Republic of the Philippines

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
OFFICE OF THE PROVINCIAL PROSECUTOR
Hinulgan

PMAJ ARJHAY A. DIAZ NPS DOCKET NO. VIII-13-INQ-22A-00002

Complainant, and VIII-13-INQ-22A-00003

For: Violation of Section 28 RA 10591

And violation of COMELEC GUN BAN

-versus-

MARLON GARCIA y SANTOS,

Respondent,
x------------------------------------------x

MOTION FOR RECONSIDERATION

COMES NOW, the complainant and unto this Honorable Office, most
respectfully move for reconsideration of the Resolution dated March 26,
2022 and promulgated April 4, 2022, and in support thereof, respectfully
states;

1. In the Resolution dated March 26,2022 (a copy of the same is

hereto attached as Annex “A”) the Honorable Office of the
Provincial Prosecutor ruled;

“WHEREFORE, in view of the foregoing, the undersigned

respectfully recommends for the DISMISSAL of the charged for
violation of Section 28, RA 10591. However, he recommends the
filling of Information for violation of the COMELEC Gun Ban against
the respondent.”

2. In issuing the above Resolution the Honorable Office of the

Provincial Prosecutor used as basis Section 29, RA 10591 which
reads;

Sec.29.Use of Loose Firearm in the Commission of a Crime-The

use of a loose firearm, when inherent in the commission of a
crime punishable under the Revised Penal Code or other
special laws, shall be considered as an aggravating
circumstance; Provided, That if the crime committed with the use
of a loose firearm is penalized by the law with a maximum penalty
which is lower than that prescribed in the preceding section for

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 illegal possession of firearm, the penalty for illegal possession of
firearm shall be imposed, in lieu of the penalty for the crime
charged; Provided, further, That if the crime committed with the
use of a loose firearm is penalized by the law with a maximum
penalty which is equal to that imposed under the preceding section
for illegal possession of firearms the penalty o prision mayor in its
minimum shall be imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or other special laws of
which he/she is found guilty.

If the violation of this Act is in furtherance of, or incident to, or in

connection with the crime of rebellion or insurrection, or attempted
coup d’ etat, such violation shall be absorbed as an element of the
crime of rebellion or insurrection, or attempted coup d’ etat.

If the crime is committed by the person without using the

loose firearm, the violation of this Act shall be considered as a
distinct and separate offense.

(Emphasis ours)

3. Applying the above-quoted provision to the case the Honorable

Office of the Provincial Prosecutor made the following conclusions;

“In view of Section 29 of RA 10591, there can be no separate

prosecution for illegal possession of firearm and violation of
COMELEC gun ban because the firearm is inherent in the crime of
violation of COMELEC gun ban. It is clear from the foregoing, that
when the use of a loose firearm is inherent in the commission of a
crime punishable under the Revised Penal Code or other special
laws, it shall be considered merely as an aggravating circumstance,
and not as a separate crime. In other words, the prosecution for the
separate crimes of illegal possession of firearm and violation of
COMELEC Gun Ban is no longer in order under RA 10591. A person
can be held criminally liable only for illegal possession of loose
firearm if no other crime was committed”

4. It is Complainant’s humble position that Honorable Office of the

Provincial Prosecutor erroneously interpreted and applied Section
29, RA 10591 in rendering the Resolution;

5. The complaint against the respondent in the subject case is for

violation of Section 28, RA 10591 and for violation of Section 261(q)
of the Omnibus Election Code (B.P.881), Section 32, RA 7166 in
relation to Section 2 (a), COMELEC Resolution 10728 which
respectively reads;

