 2008 Decision [1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02221, which affirmed the May 10, 2005 Decision[2] of the Regional Trial Court of San Mateo, Rizal, Branch 77 (RTC), in Criminal Case No. 6384, finding accused Jaime Gatlabayan y Batara (Gatlabayan) guilty beyond reasonable doubt of violation of Section 5 (1), Article II of Republic Act (R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Information[3] reads: That on or about the 10th day of September, 2002 in the Municipality of Rodriguez, Province of Rizal, Philippines and

within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and knowingly sell, deliver and give away to another person one (1) heat-sealed transparent plastic sachet containing 0.03 gram of white crystalline substance which gave positive result to the test for Methamphetamine Hydrochloride, a dangerous drug, and which substance produces a physiological action similar to amphetamine or other compound thereof producing similar physiological effects.

CONTRARY TO LAW.

During the trial, the parties agreed to stipulate on the testimonies of prosecution witnesses, Police Officer 1 (PO1) Reynaldo Albarico and Police

Inspector (P/Insp.) Joseph Perdido, the forensic chemist. The prosecution, thereafter, presented PO1 Fortunato Jiro III (PIO Jiro III) and PO1 Jose Gordon Antonio (PO1 Antonio) at the witness stand. The defense, on the other hand, presented Gatlabayan, the accused himself. The Version of the Prosecution The People’s version of the incident has been summarized by the Office of the Solicitor General (OSG) in its Brief[4] as follows:

On September 10, 2002, at around 8:30 in the evening, while PO1 Jose Gordon Antonio, a member of PNP Intelligence Operative Division of Rodriguez, Rizal, together with his colleagues, PO1 Fortunato Jiro and PO1 Albarico, were inside their station, they received an information from an “asset” that appellant Jaime Gatlabayan alias “Pungay” was rampantly selling illegal drugs at Carlton Village, Brgy. Manggahan, Rodriguez, Rizal. On the basis of said information, the police officers immediately decided to form a composite team for the conduct of a buy-bust operation against appellant. Consequently, PO1 Antonio was tasked as the poseur-buyer equipped with a ₱100.00 bill buy-bust money where his initials “JGA” was written thereon, while PO1 Jiro and PO1 Albarico acted as members. Thereupon, the composite team recorded in their police blotter the planned buy-bust operation. Thereafter, the three (3) police officers with their “asset” proceeded to the target area on board an owner type jeep.

Arriving thereat, the civilian asset pointed appellant to the buy-bust team. Appellant was then standing under a Sampaloc

tree at Carlton Village, Brgy. Manggahan, Rodriguez, Rizal. Afterwards, poseur-buyer PO1 Antonio, from a distance of 10 meters away from appellant alighted from the car while the rest of the composite team and the informer remained in the vehicle. Meanwhile, poseur-buyer PO1 Antonio walked towards appellant. Upon seeing PO1 Antonio, appellant asked if he wants “to score,” (which in local parlance means, if he wants to buy “shabu”) to which PO1 Antonio readily answered yes, and simultaneously handed to appellant the P100 marked money. In turn, appellant gave him a small plastic sachet containing white crystalline substance suspected of “shabu.” Upon consummation of the sale, PO1 Antonio gave the pre-arranged signal of waiving his hand. Seeing this, police officers Jiro and Albarico rushed to the locus criminis and simultaneously introduced themselves as police officers. Then, PO1 Jiro directed appellant to empty his pocket and the ₱100.00 marked money fell on the ground. Thereafter, appellant was arrested and was apprised of his constitutional rights and was likewise informed of the crime he committed.

31

Appellant was brought to the nearby police station of Rodriguez, Rizal for investigation. Subsequently, the plastic sachet sold by appellant to poseur-buyer PO1 Antonio was subjected to a laboratory examination and forensic chemist Police Inspector Joseph M. Perdido of the PNP Crime Laboratory in his Chemistry Report No. D-1784-02E found that the subject crystalline substance is positive for methamphetamine hydrochloride or “shabu.” Consequently, appellant was charged for violation of Section 5, Paragraph 1, Article II of R.A. 9165 or for “Illegal Sale of Dangerous Drugs.”[5]

The Version of the Defense In his Brief,[6] Gatlabayan denied that he was caught, in flagrante, selling shabu and claimed that he was just a victim of police frame-up. The accused presents the following version of what transpired:

JAIME GATLABAYAN was at the “peryahan” with a companion on September 10, 2002, at 8:00 o’clock in the evening. While the accused was singing, PO1 Antonio along with PO1 Jiro arrived and suddenly handcuffed him. The accused asked “Sir, anong kasalanan ko?” PO1 Antonio just replied “basta sumama ka na lang.” He was brought to the police station and was incarcerated. The accused was not frisked when he was arrested. He denied the offense charged against him.[7]

On May 10, 2005, the RTC rendered its judgment rejecting the defense of frame-up proffered by the accused and declared that the same fell flat in the face of the affirmative testimony of prosecution witnesses, PO1 Antonio and PO1 Jiro III, who categorically and forthrightly testified that he was caught in flagrante delicto selling shabu. The trial court ruled that the presumption of regularity in the performance of duties in favor of the police operatives had not been overturned in the absence of clear showing that they had been impelled by any ill motive to falsely testify against him for such serious crime. It added that the alleged inconsistencies in the testimonies of the police officers pertained to inconsequential or collateral matters which did not impair their credibility. The dispositive portion of the RTC decision reads:

WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt as charged in the information, without any aggravating or qualifying circumstance, accused JAIME GATLABAYAN Y BATARA is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the fine of FIVE HUNDRED THOUSAND (₱500,000.00) PESOS.

SO ORDERED.[8]

On appeal, the CA affirmed the conviction of the accused on the basis of the testimony of PO1 Antonio and PO1 Jiro, III which it found credible

and sufficient to sustain a conviction. The CA was of the view that the presumption of regularity in the performance of official duty was not sufficiently controverted by him. It ruled that the prosecution was able to satisfactorily establish the elements of the crime of illegal sale of dangerous drugs as well as the identity of the accused. Lastly, the CA debunked his defense that he was a victim of frame-up and that he was not arrested pursuant to a valid buy-bust operation, for failure to substantiate the same. The dispositive portion of its Decision reads:

WHEREFORE, the assailed Decision dated 10 May 2005 of the Regional Trial Court, Fourth Judicial Region, San Mateo,

Rizal, Branch 77, is hereby AFFIRMED.

SO ORDERED.[9] On August 20, 2008, Gatlabayan filed a Notice of Appeal, [10] which was given due course by CA in its Minute Resolution [11] dated September 23,

2008. On April 26, 2010, this Court issued a resolution notifying the parties that they may file their respective supplemental briefs, if they so desire,

within thirty days from notice. The OSG filed a manifestation dated May 29, 2009 informing the Court that it would no longer file a supplemental brief. On June 23, 2009, the accused filed his supplemental brief.[12]

THE ISSUES

Maintaining his innocence, Gatlabayan imputes to the trial court the following errors:

I

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF VIOLATION OF SECTION 5, ARTICLE II, R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE OFFENSE CHARGED BEYOND REASONABLE DOUBT.

II

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCONSISTENT AND CONTRADICTING TESTIMONIES OF THE PROSECUTION WITNESSES.

32

III THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 5, ARTICLE II,

R.A. 9165 DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE CHAIN OF CUSTODY OF THE ILLEGAL DRUG. In his Supplemental Brief, Gatlabayan presents the following additional assignment of error:

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE PROSECUTION’S FAILURE TO PROVE THE CHAIN OF CUSTODY OF THE ALLEGED SEIZED ILLEGAL DRUGS, IN VIOLATION OF SECTION 21 AND 86 OF R.A. NO. 9165.

The accused is of the stance that the prosecution failed to prove his guilt beyond reasonable doubt. He avers that both the RTC and the CA were mistaken in upholding the presumption of regularity in the performance of official functions in favor of the police officers and giving undue credence to their testimonies which, he claims, were laced with inconsistencies that cast serious doubt on their credibility and the validity of the alleged buy-bust operation. He posits that the prosecution failed to establish the material details of said entrapment operation and that his arrest was invalid. He argues that the failure of the apprehending team to observe the procedure outlined by Section 21 of R.A. No. 9165 impaired the prosecution’s case. Finally, he assails the prosecution evidence for its failure to establish the proper chain of custody of the shabu allegedly seized from him.

The OSG, on the other hand, maintains that the testimonies of PO1 Antonio and PO1 Jiro III were credible and sufficient to convict. It insists that the culpability of the accused for the crime of illegal sale of shabu was proven beyond reasonable doubt.

The Court’s Ruling:

The core issue in this case is whether or not sufficient evidence exists to support the conviction of the accused for violation of Section 5, Article II of R.A. No. 9165.

Let it be underscored that appeal in criminal cases throws the whole case open for review and it is the duty of the appellate court to correct,

cite and appreciate errors in the appealed judgment whether they are assigned or unassigned. [13] Considering that what is at stake here is no less than the liberty of the accused, this Court has meticulously and thoroughly reviewed and examined the records of the case, and finds that there is merit in the appeal.

As a general rule, the trial court’s findings of fact, especially when affirmed by the CA, are entitled to great weight and will not be disturbed on

appeal. The rule, however, admits of exceptions and does not apply where facts of weight and substance with direct and material bearing on the final outcome of the case have been overlooked, misapprehended or misplaced. [14] The case at bench falls under the above exception and, hence, a departure from the general rule is warranted.

Jurisprudence has firmly entrenched that in prosecution of illegal sale of dangerous drugs, the following essential elements must be

established: (1) the transaction or sale took place; (2) the corpus delicti or the illicit drug was presented as evidence; and (3) the buyer and seller were identified.[15] Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of the confiscated prohibited or regulated drug as evidence.

The narcotic substance itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of

conviction. It is therefore of prime importance that the identity of the dangerous drug be likewise established beyond reasonable doubt. [16] Otherwise stated, it must be proven with exactitude that the substance bought during the buy-bust operation is the same substance offered in evidence before the court. Thus, every fact necessary to constitute the offense must be established. The chain of custody requirement ensures that unnecessary doubts concerning the identity of the evidence are removed.[17]

Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements R.A. No. 9165 defines “Chain of Custody” as follows:

“Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.

Particularly instructive is the case of Malillin v.  People[18] where the Court explained how the chain of custody or movement of the seized evidence should be maintained and why this must be shown by evidence, viz:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded

by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include

33

testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. In People v. Kamad,[19] the Court enumerated the links that the prosecution must establish in the chain of custody in a buy-bust situation to be

as follows: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court.

An examination of the case records show that while the identities of the seller and the buyer and the consummation of the transaction

involving the sale of illegal drug on September 10, 2002 have been proven by the prosecution through the testimony of PO1 Antonio as corroborated by the testimony of PO1 Jiro III, the Court, nonetheless, finds the prosecution evidence to be deficient for failure to adequately show the essential links in the chain of custody. This glaring deficiency can be readily seen from the testimony of the poseur buyer PO1 Antonio which glossed over said required details, thus:

Fiscal Rolando T. Majomot(On Direct Examination) Q: Now when this civilian informer pointed to that person whom you called as alias Pungay, what did you do?A: I was still ten (10) meters away from alias Pungay when I alighted from the vehicle and I approached him, sir. Q: What happened next when you approached alias Pungay?A: When alias Pungay saw me and when he noticed that I was looking for somebody he offered me and asked me if I want to

“iskor”, sir. Q: Were there any other persons in that vicinity, Mr. witness?A: I did not see any other person in that place, sir. Q: When alias Pungay offered to you, what did you do?A: I gave him the marked money, sir, and he also handed to me a small plastic sachet containing suspected shabu and after that I

wa[i]ved to my companions, sir. Q: After wa[i]ving to your companions, what happened next, if any, Mr. witness?A: I heard that PO1 Jiro directed alias Pungay to invert his pocket, sir, and from it the One Hundred Peso (P100.00) bill which I

used in buying shabu from him fell on the ground and at that moment my co-police officers arrested him, sir. Q: Who picked up the One Hundred Peso (P100.00) bill (sic) fell on the ground?A: PO1 Albarico, sir. Q: What happened next after that?A: We arrested him and informed him of his constitutional rights and we also informed him of the law which he violated and I

also introduced myself to him as a policeman, sir. Q: This person whom you arrested was only known as alias Pungay. When did the first time you know the true name of this

person?A: After he was brought to the police station, sir, we asked him of his true name and after that we turned over to the police

investigator the evidence which we confiscated from him, sir. Q: What is the true name of the accused?A: Jaime Gatlabayan y Batara, sir.[20]

xxxxx xxxxx xxxxx xxxxx xxxxx

Q: After that Mr. witness, what did you do?A: We forwarded to the PNP Crime Laboratory the evidence which we confiscated for examination, sir. Q: I am showing to you a letter request Mr. witness, is this the request you are referring to?A: Yes, sir.

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Q: Who signed this request?A: It was signed by our Deputy Chief of Police, sir.[21]

PO1 Jiro, III, on the other hand, has no knowledge or any participation in the chain of custody as revealed by his testimony, viz: Q: Now, what happened next, Mr. Witness, when you arrested the accused after you picked up the money?A: We informed him of his constitutional rights and thereafter, we brought him to the police station, sir. Q: By the way, who arrested the accused?A: Me and PO1 Albarico, sir. Q: Where is now the accused?A: There sir.

(Witness pointing to a certain man inside the Courtroom who when asked answered to the name of Jaime Gatlabayan). Q: Do you know also or have knowledge about the one handed to Gordon from the accused, how many sachet in that buy-bust

operation?A: As far as I know, only one (1) sachet, sir. Q: Was it shown to you by Gordon?A: I did not see it, sir.[22] (Underscoring Ours) It is significant to note that the foregoing testimonies of the prosecution witnesses hardly touched on the chain of custody of the seized

evidence. The testimony of PO1 Antonio clearly lacked specifics on how the confiscated shabu was handled immediately after the arrest of the accused. Although PO1 Antonio testified that he seized the small plastic sachet containing the shabu from the accused, he never disclosed the identity of the person/s who had control and possession of the shabu after its seizure and at the time of its transportation to the police station. Neither did he testify that he retained possession of the seized item from the place of the arrest to the police station. In the absence of clear evidence, the Court cannot presume that PO1 Antonio, as the poseur buyer, handled the seized sachet - to the exclusion of others - during its transfer from the place of arrest and confiscation to the police station.

The prosecution evidence also failed to identify the person who marked the sachet, how the same was done, and who witnessed the marking.

In People v. Martinez,[23] the Court ruled that the "marking" of the seized items - to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the presence of the apprehended violator, and (2) immediately upon confiscation – in order to protect innocent persons from dubious and concocted searches, and the apprehending officers as well from harassment suits based on planting of evidence and on allegations of robbery or theft.

Indeed, the records of the case are bereft of any detail relating to the marking of the confiscated sachet. All that the prosecution adduced on

this score were the respective Sinumpaang Salaysay [24] of PO1 Antonio and PO1 Jiro III, wherein they declared that after the apprehension of Gatbalayan, they brought him as well as the seized item to the police station where the confiscated plastic sachet containing shabu was marked as “EXHIBIT 1 dtd 10 Sept ’02,” and that it was ordered to be submitted (ipinasumite) to the Philippine National Police (PNP)Crime Laboratory for examination. The identity of the officer who made the marking and whether the marking was done in the presence of the accused were, however, not at all clear from the above documentary evidence.

It is likewise noteworthy that the prosecution failed to present evidence pertaining to the identity of the police investigator to whom the buy-

bust team turned over the seized item. Although the Request for Laboratory Examination [25] was signed by a certain Santiago for and in behalf of Police Senior Inspector Anastacio Benzon, it was not shown that he was the same official who received the subject shabu from the buy-bust team or from the police investigator. A perusal of the Request for Laboratory Examination and the Chemistry Report No. D-1784-02E [26] reveals that the marking on the plastic sachet containing the subject shabu was changed to “EXHIBIT 1 JBG.” The prosecution, however, failed to disclose the name and identity of the police officer who changed the marking of the specimen. Further, the prosecution evidence is wanting as to the identity of the person who submitted the specimen to the PNP Crime Laboratory; as to whether the forensic chemist whose name appeared in the chemistry report was the one who received the subject shabu when it was forwarded to the crime laboratory; and as to who exercised custody and possession of the specimen after the chemical examination and before it was offered in court. Neither was there any evidence adduced to show how the seized shabu was handled, stored and safeguarded pending its offer as evidence in court.

The Court, at this point, takes note of the RTC Order dated July 23, 2003 dispensing with the testimony of the forensic chemical officer and

bearing the matters stipulated upon by the parties. The Court views the stipulation as confined merely to the handling of the specimen at the forensic laboratory and to the analytical results obtained. People v. Almorfe[27] teaches that the testimony of the forensic chemist which is stipulated upon does not cover the manner as to how the specimen was handled before and after it came to the possession of the forensic chemist. It bears stressing that although the parties stipulated on the results of the laboratory examination, no stipulation was made with respect to the ultimate source of the drug submitted for examination.

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While a perfect chain of custody is almost always impossible to achieve, an unbroken chain  becomes indispensable and essential in the prosecution of drug cases owing to susceptibility of the seized drug to alteration, tampering, contamination and even substitution and exchange. [28] Hence, each and every link in the custody must be established beginning from the seizure of the shabu from the accused during the entrapment operation until its submission by the forensic chemist to the RTC. Indeed, the Court cannot entirely discount the likelihood or at least the possibility that there could have been alteration, tampering or substitution of substance in the chain of custody of the subject shabu, inadvertently or otherwise, from another case with a similar narcotic substance seized or subjected for chemical analysis.

Moreover, it must be pointed out that the subject 0.03 gram of shabu was never presented as evidence and marked as an exhibit during the

pre-trial or even in the course of the trial proper. Neither PO1 Antonio nor PO1 Jiro III was confronted with it at the witness stand for proper identification and observation of the uniqueness of the subject narcotic substance. They were not able to testify as to the condition of the item while it was in their possession and control. Said flaw militates against the prosecution’s cause for it does not only cast doubt on the identity of the corpus delicti but it also tends to discredit, if not negate, the claim of regularity in the conduct of official police operation. Oddly, the plastic sachet containing the subject shabu was formally offered by the prosecution as Exhibit “H” [29] and admitted by the RTC per its Order[30] dated August 31, 2004. The defense was clearly sleeping on its feet when it did not pose any objection to the prosecution’s offer of evidence.

In view of the foregoing loopholes in the evidence adduced against the accused as well as the gaps in the chain of custody, it can be reasonably

concluded that the prosecution failed to convincingly establish the identity and integrity of the dangerous drug. Accordingly, there could be no assurance that the specimen of shabu offered in court as evidence against the accused was the same one seized from him, brought to the police station and afterwards, submitted for laboratory testing – especially considering that since the inception of this case, he has consistently denied that the supposed plastic sachet of shabu was not recovered from his possession when he was arrested at the “peryahan” on September 10, 2002 at 8:00 o’clock in the evening. In effect, the prosecution failed to fully prove the elements of the crime charged creating reasonable doubt on his criminal liability. As this Court held in Catuiran v. People,[31] the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before the same was finally offered in court, fatally conflicts with every proposition relative to the culpability of the accused. All told, the corpus delecti in this case is not legally extant.

In sustaining the conviction, the courts a quo relied on the evidentiary presumption that official duties have been regularly performed.

Admittedly, the defense did not adduce evidence showing that PO1 Antonio and PO1 Jiro III had any ill motive to falsify their testimony. Nonetheless, the flagrant procedural lapses the police officers committed in handling the allegedly confiscated shabu in violation of the chain of custody requirement effectively negate the presumption of regularity in the performance of duties. Any taint of irregularity affects the whole performance and should make the presumption unavailable.[32] It must be emphasized that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt.[33]

The weakness of the defense of the accused, mere denial and frame-up, cannot justify his conviction. The burden is always on the prosecution

to prove his guilt beyond reasonable doubt, and not on him to prove his innocence. The merit of his defense is not the issue here. It is safely entrenched in our jurisprudence that the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.[34] A finding of guilt must solely rest on the prosecution’s own evidence, not on the weakness or even absence of that for the defense. Courts cannot magnify the weakness of the defense and overlook the prosecution’s failure to discharge the onus probandi.

In our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it

entertains a reasonable doubt as to his guilt. In order to convict an accused, the circumstances of the case must exclude all and every hypothesis consistent with his innocence. In the case at bench, the evidence adduced by the prosecution failed to overcome the constitutional presumption of innocence of the accused. What is required is that there be proof beyond reasonable doubt that the crime was committed and that the accused committed the crime. [35] It is only when the conscience is satisfied that the crime has indeed been committed by the person on trial that the judgment will be for conviction.

The Court is not unaware of the drug menace that beset our country and the direct link of certain crimes to drug abuse. The unrelenting drive of

our law enforcers against trafficking and use of illegal drugs and other substance is indeed commendable. Those who engage in the illicit trade of dangerous drugs and prey on the misguided members of the society, especially the susceptible youth, must be caught and properly prosecuted. Although the courts are committed to assist the government in its campaign against illegal drugs, a conviction under the Comprehensive Dangerous Drugs Act of 2002 can only be obtained after the prosecution discharges its constitutional burden to prove guilt beyond reasonable doubt. Otherwise, this Court is duty-bound to uphold the constitutional presumption of innocence.

WHEREFORE, the appeal is GRANTED. The Decision dated July 29, 2008 of the Court of Appeals in CA-G.R. CR-HC No. 02221 is

hereby REVERSED and SET ASIDE for failure of the prosecution to prove beyond reasonable doubt the guilt of appellant Jaime Gatlabayan y Batara who is accordingly hereby ACQUITTED of the crime charged against him and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this decision and to inform this Court of the date of the actual release from

confinement of the accused within five (5) days from receipt hereof.

SO ORDERED.

JOSE CATRAL MENDOZA

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Associate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

PRESBITERO J. VELASCO, JR. ROBERTO A. ABAD Associate Justice Associate Justice Chairperson   

MARIA LOURDES P.A. SERENOAssociate Justice

 

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.            Associate Justice

Chairperson, Third Division   

C E R T I F I C A T I O N 

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. RENATO C. CORONA Chief Justice

FIRST DIVISION[G.R. No. 141532. April 14, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. GATUDAN BALAG-EY and EDWIN ALIONG y SUNGOT, appellants.D E C I S I O N

PANGANIBAN, J.:Those who engage in the illicit trade of dangerous drugs and who prey on misguided members of society must be caught and put behind bars. To

do this, however, the prosecution must prove their guilt beyond reasonable doubt. Without such proof, acquittal is the only recourse.The Case

Gatudan Balag-ey and Edwin Aliong appeal the October 20, 1999 Decision [1] of the Regional Trial Court (RTC) of Baguio City (Branch 6) in Criminal Case No. 16100-R, in which they were found guilty of illegal possession and attempted sale of prohibited drugs. The dispositive portion of the assailed Decision reads:"Wherefore, the Court finds accused Gatudan Balag-ey and Edwin Aliong guilty beyond reasonable doubt of the offense of illegal possession of and attempt to sell marijuana with a total weight of 18,352.82 grams in violation of Section 21, Article IV in relation to Section 4, Article II of Republic Act 6425, as amended by Republic Act 7659 as charged in the Information which is included in the offense of sale or delivery of marijuana proved and hereby sentences each of them to the penalty of Reclusion Perpetua and to pay the fine of P500,000.00 each, without subsidiary imprisonment in case of insolvency, and to pay the costs.

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“The accused Gatudan Balag-ey and Edwin Aliong, being both detention prisoners, are entitled to be credited 4/5 of their preventive imprisonment in the service of their sentence in accordance with Article 29 of the Revised Penal Code.“The 18,352.82 grams of bricks of marijuana contained in the cigarette box with the marking Philip Morris are forfeited in favor of the State to be destroyed immediately in accordance with law.”[2] (Citations omitted)

Appellants were charged in an Amended Information[3] dated December 9, 1998, as follows:“That on or about the 28th day of September, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding x x x each other, without any authority of law, did then and there willfully, unlawfully and feloniously have in their possession and attempt to sell twenty (20) bricks of dried marijuana leaves/fruiting tops, a prohibited drug, weighing about 18,352.82 grams (actual weight) more or less, to SPO1 DANILO P. NATIVIDAD, a member of the Philippine National Police, 14th Narcotics Regional Office, who acted as poseur buyer, for P1,000.00 per kilo, in violation of the aforecited provision of law.”[4]

During their respective arraignments on December 21, 1998 [5] and January 21, 1999,[6] appellants, with the assistance of their counsels de parte,[7] pleaded not guilty to the charge. After trial in due course, the court a quo rendered the assailed Decision. It also denied appellants’ Motion for Reconsideration.[8]

The FactsVersion of the Prosecution

In its Brief, the Office of the Solicitor General (OSG) presents the prosecution’s version of the facts as follows:“About 10:30 in the morning of September 28, 1998, the 14th Narcotics Regional Office (NARCOM) with office at DPS Compound, Baguio City, received a confidential information from Roger Imasa that a certain Gatudan of La Trinidad, Benguet, was engaged in the sale of marijuana. He was allegedly looking for buyers. Police Senior Inspector Rodolfo Castel formed a team for the possible arrest of Gatudan. SPO1 Danilo Natividad was designated as poseur buyer with SPO1 Pedro Rabago and PO2 Emerson Lingbawan as back-up. SPO1 Natividad was given the boodle money.“Later in the morning of the same day, SPO1 Natividad and Imasa were able to locate Gatudan at the Universal Martial Arts Gym along Zandueta Street, Baguio City. Imasa introduced SPO1 Natividad to Gatudan as a friend and a drug user. After a brief conversation, Gatudan agreed to sell to SPO1 Natividad all of his available marijuana, about 20 kilos in all, at P1,000.00 per kilo. They agreed to meet at five in the afternoon in front of Jollibee at the Session Road. The buy-bust team was alerted and briefed.“About 4:30 in the afternoon of the same day, Imasa, SPO1 Natividad, SPO1 Rabago and PO2 Lingbawan proceeded to Jollibee Session Road on board a taxi. SPO1 Rabago and PO2 Lingbawan positioned themselves in the vicinity while SPO1 Natividad proceeded to wait in front of Jollibee.“Not long after, Gatudan alighted from a Tamaraw FX Taxi. His companion, co-accused Aliong, remained inside the taxi with the cigarette box marked Philip Morris at the back compartment of the taxi. After seeing Gatudan, SPO1 Natividad approached him and inquired about the deal. Gatudan told him that the stuff was ready and opened the [back] compartment of the taxi. He noticed the plastic straw and opened the cigarette box containing the marijuana bricks. After confirming the contents, SPO1 Natividad gave the pre-arranged signal by removing his bull cap.“SPO1 Rabago and PO2 Lingbawan rushed to the scene. After identifying themselves as police officers, they arrested Balag-ey and Aliong. They (Balag-ey and Aliong) were informed of their constitutional rights. The box was confiscated and SPO1 Natividad put his initials on it for identification. They were brought to the NARCOM office in the same Tamaraw FX taxi driven by Vicente Garbo.“At the NARCOM office, they issued a receipt of the property seized, prepared the booking sheet and arrest report of Gatudan. SPO1 Natividad executed his Affidavit regarding the buy-bust and arrest of Gatudan and Aliong as well as the Joint Affidavit of the back-up team.“Preliminary findings of Alma Margarita Villaseñor, forensic chemist of the PNP Crime Laboratory in Camp Bado Dangwa, La Trinidad, Benguet, found the bricks to be positive for marijuana. A more detailed laboratory examination embodied in Chemistry Report No. D-011-98 confirmed the findings about the 20 bricks of marijuana with a total weight of 18,352.82 grams.”[9] (Citations omitted)

Version of the DefenseVehemently denying that he was arrested during the alleged buy-bust operation, Appellant Balag-ey states his version of the facts in this manner:

“x x x [Balag-ey] was surprised when policemen in civilian [clothes] suddenly arrested him at around 5:00 p.m. of September 28, 1998, at the Universal Martial Arts Gym. The policemen immediately handcuffed him, and brought him to the NARCOM office. Upon [his] arrival at the NARCOM office, he saw Roger Imasa and accused-appellant Edwin Aliong in handcuffs.“The NARCOM agents interrogated him and insisted that he divulge the name of the supplier of marijuana from Sagada. Accused Balag-ey retorted that he had no knowledge of the matters being asked of him and that he was merely a student at the Universal Martial Arts Gym. However, the NARCOM agents persisted and continued to inquire for the identity of the alleged supplier of the marijuana. He was even threatened that he will rot in jail, if he failed to disclose the identity of the marijuana supplier. During his custody, accused Balag-ey was never informed of his constitutional rights and he was not provided with any counsel.”[10]

For his part, Appellant Aliong narrates the facts in this wise:“1. [Aliong] is a martial arts instructor teaching kick boxing, combat aikido, boxing, among others at his gym at No. 49-B, Zandueta Street, Baguio City. His gym is known as the Universal Martial Arts Organization;“2. He knows one Roger Imasa, a known asset of the x x x NARCOM, his kumpadre and one of the Martial Arts instructors at the Universal Martial Arts Organization;“3. Likewise, he knows his co-accused, Gatudan Balag-ey. Gatudan Balag-ey is his friend way back during the 1980’s;“4. Sometime in 1997 and again in 1998, Gatudan Balag-ey visited him at his gym. Considering that they are friends, he allowed Gatudan to practice in his gym;“5. One time, x x x Gatudan Balag-ey asked him if he would like to have money. He asked how and Gatudan said that he knew of somebody who was looking for a buyer of marijuana.“6. He then told Gatudan that he hates that kind of job. He even advised Gatudan to avoid that kind of job because that is difficult; “7. He mentioned his conversation to his friend, Roger Imasa, the NARCOM asset. Roger then told him that if he likes, they would cause the arrest of Gatudan;“8. Roger Imasa then told him to introduce him to Gatudan. Roger told him that he introduced him as someone who knows a buyer. Thereafter, he introduced Roger Imasa to Gatudan Balag-ey and when the two were introduced, they talked to each other;

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“9. In the afternoon of September 28, 1998, Roger Imasa, the NARCOM [a]sset, convinced him to tell Gatudan to go somewhere. Gatudan refused. He and Roger Imasa then went to the Hangar Market. Roger then went out and when he came back, he was carrying one [carton box]. He never saw the contents of the [carton];“10. Roger then loaded the [carton] in an [FX] Taxi. [Thereafter,] Roger told the taxi driver to bring them to the DPS Compound. However, they dropped by at the Jollibee Session Road. Roger then went out of the taxi and then told him to wait. Thus, he just sat down inside the F[X] Taxi. After 5 minutes, a man who introduced himself as a police officer went inside and sat down. He was told to sit at the front seat. About 4 men who introduced themselves as police officers went near the taxi;“11. After the men who introduced themselves as police officers came inside the taxi, Roger Imasa was nowhere to be found. Then they proceeded to the NARCOM Office at DPS Compound, where someone -- later to be identified as Police Officer Lingbawan -- asked his companions[:] ‘Kumusta?’ (How is it?), to which one of his companions answered. ‘Palpak’ (It was a failure). The one who answered ‘it was a failure’ was the alleged poseur buyer, Police Officer Natividad;“12. He was thereafter told to ‘just relax.’ Police officer Lingbawan then convinced him to testify that Gatudan Balag-ey was with him inside the taxi. Thereafter, Officer Lingbawan convinced him that if he would cooperate, he will become an asset and that if he refuses to cooperate, he will be implicated just the same. Thus, he agreed to become an asset and [he said] that ‘Gatudan Balag-ey was with him inside the taxi.’ For this reason, he was made to sign [an] Affidavit. Incidentally, it was the NARCOM officers who prepared the said affidavit and they merely told him to sign the same;“13. For the record, he never saw the contents of the box and it was only at the NARCOM Office that he was informed of its contents;“14. He was then made to stay at the NARCOM Office. The next day, September 29, 1998, he was released. And he was released because he was totally innocent of the transaction between Gatudan Balag-ey, the ‘CI’ Roger Imasa and the alleged poseur buyer, Police Officer Danilo Natividad.” [11] (Citations omitted)

Ruling of the Trial CourtDisregarding the defenses proffered by appellants, the trial court ruled that they had been caught, in flagrante delicto, selling or delivering 20 bricks

of marijuana weighing 18,352.82 grams to the poseur-buyer -- SPO1 Natividad.In the case of Balag-ey, the court a quo found it difficult to believe that police operatives would plant evidence against him. It also discredited his

claim that he had been arrested at the Universal Martial Arts Gym along Zandueta Street, rather than at a Jollibee fast-food restaurant chain along Session Road (“Jollibee-Session Road”).

With regard to Aliong, the RTC held that he, together with Balag-ey, had loaded a cigarette box containing marijuana in a taxi, brought it to Jollibee-Session Road, and delivered it to the poseur-buyer. Thus, the trial court brushed aside the claim of Aliong that he had no knowledge of Balag-ey’s marijuana transaction.

Hence, this appeal.[12]

The IssuesAppellant Balag-ey raises the following supposed errors for our consideration:

“IThe trial court erred in giving full weight and credence to the testimonies of the arresting officers despite glaring inconsistencies and improbabilities.

“IIThe trial court erred in finding that the guilt of Accused-appellant Gatudan Balag-ey for the crime charged has been proven beyond reasonable doubt.” [13]

Appellant Aliong, on the other hand, alleges the following errors:“I

Whether or not the honorable trial court was correct in convicting the accused despite the conflicting testimonies of the prosecution witnesses. The police officers testified that accused and Gatudan Balag-ey rode together in the FX taxi while the alleged driver testified that it was herein Accused-appellant Aliong and another person who rode in the said FX Taxi.

“IIWhether or not the honorable trial court is correct in convicting the accused despite the testimonies of the police officers that herein accused-appellant has no knowledge of the alleged buy-bust operation. The testimonies of the police officers [show] that it was the accused, Gatudan Balag-ey, who owned the marijuana delivered to the alleged poseur-buyer, Danilo Natividad. Thus, it is incorrect for the honorable trial court to hold herein Accused-appellant Aliong in conspiracy with Gatudan Balag-ey.

“IIIConsidering the peculiar facts obtaining in the case at bar, whether or not the honorable trial court is correct in convicting the accused appellant despite the fact that the alleged cooperating individual (‘CI’), Roger Imasa, was not presented as a witness.

“IVWhether or not the honorable trial court is correct in convicting the accused despite clear and hard evidence that no buy-bust operation was actually conducted as shown by the fact that no money changed hands between the alleged poseur buyer and the accused, Gatudan Balag-ey. This is further shown by the fact that no ‘marked money’ was produced and marked in court as evidence.”[14]

In short, appellants question (1) the credibility of the prosecution witnesses, (2) the sufficiency of the prosecution evidence, and (3) the existence of the buy-bust operation.

The Court’s RulingThe appeal is meritorious.

First Issue:Credibility of the Prosecution Witnesses

Appellant Balag-ey impugns the veracity of the testimonies of the arresting officers that he was caught in the act of selling marijuana at Jollibee-Session Road. He maintains that he was arrested at the Universal Martial Arts Gym located on Zandueta Street.

As a rule, the trial court’s findings of fact and conclusions on the credibility of witnesses are accorded high respect [15] and due weight,[16] unless it has overlooked material and relevant points that would have led it to rule otherwise. In the present case, however, the RTC committed glaring factual oversights that impel us to depart from this general doctrine.[17]

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The witnesses of Balag-ey -- Diosdado Mapala[18] and Angie Liza Ladiwan[19] -- testified that on the afternoon of September 28, 1998, they saw appellant in handcuffs, being led by police officers downstairs at the Universal Martial Arts Gym. Hence, they had the impression that he was arrested there. Nonetheless, the trial court ruled that their testimonies were consistent with the fact that the arresting officers had brought appellant to the gym after his arrest in this wise:“Seventh, the testimonies of Diosdado Mapala and Angie Liza Ladiwan cannot be given weight by the court to show that Gatudan was arrested at the Universal Martial Arts Gym at Zandueta Street.“Diosdado Mapala was not inside the Universal Martial Arts Gym at that time and so he could not say what happened inside the said Gym [or] if Gatudan was really arrested there. Mapala himself said that he was outside the Gym in front of a certain grocery and was crossing the road when he noticed Gatudan in handcuffs being accompanied by male persons coming from the direction of Universal Martial Arts Gym.“This does not establish [with] certainty that Gatudan was arrested inside the Universal Martial Arts Gym, [b]ecause it could happen that Gatudan was arrested in Jollibee Session Road and then brought back to the Universal Martial Arts by the police and when he was coming out that was the time and occasion when Diosdado Mapala saw Gatudan in handcuffs.”[20] (Italics supplied)

There is no evidence on record, however, that the arresting officers did bring Balag-ey to the gym after his arrest. Quite the contrary, SPO1 Natividad categorically averred that Gatudan had not been brought to the Universal Martial Arts Gym at any time after his alleged arrest. The police officer testified on direct examination as follows:

“Prosecutor Vergara [to SPO1 Natividad]:Q Aside from physical examination, did you bring him anywhere else?A No more, sir.Q    He was not brought back to the gymnasium, Mr. Witness.A No sir.”[21] (Italics supplied)Moreover, Garbo, the taxi driver, categorically said that when his taxi was hailed on the afternoon of September 28, 1998, Balag-ey was not Aliong’s

companion. Garbo likewise testified that the police officers had not gone to the Universal Martial Arts Gym after that incident. Pertinent portions of his testimony are herein quoted:

“[Atty. Molintas:]Q You mean you do not know the identity of the person who was with Aliong at that time he was arrested?A No sir.Q You cannot describe him to be a short person who is with dark complexion?A Somewhat dark and short, sir.Q When Edwin Aliong was arrested in Session [R]oad, was this companion of his not brought to the NARCOM office?A No sir.Q Do you know where he went after Aliong was arrested?A No sir.Q Aside from the NARCOM officers and Edwin Aliong whom they brought to the NARCOM office, were there other companions of the

NARCOM officers who followed you in another vehicle towards the NARCOM office?A None, sir.Q    You said you went to Hilltop with the NARCOM officers.  From the Hilltop where you went, have you seen this Universal Martial Arts Gym?A No x x x, sir.Q Anyway, the NARCOM officers told you to wait and after some time, they came back, is that your testimony?A Yes sir.Q When they came back and boarded your vehicle, they have another person or they arrested another person, is that correct?A I did not notice, sir.Q This person you mentioned a while ago who identified himself as Gatudan Balag-ey, you said that you saw him at the Fiscal’s Office when 

you were investigated, would that be correct?A Yes sir.Q That was the first time you saw him, would that be correct?A Yes sir.Q You did not see him at that time of the arrest of Edwin Aliong?A Inside the taxi sir, no sir.Q You mean when Edwin Aliong was arrested, Gatudan Balag-ey was not inside the taxicab?A No x x x, sir.Q And in fact, Gatudan Balag-ey could not be the companion of Edwin Aliong because Gatudan Balag-ey is quite tall and fair in complexion

while the companion of Edwin Aliong was quite dark and short, would that be correct?A Yes sir.COURT: The court would like to be clear on that. You are telling this court then that the two persons who boarded that box in your taxi, one of

whom was Aliong but the other is not Balag-ey, is that what you are telling the Court?A No, sir. But his features, it is not like him.COURT:ContinueAtty. Molintas:Q In fact, you testified on this matter before Fiscal Vergara when you were investigated in his office, would that be correct?A Yes sir.Q Could you tell the Court who prepared that Affidavit which you identified earlier as your Affidavit?A It was prepared at the NARCOM office.

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Q After they prepared that, they released you on the same date on September 28, 1998, would that be correct?A Yes sir.Q In other words, you were made to sleep at the NARCOM office on September 28, 1998?A I did not sleep there, sir.Q So where did you sleep on the night of September 28, 1998?A In our house, sir.Q    At the NARCOM office, you said earlier that you never met Gatudan Balag-ey, would that be correct?A Yes sir.Q    In your Affidavit, a name Gatudan Balag-ey was indicated, do you know who included this name Gatudan in your Affidavit?A     The person who investigated me whose name I do not know wrote that, sir.Q    Because the truth is, you never knew Gatudan Balag-ey and you never met him on September 28, 1998, correct?A Yes sir.”[22]

x x x x x x x x x“[Atty. Dumawing:]Q So the 6th paragraph of your Affidavit which states and I quote, ‘That when we arrived in front of Jollibee, one male alighted from the taxi

and proceeded inside the Jollibee and when they returned he has already one male companion and they went near my taxi and his (Gatudan) male companion checked the contents of the box and later announced that he is a Narcotics agent until other members of the Narcotics agents arrived and arrested my passengers and proceeded to Narcotics Office at DPS Compound, Baguio City x x x’ is not entirely correct, is it not, Mr. Witness?

A Yes sir because when I was relating, they were typing it.COURT:Q    Now, the Court wants to be very clear on that, so that there will be no mistakes about it.  You are telling us then that it was not Gatudan 

Balag-ey who alighted from your taxi, then came back with another companion to check the contents of the box in the taxi?A     No sir.”[23]

Even Aliong said in his testimony that for fear of being implicated, he was forced to declare that Balag-ey had been arrested with him at Jollibee-Session Road. He testified thus:

“[Atty. Dumawing:]Q So, after you arrived at the NARCOM Office at the DPS Compound, what happened, if any?A They told me, ‘Edwin, just relax.’ Then they talked to each other.Q Do you know what they were talking about?A No, sir, because I went out.Q What happened after that?A After they talked, Li[ng]bawan called me.Q Do you remember for how long they were talking?A About more than 5 minutes, sir.Q And where were you during all these 5 minutes that they were talking?A I was outside, sir.Q Outside of…?A Outside of the NARCOM office, sir.Q So, when this Li[ng]bawan finally called you, what did he tell you, if any?A Li[ng]bawan was convincing me to testify that Gatudan Balag-ey was with me inside the taxi.Q What did you say to his proposal, Mr. Witness?A I refused because I told him Gatudan Balag-ey was not my companion.Q What was the response of Li[ng]bawan when you refused?A He talked to me and even hit my conscience. He told me to think it over because I should think of the number of persons who could be

destroyed by that box of marijuana, that it might include my children or even my relatives. And he told me that it was already confirmed that Gatudan Balag-ey is a pusher and he asked me to cooperate.

Q What else did he tell you, if any, in order to convince you?A He told me that if I cooperate, I will be officially included as an asset.Q What else?A No more, sir.Q    He did not threaten you?A He told me that if I don’t cooperate, I will be implicated just the same.Q So, what was your response to Li[ng]bawan when he said that?A I told him that Gatudan Balag-ey might take revenge against me.Q When you told that to Li[ng]bawan, what did he say, if any?A He told me not to worry because they will take care of me.Q So, what followed next, Mr. Witness?A When he told me that, I agreed to be an asset [and] to say that Gatudan Balag-ey was with me inside the taxi.Q Why did you finally agree to testify falsely against Gatudan Balag-ey?PROS. VERGARA: Already answered.COURT: May answer.

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WITNESS:A Because Li[ng]bawan told me that Gatudan Balag-ey is a confirmed pusher. So, because as I said I hate that kind of activity, I agreed.Q Mr. Witness, you executed an [a]ffidavit earlier marked by the prosecution as Exhibit ‘H.’ Who prepared this [A]ffidavit?A The NARCOM officers, sir.Q Who particularly among the NARCOM officers?A What I know is it was Li[ng]bawan who prepared it because he was the one talking to me and he was the one who showed it to me.Q Did you understand all the contents of this [A]ffidavit of yours?A No sir, only the first part.Q What particular part of this [A]ffidavit did you understand, Mr. Witness?A Only that portion which says that Gatudan Balag-ey was with me inside the taxi. And when I saw that, I did not mind the rest anymore.Q By the way, what is your highest educational attainment, Mr. Witness?A Second year high school, sir.Q Now, Mr. Witness, are the contents of this [A]ffidavit true as far as you know?A No, sir.Q    Now, Mr. Witness, despite knowing that the contents of this [A]ffidavit are not true, why did you sign it?A     Because the NARCOM officer told me that if I will not sign it, I will be implicated.COURT: (to witness)Q Did you realize that by your testimony now you have actually implicated yourself because in your testimony you are the one who brought

the box of marijuana to Jollibee Restaurant in that taxi?A What I agreed with Roger Imasa was to bring that carton of marijuana to the NARCOM office, sir.COURT: Continue.ATTY. DUMAWING:Q Mr. Witness, have you seen the contents of that box?A No, sir.Q Did you ever personally hold that box?A No, sir.Q Now, Mr. Witness, you finally agreed to testify against Gatudan Balag-ey.  What did Li[ng]bawan do, if any, after that?A He told me to call up the gym and inform them that a NARCOM officer will go to the gym and that they should show that officer who 

Gatudan is.Q What did you do after that?A I called my wife by phone and relayed to her what Li[ng]bawan told me, that when they arrive at the gym they will point Gatudan to 

them.Q So, after you called your gym, as instructed by Li[ng]bawan, what did the NARCOM people do, if any?A I told Lingbawan that I made a call. After that, they talked for a while and then they left.Q    Do you know where they proceeded to?A     What I know is they proceeded to the gym because that is where they asked me to make a call.Q    So, what happened after they left?A     After 30 minutes, they came back with Gatudan Balag-ey, sir.”[24] (Italics supplied)Because of the vacillating statements of Aliong, the trial court regarded his testimony as dubious and highly suspect. Still, it should not have been

dismissed outright, as he had been able to give an adequate explanation for his testimonial change. Besides, he had nothing to gain from testifying that Balag-ey had not been with him during the alleged buy-bust operation.

The foregoing points show the lack of credibility of the prosecution’s claim that Balag-ey was arrested while in the act of selling marijuana at Jollibee-Session Road.

Balag-ey also protests the denial of his right to counsel during his custodial investigation. Section 12 of Article III of the Constitution provides that any person under custodial investigation for the commission of an offense should have a right to independent and competent counsel at every phase of the investigation -- from its inception to its end.[25]

Both PO1 Natividad and PO3 Emerson Lingbawan affirmed that Balag-ey had not been assisted by counsel at any stage of the investigation. During cross-examination, they testified as follows:

“Atty. Molintas [to PO1 Natividad]:Q How about Gatudan, did you provide him [with] a lawyer at that time?A We did not provide him because he did not give his affidavit or any confessional statement?Q Is that your procedure? You only get a lawyer to assist him if you intend to get his confession?A Yes sir.Q You do not provide him a counsel so that …A We apprised [him of] his constitutional rights but …Q Yes. The question is -- you do not find it necessary or you do not know that the law require[s] that you provide him a lawyer?A But he did not require any lawyer.Q Maybe you did not ask him to give any but do you know that the law requires you as a detaining officer to provide him a lawyer?A Yes, your Honor, we told him but …Q The question is, do you know that you are required to provide him a lawyer immediately after his arrest?A Yes sir.Q And despite that, you did not provide him any lawyer?A No more sir.

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Q In fact you have a very big Memorandum in your office regarding Republic Act 7438?A Yes sir.Q And you allowed Garbo to get in touch with a lawyer and submit an affidavit and in fact you did not recommend that he be prosecuted?A Because he gave a voluntary affidavit that is why when the investigator took it after reading the affidavit he conferred with his own

lawyer.Q And that affidavit was prepared by your investigator?A Yes sir.Q And likewise you did not recommend the prosecution of Aliong because he also gave his affidavit?A Yes sir.”[26]

x x x x x x x x x“Atty. Dumawing [to PO3 Lingbawan]:Q Between 5:00, a little past 5:00 and until the afternoon of September 29, 1998, these two accused were under your custody?A Yes sir.Q And while they were under your custody they were not assisted by counsel?A None sir.Q Notwithstanding the fact that you informed them of their constitutional rights?A We only informed their relatives sir.”[27]

The violation of Balag-ey’s right to counsel during his custodial investigation excludes, from the ambit of the trial court’s evidence, his alleged extrajudicial admission that he was the owner of the seized marijuana.[28]

Second Issue:Sufficiency of Prosecution Evidence

Balag-ey and Aliong were charged with violation of Section 4 in relation to Section 21 of RA 6425, as amended by RA 7659 [29] -- an offense they allegedly committed by “conspiring, confederating and mutually aiding each other, without any authority of law, [and by] hav[ing] in their possession and attempt[ing] to sell twenty (20) bricks of dried marijuana leaves/fruiting tops, a prohibited drug x x x.”

The aforementioned Section 4 penalizes “any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions.” This provision is violated by the commission of any of the acts specified therein or a combination thereof.[30] Moreover, the prevailing doctrine is that “possession of prohibited drugs” is a necessary element in the offense of selling them, except where the seller is also found in possession of another quantity of prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.[31]

On the other hand, the aforecited Section 21 punishes an attempt or a conspiracy, among others, in the “[s]ale, administration, delivery, distribution and transportation of dangerous drugs.” This is one of the few instances when the law specifically punishes mere conspiracy.[32]

Having charged the accused with conspiracy, it was incumbent upon the prosecution to prove that Balag-ey and Aliong had come to an agreement concerning the possession and the sale of marijuana and had decided to execute the agreement.[33]

Furthermore, in a prosecution for the sale of dangerous drugs, it is material and indispensable (1) to prove that the accused sold and delivered the prohibited drug to another, as well as to present in court the corpus delicti as evidence; and (2) to prove that the accused knew that what was sold and delivered was a dangerous drug.[34] The attempt to sell the drugs may be established by overt acts showing that the accused knowingly commenced the commission of the crime.[35]

The flaws and the insufficiency of the evidence against Balag-ey have been discussed earlier. We shall now take up the sufficiency of the evidence against Aliong.

Aliong was not identified by the entrapping police officers as one of those who had offered to sell marijuana to SPO1 Natividad. It was neither alleged nor established that the two had been in contact prior to the supposed buy-bust operation. It was not shown that the former had, at any time, known that the contents of the Philip Morris cigarette box were prohibited drugs. It was not he, but his companion, who loaded the box into the baggage compartment of the taxi,[36] according to the testimony of Garbo, the taxi driver. As to who the companion of Aliong had been was not adequately proven. When the testimonies of the latter and of Prosecution Witness Garbo are taken together, it becomes reasonably doubtful that the companion referred to was Balag-ey.

Hence, except for the fact that Aliong was on board the taxi from where the box of marijuana was seized, and that he was the one who paid extra fare to the driver while they waited for the return of the former’s companion, there is no evidence that Aliong conspired with Balag-ey and attempted to sell the prohibited drugs. The rule is settled that, without any other evidence, mere presence at the scene of the crime is not by itself sufficient to establish conspiracy.[37]

After questioning Aliong, even the entrapping police officers initially cleared him of complicity. Indeed, they found no reason to indict him together with Balag-ey in the original Information.[38] SPO1 Natividad, in particular, testified as follows:

“Atty. Molintas (to PO1 Natividad):Q About Aliong, when was he released?A He spent the night in our office and then he was released after the investigator said that he has no knowledge of the marijuana.Q Your investigator says that he has no knowledge but this time you are the poseur-buyer. What was the participation of Aliong when the

negotiation was being made?A According to Aliong, he only accompanied the suspect Gatudan sir.Q    The question is, during the negotiation the first time you went to the Universal Martial Arts [Gym], the truth is, he was not there?A     He was not there sir.Q    You only saw him at Session Road?A     Yes sir.Q    Inside the taxicab?A     Inside the taxicab sir.Q    When you met Gatudan at Session Road, did Aliong alight from the taxicab?

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A     No sir.Q Did you ask the taxi driver who paid the taxi fare at that time?A No sir.Q Until now you do not know?A Yes sir.Q So, what we are made to understand is, after doing your part as poseur-buyer, you did not participate anymore in the investigation of the

case?A I assisted the investigator when we inventoried the marijuana sir.Q That’s it[?] Nothing more?A Nothing more sir. The investigation and the documentation, I did not participate [therein] anymore.Q    [Do you] suggest, Mr. Witness that the person you actually met at the Universal Martial Arts Gym and [with whom you] negotiated about 

the [sale] of marijuana was a certain Edwin Aliong?     A     No sir, Gatudan.Q [Do you] also suggest that Gatudan was not there in the morning?A He was there sir. The only [one] I knew is Gatudan.Q [Do you] also suggest, Mr. Witness, that at Session Road, in front of the Jollibee, the persons riding the taxicab were Roger [I]masa, Edwin

Aliong and Gatudan was not there?A No sir, Gatudan and Aliong.”[39]

x x x x x x x x x“Atty. Dumawing [to SPO1 Natividad]:Q Now, Mr. Witness, is it not a fact that before you conduct a buy-bust operation you subject the person or a suspect to surveillance?A Yes, sir.Q And in this particular case, Mr. Witness, you never subjected accused Edwin Aliong to surveillance?A No, sir.Q You also know what they call an Order of Battle. Will you tell the Honorable Court what that is?A It is a NARCOM watch list of persons who are engaged in the traffic of drugs.Q And is it not a fact that the name of Edwin Aliong does not appear in your Order of Battle?A Yes, sir.Q    Mr. Witness, when this case was filed by your office with the Prosecutor’s Office, you only charged Gatudan Balag-ey?A     Yes, sir.Q    You did not initially includ[e] Edwin Aliong?A     Yes, sir, because to our knowledge, after the investigation was finished in our office, Roger Imasa revealed to us that Edwin Aliong is his 

sub-agent.Q So that is the reason why you did not include him initially in the charge, is it not?A That is one reason, sir.”[40] (Italics supplied)The above admissions, taken together with the acts of Aliong -- prior to, contemporaneous with, and subsequent to his arrest -- fail to establish any

conspiracy.Even the charge of illegal possession of prohibited drugs was not established beyond reasonable doubt. The elements of this offense are the

following: (1) the accused is in possession of an item or object, which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug.[41] Admittedly, the third requisite was not convincingly established by the prosecution.

In view of the lapses in the prosecution’s case, the quantum of evidence needed to convict Aliong and Balag-ey -- proof beyond reasonable doubt -- has not been adequately established by the prosecution. Our minds cannot rest easy on their supposed guilt. We reiterate the conventional wisdom that it is better to free ten guilty persons than to convict an innocent one.[42]

Third Issue:Buy-Bust Operation

Both appellants argue that no buy-bust operation took place on September 28, 1998, as shown by the inability of the prosecution to present in court the alleged police informant and the marked money. Likewise, they point out that even the prosecution’s witnesses testified that money had not changed hands during the alleged transaction.

Well-established is the rule that the presentation of a confidential informant in a buy-bust operation is not always required, [43] especially when the sale was actually witnessed and adequately proved by other prosecution witnesses. [44] This rule admits of exceptions, however, as when the appellant vehemently denies selling prohibited drugs; and when there are material inconsistencies in the testimonies of the arresting officers. [45]

For like reason, the presentation of the buy-bust money[46] and proof of its actual payment[47] -- pieces of evidence that are otherwise not indispensable -- become necessary if the constitutional presumption of innocence is to be overcome. In the present case, the material inconsistencies in the testimonies of the prosecution witness and the non-presentation of the buy-bust money raise reasonable doubts about the occurrence of a buy-bust operation.

The unrelenting drive against illegal drugs is indeed commendable. Those who engage in the illicit trade of marijuana and who prey on the misguided members of society must be caught and prosecuted properly. While courts are committed to assist the government in its campaign against illegal drugs, a conviction under the Dangerous Drugs Law will prosper only after the prosecution discharges its constitutional burden to prove guilt beyond reasonable doubt. Otherwise, this Court is likewise duty-bound to uphold the constitutional presumption of innocence.

WHEREFORE, the appeal is GRANTED, and the assailed Decision REVERSED. Appellants Gatudan Balag-ey and Edwin Aliong y Sungot are hereby ACQUITTED on reasonable doubt.

Let them be immediately released from their place of confinement, unless there is any other legal or valid cause to detain them further. The director of the Bureau of Corrections shall report to this Court, within ten (10) days from notice of this judgment, on his action in obedience to this directive. No costs.

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SO ORDERED.Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Republic of the PhilippinesSupreme Court

Manila

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

- versus - ARNEL CLARITE y SALAZAR,

Accused-Appellant.

G.R. No. 187157

Present:

CORONA, C.J., Chairperson, LEONARDO-DE CASTRO,BERSAMIN,DEL CASTILLO, andVILLARAMA, JR., JJ. Promulgated: February 15, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N LEONARDO-DE CASTRO, J.: This is an appeal from the Decision [1] of the Court of Appeals in CA-G.R. CR.-H.C. No. 00932 dated May 9, 2008, affirming with modification the

conviction of accused-appellant Arnel Clarite y Salazar for violation of Section 5, Article II of Republic Act No. 9165. The Amended Information, dated July 25, 2002, reads:

That on or about 11 July 2002, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and there, willfully, unlawfully and feloniously sell, dispense, deliver and/or distribute four (4) plastic sachets containing white crystalline substance, tested and found out to be Methamphetamine Hydrochloride or ‘shabu’, a regulated drug weighing 45.8712 grams to NBI poseur-buyer, for and in consideration of P50,000, a marked money bill, Philippine currency.[2]

The evidence of the prosecution, which included the testimonies of National Bureau of Investigation (NBI) special investigators Alfredo Romano, Jr. (Romano), Felipe Jessie Jimenez (Jimenez) and Rommel Dizon (Dizon), as well as P/Insp. Josephine Macura Clemen (Clemen) and Alejandro Cedeño (Cedeño), tended to establish the following:

On July 8, 2002, Romano received information from his “asset,” Cedeño, that a certain Arnel, a supplier of illegal drugs from Cavite, is looking for

a buyer of shabu.[3] Romano directed Cedeño to negotiate the sale.[4]

Cedeño communicated with accused-appellant, and the latter agreed that he would be arriving in Naga City in the morning of July 11,

2002. Accused-appellant would be carrying 50 grams of shabu, which will be sold to Cedeño’s “financier” for P45,000.00.[5] With the authority of Atty. Jose Doloiras, the immediate superior of Romano, the NBI special investigators devised a plan to entrap said Arnel. Romano and Jimenez prepared what they called “budol [boodle] money,” counterfeit notes made out of photocopied P1000 and P500 bills. The counterfeit bills, representing a total value of P50,000.00, were dusted with fluorescent powder at the Philippine National Police (PNP) Regional Crime Laboratory, Camp Simeon Ola, Legaspi City. On July 10, 2002, Romano was able to confirm with Cedeño that said “Arnel” was definitely arriving the following day at 8:00 a.m. at the Central Business District (CBD) terminal, Naga City.[6]

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On July 11, 2002, Romano again confirmed with Cedeño that said “Arnel” would be coming at 8:00 a.m. At around 6:00 a.m., Romano, Jimenez and Dizon were at the NBI Office. It was at this time that Dizon was informed of the operation. Before 8:00 a.m., Romano, Jimenez, Dizon and Cedeño proceeded to the CBD terminal where they posted themselves in strategic locations. Dizon was posted at a parking space, while Romano and Jimenez were near each other, close to a Dunkin Donut shop housed inside the building at the terminal.[7]

While Romano and Cedeño were talking to each other in front of the Dunkin Donut shop, accused-appellant arrived, carrying a small bag. [8] The

informant introduced Romano to accused-appellant. Romano asked for the shabu. When said shabu was handed to Romano, accused-appellant asked for the money. This was when accused-appellant noticed that the money was fake. Romano then removed his sunglasses to signal the completion of the transaction to Jimenez and Dizon.[9]

The NBI investigators arrested and handcuffed accused-appellant, and thereafter brought the latter to the NBI Office in Naga City. Therein,

accused-appellant was booked, fingerprinted and photographed. Accused-appellant was then brought to the PNP Regional Crime Laboratory at Camp Simeon Ola, Legaspi City. P/Insp. Clemen examined the dorsal and palmar areas of accused-appellant’s hands, as well as the plastic sachets handed by him to Romano. Both hands of accused-appellant were found positive for the presence of bright orange ultraviolet fluorescent powder. The plastic sachets, which had a total weight of 45.8712 grams, were positive for methamphetamine hydrochloride or shabu.[10]

Only accused-appellant was able to testify for the defense. He narrated that on July 10, 2002, at around 6:00 p.m., he was sent by Mrs. Fely

Gutierrez, his employer, to go to Naga City to deliver 100 grams of shabu to a certain Ching Lo. He was told that Ching Lo lived near the Sky Cable office and the Naga City Civic Center. On that day, he also wanted to fetch his mother-in-law from Ponong, Magarao, Camarines Sur in order that the latter may help her wife in taking care of her two children.[11]

Accused-appellant testified that per his employer’s strict instruction, someone would approach him at the Naga City Civic Center. He was

supposed to give the shabu to said person in exchange for P110,000.00. He stressed that he was then carrying 100 grams of shabu, not 45.87 grams as reported by the prosecution witnesses.[12]

Accused-appellant denied that the buy-bust operation took place. Instead, he narrated that he was aboard a tricycle at 6:00 a.m. on July 11,

2002, on his way to the Civic Center, when Romano and Jimenez apprehended him, forced him into their car and blindfolded him. While still blindfolded, Romano and Jimenez brought him to a hotel. He was told to contact his employer through a cellular phone and inform her of his arrest and that the arresting officers needed money to pay for their hotel bills. The NBI operatives were extorting money equivalent to the value of 50% of the 100 grams of shabu. After the accused-appellant was able to speak briefly with his employer, the latter turned off her phone and cannot be contacted again. The NBI operatives, showing him the marked money, threatened that a drug case would be filed against him. The NBI operatives told him to hold the marked money, but he refused and was not able to hold it. Accused-appellant was brought to the NBI Office in Naga City, then to Camp Ola in Legaspi City, where he was subjected to a paraffin test. Accused-appellant was later brought back to the NBI Office when someone told him that his employer was sending money to settle his case. Accused-appellant admitted that since October 2001, he accompanied his employer around five or six times to deliver shabu to the aforementioned Ching Lo.[13]

On March 18, 2004, the Regional Trial Court (RTC) of Naga City rendered its Decision [14] finding accused-appellant guilty. The dispositive portion

of the Decision reads:

WHEREFORE, in view of the foregoing disquisition, judgment is hereby rendered finding accused, ARNEL CLARITE y Salazar, guilty beyond reasonable doubt of the offense of violation of Sec. 5, Article II of RA 9165, and hereby sentences him to suffer the penalty of life imprisonment.

Considering that the accused has been undergoing preventive detention during the pendency of the trial in this case, let

the same be credited in the service of his sentence.[15]

On May 9, 2008, the Court of Appeals rendered its Decision affirming with modification the RTC Decision:

WHEREFORE, the appealed decision of the Regional Trial Court of Naga City (Branch 25) is AFFIRMED with MODIFICATION in that in addition to the penalty of life imprisonment imposed on accused-appellant, he is sentenced to pay a fine in the sum of P500,000.00.[16]

Hence, this appeal, where accused-appellant adopts the same lone assignment of error it raised before the Court of Appeals:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SECTION 11, ARTICLE II, R.A. NO. 9165 DESPITE THE INADMISSIBILITY OF THE EVIDENCE OBTAINED THROUGH AN UNLAWFUL SEARCH.[17]

Accused-appellant’s main contention is that he was arrested while he was riding a tricycle and not while he was supposedly selling shabu. Thus, since he was not caught in flagrante delicto, he can only be arrested with a warrant. Consequently, according to accused-appellant, the search conducted upon him cannot be deemed to have been incidental to a lawful arrest, thus, making the evidence obtained therefrom inadmissible. In making such argument, accused-appellant challenges the findings of fact of the trial court and the Court of Appeals which both accepted the version of the prosecution.

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The present appeal must fail. Unfortunately for accused-appellant, findings of fact of the trial court, particularly when affirmed by the Court of Appeals, are binding upon this

Court,[18] save only for certain compelling reasons.[19] We perused the records of the case at bar and found no reason to disturb the findings of the courts a quo.

In cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers on the ground that

they are presumed to have performed their duties in a regular manner. The exception is when there is evidence to the contrary suggesting ill motive on the part of the police officers or deviation from the regular performance of their duties. [20] In the case at bar, accused-appellant’s only evidence of ill motive on the part of the NBI operatives is his own testimony of frame-up and extortion, a very common defense in dangerous drugs cases. We have held that such defense is viewed with disfavor, for it can be easily concocted. To substantiate such a defense, therefore, the evidence must be clear and convincing.[21]

The trial court, which had the opportunity to observe the demeanor and conduct of Romano, Jimenez and Dizon, on one hand, and that of

accused-appellant, on the other, was thoroughly convinced of the version of the prosecution in this matter. Furthermore, accused-appellant’s admission in open court of being a drug courier for his employer, though not conclusive evidence of the specific act of selling shabu on the date and under the circumstances specified in the complaint, nevertheless constitutes circumstantial evidence of the same. By admitting the previous sales of shabu, accused-appellant in effect attested to his own proclivity to do such an act, as well as the accessibility to him of the object of his alleged illegal trade.

Jurisprudence holds that the elements of the crime of illegal sale of drugs are the following: (1) the identity of the buyer and the seller, the

object and consideration; and (2) the delivery of the thing sold and payment therefor.[22] The testimonies of Romano, corroborated by his fellow NBI investigators Jimenez and Dizon and informant Cedeño established the sale and

delivery by accused-appellant Clarite to Romano of what was initially believed to be 50 grams of shabu in four plastic sachets, in exchange for what Clarite thought was P50,000.00. Romano positively identified accused-appellant Clarite as the person who sold the plastic sachets of shabu to him. As for the sale itself, Romano’s account was simple and clear:

PROS. SAEZ: Q As has been admitted by the defense, you stated in your affidavit that you were able to successfully have a transaction with

Arnel Clarite at CBD terminal on July 11, 2002, in the morning, using boodle money in the amount of P50,000.00. Now, can you tell the Court how did you introduce yourself to Mr. Clarite that morning?

A I was introduced by my informant, sir, my asset. PROS. SAEZ: Q Where? A In front of the terminal. I don’t know exactly the place. It was in front of the terminal in Dunkin Donuts. Q So, when you were introduced by your asset, where was Mr. Clarite then? A He was in front of us, sir. Q By the way, if Mr. Clarite is in court, can you point to him? A Yes, sir, the one wearing yellow t-shirt, sir. PROS. SAEZ: Will the defense admit that the one wearing a yellow shirt is Mr. Clarite? ATTY. BOTOR: Yes, your honor. PROS. SAEZ: Q Now, when you were introduced by your asset to Mr. Clarite, what transpired next? A After the introduction, we went on [with] the transaction. I asked for the shabu and he asked for the money, sir.

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Q Now, which transpired first, who gave first? A The shabu, sir. Q He gave first the shabu? A Then, I gave the money. Upon handing him the money, he noticed that it was boodle. But, it was too late, I already gave the

signal to my companions who were still there. Q How can you say that Mr, Clarite was able to notice that what you gave him was boodle money? A He told me, “What is this?” Because it was obvious by merely looking at the bundle of money, you can detect that it was

boodle. But, I admit that since the government has no fund, we used in our buy-bust operations the show money or the money to be used in the purchasing of illegal drugs, we used our initiative to reproduce or use boodle money in every buy-bust operation.[23]

The trial court was very careful in considering the testimony of Romano and even asked very inquisitive questions apparently designed to test

his credibility. Romano, however, remained steadfast:

COURT: The Court has still few questions to ask. Q By the way, you testified awhile ago upon question by the Court that it was your team which arrived first at the meeting

place, how long did your team wait for the accused? A Several minutes, your honor. Q Around? A Before 8:00 o’clock, sir, around, let’s say 15 minutes. Q What time did the team go to the CBD for the purpose of waiting? A 7:30, your honor. Q And you waited for around 15 minutes? A Yes, sir. Q Now, being a poseur-buyer, what did you and the accused talk about after he was introduced to you by the informant? A I asked him to show me the sachets of shabu and he asked for the money. Q Did you and the accused agree regarding the quantity of the sachets of shabu you were to buy from the accused? A Beforehand, your honor, we already agreed that we are going to buy 50 grams of shabu worth P50,000.00. COURT: Q Now, did you ask from the accused whether he already had that 50 grams of shabu? A Yes, your honor, I asked him and he showed it to me. He took it from his small bag. Q And, did the accused also ask for the money? A Yes, your honor, I handed him the boodle money. Q You said awhile ago that it was with accused who handed first to you the four sachets of shabu and after which, you also

handed to him the boodle money. Now, did the accused not ascertain first for himself to show him first the money before parting away the four sachets?

A Yes, your honor, after I showed it to him, I knew that he would notice that it was boodle, I already handed it to him.

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Q But that was not the point which this Court would want to get from you, what this Court wants to know from you is whether the accused gave to you the shabu whether he first ascertained from you whether you have already the money with you?

A He did not, your honor. Q Meaning, the accused did not ask from you, “show to me first the money before I give you the shabu?” A He did not, your honor, I asked him to show me the shabu because I was introduced by my informant as a good buyer. That

is why he gave me first the shabu.[24]

It was likewise clear from the evidence on record that P/Insp. Clemen examined the contents of the plastic sachets sold to Romano, and confirmed that they contained methamphetamine hydrochloride (shabu), even though the total weight was only 45.8712 grams. P/Insp. Clemen was also able to verify that both hands of accused-appellant were positive for the presence of bright orange ultraviolet fluorescent powder, thus, corroborating the testimonies of the NBI investigators that he received the counterfeit money which were dusted with such powder. This also belies the testimony of accused-appellant that he never held the marked money.[25]

As for accused-appellant’s argument that he would not have sold shabu in a crowded place, we find the same unconvincing. We have already

held in Ching v. People[26] that: This Court observed in many cases that drug pushers sell their prohibited articles to any prospective customer, be he a

stranger or not, in private as well as in public places, even in the daytime. Indeed, drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the law. Hence, what matters is not the time and venue of the sale, but the fact of agreement and the acts constituting sale and delivery of the prohibited drugs.[27]

Accused-appellant also claims that the alleged buy-bust operation was conducted without the authorization of or coordination with the Philippine Drug Enforcement Agency (PDEA), in violation of Section 86 of Republic Act No. 9165, which provides:

Section 86. Transfer, Absorption, and Integration of All Operating Units on Illegal Drugs into the PDEA and Transitory 

Provisions. — The Narcotics Group of the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby abolished; however they shall continue with the performance of their task as detail service with the PDEA, subject to screening, until such time that the organizational structure of the Agency is fully operational and the number of graduates of the PDEA Academy is sufficient to do the task themselves: Provided, That such personnel who are affected shall have the option of either being integrated into the PDEA or remain with their original mother agencies and shall, thereafter, be immediately reassigned to other units therein by the head of such agencies. Such personnel who are transferred, absorbed and integrated in the PDEA shall be extended appointments to positions similar in rank, salary, and other emoluments and privileges granted to their respective positions in their original mother agencies.

The transfer, absorption and integration of the different offices and units provided for in this Section shall take effect

within eighteen (18) months from the effectivity of this Act: Provided, That personnel absorbed and on detail service shall be given until five (5) years to finally decide to join the PDEA.

Nothing in this Act shall mean a diminution of the investigative powers of the NBI and the PNP on all other crimes as

provided for in their respective organic laws: Provided, however, That when the investigation being conducted by the NBI, PNP or any ad hoc anti-drug task force is found to be a violation of any of the provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall immediately transfer the same to the PDEA: Provided, further, That the NBI, PNP and the Bureau of Customs shall maintain close coordination with the PDEA on all drug related matters. (Emphasis supplied.)

Accused-appellant’s assertion has no merit. This Court has already held that the silence of the foregoing provision as to the consequences of the failure on the part of the law enforcers to seek the prior authority of the PDEA cannot be interpreted as a legislative intent to make an arrest without such PDEA participation illegal or evidence obtained pursuant to such an arrest inadmissible.[28]

The trial court imposed the penalty of life imprisonment upon accused-appellant. While this penalty is within the period provided for in

Section 5 of Republic Act No. 9165, the same omitted the fine that should likewise be imposed:

Section 5. Sale,  Trading,  Administration,  Dispensation,  Delivery,  Distribution and Transportation of  Dangerous  Drugs and/or  Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. (Emphasis added.)

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Thus, the Court of Appeals correctly modified the penalty by including therein a fine in the sum of P500,000.00. WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 00932 dated May 9, 2008 is

hereby AFFIRMED. SO ORDERED.

                                                 TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

RENATO C. CORONAChief Justice

Chairperson

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONAChief Justice

SECOND DIVISIONG.R. No. 180919 : January 9, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MELBA L. ESPIRITU, PRIMITIVA M. SERASPE, SIMPRESUETA M. SERASPE, a.k.a. "Aileen," Accused.SIMPRESUETA M. SERASPE, a.k.a. "Aileen," Accused-Appellant.

D E C I S I O NDEL CASTILLO, J.:

Appellant Simpresueta M. Seraspe (appellant) assails the July 25, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02045 which affirmed her conviction for illegal sale of dangerous drugs by the Regional Trial Court (RTC) of Las Piñas City, Branch 275 in Criminal Case No. 99-1127.2?r?l1

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Factual AntecedentsAppellant, together with her mother, Primitiva M. Seraspe (Seraspe), and Melba L. Espiritu (Espiritu) were charged with violation of Section 15, Article II of Republic Act (R.A.) No. 6425 (The Dangerous Drugs Act of 1972), as amended, in an Amended Information,3 the accusatory portion of which reads as follows:cralawlibraryThat on or about June 1, 1999 in Las Piñas City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, conniving, confederating, and helping one another, did, then and there willfully, unlawfully, feloniously and knowingly sell, dispense, transport, deal in, administer, deliver, negotiate and distribute 983.5 grams of methamphetamine hydrochloride (shabu), a regulated drug, to Ms. Criselda Manila, who acted as poseur buyer, said accused, selling, dispensing, transporting, administering and distributing the aforementioned regulated drug without any license, permit or authority from the government to do so, in consideration of an amount of money which accused demanded and received from the poseur buyer.CONTRARY TO LAW.4?r?l1The three entered separate pleas of "not guilty" to the crime charged during their arraignment on December 1, 1999.5 Thereafter, trial ensued.Version of the ProsecutionThe key witnesses presented by the prosecution were Police Chief Inspector Ricardo Dandan (P/Chief Insp. Dandan), a member of the now defunct Presidential Anti-Organized Crime Task Force (PAOCTF), and Criselda Manila, a.k.a., Carla (Carla), liaison officer of PAOCTF. From their testimonies,6 the following facts emerge:cralawlibraryOn May 15, 1999, P/Chief Insp. Dandan received a telephone call from a confidential informant who told him about the drug trafficking activities of Espiritu in Cainta and in the Cities of Las Piñas, Muntinlupa, Taguig and Parañaque. He immediately reported this information to Senior Police Superintendent Cesar Mancao, who, in turn, instructed him to create a police team to conduct an operation relative thereto. P/Chief Insp. Dandan thus formed Team Golf composed of SPO4 Bahadi (also referred to as SPO4 Bajade), SPO4 Tuanggang, SPO2 Roberto O. Agbalog, PO3 Osmundo B. Cariño (PO3 Cariño), SPO1 Leopoldo Platilla, SPO2 Laroga (also referred to as SPO2 Laruga), PO3 Olaya and Carla. Carla was to act as the poseur-buyer and PO3 Cariño as her husband.On the same day, Team Golf proceeded to SM Southmall in Las Piñas City and met the confidential informant. Thereafter Carla, PO3 Cariño and the civilian informant headed to Espiritus house and presented themselves to Espiritu. After the introductions, negotiation for the sale of shabu followed. Carla ordered two kilos of shabu for a discounted price of P750,000.00. Espiritu, in turn, took Carlas cellphone number and promised to call once the shabu becomes available.On May 27, 1999, Espiritu called Carla and asked the latter to wait. She again called two days later and arranged for a meeting at noon of the next day in SM Bacoor. Hence, on May 30, 1999, Carla proceeded to the agreed place while Espiritu arrived thereat together with appellant. Espiritu directed appellant to give a sample of the shabu to Carla inside the rest room so the latter could examine it. Appellant obliged. After they parted ways, Carla gave the sample to P/Chief Insp. Dandan, who readily knew that the same was shabu because of his familiarity with the drug.At around 7:00 p.m. of the same day, Espiritu again called Carla and told her that she already has two kilos of shabu but would deliver only one kilo. She would deliver the rest after receipt of the payment for the first. The two then agreed to meet in the food court of RFC Manuela (RFC Food Court), Las Piñas City for the delivery of the drugs.Upon learning this, P/Chief Insp. Dandan immediately gathered the buy-bust team, gave them instructions and prepared four marked 500 peso bills and boodle money. The team then repaired to the meeting place on June 1, 1999. At about 3:00 p.m., Carla and PO3 Cariño occupied one of the tables in the RFC Food Court while the rest of the team positioned themselves nearby. Espiritu and appellant arrived at around 5:00 p.m. After ascertaining from Carla if she brought the money, Espiritu ordered appellant to get the shabu. Appellant left and returned 30 minutes later with her mother, Seraspe, who was then carrying a bag. Appellant took the said bag and handed it to Espiritu, who, together with Carla, proceeded to the restroom to examine the contents thereof. When Carla emerged from the restroom, she made the pre-arranged signal by scratching her head. Whereupon, the buy-bust team arrested Espiritu, Seraspe and appellant. The marked money was recovered from Espiritu while the plastic bag containing the substance subject of the buy-bust operation was marked by PO3 Cariño with the Visayan word "tigulang." Upon laboratory examination, the seized specimen weighing 983.5 grams was found positive for methamphetamine hydrochloride or shabu.7?r?l1Version of the DefenseEspiritu, Seraspe and appellant claimed that they were merely induced by the PAOCTF operatives to sell the dangerous drug. Their testimonies8 revealed the following circumstances:cralawlibraryEspiritu first met Carla when the latter went to her house together with the civilian informant in the second week of April 1999. Carla wanted to talk to Espiritus husband, who is a lawyer and a casino financier, in the hope of getting his help in purchasing shabu from his Chinese clients. When Espiritu told Carla that her husband does not want to get involved in that kind of business, Carla instead sought her help. Carla promised to pay P750,00.00 for a kilo of shabu. Fearing that her husband would get mad about it, Espiritu declined the offer.After a couple of days, Carla returned to Espiritus house, this time with PO3 Cariño whom she introduced as her husband. Again, they sought her assistance in purchasing shabu and showed her an attaché case containing P1.5 million. Espiritu again declined. But as Carla and PO3 Cariño returned four more times with the same request and showing her the money each time, Espiritu finally told them that she would see what she can do. At that time, she was in need of money for the tuition fees of her grandchildren and the medicines of her son. Espiritu thus introduced Carla and PO3 Cariño to appellant, an employee of her husband in the casino.Appellant claimed that during her first meeting with Carla and PO3 Cariño, the two asked her to help them look for shabu and showed her money in an attaché case. She initially refused but changed her mind when the couple kept on returning to her place to convince her. Thinking that she would be able to pay her debts and provide for the needs of her children with the money being offered by Carla and PO3 Cariño, she acceded and told them that she would try to look for shabu.On May 30, 1999, appellant and Espiritu went to the house of a certain Aida Go (Aida) to get the shabu. Appellant then kept the shabu in her house as instructed by Espiritu. On June 1, 1999, she and Espiritu went to RFC Food Court to meet with Carla and PO3 Cariño. Appellant handed the shabu to Espiritu, who entered the restroom with Carla. However, when they came out, they were already surrounded by policemen and were arrested.Seraspe, for her part, claimed that she had no knowledge of the transaction as she just accompanied her daughter, appellant, to the RFC Food Court.Ruling of the Regional Trial Court

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In its Decision9 of July 29, 2002, the trial court found that all the accused conspired to deliver and sell shabu10 And contrary to accuseds claim that they were merely instigated by the authorities to commit the crime charged, it found that their arrest was the result of a valid entrapment operation.11 It thus disposed:cralawlibraryWHEREFORE, judgment is hereby rendered finding accused MELBA L. ESPIRITU, PRIMITIVA M. SERASPE and SIMPRESUETA M. SERASPE guilty beyond reasonable doubt and sentenced to suffer each the penalty of Reclusion Perpetua and pay a fine of P500,000.00 and costs.SO ORDERED.12?r?l1Espiritu, Seraspe and appellant filed a Notice of Appeal,13 which was given due course by the trial court in an Order dated August 5, 2002.14 Pursuant thereto, the records of the case were elevated to this Court.However, on October 15, 2004, Espiritu filed a Manifestation with Motion to Withdraw Appeal15because she intends to apply for executive clemency in view of her old age and illness. The Court granted the motion in a Resolution16 dated December 1, 2004 and the case was declared closed and terminated with respect to her. An Entry of Judgment17 relative thereto was accordingly issued and entered in the Book of Entries of Judgment.In the Courts Resolution18 dated November 9, 2005, the case was transferred to the CA for appropriate action and disposition in view of the ruling in People v. Mateo19 allowing an intermediate review by the said court of cases where the penalty imposed is death, life imprisonment or reclusion perpetua, as in this case.Subsequently, Seraspe likewise filed a Manifestation with Motion to Withdraw Appeal20 since she also intends to apply for executive clemency in view of her old age. The CA granted the same in a Resolution21 dated August 7, 2006 and the case was likewise declared closed and terminated insofar as she was concerned. A Partial Entry of Judgment22 was likewise issued and entered in the Book of Entries of Judgment on even date.Thus, appellant was the only one left pursuing the appeal.Ruling of the Court of AppealsIn a Decision23 dated July 25, 2007, the CA upheld the RTCs finding of a valid entrapment24 and accorded respect and finality upon the trial courts assessment of the credibility of witnesses.25 The dispositive portion of its Decision reads:cralawlibraryWHEREFORE, the Decision appealed from is AFFIRMED.SO ORDERED.26?r?l1Hence, this appeal.Assignment of ErrorsThe errors raised in the Accused-Appellants Brief27 and Supplemental Brief28 are as follows:cralawlibraryTHE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 15, ARTICLE II, IN RELATION TO SECTION 21, ARTICLE IV, AS AMENDED BY R.A. 7659, WHEN THE LATTERS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.29?r?l1THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE LAME EVIDENCE OF THE PROSECUTION TO WARRANT A FINDING OF CONSPIRACY BEYOND REASONABLE DOUBT.30?r?l1 ???ñr?bl?š ??r†??l l?? l?br?rÿOur RulingThe petition has no merit.The two essential elements of the crimeof illegal sale of dangerous drugs wereduly established by the prosecution;appellant conspired with her co-accusedin the commission of the crime charged.Appellant faults the trial court in convicting her of the crime of illegal sale of dangerous drugs.In the prosecution of illegal sale of dangerous drugs, the two essential elements are: "(1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor."31 Hence, evidence that establishes both elements by the required quantum of proof, i.e., guilt beyond reasonable doubt,32 must be presented. Here, the said elements were duly proved by the prosecution. Carla and P/Chief Insp. Dandan positively identified appellant and her co-accused as the sellers of the contraband who sold the same in exchange for the marked money. The item was seized, marked and upon examination was identified as shabu, a dangerous drug. The same was subsequently presented in evidence. Moreover, Carla provided a detailed testimony as to the delivery and sale of shabu, viz:cralawlibraryQ What time did you reach the area?A About 3:00 in the afternoon.Q After reaching the area at Manuela Food Court, what happened next?A And then the group positioned themselves inside the Food Court.Q How about x x x you and Cariño?A And we positioned ourselves at the next table.Q What happened after you positioned yourselves at the table?A And then Melba Espiritu and Aileen Seraspe arrived at around 5:00 in the afternoon.Q And what happened after Melba Espiritu and Aileen Seraspe arrived?A She asked me if I have already the money.Q What was your answer if any?A I answered yes.Q What happened next after you answered yes that you have money?A And she asked Aileen Seraspe to go out.Q For what reason?A To get the shabu.Q So what happened after Melba Espiritu directed Aileen to go out and get the shabu?A When Aileen returned she was with her mother Primitiva Seraspe.Q And what happened after Aileen came back together with her mother Primitiva Seraspe?A And Primitiva Seraspe is carrying a gray envelope clutch bag which looks like an envelope.

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Q And what happened after Aileen came back together with Primitiva Seraspe who was then carrying a gray clutch type bag?A And then she left her mother in one of the tables and she took a gray bag and opened it and took another plastic pink bag containing shabu and gave it to Melba.Q So what happened after Aileen Seraspe took off the pink bag inside the gray bag and hand[ed] it over to Melba Espiritu?A And then I was invited by Melba Espiritu to the comfort room.Q What happened after she [went with you inside] the comfort room?A She showed me that sir and asked me to look at it.Q She showed you what?A Shabu sir.Q What happened next?A After looking inside the plastic bag containing shabu, I gave her the money.Q And how did you [give] her the money?A After I gave her the money, I went out of the C.R.Q What happened to the shabu?A It is still in my possession sir.Q And what happened after you went out of the CR carrying the shabu?A After getting out of the CR I made a signal.Q And what was the signal?A I scratched my hair using my right hand.Q At this juncture Your Honor witness is demonstrating by scratching her hair. What happened next after you scratched your hair?A And they arrested Melba carrying the money.33?r?l1The Court has no reason to doubt the above testimony of Carla. Aside from the fundamental rule that findings of the trial court regarding the credibility of prosecution witnesses are accorded respect considering that it is the trial court that had the opportunity to observe their conduct and demeanor,34the Court notes that appellant herself corroborated the prosecutions account of the crime, viz.:cralawlibraryQ How many kilos did you sell to the buyer, if you sold anything?A We first brought one (1) kilo.Q When you say "we", you are referring to you and to Melba Espiritu, is that correct?A Yes, Sir.x x xQ And what happened while at RFC?A While we were in RFC, I handed the shabu to Melba Espiritu and then they entered the CR and when they went out of the CR there were already many policemen.35?r?l1Moreover, appellant questions the lower courts finding of conspiracy between her and her co-accused. She claims that she merely accompanied Espiritu in going to the RFC Food Court and had nothing to do with the transaction. As a matter of fact, the shabu was not even found in or recovered from her possession. It just so happened that she was in the area during the delivery of the drugs.The Court is not persuaded.There is conspiracy if two or more persons agree to commit a felony and decide to commit it.36"Conspiracy must be proven on the same quantum of evidence as the felony subject of the agreement of the parties. Conspiracy may be proved by direct or circumstantial evidence consisting of acts, words, or conduct of the alleged conspirators before, during and after the commission of the felony to achieve a common design or purpose."37?r?l1The existence of conspiracy in this case was clearly established not only by the prosecutions evidence but also by appellants very own testimony, viz:cralawlibraryQ So, it was your own decision to go with Melba Espiritu to get that shabu from Aida Go?A Yes, sir.Q And in going there, your intention was to earn money?A Yes, sir.Q And who entered into this transaction of getting shabu from Aida Go, was it you or Melba Espiritu?A The two (2) of them. They were the ones who made the deal.Q And what was your participation while Melba Espiritu and Aida Go were transacting about that shabu?A My only participation would only be to carry that shabu from where we will get it up to the buyer.Q And did you pay any amount of money to Aida Go in order to get that two (2) kilos of shabu?A No, sir. It was given to us on a consignment basis.Q And do you know the meaning of "consignment basis"?A It will be paid after the deal.Q And you mentioned that your participation would be to bring that shabu from where?A Get it from Baclaran then go to RFC.FISCAL VILLANUEVA:cralawlibraryQ Where in Baclaran?A I dont know the exact address but I can go there. I mean, I will be able to go there. It is near 7-Eleven.Q Along Roxas Boulevard or Quirino Avenue?A You can pass through Quirino Avenue and Baclaran.Q And when did you get that shabu in Baclaran?A I think it was at the end of May. End of May.Q And from whom did you get the shabu in Baclaran?A From the house of Aida Go.

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Q And who handed the shabu to you?A It was not handed to me only. They only instructed me to carry it. It was placed in a bag.Q So, how were you able to know that that box contains that shabu if nobody handed it to you?A Because I know that we will be getting shabu. So, when Melba Espiritu told me to carry it, that box, I was thinking that it was already the shabu.Q So, Melba Espiritu was with you when you went to Baclaran when you picked up that shabu?A Yes, sir.Q So, the two of you were together in picking [up] that shabu?A Yes, sir.Q When was that?A May 30.Q And what happened after you [picked up] that shabu in Baclaran together with Melba Espiritu?A She instructed me to keep first the shabu in my house.Q So, it was Melba Espiritu who was dealing who was telling you what to do?A Yes, sir.Q So, what happened after you kept that shabu in your house?A I dont know what happened because it was Melba and the PAOCTFwho were the ones dealing.Q So, you voluntarily and knowingly carried that shabu for Melba Espiritu?A Yes. sir.38?r?l1"An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part and another performing another so as to complete it with a view to the attainment of the same object, and their acts though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments."39 As can be gleaned from appellants above-quoted testimony as well as from the testimony of Carla as to what transpired during the actual buy-bust operation,appellant acted in common concert with her co-accused in the illegal sale of shabu. She cannot therefore isolate her act of merely accompanying Espiritu to the RFC Food Court or carrying the shabu since in conspiracy the act of one is the act of all.40 "To be a conspirator, one need not participate in every detail of the execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy."41?r?l1Appellants defense of instigation is unworthy of belief.Appellant raises the defense of instigation to gain her acquittal. She argues that the government, through the PAOCTF operatives, induced her to commit the offense when they repeatedly approached and asked her to sell them shabu.The Court is unswayed."Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him."42 It differs from entrapment which is the employment of ways and means in order to trap or capture a criminal.43 In instigation, the criminal intent to commit an offense originates from the inducer and not from the accused who had no intention to commit and would not have committed it were it not for the prodding of the inducer.44 In entrapment, the criminal intent or design originates from the accused and the law enforcers merely facilitate the apprehension of the criminal by using ruses and schemes.45 Instigation results in the acquittal of the accused, while entrapment may lead to prosecution and conviction.46?r?l1Here, the evidence clearly established that the police operatives employed entrapment, not instigation, to capture appellant and her cohorts in the act of selling shabu. It must be recalled that it was only upon receipt of a report of the drug trafficking activities of Espiritu from the confidential informant that a buy-bust team was formed and negotiations for the sale of shabu were made. Also, appellant testified that she agreed to the transaction of her own free will when she saw the same as an opportunity to earn money. Notably too, appellant was able to quickly produce a sample. This confirms that she had a ready supply of the illegal drugs. Clearly, she was never forced, coerced or induced through incessant entreaties to source the prohibited drug for Carla and PO3 Cariño and this she even categorically admitted during her testimony.47?r?l1Moreover, a police officers act of soliciting drugs from appellant during the buy-bust operation, or what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-bust operation.48 In People v. Legaspi,49 this Court pronounced that in a prosecution for sale of illicit drugs, any of the following will not exculpate the accused: "(1) that facilities for the commission of the crime were intentionally placed in his way; or (2) that the criminal act was done at the solicitation of the decoy or poseur-buyer seeking to expose his criminal act; or (3) that the police authorities feigning complicity in the act were present and apparently assisted in its commission."50 Hence, even assuming that the PAOCTF operatives repeatedly asked her to sell them shabu, appellants defense of instigation will not prosper. This is "especially true in that class of cases where the offense is the kind that is habitually committed, and the solicitation merely furnished evidence of a course of conduct. Mere deception by the police officer will not shield the perpetrator, if the offense was committed by him free from the influence or instigation of the police officer."51?r?l1All told, we find no reason to disturb the findings of the trial court as affirmed by the appellate court, and thus sustain the conviction of appellant for illegal sale of dangerous drugs.The PenaltyUnder Section 15, Article III, in relation to Section 20, Article IV, of the Dangerous Drugs Act of 1972, as amended by R.A. No. 7659, the unauthorized sale of 200 grams or more of shabu or methamphetamine hydrochloride is punishable by reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos.52?r?l1The total weight of the shabu confiscated in this case is 983.5 grams. Hence, the proper penalty should be reclusion perpetua to death. But since the penalty of reclusion perpetua to death consists of two indivisible penalties, appellant was correctly meted the lesser penalty of reclusion perpetua, conformably with Article 63(2) of the Revised Penal Code which provides that when there are no mitigating or aggravating circumstances in the commission of the deed, the lesser penalty shall be applied. Considering the quantity of shabu sold, we likewise find reasonable the fine of P500,000.00 imposed by the trial court.53?r?l1WHEREFORE, the assailed Decision dated July 25, 2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 02045 is AFFIRMED.SO ORDERED.

EN BANC[G.R. No. 127580. August 22, 2000]

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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZHENG BAI HUI @ CARLOS TAN TY and NELSON HONG TY @ SAO YU, accused-appellants.D E C I S I O N

KAPUNAN, J.:For the sale of methamphetamine hydrochloride, otherwise known as “shabu,” Zheng Bai Hui alias Carlos Tan Ty and Nelson Hong Ty alias Sao Yu

were sentenced by the Caloocan City Regional Trial Court to suffer the death penalty. Their case is now before this Court on automatic review. Appellants were charged in an information stating:

That on or about the 24th day of October 1994 at Kalookan City, Metro-Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law, conspiring together and mutually helping with one another, did then and there wilfully, unlawfully and feloniously sell and deliver to SPOI GILBERT G. SANTOS who posed as buyer, One (1) blue plastic bag labelled “SM Shoemart” containing one (1) piece of newsprint with one (1) transparent plastic bag containing yellowish crystalline substance “METHAMPHETAMINE HYDROCLORIDE” (Shabu) and having a weight of 992.30 grams, a regulated drugs, knowing the same to be such.CONTRARY TO LAW.[1]

Arraigned on November 4, 1994, appellants pleaded not guilty to the above charges. Trial ensued thereafter. The prosecution’s version, as pieced together from the testimonies of witnesses SPO3 Gilbert Santos, [2] SPO1 Gerico Bacani,[3] PO2 Elleonito

Apduhan[4] and PO3 Noel Castañeto,[5] is as follows:In the morning of October 24, 1994, a police informant code-named “Stardust” arrived at the Narcotics Command (NARCOM) in Camp Ricardo Papa,

Bicutan, Taguig, and informed Police Sr. Insp. Franklin Moises Mabanag of two Chinese nationals who were supposedly “big time” drug pushers. She claimed to have regular contact with one of the alleged drug pushers, a certain Carlos Tan Ty. Stardust, the informant, was a woman who had previously provided the police with information that led to the confiscation of one (1) kilo of shabu.

Acting on the information furnished by Stardust, the NARCOM agents organized a buy-bust operation to apprehend the reputed drug pushers. Stardust called up Carlos Tan Ty that same morning and introduced SPO3 Gilbert Santos over the cellular phone. Pretending to be a “pusher-buyer” in Parañaque, SPO3 Santos told Carlos that he was willing to buy shabu if Carlos had any stock. Carlos replied that they had stock that was yellow in color. SPO3 Santos and Carlos subsequently reached an agreement for the former to buy from the latter one (1) kilo of shabu for P500,000 and to meet at the Mercury Drug Store in Monumento later that afternoon. Carlos would bring the shabu and SPO3 Santos the money. Carlos informed SPO3 Santos that he would be wearing a striped T-shirt and that he would be bringing with him a companion. Per Carlos’ instructions, SPO3 Santos would come alone.

SPO3 Santos and Police Sr. Insp. Mabanag then prepared the “boodle money” consisting of seven (7) bundles of newspaper cuttings [6] that was supposed to represent the P500,000 purchase money. A genuine P500 bill[7] was placed on top of one of the bundles and another P500 bill [8] at the bottom of the same bundle. SPO3 Santos initialed the red portion of the Philippine flag in each of the bills. [9]Between the bills were the newspaper cuttings. The bundles, each about three (3) inches thick, were wrapped with straps from the United Coconut Planters Bank and tied with a rubber band. The boodle money was then placed in plastic[10] and sealed with scotch tape.[11] SPO3 Santos rehearsed how he would show the drug pushers the boodle money.

The police held a briefing and formed a team led by Inspector Rolando Ibañez. The members of the team included SPO3 Santos, SPO1 Gerico Bacani, PO3 Elleonito Apduhan, PO1 Noel Castañeto, and a certain SPO1 Juspid. SPO3 Santos was designated poseur-buyer and SPO1 Apduhan, his backup. The team then proceeded to the meeting area for reconnaissance.

SPO3 Santos and the rest of the buy-bust team, dressed in civilian attire, arrived at the Mercury Drug Store at the corner of Edsa, Monumento, Caloocan City later that afternoon. SPO3 Santos and Stardust waited inside the Mercury Drug Store while the other agents strategically positioned themselves several meters from the store, where the suspects could not spot them.

The suspects arrived at around 6:00 in the evening. Stardust pointed to SPO3 Santos two (2) Chinese nationals, later identified as the accused, alighting from a tax. SPO3 Santos stepped out of the store and introduced himself to the two (2) Chinese nationals as the person whom they talked with over the phone that morning. He told the suspects that he brought the money with him, and showed the accused the boodle money by opening the wrapper and showing half of the bundle with the P500 bill on top. He then gave the money to one of the Chinese nationals, later identified as the accused Carlos Tan Ty. The latter’s companion, later identified as accused Nelson Hong Ty, in turn handed SPO3 Santos a blue plastic bag[12] with the marking of “SM” or “Shoemart.” The two looked at the money while SPO3 Santos opened the bag handed to him by Nelson Hong Ty. SPO3 Santos found a yellowish substance[13] sealed in transparent plastic and wrapped in newspapers. The accused identified the substance as shabu. Thereupon, SPO3 Santos held Carlos by the hand as the other members of the team came to help him effect the arrest of the two suspects, who were later brought to Camp Crame, Quezon City.

After the buy-bust operation, SPO3 Santos, PO3 Bacani and PO3 Apduhan placed their respective signatures [14] on the SM plastic bag, the newspaper wrappings and the transparent plastic containing the substance. The yellowish substance, together with its wrappings, was then delivered by SP01 Noel Castañeto to the Crime Laboratory of the Philippine National Police (PNP). The boodle money was handed over to the property custodian.

Leslie Maala,[15] a forensic chemist from the PNP, received a letter-request[16] from Police Sr. Insp. Franklin Moises Mabanag to conduct a laboratory examination on the substance taken from the accused. Ms. Maala took random samples of about one (1) gram from different parts of the substance and, per their standard operation procedure, performed physical, chemical and confirmatory examinations thereon. The physical examination consisted of weighing the entire substance. The chemical examination, in turn, consisted of the Simons test and the Marquis’ test. Thence, a thin layer chromatography test was performed. The examinations were supervised by the Chief of the Chemistry Division.

From the examinations thus conducted, Ms. Maala concluded that the sample was positive for methamphethamine hydrochloride. The results of Ms. Maala’s examination were reflected in her initial (Chemistry Report No. 0-793-94 dated October 25, 1994), [17] as well as in her final (Physical Sciences Report D-793-94 of even date)[18] report. The final report states that the entire substance weighed 992.3 grams.

The accused, in their defense, countered that no buy-bust operation took place. They denied selling any shabu and accused the police of extortion.Accused Carlos Tan Ty,[19] 38, described himself as married and engaged in the business of buying and selling lumber and furniture. At the time of

his testimony, he had been staying in the Philippines for more than ten years, although sometimes he would go home to Mainland China. Previously, he owned a sawmill business in Malanday but shifted to the furniture business in 1987, with Peter Chua and Nestor Lim as his partners. Their office is located in Karuhatan near a gasoline station along the MacArthur Highway. Their customers include Arenas Furniture and Unicorn Furniture. The business is not registered in Carlos’ name, however, since he is a Chinese citizen.

55

Accused Nelson Hong Ty,[20] 24, and originally from Fuchu, China, had been residing in the Philippines for around seven (7) years before his arrest. Though not licensed or authorized to work in the country, Nelson was employed as a factory worker and electrician in Everwood Furniture, a business owned by one Jessie Cua and located in Lincoln Street, Malinta, Valenzuela.

Testifying with the aid of an interpreter,[21] they narrated their account of the events that transpired on October 24, 1994.That afternoon, Carlos was in Everwood Furniture in Lincoln Street, Malinta conducting some business with the shop owner when Nelson, an

employee there, entered the office. Nelson had just come from the factory and had gone to the Everwood office in Malinta to report to his boss. Nelson asked how Carlos’ business was going. Carlos replied that it was okay. Seeing it was almost 5:00 p.m., Carlos asked Nelson if he was done working. Nelson replied, “Yes, my work is finished,” and that he was in fact on his way home. Carlos told him that he was supposed to meet a customer, a certain Chua Ping, in Monumento to take some orders. Carlos offered to bring Nelson home to the latter’s house in Navotas if Nelson was willing to wait.

Earlier that afternoon, Chua Ping called up Carlos and said he needed lumber and plywood for his new house. He wanted to meet with Carlos in Monumento so Chua Ping’s carpenter could give Carlos a list of the lumber he needed. He told Carlos to meet him between 5:00 and 6:00 p.m. at a restaurant located at the ground floor of No. 316, Monumento, along Edsa.

Nelson took Carlos’ offer to take him home and rode with Carlos to Monumento in Carlos’ car, a red Toyota. Upon arriving in Monumento at around 6:00 p.m., Carlos parked his car in front of the Prudential Bank. A boy even offered to clean the car.

The two walked along EDSA to meet Chua Ping. They were about 15 arms-length from the car when they were suddenly accosted by eight men. Carlos and Nelson asked what was happening. The men, who were in civilian attire, shoved Carlos and Nelson into a red Nissan Sentra. The two were not able to shout for help.

Inside the car, Carlos was blindfolded. Carlos and Nelson were then taken to the Anito Hotel in Monumento and brought to separate rooms.Once inside the hotel room, Carlos was ordered to face the wall. His blindfold was removed but he was boxed every time he looked at the

men. The men frisked him, seized his wallet and took therefrom cash amounting to P78,000. His license, cellular phone, pager and watch were also taken from him.

Carlos’ captors sat him on the bed and one of them (a policeman, according to Carlos) asked him questions like what business he was engaged in. Carlos tried to answer the man’s questions but they could not understand him. They got mad and boxed him.

An hour later, a Chinese-speaking man armed with a gun entered the room. Carlos pleaded with the man to help him since he did not know why he was arrested. The man asked him if he had any money. He said Carlos must have money since he had a business. The man offered to help him in exchange for P500,000. If Carlos would not give the money, the man warned, he would not arrange with the police for a settlement; Carlos “might [even] be thrown in Marikina.” Carlos told the man that he did not have that kind of money. He said that with the help of his friends he could raise only P50,000. The interpreter told Carlos to wait for him and he will talk to the policemen.

Nelson was also brought to one of the hotel rooms and instructed to sit on the bed. Two men were in the room with him. After an hour, a person who knew how to speak Chinese entered the room. The man, who did not identify himself, carried a firearm. He demanded P50,000 from Nelson, otherwise, the man warned, something bad will happen to him. “Papatungan ako ng kaso,” Nelson said in court. Nelson told the man, “I am just working. Where can I get such a big amount?”

Carlos and Nelson were then brought to their captor’s vehicles. Carlos was handed his cellular phone so he could call up friends or relatives who could help him produce the sum of P200,000. Carlos attempted to call them up but there was no reply.

Riding in separate vehicles, Carlos and Nelson were brought to the latter’s house in Navotas between 9:00 and 9:30 p.m. Nelson and some of the policemen went inside the house while Carlos remained in the car. The men took Nelson’s clothes, an electric fan, a gas stove, and a round plastic table from the house, and loaded them into the car.

The Chinese-speaking man asked Carlos if he was married. Carlos told him he was. The man informed him that they would next go to Carlos’ house. He instructed Carlos to tell his wife to borrow from her friends the money they demanded.

Carlos and his captors arrived at his house at around 11:00 p.m. Carlos’ wife answered the door. Four (4) of the men accompanied Carlos into the house, one of them holding him by the shirt. Carlos told his wife that his companions were policemen who arrested him “because of the lumber,” and were now demanding P200,000 from him. Carlos added that he had left his car in Monumento. Carlos’ captors then brought him back to their car. From the car, Carlos saw his wife ride in one of the policemen’s vehicles. Carlos was told that his wife was going to see her friends.

The vehicle Carlos was riding proceeded to Karuhatan when one of the policemen received a message from a pager, and the group transferred to the BB gasoline station. They stayed there for 15 to 20 minutes until the policeman received another message from his pager. They drove to Monumento when a hand from another vehicle signaled them to stop. They proceeded to Camp Crame thereafter.

At Camp Crame, Carlos and Nelson were placed in handcuffs. Later in the evening of October 25, 1994, they were provided with a piece of paper with some writings. The two were made to sign the paper and place their thumb marks thereon. They told Carlos that he would be released lunchtime the next day, October 26, when his wife brought the money they demanded. Nelson was given the same assurance of release.

Carlos and Nelson were not released the following day, however. At around 11:00 a.m., October 26, Carlos and Nelson were presented to the media.

Carlos’ common-law wife, May Ann Ty, testified to corroborate the accused’s testimony. Mary Ann and Carlos have been living together since 1989, and have three children. According to Mary Ann, appellant has been engaged in the furniture business since 1989.

Mary Ann testified that between 11 in the evening of October 24, 1994 and 12 midnight the next day, Carlos, along with a group of about six (6) men in civilian attire arrived at the couple’s residence. They asked her if she knew Carlos. “Yes,” Mary Ann replied, and inquired what they needed from him. She also asked the men who they were but they did not say anything. (In court, Mary Ann identified one of them as “Abduhan,” apparently referring to PO3 Elleonito Apduhan, one of the agents who testified against the accused.) The group informed her that Carlos “was arrested in connection with the woods.” It occurred to Mary Ann that appellant was arrested “perhaps [because] he was able to buy woods without receipts.” The men demanded that Mary Ann produce the sum of P200,000, or else “something bad will happen to [Carlos].” They told her that they would return at 2:30 in the morning. Before they left, the men searched the house and took her baby’s thermos and the batteries of a cellular phone.

After the men left, Mary Ann changed her clothes and woke up her brother so that he could accompany her to borrow the money. One of her friends, a certain John Ang, subsequently promised to lend her P130,000 through his secretary who would bring the money to Karuhatan. Mary Ann returned home at past one in the morning and waited.

56

Two of the men returned at about 5:00 that same morning. Two minutes later, Carlos entered the room, pushed by one of the men. “What will you do to me?” Carlos asked in broken Tagalog. The man replied by ordering him, “Bumalik ka na sa kotse.”

The men then told Mary Ann to go with them so they could get the money from John Ang’s secretary. Mary Ann thus rode with the men in a white vehicle. She decided to go with them alone since her relatives were busy. The vehicle first proceeded to Maysilo, Bulacan and then to Karuhatan, Valenzuela where Mary Ann received $4,000 and P30,000 in cash from John Ang’s secretary. Back in the car with the money, Mary Ann asked the men where her husband was. They told her she would see her husband when she went home before sunset.

Mary Ann then asked to whom should she give the money. They replied, “Of course for us,” and the man to her left immediately grabbed it from her. They kept on uttering words to the effect that “something bad will happen to [her] husband.” They said they planned to bring her husband to the doctor for a check-up so in case the couple filed a complaint, there would be no proof that anything happened to him. The men dropped Mary Ann off along Karuhatan in MacArthur Highway. Mary Ann jotted down the plate number of the men’s white car then went home to Valenzuela.

The men did not return Carlos home despite their assurances. Mary Ann’s father managed to trace the whereabouts of her husband through the vehicle’s plate number. When Mary Ann went to Camp Crame in the afternoon of October 25, 1994 to inquire about her husband, she saw the same white car parked in front of one of the offices. The vehicle bore the same plate number as the one the men brought with them.

The night the men came, Mary Ann learned from Carlos that he left his car in front of the Prudential Bank at the Monumento Circle. Mary Ann was able to retrieve the car, a Toyota, two days after Carlos’ arrest, or on October 26, 1994, at past eight in the morning. When she went to recover the car, a teenaged boy approached her and asked her if she owned the car. “Yes,” she replied.[22]

Norlito Dotimas, 18, and a resident of Bagong Barrio, Caloocan City was the teenaged boy from the parking lot. Presented as a witness for the defense, Norlito testified that since April 1994 he had been earning a living guarding and washing cars parked in the Prudential Bank. The bank is beside the Mercury Drug Store in front of the Monumento in Caloocan. Norlito works in the parking lot from eight in the morning to seven in the evening.

Norlito narrated that at about 5:30 in the afternoon of October 24, 1994, a red car arrived at the Prudential Bank parking lot. Two men, who later turned out to be the accused, alighted from the car. Norlito offered “the tall guy,” referring to accused Carlos Tan Ty, to watch and wash the latter’s car. Carlos agreed and walked on. Norlito stared at the two men as they left, wondering whether they were Chinese or Japanese. Norlito said that the men were not carrying anything with them.

Norlito had just started washing the back of Carlos’ car when he saw that the two men, then about ten (10) meters away, were "pinagkakaguluhan.” The taller man (Carlos) was held by the collar and then pushed into the car. The smaller one (Nelson) was poked with a gun on his right temple, handcuffed and also forced into the car.

At around 8:00 a.m. the next day, October 25, 1994, someone took Carlos’ car from the Prudential Bank parking lot. Norlito was not able to charge for watching and washing that car, however, since he was busy washing another.

Norlito admitted that he was requested by Maryann Ty, whom he first met on December 9, 1994 in the Prudential Bank parking lot, to testify regarding her husband’s disappearance. Norlito agreed to testify, and Mary Ann promised to pay him P200, the equivalent of his daily earnings.[23]

The defense also offered the testimony of Sr. Insp. Franklin Moises Mabanag, who was presented as a hostile witness. Sr. Insp. Mabanag was the chief of the Second Operation Group-Special Operation Unit of the NARCOM when the accused were arrested. He testified to certain aspects of the buy-bust operation that led to the arrest of the accused.

(1) At the time he testified, Sr. Insp. Mabanag had known Stardust for more than two (2) years, having first met her in the place where she worked nightly. He eventually convinced her to work with them, and gave her the code-name “Stardust.” Sr. Insp. Mabanag declined to divulge Stardust’s real name in court “for security reasons.” He revealed, however, that Stardust was neither a drug pusher nor a drug user; she did not have any arrest record. She was usually given cash as “incentive” for the information she provided; Sr. Insp. Mabanag, though, could not remember how much he gave her in this case. He described Stardust’s participation in the operation as “indispensable.”

(2) The first time Sr. Insp. Mabanag first heard about Carlos Tan Ty was when Stardust reported on October 24, 1994 that the accused was actively engaged in the business of selling shabu. They conducted a backgrounder on the accused, and their investigation yielded several persons with the same name as Carlos Tan. They could not verify, however, if any one of these persons was actually the accused Zheng Bai Hui.

(3) The accused were immediately brought to Camp Crame after their arrest. Sr. Insp. Mabanag prepared a spot report, which he submitted to Supt. Charles Galinan, chief of the NARCOM Special Operation Unit. The buy-bust operation was not only reflected in said spot report but also in a pre-operation report prepared by Sr. Insp. Mabanag before the operation, and in a logbook containing the details thereof. Not all the entries in the pre-operation report, such as the denominations of the bills used as boodle money, were entered in the logbook, however. Sr. Insp. Mabanag claimed they did not maintain a police blotter since they were a special operation unit.

(4) Sr. Insp. Mabanag denied that his operatives demanded money from the accused in exchange for the latter’s release.[24]

The defense also presented, as hostile witnesses, SPO3 Gilbert Santos, PO3 Elleonito Apduhan and PNP forensic chemist Leslie Maala, all of whom previously testified for the prosecution.

The testimony of SPO3 Santos yielded the following additional information:(1) The serial numbers and the denominations of the genuine money used in the buy-bust operation were not recorded in their police logbook,

since their Commanding Officer said it was no longer necessary. They did not place any fluorescent powder on the boodle money. (2) He had never met either of the accused before their arrest nor did he have any record or any “A-1 information” regarding them.(3) They did not conduct a “test-buy” or a surveillance of the activities of the accused to determine the veracity of the information Stardust had

provided.(4) They were not armed with a warrant when they effected the arrest of the accused.[25]

PO3 Elleonito Apduhan also testified that he did not know any of the accused before their arrest. He confirmed that no test buy was conducted by their office. He denied having gone to the house of accused Carlos Tan Ty and demanding money from the latter’s wife.[26]

Leslie Maala, for her part, expounded on the examinations she conducted on the subject substance. Quite pertinently, she testified that the tests she performed, namely, the Simons test, the Marquis’ test and the thin layer chromatography, are qualitative, not quantitative tests. They are not designed to determine the purity of the specimen. Ms. Maala admitted she never conducted any quantitative test on the substance since there was no request for such an examination.[27]

The trial concluded, Judge Adoracion Angeles of the Caloocan City Regional Trial Court, Branch 121, rendered a decision convicting both accused thus:

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WHEREFORE, premises considered, the accused ZHENG BAI HUI a.k.a. CARLOS TAN TY and NELSON HONG TY a.k.a. SAO YU are hereby found GUILTY beyond reasonable doubt of the offense of Violation of Section 15, Article III, RA 6425 in relation to Section 21-B of the same Act and each is accordingly sentenced to suffer the penalty of DEATH and to pay a fine of TEN MILLION PESOS (P10,000,000.00). With costs.SO ORDERED.[28]

The case is now before this Court for automatic review.Appellants, in the brief filed by Atty. Nestor Ifurung, contends:I. That the trial court erred in depriving the accused of the prized ideal of ‘the cold neutrality’ of an impartial judge as part of procedural

process. It assumed the role of the prosecutor and judge in the case, and further unduly and arbitrarily curtailed the right of the accused on the cross examination of the witnesses against them.

II. That the trial court erred in giving credence to the so-called “buy-bust” story of the prosecution despite the unmistakable hallmarks of fabrication thereof, and corollarily, in concluding that both accused were caught in flagrante delicto in the act of selling methamphetamine hydrochloride to a police poseur buyer.

III. That the trial court erred in refusing disclosure of the identity of and putting on the witness stand the alleged confidential informant who supposedly arranged the buy-bust that led to the arrest of both accused, and thereby, infringed upon the fundamental right of the accused to confront and cross-examine a material witness against them.

IV. That the trial court erred in convicting both accused on the basis of the evidence of the prosecution showing they were the victims of police instigation, which entitles them to acquittal.

V. That the trial court erred in imposing upon the accused the capital penalty of death despite the absence of expert evidence on the percentage of the pure quantity of the alleged shabu sued upon called for in Resolution No. 3, dated March 8, 1979 of the Dangerous Drugs Board, and of Sec. 16, Art. III, of RA 6425.[29]

Appellant Nelson Hong Ty, in whose behalf Atty. Leven Puno filed another brief, assigns similar errors on the part of the trial court:I THE TRIAL COURT COMMITTED A GRAVE ERROR WHEN IT KNOWINGLY DEPRIVED THE ACCUSED OF THE “COLD NEUTRALITY” OF AN

IMPARTIAL JUDGE AS A PART OF THEIR RIGHT TO PROCEDURAL PROCESS.II THE TRIAL COURT COMMITTED A GRAVE ERROR IN GIVING FULL FAITH AND CREDIT TO THE “BUY-BUST” STORY OF THE POLICE OFFICERS.III THE TRIAL COURT COMMITTED A GRAVE ERROR IN FINDING AND CONCLUDING THAT BOTH ACCUSED WERE CAUGHT

IN FLAGRANTE DELICTO IN THE ACT OF SELLING METHAMPHETAMINE HYDROCHLORIDE TO A POSEUR BUYER.IV THE TRIAL COURT COMMITTED A GRAVE ERROR IN REFUSING DISCLOSURE OF THE IDENTITY AND REFUSING TO PUT ON THE WITNESS

STAND THE ALLEGED CONFIDENTIAL INFORMANT WHO ALLEGEDLY ARRANGED THE BUY-BUST DRAMA THAT LED TO THE ARREST OF BOTH ACCUSED. THERE WAS DENIAL BY THE TRIAL COURT THE RIGHT OF THE ACCUSED TO CONFRONT AND CROSS-EXAMINE A WITNESS AGAINST THEM.

V THE TRIAL COURT COMMITTED A GRAVE ERROR IN CONVICTING BOTH ACCUSED AND SENTENCING THEM TO THE CAPITAL PUNISHMENT OF DEATH DESPITE THE FACT THAT THEIR GUILT HAS NOT BEEN PROVED BEYOND REASONABLE DOUBT. UNDER THE LAW THEY ARE ENTITLED TO AN ACQUITTAL ON THE GROUND OF REASONABLE DOUBT.[30]

In his supplemental brief, appellant Nelson Hong Ty adds that:1. THE TRIAL COURT COMMITED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RENDERING THE

ASSAILED DECISION BASED PARTLY ON THE TESTIMONY OF A WITNESS WHO THROUGH INADVERTENCE WAS NOT SWORN, BEFORE TESTIFYING FOR THE PROSECUTION.

2. THE COURT ERRED IN CONVICTING THE ACCUSED BEYOND REASONABLE DOUBT.[31]

The arguments raised by appellants may be reduced to the following issues:(1) Whether the failure of a prosecution witness to take his oath invalidates the proceedings before the trial court.(2) Whether appellants were denied their right to an impartial and disinterested tribunal.(3) Whether the refusal of the trial judge to allow disclosure of the identity of the informer deprived appellants of their right to confront and

cross-examine said witness.(4) Whether the prosecution proved appellants’ guilt beyond reasonable doubt.(5) Whether the death penalty should be imposed upon appellants.

IAppellant Nelson Hong Ty argues that the failure of SPO1 Jerico Bacani to take an oath before he testified deprived the accused of their right to due

process. It is contended that they are entitled to a new trial.That SPO1 Bacani, a witness for the prosecution, did not take an oath before his testimony is undisputed. The omission appears to have been

brought about by circumstances starting from the hearing of November 14, 1994. SPO3 Gilbert Santos was testifying on cross-examination when Atty. Leven Puno, counsel for the defense, moved for a continuance. [32] The trial court granted counsel’s motion.[33]At the start of the next hearing, on November 17, 1994, the prosecutor called on SPO1 Jerico Bacani as a witness [34]notwithstanding SPO3 Santos’ unfinished testimony. Atty. Puno objected and reminded the court that he was still cross-examining SPO3 Santos.[35] In response, the prosecutor informed the court that SPO3 Santos was not present in the courtroom[36]despite notice.[37] After some discussion between the court and counsel for the respective parties, [38] Atty. Puno acceded to continue the cross-examination of SPO3 Santos at a subsequent date.[39] The court even dictated an order to that effect. [40] The prosecutor then offered the testimony of SPO1 Bacani,[41] and conducted the direct examination, without the witness having first taken an oath. Neither did SPO1 Bacani take an oath at the continuation of his testimony on November 23, 1994.

The failure of a witness to take an oath prior to his testimony is a defect that may be waived by the parties. [42] Appellant Nelson Hong Ty concedes to this rule.[43] He asserts, however, that he did not waive his right to object to the lack of oath, since the inadvertence was discovered only after the judgment of conviction by the trial court when counsel was preparing the brief for automatic review by this Court. As authority for this argument, appellant cites Langford v. United States,[44] where the Court of Appeals of the Indian Territory declared that:x x x it would seem that knowledge or want of knowledge [of the lack of oath] is the true test in this class of cases. In a note to section 264b of Wigmore’s Edtion (16th) of Greenleaf on Evidence the following appears: “Whether he may [have a new trial] if a witness on the other side, testified without having been sworn at all quære? If the omission of the oath was known at the time, it seems he cannot; but, if it was not discovered until after trial, he may.” Mr.

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Thompson, in his work on Trials (volume 1, § 365) says: “It is the duty of the party calling the witness to see that he is sworn, though, if the oath is inadvertently omitted, the objection will not be good after verdict;” but at once adds, “The objection must be made as soon as it is discovered, or it will be deemed waived.” x x x.

Langford makes reference to the following excerpt in Hawks v. Baker,[45] also cited by appellant:It is the duty of the counsel offering a witness to move that he may be sworn, and thus be qualified to testify. * * * Thus far the counsel for the opposite party has no concern with the transaction. He has a right to presume that the person taking the stand in the character of a witness has been duly sworn. Of course, his omission to inquire and ascertain the fact cannot be considered as any waiver of his right to object to the incorrectness of the proceeding if the person supposed to be sworn was in fact never sworn. No man can be considered waiving a right which he is unconscious of possessing. * * * The defendant has not had a trial of his cause on legal evidence, but partly on that which is illegal.

Langford states that “knowledge or want of knowledge is the true test” in determining whether there was a waiver of the lack of oath. We find, however, that this test would open the door to fraud since any party can claim want of knowledge of the defect before verdict is rendered. Such a claim would be exceedingly difficult to verify. We believe that the better test would be not whether a party hadknowledge of the lack of oath but whether he had the opportunity to know of the lack of oath. If a party ought to have known of the lack of oath but did not object thereto, he cannot later be heard raising such an objection. Thus, in State v. Embrey,[46] the Supreme Court of New Mexico held:The testimony or declarations of any unsworn person, given or made in the presence of the trial judge and of the parties and their attorneys, under such circumstances that they knew or should have knownwhat the unsworn individual was doing and saying, may be considered by the jury as that of any sworn witness. Where no objection is promptly made to such a proceeding, it is too late to urge the objection on motion for new trial. (Italics supplied.)

In the case at bar, defendant and his counsel were present at the hearing of November 17, 1994 when SPO1 Bacani was presented as a witness. They did not, however, object to the lack of oath. Nor did they pose any objection when SPO1 Bacani continued his testimony on November 23, 1994; Atty. Puno even cross-examined the witness. In State v. Doud,[47] the Supreme Court of Oregon had occasion to rule that:If the defendant had wished that the x x x witness should have been sworn, he should have been observant and should have mentioned the matter in the trial court. We are certain that had the matter then been mentioned an appropriate oath would have been administered. In all likelihood, it would have produced no different effect, for all thought that an oath had been administered. It is now too late to present the objection. This assignment of error is dismissed as lacking in merit.

So we hold in this case.In any event, the granting of a new trial because of said omission would be pointless because even if testimony of SPO1 Bacani were excluded, it

would not materially affect the totality of the evidence for the prosecution. His testimony is merely corroborative of those of SPO3 Gilbert Santos, PO2 Elleonito Apduhan and PO3 Noel Castañeto and could therefore be dispensed with, without affecting the prosecution’s case or prejudicing that of the defense.

IIAppellants also contend that they were deprived of their right to the cold neutrality of an impartial judge, and attempt to establish a pattern of

partiality on the part of RTC Judge Adoracion Angeles.First, they assert that the judge “actively assumed the role of the prosecutor” [48] in the examination of Norlito Dotimas. Norlito, the “watch-your-car

boy,” testified that appellants did not arrive in a taxi but in a car driven by appellant Carlos Tan Ty. In resolving this argument, it would be helpful to examine the entire transcript of Norlito’s cross-examination and the circumstances surrounding the questioning appellants find so objectionable.

The prosecutor began the cross-examination by asking the witness who requested him to testify. Norlito answered that it was Mary Ann Ty, the wife of appellant Carlos Ty. Asked when he was requested to testify, Norlito replied he could not remember. The prosecutor continued:

Q But you are sure that when you came to this Court this morning, she accompanied you, is that correct?A Yes, sir.Q And you neither received a subpoena coming from the Court to testify today, is that correct?A None, sir.Q And where did she pick you up before you came to this Court?A From Arte Subdivision, sir.Q Where is that Arte Subdivision?A In BBB, sir.COURT:Q Valenzuela?A Yes, your Honor.[49]

A couple more questions were asked by the prosecutor when the judge interrupted him. Apparently, the judge wanted to clarify where Mary Ann picked up Norlito because when he recited his personal circumstances, he said that he resided in Bagong Barrio, Caloocan. The clarification led to several more questions involving when and where Norlito and Mary Ann agreed to meet in Arte Subdivision. Thereafter, she ordered the prosecutor to continue with the cross-examination.

Before the prosecutor could continue, however, the judge again asked a series of questions, all pertaining to when Norlito and Mary Ann first met. These questions, the defense claims, were aimed “to discredit”[50] the witness:

FISCAL MANANQUIL:Q After the incident, Mr. Witness, you did not even…(interrupted).COURT: (Butts in for clarificatory questions…)Q What was the date on Friday?A December 9, 1994, your Honor.Q In other words, is it your testimony now that it was only on December 9, 1994 that you came to know that you will become a witness in this case?A I was told by a woman by the name of Mary Ann, your Honor.COURT:Q Going back to the question of the Court. Is it your testimony now that it was only on Friday afternoon of December 9, 1994 that you came to

know that you will be a witness in this case?

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A Yes, your Honor.COURT:Q Tell to the Court how did Mary Ann Ty came to know your residence?A I accompanied her in our house, your Honor.COURT:Q So, prior to December 9, 1994, Mary Ann Ty had already talked with your relative to this case?A No, your Honor.COURT:Q When did you accompany Mary Ann Ty to your house then?A When I was washing cars, your Honor.COURT:Q When was that?A I cannot remember, sir/your Honor.COURT:Q How many days prior to December 9, 1994?A I cannot remember, sir/your Honor.COURT:Q Could it be two (2) weeks or two (2) days prior to December 9, 1994?A I cannot remember, your Honor. Continue fiscal.[51]

After several questions by the prosecutor, the judge made this telling observation:Make it on record that the Court has observed that from the very start of the testimony of the witness, he was looking in only one direction, outside. He never look to the persons profounding [sic] the questions, whether the Court, Whether to the prosecutor, or to the interpreter or even to the counsel for the accused.[52]

Another question was then posed by the prosecutor. The witness answered, but the judge promptly noted—Likewise, make it on record that after the Court has observed, that he started to look at the persons profounding [sic] the questions. [53]

The prosecutor continued with the cross-examination, delving on the scene before and during appellants’ arrest. This was followed by another series of questions from the judge which, according to appellants, “make it appear that [the witness] gave testimony for the defense because he was bribed”[54] by Mary Ann Ty.

