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G.R. No.

114046 October 24, 1994

HONORATO GALVEZ and GODOFREDO DIEGO, petitioners,


vs.
COURT OF APPEALS (17TH DIVISION), First Asst. Provincial Prosecutor. DENNIS M. VILLA-IGNACIO of Pasig,
Rizal; THE PEOPLE OF THE PHILIPPINES; and PNP P/SR. SUPT. RICARDO F. DE LEON, Camp Commander and
Head of the PNP Custodial Group, Camp Crame, Cubao, Quezon City, respondents.

Emerito M. Salva & Associates; Juanito L. Andrade; and Lazaro Law Firm for petitioners.

REGALADO, J.:

Submitted for resolution in the present special civil action are: (1) the basic petition for certiorari and mandamuswith a
petition for habeas corpus, to review the resolution issued by respondent Court of Appeals, dated
February 18, 1994, in CA-G.R. SP No. 33261;1 (2) the Urgent Motion2 and Supplemental Urgent Motion3 for Immediate
Action on Petition for Habeas corpus; and (3) the Urgent Petition to Declare Judge Jaime N. Salazar, Jr. and First
Assistant Provincial Prosecutor Dennis M. Villa-Ignacio for Contempt and to Annul Proceedings (with Immediate Prayer
for another Cease and Desist Order).4

On November 12, 1993, petitioners Honorato Galvez, the incumbent Mayor of San Ildefonso, Bulacan, and one
Godofredo Diego were charged in three separate informations with homicide and two counts of frustrated homicide fot has
been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be made
even if it may result in altering the nature of the charge so long as it Regional Trial Court of Malolos, Bulacan, Branch 14,
and docketed as Criminal Cases Nos. 3642-M-93 to 3644-M-93.5 Both accused posted their respective cash bail bonds
and were subsequently released from detention.

On November 15, 1993, Bulacan Provincial Prosecutor Liberato L. Reyes filed a Motion to Defer Arraignment and
Subsequent Proceedings to enable him "to review the evidence on record and determine once more the proper crimes
chargeable against the accused,"6 which was granted by Judge Villajuan in an order dated November 16,
1993.7 Thereafter, pursuant to Department Order No. 369 of the Department of Justice, respondent Prosecutor Dennis M.
Villa-Ignacio was designated Acting Provincial Prosecutor of Bulacan and was instructed to conduct a re-investigation of
the aforesaid criminal cases filed against herein petitioners.8

By virtue of a Manifestation with Ex-parte Motion dated November 23, 19939 filed by respondent prosecutor, the
proceedings were again ordered suspended by Judge Villajuan until after the prosecution's request for change of venue
shall have been resolved by the Supreme Court, and the preliminary investigation being conducted by the former shall
have been terminated. 10 It appears that on December 2, 1993, private complainants, through their counsel, Atty. Silvestre
R. Bello III, had filed with the Supreme Court a Petition for Change of Venue of Criminal Cases Nos. 3642-M-93 to 3644-
M-93, purportedly to safeguard the lives of the victims and their witnesses, and to prevent a miscarriage of justice. 11

On December 15, 1993, before petitioners could be arraigned in Criminal Cases Nos. 3642-M-93 to 3644-M-93,
respondent prosecutor filed an Ex
parte Motion to Withdraw Informations in said cases. 12 This motion was granted by Judge Villajuan also on December 15,
1993 and the cases were considered withdrawn from the docket of the court. 13 On the same day, Prosecutor Villa-Ignacio
filed four new informations against herein petitioners for murder, two counts of frustrated murder, and violation of
Presidential Decree No. 1866 for illegal possession of firearms 14 which were subsequently raffled to the sala of Judge
Victoria Pornillos of Branch 10, Regional
Trial Court of Malolos, Bulacan and were docketed therein as Criminal Cases Nos. 4004-M-93 to 4007-M-93. No bail
having been recommended for the crime of murder, Judge Pornillos ordered the arrest of herein petitioners. 15On
December 23, 1993, said presiding judge issued an order setting the arraignment of the accused for December 27,
1993. 16

On December 27, 1993, the scheduled arraignment before Judge Pornillos were reset due to the absence of respondent
prosecutor. On even date, petitioners filed before Judge Villajuan a Motion for Reconsideration of his order of December
15, 1993 which granted the motion to withdraw the original informations. 17

Thereafter, a Motion to Quash the new informations for lack


of jurisdiction was filed by petitioners before Judge Pornillos on January 3, 1994. 18 At the court session set for the
arraignment of petitioners on January 24, 1994, Judge Pornillos issued an order denying the motion to quash and, at the
same time, directed that a plea of not guilty be entered for petitioners when the latter refused to enter their plea. 19
In the meantime, and prior to the arraignment of herein petitioners before Judge Pornillos, an order was issued on
January 20, 1994 by Judge Villajuan granting the motion for reconsideration filed by petitioners, ordering the
reinstatement of Criminal Cases Nos. 3642-M-93 to 3644-M-93, and setting the arraignment of the accused therein for
February 8, 1994. 20 On said date, however, the arraignment was suspended and, in the meanwhile, petitioners filed a
petition for certiorari, prohibition and mandamus with respondent Court of Appeals, assailing the order dated January 24,
1994 issued by Judge Pornillos which denied petitioners' motion to quash filed in Criminal Cases Nos. 4004-M-93 and
4007-M-93. As earlier stated, respondent court dismissed the petition in its questioned resolution of February 18, 1994,
hence this petition.

I. On the Main Petition

The main issue in this case involves a determination of the set


of informations under which herein petitioners should be tried, that is, (a) the first set of informations for homicide and
frustrated homicide in Criminal
Cases Nos. 3642-M-93 to 3644-M-93, or (b) the subsequent informations for murder, frustrated murder, and illegal
possession of firearms in Criminal Cases Nos. 4004-M-93 to 4007-M-93. Several corollary but equally important issues
have likewise been addressed to us for resolution, to wit:

1. Whether the ex parte motion to withdraw the original informations is null and void on the ground that (a)
there was no notice and hearing as required by Sections 4, 5 and 6, Rule 15 of the Rules of Court; and
(b) the appropriate remedy which should have been adopted by the prosecution was to amend the
informations by charging the proper offenses pursuant to Section 14 of Rule 110;

2. Whether the order granting the withdrawal of the original informations was immediately final and
executory;

3. Whether Judge Pornillos was correct in denying the motion to quash and thereby acquired jurisdiction
over the new informations considering that (a) the designated public prosecutor allegedly had no authority
to file the second set of informations; and (b) the filing thereof constituted forum shopping; and

4. Whether the arraignment proceeding held on January 24, 1994 in Criminal Cases Nos. 4004-M-93 to
4007-M-93 was valid.

We shall discuss these issues seriatim.

1. It is petitioners' submission that the prosecution's failure to serve them a copy of the motion to withdraw the original
informations and to set said motion for hearing constitutes a violation of their right to be informed of the proceedings
against them, as well as a violation of Sections 4, 5 and 6, Rule 15 of the Rules of Court. Hence, so they contend, the ex
parte motion should be considered as a worthless scrap of paper and Judge Villajuan had no authority to act on it. Ergo,
the order granting the same is null and void.

Petitioners advance the theory that respondent prosecutor should have amended the original informations instead of
withdrawing the same and filing new ones. They postulate that the principle of nolle prosequi does not apply in this case
since the withdrawal or dismissal of an information is addressed solely to the sound and judicious discretion of the court
which has the option to grant or deny it and the prosecution cannot impose its opinion on the court. It is further stressed
that in case there is a need to change the nature of the offense charged, that is, from homicide to murder, by adding the
qualifying circumstance of treachery, the only legal and proper remedy is through the filing of the corresponding amended
information; and that the withdrawal of an information is allowed only where the new information involves a different
offense which does not include or is not included in the offense originally charged.

Normally, an accused would not object to the dismissal of an information against him because it is to his best interest not
to oppose the same. Contrarily, if the accused should deem such conditional or provisional dismissal to be unjust and
prejudicial to him, he could object to such dismissal and insist that the case be heard and decided on the
merits. 21 However, considering that in the original cases before Branch 14 of the trial court petitioners had not yet been
placed in jeopardy, and the ex parte motion to withdraw was filed and granted before they could be arraigned, there would
be no imperative need for notice and hearing thereof. In actuality, the real grievance of herein accused is not the dismissal
of the original three informations but the filing of four new informations, three of which charge graver offenses and the
fourth, an additional offense. Had these new informations not been filed, there would obviously have been no cause for
the instant petition. Accordingly, their complaint about the supposed procedural lapses involved in the motion to dismiss
filed and granted in Criminal Cases Nos. 3642-M-93 to 3644-M-93 does not impress us as a candid presentation of their
real position.

Petitioners' contention that the dismissal of the original informations and the consequent filing of the new ones
substantially affected their right to bail is too strained and tenuous an argument. They would want to ignore the fact that
had the original informations been amended so as to charge the capital offense of murder, they still stood to likewise be
deprived of their right to bail once it was shown that the evidence of guilt is strong. Petitioners could not be better off with
amended informations than with the subsequent ones. It really made no difference considering that where a capital
offense is charged and the evidence of guilt is strong, bail becomes a matter of discretion under either an amended or a
new information.

Contrary to petitioners' submission, the absence of notice and hearing does not divest a trial court of authority to pass on
the merits of the motion. It has been held that —

The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of
service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of
jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The
remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity
otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal and
notcertiorari. 22

Besides, when petitioners were given by Judge Villajuan the opportunity to file a motion for reconsideration, even
assuming the alleged procedural infirmity in his issuance of the order of dismissal, the same was thereby deemed cured.
This is especially so in this case since, on his order, the original informations were reinstated in Branch 14 of the trial
court.

The rule is now well settled that once a complaint or information is filed in court any disposition of the case, whether as to
its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the
prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he
cannot impose
his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to determine whether
or not a criminal case should be filed in court, once the case had already been brought therein any disposition the
prosecutor may deem proper thereafter should be addressed to the court for its consideration and approval. 23 The only
qualification is that the action of the court must not impair the substantial rights of the accused or the right of the People to
due process of law.

We reiterate once again the doctrine we enunciated and explained in Crespo vs. Mogul, etc., et al.: 24

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal
or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court
in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits
proceed for the proper determination of the case.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose his opinion on the trial court. The court is
the best and sole judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does not matter if this is done
before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the investigation.

In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or
consent of the court must be secured. And, if after such re-investigation the prosecution finds a cogent basis to withdraw
the information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall
likewise be addressed to the sound discretion of the court. 25
It is not denied that in the present case, the court granted the motion of respondent prosecutor for the suspension of the
proceedings until the
re-investigation thereof shall have been terminated. Thereafter, the prosecutor arrived at a finding that petitioners should
have been charged with murder, frustrated murder, and illegal possession of firearms. This prompted him to file an ex
parte motion to withdraw the original informations for homicide and frustrated homicide. Although the motion did not state
the reasons for the withdrawal of the informations, nevertheless, the court in the exercise of its discretion granted the
same, as a consequence of which a new set of informations was thereafter filed and raffled to another branch of the court.
Petitioners now question the propriety of the procedure adopted by the prosecution, insisting that an amendment, not a
new information, was required under the circumstances.

It must here be emphasized that respondent prosecutor sought, and was subsequently granted, permission by the court to
dismiss the original informations. It cannot therefore be validly claimed that the prosecutor exceeded his authority in
withdrawing those informations because the same bore the imprimatur of the court. The issue is thus focused on whether
or not under the given situation the court acted correctly in dismissing the original informations rather than ordering the
amendment thereof.

