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MALLARI v.

CA
265 SCRA 456, G.R. No. 110569, December 9, 1996
Homicide / Illegal Possession of Firearms / Lawful Arrests / Proof Beyond Reasonable Doubt

FACTS: On December 27, 1990, Pat. Manipon and Pfc. Esguerra, who were both then assigned at the
Capas Police Station, received reliable information that appellant Diosdado Mallari, who has a standing
warrant of arrest for Homicide in 1989, was seen at Sta. Rita, Capas, Tarlac. Immediately upon receipt of
such information, with personal knowledge of the existence of a standing warrant of arrest against
appellant, they proceeded to Sta. Rita, Capas, Tarlac. Upon reaching the place, the arresting officers
surrounded the house of appellant and arrested him. Thereupon, the arresting officers searched him
and found a homemade gun (paltik) with one M-16 live ammunition. He was brought to the Capas Police
Station where he was endorsed to the chief investigator while the homemade gun and live ammunition
were endorsed to the property custodian.

At the time of the arrest and seizure of the gun and live ammunition, the officers did not have with them
a search and seize warrant. They did not possess the standing warrant arrest for the Homicide case as
well. However, they contended that they knew that there was a standing warrant of arrest. And at such,
they did not possess the said warrant because they were in a hurry that if they will wait for the warrant
officer, they may not reach the accused to effect his arrest immediately. When they returned to Capas
Police Station, however, they reached the warrant officer and the warrant was shown to Mallari.

After investigation, the petitioner was charged with the crime of Illegal Possession of Firearms and
Ammunition. The trial court and the CA found him guilty beyond reasonable doubt of the crime of Illegal
Possession of Firearms and Ammunitions. He, however, insists that there was no standing warrant for
his arrest, thereby making the search and seizure invalid. He posits that the absence of the requisite
warrant is fatal and renders the search and seizure unlawful. He also claims that even assuming that the
handgun and ammunition had in fact been found in his possession, the prosecution failed to prove that
he had no license therefor and absent this essential element of the crime of illegal possession of
firearms, it was manifest error for the Court of Appeals to uphold his conviction.

The Court of Appeals concluded that the search and seizure could be validly effected as it was done on
the occasion of a lawful warrantless arrest, particularly, while in the act of committing the crime of
illegal possession of firearms in the presence of the arresting officers. Also, the Office of the Solicitor
General did not attempt to point out any evidence on record of petitioners non-possession of a license
or permit for there really is no such evidence. It relied on the theory that as the firearm involved is a
homemade gun or paltik and is illegal per se, it could not have been the subject of license. This,
according to the Solicitor General, dispenses with the necessity of proving that petitioner had no license
to possess the firearm.

ISSUES:

1.) Whether or not the arresting officer needs to have the warrant in his possession at the time of
the arrest
2.) Whether or not there is a need to prove that there is in fact no license to possess the firearm
HELD:

1.) No. The applicable provision is Section 7, Rule 113 which allows a police officer to effect arrest
without the warrant in his possession at the time of the arrest. The rule allows a police officer to
effect arrest without the warrant in his possession at the time of the arrest. Thus, appellants
arrest being lawful, the search and seizure made incidental thereto is likewise valid, albeit
conducted without a warrant.
2.) Yes. In crimes involving illegal possession of firearm, the prosecution has the burden of proving
the elements thereof, (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. The latter is a negative fact which constitutes an essential ingredient of the offense of
illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it
beyond reasonable doubt. In the case at bench, the testimony of a representative of, or a
certification from the PNP that petitioner was not a licensee of the said firearm would have
sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime
of illegal possession. The absence of the foregoing is fatal to the prosecution's case and renders
petitioner's conviction erroneous.

The Court did not agree with the contention of the Solicitor General that since a paltik is a homemade
gun, it is illegally manufactured and cannot be issued a license or permit, and is no longer necessary to
prove that it is unlicensed. This appears to be at first blush, a very logical proposition. However the
Court did not yield to it because nothing was said about such, that paltiks can in no case be issued a
license or permit and that proof that a firearm is a paltik dispenses with proof that it is unlicensed.
Hence, the accused was acquitted for insufficiency of evidence.