COURT:Q Tell to the Court how many cars did you wash and watched on that particular day when the two accused were allegedly arrested?A Four (4) cars, your Honor.COURT:Q Is it your testimony now that you watched only four (4) cars from morning up to the evening?A Yes, your Honor.COURT:Q What are the colors of the car of the three other cars which you washed and watched on that day, together with the car owned by the accused

driven by Carlos Ty?A White, light green and blue, your Honor.COURT:Q Do you also know the owners?A No, your Honor.FISCAL MANANQUIL:Q You said that you cannot remember the time….(interrupted)COURT: (Clarificatory questions …)Q By the way, how much were you paid for the car which you washed and watched?A It depends upon the amount given by the customer.COURT:Q On that day, how much was given to you by the owners of the cars you washed, the four (4) cars.A P20.00COURT:Q For four (4) cars?A Only one, per car, your Honor.COURT:Q P20.00 for each car?A Yes, your Honor.COURT:Q Is it your testimony now that you are paid for P20.00 for each car you washed?A Yes, your Honor.COURT:Q In other words, you received P80.00 on that particular day?A Yes, your Honor.COURT:

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Q So today you will earn anything?A None, your Honor.COURT:Q Did she (referring to Mary Ann Ty) promise you to give something?A No, your Honor.COURT:Q Is it your testimony now that you come to the Court without receiving a subpoena and yet you abandon your work as a car-wash boy and you will

not receive any single cent?A There was, your Honor.COURT:Q How much were you paid today?A None, yet, your Honor.COURT:Q How much did she promise to give you?ATTY. PUNO: May I request your Honor to specify the person, he might not know ….COURT:Q According to him, it was Mary Ann Ty, who fetched you at Arte Subdivision. Is it your testimony now that it was Mary Ann Ty who brought you to

this Court now?A Yes, your Honor.COURT:Q You testified a while ago that .......Was she the one who promised to give you?A Yes, your Honor.COURT:Q How much? How much did Mary Ann Ty promise to give you today?A The amount I will earn for this day, your Honor.COURT:Q How much?ATTY. PUNO:“Kikitain”.. His earning this day, your Honor is what he said.COURT:Q Precisely, how much?A I cannot estimate, your Honor.FISCAL MANANQUIL:Q More or less?A P200.00, sir.[55]

The judge then returned to the subject of Mary Ann and Norlito’s initial meeting.COURT: (clarificatory questions from the Court).Q You testified that you met Mary Ann Ty in the parking lot on December 9, 1994, was it right?A Yes, your Honor.COURT:Q And also, on that day, that you agreed with Mary Ann Ty that she will fetch you at the Arte Subdivision at BBB, Valenzuela, Metro Manila?A Yes, your Honor.COURT:Q Tell to this Court why do you still accompany her to your house and show your house to her at Bagong Barrio, Caloocan City on December 9, 1994?A So, that, I can relate to her the incident, your Honor.COURT:Q Why? Could you tell to the Court today? You cannot tell to her the place where you were working, and that you still have to accompany her to

your house?A No, sir.COURT:Continue, Fiscal.[56]

The cross-examination by the prosecutor proceeded until the judge again propounded questions, picking up where she left off. The defense construes this line of questioning as “badgering”[57] on the part of the judge:

COURT:Q Why did you abandon your work on December 9, 1994 and you accompanied Mary Ann Ty to your house and showed to her your house?A I left my work, because I narrated to her the incident, your Honor.COURT:Q Did she give you something on that day on December 9?A No, your Honor.COURT:Q Are you sure?A Yes, your Honor.COURT:

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Q What time did you leave at the parking area?A In the afternoon, sir/your Honor.COURT:Q About what time?A 4:00 o’clock in the afternoon, your Honor.COURT:Q What time do you usually leave the parking area, your regular time for leaving?A 6:00 o’clock in the evening, your Honor.COURT:Q So, in other words, you did not earn for two (2) hours anymore?A Yes, your Honor.COURT:Q And yet, you claimed that you were not paid by Mary Ann Ty?A Yes, your Honor.COURT: Anymore, Fiscal?[58]

The cross-examination ended with a question from the prosecutor. The judge also propounded a few more questions again relating to the alleged meeting between Norlito and Maryann.

Thereafter, Atty. Puno proceeded with the witness’ re-direct examination. After several questions by Atty. Puno pertaining to the conversation Norlito had with Mary Ann at the witness’ house, the judge interjected with her own questions on the subject. At this point, Atty. Puno tried to protest since the witness was “getting confused.” The judge, according to appellants, only “exhibited greater vehemence and further tried to push him to the wall,”[59] thus:

ATTY. PUNO:Q In fairness to the witness, he is getting confused, your Honor.COURT: The question is one by one. I am trying to find out the truthfullness of his testimony, counselCOURT:Q Is that what happened? She just glanced at you? Who started introducing one’s self, yourself or herself?A The person by the name of Mary Ann Ty, your Honor.COURT:Q Who described each of you? Was she or were you the one?A She told me and I volunteered – “lakas-loob”. She told me to testify in this case, your Honor.COURT:Q And you agreed?A And I readily agreed, your Honor.COURT:Q Where did it happen when she said you will testify and you agreed?A In our house, sir/your Honor.COURT:Q In the parking lot … Did she tell you in the parking lot?A No, your Honor.COURT:Q How did you bring her to your house?A She went with me, because I told her to go with me, your Honor.COURT:Q The first time that you and Mary Ann met each other at the parking lot, where you were working as a car-wash boy, what transpired between you

and Mary Ann Ty in the afternoon of October 24, 1994?A I was the person whom she asked or inquired to, your Honor.[60]

It is also claimed that the judge then “exploit[ed] the confusion of the witness” by “a maze of baffling trivials [sic]”:[61]

COURT:Q So, at the parking lot, she already asked you to testify in this case. A Not yet, your Honor..COURT:Q What REALLY transpired between you and Mary Ann at the parking lot?A She asked me, your Honor.COURT:Q Is it your testimony that she immediately approached you at the parking lot?A She asked me, your Honor.COURTQ In other words, she approached you at the parking lot?A Yes, your Honor.COURT:Q What then were you doing at that time?A I was washing car, your Honor.

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COURT:Q How did she introduced herself?A She introduced herself to me, your Honor.COURT:Q How did she introduced herself to you?A She told me that she is the wife of Carlos Ty.COURT:Q What did you talked about at the parking lot before you accompanied her to your house?A No more, your Honor.COURT:Q Tell to the Court what precipitated you to accompany her to your house?A So that she will know my house, your Honor.COURT:Q Why do you want her to know your house?A So that we can talk, your Honor.COURT:Q Why, when you can already talk at the parking lot?A Because I was busy then, your Honor.COURT:Q The more you will lose your job, if you go home?A I was busy and I accompanied her to our place, your Honor.COURT:Q Why did she want to go to your house, if you know?A So that I can narrate to her the whole incident, your Honor.COURT:Q Why? What did you tell her exactly before going to your house?A About the whole incident, your Honor.COURT:Q In other words, you already narrated to her everything before you went to your house?A No, your Honor.COURT:Q What did you tell her exactly?A She introduced herself to me, your Honor.COURT:Q Did you volunteer to accompany her to your house or she volunteered to you to go to your house? What is which?A She was the one who volunteered, your Honor.COURT:Q So, it was not true that she went there in order that you can tell her the whole incident, because she was the one who volunteered herself to go to

your house?A She volunteered to go with me to our house, so that we can talk, your Honor.COURT:Q For how long did you talk with each other at the parking lot?A Only few seconds, your Honor.[62]

Atty. Puno manifested that the judge herself was actually conducting the cross-examination, and a spirited discussion between counsel and the judge ensued:

ATTY. PUNO: I do not know how to tell this to the Court, Your Honor, but I will not be true to my duty to my client if I will not express this to the Court—that the

Presiding Judge actually was doing the cross-examination.COURT: No, counsel, that’s for clarification of the Court. I would like to find out also some matters.ATTY. PUNO: This is very honest, that is no longer clarificatory questions, but that is actually cross-examination for the prosecution… I am very sorry to say this,

Your Honor. I am telling this with all honesty and I felt your Honor, I will not be true to my duty to my client if I will not express this. And I want that to be placed/put on record …

COURT: Those questions were asked by the Presiding Judge for clarification… for clarificatory questions, because there are matters which are very vague to

the Court.ATTY. PUNO: That is my manifestation, your Honor.COURT: And that is also the observation of the Court on the matter.ATTY. PUNO: Do not know if this will be all that … (interrupted).FISCAL MANANQUIL:

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Besides, it was the witness himself who testified that she was requested by Mary Ann Ty to testify, that’s precisely why we are going deeper … (interrupted)

COURT: No. The observation is not only in the particular point. The prosecution and the defense is entitled to their own observation in the same way that

the Court is entitled to its own observation. Because, the trial court has to observe the demeanor of the witness while testifying. As a matter of fact, even on appeal, the findings of the trial court with respect to findings of fact will be given much weight, because we, Judges in the trial court has the capacity to observe the demeanor of the parties to witnesses being presented in Court. Therefore, I have to make it on record the demeanor of the witness or the witnesses, so that, when I make the proper evaluation and assessment by the time a decision will be rendered in this case, everything will have to appear on record, for the guidance of the Court. It is the prerogative of the Presiding Judge to ask clarificatory questions on matters which are still very vague to Him or to Her, in order that He or She will not be misguided in the proper evaluation and assessment of the facts of the case….. That’s it…

ATTY. PUNO: Your Honor, please, I agree that clarificatory questions were to be asked by the Presiding Judge, as the latter is entitled to it. The only thing, if

your Honor please, is that, this witness is not an intelligent witness and because of this cross-examination conducted by the Presiding Judge of this Court---and I am very sorry to say this---. May I place it on record that this witness actually got confused

COURT: That is your assessment, simply because the Court was able to find out, in the conduct of its clarificatory questions, some matters which were not

taken up by the Prosecuting Fiscal, like for example, the testimony of the witness that she was paid by such Mary Ann Ty, and probably that’s the reason why you did not like the Court to ask that question. That’s your observation and this is the observation of the Court.

ATTY. PUNO: May I take exception to the observation of the Court with regards to payment ….. I believe your Honor, that he was paid for the amount of his

“gana” …..COURT: Everything were placed on records. Never mind, you and I cannot change the testimony of the witness at this point in time. So, let us not make

any alteration in the testimony of this witness. At this point in time, the Court is not yet in a position to evaluate the evidence, as the Court is still in the process of receiving the evidence for the defense. But, the Court should not be divested of its prerogative to conduct clarificatory questions on the matter which are still very vague ….

ATTY. PUNO: This is my manifestation, your Honor.COURT: Everything is on record.COURT: After all, it is the duty of the member of the Bench to always aid the Court in the proper administration of Justice, so that the Court should not be

divested of its right to conduct clarificatory questions. And, neither the lawyer should be a bar if the Court asks clarificatory questions on matters which are vague, so much so, that the Court is not interested in this case. If at all, the Court asks clarificatory questions, it is for the purpose of finding out the truth and for the purpose of aiding the Court in the proper evaluation and assessment of facts and evidence on records, in order, further, that the law may be acquired properly.[63]

On that note, the hearing of December 12, 1994 ended.A week later, the accused filed a “Motion to Inhibit/Disqualify Presiding Judge,”[64] contending that the judge exhibited bias against the accused in

her questioning. The judge denied the motion in an Order [65] ated December 20, 1994, prompting the accused to file a petition for certiorari [66]before the Court of Appeals. The Court of Appeals initially issued a temporary restraining order enjoining Judge Angeles from hearing the case. [67] The appellate court, however, eventually dismissed the petition for lack of merit and lifted the restraining order,[68] thereby allowing trial to continue.

Like the Court of Appeals, we find no prejudice in the judge’s questioning.From the outset, Her Honor had observed that the witness Norlito Dotimas never looked at any of the persons propounding the questions—that is,

until the judge made her observations of record. Understandably, appellants did not care to mention this fact in their pleadings. It is in the context of the judge’s observations, however, that her questioning must be construed.

The averted gaze, in our culture, is a telltale sign of prevarication, and Norlito’s reticent demeanor no doubt raised suspicions in the judge’s mind that his testimony may be a fabrication. The judge also noted in her Order denying the motion to disqualify her that the witness was evasive. [69] Of course, the witness’ behavior could be attributed to shyness, or even nervousness, since the witness was testifying in court for the first time. [70] In any case, it was incumbent upon the trial judge to confirm or dispel her suspicions. It was, after all, her duty to ascertain the credibility of the witness to enable her to arrive at a just verdict. In the fulfillment of this duty, the judge dwelt at length on how Norlito and Mary Ann first met and whether Norlito was paid in exchange for his testimony. It would be to curtail or limit unduly the discretion of a trial judge to impute with a sinister significance such minute and searching queries from the bench,[71] especially in light of the witness’ suspicious behavior.

In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense.[72] The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. [73] Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. [74] In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth.[75] A judge may examine or cross-examine a witness.[76] He may propound clarificatory questions to test the credibility of the witness and to extract the truth. [77] He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. [78] It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party.[79]

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To prop up their theory of bias, the defense claims that the judge in asking questions to prosecution witnesses SPO3 Gilbert Santos, [80] SPO1 Gerico Bacani,[81] SPO3 Noel Castañeto,[82] and Leslie Maala[83] Actually “helped” the prosecution.[84] We do not agree. As we held in People vs. Angcap:[85]

x x x. At the most, there was the effort of the trial judge to arrive at the truth and do justice to the parties. It would be a distorted concept of due process if in pursuance of such a valid objective the trial judge is to be stigmatized as being guilty of an act of unfairness. x x x. “There is nothing on record to show that anyone of the judges of the trial court attempted to help the prosecution. The questions propounded by the judge, subject of appellant’s complaint, appeared to have been intended to elicit the truth from the witnesses. The inquisitiveness complained of by appellant’s counsel did not have the purpose of unduly harming the substantial rights of the accused. It was only to be expected from the judges who, with full consciousness of their responsibilities, could not easily be satisfied with incompleteness and obscurities in the testimonies.” This assignment of error is therefore unfounded.[86]

Next, it is claimed that the judge “prevented the defense from pursuing intensive inquiries of witnesses.” [87] Instances are cited where the judge allegedly “blocked off”[88] questions by defense counsel even when the prosecutor failed to object. Thus, when SPO3 Santos was testifying for the defense as a hostile witness, Atty. Ifurung, the counsel for the defense, asked him:

Q I ask you Mr. Santos, are you a forensic chemist?A No, sir.Q. Have you ever been trained in the detection and identification of drugs?A Yes, sir.Q. You would be able to determine a drug without use of a laboratory examination?A Yes, because that is similar with the one brought to the laboratory, sir.Q Would you be able to differentiate from other crystalline like “tawas” without conducting laboratory examination?A The appearance of tawas is …. (interrupted)COURT: The witness is not testifying as an expert witness…ATTY. IFURUNG: But he effected the arrest, your Honor.COURT: But you are practically asking him of the opinion on shabu…FISCAL CAJIGAL: The witness is incompetent. He is not a chemist who can determine whether the substance was shabu or not …ATTY. IFURUNG: The determination of whether the substance is shabu or not is important for the purpose of effecting the arrest….COURT: While it may be true that the determination of the substance is shabu or not by the witness is …. The witness is not testifying here as an expert

witness and you are asking for an opinion, counsel.ATTY. IFURUNG: May we move for consideration because he said he effected the arrest and the reason is he said he was selling the shabu. And now, I am testing

his credibility.COURT: Motion for reconsideration, DENIED.

x x xQ. Where did you undergo any training in the determination of regulated and prohibited drugs, or did you not?A Camp Crame, Quezon City, sir.Q Will you tell us who was your instructor on that particular training?A Inspector Reyes, sir.Q Will you tell this Honorable Court the full name of Inspector Reyes?A Romeo Reyes, sir.Q Will you tell us the degree of this Inspector Reyes?A Class ’83, sir.Q I am asking for his academic degree.FISCAL CAJIGAL: Incompetent and immaterial…COURT: Sustained.ATTY. IFURUNG: He claims that he is an expert by reason of his training. I am asking him who was his instructor. It is very material, because the witness testified

that he was very sure that what he bought is methamphetamine hydrochloride and I am testing his credibility.COURT: While it may be true that this witness testified that he bought shabu, he is not testifying here as forensic chemist with expertise on chemical

analysis. He is testifying as a poseur buyer and therefore, further questions on the witness would be out of order. Hence, the Court grants the motion of the prosecuting fiscal.

ATTY. IFURUNG:Q I asked you, Mr. Witness, as an agent, how long have been an agent of NARCOM?A Six (6) years, sir.Q Have you written any book on the identification and analysis on drugs?FISCAL CAJIGAL: Objection, your Honor.

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COURT: Sustained.ATTY. IFURUNG: May we ask for reconsideration…COURT: Denied.ATTY. IFURUNG: He has opened the gate on this line of questionings. We wanted to test his credibility .COURT: Third motion for reconsideration, denied.ATTY. IFURUNG: In fairness to the accused. The accused here is charged with capital offense .COURT: The Court is aware of that.ATTY. IFURUNG: We are only asking that we will be allowed to test the credibility of the witness on material points, but not on expertism and special knowledge.COURT: On this particular case, you are asking the witness on particular knowledge or qualification.[89]

The questions by counsel in court regarding the ability of the arresting officer to distinguish between shabu and tawas without a laboratory examination, the academic degree of his training instructor, and the officer’s authorship of books on drug identity and analysis are irrelevant, improper and impertinent. In drug cases, an arrest made in flagrante delicto does not require that the arresting officer possess expert knowledge of the substance seized, or that he perform precise scientific tests to determine its exact nature. That would be impractical, and obstructive to effective law enforcement. The judge was therefore correct in disallowing these questions.

The judge need not have waited for an objection from opposing counsel to bar immaterial questions. A judge has the duty to see to the expeditious administration of justice.[90] If the opposing counsel does not object to such questions, the judge cannot stand idly by and allow the examining counsel to propound endlessly questions that are clearly irrelevant, immaterial, improper or tend to be repetitious. The action by the judge in this case, therefore, cannot be deemed prejudicial; indeed, it is entirely proper. In Ventura et al. vs. Judge Yatco,[91] we said:About the active part that the judge took in the trial, the court finds that said active part was for the purpose of expediting the trial and directing the course thereof in accordance with the issues. While judges should as much as possibly refrain from showing partiality to one party, it does not mean that a trial judge should keep mum throughout the trial and allow parties that they desire, on issues which they think are the important issues, when the former are improper and the latter, immaterial. If trials are to be expedited, judges must take a leading part therein, by directing counsel to submit the evidence on the facts in dispute, by asking clarifying questions and by showing an interest in a fast and fair trial. Judges are not mere referees like those of a boxing bout, only to watch and decide the results of the game; they have as much interest as counsel in the orderly and expeditious presentation of evidence, calling attention of counsel to points at issues that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks by witnesses, etc. Unless they take an active part in trials in the above form and manner, and allow counsel to ask questions, whether pertinent or impertinent, material or immaterial, the speedy administration of justice which is the aim of the Government and of the people cannot be attained. Counsel should, therefore, not resent any interest that the judge takes in the conduct of the trial, they should be glad that a trial judge takes such interest and help in the determination of the truth.

It is also argued that the judge showed her “uneven hand” [92] when she overruled objections interposed by the defense when it was the prosecution’s turn to examine SPO3 Santos. This was supposedly in contrast to the above actuation exhibited by the judge when the defense was examining the same witness.

CROSS-EXAMINATIONFISCAL CAJIGAL:Q Mr. witness, you have a Commanding Officer in your unit?A Yes, sir.Q And you will agree with me that your commanding officer is the one who determines whether the operation is a buy-bust or a raid?A Yes, sir.ATTY. IFURUNG: This was not taken on direct-examination. He said he was the one who arranged with Stardust, so we object with the line of questionings .FISCAL CAJIGAL: I am on cross-examination.COURT: Overruled, witness may answer.A Our commanding Officer, sir.Q In this particular case, you are telling this Honorable Court that it was your Commanding Officer who will determine whether the buy bust

operation shall be conducted against accused Zheng Bai Hui, is it not?A Yes, sir.Q Likewise, Mr. witness, it was your Commanding Officer who determines whether or not the two P500.00 paper bills which were used together

with the boodle money should be placed with flourescent powder or not?ATTY. IFURUNG: I will object, I think the Commanding Officer would be the best witness on this line of questionings.COURT: I would like to be clarified on this. You testified during the direct-examination that you lied to the accused when you said that you are a drug

pusher, who has run out of stock?

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A Yes, your Honor.Q Why do you say so? Why did you lie to the accused and said that you are a drug pusher?ATTY. IFURUNG: With due respect to this Honorable Court, we will object. Because in that case, the Honorable Court would be now assuming . . . (interrupted)COURT: The Court, in the exercise of its duty and in order to find out the truth, can ask clarificatory questions.WITNESS: In order that I could buy from him drugs, your Honor.FISCAL CAJIGAL:

x x x.Q And lastly, why did you effect the arrest of Mr. Tan Ty?A Because of the shabu which he was bringing, sir.Q When was that?A On October 24, 1994 between 6:00 o’clock to 7:00 o’clock in the evening, sir.Q Was that after the fact that after you have handled the boodle money to the accused?ATTY. IFURUNG: THE FACT in the last question, he stated negative to the answer and I closed my examination. . . . It was answered contrary to the answer of the

accused. . . .COURT: Objection, overruled, witness may answer.A Not yet. When he was able to bring it to me and who hand it to me and I opened it, that’s the time I gave the boodle money, your Honor/sir.

x x xRE-CROSS EXAMINATIONFISCAL CAJIGAL:Q Please tell to the Court what were the specific instructions given by your Commanding Officer before you effected the buy-bust operation?ATTY. IFURUNG: We object in the first place, there was no statement by the eye witness as to any instruction given by his Commanding Officer with respect to that

buy-bust operation.COURT: Overruled, witness may answer.A We conducted surveillance on the area where we are going to. And if we were already there, I will approach him and I will pose as a buyer. And if

I can see that there is shabu, then I will arrest him, sir.[93]

We discern no bias in the foregoing proceedings. The questions of the prosecutor were proper, and the objections of defense counsel were correctly overruled.

The prosecutor’s question as to whether the Commanding Officer determines if the operation should be a buy-bust or a raid was objected to for not having been taken up on direct examination. The question, however, was merely preliminary and was posed to lay the foundation for the next question, that is, whether it was the Commanding Officer who determined if fluorescent powder should be placed on the boodle money or not. The latter question, too, was within the bounds of the rules of evidence[94] for defense counsel had previously asked questions whether fluorescent powder was used in the operation.[95] The question was intended to blunt any implication from defense counsel’s questions that SPO3 Santos was somehow responsible for the non-use of fluorescent powder in the buy-bust operation. In response, SPO3 Santos said that the decision to use fluorescent powder rested in the Commanding Officer. Contrary to defense counsel’s objection, SPO3 Santos was equally competent to answer this question. He was a subordinate of the Commanding Officer and a member of that particular command, and therefore knowledgeable of the decision-making policies therein.

The judge’s query as to why SPO3 Santos pretended to be a drug pusher was completely relevant in determining the legality of the entrapment. Moreover, the defense counsel had asked during the direct examination if SPO3 Santos lied when he allegedly told the accused that he was a drug pusher. The judge merely asked why he lied. The question was clearly clarificatory.

Neither do we find anything objectionable to the prosecutor’s question on whether the accused were arrested after SPO3 Santos handed over the money to them. It is not clear from the transcript what exactly was the ground for counsel’s objection.

Lastly, the judge did not err in overruling counsel’s objection to the questions pertaining to the Commanding Officer’s specific instructions to SPO3 Santos for, on re-direct examination, Atty. Ifurung, counsel for the defense, asked:

Q What is the name of your Commanding Officer?A Sr. Ins. Franklin Mabanag, sir.ATTY. IFURUNG:Q So, you just follow instructions from your Commanding Officer?A Yes, sir.Q And you were instructed by your Commanding Officer to effect the arrest of Carlos Tan Ty?A Yes, sir.Q And you were instructed to effect his arrest under any circumstances?A Yes, sir.FISCAL CAJIGAL: Misleading, your Honor.ATTY. IFURUNG: That will be all, your Honor.[96]

Upon the conclusion of the re-direct examination, the adverse party may re-cross-examine the witness on matters stated in his re-direct examination. [97]

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In sum, we find that the judge, in propounding questions to the witnesses, in overruling ungrounded objections and disallowing improper questions by the defense, did not exhibit any bias against the accused. On the contrary, the judge demonstrated nothing more than an unwavering quest for the truth and a rightful intolerance for impertinence, fully cognizant of her duties and of the scope of her discretion.

IIIAppellants contend that the trial court erred in sustaining the refusal by Sr. Insp. Mabanag to divulge the identity of Stardust, the woman who

informed the police about the two accused. It is claimed that such refusal violated the right of the accused to confront and cross-examine said witness.[98]

As a rule, informers are not presented in court because of the need to preserve their cover so they can continue their invaluable service to the police.[99] Equally strong reasons include the maintenance of the informant’s health and safety and the encouragement of others to report wrongdoing to police authorities.[100] The rule against disclosure is not absolute, however. In Roviaro v. United States,[101] the United States Supreme Court declared:What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.

x x xWe believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Before disclosure of the informer’s identity may be allowed, however, the defense must, before or during the trial, request the production of the confidential informant or his identification.[102] (Thus, inRoviaro the accused repeatedly demanded disclosure.) In addition, the defendants must show how the identity of the informer is essential to their defense.[103]

In this case, counsel for appellant Carlos Tan Ty indeed requested the trial court to compel Sr. Insp. Mabanag, who was then testifying on direct examination, to reveal the identity of Stardust:

Q: What is the real name of Stardust?A: For security reason, we cannot give her name, sir.Q: Is it not a fact Mr. Mabanag, that this informant was the one who arrange for the selling of shabu?A: Yes, sir.Q: In other words this Stardust is known to the accused?A: Yes, sir.Q: So there is no reason for you to hide the identity of the informant considering that according to you she is known to the accused?A: Yes, sir.Q: In fact she was the one who allegedly arrange for the buying of the alleged shabu?A: Yes, sir.Q: Will you please give her name?A: For security reason I cannot give her name, because we are putting the very life of the informant to danger, sirAtty. Ifurung: Your Honor please may we request the witness to give the name of the alleged informant since according to him she is known to the accused, so

there is no reason for the witness to keep the identity of the informant, so may we request that the Court directs the witness to divulge the identity of the informant

Court: She might be known but the court will not compel the witness to divulge the identity of the informant for security reason as alleged by the

witness.[104]

Appellants nevertheless failed to show at the time of their request how the identity of the informer or her production was essential to their defense. In State v. Driscoll,[105] the defense, during the cross-examination of the State’s final witness, asked the witness the name of the informant. The prosecution objected to the question for being outside the scope of the direct examination. The court sustained the objection, stating “I will not compel him to answer that question if he desires not to at this time.” The state rested and the defendant presented his evidence without renewing his request for the disclosure of the identity of the informer. The defendant was subsequently convicted for burglary. On appeal, the defendant assigned as error the trial court’s refusal to require disclosure of the identity of the informer. The Supreme Court of Washington held that the trial court did not commit error in ruling thus. It held:In the instant case, the request came from the defendant at the time and in the manner hereinabove set out, and was not in any fashion thereafter renewed. The defendant, at the time of the request, did not advise the trial court of his proposed defense of entrapment nor undertake, in any way, to enlighten the trial court as to the materiality of relevancy of the requested disclosure. The ruling at that particular stage of the proceedings was to the effect that disclosure would not be required at that time. The door was thus open to subsequent showing and request.The Supreme Court of North Carolina in State v. Boles, 246 N.C. 83, 85, 97 S.E. 2nd 476, 477, in considering a like claim of error under analogous circumstances, stated“In passing on defendant’s assignments based on exceptions Nos. 4 and 5, we must do so in the light of the facts before Judge Johnston at the time he made the ruling complained of. At that time there was no conflict in the testimony. Nothing appeared in the evidence concerning the informer except

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the fact that he was present when the witness made the purchase. We hold that the defendant did not make a sufficient showing to require the disclosure. The court’s refusal to order it under the circumstances was not error.

* * * * * *“Had the defendant, in the light of this conflict [a conflict in the evidence developed by defendant’s testimony], requested the name of the confidential informer as a possible defense witness, a more serious question would have been presented. That question, however, was not before Judge Johnston and consequently is not before us. The propriety of disclosing the identity of an informer must depend on the circumstances of the case and at what stage of the proceedings the request is made. Roviaro v. United States, [decided 25 March, 1957, 353 U.S. 53, 1 L.Ed.2d 639] 77 S.Ct. 623.”Under the circumstances of the instant case, we hold the trial court did not commit error in the ruling complained of.

Like in Driscoll, the defense in this case did not renew their request for the production of the informer’s identity. Nor did they advise the trial court of their defense or the relevancy of such disclosure when they demanded the production of Stardust’s identity. When Sr. Insp. Mabanag was put on the stand, there was no hint that the accused was going to raise frame-up, extortion, and instigation as defenses. The accused had not yet testified; neither had appellant Carlos Tan Ty’s wife, Mary Ann. The defense did not raise the question of the informer’s identity again after these witnesses testified.

The burden of showing need for disclosure is upon defendants.[106] The necessity for disclosure depends upon “the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Appellants did not develop any such criteria with reference to the merits of the case.[107] A mere request during a witness’ examination indicates speculation on the relevancy of his testimony; and mere speculation an informer may be helpful is not enough to carry the burden and overcome the public interest in the protection of the informer.[108] Hence, the trial court did not err in sustaining the refusal of the witness to reveal the identity of Stardust.

IVWe come now to the sufficiency of the prosecution evidence.The elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object, and the

consideration; and (2) the delivery of the thing sold and the payment therefor. [109] The Court finds that the testimonies of the prosecution witnesses adequately establish these elements. The Court has no reason to doubt the following assessment of the trial court regarding the credibility of these witnesses:An exhaustive scrutiny of the prosecution’s evidence shows that the accused were caught in flagrante delicto through a buy-bust operation staged b police operatives. Both accused were positively identified by the poseur-buyer himself and by three (3) other members of the buy-bust team. These eye witnesses for the prosecution were also consistent in their testimonies concerning the important details of the sale, to wit: (1) that the informant was at the scene and it was she who identified the two accused, (2) that Gilbert Santos acted as poseur-buyer, (3) that the said poseur-buyer handed the boodle money to accused Carlos Tan Ty and the latter called his co-accused Nelson Hong Ty who handed to the poseur-buyer a blue plastic bag containing the regulated drug, Methamphetamine Hydrochloride or shabu.[110]

Appellate courts accord the highest respect to the assessment of witnesses’ credibility by the trial court, because the latter was in a position to observe their demeanor and deportment on the witness stand.[111]

Appellants however attempt to poke holes in the prosecution’s case. They theorize that the buy-bust operation was merely a contrivance as indicated by the following so-called “unmistakable hallmarks”:

(a) a fictitious informant,(b) no pre-arrest test-buy,(c ) absence of pre-arrest surveillance,(d) use of bogus/boodle money,(e) drug sale in public,(f) no record of operation in the police blotter,(g) money not dusted with fluorescent powder.[112]

We are not swayed by this argument.Appellants claim that the failure of the prosecution to present the informer in court demonstrates that the informer is fictitious and gives rise to the

presumption that her testimony would be adverse if produced.The rule in determining whether the informer should be presented for a successful prosecution in cases involving buy-bust operations is best stated

in People vs. Doria:[113]

Except when the appellant vehemently denies selling prohibited drugs and there are material consistencies in the testimonies of the arresting officers, or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant, or that only the informant as the poseur-buyer who actually witnessed the entire transaction, the testimony of the informant may be dispensed with as it will be merely corroborative of the apprehending officers’ eyewitness testimonies. There is no need to present the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses.None of the above circumstances obtains in this case. While appellants do deny selling shabu, there are no material inconsistencies in the testimonies of the arresting officers. The arresting officers had no motive to testify against appellants; the claims of extortion against the arresting officers, as will be shown later, were not firmly established. Finally, the informer was not even the poseur-buyer in the operation. The sale was actually witnessed and adequately proved by the prosecution witnesses. The presumption laid down in Section 3(e), Rule 131 of the Rules of Court, to wit: “(e) [t]hat evidence willfully suppressed would be adverse if produced,” therefore, does not apply since the testimony of the informer would be merely corroborative. [114]

That no test buy was conducted before the arrest is of no moment for there is no rigid or textbook method of conducting buy-bust operations. For the same reason, the absence of evidence of a prior surveillance does not affect the regularity of a buy-bust operation, [115] especially when, like in this case, the buy-bust team members were accompanied to the scene by their informant. [116] The Court will not pretend to establish on a priori basis what detailed acts police authorities might credibly undertake and carry out in their entrapment operations. [117] The selection of appropriate and effective means of entrapping drug traffickers is best left to the discretion of police authorities.[118]

Appellants describe as implausible the testimony that they supposedly merely “looked” at the boodle money without counting it. We find nothing dubious in appellants’ behavior. Indeed, it is totally consistent with human nature. Appellants were engaged in an illegal activity and it was necessary that

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they act inconspicuously. The sale was consummated in public and appellants would invite unwanted attention if they counted the money right in busy Monumento.

Appellants also fault the police officers for not observing the purported “proper procedure” in the marking and the blotter of the P500 bills used as part of the boodle money. They failed to establish, however, that such a procedure existed. Sr. Insp. Mabanag, on the other hand, testified that they do not even maintain a police blotter[119]since they were a special operation unit.[120]

That the sale was in public does not diminish the prosecution witnesses’ credibility or the trustworthiness of their testimony. In People  vs. Zervoulakos,[121] we observed that “the sale of prohibited drugs to complete strangers, openly and in public places, has become a common occurrence. Indeed, it is sad to note the effrontery and growing casualness of drug pushers in the pursuit of their illicit trade, as if it were a perfectly legitimate operation.”

Appellants submit, however, that this ruling applies only to “small level drug trafficking,” and not to cases involving a substantial amount of drugs, such as the one at bar. The distinction is illusory for it is not improbable for large transactions involving drugs to take place under the cover of commonplaceness. A kilo of shabu can be transported and delivered with facility in public and it does not tax credulity that such transactions indeed occur. While the sale may have been made to a stranger, the lure for easy profits can easily outweigh the risk of arrest and prosecution. Moreover, the risk was reduced by the introduction by the informant, who had regular contact with appellant Carlos Tan Ty,[122] of the poseur-buyer to the latter.

Equally without merit is the argument that the buy-bust was not recorded in the police blotter is proof of a sham buy-bust. A prior blotter report is neither indispensable nor required in buy-bust operations.[123]

Lastly, the failure of the NARCOM agents to use fluorescent powder on the boodle money is no indication that the buy-bust operation did not take place. Like a prior blotter report, the use of fluorescent powder is not indispensable in such operations. The use of initials to mark the money used in the buy-bust operation has been accepted by this Court.[124] The prosecution has the prerogative to choose the manner of marking the money to be used in the buy-bust operation.[125]

Appellants raise the defense of frame-up. Frame-up is the usual defense of those accused in drug related cases,[126] and it is viewed by the Court with disfavor[127] since it is an allegation that can be made with ease.[128] For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner. [129] Appellants have failed to provide clear and convincing evidence that they were framed by the NARCOM agents. Appellants’ testimonies were corroborated merely by Norlito Dotimas and Mary Ann Ty. Norlito Dotimas’ credibility, however, remains doubtful because of his suspicious behavior and evasive answers while on the witness stand. Mary Ann Ty, on the other hand, is the common-law wife of appellant Carlos Tan Ty and the mother of his three children. [130] She has a natural interest in favoring appellants. Pitted against the presumption that government officials have performed their duties in a regular and proper manner, the evidence for the defense simply cannot prevail.

The claim of extortion is similarly untenable. Like an alleged frame-up, a supposed extortion by police officers is a standard defense in drug cases[131]and must also be proven by clear and convincing evidence.[132] Again, appellants have failed to discharge this burden. Such a claim is supported only by the same unreliable evidence to support the claim of frame-up.

Appellants submit in the alternative that the facts as presented by the prosecution reveal that the law enforcers instigated appellants to sell shabu to them. We find no instigation in this case. x x x the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the ‘decoy solicitation’ of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him free from the influence or the instigation of the detective.[133]

Here, the law enforcers received a report from their informant that appellants were “big time” drug pushers. Poseur-buyer SPO3 Santos then pretended to be engaged in the drug trade himself and, with the help of his fellow NARCOM agents, arrested appellants in the act of delivering the shabu. Hence, appellants were merely caught in the act of plying their illegal trade.[134]

Contrary to appellants’ contentions, no tinge of unconstitutionality attended the arrest of appellants. What we said in People  vs.  Liquen[135]is sufficient to dispose of this argument:In the case at bar, the buy-bust operation was formed by the police officers precisely to test the veracity of the tip and in order to apprehend the perpetrator. Having caught the culprit red-handed as a result of the buy-bust operation, Garcia and his team-mates were not only authorized but were also under obligation to apprehend the drug pusher even without a warrant of arrest. Section 5 (a) of Rule 113 of the Revised Rule on Criminal Procedure, reads in part as follows: “Sec.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; x x x.”Clearly, the situation in the case at bar is one where a person commits a crime in the presence of a police officer; hence, the latter may validly arrest the offender even without first obtaining a warrant of arrest.[136]

There can be no doubt, therefore, that appellants are guilty of the sale of methamphetamine hydrochloride, a regulated drug, [137] in violation of Section 15 of the Dangerous Drugs Act,[138] as amended.

Conspiracy between the appellants was evident. The transaction was successfully consummated between the poseur-buyer and appellant Carlos Tan Ty, together with his companion, appellant Nelson Hong Ty, with one receiving the marked money and the other delivering the contraband to the poseur buyer. No other logical conclusion would follow from the duo’s concerted action except that they had a common purpose and community of interest, the accepted indicia that could establish the existence of conspiracy.[139] Conspiracy having been established, the accused are answerable as co-principals regardless of the degree of their participation.[140]

“Conspiracy,”[141] as used herein, refers to the manner of incurring criminal liability, and not a crime in itself. Conspiracy is not punishable except when the law specifically provides a penalty therefor,[142] such as in conspiracies to commit treason,[143] coup d’etat,[144] rebellion,[145] sedition,[146] and the sale of dangerous drugs. The last is punishable under Section 21(b) of the Dangerous Drugs Act.[147]

When the conspiracy relates to a crime actually committed, the conspiracy is absorbed; it does not constitute a separate crime, but is only a manner of incurring criminal liability. The participants to the crime are merely held equally liable since the act of one is the act of all. It was thus error for the trial court to convict appellants for “Section 15, Article III, RA 6425 [punishing the sale of regulated drugs] in relation to Section 21-B [penalizing the conspiracy to sell regulated drugs] of the same Act.”[148] In this case, the crime (the sale of regulated drugs), and not only the conspiracy (to sell the same) was actually

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committed. To hold appellants liable for violation of Section 15 alone, therefore, would be more precise and more in accord with the principles of criminal law.[149]

VWe arrive at the imposition of the proper penalty.Section 15 of the Dangerous Drugs Act, as amended by Republic Act No. 7659 states:

SEC. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of Regulated Drugs.- The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand persos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, dispense, deliver, transport or distribute any regulated drug.Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.

In relation thereto, Section 20 of the same law, as amended, provides:SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or instruments of the Crime.- The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities:1. 40 grams or more of opium;2. 40 grams or more of morphine;3. 200 grams or more of shabu or methylamphetamine hydrochloride;4. 40 grams of more of heroin;5. 750 grams or more of indian hemp or marijuana;6. 50 grams or more of marijuana resin or marijuana resin oil;7. 40 grams of more of cocaine or cocaine hydrochloride; or8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose.Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.

From the foregoing provisions, the penalty for the sale of regulated drugs is based, as a rule, on the quantity thereof. The exception is where the victim is a minor or where the regulated drug involved is the proximate cause of the death of the victim. In such cases, the maximum penalty prescribed in Section 15, i.e., death, shall be imposed, regardless of the quantity of the prohibited drugs involved .[150]Appellants, therefore, cannot be sentenced to suffer the death penalty under this exception, the conditions for its imposition not being present. Their penalty ought to be determined by the quantity of methamphetamine hydrochloride involved in the sale.

To recall, appellants sold the NARCOM operatives a substance weighing 992.3 grams. This amount is more than the minimum of 200 grams required by the law to warrant the imposition of eitherreclusion perpetua or, if there be aggravating circumstances, the death penalty. [151] Appellants however foist the probability that the substance sold could contain additives or adulterants, and not just methamphetamine hydrochloride. Thus, the actual weight of pure shabu could be less than 992.3 grams, thereby possibly reducing the imposable penalty.

The contention has no merit. We rejected a similar argument in People vs. Tang Wai Lan:[152]

Accused-appellant then argues that the tests were not done for the entire amount of drugs allegedly found inside the bags. It is suggested that since the law, Republic Act No. 7659, imposes a penalty dependent on the amount or quantity of drugs seized or take, then laboratory tests should be undertaken for the entire amount or quantity of drugs seized in order to determine the proper penalty to be imposed.The argument is quaint and even borders on being ridiculous. In the present case, even assuming that the confirmatory tests were conducted on samples taken from only one (1) of the plastic packages, accused-appellant’s arguments must still fail.It will be recalled that each of the plastic packages weighed 1.1 kilograms, an amount more than sufficient to justify imposing the penalty under Sec. 14 of Rep. Act. No. 6425 as amended by Rep. Act No. 7659. A sample taken from one (1) of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. Therefore, a positive result for the presence of drugs is indicative that there is 1.1 kilogram of drugs in the plastic package from which the sample was taken. If it is then proved, beyond reasonable doubt, x x x that accused appellant transported into the Philippines the plastic packages from which samples were taken for tests, and found positive as prohibited drugs, then conviction for importing “shabu” is definitely in order. (Italics in the original. Underscoring supplied.)

Thus, if the prosecution proves that the sample is positive for methamphetamine hydrochloride, it can be presumed that the entire substance seized is shabu. The burden of evidence shifts to the accused who must prove otherwise. Appellants in this case have not presented any evidence to overcome the presumption.

The sale of 200 or more grams of methamphetamine hydrochloride, a regulated drug, [153] is punishable by reclusion perpetua to death, and a fine ranging from P500,000 to P10,000,000.00.[154] No aggravating circumstances attended the commission of the crime. Hence, appellants can only be sentenced to reclusion perpetua.

The personal corporal punishment must be complemented by the pecuniary penalty provided therein. With respect to the latter, the courts may determine the amount of the fine within the range provided by law, subject to the rule on increasing or reducing the same by degrees as provided by the Revised Penal Code.[155]

WHEREFORE, the decision of the Regional Trial Court of Caloocan City is hereby AFFIRMED WITH MODIFICATIONS. Appellants Zheng Bai Hui alias Carlos Tan Ty and Sao Yu alias Nelson Hong Ty are found GUILTY beyond reasonable doubt of violating Section 15 of Republic Act No. 6425 and are hereby sentenced to each pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) and to suffer the penalty of RECLUSION PERPETUA.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De 

Leon, Jr., JJ., concur.

71

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No 191726 February 06, 2013THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.NOEL BARTOLOME y BAJO, Accused-Appellant.

D E C I S I O NBERSAMIN, J.:A buy-bust operation has been recognized in this jurisdiction as a legitimate form of entrapment of the culprit. It is distinct from instigation, in that the accused who is otherwise not predisposed to commit the crime is enticed or lured or talked into committing the crime. While entrapment is legal, instigation is not.This final appeal is taken by the accused from the decision promulgated on January 29, 20 I 0,1 whereby the Court of Appeals (CA) affirmed his conviction for illegal sale of methampethamine hydrochloride or shabu in violation of Section 5, Article II of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002) handed down by the Regional Trial Court, Branch 120, in Caloocan City (RTC) through its decision dated July 12, 20062

AntecedentsOn August 13, 2003, the City Prosecutor’s Office of Caloocan City charged the accused with illegally selling methamphetamine hydrochloride or shabu in violation of Section 5, Article II, of Republic Act No. 9165 through the information reading thus:That on or about the 10th day of August 2003 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and feloniously sell and deliver to PO1 Borban Paras, who posed as poseur buyer, one (1) heat sealed transparent plastic sachet containing 0.06 gram of Methylamphetamine Hydrochloride (shabu), knowing the same to be dangerous drug.Contrary to Law.3

After the accused pleaded not guilty, trial ensued.The evidence for the State was as follows.On August 10, 2003, at around 1:00 a.m., an informant went to the Anti-Illegal Drugs Special Operations Unit (ADSOU) in Caloocan City to report the illicit drug dealings of the accused on Reparo Street, Bagong Barrio, Caloocan City. Acting on the report, Police Inspector Cesar Cruz of ADSOU immediately instructed some of his men to conduct a buy-bust operation against the accused. During the pre-operation briefing, the buy-bust team designated PO1 Borban Paras as the poseur-buyer. Paras was given a P100.00 bill that he marked with his initialsBP. It was agreed that the informant would drop a cigarette butt in front of the suspect to identify him to Paras; and that Paras would scratch his head to signal to the buy-bust team that the transaction with the suspect had been consummated. The operation was coordinated with the Philippine Drug Enforcement Agency.Upon arriving at the target area at around 2:00 a.m. of August 10, 2003, the team members positioned themselves in the vicinity of a store. The informant then approached a person who was standing in front of the store and dropped a cigarette butt in front of the person. Paras, then only two meters away from the informant, saw the dropping of the cigarette butt. Paras went towards the suspect and said to him: Pre pa-iskor nga. The suspect responded: Pre, piso na lang tong hawak magkano ba kukunin mo? Paras replied: Ayos na yan, piso lang naman talaga ang kukunin ko, after which he handed the marked ₱100.00 bill to the suspect, who in turn drew out a plastic sachet containing white substances from his pocket and gave the sachet to Paras. With that, Paras scratched his head to signal the consummation of the sale. As the other members of the team were approaching, Paras grabbed the suspect. PO3 Rodrigo Antonio, another member of the team, confiscated the marked ₱100.00 bill from the suspect, who was identified as Noel Bartolome y Bajo. Paras immediately marked the sachet at the crime scene with Bartolome’s initials NBB.4

Insp. Cruz later requested in writing the PNP Crime Laboratory in Caloocan City to conduct a laboratory examination of the contents of the plastic sachet seized from Bartolome.5 PO2 Rolando De Ocampo, another member of the buy-bust team, brought the request and the sachet and its contents to the laboratory. In due course, Forensic Chemical Officer Jesse Abadilla Dela Rosa of the PNP Crime Laboratory confirmed in Physical Science Report No. D-1038-03 that the plastic sachet contained 0.06 gram of methamphetamine hydrocholoride or shabu, a dangerous drug.6

On his part, the accused claimed that the arresting officers had framed him up because they wanted to extort a substantial amount from him in exchange for his release. The version of the accused tended to show the following.On August 9, 2003, at about 12:00 in the afternoon, the accused went to his brother’s house located on Zapote Street, Bagong Barrio, Caloocan City, to take a rest from his work as a construction worker. While he and his brother were watching the television show Eat Bulaga inside the house, two policemen suddenly entered the house. One of the policemen, whom the accused later identified as PO3 Antonio, frisked the accused but spared his brother because the latter was asthmatic. The policemen then brought the accused to the police station and detained him. At the police station, PO3 Antonio inquired from the accused if he was selling shabu, but the accused denied doing so. It was then that PO3 Antonio demanded ₱20,000.00 from the accused in exchange for his freedom. The accused refused to pay because he did not have the money.7

Ruling of the RTCAs stated, the RTC convicted Bartolome of the crime charged,8 to wit:WHEREFORE, premises considered, the Court finds and so holds that accused NOEL BARTOLOME Y BAJO is GUILTY beyond reasonable doubt for violation of Section 5, Article II, Republic Act No. 9165 and imposes upon him the penalty of LIFE IMPRISONMENT and a fine of Five Hundred Thousand Pesos (Php500,000.00).The one (1) piece of heat-sealed transparent plastic sachet containing 0.06 gram of Methylamphetamine Hydrochloride is hereby ordered confiscated in favor of the government to be turned over to the Philippine Drug Enforcement Agency (PDEA) for proper disposition.SO ORDERED.Ruling of the CAOn appeal, the accused assailed his conviction, stating:

I

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ASSUMING THAT THE ACCUSED-APPELLANT PARTICIPATED IN THE SELLING OF ILLEGAL DRUGS, THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM OF THE CRIME CHARGED SINCE HE WAS MERELY INSTIGATED BY THE POLICE INTO DOING IT.

IITHE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE POLICE’S FAILURE TO COMPLY WITH THE PROCEDURE IN THE CUSTODY OF SEIZED PROHIBITED AND REGULATED DRUGS PRESCRIBED UNDER THE IMPLEMENTING RULES AND REGULATION OF REPUBLIC ACT NO. 9165 WHICH CASTS SERIOUS DOUBT ON THE IDENTITY OF THE SEIZED DRUG CONSTITUTING THE CORPUS DELICTI OF THE OFFENSE.

The accused argued that the operation mounted against him was not an entrapment but an instigation, contending that without the proposal and instigation made by poseur buyer Paras no transaction would have transpired between them; that the police team did not show that its members had conducted any prior surveillance of him; and that the Prosecution should have presented the informant as a witness against him.On January 29, 2010, the CA promulgated its assailed decision,9 rejecting the assigned errors of the accused, and affirmed his conviction. It held that the operation against him was not an instigation but an entrapment, considering that the criminal intent to sell dangerous drugs had originated from him, as borne out by the shabubeing inside his pocket prior to the transaction with Paras; that the accused did not show that Paras had any ill motive to falsely testify against him; that the conduct of a prior surveillance and the presentation of the informant as a witness were not necessary to establish the validity of the entrapment; and that the non-compliance by the buy-bust team with the requirements under Section 21 of the Implementing Rules and Regulations for Republic Act No. 9165 (IRR) was not fatal because there was a justifiable ground for it, and because the apprehending team properly preserved the integrity and evidentiary value of the confiscated drugs.Hence, the accused is now before the Court in a final bid for acquittal.

RulingThe appeal lacks merit.To establish the crime of illegal sale of shabu, the Prosecution must prove beyond reasonable doubt (a) the identity of the buyer and the seller, the identity of the object and the consideration of the sale; and (b) the delivery of the thing sold and of the payment for the thing. The commission of the offense of illegal sale of dangerous drugs, like shabu, requires simply the consummation of the selling transaction, which happens at the moment the buyer receives the drug from the seller. In short, what is material is the proof showing that the transaction or sale actually took place, coupled with the presentation in court of the thing sold as evidence of the corpus delicti. If a police officer goes through the operation as a buyer, the crime is consummated when the police officer makes an offer to buy that is accepted by the accused, and there is an ensuing exchange between them involving the delivery of the dangerous drugs to the police officer.10

The concurrence of the foregoing elements was conclusively established herein.To start with, Paras, as the poseur-buyer, testified that the accused sold to him shabu during the buy-bust operation, to wit:Q – So when the informant proceeded to the place of Noel Bartolome, what did the informant do?A – After he threw cigarette in front of Noel Bartolome, I approached him.

x x x xQ – What happened next?A – When I approached the accused, I told him."Pre-paiskor nga" and he said"Pre, piso na lang tong hawak koMagkano ba ang kukunin mo" and he said"ayos nay an, piso lang naman talaga ang kukunin ko."Q – Who handed first you or the accused?A – I was the one who handed the buy bust money.Q – After giving him the P100.00 pesos to Noel Bartolome where did he place it?A – Then after that he placed it on his front pocket and then after that he got one (1) plastic sachet from his left front pocket.Q – And then after giving you the plastic sachet containing illegal drug, what did you do?A – I scratched my head, sir.Q – After scratching your head, what transpired if any?A – When I saw my companions approaching me, I grabbed Noel Bartolome, sir.11

Secondly, the transmission of the plastic sachet and its contents from the time of their seizure until they were delivered to the PNP Crime Laboratory for chemical examination was properly documented, starting with the marking of the plastic sachet at the crime scene by Paras. This was followed by the preparation of the written request by Insp. Cruz at the ADSOU. PO2 De Ocampo then personally brought the plastic sachet and its contents, together with the written request, to the PNP Crime Laboratory, where the delivery of the request and of the sachet and its contents was recorded by SPO1 Bugabuga of that office. In Physical Sciences Report No. D-1038-03, Chemist Dela Rosa of the PNP Crime Laboratory ultimately certified that the contents of the plastic sachet were examined and found to be 0.06 grams of methamphetamine hydrochloride or shabu, a dangerous drug.12

And, thirdly, the Prosecution presented the shabu, the marked P100.00 bill, and Chemist Dela Rosa’s Physical Sciences Report No. D-1038-03 at the trial.13

On the other hand, the accused’s claim of being the victim of a vicious frame-up and extortion is unworthy of serious consideration. The fact that frame-up and extortion could be easily concocted renders such defenses hard to believe. Thus, although drug-related violators have commonly tendered such defenses to fend off or refute valid prosecutions of their drug-related violations, the Court has required that such defenses, to be credited at all, must be established with clear and convincing evidence.14 But the accused did not adduce such evidence here, for all he put up were self-serving denials. Had the version of the Defense been what really transpired, there was no reason for the accused and his brother not to have formally charged the police officers with the severely penalized offense of planting of evidence under Section 2915 of Republic Act No. 9165 and extortion. Thereby, the allegations of frame-up and extortion were rendered implausible.Yet, the accused discredits the validity of his arrest by contending that the arrest resulted from an instigation, not from a legitimate entrapment. He insists that the evidence of the Prosecution did not show him to be then looking for buyers of shabu when Paras and the informant approached him; that it was Paras who proposed to buy shabufrom him; and that consequently Paras instigated him to sell shabu. He submits that the transaction would not have transpired without the proposal and instigation by Paras; that Paras initiated the commission of the crime by offering to him P100.00 for the purchase of the shabu; and that he should be acquitted due to the absolutory cause of instigation.16

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The Court is not persuaded to side with the accused.The trial judge and the CA agreed in their findings on the arrest of the accused being the result of a legitimate entrapment procedure. Such findings were based on the credible testimonies of the poseur buyer and other competent witnesses of the Prosecution. We concur with their findings. Indeed, the trial judge’s assessment of the credibility of the witnesses is entitled to respect. This is because of the trial judge’s unique opportunity to observe the demeanor of the witnesses as they testified before him.17 The rule applies even more if, like here, the trial judge’s assessment was affirmed by the CA upon review.18 This rule should be obeyed here.Moreover, we find no glaring errors or misapprehension of facts committed by the RTC in not according credence to the version of the accused and his brother. In this regard, it is significant that the accused did not ascribe any ill motive to Paras that could have made the officer testify falsely against him. Considering that the records were patently bereft of any indicium of ill motive or of any distorted sense of duty on the part of the apprehending team, particularly Paras as the poseur buyer, full credence was properly accorded to the Prosecution’s evidence incriminating the accused. Without the clear and convincing indication of the lawmen’s ill motive and irregular performance of duty, it is always good law to presume them to have performed their official duties in a regular manner.19 That presumption became conclusive for lack of contravention.To be clear, then, the insistence by the accused that he was entitled to the benefit of an absolutory cause as the result of an instigation is unwarranted.There is a definite distinction between instigation and entrapment. The Court highlighted the distinction in People v. Bayani, 20 viz:Instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him. On the other hand, entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. Thus, in instigation, officers of the law or their agents incite, induce, instigate or lure an accused into committing an offense which he or she would otherwise not commit and has no intention of committing. But in entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused, and law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify his or her conduct. In instigation, where law enforcers act as co-principals, the accused will have to be acquitted. But entrapment cannot bar prosecution and conviction. As has been said, instigation is a "trap for the unwary innocent," while entrapment is a "trap for the unwary criminal."As a general rule, a buy-bust operation, considered as a form of entrapment, is a valid means of arresting violators of Republic Act No. 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.A police officer’s act of soliciting drugs from the accused during a buy-bust operation, or what is known as a "decoy solicitation," is not prohibited by law and does not render invalid the buy-bust operations. The sale of contraband is a kind of offense habitually committed, and the solicitation simply furnishes evidence of the criminal’s course of conduct. In People v. Sta. Maria, the Court clarified that a "decoy solicitation" is not tantamount to inducement or instigation:It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting its commission. Especially is this true in that class of cases where the office is one habitually committed, and the solicitation merely furnishes evidence of a course of conduct.As here, the solicitation of drugs from appellant by the informant utilized by the police merely furnishes evidence of a course of conduct. The police received an intelligence report that appellant has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a drug transaction with appellant. There was no showing that the informant induced the appellant to sell illegal drugs to him.Conversely, the law deplores instigation or inducement, which occurs when the police or its agent devises the idea of committing the crime and lures the accused into executing the offense. Instigation absolves the accused of any guilt, given the spontaneous moral revulsion from using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.People v. Doria enumerated the instances when this Court recognized instigation as a valid defense, and an instance when it was not applicable:In United States v. Phelps, we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to persecute him. Smith, the BIR agent, testified that Phelps’ apprehension came after he overheard Phelps in a saloon say that he like smoking opium on some occasions. Smith’s testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug. The conduct of the BIR agent was condemned as "most reprehensible." In People v. Abella, we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused. In People v. Lua Chu and Uy Se Tieng, [W]e convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hong Kong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders, which is made difficult by the secrecy with which drug-related offenses are conducted and the many devices and subterfuges employed by offenders to avoid detection. On the other hand, the Court has taken judicial notice of the ugly reality that in cases involving illegal drugs, corrupt law enforcers have been known to prey upon weak, hapless and innocent persons. The distinction between entrapment and instigation has proven to be crucial. The balance needs to be struck between the individual rights and the presumption of innocence on one hand, and ensuring the arrest of those engaged in the illegal traffic of narcotics on the other.Applying the foregoing, we declare that the accused was not arrested following an instigation for him to commit the crime. Instead, he was caught in flagrante delicto during an entrapment through buy-bust. In a buy-bust operation, the pusher sells the contraband to another posing as a buyer; once the transaction is consummated, the pusher is validly arrested because he is committing or has just committed a crime in the presence of the buyer. Here, Paras asked the accused if he could buy shabu, and the latter, in turn, quickly transacted with the former, receiving the marked bill from Paras and turning over the sachet of shabu he took from his pocket. The accused was shown to have been ready to sell the shabu without much prodding from Paras. There is no question that the idea to commit the crime originated from the mind of the accused.

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The accused argues that the absence of a prior surveillance cast doubt on the veracity of the buy-bust operation; and that the failure to present the informant as a witness against him, as well as the buy-bust team’s failure to comply with the requirements under Section 21, Article II, of Republic Act No.9165, were fatal to the cause of the Prosecution.21

The argument of the accused lacks merit. We have held that prior surveillance is not necessary to render a buy-bust operation legitimate, especially when the buy-bust team is accompanied to the target area by the informant.22That was what precisely happened here.Similarly, the presentation of an informant as a witness is not regarded as indispensable to the success of a prosecution of a drug-dealing accused. As a rule, the informant is not presented in court for security reasons, in view of the need to protect the informant from the retaliation of the culprit arrested through his efforts. Thereby, the confidentiality of the informant’s identity is protected in deference to his invaluable services to law enforcement.23 Only when the testimony of the informant is considered absolutely essential in obtaining the conviction of the culprit should the need to protect his security be disregarded. Here, however, the informant’s testimony as a witness against the accused would only be corroborative of the sufficient testimony of Paras as the poseur-buyer; hence, such testimony was unnecessary.24

We consider as unwarranted the contention of the accused about the non-compliance by the buy-bust team with the requirements of the law for the proper seizure and custody of dangerous drugs.The requirements are imposed by Section 21, paragraph 1, Article II of Republic Act No. 9165, whose pertinent portion reads as follows:Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

x x x xTo implement the requirements of Republic Act No. 9165, Section 21 (a), Article II of the IRR relevantly states:

x x x x(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

x x x xIt is notable that pursuant to the IRR, supra, the non-observance of the requirements may be excused if there is a justification, provided the integrity of the seized items as evidence is "properly preserved by the apprehending officer/team."Although it appears that the buy-bust team did not literally observe all the requirements, like photographing the confiscated drugs in the presence of the accused, of a representative from the media and from the Department of Justice, and of any elected public official who should be required to sign the copies of the inventory and be given a copy of it, whatever justification the members of the buy-bust team had to render in order to explain their non-observance of all the requirements would remain unrevealed because the accused did not assail such non-compliance during the trial. He raised the matter for the first time only in the CA. As such, the Court cannot now dwell on the matter because to do so would be against the tenets of fair play and equity. That is what the Court said in People v. Sta. Maria, 25 to wit:The law excuses non-compliance under justifiable grounds.1âwphi1 However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers’ alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.We point out that the non-adherence to Section 21, Article II of Republic Act No. 9165 was not a serious flaw that would make the arrest of the accused illegal or that would render the shabu subject of the sale by him inadmissible as evidence against him. What was crucial was the proper preservation of the integrity and the evidentiary value of the seized shabu, inasmuch as that would be significant in the determination of the guilt or innocence of the accused.26

The State showed here that the chain of custody of the shabu was firm and unbroken. The buy-bust team properly preserved the integrity of the shabu as evidence from the time of its seizure to the time of its presentation in court. Immediately upon the arrest of the accused, Paras marked the plastic sachet containing the shabu with the accused’s initials of NBB. Thereafter, Paras brought the sachet and the contents to the ADSOU,27 where his superior officer, Insp. Cruz, prepared and signed the request for the laboratory examination of the contents of the marked sachet.28 P02 De Ocampo handcarried the request and the evidence to the PNP Crime Laboratory.29SPO 1 Bugabuga of that office recorded the delivery of the request and the marked sachet, which were all received by Chemist Dela Rosa.30 In turn, Chemist Dela Rosa examined the contents of the marked sachet, and executed Physical Sciences Report No. D-1 03 8-03 confirming that the marked sachet contained 0.06 gram ofshabu.31 In this regard, the accused did not deny that Paras and Chemist Dela Rosa affirmed the sequence of custody of the shabu during the trial.32

The CA and the RTC correctly imposed life imprisonment and fine of P500,000.00. Section 5, Article II of Republic Act No. 9165 states that the penalty for the illegal sale of dangerous drugs, like shabu, regardless of the quantity and purity, shall be life imprisonment to death and a fine ranging from P500,000.00 to P 10,000,000.00.33

WHEREFORE, we AFFIRM the decision promulgated by the Court of Appeals on January 29, 2010; and ORDER the accused to pay the costs of suit.

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SO ORDERED.LUCAS P. BERSAMINAssociate JusticeWE CONCUR:

MARIA LOURDES P. A. SERENOChief Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

BIENVENIDO L. REYESAssociate Justice

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.MARIA LOURDES P. A. SERENOChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 175832 October 15, 2008PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.SALVADOR SANCHEZ y ESPIRITU, accused-appellant.

D E C I S I O NBRION, J.:This case confronts us once more with the buy-bust of a prohibited drug and the procedural difficulties this type of operation poses for the police as well as for the prosecution.On appeal is the September 11, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01095. The CA affirmed the April 14, 2005 Decision2 of the Regional Trial Court (RTC), Branch 103, Quezon City, that found the accused-appellant Salvador Sanchez y Espiritu (appellant) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002), meriting him the penalty of life imprisonment.