It has been observed that while the Rules of Court gives the accused the right to move for the quashal of the information,
it is silent with respect to the right of the prosecutor to ask for a dismissal or withdrawal thereof. 26 A perusal of the 1985
Rules on Criminal Procedure will show that there are only two provisions concerning the dismissal of an information other
than on motion of the accused, namely, Section 14 of Rule 110 and Section 11 of Rule 119. But then, it may be
contended that these rules speak of a dismissal by the court when there is a mistake in charging the proper offense, but
make no mention of a dismissal made upon application of the prosecution. That is not necessarily so.

It is true that Section 11, Rule 119 is virtually a restatement of Section 14, Rule 110, providing as it does that:

Sec. 11. When mistake has been made in charging the proper offense. — When it becomes manifest at
any time before judgment, that a mistake has been made in charging the proper offense, and the accused
cannot be convicted of the offense charged, or of any other offense necessarily included therein, the
accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court
shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of
the proper information. (Emphasis supplied.)

Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial
court is now in a better position to conclude that manifestly the accused cannot be convicted of the offense charged or of
one that it necessarily includes. It would primarily be the function of the court to motu proprioorder the dismissal of the
case and direct the filing of the appropriate information. We do not discount the possibility of either the prosecution or the
defense initiating such dismissal and substitution at that stage, although, from a realistic point of view, that would be a
rare situation. This provision, therefore, is more directly and principally directed to the trial court to invest it with the
requisite authority to direct by itself the dismissal and refiling of the informations therein contemplated.

Rule 110, on the other hand, provides the procedural governance for the prosecution of offenses. Section 14 thereof,
quoted infra, provides in its second paragraph the procedure and requisites for the substitution of a defective information
by the correct one. Although, just like Section 11 of Rule 119 the permissible stage for effecting that substitution is "at any
time before judgment," unlike the latter situation it is sufficient that "it appears . . . that a mistake has been made in
charging the proper offense, . . . ." The situation under said Section 14 contemplates a longer time span, inclusive of the
period from the filing of the information up to and before trial. Since no evidence has been presented at that stage, the
error would appear or be discoverable from a review of the records of the preliminary investigation. Of course, that fact
may be perceived by the trial judge himself but, again, realistically it will be the prosecutor who can initially determine the
same. That is why such error need not be manifest or evident, nor is it required that such nuances as offenses includible
in the offense charged be taken into account. It necessarily follows, therefore, that the prosecutor can and should institute
remedial measures for the dismissal of the original information and the refiling of the correct one, otherwise he would be
recreant to his duties.

It is interesting to note that in the American jurisdiction, such right is specifically recognized under Rule 48 (a) of the
Federal Rules of Criminal Procedure which provides that the entry of a nolle prosequi by the Government is a permissible
right, although requiring in all cases the approval of the court in the exercise of its judicial discretion. 27As a matter of fact,
the prosecuting attorney is given the broad power, sole authority and discretion to enter anolle prosequi provided he does
not act arbitrarily 28 and subject to the discretion of the court.
In several cases, we have also impliedly recognized the propriety of such a procedure particularly in those instances
where the prosecution is allowed to dismiss or withdraw an information on the ground of insufficiency of evidence. We
have even gone further by imposing upon the fiscal, as he was then called, the duty to move for the dismissal of the
information if he is convinced that the evidence is insufficient to establish, at least prima facie, the guilt of the accused. 29

In this case now before us, what is involved is a dismissal effected at the instance of the prosecutor by reason of a
mistake in charging the proper offense, in order that new informations can be filed. The problem that may be posited, and
should now be resolved, is when the fiscal may be allowed to move to dismiss an information and when he should merely
move to amend it.

Section 14 of Rule 110, which is invoked by petitioners, reads as follows:

Sec. 14. Amendment. — The information or complaint may be amended, in substance or form, without
leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters
of form, by leave and at the discretion of the court, when the same can be done without prejudice to the
rights of the accused.

If it appears at any time before judgment that a mistake has been made in charging the proper offense,
the court shall dismiss the original complaint or information upon the filing of a new one charging the
proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed
thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the
trial.

The first paragraph provides the rule for amendment of the information or complaint, while the second paragraph refers to
the substitution of the information or complaint. Under the second paragraph, the court can order the filing of another
information to charge the proper offense, provided the accused would not be placed thereby in double jeopardy and that
could only be true if the offense proved does not necessarily include or is not necessarily included in the offense charged
in the original information.

It has been the rule that under the first paragraph of Section 14, Rule 110, the amendment of the information may also be
made even if it may result in altering the nature of the charge so long as it can be done without prejudice to the rights of
the accused. Hence, in the case of Dimalibot vs. Salcedo, 30 the accused therein were originally charged with homicide
and were released on bail. However, the then provincial fiscal, after a review of the affidavits of the witnesses for the
prosecution, discovered that the killing complained of was perpetrated with the qualifying circumstances of treachery,
taking advantage of superior strength, and employing means to weaken the defense of the victim. Consequently, an
amended information for murder was filed against the accused who were ordered re-arrested without the amount of bail
being fixed, the new charge being a capital offense.

The Court ruled therein that the amendment was proper, pursuant to Section 13, Rule 106 of the 1940 Rules of Court
(now Section 14, Rule 110 of the 1985 Rules on Criminal Procedure), thus:

Here these rules properly apply, since it is undisputed that the herein accused were not yet arraigned
before the competent court when the complaint for homicide was amended so as to charge the crime of
murder. Upon the authority of said rules, the amendment could therefore be made even as to substance
in order that the proper charge may be made. The claim that such amendment can only refer to matters
of specification affecting the elements constituting the crime is not correct, for there is nothing in the rule
to show that the nature of the amendment should only be limited to matters of specification. The change
may also be made even if it may result in altering the nature of the charge so long as it can be done
without prejudice to the rights of the defendant.

Be that as it may, it is quite plausible under Section 14 of Rule 110 that, instead of an amendment, an information for
homicide may also be dismissed before the accused pleads, to give way to the filing of a new information for murder. This
may be deduced from the pronouncement of the Court in the aforecited case of Dimalibot, to wit:

This clearly appears from the second part of Section 13 of Rule 106 which says that, if it appears before
judgment that a mistake has been made in charging the proper offense, the court may dismiss the original
information and order the filing of a new one provided the defendant may not be placed in double
jeopardy. If a new information may be ordered at any time before judgment no reason is seen why the
court may not order the amendment of the information if its purpose is to make it conformable to the true
nature of the crime committed. . . .
In the subsequent case of Teehankee, Jr. vs. Madayag, et al., 31 however, Section 14 of Rule 110 was clarified to mean
as follows:

It may accordingly be posited that both amendment and substitution of the information may be made
before or after the defendant pleads, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a
substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of
information must be with leave of court as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary investigation and the
retaking of the plea of the accused; in substitution of information, another preliminary investigation is
entailed and the accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an offense
which necessarily includes or is necessarily included in the original charge, hence substantial
amendments to the information after the plea has been taken cannot be made over the objection of the
accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On
the other hand, substitution requires or presupposes that the new information involves a different offense
which does not include or is not necessarily included in the original charge, hence the accused cannot
claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14,
Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the
second information involves the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient; otherwise, where the new
information charges an offense which is distinct and different from that initially charged, a substitution is in
order.

In any event, we are inclined to uphold the propriety of the withdrawal of the original informations, there having been no
grave abuse of discretion on the part of the court in granting the motion and, more importantly, in consideration of the fact
that the motion to withdraw was filed and granted before herein petitioners were arraigned, hence before they were placed
in jeopardy. Thus, even if a substitution was made at such stage, petitioners cannot validly claim double jeopardy, which
is precisely the evil sought to be prevented under the rule on substitution, for the simple reason that no first jeopardy had
as yet attached. Consequently, we hold that although the offenses charged under the three new informations necessarily
include those charged under the original informations, the substitution of informations was not a fatal error. A contrary
ruling, to paraphrase from our former pronouncements, would sacrifice substantial justice for formal nuances on the altar
of procedural technicalities. Furthermore, petitioner's right to speedy trial was never violated since the new informations
were filed immediately after the motion to withdraw the original informations was granted.

2. The controversy over the jurisdiction of Judge Pornillos to entertain and act upon the new informations for murder,
frustrated murder and illegal possession of firearms, is grounded on three points of disagreement.

Firstly, it is argued that the new informations were prematurely filed considering that the order granting the withdrawal of
the original informations had not yet become final and executory and that, as a matter of fact, the same was subsequently
reconsidered and the case reinstated by Judge Villajuan. Therefore, so petitioners postulate, Judge Pornillos could not
acquire jurisdiction over the same offense involving the same incident and the same accused.

Secondly, petitioners contend that the dismissal of the original informations and the filing of new ones which were raffled
to another branch of the court constituted forum shopping, and was tainted with malice considering the indecent haste
with which the motion to withdraw the informations was filed, the order granting the same was issued, and the new
informations were filed, all of which took place on the same day. Pursuant to the doctrinal ruling that the court first
acquiring jurisdiction excludes the other courts, it is theorized that the cognizance of the case taken by Judge Villajuan
barred Judge Pornillos from assuming jurisdiction thereover.

Finally, the designation of respondent Prosecutor Dennis Villa-Ignacio (who was then First Assistant Provincial Prosecutor
of Pasig, Rizal) as Acting Provincial Prosecutor of Bulacan was arbitrary and without any justifiable reason. It follows,
therefore, so petitioners vigorously argue, that in the absence of such authority, the informations should be considered
null and void by reason of which Judge Pornillos did not acquire jurisdiction over the same.

On the other hand, respondents question the propriety of petitioners' filing of a petition for certiorari prohibition
and mandamus in the Court of Appeals against the order of the lower court denying petitioners' motion to quash, claiming
that the proper remedy was to proceed to trial on the merits and thereafter raise on appeal, as special defenses, the
grounds invoked in the motion to quash.

It is a general rule that a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called
on to plead is not equivalent
to an acquittal, 32 and does not bar a subsequent prosecution for the same offense. 33 It is not a final disposition of the
case. 34 Rather, it partakes of the nature of a nonsuit or discontinuance in a civil suit and leaves the matter in the same
condition in which it was before the commencement of the prosecution. 35

A dismissal is different from an acquittal. An order of dismissal which is actually an acquittal is immediately final and
cannot be reconsidered. 36 Furthermore, an acquittal is always based on the merits, that is, the defendant is acquitted
because the evidence does not show that defendant's guilt is beyond reasonable doubt; but a dismissal does not decide
the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court
is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial
jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance. 37 For dismissal to
be a bar under double jeopardy, it must have the effect of acquittal.

All these go to show, therefore, that the dismissal of Criminal Cases


Nos. 3642-M-93 to 3644-M-93 did not amount to an acquittal of herein petitioners. Consequently, the same did not
immediately become final, hence petitioners could still file a motion for the reconsideration thereof. Moreover, such
dismissal does not constitute a proper basis for a claim of double jeopardy. 38 Since jeopardy had not yet attached, herein
petitioners were not prejudiced by the filing of the new informations even though the order of dismissal in the prior case
had not yet become final. Neither did it affect the jurisdiction of the court in the subsequent case.

In American legal practice, where a motion for an order of nolle prosequi is made, the only power to deny the motion
would be based on failure of the district attorney to judiciously exercise his discretion. 39 In most cases, the motion will be
readily granted and should not be refused unless the court has some knowledge that it is based on an improper reason or
a corrupt motive. But such a motion to dismiss will not also be approved unless the court is satisfied that the
administration of justice requires that the prosecution be ended, or if there appears to be a clear violation of the
law. 40 Whatever may be the reason therefor, a denial of the motion to withdraw should not be construed as a denigration
of the authority of the special prosecutor to control and direct the prosecution of the case, 41 since the disposition of the
case already rests in the sound discretion of the court.

