REPUBLIC OF THE PHILIPPINES Sandiganbayan Quezon City Third Division PEOPLE OF THE PHILIPPINES, ‘Crim. CASE No, 25548 Plaintif, For: Homice (Att. 249 of the Revised Penal Code) -versus- (CRISOLOGO ABINES Y ANDRADE PRESENT: MUNICIPAL Mayor, Legaspi, J. SAMBOAN, CEBU, Dela Crazy, J. Jesus CORTES Y BINOLOGA Geraldex, J. BARANGAY CAPTAIN, ‘LILOAN, SANTANDER, CEBU ROQUE Paras, JR. Y DAYON PROMULGATED: ul Ny, SENIOR POLICE OFFICER T A f z SAMBOAN POLICE STATION ~O ROMEO GANAD ¥ DIALES / POBLACION, SANTANDER, CEBU, Aacused. DECISION Lacasp, J: In an Amended Information dated September 17, 2003, Crisologo ] Abines, Jesus Cortes, Roque D. Paras Jr, and Romeo Ganad stand charge with / the crime of Homicide, defined and penalized under Article 249 of the Revised fe)DECISION People vs. Crisologo Abines, et al. Ceiminal Case No. 25548 Page 2 of 49 Penal Code. The accusatory portion of the Amended Information reads as follows: “That on or about the 21% day of March 1999 in Barangay Looc, Municipality of Santander, Province of Cebu, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, namely: Grisologo Abines. being then the Municipal Mayor of Samboan, Cebu: Jesus Cortes, being then the Barangay Captain of _Liloan, Municipali Santander, Cebu; Roque D. Paras, Jr. being then the Senior Police Officer 1, Samboan Police Station, Cebu and Romeo Ganad, being then ward Mayor Abines, while in the exercise of their respective official functions to maintain peace and order, as such public officials, taking advantage of their respective public positions, committn the offense in relation to office, conspiring, confederating together and ‘mutually helping one another, did then and there willfully, unlawfully and feloniously, with intent to kill and without any justifiable motive, attack, assault and employ personal violence upon the person of one Pompio Bureros, by then and there shooting the latter, hitting him at the different parts of his body, thereby inflicting upon said Pompio Bureros the following injuries: LACERATED WOUND: 3.3 cms.. pinna of right ear, upper part; 3.2 cms., posterior auricular area, right, upper part. GuNsHOT WOUND: Entrance, 0.8 x 0.7 cm., ovaloid, edges inverted, with a contusion collar widest at its supero- lateral border, located at the parieto-occipital area, left, 13.0 cms. above and 4,0 oms. behind the left external meatus; directed forward, downward and from left to right; involving the scalp, fracturing the posterior portion of the parietal bone (with beveling inward), producing a linear fractures radiating to the anterior cranial fossae, middle cranial fossae and posterior cranial fossae, then entering the cranial cavity, lacerating the left cerebral hemisphere of the brain and then fracturing (comminuted) the roof of the orbit, and entering the optic cavity, then into the nasal cavity, then fracturing the right maxillary bone (with JSDECISION People vs. Crisologo Abines, etal Criminal Case No. 25548 Page 3 of 49 beveling outward) then making an ExT wound 1.2 x 1.3 cms., everted edges, located at the upper lip, right side, 1.4 oms,, from the anterior median line, 14.3 oms. in front and 5.4 cms, below the right external auditory meatus.” Thereby causing his direct and immediate death. CONTRARY TO LAW. * On November 24, 2003, after having been arraigned and informed of the nature of the accusation filed against them, all the accused, assisted by counsel, entered separate pleas of not guilty. During the pre-trial, the Prosecution and Defense entered into the following stipulation of facts: 1. That at the time alleged in the information, accused Crisologo A. Abines was a Municipal Mayor, accused Roque D. Paras was a police officer, accused Jesus 8. Cortes was a Bray. Captain; 2. That all the accused, Crisologo A. Abines, Roque D. Paras, Jesus B. Cortes and Romeo D. Ganad were at the crime scene during the incident; 3. That accused Crisologo A. Abines was a former Mayor of Santander, Cebu and a former Congressman of 2™ District of Cebu; 4, That at the time of the incident, the Mayor of Santander, Cebu was James ‘Amold Abines, the son of acoused Crisologo Abines; 5. That deceased Pompio Bureros was shot at the back of his head." ‘Thereafter, trial on the merits ensued. \ "pre tal Order dated February 16,2004, Record Vol. 1/4. 231-284 [ |DECISION People vs. Crisologo Abines, etal. Criminal Case No. 25548 Page 4 of 49 EVIDENCE FOR THE PROSECUTION ‘The first witness presented by the Prosecution is CELSO MIRO Y FREJOLE (witness Miro for brevity), resident of Poblacion, Santander, Cebu. He testified as follows: (On March 21, 1999 at 3:00 o'clock in the afternoon, he was in Looe, Santander because there was “hanlakan” and “bulangan" also called “cara y cruz”. He went there to watch the cockfight and “cara y cruz” At the said place, he saw Mayor Crisologo “Sol” Abines, Jesus Cortes, Romeo Ganad, Pompio Bureros, Erwin Bureros, Warren Dagayloan and Ed Somoco. Crisologo *Sol" Abines is the mayor of Santander, Cebu. Jesus Cortes and Romeo Ganad are the men of Mayor Crisologo Abines. Pompio Bureros is an ex-army man. He drew a sketch (Exhibit R) in open court showing the ‘hantakan” and ‘bulangan” and indicated thereat the positions of Abines, Cortes, Ganad and Pompio Bureros when the shooting incident took place. He Indicated the upper portion of the sketch as the “bulangan” and the one below as the “hantakan’. Surrounding the “hantakan” are coconut trees ‘While he was standing near the “hantakan’, he saw Abines seated on a chair. Pompio Bureros was also standing near the “hantakan”. Romeo Ganad was also standing near the "hantakan” near Mayor Abines. Jesus Cortes was behind Mayor Abines. Bureros stepped inside the “hantakan’ and played “hantak’, dropped a coin which turned on the cross side of the coin, Bureros stepped on the coconut trunk, Abines held the right leg of Bureros, Jesus Cortes held the left arm and Romeo Ganad held the right hand. Bureros struggled to free himself but fell down on his chest. Abines held the right leg of Bureros, Cortes sat down on the buttock and held the left and right hands of Bureros. Ganad then was in a stooping position at the right side of Bureros pulling the left arm of the latter, Thereafter, ‘ines shouted ‘pus’ “pus” (shoot him’, shoot hit). He got afraid and ran outside to the direction of his house. While he was running, he aeDECISION People vs. Crisologo Abines, et al. Caiminal Case No. 25548 Page 5 of 49 heard two (2) gunshots. He did not see who shot Pompio Bureros. He executed a sworn statement (Exhibit °C’). The defense admitted the identity of the accused. On July 20, 2004, the Prosecution presented ERWIN BUREROS (u#/ness Bureros for brevity), 33 years old and casual employee in the Provincial Capitol of Cebu. He testified as follows: On March 21, 1999, he was at Barangay Looc, Santander to attend the cockfighting. He arrived at the place at 2:30 in the aftemoon. At around 4:30 in the afternoon, he saw Jesus Cortes, Romeo Ganad, Mayor Sol Abines holding Pompio Bureros. Cortes was holding the left arm of Bureros, Sol Abines was holding the feet and Romeo Ganad was holding the right arm. Pompio Bureros struggled to free himself from their hold. After Bureros was able to free his right foot, and while in a kneeling position, Bureros kicked Abines on his right shoulder. He did not see who shot Bureros. After that, he saw Roque Paras, the police bodyguard of Mayor Abines, in the act of shooting the back portion of the head of Bureros who thereafter fell down the