B.P.881
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 Section 261- Prohibited Acts. - The following shall be guilty of an
election offense:
(q) Carrying firearms outside residence or place of business. -
Any person who, although possessing a permit to carry
firearms, carries any firearms outside his residence or place
of business during the election period, unless authorized in
writing by the Commission: Provided, That a motor vehicle,
water or air craft shall not be considered a residence or place
of business or extension hereof. (underscoring supplied for
emphasis)

xxxxx

R.A.7166

Section 32. Who May Bear Firearms. - During the election

period, no person shall bear, carry or transport firearms or
other deadly weapons in public places, including any building,
street, park, private vehicle or public conveyance, even if
licensed to possess or carry the same, unless authorized in
writing by the Commission. The issuance of firearms licenses
shall be suspended during the election period.
(underscoring supplied for emphasis)

xxxxx

COMELEC Resolution 10728

Section 2. Prohibited Acts-During the Election Period:

a. No Person shall bear, carry or transport firearms or

deadly weapons outside his/her residence or place of
business, and in all public places, including any
building, street, park, and in private vehicles or pubic
conveyances, even if he/she is licensed or authorized
to possess or to carry the same, unless authorized by
the Commission, through the Committee on the Ban
on Firearms and Security Concerns (CBFSC),in
accordance with the provisions of this Resolution.

(underscoring supplied for emphasis)

6. Clearly then, the laws pertaining to the ban on firearms during the
election period employed the term bear, carry, and transport
firearm;

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 7. Additionally, the above cited laws clearly did not employ the term
“use” in its respective provisions, such that the above-cited laws
prohibit and penalizes the mere act of possessing any kind of
firearm, without regard whether the same was used or not in the
commission of a crime;

8. It was thus error on the part of the Honorable Office of the

Provincial Prosecutor to use as basis in its Resolution the first
sentence of Section 29 of R.A. 10591, since the said provision
categorically employed the term “use”, as opposed to the term
“bear”, “carry”, “transport”, employed in the above-cited election
laws;

9. In the case of People vs. Ladjaalam, G.R. NO.136149-51,

September 19,2000, the Honorable Supreme Court made
the following pronouncements thus, “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”;

10. Applying the foregoing pronouncements, since the first sentence

of Section 29, R.A. 10591, categorically employed the term “use”,
it would thus be an error to apply the said provision to a case
where the act constituting the other offense consists in the mere
possession, carrying, bearing or transporting of a firearm, as in the
case of violations of COMELEC Gun Ban, hence a separate charge
for simple illegal possession of firearms under Section 29, R.A.
10591 can be filed;

11.This case should be distinguished from other cases wherein the

Honorable Supreme Court ordered the dismissal of the charges for
illegal possession of firearms because those cases were decided in
the light of the older firearms law namely Presidential Decree
No.1866 and Republic Act 8294, which clearly provides that the
commission of another crime is a bar to the filing of charges for
illegal possession of firearms;

12.Moreover, the last paragraph of Section 29, R.A. 10591 itself

categorically ordains that “If the crime is committed by the person
without using the loose firearm, the violation of this Act shall be
considered as a distinct and separate offense”;
(Emphasis ours)

13.It is likewise worthy to note that in the first sentence of the

penultimate paragraph of the subject Resolution, quoted

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 somewhere in this Motion, the word “use” which precedes the
phrase “of a loose firearm” in the first sentence of Section 29,RA
10591 was omitted thus making the provision to mean that
when a firearm is inherent in the commission of a crime the
prosecution of the offender for violation of Section 28,RA 10591
can no longer be had. This cannot be allowed because the word
“use” should not be detached therefrom when applying the said
provision to a certain set of facts. The word “inherent” actually
has reference to the phrase “use of a loose firearm” and not
only to the word “firearm”;

14.Undoubtedly, the facts and circumstances of the case subject of

this Motion does not fall within the purview of Section 29, R.A.
10591, thus it is respectfully submitted that the said provision
cannot be used as basis for the dismissal of the charge for violation
of Section 28, R.A. 10591 against the respondent;

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of

this Honorable Office to reconsider its Resolution dated March 26,2022 and
thereby cause the filing of an Information for Violation of Section 28, R.A.
10591 against the respondent Marlon Garcia y Santos.

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

RESPECTFULLY SUBMITTED

_____February 2022. Taft, Eastern Samar, Philippines for Borongan

City, Eastern Samar, Philippines.

POLICE MAJOR ARJHAY A. DIAZ

Complainant

Copy furnished:

HON. ANTONIO H. DELA CRUZ

Assistant Provincial Prosecutor
Office of the Provincial Prosecutor

MARLON S. GARCIA
Respondent
Barangay 06, Hinulgan

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