EN BANC

[G.R. No. L-72873. May 28, 1987.]

CARLOS ALONZO and CASIMIRA ALONZO, petitioners, vs. INTERMEDIATE APPELLATE

COURT and TECLA PADUA, respondents.

Perpetuo L.B. Alonzo for petitioners.

Luis R. Reyes for private respondent.

SYLLABUS

1. REMEDIAL LAW; STATUTORY CONSTRUCTION; STATUTES; INTERPRETED AND APPLIED IN

CONSONANCE WITH JUSTICE. As has been aptly observed, we test a law by its results; and likewise,
we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first
concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably,
the law should never be interpreted in such a way as to cause injustice as this is never within the
legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the
legislature, is to render justice. Thus, we interpret and apply the law not independently of but in
consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there
are some laws that, while generally valid, may seem arbitrary when applied in a particular case because
of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and
functions, to apply them just the same, in slavish obedience to their language. What we do instead is
find a balance between the word and the will, that justice may be done even as the law is obeyed.
Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the
law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with,
that the law be dispensed with justice. So we have done in this case.
2. ID.; ID.; ID.; MUST BE READ ACCORDING TO ITS SPIRIT AND INTENT. While we admittedly may not
legislate, we nevertheless have the power to interpret the law in such a way as to reflect the will of the
legislature. While we may not read into the law a purpose that is not there, we nevertheless have the
right to read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth"
but to "the spirit that vivifieth," to give effect to the lawmaker's will. "The spirit, rather than the letter of
a statute determines its construction, hence, a statute must be read according to its spirit or intent. For
what is within the spirit is within the statute although it is not within the letter thereof, and that which is
within the letter but not within the spirit is not within the statute. Stated differently, a thing which is
within the intent of the lawmaker is as much within the statute as if within the letter; and a thing which
is within the letter of the statute is not within the statute unless within the intent of the lawmakers."
3. CIVIL LAW; CONTRACTS; PACTO DE RETRO SALE; EXCEPTION TO THE GENERAL RULE ADOPTED IN CASE
AT BAR. In arriving at our conclusion today, we are deviating from the strict letter of the law, which
the respondent court understandably applied pursuant to existing jurisprudence. The said court acted
properly as it had no competence to reverse the doctrines laid down by this Court in the above-cited
cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De Conejero and
Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in view of the
peculiar circumstances of this case. The co-heirs in this case were undeniably informed of the sales
although no notice in writing was given them. And there is no doubt either that the 30-day period began
and ended during the 14 years between the sales in question and the filing of the complaint for
redemption in 1977, without the co-heirs exercising their right of redemption. These are the
justifications for this exception.
DECISION
CRUZ, J p:

The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of
law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against
the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a
court both of law and of justice. We apply the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in the mane of
their deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1
On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein
petitioners for the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964, Eustaquia
Padua, his sister, sold her own share to the same vendees, in an instrument denominated "Con Pacto de
Retro Sale," for the sum of P440.00. 3
By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to
two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed
the same with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-
concrete house on a part of the enclosed area. 4
On February 25, 1976, Mariano Padua, one of the five co-heirs, sought to redeem the area sold to the
spouses Alonzo, but his complaint was dismissed when it appeared that he was an American
citizen. 5 On May 27, 1977, however, Tecla Padua, another co-heir, filed her own complaint invoking the
same right of redemption claimed by her brother. 6
The trial court * also dismiss this complaint, now on the ground that the right had lapsed, not having
been exercised within thirty days from notice of the sales in 1963 and 1964. Although there was no
written notice, it was held that actual knowledge of the sales by the co-heirs satisfied the requirement
of the law. 7
In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs,
including Tecla Padua, lived on the same lot, which consisted of only 604 square meters, including the
portions sold to the petitioners. 8 Eustaquia herself, who had sold her portion, was staying in the same
house with her sister Tecla, who later claimed redemption. 9 Moreover, the petitioners and the private
respondents were close friends and neighbors whose children went to school together. 10
It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they
alleged, that the area occupied by the petitioners had merely been mortgaged by Celestino and
Eustaquia. In the circumstances just narrated, it was impossible for Tecla not to know that the area
occupied by the petitioners had been purchased by them from the other co-heirs. Especially significant
was the erection thereon of the permanent semi-concrete structure by the petitioners' son, which was
done without objection on her part or of any of the other co-heirs.
The only real question in this case, therefore, is the correct interpretation and application of the
pertinent law as invoked, interestingly enough, by both the petitioners and the private respondents.
This is Article 1088 of the Civil Code, providing as follows:
"Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser
by reimbursing him for the price of the sale, provided they do so within the period of
one month from the time they were notified in writing of the sale by the vendor."
In reversing the trial court, the respondent court ** declared that the notice required by the said article
was written notice and that actual notice would not suffice as a substitute. Citing the same case of De
Conejero v. Court of Appeals 11 applied by the trial court, the respondent court held that decision,
interpreting a like rule in Article 1623, stressed the need for written notice although no particular form
was required.
Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a
copy of the deed of sale of the property subject to redemption would satisfy the requirement for
written notice. "So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale
and the particulars thereof," he declared, "the thirty days for redemption start running."
In the earlier decision of Butte v. Uy, 12 the Court, speaking through the same learned jurist,
emphasized that the written notice should be given by the vendor and not the vendees, conformably to
a similar requirement under Article 1623, reading as follows:
"Art. 1623. The right of legal predemption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective vendor, or by the
vendors, as the case may be. The deed of sale shall not be recorded in the Registry of
Property, unless accompanied by an affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.
"The right of redemption of co-owners excludes that of the adjoining owners."
As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular
method of giving notice, and that notice must be deemed exclusive," the Court held that notice given by
the vendees and not the vendor would not toll the running of the 30-day period. Cdpr
The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad
laws" as the petitioners obviously cannot argue against the fact that there was really no written notice
given by the vendors to their co-heirs. Strictly applied and interpreted, Article 1088 can lead to only one
conclusion, to wit, that in view of such deficiency, the 30-day period for redemption had not begun to
run, much less expired in 1977.

