Republic of the Philippines

REGIONAL TRIAL COURT

Second Judicial Region
BRANCH XIX (19)
Cauayan City, Isabela

PEOPLE OF THE PHILIPPINES

Plaintiff,
CRIM. CASE NO. 19-11158
to 11160
-versus-
For Violation of Sect. 5, 11, &
ABHDUL JHAKUL y MUSALAB 12, Art II, RA 9165
Accused,
X---------------------------------x

MOTION TO DISMISS ON
DEMURRER TO EVIDENCE
(WITH LEAVE OF COURT)

THE ABOVE-NAMED ACCUSED ABHDUL JHAKUL y

MUSALAB, by counsel, with prior leave granted by this Honorable Court,
most respectfully demurs the evidence of the prosecution through this Motion
to Dismiss on Demurrer to Evidence (Demurrer to Evidence for brevity)
pursuant to Section 23, Rule 119 of the Revised Rules on Criminal Procedure
and for this purpose, most respectfully states that:

PREFATORY STATEMENT

The true hallmark of a civilized society is the guarantee of life, liberty,

and property of its citizens. Any unnecessary and unreasonable intrusion of
the State on the guaranteed rights of its inhabitants must be viewed with
extreme caution lest it will lead to the arbitrary flexing of the government’s
muscle.

For this purpose, no less than the 1987 Constitution of the Philippines
enumerates, in no uncertain terms, the rights of every person to guarantee that
life, liberty, and property will not be taken so lightly. More so, the
Fundamental Law emphasizes in strongest terms the rights of an accused
before, during and after the trial. Indeed, at the core of our criminal justice
system is the presumption of innocence of the accused until proven guilty.
Therefore, the prosecution must rely on the strength of its case rather than on
the weakness of the defense.

The basic principle in criminal prosecution is that accusation is not

synonymous with guilt. The accused is presumed innocent until the contrary
is proved by the prosecution. If the prosecution fails, it utterly fails, even
if the defense is weak or, indeed, even if there is no defense at all.1

Thus, the Hight Court, in Patula vs. People of the Philippines2,

categorically instructed:

“In the trial of every criminal case, a judge must rigidly test the
State’s evidence of guilt in order to ensure that such evidence adheres to
the basic rules of admissibility before pronouncing an accused guilty of
the crime charged upon said evidence. Nothing less is demanded of the
judge; otherwise, the guarantee of due process of law is nullified. The
accused need not adduce anything to rebut evidence that is discredited
for failing the test. Acquittal should then follow3.”

THE CASE

Accused was charged of the crime of violation of Section 5, Art II,

Republic Act No. 9165 otherwise known as the Dangerous Drugs Act of 2002
in the Information filed before this Honorable Court which reads as follows:

“That on or about the 19th of January 2017 in the Municipality of

Alicia, Province of Isabela, Philippines and within the jurisdiction of this
Honorable Court, the said accused, not being allowed or authorized by law
to sell, deliver, and give away to another and distribute dangerous drugs, did
then and there willfully, unlawfully, and feloniously, and knowingly sell, more
or less 0.0882 grams of methamphetamine hydrochloride locally known as
shabu, a dangerous drugs to the damage and prejudice of the government.

CONTRARY TO LAW”

The same accused also stands charged of the crimes of violation of

Section 11 of the same law, for possession of illegal drugs docketed as
Criminal Case No. 19 11158 the Information of which reads:

“That on or about the 19th of January 2017 in the Municipality of

Alicia, Province of Isabela, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without being authorized by law
to possess, did then and there willfully, unlawfully, knowingly, and
feloniously, have in his possession and control, more or less 4.5924 grams of
methamphetamine hydrochloride commonly known as shabu, a dangerous
drugs, to the damage and prejudice of the government.