This brings us to the question as to whether or not an order of dismissal may be subsequently set aside and the
information reinstated. Again, in American jurisprudence, the authorities differ somewhat as to whether a nolle
prosequi may be set aside and the cause reinstated. 42 Some cases hold that the nolle prosequi may be recalled and that
the accused may be tried on the same information,43 but before it can be retraced, set aside, cancelled, or struck off, the
permission or assent of the court must be had and obtained, and such cancellation or retraction must be duly entered.
According to other authorities, however, the entry of an unconditional nolle prosequi, not on the ground that the
information is insufficient on its face, is an end to the prosecution of that information, and suchnolle prosequi cannot
afterward be vacated and further proceedings had in that case.44

Still in some cases, it has been held that a nolle prosequi may be set aside by leave of court, so as to reinstate
proceedings on the information, or unless it was entered by mistake. 45 In our jurisdiction, we follow the rule which allows
an order of dismissal to be set aside by leave of court. In one case, it was held that in the absence of any statutory
provision to the contrary, the court may, in the interest of justice, dismiss a criminal case provisionally, that is, without
prejudice to reinstating it before the order becomes final or to the subsequent filing of a new information for the offense. 46

The rule that in cases of concurrent jurisdiction the court first acquiring jurisdiction will retain it to the end to the exclusion
of other tribunals, is not to be given unyielding effect in all cases and it does not apply where the jurisdiction of the first
court has come to an end in any legal way, such as by nolle prosequi. 47 The rule on exclusions is intended to prevent
confusion and conflicts in jurisdiction and to prevent a person from being twice tried for the same offense, but no accused
has a vested right to be tried in any particular court of concurrent jurisdiction; and when one court of concurrent
jurisdiction voluntarily relinquishes it by a nolle prosequi or dismissal of the case, there can be no legal or logical reason
for preventing the other court from proceeding. 48 With much more reason will this rule apply where only branches of the
same court, and not different courts, are involved in the jurisdictional conflict.

There was no forum shopping in the lower court with respect to the case involved. While the procedure adopted by the
prosecution was somewhat cumbersome, it was not in bad faith and, accordingly, it did not affect the legality of the
proceedings. There is no showing, and petitioners failed to prove otherwise, that the assignment by raffle of the new
informations to another branch of the same court was intended to prejudice herein petitioners, or to place them under less
favorable circumstances, or to find a court which would act favorably on the prosecution's case.

The authority of the special prosecutor appointed by the Secretary of Justice to sign and file informations has long been
recognized in this jurisdiction and it has been held that such information cannot be quashed on that account. There is
nothing so sacrosanct in the signing of complaints, holding of investigations, and conducting prosecutions that only an
officer appointed by the President or one expressly empowered by law be permitted to assume these functions. 49 And
any irregularity in the appointment does not necessarily invalidate the same if he may be considered a de facto officer. 50

Of course, where the person who signed the information was disqualified from appointment to such position, the
information is invalid and the court does not acquire jurisdiction to try the accused thereon. 51 Such is not, however, the
situation obtaining in the case at bar. It will be noted that respondent prosecutor was designated by the Secretary of
Justice to handle the re-investigation
and prosecution of the case against petitioners pursuant to Department Order No. 369. Petitioners failed to show any
irregularity in the issuance of said directive.

At any rate, the power of supervision and control vested in the Secretary of Justice under Presidential Decree No. 1275
had been broadened beyond the confines of the old law, that is, Section 1679 of the Revised Administrative Code,
wherein the power of the Secretary was then limited only to certain instances. Pertinently, in Aguinaldo, et al. vs.
Domagas, et al., 52 we said:

The Court notes, however; that Department of Justice Order No. 85 was issued pursuant to, among
others, P.D. No. 1275 issued on 11 April 1978 which provides:

Sec. 1. Creation of the National Prosecution Service; Supervision and Control of the
Secretary of Justice. — There is hereby created and established a National Prosecution
Service under the supervision and control of the Secretary of Justice, to be composed of
the Prosecution Staff in the Office of the Secretary of Justice and such number of
Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are
hereinafter provided, which shall be primarily responsible for the investigation and
prosecution of all cases involving violations of penal laws.

The power of supervision and control vested in the Secretary of Justice includes the
authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the
Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to
review, modify or revoke any decision or action of the Chief of said staff or office.

The power of supervision and control vested in the Secretary of Justice under P.D. No. 1275 had thus
been broadened beyond the confines of the old law, i.e., Section 1679 of the Revised Administrative
Code of 1917, where the power of the Secretary of Justice to designate acting fiscals or prosecutors to
handle a particular case was limited to instances "when a provincial fiscal shall be disqualified by
personal interest to act in a particular case or when for any reason he shall be unable, or shall fail to
discharge any of the duties of his position." Indeed, the limitation upon which petitioners rely no longer
subsisted under P.D. No. 1275.

Having been duly designated in accordance with law, the panel of prosecutors had complete control of
the investigation and prosecution of the case. . . .

3. Petitioners similarly dispute the legality of their arraignment on January 24, 1994, when Judge Pornillos entered a plea
of not guilty for them after they refused to plead, without furnishing them copies of the information with the list of
witnesses, after merely reading the informations against them and asking whether they understood the same, which were
allegedly in palpable violation of Section 1, Rule 116. Petitioners aver that they were requesting for the suspension of the
arraignment as they wanted to have a final copy of the order of January 24, 1994 which was merely read in open court,
and to take the necessary steps to question the same by way of a motion for reconsideration or an appeal.
In criminal cases, it is the duty of the accused, in addition to the other pleas authorized by law, to plead whether he is
guilty or not of the crime charged. In that way and in that way only can an issue be created upon which the trial shall
proceed. 53 Section 1 (c) of Rule 116 is quite explicit that where the accused refuses to plead, a plea of not guilty shall be
entered for him. Hence, under such mandatory language, if the accused refuses to plead, the court must enter a plea of
not guilty. The words are so plain and unambiguous that no construction is necessary. It actually calls for a literal
application thereof. Any explanation or defense which petitioners would want to invoke can be properly raised during the
trial, but they cannot refuse to enter their plea. Nonetheless, the alleged defect in their arraignment on January 24, 1994 is
deemed to have been cured when they were again arraigned on February 18, 1994 with the assistance of counsel de
oficio, and the information was read to them in the vernacular.

In conclusion, considering that Branch 10 of the same trial court handling Criminal Cases Nos. 4004-M-93 to 4007-M-93
legally acquired jurisdiction over the new informations which we have likewise declared valid, petitioners may be
prosecuted thereunder.

II. On the Petition for Habeas corpus

This petition is predicated mainly on petitioners' asseveration that the court which issued the warrant for their arrest had
no jurisdiction over the case, hence their detention should be deemed illegal.

We have earlier declared that Branch 10 of the trial court acquired jurisdiction over the new set of informations.
Consequently, the warrant of arrest issued on the bases of said informations filed therein and the subsequent detention of
herein petitioners pursuant thereto are valid. What instead has to be resolved is the corollary issue of whether the petition
for habeas corpus was properly filed together with their present petition for certiorari andmandamus.

The writs of habeas corpus and certiorari may be ancillary to each other where necessary to give effect to the supervisory
powers of the higher courts. A writ of habeas corpus reaches the body and the jurisdictional matters, but not the record. A
writ of certiorari reaches the record but not the body. Hence, a writ of habeas corpus may be used with the writ
of certiorari for the purpose of review. 54 However, habeas corpus does not lie where the petitioner has the remedy of
appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of
reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and the subject
matter. 55

Neither can we grant the writ at this stage since a writ of habeas corpus is not intended as a substitute for the functions of
the trial court. In the absence of exceptional circumstances, the orderly course of trial should be pursued and the usual
remedies exhausted before the writ may be invoked. Habeas corpus is not ordinarily available in advance of trial to
determine jurisdictional questions that may arise. 56 It has to be an exceptional case for the writ of habeas corpus to be
available to an accused before trial. 57 In the absence of special circumstances requiring immediate action, a court will not
grant the writ and discharge the prisoner in advance of a determination of his case in court. 58 In the case under
consideration, petitioners have dismally failed to adduce any justification or exceptional circumstance which would warrant
the grant of the writ, hence their petition therefor has to be denied.

In addition, a petition for habeas corpus is not the appropriate vehicle for asserting a right to bail or vindicating its denial.
In the case of Enrile vs. Salazar, etc., et al., 59 we held that:

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to
have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested
with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to
be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him.
Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been
invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also
available there.

III. On the Motion to Cite for Contempt

The records show that on February 24, 1994, this Court issued a temporary restraining order, pursuant to its resolution in
Administrative Matter No. 94-1-13-RTC which is a petition for change of venue filed by the Vinculados, requiring Judges
Felipe N. Villajuan and Victoria Villalon-Pornillos to cease and desist from hearing the criminal cases involving herein
petitioners which were pending before them. 60
Subsequently, another resolution was issued in said cases, dated
March 1, 1994, with the following directive:

ACCORDINGLY, without prejudice to the final determination as to which of the two (2) sets of information
will be upheld or prevail, the Executive Judge of the Regional Trial Court of Malolos, Bulacan is hereby
directed to transfer all the aforementioned criminal cases filed against Mayor Honorato Galvez, et al. now
in the Regional Trial Court of Malolos, Bulacan, to the Executive Judge, Regional Trial Court of Quezon
City for raffle as one (1) single case among its branches and for the branch concerned, after raffle, to
proceed with all deliberate dispatch after the issues raised in CA-G.R. SP No. 33261 have been resolved
with finality. 61

As a consequence, the seven informations which were docketed as Criminal Cases Nos. Q-94-55481 to Q-94-55487 were
assigned to and are now pending trial on the merits before Branch 103 of the Regional Trial Court of Quezon City,
presided over by Judge Jaime N. Salazar, Jr. Petitioners now assert that Judge Salazar and Prosecutor Villa-Ignacio
proceeded with the trial of the cases despite the aforestated directives in the above cited resolutions. We find no merit in
the motion to cite them for contempt.

The records reveal that there was a manifestation dated May 31, 1994 62 filed by the Solicitor General wherein the latter
manifested his conformity to the agreement made between the prosecution and the defense before Judge Salazar, the
pertinent part of which agreement is as follows:

1. During the hearing on May 26, 1994, the prosecution, through Senior State Prosecutor Dennis Villa-
Ignacio, the defense through Justice Alfredo Lazaro, and this Honorable Court agreed that the trial in
these cases shall proceed on condition that: (a) the defense shall not be deemed to have waived any
issue or objection it has raised before the Supreme Court in G.R. No. 114046; and (b) that the trial shall
also be without prejudice to whatever decision and resolution the Supreme Court may render in the case
before it.

Counsel for petitioners, retired Justice Alfredo Lazaro, takes issue with said agreement on the pretension that the same is
not the true agreement of the parties, but he failed to state what they actually agreed upon. Withal, the resolutions of this
Court in the petition for change of venue, as well as the cease and desist order issued therein, are clearly directed against
the two aforenamed regional trial judges in Malolos, Bulacan. By no stretch of the imagination can we interpret the same
to include Judge Jaime N. Salazar, Jr. of Quezon City.

For that matter, the issues involved in this petition for certiorari do not necessarily require a suspension of the proceedings
before the present trial court considering that the main petition hinges only on a determination of which set of informations
shall constitute the indictments against petitioners and for which charges they shall stand trial. Whichever set of
informations prevails, the evidence of the prosecution anad defense will more or less be the same and can be utilized for
the charges therein. Hence, no cogent reason exists for the suspension of the proceedings before the court below.