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render
justice.
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where
these words import a policy that goes beyond them." 13 While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature.
While we may not read into the law a purpose that is not there, we nevertheless have the right to
read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to
"the spirit that vivifieth," to give effect to the lawmaker's will.
"The spirit, rather than the letter of a statute determines its construction, hence, a
statute must be read according to its spirit or intent. For what is within the spirit is
within the statute although it is not within the letter thereof, and that which is within
the letter but not within the spirit is not within the statute. Stated differently, a thing
which is within the intent of the lawmaker is as much within the statute as if within
the letter; and a thing which is within the letter of the statute is not within the statute
unless within the intent of the lawmakers." 14
In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly notified of
the sale and to indicate the date of such notice as the starting time of the 30-day period of redemption.
Considering the shortness of the period, it is really necessary, as a general rule, to pinpoint the precise
date it is supposed to begin, to obviate any problem of alleged delays, sometimes consisting of only a
day or two. prcd
The instant case presents no such problem because the right of redemption was invoked
not days but years after the sales were made in 1963 and 1964. The complaint was filed by Tecla Padua
in 1977, thirteen years after the first sale and fourteen years after the second sale. The delay invoked by
the petitioners extends to more than a decade, assuming of course that there was a valid notice that
tolled the running of the period of redemption.
Was there a valid notice? Granting that the law requires the notice to be written, would such notice be
necessary in this case? Assuming there was a valid notice although it was not in writing, would there be
any question that the 30-day period for redemption had expired long before the complaint was filed in
1977?
In the face of the established facts, we cannot accept the private respondents' pretense that they were
unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of
such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of
ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make
sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and
sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that
such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we
do say that sometime between those years and 1976, when the first complaint for redemption was filed,
the other co-heirs were actually informed of the sale and that thereafter the 30-day period started
running and ultimately expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when
Tecla Padua filed her complaint, the right of redemption had already been extinguished because the
period for its exercise had already expired.
The following doctrine is also worth noting:
"While the general rule is, that to charge a party with laches in the assertion of an
alleged right it is essential that he should have knowledge of the facts upon which he
bases his claim, yet if the circumstances were such as should have induced inquiry,
and the means of ascertaining the truth were readily available upon inquiry, but the
party neglects to make it, he will be chargeable with laches, the same as if he had
known the facts." 15
It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not
among them, should enclose a portion of the inherited lot and build thereon a house of strong
materials. This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly
looked like an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object
or at least inquire, to ascertain the facts, which were readily available. It took all of thirteen years before
one of them chose to claim the right of redemption, but then it was already too late. llcd
We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law,
which the respondent court understandably applied pursuant to existing jurisprudence. The said court
acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-
cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De
Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in
view of the peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the sales although no notice in writing was given
them. And there is no doubt either that the 30-day period began and ended during the 14 years
between the sales in question and the filing of the complaint for redemption in 1977, without the co-
heirs exercising their right of redemption. These are the justifications for this exception.
More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render
every one his due." 16 That wish continues to motivate this Court when it assesses the facts and the law
in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus
when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the
intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this
case.
WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the
trial court is reinstated, without any pronouncement as to costs. It is so ordered.
Teehankee, C.J., Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Fernan andFeliciano, JJ., on leave.
||| (Alonzo v. Intermediate Appellate Court, G.R. No. L-72873, [May 28, 1987], 234 PHIL 267-276)
 EN BANC

[G.R. No. 92024. November 9, 1990.]

CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner, vs. THE

BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON
PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION, respondents.

Abraham C. La Vina for petitioner.

Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum Corporation.

DECISION

GUTIERREZ, JR., J p:

This is a petition to annul and set aside the decision of the Board of Investments (BOI)/Department of
Trade and Industry (DTI) approving the transfer of the site of the proposed petrochemical plant from
Bataan to Batangas and the shift of feedstock for that plant from naphtha only to naphtha and/or
liquefied petroleum gas (LPG).
This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T. Garcia v. the
Board of Investments", September 7, 1989, where this Court issued a decision, ordering the BOI as
follows:
"WHEREFORE, the petition for certiorari is granted. The Board of Investments is
ordered: (1) to publish the amended application for registration of the Bataan
Petrochemical Corporation, (2) to allow the petitioner to have access to its records on
the original and amended applications for registration, as a petrochemical
manufacturer, of the respondent Bataan Petrochemical Corporation, excluding,
however, privileged papers containing its trade secrets and other business and
financial information, and (3) to set for hearing the petitioner's opposition to the
amended application in order that he may present at such hearing all the evidence in
his possession in support of his opposition to the transfer of the site of the BPC
petrochemical plant to Batangas province. The hearing shall not exceed a period of
ten (10) days from the date fixed by the BOI, notice of which should be served by
personal service to the petitioner through counsel, at least three (3) days in advance.
The hearings may be held from day to day for a period of ten (10) days without
postponements. The petition for a writ of prohibition or preliminary injunction is
denied. No costs." (Rollo, pages 450-451) llcd
However, acting on the petitioner's motion for partial reconsideration asking that we rule on the import
of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of plant site, in the
light of the provisions of the Constitution and the Omnibus Investments Code of 1987, this Court on
October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not provide that the Limay site
should be the only petrochemical zone in the country, nor prohibit the establishment of a petrochemical
plant elsewhere in the country, that the establishment of a petrochemical plant in Batangas does not
violate P.D. No. 949 and P.D. No. 1803.
Our resolution skirted the issue of whether the investor given the initial inducements and other
circumstances surrounding its first choice of plant site may change it simply because it has the final
choice on the matter. The Court merely ruled that the petitioner appears to have lost interest in the
case by his failure to appear at the hearing that was set by the BOI after receipt of the decision, so he
may be deemed to have waived the fruit of the judgment. On this ground, the motion for partial
reconsideration was denied. prLL
A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve the
basic issue of whether or not the foreign investor has the right of final choice of plant site; that the non-
attendance of the petitioner at the hearing was because the decision was not yet final and executory;
and that the petitioner had not therefor waived the right to a hearing before the BOI.
In the Court's resolution dated January 17, 1990, we stated:
"Does the investor have a 'right of final choice' of plant site? Neither under the 1987
Constitution nor in the Omnibus Investments Code is there such a "'right
of final choice.' In the first place, the investor's choice is subject to processing and
approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments Code). By
submitting its application and amended application to the BOI for approval, the
investor recognizes the sovereign prerogative of our Government, through the BOI, to
approve or disapprove the same after determining whether its proposed project will
be feasible, desirable and beneficial to our country. By asking that his opposition to
the LPC's amended application be heard by the BOI, the petitioner likewise
acknowledges that the BOI, not the investor, has the last word or the 'final choice' on
the matter.
Secondly, as this case has shown, even a choice that had been approved by the BOI
may not be 'final', for supervening circumstances and changes in the conditions of a
place may dictate a corresponding change in the choice of plant site in order that the
project will not fail. After all, our country will benefit only when a project succeeds,
not when it fails." (Rollo, pp. 538-539)
Nevertheless, the motion for reconsideration of the petitioner was denied.
A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted to
grant the motion for reconsideration stating that the hearing set by the BOI was premature as the
decision of the Court was not yet final and executory; that as contended by the petitioner the Court
must first rule on whether or not the investor has the right of final choice of plant site for if the ruling is
in the affirmative, the hearing would be a useless exercise; that in the October 19, 1989 resolution, the
Court while upholding validity of the transfer of the plant site did not rule on the issue of who has the
final choice; that they agree with the observation of the majority that "the investor has no final choice
either under the 1987 Constitution or in the Omnibus Investments Code and that it is the BOI who
decides for the government" and that the plea of the petitioner should be granted to give him the
chance to show the justness of his claim and to enable the BOI to give a second hard look at the
matter. llcd
Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17, 1990 in
G.R. No. 88637 that the investor has no right of final choice under the1987 Constitution and the
Omnibus Investments Code. Cdpr
Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain located in Lamao,
Limay, Bataan were reserved for the Petrochemical Industrial Zone under the administration,
management, and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at Bataan. It
produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC) and
applied with BOI for registration as a new domestic producer of petrochemicals. Its application specified
Bataan as the plant site. One of the terms and conditions for registration of the project was the use of
"naphtha cracker" and "naphtha" as feedstock or fuel for its petrochemical plant. The petrochemical
plant was to be a joint venture with PNOC. BPC was issued a certificate of registration on February 24,
1988 by BOI.
BPC was given pioneer status and accorded fiscal and other incentives by BOI, like, (1) exemption from
taxes on raw materials, (2) repatriation of the entire proceeds of liquidation investments in currency
originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of
earnings on investments. As additional incentive, the House of Representatives approved a bill
introduced by the petitioner eliminating the 48% ad valorem tax on naphtha if and when it is used as
raw materials in the petrochemical plant. (G.R. No. 88637, September 7, 1989, pp. 2-3. Rollo, pp. 441-
442).
However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major investor in
BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989 advising
him of BPC's desire to amend the original registration certification of its project by changing the job site
from Limay, Bataan, to Batangas. The reason adduced for the transfer was the insurgency and unstable
labor situation, and the presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by
the Philippine Shell Corporation.
The petitioner vigorously opposed the proposal and no less than President Aquino expressed her
preference that the plant be established in Bataan in a conference with the Taiwanese investors, the
Secretary of National Defense and The Chief of Staff of the Armed Forces. cdphil
Despite speeches in the Senate and House opposing the transfer of the project to Batangas, BPC filed on
April 11, 1989 its request for approval of the amendments. Its application is as follows: "(1) increasing
the investment amount from US$220 million to US$320 million; (2) increasing the production capacity of
its naphtha cracker, polyethylene plant and polypropylene plant; (3) changing the feedstock from
naphtha only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from Limay,
Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)
Notwithstanding opposition from any quarters and the request of the petitioner addressed to Secretary
Concepcion to be furnished a copy of the proposed amendment with its attachments which was denied
by the BOI on May 25, 1989, BOI approved the revision of the registration of BPC's petrochemical
project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.)
BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of the
Senate asserted that:
 "The BOI has taken a public position preferring Bataan over Batangas as the site of the
petrochemical complex, as this would provide a better distribution of industries
around the Metro Manila area. . . . In advocating the choice of Bataan as the project
site for the petrochemical complex, the BOI, however, made it clear, and I would like
to repeat this that the BOI made it clear in its view that the BOI or the government for
that matter could only recommend as to where the project should be located. The BOI
recognizes and respects the principle that the final choice is still with the proponent
who would in the final analysis provide the funding or risk capital for the project.
(Petition, p. 13; Annex D to the petition)