CONTRARY TO LAW”

An Information for violation of Section 12 of the same law, docketed

as Criminal Case No. 19-11160 was also filed before the said accused, which
reads:
 “that on or about the 19th of January 2017 in the Municipality of Alicia,
Province of Isabela, Philippines and within the jurisdiction of this Honorable
Court, the said accused, did then and there willfully, unlawfully and
feloniously, have under his control assorted plastic sachet, assorted aluminum
foil, lighter and scissors, and equipment, instruments, apparatus or
paraphernalia intended or fit for smoking, consuming, administering or
ingesting any dangerous drug into the body, without any authority of law, to
the damage and prejudice of the government.

CONTRARY TO LAW.”

On February 15, 2017, the accused was arraigned in Criminal Case N.

20-11159 while on May 22, 2017, he was arraigned in the two other cases in
which he pleaded not guilty to all the aforesaid charges. Thereafter, a joint
pre-trial was conducted on July 03, 2017.

In the meanwhile, accused through counsel then filed a Petition for Bail
in Criminal Case No. 20-11159, contending that the evidence against him was
weak. Said petition was then set for summary hearing so that the prosecution
could adduce evidence to show that the evidence against him was rather
strong.

Unfortunately for the prosecution, it was only able to present PO 2

Jayson Pascua on January 15, 2018 despite subpoena for the other prosecution
witnesses to appear and testify before the court. Thus, in an Order on February
5, 2018, this Honorable Court granted the petition of the accused to post bail
in the said criminal case finding that the evidence of guilt is not strong.
Accused then promptly posted his bail bond.

The presentation of the evidence-in -chief for the prosecution then

ensued. On 10 September 2018, the prosecution was able to present SPO4
Gilbert Bustamante, one of the arresting officers, who identified the Joint
Affidavit of Arrest and thereafter adopted the said document as his direct
testimony. He also identified the accused in an open-court identification. The
court then scheduled the cross-examination of the said witness on 29 October
2018.
 But the hearing set on 29 October 2018 was postponed and thereafter
set on 14 January 2019. Again, the 14 January 2019 did not push through as
the said witness was not in court. He was not again in court on 18 February
2019. For this failure of the witness to appear despite reasonable notice, the
defense moved to strike out the testimony of the said witness which the
Honorable Court granted in its Joint Order dated February 18, 2019.

Parenthetically, despite the subpoena given to the other witnesses, in

the persons of SPO3 Jay Agustin, SPO2 Darwin Alog, and PO3 Marvin
Echanes, the said prosecution witnesses never appeared before the Honorable
Court. It is for this reason that the defense likewise moved for the termination
of the evidence for the prosecution. Without any objection from the
prosecution, the court granted the same and, in an order, dated 18 February
2019, the prosecution was given ten (10) days from notice within which to file
formal offer of evidence, furnishing a copy thereof to the defense and the
defense shall have ten (10) days to comment. The tentative hearing for the
presentation of the evidence for the defense was then set on April 29, 2019

On April 29, 2019, the defense informed the Honorable Court that the
prosecution has yet to file its Formal Offer of Evidence. Thus, the Court gave
another ten (10) days for the prosecution to file its formal offer. On the next
hearing date however on 20 May, 2019, the prosecution again was not able to
file the said formal offer. The defense then moved that the right of the
prosecution to file its formal offer shall be deemed waived. However, the
Court ruled that the prosecution should instead be given five (5) days from the
said date or until 25 May 2019 within which to file its formal offer of
evidence.

During the hearing on 11 June 2019, the prosecution again was not able
to file its formal offer. The defense was therefore constrained to reiterate its
motion that the prosecution should be declared to have waived its right to file
its formal offer of evidence and consequently the presentation of the evidence
for the prosecution should be terminated. The defense likewise intimated
before the Honorable Court that it will file motion to dismiss on demurrer to
evidence due to the inherent weakness of the prosecution's evidence.

In an open court order, the Honorable Court resolved that the

prosecution be given, for one last time, five (5) days from 11 June 2019 or
until 16 June 2019 within which to file its formal offer. The Honorable Court
further ruled that after the expiration of the said date and that the prosecution
shall still fail to file the formal offer, it will be construed as a waiver on its
part to file the same. The Court likewise favorable ruled on the intention of
the defense to file its demurrer to evidence and thus, a leave was given by the
Honorable Court for the defense to file the said demurrer to evidence ten (10)
days from the prosecution's filing of the formal offer of evidence. The
accused, through counsel, finally received the Formal Offer of Evidence of
the prosecution on 20 June 2019. Thus, the accused has ten (10) days from
receipt thereof, or until 30 June 2019 to file the Demurrer to Evidence. Since
this Demurrer to Evidence shall be filed today, 26 June 2019, the same is
seasonably filed.