SECOND DIVISION

G.R. No. 188794, September 02, 2015

HONESTO OGAYON Y DIAZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 assailing the Decision2 dated March 31, 2009, and
the Resolution3 dated July 10, 2009, of the Court of Appeals (CA) in CA-G.R. CR No. 31154.
The appealed decision affirmed the joint judgment4 dated September 5, 2007, of the Regional Trial
Court (RTC), Branch 12, Ligao City, Albay, which convicted petitioner Honesto Ogayon of violating Sections
11 and 12, Article II of Republic Act No. 9165.5

The Antecedent Facts

On December 1, 2003, two Informations were filed against Ogayon for the crimes allegedly committed as
follows:

I. Criminal Case No. 4738:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at Barangay Iraya, Municipality
of Guinobatan, Province of Albay, 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,
custody and control four (4) pcs. of small aluminum foil, four (4) pcs. of disposable lighter in
different colors, one (1) blade trademark "Dorco," and one (1) roll aluminum foil, instruments used
or intended to be used for smoking or consuming shabu, without authority of law, to the damage
and prejudice of the public interest and welfare.6

II. Criminal Case No. 4739:

That at about 5:20 o'clock (sic) in the morning of October 2, 2003 at Barangay Iraya, Municipality
of Guinobatan, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to violate the law, and without authority of law, did
then and there willfully, unlawfully and feloniously have in his possession, custody and control two
(2) heat-sealed transparent plastic sachets containing 0.040 gram of methamphetamine
hydrochloride (shabu), with full knowledge that in his possession and control is a dangerous drug,
to the damage and prejudice of the public interest and welfare.7

During his arraignment in Criminal Case Nos. 4738 and 4739 on January 21, 2004, and March 17, 2004,
respectively, Ogayon denied both charges and pleaded "not guilty." The joint pre-trial held on May 5, 2004
yielded only one factual admission on the identity of the accused.8 A joint trial on the merits ensued.

The Prosecution Version

On October 2, 2003, at around 5:20 a.m., Police Chief Inspector Elmer Ferrera, together with the other
members of the Albay Provincial Police Office, proceeded to Ogayon's house in Barangay Iraya, Guinobatan,
Albay, to enforce Search Warrant No. AEK 29-2003.9 The warrant was for the seizure of shabu and drug
paraphernalia allegedly kept and concealed in the premises of Ogayon's house. Barangay Tanod Jose Lagana
(Tanod Lagana) and Kagawad Lauro Tampocao assisted the police team in conducting the search.10

Upon reaching Ogayon's house, the police team noticed several persons inside a nipa hut located nearby.
Suspecting that a pot session was about to be held, the police team restrained two of the five persons and
immediately proceeded to Ogayon's house. After introducing themselves as police officers, Senior Police
Officer Herminigildo Caritos (SPO4 Caritos) informed Ogayon that they had a warrant to search his place.
SPO4 Caritos handed a copy of the warrant to Ogayon, who allowed the police team to conduct the search.11

Led by SPO4 Caritos, some members of the police team went to the comfort room located about five meters
away from Ogayon's house. When they searched the area, they found an object (wrapped in a piece of
paper with blue prints) that fell from the wooden braces of the roof. Upon SPO4 Caritos' inspection, the
paper contained two (2) small, heat-sealed transparent plastic sachets that the police team suspected to
contain shabu. The search of the comfort room also uncovered four (4) disposable lighters, one (1) knife
measuring six inches long, used aluminum foil, one (1) roll of aluminum foil, and a "Dorco" blade.12 SPO4
Caritos then placed his initials on the two (2) plastic sachets before joining the rest of the police officers who
were conducting a search in Ogayon's house. The police officers who searched Ogayon's house found live
ammunition for an M-16 rifle.

After conducting the search, the police team prepared a Receipt of Property Seized.13 The receipt was signed
by the seizing officers, representatives from the Department of Justice and the media, and two (2) barangay
officials who were present during the entire operation.14

The police team thereafter arrested Ogayon and the two (2) other persons who had earlier been restrained,
and brought them to Camp Simeon Ola for booking. The seized items were likewise brought to the camp for
laboratory examination. In his Chemistry Report,15 Police Superintendent Lorlie Arroyo (forensic chemist of
the Philippine National Police Regional Crime Laboratory) reported that the two (2) plastic sachets seized
from Ogayon's place tested positive for the presence of methamphetamine hydrochloride or shabu.16

The Defense Version

The defense presented a different version of the events.