ground in slanting position. While on the ground, Jesus Cortes hit the right ear of Buretos. He heard more than three (3) gunshots. He executed two (2) sworn statements (Exhibit A and A-1) Then, on October 18, 2004, the Prosecution called to testify WARREN DAGAYLOAN ¥ JUGO (witness Dagayloan for brevity), 27 years old and a resident of Barangay Looc, Santander, Cebu. He testified that: ‘On March 21, 1999, at about 2:00 o'clock in the afternoon, he was in Looe, Santander, Cebu where he played cara y cruz. He lost in the game 0 at 3:30 o'clock in the afternoon he left the place. While he was on his way home, he met Pompio Bureros his uncle, and Ejias Poresoo who * TSN dated April 19, 2004DECISION People vs. Crisologo Abines, etal. Criminal Case No. 25548 Page 6 of 49 x invited him to go back to the place where cara y cruz was being played. They proceeded to the said place, and there Pompio Bureros played cara ¥ cruz while the rest of them sat and stayed at a food stall one (1) meter away from the place. After fifteen (15) minutes, Pompio Bureros returned and joined them in the food stall. Later, Erwin Bureros approached the group and asked them if they were going to join the cockfight. Pompio bet for P30. After fifteen (15) minutes, Amay Coyo-oy approached them and informed the group that Erwin’s cock lost in the cockfight. ‘At about 4:20 o'clock in the afternoon, Erwin Bureros, Pompio Bureros, Elias Buscatog and Amay Coyo-oy bought some beer and drank. When they started to drink the second bottle, Pompio stood up and went to the place where cara y cruz was being played. Thereafter, he heard a shot and when he tumed around, he saw the crowd, about fifty (60) persons at that time, running, shouting and ‘scampering. He tried to locate where the shot came from. From the place Where he was, at about 3 to 4 meters away, he saw Pompio Bureros being held by Jesus Cortes, a bodyguard of Abines at his left arm, Romeo Ganad another bodyguard of Abines holding/twisting Pompio's right arm, Sol Abines holding Pompio’s feet while Roy Paras, a policeman holding a gun who shot Pompio at the back of his head. After the shot, Jesus Cortes, Romeo Ganad and Roy Paras approached Abines and carried him under a star apple tree. After awhile, Cortes returned to the place where the body of Pompio was and by using the butt of the gun, hit Pompio at his right ear. He then decided to go home, and while he was going to the main road and out 40 meters away to the main road from the place where he came from, he still heard several shots. On October 20, 2004, the Prosecution presented Dr. GIL MACATO ¥ CUA (Dr. Macato for brevity), medico-legal officer of NBI Region 7, Cebu City.’ Dr. Macato was presented to testify on his Necropsy Report (Exhibit H) and | the Diagrammatic Sketch of the Human Head and Body (Exhibit O) which he (Bop BDECISION People vs. Crisologo Abies, et a Geiminal Case No. 25548 Page 7 of 49 prepared when he conducted an autopsy on the cadaver of the subject victim, Pompio Bureros. Defense counsel Atty. Demetrio Custodio stipulated on the truthfulness of the contents of the Necropsy report (Exhibit H) prepared by the witness and admitted as shown in the Report that the cause of death of the victim was a gunshot wound on the head. Thereafter, the Prosecution rested ‘its case and formally offered its documentary evidence on January 21, 2005, Thus: Exar DESCRIPTION A” ‘Sworn Statement of Erwin Bureros dated March 23, _| 1999; = a At Supplementary Sworn Statement of Erwin Bureros dated March 31, 1999; Bit A2 ‘Signature of Erwin Bureros in Exhibit "A", A3 Signature of NBI Supervising Agent, Ally. Jose Emie AS 5 Monsanto in Exhibit "A"; Signature of NBI Executive Officer Atty. Ramon Barot, dt. in Exhibit “A-1"; a ‘Swom Statement of Warren Dagayloan dated April 5, Reece Ngee eee eee eee reece Bi Signature and right thumb print of Warren Dagayloan in page 1 of Sworn Statement; B2 ‘Signature and right thumb print of Warren Dagayloan in page 4 of Swom Statement; ‘Swom Statement of Celso Miro dated April 26, 1999, ‘Swom Statement of Eliseo Audencia; | Sworn Statement of Simeon Marallo; ‘Sworn Statement of Loreto Donque; ‘Swom Statement of Aida Bureros, NBI Necropsy Report No. 99-NO-10, HA Signature of Dr. Gil Macato; Cebu Doctor's Hospital Medico-Legai Form-front and 1 back page showing the wounds of Grisologo Abines; Physical Science Report No. C-034A-99 on the J presence of gunpowder nitrates on firearm; | K Cebu Doctor's Hospital Medica! Report on Crisologo ci _[Abines; Hi iat Request letter of Congressman Kintanar dated March _L____| 22, 1999 to investigate the killing of Pompeo Bureros; Biology Report No. 99-B8-1003 on 1 pc. Bullet of undetermined caliber marked “AEP-23° found positive M of blood which was recovered from the body of Grisologo Abines; N ‘Complaint sheet of Aida Bureros; ° Diagram of the Human Head with the points of entDECISION People vs. Crisologo Abines, et al. Csiminal Case No. 25548 Page 8 of 49 ‘and exit of the bullet that killed Pompeo Bureros, Physical Science Report No, C-034-99 on the presence of gunpowder nitrates on the hands of Roque Paras, Jt: a Consolidted Evaluation Report of OMB-Visayas dated May 3, 1999; ‘Sketch of witness Celso Miro showing the site of the crime and the location of accused Crisologo Abines, R Romeo Ganad and Jesus Cortes in the "Hantakan’ before the shooting of Pompio Bureros: Diagram of the Human Body with other injuries s sustained by Pompeo Bureros, Over the objections of the Defense, the Court admitted all the exhibits offered by the Prosecution in a minute Resolution dated March 30, 2005.? WVIDENC) RTH NSE The defense presented its first witness on April 25, 2005, MELENCIO JUGO ¥ MIGO (witness Jugo for brevity) of Barangay Looc, Santander, Cebu. He testified: He arrived at the place at 2:00 o'clock in the afternoon, accompanied by his brother, Willie Jugo, Jr. to see a “sabong”. He described the cockpit as an open area with a bamboo fence covering an area of twenty-five ‘square meters, He saw Bureros arrived at the place at past 3:00 o'clock in the afternoon, then Abines at 4:00 o'clock. At past 4:00 o'clock in the afternoon, he saw Pompio Bureros approached Abines and pointed a gun at him (Abines) and while the latter was trying to parry Bureros with his hands, he simultaneously heard a shot that hit his back. He identified his Medical Certificate showing his injury. At that time, he was standing, looking at his right and was exactly along the line traversed by the gunshot. He also showed the scar of the gunshot wound he sustained on his left shoulder blade and presented the t-shirt he was wearing at that time that he was hit by the bullet. There was no bullet hole at it only * Record Vol. Il, p. 8DECISION People vs. Crisologo Abines, et al Criminal Case No. 25548 Page 9 of 49 greased his shirt. After he was hit, he was not able to move anymore as blood started oozing from the wound. There he saw what transpired. He saw Cortes held the right hand of Bureros, but since the latter is stronger, Cortes was thrown at the back. Then he saw Bureros went near Abines, who was then crawling and fired a shot at the buttock of Abines. Thereafter, he saw Bureros went closer to Abines as if to fire another shot. By that time, Romeo Ganad arrived and held the shoulder of Bureros in order to take him away from Abines. Cortes came back after being thrown, approached Bureros and held his right hand. After pushing each other grappling for the possession of the gun from Bureros, they all