GROUND FOR DISMISSAL

THE PROSECUTION HAS MISERABLY FAILED TO PROVE THE

GUILT OF THE ACCUSED BEYOND A REASONABLE DOUBT.

For clarity, herein accused shall discussed his arguments in seriatim.

ARGUMENTS AND DISCUSSION

The prosecution failed to authenticate the pieces of documentary

evidence that it included in its Joint Formal Offer of Evidence; therefore,
the said pieces of documentary evidence must be expunged off from the
record

Despite the length of time given to the prosecution to file its formal
offer of evidence, from the Order dated 18 February 2019, reiterated during
the hearing on 29 April 2019, then on 20 May 2019, and finally on 11 June
2019, the prosecution still was not able to conform to the court order to file
the same. It was only on 20 June 2019, or after four (4) long months that the
prosecution was finally able to file its formal offer.

The Rules of Court provides that the court shall consider no evidence
which has not been formally offered. Rule 132, Sections 34 and 35 of the
Rules of Court provide in no uncertain terms, thus:

Sec. 34. Offer of evidence. The court shall consider no

evidence which has not been formally offered. The purpose for which
the evidence is offered must be specified.

Sec. 35. When to make offer. As regards the testimony of a

witness, the offer must be made at the time the witness is called to
testify.

Documentary and object evidence shall be offered after the

presentation of a party's testimonial evidence. Such offer shall be done
orally unless allowed by the court to be done in writing.
 A formal offer is necessary because judges are mandated to rest their
findings of facts and their judgments only and strictly upon the evidence
offered by the parties at the trial4. Its function is to enable trial judge to
know the purpose or purposes for which the proponent is presenting the
evidence5. On the other hand, this allows opposing parties to examine the
evidence and object to its admissibility6.

Strict adherence to the said rule is not a trivial matter. The High Court
in Constantino vs. Court of Appeals7 strongly lectured:

"Formal offer of one's evidence is deemed waived after failing to submit

it within a considerable period of time. The court cannot admit an
offer of evidence made after a lapse because to do so would condone
an inexcusable laxity if not non-compliance with a court order which,
in effect, would encourage needless delays and derail the speedy
administration of justice8."

This strict adherence to the rule is further emphasized in the Heirs of Pedro
Pasag vs. Sps. Parocha9 when the Court augustly cautioned:

"Applying the aforementioned principle in this case, we find that

the trial court has reasonable ground to consider that petitioners had
waived their right to make a formal offer of documentary or object
evidence. Despite several extensions of time to make their formal offer,
petitioners failed to comply with their commitment xxx.

Thus, the trial court is bound to consider only the testimonial

evidence presented and exclude the documents not offered.
Documents which may have been identified and marked as exhibits
during pre-trial or trial which were not formally offered in
evidence cannot in any manner be treated as evidence. Neither can
such unrecognized proof be assigned any evidentiary weight and
value. It must be stressed that there is a significant distinction between
identification of documentary evidence and its formal offer. The former
is done in the course of the pre-trial, and trial is accompanied by the
marking of the evidence as an exhibit; while the latter is done only when
the party rests its case. The mere fact that a particular document is
identified and marked as an exhibit does not mean that it has
already been offered as part of the evidence. It must be emphasized
that any evidence which a party desires to submit for the
consideration of the court must formally be offered by the party,
otherwise, it is excluded and rejected."
 Notably, during the Preliminary Conference Report, the prosecution
marked the following documentary exhibits:

Exhibit "A" Joint Affidavit of Arrest consisting of two

pages dated January 19, 2017

Exhibit "A-1" Second page of the said Joint Affidavit of

Arrest

Exhibit "B" Affidavit of Poseur-Buyer consisting of two

pages

Exhibit "B-1" Second page of the said Affidavit of Poseur-

Buyer

Exhibit "C" Affidavit of Investigator dated January 19,

2017

Exhibit "D" Police Report/Certification dated January 19,

2017

Exhibit "E" Request for Laboratory Examination dated

January 19, 2017

Exhibit "F" Photograph of the evidence collected

Exhibit "G" Photograph of the suspect

Exhibit "H" Photograph of the motorcycle

Exhibit "I" Pre-Operation Coordination

Exhibit "J" Chemistry Report NO. D-018 - 2017

Exhibit "K", "K-1", to "K-3" Picture of Inventory of Evidence Collected

Exhibit "L" Inventory of Evidence Collected

 However, with the singular exception of the Police Report/Certification
dated January 19, 2017 marked as Exhibit "D" and the Affidavit of
Investigator marked as Exhibit "C" which were identified by PO2 Jayson M.
Pascua during the hearing on the petition for bail, all other documentary
exhibits earlier marked by the prosecution and which were appended in the
record of these consolidated cases were not properly authenticated and
identified in accordance with the Rules during the trial. It follows that all of
the attachments made by the prosecution should be expunged and
excluded from the case record for not having been properly marked,
exhibited, and offered as part of the evidence-in-chief for the prosecution.

Concededly, the rule discussed above may call for some relaxation. The
prosecution may then contend that rules of procedure should not be applied in
a very rigid, technical case as they are devised chiefly to secure and not defeat
justice.

Be that as it may, but the Supreme Court has already laid down the
narrow exception to the relaxation of the rule on filing of formal offer of
evidence, none of which can the prosecution use to support its cause.

The only possible instance in which this rule may be relaxed is when
there is voluminous documentary evidence which is inherently difficult to
collate, collect, and tabulate. The High Court ruled in Republic of the
Philippines vs. Sps. Gimenez11:
"Undeniable from the records of the case is that petitioner was
vigorous in prosecuting the case. The most tedious and crucial stage
of litigation and presentation has been accomplished. x x x It presented
vital testimonial and documentary evidence consisting of
voluminous record proving the gross disparity of the subject funds to
spouses Gimenezes' combined declared income which must be
reconveyed to the Republic for being acquired in blatant violation of
the Constitution and the Anti-Graft Statutes.

This Court is not unmindful of the difficulty in gathering

voluminous documentary evidence in cases of forfeiture of ill-gotten
wealth acquired throughout the years. It is never easy to prosecute
corruption and take back what rightfully belongs to the government and
the people of the Republic12."

Similarly, Heirs of Pasag vs. Sps. Parocha13 mentioned the said

exception to this rule, thus:
“The pre-trial guidelines and Sec. 35 of Rule 132 jointly
considered, it is made clear that the party who terminated the
presentation of evidence must make an oral offer of evidence the very
 day the party presented the last witness. Otherwise, the court may
consider the party's documentary or object evidence waived. While Sec.
35 of Rule 132 says that the trial court may allow the offer to be done
in writing, this can only be tolerated in extreme cases where the
object evidence or documents are large in number, say from 100
and above, and only where there is unusual difficulty in preparing
the offer14."

It can be gleaned from these clear pronouncements that this rule may
only be relaxed when object evidence or documents are voluminous making
it difficult to prepare such offer, and always coupled with the vigorous
participation of the prosecution in prosecuting the case. Unfortunately for the
prosecution, it never participated very vigorously in this case, and it cannot
contend that its object evidence or documents are overwhelmingly
voluminous. The prosecution has thus defaulted from its filing of its formal
offer of evidence. For such matter, the rule that evidences not formally offered
are deemed excluded stands.

With those evidences not submitted for the consideration of the court,
it necessarily follows that the prosecution was only able to concoct barren and
baseless allegations and accusations which were never synonymous with
guilt. From these discussions alone, acquittal of the accused on failure of the
prosecution to adduce evidence to make out a case necessarily follows.