ANTECEDENT FACTSThe prosecution charged the appellant before the RTC with violation of Section 5, Article II of R.A. No. 9165 under an Information that states:x x xThat on or about the 6th day of April 2003 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) grams of white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug.CONTRARY TO LAW.3

The appellant pleaded not guilty to the charge.4 The prosecution presented its lone witness - SPO2 Levi Sevilla (SPO2 Sevilla) - in the trial on the merits that followed. The appellant and his witness, Nida Detera (Nida), took the stand for the defense.The RTC summarized the material points of the testimony of SPO2 Sevilla as follows:x x x while he was on Station 3 duty at Talipapa, Novaliches, Quezon City on April 6, 2003 a confidential informant arrived at around 4:30 noon and reported that there is a person who has been selling shabu. An entrapment team was formed consisting of himself as poseur buyer, SPO1 Brigido An, PO3 Virgilio Bernardo, PO2 Manny Paulilis and PO1 Cecil Collado. A pre-operational report was submitted of the undertaking. At 5:00 p.m., the team was dispatched to the target area – at the far end Lualhati Street, Manotok Subd., Baesa, Quezon City. PO Sevilla put his initial "LS" on the money given to him to be used at the entrapment.5

At the place, which is a squatter's colony located at the edge or side of Lualhati St., PO Sevilla and his informant walked towards the place pointed by the informant and met the drug pusher. The informant introduced PO Sevilla to the pusher. The informant and the pusher talked for a while. Thereafter, PO Sevilla talked to the latter. He told him that he badly needs shabu para pumayat. x x x PO Sevilla then gave the pusher P100.00 (the marked money) and in return the pusher gave him a plastic sachet of shabu.6

After receiving the plastic sachet, PO Sevilla scratched his head as a pre-arranged signal to his colleagues who were deployed nearby. Said other policemen rushed to the crime scene while PO Sevilla grabbed the right hand of the accused and introduced himself as a cop. The accused was frisked and PO Sevilla recovered the P100.00 marked money bill (Exh. G) in the right side pants pocket of the accused who was later brought to Station 3. PO Sevilla identified the transparent plastic sachet on which he placed his initial "LS" and the initial "SS" of the accused (Exh. E).7

On cross examination, PO Sevilla reiterated his testimony adding that whenever he is tasked as a poseur buyer he always gives as reason that he wanted to be thinner and drug pushers never questioned him about that. PO Sevilla, who was wearing a crew cut in court said that when he bought shabu from the accused his hair style was different. It was his first time to entrap at that place as a poseur buyer. Their marked Anfra van was parked along Quirino Highway, Quezon City from where he and the informant walked to Lualhati Street for about 10 minutes as the targetscene was about 100 meters away. He reiterated that their Pre-op Report

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was sent to PDEA and given a control number.8 [Italics and footnotes referring to the pertinent parts of the records supplied]The RTC dispensed with the testimony of Forensic Chemist John Paul Puentespina after the parties stipulated that "the items allegedly confiscated from the accused were submitted to the crime laboratory for examination and the findings were put into writing."9

In the hearing of December 4, 2003, the prosecution offered the following as exhibits:Exhibit "A" - the request for laboratory examination of the specimen confiscated from the appellant;Exhibit "B" - the Initial Laboratory Report prepared by Forensic Chemist Paul Jerome Puentespina;Exhibit "C" - the Confirmatory or Final Chemistry Report No. D-366-03 prepared by Forensic Chemist Paul Jerome Puentespina;Exhibit "D" - sworn Certification to show that the Chemistry Report was subscribed and sworn to before an Administering Officer;Exhibits "E", "E-1" and "E-2" - the specimen taken from the appellant; the initials of Forensic Chemist Puentespina; and the initials of the police officer who arrested the accused and who received the specimen in exchange for the buy bust money, respectively;Exhibit "F" - the brown envelope where the seized evidence was placed after it was examined by Forensic Chemist Puentespina;Exhibits "G" and "G-1" - the buy bust money and the initials written therein of the poseur buyer, respectively;Exhibits "H" and "H-1" - the Joint Affidavit of the entrapment team and the signature therein by SPO2 Sevilla, respectively.The defense objected to Exhibits "E," "E-1," "E-2," "G" and "H," contending that the appellant "had nothing to do with the specimen presented before the court," and that the confiscated specimen resulted from an illegal arrest. On Exhibit "G," the defense argued that no evidence of powder was ever presented by the prosecution witness. The defense likewise objected to the presentation of Exhibit "H" on the ground that its contents were self-serving.The appellant gave a different version of the events in his testimony of January 30, 2005. He narrated that at around 5:25 in the afternoon of April 6, 2003, he was in his house putting his children to sleep when three (3) police officers suddenly barged into his house, searched the premises, frisked him, and forced him to come with them.10 He recognized one of the policemen as "Sir Levi," a former colleague of his uncle, Sonny Catiis, at the police station. The police officers then handcuffed him and asked him to get into a police vehicle. He begged them and shouted, "Sir you already frisked me in the house and you did not find anything, you might just plant evidence in my pocket, please do not do so." The police brought him to Police Station 3, Talipapa, Quezon City, and placed him in a detention cell without an investigation being conducted.11

While inside his cell, the police showed him a plastic sachet and said that it was the shabu taken from him. SPO2 Sevilla asked him to call his uncle, but he refused to do so; he feared that his uncle would think that the confiscated shabu was really taken from him.12

Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:00-3:00 in the afternoon of April 6, 2003, when she heard loud knocks on the door. The appellant, who was in bed, stood up and opened the door.13 A person entered, pushed the appellant backwards, and handcuffed him. This person then ordered the appellant to sit down so he (the appellant) could be asked questions. A total of four persons, all male, entered the house. Afterwards, the appellant and she were frisked; a lighter was taken from her, but nothing was seized from the appellant.14

The RTC primarily considered the reputation of SPO2 Sevilla in giving weight to his testimony, and held that "PO Sevilla has been a frequent witness in drugs cases and he has already established his credibility before this court." Its decision of April 14, 2005 found the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of R.A. No. 9165. It imposed on him the penalty of life imprisonment and ordered him to pay a fine ofP50,000.00.The appellant appealed to the CA, with the appeal docketed as CA-G.R. CR-H.C. No. 01095. In its decision of September 11, 2006, the CA affirmed the RTC decision.In his brief15 on appeal, the appellant contends that the court a quo gravely erred in finding him guilty beyond reasonable doubt for violation of R.A. No. 9165. He maintains that the court’s order of conviction was merely based on the good reputation SPO2 Sevilla has established with the court based on the many drug cases he had handled. The trial court, too, wrongly interpreted the appellant’s appearance and demeanor because "his head was bowed and his eyes were dreamy and sad."16

The defense harps, too, on the prosecution’s failure to prove that the sachets allegedly recovered from the appellant were the ones submitted to the forensic chemist for examination, as well as its failure to follow the proper chain of custody in handling the seized evidence. It was only the arresting officer who testified that he confiscated the sachet from the accused. The police officer who conducted the subsequent investigation and to whom the confiscated sachet was allegedly turned over was not identified nor presented as witness. Hence the identity of the evidence presented against the appellant is doubtful.17

The prosecution counters with the argument that the trial court’s findings on the credibility of SPO2 Sevilla and the lack of it with respect to the appellant and his witness Nida, should be given great weight and respect, as the trial court had the chance and the prerogative to hear and appreciate these matters at the trial. SPO2 Sevilla described in a clear and unwavering manner how the police team planned for and conducted the buy-bust operation, and how he marked the plastic sachet of shabu he bought from appellant immediately after the latter’s arrest. Even the statement regarding the credibility of SPO2 Sevilla, a frequent witness before the trial court in drug cases, does not mean that the trial court was biased. If at all, it only meant that the trial court had known SPO2 Sevilla and had often observed his demeanor as a witness.The prosecution further argues that the evidence for the defense is incredible and doubtful judging from the testimonies of the appellant and his witness Nida. While the appellant testified that his alleged unlawful arrest transpired at 5:25 p.m. of April 6, 2003, his witness Nida testified with certainty that she witnessed the arrest take place on the same date between 2:00 p.m. and 3:00 p.m. as she saw the time on the wall clock. Moreover, the appellant himself admitted that he had no knowledge of any adverse reason or ill motive that would induce the arresting police officers to falsely implicate him. To the prosecution, this lack of ill motive supports the view that SPO2 Sevilla testified to the truth and his acts should enjoy the presumption of regularity.As to the corpus delicti, the prosecution stresses that it fully proved that the item recovered from the appellant is positive for shabu. The request for laboratory examination of the specimen confiscated from the appellant; the initial laboratory report showing that the item bought and/or seized from appellant is positive for shabu; and the final chemistry report were all formally offered in evidence, without any objection from the appellant. The defense, in fact, agreed to stipulate on the contents and the veracity of the forensic examinations made relative to the item recovered from the appellant. The corpus delicti having been proven and even admitted by the appellant, there was nothing more for the prosecution to establish; it had proven beyond reasonable doubt all the elements of the illegal sale of dangerous drugs, specifically - (a) the identity of the buyer and seller, the object and the consideration; and (b) the delivery of the things sold and the payment therefor.

THE COURT'S RULINGAfter due consideration, we resolve to acquit the appellant for the prosecution’s failure to prove his guilt beyond reasonable doubt.Non-observance of the requirements of Section 21,

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paragraph 1 of Article II of Republic Act No. 9165In considering a criminal case, it is critical to start with the law’s own starting perspective on the status of the accused – in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.18 Thus, while the charge was laid after a preliminary finding that a probable cause existed showing that a crime had been committed and the accused was probably guilty thereof, the criminal trial itself starts with the substantive presumption of the innocence on the part of the accused, rebuttable only by proof of his guilt beyond reasonable doubt. The burden of such proof rests with the prosecution which must rely on the strength of its case rather than on the weakness of the case for the defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional presumption of innocence.19

To prove the legitimacy of the police buy-bust operation, the prosecution presented the following: (a) a pre-operation report bearing Unit Control Number 0504-03-07 signed by the desk officer, police chief and team leader of the station drug enforcement unit, which indicated the type, time and general area of operation, the type of vehicles and firearms to be used, and the respective names of the team leader, poseur-buyer and members of the buy-bust team; (b) a photocopy of the marked money; and (c) the joint affidavit of the entrapment team signed by the poseur-buyer, SPO2 Sevilla, and PO1 Collado. The operation yielded a plastic sachet containing shabu allegedly confiscated from the appellant.A buy-bust operation is a form of entrapment employed by peace officers to apprehend prohibited drug law violators in the act of committing a drug-related offense.20 Because of the built-in danger for abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs, separately from the general law procedures geared to ensure that the rights of people under criminal investigation21 and of the accused facing a criminal charge22 are safeguarded. We expressed this concern in People v. Tan,23 when we recognized that "by the very nature of anti-narcotic operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses."The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states:1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis ours]This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads:(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]The records of the present case are bereft of evidence showing that the buy-bust team followed the outlined procedure despite its mandatory terms, as indicated by the use of "shall" in its directives. The deficiency is patent from the following exchanges at the trial:FISCAL GIBSON ARAULA:Q: Now after you received that shabu or transparent plastic sachet containing shabu and gave the P100.00 bill to the accused, what happened next?SPO2 LEVI SEVILLA:A: After I received [sic] I scratched my head.Q: What is the purpose?A: Pre-arrange[d] signal.Q: After that what happened?A: They swooped down in the scene.Q: What happened after that?A: I grab [sic] his right hand.Q: When you grabbed his right hand what did you tell him?A: I introduced myself as Police Officer.Q: Then after that what happened next?A: I grabbed the accused and informed him of his constitutional right.Q: After informing of his constitutional right what happened Mr. Witness?A: We brought him to our station.Q: How about the transparent plastic sachet, where is it?A: It is in my possession.Q: How about the buy-bust money in the amount of P100.00?A: I recovered it from the right pants pocket.Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station?A: We turn [sic] him over to the Desk Officer.Q: What did you turn over?A: The accused and the evidences, the plastic shabu sir.Q: Before you turn over that plastic sachet Mr. Witness, what did you put there?A: I put my initial and initial of the accused.Q: If that transparent plastic sachet is shown to you, can you identify that Mr. Witness?

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A: Yes, sir.Q: Showing to you this plastic sachet Mr. Witness, what can you say to that transparent plastic sachet?A: This was the one I purchased from the accused because I have here my initial and the initial of the accused, sir.x x x x24 [Emphasis ours]Other than the markings that SPO2 Sevilla alleged, it is clear that no physical inventory and no photograph of the seized items were taken in the presence of the accused or his counsel, a representative from the media and the Department of Justice (DOJ), and an elective official. Based on the above testimony, SPO2 Sevilla - the prosecution’s lone witness - also did not mark the plastic sachet of shabu immediately upon seizure; it was only marked upon arrival at the police station. Thus, other than the stipulation regarding the handling and results of the specimen at the forensic laboratory, SPO2 Sevilla’s testimony and the evidence he identified constitute the totality of the evidence for the prosecution on the handling of the allegedly seized items.We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides that "non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Thus, non-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecution’s case; police procedures in the handling of confiscated evidence may still have some lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.In the present case, the prosecution apparently did not want to accept that the police had committed lapses in the handling of the seized materials and thus did not bother to present any explanation to justify the non-observance of the prescribed procedures. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted as the discussions below will show. The non-observance by the police of the required procedure cannot therefore be excused.The "chain of custody" over the confiscated items was not provenUnder Section 5, Article II25 of R.A. No. 9165, the elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti - the body of the crime whose core is the confiscated illicit drug.26

Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established.27 The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.28 In a long line of cases, we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.29

Black’s Law Dictionary explains chain of custody in this wise:In evidence, the one who offers real evidence, such as narcotics in a trial of drug case, must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence, and such evidence goes to the weight not to admissibility of evidence.Com. V. White, 353 Mass. 409, 232 N.E.2d 335.Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 200230 which implements R.A. No. 9165 defines "chain of custody" as follows:"Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.Although this regulation took effect on October 18, 2002 (or after the commission of the crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows:FISCAL GIBSON ARAULA:Q: After informing [the accused] of his constitutional right what happened Mr. Witness?SPO2 LEVI SEVILLAA: We brought him to our station.Q: How about the transparent plastic sachet, where is it?A: It is in my possession.Q: How about the buy-bust money in the amount of P100.00?A: I recovered it from the right pants pocket.Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station?A: We turn him over to the Desk Officer.Q: What did you turn over?A: The accused and the evidences, the plastic shabu sir.Q: Before you turn over that plastic sachet Mr. Witness, what did you put there?A: I put my initial and initial of the accused.x x x xQ: By the way Mr. Witness after you turned over to the investigator the plastic sachet, did you happen to know where the investigator brought the plastic sachet?A: I gave that plastic sachet first to the table of the Desk Officer and the Desk Officer gave it to the investigator.

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FISCAL GIBSON ARAULA:That would be all for the witness.x x x x31

Significantly, this was the only testimony in the case that touched on the chain of custody of the seized evidence. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the forensic laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2 Sevilla’s testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed – is absent from the evidence adduced during the trial. To repeat an earlier observation, even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies.The recent case of Lopez v. People32 is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence:As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering – without regard to whether the same is advertent or otherwise not – dictates the level of strictness in the application of the chain of custody rule. [Emphasis ours]That the prosecution offered in evidence the request for laboratory examination (Exh. "A"), the initial laboratory report (Exh. "B"), and final Chemistry Report No. D-366-03 (Exh. "C"), to which the defense did not object, has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court was the same as that seized from the appellant. All that these exhibits proved were the existence andauthenticity of the request for laboratory examination and the results of this examination, not the required chain of custody from the time of seizure of the evidence. Evidently, the prosecution has not proven beyond reasonable doubt the indispensable element of corpus delicti of the crime.In People v. Orteza,33 the Court had the occasion to discuss the implications of the failure to comply with Section 21, paragraph 1, to wit:… In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti.The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug.More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied]We reached the same conclusion in People v. Nazareno34 and People v. Santos,35 where we again stressed the importance of complying with the prescribed procedure.Physical inventory and photograph requirement under Section 21vis-a-vis "marking" of seized evidenceWhile the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 states that "the apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same," the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant, thus:(a) x x x Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]Thus, the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation.In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value.

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What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items – to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 2936 and on allegations of robbery or theft.37

For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules,38 the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002,39 but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.ConclusionThe evidentiary gap in identifying the specimen that the forensic laboratory analyzed brings us back to where we started in analyzing the case – to the presumption of innocence that the Constitution accords the appellant. To reiterate, starting from this point, the prosecution must proceed to establish the guilt of the accused by proof beyond reasonable doubt. To do this, the prosecution presented its lone witness, SPO2 Sevilla, whom the lower court believed because the witness had testified before the court before. Thus, rather than look at the merits of his testimony, the lower court simply considered his person and past performance, and decided on this basis that he was a credible witness. This, by itself, is a major error – a violation of due process – on the part of the lower court that the appellate court apparently did not fully appreciate. A court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before the court.The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown.An effect of this lapse, as we held in Lopez v. People,40 is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence.People v. Santos41 instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.42 In People v. Cañete,43 we also said:While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant’s conviction because "First, the presumption is precisely just that – a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.Without the presumption of regularity, the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer, its handling and custody, until its turnover to the forensic laboratory for analysis, stands out in bold relief. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt.From the perspective of the defense, we cannot help but note that the evidence for the defense is far from strong; the appellant merely denied that a buy-bust operation took place and claimed that the evidence against him was a planted evidence. In this jurisdiction, the defense of denial or frame-up, like alibi, has been viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act.44 Likewise, the testimony of the other defense witness, Nida, fails to fully corroborate the appellant's testimony due to inconsistencies in their respective statements. These weaknesses, however, do not add any strength nor can they help the prosecution’s cause. If the prosecution cannot establish, in the first place, the appellant’s guilt beyond reasonable doubt, the need for the defense to adduce evidence in its behalf in fact never arises. Thus, however weak the defense evidence might be, the prosecution’s whole case still falls. To hark back to the well-entrenched dictum in criminal and constitution law: the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. Thus, we return to the conclusion that we should acquit the accused for failure of the prosecution – due the gap-induced weaknesses of its case – to prove the appellant’s guilt beyond reasonable doubt.WHEREFORE, in light of all the foregoing, the September 11, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01095 affirming the judgment of conviction of the Regional Trial Court, Branch 103, Quezon City is hereby REVERSED and SET ASIDE. Appellant Salvador Sanchez y Espiritu is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause.The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.SO ORDERED.

ARTURO D. BRIONAssociate Justice

WE CONCUR:LEONARDO A. QUISUMBING

Associate Justice<brchairperson< p="">

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CONCHITA CARPIO MORALESAssociate Justice

DANTE O. TINGAAssociate Justice

</brchairperson<>PRESBITERO J. VELASCO, JR.

Associate Justice

A T T E S T A T I O NI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBINGAssociate Justice

ChairpersonC E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNOChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 172953 April 30, 2008JUNIE MALILLIN Y. LOPEZ, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O NTINGA, J.:The presumption of regularity in the performance of official functions cannot by its lonesome overcome the constitutional presumption of innocence. Evidence of guilt beyond reasonable doubt and nothing else can eclipse the hypothesis of guiltlessness. And this burden is met not by bestowing distrust on the innocence of the accused but by obliterating all doubts as to his culpability.In this Petition for Review1 under Rule 45 of the Rules of Court, Junie Malillin y Lopez (petitioner) assails the Decision2 of the Court of Appeals dated 27 January 2006 as well as its Resolution3 dated 30 May 2006 denying his motion for reconsideration. The challenged decision has affirmed the Decision4 of the Regional Trial Court (RTC) of Sorsogon City, Branch 525 which found petitioner guilty beyond reasonable doubt of illegal possession of methamphetamine hydrochloride, locally known as shabu, a prohibited drug.The antecedent facts follow.On the strength of a warrant6 of search and seizure issued by the RTC of Sorsogon City, Branch 52, a team of five police officers raided the residence of petitioner in Barangay Tugos, Sorsogon City on 4 February 2003. The team was headed by P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto Esternon (Esternon), SPO1 Pedro Docot, SPO1 Danilo Lasala and SPO2 Romeo Gallinera (Gallinera) as members. The search—conducted in the presence of barangay kagawad Delfin Licup as well as petitioner himself, his wife Sheila and his mother, Norma—allegedly yielded two (2) plastic sachets of shabu and five (5) empty plastic sachets containing residual morsels of the said substance.Accordingly, petitioner was charged with violation of Section 11,7 Article II of Republic Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs Act of 2002, in a criminal information whose inculpatory portion reads:

That on or about the 4th day of February 2003, at about 8:45 in the morning in Barangay Tugos, Sorsogon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously have in his possession, custody and control two (2) plastic sachets of methamphetamine hydrochloride [or] "shabu" with an aggregate weight of 0.0743 gram, and four empty sachets containing "shabu" residue, without having been previously authorized by law to possess the same.CONTRARY TO LAW.8

Petitioner entered a negative plea.9 At the ensuing trial, the prosecution presented Bolanos, Arroyo and Esternon as witnesses.Taking the witness stand, Bolanos, the leader of the raiding team, testified on the circumstances surrounding the search as follows: that he and his men were allowed entry into the house by petitioner after the latter was shown the search warrant; that upon entering the premises, he ordered Esternon and barangay kagawad Licup, whose assistance had previously been requested in executing the warrant, to conduct the search; that the rest of the police team positioned themselves outside the house to make sure that nobody flees; that he was observing the conduct of the search from about a meter away; that the search conducted inside the bedroom of petitioner yielded five empty plastic sachets with suspected shabu residue contained in a denim bag and kept in one of the cabinets, and two plastic sachets containing shabu which fell off from one of the pillows searched by Esternon—a discovery that was made in the presence of petitioner.10 On cross examination, Bolanos admitted that during the search, he was explaining its progress to petitioner's mother, Norma, but that at the same time his eyes were fixed on the search being conducted by Esternon.11

Esternon testified that the denim bag containing the empty plastic sachets was found "behind" the door of the bedroom and not inside the cabinet; that he then found the two filled sachets under a pillow on the bed and forthwith called on Gallinera to have the items recorded and marked.12 On cross, he admitted that it was he alone who conducted the search because Bolanos was standing behind him in the living room portion of the house and that petitioner handed to him the things to be searched, which included the pillow in which the two sachets ofshabu were kept;13 that he brought the seized items to the Balogo Police Station for a "true inventory," then to the trial court14 and thereafter to the laboratory.15

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Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the examination on the seized items, was presented as an expert witness to identify the items submitted to the laboratory. She revealed that the two filled sachets were positive of shabu and that of the five empty sachets, four were positive of containing residue of the same substance.16 She further admitted that all seven sachets were delivered to the laboratory by Esternon in the afternoon of the same day that the warrant was executed except that it was not she but rather a certain Mrs. Ofelia Garcia who received the items from Esternon at the laboratory.17

The evidence for the defense focused on the irregularity of the search and seizure conducted by the police operatives. Petitioner testified that Esternon began the search of the bedroom with Licup and petitioner himself inside. However, it was momentarily interrupted when one of the police officers declared to Bolanos that petitioner's wife, Sheila, was tucking something inside her underwear. Forthwith, a lady officer arrived to conduct the search of Sheila's body inside the same bedroom. At that point, everyone except Esternon was asked to step out of the room. So, it was in his presence that Sheila was searched by the lady officer. Petitioner was then asked by a police officer to buy cigarettes at a nearby store and when he returned from the errand, he was told that nothing was found on Sheila's body.18 Sheila was ordered to transfer to the other bedroom together with her children.19

Petitioner asserted that on his return from the errand, he was summoned by Esternon to the bedroom and once inside, the officer closed the door and asked him to lift the mattress on the bed. And as he was doing as told, Esternon stopped him and ordered him to lift the portion of the headboard. In that instant, Esternon showed him "sachet of shabu" which according to him came from a pillow on the bed.20 Petitioner's account in its entirety was corroborated in its material respects by Norma, barangay kagawad Licup and Sheila in their testimonies. Norma and Sheila positively declared that petitioner was not in the house for the entire duration of the search because at one point he was sent by Esternon to the store to buy cigarettes while Sheila was being searched by the lady officer.21 Licup for his part testified on the circumstances surrounding the discovery of the plastic sachets. He recounted that after the five empty sachets were found, he went out of the bedroom and into the living room and after about three minutes, Esternon, who was left inside the bedroom, exclaimed that he had just found two filled sachets.22

On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty beyond reasonable doubt of the offense charged. Petitioner was condemned to prison for twelve years (12) and one (1) day to twenty (20) years and to pay a fine of P300,000.00.23 The trial court reasoned that the fact that shabu was found in the house of petitioner was prima facie evidence of petitioner's animus possidendi sufficient to convict him of the charge inasmuch as things which a person possesses or over which he exercises acts of ownership are presumptively owned by him. It also noted petitioner's failure to ascribe ill motives to the police officers to fabricate charges against him.24

Aggrieved, petitioner filed a Notice of Appeal.25 In his Appeal Brief26 filed with the Court of Appeals, petitioner called the attention of the court to certain irregularities in the manner by which the search of his house was conducted. For its part, the Office of the Solicitor General (OSG) advanced that on the contrary, the prosecution evidence sufficed for petitioner's conviction and that the defense never advanced any proof to show that the members of the raiding team was improperly motivated to hurl false charges against him and hence the presumption that they had regularly performed their duties should prevail.27

On 27 January 2006, the Court of Appeals rendered the assailed decision affirming the judgment of the trial court but modifying the prison sentence to an indeterminate term of twelve (12) years as minimum to seventeen (17) years as maximum.28 Petitioner moved for reconsideration but the same was denied by the appellate court.29Hence, the instant petition which raises substantially the same issues.In its Comment,30 the OSG bids to establish that the raiding team had regularly performed its duties in the conduct of the search.31 It points to petitioner's incredulous claim that he was framed up by Esternon on the ground that the discovery of the two filled sachets was made in his and Licup's presence. It likewise notes that petitioner's bare denial cannot defeat the positive assertions of the prosecution and that the same does not suffice to overcome theprima facie existence of animus possidendi.This argument, however, hardly holds up to what is revealed by the records.Prefatorily, although the trial court's findings of fact are entitled to great weight and will not be disturbed on appeal, this rule does not apply where facts of weight and substance have been overlooked, misapprehended or misapplied in a case under appeal.32 In the case at bar, several circumstances obtain which, if properly appreciated, would warrant a conclusion different from that arrived at by the trial court and the Court of Appeals.Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction.33 Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt.34 Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.35

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.36 It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.37

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness.38 The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination39 and even substitution and exchange.40 In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering—without regard to whether the same is advertent or otherwise not—dictates the level of strictness in the application of the chain of custody rule.Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives.41 Graham vs. State42 positively acknowledged this danger. In that case where a substance later analyzed as heroin—was handled by two police officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession—was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can

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show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratory's findings is inadmissible.43

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other cases—by accident or otherwise—in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.A mere fleeting glance at the records readily raises significant doubts as to the identity of the sachets of shabuallegedly seized from petitioner. Of the people who came into direct contact with the seized objects, only Esternon and Arroyo testified for the specific purpose of establishing the identity of the evidence. Gallinera, to whom Esternon supposedly handed over the confiscated sachets for recording and marking, as well as Garcia, the person to whom Esternon directly handed over the seized items for chemical analysis at the crime laboratory, were not presented in court to establish the circumstances under which they handled the subject items. Any reasonable mind might then ask the question: Are the sachets of shabu allegedly seized from petitioner the very same objects laboratory tested and offered in court as evidence?The prosecution's evidence is incomplete to provide an affirmative answer. Considering that it was Gallinera who recorded and marked the seized items, his testimony in court is crucial to affirm whether the exhibits were the same items handed over to him by Esternon at the place of seizure and acknowledge the initials marked thereon as his own. The same is true of Garcia who could have, but nevertheless failed, to testify on the circumstances under which she received the items from Esternon, what she did with them during the time they were in her possession until before she delivered the same to Arroyo for analysis.The prosecution was thus unsuccessful in discharging its burden of establishing the identity of the seized items because it failed to offer not only the testimony of Gallinera and Garcia but also any sufficient explanation for such failure. In effect, there is no reasonable guaranty as to the integrity of the exhibits inasmuch as it failed to rule out the possibility of substitution of the exhibits, which cannot but inure to its own detriment. This holds true not only with respect to the two filled sachets but also to the five sachets allegedly containing morsels of shabu.Also, contrary to what has been consistently claimed by the prosecution that the search and seizure was conducted in a regular manner and must be presumed to be so, the records disclose a series of irregularities committed by the police officers from the commencement of the search of petitioner's house until the submission of the seized items to the laboratory for analysis. The Court takes note of the unrebutted testimony of petitioner, corroborated by that of his wife, that prior to the discovery of the two filled sachets petitioner was sent out of his house to buy cigarettes at a nearby store. Equally telling is the testimony of Bolanos that he posted some of the members of the raiding team at the door of petitioner's house in order to forestall the likelihood of petitioner fleeing the scene. By no stretch of logic can it be conclusively explained why petitioner was sent out of his house on an errand when in the first place the police officers were in fact apprehensive that he would flee to evade arrest. This fact assumes prime importance because the two filled sachets were allegedly discovered by Esternon immediately after petitioner returned to his house from the errand, such that he was not able to witness the conduct of the search during the brief but crucial interlude that he was away.It is also strange that, as claimed by Esternon, it was petitioner himself who handed to him the items to be searched including the pillow from which the two filled sachets allegedly fell. Indeed, it is contrary to ordinary human behavior that petitioner would hand over the said pillow to Esternon knowing fully well that illegal drugs are concealed therein. In the same breath, the manner by which the search of Sheila's body was brought up by a member of the raiding team also raises serious doubts as to the necessity thereof. The declaration of one of the police officers that he saw Sheila tuck something in her underwear certainly diverted the attention of the members of petitioner's household away from the search being conducted by Esternon prior to the discovery of the two filled sachets. Lest it be omitted, the Court likewise takes note of Esternon's suspicious presence in the bedroom while Sheila was being searched by a lady officer. The confluence of these circumstances by any objective standard of behavior contradicts the prosecution's claim of regularity in the exercise of duty.Moreover, Section 2144 of the Implementing Rules and Regulations of R.A. No. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. In a language too plain to require a different construction, it mandates that the officer acquiring initial custody of drugs under a search warrant must conduct the photographing and the physical inventory of the item at the place where the warrant has been served. Esternon deviated from this procedure. It was elicited from him that at the close of the search of petitioner's house, he brought the seized items immediately to the police station for the alleged purpose of making a "true inventory" thereof, but there appears to be no reason why a true inventory could not be made in petitioner's house when in fact the apprehending team was able to record and mark the seized items and there and then prepare a seizure receipt therefor. Lest it be forgotten, the raiding team has had enough opportunity to cause the issuance of the warrant which means that it has had as much time to prepare for its implementation. While the final proviso in Section 21 of the rules would appear to excuse non-compliance therewith, the same cannot benefit the prosecution as it failed to offer any acceptable justification for Esternon's course of action.Likewise, Esternon's failure to deliver the seized items to the court demonstrates a departure from the directive in the search warrant that the items seized be immediately delivered to the trial court with a true and verified inventory of the same,45 as required by Rule 126, Section 1246 of the Rules of Court. People v. Go47characterized this requirement as mandatory in order to preclude the substitution of or tampering with said items by interested parties.48 Thus, as a reasonable safeguard, People vs. Del Castillo49 declared that the approval by the court which issued the search warrant is necessary before police officers can retain the property seized and without it, they would have no authority to retain possession thereof and more so to deliver the same to another agency.50 Mere tolerance by the trial court of a contrary practice does not make the practice right because it is violative of the mandatory requirements of the law and it thereby defeats the very purpose for the enactment.51

Given the foregoing deviations of police officer Esternon from the standard and normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, the blind reliance by the trial court and the Court of Appeals on the presumption of regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is merely just that—a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth.52 Suffice it to say that this presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.53 In the present case the lack of conclusive identification of the illegal drugs allegedly seized from petitioner, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt.

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In our constitutional system, basic and elementary is the presupposition that the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown.54 In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January 2006 affirming with modification the judgment of conviction of the Regional Trial Court of Sorsogon City, Branch 52, and its Resolution dated 30 May 2006 denying reconsideration thereof, are REVERSED and SET ASIDE. Petitioner Junie Malillin y Lopez isACQUITTED on reasonable doubt and is accordingly ordered immediately released from custody unless he is being lawfully held for another offense.The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt.SO ORDERED.Quisumbing,Chairperson Carpio-Morales, Velasco, Jr., Brion, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Baguio CityTHIRD DIVISION

G.R. No. 187483 April 14, 2010ARNEL BALARBAR y BIASORA, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

R E S O L U T I O NNACHURA, J.:This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Court of Appeals (CA) Decision1 dated October 28, 2008 and its Resolution2 dated April 2, 2009 in CA-G.R. CR No. 31116. The assailed Decision affirmed the decision of the Regional Trial Court (RTC)3 dated July 11, 2007, convicting petitioner Arnel B. Balarbar of Violation of Article II, Section 11, Republic Act (R.A.) No. 9165; while the assailed Resolution denied petitioner’s motion for reconsideration.The case arose from the following facts:On May 26, 2005, Police Officer (PO)1 Ernesto Aquino, Senior Police Officer (SPO)2 Enrique Columbino, PO2 Jesus Gerald Manaois, and PO2 Roberto de Vera of the Dagupan City Police Station, assigned at the Intelligence and City Anti-Illegal Drug Special Operation Task Force, were ordered to conduct a surveillance at the Muslim Area, Bonuan, Tondaligan, Dagupan City, reputed as a haven of drug pushers and users. When they arrived at the site at around 2:30 p.m., PO2 Manaois and PO2 Aquino saw petitioner coming out from the house of a certain Untah, a well-known drug pusher. PO2 Aquino asked petitioner, "Taga saan ka brod?" but the latter continued to walk and pretended not to hear the question. As the two police officers were following him, petitioner dropped something from his hands, which, after verification, turned out to be a plastic sachet of shabu. PO2 Manaois held petitioner’s hand and asked him if the plastic sachet belonged to him, and he answered in the negative. After informing petitioner of his constitutional rights, the arresting officers brought him to the police station and indorsed him to the police investigator.4

The confiscation receipt was prepared but petitioner refused to sign it. PO2 Manaois and PO2 Aquino marked the confiscated plastic sachet of shabu and submitted the same to the crime laboratory for examination. The examination yielded positive results for shabu.5 Petitioner was thus charged in an Information for Violation of Article II, Section 11, R.A. No. 9165 for having in his possession, custody and control shabu contained in a small heat-sealed plastic sachet weighing more or less 0.10 gram.6 Upon arraignment, petitioner pleaded "not guilty."For his part, petitioner set up the defense of denial and frame-up. He explained that on that fateful afternoon, he was looking for his friends when suddenly, the police officers approached him and pointed at him as the owner of the plastic sachet of shabu that they picked up from the street.7

After trial on the merits, the RTC found petitioner guilty as charged and sentenced him to suffer the penalty of imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine of P300,000.00. Petitioner’s appeal was dismissed by the CA. Hence, the instant petition on the sole issue of:WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT FINDING HEREIN PETITIONER GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.8

Petitioner questions his conviction primarily because the prosecution allegedly failed to establish the identity of the confiscated plastic sachet of shabu.We find no reason to reverse petitioner’s conviction. Hence, we affirm but with modification on the penalty imposed.When this Court is asked to go over the evidence presented by the parties and to analyze, assess and weigh the same to ascertain if the trial court, as affirmed by the appellate court, was correct in according superior credit to this or that piece of evidence and, eventually, to the totality of the evidence of one party or the other, the Court will, ordinarily, demur. When the trial court’s factual findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon the Court.9

We would like to stress that non-compliance with the requirements set forth in R.A. No. 9165 on the custody and disposition of confiscated or seized drugs, under justifiable grounds, shall not render void and invalid the seizures and custody of said items as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers.101avvphi1The records show that the integrity and evidentiary value of the drugs seized from petitioner were properly preserved and safeguarded. In this case, the plastic sachet of shabu was properly marked before a letter-request was prepared for the crime laboratory to conduct the examination. From the time the illegal drug was seized from petitioner until the time the chemical examination was conducted thereon, its integrity was preserved. It was not shown to have been contaminated in any manner. Its identity, quantity and quality remained untarnished, and was sufficiently established.11 Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. Petitioner bears the burden of proving that the evidence was tampered or meddled with to overcome the presumption of regularity in the handling of exhibits by public officers and the presumption that public officers properly discharged their duties.12

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Hence, we agree with the trial court, as affirmed by the CA, that the prosecution’s evidence proved beyond reasonable doubt that petitioner is guilty of Violation of Article II, Section 11 of R.A. No. 9165, having knowingly carried with him the plastic sachet of shabu without legal authority at the time he was caught.13 The Court, however, modifies the penalty imposed. There being no mitigating or aggravating circumstance and in accordance with the Indeterminate Sentence Law, petitioner should be meted the indeterminate penalty of twelve (12) years and one (1) day as minimum to fourteen (14) years and eight (8) months as maximum.14 The Court affirms theP300,000.00 fine imposed by the trial court.WHEREFORE, the Court AFFIRMS the October 28, 2008 Decision and the April 2, 2009 Resolution of the Court of Appeals in CA-G.R. CR No. 31116, with the MODIFICATION that petitioner Arnel B. Balarbar should be meted the indeterminate penalty of TWELVE (12) years and ONE (1) day as minimum to FOURTEEN (14) years and EIGHT (8) months as maximum, and a fine of P300,000.00.SO ORDERED.ANTONIO EDUARDO B. NACHURAAssociate JusticeWE CONCUR:

RENATO C. CORONAAssociate Justice

Chairperson

PRESBITERO J. VELASCO, JR.Associate Justice

DIOSDADO M. PERALTAAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.RENATO C. CORONAAssociate JusticeChairperson, Third Division

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.REYNATO S. PUNOChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 193003 July 13, 2011FRANCISCO IMSON y ADRIANO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

R E S O L U T I O NCARPIO, J.:

The CaseThis is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 March 2010 Decision2 and 21 July 2010 Resolution3 of the Court of Appeals in CA-G.R. CR No. 30364. The Court of Appeals affirmed the 2 August 2005 Decision4 of the Regional Trial Court (RTC), National Capital Judicial Region, Malabon City, Branch 72, in Criminal Case Nos. 28218-MN and 28219-MN, finding petitioner Francisco A. Imson (Imson) and Rolando S. Dayao (Dayao) guilty beyond reasonable doubt of illegal possession of dangerous drugs.

The FactsOn 24 January 2003, at around 9:30 p.m., a confidential informant arrived at the District Drug Enforcement Unit office in Langaray, Caloocan City. The confidential informant advised PO1 Gerry Pajares (Pajares), PO1 Noli Pineda (Pineda) and other policemen that Imson was selling shabu at Raja Matanda Street, San Roque, Navotas. District Drug Enforcement Unit Chief P/Supt. Reynaldo Orante formed a team to conduct a buy bust operation, with Pajares acting as poseur buyer.Pajares, Pineda, the confidential informant, and other policemen arrived at Raja Matanda Street at around 10:30 p.m. There, they saw Imson talking with Dayao. Thereafter, they saw Imson giving Dayao a transparent plastic sachet containing white crystalline substance. Pajares approached the two men and introduced himself. He immediately apprehended Imson while Pineda ran after Dayao who tried to escape. The policemen confiscated two plastic sachets containing the suspected shabu.The policemen brought Imson and Dayao to the Langaray Police Station where Imson and Dayao executed their joint sworn statements and where PO1 Ariosto B. Rana marked the two plastic sachets with "RDS" and "FIA." The two plastic sachets were sent to the Philippine National Police - Northern Police Crime Laboratory Office for examination. Both tested positive for shabu.Third Assistant State Prosecutor Marcos filed two informations dated 27 January 2003 for illegal possession of dangerous drugs against Imson and Dayao.

The RTC’s RulingIn its 2 August 2005 Decision, the RTC found Imson and Dayao guilty beyond reasonable doubt of illegal possession of dangerous drugs. The RTC held:

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The denial, sort of alibi and insinuated claim of evidence planting put up by the two accused in these cases as their defense cannot be sustained by the Court.Dayao would want the Court to believe that at past 10:30 in the evening, he would be playing "kara y krus" along a street. This is hard to believe. The playing of "kara y krus" would require that it be done in a well lighted place, preferably during day time. While the possibility that it can be played during the night cannot be ruled out, it is not the normal time of the day to play "kara y krus". And "kara y krus" is a form of illegal gambling. You do not openly play it along a street/near a street corner.Imson, on the other hand, maintained that he was preparing food for dinner. While dinner may be taken even late in the evening, it is not usual for a man to do so. There must be an explanation for having a late dinner. In these cases, Imson did not offer any explanation for preparing to have dinner at past 10:30 in the evening.Additionally, the two accused did not claim that there was any ill motive that made the policemen concoct a tale that resulted in the filing of these cases against them.The denial made by the two accused cannot prevail. Denial, like alibi is a weak defense in criminal prosecution. It cannot prevail over positive, clear and convincing testimony to the effect that a crime was committed and the accused committed the same (P. vs. Belibet, 197 SCRA 587).The insinuated claim of the accused to the effect that the shabu must have been planted by the police deserves little or scant consideration. It is the usual defense of those accused of violating the Dangerous Drugs Act of 2002 and, before that, of then existing laws on illegal drugs (refer to P. vs. Nicolas, et al., G.R. No. 114116, February 1, 1995).On the other hand, the evidence of the prosecution tend to show that a buy bust operation was about to be conducted by reason of a report that accused Imson was selling shabu. It was no longer undertaken because Imson was immediately seen handing shabu to Dayao. This resulted in the arrest of the two accused who were both found in possession of shabu. This version of the police is a reasonable one.5

Imson and Dayao appealed to the Court of Appeals.The Court of Appeals’ Ruling

In its 11 March 2010 Decision, the Court of Appeals affirmed the RTC’s 2 August 2005 Decision. The Court of Appeals held:We x x x find no merit in Appellants’ contention that they should be acquitted because of the allegedly procedural lapses committed by the police operatives who failed to conduct a physical inventory of the subject specimen and to photograph the same resulting in the failure of the prosecution to prove their guilt of the crime charged.On this regard, the required procedure on the seizure and custody of drugs as provided under Section 21, paragraph 1, Article II of R.A. No. 9165 pertinently provides:1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.The aforecited section is implemented by Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165, which states:x x xSec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. — The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items:x x xTo the mind of this Court, granting arguendo that the police operatives team failed to faithfully implement the post-operational requirement on the inventory and photographing of the seized drugs as required by Section 21 of RA 9165, nevertheless, jurisprudence has it that non-compliance with the procedure shall not invalidate the legitimate drug operation conducted by the police operatives. On this point, the pronouncement of the Supreme Court inPeople v. Bralaan is highly relevant, thus:x x xNon-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefore, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.x x xNotably, the aforecited ruling was echoed by the Supreme Court in People v. Pringas, viz:x x xNon-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefore, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.x x xAt this juncture, We rule that the apprehending team was able to preserve the integrity of the subject drugs and that the prosecution was able to present the required unbroken chain in the custody of the subject drug, viz: a.) starting from the apprehension of the Appellants by the police operatives and the

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recovery of the subject illegal drugs by virtue of the former’s valid warrantless arrest; b.) upon seizure of subject drugs by PO1 PAJARES and PO1 PINEDA, the same remained in their possession until the same were turned over to PO1 ARIOSTO B. RANA (PO1 RANA), the police investigator stationed in their headquarters, with the markings "RDS" and "FIA", initials of Appellants DAYAO and IMSON, respectively; c.) upon receipt of the subject drugs, a Laboratory Examination Request was then prepared [sic] P/Supt. ORANTE addressed to the Chief of the NPDO Crime Laboratory Office of Caloocan City requesting the Forensic Chemist on duty to examine the illegal drugs confiscated from Appellants; d.) the subject specimens were received by PO1 SAMONTE of the PNP-NPD Crime Laboratory Office from PO2 RANA; e.) the said specimens were examined by P/Insp. CALOBOCAL who found the same to be positive forshabu; f.) thereafter, P/Supt. ORANTE prepared a referral slip dated 26 January 2003, addressed to the inquest prosecutor presenting as evidence, inter alia, the two (2) plastic sachets confiscated from the Appellants and the Laboratory Examination Report with PSR# D-097-03; g.) the two (2) plastic sachets recovered from Appellants IMSON and DAYAO were turned over to the custody of the trial prosecutor Fiscal RHODA MAGDALENE OSINAGA (Fiscal OSINAGA), who presented the same as prosecution evidence during the direct examination of PO2 PAJARES on 22 April 2005 marking them as Exhibits "C-1" and "C-2", respectively. To stress, the unbroken chain of custody of the subject specimen was established by the prosecution and supported by the evidence on hand.6

Imson and Dayao filed a motion for reconsideration. In its 21 July 2010 Resolution, the Court of Appeals denied the motion. Hence, the present petition.The Issue

Imson raises as issue that the two plastic sachets containing shabu were inadmissible in evidence because the integrity of the chain of custody was impaired. He states:The failure to: (a) conduct a physical inventory; (b) photograph the plastic sachet in the presence of the accused or his representative, counsel, representative from the media and the Department of Justice and any elected public official; and (c) immediately mark the plastic sachet on site, all cast doubt as to whether the chain of custody remains intact.7

The Court’s RulingThe petition is unmeritorious.The failure of the policemen to make a physical inventory and to photograph the two plastic sachets containing shabu do not render the confiscated items inadmissible in evidence. In People v. Campos,8 the Court held that the failure of the policemen to make a physical inventory and to photograph the confiscated items are not fatal to the prosecution’s cause. The Court held that:The alleged procedural lapses in the conduct of the buy-bust operation, namely the lack of prior coordination with the PDEA and the failure to inventory and photograph the confiscated items immediately after the operation, are not fatal to the prosecution’s cause.x x x xThe absence of an inventory of personal effects seized from appellant becomes immaterial to the legitimacy of the buy-bust operation for it is enough that it is established that the operation was indeed conducted and that the identity of the seller and the drugs subject of the sale are proven.People v. Concepcion so instructs:"After going over the evidence on record, we find that there, indeed, was a buy-bust operation involving appellants. The prosecution’s failure to submit in evidence the required physical inventory of the seized drugs and the photography pursuant to Section 21, Article II of Republic Act No. 9165 will not exonerate appellants. Non-compliance with said section is not fatal and will not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[ˮ]9 (Emphasis supplied)Likewise, the failure of the policemen to mark the two plastic sachets containing shabu at the place of arrest does not render the confiscated items inadmissible in evidence. In People v. Resurreccion,10 the Court held that the failure of the policemen to immediately mark the confiscated items does not automatically impair the integrity of chain of custody. The Court held:Jurisprudence tells us that the failure to immediately mark seized drugs will not automatically impair the integrity of chain of custody .The failure to strictly comply with Sec. 21(1), Art. II of RA 9165 does not necessarily render an accused’s arrest illegal or the items seized or confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as these would be utilized in the determination of the guilt or innocence of the accused.x x x xAccused-appellant broaches the view that SA Isidro’s failure to mark the confiscated shabu immediately after seizure creates a reasonable doubt as to the drug’s identity. People v. Sanchez, however, explains that RA 9165 does not specify a time frame for "immediate marking," or where said marking should be done:"What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items — to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence — should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation."To be able to create a first link in the chain of custody, then, what is required is that the marking be made in the presence of the accused and upon immediate confiscation. "Immediate Confiscation" has no exact definition. Thus, in People v. Gum-Oyen, testimony that included the marking of the seized items at the police station and in the presence of the accused was sufficient in showing compliance with the rules on chain of custody. Marking upon immediate confiscation contemplates even marking at the nearest police station or office of the apprehending team.11 (Emphasis supplied)The presumption is that the policemen performed their official duties regularly.12 In order to overcome this presumption, Imson must show that there was bad faith or improper motive on the part of the policemen, or that the confiscated items were tampered. Imson failed to do so.WHEREFORE, the Court AFFIRMS the 11 March 2010 Decision and 21 July 2010 Resolution of the Court of Appeals in CA-G.R. CR No. 30364.SO ORDERED.ANTONIO T. CARPIOAssociate JusticeWE CONCUR:

TERESITA J. LEONARDO-DE CASTRO*

Associate Justice

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MARTIN S. VILLARAMA, JR.**

Associate JusticeJOSE PORTUGAL PEREZ

Associate Justice

MARIA LOURDES P. A. SERENOAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.ANTONIO T. CARPIOAssociate JusticeChairperson

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 192235 July 6, 2011PEOPLE OF THE PHILIPPINES, Appellee, vs.ROLANDO LAYLO y CEPRES, Appellant.

D E C I S I O NCARPIO, J.:The CaseBefore the Court is an appeal assailing the Decision1 dated 28 January 2010 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03631. The CA affirmed the Decision2 dated 16 September 2008 of the Regional Trial Court (RTC) of Binangonan, Rizal, Branch 67, in Criminal Case No. 06-017, convicting appellant Rolando Laylo y Cepres (Laylo) of violation of Section 26(b), Article II (Attempted Sale of Dangerous Drugs)3 of Republic Act No. 91654(RA 9165) or the Comprehensive Dangerous Drugs Act of 2002.The FactsOn 21 December 2005, two separate Informations against appellant Laylo and Melitona Ritwal (Ritwal) were filed with the RTC of Binangonan, Rizal, Branch 67, docketed as Criminal Case Nos. 06-017 and 06-018, respectively. The information against Laylo states:Criminal Case No. 06-017That on or about the 17th day of December, 2005, in the Municipality of Binangonan, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to sell any dangerous drug, did then and there willfully, unlawfully, and knowingly attempt to sell, deliver, and give away shabu to PO1 Angelito G. Reyes, 0.04 gram of white crystalline substance contained in two (2) heat-sealed transparent plastic sachets which were found positive to the test for Methylamphetamine Hydrochloride, also known as shabu, a dangerous drug, thus commencing the commission of the crime of illegal sale but did not perform all the acts of execution which would produce such crime by reason of some cause or accident other than the accused’s own spontaneous desistance, that is, said PO1 Angelito G. Reyes introduced himself as policeman, arrested the accused and confiscated the two (2) above-mentioned sachets from the latter.CONTRARY TO LAW.5

Upon arraignment, both accused pleaded not guilty. Joint trial on the merits ensued. However, during the trial, Ritwal jumped bail and was tried in absentia. Thus, Ritwal was deemed to have waived the presentation of her evidence and the case was submitted for decision without any evidence on her part.The prosecution presented two witnesses: Police Officer 1 (PO1) Angelito G. Reyes (PO1 Reyes) and PO1 Gem A. Pastor (PO1 Pastor), the poseur-buyers in the attempted sale of illegal drugs.The prosecution summed up its version of the facts: In the afternoon of 17 December 2005, PO1 Reyes and PO1 Pastor, both wearing civilian clothes, were conducting anti-drug surveillance operations at Lozana Street, Calumpang, Binangonan, Rizal. While the police officers were in front of a sari-sari store at around 5:40 p.m., appellant Laylo and his live-in partner, Ritwal, approached them and asked, "Gusto mong umiskor ng shabu?" PO1 Reyes replied, "Bakit mayroon ka ba?" Laylo then brought out two plastic bags containing shabu and told the police officers, "Dos (P200.00) ang isa." Upon hearing this, the police officers introduced themselves as cops. PO1 Reyes immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor caught up with her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM card case which Ritwal was carrying.PO1 Reyes and PO1 Pastor marked the three plastic sachets of shabu recovered from Laylo and Ritwal and forwarded them to the Philippine National Police Crime Laboratory for forensic testing. Forensic Chemist Police Inspector Yehla C. Manaog conducted the laboratory examination on the specimens submitted and found the recovered items positive for methylamphetamine hydrochloride or shabu, a dangerous drug.The police officers charged Laylo for attempted sale of illegal drugs and used the two plastic sachets containing shabu as basis while Ritwal was charged for possession of illegal drugs using as basis the third sachet containing 0.02 grams of shabu.The defense, on the other hand, presented different versions of the facts. The witnesses presented were: appellant Laylo; Laylo’s three neighbors namely Rodrigo Panaon, Jr., Marlon de Leon, and Teresita Marquez.

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Laylo testified that while he and his common-law wife, Ritwal, were walking on the street, two men grabbed them. The two men, who they later identified as PO1 Reyes and PO1 Pastor, dragged them to their house. Once inside, the police officers placed two plastic sachets in each of their pockets. Afterwards, they were brought to the police station where, despite protests and claims that the drugs were planted on them, they were arrested and charged.To corroborate Laylo’s testimony, the defense presented Laylo’s three neighbors. Marlon de Leon (de Leon), also a close friend of the couple, testified that he was taking care of the Laylo and Ritwal’s child when he heard a commotion. He saw men, whom de Leon identified as assets, holding the couple and claimed that he saw one of them put something, which he described as "plastic," in the left side of Laylo’s jacket.Rodrigo Panaon, Jr. (Panaon) narrated that on 17 December 2005, at around 5:00 or 6:00 p.m., he was on his way home when he saw Laylo arguing with three men in an alley. He overheard Laylo uttering, "Bakit ba? Bakit ba?" Later, Panaon saw a commotion taking place at Laylo’s backyard. The three men arrested Laylo while the latter shouted, "Mga kapitbahay, tulungan ninyo kami, kami’y dinadampot." Then Panaon saw someone place something inside the jacket of Laylo as he heard Laylo say, "Wala kayong makukuha dito."Teresita Marquez (Marquez) testified that while she was fetching water from the well on 17 December 2005, at around 5:00 or 6:00 p.m., she heard Laylo’s son shouting, "Amang, Amang." Marquez then saw the child run to his father, who was with several male companions. Then someone pulled Laylo’s collar and frisked him. Marquez overheard someone uttering, "Wala po, wala po." Marquez went home after the incident. At around 9:00 in the evening, Ritwal’s daughter visited her and borrowed money for Laylo and Ritwal’s release. Marquez then accompanied Ritwal’s daughter to the municipal hall, where a man demanded P40,000.00 for the couple’s release.In its Decision dated 16 September 2008, the RTC found Laylo and Ritwal guilty beyond reasonable doubt of violations of RA 9165. The RTC gave credence to the testimonies of the police officers, who were presumed to have performed their duties in a regular manner. The RTC stated that Reyes and Pastor were straightforward and candid in their testimonies and unshaken by cross-examination. Their testimonies were unflawed by inconsistencies or contradictions in their material points. The RTC added that the denial of appellant Laylo is weak and self-serving and his allegation of planting of evidence or frame-up can be easily concocted. Thus, Laylo’s defense cannot be given credence over the positive and clear testimonies of the prosecution witnesses. The dispositive portion of the decision states:We thus find accused Rolando Laylo GUILTY beyond reasonable doubt of violating Section 26(b) of R.A. No. 9165 and sentence him to suffer a penalty of life imprisonment and to pay a fine of P500,000.00. We also find accused Melitona Ritwal GUILTY beyond reasonable doubt of violating Section 11 of R.A. No. 9165 and illegally possessing a total of 0.02 grams of Methylamphetamine Hydrochloride or shabu and accordingly sentence her to suffer an indeterminate penalty of 12 years and one day as minimum to 13 years as maximum and to pay a fine ofP300,000.00.Let the drug samples in this case be forwarded to the Philippine Drug Enforcement Agency (PDEA) for proper disposition. Furnish PDEA with a copy of this Decision per OCA Circular No. 70-2007.SO ORDERED.6

Laylo filed an appeal with the CA. Laylo imputed the following errors on the RTC:I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE OFFENSE CHARGED DESPITE THE PROSECUTION WITNESS’ PATENTLY FABRICATED ACCOUNTS.II. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE OFFENSE CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.III. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE APPREHENDING OFFICERS’ FAILURE TO PRESERVE THE INTEGRITY OF THE ALLEGED SEIZED SHABU.7

The Ruling of the Court of AppealsIn a Decision dated 28 January 2010, the CA affirmed the decision of the RTC. The dispositive portion of the decision states:WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The challenged decision of the court a quo is AFFIRMED. Costs against the accused-appellant.SO ORDERED.8

Hence, this appeal.The Ruling of the CourtThe appeal lacks merit.The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment.9

In the present case, PO1 Reyes narrated in court the circumstances of the illegal sale:PROS. ARAGONES:Q: What time did you proceed to that place of surveillance?A: 5:40 p.m., Ma’am.Q: And what happened when you and PO1 Gem Pastor went there?A: When we were making standby at a nearby store there was a man talking with a woman, the man asked me if we want to have a shot of shabu.Q: What was your reply?A: "Bakit, meron ka ba?"Q: How did that other person react to that question, what did he tell you, if any?A: "Gusto mong umiskor ng shabu?"Q: What happened after that?A: I replied, "Bakit meron ka ba?" then he showed me two small plastic bags containing shabu, Ma’am.Q: How big is that bag, Mr. Witness?A: Small, Ma’am.Q: Can you tell us the size?A: (Demonstrating) Almost one inch the size of a cigarette, Ma’am.COURT: It was in a plastic not in foil?A: Yes, your Honor.PROS. ARAGONES:

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Q: After showing you two plastic bags, what happened?A: I introduced myself as a police officer then I caught this man and confiscated the two small plastic bag containing shabu.Q: How about the lady?A: My partner caught the woman because she was intending to run away and he got from her right hand Smart SIM card case containing one small plastic.10

PO1 Pastor corroborated the testimony of PO1 Reyes:PROS. ARAGONES:Q: Mr. Witness, while you were conducting surveillance on December 17, 2005, what happened?A: While we were conducting surveillance at Lozana Street, Calumpang, Binangonan, Rizal, while we were at the store, two (2) persons approached us, one male and one female, Ma’am.Q: Who were those persons? Did you come to know the name of those persons?A: At that time I don’t know the names but when they were brought to the police station I came to know their names, Ma’am.Q: What are the names of these two persons?A: Rolando Laylo and Melitona Ritwal, Ma’am.Q: At that time they approached you during the time you were conducting surveillance at Lozana Street, what happened?A: The male person approached PO1 Reyes and asked if "iiskor", Ma’am.Q: What was the reply of PO1 Reyes?A: He answered "Bakit meron ka ba?"Q: When that answer was given by Reyes, what did that male person do?A: He produced two (2) small plastic sachets containing allegedly shabu and he said "dos ang isa."COURT: What do you mean by "dos ang isa"?A: Php 200.00, Your Honor.PROS. ARAGONES:Q: Where were you when that male person produced two (2) small plastic sachets?A: I was beside PO1 Reyes, Ma’am.Q: After he showed the plastic sachets containing drugs, what happened next?A: We introduced ourselves as policemen, Ma’am.Q: After you introduced yourselves, what happened next?A: PO1 Reyes arrested the male person while I arrested the female person, Ma’am.Q: Why did you arrest the woman?A: At that time, she was about to run I confiscated from her a SIM card case, Ma’am.COURT: What was the contents of the SIM card case?A: One (1) piece of alleged shabu, Your Honor.11

From the testimonies given, PO1 Reyes and PO1 Pastor testified that they were the poseur-buyers in the sale. Both positively identified appellant as the seller of the substance contained in plastic sachets which were found to be positive for shabu. The same plastic sachets were likewise identified by the prosecution witnesses when presented in court. Even the consideration of P200.00 for each sachet had been made known by appellant to the police officers. However, the sale was interrupted when the police officers introduced themselves as cops and immediately arrested appellant and his live-in partner Ritwal. Thus, the sale was not consummated but merely attempted. Thus, appellant was charged with attempted sale of dangerous drugs. Section 26(b), Article II of RA 9165 provides:Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act:x x x(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;x x xHere, appellant intended to sell shabu and commenced by overt acts the commission of the intended crime by showing the substance to PO1 Reyes and PO1 Pastor.12 The sale was aborted when the police officers identified themselves and placed appellant and Ritwal under arrest. From the testimonies of the witnesses, the prosecution was able to establish that there was an attempt to sell shabu. In addition, the plastic sachets were presented in court as evidence of corpus delicti. Thus, the elements of the crime charged were sufficiently established by evidence.Appellant claims that he was a victim of a frame up. However, he failed to substantiate his claim. The witnesses presented by the defense were not able to positively affirm that illegal drugs were planted on appellant by the police officers when they testified that "they saw someone place something inside appellant’s jacket." In Quinicot v. People,13 we held that allegations of frame-up and extortion by police officers are common and standard defenses in most dangerous drugs cases. They are viewed by the Court with disfavor, for such defenses can easily be concocted and fabricated.Appellant asserts that it is unbelievable that he would be so foolish and reckless to offer to sell shabu to strangers. In People v. de Guzman,14 we have ruled that peddlers of illicit drugs have been known, with ever increasing casualness and recklessness, to offer and sell their wares for the right price to anybody, be they strangers or not. What matters is not the existing familiarity between the buyer and the seller, or the time and venue of the sale, but the fact of agreement as well as the act constituting the sale and delivery of the prohibited drugs.Further, appellant did not attribute any ill-motive on the part of the police officers. The presumption of regularity in the performance of the police officers’ official duties should prevail over the self-serving denial of appellant.15

In sum, we see no reason to disturb the findings of the RTC and CA.1avvphi1 Appellant was correctly found to be guilty beyond reasonable doubt of violating Section 26(b), Article II of RA 9165.WHEREFORE, we DISMISS the appeal. We AFFIRM the Decision dated 28 January 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 03631.SO ORDERED.

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ANTONIO T. CARPIOAssociate JusticeWE CONCUR:

TERESITA J. LEONARDO-DE CASTRO*

Associate Justice

ARTURO D. BRIONAssociate Justice

JOSE PORTUGAL PEREZAssociate Justice

MARIA LOURDES P.A. SERENOAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.ANTONIO T. CARPIOAssociate JusticeChairperson

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. Nos. 134072-73 June 10, 2002PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CONSTANCIO CANDIDO y COLLARGA, accused-appellant.KAPUNAN, J.:Accused-appellant Constancio Candido y Collarga was found guilty of murder aggravated by the use of an unlicensed firearm and sentenced to death in Criminal Case No. Q-94-589861 in the Decision dated June 22, 1998 rendered by the Regional Trial Court, Branch 220, Quezon City. He was likewise found guilty of Violation of Presidential Decree No. 1866,2 as amended by Republic Act No. 8294,3 in Criminal Case No. Q-94-58985 and was sentenced to suffer the penalty of imprisonment of prision correccional in its maximum period. The dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Court finds the accused Constancio Candido y Collarga GUILTY BEYOND REASONABLE DOUBT, as principal, of the crimes of Violation of Presidential Decree No. 1866, as amended by Republic Act No. 8294; and Murder qualified by treachery and aggravated by use of unlicensed firearm punishable under Article 248 of the Revised Penal Code, as amended by Section 6 of Republic Act No. 7659, in relation with (sic) Section 1 of Republic Act No. 8294, and accordingly sentences him to suffer the penalty of imprisonment of PRISION CORRECCIONAL IN ITS MAXIMUM PERIOD and a fine of FIFTEEN THOUSAND PESOS (P15,000.00) for violation of P.D. 1866, as amended, in Criminal Case No. Q-94-58985; and to suffer the penalty of DEATH with all its accessory penalties and to indemnify the heirs of the deceased Nelson Daras y Pueblo in the amount of FIFTY THOUSAND PESOS (P50,000.00), for murder in Crim. Case No. Q-94-58985 (sic); subject to the rule on successive service of sentence under Article 70 of the Revised Penal Code.The Director of Metro Manila Rehabilitation Center, Camp Ricardo Papa, Lower Bicutan, Taguig, Metro Manila is hereby ordered to transfer the custody of the accused to the National Penitentiary, New Bilibid Prisons, Muntinlupa, Metro Manila, pending appeal.The Branch Clerk of this Court is hereby directed to transmit the entire records of this case to the Supreme Court for automatic review.SO ORDERED.4

The relevant antecedents are as follows:The information in Criminal Case No. Q-94-58986 for murder alleged:

That on or about the 9th day of October, 1994, in Quezon City, Philippines, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously assault, attack and employ personal violence upon the person of one NELSON DARAS y PUEBLO, by then and there shooting the latter with a .38 caliber revolver hitting him on the different parts of his body, thereby inflicting upon said NELSON DARAS y PUEBLO mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said NELSON DARAS y PUEBLO.CONTRARY TO LAW.5

The information in Criminal Case No. Q-94-58985 for Violation of P.D. No. 1866, as amended, alleged:That on or about the 9th day of October, 1994, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. revolver Smith & Wesson "paltik" with Serial No. 453822 with three (3) live ammunitions and three (3) spent shells without first having secured the necessary license/permit issued by the proper authorities.CONTRARY TO LAW.6

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During his arraignment, accused-appellant pleaded not guilty to both charges.7 Thereafter, joint trial of the cases ensued.The prosecution’s evidence consist of the (a) testimonies of (1) Perlita Baldoza, a cousin of victim Nelson Daras, and an eyewitness to the shooting incident; (2) SPO1 Wilfredo Red who apprehended the accused-appellant and confiscated the subject firearm from the latter; (3) SPO1 Gil J. Gregorio who investigated the case; (4) Ruben Aliaga, a "peryante," also an eyewitness to the shooting incident; (5) Dr. Bienvenido O. Muñoz, Medico-Legal Officer III, Medico-Legal Division, National Bureau of Investigation, who conducted the autopsy on the body of the victim and (b) documents consisting of (1) the Certification, dated March 22, 1995 of the Firearms and Explosive Office, PNPHQ, Civil Security Force Command, Camp Crame, showing that accused-appellant does not possess any authority or license from the government to possess the subject firearm; and (2) the Autopsy Report No. N-94-2046.The prosecution sought to prove that at around ten-thirty in the evening of October 9, 1994, witness Perlita Baldoza who was at her stall in the peryahan (mini carnival) behind the Camelot Hotel at Scout Tuazon, Barangay South Triangle, Quezon City saw accused-appellant alighting from a taxi as if he was looking for somebody.8 She knew the accused-appellant because he was "an overseer" in the peryahan.9 The accused-appellant walked towards the victim and positioned himself behind him. Then, he immediately pulled out a gun and fired at the victim, hitting him in the lower portion of the breast.10 The victim fell. Not satisfied, the accused-appellant came closer to the victim, then, fired at him twice hitting him once on the right side of his chest.11 Wasting no time, accused-appellant made his getaway and ran towards the direction of Scout Tuazon, Quezon City.12 With the help of one Dennis Guinto, witness Baldoza brought the victim to the Capitol Medical Hospital where he was declared dead on arrival.13

Ruben Aliaga, a coin overseer in the "coin-throwing" game in the peryahan, was on duty the night the unfortunate incident took place and corroborated the testimony of witness Baldoza.14 He testified that he saw accused-appellant holding a gun ("a short gun") when the latter arrived at the peryahan and he saw him shoot the victim three (3) times. The victim had his back turned on the accused-appellant when the latter shot him from behind. After the shooting incident, he also helped in bringing the victim to the hospital where he was pronounced dead on arrival.15

In the meantime, SPO1 Wilfredo Red and SPO1 Malang were on patrol duty in the area along Scout Tuazon Street, Quezon City when they heard three (3) successive shots fired.16 They went to the direction where the shots were fired and came upon the accused-appellant running away from the said direction. He was holding a gun.17 SPO1 Red fired a warning shot and introduced himself as a police officer and told the accused-appellant to surrender his gun18 but the latter did not heed the warning and instead, he poked the gun at SPO1 Red, then, he ran away.19 SPO1 Red chased accused-appellant. He was able to subdue him. He confiscated accused-appellant’s gun20 and noticed that the subject firearm was a homemade revolver, with three (3) live ammunition and three (3) spent shells.21 When shown the subject gun with Serial No. 453822 in court, SPO1 Red identified the same as the one he confiscated from the accused-appellant.22

Dr. Bienvenido O. Muñoz, Medico-Legal Officer III of the Medico-Legal Division of the National Bureau of Investigation conducted an autopsy of the victim and made the following postmortem findings, viz.:Pallor, conjunctivae and integument.