fell down. Then came Paras who ordered them to stop and identified himself as a policeman. Paras fired his gun at the back of his hand and Bureros fell down. There were three shots fired by Bureros, the first shot was the one which hit his back, the second shot hit the buttocks of Abines and the third shot hit on the ground when they were grappling. The next day, he reported back for work. He did not seek medical operation as the wound was not deep. He admitted that he knew Cortes, Ganad and Abines, as he worked in the latter's trucking company in 1999. While on the witness stand, he also drew a sketch showing his position and all other persons he saw involved in the incident. (Exhibit 4) He also executed an affidavit. (Exhibit 7, 7-a) Subsequently, the defense presented RUFINO PESALBON (witness Pesalbon for brevity), 57 years old, a farmer and a resident of Barangay Bunlan, Santander, Cebu, He testified as follows: (On March 21, 1999 at about 2:00 o'clock in the afternoon, he was in Barangay Looc, Santander, Cebu at the place where the hantakan ‘caray cruz” and cockfighting was being held. At about 4:00 o'clock in the afternoon of the same day and while he was standing and seated beside him was Melencio Jugo, at the middle part of the place where the JHEDECISION People vs. Crisologo Abines, ct al Criminal Case No. 25548 age 10 0f 49 cockfight and the hantakan were being conducted, he heard a shot which hit him at his right arm (witness showed his scar at his upper right arm), When he tumed his head to this right, he saw Pompio Bureros holding a gun, pointing the same to Sol Abines who was sitting down about five(5) meters away from the place where he was. After that, he ran away because Bureros might shoot him and went straight to his house. He ‘sought medical attention the next day and identified his medical certificate (Exhibit 9). He admitted that he was a political follower of Abines and worked under him, Abines at that time was with two (2) bodyguards. He drew a sketch while on the witness stand showing the positions of the persons involved in the shooting incident. (Exhibit 8). He executed an affidavit. (Exhibit 10) On April 27, 2005, che Defense presented RANDOLPH SERENO Y MINAO (witness Sereno for brevity), 52 years old, a resident of Barangay Talisay, Santander, Cebu and driver of accused Abines from 1987-2002, He testified accordingly: At about 3:30 o'clock in the afternoon, witness Sereno was with his friends chatting in front of a house (Exhibit 11-a) near the cockpit when he heard a gunshot. The cockpit is enclosed with bamboo fence and from the outside one would be able to see through said bamboo fence the “taparan® (matching place). The cockpit is an open area with coco lumber ‘on the ground for sitting purposes. He saw people scampering, some of them were running towards the highway. After he heard the first shot, he proceeded to the place where the shot came from, about 6 to 7 meters. away from where he was. There, he saw Pompio Bureros holding a gun while Jesus Cortes was holding Bureros’ right arm as if they were grappling. Cortes fell down while Bureros ran away. He saw Abines lying down on the ground while Bureros who was at the opposite side of the “taparan’, pointing a gun at the back of Abines. (Exhibit 11-f) After he JE)DECISION People vs. Crisologo Abines, etal Criminal Case No. 25548 Page 11 of 49 heard @ second shot, he ran towards the highway and went home. A few days after the incident, he learned that Abines was shot at the buttocks. As former driver of Abines, he knew that Abines was always accompanied by two bodyguards although sometimes Abines was alone This time he was the one who accompanied Abines since he was his driver but he was not the one who drove Abines on this date of this incident. He admitted that he did not report to the police that he witnessed this incident and did not execute any affidavit He also drew a sketch of the cockpit, matching place, the house from where he was at the time he heard the first shot, the national highway and the positions of the persons involved in the incident. (Exhibit 11 to 11-f) Thereafter, on August 10, 2005, ACCUSED ROMEO GANAD Y DIALES (accused Ganad fox brevity), 47 years old and a resident of Poblacion, Santander, Cebu, took the witness stand and testified that: The cockpit in Looc is quite far from his residence but he used to go there during Sundays. On March 21, 1999, he went to the cockpit at past 2:00 o'clock in the afternoon. Upon arrival at the cockpit, he saw several people there, about more or less a hundred, He also saw Pompio Bureros drinking with his companions at the store just adjacent to the area where the cara y cruz was being played five (5) meters away from the cockpit where he was, He joined and placed a bet in the cara y cruz. ‘About 4:00 to 5:00 in the afternoon, he heard a shot from the matching comer, which he did not mind, thinking that it was only a firecracker, He saw people scampering away, running to different directions. He remained standing and then he heard another shot He saw Abines about to fall down raising his left hand, shouting, ‘no yo", “no yo” about four (4) meters more or less from where he was standing, At the same time, he saw Bureros standing while pointing his firearm ‘somewhere at the head, in front of the face of Abines. He approached \ AEDECISION People vs. Crisologo Abines, eta Criminal Case No. 25548 Page 12 of 49 Bureros from behind, held his arms and tured it away. He heard Roque Paras shouting, “release the firearm, this is a police officer” While Bureros was moving his head forward, Jesus Cortes arrived and helped in getting the firearm of Bureros. Bureros struggled and Cortes lost his hold of the hands of Bureros who was able to fire another shot, a third shot that hit the ground. He heard Cortes shouted, “help", help". He then heard another shot, this time he saw Bureros fell down on. the ground while his face was bleeding. He came to know later on that it was Paras who shot Bureros because the incident happened so quickly. He saw Abines being carried by other people. He did not report the incident or execute any affidavit regarding the incident. Before, he was an on and off driver of Abines family, but on March 21, 1999, he no longer worked for them as driver or bodyguard. He admitted that it was Abines who provided him with a lawyer and his fare because he has no money. On August 11, 2005, the Defense presented ACCUSED JESUS CORTES Y BINOLOGA (accused Cortes for brevity), Barangay Captain of Liloan, Santander, Cebu and the catetaker of the fighting cocks of Mayor Abines. He testified that (On March 21, 1999 at about 2:00 in the afternoon, Mayor Abines arrived at his farm and requested to drive him to the cockpit. At about 4:00 o'clock in the aftemoon in Tigbakayan, Looc, Santander, Cebu, he was at the cockpit with Mayor Abines. At about 5:00 in the afternoon while they were at the matching place in the cockpit he heard a gunshot. He was then seated in a piece of coconut trunk watching the matching and Mayor Abines was at the left side seated on a plastic chair beside him. He drew a sketch showing the place of “taparan” his location and Mayor Abines when he heard the gunshot (Exh. 13). The gunshot came from his left side where Mayor Abines was. He turned to that direction and saw Pompio Bureros pointing his firearm to the head of Mayor Abines. He stood up, held the firearm of Bureros and grappled for the possession of JR aDECISION People vs, Crisologo Abines, eta