As a final word, while it may well be that both sets of information validly exist for the nonce, to allow both of them to
subsist will only serve to confuse and complicate the proceedings in the cases therein. Brushing aside procedural
technicalities, therefore, it becomes exigent to now consider and declare the four informations for murder, frustrated
murder and illegal possession of firearms as having amended and superseded the original three informations for homicide
and frustrated homicide, there being no substantial rights of herein petitioners which may be affected thereby.
Correspondingly, the three informations for homicide and frustrated homicide should be ordered withdrawn from the
Quezon City trial court's docket.

WHEREFORE, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus together with the
petition for habeas corpus; DENYING, for lack of merit, the motion to cite respondent judge and prosecutor for contempt
and to annul proceedings; and ORDERING the withdrawal and invalidation of the three informations for homicide and
frustrated homicide against petitioners from the docket of Branch 103 of the Regional Trial Court of Quezon City.

SO ORDERED.
G.R. No. 109266 December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner,


vs.
HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, respondents.

Amado M. Santiago, Jr. for petitioner.

The Solicitor General for the People of the Philippines.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the Resolution dated March 3,
1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis Garchitorena of the
Sandiganbayan, disqualified from acting in said criminal case; and (b) the Resolution of said court promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp. 2-35 and pp. 36-94).

On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with violation of Section 3(e)
of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed by her
favoring "unqualified" aliens with the benefits of the Alien Legalization Program (Rollo, p. 36).

On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No. 99289-99290
(Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with Criminal Case No.
16698 on the ground that said case was intended solely to harass her as she was then a presidential candidate. She
alleged that this was in violation of Section 10, Article IX-C of the Constitution which provides that "(b)ona fide candidates
for any public office shall be free from any form of harassment and discrimination." The petition was dismissed on January
13, 1992.

On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which motion was set for
hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41).

On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is a member, set the
criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)

On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a pending motion for
inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-44).

On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment (Rollo, p. 45).

On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion stated that while the
information alleged that petitioner had approved the application or legalization of "aliens" and gave them indirect benefits
and advantages it lacked a list of the favored aliens. According to petitioner, unless she was furnished with the names and
identities of the aliens, she could not properly plead and prepare for trial.

On November 12, 1992 and upon motion of petitioner in G.R.


No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan (First Division) to reset
the arraignment to a later date and to dispose of the two incidents pending before it (Re: disqualification of Presiding
Justice Garchitorena and the motion for the bill of particulars).

At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated categorically that they
would file only one amended information against petitioner.

However, on December 8, 1992, the prosecution filed a motion to


admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126).

On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11, 1993, denying the
motion for his disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32 Amended Informations
and ordering petitioner to post the corresponding bail bonds within ten days from notice (Rollo, pp. 165-185). Petitioner's
arraignment on the 32 Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).

Hence, the filing of the instant petition.

Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March 25, 1993, ordering
Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case until the question of his disqualification is
finally resolved by this Court and from enforcing the resolution dated March 11, 1993, ordering petitioner to post bail
bonds for the 32 Amended Informations and from proceeding with the arraignment on
April 12, 1993" (Rollo, p. 194).

Re: Disqualification of the Sandiganbayan Presiding Justice

The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is letter in the July 29,
1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the conclusions he has
subconsciously drawn in his public statements . . . when he sits in judgment on the merits of the case . . ." (Rollo, pp. 16-
17).

The letter in question was written in response to an item in Teodoro Benigno's column in the July 22, 1992 issue of
the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-departure order against petitioner.
Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan and the lack of "legal morality" of its
Presiding Justice, thus:

I cannot, for example accept the legal morality of Sandiganbayan Justice Francis Garchitorena who would
stop Miriam Defensor Santiago from going abroad for a Harvard scholarship because of graft charges
against her. Some of the most perfidious Filipinos I know have come and gone, left and returned to these
shores without Mr. Garchitorena kicking any kind of rumpus. Compared to the peccadilloes of this
country's outstanding felons, what Miriam is accused of is kindergarten stuff. The Sandiganbayan
Supremo got a lot of headlines for stopping Miriam but I contend this is the kind of perverse morality we
can do without (Rollo, p. 156).

The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads as follows:

(c) Mrs. Santiago has never informed any court where her cases are pending of her intention to travel,
whether the Regional Trial Court where she is charged with soliciting donations from people transacting
with her office at Immigration or before the Sandiganbayan where she is charged with having favored
unqualified aliens with the benefits of the Alien Legalization Program nor even the Supreme Court where
her petition is still pending (Rollo, p. 158).

In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena that petitioner had
been charged before the Sandiganbayan "with having favored unqualified aliens with the benefits of the Alien Legalization
Program."

The statement complained of was just a restatement of the Information filed against petitioner in Criminal Case No. 16698
in connection with which the hold-departure order was issued. Said Information specified the act constituting the offense
charged, thus:

That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines,
and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the
Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest
partiality, did then and there willfully, unlawfully and criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated
April 13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the
government and giving unwarranted benefits and advantages to said aliens in the discharge of the official
and administrative functions of said accused (Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing the permission of the Sandiganbayan, prompting it
to issue the hold-departure order which Benigno viewed as uncalled for. The letter of Presiding Justice Garchitorena,
written in defense of the dignity and integrity of the Sandiganbayan, merely stated that all persons facing criminal charges
in court, with no exception, have to secure permission to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no occasion for the letter had Benigno not written his
diatribe, unfair at that, against the Sandiganbayan.

Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan sits in three divisions
with three justices in each division. Unanimity among the three members is mandatory for arriving at any decision of a
division (P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders baseless petitioner's fear of
prejudice and bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).

Re: Claim of denial of due process

Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in the
termination of the preliminary investigation. According to her, while the offense was allegedly committed "on or before
October 17, 1988", the information was filed only on May 9, 1991 and the amended informations on December 8, 1992
(Rollo, p. 14).

Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an
unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues involved
therein.

In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity of
the issues involved. The act complained of in the original information came to the attention of the Ombudsman only when
it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately thereafter, the investigatory
process was set in motion. The investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request
of petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of
petitioner herself the investigation was re-assigned to the Office of the Deputy Ombudsman for Luzon. The case was
handled by a panel of four prosecutors, who submitted a draft resolution for the filing of the charges on March 29, 1990.
The draft resolution had to undergo the hierarchy of review, normal for a draft resolution with a dissenting vote, until it
reached the Ombudsman in March 1991.

We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 99289-
99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary investigation and the
filing of the information against her in those petitions. a piece-meal presentation of issues, like the splitting of causes of
action, is self-defeating.

Petitioner next claims that the Amended Informations did not charge any offense punishable under Section 3 (e) of R.A.
No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that the
Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of
spouses and unmarried, minor children of "qualified aliens" even though they had arrived in the Philippines after
December 31, 1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the informations
(Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People v. Supnad, 7
SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after
January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in "evident bad faith and manifest partiality in the execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.

The claims that the acts complained of were indeed authorized under Executive Order No. 324, that petitioner merely
followed in good faith the policy adopted by the Board of Commissioners and that the aliens were spouses or unmarried
minor children of persons qualified for legalization of stay, are matters of defense which she can establish at the trial.

Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue injury to any party,
including the Government," there are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a) by causing
undue injury to any party, including the Government; and (b) by giving any private party any unwarranted benefit,
advantage or preference.

In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:

The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3 (a). In
other words the act of giving any private party any unwarranted benefit, advantage or preference is not an
indispensable element of the offense of "causing any undue injury to any party" as claimed by petitioners
although there may be instances where both elements concur.

Re: Delito continuado

Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32 Amended
Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one amended information
(Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion to admit the 32 Amended
Informations, the splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore
proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in her petition.

We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there should only
be one information to be file against her.

The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes referred to
as "continuous crime."

In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept ofdelito
continuado has been a vexing problem in Criminal Law — difficult as it is to define and more difficult to apply.

According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during a period of
time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of
the same penal provisions are united in one and same instant or resolution leading to the perpetration of the same
criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).

According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one crime
in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine
Criminal Law, p. 152).

Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal Law,
1988 ed. pp. 53-54).

Applying the concept of delito continuado, we treated as constituting only one offense the following cases:

(1) The theft of 13 cows belonging to two different owners committed by the accused at the same time
and at the same period of time (People v. Tumlos, 67 Phil. 320 [1939] ).

(2) The theft of six roosters belonging to two different owners from the same coop and at the same period
of time (People v. Jaranillo, 55 SCRA 563 [1974] ).

(3) The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49 Phil.
437 [1926] ).
(4) The illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits
on behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits (People v.
Sabbun, 10 SCRA 156 [1964] ). The collection of the legal fees were impelled by the same motive, that of
collecting fees for services rendered, and all acts of collection were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975 [1955] ).

On the other hand, we declined to apply the concept to the following cases:

(1) Two estafa cases, one of which was committed during the period from January 19 to December 1955
and the other from January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961] ). The said acts
were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and falsifications to conceal said
offenses committed in August and October 1936. The malversations and falsifications "were not the result
of only one purpose or of only one resolution to embezzle and falsify . . ." (People v. Cid, 66 Phil. 354
[1938] ).

(3) Two estafa cases, one committed in December 1963 involving the failure of the collector to turn over
the installments for a radio and the other in June 1964 involving the pocketing of the installments for a
sewing machine (People v. Ledesma, 73 SCRA 77 [1976] ).

(4) 75 estafa cases committed by the conversion by the agent of collections from customers of the
employer made on different dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]).

The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied to crimes penalized
under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up claims for war veteran's
benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter provide
the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to
crimes punished under special laws.

The question of whether a series of criminal acts over a period of time creates a single offense or separate offenses has
troubled also American Criminal Law and perplexed American courts as shown by the several theories that have evolved
in theft cases.

The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of several things, whether
belonging to the same or different owners, at the same time and place constitutes but one larceny. Many courts have
abandoned the "separate larceny doctrine," under which there is a distinct larceny as to the property of each victim. Also
abandoned was the doctrine that the government has the discretion to prosecute the accused or one offense or for as
many distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).

The American courts following the "single larceny" rule, look at the commission of the different criminal acts as but one
continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson, 157 Iowa 257, 138
NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).

An American court held that a contrary rule would violate the constitutional guarantee against putting a man in jeopardy
twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is a humane rule,
since if a separate charge could be filed for each act, the accused may be sentenced to the penitentiary for the rest of his
life (Annotation, 28 ALR 2d 1179).

In the case at bench, the original information charged petitioner with performing a single criminal act — that of her
approving the application for legalization of aliens not qualified under the law to enjoy such privilege.

The original information also averred that the criminal act : (i) committed by petitioner was in violation of a law —
Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done on a single day, i.e.,
on or about October 17, 1988.
The 32 Amended Informations reproduced verbatim the allegation of the original information, except that instead of the
word "aliens" in the original information each amended information states the name of the individual whose stay was
legalized.

At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would file only one
amended information embodying the legalization of stay of the 32 aliens. As stated in the Order dated November 12, 1992
of the Sandiganbayan (First Division):

On the matter of the Bill of Particulars, the prosecution has conceded categorically that the accusation
against Miriam Defensor Santiago consists of one violation of the law represented by the approval of the
applications of 32 foreign nationals for availment (sic) of the Alien Legalization Program. In this respect,
and responding directly to the concerns of the accused through counsel, the prosecution is categorical
that there will not be 32 accusations but only one . . . (Rollo, p. 59).

The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or about
October 17, 1988. The strong probability even exists that the approval of the application or the legalization of the stay of
the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document.

Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the Government suffered
a single harm or injury. The Sandiganbayan in its Order dated November 13, 1992 stated as follows:

. . . Equally, the prosecution has stated that insofar as the damage and prejudice to the government is
concerned, the same is represented not only by the very fact of the violation of the law itself but because
of the adverse effect on the stability and security of the country in granting citizenship to those not
qualified (Rollo, p. 59).

WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First Division) is
AFFIRMED and its Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED in the sense that the
Office of the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the 32 Amended Informations
(Criminal Cases Nos. 18371 to 18402) into one information charging only one offense under the original case
number, i.e., No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED insofar as to
the disqualification of Presiding Justice Francis Garchitorena is concerned.

SO ORDERED.
G.R. No. 72994 January 23, 1991

FELICISIMO ROCABERTE, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. ANDRES S. SANTOS, Judge, RTC, Tagbilaran, Bohol, respondents.

Lilio L. Amora for petitioner.

NARVASA, J.:

The case at bar treats of the sufficiency of the averment in the information of the time of the commission of the felony of
theft ascribed to petitioner Felicisimo Rocaberte and two (2) others. The information, filed in the Regional Trial Court of
Bohol, City of Tagbilaran,1 Judge Andres S. Santos, presiding, reads as follows:2

The undersigned Assistant Provincial Fiscal hereby accused Felicisimo Rocaberte, Florencio Ranario and
Flaviana Ranario of the crime of Theft, committed as follows:

That on or about the Period from 1977 to December 28, 1983 at the off offshore of West Canayaon, municipal of
Garcia-Hernandez, province of Bohol, Philippines . . ., the above-named accused, conspiring, confederating and
helping each other, with intent to gain and without the consent of the owner, did then and there, willfully,
unlawfully and feloniously take, steal and carry away the following properties, to wit:

One (1) pc. sledge hammer, valued at P136.00

One (1) pc. H beam, valued at 400.00

Two (2) cut abrasive steel plates for cargo


berth cover protector 158.00

Ninety-nine (99) blocks of aluminum, alloy


anodes at P3,750.00 each block P371,250.00

TOTAL P371,944.00

in the total amount of THREE HUNDRED SEVENTY-ONE THOUSAND NINE HUNDRED FORTY-FOUR PESOS
(P371,944.00), Philippine Currency, belonging to and owned by the Philippine Sinter Corporation, to the damage
and prejudice of the latter in the aforestated amount.

Acts committed contrary to the provisions of Articles 308, 309 of the Revised Penal Code.

The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the information,3 alleging that the statement of
the time of commission of the felony charged, "from 1977 to December 1983, . . . a period of seven years," or "about
2,551 days," was fatally defective: there was "so great a gap as to defy approximation in the commission of one and the
same offense" (citing Peo. v. Reyes, 108 SCRA 203); "the variance is certainly unfair to the accused for it violates their
constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity
to defend themselves . . ." (invoking Peo. v. Openia, 98 Phil. 698).

The motion was denied4 as was, too, the defendants' motion for reconsideration.5 In the motion for reconsideration, the
accused drew attention to Section 4, Rule 117 "of the 1985 Rules on Criminal Procedure," as a remedy that could be
alternatively granted, viz.:

Sec. 4. Amendment of complaint or information. — If the motion to quash is based on an alleged defect in the
complaint or information which can be cured by amendment, the court shall order the amendment to be made.
(2a)

Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the special civil action
ofcertiorari at bar, impugning the denial by respondent Judge Santos of his motion to quash, or his refusal, at the very
least, to direct the amendment of the information pursuant to Section 4, Rule 117 of the 1985 Rules of Court,supra. He is
correct, and will be granted appropriate relief.

The rules of criminal procedure declare6 that —

. . . A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by
the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the
approximate time of the commission of the offense, and the place wherein the offense was committed.

and — as regards the time of the commission of the offense, particularly — that:7

. . . It is not necessary to state in the complaint or information the precise time at which the offense was
committed except when time is a material ingredient of the offense, but the act may be alleged to have been
committed at any time as near to the actual date at which the offense was committed as the information or
complaint will permit.

In line with this last mentioned rule, a variance of a few months between the time set out in the indictment and that
established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a
conviction solely on that score. Hence, where the information sets the date of commission of a robbery at March 25, 1900,
evidence was allowed to show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment of
an information so as to change the year therein stated to that following it, was allowed it appearing that the alteration
impaired none of the defendant's rights.8

Where, however, there was a variance of several years between the time stated in the information, 1947, and the proof of
its actual commission adduced at the trial, 1952, the dismissal of the case by the Trial Court was sustained by this Court,
since to allow amendment of the indictment to conform to the evidence would be violative of defendant's constitutional
right to be informed of the nature and cause of the accusation against him. 9

Again, the statement of the time of the commission of the offense which is so general as to span a number of years, i.e.,
"between October, 1910 to August, 1912," has been held to be fatally defective because it deprives the accused an
opportunity to prepare his defense.10

A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to
quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the
defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the
time with particularity.11

The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness
is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964. 12

Bill of particulars. — Defendant may, at the time of or before arraignment, move for or demand a more definite
statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to
enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the
details desired.

From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed
seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their
activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must
make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-
defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed.

WHEREFORE, the petition is GRANTED, and the writ of certiorari prayed for is ISSUED, ANNULLING AND SETTING
ASIDE the challenged Orders of respondent Judge dated August 12, 1985 and September 10, 1985 in Criminal Case No.
3851, and DIRECTING the amendment of the information in said case by the prosecution within such time as the
respondent Judge may deem proper, failing which the criminal prosecution against the petitioner and his co-defendants
shall be dismissed.

SO ORDERED.
G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,


vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court,
NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FACTS

An information was filed charging herein petitioner Rolito Go for murder before the Regional Trial Court of Metro
Manila. Petitioner voluntarily presented himself together with his two lawyers to the police upon obtaining knowledge of
being hunted by the latter. However, he was immediately detained and denied his right of a preliminary investigation
unless he executes and sings a waiver of the provisions of Article 125 of the Revised Penal Code. Upon omnibus motion
for immediate release on recognizance or on bail and proper preliminary investigation on the ground that his warrantless
arrest was unlawful and no preliminary investigation was conducted before the information was filed, which is violative
of his rights, the same was granted but later on reversed by the lower court and affirmed by the Court of Appeals. The
appellate court in sustaining the decision of the lower court held that petitioner's warrantless arrest was valid in view of
the fact that the offense was committed, the petitioner was clearly identified and there exists valid information for murder
filed against petitioner

Hence, the petitioner filed this present petition for review on certiorari before the Supreme Court.

ISSUE/S:

The issues assailed in the case at bar are the following:

1. whether or not the warrantless arrest of herein petitioner was lawful, and

2. whether or not petitioner waived his right to preliminary investigation.

RULING:
The general rule on arrest provides that the same is legitimate if effected with a valid warrant. However, there are
instances specifically enumerated under the law when a warrantless arrest may be considered lawful. Despite that, the
warrantless arrest of herein petitioner Rolito Go does not fall within the terms of said rule. The police were not present at
the time of the commission of the offense, neither do they have personal knowledge on the crime to be committed or has
been committed not to mention the fact that petitioner was not a prisoner who has escaped from the penal institution. In
view of the above, the allegation of the prosecution that petitioner needs to sign a waiver of the provisions of Article 125
of the Revised Penal Code before a preliminary investigation may be conducted is baseless. In this connection, petitioner
has all the right to ask for a preliminary investigation to determine whether is probable cause that a crime has been
committed and that petitioner is probably guilty thereof as well as to prevent him from the hassles, anxiety and
aggravation brought by a criminal proceeding. This reason of the accused is substantial, which he should not be deprived
of.

On the other hand, petitioner did not waive his right to have a preliminary investigation contrary to the prosecutor's claim.
The right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of
entering a pleas at arraignment. The facts of the case show that petitioner insisted on his right to preliminary investigation
before his arraignment and he, through his counsel denied answering questions before the court unless they were afforded
the proper preliminary investigation. For the above reasons, the petition was granted and the ruling of the appellate
court was set aside and nullified. The Supreme Court however, contrary to petitioner's allegation, declared that failure to
accord the right to preliminary investigation did not impair the validity of the information charging the latter of the crime
of murder.
G.R. No. 106632 October 9, 1997

DORIS TERESA HO, petitioner,


vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the
SANDIGANBAYAN (Second Division), respondents.

G.R. No. 106678 October 9, 1997

ROLANDO S. NARCISO, petitioner,


vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the
SANDIGANBAYAN (Second Division), respondents.

PANGANIBAN, J.:

May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating
prosecutor, without personally determining probable cause by independently examining sufficient evidence submitted by
the parties during the preliminary investigation?

The Case

This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of Court
challenging the Sandiganbayan's August 25, 1992 Resolution 1 which answered the said query in the affirmative.

The Facts

Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft League of the Philippines, represented
by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a
complaint 2 against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and 106678, respectively),
Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoño. The complaint was for alleged violation of Section 3 (g)
of Republic Act 3019 3 prohibiting a public officer from entering into any contract or transaction on behalf of the
government if it is manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or will
profit thereby. After due notice, all respondents therein filed their respective counter-affidavits with supporting documents.
On January 8, 1992, Graft Investigation Officer Titus P. Labrador (hereafter, "GIO Labrador") submitted his
resolution 4 with the following recommendations:

WHEREFORE, all premises considered, it is respectfully recommended that an information for violation of
Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso before the
Sandiganbayan.

It is likewise recommending that the case against the other respondents be DISMISSED for insufficiency
of evidence.

However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter "SPO
Tamayo") recommended that
both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution of GIO
Labrador, as modified by the memorandum 5 of SPO Tamayo, was approved by Ombudsman Conrado M. Vasquez on
May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an information 6 filed on
May 18, 1992. Attached to the information were the resolution of GIO Labrador and the memorandum of SPO Tamayo.
The said information reads:

The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses
ROLANDO NARCISO and DORIS TERESA HO, President of National Marine Corporation, of violation of
Section 3(e) of RA 3019, as amended, committed as follows:
That on or about April 4, 1989, and for sometime prior and/or subsequent thereto, in the
City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused ROLANDO NARCISO, a public officer, being then the Vice-President of
the National Steel Corporation (NSC), a government-owned or controlled corporation
organized and operating under the Philippine laws, and DORIS TERESA HO, a private
individual and then the President of National Marine Corporation (NMC), a private
corporation organized and operating under our Corporation law, conspiring and
confederating with one another, did then and there wilfully, unlawfully and criminally, with
evident bad faith and through manifest partiality, cause undue injury to the National Steel
Corporation (NSC), by entering without legal justification into a negotiated contract of
affreightment disadvantageous to the NSC for the haulage of its products at the rate of
P129.50/MT, from Iligan City to Manila, despite their full knowledge that the rate they
have agreed upon was much higher than those offered by the Loadstar Shipping
Company, Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the amounts of
P109.56 and P123.00 per Metric Ton, respectively, in the public bidding held on June 30,
1988, thereby giving unwarranted benefits to the National Marine Corporation, in the total
sum of One Million One Hundred Sixteen Thousand Fifty Two Pesos and Seventy Five
Centavos (P1,116,052.75), Philippine Currency, to the pecuniary damage and prejudice
of the NSC in the aforestated sum. The said offense was committed by Rolando S.
Narciso in the performance of his official functions as Vice-President of the National Steel
Corporation.

CONTRARY TO LAW.

Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against Petitioners
Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an "Urgent Motion to Recall Warrant of
Arrest/Motion for Reconsideration" which was adopted by Petitioner Narciso. They alleged that the Sandiganbayan, in
determining probable cause for the issuance of the warrant for their arrest, merely relied on the information and the
resolution attached thereto, filed by the Ombudsman without other supporting evidence, in violation of the requirements of
Section 2, Article III of the Constitution, and settled jurisprudence. Respondent Sandiganbayan denied said motion in the
challenged Resolution. It ratiocinated in this wise.