Even if they be admitted, the same cannot be utilized in order to

pinpoint the guilt of the accused as to the charges that he currently faces before
this Honorable Court. To emphasize:

 In the Joint Affidavit of Arrest marked as Exhibit - "A", the

arresting officers were not presented in open court. It should
be noted that it was only SPO4 Gilbert R. Bustamante was
initially presented before the Court but his testimony was later
on stricken off the record in a Joint Order by this Honorable
Court dated 18 February 2019 for his failure to attend the
scheduled cross-examination of his testimony despite notice. The
other arresting officers SPO3 Jay A. Agustin and SPO2
Darwin G. Alog were never presented before the Court to
authenticate the content of the Joint Affidavit of Arrest. In
other words, the said Joint Affidavit of Arrest is self-serving and
not authenticated, which means that the accused was not given
the opportunity to confront the affiants in violation of his
constitutional right to be informed of the nature and cause of
the accusation against him and to meet the witnesses face to
face;
 The Affidavit of Poseur-Buyer marked as Exhibit - "B" was
also not properly authenticated and therefore is self-serving for
failure of the prosecution to secure the attendance of the poseur-
buyer in the person of PO3 Marvin Echanes. It should be noted
that the open-court testimony of the poseur-buyer is very much
needed in order to determine that indeed the illegal sale
transaction really took place. In this case, despite subpoena and
the widest latitude of time given to the prosecution, it still failed
to present the aforesaid poseur-buyer. Hence, the Affidavit of
Poseur-Buyer must also be excluded from the evidence of the
prosecution and should be expunged off from the record for gross
violation of the accused' constitutional right to be informed of
the nature and cause of the accusation against him and to
meet the witnesses face to face;

 The Request for Laboratory Examination marked as Exhibit

- "E" should likewise be excluded for failure of the prosecution
to present for an open-court testimony to affirm the content of
the said request, Police Senior Inspector Prospero A. Agonoy.
For this matter, the said documentary evidence is a mere scrap of
paper which if allows to stand would infringe upon the very
constitutional right of the accused to be informed of the nature
and cause of the accusation against him and to meet the witnesses
face to face;

The Photographs of the Evidence, Photographs of the

Accused, Photographs of the Motorcycle, and Photographs of
Inventory of the Evidence Collected marked respectively as
Exhibit "F", Exhibit "G", Exhibit "H", and Exhibit "K",
"K-1", "K-2" & "K-3" should likewise be excluded and
expunged off from the record for not having been marked,
identified, and authenticated in accordance with the Rules of
Court. The ones who took the said photograph were never
presented before the open-court and therefore the accused was
never given the chance to confront the said witnesses. This is
again a gross violation of the accused' constitutional rights to be
informed of the nature and cause of the accusation against
him and to meet the witnesses face to face;

 Finally, the Inventory of Evidence collected in compliance to

Sec 21 of RA 9165 marked as Exhibit - "L" should also be
excluded and expunged off from the record for not having been
properly marked, identified, and authenticated in violation of the
Rules of Court. It should be noted that the said Inventory of
Evidence Collected does not bear any signature of the evidence
custodian who prepared the said inventory nor concurred in by
 the investigator on-case. The insulating witnesses appearing as
witnesses in the alleged inventory in the person of Brgy.
Kagawad Francis G. Naoloban, Brgy. Kagawad Zaldy C.
Cariño both of Brgy. M.H. Del Pilar, Alicia, Isabela, and Bombo
Radyo reporter Exequiel Quilang were again never presented
before the open court and therefore the inventory becomes
extremely doubtful. Again, this is in violation of the rights of the
accused to be informed of the nature and cause of accusation
against him and to meet the witnesses face to face.

The lone testimony of PO2 Jayson Pascua is very weak enough to cast
even the minutest trace of guilt on the part of the accused

It must be remembered that there is only one witness that the

prosecution has successfully presented before the trial court and he was only
presented during the petition for bail. Further, it should be noted that the
testimony of SPO4 Bustamante was stricken off from the record as found on
the 18 February 2019 Order of this Honorable Court since the said witness
failed to appear for cross-examination despite due notice. While the chemist
could have been presented before the Court, in the record of the accused, such
is not found.