Criminal Case No. 25548 Page 13 of 19 the firearm with Bureros. He was thrown away at a distance, and thereafter he heard a second gunshot. He tumed to the direction of the gunshot and saw Bureros pointing again his firearm to Mayor Abines who was lying face down. Romeo Ganad held Pompio Bureros while he (Cortes) was holding the hand of Bureros and they grappled for the possession of the firearm. The third shot from Bureros’ firearm was fired towards the ground because together with Ganad they were able to hold the hands of Bureros. They grappled again but he lost his hold and he fell down. Thereafter, he heard ‘ibutang, ibutang, pulis ine” (put it down, put it down, this is police). After that he heard the fourth gunshot. When he looked at the direction where the gunshot came from, he saw Pompio Bureros with his face already bleeding. He walked away and proceeded to the place where Mayor Abines was standing near the “taparan" about 10 meters away. He executed a sworn statement (Exhibit 14). He did not report this incident to the Police Station because he accompanied Mayor Abines to the hospital He knew Roque Paras, a policeman of Samboan and a former policeman of Santander. On August 12, 2005, ACCUSED spol ROQUE Paras, JR, ¥Y DAYON (accused Paras for brevity), of Samboan Police Station, Cebu, testified. ‘Thus: On March 21, 1999, he was in Looc, Santander, Cebu to conduct surveillance operation because he was armed with a warrant of arrest against Carlos Labrado and Alicia Labrado, (Exhibit 16 & 17) and a Memorandum Order from OIC Cesar G. Ebo of Samboan Police Station (Exhibit 15). In the afternoon of March 21, 1999, he was in the cockpit at Looc, Santander, Cebu because he received a report that Carlos Labrado was sighted in that place. He arrived at the cockpit at around 4:30 o'clock in the afternoon and remained standing while looking for the suspect. At around 5:00 o'clock in the afternoon, he was at the area of the cockpit, about § arms length away from the matching place area, when he heard a gunshot coming from the matching area. He saw several people running away. Thereafter, [yrDecIsIon People vs, Crisologo Abines, et al Ceiminal Case No. 25548 Page 14 of 49 he saw Pompio Bureros holding a gun pointed at Mayor Abines and shot the latter. Mayor Abines was four(4) meters away lying face down the ground when shot by Bureros. He was then five (5) arms length away from them. When Romeo Ganad and Jesus Cortes arrived, Ganad held the shoulder of Pompio Bureros and the three (3) grappled for the possession of the firearm of Bureros. While grappling, Bureros fired another shot from his firearm. Bureros was able to free himself from the hold of Ganad and Cortes. It was at this time when Cortes shouted, help’, “help” while about to fall down. He pulled his gun from his waist, slowly approached them and shot Bureros who was hit at the left temple and fell down. He shot Bureros because he was afraid that Bureros will shoot Abines again and might hit the other persons at the place. He approached Mayor Abines who was still lying down about three (3) meters away because he thought Abines was already dead. He surrendered his firearm (Baretta Pistol Cal. 9mm with SN 16466Z) to the Santander Police Station and he was brought by the Station Commander to the Provincial Police Office. He also drew a sketch of the place while on the witness stand showing his position, and that of the other persons involved in this incident. Subsequently, on October 19, 2005, the Defense presented BILLY BAUTISTA ¥ DE LEON (witness Bautista for brevity), 48 years old, Senior Police Officer TI and presently assigned in the Office of the Fitearms and Explosives Division, PNP, Camp Crame, Quezon City as records verifier. As records verifier, he represents the Chief of the Firearms and Explosives Division in any competent court and on matters pertaining to firearms, ammunition and explosives. Witness Bautista brought along with him in compliance with thi subpoena, the Application for Firearm License of Pompio Bureros with Control JMB)DECISION People vs. Crisologo Abines, etal. Criminal Case No. 25548 Page 15 of 49 No. 3833, the same was approved on January 12, 1999 (Exhibit 20). He also showed a Certification (Exhibit 21), certifying that one Pompio Bureros is a licensed registered owner of a revolver, SM Deuke caliber 38 with serial no. D- 12970116 issued/approved on January 12, 1999 to expire on April 10, 2001 based on the FAD Master Plan, He also produced a Certification, (Exhibit ‘T) certifying that Crisologo Abines is a licensed/registered holder of a shotgun, Winchester, caliber 12 GA with serial number 1455490 issued/approved on October 14, 1997 to expire on December 4, 1999 based on Firearms Information Management System. He farther testified that an application for a firearm license is different from a permit to carry the same, such that if an applicant was given a license, it does not necessarily mean that he can already bring the firearm outside his residence. The caliber 38 SM Deuke chrome is a foreign made firearm. Also, witness Bautista said that being familiar with caliber 38 ot a 357, the bullet for a 357 cannot be loaded in a caliber 38. Next, the Defense presented EUGUENE BACOLOD Y TAN (wiiness Batoled for brevity), 30 years old and a chemist of the University of San Carlos, Cebu City. Witness Bacolod testified: He finished his Bachelor of Science in Chemistry in March 1996, After graduation, he took the licensure examination in September 1996 and while he was at the NBI, he finished his Master of Science in Chemistry and passed the course recently. He was employed with the NBI as tapDECISION People vs. Crisologo Abines, et al Csiminal Case No. 25548 Page 16 of 49 Forensic Chemist from September 1997 to April 2000 assigned at the Regional Office No. 7 of Central Visayas in Cebu. As Forensic Chemist he conducts all kinds of chemical analysis like chemical analysis of dangerous drugs, toxicological analysis of a substance to determine the presence of poisons and analysis relating to shooting incident and any other matters assigned to him by his supervisor. He had already conducted paraffin test, more or less of about twenty (20) cases, prior to the paraffin test he conducted on the cadaver of Pompio Bureros. (On March 22, 1999, he received a request for the examination with respect to the shooting incident that occurred at the Poblacion of Santander, Cebu on March 21, 1999 (Exhibit 22). After receiving the request, he together with other NBI Team members proceeded to Santander to conduct paraffin test on the cadaver of Pompio Bureros in order to determine the presence of nitrates on the cadaver which is necessary to determine if the victim probably fired a gun. After Bureros’ daughter Orlene Lou Bureros had identified the subject cadaver, they proceeded with the test which lasted for 16 to 20 minutes. Both hands, left and right were washed with water and were air dried. Thereafter, a melted paraffin wax was applied to both hands. Cotton was placed on top to reinforce the cast. After placing cotton, melted paraffin was again placed, After the wax cooled down, it was removed, He used chemical re- agents to detect the presence of nitrates. He found out that there were blue specks which means positive for nitrates. Thereafter, he prepared a diagram to indicate the location of the blue specks (Exhibit 23, 23-a) and an official report (Exhibit 24, 24-a). The Report was signed by Cesar O. Cagalawan, the Regional Chemist