Abrasions, reddish brown: nasal bridge, 0.5 x 1.0 cm.; chin, across midline, 3.0 x 7.0 cm.; thigh, left, lower third, anterior, 0.7 x 5.0 cm.Lacerated wound, forehead, across midline, 3.0 cm.Gunshot wounds:1. Entrance, ovaloid, 0.8 x 1.0 cm., with a contusion collar widest at its upper border. Located at the anterior chest, level of second intercostal space, right, 11.0 cm. from anterior median line, 134.0 cm. above right heel. Directed backward, downward and from right to left, into the right thoracic cavity, perforating the lower lobe of right lung then fracturing the body of 7th thoracic vertebra, into the posterior thoracic wall, where a bullet was lodged and recovered, 2.5 cm. to the left of posterior median line, 120.0 cm. above the left heel;2. Entrance, ovaloid, 0.9 x 1.0 cm., with a contusion collar widest at its lower border. Located at the back, level 10th intercostal space, left, 16.0 cm. from posterior median line, 109.5 cm. above left heel. Directed forward, upward and medially, perforating the diaphragm and spleen and making an wound, irregular, 2.0 x 1.0 cm., chest, anterior, level of 7th intercostal space, left, 7.0 cm. from anterior median line, 112.0 cm. above left heel.

Hemothorax, right-950 c.c.; left-750 c.c.Hemoperitoneum-600 c.c.Brain and other visceral organs, pale.Stomach-empty.23

In his testimony, Dr. Muñoz declared that he found two (2) gunshot wounds in the victim’s body. One was located at the front portion of the chest and the other one was located at the back. He declared the two (2) fatal gunshot wounds were the cause of death of the victim.24 When asked about the distance of the muzzle of the gun used by the accused-appellant to the body of the victim when he fired it, Dr. Muñoz said that the distance was probably more than 24 inches because of the absence of any of the characteristics of a close range fire like smudging or burning.25 As to the position of the victim vis-a-vis the assailant when shot, particularly the first shot, which was gunshot wound No. 2, Dr. Muñoz said that the assailant was at the back of the victim and more to the left.26 With respect to gunshot wound No. 1, he said that the assailant and the victim were probably both standing and that the assailant was in front and to the right of the victim and the victim was standing on a lower level than the assailant because the trajectory of the bullet was downward and from right to left.27

It was also proven that the gun which took the life of the victim was not properly registered as required by law. P/Senior Inspector Edwin Roque of the Records Branch of the Philippine National Police issued a certification stating that the 0.38 caliber revolver recovered from the accused-appellant was not a licensed firearm and that accused-appellant was not a licensed or registered holder of any kind of firearm.28

The accused-appellant was presented as the sole witness for the defense. He admitted the killing but claimed that he did so in self-defense. He testified that at about six o’clock in the evening of October 9, 1994, he reported for work as an overseer in the peryahan of one Tony Baguio.29 At around ten-thirty in the evening of that day, he closed one of the stalls in the peryahan because the owner of that stall did not arrive.30 Immediately thereafter, the victim approached him and angrily asked why he closed the stall. Without waiting for him to answer, the victim boxed him on his left ear,31 then asked the accused-appellant if he was going to fight back.32 Suddenly, the victim drew his gun. Accused-appellant grappled with the victim for the possession of the gun. In the course of the struggle, the gun fired hitting the victim on the left side of his stomach.33 After the first shot was fired, the struggle for the possession of the gun continued. Accused-appellant then tried to raise the gun but it fired again twice, hitting the victim at his right shoulder.34 At this point, somebody struck his neck causing him to move backward. A commotion ensued.35 Thereafter, a policeman (whom the accused-appellant later identified as SPO1 Wilfredo Red) poked a gun at him and ordered him to raise his hands, then frisked his body and was able to get P9,000.00 and $50.00 from him.36 The policeman then boarded him on a jitney and brought him to Camp Karingal.37

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In his brief, the accused-appellant ascribed the following errors to the court a quo, to wit:I

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.II

THE COURT A QUO ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY DESPITE FAILURE OF THE PROSECUTION TO ESTABLISH THE SAME.

IIITHE COURT A QUO GRAVELY ERRED IN TOTALLY DISREGARDING THE VERSION OF THE ACCUSED-APPELLANT THAT HE WAS MERELY ACTING IN SELF-DEFENSE.

IVTHE COURT A QUO ERRED IN NOT APPLYING THE PROVISION OF RA 8294 AND IN CONVICTING THE ACCUSED-APPELLANT FOR TWO SEPARATE OFFENSES.38

The accused-appellant assails his conviction in this automatic review and contends that the trial court has gravely erred in convicting him of murder aggravated by the use of an unlicensed firearm and sentencing him to death on the basis of the prosecution’s evidence.The Court affirms the judgment of conviction but reduces the sentence of death to reclusion perpetua.Having admitted killing the victim, the accused-appellant has the burden of proving that he acted in self-defense by establishing (1) unlawful aggression on the part of the deceased; (2) reasonable necessity of the means employed by him to prevent or repel the aggression; and (3) lack of sufficient provocation on his part in defending himself.39 Accused-appellant has failed to discharge this burden.The version of accused-appellant of what transpired that night is simply incredible. He asserted that at around ten-thirty in the evening of October 9, 1994, he closed one of the stalls in the peryahan when the victim approached him and angrily asked why he closed the stall. Then, without waiting for his answer, the victim boxed him on his left ear.40 Surprised and irritated, he asked the victim why he boxed him.41 Instead of answering, the victim drew his gun and asked accused-appellant if he was going to fight back.42 Accused-appellant then grappled for the possession of the gun. In the course of the struggle for possession of the same, the gun fired hitting the victim on the left side of his stomach.43 While the struggle for the possession of the gun continued, accused-appellant then tried to raise the gun but the same fired again twice, hitting the victim at his right shoulder.44

The presence of a number of gunshot wounds on the body of the victim negates self-defense and indicates a determined effort on the part of the accused-appellant to kill the victim. The autopsy made on the body of the victim as shown by the postmortem report indubitably shows that the nature and location of the gunshot wounds inflicted on the victim belie accused-appellant’s claim of self-defense. Dr. Muñoz found two (2) gunshot wounds and declared that the same caused the death of the victim. One of the wounds was located at the front portion of the chest while the other one was located at the back. As to the position of the victim vis-a-vis the assailant when shot, particularly the first shot, which was gunshot wound No. 2, Dr. Muñoz stated that in gunshot wound No. 2, which was located at the back, the assailant would have been at the back of the victim and more to his left.45 With respect to gunshot wound No. 1, he said that if the victim and the assailant were both standing, the assailant would have been in front and to the right of the victim and the victim would have been standing on a lower level than the assailant.46 Quite clearly, these findings confirm the testimony of witness Baldoza that accused-appellant alighted from a taxicab, positioned himself behind the victim and shot him at the back. When the victim fell to the ground, the accused-appellant fired at him again.47 Dr. Muñoz further stated that the gun was not fired at close range because of the absence of smudging or burning around the victim’s wound, thereby, negating accused-appellant’s claim that the gun accidentally fired while he and the victim were grappling for the possession thereof. Likewise, it is highly improbable for the victim to have been shot at the back if the gun accidentally fired in the course of the struggle for its possession, as this would assume that the victim’s hand holding the gun was twisted abnormally to reach his back with the gun muzzle pointed at his back when the gun exploded. Accused-appellant did not testify that such an impossible scenario took place. What is clear is that the nature and location of the gunshot wounds are physical evidence that demonstrate a determined effort to kill the victim and not just defend oneself.48

A plea of self-defense cannot be justifiably appreciated where it is not only uncorroborated by independent and competent evidence, but also extremely doubtful by itself.49 Here, accused-appellant was presented as the sole witness for the defense. No other witness was presented to testify how the fateful shooting happened. If it were true, as declared by the accused-appellant, that a lot of people were present during the scuffle and wanted to pacify them, why had not there been any attempt to present anyone of them to support his story. Notable among the persons he mentioned were prosecution witnesses Baldoza and Aliaga who, far from helping him substantiate his claim of self-defense, acknowledged their presence at the scene of the crime and testified against him.The eyewitness account of Perlita Baldoza was plain, clear, categorical and spontaneous. She testified:

Q On October 9, 1994 at around 10:30 p.m., do you recall where were you?A Yes, ma’am.Q Where were you then, Madam Witness?A In Scout Tuazon in my stall at the "peryahan", ma’am.Q While you were at your "peryahan" in Scout Tuazon, Quezon City, was there any unusual incident that happened?A Yes, ma’am.Q What was that?A The accused, Constancio Candido, fired a gun at Nelson Daras.Q Now, prior to the time that accused Constancio Candido fired at Nelson Daras, have you noticed Mr. Nelson Daras?

xxxA Yes, Your Honor.FISCAL LACAP:

Where was Nelson Daras then prior to the shooting incident?A He was watching color games.Q Where was this color game that Nelson Daras was watching then?A There also at the "peryahan".

xxxFISCAL LACAP:

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How far was this color game from the place where you were?A Almost two meters.Q From where you were?A Yes, ma’am.Q While Nelson Daras was watching the color game, what happened after that?A While Nelson Daras was busy watching games, the accused Constancio Candido suddenly appeared, alighting from a taxi as if he is looking for somebody.Q When you said "Tisoy", to whom are you referring to?A He is the one (Witness pointing to the accused Constancio Candido).Q Prior to October 9, 1994, do you know "Tisoy" already?A Yes, ma’am.Q Why do you know him?A He is also our companion. He is also in the "peryahan".Q As co-worker?A He is also working in the said "peryahan" where I have my stall.Q When you saw accused Constancio Candido as if he was looking for somebody else, what happened next, if any?A When he saw Nelson Daras, he immediately pulled his gun and fired at Nelson.Q What was Nelson doing then?A He was watching color games.

xxxFISCAL LACAP:

You said that after alighting from a taxi and accused turned his head as if he is looking for somebody else, how did he approach Nelson Daras?

A I just saw him fire a gun at Nelson.Q Have you seen the gun that was used by the accused?

xxxA Yes, sir.FISCAL LACAP:

What kind of gun did he use?A A short gun.Q Do you know what was the caliber of that gun?A No. I just noticed it is a short gun.Q After the accused fired his gun or shot Nelson Daras, what happened next, Madam Witness?A Nelson Daras fell down.Q Do you know on what part of the body was Nelson Daras shot at by the accused here?A Yes, ma’am.Q Where?(Witness is pointing to her chest, the lower portion of the breast.) Madam Witness, when the accused fired the first shot at Nelson Daras, where was he in relation to Nelson Daras?A At the back of Nelson Daras.Q After the accused fired a shot at Nelson Daras, what happened next?A Nelson Daras fell down.Q After Nelson Daras fell down, what transpired after that?A He came closer to Nelson Daras and fired at him twice.Q What happened next?A With the help of Dennis Guinto, we brought Nelson Daras to the Capitol Medical Hospital.50

Witness Aliaga corroborated the foregoing testimony of witness Baldoza when he declared in a simple and straightforward manner that the accused-appellant shot the victim three (3) times, hitting him in the back. Both testimonies are consistent in all material points and no ill motive or reason was shown to indicate that said witnesses falsely testified against accused-appellant.Accused-appellant also contends that the court a quo erred in appreciating the qualifying circumstance of treachery despite the prosecution’s failure to establish the same.Article 14, paragraph 16 of the Revised Penal Code provides that treachery or alevosia exists when the offender commits any of the crimes against persons by employing means, methods, or forms in the execution thereof which tend directly and specially to ensure its execution, without risk to himself arising from the defense which the offended party might make.51 The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor and without the slightest provocation on the part of the victim.52

The trial court correctly held that treachery had qualified the killing to murder. The suddenness of the attack, apparently without any provocation on the part of the victim, should suffice to demonstrate the treacherous nature of the aggression. The accused-appellant surreptitiously positioned himself at the back of the victim, aimed his gun, and without warning, shot the latter. When the victim fell to the ground, he again shot him twice. Clearly, the execution of the attack made it impossible for the victim to defend himself.However, there is merit to accused-appellant’s contention that the trial court should have appreciated illegal possession of firearms merely as an aggravating circumstance in the murder case, instead of treating it as a separate crime. Although R.A. No. 8294 took effect on July 6, 1997, or after the crimes involved in the case at bar were committed on October 9, 1994, it is advantageous to the accused, hence, it should be given retrospective application53 insofar as it spares the accused-appellant from a separate conviction for the crime of illegal possession of firearm.

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Section 1 of R.A. No. 8294 further amended Section 1 of P.D. No. 1866, which in part, provides:If homicide or murder is committed with the use of unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.Under the aforequoted section, where murder or homicide is committed with the use of an unlicensed firearm, the separate penalty for illegal possession of firearm shall no longer be meted out since it becomes merely a special aggravating circumstance. The penalty for illegal possession of firearms shall be imposed in all other cases where none of the crimes enumerated under R.A. No. 8294 is committed. The intent of Congress is to treat the offense of illegal possession of firearm and the commission of homicide or murder with the use of unlicensed firearm as a single offense.54

In view of this provision, the Court has held in a number of cases55 that there can be no separate conviction of the crime of illegal possession of firearm in a case where another crime, as indicated in RA. No. 8294 (murder or homicide under Section 1, and rebellion, insurrection, sedition or attempted coup d’etat under Section 3), is committed.In the case at bar, although the prosecution was able to establish that the crime of illegal possession of firearm under P.D. No. 1866 had been committed by the accused-appellant, R.A. No. 8294 merely considers the use of an unlicensed firearm as a special aggravating circumstance in murder or homicide, and not as a separate offense. Fortunately for the accused-appellant, the use of an unlicensed firearm in the killing of the victim was not alleged in the information for murder. Such being the case, the same could not be used as an aggravating circumstance to warrant the imposition of the death penalty against the accused-appellant.56

WHEREFORE, the decision of the trial court dated June 22, 1998 is hereby MODIFIED. Accused-appellant Constancio Candido y Collarga is found guilty beyond reasonable doubt of the crime of the murder and is sentenced to suffer the penalty of reclusion perpetua.SO ORDERED.Davide, Jr.*, Bellosillo, Puno*, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago*, Sandoval-Gutierrez, Carpio, Austria-Martinez and Corona, JJ., concur.

Republic of the PhilippinesSUPREME COURT

EN BANCG.R. No. 142675. July 22, 2005VICENTE AGOTE Y MATOL, Petitioners, vs.HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES,Respondents.

D E C I S I O NGARCIA, J.: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. 82942; and,2. Resolution dated February 8, 2000,3 denying petitioner’s motion for reconsideration.As culled from the pleadings on record, the following are the undisputed factual antecedents:Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 18664 and violation of COMELEC Resolution No. 28265 (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows:

CRIMINAL CASE NO. 96-149820That 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.CONTRARY TO LAW.

CRIMINAL CASE NO. 96-149821That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban).CONTRARY TO LAW.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 of reclusion temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the COMELEC Resolution on gun ban).Meanwhile, on June 6, 1997, Republic Act No. 82946 was approved into law.Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court.In its order dated July 15, 1999,7 however, the trial court denied petitioner’s motion, saying:While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: ‘The trial court and the respondent court are bound to apply the governing law at the

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time of the appellant’s commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands.Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK.In the herein assailed resolution dated September 14, 1999,8 the appellate court dismissed petitioner’s recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court.With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000,9 petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application.The petition is partly meritorious.At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said court’s legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals:10

For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged.Considering that "judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law", while"appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law"11, petitioner should have appealed the trial court’s ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,12 pursuant to Rule 41, Section 2 (c) of the same Rules, viz:SEC. 2. Modes of appeal. –(a) xxx xxx xxx(b) xxx xxx xxx(c) Appeal by certiorari. – In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that "there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law",13 the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.14

As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial court’s order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction.Petitioner’s case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari 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, 1999.As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court.Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and "hold the bull by its horns", so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority,15 we held:Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning ‘pleading, practice and procedure in all courts.’ In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx

xxx xxx xxxWe have made similar rulings in other cases, thus:Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx 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.We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case.Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads:SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied)When Rep. Act No. 8294 took effect on July 6, 1997,16 the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: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

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as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied)Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,17 the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson   18    to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that "no other crime was committed" must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here.As early as August 1997, the month after Rep. Act No. 8294 took effect,19 this Court has pronounced in Gonzales vs. Court of Appeals   20    that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.21

For sure, in People vs. Valdez,22 where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.23

Yet, in other cases,24 although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was "used" to commit the crime of murder or homicide, the Court did not appreciate this "use" of such unlicensed firearm as an aggravating circumstance as provided therein, when the "use" of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure.In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not "used" or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually "used" and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged.Let us take a look at the jurisprudence once again. In Cupcupin vs. People,25 the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida,26 however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement:Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs.(Emphasis supplied)In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being "used" in the commission of an offense.Given this Court’s aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as inAlmeida, the unlicensed firearm was not actually "used" or discharged in committing the other offense?In People vs. Walpan M. Ladjaalam,27 this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held:xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the ‘other crime’ is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294’s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx

xxx xxx xxxxxx 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).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,29where the Court retroactively applied Rep. Act No. 8294 in accused-appellant’s favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante,30 where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms.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

xxx 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

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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.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 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.WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED.Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause.SO ORDERED.Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. 131592-93 February 15, 2000PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JULIAN CASTILLO y LUMAYRO, accused-appellant.PUNO, J.:With the passage of Republic Act No. 8294 on June 6, 1997, the use of an unlicensed firearm in murder or homicide is now considered, not as a separate crime, but merely a special aggravating circumstance.In the case at bar, appellant JULIAN CASTILLO y LUMAYRO was charged with Murder and Illegal Possession of Firearms in two (2) separate Informations, thus:Criminal Case No. 45708:

That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, armed with a handgun, with deliberate intent and without justifiable motive, with evident premeditation, by means of treachery and with a decided purpose to kill, did then and there wilfully, unlawfully and criminally shoot, hit and wound Rogelio Abawag with the said gun, with which herein accused was then provided at the time, thereby causing upon said Rogelio Abawag bullet wounds on vital parts of his body, which caused his instantaneous death.CONTRARY TO LAW.1

Criminal Case No. 45709:That on or about the 14th day of November, 1995 in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, with deliberate intent and without justifiable motive, have in his possession and control one (1) Homemade .38 caliber revolver without serial number (and) three (3) live ammunitions without the authority and permit to possess or carry the same.CONTRARY TO LAW.2

The scene of the crime was the then on-going construction site of Gaisano Building in Lapaz, Iloilo City. On November 14, 1995, at about 8 a.m., ROBERTO LUSTICA, a construction worker, was on the last rung of the stairs on the third floor of the Gaisano building when he saw his co-worker ROGELIO ABAWAG being closely pursued by accused JULIAN CASTIILLO, a lead man in the same construction site. During the chase, the accused pointed a gun at Abawag and shot him. Abawag, then about a half meter away from the accused, fell on his knees beside a pile of hollow blocks.3

FRANKLIN ACASO, a mason working on the third floor of the Gaisano building, heard the first shot. Initially, he did not pay attention to it as he thought that the sound came from one of their construction equipments. Seconds later, he heard a second shot and a person screaming: "Ouch, that is enough!" When he looked towards the direction of the sound, he saw the accused in front of Abawag, about a meter away, pointing a .38 caliber revolver at the latter. Abawag was then leaning on a pile of hollow blocks, pleading for mercy. The accused shot Abawag a third time despite the latter's imploration. The accused then fled, leaving Abawag lifeless.4

The management of Gaisano reported the shooting incident to the police authorities who immediately rushed to the scene of the crime. JUN LIM, alias "Akoy," brother-in-law of the victim and also a construction worker at the Gaisano, volunteered to go with the police and assist them in locating the accused.The police, accompanied by Akoy, proceeded to Port San Pedro where they saw the accused on board a vessel bound for Cebu. When they boarded the vessel, Akoy positively identified the accused to the police as the assailant. The accused attempted to escape when the police identified themselves but the police caught up with him. Upon inquiry, the accused denied complicity in the killing of Abawag. The police found in his possession a .38 caliber handmade revolver, three (3) empty shells and (3) live ammunitions. Further inquiry revealed that the accused owned the gun but had no license to possess it. The police then took the accused into custody and charged him for the murder of Abawag and for illegal possession of firearm.5

The self-defense theory hoisted by the accused who testified solely for the defense was not given credence by the trial court. Thus, he was convicted of Homicide, as the prosecution failed to prove the alleged qualifying circumstances of evident premeditation and treachery, and of Illegal Possession of Firearm, aggravated by homicide. The trial court disposed as follows:

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WHEREFORE, premises considered and finding the accused guilty of the crimes of homicide and illegal possession of firearm aggravated by homicide beyond the shadow of the doubt, he is hereby sentenced as follows:

1) For the crime of homicide, he is sentenced to an indeterminate penalty of imprisonment of Twelve (12) years of prision mayor, as minimum, to Seventeen (17) years and Four (4) months reclusion temporal, as maximum;2) For illegal possession of firearm which is aggravated by homicide, he is sentenced to a penalty of death;3) To pay the family of his victim P50,000.00 as indemnity and another P50,000.00 as moral damages; and4) To pay the cost.

SO ORDERED.6 (emphasis supplied)On automatic review by this Court, appellant impugns solely his conviction for illegal possession of firearm for which he was sentenced to the supreme penalty of death.Prefatorily, we stress that although the appellant himself does not refute the findings of the trial court regarding the homicide aspect of the case, the Court nevertheless made a thorough examination of the entire records of the case, including the appellant's conviction for homicide, based on the settled principle that an appeal in criminal cases opens the entire case for review. Our evaluation leads us to conclude that the trial court's ruling on the homicide aspect is clearly supported by the records. Thus, we shall concentrate on the appellant's lone assignment of error with respect to his conviction for the crime of illegal possession of firearm.1âwphi1.nêtP.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6, 1997 by Republic Act 8294. Aside from lowering the penalty for said crime, R.A. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance.7 This amendment has two (2) implications: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but merely as a special aggravating circumstance; second, as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law, only one penalty shall be imposed on the accused.8

Prescinding therefrom, and considering that the provisions of the amendatory law favorable to herein appellant, the new law should be retroactively applied in the case at bar.9 It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged ishomicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law.The appellant anchors his present appeal on the assertion that his conviction was unwarranted as no proof was adduced by the prosecution that he was not licensed to possess the subject firearm. In their Manifestation and Motion in lieu of Appellee's Brief, the Solicitor General joined cause with the appellant.10

We agree.Two (2) requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm, and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence. The onus probandi of establishing these elements as alleged in the Information lies with the prosecution.11

The first element — the existence of the firearm — was indubitably established by the prosecution. Prosecution eyewitness Acaso saw appellant shoot the victim thrice with a .38 caliber revolver.12 Appellant himself admitted that he did not turn over the gun to the security guards in the building after the shooting.13 The same gun was recovered from the appellant and offered in evidence by the prosecution. However, no proof was adduced by the prosecution to establish the second element of the crime, i.e., that the appellant was not licensed to possess the firearm. This negative fact constitutes an essential element of the crime as mere possession, by itself, is not an offense. The lack of a license or permit should have been proved either by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the subject firearm14 or that the type of firearm involved can be lawfully possessed only by certain military personnel.15Indeed, if the means of proving a negative fact is equally within the control of each party, the burden of proof is on the party averring said negative fact. As the Information alleged that the appellant possessed an unlicensed gun, the prosecution is duty-bound to prove this allegation. It is the prosecution who has the burden of establishing beyond reasonable doubt all the elements of the crime charged, consistent with the basic principle that an accused is presumed innocent until proven guilty.16 Thus, if the non-existence of some fact is a constituent element of the crime, the onus is upon the State to prove this negative allegation of non-existence.17

Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. Solayao,18 we expounded on this doctrine, thus:

. . . (b)y its very nature, an "admission is the mere acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged.Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.

Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. (emphasis supplied).

Additionally, as pointed out by both the appellant and the Solicitor General, the extrajudicial admission was made without the benefit of counsel. Thus, we hold that the appellant may only be held liable for the crime of simple homicide under Article 249 of the Revised Penal Code.We come now to the penalty. The crime of homicide is penalized by reclusion temporal.19 There being no aggravating or mitigating circumstance attendant to the commission of the crime, the penalty of reclusion temporalshall be imposed in its medium period, i.e., from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law, the imposable penalty shall be within the range

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of prision mayor, i.e., from six (6) years and one (1) day to twelve (12) years, as minimum, toreclusion temporal in its medium period of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months, as maximum.IN VIEW OF THE FOREGOING, the assailed Decision is MODIFIED. Appellant Julian Castillo y Lumayro is found guilty of Homicide. He is sentenced to imprisonment of from nine (9) years and four (4) months of prision mayor as minimum to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal as maximum. However, the civil indemnity and moral damages awarded by the trial court to the heirs of the victim in the total amount of one hundred thousand (P100,000.00) pesos are affirmed.1âwphi1.nêtSO ORDERED.Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., concur.

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 76728 August 30, 1988PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.REYNALDO CRUZ alias Rene Hapon, defendant-appellant.The Solicitor General for plaintiff-appellee.Citizens Legal Assistance Office for defendant-appellant. PADILLA, J.:In Criminal Case No. Q-45491 of the Regional Trial Court of Quezon City, Reynaldo Cruz alias Rene Hapon of No. 40 Sto. Cristo, Balintawak, Quezon City, was charged with the crime of Illegal Possession of Firearm and Ammunition committed, as follows:

That on or about the 8th day of May 1986, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, said accused did then and there wilfully, unlawfully and feloniously have in his possession and under his custody and control a firearm, to wit: one (1) .38 caliber revolver (paltik) and one grenade, without first having obtained the proper license therefore. 1

After trial, Judge Willelmo C. Fortun found the accused guilty as charged, and imposed on him the penalty ofreclusion perpetua (life imprisonment) and to pay the costs. The firearm and ammunition and the hand grenade, as well as the bag which contained the same, were confiscated and ordered forfeited in favor of the government. 2

From said judgment, the accused has appealed to this Court. 3

The incriminatory facts, as stated by the Solicitor General in his Brief, are as follows:On May 9, 1986, Lt. Noel Manabat, along with the elements of CRIG stationed at Camp Bagong Diwa, Taguig, Metro Manila, acting On an intelligence information of a reliable informant that about noon of that day a stolen car, coming from Quezon City, was to be sold somewhere in MagaIlanes, Makati, nabbed Romeo Fernandez and Joey Flores at the intersection of EDSA and Timog Street and brought them to headquarters. After some questioning, these two (2) carnap suspects led the eight man-CRIG team to 61 Mabituan Street, Masambong, Quezon City where they alleged the other members of the carnap gang were waiting for their shares of the proceeds from the sale of a vehicle (Tsn., June 27, 1986, pp. 2-4). At said address, a sister of appellant, who owned the apartment, opened the door to the CRIG team. Inside the apartment, the team found appellant, sleeping on the floor, and gangmates Herminio Rivera and Lolito Timcang (Ibid. pp. 9 & 17). The team recognized appellant because he was pointed to by Romeo Fernandez and Joey Flores. These two also informed the team that appellant was armed and, sure enough, the team found a clutch bag (exhibit D) containing a caliber .38 paltik revolver (Exhibit B), one (1) live ammunition (Exhibit B-1 ) and a hand grenade (Exhibit C) under a bar, located one (1) meter away from the slumbering appellant (Ibid.). After waking him up, sgt. Reynaldo Cachuela confronted him at once with these exhibits. Appellant, in the presence of all the eight-man CRIG team and gangmates admitted ownership of the bag, firearm, bullet and grenade (Ibid., p. 17). The team arrested appellant and the rest of his group, as well as confiscated the items of the crime.At headquarters, Lt. Noel Manabat and Sgt. Reynaldo Cachuela narrated under oath the incident, (Joint Affidavit-Exhibits E, E-1 and E-2). At the same time, they turned over to Sgt. Jesus Ordinario, police investigator, the appellant and his party as well as Exhibits B, B-1 and C. Sgt. Jesus Ordinario took down the statement of appellant (Exhibit A) wherein appellant admitted ownership of Exhibits B, B-1, C and D, after informing- him of his constitutional rights, such as, he had the right to remain silent the right to get his own counsel, and everything he would state in his statement might be used for or against him (Ibid, p. 10). Appellant was told that the camp had a lawyer who was ready to assist him but he replied that he needed no lawyer and was ready to confess the truth (Ibid, p. 11). And so page two (2) of Exhibit A reflected appellant's answer to a question, thus: "Bakit ka naman may baril at granada, saan mo gagamitin? Nakuha sa posesyon ko ... at iyon ay ipinabenta . . ."After taking down the statement of appellant and the carnap suspects Herminio Rivera and Lolito Timcang, Sgt. Jesus Ordinario prepared a written referral of the case to the City Fiscal of Quezon City (Exhibit F), which was signed by Major Eduardo S. Amoyo (Ibid, p. 12). Later, appellant subscribed Exhibit A before Assistant Fiscal Monina Zenarosa (Ibid, pp. 14 and 18).On June 25, 1986, Lilian Lauron of the Legal Research Branch of the Firearms and Explosives Unit, Camp Crame, Quezon City, in answer to a police inquiry, made a thorough check of her records and determined that appellant Reynaldo Cruz y Santos of No. 40 Sto. Cristo, Balintawak, Quezon City was not a licensed holder of caliber .38 paltik revolver. As to hand grenades, she declared that only military personnel were authorized to carry them (Ibid, p. 19). 4

The accused, upon the other hand, denied ownership or possession of the firearm and hand grenade, as well as the bag which contained the same. According to the accused, the bag and its contents belonged to Joey Flores and was "planted" by PC operatives. His version of the case is, as follows:In the afternoon of 8 May 1986, between 4:30 and 5:00 o'clock, he was sleeping in the house of his sister at No. 61 Mabituan Street, Masambong, Quezon City, together with Eutiquio Lapinig, Jaime Rivera, and Dionisio Daracin, when PC men barged inside and rudely awakened him. He was confronted with a

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gun and a hand grenade, but he denied ownership of the same. Then, he and his companions were tied up and brought to Camp Bicutan on board a six-by-six truck. There, he was tortured by PC officers for five days and made to sign a prepared statement wherein he admitted ownership of the gun and hand grenade. He was not allowed to have visitors during the period of his confinement. However, he was able to secure a medical certificate for the injuries inflicted upon him by the PC officers, but it was left with them. 5

The claim of the accused that the bag containing the firearm and the hand grenade belonged to Joey Flores was corroborated by Romeo Fernandez and Dionisio Daracin. 6

The appellant maintains that the revolver and hand grenade in question did not belong to him; nor was he in actual possession thereof at the time he was arrested. Ownership, however, is not an essential element of the offense charged. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. 7

In the instant case, PC Lt. Noel Manabat, leader of the PC team that arrested the accused and his companions for "carnapping," declared that after finding the bag containing the revolver and the hand grenade under the bar in the apartment of the sister of the accused, he asked the "carnapping" suspects to whom the bag belonged and they replied that it belonged to the herein accused Reynaldo Cruz, and when he confronted the accused with the revolver and hand grenade, the accused readily admitted that they belonged to him. His testimony reads, as follows:

Q Who found the revolver Exh. B and the grenade Exh. C?A Sgt. Cachuela and I, sir.Q How about the revolver Exh. B where did you find that?A Also inside the bag, sir.Q Upon finding that, did you confront the accused Reynaldo Cruz as to the ownership?A We asked who owns the bag, and the group pointed to Reynaldo Cruz, sir.FISCAL QUERUBIN:Q How about Reynaldo Cruz, did you ask him if he is the owner of the revolver and the grenade in the bag?A Yes, sir.Q What did he tell?A He admitted, sir.Q In your presence and before whom?A Before Sgt. Cachuela, sir.Q Verbally?A Yes, sir. 8

PC Lt. Noel Manabat's above testimony is corroborated by PC Sgt. Reynaldo Cachuela, a member of the PC team that went after the "carnappers." 9

The appellant assails the trial court for giving credence to the testimony of the prosecution witnesses which he claims to be hearsay, conflicting and biased, but the appellant does not point to specific portions of said testimony which are allegedly conflicting and biased.The appellant also claims that the firearm and explosive in question cannot e use as evidence against him since the PC officers had no warrant of arrest when they entered the apartment, in violation of his constitutional rights.The contention is devoid of merit. PC Sgt. Reynaldo Cachuela categorically declared — and this is not disputed — that they were allowed by the owner of the apartment to enter. He said:

Q How did you get inside the apartment?A With carnappers Romeo Fernandez and Joey Flores, Sir, who pinpointed the house of Reynaldo Cruz?Q After this pinpointing of the house, was the house closed?A Yes, sir.Q How did you come to get inside the house?A We were allowed by the owned- of the house to go inside.Q Who is the owner of the house?A I cannot remember the name of the owner, sir, but it was the sister of Reynaldo Cruz.10

Besides, it should be noted that the unlicensed firearm and explosive were found when they arrested the accused and his companions for "carnapping" and not for illegal possession of firearm ammunition. In Magoncia vs. Palacio,11 the Court ruled that an unlicensed firearm may be seized without the necessity of obtaining a search warrant. As Mr. Justice Perfecto explained it in his concurring opinion in said case:

... The illegality of the search is independent from the illegal possession of prohibited arms. The illegality of the search did not make legal an illegal possession of firearms. When, in pursuing an illegal action or, in the commission of a criminal offense, the offending Police officers should happen to discover, a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person all the taking of thecorpus delicti.

Finally, the accused, citing the case of Morales vs. Ponce Enrile, 12 claims that the extrajudicial confession obtained from him during custodial investigation, 13 is inadmissible in evidence against him for having been obtained in violation of his constitutional rights.We agree. It would appear that the police officers failed to comply with the strictures laid down by the Court in the cited case of Morales vs. Ponce Enrile, for police officers to follow in a custodial investigation in that, while Police Sgt. Jesus Ordinario testified that he had informed the accused of his constitutional rights to remain silent and to be represented by counsel and that the accused waived such rights, 14 the waiver of constitutional rights was not made with the assistance or even in the presence of counsel.However, the conviction of the appellant is not based upon his extra-judicial confession alone. The evidence presented by the prosecution, even without said extrajudicial confession, is abundant, to support a finding of guilt.WHEREFORE, the judgment appealed from is hereby AFFIRMED, with costs against the accused-appellant.SO ORDERED.Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur

Republic of the PhilippinesSUPREME COURT

Manila

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SECOND DIVISION

G.R. No. 119220 September 20, 1996THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NILO SOLAYAO, accused-appellant. ROMERO, J.:

Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866.The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. 2

From Barangay Caulangohan, the team of Police Officer Niño proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3

Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Niño confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4

Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6

On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging fromreclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Niño confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. 8

Accused-appellant comes to this Court on appeal and assigns the following errors:I. The trial court erred in admitting in evidence the homemade firearm.II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant. 9

This court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia:

A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonoustree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted.Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law."Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Niño's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. 14

The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspended that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant."This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made.In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified himself as a government agents. 16 The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the

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report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm.As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions filed upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first.Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence.As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to possess the subject firearm. 17

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18

In People v. Tiozon, 19 this Court said:It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential ingredient of the offense charged," the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charged was not properly licensed.It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having criminally inscribed himself as a voter knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral. 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moral upholds this view as follows:The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, encumber upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him." (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8).

Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: 20

We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged.

In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Niño at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused-appellant's admission to prove the second element.Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged.This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged.

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Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.

Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license.This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." 24

Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." 25

In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm.In view of the foregoing, this Court sees no need to discuss the second assigned error.WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with cost de oficio.SO ORDERED.

Regalado, Puno and Torres, Jr., JJ., concur.Mendoza, J., is on leave.

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 128618 November 16, 1998PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FELICISIMO NARVASA, JIMMY ORANIA and MATEO NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA, appellants. PANGANIBAN, J.:What crime or crimes are committed when a killing is perpetrated with the use of unlicensed firearms? In the absence of the firearms themselves, may illegal possession of firearms be proven by parol evidence?

The CaseAppellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996 Decision 1 of the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A, 2648-A and 2646-A, finding them guilty beyond reasonable doubt of illegal possession of firearms in its aggravated form and sentencing them to reclusion perpetua.Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations 2 against the appellants and their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information filed on November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused) with aggravated illegal possession of firearm allegedly committed as follows:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody an M-14 Rifle without first securing the necessary license or permit from the lawful authorities and which firearm in conspiracy with Jimmy Orania and Mateo Narvasa was used in the killing of one SPO3 Primo Camba, victim in Crim. Case No. 2629-A.

In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged with aggravated illegal possession of firearm in the Amended Information which reads:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody a .30 U.S. Carbine without first securing the necessary license and/or permit from the lawful authorities and which firearm in conspiracy with Mateo Narvasa and Felicisimo Narvasa was used in the killing of SPO3 Primo Camba, victim in Crim. Case No. 2629-A..

In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged with homicide allegedly committed as follows:That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno, [P]rovince of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with high powered guns, did then and there willfully, unlawfully, and feloniously shoot SPO3 PRIMO CAMBA which caused his instantaneous death as a consequence, to the damage and prejudice of his heirs.

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Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When arraigned, the two appellants, assisted by theircounsel, 3 pleaded not guilty. 4 Trial proceeded in due course. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court finds both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal Case No. 2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of [f]irearms in its aggravated form in these cases and therefore, both accused are sentenced to death penalty but for reasons that the law at that time of the commission of the crime prohibits death sentence penalty, these two accused therefore shall each suffer the sentence of single, indivisible penalty of reclusion perpetua and are ordered to pay jointly and severally the heirs of the victim the amount of P50,000.00 as death indemnity and moral damages of P100,000.00 each, plus cost.In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form, which is the graver offense.With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused Mateo Narvasa is concerned.Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa.The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled.

Appellants' counsel then filed a Notice of Appeal to the Court of Appeals. 5 In an Order 6 dated October 24, 1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania perfected, and effected the transmittal of the case records to the Court of Appeals. Realizing the mistake, the Court of Appeals subsequently forwarded the records to thisCourt. 7

The FactsEvidence for the Prosecution

In his Brief, the solicitor general 8 presented the following narration of facts:On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and goats, repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the adjoining town of Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then Laderas and Nagal patrolled the area. Along their way, the two chanced upon the gang of appellants[.] [T]hey were five and three of them were armed. Jimmy Orania was holding a caliber .30 U.S. carbine, Mateo Narvasa was armed with [an] M-16 and Felicisimo Narvasa was carrying an M-14.The two are familiar with those kind[s] of guns as they have seen similar ones carried by policemen. They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14 (Tsn., April 21, 1994, pp. 1-35, December 13, 1995, pp. 1-12).Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily for the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon Navora who were on patrol and they reported what they saw (Ibid).The two policemen were also responding to a report about the missing animals and they suggested that all of them should track down the armed goons (Ibid).After walking some distance, the four responding men saw the house of appellant Felicisimo Narvasa on a hilly portion around 100 meters away from their path. They decided to investigate at the house but before they could negotiate the distance, they were met by a volley of gunfire. The four[,] who were ten meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the firing took a halt, Laderas had the courage to raise his head and [view] . . . the source of the gunfire. Laderas saw Felicisimo Narvasa in a squatting position aiming at the two policemen and Jimmy Orania was seated near him guiding him at his target. Mateo Narvasa was also aiming his gun. There was an exchange of gunfire as the policemen were able to take proper positions. Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and Nagal to get closer to give aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora followed moving backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn., August 15, 1994, pp. 2-30).In the process of the retreat, Camba [bled] profusely and he died even before he could be brought out from the scene of the crime.The body of Camba was left at the scene of the crime while his companions escaped and called for help. Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and caliber .30 U.S. carbine bullets were gathered and some policemen were tasked to track down the goons (Exhs. C, C-1 to C-4; tsn., August 16, 1994, pp. 6-10).Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested. Felicisimo Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16, 1994, pp. 11-15). 9

Evidence for the DefenseAppellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was shot by Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief, 10 they state:

Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6, 1992 when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went downstairs and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot him and the latter told his father that it was the group of Councilman Laderas who shot him. He instructed Orania and his wife to bring his son to the hospital but the latter died at the hospital. He further averred that before he slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were in his house drinking two bottles of gin after helping him [fix] the fence in his house. Accused-appellant Narvasa when asked to explain the charge against him denied committing the same. On March 17, 1992 he gave his affidavit naming Ernesto Nagal, Villamor Laderas and Simeon Navora as the assailants of his son. (TSN, August 8 ,1999, pp. 3-17)

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Jimmy Orania testified that on February 6, 1992, he was in the house of his co-accused Felicisimo Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work, Jimmy[,] together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00 o'clock in the afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100 meters north of the house of Felicisimo, when he heard a gunshot coming from that direction. Arnel shouted for help, so he proceeded to the place where Arnel was shot and carried him to the house of Felicisimo. The latter was awakened by Glicerio and when he asked his son who shot him, Arnel answered that it was the group of Laderas.Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August 20, 1996, pp. 3-13). 11

Ruling of the Trial CourtThe trial court accorded credibility to the prosecution witnesses and held that mere denial could not overcome the prosecution evidence showing that appellants used high-powered firearms to shoot at the prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further supporting said testimonies were the results of the paraffin test conducted on appellants and the recovery of various cartridges and shells matching the firearms purportedly used in the crime. Though these unlicensed firearms were not presented as evidence, the trial court, citing People v. Ferrera, 12 ruled that appellants may still be convicted of illegal possession of firearms.Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba. However, on the basis of People v. Barros, 13 it held that the homicide was merely an element of the illegal possession of firearms in its aggravated form; thus, homicide in the present case was taken into account not as a separate crime but as an aggravating circumstance which increased the penalty for the illegal possession of firearms.Hence, this appeal. 14

Assignment of ErrorsIn assailing the trial court's Decision, appellants interpose the following errors:

ITHE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.

IITHE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE INSUFFICIENCY OF THE PROSECUTION'S EVIDENCE TO WARRANT CONVICTION OF THE ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF AGGRAVATED ILLEGAL POSSESSION OF FIREARM. 15

In the main, the resolution of this case revolves around the credibility of the prosecution witnesses, the sufficiency of the prosecution evidence and the characterization of the crime committed.

The Court's RulingThe appeal is not meritorious. In light of Republic Act 8294, 16 however, appellants should be convicted only of homicide, with the special aggravating circumstance of the use of illegally possessed firearms.

First Issue:Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged inconsistency in their testimonies. Laderas testified that there was an exchange of fire between appellants and PO2 Simeon Navora, while Nagal declared that only the appellants fired. Appellants point out that "conflicting testimonies on a material and relevant point casts doubt [on] the truthfulness or veracity" 17 of such testimonies.Appellants' contention is untenable. The circumstances of the instant case explain the seeming inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in fear of losing their lives. Moreover, they did not take cover in the same place that Navora did.Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime charged and too insignificant to impair their credibility. In any event, the Court has ruled that a witness is not expected to remember an occurrence with perfect recollection of minute details. 18

Second Issue:Sufficiency of the Evidence

Appellants cite People v. Lualhati, 19 wherein this Court ruled "that in crimes involving illegal possession of firearm, 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." Appellants contend that the existence of the firearms was not sufficiently proven because the prosecution had not presented the firearms as evidence. It is necessary, they argue, that said "firearms allegedly possessed by the accused-appellants and allegedly used in the killing of Policeman Primo Camba be presented in evidence as those firearms constitute the corpus delicti of the crime with which they are sentenced." 20

Appellants' argument is not persuasive. In People v. Lualhati, this Court merely stated that the existence of the firearm must be established; it did not rule that the firearm itself had to be presented as evidence. Thus, in People v. Orehuela, 21 the Court held that the existence of the firearm can be established by testimony, even without the presentation of the said firearm. In the said case, Appellant Orehuela was convicted of qualified illegal possession of a firearm despite the fact that the firearm used was not presented as evidence. The existence of the weapon was deemed amply established by the testimony of an eyewitness that Orehuela was in possession of it and had used it to kill the victim,viz.:

We consider that the certification was adequate to show that the firearm used by Modesto Orehuela in killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess and to carry outside his residence on the night that Teoberto Canizares was shot to death. That firearm was a .38 caliber pistol was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the above circumstances are taken together with the testimony of the eyewitness that Modesto Orehuela was in fact in possession of a firearm and used the same to kill Teoberto Canizares, we believe that accused Orehuela was properly found guilty of aggravated or qualified illegal possession of firearm and ammunition.

In the present case, the testimonies of several witnesses indubitably demonstrate the existence of the firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani, Pangasinan to investigate a report regarding missing carabaos, pigs and goats, he saw the appellants carrying long firearms. We quote hereunder the relevant portion of his testimony:

Q And when you saw the two accused together with the three others, what have you noticed in their persons?

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A They were holding long firearms, sir.Q Who of the five persons did you see was holding long firearms?A Jimmy Orania was holding a carbine; Mateo Narvasa was holding an M-16.Q About Felicisimo Narvasa, what was he holding?A Felicisimo Narvasa was holding [an] M-14. 22

Ernesto Nagal likewise stated that he saw appellants carrying long firearms, as his testimony indicates:Q What did you notice in the persons of the five persons you met?A They were carrying arms, sirQ What kind of firearm were the five persons, or some of them, carrying?A Jimmy Orania is carrying a caliber .30.Q How about Mateo Narvasa?A Mateo Narvasa is carrying [an] M-16.Q How about Felicisimo Narvasa?A A long firearm was carried by Felicisimo Narvasa, sir, but I don't know the caliber. 23

That herein appellants were the ones who had shot at the prosecution witnesses was confirmed by Laderas, who testified as follows:Q How did you know that the gunfire came from the west?A Because we were facing west.Q And while the gunfire was going on, did you know who fired those gunshots?A We know sir, because we can see them.Q Whom did you see?A Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa, sir. 24

In addition, Primo Camba was hit by a bullet, and empty shells of M-16, M-14 and .30 caliber carbine bullets were later on recovered in the vicinity of the place where the shooting occurred.The above facts, duly proven and taken together, sufficiently establish the existence of the subject firearms and the fact that appellants possessed and used said firearms in firing at Villamor Laderas, Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the gunshot wound he had sustained.The present case can be distinguished from People v. Navarro 25 wherein the Court held that illegal possession of firearm could not be deemed an aggravating circumstance because the existence of the said firearm was not proven. In said case, a witness testified that he saw appellant shoot the victim with a "short" firearm. No firearm, however, was presented as evidence, although a gun was recovered from the accused when he was arrested. Moreover, no proof was adduced to show that the firearm allegedly seen by the witness was the same one recovered by the authorities from the accused. Thus, the Court held:

In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his possession an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was allegedly recovered on January 5, 1994, when appellant was arrested. However, said firearm was not presented in court or offered as evidence against the appellant. Although Rabago testified that he saw the appellant with a "short" firearm when the latter shot Rabadon on January 5, 1991 no other proof was presented to show that such gun, allegedly used on January 5, 1991, was the same one recovered on January 5, 1994. The prosecution was not able to establish sufficiently the existence of the subject firearm . . . .

In other words, the evidence on the existence of the firearm was beset with doubt and conflict. Such uncertainty is not found in the present case, for the testimonies of several witnesses indubitably established that the subject firearms were in the possession of the appellants.As to proof that appellants had no license or permit to possess the firearms in question, we have held in People v. Villanueva 26 that the second element of illegal possession of firearms can be proven by the testimony or the certification of a representative of the PNP Firearms and Explosives Unit that the accused was not a licensee of the firearm in question. The Court ruled:

As we have previously held, the testimony of, or a certification from the PNP Firearms and Explosives Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove beyond reasonable doubt the second element of the crime of illegal possession.

The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy Orania were not licensed firearm holders, 27 a fact that was attested to by SPO4 Roberto Manuel, a member of the PNP stationed at the provincial headquarters of the Pangasinan Provincial Command as Assistant Firearms and Explosives NCPO, who testified thus:

Q And did you bring with you the Master List of the firearm licensed holders in Pangasinan?A Yes, sir.Q Will you please produce it?A (Witness showing a folder, which is the Master List of firearm licensed holders in Pangasinan.)Q And with the aid of that voluminous list of firearm holders in Pangasinan, will you please tell his Honor if Felicisimo Narvasa and Jimmy Orania appear therein as licensed firearm holders?A Their names do not appear, as manifested by our [Master List as licensed] holders of any caliber, sir. 28

Appellants did not present any evidence — and neither did they even claim — that they were in fact licensed firearm holders.Appellants Responsiblefor Policeman's Death

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached Felicisimo Narvasa's house, they were suddenly fired upon. Camba was hit and it was from that bulet wound that he died. That appellants were responsible for his death is clear from Navora's testimony:

Q And on your way following them what happened?A When we were about 100 meters North of the House of Ising Narvasa we were met [by] a heavy volume of gunfire.

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Q Now, if you were met according to you with heavy volume of gunfire, what did you . . . and your companion [do]?A We dive[d] to the ground for safety, sir.

xxx xxx xxxQ Upon diving to the ground, what happened to Primo Camba?A Primo Camba was hit, sir[.]Q How did you come to know that Primo Camba was hit by the first exchange of gunfire?A Just after we dived to the ground, . . . Primo Camba told me that he was hit.Q And when Primo Camba told you that he was hit, what did you do?A I signalled the two (2) councilmen to get near me.

xxx xxx xxxQ After giving instruction to the two (2) councilmen, what did you do?A They carr[ied] him while we were retreating.Q Carried the body of Primo Camba, to what place?A We retreated [to the] East direction, until we reach the yard of [a] certain Prudencio.

xxx xxx xxxQ And when you reach[ed] the premises of Prudencio, what was the condition of Primo Camba?A He [was] no longer breathing, sir. 29

Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa. As these three directed and fired their guns at Laderas, Nagal, Navora and Camba, there was unity in action and purpose, and thus, conspiracy was present. Although it was not ascertained who among them actually shot Camba, all of them are liable for his death. In conspiracy, the act of one is the act of all.

Third Issue:The Crime

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used in killing Primo Camba. In its Decision, the trial court convicted appellants of "[i]llegal [p]ossession of [f]irearms in its aggravated form" and considered homicide "merely an element of the principal offense of [i]llegal [p]ossession of [f]irearms in its aggravated form." Applying People v. Barros 30 to the proven facts, the trial court imposed upon appellants the penalty of reclusion perpetua. However, a new law has in the meanwhile been enacted.Republic Act No. 8294, 31 which imposes a lighter penalty for the crime, provides:

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 correccional in its maximum period and a fine of not less than Fifteen Thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition; Provided, That no other crime was committed.The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three; Provided, however, That no other crime was committed by the person arrested.If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

In People v. Molina, 32 this Court en banc explained that RA 8294 considers the use of an unlicensed firearm only an aggravating circumstance in murder or homicide, viz.:

Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder; appellants should perforce be culpable for two separate offenses, as ruled by the trial court.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.

Under RA 8294, appellants can be held liable only for homicide 33 and penalized with reclusion temporal. Pursuant to Article 22 of the Revised Penal Code, 34 RA 8294 should be given retroactive effect.

Civil LiabilityConsistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the heirs of Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his death.However, the award of two hundred thousand pesos (P200,000) representing moral damages should be deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury was presented during the trial.WHEREFORE, the assailed Decision is hereby MODIFIED. For the death of Primo Camba, Appellants Felicisimo Narvasa and Jimmy Orania are found GUILTY of HOMICIDE with the special aggravating circumstance of using unlicensed firearms. Applying the Indeterminate Sentence Law, they are each sentenced to twelve (12) years ofprision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum; and ordered to pay the heirs of Primo Camba P50,000 as death indemnity. However, the award of moral damages is hereby DELETED.SO ORDERED.Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

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G.R. No. L-66965 June 18, 1987PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ARSENIO FERRERA y BAUTISTA, accused-appellant. SARMIENTO, J.:This is a mandatory review of the decision 1 of the Sandiganbayan in which the above-named accused was convicted of the crime of murder, qualified by taking advantage of superior strength, and sentenced to suffer the supreme penalty of death, to indemnify the heirs of the deceased in the sum of P15,000.00 in the concept of actual damages, P39,000.00 as compensatory damages for loss of earning capacity, and moral damages in the amount of P50,000.00 and the costs.On May 17, 1983, accused Arsenio Ferrera y Bautista, together with Rolando Aperocho, Danilo Villacillo, and Francisco Belisario were charged with murder in an information filed by the Tanodbayan, to wit —

xxx xxx xxxThat on or about December 9, 1982 or on dates subsequent thereto, in Barangay Mabuhay, Municipality of Valencia, Province of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, accused Arsenio Ferrera, being then the barangay chairman of Mabuhay, Valencia, Bukidnon, duly appointed and qualified as such, and Rolando Aperocho, Danilo Villacillo, and Francisco Belisario, all members of the Civilian Home Defense Force (CHDF) in Valencia, Bukidnon, taking advantage of their respective official positions, conspiring and confederating with each other, and mutually helping one another, at night time purposely sought to better accomplish their criminal ends with impunity, and taking advantage of their superior strength, did then and there wilfully, unlawfully and feloniously with deliberate intent to kill and with treachery, attack, assault and use personal violence upon one PASCUAL PATIAG, by then and there shooting him with high-powered guns, thereby inflicting upon the latter mortal wounds which were the direct and immediate cause of his death, after which said accused cut off the ears of the deceased and mutilated the other parts of the body, thus committing the aforesaid offense with ignominy, and which crime was committed by said accused in relation to their respective offices or duties.CONTRARY TO LAW. 2

xxx xxx xxxThe operative facts and circumstances surrounding the commission of the crime as gleaned from the evidence on record follow.On December 12, 1982, the partly burned cadaver of Pascual Patiag was discovered in a sugarcane field in Barangay Mabuhay, Valencia, Bukidnon. 3 TThe corpse was found lying on its back, neck slashed, stomach cut open, and the liver missing. 4 Deep wounds indicative of attempts to tear portions of the flesh from the body were also noted on the victim's thighs. 5 The sight, indeed, was gruesome, especially perhaps, to the victim's son, who was one of those who found6 the corpse and who previously witnessed 7 the despicable inhuman act that was the murder of his father.December 9, 1982 appeared to be just another day for the victim, Pascual Patiag as he boarded his "motorela", "a vehicle, the prime mover of which is a motorcycle, with side cars, it has four wheels, and the driver is at the head;" it can accommodate eight to nine passengers, "the ninth passenger to ride in tandem with the driver." Unaware that a grisly, grotesque end was awaiting him, he drove to the Valencia Public Market to buy fertilizer for his farm and to get passengers. 8 Four men, Venancio Ferrera, Jr., Nolin Fernandez, Rogelio Corpuz, and Oscar Cerdenola (the latter carrying two sacks of fertilizer) hired the " motorela." 9 The trip of the men aboard the victim's "motorela" was as uneventful as it was smooth until they reached the Civilian Home Defense Force (CHDF) headquarters of Barangay Mabuhay. Arsenio Ferrera, Barangay Captain and CHDF head (Commander), together with some CHDF men, stopped the "motorela "10 and ordered the driver, Pascual Patiag, to alight even as one of the CHDF men accused the said driver of being a member and/or symphatizer of the New People's Army (NPA). 11 The men then led the victim to the CHDF headquarters 12 where, acting as prosecutor, judge, and executioner, they took turns in hitting him with their fists. 13 Arsenio Ferrera, perhaps unsatisfied with merely using his bare hands on the poor man, brought out his knife and stabbed the man once in the stomach. 14Holding desperately to dear life, the victim, by then profusely bleeding, staggered to his house which was about 200 meters away. 15 Arsenio Ferrera, evidently lusting for more, and with his men tailing him, relentlessly pursued 16 the fleeing victim and in cold blood shot him twice with a carbine. 17 Pascual Patiag finally lay lifeless on the road. Yet his ordeal was far from over. The killers apparently wanted to partake of the dead man's body. They, thus sliced 18 slabs of flesh from his thighs as though it were edible meat, mutilated his ears 19 and extracted his liver. 20 Finally, and in an effort to conceal the crime, the men attempted to burn what remained of the victim, then left it by the sugarcane field where it was discovered.The crime, however, did not pass unnoticed. There were at least three eyewitnesses.Reynaldo Patiag, a son of the victim (and one of those who discovered the corpse as mentioned previously), was requested 21 by his mother to look for his father on that fateful evening of December 9. Forthwith, he proceeded to their house at Barangay Mabuhay with the intention of waiting for his father there. 22 The Patiags were then living at their house in Barangay Banlag just two kilometers away from their house at Barangay Mabuhay, in the same town of Valencia. Banlag was situated in such a way that all vehicles bound for that place had to pass Barangay Mabuhay. 23 Reynaldo testified that he "heard a shout asking for help" at around 7:00 p.m." 24 Sensing that something untoward was happening, he went down ,25 it was then that he saw a man struggling towards the house while he was being chased by five (5) men, 26 led by Arsenio Ferrera, the herein appellant. All of a sudden, Ferrera shot the fleeing man twice with a long gun. 27 The incident took place about 100 meters from where the witness was standing. 28

Oscar Cerdenola was another eyewitness. After buying two sacks of fertilizer, he hailed the victim's "motorela" in order to go home. 29 He testified that he witnessed the mauling, 30 the stabbing, 31 and the shooting 32 of the victim by Ferrera and his men. He did not, however, report the matter to the authorities for fear of his life as he was threatened by Ferrera with the same fate as that of the victim if he ever told the incident to anyone. 33

Lorenzo Cerdenola who was 17 meters 34 from where the killing took place likewise declared on the witness stand that he saw the victim being chased, 35 and shot by Ferrera and his men, 36 then carried to the CHDF Camp. 37

For the hideous killing of Pascual Patiag, only Arsenio Ferrera was apprehended. 38 The others for quite a time eluded the agents of the law. However, on January 23, 1984, the accused Danilo Villacillo and Francisco Belisario voluntarily surrendered to the military authorities at Barangay Kabangahan, Malaybalay, Bukidnon. They are now being tried by the Sandiganbayan. 39

The trial conducted by the Sandiganbayan and which commenced on June 28, 1983, therefore, pertained only to Arsenio Ferrera who entered a plea of Not Guilty upon arraignment on June 1,1983. 40

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After trial, the Sandiganbayan, on January 18, 1984 promulgated its decision convicting the accused of the crime charged. 41

The appellant assigns the following errors:I.THE TRIAL COURT ERRED IN DECLARING THAT THE CORPUS DELICTI HAS BEEN ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT.II.THE TRIAL COURT ERRED IN DECLARING THAT THE EYE-WITNESSES OF THE PROSECUTION HAVE ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT THAT THE APPELLANT WAS THE ONE WHO STABBED AND SHOT THE VICTIM TO DEATH.III.THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI OF THE APPELLANT AND FOR NOT ACQUITTING HIM OF THE CRIME CHARGED. 42

Anent the first assignment of error, the appellant argues that the three prosecution witnesses merely testified that they saw a man being pursued then killed by the appellant and his companions but failed to ascertain the Identity of that man. 43 The appellant also asserts that the death certificate cannot stand as an "official document entitled to the legal presumption of regularity in the issuance thereof" because it was issued by a physician without him examining the cadaver. 44 Furthermore, the appellant contends that the knife with which the victim was stabbed and the carbine with which he was shot should have been presented in evidence as part of the corpus delicti. 45

We do not agree. There is no doubt that the corpus delicti has been established by sufficient proof.The three eye-witnesses described in detail how the victim was first manhandled, 46 stabbed, 47 chased 48 like an animal, then shot 49 in cold blood by the appellant with a carbine. A fourth witness, Honorato M. Domingo, a tricycle driver,50 also provided proof of the criminal act of the appellant. The said witness disclosed that in the morning after the killing of Pascual Patiag, Ferrera and his men, who earlier hired the witness' tricycle, proceeded to the appellant's house where they took a bottle containing human ear. 51 From there, the group set forth to the PC detachment where the appellant delivered the said bottle to two soldiers wearing civilian clothes. 52 The witness distinctly heard the appellant remark that the ear inside the bottle was that of Pascual Patiag. 53

From the statements of the four witnesses, there is no mistaking the fact that Pascual Patiag was the man who was tortured and slain by the appellant and company. There could not be any better proof of the corpus delicti than the foregoing testimonies which describe in detail 54 the perpetration of the crime and which establish beyond reasonable doubt that the person killed by the appellant and his companions was Pascual Patiag. The corpus delicti has thus been proven through the positive declarations of the state witnesses, corpus delicti being the fact of the commission of the crime — here in the present case, the death caused by a criminal act. 55

The deficiencies in the death certificate cannot actually affect the outcome of the trial for, as pointed out above, the fact of death of the victim has been conclusively shown by the unequivocal testimonies of the victim's son, Reynaldo Patiag, and the other eyewitnesses, Oscar and Lorenzo Cerdenola. 56 The three positively and unqualifiedly Identified on the witness stand the appellant as the assailant of Pascual Patiag.Likewise, the presentation or non-presentation of the weapons in evidence (the knife used in stabbing and the carbine used in shooting the victim) is not vital to the cause of the prosecution. Corpus delicti means the fact of the crime or that a crime has actually been perpetrated. 57 It does not refer to the corpse of the victim or the weapon used to kill him. It is not therefore imperative that the weapons used in the commission of a crime be presented in court. It need not in fact be alleged that the body of the deceased was actually found. 58 In the case at bar, the people's evidence has already established that the deceased died as a result of gunshot wounds. 59 This, we rule, suffices to prove the corpus delicti.Apropos the second assignment of error, the appellant assails the credibility of the three prosecution witnesses for the following reasons: Reynaldo Patiag's reaction on the night of the perpetration of the crime was unnatural or contrary to human experience and observation of mankind; 60 Oscar Cerdenola gave prior inconsistent statements on material facts; 61 and Lorenzo Cerdenola aside from also giving inconsistent statements, contradicted the testimony of Reynaldo Patiag in that the said witness declared that he failed to notice the slicing of a portion of the victim's thighs. 62

We find no merit in the appellant's contentions.Reynaldo Patiag appears to us to be a credible witness. Despite the fact that Reynaldo declared that he merely "suspected" 63 that the person to reach the direction where the witness stood on the night of the perpetration of the crime was his father, yet we cannot consider the witness' suspicion as totally groundless. It must be noted that the victim was struggling to reach his own house where Reynaldo, his son, was, and which was some 200 meters from the CHDF detachment, apparently to seek sanctuary and succor. It is the plain instinct of self-preservation that impels a fatally wounded man, like the victim here, to clutch at straws, so to speak, and what safer one is there but his "castle."Pascual Patiag failed to go home that night and the next night. It was only on the third night after the victim's disappearance that his corpse, which bore wounds and barbaric mutilations evidently indicative of the fact that he was the same person seen by the witnesses who testified in this case for the people being relentlessly pursued, then shot at, and whose thighs were fleshed out ("Rolando Aperocho cut the extremities as if they were meat and got them"), was discovered. The relation between what transpired on the evening of December 9, 1982 and the subsequent discovery of the corpse is certainly clear and convincing.The only reason why Reynaldo failed to go to the rescue of the fleeing, wounded person who, he had the gut feeling, was his own father, was fear. 64 Such failure cannot be considered unnatural or contrary to human experience as claimed by the appellant [who insists that a son would always go to the defense of his father in the event that the life of the latter is in danger no matter if it would cost his life.] 65 Human nature teaches us that people may react differently to the same situation. One person's spontaneous or unthinking, or even instinctive, response to a horrid and repulsive stimulus may be aggression while another's may be cold indifference. Reynaldo's reaction on that fateful December evening was fear, awesome and paralyzing fear. Reynaldo indeed testified that he was afraid for his life, "because they had guns." However, he added, when asked by Presiding Justice Pamaran "Are you not willing to die for your father?", that " I could not think anymore at that time, Your Honor." 66 Be that as it may, he was well aware that should he have, at the very least, been spotted by the assailants, he would have suffered the same gory fate as that of his father.But could Reynaldo have mistaken somebody else for appellant considering that he merely recognized the appellant through the latter's voice and bodily gestures?We think not.Reynaldo's Identification of the appellant is sufficiently clear. Reynaldo has become very familiar with the appellant's voice, he having heard the appellant speak many times on different public occasions, the latter having been the barangay captain of barangay Mabuhay since 1972. 67 For the same reason is Reynaldo familiar with the appellant's bodily gestures. 68 More importantly, the scene of the crime was not immersed in darkness. The road, in fact, was illuminated by light coming from a lamp post. 69

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We, likewise, do not entertain any doubt as to the veracity of Oscar Cerdenola's testimony.It is true that Oscar Cerdenola executed a statement 70 to the effect that the appellant had nothing to do with the death of Pascual Patiag which statement varies from his testimony in court. We, however, consider the witness' explanation on this matter, plausible.