Testifying for himself, Ogayon disavowed any knowledge of the prohibited drugs and claimed that he saw
the seized items for the first time only when they were being inventoried. His statements were corroborated
by the testimony of his wife, Zenaida Ogayon.

Ogayon asserted that prior to the search, he was asleep in his house. His wife Zenaida woke him up because
several policemen and barangay officials came to his house. He claimed that the police team did not present
any search warrant before conducting the search, and it was only during trial that he saw a copy of the
warrant.

He recounted that the police officers, splitting into two groups, conducted a simultaneous search of his
house and the comfort room located nearby. He noticed that SPO4 Caritos, who was part of the group that
searched the comfort room, came out and went to the Barangay Hall. Shortly after, SPO4 Caritos returned,
accompanied by Tanod Lagana. SPO4 Caritos again went inside the comfort room, leaving Tanod Lagana
waiting outside. SPO4 Caritos thereafter came out from the comfort room and ran towards Ogayon's house
while shouting "positive, positive."17

The RTC Ruling

On September 5, 2007, the RTC rendered a joint judgment convicting Ogayon of the two criminal charges
against him. Relying on the presumption of regularity, the RTC rejected Ogayon's frame-up defense. The
dispositive portion of the joint judgment reads:

WHEREFORE, under the above considerations, judgment is hereby rendered as follows:

a. In Criminal Case No. 4738, accused, Honesto Ogayon y Diaz is found GUILTY beyond reasonable
doubt of Violation of Section 12, Art. II, Republic Act No. 9165, known as the "Comprehensive
Dangerous Drugs Act of 2002," for his unlawful possession of drug paraphernalia, namely: four (4)
pcs. small aluminum foil, one (1) roll aluminum foil, four (4) pcs. disposable lighters, and one (1)
pc. blade; thereby sentencing him to suffer the indeterminate penalty of imprisonment of six (6)
months and one (1) day to two (2) years and to pay a FINE often thousand pesos (P10,000.00); cralawlaw lib rary

b. In Criminal Case No. 4739, accused, Honesto Ogayon y Diaz is found GUILTY beyond reasonable
doubt of Violation of Section 11, Art. II, Republic Act No. 9165, known as the "Comprehensive
Dangerous Drugs Act of 2002," for his unlawful possession of two (2) pcs. small heat-sealed plastic
sachets containing methamphetamine hydrochloride or "shabu," with total net weight of 0.0400
gram; thereby, sentencing him to suffer the indeterminate penalty of imprisonment of twelve (12)
years and one (1) day to fourteen (14) years and to pay a FINE of three hundred thousand pesos
(P300,000.00).18

Ogayon appealed to the CA. This time, he questioned the validity of the search warrant, claiming it was
improperly issued. He argued that the search warrant was defective for lack of transcript showing that the
issuing judge conducted an examination of the applicant for search warrant and his witnesses.

The CA Ruling

In accordance with Section 5, Rule 126 of the Rules of Court, a judge must examine under oath and in
writing an applicant for search warrant and his witnesses. Although the CA found no evidence in the records
showing compliance with this requirement, it nevertheless upheld the search warrant's validity due to
Ogayon's failure to make a timely objection against the warrant during the trial.

That Ogayon objected to the prosecution's formal offer of exhibits, which included the search warrant, was
not sufficient for the CA. Ogayon merely claimed that the chemistry report was not executed under oath, the
items were not illegal per se, and that he did not sign the Receipt of Property Seized since he was not
present when the seized items were confiscated. The CA noted that the objections were not based on
constitutional grounds, and for this reason, concluded that Ogayon is deemed to have waived the
right to question the legality of the search warrant.19

Based on the search warrant's validity, the CA affirmed Ogayon's conviction for possession of drugs and
drug paraphernalia. Although the comfort room was located outside Ogayon's house, the CA declared that
he exercised exclusive control over it and should rightly be held responsible for the prohibited drugs and
paraphernalia found there.
As with the RTC, the CA relied on the presumption of regularity of the police team's operation and found
Ogayon's claim of frame-up to be unsupported. The CA thus ruled that the prosecution proved beyond
reasonable doubt that Ogayon was liable for the crimes charged. chanrob leslaw

The Issues

In the present petition, Ogayon raises the following assignment of errors:

I.

