G.R. Nos.

172070-72

June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,Petitioners, vs. SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of Justice panel of prosecutors investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G. TANIGUE,Respondents. DECISION CARPIO, J.: The Case These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners cases. The Facts Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio), and Rafael V. Mariano (Mariano),1 are members of the House of Representatives representing various party-list groups.2Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati. G.R. No. 175013 (The Beltran Petition) Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of National Emergency," police officers3 arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltrans arresting officers who claimed to have been present at the rally. The inquest prosecutor4indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5 The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDGs investigation implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance." On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals "conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong

Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino). Beltran moved that Branch 137 make a judicial determination of probable cause against him.8 Before the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to Branch 146 under Judge Encarnacion JajaMoya (Judge Moya). In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case without resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re-raffled, issued an Order on 29 August 2006 denying Beltrans motion. Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin Beltrans prosecution. In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony. G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions) Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the House of Representatives building for fear of being subjected to warrantless arrest. During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco who then gave copies of the affidavit to media members present during the proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDGs letters only on 17 March 2006. Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the media regarding petitioners case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The DOJ panel of prosecutors denied petitioners motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases. However, the panel of prosecutors denied petitioners motions on 4 April 2006. Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006. Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146), charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a Rebellion.12Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin the prosecution of Criminal Case No. 06-944. In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that the filing of Criminal Case No. 06-944 has mooted the Maza petition. The Issues

The petitions raise the following issues: 1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid and (b) whether there is probable cause to indict Beltran for Rebellion; and 2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from continuing with the prosecution of Criminal Case No. 06-944.13 The Ruling of the Court We find the petitions meritorious. On the Beltran Petition The Inquest Proceeding against Beltran for Rebellion is Void. Inquest proceedings are proper only when the accused has been lawfully arrested without warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances when such warrantless arrest may be effected, thus: Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxxx

Where the recommendation for the release of the detained person is approved by the City or Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements of the complainant and his witnesses and other supporting evidence. (Emphasis supplied) For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void.19 Beltran would have been entitled to a preliminary investigation had he not asked the trial court to make a judicial determination of probable cause, which effectively took the place of such proceeding. There is No Probable Cause to Indict Beltran for Rebellion. Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted."20 To accord respect to the discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutors determination of probable cause for otherwise, courts would be swamped with petitions to review the prosecutors findings in such investigations.21 However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause, thus denying the accused his right to substantive and procedural due process, we have not hesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutors findings.22 This exception holds true here. Rebellion under Article 134 of the Revised Penal Code is committed

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently, when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion, they overstepped their authority rendering the second inquest void. None of Beltrans arresting officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form probable cause to believe that he had committed Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February 2006.17 Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is to determine if the arrest of the detained person was made "in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides: Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made in accordance with the Rules, he shall: a) recommend the release of the person arrested or detained; b) note down the disposition on the referral document; c) prepare a brief memorandum indicating the reasons for the action taken; and d) forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate action.

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. The elements of the offense are: 1. That there be a (a) public uprising and (b) taking arms against the Government; and 2. That the purpose of the uprising or movement is either (a) to remove from the allegiance to said Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.23 Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.24 The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We have gone over these documents and find merit in Beltrans contention that the same are insufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala

(Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27 none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casio, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he attended the CPPs "10thPlenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groups affiliated with the CPP. The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against the government. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion. In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the alleged funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit merely contained a general conclusion without any specific act showing such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x."30 Such a general conclusion does not establish probable cause. In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25 February 2006,31 as basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings Beltran and the other petitioners attended in 2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among others. The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in their possession when they conducted the Rebellion inquest against Beltran on that day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed to his statement before respondent prosecutor Velasco. Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial determination of probable cause. Such belated submission, a tacit admission of the dearth of evidence against Beltran during the inquest, does not improve the prosecutions case. Assuming them to be true, what the allegations in Fuentes affidavit make out is a case for Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the prosecution acknowledged this, since the felony charged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it. The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive" containing the so-called minutes was allegedly taken, denies knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.34 On the Ladlad and Maza Petitions The Preliminary Investigation was Tainted With Irregularities. As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters public safety.35 However, such relief in equity may be granted if, among others, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner36 or (b) to afford adequate protection to constitutional rights.37 The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions. The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus: Procedure.The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counteraffidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied) Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the constitutional right to liberty of a potential accused can be protected from any material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of such number as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits attached to the letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified government official was unavailable as required by Section 3(a) of Rule 112. Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continue with the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received the complete copy of the attachments to the CIDG letters.1a\^/phi1.net These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the complainants antics during the investigation, and distributing copies of a witness affidavit to members of the media knowing that petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation but also lent credence to petitioners claim that the entire proceeding was a sham. A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due process in criminal justice.41 This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those accused as principals. Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net On Respondent Prosecutors Lack of Impartiality We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of Justice, who exercises supervision and control over the

panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the DOJ] will just declare probable cause, then its up to the *C+ourt to decide x x x."42 Petitioners raised this issue in their petition,43 but respondents never disputed the veracity of this statement. This clearly shows pre-judgment, a determination to file the Information even in the absence of probable cause. A Final Word The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings to mind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize the importance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus: [W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be publics perception of the impartiality of the prosecutor be enhanced.44 1a\^/phi1.net WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06452 and 06-944. SO ORDERED. ANTONIO T. CARPIO Associate Justice

G.R. No. 164007 August 10, 2006 LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL SANGGALANG, Petitioners, vs. GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate Generals Office (JAGO), Respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff and the Judge Advocate General, respondents. The facts are: On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP, with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP mostly from the elite units of the Armys Scout Rangers and the Navys Special Warfare Group entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted explosive devices around the building. Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of the"Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to acquire more military assistance from the US government. They declared their withdrawal of support from their Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the resignation of her cabinet members and the top brass of the AFP and PNP. About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five oclock in the afternoon of that same day. In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their barracks. A total of 321 soldiers, including petitioners herein, surrendered to the authorities. The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel involved be charged with coup detat defined and penalized under Article 134-A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing of the corresponding Information against them. Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and directed the AFP to conduct its own separate investigation. On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup detat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678, involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel. On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784. On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial to good order and military discipline. Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.) No. 7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate Generals Office (JAGO) a motion praying for the suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction. On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff recommending that the military personnel involved in the Oakwood incident be charged before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War. Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with the RTC an Amended Information. 6 In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge of coup detat against the 290 accused. Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged with coup detatbefore the RTCshould not be charged before the military tribunal for violation of the Articles of War. For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial against the accusedare hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup detat." The trial court then proceeded to hear petitioners applications for bail. In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident, including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War. On June 17, 2004, Colonel Magnos recommendation was approved by the AFP top brass. The AFP Judge Advocate General then directed petitioners to submit their answer to the charge. Instead of complying, they filed with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9 Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not service-connected, but is absorbed in the crime of coup detat, the military tribunal cannot compel them to submit to its jurisdiction. The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court martial. Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and

asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration but it was denied by the general court martial in its Order dated September 14, 2005. 15 In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges that "contrary to petitioners pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17 The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition. There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to refer to a commissioned officer." Article 2 provides: Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles: (a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to obey the same. Upon the other hand, Section 1 of R.A. No. 7055 reads: SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup detat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court. The second paragraph of the same provision further identifies the "serviceconnected crimes or offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War. Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil courts and the court martial over crimes or offenses committed by military personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses. The military justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military efficiency. 18 Military law is established not merely to enforce discipline in times of war, but also to preserve the tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has become invariably an indispensable part of any organized armed forces, it being the most potent agency in enforcing discipline both in peace and in war. 20 Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War before the court martial, thus: All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and the dulyconstituted authorities and abused their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent dulyelected and legitimate President by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War. CONTRARY TO LAW. (Underscoring ours) Article 96 of the Articles of War 21 provides: ART. 96. Conduct Unbecoming an Officer and Gentleman. Any officer, member of the Nurse Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours) We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the petitioners concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the "service-connected" nature of the offense is the penalty prescribed for the same dismissal from the service imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse the military profession of misfits and to preserve the stringent standard of military discipline. Obviously, there is no merit in petitioners argument that they can no longer be charged before the court martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup detat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court, tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void. In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held: We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not serviceconnected, but absorbed and in furtherance of the crime of coup detat, cannot be