Considering, therefore, that this Court did not rely solely on the certification appearing in the information
in this case in the determination of whether probable cause exists to justify the issuance of the warrant of
arrest but also on the basis predominantly shown by the facts and evidence appearing in the
resolution/memorandum of responsible investigators/prosecutors, then the recall of the warrant of arrest,
or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly
shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties
during preliminary investigation. To require this Court to have the entire record of the preliminary
investigation to be produced before it, including the evidence submitted by the complainant and the
accused-respondents, would appear to be an exercise in futility.

Thus, these petitions.

The Issue

Petitioner Ho raises this sole issue:

May a judge determine probable cause and issue [a] warrant of arrest solely on the basis of the resolution
of the prosecutor (in the instant case, the Office of the Special Prosecutor of the Ombudsman) who
conducted the preliminary investigation, without having before him any of the evidence (such as
complainant's affidavit, respondent's counter-affidavit, exhibits, etc.) which may have been submitted at
the preliminary investigation? 7

In his separate petition, Rolando S. Narciso adopts the foregoing and raised no other distinct issue.

Petitioners Ho and Narciso similarly contend that a judge, in personally determining the existence of probable cause, must
have before him sufficient evidence submitted by the parties, other than the information filed by the investigating
prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence should not be "merely
described in a prosecutor's resolution." Citing People vs. Inting, 8 petitioners insist that the judge "must have before him
'the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents which are
material in assisting the judge to make his determination.'"

The Court's Ruling

The petitions are meritorious.

The pertinent provision of the Constitution reads:

Sec. 2 [Article III]. 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 supplied.)

In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the authority of
judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar 9:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to personally examined the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 10 [emphasis
supplied]

We should stress that the 1987 Constitution requires the judge to determine probable cause "personally." The word
"personally" does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows the
present Constitution's intent to place a greater degree of responsibility upon trial judges than that imposed under the
previous Charters.

While affirming Soliven, People vs. Inting 11 elaborated on what "determination of probable cause" entails, differentiating
the judge's object or goal from that of the prosecutor's.

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to
make the determination of probable cause. The Judge does not have to follow what the Prosecutor
presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the
affidavits the transcripts of stenographic notes (if any), and all other supporting documents behind the
Prosecutor's certification which are material in assisting the Judge to make hisdetermination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper — whether or not there is reasonable ground to believe that the accused
is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense,
rigors and embarrassment of trial — is the function of the Prosecutor. 12

And clarifying the statement in People vs. Delgado 13 — that the "trial court may rely on the resolution of the COMELEC to
file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation, in the issuance of the warrant of arrest" — this Court underscored inLim Sr. vs. Felix 14 that
"[r]eliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the
COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because
the records of the investigation sustain the recommendation." We added, "The warrant issues not on the strength of the
certification standing along but because of the records which sustain it." Summing up, the Court said:

We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the
complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for
the taking of the evidence. However, there should be a report and necessary documents supporting the
Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's
examination should be. The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the
circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification
and investigation report whenever necessary. He should call for [the] complainant and [the] witnesses
themselves to answer the court's probing questions when the circumstances of the case so
require. 15 [emphasis supplied]

The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno 16 where we explained again what
probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed
by the person sought to be arrested. 17 Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that
based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof." 18 At this stage of the criminal proceeding, the judge is not yet tasked to review in
detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such
evidence in determining probable cause. 19 In Webb vs. De Leon, 20 we stressed that the judge merely determines the
probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply
personally reviews the prosecutor's initial determination finding probable cause to see if it is supported by substantial
evidence.

In the recent case of Roberts Jr. vs. Court of Appeals, 21 this Court's application of the dictum laid down in Soliven—
affirmed and fortified in Inting, Lim Sr., Allado and Webb — should lay to rest the issue raised in the instant petitions.
In Robets Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent judge
directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not personally
determine the existence of probable cause, since he had "only the information, amended information, and Joint Resolution
as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable cause."

In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman, the
thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer, when it
issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar
recommendations — the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone should have
prompted the public respondent to verify, in the records and other documents submitted by the parties during the
preliminary investigation, whether there was sufficient evidence to sustain the Ombudsman's action charging both
petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant, the
Sandiganbayan simply said:

JUSTICE ESCAREAL:

xxx xxx xxx

But in this particular case we believe there is prima facie case based on our examination of the resolution
because we believe, we think the Ombudsman will not approve a resolution just like that, without
evidence to back it up. 22

In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution.

In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic)
emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19, respectively,
Record) which clearly and indubitably established, firstly, the conduct of a due and proper preliminary
investigation, secondly, the approval by proper officials clothed with statutory authority; and thirdly, the
determination and ascertainment of probable caused based on the documentary evidence submitted by
the complainant (Anti-Graft League of the Philippines), foremost among which is the Contract of
Affreightment entered into between National Steel Corporation (NSC), and National Marine Corporation
(NMC) and the COA-NSC audit report, together with the counter-affidavits of accused Rolando Narciso
and NMC officials, among whom is accused-movant. Outlined in detail in the aforesaid Resolution of Titus
P. Labrador, Graft Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica,
Director, Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the
facts leading to the questioned transaction between NSC and NMC, together with an evaluation of the
propriety and legality of the bidding process involved therein and which revealed that there were
supposed non-compliance with proper bidding procedures. GIO Labrador's findings and
recommendations, extensively set out in his thirteen-page resolution, is complemented by the three-page
Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which meticulously delved
into the merits and demerits of the evidence presented by the complainant and accused-respondents and
which resulted in their respective recommendation which led the Honorable Conrado M. Vasquez to
approve the recommendations of Deputy Special

Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filling of the information
in the case at bar.

xxx xxx xxx

Considering, therefore, that this Court did not rely solely on the certification appearing in the information
in this case in the determination of whether probable cause exists to justify the issuance of the warrant of
arrest but also on the basis predominantly shown by the facts and evidence appearing in the
resolution/memorandum of responsible investigators/prosecutors, then the recall of the warrant of arrest,
or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly
shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties
during the preliminary investigation. To require this Court to have the entire record of the preliminary
investigation to be produced before it, including the evidence submitted by the complainant and the
accused-respondents, would appear to be an exercise in futility. 23

In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only wish
to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor
is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that
the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on
the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a
necessity for placing him under immediate custody in order not to frustrate the ends of justice. 24 Thus, even if both should
base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct
objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable
cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report
will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However,
the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report,
upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest
order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is
lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the
judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution
finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his
personal and separate judicial finding on whether to issue a warrant of arrest. 25

Lastly, it is not required that the complete or entire records of the


case during the preliminary investigation be submitted to and examined by the judge. 26 We do not intend to unduly
burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of
ordering the arrest of an accused. What is required, rather, is that the judge must have sufficientsupporting documents
(such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if
any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the
prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's
recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of
regularity in the performance of his official duties and functions, which in turn gives his report the presumption of
accuracy, the Constitution we repeat, commands the judge topersonally determine probable cause in the issuance of
warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the
certification or the report of the investigating officer.

True, in Webb vs. De Leon, we found that "the painstaking recital and analysis of the parties' evidence made in the DOJ
Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against petitioners." This
statement may have been wrongly construed by the public respondent to mean that the narration or description of
portions of the evidence in the prosecutor's report may serve as sufficient basis to make its own independent judgment.
What it should bear in mind, however, is that, aside from the 26-page report of the DOJ panel, the sworn statements of
three witnesses and counter-affidavits of the petitioners in Webb were also submitted to the trial court, and the latter is
presumed to have reviewed these documents as well, prior to its issuance of the warrants of arrest.

In the instant case, the public respondent relied fully and completely upon the resolution of the graft investigation officer
and the memorandum of the reviewing prosecutor, attached to the information filed before it, and its conjecture that the
Ombudsman would not have approved their recommendation without supporting evidence. It had no other documents
from either the complainant (the Anti-Graft League of the Philippines) or the People from which to sustain its own
conclusion that probable cause exists. Clearly and ineluctably, Respondent Court's findings of "the conduct of a due and
proper preliminary investigation" and "the approval by the proper officials clothed with statutory authority" are not
equivalent to the independent and personal responsibility required by the Constitution and settled jurisprudence. At least
some of the documentary evidence mentioned (Contract of Affreightment between National Steel Corporation and
National Marine Corporation, the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC officials),
upon which the investigating officials of the Ombudsman reportedly ascertained the existence of probable cause, should
have been physically present before the public respondent for its examination, to enable it to determine on its own
whether there is substantial evidence to support the finding of probable cause. But is stubbornly stood pat on its position
that it had essentially complied with its responsibility. Indisputably, however, the procedure it undertook contravenes the
Constitution and settled jurisprudence. Respondent Court palpably committed grave abuse of discretion in ipso
facto issuing the challenged warrant of arrest on the sole basis of the prosecutor's findings and recommendation, and
without determining on its own the issue of probable cause based on evidence other than such bare findings and
recommendation.

WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the
Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and
Rolando Narciso is hereby declared NULL AND VOID.

SO ORDERED.
G.R. Nos. 136149-51 September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee,


vs.
WALPAN LADJAALAM y MIHAJIL alias "WARPAN," appellant.

DECISION

PANGANIBAN, J.:

Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person arrested committed "no
other crime." Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an
aggravating circumstance, but not a separate offense. Hence, where an accused was convicted of direct assault with
multiple attempted homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a search
warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act
be considered to have aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us the September 17, 1998 Decision 1 of the
Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged
against him.

Filed against appellant were four Informations,2 all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron
and dated September 25, 1997. The first Information3 was for maintaining a den for the use of regulated drugs. It reads as
follows:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio
Hondo,4 this City, conspiring and confederating together, mutually aiding and assisting x x x his co-accused wife Nur-in
Ladjaalam and Ahmad Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house as
a den, where regulated drug [was] used in any form."5

The second Information6 charged appellant with illegal possession of firearms and ammunition. We quote it below:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another,
without any justifiable reason or purpose other than to use it in the commission of crime, did then and there, wilfully,
unlawfully, and feloniously have in their possession and under their custody and control, the following weapons, to wit:
one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with
twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38 revolver with five (5) live
ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-
311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik
revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the
necessary license and or permit therefor from authorities concerned, in flagrant violation of the aforementioned law." 7

The third Information,8 for multiple attempted murder with direct assault, was worded thus:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted
firearms and explosives, conspiring and confederating together, mutually aiding and assisting x x x one another and with
intent to kill, did then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR.,
PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACASTESANTOS, in the
following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted
firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named police officers, well
known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents
of a person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the
occasion when said officers were about to serve the Search Warrant legally issued by the Regional Trial Court, this City,
to the person of the accused thus commencing the commission of crime of multiple murder directly by overt acts, and if
the accused did not accomplish their unlawful purpose, that is, to kill the above-named Police Officers, it was not by
reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able
to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also by the fact said
police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’ and
Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim
T. Hadjula was able to make good his escape and has remained at-large."9

In the fourth Information, appellant was charged with illegal possession of drugs. 10

On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion
of the Office of the City Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The
accused were consequently released from jail.