Now then, even if the Court were to consider the singular testimony of
PO2 Jayson Pascua as the prosecution's evidence-in-chief, the said testimony
cannot and will not cast any hinge of guilt on the part of the accused. The said
lone testimony cannot naturally turn over the constitutional presumption of
innocence accorded to the accused.

During the petition for bail, PO2 Jayson Pascua testified among others,
that as the police investigator, the pieces of drug related evidences were turned
over to him by the seizing officers as well as the accused who was turned over
to him by the arresting officers and that he prepared the case referral, the
requests for drug examination and laboratory examination and that the drug
related evidence was later turned over to the Santiago City Crime Laboratory
by PO2 Inocencio Dela Cruz, Jr.

This Honorable Court augustly observed that this testimony of the PO2
Jayson Pascua cannot give any strength to the prosecution's cause. In its Order
dated 05 February 2018, this Honorable Court magisterially pronounced:

"It is regrettable that with the singular testimony of PO2 Jayson

Pascua in the petition for bail, the court does not have the
wherewithal to determine the strength of the prosecution's
evidence. Admittedly, he did not have any participation in the
 actual buy-bust operation conducted by his fellow police officers
against the accused on January 19, 2017."

With that pronouncement, the testimony of PO2 Jayson Pascua is

therefore sidelined and will not in any way give weight to the contention of
the prosecution relative to these consolidated cases.

With no more evidence presented, it follows that the prosecution was

not able to successfully prove the existence of the elements of each of the
crimes imputed against the accused. In Criminal Case No. 11159, the accused
is charged with violation of Section 5, Article II, RA 9165. The elements of
the said crime are as follows: (1) the identity of the buyer and the seller, the
object and the consideration; and (2) the delivery of the thing sold and the
payment therefor."

In Criminal Case No. 11158, the accused is charged with violation of

Section 11, Article II, RA 9165, the elements of which are: (1) the accused is
in possession of an item or object, which is identified as a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely and
consciously possessed the drug."

Finally, in Criminal Case No. 11160, the accused is charged with

violation of Section 12, Article II, RA 9165, which has the following
elements: (1) the accused is in possession or control by the accused of any
equipment, apparatus or other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any dangerous
drug into the body, and (2) such possession is not authorized by law.

It is an elementary rule that in cases of illegal sale and illegal possession

of dangerous drugs, the dangerous drugs seized from the accused constitutes
the very corpus delicti of the offense. Thus, it is of utmost importance that the
integrity and identity of the seized drugs must be shown to have been duly
preserved. The chain of custody rule performs this function as it ensures that
unnecessary doubts concerning the identity of the evidence are removed.

For violation of Section 12, Article II, RA 9165, the presentation of the
said equipment, apparatus, or other paraphernalia which constitute the corpus
delicti of the offense should likewise be identified and presented in order to
dispel any doubt concerning their identity.

In both illegal sale and illegal possession of shabu, conviction cannot

be sustained if there is a persistent doubt on the identity of said drug. The
identity of the shabu must be established with moral certainty. Apart from
showing that the elements of possession or sale are present, the fact that the
shabu illegally possessed and sold is the same shabu offered in court must
likewise be established with the same degree of certitude as that needed
to sustain a guilty verdict15.

The chain of custody requirement performs this function in that it

ensures that unnecessary doubts concerning the identity of the evidence
are removed. Chain of custody is defined as "duly recorded authorized
movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from the
time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court for destruction." In People vs.
Havanal16, the Court expounded on the custodial chain procedure in this wise:

"As a method of authenticating evidence, the chain of custody

rule requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims to be. It would include testimony about every link
in the chain, from the moment the item was picked up to the time
it is offered in evidence, in such a way that every person who
touched the exhibit would describe ho and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received, and the condition
in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the
same.