This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present
petition. LLjur
Section 1, Article VIII of the 1987 Constitution provides:
"SECTION 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government."
There is before us an actual controversy whether the petrochemical plant should remain in Bataan or
should be transferred to Batangas, and whether its feedstock originally of naphtha only should be
changed to naphtha and or liquefied petroleum gas as the approved amended application of the BPC,
now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical admission of the
BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether
or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor,
national interest notwithstanding.
We rule that the Court has a constitutional duty to step into this controversy and determine the
paramount issue. We grant the petition.
First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why it
organized itself into a corporation bearing the name Bataan. There is available 576 hectares of public
land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803. There is no
need to buy expensive real estate for the site unlike in the proposed transfer to Batangas. The site is the
result of careful study long before any covetous interests intruded into the choice. The site is ideal. It is
not unduly constricted and allows for expansion. The respondents have not shown nor reiterated that
the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the
plant site to Batangas. Certainly, these were taken into account when the firm named
itself Bataan Petrochemical Corporation. Moreover, the evidence proves the contrary.
Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of the
national output of naphtha which can be used as feedstock for the plant in Bataan. It can provide the
feedstock requirement of the plant. On the other hand, the country is short of LPG and there is need to
import the same for use of the plant in Batangas The local production thereof by Shell can hardly supply
the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from
vitally essential projects in order to feed the furnaces of the transferred petrochemical plant.
Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval
of Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem tax.
The law was enacted specifically for the petrochemical industry. The policy determination by both
Congress and the President is clear. Neither BOI nor a foreign investor should disregard or contravene
expressed policy by shifting the feedstock from naphtha to LPG. llcd
Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to "regulate and
exercise authority over foreign investments within its national jurisdiction and in accordance with its
national goals and priorities." The development of a self-reliant and independent national economy
effectively controlled by Filipinos is mandated inSection 19, Article II of the Constitution.
In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national economy
in consonance with the principles and objectives of economic nationalism" is the set goal of
government.
Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the project
from local sources by way of loan which led to the so-called "petroscam scandal", the capital
requirements would be greatly minimized if LPC does not have to buy the land for the project and its
feedstock shall be limited to naphtha which is certainly more economical, more readily available than
LPG, and does not have to be imported.
Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great
benefit and advantage of the government which shall have a participation in the management of the
project instead of a firm which is a huge multinational corporation. Cdpr
In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing is
shown to justify the transfer to Batangas except a near-absolute discretion given by BOI to investors not
only to freely choose the site but to transfer it from their own first choice for reasons which remain
murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly ignore.
Section 1, Article XII of the Constitution provides that:
xxx xxx xxx
"The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices."
xxx xxx xxx
Every provision of the Constitution on the national economy and patrimony is infused with the spirit of
national interest. The non-alienation of natural resources, the State's full control over the development
and utilization of our scarce resources, agreements with foreigners being based on real contributions to
the economic growth and general welfare of the country and the regulation of foreign investments in
accordance with national goals and priorities are too explicit not to be noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a
garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer of
computer chips, where the BOI reasoning may be accorded fuller faith and credit. The petrochemical
industry is essential to the national interest. In other ASEAN countries like Indonesia and Malaysia, the
government superintends the industry by controlling the upstream or cracker facility.
In this particular BPC venture, not only has the Government given unprecedented favors, among
them: LexLib
(1) For an initial authorized capital of only P20 million, the Central Bank gave an
eligible relending credit or relending facility worth US $50 million and a debt to swap
arrangement for US$ 30 million or a total accommodation of US $80 million which at
current exchange rates is around P2080 million.
(2) A major part of the company's capitalization shall not come from foreign sources
but from loans, initially a P1 Billion syndicated loan, to be given by both government
banks and a consortium of Philippine private banks or in common parlance, a case of
"guiniguisa sa sariling manteca."
(3) Tax exemptions and privileges were given as part of its "preferred pioneer status."
(4) Loan applications of other Philippine firms will be crowded out of the Asian
Development Bank portfolio because of the petrochemical firm's massive loan
request. (Taken from the proceedings before the Senate Blue Ribbon Committee)
but through its regulatory agency, the BOI, it surrenders even the power to make a company abide
by its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice
which is undoubtedly in the best interests of the Filipino people. LLphil
The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in approving
the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of
feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the
investor all other circumstances to the contrary notwithstanding. No cogent advantage to the
government has been shown by this transfer. This is a repudiation of the independent policy of the
government expressed in numerous laws and the Constitution to run its own affairs the way it deems
best for the national interest.
One can but remember the words of a great Filipino leader who in part said he would not mind having a
government run like hell by Filipinos than one subservient to foreign dictation. In this case, it is not even
a foreign government but an ordinary investor whom the BOI allows to dictate what we shall do with
our heritage. LexLib
WHEREFORE, the petition is hereby granted. The decision of the respondent Board of Investments
approving the amendment of the certificate of registration of the Luzon Petrochemical Corporation on
May 23, 1989 under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET ASIDE as NULL
and VOID. The original certificate of registration of BPC (now LPC) of February 24, 1988 with Bataan as
the plant site and naphtha as the feedstock is, therefore, ordered maintained.
SO ORDERED.
Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur.
Fernan, C.J. and Paras, J., took no part.
Feliciano, J., is on leave.
 Separate Opinions

GRIO-AQUINO, J., dissenting:

This is the petitioner's second petition for certiorari and prohibition with application for a temporary
restraining order or preliminary injunction against the respondents Board of Investments (BOI),
Department of Trade and Industry (DTI), the Luzon Petrochemical Corporation (LPC), formerly Bataan
Petrochemical Corporation, and Pilipinas Shell Corporation (SHELL) on the transfer of the LPC
petrochemical plant site from Bataan to Batangas. The first case was docketed in this Court as G.R. No.
88637 and was decided on September 7, 1989. Consistent with my opinion in the first case, I vote once
more to deny the petition.

The petitioner filed this second petition supposedly "upon the authority and strength" of this Court's
statement in its Resolution of January 9, 1990 in G.R. No. 88637 that the foreign investor (LPC) does not
have a right of final choice of plant site because its choice is subject to approval or disapproval by the
BOI (p. 3, Rollo). Ergo, the BOI has the "final choice."
Petitioner contends that since the BOI had earlier approved Bataan as the plant site of the LPG
petrochemical complex, and of "naphtha only" as the feedstock, that approval was "final" and may not
be changed. Hence, the BOI allegedly abused its discretion: (1) in approving the transfer of the LPC's
plant site from Bataan to Batangas (in spite of the BOI's initial preference for Bataan) "upon the false
and unlawful thesis that the foreign investor has the right of final choice of plant site" (p. 13, Rollo), and
(2) in allowing the LPC to shift feedstock from naphtha only, to naphtha and or LPG, despite the
disadvantages of using LPG. Petitioner prays the Court to annul the BOI's action and prohibit LPC from
transferring its plant site to Batangas and shifting feedstock to naphtha and/or LPG (p. 22, Rollo).
The petition is not well-taken. There is no provision in the 1987 Investments Code prohibiting the
amendment of the investor's application for registration of its project, such as, in this case, its plant site,
the feedstock to be used, and the capitalization of the project.
Neither does the law prohibit the BOI from approving the amended application.
Since the investor may amend its application and the BOI may approve or disapprove the amendments,
when may the BOI be deemed to have made a "final choice" regarding those aspects of the project
which have been changed? llcd
Only the BOI or the Chief Executive is competent to answer that question, for the matter of choosing an
appropriate site for the investor's project is a political and economic decision which, under our system
of separation of powers, only the executive branch, as implementor of policy formulated by the
legislature (in this case, the policy of encouraging and inviting foreign investments into our country), is
empowered to make. It is not for this Court to determine what is, or should be, the BOI's "final choice"
of plant site and feedstock, for, as we said in our decision in G.R. No. 88637:
"This Court . . . does not possess the necessary technology and scientific expertise to
determine whether the transfer of the proposed BPC (now LPC) petrochemical
complex from Bataan to Batangas and the change of fuel from naphtha only to
'naphtha and/or LPG') will be best for the project and for our country. This Court is not
about to delve into the economics and politics of this case. It is concerned simply with
the alleged violation of due process and the alleged extra limitation of power and
 discretion on the part of the public respondents in approving the transfer of the
project to Batangas without giving due notice and an opportunity to be heard to the
vocal opponents of that move." (pp. 445-446, Rollo of G.R. No. 88637.)
Although we did say in our decision in G.R. No. 88637 that the BOI, not the foreign investor, has the
right of "final choice" of plant site for the LPC project, the Court would be overstepping the bounds of its
jurisdiction were it to usurp the prerogative of the BOI to make that choice or change it.
The petitioner's contention that the BOI abused its discretion in approving the transfer of the LPC plant
site to Batangas because the BOI, in effect, yielded to the investor's choice, is not well taken. The record
shows that the BOI approved the transfer because "the BOI recognizes the justification given by the
proponent" of the project (p. 30, Rollo). The fact that the petitioner disagrees with the BOI's decision
does not make it wrong. The petitioner's recourse against the BOI's action is by an appeal to the
President (Sec. 36, 1987 Investments Code), not to this Court.
This Court, in the exercise of its judicial power, may review and annul executive as well as legislative
actions when they clash with the Constitution or with existing laws, or when any branch or
instrumentality of the Government has acted with grave abuse of discretion amounting to lack or excess
of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution) but the Court may not do more than that. It may not
make the decisions that the executive should have made nor pass the laws that the legislature should
have passed. Not even the much publicized "petroscam" involving the financial arrangements (not the
issue in this case) for the LPC project would justify the intervention of this court in a matter that pertains
to the exclusive domain of the executive department. The court does not have a panacea for all the ills
that afflict our country nor a solution for every problem that besets it.
Did the BOI gravely abuse its discretion in approving the LPC's amended application for registration of its
petrochemical project to warrant the intervention of this Court? Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos vs.
Prov. of Tarlac, 67 Phil. 480; Alafriz vs. Nable, 70 Phil. 278). In light of the LPC's justifications for the
transfer of its project site and the shift from one kind of feedstock to two, we are not prepared to hold
that the BOI's decision to approve the changes was the product of a capricious and arbitrary exercise of
judgment on its part, despite the seemingly impressive arguments of the petitioner showing the
advantages of establishing the petrochemical plant in Bataan and of using naphtha only as feedstock.
We are not prepared to substitute the judgment of the BOI on this matter with one crafted by this
Court. LLjur
With regard to the scandalously liberal financial accommodations that local banks have allegedly agreed
to grant to the LPC (the so-called "petroscam") to enable it to raise a major part of its capital
requirements from local sources (hence, a betrayal of the people's expectation that foreign investors
will bring in foreign exchange to finance their projects in this country) it is significant that the petitioner
has not led an outcry for the disapproval and cancellation of the project on this score. Apparently, the
petitioner is not seriously disturbed by the moral implications of the "scam" provided the petrochemical
plant is set up in Bataan.
The decision of the BOI to allow the transfer of the LPC petrochemical project to Batangas and shift
feedstock from naphtha only to naphtha and/or LPG, may appear to the petitioner to be extremely
unwise and inadvisable, but the Court may not, for that reason annul the BOI's action or prohibit it from
acting on a matter that lies within its particular sphere of competence, for the Court is not a judge of the
wisdom and soundness of the actions of the two other co-equal branches of the Government, but only
of their legality and constitutionality.
WHEREFORE, I vote to deny the petition for certiorari and prohibition for lack of merit.
Narvasa, Regalado and Melencio-Herrera, JJ., dissent.