ATTY. LEYNES:Q I am calling your attention to this portion of Exhibit "2", appearing on page 3 thereof, which I quote: "Sa iyong Sinumpaang Salaysay na ibinigay mo kay P/Sgt. Eutiquio Senal ng Valencia Police Station noong May 1983, sa iyong sagot na pang-apat na paragraph ay sinabi mo rito na mali o hindi totoo ang lahat ng naipahayag sa diyaryo na headline Cannibal sa Bukidnon 35 kataong pinulutan sa ilalim ng paragraph 4 na ang pangalan mo ay naroroon at sinabing nakita mo si Patiag na binaril at ang kanyang lamang-loob lalo na iyong atay niya ay ginawang pulutan ng mga CHDF sa pamumuno ni Arsenio Ferrera. Sinabi mo pa sa iyong sagot na hindi mo ito nakita at ito ay hindi totoo ang naisulat sa diaryo at sinabi mo na rin na ang lahat ay hindi totoo o mali. Ano naman ang masasabi mo rito?" And this is your answer to that question: "Sa isinagot ko sa aking salaysay na ibinigay kay P/Sgt. Senal ay lahat ng ito ay hindi totoo at sinagot pa rin dito na hindi ko nakita ang pangyayari pero kaya ganito ang pagkasagot ko dahil ako ay natatakot sa mga tauhan ni Ferrera at ng ako ay iniimbestigahan noon ay nandodoon sa labas ang mga tauhan ni Ferrera, at ang totoo na dapat na isagot ko ay nakita ko ang buong pangyayari tungkol sa pagpatay kay Patiag." Was that question asked of you and did you give that answer?A Yes, sir.Q Now, will you now explain why earlier in your statement you said Arsenio Ferrera threatened you personally that if you would not give this statement, Exhibit "l", you would be killed; whereas in this statement there was no statement to that effect and what you only said was that the followers or companions of Arsenio Ferrera were outside?A Because they told me if I would tell what I saw they would kill me.

xxx xxx xxxQ Why did you not inform him considering that you said you returned because you were no longer afraid of the threat of Ferrera?A Because I was afraid of Ferrera, that if I would tell about the incident they would get me during the night.Q Going back to the incident you witnessed, will you tell the Honorable Court why you ran from the scene of the killing?A I also got afraid because I might be the next.Q. At the time you ran, Patiag was already shot?A. Yes, sir.Q At what point of time did you entertain fear?A After he was shot.Q Did you not get scared when you said you saw Patiag being mauled by Ferrera and his companions?A I was afraid.Q Why did you not run?A They might bring me there.Q Why did you not run away from the scene?A Because his companions were there. They might shoot me.Q When you said Patiag was stabbed in his stomach by Ferrera, did you not get scared?A I also got afraid.Q Then why did you not run?A They might shoot me.Q Now, what was your position in the motorela when you witnessed the mauling of Patiag?A I also alighted from the motorela.Q Do you mean to say, you went down from the motorela and peeped inside the detachment room and watched the mauling of Patiag?A I could see from where I was because the door was open. 71

Moreover, witness Mayor Absalon Catarata, before whom Oscar Cerdenola swore his alleged prior inconsistent statement, testified that at the time Cerdenola was in his office, there were many people present, the office being an open place and thus accessible to anyone. 72 The mayor admitted that he was not aware whether Oscar Cerdenola was alone or not. 73 The above testimony gives us no reason to disbelieve Oscar Cerdenola's assertion that he was, indeed, picked up by the appellant and his companions at 8:00 A.M. of May 6, 1983, then brought to the police camp where he was made to sign a statement absolving the appellant of the killing of Pascual Patiag, 74 thereafter finally made to swear before Mayor Catarata of the truth of his statement. Indeed, the presence of the appellant and his companions at the time witness Oscar Cerdenola executed his alleged prior inconsistent statement could not but engender fear in the mind of the said witness considering that he actually saw the killing of Pascual Patiag. This is apart from the fact that he was "visited" by the appellant and his companions on December 10, 1982, or the day after the commission of the crime, and warned not to mention the incident to anyone lest the same fate befall him. 75

We also find Lorenzo Cerdenola's testimony worthy of credence. The fact that he admitted not seeing the slicing of a portion of flesh from the victim's thighs (as testified to by Reynaldo) should enhance, not impair (as claimed by appellant), the credibility of the witness. This is so because said witness merely testified on what he saw without concocting lies. Besides, Lorenzo declared that he went into hiding and refused to look at the bloody sight before him minutes after he witnessed the shooting of the victim by the appellant. When Lorenzo found the courage to look again, he saw the assailants carry the corpse in the direction of the CHDF detachment.On direct testimony, Oscar Cerdenola declared:

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xxx xxx xxxQ And at the first time that you saw him, did you see also this CHDF?A I have seen a person who was running after him but I was not able yet to recognize them.Q How far was the man running from the CHDF pursuing him, the first time that you saw those persons.WITNESSA That was around 20 meters, more or less.PJ PAMARANQ But the first time you saw that man running and being chased by the CHDF, did you know him already?A Not yet.FISCAL GUERREROQ Now, were you able to recognize that man running?

xxx xxx xxxWITNESSA Not yet. Not until the CHDF were able to carry him . 76

xxx xxx xxxOn cross-examination, the same witness said:

Q Who shot him if you saw him shot at?A Mr. Ferrera and his men.Q Who actually shot that man?A Mr. Arsenio Ferrera.Q How did you know that Ferrera was the one who shot that man?A Because that was what I saw. He was the one who shot.Q What happened to the man who was fired upon?A He fell down.Q And what was the relative position of the man shot and Ferrera, the one who shot?A The man who was shot was running ahead of the man who shot him.

xxx xxx xxxQ My question is, aside from shooting that man whom you saw fell down, what else did the accused do with him?A They carried him towards their camp.Q That camp which you mentioned, how far was that from the place where that man fell down?A More or less 50 meters. 77

xxx xxx xxxTo further impeach the credibility of the said witness, the appellant points to the alleged inconsistent statements made by witness, to wit:

a) . In his testimony during the trial of this case, he clearly declared that in the evening of December 9, 1982, he actually saw the appellant fired at the man (Patiag) he was chasing. However, in the statement which he gave to the CIS, PC, in answer to question No. 14 thereof, he did not mention the name of the appellant as the person whom he saw fire his gun at Patiag. His only explanation for this is the convenient excuse that he forgot to say that in Exhibit G. In fact, nowhere in Exhibit G did he Identify the person or persons, who shot Patiag.In his testimony before the trial court he clearly stated that he recognized on that particular evening Pascual Patiag as the person being chased by the appellant. He contradicted this, however, in his earlier written statement (Exhibit G) given to the CIS, PC, where he said very clearly that it was on the following day when he learned from his son Lory that it was Pascual Patiag who was shot the night before. We quote that portion:

Kinabukasan ay nalaman namin sa aking anak na si Lory na ang napatay doon ay si Pascual Patiag.We respectfully submit that this witness Lorenzo Cerdenola's Identification of the appellant as the one who shot Patiag should not be accepted due to his above contradictory statements on a material fact, ... 78

xxx xxx xxxThe variance, we believe, is too minor to actually destroy the testimony of the witness, or, for that matter, to affect the outcome of the case. It is possible that the witness may have actually forgotten to mention that the appellant was the assailant of Patiag. At any rate, there is no indication that the witness ever denied seeing the appellant actually shoot the victim.His statement, 79 executed before the CIS to the effect that he learned of Pascual Patiag's death only through his son, vis-a-vis his testimony in court, whereby he asserted that he actually recognized the victim while the crime was being committed, was explained by the witness, thus:

xxx xxx xxxQ Did you recognize him?A Yes, sir.Q Who was he?A Pascual Patiag.Q Again, I am again referring to you your question No. 14 and your answer thereto, in Exhibit G. Why did you not again Identify that the person who was shot was Pascual Patiag? In fact, in this affidavit or statement, you even admitted here that it was on the following day that you came to know the Identity of the person who was shot. Will you explain that?A Because he was near. I saw him.ATTY. LEYNES

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Q Which one is now correct, your statement before this Court or this statement marked Exhibit G where you said it was on the following day that you came to know the Identity of Pascual Patiag as the one who was shot?A Because he was just near me, about 17 meters more or less . . . .Q Please answer the question. Which one is correct?A My answer now. 80

xxx xxx xxxIt is not difficult to believe that Lorenzo Cerdenola actually recognized Patiag on the night the crime was perpetrated because he was only 17 meters away. 81 It is not important that he stated otherwise in his statement to the CIS. As he said, he was overcome by fear arising from the accused's considerable influence in the community that he chose to remain mum about the killing. But this does not impair his credibility. He declared on the witness stand:

xxx xxx xxxATTY. LEYNESQ Did you not inform the Commanding Officer of that battalion what you saw which you just narrated before this Honorable Court.A. No, sir. We were afraid to complain there.Q Why would you be afraid when the entire place of Mabuhay has been placed under the control of the battalion of the Philippine Army?A Because we were afraid of Mr. Ferrera and his men, and besides, we evacuated to Valencia since December 17, so I do not know anything about them anymore. 82

xxx xxx xxxWe are convinced that witness Lorenzo was indeed overcome by his fear of the appellant. Verily, a witness' failure to reveal what he knows due to fear of reprisal cannot weaken his credibility. 83

The appellant further argues that there is no evidence of motive. On this score, suffice it to reiterate our ruling in a great number of cases. Motive is essential to conviction in murder cases only when there is doubt as to the Identity of the culprit, not when the accused has been positively Identified as the assailant. 84

There is truth to the appellant's claim that the narrations of events given by the witnesses were not in complete accord with each other. We say, however, that the variances can be attributed to the fact that different persons have diverse impressions and perceptions of a startling event. On the other hand, the testimonies of two or more witnesses would be under a serious cloud if their declarations tallied in their minutes details, for then, that would not be natural. That would indicate that the testimonies were rehearsed.In fine, we hold that the discrepancies in the testimonies of the aforenamed witnesses as pointed to by the appellant are not substantial and do not detract from the veracity of the essential fact testified to by them, i.e., that they saw the appellant and his companions kill the victim, Pascual Patiag. Their credibility remains solid, unimpaired by insignificant inconsistencies that are patently attributable only to the frailty of memory and not to a willful desire to commit falsehood.On the defense of alibi, we find no justifiable reason for reversing the findings of the trial court on this matter.The appellant claims that he was at Catumbalon, a barangay 8 kilometers away from Mabuhay or 5 kilometers away by short cut, from December 7 to December 12, 1982, in response to a directive issued by one Lt. Emiliano Jasmin for him to augment the CHDF force of that barangay as there was rumor of an impending NPA attack. 85The appellant maintains that he never left said barangay for seven days. 86 Manolo Gener, Barangay Captain of Catumbalon declared in court that he and the appellant conversed with each other up to about 11:00 on the night of December 9, 1982. 87We cannot fault the Sandiganbayan's ruling denying this defense of alibi:

xxx xxx xxxAccused Arsenio B. Ferrera having been positively Identified by no less than three (3) eyewitnesses whose credibility and truthfulness there is no ground to be little and impugn, the defense of alibi is unavailing. Moreover, the defense version that he (Arsenio Ferrera) went to the adjacent barangay of Catumbalon on December 7 and stayed there at until December 12, 1982 is as implausible as it is repugnant to reason and human experience, For instance, assuming that Lt. Jasmin issued a directive (Exhibit 3) calling for an augmentation team from Mabuhay CHDF to go on red alert in barangay Catumbalon for a possible NPA attack in said place, Ferrera could have just sent the required number of men without himself joining such group so as not to abandon his own barangay for a considerable length of time. It was decidedly unwise and imprudent for a barangay captain to leave his barangay for several days at a time when the security of his own community was equally threatened by subversible elements. Besides, the short distance of five to eight kilometers between barangays Mabuhay and Catumbalon did not make it physically impossible for accused Arsenio Ferrera to have gone to the scene of the crime at the approximate time of its commission. By foot it would only take less than an hour and by any ride a much shorter time to commute between barangays Mabuhay and Catumbalon.All things viewed in correct perspective, We cannot sustain the defense of alibi interposed by accused Ferrera. 88

xxx xxx xxxIndeed, consistently and in a long line of decisions the Court has ruled that alibi is not a good defense where it was not physically impossible for the accused to be at the scene of the crime at the time of its commission. 89

Furthermore, prosecution witness Basilio Domingo, a school teacher, claimed that he was ridiculed by the appellant and his fellow CHDF members in the morning of December 10, 1982, or the day following the killing of the victim. At that time the appellant should have been at Barangay Catumbalon according to his own alibi. 90 The witness narrated in court how he was made to dance the "pearly-shell" on top of the beds and made to crawl on the floor at the point of a carbine. 91 He also averred that he saw the appellant on December 8, 1982 at the CHDF headquarters, 92which disputes the appellant's alibi covering allegedly the uninterrupted period from December 7 to December 12, 1982. It is clear that the appellant has not sufficiently proven his alibi. In People v. Berdida, et al, we said:

xxx xxx xxx

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As this Court stated in People vs. Constante, L-14639, December 28, 1964, the defense of alibi is an issue of fact that hinges on credibility; that the credibility of an alibi depends so much on the credibility of the witnesses who seek to establish it; and that, in this respect, the relative weight which the trial judge assigns to the testimony of said witnesses must, unless patently and clearly inconsistent with the evidence on record, be accepted. For, as is well recognized, his proximate contact with those who take to the witness chair places him, compared to appellate Justices, in the more competent position to discriminate between the true and the false.And in the present appeal, we find no warrant to depart from the lower court's finding on defendants-appellants' defense of alibi. 93

xxx xxx xxxWe reiterate, the defense of alibi is worthless in the face of positive Identification by credible prosecution witnesses, pointing to the accused as the perpetrators of the crime. 94

From the facts established, we shall now determine the crime committed by the herein appellant. The evidence on record unquestionably points to the commission of the capital offense that is murder qualified by treachery with the aggravating circumstance of taking advantage of public office.The lower court found that the crime committed was qualified by abuse of superior strength which absorbs aid of armed men and treachery. 95 We disagree in this regard. It is the other way around. In a long line of cases, we have held that abuse of superior strength and aid of armed men, when present with treachery, are absorbed or included in the latter. 96

There was treachery because at the time of the attack, the victim was not in a position to defend himself. After having been maltreated, then stabbed, and while in flight the victim was chased as though he was a wounded quarry and in that defenseless state was shot from behind by the appellant. The sudden and unexpected shooting of the victim with a carbine truly constitutes treachery. 97 It is also quite obvious that the offenders consciously adopted the particular form of attack and employed means which tended directly and especially to insure its execution without risk to themselves arising from the defense which the offended party might have put up.We cannot appreciate nighttime as an aggravating circumstance because there is no showing that it was purposely sought by the appellant and his companions to insure the accomplishment of their dastardly objective. It was merely coincidental that the slaying took place when it was already dark. It was at around 7:00 in the evening when the victim passed by the CHDF headquarters where the killers were waiting to pounce on him. Nonetheless, the rule is that nocturnity is absorbed in treachery if the former cannot be perceived distinctly from the facts obtaining. 98 Thus, in this case, nighttime cannot be separately appreciated as an aggravating circumstance. 99

Neither can we appreciate ignominy for the reason that the victim was already dead when the appellant and company sliced portions of his body. The cutting of flesh from the thighs of the victim after killing him did not add ignominy to the natural effects of the act. 100The circumstance of outraging or scoffing at the corpse cannot also be taken into consideration. The trial court correctly disregarded the same as a qualifying circumstance because it is not clearly alleged in the information. 101Finally, we agree with the trial court in its finding that the appellant, a CHDF Commander and Barangay Captain at the time of this barbarity with patent tinges of cannibalism, took advantage of his public position in committing the crime. We quote:

xxx xxx xxx... the presence of the aggravating circumstance of taking advantage of a public position under par. 1 of Article 14, R.P.C. cannot be overlooked. When accused Arsenio B. Ferrera stopped the "motorela" of the victim in front of the CHDF headquarters in Mabuhay, Valencia, Bukidnon that unpleasant night of December 9, 1982, Ferrera was ostensibly illicitly asserting his authority as barangay captain concurrently CHDF head and were it not for the abused power of the latter, the victim would not have meekly obeyed the command for him to go down from the "motorela" and to enter the camp with Ferrera, et al. What is more, it is a settled doctrine that mere failure of official duty, such as the failure of accused Ferrera to maintain law and order in his barangay, suffices to aggravate criminal liability under paragraph 1 of Article 14 of the Revised Penal Code. Instead of leading his constituency in peaceful and orderly co-existence, accused Ferrera led his CHDF men to brutalize innocent civilians. Granting that the victim was a suspected NPA member or sympathizer, it was no legal justification to harm and kill him. What Ferrera could have lawfully done in the premises would have been to report the matter to the military authorities so that the suspect could be proceeded against in accordance with law. 102xxx xxx xxx

The trial court's finding as to the amount of damages to be awarded is hereby affirmed, except as to the amount of actual damages which we increase from P15,000.00 to P30,000.00. 103 We, however, affirm the grant of P39,000 for unearned income and P50,000.00 as and for moral damages.WHEREFORE, the judgment appealed from is AFFIRMED in toto. The appellant is hereby declared guilty of murder qualified by treachery. The offense being attended by one aggravating circumstance (taking advantage of public office), with no mitigating circumstance to offset it, the penalty provided in Article 248 (1) of the Revised Penal Code is hereby imposed in its maximum period (death). In view, however, of the provisions of the 1987 Constitution abolishing the death penalty, the appellant's sentence is commuted to reclusion perpetua. 104 The indemnity to be paid is P30,000.00. The grant of P39,000.00 and P50,000.00 as and for further actual damages and moral damages respectively, stands.With costs against the appellant.SO ORDERED.Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Baguio CitySECOND DIVISION

G.R. No. 190569 April 25, 2012P/INSP. ARIEL S. ARTILLERO, Petitioner, vs.

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ORLANDO C. CASIMIRO, Overall Deputy Ombudsman, Office of the Deputy Ombudsman; BERNABE D. DUSABAN, Provincial Prosecutor, Office of the Provincial Prosecutor of Iloilo; EDITO AGUILLON, Brgy. Capt., Brgy. Lanjagan, Ajuy, Iloilo, Respondents.

D E C I S I O NSERENO, J.:This case pertains to the criminal charge filed by Private Inspector Ariel S. Artillero (petitioner) against Barangay Captain Edito Aguillon (Aguillon) for violation of Presidential Decree No. (P.D.) 18661 as amended by Republic Act No. (R.A.) 8249.Petitioner is the Chief of Police of the Municipal Station of the Philippine National Police (PNP) in Ajuy, Iloilo.2According to him, on 6 August 2008, at about 6:45 in the evening, the municipal station received information that successive gun fires had been heard in Barangay Lanjagan, Ajuy Iloilo. Thus, petitioner, together with Police Inspector Idel Hermoso (Hermoso), and Senior Police Officer (SPO1) Arial Lanaque (Lanaque), immediately went to the area to investigate.3

Upon arriving, they saw Paquito Panisales, Jr. (Paquito)4 standing beside the road, wearing a black sweat shirt with a "Barangay Tanod" print.5 They asked Paquito if he had heard the alleged gunshots, but he answered in the negative.Petitioner, Hermoso, and Lanaque decided to investigate further, but before they could proceed, they saw that Paquito had "turned his back from us that seems like bragging his firearm to us flagrantly displayed/tucked in his waist whom we observed to be under the influence of intoxicating odor."6 Then, they frisked him to "verify the firearm and its supporting documents."7 Paquito then presented his Firearm License Card and a Permit to Carry Firearm Outside Residence (PTCFOR).Thereafter, they spotted two persons walking towards them, wobbling and visibly drunk. They further noticed that one of them, Aguillon, was openly carrying a rifle, and that its barrel touched the concrete road at times.8Petitioner and Hermoso disarmed Aguillon. The rifle was a Caliber 5.56 M16 rifle with Serial Number 101365 and with 20 live ammunitions in its magazine.According to petitioner and Hermoso, although Aguillon was able to present his Firearm License Card, he was not able to present a PTCFOR.Petitioner arrested Paquito, Aguillon and his companion Aldan Padilla, and brought them to the Ajuy Municipal Police Station.9

Paquito was released on the same night, because he was deemed to have been able to comply with the requirements to possess and carry firearm.10 Thereafter, Aguillon was detained at the police station, but was released from custody the next day, 7 August 2008, after he posted a cash bond in the amount of P 80,000. The present Petition does not state under what circumstances or when Padilla was released.On 12 August 2008, petitioner and Hermoso executed a Joint Affidavit11 alleging the foregoing facts in support of the filing of a case for illegal possession of firearm against Aguillon. Petitioner also endorsed the filing of a Complaint against Aguillon through a letter12 sent to the Provincial Prosecutor on 12 August 2008.For his part, Aguillon executed an Affidavit swearing that petitioner had unlawfully arrested and detained him for illegal possession of firearm, even though the former had every right to carry the rifle as evidenced by the license he had surrendered to petitioner. Aguillon further claims that he was duly authorized by law to carry his firearm within his barangay. 13

According to petitioner, he never received a copy of the Counter-Affidavit Aguillon had filed and was thus unable to give the necessary reply.14

In a Resolution15 dated 10 September 2008, the Office of the Provincial Prosecutor of Iloilo City recommended the dismissal of the case for insufficiency of evidence. Assistant Provincial Prosecutor Rodrigo P. Camacho (Asst. Prosecutor) found that there was no sufficient ground to engender a well-founded belief that Aguillon was probably guilty of the offense charged. The Asst. Prosecutor also recommended that the rifle, which was then under the custody of the PNP Crime Laboratory, be returned to Aguillon. Petitioner claims that he never received a copy of this Resolution.Thereafter, Provincial Prosecutor Bernabe D. Dusaban (Provincial Prosectuor Dusaban) forwarded to the Office of the Deputy Ombudsman the 10 September 2008 Resolution recommending the approval thereof.16

In a Resolution17 dated 17 February 2009, the Office of the Ombudsman, through Overall Deputy Ombudsman Orlando C. Casimiro (Deputy Ombudsman Casimiro), approved the recommendation of Provincial Prosectuor Dusaban to dismiss the case. It ruled that the evidence on record proved that Aguillon did not commit the crime of illegal possession of firearm since he has a license for his rifle. Petitioner claims that he never received a copy of this Resolution either.18

On 13 April 2009, Provincial Prosectuor Dusaban received a letter from petitioner requesting a copy of the following documents:1. Copy of the Referral letter and the resolution if there is any which was the subject of the said referral to the Office of the Ombudsman, Iloilo City; and2. Copy of the counter affidavit of respondent, Edito Aguillon and/or his witnesses considering that I was not furnished a copy of the pleadings filed by said respondent.19

On 22 June 2009, petitioner filed a Motion for Reconsideration (MR)20 of the 17 February 2009 Resolution, but it was denied through an Order dated 23 July 2009.21 Thus, on 8 December 2009, he filed the present Petition for Certiorari22 via Rule 65 of the Rules of Court.According to petitioner, he was denied his right to due process when he was not given a copy of Aguillon’s Counter-affidavit, the Asst. Prosecutor’s 10 September 2008 Resolution, and the 17 February 2009 Resolution of the Office of the Ombudsman. Petitioner also argues that public respondents’ act of dismissing the criminal Complaint against Aguillon, based solely on insufficiency of evidence, was contrary to the provisions of P.D. 1866 and its Implementing Rules and Regulations (IRR).23 He thus claims that the assailed Resolutions were issued "contrary to law, and/or jurisprudence and with grave abuse of discretion amounting to lack or excess of jurisdiction."24

The present Petition contains the following prayer:WHEREFORE, premises considered petitioner most respectfully prays:

1. That this Petition for Certiorari be given due course;2. That a Decision be rendered granting the petition by issuing the following:

a. Writ of Certiorari nullifying and setting aside the Order dated July 23, 2009 and dated February 17, 2009 both of the Office of the Ombudsman in OMB V-08-0406-J and the Resolution dated September 10, 2008 of the Office of the Provincial Prosecutor of Iloilo in I.S. No. 2008-1281 (Annexes A, C and D, respectively);b. To reverse and set aside said Orders and Resolution (Annexes A, C and D, respectively) finding PROBABLE CAUSE of the crime of Violation of Presidential Decree No. 1866 as amended by R.A. 8294 and other applicable laws and to direct the immediate filing of the information in Court against private respondent EDITO AGUILLON.

Such other relief just and equitable are likewise prayed for.25 (Emphasis in the original.)

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In his Comment,26 Aguillon submits that the present Petition should not be given due course based on the following grounds:a. The Deputy Ombudsman found that there was no sufficient evidence to warrant the prosecution for violation of P.D. No. 1866 as amended;b. The present Petition is "frivolous and manifestly prosecuted for delay;"27

c. The allegations raised are too unsubstantial to merit consideration, because "Petitioner failed to specifically allege the manner in which the alleged Grave Abuse was committed by Respondent Deputy Ombudsman;"28 andd. The Deputy Ombudsman’s findings are supported by substantial evidence.

Petitioner claims that Provincial Prosecutor Dusaban should have given him a copy of Aguillon’s Counter-affidavit. In support of this claim, petitioner cites Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, which reads:(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.Petitioner faults the Asst. Prosecutor and the Office of the Ombudsman for supposedly committing grave abuse of discretion when they failed to send him a copy of the 10 September 2008 and 17 February 2009 Resolutions.A perusal of the records reveal that in both the 10 September 2008 and 17 February 2009 Resolutions, the PNP Crime Laboratory and petitioner were included in the list of those who were furnished copies of the foregoing Resolutions.29 Even though his name was listed in the "copy furnished" section, petitioner never signed to signify receipt thereof. Thus, none of herein respondents raise this fact as a defense. In fact, they do not even deny the allegation of petitioner that he never received a copy of these documents.Aguillon does not deny that he never sent a copy of his counter-affidavit to petitioner. For his part, Provincial Prosecutor Dusaban explained in his Comment,30 that he was not able to give petitioner a copy of Aguillon’s Counter-affidavit and the 10 September 2008 Resolution, because "when petitioner was asking for them, the record of the case, including the subject Resolution, was sent to the Office of the Ombudsman for the required approval."31

As further proof that petitioner was not sent a copy of the 10 September 2008 Resolution, it can be seen from the document itself that one Atty. Jehiel Cosa signed in a "care of" capacity to signify his receipt thereof on behalf of petitioner, only on 23 June 2009 or after the latter’s 12 April 2009 letter-request to Provincial Prosecutor Dusaban.Nevertheless, the provincial prosecutor is of the opinion that petitioner was never deprived of his due process rights, to wit:8. Even granting that private respondent Edito Aguillion failed to furnish the petitioner with a copy of his counter-affidavit as required of him by the Rules, petitioner was never deprived of anything. As aptly said by the Office of the Overall Deputy Ombudsman in its Order dated 23 July 2009, "Complainant added that he was never furnished copies of the Counter-Affidavit of respondent nor of the Resolution of the Office of the Provincial Posecutor, Iloilo City.""Anent the claim of the complainant that he was not furnished with a copy of the Resolution dated 10 September 2008 of the Office of the Provincial Prosecutor, Iloilo City, said Resolution did not attain finality until approved by the Office of the Ombudsman. Nevertheless, complainant was not deprived of due process, he can still avail to file a Motion for Reconsideration, which he did, to refute respondent’s defense."32

We agree.Petitioner insists that Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, was created "in order not to deprive party litigants of their basic constitutional right to be informed of the nature and cause of accusation against them."33

Deputy Ombudsman Casimiro contradicts the claim of petitioner and argues that the latter was not deprived of due process, just because he was not able to file his Reply to the Counter-affidavit. The constitutional right to due process according to the Deputy Ombudsman, is guaranteed to the accused, and not to the complainant.34

Article III, Section 14 of the 1987 Constitution, mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.35 This is a right that cannot be invoked by petitioner, because he is not the accused in this case.The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a criminal case, even they cannot claim unbridled rights in Preliminary Investigations. In Lozada v. Hernandez,36 we explained the nature of a Preliminary Investigation in relation to the rights of an accused, to wit:It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil. 209; People vs. Badilla, 48 Phil. 716). The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. (II Moran, Rules of Court, 1952 ed., p. 673). And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law". (U.S. vs. Grant and Kennedy, 18 Phil., 122).37

It is therefore clear that because a preliminary investigation is not a proper trial, the rights of parties therein depend on the rights granted to them by law and these cannot be based on whatever rights they believe they are entitled to or those that may be derived from the phrase "due process of law."A complainant in a preliminary investigation does not have a vested right to file a Reply—this right should be granted to him by law. There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accused’s counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz:(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.38

Furthermore, we agree with Provincial Prosecutor Dusaban that there was no need to send a copy of the 10 September 2008 Resolution to petitioner, since it did not attain finality until it was approved by the Office of the Ombudsman. It must be noted that the rules do not state that petitioner, as complainant, was entitled to a copy of this recommendation. The only obligation of the prosecutor, as detailed in Section 4 of Rule 112, was to forward the record of the case to the proper officer within five days from the issuance of his Resolution, to wit:SEC. 4. Resolution of investigating prosecutor and its review.—If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally

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examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.Even though petitioner was indeed entitled to receive a copy of the Counter-affidavit filed by Aguillon, whatever procedural defects this case suffered from in its initial stages were cured when the former filed an MR. In fact, all of the supposed defenses of petitioner in this case have already been raised in his MR and adequately considered and acted on by the Office of the Ombudsman.The essence of due process is simply an opportunity to be heard. "What the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of opportunity to be heard."39 We have said that where a party has been given a chance to be heard with respect to the latter’s motion for reconsideration there is sufficient compliance with the requirements of due process.40

At this point, this Court finds it important to stress that even though the filing of the MR cured whatever procedural defect may have been present in this case, this does not change the fact that Provincial Prosecutor Dusaban had the duty to send petitioner a copy of Aguillon’s Counter-affidavit. Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, grants a complainant this right, and the Provincial Prosecutor has the duty to observe the fundamental and essential requirements of due process in the cases presented before it. That the requirements of due process are deemed complied with in the present case because of the filing of an MR by Complainant was simply a fortunate turn of events for the Office of the Provincial Prosecutor.It is submitted by petitioner that in dismissing Aguillon’s Complaint, public respondents committed grave abuse of discretion by failing to consider Memorandum Circular No. 2000-016, which was supposedly the IRR issued by the PNP for P.D. 1866.41

Petitioner fails to persuade this Court.The original IRR42 of P.D. 1866 was issued by then Lieutenant General of the Armed Forces of the Philippines (AFP) Fidel V. Ramos on 28 October 1983. The IRR provides that, except when specifically authorized by the Chief of Constabulary, lawful holders of firearms are prohibited from carrying them outside their residences, to wit:SECTION 3. Authority of Private Individuals to Carry Firearms Outside of Residence. —

a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence.b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence.c. Except as otherwise provided in Secs. 4 and 5 hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have the prior approval of the Chief of Constabulary.

By virtue of R.A. 6975,43 the PNP absorbed the Philippine Constabulary. Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latter’s licensing authority.44

On 31 January 2003, PNP Chief Hermogenes Ebdane issued Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence (Guidelines). In these Guidelines, the PNP Chief revoked all PTCFOR previously issued, thereby prohibiting holders of licensed firearms from carrying these outside their residences, to wit:4. Specific Instructions on the Ban on the Carrying of Firearms:

a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed.b. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees.

Section 4 of the IRR lists the following persons as those authorized to carry their duty-issued firearms outside their residences, even without a PTCFOR, whenever they are on duty:SECTION 4. Authority of Personnel of Certain Civilian Government Entities and Guards of Private Security Agencies, Company Guard Forces and Government Guard Forces to Carry Firearms. — The personnel of the following civilian agencies commanding guards of private security agencies, company guard forces and government guard forces are authorized to carry their duty issued firearms whenever they are on duty detail subject to the specific guidelines provided in Sec. 6 hereof:

a. Guards of the National Bureau of Prisons, Provincial and City Jails;b. Members of the Bureau of Customs Police, Philippine Ports Authority Security Force, and Export Processing Zones Authority Police Force; and xc. Guards of private security agencies, company guard forces, and government guard forces.

Section 5 of the guidelines, on the other hand, enumerates persons who have the authority to carry firearms outside their residences, viz:5. The following persons may be authorized to carry firearms outside of residence.

a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger.b. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days.c. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration.d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person.

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e. Authorized members of the Diplomatic Corps.It is true therefore, that, as petitioner claims, a barangay captain is not one of those authorized to carry firearms outside their residences unless armed with the appropriate PTCFOR under the Guidelines.45

However, we find merit in respondents’ contention that the authority of Aguillon to carry his firearm outside his residence was not based on the IRR or the guidelines of P.D. 1866 but, rather, was rooted in the authority given to him by Local Government Code (LGC).In People v. Monton,46 the house of Mariano Monton—the Barrio Captain of Bacao, General Trias, Cavite—was raided, and an automatic carbine with one long magazine containing several rounds of ammunition was found hidden under a pillow covered with a mat. He was charged with the crime of illegal possession of firearm, but this Court acquitted him on the basis of Section 88(3) of Batas Pambansa Bilang 337(B.P. 337), the LGC of 1983, which reads:In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearms within his territorial jurisdiction subject to existing rules and regulations on the possession and carrying of firearms.Republic Act No. 7160, the LGC of 1991, repealed B.P. 337. It retained the foregoing provision as reflected in its Section 389 (b), viz:

CHAPTER 3 - THE PUNONG BARANGAYSEC. 389. Chief Executive: Powers, Duties, and Functions.

x x x x x x x x x(b) In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearm within his territorial jurisdiction, subject to appropriate rules and regulations.Provincial Prosecutor Dusaban’s standpoint on this matter is correct. All the guidelines and rules cited in the instant Petition "refers to civilian agents, private security guards, company guard forces and government guard forces." These rules and guidelines should not be applied to Aguillon, as he is neither an agent nor a guard. As barangay captain, he is the head of a local government unit; as such, his powers and responsibilities are properly outlined in the LGC. This law specifically gives him, by virtue of his position, the authority to carry the necessary firearm within his territorial jurisdiction. Petitioner does not deny that when he found Aguillon "openly carrying a rifle," the latter was within his territorial jurisdiction as the captain of the barangay.In the absence of a clear showing of arbitrariness, this Court will give credence to the finding and determination of probable cause by prosecutors in a preliminary investigation.47

This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman's investigatory powers.48 It is incumbent upon petitioner to prove that such discretion was gravely abused in order to warrant this Court’s reversal of the Ombudsman’s findings.49 This, petitioner has failed to do.The Court hereby rules that respondent Deputy Ombudsman Casimiro did not commit grave abuse of discretion in finding that there was no probable cause to hold respondent Aguillon for trial.The Dissent contends that probable cause was already established by facts of this case, which show that Aguillon was found carrying a licensed firearm outside his residence without a PTCFOR. Thus, Deputy Ombudsman Casimiro committed grave abuse of discretion in dismissing the criminal Complaint. However, even though Aguillon did not possess a PTCFOR, he had the "legal authority" to carry his firearm outside his residence, as required by P.D. 1866 as amended by R.A. 8294. This authority was granted to him by Section 389 (b) of the LGC of 1991, which specifically carved out an exception to P.D. 1866.Following the suggestion of the Dissent, prosecutors have the authority to disregard existing exemptions, as long as the requirements of the general rule apply. This should not be the case. Although the Dissent correctly declared that the prosecutor cannot peremptorily apply a statutory exception without weighing it against the facts and evidence before him, we find that the facts of the case prove that there is no probable cause to charge Aguillon with the crime of illegal possession of firearm.In interpreting Section 389 (b) of the LGC of 1991, the Dissent found that the factual circumstances of the present case show that the conditions set forth in the law have not been met. Thus, the exemption should not apply.Contrary to the allegation of the dissent, there is no question as to the fact that Aguillon was within his territorial jurisdiction when he was found in possession of his rifle.The authority of punong barangays to possess the necessary firearm within their territorial jurisdiction is necessary to enforce their duty to maintain peace and order within the barangays. Owing to the similar functions, that is, to keep peace and order, this Court deems that, like police officers, punong barangays have a duty as a peace officer that must be discharged 24 hours a day. As a peace officer, a barangay captain may be called by his constituents, at any time, to assist in maintaining the peace and security of his barangay.50 As long as Aguillon is within his barangay, he cannot be separated from his duty as a punong barangay—to maintain peace and order.As to the last phrase in Section 389 (b) of the LGC of 1991, stating that the exception it carved out is subject to "appropriate rules and regulations," suffice it to say that although P.D. 1866 was not repealed, it was modified by the LGC by specifically adding to the exceptions found in the former. Even the IRR of P.D. 1866 was modified by Section 389 (b) of the LGC as the latter provision already existed when Congress enacted the LGC. Thus, Section 389 (b) of the LGC of 1991 added to the list found in Section 3 of the IRR of P.D. 1866, which enumerated the persons given the authority to carry firearms outside of residence without an issued permit. The phrase "subject to appropriate rules and regulations" found in the LGC refers to those found in the IRR of the LGC itself or a later IRR of P.D. 1866 and not those that it has already amended.Indeed, petitioner’s mere allegation does not establish the fact that Aguillon was drunk at the time of his arrest.1âwphi1This Court, however, is alarmed at the idea that government officials, who are not only particularly charged with the responsibility to maintain peace and order within their barangays but are also given the authority to carry any form of firearm necessary to perform their duty, could be the very same person who would put their barangays in danger by carelessly carrying high-powered firearms especially when they are not in full control of their senses.While this Court does not condone the acts of Aguillon, it cannot order the prosecutor to file a case against him since there is no law that penalizes a local chief executive for imbibing liquor while carrying his firearm. Neither is there any law that restricts the kind of firearms that punong barangays may carry in the performance of their peace and order functions. Unfortunately, it also appears that the term "peace and order function" has not been adequately defined by law or appropriate regulations.WHEREFORE, we DISMISS the Petition. We AFFIRM the Resolution of the Office of the Provincial Prosecutor dated 10 September 2008, as well as the Resolution and the Order of the Office of the Ombudsman dated 17 February 2009 and 23 July 2009, respectively.Let a copy of this Decision be served on the President of the Senate and the Speaker of the House of Representatives for whatever appropriate action they may deem warranted by the statements in this Decision regarding the adequacy of laws governing the carrying of firearms by local chief executives.No costs.

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SO ORDERED.MARIA LOURDES P. A. SERENOAssociate JusticeWE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

ARTURO D. BRIONAssociate Justice

JOSE PORTUGAL PEREZAssociate Justice

BIENVENIDO L. REYESAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaSECOND DIVISION

G.R. No. 190889 January 10, 2011ELENITA C. FAJARDO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O NNACHURA, J.:At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the reversal of the February 10, 2009 Decision1 of the Court of Appeals (CA), which affirmed with modification the August 29, 2006 decision2 of the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No. 1866, as amended.

The facts:Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows:That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and there, knowingly, willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number, two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan.3

When arraigned on March 25, 2004, both pleaded not guilty to the offense charged.4 During pre-trial, they agreed to the following stipulation of facts:1. The search warrant subject of this case exists;2. Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not live therein;4. Both accused were not duly licensed firearm holders;5. The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28, 2002; and6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of August 27, 2002.5

As culled from the similar factual findings of the RTC and the CA,6 these are the chain of events that led to the filing of the information:In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations Group (PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the residence of petitioner were indiscriminately firing guns.

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Along with the members of the Aklan Police Provincial Office, the elements of the PISOG proceeded to the area. Upon arrival thereat, they noticed that several persons scampered and ran in different directions. The responding team saw Valerio holding two .45 caliber pistols. He fired shots at the policemen before entering the house of petitioner.Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her shorts, after which, she entered the house and locked the main door.To prevent any violent commotion, the policemen desisted from entering petitioner’s house but, in order to deter Valerio from evading apprehension, they cordoned the perimeter of the house as they waited for further instructions from P/Supt. Mendoza. A few minutes later, petitioner went out of the house and negotiated for the pull-out of the police troops. No agreement materialized.At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house, saw Valerio emerge twice on top of the house and throw something. The discarded objects landed near the wall of petitioner’s house and inside the compound of a neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial number. The recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in applying for and obtaining a search warrant.The warrant was served on petitioner at 9:30 a.m. Together with a barangay captain, barangay kagawad, and members of the media, as witnesses, the police team proceeded to search petitioner’s house. The team found and was able to confiscate the following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their authority to possess the confiscated firearms and the two recovered receivers, a criminal information for violation of P.D. No. 1866, as amended by Republic Act (R.A.) No. 8294, was filed against them.For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was defective because the allegation contained in the application filed and signed by SPO1 Tan was not based on his personal knowledge. They quoted this pertinent portion of the application:That this application was founded on confidential information received by the Provincial Director, Police Supt. Edgardo Mendoza.7

They further asserted that the execution of the search warrant was infirm since petitioner, who was inside the house at the time of the search, was not asked to accompany the policemen as they explored the place, but was instead ordered to remain in the living room (sala).Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared by the raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team arrived. She averred that such situation was implausible because she was wearing garterized shorts and a spaghetti-strapped hanging blouse.8

Ruling of the RTCThe RTC rejected the defenses advanced by accused, holding that the same were already denied in the Orders dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search Warrant and Demurrer to Evidence. The said Orders were not appealed and have thus attained finality. The RTC also ruled that petitioner and Valerio were estopped from assailing the legality of their arrest since they participated in the trial by presenting evidence for their defense. Likewise, by applying for bail, they have effectively waived such irregularities and defects.In finding the accused liable for illegal possession of firearms, the RTC explained:Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his separation from his service for going on absence without leave (AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As a former soldier, undoubtedly, he can assemble and disassemble firearms.It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The logical explanation is that those items are stolen property.x x x xThe rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have no bearing whatsoever.x x x xx x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.x x x xTo convict an accused for illegal possession of firearms and explosive under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive (Exhibit G).The judicial admission of the accused that they do not have permit or license on the two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.9

Consequently, petitioner and Valerio were convicted of illegal possession of firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which provides:

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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.Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to twelve (12) years of prision mayor, and to pay a fine of P30,000.00.On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.Ruling of the CAThe CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law, and held that the search warrant was void based on the following observations:[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement on that point during the application. Also, he failed to attach to the application a certification to that effect from the Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no explanation given why said certification was not presented, or even deemed no longer necessary, during the application for the warrant. Such vital evidence was simply ignored.10

Resultantly, all firearms and explosives seized inside petitioner’s residence were declared inadmissible in evidence. However, the 2 receivers recovered by the policemen outside the house of petitioner before the warrant was served were admitted as evidence, pursuant to the plain view doctrine.Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20) days of prision correccional, and ordered to pay a P20,000.00 fine.Petitioner moved for reconsideration,11 but the motion was denied in the CA Resolution dated December 3, 2009.12 Hence, the present recourse.At the onset, it must be emphasized that the information filed against petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.:Sec. 13. Duplicity of offense. – A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.A reading of the information clearly shows that possession of the enumerated articles confiscated from Valerio and petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as amended by R.A. No. 8294.13Illegal possession of two (2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of the said section, viz.: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.14

On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is penalized under paragraph 1, which states: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 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.15

This is the necessary consequence of the amendment introduced by R.A. No. 8294, which categorized the kinds of firearms proscribed from being possessed without a license, according to their firing power and caliber. R.A. No. 8294 likewise mandated different penalties for illegal possession of firearm according to the above classification, unlike in the old P.D. No. 1866 which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the old law reads:Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. – The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis ours.)By virtue of such changes, an information for illegal possession of firearm should now particularly refer to the paragraph of Section 1 under which the seized firearm is classified, and should there be numerous guns confiscated, each must be sorted and then grouped according to the categories stated in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized firearms in one information, and state Section 1, P.D. No. 1866 as the violated provision, as in the instant case,16 because different penalties are imposed by the law, depending on the caliber of the weapon. To do so would result in duplicitous charges.Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and Valerio failed to raise this issue during arraignment. Their failure constitutes a waiver, and they could be convicted of as many offenses as there were charged in the information.17 This accords propriety to the diverse convictions handed down by the courts a quo.Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant that led to their confiscation, is now beyond the province of our review since, by virtue of the CA’s Decision, petitioner and Valerio have been effectively acquitted from the said charges. The present review is consequently only with regard to the conviction for illegal possession of a part of a firearm.The IssuesPetitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come within the purview of the plain view doctrine. She argues that no valid intrusion was attendant and that no evidence was adduced to prove that she was with Valerio when he threw the receivers. Likewise

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absent is a positive showing that any of the two receivers recovered by the policemen matched the .45 caliber pistol allegedly seen tucked in the waistband of her shorts when the police elements arrived. Neither is there any proof that petitioner had knowledge of or consented to the alleged throwing of the receivers.Our RulingWe find merit in the petition.First, we rule on the admissibility of the receivers. We hold that the receivers were seized in plain view, hence, admissible.No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2, of the Constitution, which states:Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same article –(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a warrantless search and seizure may be admissible under any of the following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right against unreasonable searches and seizures.18

Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence.19 It 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; and (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.20

Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol outside petitioner’s house falls within the purview of the plain view doctrine.First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the premises was justified by the fact that petitioner and Valerio were earlier seen respectively holding .45 caliber pistols before they ran inside the structure and sought refuge. The attendant circumstances and the evasive actions of petitioner and Valerio when the law enforcers arrived engendered a reasonable ground for the latter to believe that a crime was being committed. There was thus sufficient probable cause for the policemen to cordon off the house as they waited for daybreak to apply for a search warrant.Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that the things thrown might be contraband items, or evidence of the offense they were then suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol.The pertinent portions of SPO2 Nava’s testimony are elucidating:

Q When you arrived in that place, you saw policemen?A Yes, sir.Q What were they doing?A They were cordoning the house.Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you?A Deluso told me that a person ran inside the house carrying with him a gun.Q And this house you are referring to is the house which you mentioned is the police officers were surrounding?A Yes, sir.Q Now, how long did you stay in that place, Mr. Witness?A I stayed there when I arrived at past 10:00 o’clock up to 12:00 o’clock the following day.Q At about 2:00 o’clock in the early morning of August 28, 2002, can you recall where were you?A Yes, sir.Q Where were you?A I was at the back of the house that is being cordoned by the police.Q While you were at the back of this house, do you recall any unusual incident?A Yes, sir.Q Can you tell the Honorable Court what was that incident?A Yes, sir. A person went out at the top of the house and threw something.Q And did you see the person who threw something out of this house?A Yes, sir.x x x xQ Can you tell the Honorable Court who was that person who threw that something outside the house?A It was Zaldy Valerio.COURT: (to witness)Q Before the incident, you know this person Zaldy Valerio?A Yes, sir.Q Why do you know him?A Because we were formerly members of the Armed Forces of the Philippines.

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x x x xPROS. PERALTA:Q When you saw something thrown out at the top of the house, did you do something if any?A I shouted to seek cover.x x x xQ So, what else did you do if any after you shouted, "take cover?"A I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where something was thrown.Q What did you see if any?A I saw there the lower [part] of the receiver of cal. 45.x x x xQ Mr. Witness, at around 4:00 o’clock that early morning of August 28, 2002, do you recall another unusual incident?A Yes, sir.Q And can you tell us what was that incident?A I saw a person throwing something there and the one that was thrown fell on top of the roof of another house.Q And you saw that person who again threw something from the rooftop of the house?A Yes, sir.Q Did you recognize him?A Yes, sir.Q Who was that person?A Zaldy Valerio again.x x x xQ Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?A I was on the road in front of the house.Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house?A He was on top of the house.x x x xQ Later on, were you able to know what was that something thrown out?A Yes, sir.Q What was that?A Another lower receiver of a cal. 45.x x x xQ And what did he tell you?A It [was] on the wall of another house and it [could] be seen right away.x x x xQ What did you do if any?A We waited for the owner of the house to wake up.x x x xQ Who opened the fence for you?A It was a lady who is the owner of the house.Q When you entered the premises of the house of the lady, what did you find?A We saw the lower receiver of this .45 cal. (sic)21

The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial discovery was indubitably inadvertent. It is not crucial that at initial sighting the seized contraband be identified and known to be so. The law merely requires that the law enforcer observes that the seized item may be evidence of a crime, contraband, or otherwise subject to seizure.Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for their possession, however, should fall only on Valerio and not on petitioner.1avvphilThe foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of part of a firearm.In dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v. De Gracia22 are instructive:The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in

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possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.23

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof:(1) possesses a firearm or a part thereof(2) lacks the authority or license to possess the firearm.24

We find that petitioner was neither in physical nor constructive possession of the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers were thrown. None of the witnesses saw petitioner holding the receivers, before or during their disposal.At the very least, petitioner’s possession of the receivers was merely incidental because Valerio, the one in actual physical possession, was seen at the rooftop of petitioner’s house. Absent any evidence pointing to petitioner’s participation, knowledge or consent in Valerio’s actions, she cannot be held liable for illegal possession of the receivers.Petitioner’s apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into concrete evidence.Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code, which are mala in se, or in crimes, which are malum prohibitum by virtue of special law.25 The quantum of proof required by law was not adequately met in this case in so far as petitioner is concerned.The gun allegedly seen tucked in petitioner’s waistband was not identified with sufficient particularity; as such, it is impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in petitioner’s house. It is not unlikely then that the receivers later on discarded were components of the two (2) pistols seen with Valerio.These findings also debunk the allegation in the information that petitioner conspired with Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to commit the criminal act committed by Valerio.Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The constitutional presumption of innocence in her favor was not adequately overcome by the evidence adduced by the prosecution.The CA correctly convicted Valerio with illegal possession of part of a firearm.In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject firearm; and (b) the fact that the accused who possessed the same does not have the corresponding license for it.26

By analogy then, a successful conviction for illegal possession of part of a firearm must yield these requisites:(a) the existence of the part of the firearm; and(b) the accused who possessed the same does not have the license for the firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt theelements of the crime. The subject receivers - one with the markings "United States Property" and the other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them.27 His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the receivers.28

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms.29 To substantiate his statement, he submitted a certification30 to that effect and identified the same in court.31 The testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the second element.32

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable doubt.SO ORDERED.ANTONIO EDUARDO B. NACHURAAssociate JusticeWE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

DIOSDADO M. PERALTAAssociate Justice

ROBERTO A. ABADAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O NI attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

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C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.RENATO C. CORONAChief Justice

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 188612 July 30, 2012PEOPLE OF THE PHILIPPINES, Plaintiff -Appellee, vs.DIOSDADO CAMAT and MAMERTO DULAY, Accused-Appellants.

D E C I S I O NLEONARDO-DE CASTRO, J.:This is an appeal from the Decision1 dated February 27, 2009 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02429, entitled People of the Philippines v. Diosdado Camat and Mamerto Dulay, which affirmed with modification the Joint Decision2 dated October 9, 2002 of the Regional Trial Court (RTC) of Urdaneta City, Branch 46 in Criminal Case Nos. U-10498, U-10499, U-10500, U-10501, U-10502 and U-10503. The trial court found herein appellant Diosdado Camat (Camat) guilty beyond reasonable doubt of two (2) counts of the crime of Murder with the Use of Unlicensed Firearm and four (4) counts of Attempted Murder. Prior to this ruling, the same trial court, in a Decision3 dated December 6, 2000, found appellant Mamerto Dulay (Dulay) guilty beyond reasonable doubt of two (2) counts of Murder with the Use of Unlicensed Firearm and one (1) count of Frustrated Murder.Contrary to what is implied by the title of this case, the instant appeal merely affects Camat and not Dulay since the subject of this appeal is the October 9, 2002 Joint Decision of the trial court wherein only Camat was convicted. Moreover, in the Appellants’ Brief, the relief prayed for was the reversal of only the October 9, 2002 Joint Decision and there was no reference to the December 6, 2000 Decision, containing Dulay’s conviction. This is not surprising considering that the case involving Dulay was already resolved with finality by this Court in a Resolution dated October 11, 2007 in G.R. No. 174775, entitled People of the Philippines v. Mamerto Dulay.4

The present case traces its genesis to the filing of six separate criminal informations charging the appellant Camat alias "Boyet" and his other co-accused, the accused Dulay (referred to in the title of this case), John Laurean alias "Masong," Rogelio Campos, Ibot Campos, Henry Caoile, Serafin Dulay, and Junior Lopez with the crimes of Murder with the Use of Unlicensed Firearm and Frustrated Murder. The pertinent portions of the aforementioned criminal informations read:Criminal Case No. U-10498That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot ELMER HIDALGO, inflicting upon him the following injuries:"- Gunshot wound, left wrist, medial aspect.

- Gunshot wounds, left distal third of the thigh, through and through; Point of Entrance, 1 cm. in diameter, posteriorly, circular in shape; Point of Exit, 1.4 cm. in diameter, medially, circular in shape.- Gunshot wounds, right distal third of the thigh, through and through:

1. Point of Entrance, 1 cm. in diameter, laterally, circular in shape; Point of Exit, 1.6 cms. in diameter, medially, circular in shape.2. Point of Entrance, 1 cm. in diameter laterally, circular in shape; Point of Exit, 1.7 cms. in diameter, anteriorly circular in shape.

- Gunshot wounds, through and through. Point of entrance, 1 cm. in diameter, circular in shape on the right ear anteriorly beside the right pinna trajecting the esophagus and the upper lobe of the left lung. Point of Exit, 2 cms. in diameter, left mid-axillary line, 5th intercostal space, circular in shape.- Comminuted Fracture of the distal third of the femur, right.- Homethorax, 1 liter, left.

CAUSE OF DEATH: Massive hemorrhage secondary to multiple gunshot wounds." which caused the death of said ELMER HIDALGO, to the damage and prejudice of his heirs.CONTRARY to Art. 248, Revised Penal Code, in relation to R.A. No. 8294, as amended by R.A. 7659.5

Criminal Case No. U-10499That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot MARCELINA HIDALGO, inflicting upon her the following injuries:"External Findings:

- Gunshot wound (point of entrance), 1 cm., circular in shape, parasternal line, 4th inter-costal space, left.- Gunshot wound (point of exit), 1.5 cm., circular in shape, mid-axillary line, 9th inter-costal space, right.

Internal Findings:- Gunshot wound, through and through, 1.8 cm., left auricle, heart.- Gunshot wound, through and through, 2 cm., upper lobe, liver.- Gunshot wound, through and through, 1.5 cm., upper lobe lung, right.- Hemothorax, 1.4 liters, right.

CAUSE OF DEATH: Massive hemorrhage, secondary to gunshot wound." which caused the instantaneous death of said MARCELINA HIDALGO, to the damage and prejudice of her heirs.CONTRARY to Art. 248, Revised Penal Code, in relation to R.A. No. 8294, as amended by R.A. 7659.6

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Criminal Case No. U-10500That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot JUANITO HIDALGO, inflicting upon him the following injuries:"Gunshot wound with fracture, tibia-fibula right.Peration performed: Debridement"the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said JUANITO HIDALGO, which prevented his death, to his damage and prejudice.CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.7

Criminal Case No. U-10501That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery, and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot AURELIO HIDALGO, inflicting upon him the following injuries:"Open fracture proximal third fibula right.Operation Performed: Debridement"the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said AURELIO HIDALGO, which prevented his death, to his damage and prejudice.CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.8

Criminal Case No. U-10502That on or about November 3, 1999, in the afternoon, at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shoot PEDRO HIDALGO, inflicting upon him the following injuries:

- Gunshot wound at right buttocks through and through- Point of entry: Medial aspect of right buttocks- Point of exit: Lacerated aspect of right buttocks- Avulsion thena reminence left hand the accused having thus performed all the acts of execution which would have produced the crime of MURDER as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said PEDRO HIDALGO, which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.9

Criminal Case No. U-10503That on or about November 3, 1999, in the afternoon at Barangay Anis, Laoac, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, with the use of unlicensed long and short firearms, with deliberate intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shoot RICARDO HIDALGO, inflicting upon him the following injuries:"Gunshot wound perianal area Fracture superior & inferior ramus pubis Operation performed: Explor-lap, colostomy" the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence but which nevertheless did not produce the felony by reason of causes independent of the will of the accused and that is due to the timely and adequate medical assistance rendered to said RICARDO HIDALGO, which prevented his death, to his damage and prejudice.CONTRARY to Art. 248, in relation to Arts. 6 & 50, Revised Penal Code, and R.A. No. 8294.10

At their arraignment, all the accused pleaded "Not Guilty" to the charges with the exception of accused Junior Lopez who eluded arrest and, thus, remained at large.11 Subsequent to several pre-trial conferences, trial on the merits commenced.In the Plaintiff-Appellee’s Brief,12 the prosecution narrated its version of the factual backdrop of this case, as follows:Between 3:00 o’clock and 5:00 o’clock in the afternoon of November 3, 1999, Aurelio, together with Anastacio, Juanito, Ricardo, Pedro, Marcelina, Abelardo, Elmer, all surnamed Hidalgo, Lydia Flores, some young ladies, their children, and his nephews and nieces were in front of the yard of his brother Anastacio Hidalgo (Anastacio). At that time, they were all seated and talking to each other. The houses of Aurelio and Anastacio were located in the same compound. Aurelio’s house is at the back of Anastacio’s house.While engaged in conversation, Aurelio noticed a motorcycle pass by two times. At the first pass, he noticed that only Oning Campos was on board. The second time, both Oning Campos and Pilo Cabangas were on board the motorcycle. After a few minutes, gunfire coming from the back of and directed at Aurelio’s group suddenly erupted. The gunfire came from the other side of the road in front of a three feet high concrete fence fronting the house of Anastacio. Aurelio saw both accused-appellants Diosdado Camat and Mamerto Dulay armed with long firearms shoot at his group. Although there were six other persons armed with short firearms (Henry Caoile, Junior Lopez, John Laurean, Ibot Campos, Rogelio Campos, and Serafin Dulay), standing at the back of accused-appellants, Aurelio, however, only saw accused-appellants firing their guns at his group because he saw them place their long firearms on top of the concrete fence. The gunmen were approximately six meters away from Aurelio’s group.Aurelio said that during the shooting, his aunt Marcelina Hidalgo, and his nephew were hit and Elmer Hidalgo fell down. They died on the spot. Juanito Hidalgo was hit on his right leg. Ricardo Hidalgo was hit on the buttocks. The bullet exited near his anus. Pedro Hidalgo was injured on the buttocks and left arm. Aurelio was himself hit on both legs.After shooting their victims, accused-appellants and their companions left the place going westward.