While the testimony about a perfect chain is not always the

standard because it is almost always impossible to obtain, an
unbroken chain of custody becomes indispensable and essential
when the item of real evidence is not distinctive and is not readily
identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. The
same standard obtains in case the evidence is susceptible of
alteration or tampering - without regard to whether the same is
advertent or otherwise not - dictates the LEVEL OF STRICTNESS
in the application of the chain of custody rule."

Thus, as a general rule, four links in the chain of custody of the

confiscated items must be established as discussed in People vs. Nandi17:

"First, the seizure and marking, if practicable, of the illegal drug

recovered from the accused by the apprehending officer; second, the
 turnover of the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating officer of
the illegal drug to the forensic chemist for laboratory examination; and
fourth, the turnover and submission of the marked illegal drug seized
from the forensic chemist to the court.

Marking is the placing by the arresting officer or the poseur-

buyer of his or her initials and signature on the items after they
have been seized. It is the starting point in the custodial link. It is
vital that the seized items be marked immediately since the
succeeding handlers thereof will use the markings as reference. The
chain of custody rule also requires that the marking of the seized
contraband be done in the presence of the apprehended violator
and immediately upon confiscation."

The first chain of custody was therefore not established even in the
minutest attempt. The alleged poseur-buyer PO3 Marvin Echanes, PNP
Member of Alicia Police Station was not presented in open court. The
arresting officers SPO3 Jay A. Agustin and SPO2 Darwin G. Alog were not
also presented before the court. SPO4 Gilbert Bustamante, another arresting
officer, was presented but his testimony was later on stricken off from the
record. It should be noted that the testimonies of the poseur-buyer and the
arresting officers are vital for the establishment of an unbroken chain of
custody as their contribution to the chain is primordial. To stress, the poseur-
buyer and the arresting officers' participation marked the starting point
in the custodial link. Thus, without them, the link could not be
established.

Likewise, insulating witnesses appearing as witnesses in the alleged

inventory in the person of Brgy. Kagawad Francis G. Naoloban, Brgy.
Kagawad Zaldy C. Cariño both of Brgy. M.H. Del Pilar, Alicia, Isabela, and
Bombo Radyo reporter Exequiel Quilang were again never presented
before the open court and therefore the inventory becomes extremely
doubtful. It should further be noted that the said Inventory of Evidence
Collected does not bear any signature of the evidence custodian who prepared
the said inventory nor concurred in by the investigator on-case.

All in all, the prosecution failed to make out a case which leads to these
poorly built-up cases against the accused. The prosecution was given the
liberty of time to secure their witnesses aided with the subpoena from this
Honorable Court, but for reasons maybe known to the prosecution, the
prosecution miserably failed to do so. If indeed the prosecution has airtight
cases against the accused, it should have pursued it up with vigorous barrage
of prosecution. But it did not.
 Truly in these joint cases, the prosecution rides for legal war, but not
for victory!

The propriety of the dismissal of the case on a demurrer to evidence

Having extensively discussed that the prosecution has insufficient

evidence to support the judgment of conviction against herein accused, it
follows that this Demurrer to Evidence is properly filed.

Section 23, Rule 119 of the Rules of Court provides:

"Sec. 23. After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on its
own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.

Demurrer to evidence, as jurisprudentially defined, is an

objection by one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient, in point of law,
whether true or not, to make out a case or sustain the issue. The party
demurring challenges the sufficiency of the whole evidence to sustain
a verdict. The court, in passing upon the sufficiency of the evidence
raised in a demurrer, is merely required to ascertain whether there is
competent or sufficient evidence to sustain the indictment or to support
a verdict of guilt".

On another point, the accused is well-informed of the principle

that "the granting of a demurrer to evidence should x x x be exercised
with caution, taking into consideration not only the rights of the
accused, but also the right of the private offended party to be vindicated
of the wrongdoing done against him, for if it is granted, the accused is
acquitted and the private complainant is generally left with no more
remedy19."

However, it must be borne in mind that in this instant case, there

is no private offended party to speak of. This is a legal battle between
the State and the accused, with no private complainant sandwiched in
between. It follows that this demurrer of evidence may be granted
without any offense to a private offended party.