and was approved by Idabel Bernabe- Pagulayan, Acting Chief Forensic Chemistry Division. He agreed however, that a person who might be positive for the presence of nitrate does not necessarily mean that he fired a gun. He narrated several factors that might affect the presence of the nitrates on the hands of a person like velocity of the wind, such that if the person fired a gun but the velocity of the wind is going towards the victim, it is possible that the hands of the victim might become positive for nitrates; that if the victim before he died lighted a cigarette using a match, he can also be positive for nitrates; that in so far as the presence of nitrates can also be affected by the time when examination was conducted either the Her)DECISION People vs, Crisologo Abines, et al Criminal Case No. 25548 Page 17 of 49 victim or the assailant; that the caliber of the gun might also affect the presence of nitrates; that if the victim is very near to a person who fired a canon, he can also be positive for nitrates if the powder contains nitrates; that if the person who fired a gun is wearing a gloves, he can possibly be negative for nitrates; that even if the subject is already dead somebody put the gun on his hands and then fired it, it is also possible that he can be positive for nitrates; that the presence of nitrates can be determined within or at least seventy-two hours after the death of the subject; that the presence of nitrates cannot be removed by washing with an ordinary water except if he has excessive perspiration, as it will always stick to the pores of the victim or to the subject; that the person can also be positive for nitrates if he held an explosive like dynamite or a particular kind of fertilizer which contains nitrates. He admitted that he arrived at the crime scene only on March 22, 1999 at 2:30 o'clock in the moming and that when he arrived at the place policemen of Santander were already there. On November 15, 2005, the Defense presented DR. JORGE CELSO ANG Y PERENA (Dr. Ang for brevity), 53 years old, a doctor at Cebu Doctor's Hospital. He testified that: He is a surgeon and has been a member of staff of the Cebu Doctor's Hospital for nineteen (19) years. He testified that on March 21, 1999, ‘Abines came in at the emergency room of the Cebu Doctor's Hospital at around 8:00 o'clock in the evening with a gunshot wound. They conducted the resuscitation immediately; got some laboratories, put some IV's and got some x-rays and examined the body of Abines with the gunshot wound at his left buttock. Abines was stable but was complaining of abdominal pains; so, they took some x-rays in the abdomen. The x- rays showed that there was a foreign body inside Abines’ abdomen which appears to be a metallic slug in the left lumbar area of Abines. So, they performed a surgery because of the painful abdomen. There was only ‘one entry point of the slug and that was at the left buttock as shown in the diagram sketch (Exhibit 27, 27-a). During the operation that lasted for six (6) hours, they explored the abdomen. They examined for the organs inside the abdomen and found out part of the small bowel also called the “duodenum” was injured with multiple holes. They dissected the part of JMB YrDECISION People ws. Crisologo Abines, eta ‘Criminal Case No, 25548 Page 18 of 49 ‘the small bowel and reconnect the same. They found the slug near the upper left quadrant part of the abdomen and extracted the same from the abdomen. He prepared an operative report on Abines (Exhibit 28). As standing protocol, they left the metallic slug in the operating room and marked the same. It can be withdrawn upon court order. However, he tried to retrieve the slug from the operating room of the Cebu Doctor's Hospital, but the same was no longer there. He stated that the bullet was not deformed because he actually saw the same. He also confirmed that he was not asked if the slug was deformed or not during the hearing in the Office of the Ombudsman in Cebu involving the administrative aspect of the instant case sometime on ‘September 19, 2000 when confronted by the stenographic notes, After extracting the slug from the abdomen of Abines, it was given to the attendant of the operating room who kept the same. As shown in the medical certificate (Exhibit 25) he issued, there are three operative diagnosis: acute abdomen secondary to GSW (gunshot wound), gunshot wound, “glothial region (the wound reflected in the left buttock) and anterior shoulder dislocation. There was only one (1) point of entry and no point of exit of the slug. There were also abrasions on the left knee, right knee and elbow of Abines as indicated in the chart prepared by the ER (Emergency Room) Physician. The trajectory of the slug was from a lower frame to @ higher frame (from the buttock up) and that the situation suggests that the assailant was on the left since the trajectory was from the left to the midline of the buttock. He stated that the wound of Abines in the buttock will not cause an instantaneous death but that in the abdomen is fatal considering that there were perforations in the duodenum, in fact it necessitated for him to cut and take out. ‘Then on March 29, 2006, the Defense presented ISABELO SILVESTRE, JR. (witness Silvestre for brevity), a ballistician stationed at the NBI Region 7,, Cebu City. He testified that: | He is a graduate of Bachelor of Science in Criminology in MLQU, 1983, and Master of Arts in Criminology in the Philippine College of HigDECISION People vs. Ceisologo Abines, et al Cziminal Case No. 25548 Page 19 of 49 Criminology, Manila, 2003, and Identification Course conducted by the NBI Academy, 1987. He had conducted more than 1,000 ballistic examinations. As ballistician, he conducts ballistic examination of firearms, bullets and shells submitted for ballistic examination, prepares a report of the examination and testify in Court on his report. He brought with him Ballistic Reports Nos. 09-B-399 and 10-B-399 dated March 29, 1999 of Bonifacio Ayag, Balistician II of NBI, Region 7, Cebu City. It was Investigator Amel Pura who requested and submitted the firearms, slugs and shells subject evidence for the ballistic examinations by the NBI. Since Bonifacio Ayag had retired from the ‘service since 2005, upon the instruction of his immediate Chief in Region 7, he conducted a re-examination of the same evidence examined by Bonifacio Ayag. He re-examined the same evidence bullets (slugs) marked as “AEP-8" and “AEP-23" to determine if they were fired from the suspected firearm cal. 38 shooters revolver with Serial no. D12970116. He compared them with the test bullets that were fired from this firearm Cal. 38 shooters revolver, After comparative examination of the specimens, he found out that the two (2) evidence bullets (slugs) marked as AEP-8 and AEP-23 were fired from the suspected firearm shooters Revolver Caliber 38 with SN — 112970116 because the striations and markings engraved in the evidence bullets were congruent to the test bullets fired from the same firearm Cal. 38 shooters revolver with Serial No. 012970116. The said striations were reflected in the photographs showing congruent continuous horizontal lines (Exhibit 32 and 33), He also confirmed the findings of Ballistician Bonifacio B. Ayag that the three empty shells marked as AEP-1 to AEP-3 (Exhibit 40) and the test shells were fired from the same shooters Revolver Cal. 38, SN D- 42970116. As shown in the photographs, the striations on the evidence shells were congruent