given effect. x x x, such declaration was made without or in excess of jurisdiction; hence, a nullity. The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as the Articles of War, to wit: Articles 54 to 70: Art. 54. Fraudulent Enlistment. Art. 55. Officer Making Unlawful Enlistment. Art. 56. False Muster. Art. 57. False Returns. Art. 58. Certain Acts to Constitute Desertion. Art. 59. Desertion. Art. 60. Advising or Aiding Another to Desert. Art. 61. Entertaining a Deserter. Art. 62. Absence Without Leave. Art. 63. Disrespect Toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense. Art. 64. Disrespect Toward Superior Officer. Art. 65. Assaulting or Willfully Disobeying Superior Officer. Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer. Art. 67. Mutiny or Sedition. Art. 68. Failure to Suppress Mutiny or Sedition. Art. 69. Quarrels; Frays; Disorders. Art. 70. Arrest or Confinement. Articles 72 to 92: Art. 72. Refusal to Receive and Keep Prisoners. Art. 73. Report of Prisoners Received. Art. 74. Releasing Prisoner Without Authority. Art. 75. Delivery of Offenders to Civil Authorities. Art. 76. Misbehavior Before the Enemy. Art. 77. Subordinates Compelling Commander to Surrender. Art. 78. Improper Use of Countersign. Art. 79. Forcing a Safeguard. Art. 80. Captured Property to be Secured for Public Service. Art. 81. Dealing in Captured or Abandoned Property. Art. 82. Relieving, Corresponding With, or Aiding the Enemy. Art. 83. Spies. Art. 84. Military Property.Willful or Negligent Loss, Damage or wrongful Disposition. Art. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers. Art. 86. Drunk on Duty. Art. 87. Misbehavior of Sentinel. Art. 88. Personal Interest in Sale of Provisions. Art. 88-A. Unlawful Influencing Action of Court. Art. 89. Intimidation of Persons Bringing Provisions. Art. 90. Good Order to be Maintained and Wrongs Redressed. Art. 91. Provoking Speeches or Gestures. Art. 92. Dueling. Articles 95 to 97: Art. 95. Frauds Against the Government. Art. 96. Conduct Unbecoming an Officer and Gentleman. Art. 97. General Article. Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x x. It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial. Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth quoting, thus: The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an Officer and a Gentleman is absorbed and in furtherance to the alleged crime of coup detat. Firstly, the doctrine of absorption of crimes is peculiar to criminal law and generally applies to crimes punished by the same statute, 25unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over

service-connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not applicable to this case. Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government personnel. A civilian government employee reassigned to another place by his superior may question his reassignment by asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court and ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If this is allowed, military discipline will collapse. xxx This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 *1946+, citing Winthrops Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial form part of the disciplinary system that ensures the Presidents control, and thus civilian supremacy, over the military. At the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial (citing Article 50 of the Articles of War; quoted provisions omitted). xxx While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed courtmartial proceedings on the ground that the offense charged is absorbed and in furtherance of another criminal charge pending with the civil courts. The Court may now do so only if the offense charged is not one of the service-connected offenses specified in Section 1 of RA 7055. Such is not the situation in the present case. With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the undisputed facts. 26 Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and oppressive exercise of authority and is directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law.28 In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging petitioners with violation of Article 96 of the Articles of War. WHEREFORE, the instant petition for prohibition is DISMISSED. SO ORDERED.