The CA erred in finding that Ogayon had waived his right to question the legality of the search
warrant.

II.

Even granting without admitting that Ogayon had already waived his right to question the
legality of the search warrant, the search conducted was still highly irregular, thereby rendering
the seized articles as inadmissible in evidence.

Ogayon primarily argues that there was a violation of his constitutional right to be secure in his person,
house, papers, and effects against unreasonable searches and seizures. He denies waiving the right through
his supposed failure to assail the search warrant's validity during the trial. On the contrary, he claims to
have objected to the prosecution's formal offer of the search warrant.

Even assuming that he questioned the search warrant's validity only during appeal, Ogayon contends that
this should not be interpreted as a waiver of his right. Since an appeal in a criminal case throws the whole
case open for review, any objection made on appeal, though not raised before the trial court, should still be
considered.

Ogayon next argues that the search conducted by the police team on his premises, pursuant to an already
defective search warrant, was highly irregular. He and his spouse were in their house when SPO4 Caritos
allegedly discovered the shabu in the comfort room located outside their house, so they were not able to
witness the search. Moreover, he claimed that there were other persons near the premises of his house (and
the comfort room) when the search was conducted. Hence, it could not indubitably be concluded that the
seized items were under his actual and effective control and possession. chanroble slaw

The Court's Ruling

The right against unreasonable searches and seizures is one of the fundamental constitutional rights.
Section 2, Article III of the Constitution, reads:

Section 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, [emphasis ours]

This right has been included in our Constitution since 1899 through the Malolos Constitution20 and has been
incorporated in the various organic laws governing the Philippines during the American colonization,21 the
1935 Constitution,22 and the 1973 Constitution.23

The protection afforded by the right is reinforced by its recognition as a fundamental human right under the
International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights,24to both
of which the Philippines is a signatory.25 Both the Covenant and the Declaration recognize a person's right
against arbitrary or unlawful interference with one's privacy and property.26

Given the significance of this right, the courts must be vigilant in preventing its stealthy encroachment or
gradual depreciation and ensure that the safeguards put in place for its protection are observed.
Under Section 2, Article III of the Constitution, the existence of probable cause for the issuance of a
warrant is central to the right, and its existence largely depends on the finding of the judge conducting
the examination.27 To substantiate a finding of probable cause, the Rules of Court specifically require that -

Rule 126, Sec. 5. Examination of complainant; record. - The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in writing and under
oath, the complainant and the witnesses he may produce on facts personally known to them and
attach to the record their sworn statements, together with the affidavits submitted. [emphasis
ours]

Ogayon's appeal of his conviction essentially rests on his claim that the search warrant was defective
because "there was no transcript of stenographic notes of the proceedings in which the issuing judge had
allegedly propounded the required searching questions and answers in order to determine the existence of
probable cause."28We find that the failure to attach to the records the depositions of the
complainant and his witnesses and/or the transcript of the judge's examination, though contrary
to the Rules, does not by itself nullify the warrant. The requirement to attach is merely a procedural
rule and not a component of the right. Rules of procedure or statutory requirements, however salutary they
may be, cannot provide new constitutional requirements.29

Instead, what the Constitution requires is for the judge to conduct an "examination under oath or
affirmation of the complainant and the witnesses he may produce," after which he determines
the existence of probable cause for the issuance of the warrant. The examination requirement was
originally a procedural rule found in Section 98 of General Order No. 58,30 but was elevated as part of the
guarantee of the right under the 1935 Constitution.31 The intent was to ensure that a warrant is issued not
merely on the basis of the affidavits of the complainant and his witnesses, but only after examination by the
judge of the complainant and his witnesses. As the same examination requirement was adopted in the
present Constitution, we declared that affidavits of the complainant and his witnesses are insufficient to
establish the factual basis for probable cause.32 Personal examination by the judge of the applicant and his
witnesses is indispensable, and the examination should be probingand exhaustive, not merely routinary or a
rehash of the affidavits.33