with the test shells (Exhibit 37, 38 and 39). Regarding the one (1) empty evidence shell of Cal. 38 marked as AEP-7 (Exhibit 43) he also confirmed the findings of Ballistician Bonifacio JME 1pDecision People vs. Crisologo Abines, et al Ceiminal Case No. 25548 Page 20 of 49 B. Ayag that the same was fired from the Smm Barretta Pietro firearm bearing SN 16466Z because the striations or markings imprinted on the evidence shells, the continuous horizontal lines between the left and right Portions were the same markings found in the test shells that were fired from the said 9mm Barretta Pietro firearm bearing SN 16466Z (Exhibit 42). The said continuous horizontal fines are shown in the photograph (Exhibit 43). Thereafter, on March 30, 2006, ARNEL E. PURA (witness Pura for brevity), 38 years old, Special Investigator of the NBI, Regional Office in Cebu City, testified for the Defense that He has been a Special Investigator in the NBI since 1993 up to the present. He underwent a six (6) month basic training course at NBI ‘Academy in Baguio. His duties as Special Investigator are to conduct investigation of cases assigned to him by his Regional Director, to serve warrants issued by the court, to conduct surveillance, and such other activities in relation to his job as Special Investigator. He stated that he was part of the team that handled the investigation of this shooting incident. During the investigation, he received one (1) pe of Caliber 38 revolver with Serial No. D-1970116, which he later identified as “paltik’, three (3) empty shells and one(1) deformed slug from the Santander Police Officers Rama and Moscato as shown in the acknowledgment receipt dated March 22, 1999 (Exhibit 44, 44-2). He placed his initials “AEP" on these evidences. He was also the one who transmitted the said pieces of evidence to Bonifacio Ayag and Cagalawan in the Ballistics Division, NB! Cebu City (Exhibit V) for ballistic examinations. Witness Pura also produced a Disposition Form dated March 25, 41999 (Exhibit 30) regarding the tured over of one (1) piece of omm. Pistol with Serial No. 164662, Model Pietro Beretta, Upon their request, \ this firearm was tuned over to them by Police Supt. Allin, Chief of the Intelligence Division, Cebu Provincial Police Office(Exhibit 45) to /sDECISION People vs. Crisologo Abines, tal Cximinal Case No. 25548 Page 21 of 49 determine if said firearm was recently fired, considering the fact that they recovered several pieces of shell and slug at the crime scene and to check if said shells and slugs were fired from said service firearm. Supt. Alliin gave his approval through a Memorandum dated March 24, 1999 (Exhibit 46) for the turn over of the requested evidence and on the same day, he received the said pieces of evidence. Also, upon their request from Dr.Jorge Celso Ang from Cebu Doctor's Hospital, he received from Dr. Jorge Ang who conducted the operation on the person of Abines, one (1) metallic stug of an undetermined caliber (Exhibit 47, 47-2). He was able to recover a document, inserted in the wallet of Pompio Bureros, denominated as an Application for Firearm License No. 38383 (Exhibit 20). Finally, on April 18, 2006, the Defense presented RAQUEL DEL ROSARIO FORTUN (witness Fortun for brevity), 44 years old, Forensic Pathologist in the University of the Philippines, College of Medicine testified for the defense that: She was a graduate of Medicine from the University of the East Ramon Magsaysay Memorial Medical Center. She took and passed the board examinations for doctor of medicine. She finished her residency in Anatomic Pathology at the University of the Philippines-Philippine General Hospital, after which, she passed the board examination for diplomate on anatomic pathology. She, was also sent to a one year fellowship by the University of the Philippines to the King County Medical Examiner's Office in Washington, U.S.A. in 1994 to 1995. She further specialized in forensic pathology and had been in practice since 1995. She went to Kobe University School of Medicine for six (6) month training, She also had training for Forensic Anthropology and Archaeology in Cyprus in 1999, She was a scholar and attended the Second International Course in The Hague, Netherlands in 2003 (Exhibit 50). A forensic pathologist is a doctor who had specialized in the study of structural | changes in the body as a result of disease and also as a consequence of JMRDECISION People vs. Crisologo Abines, etal Crimi Case No. 25548 Page 22 of 49 injury. The word “forensic” means that they address legal issues that could be answered by their examination. She executed an affidavit (Exhibit 51) regarding her studies on the injuries sustained by Pompio Bureros. She reviewed the Necropsy Report No, 99-NO-10 submitted by the medico legal officer of Cebu City and analyzed the extent of the gunshot wound. Based on the report, Bureros sustained @ gunshot wound which entered at the back of his head on the left side and this caused fractures around the hole and if one looks inside the skull as described, the bullet proceeded forward or towards the front, downward and from left to right, so the bullet cross the midline. Based on the description, the wound track involved a lot of lacerations in the brain, hemorthages and fractures particularly at the base of the scalp where the brain rests. The Necropsy Report shows that the bullet entered the base of the skull near the roof of the right eye and nose, traveled downward and finally exited in the region of the upper lip on the right. She produced a xerox copy of a page from an anatomy book showing the drawing base of the cranial cavity (Exhibit 52). Such drawing actually shows different blood vessels. She pointed out at a major artery called the internal carotid (Exhibit 52-a). When the bullet pierces the body, the damage actually is ot just confined to the actual path of the bullet. A bullet is a very small object and it is very destructive. It travels so fast, causing damages around the track of the bullet. If the bullet, as described traveled that way, it would have caused extensive lacerations or tears in the brain and would have caused extensive fractures. If the blood vessels such as the internal carotid beside the major artery are damaged, then there will be a very severe bleeding. If such an extensive damage to the head was produced by a bullet, it would have caused instantaneous death because individual ‘could not be able to survive with the severe injuries to the brain; the brain being a vital organ. One problem with the brain is it is confined within the skull. If there are injuries in other parts of the body, those parts would react by being inflamed and become edematous. But in the brain, there is not much a space fo accommodate such edema or swelling, and if there is a collection of blood, the brain is going to be compressed inside and that is not compatible with life. The individual according to her could not survive even with immediate proper medical care including surgery. She further said that a bullet hitting the head like that and causing such ‘extensive injury would have completely incapacitated the in icual soon Hi 1DECISION People vs. Crisologo Abines, ct al Criminal Case No. 25348, Page 23 of 49 after sustaining the gunshot wound because the brain controls a lot of functions. She would expect the individual to lose consciousness almost immediately after sustaining the injury and aside from that, there were areas in the brain which specifically would