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

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 (P500,000.00) 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 Prosecutions Version

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 Information[3] 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 Information[6] 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 M14 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

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 AntiVice/Narcotics Unit. During the briefing, PO3 Renato Dela Pea 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 appellants 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 Pea 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 appellants house, Rivera, Dela Pea, 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 Pea and Rivera then searched appellants 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 appellants house to buy shabu. Locson knew appellant as a seller of shabu (TSN, April 22, 1998, p. 5) and had been to appellants house about fifteen (15) times before. He went to Rio Hondo and arrived at appellants 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 appellants house. They all stood and entered appellants 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 appellants house *o+n the afternoon of September 24, 1997. After the search and before returning to the police station, P03 Dela Pea prepared a Receipt for Property Seized (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Pea 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]
Defenses 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. 4041, 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 Dandaos house and not in his house because they ha*d+ a sort of a conference as Dandaos 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. B1; 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 Ladjaalams house (tsn, pp. 9-12, id). Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 oclock [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 Nurin Ladjaalam, Walpans 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 Courts 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 appellants 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 appellants 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, appellants 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, Walpans 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 appellants 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 Courts 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 appellants 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 courts assessment of their credibility is generally accorded respect, even finality.[39] After carefully examining the records and finding no material inconsistencies to support appellants 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 its 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. xxxxxxxxx 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. xxxxxxxxx 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 neighbors house. xxxxxxxxx COURT: Reform. That is leading Q: What happened when you entered and he jumped to the roofing of the neighbors house? A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan Ladjaalam. xxxxxxxxx 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. xxxxxxxxx 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]. xxxxxxxxx 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. xxxxxxxxx PROSECUTOR NUVAL:

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: 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 elements[46] 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 prosecutions Certification[47]stating that he had not

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 CounterAffidavit 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 formers 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 prosecutions story.
Direct Assault with Multiple Attempted Homicide

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 proviso[61] 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 8294s 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 OSGs contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. 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 specific proviso that no other crime was committed. Furthermore, the OSGs reliance on People v. Jayson[65] 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 is prision 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 scandal[67] 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 Courts review. Any perception that the result reached here appears unwise

The trial court was also correct in convicting appellant of direct assault[55] 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 courts ruling and the OSGs submission exemplify the leg al communitys 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 (P15,000) 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 (P30,000) 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 detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat. 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

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 jurisprudence[70] 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.

with thirty (30) live ammunitions of the same caliber without first having obtained the proper license or necessary permit to possess the said firearm. CONTRARY TO LAW.[6]

Upon arraignment in Criminal Case No. C-138-04, petitioner pleaded not guilty to the gun ban violation charge.[7] Prior to his arraignment in Criminal Case No. C-137-04, petitioner filed a Motion to Quash[8] contending that he cannot be prosecuted for illegal possession of firearms x xx if he was also charged of having committed another crime of [sic] violating the Comelec gun ban under the same set of facts x x x.[9]
[10] By Order of July 29, 2004, the trial court denied the Motion to Quash on the basis of this Courts[11] affirmation in Margarejo v. Hon. Escoses[12] of therein respondent judges denial of a similar motion to quash on the ground that the other offense charged x x x is not one of those enumerated under R.A. 8294 ] 3 1 [ x x x . Petitioners Motion for Reconsideration was likewise denied by September 22, 2004 Resolution,[14] hence, petitioner filed a Petition for Certiorari[15] before the Court of Appeals.

ANGEL CELINO, SR., Petitioner,

G.R. No. 170562 Present: QUISUMBING,* J., Chairperson, CARPIO,** CARPIO MORALES, TINGA, and VELASCO, JR., JJ.

- versus -

By Decision dated April 18, 2005,[16] the appellate court affirmed the trial courts denial of the Motion to Quash. Petitioners May 9, 2005 Motion for Reconsideration[17]having been denied by Resolution of September 26, 2005,[18] petitioner filed the present petition. The petition fails. Petitioners remedy to challenge the appellate courts decision and resolution was to file a petition for review on certiorari under Rule 45 on or before October 20, 2005 or 15 days after he received a copy of the appellate [ 1 9 ] court's resolution on October 5, 2005 denying his motion for reconsideration. Instead, petitioner chose to file the present petition under Rule 65 only on December 2, 2005,[20] a good 58 days after he received the said resolution. Certiorari cannot be used as a substitute for lost appeal. Certiorari lies only when there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. Why the question being raised by petitioner, i.e., whether the appellate court committed grave abuse of discretion, could not have been raised on appeal, no reason therefor has been advanced.[21] While this Court, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period under said Rule, it finds nothing in the present case to warrant a liberal application of the Rules, no justification having been proffered, as just stated, why the petition was filed beyond the reglementary period,[22] especially considering that it is substantially just a replication of the petition earlier filed before the appellate court. Technicality aside, the petition fails just the same.