The Solicitor General argues that the lack of depositions and transcript does not necessarily indicate that no
examination was made by the judge who issued the warrant in compliance with the constitutional
requirement. True, since in People v. Tee,34 we declared that -

[T]he purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to
the existence of probable cause. The Bill of Rights does not make it an imperative necessity that depositions
be attached to the records of an application for a search warrant. Hence, said omission is not necessarily
fatal, for as long as there is evidence on the record showing what testimony was presented.35

Ideally, compliance with the examination requirement is shown by the depositions and the transcript. In
their absence, however, a warrant may still be upheld if there is evidence in the records that the
requisite examination was made and probable cause was based thereon. There must be, in the
records, particular facts and circumstances that were considered by the judge as sufficient to make an
independent evaluation of the existence of probable cause to justify the issuance of the search warrant.36
[G.R. No. 110569. December 9, 1996]

DIOSDADO MALLARI, petitioner, vs. THE HON. COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
FRANCISCO, J.:

Given credence by respondent Court of Appeals is the following narration of the factual
antecedents of this case by the People.

Sometime on December 27, 1990, at around 2:30 p.m., Pat Manipon and Pfc. Esguerra, who were both
then assigned at the Capas Police Station, received reliable information that appellant Diosdado Mallari,
who has a standing warrant of arrest in connection with Criminal Case No. 471 for homicide in 1989, was
seen at Sitio 14, Sta. Rita, Capas, Tarlac (tsn, April 18, 1991, pp. 3-4; June 27, 1991, p.3).

Immediately upon receipt of such information, Pfc. Manipon, accompanied by Pat. Esguerra and Pat.
Narciso Simbulan, with personal knowledge of the existence of a standing warrant of arrest against
appellant in connection with Criminal Case No. 471 for Homicide, immediately proceeded to Sitio 14,
Sta. Rita, Capas, Tarlac. Upon reaching the place, the arresting officers surrounded the house of
appellant, arrested him and told him to remain stationary. Thereupon, the arresting officers searched
him and found a homemade gun (paltik) with one M-16 live ammunition (tsn, April 18, 1991, pp. 5-6,
8; June 27, 1991, pp. 3-5, 7).

Appellant was handcuffed and brought to the Capas Police Station where he was endorsed to the chief
investigator while the homemade gun and live ammunition were endorsed to the property
custodian. The incident was then entered in the police blotter after which the spot and investigation
reports were prepared (tsn, June, April 18, 1991, p. 5, 10; June 27, 1991, p. 6).[1]

After investigation, the petitioner was charged with the crime of Illegal Posession of Firearms and
Ammunition, and pleaded not guilty on arraignment. Trial on the merits ensued, after which, the
Regional Trial Court of Capas, Tarlac convicted petitioner of the crime charged, as follows:

WHEREFORE, accused Diosdado Mallari is hereby found guilty beyond reasonable doubt of the crime of
Illegal Posession of Firearms and Ammunitions and hereby sentences him to suffer an indeterminate
penalty of seventeen years, four months and one day as minimum to eighteen years and eight months
as maximum.

Accused, who is a detention prisoner is given full credit for the period of his preventive imprisonment,
after compliance with Article 29 of the Revised penal Code.

SO ORDERED.[2]

