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G.R. No.

114302 September 29, 1995


PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. CAMILO O. MONTESA, JR., as Presiding Judge, Regional
Trial Court, Branch 19, Malolos, Bulacan, APOLONIO CRUZ and BERNARDA CRUZ, respondents.

DAVIDE, JR., J.:


The core issue raised in this petition for certiorari under Rule 65 of the Court is whether the respondent Judge
committed grave abuse of discretion amounting to lack of jurisdiction in dismissing Criminal Case No. 1469-M-93
immediately after the arraignment of the accused-private respondents on the basis of the resolution of the Assistant
Provincial Prosecutor recommending the dismissal of the case despite the disapproval of such resolution by the
Provincial Prosecutor.
This petition was filed by the private prosecutor with the conformity of the Provincial Prosecutor of Bulacan, Liberato
L. Reyes. Concededly, it is defective in form. But, in view of the gravity of the error allegedly committed by the
respondent Judge, we required a comment from the office of the Solicitor General, the law office of the Government
authorized by law to represent the Government in this Court and in the Court of Appeals in all criminal proceedings
and to act and represent the Republic or the People of the Philippines before any court, tribunal, body, or commission
in any matter, action, or proceeding which, in the opinion of the Solicitor General, affects the welfare of the people as
the ends of justice may require. 1 We had done so in previous cases. 2
In its Comment 3 filed on 24 October 1994, the Office of the Solicitor General adopted the petition as its own and
incorporated a supplement thereto.
The private respondent's comment was filed only on 23 June 1995.
The factual and procedural antecedents which gave rise to this case are uncomplicated.
On 6 July 1993, an information was filed with the Regional Trail Court (RTC) of Bulacan charging private respondents
Apolonio Cruz and Bernarda Cruz with the crime of falsification of public document, committed as follows:
[O]n or about the 10th day of January, 1991, in the municipality of Malolos, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the . . . accused, conspiring and
confederating together and mutually helping each other, did then and there wilfully, unlawfully and
feloniously prepare or cause to be prepared a document denominated as "Kasulatan ng
Kaloobpala" making it appear therein that the same was executed and signed by the spouses
Cenon Constantino and Sotera de la Cruz and that said persons personally appeared before
Notary Public Santiago L. Lindayag and acknowledged the same to be their own free act and deed,
when in truth and in fact, as said accused well knew, said document was neither executed and
signed by the aforementioned Cenon Constantino and Sotera de la Cruz, nor did they ever appear
before the abovenamed notary public for the purpose of acknowledging the same as said spouses
were already dead at the time of the alleged execution of said document, to the damage and
prejudice of public interest. 4
The case was docketed as Criminal Case No. 1469-M-93 in Branch 19 of the said court which is presided by
the respondent Judge.
Arraignment was set on 19 October 1993. 5
On 8 October 1993, the private respondents filed with the trial court a petition for reinvestigation 6 premised on the
ground that "after the information was filed, material and relevant evidence was discovered which, if presented in a
reinvestigation, will certainly alter the earlier finding of probable cause by the office of the Provincial Prosecutor
thereby avoiding a prolonged litigation which is disadvantageous to all concerned."