control such functions as coordination or activity and those areas would have been affected. In her professional judgment, she believes that considering the severity of the head injury of Bureros, he (Bureros) could have not been in the position to fire three shots after he himself was shot. It is reasonable to assume in her opinion that death would have followed soon after Bureros was shot in the head She said that from the post mortem findings, there was no indication of smudging that could have shown what they called close range of fire nor as to an estimate of range of fire that can be seen because it is possible that there might be some minute details on the victim that were not actually reflected therein, She also testified that there was a notation about a laceration near the area of the right ear which could have been inflicted by a blunt hard object. She also explained that according to the report there was laceration near the area of the right ear cause by a blunt hard object. There was also a laceration on the ear itself and at the area of the head on the right ear. There were also abrasions below the knee, but she could not explain how he could have sustained the same. Personally she was not in a position to make a conclusion on how this knee abrasions were sustained by Bureros. On August 30, 2006, the Defense rested its case. Consequently thereafter, on October 9, 2006, it formally offered its documentary evidence. Thus: EXHIBIT DESCRIPTION. 1 Necropsy Report No. 99-NO-10 2 ___| Chemistry Report No. 99-C-703 eee 3 ‘Special Report re shooting incident dated 22 March 1999 Sketch of the scene of the shooting incident, depicted Mik )DECISION People vs. Crisologo Abines, etal Criminal Case No. 25548 Page 24 of 49 By witness Melencio Jugo y Miro Portions of the sketch drawn by the witness showing 4A the relative positions of Abines and Bureros when the second shot was made The position of Abines and Bureros when the first 48 shot was fired as pointed out by the witness in the sketch Medical cerifcate of Melencio Jugo dated May 14, 5 1999 executed by Villa Abella, municipal health officer of Santander, Cebu. Tand7-A___| Affidavit of Melencio Jugo with his signature 8 The sketch of the area as drawn by the witness Rufino Pesalbon BA The square on the sketch representing the relative positions of Abines, Bureros, Jugo and Pesalbon eB ‘The Parallelogram on the sketch representing the place where the cara y cruz was being conducted Medical certificate issued by Viola Abella, municipal 9 health officer of Santander, Cebu, attesting that she examined Rufino Pesalbon on March 22, 1999 [A copy of the affidavit executed by Pesalbon ‘Sketch made by the witness Randolph Sereno Portion of the skefch showing the position of the witness when he arrived at 3:30pm Portion of the sketch Portion of the sketch Portion of the sketch Portion of the sketch marked °B” Portion of the sketch marked “A” ‘Counter-Affidavit of Romeo Ganad dated May 24, 1999 2A Witness’ signature on the counter-affidavit 13 | English translation of Exhibit 13 ‘Sketch of the place of the shooting incident, drawn by | i __| Jesus Cortes 13A Portion of the sketch 413-8 Portion of the sketch 13-C Portion of the sketch 13D Portion of the sketch [—43-€ Portion of the sketch z 13-F Portion of the sketch 14 ‘Counter-affidavit of Jesus Cortes dated May 24, 1999 14-8 “The signature of the witness on the affidavit Memorandum Order dated 11 January 1999 15 addressed to SPO1 Roque Paras issued by ‘Sambuan Police Station OIC Ebo, 16 The arrest warrant dated May 26, 1995 issued RTC Cebu Branch 8 7 The arrest warrant dated January 22, 1995 issued by the RTC Cebu, Branch 20 ‘The sketch of the place drawn by Roque Paras: Portion of the sketch Portion of the sketch ‘Counter-affidavit of Roque Paras dated May 24, 1999 ‘The signature of the witness on the affidavit E40DECISION People vs. Crisologo Abines, et a. Criminal Case No. 25548 Page 25 of 49 Application for a firearm license of Bureros 20 Administrative Controt Number 1-A-38383 pertaining to one revolver caliber with serial no. D.12870116 20-A The date of approval on the application for a firearm license, January 12, 1999 Certification dated October 18, 2005 issued by Chief 24 of the Records Section of the Firearms and Explosives Division of the PNP at Camp Crame 2 Certified true copy of request letter dated March 22, 1999 22-0 Signature of the witness at the Bottom right portion of the letter 23-8 Name of Grlene Bureros appearing in the letter 23 Diagram showing left and right hands of Bureros re case no. 99-C-703 25-0 Signature of the witness af the bottom of the diagram 23-8 Encircled portion of left hand in the diagram 23-6 Encircled portion of ight hand in diagram 23-0 The words “positive for nitrates” indicated at the ‘bottom portion of the diagram | 24 Chemistry Report No. 99-C-703 dated 24 March SEE | 1999, prepared by witness Eugene Bacolod | 24-A ‘Signature of witness on the report C 25 | Cert n issued by Dr. Jorge Ang 25-0 Signature of Dr. Ang 26 Document dated 21 March 1995 re findings on x-ray examination of Abines 27 | Diagram of a person [EHEEOT-Al Encircied portion in Exhibit ay 28 Operative Record dated 21 March 1989 29 Ballistics Report No. 09-8-399 and Ballistic Report No. 10-B-399 0 Written request for a Ballistic examination by Damel Pure dated March 25, 1999 a ‘Written request for a ballistic examination by Amel Pura dated March 23, 1999 The photograph of the test bullets and the evidence 32 bullet “AEP-23" taken from the monitor of the comparison microscopy The photograph of the tests bullets and the evidence 33 bullet “AEP-8" taken from the monitor of the comparison microscopy u The evidence bullet marked as AEP-23" 36 and 35-A__| The evidence bullet marked as “AEP-8" and envelope containing said AEP-8 Envelope cont Exh One of the slugs in the envelope mar "36° ‘One of the slugs in the envelope marked as exhibit “36° One of the slugs in the envelope marked as exhibit 36" ‘One of the slugs in the envelope marked as exhibit "36° Photograph of the test shells and the evidence shellDECISION People vs. Crisologo Abines, et al. Criminal Case No. 25548 Page 26 of 49 PSE EEEeS ees ESEnE| Photograph of the test shells and the evidence shell “AEP-2" "| Envelope and the three (3) empty shells (AEP- 1 to Photograph of the test shelis and the evidence shell | *AEP-3" __| AEP-3) 4iand41-A [Envelope and one empty shell from the Smm Berretta Pietro marked as ‘AEP-7" 42 ‘An envelope containing two (2) empty shells and two (2) tests bullets fired from the .mm Beretta Pietro 42K ‘One of the test bullets in the envelope marked as Exhibit "42" 42-68 One of the test bullets in the envelope marked as Exhibit “42” 42-0 One of the test shells in the envelope marked as Exhibit "42" 42-0 One of the test shells in the envelope marked as Exhibit “42” a Photograph showing congruent striations on the iden shell shell (AEP-7) and the te 4 and 44- ification dated 22 March 1999, with signature of fe Amel E. Pura 45 and45-A | Letter of Pura to Allin dated March 24, 1999 and ____| Pura’s signature a 46 Memorandum dated Warch 24, 1969 of Lamberto Alin 47 and 47, certification of Amel E. Pura and his signature ___—| 48 Caliber .38 Shooters Revolver with Serial No. 12970116 49 ‘The 9mm caliber Beretta with Serial No. 164662 50 | Curriculum Vitae of Raquel Fortun [raeeEEE OT. Affidavit of Dr. Raquel Fortun saree | BLA Signature of Dr. Raquel Fortun 51-B | Bracketed portion in page 2 of Exhibit “51” 52 and §2-A__| Picture of the cranial cavity and the internal carotid In a minute resolution dated November 17, 2006, the Court admitted all the evidence submitted by the Defense.