COURT OF APPEALS, CEBU CITY, HON. DELANO F. VILLARUZ, Presiding Judge, Branch 16, Regional Trial Court,Capiz, Promulgated: Roxas City, and PEOPLE OF THE PHILIPPINES, Respondents. June 29, 2007 x-----------------------------------------------------------------------------------------x DECISION CARPIO MORALES, J.: This petition for certiorari under Rule 65 of the Rules of Court assails the Court of Appeals Decision dated April 18, 2005[1] affirming the trial courts denial of petitioner Angel Celino, Sr.s Motion to Quash; and Resolution dated September 26, 2005[2] denying petitioners Motion for Reconsideration of the said Decision.

The following facts are not disputed: Two separate informations were filed before the Regional Trial Court of Roxas City charging petitioner with violation of Section 2(a) of COMELEC Resolution No. 6446 (gun ban),[3] and Section 1, Paragraph 2 of Republic Act No. (R.A.) 8294[4] (illegal possession of firearm), as follows: Criminal Case No. C-137-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly carry outside of his residence an armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded with thirty (30) live ammunitions of the same caliber during the election period December 15, 2005 to June 9, 2004 without first having obtained the proper authority in writing from the Commission on Elections, Manila, Philippines. CONTRARY TO LAW. [5] Criminal Case No. C-138-04 That on or about the 12th day of May, 2004, in the City of Roxas, Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there willfully, unlawfully and knowingly have in his possession and control one (1) armalite rifle colt M16 with serial number 3210606 with two (2) long magazines each loaded

The relevant provision of R.A. 8294 reads: 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 or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which

includes those with bores bigger in diameter than .38 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. xxxx (Underscoring supplied) The crux of the controversy lies in the interpretation of the ] 3 2 [ underscored proviso. Petitioner, citing Agote v. Lorenzo, People [24] [25] v. Ladjaalam, and other similar cases, contends that the mere filing of an information for gun ban violation against him necessarily bars his prosecution for illegal possession of firearm. The Solicitor General contends otherwise on the basis of Margarejo v. Hon. Escoses [26] and People v. Valdez.[27] In Agote,[28] this Court affirmed the accuseds conviction for gun ban violation but exonerated him of the illegal possession of firearm charge because it cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban.[29] Agote is based on Ladjaalam[30] where this Court held: x x x A simple reading [of RA 8294] 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. 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. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxxx x x x 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.[31] The law is indeed clear. The accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word committed taken in its ordinary sense, and in light of the Constitutional presumption of innocence,[32] necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission.[33] Petitioners reliance on Agote, Ladjaalam, Evangelista, Garcia, Pangilinan, Almeida, and Bernal is, therefore, misplaced. In each one of these cases, the accused were exonerated of illegal possession of firearms because of their commission, as shown by their conviction, of some other crime.[34] In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.[35] Consequently, the proviso does not yet apply. More applicable is Margarejo[36] where, as stated earlier, this Court affirmed the denial of a motion to quash an information for illegal possession of firearm on the ground that the other offense charged *i.e., violation of gun ban] x x x is not one of those enumerated under R.A. 8294 x x x.[37] in consonance with the earlier pronouncement inValdez[38] that all pending cases involving illegal possession of firearm should continue to be prosecuted and tried if no other crimes expressly indicated in Republic Act No. 8294 are involved x x x.[39] In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in [40] murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat.[41] Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted. Finally, as a general rule, the remedy of an accused from the denial of his motion to quash is for him to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner authorized by law.[42] Although the special civil action for certiorari may be availed of in case there is a grave abuse of discretion,[43] the appellate court correctly dismissed the petition as that vitiating error is not attendant in the present case. WHEREFORE, the petition is DISMISSED. SO ORDERED.