Assailed in this petition for review on certiorari is the decision of respondent Court of Appeals
affirming in toto the abovequoted decision of the trial court. In its decision, the Court of Appeals held
that the testimonies of the prosecution witnesses, Pfc. Manipon and Pat Esguerra unequivocally proved
that the handgun (paltik) and the live M-16 ammunition were recovered from the person of the
appellant (herein petitioner).[3] The Court of Appeals further held that the search conducted on the
petitioner and the seizure of the subject firearm and ammunition were done on the occasion of a lawful
arrest as there was then an outstanding warrant for petitioners arrest in Criminal Case No. 471. [4] It
likewise found that petitioner was arrested while committing the crime of illegal possession of firearms
in the presence of the police authorities. Thus, anent petitioners insistence that there was no standing
warrant for his arrest, thereby making the search and seizure invalid, the Court of Appeals stated that,
under the prevailing factual milieu, even in the absence of a warrant, still appellants arrest would fall
squarely within the context of Rule 113, Sec. 5 (b), Rules of Court x x x[5] which cites the instances when
a warrantless arrest may be valid.
In seeking the reversal of his conviction, petitioner questions the factual finding of the Court of
Appeals that at the time of his arrest, there was a standing warrant against him in Criminal Case No.
471. Petitioner posits that the absence of the requisite warrant is fatal and renders the search and
seizure unlawful. Corrolarily, the handgun and ammunition seized from him are inadmissible in
evidence. Petitioner also contends that it was error for the Court of Appeals to conclude that the search
and seizure could be validly effected as it was done on the occasion of a lawful warrantless arrest,
particularly, while in the act of committing the crime of illegal possession of firearms in the presence of
the arresting officers. Finally, petitioner claims that even assuming that the handgun and ammunition
had in fact been found in his possession, the prosecution failed to prove that he had no license therefor
and absent this essential element of the crime of illegal possession of firearms, it was manifest error for
the Court of Appeals to uphold his conviction.
The threshold issue is factual: whether or not there indeed existed a standing warrant for the arrest
of the petitioner. At the outset, this Court reiterates the general rule that when supported by substantial
evidence, factual findings of the Court of Appeals are final and conclusive and may not be reviewed on
appeal.[6] A careful scrunity of the records of the case at bench leads this Court to concur with the Court
of Appeals in its finding that when the petitioner was arrested, there was then a standing warrant of
arrest against him in connection with Criminal Case No. 471. This fact is manifest from the testimonies
of the arresting officers which the defense failed to rebut during trial.
Pfc. Danilo Manipon:
Q When you arrested Diosdado Mallari Mr. Witness, were you carrying a warrant of arrest then?
A No, sir.
Q Neither you did not have with you a seize and search warrant and despite the fact that you have
no search and seize warrant you have still pursued in getting the ammunition you have just
mentioned, the home made gun and the live bullet?
A Yes, sir.
COURT:
You are referring to what case?
A Homicide, maam, Criminal Case No. 471.
COURT:
Alright.
Q Was the seizure of the home made gun related to the warrant of arrest being issued by this
honorable court with respect to criminal case No. 471?
COURT:
Will you clarify, I heard him saying that he did not have a warrant of arrest, is that correct?
A Yes, maam.
COURT:
What about with respect to Criminal Case No. 471 you do not have a warrant of arrest issued
by this court?
A There was, maam, I know that there was a warrant of arrest issued, that is why we proceeded to
Sitio 14, maam.
COURT:
Alright you proceeded to Sitio 14 because of the warrant of arrest issued by this court to to
apprehend Diosdado Mallari in Criminal Case No. 471, is that correct?
A Yes, maam.[7] [Underscoring supplied]
Pat. Jose Esguerra:
Q Do you have with you at the time when you arrested or when you seized the gun and the live
ammunition, a search and seize warrant?
A None, your honor.
COURT:
Q Did you have with you the warrant of arrest you mentioned with respect to CR. No. 471?
A When we went to him, we did not have a warrant of arrest because we were in a hurry but when
we returned, we reached the warrant officer, you honor.
Q Where did you return?
A When we returned to the Capas Police Station there was the warrant officer already, your Honor.
Proceed.
ATTY. DULDULAO:
Q You said you did not bring the warrant of arrest when you arrested the the accused how did you
come to know that Diosdado Mallari was indeed the accused despite the fact that you did not
bring with you the warrant of arrest then?
A When we went there, sir, we did not have a warrant of arrest because we were in a hurry if we
will wait our warrant officer, we may not reach Diosdado Mallari, but we know that he has a
standing warrant of arrest.[8] [Underscoring provided]
Further bolstering the arresting officers testimonies is the absence of any motive on their part to
falsely testify against the petitioner. And it has been repeatedly held that without proof of such motive,
law enforcers are presumed to have regularly performed their duties.[9] Thus, absent strong and
convincing proof to the contrary, this Court is bound by the presumption that the arresting officers were
aware of the legal mandates in effecting an arrest and strictly complied with the same.
At this juncture, the Court would like to stress that this is not a case of a warrantless arrest but
merely an instance of an arrest effected by the police authorities without having the warrant in their
possession at that precise moment. Finding as it does, this Court deems it unnecessary to delve into the
applicability of Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioners and
the Office of the Solicitor Generals arguments with respect thereto. The applicable provision is not
Section 5, Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which provides
as follows:

Sec. 8. Method of Arrest by officer by virtue of warrant. -- When making an arrest by virtue of a warrant
the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant
has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity
so to inform him or when the giving of such information will imperil the arrest. The officer need not
have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so
requires, the warrant shall be shown to him as soon as practicable. [Underscoring supplied]

The abovequoted rule clearly allows a police officer to effect arrest without the warrant in his
possession at the time of the arrest. Thus, appellants arrest being lawful, the search and seizure made
incidental thereto is likewise valid, albeit conducted without a warrant.[10] In the case of
People v. Acol,[11] where the unlicensed firearms were found when the police team apprehended the
accused for robbery and not for illegal possession of firearms and ammunition, this Court held that the
unlicensed firearms may be seized without the necessity of obtaining a search warrant. Expounding
thereon, it stated that:

` x x x 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 and the taking of the corpus delicti.[12]

Finally, petitioner contends that the prosecution failed to discharge its burden of proving that he
did not have the requisite license for the firearm and ammunition found in his possession. Anent this
contention, the Office of the Solicitor General does not even attempt to point out any evidence on
record of petitioners non-possession of a license or permit for there really is no such evidence. It relies
on the theory that as the firearm involved is a homemade gun or paltik and is illegal per se, it could not
have been the subject of license.[13] This, according to the Solicitor General, dispenses with the necessity
of proving that petitioner had no license to possess the firearm. This is where the prosecutions case fails
and miserably so.This Court has ruled that:

We do not agree with the contention of the Solicitor General that since a paltik is a homemade gun, is
illegally manufactures as recognized in People vs. Fajardo, and cannot be issued a license or permit, it is
no longer necessary to prove that it is unlicensed. This appears to be at first blush, a very logical
proposition. We cannot, however, yield to it because Fajardo did not say that paltiks can in no case be
issued a license or permit and that proof that a firearm is a paltik with proof that it is unlicensed.[14]
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.[15] The
latter is a negative fact which constitutes an essential ingredient of the offense of illegal possession, and
it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt.[16] In
the case at bench, the testimony of a representative of, a certification from the PNP (FEU) that
petitioner was not a licensee of the said firearm would have sufficed for the prosecution to prove
beyond reasonable doubt the second element of the crime of illegal possession.[17] The absence of the
foregoing is fatal to the prosecutions case and renders petitioners conviction erroneous.
True that in the case of People vs. Mesal[18], this Court dispensed with a certification from the
Firearms and Explosives Unit (FEU) of the Philippine National Police (PNP) to establish the alleged lack of
license or permit on the part of the accused-appellant to possess the M-14 rifle found in his
possession. This was, however, premised on the fact that:

The records reveal that the allegation was successfully substantiated by other evidence which firmly and
undisputably established that accused-appellant did not have and could not possibly have, the requisite
license or authority to possess the M-14 rifle concerned. Technical Sgt. Alfredo Romasanta, Supply
Officer of the PC-INP 253rd PC Company, testified that the rifle concerned is the type of weapon which
only military men are authorized to possess x x x.[19]

The above enunciated doctrine is not applicable to this case. The records are bereft of any evidence
similar to that offered by the prosecution in Mesal to prove that the petitioner did not have and could
not possibly have the requisite license or authority to possess the paltik and the M-16 live ammunition.
In view of the foregoing, the petition is hereby GRANTED and the assailed decision is REVERSED
and SET ASIDE. Petitioner Diosdado Mallari is hereby ACQUITTED for insufficiency of evidence and
ordered immediately released unless there are other legal grounds for his continued detention.
SO ORDERED.
Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.