MELENCIO-HERRERA, J ., dissenting:

Consistent with my dissent in G.R. No. 88637, the first petition, I concur in the dissent herein of Mme.
Justice Aquino and merely wish to add that in its Decision, the majority has actually imposed its own
views on matters falling within the competence of a policy-making body of the Government. It decided
upon the wisdom of the transfer of the site of the proposed project (pp. 8-9); the reasonableness of the
feedstock to be used (pp. 8-9); the undesirability of the capitalization aspect of the project (p. 10), and
injected its own concept of the national interest as regards the establishment of a basic industry of
strategic importance to the country (p. 13).
It is true that the judicial power embodied in Article VIII of the 1987 Constitution speaks of the duty of
Courts of justice to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. By no
means, however, does it vest in the Courts the power to enter the realm of policy considerations under
the guise of the commission of grave abuse of discretion. LibLex
But this is exactly what the majority Decision has resulted in. It has made a sweeping policy
determination and has unwittingly transformed itself into what might be termed a "government by the
Judiciary," something never intended by the framers of the Constitution when they provided for
separation of powers among the three co-equal branches of government and excluded the Judiciary
from policy-making.

||| (Garcia v. Board of Investments, G.R. No. 92024, [November 9, 1990], 269 PHIL 301-319)
 THIRD DIVISION

[G.R. Nos. 138472-73. August 9, 2001.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PO3 NOEL PADILLA, accused-

appellant.

The Solicitor General for plaintiff-appellee.

Edmundo S. Cari-am for accused-appellant.

SYNOPSIS

Accused-appellant Noel Padilla was convicted of murder and frustrated murder by the Regional Trial
Court of Bataan. The facts found by the trial court that led to the convictionof appellant were largely
sourced from the eyewitness account of Jesus Casaul, Jr., the victim in the frustrated murder charge. In
his appeal before the Court, appellant assailedthe credibility of witness Jesus Casaul, Jr., by pointing out
contradictions in his testimony. Appellant also alleged that the failure of the prosecution to present
three of thewitnesses listed in the informations, as well as two others mentioned by Casaul, gave rise
to the presumption that if the testimony of these witnesses were given before thecourt, their
declaration would have been adverse to the prosecution.
The Supreme Court affirmed appellant's conviction for murder. The Court brushed
aside the issue of credibility of the witness and considered the alleged contradictions in his testimony
too slight that might even serve to strengthen the sincerity of the witness and would tend to prove
that the testimony was not rehearsed. The Court also ruled that thematter of presentation of witnesses
is the sole prerogative of the prosecution and it is neither for the accused nor the court to override such
prerogative. The Court, however, modified the trial court's ruling on the second crime of frustrated
murder. The Court ruled that appellant can only be held guilty of the crime of attempted murder and
not frustrated murder. According to the Court, a felony is frustrated when the offender performs
all the acts of execution which would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator.
For the crime of murder, the frustrated stage is reached only if the wound inflicted would have been
mortal. In the case at bar, the examining physician has declared that the wounds suffered by the victim
were not mortal because no vital tissues were damaged and, without complications, would not have
killed the victim. IHaECA

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY SLIGHT INCONSISTENCIES.