The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not
guilty.11 After pretrial, the assailed Decision was rendered, the dispositive part of which reads:

"WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. ‘WARPAN’ -

"1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15-A, Article
III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and
SENTENCES said accused to the penalty of RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED
THOUSAND (₱500,000.00) and to pay the costs;

"2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21,
Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended,
and ACQUITS him of said crime with costs de oficio;

"3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Illegal Possession of
Firearm and Ammunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294,
and SENTENCES said accused to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as
minimum to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THOUSAND
(P30,000.00) and pay the costs;

"4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Direct Assault with
Multiple Attempted Homicide and SENTENCES said accused to an indeterminate penalty of TWO (2) YEARS
and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS of prision correccional as
maximum and to pay a fine of ONE THOUSAND (P1,000.00) and to pay the costs." (emphasis in the original)

Hence, this appeal.12

The Facts

Prosecution’s Version

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

"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant
against appellant, his wife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the
same day, a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office
in connection with the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the
Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Peña was assigned as presentor of the warrant. SPO1
Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemen were assigned
as perimeter guards (TSN, March 3, 1998, pp. 33-36).

"After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the
house of appellant and his wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998,
p. 54). Before they could reach appellant’s house, three (3) persons sitting at a nearby store ran towards the house
shouting, ‘[P]olice, raid, raid’ (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire coming from the second floor of
the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16).
"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who were with the first group of policemen saw
appellant fire an M14 rifle towards them. They all knew appellant. When they were fired upon, the group, together with
SPO2 Gaganting, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to observe the movements
at the second floor of the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).

"In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76).
Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the
main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the
house through the main door and went inside the sala of the ground floor while other policemen surrounded the house.
Two (2) old women were in the sala together with a young girl and three (3) children. One of the old women took the
children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21).

"Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them
through the window. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and,
after breaking and removing the jalousies, jumped from the window to the roof of a neighboring house. Seeing this,
Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos
went to the second floor and shouted to the policemen outside not to fire in the direction of the second floor because there
were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a brief chase (Ibid., pp.
21-23).

"At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the
second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside
the chamber of the rifle. He counted seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle
magazines on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition
(Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner at the second floor (TSN, March 5, 1998,
pp. 23-32, 53-57).

"After Lacastesantos and Mirasol entered appellant’s house, Rivera, Dela Peña, Gregorio and Obut followed and entered
the house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old
women a copy of the search warrant. Dela Peña and Rivera then searched appellant’s room on the ground floor in the
presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J) with
fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochloride or ‘shabu’.

"Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28,
1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle
with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN,
April 23, 1998, pp. 30-32).

"Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of
September 24, 1997, he was instructed by SPO2 Gaganting to go to appellant’s house to buy ‘shabu.’ Locson knew
appellant as a seller of ‘shabu’ (TSN, April 22, 1998, p. 5) and had been to appellant’s house about fifteen (15) times
before. He went to Rio Hondo and arrived at appellant’s house at 3:20 p.m. He bought P300.00 worth of ‘shabu’ from
appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain
where there was a table. There were six (6) persons already smoking. There was a lighted kerosene lamp made of a
medicine bottle placed on the table. They asked Locson to smoke ‘shabu’ and Locson obliged. He placed the three (3)
decks of ‘shabu’ he bought on the table (Ibid., pp. 8-15).

"While they were smoking ‘shabu,’ Locson heard gunfire coming from appellant’s house. They all stood and entered
appellant’s compound but were instructed to pass [through] the other side. They met appellant at the back of his house.
Appellant told them to escape ‘because the police are already here.’ They scampered and ‘ran away because there were
already shots.’ Locson jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries
School, he took a tricycle and went home (Ibid., pp. 17-19).

"The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what
transpired at appellant’s house [o]n the afternoon of September 24, 1997.

"After the search and before returning to the police station, P03 Dela Peña prepared a ‘Receipt for Property Seized’ (Exh.
P & 3) listing the properties seized during the search. The receipt was signed by Dela Peña as the seizure officer, and by
Punong Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A copy of the receipt was given to
appellant but he refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).
"An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory
Service Office 9, on the paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-
3), giving rise to the possibility that appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11).
Gunpowder residue examinations conducted on September 26, 1997 showed that the following firearms ‘were fired’ (Exh.
B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber revolver (homemade)
without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle
without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998, pp.
16-21).

"With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a
Forensic Chemist of the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each
containing white crystalline granules with a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the
presence of methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1) crystalline stone
weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L).

"The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant
‘had not applied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry
[a] firearm outside of his residence’ (Exh. X)"14

Defense’s Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court. 15 Hence, we quote the pertinent parts of
the assailed Decision:

"Accused Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’, 30 years old, married, gave his occupation as ‘smuggling’ (tsn, p. 2,
May 4, 1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp.
40-41, id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only
his ‘alias’. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser
Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he was arrested
by the police, he was sleeping in the house of Dandao, a relative of his wife. He was alone. He slept in Dandao’s house
and not in his house because they ha[d] ‘a sort of a conference’ as Dandao’s daughter was leaving for Saudi Arabia. He
noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and went
out of the house and that was the time that he was arrested. He said he was arrested ‘xxx [at] the other side of my house;
at the other side of the fence where I was sleeping. xxx. At the back of my house’ (tsn, p. 7, id.). He does not know who
arrested him ‘considering that the one who arrested me does not have nameplate.’ He was arrested by four (4) persons.
Not one of those who arrested him testified in Court. He was handcuffed and placed inside a jeep parked at Rio Hondo
Elementary School. According to him, he did not fire a gun at the policemen from [t]he second floor of his house. He said
the ‘policemen’ [were] ‘the one[s] who fire[d] at us’ (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would]
die ‘[b]ecause the door is very near x x x the vicinity of my house’. He does not own the M14 rifle (Exh. ‘B-3’) which
according to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn,
p. 15, id.). A policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the
M79 rifle (Exh. ‘B-4’), the three (3) empty M16 rifle magazines (Exh. ‘G’; ‘G-1’ to ‘G-2’), the two (2) M14 magazines with
live ammunition (Exh. ‘G-3’; ‘G-4’); the two (2) caliber .38 revolvers (Exhs. ‘B-1’; ‘B-2’), the fifty (50) aluminum foils each
containing shabu (Exhs. ‘J-1’ to ‘J-50’) placed inside a pencil case (Exh. ‘J’, the assorted coins placed inside a blue bag
(Exh. ‘W’) and the white crystalline stone (Exh. ‘K’) all do not belong to him. He said that the policemen just produced
those things as their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p. 43, May 4,
1998). Regarding the blue bag containing assorted coins, he said: ‘that is not ours, I think this (is) theirs, xxx they just
brought that as their evidence’ (tsn, pp. 15-24, id.)

"Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that
house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is
Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn,
pp. 8-10, May 4, 1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson recognized
him, in his case he does not know Locson and he does not recognize him (tsn, p.11, id). He did not sell anything to
Locson and did not entertain him. He is not selling shabu but he knows ‘for a fact that there are plenty of person who are
engaged in selling shabu in that place’, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-
14, id).

"After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he
was transferred to the City jail. While at the police station, he was not able to take a bath. He smokes two packs of
cigarette a day. While he was at the police station, he smoked [a] cigarette given to him by his younger sister. He lighted
the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard
where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).

"During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar (Sikkal) Usman, the younger
brother of his wife were killed. Walpan Ladjaalam said that he saw that ‘it was the policeman who shot them[,] only I do
not know his name." They were killed at the back of his house. He said that no charges were filed against the one
responsible for their death (tsn, pp. 30-33- May 4, 1998).

"Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls ‘Hadji Id’ at
the time the police raided the house. She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small
children and a helper when ‘soldiers’ entered the house. ‘(W)hen they arrived, they kept on firing (their guns) even inside
the house’ (tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the house and scattered
things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing
jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the bag from her and poked a gun at her. At
that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant was
shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said
that ‘it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx
Barangay Captain Hussin Elhano’ (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived ‘already late in the
afternoon, almost sundown’ (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a bag full of
money, she had not seen anything else that was taken from Walpan Ladjaalam’s house (tsn, pp. 9-12, id).

"Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o’clock [o]n the afternoon of September 24,
1997, ha was standing in front of his house when policemen arrived and immediately arrested him. He was about to go to
the City Proper to buy articles he was intending to bring to Sabah. He had ‘around P50,000.00’ placed inside a waist bag
tied around his waist. The policemen told him to lie down in prone position and a policeman searched his back. They
pulled his waist bag and took his DiaStar wrist watch. He was shot three times and was hit on the forehead leaving a scar.
His injury was not treated. He was taken to the police station where he was detained for one day and one night. He was
detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998).

"Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her
parents lying together with her husband Sikkal Usma. There is only one house between her parents’ house and the house
of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpan’s wife. When Melba heard
shots, she went downstairs. A policeman was looking for her husband. The policeman called her husband. When her
husband went down, he was instructed by the policeman to lie down in prone position. Then the policeman shot her
husband. The policeman had two other companions who also shot her husband while he was lying down in prone position
(tsn, pp.2-7, May 5, 1998).

"Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the
door of her house watching her children playing when a motorcyle, driven by a person, stopped near her house. The
driver was Gaganting whom she called a soldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa.
Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house,
Gaganting again poked a gun at her and ‘there was a shot.’ As a result of firing, three persons died, namely, Sikkal
Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).

"Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o ‘clock [o]n the afternoon of September
24, 1997, he was fetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along
the way, they arrived at the Rio Hondo already late in the afternoon. He saw policemen were already inside the house.
Upon entering the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police advised him not
to approach Walpan. The search was already over and things were already taken inside the house. When he went inside
the house, he saw ‘the things that they (policemen) searched, the firearms and the shabu‘ (tsn, p. 17. May 8, 1998). He
did not see the Search Warrant. What was shown to him were the things recovered during the search which were being
listed. They were being counted and placed on a table. ‘Upon seeing the things that were recovered during the search, I
just signed the receipt (Exh. "P"; "P-1") of the things x x x taken during the search" (tsn, pp. 17-18. May 8, 1998). He saw
three dead bodies at the side of the fence when he went to the other side of the house. The three persons were killed
outside the fence of Walpan Ladjaalam (tsn, p. 18, id)."16

The Trial Court’s Ruling


The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No.
20 issued on the same day. However, the lower court nullified the said Warrant because it had been issued for more than
one specific offense,17 in violation of Section 3, Rule 126 of the Rules of Court.18 The court a quo ruled:

"It should be stated at the outset that Search Warrant No. 20 is totally ‘null and void’ because it was issued for more than
one specific offense x x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that ‘A search warrant
shall not issue but upon probable cause in connection with one specific offense xxx’. In Tambasan vs. People, 246 SCRA
184 (1995), the Supreme Court ruled that a search warrant for more than one offense - a ‘scatter shot warrant’ - violates
Section 3, Rule 126 of the [R]evised Rules of Court and is ‘totally null and void.’" 19(emphasis in the original)

Nevertheless, the trial court deemed appellant’s arrest as valid. It emphasized that he had shot at the officers who were
trying to serve the void search warrant. This fact was established by the testimonies of several police officers, 20 who were
participants in the raid, and confirmed by the laboratory report on the paraffin tests conducted on the firearms and
appellant.21 Additionally, the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit,
impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid. 22 The trial
court concluded that the testimonies of these officers must prevail over appellant’s narration that he was not in his house
when the raid was conducted.