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Immediately thereafter, Aurelio and his other injured relatives were brought to the Region I Medical Center, Dagupan City. Aurelio was confined in the hospital for five days. After leaving the hospital, he was investigated by Investigator Mariano of the Laoac Police Station.Aurelio recalled that prior to the shooting incident, accused-appellant Mamerto Dulay hacked the house of Juanito Hidalgo, Aurelio’s brother, with a bolo. Juanito Hidalgo had the hacking incident blottered at the barangay.13 (Citations omitted.) (Emphasis supplied.)The defense, in the Accused-Appellants’ Brief,14 offered this summation of events:In the morning of 3 November 1999, JAIME CANDIDO accompanied accused Diosdado Camat in securing a barangay clearance as the latter was applying for a job as security guard. The next time Candido saw accused Camat was around 3:00 o’clock in the afternoon of the same day when he went to the house of accused Camat’s brother, Casimiro Camat, to have some snacks. During this time, accused Camat and his brother and two (2) other companions were working on a cabinet and a book shelf. The following day, Candido again saw accused Camat with his brother and another passenger on board a red car heading towards the highway.On 30 October 1999, CASIMIRO CAMAT went to Sta. Ana, Pampanga to attend the opening of cursillo class of Sto. Nino Brotherhood Crusade since his brother, accused Diosdado Camat, was part of the said graduating class. Casimiro and his brother spent the night in the former’s house in San Miguel, Tarlac together with Pedro Caseria who was also one of the graduates. The following day, the three (3) agreed to meet again on 2 November 1999 and proceed to Casimiro’s place in Baguio to undertake the construction of his double deck bed, cabinets and bookshelf.On 2 November 1999, Casimiro, together with his wife and daughter, met his brother and Pedro Caseria at the crossing in Binalonan and proceeded thereafter to Baguio. Upon reaching the said place, the witness first unloaded his daughter’s baggage at her dormitory before going to Burnham Park for lunch. Afterwards, he left his daughter in her dormitory and then accompanied his wife to the bus terminal for her trip back to Tarlac.The Camat brothers and Caseria subsequently proceeded to the Kayang Extension to purchase some goods for their consumption during their stay in Baguio before going to Casimiro’s house in Asin Road. Upon arriving at the said place, the three began working on the double deck bed. The next day, accused Diosdado Camat left for a while to visit Jaime Candido. When he returned, the Camat brothers and Caseria went to Benguet Electric Cooperative to pay Casimiro’s electric bill and subsequently took their lunch at Burnham Park. Thereafter, they bought some materials from the Benguet Lumber Co. and then continued their work in Casimiro’s place. In the afternoon of 4 November 1999, the Camat brothers finally left Baguio.When Casimiro was asked about the accusation against his brother, he firmly maintained that his brother was with him in Baguio from November 2 to 4, contrary to the allegation that the accused participated in a shooting incident on 3 November 1999 in Brgy. Anis, Laoac, Pangasinan.PEDRO CASERIA corroborated Casimiro Camat’s testimony that he was with the accused from November 2 to 4, 1999 to do some carpentries in Baguio.HERMINIGILDA C. JIMENEA was the proprietress of Apple’s Fastfood in Burnham Park where the accused had lunch with his brother and Pedro Caseria on 3 November 1999 During the graduation of the cursillo class in Tarlac in October 1999, accused DIOSDADO CAMAT was requested by his brother, Casimiro Camat, to do some carpentries at his house in Baguio together with Pedro Caseria. It was agreed upon that Casimiro would meet both of them at the crossing in Binalonan on 2 November 1999. On the said date, Casimiro arrived at the meeting place with his wife and daughter and let the accused and Caseria board in his car. They then proceeded to Baguio. Upon reaching the said place, Casimiro first dropped by his daughter’s dormitory to unload her baggage before proceeding to Burnham Park where they ate lunch together. Afterwards, Casimiro left his daughter at her dormitory and his wife at the bus terminal. The Camat brothers and Caseria went to Casimiro’s place in Asin Road for the construction of some woodworks.On 3 November 1999, the accused left for a while to see Jaime Candido to ask assistance in securing a barangay clearance as he was intending to seek employment as a security guard. When he returned, he went with Casimiro to the city as the latter paid his electric bill. Afterwards, they had lunch at Apple’s Fastfood in Burnham Park and then proceeded to Benguet Lumber Co. to purchase some materials before returning to Casimiro’s place for the continuation of their work. The next day, the accused left Baguio and went back home to Brgy. Caaringayan in Laoac, Pangasinan where a surprising news awaited him. His sister told him that he was being implicated in a massacre. Consequently, he rushed to the barangay captain to clarify the matter. Nonetheless, he was told to go home and just wait for the police to come.While he was alone in his house at 12:00 midnight, he noticed that a vehicle parked near his gate and five (5) armed men broke into his house. The accused hid under the stairs. When the strangers were gone, the accused immediately left his house and went to Brgy. Tiblong in San Fabian, Pangasinan.ALFREDO TAPO, the barangay captain of Brgy. Caaringayan, testified that in the evening of 4 November 1999, the accused did go to his house to ask him about the incident in Brgy. Anis.15 (Citations omitted.)In a Joint Decision dated October 9, 2002 in Criminal Case Nos. U-10498, U-10499, U-10500, U-10501, U-10502 and U-10503, the trial court found appellant Camat guilty beyond reasonable doubt of two (2) counts of Murder with the Use of Unlicensed Firearm and four (4) counts of Attempted Murder. The dispositive portion of which reads:WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Court finds:IN CRIMINAL CASE NO. U-10503:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party RICARDO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.IN CRIMINAL CASE NO. U-10502:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party PEDRO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.The accused HENRY CAOILE is acquitted of the charge. The accused Junior Lopez is still at-large.IN CRIMINAL CASE NO. U-10501:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating and mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2)

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YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party AURELIO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.IN CRIMINAL CASE NO. U-10500:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of ATTEMPTED MURDER and applying the Indeterminate Sentence Law, there being no aggravating an mitigating circumstances, hereby sentences him to suffer an imprisonment of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional in its medium period as MINIMUM to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor in its medium period, as MAXIMUM and to pay the offended party JUANITO HIDALGO the amount of P50,000.00 as moral damages and to pay the cost.The accused JOHN LAUREAN, ROGELIO CAMPOS, IBOT CAMPOS, HENRY CAOILE and SERAFIN DULAY are all ACQUITTED. The accused JUNIOR LOPEZ is still at-large.IN CRIMINAL CASE NO. U-10499:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of MURDER WITH THE USE OF UNLICENSED FIREARMS penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law and the offense having been committed with the aggravating circumstance of with the Use of an Unlicensed Firearm under Republic Act No. 8294, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law; to pay the heirs of the victim MARCELINA HIDALGO in the amount of P50,000.00 as indemnity; P200,000.00 as moral damages and to pay the cost.The accused HENRY CAOILE is ACQUITTED of the charge. The accused JUNIOR LOPEZ is still unapprehended.IN CRIMINAL CASE NO. U-10498:The accused DIOSDADO CAMAT y Sampaga alias "Boyet", GUILTY beyond reasonable doubt of the crime of MURDER WITH THE USE OF UNLICENSED FIREARMS penalized under Republic Act No. 7659 otherwise known as the Heinous Crime Law and the offense having been committed with the aggravating circumstance of with the Use of an Unlicensed Firearm under Republic Act No. 8294, hereby sentences him the ultimum supplicium of DEATH to be executed pursuant to Republic Act No. 8177 known as the Lethal Injection Law; to pay the heirs of the victim ELMER HIDALGO in the amount of P50,000.00 as indemnity; P20,000.00 as actual damages; P200,000.00 as moral damages and to pay the cost.The accused HENRY CAOILE is ACQUITTED of the charge. The accused JUNIOR LOPEZ is still unapprehended.FINALLY, it is said: "Hoc quidem per quam durum est sed ita lex scripta est," translated as follows: "The law may be exceedingly hard but the law is written."16

Since appellant Camat was sentenced to suffer the penalty of DEATH as a consequence of his conviction for two charges of Murder with the Use of Unlicensed Firearm, among others, the case was originally appealed to this Court but in conformity with our decision in People v. Mateo,17 the matter was remanded to the Court of Appeals for intermediate review.After a thorough evaluation, the appellate court merely affirmed with modification the assailed October 9, 2002 Joint Decision of the trial court in this wise:IN LIGHT OF ALL THE FOREGOING, the appeal is hereby DENIED. The joint decision dated 9 October 2002 of the Regional Trial Court, Branch 45, Urdaneta City in Criminal Cases Nos. U-10498 to U-10503 is hereby AFFIRMED WITH MODIFICATION only on the penalty imposed for murder with the use of unlicensed firearm. Accused-appellant Diosdado Camat is sentenced to suffer the penalty of reclusion perpetua for each count of murder with the use of unlicensed firearm instead of death in Criminal Cases Nos. U-10498 and U-10499, and the penalty of two (2) years, four (4) months and one (1) day of prision correccional in its medium period as MINIMUM to eight (8) years and one (1) day of prision mayor in its medium period as MAXIMUM for each count of attempted murder in Criminal Cases Nos. U-10500 to U-10503.18

Since the appeal was decided after the passage of Republic Act No. 9346 (An Act Prohibiting the Imposition of Death Penalty in the Philippines, enacted on June 24, 2006), the appellate court saw fit to modify the penalty to reclusion perpetua.Thus, Camat interposed the present appeal wherein both the prosecution and their defense merely adopted their briefs filed with the Court of Appeals. Before this Court, appellant Camat reiterates the following assignment of errors:

ITHE TRIAL COURT GRAVELY ERRED IN PRONOUNCING THE GUILT OF THE ACCUSED NOTWITHSTANDING THE INCONSISTENT AND IMPROBABLE TESTIMONIES OF THE PROSECUTION WITNESSES.

IITHE TRIAL COURT GRAVELY ERRED IN PRONOUNCING THE GUILT OF THE ACCUSED NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO ESTABLISH THEIR IDENTITIES WITH MORAL CERTAINTY.19

Essentially, the issues raised by appellant Camat boil down to whether or not his conviction was warranted upon due consideration of the evidence on record.Appellant Camat argues that his conviction was erroneous because it was based on contradictory and improbable testimonies made by prosecution witnesses who were among the surviving victims of the massacre. He maintains that these witnesses could not have possibly identified him with moral certainty as one of the gunmen because it was unlikely that they were able to see the faces of the assailants firing at them since they were more concerned with taking cover for their safety. Thus, he posits that his defense of alibi must be upheld over the supposedly weak testimonial evidence presented by the prosecution.After a careful review, we affirm the guilty verdict against appellant Camat.Article 248 of the Revised Penal Code states that:Art. 248. Murder. – Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity;2. In consideration of a price, reward, or promise;

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3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin;4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity;5. With evident premeditation;6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

As encapsulated in jurisprudence, to be liable for Murder, the prosecution must prove that: (1) a person was killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) the killing is neither parricide nor infanticide.20

We uphold the Court of Appeals’ finding that all the elements of the crime of murder concur in this instance. With regard to the first element, the prosecution was able to establish the fact of death of Marcelina and Elmer Hidalgo as shown by their death certificates21 as well as the autopsy reports22 which clearly indicate that the common cause of their untimely demise is massive hemorrhage secondary to gunshot wounds that they sustained during the shooting incident in question. The fourth element is present as well since both the victims are adults and not related by consanguinity or affinity to appellant Camat which forecloses any possibility of classifying their fatal shooting as either parricide or infanticide.As for the second element, there can be no doubt that the prosecution also proved the participation of appellant Camat in the crimes subject of this case. Appellant Camat’s defenses of alibi and denial as well as his attack on the credibility of the prosecution witnesses who positively identified him simply cannot be given credence.In the previously mentioned companion case of People v. Dulay,23 appellant Camat’s co-accused Dulay similarly introduced the issue concerning the credibility of the testimonies made by the witnesses for the prosecution who were among the survivors of the November 3, 1999 massacre, namely, Juanito, Aurelio, Pedro, and Ricardo, all surnamed Hidalgo. Given the identity of the factual circumstances of this case with the Dulay case, we see no reason to deviate from the ruling this Court laid down in Dulay, to wit:A few discrepancies and inconsistencies in the testimonies of witnesses referring to minor details do not impair their credibility. Minor inconsistencies even tend to strengthen the credibility of a witness because they discount the possibility that the testimony was rehearsed. As regards the actuations of the witnesses at the time of the incident, it is settled that there is simply no standard form of behavioral response that can be expected from anyone when confronted with a strange, startling, or frightful occurrence.24

Indeed, minor inconsistencies in the narration of facts by the witnesses do not detract from their essential credibility as long as their testimonies on the whole are coherent and intrinsically believable.25 In fact, this Court had previously held that trivial inconsistencies do not rock the pedestal upon which the credibility of the witnesses rests but enhances credibility as they manifest spontaneity and lack of scheming.26 Jurisprudence even warns against a perfect dovetailing of narration by different witnesses as it could mean that their testimonies were pre-fabricated and rehearsed.27

Since the testimonies of the prosecution witnesses were credible, this Court cannot accept appellant Camat’s defenses of alibi and denial in light of the positive identification of him as one of the gunmen involved in that dreadful massacre.It bears repeating that this Court has consistently held that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses.28 Moreover, positive identification of the accused, when categorical and consistent, and without any ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial.29

To be sure, an examination of the testimonies made by the prosecution witnesses reveals that their identification of appellant Camat as one of the culprits behind the November 3, 1999 massacre was clear and unequivocal. The relevant portions of the transcripts are quoted here:[JUANITO HIDALGO]PROS. TOMBOC: (direct examination)Q You said a gunfire came from x x x infront of your house, do you know who are firing that gun burst?A Yes sir, Mamerto Dulay and Diosdado Camat, and other companions.x x x xQ You said a burst of gunfire came from Diosdado Camat and Mamerto Dulay and his companion. What kind of firearm did Diosdado Camat fire when you saw him fired?A A long firearm, but I do not know the caliber, sir.x x x xQ When you said a burst of gunfire came from these persons. Who among the group actually make or shoot towards your direction?A The two (2) which were holding long firearm, sir.Q Who are these two (2) persons?A Mamerto Dulay and Diosdado Camat, sir.30 (Emphases supplied.)ATTY CERA: (cross-examination)Q So, Mamerto Dulay and Diosdado Camat came into your place, how far were they from where you sat?A Not less than six (6) meters, sir.Q Where was, did the group of Mamerto Dulay come as a group?A Yes sir.Q How many shots were fired if you remember?A Many sir, I cannot remember how many, sir.Q How long was the duration of the gun burst?A Successive sir.Q What particular place Diosdado Camat was standing in relation to the place where you sat?A At the eastern direction, sir.31 (Emphases supplied.)ATTY. FLORENDO: (cross-examination)Q So, the first time that you are able to notice the presence of Mamerto Dulay and Diosdado Camat was when they were already running away, am I correct?A No sir, at the time when they were at the fence.Q You mentioned a while ago before the actual shooting you did not notice anybody?

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A I was able to notice them at the time when they fired their guns, sir.Q And you are only able to notice Mamerto Dulay and Diosdado Camat aiming their guns to your direction?A Yes sir.32 (Emphases supplied.)FISCAL DUMLAO: (direct examination)Q Mr. Witness, why do you know this Marcelina Hidalgo?A She is my wife, sir.Q Where is she now?A She is dead, sir.Q Do you know the cause of death of your wife?A Yes, sir.Q What was the cause of her death?A She was shot, sir.COURT:Q Who shot her?A Camat and companions, sir.FISCAL DUMLAO:Q About this Elmer Hidalgo, do you know him?A I know him, sir.Q What happened to him?A He was also shot, sir.Q Who shot him?A Camat and company, sir.COURT:Q Did he die also?A He died Ma’am.FISCAL DUMLAO:Q When you testified, Mr. Witness, on March 10, 2001, before Hon. Judge Modesto Juanson, you were asked to point to Diosdado Camat but he was not around at that time, now, will you please stand up and look inside the courtroom if you can see one Diosdado Camat and if he is here please point to him.A (Witness pointed unto a person inside the courtroom, who, when his name was asked, he answered Diosdado Camat).x x x xATTY. MAPILI: (cross-examination)Q You have no grudge against Diosdado Camat?A None, sir.Q So there is no reason for him to shoot you because you have no grudge against him?A I do not know x x x but when we were shot he was there.33 (Emphases supplied.)[AURELIO HIDALGO]PROS. TOMBOC: (direct examination)Q At that time you heard gunfire and directed to you, do you know who are those persons who shot that gunfire?A Yes sir.Q Will you please name them, if you know?A Boyet Camat, Henry Caoile, Mamerto Dulay, Junior Lopez, John Laurean, Ibot Campos, Rogelio Campos and Serafin Dulay, sir. 34 (Emphasis supplied.)PROS. DUMLAO: (direct examination)Q Mr. witness, when you are asked to identify Boyet Camat inside the courtroom during you testimony on March 13, 2000, your answer was that, he was not here, before, is that correct?A Yes sir.Q Is this Boyet Camat already inside the courtroom now?A Yes sir, he is here.Q Will you please look around the courtroom and scan and point to this Boyet Camat if he is inside the courtroom?A He is here sir. (Witness pointing to a person seated inside the courtroom and when asked his name, answered, Diosdado Camat, alias Boyet.)Q Since when have you known this Boyet Camat before November 3, 1999?A I know him since his childhood, sir.35 (Emphases supplied.)[PEDRO HIDALGO]PROS. TOMBOC: (direct examination)Q You said that you were shot, where were you hit, in what part of your body?A (Witness is pointing at the left palm and right buttock, sir.)Q While facing east you were hit, how were you able to come to know that the gunshot came from your back?A I turned my face at my back when I heard gunshot, sir.Q You said you turned your back what did you see?A I saw John Laurean, Rogelio Campos, Ibot Campos, Mamerto Dulay, Boyet Camat, Henry Caoile, Serafin Dulay and John Lopez, sir.x x x xQ Boyet Camat?A A long firearm, sir.COURT:Q What is the name of Camat?

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A Diosdado Camat, sir.36 (Emphases supplied.)FISCAL DUMLAO: (direct examination)Q Mr. Witness, when you testified before this Honorable Court before Judge Modesto C. Juanson on April 4, 2000, you were made to identify in the court room the person of Diosdado Camat and you said before that he was not here in that hearing, if this Diosdado Camat is inside the court room now, will you please stand up and go near him and tap his shoulder?A (Witness pointed to a person inside the courtroom, who when his name was asked answered Diosdado Camat).37 (Emphases supplied.)ATTY. MAPILI: (cross-examination)Q Mr. Witness, do you remember having testified during the hearing on April 4, 2000, that you do not know who among the eight alleged assailants fired their gun?A Yes, sir, but all of them were holding guns.Q And you want to impress the Court that you remember the guns that they were carrying even though the shots were only for a few seconds?A Boyet Camat was holding long firearms, Mamerto Dulay was holding a long firearm, and the other six were holding short firearms.38 (Emphasis supplied.)[RICARDO HIDALGO]PROS. DUMLAO: (direct examination)Q Mr. witness, you testified on April 11, 2000 before this Honorable Court regarding these three (3) cases and you are asked [a] [q]uestion [on] page 6 of the transcript of stenographic notes TSN of your testimony that the persons who shot you and your companions were John Laurean, Rogelio Campos, Ibot Campos, Serafin Dulay, Boyet Camat, Henry Caoile, Mamerto Dulay and Junior Lopez. If this Boyet Camat is in the courtroom, are you now in a position to point him, Mr. witness?A Before he was not here, but now he is here, sir.Q Can you point to him?A Yes sir. (Witness pointing to a person, when asked his name, answered, Diosdado Camat.)COURT:Q Do you know the exact name of Boyet Camat?A I know they called him in the house, but I do not know the name in the school, sir.PROS. DUMLAO:Q Mr. witness, you said that in your testimony on April 11, 2000 particularly on page 10 of the tsn. The question was asked of you Mr. witness, what caliber or firearm was this Boyet holding at that time and you answered, long firearm. My question is, will you describe that long firearm?A (Witness demonstrating a long firearm of about 2 1/2 feet.)x x x xQ Why do you know Boyet Camat who answered by the name of Diosdado Camat?A He is also our former barangaymate, madam.39 (Emphases supplied.)Furthermore, appellant Camat’s sudden flight from his residence right after the November 3, 1999 massacre militated against his protestations of innocence. His reaction upon hearing reports that he was considered a suspect in the Loac massacre, was to leave his house without a word to his relatives on the pretext that he was evading armed men who were purportedly looking for him. He settled in his rest house located in San Fabian, Pangasinan where he stayed for more than a year before police officers managed to arrest him on December 25, 2000 pursuant to an outstanding warrant of arrest. When he testified in open court, he could not provide any plausible reason for his prolonged absence from his hometown and to his apparent aversion to the thought of voluntarily surrendering to the authorities in order to clear his name. The following pertinent portions of the transcript show this:FISCAL DUMLAO:Q In other words, at about 3:00 o’clock in the morning of November 5, you immediately proceeded to Tiblong, San Fabian, is that what you mean?A Yes, sir.Q You did not even talk to your mother anymore or to your sister Monica before you went to Tiblong?A No more, sir, because I walked at the ricefield.x x x xCOURT:Q Why did you not proceed to the police station in that early morning?A I already feared because the relatives of the victims might see me.Q Why did you not surrender at Manaoag Police Station?A I did not think about that anymore, sir.COURT:Continue Fiscal.FISCAL DUMLAO:Q You even passed at Mangaldan in going to Tiblong, is it not?A Yes, sir.Q You did not report to the police of Mangaldan?A I did not think of it anymore, sir.Q You passed also the Poblacion of San Fabian before going to Tiblong?A Yes, sir.Q You did not think of surrendering to the police of San Fabian?A It did not occur to my mind, sir.x x x xCOURT:Q Casimiro Camat is a member of the army, why did you not go to him to have you surrendered and tell him that you have nothing to do with the incident?A It did not occur to my mind, sir.

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x x x xCOURT:Q In that span of one year that you are hiding, did you not learn that these cases were being tried and one Mamerto Dulay was already convicted?A No, sir.COURT:Proceed.FISCAL DUMLAO:Q Immediately after you were informed that your name was involved in that massacre when you arrived coming from Baguio City on November 4, 1999 and when your sister Monica informed you that your name was involved, so as with your mother, did you not go to the police or some other police station to give your statement that you have nothing to do in that massacre considering that you were in Baguio City, morning and afternoon of November 3, 1999.A No, sir.Q It is only your first time to narrate your version of this tragedy at Laoac, this is your first time to tell the Honorable Court that you were in Baguio City in the morning and afternoon of November 3, 1999?A Yes, sir.Q From the time, Mr. Witness, that you left your house in that early morning of November 5 up to December 25 when you were arrested at Villaflor Hospital in Dagupan City, even once or twice, you did not go or visit your barangay at Anis, Laoac, Pangasinan, is that correct?A No more, sir.40

In all, the lower courts correctly appreciated appellant Camat’s unexplained departure against him. Flight in criminal law is the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention or the institution or continuance of criminal proceedings.41 In one case, this Court had stated that it is well-established that the flight of an accused is competent evidence to indicate his guilt; and flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. Indeed, the wicked flee when no man pursueth, but the innocent are as bold as lion.42

Moreover, the qualifying circumstance of treachery was adequately shown to exist in this case, thus, satisfying the third element of Murder.There is treachery or alevosia when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make.43 For alevosia to qualify the crime to Murder, it must be shown that: (1) the malefactor employed such means, method or manner of execution as to ensure his or her safety from the defensive or retaliatory acts of the victim; and (2) the said means, method and manner of execution were deliberately adopted. Moreover, for treachery to be appreciated, it must be present and seen by the witness right at the inception of the attack.44

In the recent case of People v. Nugas,45 we expounded on the essence of treachery in this manner:The essence of treachery lies in the attack that comes without warning, and the attack is swift, deliberate and unexpected, and affords the hapless, unarmed and unsuspecting victim no chance to resist or escape, thereby ensuring its accomplishment without the risk to the aggressor, without the slightest provocation on the part of the victim. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Treachery may also be appreciated when the victim, although warned of the danger to his life, is defenseless and unable to flee at the time of the infliction of the coup de grace.The testimonial evidence gathered in this case clearly indicates that the victims who were simply engaged in conversation in a private residence were caught entirely by surprise with the assailants’ swift, deliberate and unexpected attack using multiple firearms thereby negating the possibility for the victims to escape or defend themselves.However, contrary to the findings of both the trial and appellate courts, this Court finds that the use of unlicensed firearm was not duly proven by the prosecution. The evidence indicates that none of the firearms used in the November 3, 1999 massacre were ever recovered and presented in the trial court. Nevertheless, there is jurisprudence which states that the existence of the firearm can be established by testimony, even without the presentation of the firearm.46 The testimony of the prosecution witnesses had established that appellant Camat used a long firearm of unknown make and caliber to shoot his victims but that would still be insufficient to attribute to his felonious act the qualifying circumstance of use of unlicensed firearm in light of jurisprudence which asserts that in order for the same to be considered, adequate proof, such as written or testimonial evidence, must be presented showing that the appellant was not a licensed firearm holder.47 There was no such proof in the case at bar.Article 248 of the Revised Penal Code provides for the penalty of reclusion perpetua to death for the crime of Murder.1âwphi1 If no aggravating or mitigating circumstance attended the commission of the crime, the imposable penalty is reclusion perpetua. In this case, the qualifying circumstances of treachery and use of unlicensed firearms were appreciated by both the trial court and the Court of Appeals. However, only the presence of the qualifying circumstance of treachery was clearly proven in the trial of appellant Camat for the killing of Marcelina and Elmer Hidalgo, which nevertheless qualified the felonious act as Murder. There being no other aggravating circumstance, the trial court was incorrect in imposing the death penalty and should have just imposed the penalty of reclusion perpetua.In any case, the Court of Appeals imposed the proper penalty of reclusion perpetua after considering the express mandate of Republic Act No. 9346.This Court also upholds appellant Camat’s conviction of four counts of Attempted Murder since said charges were satisfactorily proven by the prosecution.The elements of attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;2. He does not perform all the acts of execution which should produce the felony;3. The offender’s act be not stopped by his own spontaneous desistance;4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.48

It is well-settled that where the wounds inflicted on the victim are not sufficient to cause his death, the crime is only Attempted Murder, as the accused had not performed all the acts of execution that would have brought about the victim’s death.49

In the present case, appellant Camat and his co-accused only committed Attempted Murder because they were not able to kill Juanito, Aurelio, Pedro, and Ricardo by reason of a cause independent of their will, specifically timely medical attention, despite the fact that they already performed all the acts of execution which should have produced the crime of Murder. In addition, the wounds inflicted upon these victims were not considered fatal as evidenced by the documentary and testimonial evidence presented in the trial court.Every person criminally liable for a felony is also civilly liable.50

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Thus, when death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney’s fees and expenses of litigation; and (6) interest, in proper cases.51

This Court had previously declared that in cases of Murder and Homicide, civil indemnity and moral damages are awarded automatically. Indeed, such awards are mandatory without need of allegation and proof other than the death of the victim, owing to the fact of the commission of Murder or Homicide.52

Pursuant to recent jurisprudence, this Court is increasing the award of civil indemnity from Fifty Thousand Pesos (P50,000.00) to Seventy-Five Thousand Pesos (P75,000.00) for each count of Murder53 as well as decreasing the award of moral damages from Two Hundred Thousand Pesos (P200,000.00) to Fifty Thousand Pesos (P50,000.00) for each count of Murder54 and from Fifty Thousand Pesos (P50,000.00) to Forty Thousand Pesos (P40,000.00) for each count of Attempted Murder.55 Furthermore, in accordance with Article 2230 of the Civil Code,56 exemplary damages should be awarded in the amount of Thirty Thousand Pesos (P30,000.00) for each count of Murder57 as well as for each count of Attempted Murder. 58

WHEREFORE, premises considered, the Decision dated February 27, 2009 of the Court of Appeals in CA-G.R. CR-H.C. No. 02429 is hereby AFFIRMED with further MODIFICATIONS that:

(1) Appellant Diosdado Camat is ordered to pay, for each count of MURDER in Criminal Case Nos. U-10498 and U-10499, Seventy-Five Thousand Pesos (P75,000.00) as civil indemnity, Fifty Thousand Pesos (P50,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages;(2) Appellant Diosdado Camat is ordered to pay, for each count of ATTEMPTED MURDER in Criminal Case Nos. U-10500, U-10501, U-10502 and U-10503, Forty Thousand Pesos (P40,000.00) as moral damages and Thirty Thousand Pesos (P30,000.00) as exemplary damages; and(3) Appellant Diosdado Camat is further ordered to pay the private offended parties or their heirs interest on all damages awarded at the legal rate of six percent ( 6o/o) per annum from the date of finality of this judgment.

No pronouncement as to costs.SO ORDERED.TERESITA J. LEONARDO-DE CASTRO*

Associate justiceActing Chairperson, First DivisionWE CONCUR:

LUCAS P. BERSAMINAssociate justice

MARIANO C. DEL CASTILLOAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

ESTELA M. PERLAS-BERNABE**

Associate JusticeA T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.TERESITA J. LEONARDO-DE CASTROAssociate justiceActing Chairperson, First Division

C E R T I F I C A T I O NPursuant to Section 13, Article VIII of the Constitution and the Division Acting Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.ANTONIO T. CARPIOSenior Associate Justice(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Republic of the PhilippinesSUPREME COURT

ManilaEN BANC

G.R. No. L-27586 June 26, 1970ERNESTO CUENCA Y CUEVAS, petitioner, vs.PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.Arsenio O. de Leon for petitioner..Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo and Trial Attorney Josefina Domingo-De Leon for respondents.. CONCEPCION, J.:Appeal, by certiorari, taken by defendant Ernesto Cuenca y Cuevas, from a decision of the Court of Appeals affirming that of the Court of First Instance of Manila, convicting him of the crime of illegal possession of a firearms and seven rounds of ammunition and sentencing him to imprisonment for one year and to pay the costs, as well as directing the confiscation and forfeiture of said firearm and ammunition.

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The facts, as found by the trial court, and adopted by the Court of Appeals, are as follows:The accused was a special watchman and security guard of the Bataan Veterans Security Agency. In that agency, they were more than forty security guards. It was the practice in the agency that when the security guards reported for work, they were provided with firearms and ammunition, which they would return after their tour of duty.On January 3, 1963, the accused was detailed at the Philippine Savings Bank as security guard. He was wearing the uniform of the agency and was armed with a pistol, Ithaca, .45 cal., with Serial No. 1009738, which had a magazine containing seven rounds of ammunition. The firearm and the ammunition were provided by the agency. The firearm was not always used by him alone, as at other times the same firearm was used by the other security guards. On the date and the place mentioned, Pat. Paul Sabate, who was stationed at Plaza Miranda as security officer of the stage show, arrested the accused for illegal possession of the said firearm and ammunition. When asked to produce his license to possess the firearm and ammunition, the accused told him that he was a special watchman and security guard of the Bataan Veterans Security Agency to which the firearm and ammunition belonged, and the license to possess the same was in the office of the agency. The accused told Pat. Sabate that the owner of the agency was one Mr. Forbes, who had the license for the said firearm and ammunition. According to Pat. Sabate, the agency was under the supervision of the Manila Police Department.It appears that the agency has no license to possess the firearm and ammunition in question; hence, neither the accused nor the agency is a licensed possessor of said firearm and ammunition. The accused claimed that he was made to believe in the agency that Mr. Forbes had license to possess them.

The issue in this case is whether appellant is guilty of the offense charged, considering that, at the time above-mentioned, he was a regular security guard of the Bataan Veterans Security Agency, which was duly licensed to operate as such security agency; that, in the course of its regular operation, the same provides its security guards, who are in the discharge of their duties as such, with the usual firearms and ammunitions, which, at the end of their respective shifts, are either kept in the proper locker or returned to the agency and then delivered by the latter to the security guards assigned to the next shift; that the firearm and ammunitions in question were found in appellant's possession at the time when, and at the place where, he was actually discharging his duties, wearing the corresponding uniform, arm band and badge; that upon being asked by Patrolman Paul Sabate to produce the requisite license, appellant stated that the same was in the possession of Jose Forbes, the owner and operator of the Bataan Veterans Security Agency, of which he (appellant) is, and has been, since April, 1961, one of its approximately forty (40) security guards; and that, soon thereafter, Jose Forbes confirmed, in the police station, the statements made by appellant, but added that he (Forbes) was still in the process of getting the said license.The trial court and the Court of Appeals convicted appellant herein, despite his protests of good faith, upon the ground that the crime of illegal possession of a firearm and ammunition is not malum in se, but malum prohibitum and that it, accordingly, requires neither malice nor evil purpose or intent. It should be noted, however, that the Bataan Veterans Security Agency is duly licensed to operate as such. Consequently, it may legally engage the service of competent persons to discharge the duties of special watchmen and security guards, and provide them, as such, with the corresponding firearms and ammunitions. The agency is thus supposed to obtain the license necessary therefor. Had it done so, there would be no question about the absence of any criminal liability on the part of appellant herein for the possession of the firearm and ammunition in question, even though the license were not in his name, but in that of the agency or its owner and operator, Jose Forbes. Hence, the query boils down to whether or not appellant is guilty of the crime charged owing to the failure of Jose Forbes to comply with his duty to obtain such license, before he got said firearm and ammunition and delivered the same to his aforementioned employee.Upon mature deliberation, the Court feels and so holds that the answer must be in the negative. The reason is that appellant was entitled to assume that his employer had the requisite license to possess said firearm and ammunition and to turn them over to him while he was on duty as one of the regular security guards of the Bataan Veterans Security Agency, the same being a duly licensed security agency. As such, those dealing with it, either as clients or as employees thereof, are entitled to presume, in the absence of indicia to the contrary — and there were none in the present case — that it has complied with pertinent laws, rules and regulations. What is more, Jose Forbes had told appellant that the firearm and ammunition in question were duly licensed, and, as an employee of the agency, appellant could not be expected to demand from his employer proof of the veracity of the latter's assertion before relying thereon.We are not unmindful of the danger posed by the possibility or probability of abuse or misuse of the license of security agencies to operate as such. The danger arises, however, when said license is granted improvidently, without taking the necessary precautions therefor — prior to and subsequently to the issuance of said license — in terms of adequate measures to see it, inter alia, that the agency is a trustworthy and responsible one; that it is properly managed by persons possessed of the moral character necessary therefor; that only those having the requisite qualifications are engaged as security guards; that suitable rules are adopted and enforced governing their discipline, and the assignment, care and custody of firearms and ammunitions, as well as the keeping of registers and the entry therein of annotations or memoranda setting forth, at all times, the locations and/or disposition of each one of the aforementioned firearms and ammunition that the operation of the agency is effectively supervised by the Government.Needless to say, this decision must be deemed restricted in its application to duly licensed security agencies and to regular security guards thereof. Moreover, the owner, manager and/or operator of the security agency, who failed to secure the requisite license — in the case at bar, Jose Forbes, as the owner and operator of the Bataan Veterans Security Agency — should be prosecuted for illegal possession of firearms and/or such other crime as may have been committed in consequence of the breach of the laws and regulation above referred to.WHEREFORE, the decision appealed from is hereby reversed and herein appellant, Ernesto Cuenca y Cuevas, accordingly, acquitted, with costs de officio. Let a copy of this decision be served upon the City Fiscal of Manila for appropriate action in accordance with the preceding paragraph, with due advise to this Court of the action taken hereon. It is so ordered.Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and Villamor, JJ., concur.Barredo, J., took no part.

THIRD DIVISION[G.R. No. 143819. January 29, 2002]

PEOPLE OF THE PHILIPPINES, appellee, vs. GERRY CUENCA yMEDRANO, JACKSON CUENCA (at large), CRISANTO AGON yMAGPANTAY, and BERNIE AGON (at large), accused,

GERRY CUENCA y MEDRANO and CRISANTO AGON y MAGPANTAY,appellants.

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D E C I S I O NPANGANIBAN, J.:

The testimony of a single eyewitness, if credible and positive, is sufficient to support a conviction for murder. Truth is established by the quality, not necessarily by the quantity, of the evidence.

The CaseGerry Cuenca and Crisanto Agon[1] appeal the February 7, 2000 Decision[2] of the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal Case

No. 0132-98, which found them guilty of murder beyond reasonable doubt.The RTC disposed of the case as follows:

“WHEREFORE, the Court finds the accused GERRY CUENCA and CRISANTO AGON, guilty beyond reasonable doubt, both as principals by direct participation for having conspired and confederated with one another in the commission of the crime of [m]urder, as alleged in the Information dated March 27, 1998, and defined and penalized under Article 248 of the Revised Penal Code, as amended by Republic Act 7659 and sentences each of them to suffer the penalty of RECLUSION PERPETUA, to pay the heirs of Wilfredo Castillo the sum of P50,000.00 as indemnity for his death, the sum ofP38,800.00, as actual damages, the sum of P4,800,000.00 for loss of earning capacity, the sum ofP20,000.00, as moral damages and to pay their proportionate share of the costs.“The period during which both accused are under preventive imprisonment shall be deducted from their sentence.“Finally, let also warrants of arrest be issued against the accused Jackson Cuenca and Bernardo ‘Bernie’Agon for their immediate apprehension.”[3]

On March 17, 1998, Lipa City Assistant City Prosecutor Mario G. Mayuga filed the Information charging appellants and their co-accused as follows:“That on or about the 14th day of February, 1998 at about 9:30 o’clock in the evening, at BarangayTambo, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, then armed with bladed/pointed and hard instruments, conspiring and confederating together, acting in common accord and mutually aiding one another, with intent to kill, with treachery and grave abuse of superior strength and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack, assault, beat and stab with the use of said bladed/pointed and hard instruments, suddenly and without warning, one Wilfredo Castillo, thereby inflicting upon the latter stab wounds, which directly caused his death.”[4]

When arraigned on April 27, 1998, appellants -- with the assistance of their lawyers -- entered a plea of not guilty. [5] Because their co-accused were at large, trial on the merits proceeded only as against them.

The FactsVersion of the Prosecution

In its Brief,[6] the Office of the Solicitor General summarized the prosecution’s version of the facts as follows:“On February 14, 1998, around 9:30 in the evening, while lying down with his wife and family in his house at Module Subdivision, Barangay Tambo, Lipa City, Batangas, Marcial Morillo[7] heard a commotion taking place outside his house. Dogs were barking loudly, so he decided to go out of the house to see what was happening outside. He then saw a man being mauled and beaten by four (4) persons. Upon seeing the incident, he hid himself behind a PLDT telephone post. From a distance of about ten (10) meters, he recognized the four (4) assailants as Gerry Cuenca, Jackson Cuenca, Crisanto Agon and Bernie Agon, while the person being mauled was Wilfredo ‘Edok’ Castillo. Marcial knew the four assailants and the victim for eight (8) years since they were all neighbors, Gerry and Jackson being brothers and Crisanto and Bernie being father and son. He witnessed Crisanto hold Edok’s left hand while Bernie held his right hand. Gerry was at Edok’s front and to the right while Jackson was at Edok’sfront and to the left and both were beating Edok continuously. Gerry and Jackson each used a piece of wood in hitting Edok several times on the face, head, chest and other parts of his body. Edok tried to struggle but his efforts proved futile. Edok then gave in, stooped down and eventually lost consciousness (Lumug[m]ok na po siya). The four (4) assailants then carried Edok’s body with one holding on to his right arm, the other one x x x his left arm and the other two each held the right and left leg[s] of Edoktowards the direction of Calabarzon Highway.“Thereafter, Marcial returned to his house but did not tell his wife about the incident because she was ‘nerbiyosa’. He did not want the members of his family to get involved in the incident because he feared for their safety. The mauling incident lasted approximately twenty (20) minutes. The place where the incident happened was illuminated by the light coming from the moon and the electric bulb at the electric post which was at the top of the roof of a house near the place of the incident.“The following morning, February 15, 1998, Marcial met Feliciano Castillo, Edok’s brother, who told him that they were looking for Edok. Marcial did not mention to Feliciano that he had witnessed the mauling of Edok because he was afraid that he might be implicated and involved in the incident.“On February 15, 1998, around 2:30 in the afternoon, a neighbor named Silo passed by Marcial’s house and told him that they were looking for Edok’s body. Marcial joined in the search in the forest for about one hour and then he went home.“About 4 o’clock in the afternoon of February 15, 1998, Feliciano dropped by the house of Marcial and said that Edok’s body had been found and borrowed Marcial’s flashlight in order to help in the recovery of Edok’s body which was found inside a well in the forest. The body was retrieved from the well which was about fifteen (15) meters deep. There were blood stains around the well. Coconut trees surrounded the area. The body was recovered between Masagana Subdivision and Adelina Subdivision, which was a forested area and about one-half (1/2) kilometer from where the mauling incident took place.“Around 4:30 in the afternoon of February 15, 1998, Feliciano reported to the Desk Officer, SPO2 Alberto Libao of the Lipa Police Satation, that the body of his brother, Wilfredo Castillo, had been found in the forested area in Barangay Tambo. Thereafter, Police Inspector Romeo Mitra, PO2 Enrico Tapalla, SPO4 Renaldo Saludo and SPO3 Pablo de Luna were dispatched to the crime scene to investigate the incident. Feliciano went with them. When Edok’s body was retrieved, SPO4 Saludo noticed the presence of stab wounds, blows and hematomas on his body. The cadaver was then taken to FunerariaSan Sebastian at Balagbag, Lipa City.“About 7:30 in the evening of February 15, 1998, Dr. Corazon Sabile, Health Officer of Lipa City, conducted an autopsy on Edok’s body. The physical examniation yielded the following results: there were nine (9) injuries on the head, two (2) of which were stab wounds, one stab wound on the right frontal area of the right ear which reached the skull and the second stab wound also at his right ear; one (1) lacerated gaping wound on the head; there were several contusions and hematoma on both eyes which could have been caused by mauling, and hematomas on the middle mandibular area and the lateral mandibular area (chin) which could have been caused by mauling or the dumping of the cadaver in to the well; there are also linear abrasions on the right lateral neck area that could have been caused by forcible contact; there were nine (9) wounds on the body, that is, four (4) stab wounds and five (5) abrasions; the first stab wound was on the third intercostal space midelavicular area, the second on the fifth intercostal space, rightmidelavicular area, the third on the 8th intercostal space midelavicular area, and the fourth [was] on the right lumbar area; the said wounds were

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almost of the same depth, that is 5 cms; all of the said wounds could have been caused by a sharp pointed instrument; she also found five (5) abrasion on the body, i.e., in the left midscapular area, left infrascapular area, on the vertebral line, on the right midscapular area and on the vertebral line; that the abrasions are called ‘gasgas’ and could have been caused by forcible contact; she also found in the extrem[i]ties of the cadaver two (2) stab wounds on the right anterior thigh 4 to 5 cms. deep; she also found three (3) abrasions on the right forearm, left posterior arm and left posterior hand which could have been caused by forcible contact. The internal examination on the victim’s body revealed that 200 ml. of blood were found in the fleural cavity which could have come from the perforations of the right ventricle of the heart; the liver and upper lobe of the right lung were perforated; there were complete fractures on the 2nd, 3rd, 4th, 5th, 6th, 7th of both ribs which alone were sufficient to cause death. The mauling was aggravated by the dumping of the Edok’s body in the well. Considering the nature and number of injuries Edok sustained, no medical attention and assistance could have saved his life. The cause of Edok’s death was Hypovolemia secondary to multiple stab wounds.“On February 16, 1998, Marcial Morillo told Ruben Castillo about the mauling incident which (Morillo) had witnessed on the night of February 14, 1998.“Bothered by his conscience, on February 17, 1998, Morillo went to the Lipa Police Station to report the incident.”[8] (Citations omitted)

Version of the DefenseAppellants gave the following narration of the facts:[9]

“The defense maintained that in the evening of February 14, 1998 accused Jackson Cuenca and BernieAgon together with three [V]isayan [C]alabarzon workers identified as Obet, Nognog and Ruel were in the house of Yolanda Cuenca in the evening of February 14, 1998 at Brgy. Tambo, Lipa City about one kilometer away from the place of Marcial Morillo, the alleged eyewitness, in whose place according toMarcial Morillo the crime was committed. While these persons were in said house of Yolanda Cuenca, they heard a voice calling for Jackson who was identified as Wilfredo Castillo. Jackson Cuenca came out [of] the house and asked Wilfredo Castillo what was the problem[;] however, Wilfredo Castillo immediately hacked him who was wounded at the right side of his back. Witness Yolanda Cuencabrought him inside her house and attended to his wound. While bringing him inside the house, Jackson was struggling to be free, [and] the three Visayan [C]alabarzon workers visitors went outside and thereafter a commotion took place. During the commotion, Yolanda Cuenca heard somebody [utter] the words ‘sobra-sobra na ang ginagawa mo sa mga tao dito’.  The following day, February 15, 1998, two of the three Visayan Calabarzon Workers namely Obet and Nognog arrived at the house of YolandaCuenca and told her that she [would] say that she saw and heard nothing about the commotion.“Accused Gerry Cuenca and Crisanto Agon were not in the house of Yolanda Cuenca where the commotion took place [o]n the evening of February 14, 1998 and they were not also near the house ofMarcial Morillo where the crime took place allegedly [o]n the evening of February 14, 1998. On that time and date, they were at the house of Roger Dimaculangan at Normanz Village, Tambo, Lipa City helping in the preparation of food for the baptismal party on February 15, 1998. Other than accused-appellants Andy Obille, Benjamin Anterola and Romy Anterola and other people were there. Accused-appellants vehemently denied that they were the ones who killed Wilfredo Castillo alias ‘Edok’ in the evening ofFebruary 14, 1998.”[10]

The Trial Court’s RulingThe RTC convicted appellants because the lone prosecution witness, Marcial Morcillo, was credible. It said: “the Court believes and gives weight to

the candid, vivid and detailed account of the incident and positive identification of all the accused by Marcial Morcillo, not only because it is clear, straight-forward and devoid of any signs of artificiality, but also because it vibrates with truth and sincerity.”[11]

The court a quo held that conspiracy attended the killing:“In this case, Crisanto and Bernie Agon were each holding the hands of Wilfredo Castillo, while the brothers Gerry and Jackson Cuenca helped each other in beating him with a piece of [wood] about one (1) meter long x x x. After Castillo slumped and lost consciousness, the four (4) accused helped each other in carrying Wilfredo Castillo towards the Calabarzon Highway going to the direction of BatangasCity. Verily, at the precise moment of the execution of the crime, the accused acted in concert to accomplish a common objective to take the life of Wilfredo Castillo. The fact that Marcial Morillo did not witness the actual stabbing and killing of Wilfredo Castillo is of no moment.”[12]

It disbelieved the defenses of denial and alibi.Hence, this appeal.[13]

IssuesIn their Brief, appellants fault the trial court with the following alleged errors:“1. The honorable trial court erred in giving weight to the testimony of the alleged lone eyewitness, Marcial Mor[c]illo.“2. The honorable trial court erred in not considering that the victim died of multiple stab wounds and not due to injuries caused by a piece

of wood.“3. The honorable trial court erred in not considering the defense of alibi of accused-appellants in the appreciation of the whole evidence

presented by the prosecution and defense.”[14]

This Court’s RulingAfter reviewing the records of this case, we find no cogent basis to reverse appellants’ conviction. We however modify the award of civil liabilities.

First Issue: Credibility of Lone Prosecution Witness Appellants assail the credibility of Marcial Morcillo, the lone prosecution witness. They contend that the trial court erred in giving full credence

to Morcillo’s testimony, because it was not “in accordance with common experience and observation of mankind.”[15] We disagree.We carefully reviewed the testimonies of both the prosecution and the defense witnesses, as well as the other pieces of evidence on record. We

are convinced that the trial court did not err in giving full faith and credence to Morcillo’s testimony, which we reproduce in part as follows:“Q On February 14, 1998, around 9:30 o’clock in the evening, do you remember where you were?A I was inside my house sir.Q Where was your house on that date, February 14, 1998, 9:30 o’clock in the evening?A At Module Subdivision, Tambo, Lipa City sir.Q What were you doing around that time, 9:30 o’clock in the evening of February 14, 1998 inside your house in Module

Subdivision, Tambo, Lipa City?A We were already lying down sir.Q You said we, who were with you in your house?A My wife and my family sir.

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Q While you were then already lying down on that date, February 14, 1998 around 9:30 o’clock in the evening, do you remember x x x any unusual incident that transpired?

A Yes sir.Q What was that unusual incident that transpired?A There was a commotion of people sir.Q How did you come to know that there was a commotion of people?A My dog and the dogs of my neighbors were barking sir.Q What did you do when you heard this commotion of people and barking of the dog and the dogs of your neighbors?A I went out of the house and looked for [what] the commotion was all about[,] sir.Q What did you see when you looked [for] where this commotion [was] coming [from] or what was causing this commotion?A I saw a person being beaten by four (4) persons sir.Q Were these four (4) persons or in what place in relation to your house where these four (4) persons beating one person?A In the street sir.Q How far is that place from your own house?A About ten (10) meters sir.Q Where were you when you saw four (4) persons beating one (1) person?A I was hiding behind [a] PLDT Telephone post sir.Q From the place where you were hiding behind a PLDT Telephone Post, how far [away from you] were these four (4) persons who were

beating another person x xx?A 10 meters sir.Q Were you able to recognize these four (4) persons who were beating another person?A Yes, sir.Q Who were these four (4) persons whom you saw were beating another person.A Crisanto Agon, Bernie Agon, Jackson Cuenca and Gerry Cuenca sir.Q Of these (4) persons whom you named Gerry Cuenca and Crisanto Agon were the persons whom you pointed [to] a while ago [among

them]?A Yes sir.Q Were you able to recognize the person whom these four (4) accused were beating?A Yes, sir. I recognized him.Q Who was that person who was being beaten by these four (4) accused, GerryCuenca, Jackson Cuenca, Crisanto Agon and Bernie Agon?A Edok Castillo sir.Q Do you know the complete name of this Edok Castillo?A I quite remember, it is Alfredo Castillo, sir.Q And how were Gerry Cuenca, Jackson Cuenca, Crisanto Agon and Bernie Agonbeating this Edok Castillo?A The father and son were holding Edok Castillo and the brothers were beating him sir.Q When you said that the father and son were holding Edok Castillo while the brothers were beating him, who are you referring to when

you said the father and son?A Crisanto Agon and Bernie Agon sir.Q How was Crisanto Agon holding Edok Castillo while the brothers were beating EdokCastillo?A The father and son were holding [both hands of] Edok Castillo.Q What hand was Crisanto Agon holding?A Left hand sir.Q How about Bernie Agon, what hand of Edok Castillo was he holding?A The right hand sir.Q How about Gerry Cuenca? Where was he positioned in relation to Edok Castillo when he was beating Edok?A Right front portion of Edok Castillo sir.Q How about Jackson Cuenca, where was he positioned in relation to Edok Castillo while he was beating Edok Castillo?A He was standing towards the left front of Edok Castillo sir.

x x x x xx x x xQ Aside from stooping down, what else was Edok Castillo doing while he was being beaten by Gerry Cuenca and Jackson Cuena and while

Bernie Agon and CrisantoAgon were holding his two hands?A He lost consciousness sir.Q Why do say that he lost consciousness?A ‘Lumugmok na po siya’.Q But before Edok Castillo actually fe[l]l or ‘lumugmok’ what was he doing while he was being beaten up?A He could not do anything anymore sir.Q After Wilfredo Castillo [fell] or lumugmok, what did Gerry Cuenca, Jackson Cuenca,Crisanto Agon and Bernie Agon do to him if they did

anything more?A [T]hey carried him towards Calabarzon, sir.Q By the way, how many times did Gerry Cuenca and Jackson Cuenca hit EdokCastillo?A I could not remember, but he was hit several times, sir.Q In what part or parts of the body of Edok Castillo was he hit by th[o]se beating [him up], if he was ever hit?

x x x x xx x x xWitness pointing his face, to his head, to his chest and to his right face below the eye.

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Q You said that after Gerry Cuenca and Jackson Cuenca [beat] up Edok Castillo while he was being held [by] his two (2) hands by Crisanto and Bernie Agon, he fell down or ‘lumugmok’ [and] he was carried to Calabarzon[;] what do you mean by thisCalabarzon?

A The highway going to Batangas sir.Q How did the four (4) carry Edok Castillo towards the Calabarzo[n] which is the road according to you going to Batangas City?A They help[ed] each other in carrying him sir.Q How did they carry actually this Edok Castillo?A The two (2) were carrying him by [both his] hands[,] one [holding] on each hand and the other two (2) were holding on [both his] feet sir.

[16]

On cross-examination Morcillo consistently maintained, despite intense grilling and repeated attempts of the defense counsel to discredit him, that appellants were the ones who had mauled the victim. True, the defense counsel tried to impeach his credibility during the cross-examination by leading him through an intricate and annoying maze of questions that resulted in minor inconsistencies in his testimonial declarations. Nevertheless, Morcilloremained steadfast in his narration of what he had witnessed on the night of February 14, 1998.

So long as the witnesses’ testimonies agree on substantial matters, inconsequential inconsistencies and contradictions dilute neither their credibility nor the verity of their testimonies.[17] In the instant case, the inconsistencies cited by appellants are insignificant and immaterial to the essential fact testified to -- the killing of the victim.[18]

As a rule, this Court will not disturb the factual findings of the trial court, because it had a better opportunity to observe the demeanor and conduct of the witnesses while they were testifying. Indeed, its assessment of the witnesses and their credibility is entitled to great weight and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of significance and value.[19]

This Court has ruled in a number of cases [20] that the testimony of a single witness, if credible and positive, is sufficient for conviction because truth is established not by the quantity, but by the quality of the evidence.

Second Issue: Cause of the Victim’s Death Appellants also contend that Morcillo did not see how the victim was stabbed. All he said was that he saw them beat up the victim with a piece of

wood. Thus, they said that the trial court erred in concluding that the deceased had succumbed, not to multiple stab wounds, but to injuries caused by a piece of wood.[21]

In the absence of direct evidence, appellants may be convicted on the basis of circumstantial evidence. The latter is defined as “that which indirectly proves a fact in issue through an inference which the factfinder draws from the evidence established. Resort thereto is essential when the lack of direct testimony would result in setting a felon free.”[22]

Circumstantial evidence suffices to convict if the following requisites concur: (1) more than one circumstance is present, (2) the facts from which the inferences are derived are proven, and (3) the combination of all the circumstances produces a conviction beyond reasonable doubt. The totality of the evidence must constitute an unbroken chain showing beyond reasonable doubt the guilt of the accused, to the exclusion of all others. [23]

To require direct eyewitness testimony when circumstantial evidence is sufficiently established would, in many cases, expose society to felons who would be unreasonably set free.[24]

In the present case, the postmortem examination shows that the victim sustained multiple lacerations and abrasions plus eight stab wounds. [25] The following pieces of circumstantial evidence show beyond reasonable doubt that appellants are responsible for the killing:

First, Morcillo positively identified appellants as members of the group that had ganged up on the victim and mauled him near his residence around 9:30 in the evening on February 14, 1998.

Second, the witness saw appellants acting in unison -- beating up then carrying towards the Calabarzon Highway -- the unconscious body of the victim.

Third, the victim’s corpse was recovered the next day inside a well, which was less than a kilometer away from the place of the mauling.Fourth, the victim suffered from multiple stab wounds, abrasions, contusions and lacerations, all of which indicated that he had been heavily beaten

up. This was consistent with the narration of Morcillo on how he saw appellants maul the victim less than 24 hours before the dead body was discovered.Fifth, appellants were the last persons seen with the victim before he died.Sixth, the other accused, Jackson Cuenca (brother of Appellant Gerry Cuenca) and Bernie Agon (son of Appellant Crisanto Agon) fled from their

residence in Lipa City, and they have continuously evaded arrest up to the present.Finally, Morcillo had no ill motive to testify against appellants.From the foregoing circumstances, it is undisputed that appellants were physically present at the locus criminis and its immediate vicinity, and that

an eyewitness positively identified them to be members of the group that had mauled and removed the victim from the crime scene prior to the discovery of his corpse.

Third Issue: Defense of Alibi Well-settled is the rule that alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. For alibi to prosper, it is not

enough for the accused to prove that they were somewhere else when the crime was committed; they must likewise demonstrate that it was physically impossible for them to have been at the scene of the crime at the time.[26]

In the case before us, appellants claim that at the time the crime happened, they were at the residence of Roger Dimaculangan, which was located also at Barangay Tambo, LipaCity. Dismissing this claim, the RTC said:“Alibi and denial are inherently weak and easily contrived. This is why the accused must prove with clear and convincing evidence that it was physically impossible for him to have been present at the place and time the felony was committed. This the accused failed to do. The distance between the house of RogerDimaculangan, where both accused claimed to be at the time the f[e]lony was committed and the locuscriminis is just a few kilometers away. It can be travelled in a few minutes by bicycle. Thus, it was not impossible for Gerry Cuenca and Crisanto Agon to leave and, after killing Wilfredo Castillo, return to the house of Dimaculangan without anybody noticing their absence. In any event, alibi and denial cannot overcome the categorical and credible testimony of Marcial Morcillo identifying both accused as among those whom he saw helping each other in holding and beating Wilfredo Castillo and thereafter carrying him towards [C]alabarzon Highway going to the direction of Batangas City. Basic is the rule that positive identification prevails over denial and alibi.”[27]

Thus, it was not physically impossible for appellants to have been at the scene of the crime on the evening of February 14, 1998, notwithstanding their friends’ testimonies that they were also at the Dimaculangan residence.

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Conspiracy and TreacheryThe trial court did not err in finding appellants guilty of murder because treachery, which was alleged in the Information, had attended the killing.On this point, the trial court aptly explained:

“Article 14 (16) of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against persons, employing means, methods o[r] forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising from the defense which the offended party might make. In the instant case, Crisanto and Bernie Agon were holding both hands ofWilfredo Castillo, while Gerry and Jackson Cuenca were beating him with a piece of wood on the different parts of his body. Wilfredo Castillo was unarmed and defenseless. Hence, treachery was present.”[28]

Treachery is present when the following conditions are present: (1) the means of execution employed gives the victims no opportunity to defend themselves or to retaliate, and (2) the means of execution are deliberately or consciously adopted. In this case, the prosecution succeeded in showing that appellants, together with their co-accused (who are still at large), helped each other in ensuring the execution of their nefarious intention to beat up and kill the victim who was unarmed and with no opportunity to defend himself.

The prosecution was likewise able to show that there was conspiracy. Conspiracy exists when two or more persons come to an agreement and decide on the commission of a felony.[29] It is not necessary that there be direct proof that the co-conspirators had any prior agreement to commit the crime; it is sufficient that they acted in concert pursuant to the same objective.[30]

Despite affirming appellants’ conviction, we nonetheless modify the monetary awards.The award of P50,000 as indemnity ex delicto for the loss of the victim’s life is in accord with prevailing jurisprudence.[31] Likewise, the award

of P20,000 as moral damages is reasonable. However, the actual damages granted is improper and should be reduced fromP38,800 to P7,300 considering that only the latter amount, representing burial expenses, was duly supported by receipts. The unsubstantiated balance of P31,500 should be deleted.[32]

We also find the court a quo’s award of P4,800,000 for loss of earning capacity to be improper. True, in People v. Verde,[33] we granted an award for the loss of earning capacity to the heirs of the deceased despite the absence of documentary evidence to substantiate such claim. We deemed the testimony of the victim’s wife sufficient to establish the basis for the grant. However, the new ruling in People v.      Panabang   [34]    modifies this principle and now precludes an award for loss of earning capacity without adequate proof. The bare testimony of the brother of the deceased Felicisimo Castillo that, at the time of his death, WilfredoCastillo was earning P250.00 daily as carpenter[35] is not sufficient proof.

In Panabang, we held that the indemnification for loss of earning capacity must be duly proven. Justice Jose C. Vitug, expressing the current view of the Court, wrote:“Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven. A self-serving statement, being unreliable, is not enough. The father of the victim has testified on the latter’s monthly income of P12,000.00. But for lost income to be recovered, there must likewise be an unbiased proof of the deceased’s average, not just gross, income. An award for lost of earning capacity refers to the net income of the deceased, i.e., his total income net of expenses. x x x.”[36] (Emphasis in the original, citations omitted)

WHEREFORE, the assailed Decision is AFFIRMED but the actual damages awarded by the RTC is REDUCED from P35,850 to P7,300 while the grant of P4,800,000 for loss of earning capacity is DELETED.

SO ORDERED.Melo, (Chairman), Vitug, Sandoval-Gutierrez, and Carpio, JJ., concur.

SECOND DIVISION

[G.R. No. 84857. January 16, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO DELA ROSA Y AVILES, ANTONIO DELA ROSA Y AVILES, and RODOLFO QUIMSON Y NAVA (At large), accused-appellants.

D E C I S I O N

PUNO, J.:

Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial Court, First Judicial Region, Branch 38, Lingayen, Pangasinan, convicting him of illegal possession of firearms and explosives and imposing the penalty of reclusion perpetua.[1]

On January 27, 1987, an information for illegal possession of firearms and explosives was filed against RODOLFO DELA ROSA y AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA CRUZ and RODOLFO QUIMSON y NAVA, to wit:

"That on or about the 9th of December 1986, in sitio (sic) Kadampat, Barangay Bolo, municipality (sic) of Labrador, province (sic) of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovementioned accused, conspiring, confederating and helping one another, did then and there wilfully (sic), unlawfully and feloniously have in their possession, custody and control three (3) homemade gauge 12 shotguns and fourteen (14) pieces of dynamite explosives, without first securing the necessary permit/license to possess the same.

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"Contrary to Presidential Decree No. 1866."[2]

All accused pleaded not guilty when arraigned on February 3, 1987. On March 12, 1987, the four accused withdrew their plea of not guilty and substituted it with a plea of guilt. After ascertaining that the plea of guilt was not made improvidently, the lower court imposed upon them the corresponding penalty.[3] However, on March 19, 1987, the four (4) accused filed a motion withdrawing their plea of guilt. [4] The lower court granted the motion in a resolution dated March 25, 1987.[5] Thereafter, trial proceeded. However, accused Cresencio Reyes changed his mind again and pleaded guilty to a lesser offense punishable under the last paragraph of Section 1 of Presidential Decree No. 1866. The court accepted the plea and sentenced him accordingly. He was utilized as a witness by the prosecution. The trial proceeded against the three remaining accused.

The prosecution established that in the morning of December 9, 1986, Rodolfo dela Rosa, Antonio dela Rosa, Cresencio Reyes and Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio Kadampat, Bolo, Labrador, Pangasinan claiming they want to lead a new life. They informed him that Benjamin Nano, alias Kumander Tamang, a member of the New People's Army (NPA), was shot by one of them. The four had with them a short shotgun (Exhibit A) and a bag containing several sticks of dynamite (Exhibit C to C-7). [6] Kagawad Rigor offered them breakfast and afterwards went to the police station to report the presence of four (4) surrenderees in his house. At the police station, Patrolman Gasline Fernandez recorded the report in the police blotter. Cpl. Crispin Cancino, the station commander, brought along several policemen and proceeded to the house of Kagawad Rigor. When the group arrived, only Kagawad Rigor and Cpl. Cancino entered the house. The other policemen stayed outside to secure the area. Inside the house, Kagawad Rigor introduced the surrenderees to Cpl. Cancino and showed him the short shotgun (Exhibit A) and the bag (Exhibit C to C-7) containing several sticks of dynamite. Then, all accused, except Rodolfo Quimson, who was left behind to guide the police in recovering the body of Kumander Tamang, were brought to the Philippine Constabulary (PC) Headquarters in Lingayen. In Lingayen, they proceeded at the municipal building and called on Mayor Calixto Pancho. The surrenderees had their picture taken with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters, where their statements were taken by Cpl. Arsenio Paragas and Cpl. Cipriano Castillo. [7] Meanwhile, the charred body of Benjamin Nano was recovered by the police in Sitio Tebel Patar.[8]

The following day, Cresencio Reyes informed the police that there were firearms left buried in Sitio Tebel Patar. Reyes pointed to the hiding place which was covered by banana leaves. When the banana leaves were removed, the police unearthed two (2) long barreled shotguns (Exhibits B and D).[9]

On the other hand, the three accused contend they were recruited by Kumander Tamang on different dates. Accused Rodolfo dela Rosa testified that he first saw Kumander Tamang on October 28, 1986 at a relative's wake. Kumander Tamang asked him whether he owned a piece of land. He said he did not, for he was only a sawali maker. Kumander Tamang then convinced him to join the New People's Army (NPA). He told Kumander Tamang he would think it over. On November 1, 1986, Kumander Tamang went to his house and reiterated his offer to him. Cresencio Reyes was with Kumander Tamang at that time. Reyes was carrying a bag (Exhibit C) while Kumander Tamang had a shotgun (Exhibit A). On November 10, 1986, Kumander Tamang went to his house and succeeded in persuading him to join the NPA. Kumander Tamang brought him at a hideout in the mountains of Sitio Tebel Patar, Labrador, Pangasinan.