The testimony of a witness would only need to be congruent on important and relevant points
concerning the principal occurrence; slight inconsistencies might even serve to
strengthen the sincerity of the witness and would tend to prove that his testimony has not been
rehearsed.
2. ID.; CRIMINAL PROCEDURE; MATTER OF PRESENTATION OF WITNESSES IS THE SOLE
PREROGATIVE OF THE PROSECUTION. Appellant alleges that the failure of theprosecution to present
three of the witnesses listed in the informations, as well as two others mentioned by Casaul, gives rise
to the presumption that if the testimony of these witnesses were given before the court, their
declaration would have been adverse to the prosecution. The settled rule is that the prosecution
determines who among its witnesses are to testify in court, and it is neither for the accused
nor the court to override that prerogative. Corollarily, the failure of the prosecution to present a
particular witness does not give rise to the presumption that "evidence willfully suppressed would be
adverse if produced" where that evidence is at the disposal of both parties or wherethe only
object of presenting the witness would be to provide corroborative or cumulative evidence.
3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; EVIDENT WHEN THE ACCUSED
SUDDENLY POSITIONED HIMSELF AT THE BACK OF THE UNSUSPECTING VICTIM, POINTED THE GUN AT
HIM AND WITHOUT ANY WARNING, PROMPTLY DELIVERED THE FATAL SHOTS. Murder is the unlawful
killing of any person when qualified by any of thecircumstances listed under Article 248 of the Revised
Penal Code. Treachery, aptly alleged in the information, is one of such qualifying circumstances. Its
elements are: (1) theemployment of means of execution that gives the person attacked no opportunity
to defend himself or retaliate; and (2) the deliberate and conscious adoption of the means ofexecution.
Here, treachery is evident when the accused suddenly positioned himself
at the back of the unsuspecting victim, pointed his gun at him and, without any warning, promptly
delivered the fatal shots. There was no way the victim could have defended himself, taken flight, or
avoided the assault.
4. ID.; STAGES OF EXECUTION OF A FELONY; A FELONY IS ONLY AT ITS ATTEMPTED STAGE
WHEN THE WOUNDS SUFFERED BY THE VICTIM DAMAGED NO VITAL ORGANS AND, WITHOUT
COMPLICATIONS, WOULD NOT HAVE KILLED THE VICTIM. There is, however, reason to
modify the lower court's ruling on the second crime of frustrated murder. A felony is frustrated
when the offender performs all the acts of execution which would produce the felony as a consequence
but which, nevertheless, do not produce it by reasonof causes
independent of the will of the perpetrator. For the crime of murder, the frustrated stage is reached only
if the wound inflicted would have been mortal. The examining physician has declared that the wounds
suffered by the victim damaged no vital tissues and, without complications, would not have killed
him. AcHCED

DECISION

VITUG, J p:

PO3 Noel Padilla has appealed from the decision 1 of the Regional Trial Court of Bataan, Branch 2, in
Criminal Cases No. 5095 and No. 5096, convicting him of murder and frustrated murder.
The twin indictments against appellant for murder and frustrated murder, respectively, read:
"That on or about November 19, 1991, in Morong, Bataan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with intent to kill,
and with treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and use personal violence upon Apolinario Belmonte by
 then and there shooting him with a firearm on the different parts of his body, thereby
inflicting upon him mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of the heirs of the said Apolinario Belmonte." 2
"That on or about November 19, 1991, in Morong, Bataan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused with intent to kill,
with treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and use personal violence upon Jesus Casaul, Jr., by
shooting him with a firearm onthe right cheek, thereby inflicting upon the said Jesus
Casaul, Jr., physical injury which could have caused his death, thus the said accused
performing all the acts of execution which would produce the crime of Murder as a
consequence, but which nevertheless did not produce it by reason or cause
independent of his will, that is, the timely and able medical attendance rendered upon
Jesus Casaul, Jr., which prevented his death, to the damage and prejudice
nevertheless of the said offended party." 3
Noel Padilla, a member of the Philippine National Police since 1985, pleaded not guilty to both
charges. The cases were jointly tried and heard, initially, by Judge Vivencio S. Baclig and, later, by Judge
Lorenzo R. Silva, Jr. cIETHa
The facts found by the trial court that led to the conviction of the accused were largely sourced
from the eyewitness account of Jesus Casaul, Jr., the victim in the frustrated murder charge.
On 18 November 1991, around 11:30 p.m., Jesus Casaul, Jr., and his cousin Apolinario
Belmonte, the victim in the murder charge, were partaking of beer and watching a video cassette
recording on television inside the Mango Grove restaurant at the Philippine Refugee Processing Center
(PRPC) in Morong, Bataan, when PO3 Noel Padilla together with several companions, among them
Nonong Navarette, arrived at the scene. Navarette approached Casaul and Belmonte. An ensuing
conversation turned into a heated argument. Navarette went back to his group while Padilla, at first
appearing to aim his gun at the television set, suddenly went behind Belmonte and shot him twice
at the back of his head.Padilla next pointed his gun at Casaul who raised his hands pleading for dear
life. The accused, unmindful of the plea, shot Casaul twice, hitting him on the cheek and
at the backof his ear.
Belmonte and Casaul were rushed by the owner of the restaurant to the PRPC Hospital. Belmonte did
not make it. Dr. Roberto Luneta who conducted the post mortem examination
attributed the death of Belmonte to the gunshot wound that had penetrated his skull. Casaul survived.
Dr. Benjamin Dacula, the medical officer who attended to Casaul at the PRPC Hospital said
that the gunshot wounds sustained by Casaul did not pose any threat to his life. While he had to
undergo an operation for the removal of theslugs embedded on his cheek and the right side of his
vertebrae, Dr. Antonio Rafael, the surgeon, stated there was, however, no vital tissue damaged
and the wounds suffered by the victim, without complications, would not have been enough to kill him.
The defense placed the accused and nine others to the witness stand but, except for the accused, no
one attested to the events that had transpired on the night of the shooting.Padilla's own account was
synthesized by the trial court; viz:
"On November 18, 1991, he was with Lt. Nieves conducting a mobile patrol. On their
way to the municipal station, they received a radio call from the station. When they
reachedthe station they were informed that there was a stabbing incident
at the PRPC. He was ordered by Lt. Nieves to look into the incident. He had
then the handgun which he kept in his possession even if he was not on duty. He
changed to civilian clothes together with
members of the family of the victims of the stabbing incident proceeded to the PRPC
hospital. At the hospital, Noel saw SPO4 Lagundino, the investigator, who told him
that he saw PO3 Tongia at the Shakey's party at the mess hall of the PRPC. When he
went tothe party, he saw PO3 Tongia who was with some youngster whom he has not
met before. Tongia, offered him a mug of beer. He left Shakey's at 10:00 o'clock
in the evening, more or less. PO3 Tongia invited him together with the young boys
to the picnic grove.