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

"Under the circumstances, the policemen ‘had authority to pursue and arrest Walpan Ladjaalam and confiscate the
firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm.’
Under Rule 113, Section 5 (a), of the Rules of Court, ‘A peace officer or a private person may, without a warrant, arrest a
person xxx (w)hen in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense.’ An offense is committed in the presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the
disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of
accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him,
the accused was engaged in the commission of a crime, and was pursued and arrested after he committed the crime of
shooting at the policemen who were about to serve the Search Warrant."23

As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine
containing seventeen live ammunition)24 used by appellant against the police elements, two M14 magazines, and three
other M16 rifle magazines.25 The trial court observed that these items were in "plain view" of the pursuing police officers.
Moreover, it added that these same items were "evidence [of] the commission of a crime and/or contraband and therefore,
subject to seizure"26 since appellant "had not applied for a license to possess firearm and had not been given authority to
carry firearm outside his residence."27

For being incredible and unsupported by evidence, appellant’s claim that the items that were seized by the police officers
had been planted was disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to
incriminate him, they could have done so during the previous raids or those conducted after his arrest. To its mind, it was
unbelievable that they would choose to plant evidence, when they were accompanied by the barangay chairman and a
radio reporter who might testify against them. It then dismissed these allegations, saying that frame-up, like alibi, was an
inherently weak defense.28

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

"The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr.
clearly established that Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or
methamphetamine hydrochloride, a regulated drug, was sold, and where persons or customers bought and used shabu or
methamphetamine hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an aluminum
foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its
existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances,
including evidence of the general reputation of the house, or its general reputation among police officers. The
uncorroborated testimony of accused Walpan Ladjaalam a.k.a.Warpan’ that he did not maintain an extension house or a
room where drug users who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of
Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged
that there were four (4) occupants who rented that extension house. He knew the name of only one of the four occupants
who are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorroborated, Walpan’s testimony was
not elaborated by evidence as to when or for how long was the extension house rented, the amount of rental paid, or by
any other document showing that the extension house was in fact rented. The defense of denial put up by accused
Walpan Ladjaalam a.k.a. 'Warpan’ is a weak defense. Denial is the weakest defense and cannot prevail over the positive
and categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence,
are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the
testimony of credible witnesses who testify on affirmative matters. As between the positive declaration of the prosecution
witnesses and the negative statements of the accused, the former deserve more credence." 29

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

"x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search
warrant constitutes the crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with
direct assault[,] considering that no policeman was hit and injured by the accused and no circumstance was proved to
qualify the attempted killing to attempted murder.

"The accused Walpan Ladjaalam a.k.a. ‘Warpan’ cannot be held liable [for] the crime of Violation of Section 16, Article III,
in relation to Section 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as
amended, because the fifty (50) pieces of folded aluminum foils having a total weight of 1.7426 grams all containing
methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as evidence against him
considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and
void as it was issued for more than one offense, and were not found in ‘plain view’ of the police officers who seized them.
Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle with
Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with
twenty (20) and twenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the
other firearms and ammunition did not testify in court. The blue bag containing assorted coins cannot be returned to the
accused Walpan Ladjaalam a.k.a. ‘Warpan’because according to the accused the blue bag and assorted coins do not
belong to him[;] instead the said assorted coins should be turned over to the National Treasury." 30

The Issues
In his Brief, appellant submits the following Assignment of Errors:
I
"The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who
went to his house to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police
officer.
II
"The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the
firefight and where the house of the appellant [was] located.
III
"The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim
of the appellant that the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police." 31
In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for ocular inspection, (b)
credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper
crimes and penalties to be imposed on appellant.

The Court’s Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He
argues that an ocular inspection would have afforded the lower court "a better perspective and an idea with respect to the
scene of the crime."32 We do not agree.

We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the
prosecution witnesses.33 We note in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the
subject premises to give the lower court a fairly good idea of appellant’s house. 34 Viewing the site of the raid would have
only delayed the proceedings.35 Moreover, the question whether to view the setting of a relevant event has long been
recognized to be within the discretion of the trial judge. 36 Here, there is no reason to disturb the exercise of that
discretion.37
Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses. 38 Suffice it to state that the trial court’s
assessment of their credibility is generally accorded respect, even finality. 39 After carefully examining the records and
finding no material inconsistencies to support appellant’s claim, we cannot exempt this case from the general rule. 40 Quite
the contrary, the testimonies of these witnesses positively showed that appellant had fired upon the approaching police
elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol Jr.41 testified thus:

"PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And it’s there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You said you were fired upon?
A: More or less, five (5) meters.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will
reform that question.
Q: Who opened the gate Mr. Witness?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
A: Yes.
Q: Now, when this gate was opened, you said you went inside the house, right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the
ground floor. We went inside the sala on the ground floor of his house[;] I saw two old woman.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?
A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on
the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went
upstairs to the second floor of the house.
Q: Were you able to go to the second floor of the house?
A: Yes.
Q: What happened when you were already on the second floor?
A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went
inside the bedroom [o]n the second floor and he went immediately and jumped from the window of his house x x x leading
to the roof of the neighbor’s house.
xxx xxx xxx
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roofing of the neighbor’s house?
A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to
arrest Walfan Ladjaalam.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit
especially SPO1 Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam."42
What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos, 43 as follows:
"Q: What did you notice [o]n the second floor?
A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, ‘do not fire at the second
floor because there [are] a lot of children here.’
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?
A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 rifle which you said you recovered from the sale set?
A: Yes.
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?
A: 1555225 and I put my initial, RJL.
FISCAL NUVAL:
This is already marked as our Exhibit ‘B-3’ with magazine, one magazine and seven round [ammunition].
Q: After recovering this, what did you do with this firearm?
A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the
investigator.
Q: Where did you turn it over?
A: At the crime scene.
Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Why?
A: I put x x x markings.
xxx xxx xxx
COURT:
So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?
A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?
A: Found with [ammunition].
xxx xxx xxx
Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?
A: I turned [them] over to the investigator.
Q: Can you identify them?
A: Yes, because of my initials[.]
Q: Where are your initials?
A: On the magazines.
Q: RJL?
A: RJL."44
These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the
raid. Both of his hands as well as the weapons, particularly the M-14 which he had used, were positive for gunpowder
nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court:
"Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?
A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on
his hands for gun powder nitrates.
Q: But, most likely, he fired a gun?
A: Yes.
xxx xxx xxx
PROSECUTOR NUVAL:
Q: What about, Madam Witness this Exhibit ‘B-3’, which is the M14 rifle. What did you do with this?
A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of
brown residue on the bolt, chamber and in the barrel.
Q: And, that indicates Madam Witness...?
A: It indicates that the gun was fired.
Q: Recently?
A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x.
COURT:
Q: There is also black residue?
A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit ‘B-3-A’.
COURT:
Q: The firing there indicates that the gun was recently fired, during the incident?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor."45 (emphasis supplied)

Duly proven from the foregoing were the two elements46 of the crime of illegal possession of firearms. Undoubtedly, the
established fact that appellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of
the firearm or weapon and his possession thereof. Sufficing to satisfy the second element was the prosecution’s
Certification47 stating that he had not filed any application for license to possess a firearm, and that he had not been given
authority to carry any outside his residence.48 Further, it should be pointed out that his possession and use of an M-14 rifle
were obviously unauthorized because this weapon could not be licensed in favor of, or carried by, a private individual. 49

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He
claims that the items seized from his house were "planted," and that the entire Zamboanga police force was out to get him
at all cost.

This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly
difficult to disprove.50 Absent any showing of an improper motive on the part of the police officers, 51 coupled with the
presumption of regularity in the performance of their duty, such defense cannot be given much credence. 52 Indeed, after
examining the records of this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial. 53 He testified thus:

"Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?
A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us
whose signature is this appearing above the typewritten name
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: ‘that I was resting and
sleeping when I heard the gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x
x we were attacked by armed persons.. and I was apprehended by the persons who attacked x x x our house’; [the] house
you are referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring to [as] your
house or the house of your neighbors [from] which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: ‘that [o]n that afternoon of September 24, 1997, I
was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women
and my children, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo
Muslim[;] which is which now, you were in your house or you were in your neighbors[‘] house at that time when you heard
gunshots?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya
Riohondo Bo. Campo Muslim, is x x x not correct?
A Yes, Sir. This is not correct."54

Crime and Punishment


The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted
homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly
sentenced to reclusion perpetua. His guilt was clearly established by the testimony of Prosecution Witness Rino
Bartolome Locson, who himself had used the extension house of appellant as a drug den on several occasions, including
the time of the raid. The former’s testimony was corroborated by all the raiding police officers who testified before the
court. That appellant did not deny ownership of the house and its extension lent credence to the prosecution’s story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault55 with multiple counts of attempted homicide. It
found that "[t]he act of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve
a search warrant x x x" constituted such complex crime.56

We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and
maximum periods, while attempted homicide carries the penalty of prision correccional.57 Hence, for the present complex
crime, the penalty for direct assault, which constitutes the "most serious crime," should be imposed and applied in its
maximum period.58

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of
the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6
years of prision correccional to 8 years of prision mayor.

The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new
law. It contends that under the facts of the case, the applicable law should have been PD 1866, as worded prior to its
amendment by RA 8294.

The trial court’s ruling and the OSG’s submission exemplify the legal community’s difficulty in grappling with the changes
brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which
provides as follows:

"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments
Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its
maximum period and a fine of not less than Fifteen thousand pesos (₱15,000) shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun,
.380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition:Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (₱30,000) shall be imposed if the
firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber
.357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or
three: Provided, however, That no other crime was committed by the person arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection,
sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection,
sedition, or attempted coup d’etat.
"The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any
public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by
such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of
the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any
legal authority to be carried outside of their residence in the course of their employment.

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his
residence without legal authority therefor."

Citing People v. Jayson,59 the OSG argues that the foregoing provision does not cover the specific facts of this case.
Since another crime -- direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of
simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there
was no killing in this case, illegal possession cannot be deemed as an aggravating circumstance under the third
paragraph of the provision. Based on these premises, the OSG concludes that the applicable law is not RA 8294, but PD
1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime is
committed at the same time.60

Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms,
in addition to direct assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it
could not have been ignorant of the proviso61 in the second paragraph, it seemed to have construed "no other crime" as
referring only to homicide and murder, in both of which illegal possession of firearms is an aggravating circumstance. In
other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of
firearms. In this case, the other crime committed was direct assault with multiple attempted homicide; hence, the trial court
found appellant guilty of illegal possession of firearms.

We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading
thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of
simple illegal possession of firearms. Hence, if the "other crime" is murder or homicide, illegal possession of firearms
becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted
homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. 62 In this case, the plain meaning of RA 8294’s simple
language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law
demonstrates the legislative intent to favor the accused.63 Accordingly, appellant cannot be convicted of two separate
offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime
committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an
aggravating circumstance.

We reject the OSG’s contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this
case.1âwphi1 When the crime was committed on September 24, 1997, the original language of PD 1866 had already
been expressly superseded by RA 8294 which took effect on July 6, 1997. 64 In other words, no longer in existence was
the earlier provision of PD 1866, which justified a conviction for illegal possession of firearms separate from any other
crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the specificproviso that "no
other crime was committed."

Furthermore, the OSG’s reliance on People v. Jayson65 is misplaced. True, this Court sustained the conviction of appellant
for illegal possession of firearms, although he had also committed homicide. We explained, however, that "the criminal
case for homicide [was] not before us for consideration."

Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second
paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of
firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second
paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph.
Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which
normally carries a penalty heavier than that for direct assault. While the penalty for the first isprision mayor, for the second
it is only prision correccional. Indeed, the accused may evade conviction for illegal possession of firearms by using such
weapons in committing an even lighter offense,66 like alarm and scandal67 or slight physical injuries,68 both of which are
punishable by arresto menor.69 This consequence, however, necessarily arises from the language of RA 8294, whose
wisdom is not subject to the Court’s review. Any perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest
intendment and language of the legislature. Our task is constitutionally confined only to applying the law and
jurisprudence70 to the proven facts, and we have done so in this case.

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of
two offenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2
years and 4 months to 6 years of prision correccional; and (2) maintaining a drug den, for which he was correctly
sentenced by the trial court to reclusion perpetua. Costs against appellant.

Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of
RA 8294.

SO ORDERED.

Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.