* /Me ‘Record Vol. Ill, p. 289DECISION People vs. Crisologo Abines, etal Criminal Case No. 25548 Page 27 of 49 In rebuttal, the Prosecution presented on November 21, 2006 AIDA BurEROS Y DENOPOL, 55 years old, widow, jobless and a sesident of Poblacion, Santander, Cebu. She testified: Her husband Pompio was a holder of a licensed gun which was not a “paltik” but a .38 caliber and was @ former security guard and was an army man from 1973 to 1979. On March 21, 1999, she was in Daue, Negros Oriental when her husband Pompio Bureros left for Santander, Cebu, When Pompio left she knew for a fact that he was not carrying a gun because the latter left it in his locker and locked the same at his room in Daue, Negros Oriental. She also stated that whenever her husband carries his gun, he would just place the gun on the holster on his waist and wear a polo shirt or a jacket. When Pompio left, he was only wearing sando and shorts as she herself took a photograph of her husband after the incident. She did not come to know anymore what happened to the gun of Pompio locked in his locker in Daue, Negros Oriental as she did not return there after the death of her husband up to now. Thereafter, the Prosecution presented once more witness Miro on January 29, 2007. ‘Testifying under the same oath, witness Miro stated: It is not true that Pompio Bureros was carrying a gun during the shooting incident on March 21, 1999. It was not Pompio who started the shooting incident at the “hantakan” because it was Abines who started the fight. Pompio did not poke a gun at the right side of the head of Abines because Pompio did not have a gun at that time. Also, the prosecution presented yet again witness Bureros to rebut the p \ testimony of defense witness Roque Paras, he testified that:DECISION People vs. Crisologo Abines, et al Criminal Case No. 25548 Page 28 of 49 It was impossible for Pompio Bureros to fire a shot because the latter did not have a gun at that time, When Roque Paras shot the right side of the head of Pompio Bureros, there was no danger to Abines’ life because at that time, the arms of Bureros were being twisted by the bodyguards of Abines. He also refuted the testimony of witness Melencio Jugo who claimed that he (Melencio) was directly in the line of fire and his back was hit during that shooting incident took place because Jugo was not there at. the crime scene when the shooting incident took place. He admitted that Pompio Bureros is the brother of his father. Consequently thereafter, the Prosecution formally offered its rebuttal evidence. Thus, EXHIBIT, DESCRIPTION a Certification “of Firearms and Explosives T Division, PNP Crame dated October 13, 2005; Vito be marked as | NBI Disposition Form dated March 23, 1899 exhibit x Ww Picture of deceased Pompio Bureros after he was shot In a minute resolution dated February 22, 2007, the court admitted all exhibits filed by the Prosecution.* ‘Thereafter, the case was submitted for resolution of the Court. ‘The pertinent issues to be resolved are: 1, Whether or not the accused committed the crime of homicide; and 2. Whether or not the killing of victim Pompio Bureros was by reason \ : of self defense of stranger/another. ¥ f) \ * Record, Vol. Ill, p. 384DECISION People vs, Crisologo Abines, etl Criminal Case No. 25548 Page 29 of 49 FINDINGS AND ANALYSIS It is admitted that the death of Pompio Bureros on March 21, 1999, in Barangay Looc, Santander, Cebu, is a result of the shooting incident involving the herein accused. The confrontation took place during a cockfighting match locally know as a “hantakan.” However, despite admitting the killing of Pompio Bureros, accused profess innocence on the ground of self-defense and/or defense of a stranger. ‘The defense claim that accused Abines, Ganad and Cortes were at Looe, Santander in Cebu on March 21, 1999 for a cockfight; that without any provocation, Pompio Bureros suddenly attacked accused Abines, firing his .38 revolver three times, with one bullet hitting the latter in the buttocks and grazing two other bystanders, witnesses Jugo and Pesalbon; that the unlawful aggression of Pompio Bureros persisted and continued to put in peril the life of accused Abines, Ganad and Cortes; that accused Ganad and Cortes continued to prapple with Pompio Bureros for the gun until accused Paras finally felled him with a single shot to the head.’ In opposition, the Prosecution asserts that the existence of unlawful aggression, to justify the killing of Pompio Bureros, was not proven by cle and convincing evidence. They claim that Pompio Bureros was not carry ® Memorandum for the Accused dated April 30, 2007 Me {DECISION People ws. Crisologo Abines, et a Ceiminal Case No. 25548 Page 30 of 49 gun on that day, March 21, 1999; that Pompio Bureros is a duly licensed gun holder and not a “paltik” owner; being without a gun, Pompio Buretos could not have started the shooting; that it was accused Abines who started the commotion when he grabbed the fect of Pompio Bureros. Likewise, the Prosecution avers that the inconsistencies in the testimony of the defense witnesses, the documentary evidence and the physical evidence do not support the claim of self-defense.” The pertinent law is Article 11 of the Revised Penal Code. It provides: Art. 11. Justifying circumstances. - The following do not incur criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself, xxx 3. Anyone who acts in defense of the person or rights of a stranger, provided the first and second requisites mentioned in the first circumstance of this article are present and that the person defending be not induced by revenge, resentment or other evil motive. There was an unlawful aggression on the part of Pompio Bureros ‘The elementary rule is when a person admits having killed the victim bu invokes self-defense, he assumes the butden of proof to establish his plea 0: i | ™ Memorandum for the Plaintiff dated March 29, 2007Decision People vs. Crisologo Abines, etal. Criminal Case No. 25548 Page 31 of 49 self-defense by credible, clear and convincing evidence. For self-defense to prosper, it must be shown that there was a previous unlawful and unprovoked tach hi a in_ dan; moze or less severe wounds upo: ailant, employing therefore reasonable means to resist said attack. Thus, three (3) elements must first be established before a person can invoke self-defense, to wit: (1) unlawful aggression, (2) reasonable necessity of the means employed t0 repel the aggression and (3) lack of sufiiens provocation on the part of the person invoking self-defence. The presence of unlawful aggression is a condition sine qua non, There can be no self-defense to speak of, whether complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself.® For aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not mercly a threatening or intimidating attitude? and the accused must present proof of positively strong act of eal aggression.” Unlawful aggression must be such as to put in real peril the life ot personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat." \ KU SPeople vs. PO3 Emesto Langres, GRN 128784, October 13, 1909 * People v. Rey, 172 SCRA 149 [1989] J Pacificar v. Court of Appeals, 12 SCRA 716 (1983); People v. Aquiatan, 123 SCRA 50? (1983) People v. Aquino, 124 SCRA 836 (1983) People vs. Ex-CPL Victorio Pletado, G.R. No. 98432, July 1, 1992