"Upon arriving at the picnic grove, they went directly to the long table. Tongia ordered
softdrinks for the young boys and for Tongia and him two (2) bottles of beer. There
were two tables near the store occupied by different groups.
"A betamax was playing very loud. But he was not interested in the show.
"When they run out of cigarettes, he went to the store to buy. He was joking
with the saleslady. Afterwards he introduced himself to a person who must have
noticed his gun. This man introduced himself as Pines Simon. After he returned
to the long table, a group of four (4) males arrived, a group which he saw at Shakey's.
One of them occupied theseat near Tongia and two (2) occupied the seats near him.
He was introduced to the three who were homosexuals. After exchanging jokes, he
left the picnic grove for the hospital after telling Tongia about it. Nothing unusual
happened before he left for the hospital.
"xxx xxx xxx
"When he was at the hospital at the lobby when he saw Casaul and his cousin at
around 1:00 or 2:00 o'clock being transferred in an ambulance he heard their names
from SPO2 Lagundino. He has not met the victims before.
"On cross-examination, Noel Padilla declared that he was assigned at the Regional
Special Action Force in Camp Olivas in December 1985 up to March 1987. He
was the platoon sergeant of the company. They were assigned at civil disturbance
control and went to infiltrated areas. This is an elite force of the police. cCEAHT
"xxx xxx xxx
"He confirmed that he arrived at around 9:00 o'clock in the evening at the PRPC and
after ten (10) or fifteen (15) minutes, he proceeded to Shakey's. . . .
"xxx xxx xxx
"It was only after he had a few drinks of beer with Navarette and his companions and
with Tongia that he decided to proceed to the picnic grove and Shakey's was about to
close. Only he, Tongia and three youngsters who were not homosexuals proceeded
to the picnic grove. A few minutes later Nonong Navarette and his three companions
arrived. Thethree (3) went to their table while Nonong Navarette went to the store.
This was the second time he met Navarette; the first time was at the police station.
 "He was not irritated by the loud volume of the betamax; he did not draw his firearm
and aimed it at the betamax. He did not notice if Navarette went to the table occupied
by Apolinario Belmonte and Jesus Casaul. He denied that Navarette complained to
him about Apolinario Belmonte. From 10:00 p.m. to 12:00 midnight he was
at the picnic grove drinking beer and conversing with Tongia. He does not know of any
reason why Jesus Casaul should point to him as the one who fired and killed
Apolinario Belmonte. He does not know of any reason why Jesus Casaul pointed to
him as having fired a gun at him except that he was the policeman present. He
decided to transfer his gun to the front of his pants because according to Navarette
someone quarreled with them the night before.
"On re-direct, Noel Padilla declared that he never met Jesus Casaul, Jr., and Apolinario
Belmonte before the incident." 4
The trial court gave scant value to the testimony of the accused which it described to be
"uncorroborated, negative and evasive in character." 5 The court held the shooting ofBelmonte and
Casaul to have been attended by treachery. The trial court concluded thusly:
"WHEREFORE, the guilt of the accused for the murder of Apolinario Belmonte
and the frustrated murder of Jesus Casaul, Jr., having been proved beyond reasonable
doubt theaccused Noel Padilla is hereby sentenced as follows:
"In Crim. Case No. 5095 for the offense of frustrated murder against Jesus Casaul,
Jr., the accused Noel Padilla is sentenced to suffer the indeterminate penalty of six (6)
years, one (1) month and eleven (11) days prision mayor as minimum to twelve (12)
years, five (5) months and eleven (11) days reclusion temporal as maximum
with the accessory penalties provided by law, to indemnify the offended party
in the amount of P20,000.00 for moral damages, plus the costs of suit. TEDaAc
"In Crim. Case No. 5096 for the murder of Apolinario
Belmonte, the accused Noel Padilla is sentenced to suffer the penalty of reclusion
perpetua, with the accessory penalties provided by law, to
indemnify the heirs of the deceased Apolinario Belmonte the sum of P50,000.00 and
to pay the costs of suit." 6
In this appeal, appellant raises the following issues:
"WHETHER THE TESTIMONY OF JESUS CASAUL, JR., IS TRUSTWORTHY AND RELIABLE,
and
"WHETHER THE NON-PRESENTATION OF WITNESSES LISTED IN THE INFORMATIONS
(SHOULD) BE CONSTRUED AGAINST THE PROSECUTION." 7
In its attempt to support the first argument, the defense pointed to what it considered to be
contradictions in the testimony of Casaul. Thus, Casaul declared on direct examination that he was
facing the accused when the latter shot him; however, Dr. Rafael said that based
on the location of the wounds, the triggerman must have been at Casaul's right side. Casaul stated that
he was still conscious when he was shot on the right cheek, a claim which was not in accord
with the opinion of Dr. Rafael that while thewound on Casaul's cheek did not render the victim
unconscious, the wound, however, on his ear must have did.
The defense argument has been convincingly refuted by the Solicitor General; he states:
"A careful examination of the record will show that Casaul's testimony is not
inconsistent with the testimony of Dr. Rafael. Casaul was telling the truth when he
said that he sawthe appellant shoot him. It must be noted that Casaul and his cousin
Apolinario Belmonte were occupying a square table which were just beside the table
being occupied then by appellant and his friends (pp. 14-15, TSN May 19, 1994). For
this reason, Casaul could clearly observe and see the table where appellant was
when the crimes were committed (p. 15, ibid.):
"Q How about your cousin Apolinario Belmonte, what was his position
when Noel Padilla was already behind Apolinario Belmonte?
"A His back is on Noel Padilla. IHEAcC
"Q And then what happened please demonstrate.
"A He fired two shots. (The witness is slightly in bending position with his two hands
clutched).
"ATTY. CARIAN:
And the hand is less than one foot from the head of Apolinario Belmonte.
"ATTY. BANZON:
Showing the position of Noel Padilla holding a gun.
"Q And then what happened?
"A He fired two shots, 'Bang, Bang' (in a split second).
"Q What was the position of your cousin Apolinario Belmonte when hit?
"A He fell on his right.
"ATTY. BANZON:
The alleged position of accused in line with the witness is around 45.
"COURT:
Make of record that when the witness demonstrated the position of the accused he
was not directly behind Apolinario Belmonte.
"ATTY. CARIAN:
Around 40.
"ATTY. BANZON:
"Q Was there any conversation that transpired before the shot was fired between
Apolinario Belmonte and the accused?
"A There was none.
"Q How about you granting that I am you, what was my position then?
"A After he fired his gun to my cousin, he pointed his gun at me and I raised my hands
to stop him, and I said: 'Huwag.'
 (Witness demonstrating by turning his head towards his right
towards the direction of the accused who went near him and then fired at him
on his face. He slumped down on the table). (italics supplied) (pp. 15-16, TSN
May 19, 1994) TDcHCa
"Clearly then, Casaul was not lying when he said that he saw the appellant shoot him
and Apolinario Belmonte. He testified that when appellant
approached the back ofApolinario and shot the latter, he turned his head to his right
where he saw appellant. Hence, Dr. Rafael corroborates the testimony of Casaul that
appellant was on the right sideof Casaul when Casaul was shot and hit on the right
cheek.
"Significantly, Dr. Rafael likewise confirms that Casaul could still identify appellant
when he was shot by appellant. As stressed by Dr. Rafael, the first gunshot wound on
Casaul's cheek could not render him unconscious. Therefore, Casaul could still see
appellant shooting him (p. 10, TSN December 7, 1994). With this on record, it is
immaterial whether or not the second gunshot wound inflicted by appellant
at the back of the ear of Casaul could knock-out the latter. The trial court found no
inconsistencies between the findings ofDr. Rafael and the testimony of Casaul. Both
are consistent on material points. There is thus, no reason to disturb the conclusions
reached by the trial court insofar as theprosecution witness credibility and appellant's
guilt are concerned." 8
The testimony of a witness would only need to be congruent on important and relevant points
concerning the principal occurrence; 9 slight inconsistencies might even serve to
strengthen the sincerity of the witness and would tend to prove that his testimony has not been
rehearsed. 10
Appellant would make an issue over an entry in the medical record of Casaul from the Jose Reyes
Medical Hospital which stated "unknown assailant" to the question of whetherthe victim
knew the identity of his attacker. The matter was easily explained, however, by Casaul himself who said
that he had known appellant only by face until the case was filed. The weight of the eyewitness account
should be on the fact that the witness saw the accused commit the crime and was positive
on the latter's physical identification, 11rather than in being able to identify him by his appellation or
name. 12
Appellant would impugn the credibility of Judge Silva in rendering the assailed decision on the ground
that it was not he, but Judge Baclig, who heard the testimony of Casaul. This kind of argument had been
dismissed a good number of times by the Court. The efficacy of a decision should not necessarily be
impaired by the fact that its writer only took over from a colleague who had earlier presided
at the trial. 13 The fact that the judge who penned the decision did not hear the case in its entirety
would hardly be a compelling reason to thereby jettison his findings and conclusions as long
as the entire record was made available to him for his perusal. 14