On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander Tamang and Cresencio Reyes, descended the mountains and proceeded to the house of Antonio dela Rosa, who was Rodolfo's cousin. At that time, Kumander Tamang was carrying a shotgun (Exhibit A) while Reyes was carrying a bag (Exhibit C). When they arrived at said place, Kumander Tamang and Reyes entered the house and stayed inside for ten (10) minutes. When the two came out, dela Rosa was with them. All of them headed for the mountains afterwards. On November 20, 1986, Rodolfo dela Rosa, Kumander Tamang Cresencio Reyes and Antonio dela Rosa went to the house of Rodolfo Quimson. Again, only Kumander Tamang and Reyes entered Quimson's house. They stayed inside for 15 minutes. When the two came out, Quimson was with them. Afterwards, they returned to their hideout in the mountains.[10]

On December 8, 1986, at 10:00 o'clock in the morning, Kumander Tamang called them to a meeting. Kumander Tamang took the bag (Exhibit C) which Reyes always carries and opened it. The bag yielded several sticks of dynamite. Kumander Tamang told them that at five o'clock in the afternoon they would go down Sitio Kadampat and assassinate Kagawad Rigor.[11] He then instructed them on how to use the explosives. After the meeting, they returned to their hut and rested. At two o'clock in the afternoon, they heard a gunshot from the hut of Kumander Tamang. They rushed outside and saw Reyes holding Kumander Tamang's shotgun. He announced that Kumander Tamang was dead. He told them it would be better to surrender themselves to the authorities. He ordered them to gather the shotgun and the sticks of dynamite while he set on fire Kumander Tamang's hut. At five o'clock in the afternoon, they descended the mountains and headed towards Sitio Kadampat. At 7:00 a.m., the following day, they reached the house of Kagawad Rigor. They saw the Kagawad sitting by himself on a bench outside his house. Only Reyes approached the Kagawad, so as not to frighten him. The three others waited by the roadside. After five (5) minutes, Reyes signalled the three to approach the house. Kagawad Rigor let them inside the house and offered them breakfast. Reyes placed the shotgun and the bag on top of the dining table. Kagawad Rigor then left the house and went to the police station.[12] He returned with several policemen. At first, the policemen pointed their guns at the accused but Kagawad Rigor told them there was no need for they were surrendering themselves to the authorities. Kagawad Rigor then showed the policemen the shotgun and the bag containing the sticks of dynamite. The policemen took all the surrenderees to the Municipal Hall, except Rodolfo Quimson, who was left behind, to lead the police to Kumander Tamang's body. At the Municipal Hall, Mayor Calixto Pancho greeted and congratulated them for coming back to the fold of law. They had their picture taken with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters. When an investigator started to question them, they asked for a lawyer to assist them but the investigator said they would not need one for they were surrenderees and would soon be freed. Hence, they gave their subscribed statements to the police. After their statements were taken, the police took them back to the police station in Labrador, where they were detained. On January 5, 1987, they were transferred to the provincial jail in Lingayen. They denied ever seeing the two (2) long firearms (Exhibits C and D) which were recovered in Sitio Tebel Patar. They saw said firearms for the first time when the prosecution presented them as exhibits during the trial.[13]

When trial concluded, the lower court convicted the three (3) accused. Antonio dela Rosa did not appeal [14] while Rodolfo Quimson escaped[15] from the National Bilibid Prisons (NBP) where he was detained after the lower court convicted him. Only Rodolfo dela Rosa appealed contending that:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT RODOLFO DELA ROSA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES, DEFINED AND PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866.We find merit in the appeal.

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It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who surrendered the subject firearm (Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor. However, Rodolfo dela Rosa denies that he was in possession of said ammunitions in the manner punishable by law. According to him, his real intention was merely to turn over the ammunitions, which were owned by Kumander Tamang, to the authorities. The trial court perceived otherwise. It declared that since Rodolfo dela Rosa joined the New People's Army (NPA), there is reason to conclude that he provided himself with arms such as Exhibits A, B, C to C-7 and D. [16] And since mere possession is sufficient to convict a person for crimes which are malum prohibitum like illegal possession of firearms, appellant dela Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the authorities.

We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on the above reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall "x x x unlawfully manufacture, deal in, acquire, dispose or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." (Underscoring supplied) [17]

Broken down into its salient elements, illegal possession of firearms is committed when the holder thereof:

(i) possesses a firearm; and(ii) lacks the authority or license to possess it.[18]

In People v. de Gracia,[19] we clarified the meaning of possession for the purpose of convicting a person under PD 1866, thus:

"But, is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance for illegal possession of firearms is a malum prohibitum, punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. "When a crime is punished by a special law, as a rule, intent to commit the crime is not necessary, it is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime but he intended to commit an act, and that act is by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there wasanimus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent."

In the early case of People v. Estoista,[20] we held that a temporary, incidental, casual, or harmless possession of firearms is not punishable. We stated therein that:

"The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and opinions on the degree and character of control or dominion sufficient to constitute a violation vary. The rule laid down in the United States courts - rule which we here adopt - is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to examine or hold for a moment."

Also, in People v. Remereta,[21] where the question posed was whether an accused who stole a firearm could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient possession is not sufficient to convict one under the latter crime, thus:

"While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal possession of firearms is not committed by mere transient possession of the weapon. x x x Thus, stealing a firearm with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a case of theft, but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon would be lacking."

Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same.[22] It is not enough that the firearm was found in the person of the accused who held the same temporarily and casually or for the purpose of surrendering the same.   Admittedly, animus possidendi is a state of mind. As such, what goes on into the mind of an accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession.[23]

Thus, in People v. Leo Lian,[24] we rejected the argument of the accused that the charge against him should be dismissed because there was no animus possidendi on his part. In said case, the accused contended that he was on his way to the municipal hall to surrender the firearm when he met some of his friends. He then forgot about the firearm, until the police officer unceremoniously seized the same from him, affording him no chance to surrender it himself.

In rejecting accused-appellant's claim, Justice Regalado wrote that:

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"x x x, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable elements of possession without the necessary authority or license and the corresponding attendance of animus possidendi have both been convincingly established by the prosecution to warrant appellant's conviction x x x."

That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified by People v. Lubo.[25] In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied the same. Accused-appellant Lubo was found to have secured a "temporary license" for the subject firearm. Under such circumstance, we held that accused-appellant intended to possess the subject firearm beyond reasonable doubt.

Coming now to the case before us, it is undisputed that the police officers never really arrested Rodolfo dela Rosa, for the truth of the matter was that there was no need for such arrest. Dela Rosa and his companions had surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the police learned of the surrender because Kagawad Rigor reported it to the police station in Labrador. This is in contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm which the police found in his possession. In the case at bar, appellant dela Rosa's intention to surrender the ammunitions was very clear from the beginning and he was able to execute the same.

Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive possession of the ammunitions is irrelevant for possession -whether physical or constructive- without animus possidendi is not punishable. Dela Rosa's possession was harmless, temporary and only incidental for the purpose of surrendering the ammunitions to the authorities. Consequently, the prosecution failed to establish the first element of animus possidendi.

Similarly, the records are bereft of sufficient proof that Rodolfo dela Rosa possessed the ammunitions without authority to do so. Except for the preliminary examination of Pfc. Cipriano P. Castillo conducted by Municipal Circuit Trial Judge Benjamin N. Abella, [26] the prosecution offered no other evidence during the trial which showed lack of license. In the preliminary examination, the only relevant question asked by the judge was:

"JUDGE ABELLA"Q: Did you or the Stn. Commander ask or verify whether any or all of the above-named suspects have any license to possess the above-mentioned firearms and explosives?"A: Yes, sir. But they stated that they have no license to possess any of the firearms and explosives which were recovered from their possession, control and custody."

The Office of the Solicitor General offers the extrajudicial statement of accused Rodolfo dela Rosa [27] that Kumander Tamang supplied him with explosives and dynamite in furtherance of subversive activities. [28] According to the Solicitors, the extrajudicial statement is sufficient to prove that the firearms were illegally possessed. The presumption is erroneous. Aside from the fact that dela Rosa repudiated the extrajudicial statement because it was uncounselled,[29] the same did not contain any admission that he had no license to possess the firearm. And, even if it had contained an admission that he had no license, it still would not have sufficed.

In People v. Solayao,[30] the prosecution relied only on the testimonial evidence that accused-appellant admitted before the police officer who accosted him that he did not have any authority or license to carry the subject firearm when he was asked if he had one. In acquitting the accused-appellant, we stressed that the prosecution has the burden of proving beyond reasonable doubt the lack of license which is a negative averment. [31] The burden is in consonance with the evidentiary rule that "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative."[32] More importantly, the burden placed on the shoulders of the prosecution to prove beyond reasonable doubt the lack of license is premised on the constitutional presumption of innocence of the accused.[33] Thus, in People v. Solayao, this Court suggested that the prosecution could have, at the very least, presented a certification from the Firearms and Explosives Unit that the accused did not have the license to the gun. But, an extrajudicial admission of the accused, solely, will not suffice.

The Office of the Solicitor General contends that for accused-appellant to join the New People's Army and stay in the mountains without arming themselves is highly improbable. Thus, there is reason to believe that they illegally possessed the ammunitions to further their subversive activities even prior to surrendering them to the authorities. We reiterate that mere suspicion will not prove the prosecution's case in court. In a prosecution under Presidential Decree No. 1866, it is incumbent on the Government to prove both elements of the crime: (1) that the accused possessed the firearm and (2) that he had not first obtained a license or permit from the appropriate authorities.[34]

As always, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code which are mala in se or in crimes which are malum prohibitum by virtue of special law.[35] We find that such quantum of proof was not adequately presented in this case.

IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is acquitted in Criminal Case No. L-3616. His immediate release from the National Bilibid Prisons (NBP) is ordered, except if charged and detained for other offenses.

SO ORDERED.

Regalado, (Chairman), Mendoza, and Martinez, JJ., concur.

SECOND DIVISION

[G.R. No. 84857. January 16, 1998]

143

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODOLFO DELA ROSA Y AVILES, ANTONIO DELA ROSA Y AVILES, and RODOLFO QUIMSON Y NAVA (At large), accused-appellants.

D E C I S I O N

PUNO, J.:

Rodolfo dela Rosa y Aviles appeals the decision of the Regional Trial Court, First Judicial Region, Branch 38, Lingayen, Pangasinan, convicting him of illegal possession of firearms and explosives and imposing the penalty of reclusion perpetua.[1]

On January 27, 1987, an information for illegal possession of firearms and explosives was filed against RODOLFO DELA ROSA y AVILES, ANTONIO DELA ROSA y AVILES, CRESENCIO REYES y DELA CRUZ and RODOLFO QUIMSON y NAVA, to wit:

"That on or about the 9th of December 1986, in sitio (sic) Kadampat, Barangay Bolo, municipality (sic) of Labrador, province (sic) of Pangasinan, New Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovementioned accused, conspiring, confederating and helping one another, did then and there wilfully (sic), unlawfully and feloniously have in their possession, custody and control three (3) homemade gauge 12 shotguns and fourteen (14) pieces of dynamite explosives, without first securing the necessary permit/license to possess the same.

"Contrary to Presidential Decree No. 1866."[2]

All accused pleaded not guilty when arraigned on February 3, 1987. On March 12, 1987, the four accused withdrew their plea of not guilty and substituted it with a plea of guilt. After ascertaining that the plea of guilt was not made improvidently, the lower court imposed upon them the corresponding penalty.[3] However, on March 19, 1987, the four (4) accused filed a motion withdrawing their plea of guilt. [4] The lower court granted the motion in a resolution dated March 25, 1987.[5] Thereafter, trial proceeded. However, accused Cresencio Reyes changed his mind again and pleaded guilty to a lesser offense punishable under the last paragraph of Section 1 of Presidential Decree No. 1866. The court accepted the plea and sentenced him accordingly. He was utilized as a witness by the prosecution. The trial proceeded against the three remaining accused.

The prosecution established that in the morning of December 9, 1986, Rodolfo dela Rosa, Antonio dela Rosa, Cresencio Reyes and Rodolfo Quimson, surrendered to Kagawad Valeriano Rigor of Sitio Kadampat, Bolo, Labrador, Pangasinan claiming they want to lead a new life. They informed him that Benjamin Nano, alias Kumander Tamang, a member of the New People's Army (NPA), was shot by one of them. The four had with them a short shotgun (Exhibit A) and a bag containing several sticks of dynamite (Exhibit C to C-7). [6] Kagawad Rigor offered them breakfast and afterwards went to the police station to report the presence of four (4) surrenderees in his house. At the police station, Patrolman Gasline Fernandez recorded the report in the police blotter. Cpl. Crispin Cancino, the station commander, brought along several policemen and proceeded to the house of Kagawad Rigor. When the group arrived, only Kagawad Rigor and Cpl. Cancino entered the house. The other policemen stayed outside to secure the area. Inside the house, Kagawad Rigor introduced the surrenderees to Cpl. Cancino and showed him the short shotgun (Exhibit A) and the bag (Exhibit C to C-7) containing several sticks of dynamite. Then, all accused, except Rodolfo Quimson, who was left behind to guide the police in recovering the body of Kumander Tamang, were brought to the Philippine Constabulary (PC) Headquarters in Lingayen. In Lingayen, they proceeded at the municipal building and called on Mayor Calixto Pancho. The surrenderees had their picture taken with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters, where their statements were taken by Cpl. Arsenio Paragas and Cpl. Cipriano Castillo. [7] Meanwhile, the charred body of Benjamin Nano was recovered by the police in Sitio Tebel Patar.[8]

The following day, Cresencio Reyes informed the police that there were firearms left buried in Sitio Tebel Patar. Reyes pointed to the hiding place which was covered by banana leaves. When the banana leaves were removed, the police unearthed two (2) long barreled shotguns (Exhibits B and D).[9]

On the other hand, the three accused contend they were recruited by Kumander Tamang on different dates. Accused Rodolfo dela Rosa testified that he first saw Kumander Tamang on October 28, 1986 at a relative's wake. Kumander Tamang asked him whether he owned a piece of land. He said he did not, for he was only a sawali maker. Kumander Tamang then convinced him to join the New People's Army (NPA). He told Kumander Tamang he would think it over. On November 1, 1986, Kumander Tamang went to his house and reiterated his offer to him. Cresencio Reyes was with Kumander Tamang at that time. Reyes was carrying a bag (Exhibit C) while Kumander Tamang had a shotgun (Exhibit A). On November 10, 1986, Kumander Tamang went to his house and succeeded in persuading him to join the NPA. Kumander Tamang brought him at a hideout in the mountains of Sitio Tebel Patar, Labrador, Pangasinan.

On the evening of November 14, 1986, Rodolfo dela Rosa, Kumander Tamang and Cresencio Reyes, descended the mountains and proceeded to the house of Antonio dela Rosa, who was Rodolfo's cousin. At that time, Kumander Tamang was carrying a shotgun (Exhibit A) while Reyes was carrying a bag (Exhibit C). When they arrived at said place, Kumander Tamang and Reyes entered the house and stayed inside for ten (10) minutes. When the two came out, dela Rosa was with them. All of them headed for the mountains afterwards. On November 20, 1986, Rodolfo dela Rosa, Kumander Tamang Cresencio Reyes and Antonio dela Rosa went to the house of Rodolfo Quimson. Again, only Kumander Tamang and Reyes entered Quimson's house. They stayed inside for 15 minutes. When the two came out, Quimson was with them. Afterwards, they returned to their hideout in the mountains.[10]

On December 8, 1986, at 10:00 o'clock in the morning, Kumander Tamang called them to a meeting. Kumander Tamang took the bag (Exhibit C) which Reyes always carries and opened it. The bag yielded several sticks of dynamite. Kumander Tamang told them that at five o'clock in the afternoon they would go down Sitio Kadampat and assassinate Kagawad Rigor.[11] He then instructed them on how to use the explosives. After the meeting, they returned to their hut and rested. At two o'clock in the afternoon, they heard a gunshot from the hut of Kumander Tamang. They rushed outside and saw Reyes holding Kumander Tamang's shotgun. He announced that Kumander Tamang was dead. He told them it would be better to surrender themselves to the authorities. He ordered them to gather the shotgun and the sticks of dynamite while he set on fire Kumander Tamang's hut. At five o'clock in the afternoon, they descended the mountains and headed towards Sitio Kadampat. At 7:00 a.m., the following day, they reached the house of Kagawad Rigor. They saw the Kagawad sitting by himself on a bench outside his house. Only Reyes approached the Kagawad, so as not to frighten him. The three others waited by the roadside. After five (5) minutes, Reyes signalled the three to approach the house. Kagawad Rigor let them inside the house and offered them breakfast. Reyes placed the shotgun and the bag on top of the dining table. Kagawad Rigor then left the house and

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went to the police station.[12] He returned with several policemen. At first, the policemen pointed their guns at the accused but Kagawad Rigor told them there was no need for they were surrendering themselves to the authorities. Kagawad Rigor then showed the policemen the shotgun and the bag containing the sticks of dynamite. The policemen took all the surrenderees to the Municipal Hall, except Rodolfo Quimson, who was left behind, to lead the police to Kumander Tamang's body. At the Municipal Hall, Mayor Calixto Pancho greeted and congratulated them for coming back to the fold of law. They had their picture taken with Mayor Pancho and Kagawad Rigor. Afterwards, they were brought to the police headquarters. When an investigator started to question them, they asked for a lawyer to assist them but the investigator said they would not need one for they were surrenderees and would soon be freed. Hence, they gave their subscribed statements to the police. After their statements were taken, the police took them back to the police station in Labrador, where they were detained. On January 5, 1987, they were transferred to the provincial jail in Lingayen. They denied ever seeing the two (2) long firearms (Exhibits C and D) which were recovered in Sitio Tebel Patar. They saw said firearms for the first time when the prosecution presented them as exhibits during the trial.[13]

When trial concluded, the lower court convicted the three (3) accused. Antonio dela Rosa did not appeal [14] while Rodolfo Quimson escaped[15] from the National Bilibid Prisons (NBP) where he was detained after the lower court convicted him. Only Rodolfo dela Rosa appealed contending that:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT RODOLFO DELA ROSA GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND EXPLOSIVES, DEFINED AND PENALIZED UNDER THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866.We find merit in the appeal.

It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who surrendered the subject firearm (Exhibit A) and explosives (Exhibit C to C-7) to Kagawad Rigor. However, Rodolfo dela Rosa denies that he was in possession of said ammunitions in the manner punishable by law. According to him, his real intention was merely to turn over the ammunitions, which were owned by Kumander Tamang, to the authorities. The trial court perceived otherwise. It declared that since Rodolfo dela Rosa joined the New People's Army (NPA), there is reason to conclude that he provided himself with arms such as Exhibits A, B, C to C-7 and D. [16] And since mere possession is sufficient to convict a person for crimes which are malum prohibitum like illegal possession of firearms, appellant dela Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the authorities.

We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on the above reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall "x x x unlawfully manufacture, deal in, acquire, dispose or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." (Underscoring supplied) [17]

Broken down into its salient elements, illegal possession of firearms is committed when the holder thereof:

(i) possesses a firearm; and(ii) lacks the authority or license to possess it.[18]

In People v. de Gracia,[19] we clarified the meaning of possession for the purpose of convicting a person under PD 1866, thus:

"But, is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance for illegal possession of firearms is a malum prohibitum, punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. "When a crime is punished by a special law, as a rule, intent to commit the crime is not necessary, it is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime but he intended to commit an act, and that act is by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there wasanimus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent."

In the early case of People v. Estoista,[20] we held that a temporary, incidental, casual, or harmless possession of firearms is not punishable. We stated therein that:

"The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and opinions on the degree and character of control or dominion sufficient to constitute a violation vary. The rule laid down in the United States courts - rule which we here adopt - is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to examine or hold for a moment."

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Also, in People v. Remereta,[21] where the question posed was whether an accused who stole a firearm could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient possession is not sufficient to convict one under the latter crime, thus:

"While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal possession of firearms is not committed by mere transient possession of the weapon. x x x Thus, stealing a firearm with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a case of theft, but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon would be lacking."

Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same.[22] It is not enough that the firearm was found in the person of the accused who held the same temporarily and casually or for the purpose of surrendering the same.   Admittedly, animus possidendi is a state of mind. As such, what goes on into the mind of an accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession.[23]

Thus, in People v. Leo Lian,[24] we rejected the argument of the accused that the charge against him should be dismissed because there was no animus possidendi on his part. In said case, the accused contended that he was on his way to the municipal hall to surrender the firearm when he met some of his friends. He then forgot about the firearm, until the police officer unceremoniously seized the same from him, affording him no chance to surrender it himself.

In rejecting accused-appellant's claim, Justice Regalado wrote that:

"x x x, the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable elements of possession without the necessary authority or license and the corresponding attendance of animus possidendi have both been convincingly established by the prosecution to warrant appellant's conviction x x x."

That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified by People v. Lubo.[25] In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied the same. Accused-appellant Lubo was found to have secured a "temporary license" for the subject firearm. Under such circumstance, we held that accused-appellant intended to possess the subject firearm beyond reasonable doubt.

Coming now to the case before us, it is undisputed that the police officers never really arrested Rodolfo dela Rosa, for the truth of the matter was that there was no need for such arrest. Dela Rosa and his companions had surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the police learned of the surrender because Kagawad Rigor reported it to the police station in Labrador. This is in contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm which the police found in his possession. In the case at bar, appellant dela Rosa's intention to surrender the ammunitions was very clear from the beginning and he was able to execute the same.

Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive possession of the ammunitions is irrelevant for possession -whether physical or constructive- without animus possidendi is not punishable. Dela Rosa's possession was harmless, temporary and only incidental for the purpose of surrendering the ammunitions to the authorities. Consequently, the prosecution failed to establish the first element of animus possidendi.

Similarly, the records are bereft of sufficient proof that Rodolfo dela Rosa possessed the ammunitions without authority to do so. Except for the preliminary examination of Pfc. Cipriano P. Castillo conducted by Municipal Circuit Trial Judge Benjamin N. Abella, [26] the prosecution offered no other evidence during the trial which showed lack of license. In the preliminary examination, the only relevant question asked by the judge was:

"JUDGE ABELLA"Q: Did you or the Stn. Commander ask or verify whether any or all of the above-named suspects have any license to possess the above-mentioned firearms and explosives?"A: Yes, sir. But they stated that they have no license to possess any of the firearms and explosives which were recovered from their possession, control and custody."

The Office of the Solicitor General offers the extrajudicial statement of accused Rodolfo dela Rosa [27] that Kumander Tamang supplied him with explosives and dynamite in furtherance of subversive activities. [28] According to the Solicitors, the extrajudicial statement is sufficient to prove that the firearms were illegally possessed. The presumption is erroneous. Aside from the fact that dela Rosa repudiated the extrajudicial statement because it was uncounselled,[29] the same did not contain any admission that he had no license to possess the firearm. And, even if it had contained an admission that he had no license, it still would not have sufficed.

In People v. Solayao,[30] the prosecution relied only on the testimonial evidence that accused-appellant admitted before the police officer who accosted him that he did not have any authority or license to carry the subject firearm when he was asked if he had one. In acquitting the accused-appellant, we stressed that the prosecution has the burden of proving beyond reasonable doubt the lack of license which is a negative averment. [31] The burden is in consonance with the evidentiary rule that "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative."[32] More importantly, the burden placed on the shoulders of the prosecution to prove beyond reasonable doubt the lack of license is premised on the constitutional presumption of innocence of the accused.[33] Thus, in People v. Solayao, this Court suggested that the prosecution could have, at the very least, presented a certification from the Firearms and Explosives Unit that the accused did not have the license to the gun. But, an extrajudicial admission of the accused, solely, will not suffice.

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The Office of the Solicitor General contends that for accused-appellant to join the New People's Army and stay in the mountains without arming themselves is highly improbable. Thus, there is reason to believe that they illegally possessed the ammunitions to further their subversive activities even prior to surrendering them to the authorities. We reiterate that mere suspicion will not prove the prosecution's case in court. In a prosecution under Presidential Decree No. 1866, it is incumbent on the Government to prove both elements of the crime: (1) that the accused possessed the firearm and (2) that he had not first obtained a license or permit from the appropriate authorities.[34]

As always, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code which are mala in se or in crimes which are malum prohibitum by virtue of special law.[35] We find that such quantum of proof was not adequately presented in this case.

IN VIEW WHEREOF, accused-appellant Rodolfo dela Rosa is acquitted in Criminal Case No. L-3616. His immediate release from the National Bilibid Prisons (NBP) is ordered, except if charged and detained for other offenses.

SO ORDERED.

Regalado, (Chairman), Mendoza, and Martinez, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. L-51370 August 31, 1981AMADO IZON and JIMMY MILLA petitioners, vs.PEOPLE OF THE PHILIPPINES, respondent. DE CASTRO*, J.:Petitioners were charged, together with Pedro Divino, in the Circuit Criminal Court, Third Judicial District, Olongapo City, with Robbery with Violence Against Person, under an information reading as follows:

That on or about the 8th day of September, 1977, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another and by means of violence and intimidation applied upon the person of Reynaldo Togorio committed by the accused Jimmy Milla y Castillo and Pedro Divino y Batero who were armed with bladed weapon which they pointed to one Reynaldo Togorio and used in stabbing him and the accused Amado Izon y Bartulo who helped in mauling him thereby inflicting upon said Reynaldo Togorio the following physical injuries, to wit:

Incised wound 2 cm. long and 2 cm. deep lateral aspect upper third arm right. Incised wound 2 inches long between thumb and index finger left Abrasion sternoclavicular function along 6 rib left. Linear abrasion 3 cm. long level of 7th rib, anterior axillary line right

which injuries shall require medical attendance for a period of less than nine (9) days, barring complications, did then and there wilfully, unlawfully and feloniously take, steal and carry away one (1) motorized tricycle with motor No. B100-25-648 with Chasis No. B120-05589 and Plate No. MCH Q4102 or with a total value of P11,000.00, Philippine Currency belonging to Reynaldo Togorio to the damage and prejudice of the latter in the aforementioned amount of Pll,000.00. However, the motorized tricycle Zukurmi 120, Motor No. B1OO-25-648 with Chasis No.B-120-05589 was recovered. 1

Pleading guilty upon arraignment, petitioners were sentenced to the penalty provided in Republic Act No. 6539 known as Anti-Car-napping Act of 1972 which defines motor vehicle as follows:

Motor vehicle is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts amphibian trucks, and cranes if not used on public highways, vehicles which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. 2 (Emphasis supplied).

Contending that the court a quo erred in imposing the penalty prescribed in the Anti-Carnapping Act of 1972 instead of that prescribed in the Revised Penal Code for simple robbery with violence, because the information did not allege that the motorized tricycle stolen was using the public highway, so as to make it a motor vehicle as the term is defined in the carnapping law, and therefore failed to inform them that they were being charged under the cited statute, in violation of their constitutional right to be informed of the nature and cause of the accusation against the petitioners came to this Court with the instant petition for review.The principal issue thus raised is whether a motorized tricycle is a motor vehicle within the definition given to the term by the Anti-Carnapping Act of 1972.As a consequence of their contention that the motorized tricycle is not a motor vehicle under the definition of the aforecited Act, petitioners also claim that they are not properly informed of the cause and nature of the accusation against them in violation of their constitutional right.Petitioners maintain that the tricycle in question is not a "motor vehicle" as the anti-carnapping law defines the term because it is not licensed to operate on the "public highways." The Solicitor General contends otherwise with the following argument:

The word "public" means "common to all or many; general; open to common use" (Black's Law Dictionary 1393 [Revised 4th Ed.]. On the other hand, 'highway' refers to a 'free and public road way, or street; one which every person has the right to use (idem. at p. 862). lt is clear that a street within a town is a public highway if it is used by the public. To limit the words "public highways" to a national road connecting the various towns, as petitioners' suggest (Reply dated January 25, 1980) would create a distinction which the statute itself does not make. Under petitioners' proposition, a distinction should be made between motor vehicles operating

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within a town like the motorized tricycle involved herein, and those using roads connecting towns. This, however, goes against the well known maxim that where the law does not distinguish, no distinction should be made (Robles vs. Zambales Chromite Mining Co., 104 PhiL 688). It is also to be pointed out that to limit the application of the Act to motor vehicles travelling between different towns, may lead to absurd results. For example, privately owned motorcycle used by its owner in travelling from one province to another would be covered by the law. Upon the other hand, a motorized tricycle (with sidecar) which is more expensive than the former but operated within towns would not be protected by the law. No unreasonable intendment should be read into a statute so that an injustice may be worked or an absurb result produced (In re Moore's Estate, N.Y.S. 2nd 281, 165 Misc. 683). It can be concluded, therefore, that the motorized tricycle involves in this case is a 'motor vehicle' within the ambit of section 2 of the Anti-Carnapping Act of 1972. The lower court correctly imposed the penalty for violation of said Act on herein petitioners. 3

We perceive no reason not to accord full validity of the Solicitor General's argument, not even on the petitioner's submission that a motorized tricycle, not having licensed to use a public highway, is not a motor, vehicle under the provision of the anti-carnapping act.From the definition cited by the Government which petitioners admit as authoritative, highways are always public, free for the use of every person. There is nothing in the law that requires a license to use a public highway to make the vehicle a "motor vehicle" within the definition given the anti-carnapping law. If a vehicle uses the streets with or without the required license, same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of streets or highway the same is used; but by the very nature of the vehicle itself and the use to which it is devoted. Otherwise, cars using the streets but still unlicensed or unregistered as when they have just beet bought from the company, or only on test runs, may be stolen without the penal sanction of the anti-carnapping statute, but only as simple robbery punishable under the provision of the Revised Penal Code. This obviously, could not have been the intention of the anti-carnapping law.Going over the enumerations of excepted vehicle, it would readily be noted that any vehicle which is motorized using the streets which are public, not exclusively for private use, comes within the concept of motor vehicle. A tricycle which is not included in the exception, is thus deemed to be that kind of motor vehicle as defined in the law the stealing of which comes within its penal sanction.In any event, it is a matter of judicial notice that motorized tricycles are running in droves along highways admittedly public, as those going to the north like Baguio City. Those motorized tricycles certainly come within the definition of the law, even under the restricted construction that petitioners would want given to it. If these tricycles are "motor vehicles" then, there is no cogent reason to treat the tricycle in question differently.With the foregoing discussion, it would logically follow that the petitioners complaint of not having been informed of the nature and cause of the accusation against them and for which they were convicted upon their plea of guilty, is unfounded, legally and factually.Again, on tills point, We find the observation of the Solicitor General valid, We have no other course than to sustain it. Thus —

A perusal of the information (Annex 1 of respondent People's Comment dated November 16, 1979) readily shows that petitioners were not thereby informed that they were being accused for violation of the Revised Penal Code. The charge merely designated the offense as one for: "ROBBERY WITH VIOLENCE AGAINST PERSON." The facts alleged in the information make out a case of "carnapping". This offense is defined in section 2 of Republic Act No. 6539 as 'the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things The information clearly specified that what was taken and carried away was "one (1) motorized tricycle." Herein petitioners cannot claim that they were misled by the information into pleading guilty. It is not necessary for the protection of the substantial right of the accused, nor the effective preparation of his defense, that he be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged (People vs. Cosare, 95 PhiL 656; U.S. vs. Lim San 17 Phil. 275).

FOR ALL THE FOREGOING, the petition is hereby dismissed. No costs. 4

SO ORDERED.Teehankee (Chairman), Makasiar, Fernandez, Guerrero and Melencio-Herrera JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 138470 April 1, 2003PEOPLE OF THE PHILIPPINES, appellee, vs.ARTEMIO GARCIA y CRUZ, JR. and REGALADO BERNABE y ORBE, accused.REGALADO BERNABE y ORBE, appellant.YNARES-SANTIAGO, J.:This is an appeal from the decision1 dated March 10, 1999 of the Regional Trial Court of Malolos, Bulacan, Branch 21, in Criminal Case No. 830-M-98, finding Artemio Garcia y Cruz, Jr. and Regalado Bernabe y Orbe guilty beyond reasonable doubt of the crime of Carnapping with Homicide and sentencing them to suffer the penalty of reclusion perpetua.On June 3, 1998, Artemio Garcia, Jr. and Regalado Bernabe were charged with the crime of Carnapping with Homicide as defined in Republic Act No. 6539. The Information against them reads:

That on or about the 21st day of December, 1996, in the municipality of San Rafael, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and helping with each other, with intent of gain, did then and there willfully, unlawfully and feloniously and by means of violence and intimidation, forcibly take from the driver Wilfredo Elis a brand new Toyota Tamaraw FX with Plate No. UJL-761 owned by Fernando Ignacio;

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That during the commission of the offense, or by reason thereof, the said accused, armed with bladed weapons, conspiring, confederating and helping each other, did then and there, with intent to kill, willfully, unlawfully and feloniously attack, assault and stab Wilfredo Elis in different parts of his body causing mortal wounds which directly resulted in his death.Contrary to law.2

Upon arraignment, both accused pleaded "not guilty" to the crime charged. Thereafter, the case was tried on the merits.It appears from the record that on December 17, 1996, Joselito Cortez, a taxicab operator based in Marilao, Bulacan, was approached by Garcia and Bernabe because they wanted to borrow his brand new Mitsubishi L300 van for their trip to the Bicol region. Cortez refused, saying that the van was unavailable.Instead, he got in touch with Ferdinand Ignacio, who had just purchased a brand new Toyota Tamaraw FX for P475,500.00.3 Ignacio agreed to lease his vehicle to Cortez for two days at the daily rate of P2,000.00. Bernabe and Garcia, on the other hand, rented the vehicle from Cortez for P4,000.00 a day inclusive of the P500.00 driver’s fee. They agreed to pay the rental fee upon their return from Bicol.4

In the early morning of December 18, 1996, Cortez and his driver, Wilfredo Elis, picked up Ignacio’s Tamaraw FX at his residence in Meycauayan, Bulacan. Elis drove the same back to Marilao, Bulacan and, at 8:00 a.m., he and the two accused left for Bicol.5

Four days passed without a word from Garcia and Bernabe. Cortez began to worry about the vehicle he had borrowed from Ferdinand Ignacio so he informed the Barangay Captain of Saog, Marilao, Bulacan. Meanwhile, Elis’ wife, Nancy, approached Cortez and asked where her husband was.6

In the afternoon of December 23, 1996, SPO2 Emmanuel Lapurga of the Moncada, Tarlac Police notified the Chief of Police that two suspicious looking persons were seen selling a vehicle in Anao, Tarlac at the grossly inadequate price of P50,000.00. The Chief of Police immediately formed a team,7 but when they reached Anao, Tarlac, they found out that the two accused had already left for Nampicuan, Nueva Ecija. The team thereafter coordinated with the Nueva Ecija Police. The two accused were seen in front of a store in Brgy. Pangayan, Nampicuan, Nueva Ecija. When they failed to produce documents of ownership over the Tamaraw FX, they were brought to the Moncada Police Station for investigation.8

Garcia and Bernabe admitted to the Moncada Police that they attempted to sell the Tamaraw FX belonging to Ferdinand Ignacio. In the early morning of December 24, 1996, a joint team of police officers composed of members of the Moncada and Marilao Police, together with the Barangay Captain of Saog, Marilao, Bulacan, were accompanied by Cortez to Moncada, Tarlac, where the latter positively identified Ignacio’s Tamaraw FX.Cortez went to visit Garcia and Bernabe in detention. They admitted to him that they stabbed Elis and dumped him along the highway near the "sabana" in San Rafael, Bulacan. They claimed that they were compelled to eliminate Elis when he refused to join their plan to sell the Tamaraw FX. Garcia brought the policemen, together with Cortez and the Barangay Captain, to San Rafael, Bulacan where he pointed to the place where they killed Elis. However, the police were unable to find Elis’ body. After returning to Moncada, Cortez immediately inspected the interior of the vehicle and found bloodstains on the side and back of the driver’s seat. He also found several personal items belonging to Elis, such as his clothes and driver’s license,9 as well as Garcia’s bag which contained bonnets, tear gas, the warranty card and the car registration papers.10

On December 29, 1996, the Moncada police received information that a male cadaver was found in San Rafael, Bulacan, submerged in mud ten meters away from where they searched earlier. The cadaver was identified as that of Wilfredo Elis by his wife, Nancy.11

Dr. Benito Caballero, Municipal Health Officer and Medico-Legal Officer of the province of Bulacan, who performed the autopsy, found four stab wounds in the posterior, one stab wound in the lateral and one on the left side of the thorax. He opined that the wounds which penetrated the abdomen and lungs were fatal.12

In their defense, Garcia and Bernabe alleged that they agreed to rent the subject vehicle for a period of five days from December 18, 1996; that Garcia and Elis had a fight because the latter allegedly did not want to go with them to Nueva Ecija; that Elis, while driving the Tamaraw FX, bumped a passenger jeepney along Baliuag Highway; that they left Elis along the Baliuag Highway at 3:30 a.m. so he can inform Cortez that they were already in Bulacan and were en route to Nueva Ecija to have the dented portion of the vehicle fixed.13

After trial, the court a quo rendered a decision, the dispositive portion of which reads:WHEREFORE, all premises considered, this Court finds and so holds that the prosecution has been able to establish the accused’s criminal culpability. In view thereof, Artemio Garcia y Cruz, Jr. and Regalado Bernabe y Orbe are hereby found GUILTY beyond reasonable doubt of the special complex crime of Carnapping with Homicide in violation of Republic Act No. 6539 as amended by Republic Act No. 7659. Accordingly, absent any circumstances that will aggravate the commission thereof, both of them are hereby sentenced to suffer the penalty of Reclusion Perpetua. Further, both accused are hereby ordered jointly and severally to indemnify the heirs of Wilfredo Elis, the sum of P50,000.00; to pay them the amount of P100,000.00 for moral damages; P15,290.00 for actual/ compensatory damages; and P250,000.00 for loss of earnings.With costs against the accused.SO ORDERED.14

Both accused appealed from the decision of the trial court. On March 31, 2000, accused Garcia filed an Urgent Motion to Withdraw Appeal,15 which was granted in a Resolution dated September 27, 2000.Appellant Bernabe raises the following assignment of errors:

ITHE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ALL THE ELEMENTS OF CARNAPPING AS DEFINED IN REPUBLIC ACT 6539 (ANTI-CARNAPPING ACT) AS AMENDED ARE PRESENT AND DULY PROVEN.

IITHE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANT BERNABE WAS PART OF AN ALLEGED CONSPIRACY TO COMMIT CARNAPPING.

IIITHE HONORABLE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT BERNABE ON THE BASIS OF HIS ALLEGED ADMISSION OF THE CRIME TO PRIVATE INDIVIDUALS.Republic Act No. 6539, otherwise known as "An Act Preventing and Penalizing Carnapping", defines "carnapping" as "the taking, with intent to gain, of a motor vehicle belonging to another without the latter’s consent, or by means of violence against or intimidation of persons, or by using force upon things."16 More specifically, the elements of the crime are as follows:

1. That there is an actual taking of the vehicle;2. That the offender intends to gain from the taking of the vehicle;

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3. That the vehicle belongs to a person other than the offender himself;4. That the taking is without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things.17

A careful examination of the evidence presented shows that all the elements of carnapping were proved in this case.Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.18

In the case at bar, it cannot be denied that the nature of the appellant’s possession of the Tamaraw FX was initially lawful. Nevertheless, the unlawful killing of the deceased for the purpose of taking the vehicle radically transformed the character of said possession into an unlawful one. Cortez categorically stated that during his first visit to the Moncada Police Station where appellant and his co-accused were detained, the two separately admitted to him that they killed the deceased when the latter refused to join their plan to sell the vehicle. Their confession, having been freely and voluntarily given to Cortez, a private individual, is admissible against the appellant.19 Thus, the duration of the lease of the Tamaraw FX, whether for an indefinite period as contended by the defense, or only for 4 days, as claimed by the prosecution, has no bearing on the culpability of the appellant. It does not matter whether the unlawful taking occurred within the period of the lease. What is decisive here is the purpose of appellant and his co-accused in killing the victim. Such is the vital point on which the crime and the nature thereof is to be determined. To reiterate, the prosecution was able to establish that appellant and his co-accused stabbed the victim to death because he refused to join them in their plan to appropriate the vehicle. This undoubtedly satisfied the element of unlawful taking through violence, rendering appellant liable for the crime charged.Moreover, it must be stressed that the acts committed by appellant constituted the crime of carnapping even if the deceased was the driver of the vehicle and not the owner. The settled rule is that, in crimes of unlawful taking of property through intimidation or violence, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. What is simply required is that the property taken does not belong to the offender. Actual possession of the property by the person dispossessed suffices. So long as there isapoderamiento of personal property from another against the latter's will through violence or intimidation, withanimo de lucro, unlawful taking of a property belonging to another is imputable to the offender. 20

Furthermore, at the time of their apprehension, appellant Bernabe and Garcia were unable to give a plausible explanation why they still had the Tamaraw FX in their possession. Appellant Bernabe claims that he and his co-accused went to Nampicuan, Nueva Ecija to have the dent on the vehicle repaired. Garcia, on the other hand, testified that there was no such damage. A person in possession of a stolen article is presumed guilty of having illegally and unlawfully taken the same unless he can satisfactorily explain his possession of the thing.21

Appellant contends that he did not conspire with his co-accused to commit the crime of carnapping.Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime,22 which are indicative of a joint purpose, concerted action and concurrence of sentiments.23 In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be deduced from the mode and manner in which the offense was perpetrated.24

In the case at bar, it was sufficiently proved that Garcia and Bernabe, through Joselito Cortez, hired the brand new Toyota Tamaraw FX belonging to Ferdinand Ignacio for their trip to Bicol; that at 8:00 a.m. of December 18, 1996, they left for Bicol on board the Tamaraw FX driven by Elis; that on December 23, 1996, SPO2 Emmanuel Lapurga of Moncada, Tarlac reported to the Chief of Police that two suspiciously looking persons, who turned out to be Garcia and Bernabe were offering to sell a brand new Toyota Tamaraw FX for a mere P50,000.00 in Anao, Tarlac; and that the two were finally apprehended with the subject vehicle at Nampicuan, Nueva Ecija by elements of the Tarlac and Nueva Ecija Police.While there may be no direct evidence of the commission of the crime, the foregoing constitute circumstantial evidence sufficient to warrant Garcia’s and Bernabe’s conviction. The following requisites for circumstantial evidence to sustain a conviction were met, to wit: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.25 The circumstances indeed form an unbroken chain which leads to a fair and reasonable conclusion that Bernabe and Garcia were the perpetrators of the crime. It has been held that facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.26

The records show that Garcia and Bernabe admitted to Cortez and Ignacio that they were responsible for taking the vehicle and killing the victim, Elis. On December 24, 1996, Cortez went to the Moncada Municipal Jail and talked to them while they were detained. Both admitted to him that they forcibly took the said vehicle from Elis, stabbed him and thereafter dumped him at San Rafael, Bulacan.27 Subsequently, on December 26, 1996, Cortez and Ignacio went to Moncada and confronted the two in their cells. Garcia admitted to Cortez and Ignacio that they stole the vehicle because they were in dire need of money, while Bernabe kept quiet.28

Appellant Bernabe maintains that the trial court erred in admitting in evidence his admission to Cortez and Ignacio on the grounds that (a) he did not make such admission; (b) the admission made by Garcia should not prejudice him; and (c) assuming he made such admission, it should be excluded for having been made under duress and intimidation.29

In People v. Andan,30 it was held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Article III, Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, and not to prevent him from freely and voluntarily telling the truth. Hence, appellant’s voluntary admission to Cortez that he and his co-accused conspired in killing the deceased when the latter opposed their plan to sell the vehicle is admissible as evidence against him.Anent Garcia’s extrajudicial confession implicating appellant in the commission of the offense, it appears that the latter did not oppose or affirm Garcia’s statement. Neither did he make an attempt to refute the same insofar as his participation in the commission of the crime was concerned. As correctly observed by the Office of the Solicitor General, "he cannot invoke his silence during this crucial moment as his right. He ought to speak and failing to do so, his silence weighs heavily on him. Thus, it was not accused-appellant’s Garcia’s admission that prejudiced accused-appellant Bernabe, but his own silence when it was ‘such as naturally to call for action or comment if not true’."31

Rule 130, Section 32 of the Rules of Court provides that an act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him.

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We likewise find no merit in the allegation that duress was employed on appellant. Suffice it to state that such bare allegation of force and duress is not enough to prove that he was indeed tortured to admit complicity in the offense charged.The penalty for carnapping is provided in Section 14 of RA 6539, as amended by Section 20 of RA 7659, to wit:

Sec. 14. Penalty for Carnapping.- Any person who is found guilty of carnapping, as this term is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of the commission of the carnapping or on the occasion thereof.32 (Emphasis supplied)

Hence, the trial court correctly imposed the penalty of reclusion perpetua on appellant Bernabe and his co-accused, Garcia.The award by the trial court of P50,000.00 in favor of the heirs of the victim should be affirmed. When death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity for the death, without need of any evidence of proof of damages.33 This is in addition to the actual damages of P15,290.50 which was duly substantiated by proof.34 We, however, reduce the award of moral damages to P50,000.00, in line with current jurisprudence.35

Lastly, we find the court a quo’s award of P250,000.00 for loss of earning capacity to be without basis. Nancy testified that her husband Wilfredo was earning P600.00 a day prior to his death,36 however, she failed to produce evidence to substantiate her claim. As held in the case of People v. Panabang,37 a self-serving statement is not enough; the indemnification for loss of earning capacity must be duly proven.WHEREFORE, the decision dated March 10, 1999, of the Regional Trial Court of Malolos, Bulacan, Branch 21, finding appellant Regaldo Bernabe y Orbe guilty of Carnapping with Homicide, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the victim, Wilfredo Elis, the sums of P50,000.00 as civil indemnity and P15,290.00 as actual damages, is AFFIRMED with the following MODIFICATIONS: Appellant is further ordered to pay the heirs of the victim, Wilfredo Elis, moral damages in the reduced amount of P50,000.00. The award of P250,000.00 for loss of earnings is DELETED for lack of factual basis.Costs de officio.SO ORDERED.Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna, JJ., concur.

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 135904 January 21, 2000PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ALVIN TAN y LAGAMAYO, accused-appellant.DAVIDE, JR., C.J.:In this petition for review under Rule 45 of the Rules of Court, petitioner Alvin Tan (hereafter TAN) seeks his acquittal by a reversal of the 29 June 1998 decision1 of the Court of Appeals in CA-G.R. CR No. 20688 which affirmed his conviction for violating Republic Act No. 6539, An Act Preventing and Penalizing Carnapping.2TAN's motion for reconsideration of said decision and motion for oral arguments were denied for lack of merit by the Court of Appeals in its 6 October 1998 resolution.3 Said decision and resolution of the Court of Appeals affirmed the 19 December 1994 judgment of conviction against TAN by the Regional Trial Court, Branch 95, Quezon City in Criminal Case No. Q-93-45449.TAN's indictment4 for violation of Republic Act No. 6539 reads as follows:

That on or about the 7th day of November, 1992, in Quezon City, Philippines, the above-named accused, with intent to gain and without the consent of the owner thereof, did, then and there willfully, unlawfully and feloniously take, steal and carry away one (1) Mitsubishi Gallant car colored blue, bearing Plate No. CGS-723 owned by one PHILIP SEE, of undetermined value, to the damage and prejudice of said Philip See.

Upon his arraignment on 14 July 1993 and with the assistance of counsel, Tan pleaded not guilty to the charge. Trial immediately ensued as the parties waived the holding of a preliminary conference.The trial court's terse recapitulation of the prosecution evidence proceeded in this manner:5

. . . [P]rivate complainant Philip See is the registered owner of a 1987 Mitsubishi Gallant four-door valued at P420,000.00, bearing plate no. CGS-723, colored blue, and with motor no. 4G32-FG2704 and serial/chassis no. A161UL-3011. Sometime in March 1992, accused Alvin Tan was introduced to Philip by Alvin's fiancee, one Vienna Yu, and from then on, Philip and Alvin became friends and started to see each other on several occasions thereafter.On November 7, 1992, about 9:30 a.m., Philip together with his wife Ruby See and Robert Chua (a neighbor) was at his place of residence . . . when Alvin arrived thereat. He made it known to Philip that he was intending to buy Philip's aforesaid car and that he wanted to test-drive it. On account of their friendship and believing Alvin's assurance that he would return the car after he shall have test-driven it, Philip granted Alvin's request . . . . On thus getting hold of the car, Alvin sped away and never returned. In vain, Philip waited for Alvin to show up and return the car; Alvin simply did not show up, much less cause the return of the car.Thus, Philip started to call up and look for Alvin at his office at Roosevelt Avenue, QC, but Alvin avoided him by refusing to answer the telephone calls or pretending he was not around; and Philip's attempts to see Alvin at his office similarly proved futile, for whenever Philip would go to said office, Alvin would refuse to see him. Dismayed though he was, Philip desisted as long as he could from reporting and complaining about the matter to the authorities; Philip still believed that being a friend, Alvin eventually would come around to returning the car to him. Meanwhile, sometime on March 5, 1993, with the assistance of some personnel of the Land Transportation Office (LTO), Philip was able to cause the car's 1993 renewal registration in the absence of the vehicle and he was issued the corresponding official receipt therefor.1âwphi1.nêt

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Sometime on May 19, 1993, Philip again tried to see Alvin at his place at Roosevelt. Again Philip was told that Alvin was not around. One of Alvin's employees, however, advised Philip to the effect that the car was parked and hidden right behind Alvin's warehouse. The location of the warehouse having been given to him, Philip went to the place and at a distance of some five feet, he saw the vehicle parked at the rear end of the warehouse. To his shock and surprise, he saw that parts of the car, like the bumper, a door, and several interior accessories, had been dismantled and were already missing. Worse, several pieces of wood were piled on top of the car as if purposely hide and conceal it from view.Still failing to recover his car, Philip on or about June 2, 1993, formally lodged a complaint for carnapping against Alvin before the QC police station. Some two days later, or on June 4, 1993, Philip reported the loss of his car to the Philippine National Police (PNP) Traffic Management Command and he accordingly signed the corresponding complaint sheets. Too, an alarm for the subject car was issued. To his further shock and consternation, Philip was informed by the PNP's Highway Patrol Group (HPG) that somebody had applied for a clearance to sell the car and that the applicant was made to appear as one Philip See. . . . Philip denied his alleged signature on the application and also denied having supposedly applied for clearance to sell his vehicle.Meanwhile, acting on the complaint lodged by Philip against Alvin before the QC police station 1, the police authorities scheduled a visit to the place of Alvin, with Philip being asked by them to pinpoint and identify Alvin in the course thereof. Accordingly, at Alvin's place, he was identified and invited by the police to the station for investigation. While still at Alvin's office, Philip saw on top of Alvin's table what Philip believed to be accessories from his car, consisting of a two-way radio antenna and car stereo, which appeared to him to have been dismantled from the subject car.At that time Alvin took the car supposedly to test-drive it on November 7, 1992, the car was in top condition, had low mileage, was "fully loaded" with complete interior accessories including an imported Kenwood stereo, and had imported magwheels.

Expectedly, Tan impugned the prosecution's version and presented a completely diverse tale.Firstly, TAN asserted that Philip See (hereafter SEE) filed the complaint to purposely collect a debt from him and wittingly use the court as collecting agent. Secondly, TAN claimed that SEE instituted the complaint in revenge of the quarrels they had over TAN's girlfriend whom SEE wooed, and (2) in retaliation against the complaint for grave threats and illegal possession of firearms filed by one of TAN's employees against SEE.TAN then traced this legal predicament to the time when his girlfriend introduced him to SEE in March 1992. TAN and SEE instantly became friends for they shared a similar acumen for business and passion for target shooting. Inevitably, they engaged in and entered into several business transactions which resulted in TAN's indebtedness to SEE in the amount of P800,000. Inspite of this, SEE still offered to sell the subject Mitsubishi Galant to TAN for the amount of P280,000. TAN declined the offer. SEE persisted to the extent that he brought the car to TAN's residence on 26 November 1992 and generously suggested that he would just add into the latter's existing indebtedness to him the car's purchase price.Sometime in February 1993, SEE tried to collect the car's purchase price but TAN had still no funds. So TAN suggested that he would apply with a bank for a car loan using the car as security and apply the proceeds of said loan in payment for the car. SEE agreed. Subsequently, TAN submitted in his name a loan application with the BPI Family Bank in Makati. In compliance with the requirements of the loan application, SEE personally supervised the car's appraisal and inspection on 19 March 1993. TAN additionally maintained that he and SEE signed a deed of sale covering the subject automobile but that TAN did not receive a copy of said deed upon SEE's pretext that he would use it for facilitation of the loan.The bank approved the loan application but only in the amount of P129,000. Naturally, SEE considered the amount insufficient and hence, refused to accept the terms of the loan. Consequently, TAN did not seek the release of the loan.The friendship eventually soured and the resulting "misunderstanding" with SEE impelled TAN on 19 May 1993 to instruct his warehouse overseer to return the car to SEE's residence. TAN's employee drove the car to SEE's house, parked the car outside the gate and then handed over the keys of the car to SEE's wife, Ruby.Tan was therefore surprised when on 14 June 1993, police officers arrived at his residence and invited him to the police station; this, to TAN's additional bewilderment, was in connection with SEE's complaint for the carnapping of the car he already returned. TAN peacefully went with the police authorities to the station.6

Weighing the evidence thus proffered, the trial court believed in the prosecution's version, particularly in SEE's clear, positive, and straightforward account — which said court found amply demonstrated — that SEE had withdrawn the consent initially given to TAN when the latter went beyond test-driving and appropriated the car for his own use and benefit. To the trial court, TAN's failure to return the car and his consequent appropriation thereof constituted unlawful taking — the gravamen of the crime charged. It then concluded that TAN was obviously actuated by intent to gain. The trial court then considered as completely undeserving of belief, TAN's supposition that despite his heavy indebtedness and given his increasing difficulty to pay his loans, SEE had benignly extended him credit, delivered to him the subject car and bestowed upon him the ultimate privilege of paying the car at his convenience. Thus, in a decision promulgated on 19 January 1994, the trial court convicted TAN, the dispositive portion of which read as follows:7

WHEREFORE, the Court finds accused Alvin Tan y Lagamayo guilty beyond reasonable doubt of the crime of carnapping charged herein, defined and punished in Sec. 2, in connection with Sec. 14, both of Rep. Act No. 6539 . . . and, accordingly, he is hereby sentenced to suffer the indeterminate penalty of imprisonment of from fourteen years, eight months, and fifteen days as minimum, to seventeen years and four months as maximum; to restore to the offended party, Philip See, the subject car . . . or in default thereof, to indemnify said offended party in the sum of four hundred twenty thousand pesos; and, to pay the costs, without prejudice to the application of Rep. Act No. 6127 in accused's favor.

TAN filed a motion for new trial on the ground of newly discovered evidence which was granted by the trial court in its 4 July 1994 order. SEE then moved for reconsideration, but was denied by the trial court in its 1 March 1995 order. SEE challenged these aforementioned orders of the trial court in a petition for certiorari filed with the Court of Appeals. On 23 August 1995, the appellate court gave due course to and granted the petition. TAN assailed the decision of the Court of Appeals through a petition for review before the Supreme Court, which promptly dismissed the petition.8

Subsequently, based on TAN's "Notice of Appeal Ex Abundanti Ad Cautelam," the trial court ordered the elevation of the records of the case to the Court of Appeals.Meanwhile, TAN challeged the Court of Appeals' affirmance of his, conviction. He argues before this Court that the appellate court erred in (1) ignoring the peculiar nature of the law on carnapping, (2) disregarding that there was no unlawful taking, and (3) rejecting circumstances on record which, if considered, would be sufficient to acquit him on reasonable doubt.In invoking the specificity of the carnapping law, TAN contends that the Court of Appeals should not have employed as bases for his conviction the basic principles in theft enunciated in (1) People v. Roxas,9 where rice was received, carted away and consumed, (2) U.S. v. de Vera,10 where a bar of gold and

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P200 in bank notes were received for examination and changing into coins but instead appropriated, and (3) People v. Trinidad,11 where a ring was received for pledging but was sold and the proceeds thereof appropriated for the personal use of receiver.A cursory reading of the pertinent portion of the challenged Court of Appeals decision reveals that the basic principles of theft alluded to pertain to the signification of unlawful taking and as to when this takes place. Thus, the Court in Roxas, de Vera and Trinidad declared that "the unlawful taking or deprivation may occur at or soon after the transfer of physical possession" where "an act done by the receiver soon after the actual transfer of possession resulted in unlawful taking." In such a case, "the article was taken away, not received, although at the beginning the article was in fact given and received." Hence, in applying these principles, the Court of Appeals adopted the theory of the Solicitor General that SEE entrusted his car to TAN merely for test driving, and the latter initially received the same for that purpose only; TAN must perforce be deemed to have unlawfully "taken" the car soon after the test-driving for he failed to show-up and return said vehicle.12

There is no arguing that the anti-carnapping law is a special law, different from the crimes of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent of gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.13 But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latter's consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles.14 Hence, a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owner's consent, whether the taking was done with or without violence or intimidation of persons or with or without the use of force upon things. Without the anti-carnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute.Obviously, TAN's proposition that the rudiments of theft, particularly as regards unlawful taking, should not have been applied by the Court of Appeals, was misplaced. We shall see later on that the appellate court's interpretation redounded in TAN's favor. As an element common to theft, robbery and carnapping, unlawful taking — its import, intention and concept — should be considered as also common to these crimes.15 However, we reject the Court of Appeals' acceptance, hook, line and sinker of the Office of the Solicitor General's thesis that there was unlawful taking in this case.SEE asserted that on 7 November 1992 he turned over possession of his Mitsubishi Galant to TAN for test-driving only, but the latter did not return the same after the lapse of not just several hours but a number of months. SEE formally filed the complaint for carnapping on 2 June 1993. In the meantime, during the seven-month interval when the car was allegedly in TAN's possession, (1) SEE had persistently and perseveringly attempted to talk to and see TAN but the latter adamantly refused to respond to his telephone calls or personally receive him in his visits; (2) SEE was able to register the car with the LTO on 5 March 1993; and (3) SEE had seen his car on 19 May 1993 from a distance of some five feet, parked at the rear of TAN's warehouse and in the initial stages of dismantling. SEE also believed that "being a friend, [TAN] eventually would come around to returning the car to him."16

Even solely from this testimony, this Court finds that there was no unlawful taking. A felonious taking may be defined as the act of depriving another of the possession and dominion of movable property without his privity and consent and without animus revertendi.17 Thus, an unlawful taking takes place when the owner or juridical possessor does not give his consent to the taking; or, if the consent was given, it was vitiated; or in the case of Roxas, Trinidad and de Vera, where an act by the receiver soon after the actual transfer of possession constitutes unlawful taking. In the last scenario, the receiver's act could be considered as having been executed without the consent of the giver. SEE's testimony clearly evinced his assent to TAN's taking of the car not only at the time he yielded the physical possession thereof for the alleged test-driving but even thereafter, for he neither withheld his consent nor withdrew the same during the seven month period the car was with TAN. At the very least, SEE tolerated TAN's possession of the car. A contrary conclusion inspires only disbelief. For if the car was truly carnapped, why did SEE wait for seven months before he reported the same? Further, TAN's alleged refusal to meet SEE despite his repeated attempts to do so should have sufficiently alerted him of the former's supposed malevolent intent, yet he still did not report the taking. Even if he failed to report the taking, months after the alleged test-driving, he had allegedly seen his car in the initial stages of dismemberment on 19 May 1993 yet, again, he did not report the carnapping on that day nor on the next, but much later on 7 June 1993 or almost a month thereafter.SEE said he believed and expected that the car would inevitably be returned to him. This is not only unsatisfactory but irreconcilable and contradictory with his imputations of carnapping. For if he believed that the vehicle would be returned to him for friendship's sake then he could not have at the same time also believed that this friend carnapped his car. Clearly, SEE's behavior immediately preceding, contemporaneous and subsequent to the alleged unlawful taking was definitely not the distraught conduct of a man whose car was carnapped. He was even able to register the averred stolen vehicle without sounding the alarm.A fortiori, the cases of Roxas, Trinidad and de Vera cited by the Court of Appeals have no application here as no unlawful deprivation or taking of SEE's possession of, enjoyment and benefit over the car occurred soon or long after his initial consent to the transfer thereof. Neither was there an act executed by TAN soon after the alleged test-driving that would constitute unlawful taking. These conclusions are buttressed by TAN's testimony, duly supported by documentary evidence, that SEE cooperated with him for the availment of a car loan with the BPI Family Bank in Makati, and that SEE personally attended to the inspection and appraisal of the subject car. The records, therefore, do not support the finding of carnapping.Noticeably, the Court of Appeals' erroneous contrary conclusions were heavily predicated on the arguments of the Office of the Solicitor General that TAN's failure to show a written deed of sale and to seek the release of his car loan "were inconsistent with [the latter's] idea of sale." It then posed four questions which it concluded "certainly debilitated the pretensions of [TAN]," thus:18

If there was really a deed of sale, why could not [TAN] present a copy thereof?Assuming arguendo that [SEE] got [TAN's] copy of the deed of sale, why did he not secure another copy from the notary public who notarized the same? Or, better still, why did he not present the notary public to testify on the fact of the sale?Why did [SEE] have to sell the subject car to [TAN] at P280,000.00 when the latter was admittedly indebted to the former to the tune of P800,000?If [TAN] really bought the subject car from private complainant, why did he have to return the same (car) to the lafter on May 14, 1993?

From this line of reasoning, we easily deduce that the Court of Appeals simply equated the lack of a written deed of sale to SEE's lack of consent to TAN's taking of the car. But the mere absence of a written contract of sale in this case does not necessarily mean that SEE did not also consent to the taking nor that TAN's possession of the car was unlawful. The prosecution still has the onus probandi of showing that TAN's taking was unlawful. What took place in these proceedings was that the appellate court magnified the weakness of the defense and overlooked the prosecution's failure to discharge the onus probandi — to show beyond reasonable doubt that the crime of carnapping was indeed perpetrated. In short, the Court of Appeals and the trial court simply believed and accepted the prosecution's tale. It ignored the basic legal precepts that conviction rests upon the strength of evidence of the prosecution and not on the weakness of the evidence for the defense; and assuming that the evidence of the accused is weak, the same is no reason to

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convict, especially, as in this case, where the case of the prosecution is not strong enough to sustain a conviction.19 To reiterate, the burden of proof rests upon the prosecution, and unless the State succeeds in proving by overwhelming evidence the guilt of the accused, the constitutional presumption of innocence applies. A conviction in criminal cases must rest on nothing less than the moral certainty of guilt.20

There is no quarrel in the conclusiveness of the findings of fact of the Court of Appeals, for upon this principle hinges the rule that the jurisdiction of the Supreme Court in cases brought before it from the Court of Appeals is limited to reviewing errors of law. However, it appears on record that the appellate court overlooked, ignored, and disregarded some fact and circumstance of weight or significance that if considered would have altered the result. Cogent reasons therefore exist justifying the disregard of the findings of the appellate court, superseding the same with our own determinations and conclusions, and ordering the reversal of the questioned decision and resolution of said Court of Appeals.21

WHEREFORE, in view of all the foregoing, the herein impugned 29 June 1998 decision and 6 October 1998 resolution of the Court of Appeals affirming the trial court's judgment convicting accused-appellant Alvin Tan of violation of the Anti-Carnapping Act of 1972 are hereby REVERSED and SET ASIDE; a new judgment is entered ACQUITTING said accused-appellant on ground of reasonable doubt.1âwphi1.nêtCosts de Officio.SO ORDERED.Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.