On a side note, the motor vehicle20 of the accused has also been
impounded at the Alicia Police Station, Alicia, Isabela by virtue of the
 filing of the above entitled cases. As the prosecution was not able to
make out a case and was not able to adduce evidence which can sustain
the guilt of the accused, it follows that the release of the said motor
vehicle to the accused is now in order as the said motor vehicle was
never established by the prosecution to be an instrument which
facilitated him in the commission of the crime. Again, the commission
of the crime was not established by the prosecution, hence, there is no
more a need to restrain the accused from now possessing the said motor
vehicle.

CONCLUDING STATEMENT

To recapitulate, considering that no evidence was presented by the

prosecution directly pointing to the accused as the culprit in each of the cases,
the accused must be acquitted pursuant to her constitutional right to be
presumed innocent.

The lack of clear and positive evidence and the lack of material witness
or witnesses that will testify on the overt acts allegedly committed by the
accused rendered the already insufficient evidence for the prosecution
inherently weak and insufficient to prove the guilt of the accused beyond a
reasonable doubt.

Considering all the foregoing factual and legal circumstances attending

the instant criminal cases against herein accused, it is the strong contention of
herein accused that the instant criminal case filed against them should be
dismissed at its present stage on the ground that the evidence presented and
offered by the prosecution is insufficient to prove her guilt beyond a
reasonable doubt.

Since 2017 when these cases commenced, herein accused has never
doubted the power of this Honorable Court to dispense justice. He never
missed any opportunity to attend every hearing of this case because he
believes that such active participation will eventually give him the justice he
rightfully deserves. It is now mid-2019. With the prosecution utterly failing
in its duty to prove through the required quantum of evidence the guilt of this
accused, it is high time to grant to herein accused the prayer he has had more
than two years ago until today - the immediate dismissal of these cases.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Court that this Motion to Dismiss on Demurrer to Evidence
With Leave of Court be ADMITTED and DULY CONSIDERED in
determining that the evidence presented by the prosecution to prove the guilt
of the accused, ABHDUL JHAKUL y MUSALAB is INSUFFICIENT to
convict him of the crimes charged which would consequently warrant the
DISMISSAL thereof. In correlation thereof, the accused prays that the motor
vehicle which is presently impounded at the Alicia Police Station be
RELEASED in the accused' favor. Finally, the bail bond posted by the
accused for his temporary liberty be likewise RELEASED in his favor.

Other reliefs, just and equitable under the circumstances, are likewise
prayed for.

Santiago City, for Cauayan City, Isabela. 25 June 2019.

THE LAW OFFICES OF JOE G. LAGARTEJA

Counsel for the Accused Purok 3 Saranay, Cabatuan, Isabela
E-mail: joe_lagarteja@yahoo.com
Mobile No.: 09267891726
By:

ATTY. JOE G. LAGARTEJA

MCLE Compliance No. V-008089/06-04-15
PTR No. 2597820/Santiago City/01-03-2019 Life Member IBP No.
021277/IBP National Office, Pasig City/01-05-2018
Roll No.37959/07-24-92
 ATTY. JOE G. LAGARTEJA
MCLE Compliance Exempted/ Passed the Bar Exams 26 April 2018
PTR No. 2660682/Santiago City/03-08-2019
IBP No. 067340/01 - 12-2019 Roll No.71583/ 06-07-2018

With My Conformity:
ABHDUL M. JHAKUL
Accused

NOTICE OF HEARING:
THE GOVERNMENT PROSECUTOR
Office of the Provincial Prosecutor
Cauayan City, Isabela

ATTY. JOE G. LAGARTEJA

Branch Clerk of Court Regional Trial Court, Branch 19
Cauayan City, Isabela

Greetings: Please take notice that the undersigned counsel shall submit the
foregoing motion for the kind consideration and resolution of the Honorable
Court on 01 July 2019, Monday, at 8:30 o'clock in the morning. Thank you.

ATTY. JOE G. LAGARTEJA

Copy furnished:
THE GOVERNMENT PROSECUTOR
Office of the Provincial Prosecutor
Cauayan City, Isabela