Appellant contends he has had a clean record and no strong motive to commit the crimes imputed
against him. The absence of motive for committing the crime does not preclude a conviction for it is not
unknown for persons to be killed or assaulted even for no reason at all. 15 More importantly, when an
accused is positively identified by thevictim himself, lack of motive on the part of the transgressor
becomes close to being inconsequential. 16
Appellant alleges that the failure of the prosecution to present three of the witnesses listed
in the informations, as well as two others mentioned by Casaul, gives rise to thepresumption that
if the testimony of these witnesses were given before the court, their declaration would have been
adverse to the prosecution. The settled rule is that theprosecution determines who among its witnesses
are to testify in court, 17 and it is neither for the accused nor the court to override that prerogative.
Corollarily, the failure of theprosecution to present a particular witness does not give rise
to the presumption that "evidence willfully suppressed would be adverse if produced" where that
evidence is at thedisposal of both parties or where the only object of presenting the witness would be to
provide corroborative or cumulative evidence. 18
This Court finds no cogent reasons to reverse the decision of the trial court in finding the accused
guilty of murder.
Murder is the unlawful killing of any person when qualified by any of the circumstances listed under
Article 248 of the Revised Penal Code. 19 Treachery, aptly alleged in theinformation, is one of such
qualifying circumstances. Its elements are: (1) the employment of means of execution that
gives the person attacked no opportunity to defend himself or retaliate; and (2) the deliberate and
conscious adoption of the means of execution. 20 Here, treachery is evident when the accused suddenly
positioned himself at the back ofthe unsuspecting victim, pointed his gun at him and, without any
warning, promptly delivered the fatal shots. There was no way the victim could have defended himself,
taken flight, or avoided the assault.
There is, however, reason to modify the lower court's ruling on the second crime of frustrated murder. A
felony is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. 21 For the crime ofmurder, the frustrated stage is reached
only if the wound inflicted would have been mortal. 22 The examining physician has declared
that the wounds suffered by the victim damaged no vital tissues and, without complications, would not
have killed him. The penalty imposed upon appellant should correspondingly be lowered to prision
mayor in its medium period, there being no aggravating or mitigating circumstance
established. Applying the Indeterminate Sentence Law, the minimum term can be anywhere
within therange of prision correccional or from six (6) months and one (1) day to six (6) years
and the maximum within the range of prision mayor in its medium period, or from eight (8) years and
one (1) day to ten (10) years.
The civil indemnity of P50,000.00 awarded to the heirs of the deceased victim Apolinario Belmonte
conforms with prevailing jurisprudence. The grant of P20,000.00 moral damages to Jesus Casaul, Jr.,
found by the trial court has not been disputed by the defense; the award will not be disturbed. cTDIaC
WHEREFORE, the decision of the Regional Trial Court of Bataan, Branch 2, in Criminal Case No. 5096,
finding accused-appellant guilty beyond reasonable doubt of the crime ofMURDER and imposing upon
him the penalty of reclusion perpetua, as well as sentencing him to indemnify the heirs of the deceased
victim, Apolinario Belmonte, a civil indemnity of P50,000.00, is AFFIRMED. In Criminal Case No.
5095, the appealed judgment is MODIFIED and appellant is hereby found guilty
only of the crime of ATTEMPTED MURDER and sentenced to an indeterminate penalty of two (2) years
and nine (9) months of prision correccional as minimum to nine (9) years and one (1) day of prision
mayoras maximum; the imposition on him by the trial court of P20,000.00 moral damages is AFFIRMED.
SO ORDERED.
Melo, Panganiban and Gonzaga-Reyes, JJ., concur.
Sandoval-Gutierrez, J., is on leave.
||| (People v. Padilla, G.R. Nos. 138472-73, [August 9, 2001], 414 PHIL 773-785)