On 12 October 1993, the respondent Judge issued an order 7 granting the petition for reinvestigation, remanding the
case to the Office of the Provincial Prosecutor for purposes of reinvestigation, and cancelling the scheduled
arraignment on 19 October 1993.
At the reinvestigation conducted by Assistant Provincial Prosecutor Edsel M. Rutor, the accused presented what it
considered new material and relevant evidence which consists merely of an affidavit of Feliza Constantino who
declared that she was the one responsible for the preparation of the questioned public document. In his resolution of
14 December 1993, 8 Rutor recommended the dismissal of the case because:
[T]he issue is now moot with the admission by Feliza Constantino in an affidavit submitted only on
November 1993, wherein she made clear that she is the one responsible for the preparation of the
document subject matter of this case, . . . the accused spouses have no participation in the
preparation of the same.
Provincial Prosecutor Liberato Reyes disapproved the recommendation and the made of the following handwritten
note below the signature of Rutor on the last page of the latter's resolution:
Feliza Constantino did not admit having done the falsification. As vendor she merely warrants the
good title that transferred to the vendee & she assumes responsibility therefor.
Hence, the Court & not this office is in a better position to resolve the issue of whether the accused
are the perpetrators of the falsification. We should present our evidence that makes out a prima
facie case & let the Court decide, not this office pre-empting the prerogative of the
Court. 9(emphasis supplied)
Nonetheless, in obvious disregard of the adverse stand of the Provincial Prosecutor, Rutor submitted his resolution to
the trial court.
On 22 December 1993, the respondent Judge ordered the arraignment of the private respondents. They pleaded not
guilty. Forthwith, the trial court issued an order 10 dismissing criminal Case No. 1469-M-93 on the basis of the Rutor
resolution The order reads:
Before the Court is the Resolution of the Assistant Provincial Prosecutor for the dismissal of the
case, however, the Provincial Prosecutor deemed it wise to endorse to the Court the propriety of
resolving the case at bar. Both accused after having been arraigned and informed of the nature and
cause of the accusation entered a plea of NOT GUILTY.
The facts of the case, in brief, showed that both accused Apolonio Cruz and Bernarda Cruz were
charged with the offense of "Falsification of Public Document" as provided for under Art. 172 of the
Revised Penal Code in conjunction with Art. 171 thereof. Sotera dela Cruz at the time of her death
was the registered owner of a parcel of land situated at Barrio Pritil, Guiguinto, Bulacan and
covered by TCT No. T-281264. Following her death on February 1, 1989, one of the heirs of the
deceased, Feliza Constantino, sold her share to accused spouses for P200,000.00 pursuant to
extrajudicial settlement with sale (Kasulatan ng Pagmamana sa Labas ng Hukuman). In lieu of
presenting the said document to the Register of Deeds for purposes of transfer of said property to
the vendees (accused spouses Apolonio and Bernarda Cruz), however, a document denominated
as "Kasulatan ng Kaloobpala" dated January 10, 1991 to which both accused affixed their
signatures as well as the vendee's parents Sotera dela Cruz and Constantino Cruz despite their
death long before the execution of said document, was the one presented to the Register of Deeds.
Pursuant therewith, TCT No. T-281264 in the name of Sotera dela Cruz was cancelled and in lieu
thereof, a new certificate of title TCT No. T-10178 was issued in favor of the accused. Conformably
with the foregoing circumstances, accused spouses are charged with the offense of Falsification of
Public Document.
Feliza Constantino, one of the two legitimate children of deceased Sotera dela Cruz, expressly
admitted having sold her share of 1,034 square meters to accused spouses for a valuable
consideration pursuant to "Kasulatan ng Pagmamana sa Labas ng Hukuman na may Bilihan",
however, a certain person instead whom she did not identify, caused the execution of a document

of "Kasulatan ng Kaloobpala" and used the same to effect the transfer of the property to accused
spouses.
It is indubitably established that the property subject of the alleged falsification of public document
was actually sold to accused spouses for a valuable consideration by one of the heirs of deceased
Sotera dela Cruz pursuant to "Pagmamana sa Labas ng Hukuman"; that accused the spouses are
not directly involved in the preparation of said "Kasulatan ng Kaloobpala"; and that the person other
than the accused was instrumental in the preparation of said document and who facilitated the
transfer of said property to accused spouses. The express admission by the sister of the
complainant that she sold her share to accused spouses for a valuable consideration and that the
latter have no hand in the alleged falsification of public document are material and of the great
probative value and the same should be given persuasive effect and credence in judicious
assessment of the case at bar. The said admission for all legal intents and purposes exonerates
both accused of the offense charged. Accordingly, there is grave doubt to hold the accused
criminally liable for the offense charged in the Information. The doubt as to the liability of the
accused is evident by the varied and contradictory findings of the Assistant Provincial Prosecutors.
In the absence, therefore, of a clear and convincing proof to establish the guilt of the accused
beyond reasonable doubt, as prayed for the Assistant Provincial Prosecutor for the dismissal of the
case and finding the motion tenable, the same be given due course.
On 5 January 1994, the private prosecutor, Atty. Edwin P. Cerezo, who received a copy of the dismissal order on 28
December 1993, filed a motion for its reconsideration. 11 He alleged therein that the Rutor resolution was not
approved by the Provincial Prosecutor who, on the contrary, directed Assistant Provincial Prosecutor Rutor to
proceed with the presentation of the evidence for the prosecution; and that the unapproved resolution did not
invalidate of modify the information already filed, neither did it serve as basis for the court's order summarily
dismissing the case. He further alleged that since the court had arraigned the accused, it should have, pursuant to
the Rules, scheduled the case for pre-trial and trial.
At the hearing of the motion for reconsideration on 11 January 1994, Assistant Provincial Prosecutor Rutor
vehemently opposed it on the ground that the private prosecutor has no personality to intervene in the proceedings
and that the motion was a mere scrap of paper for lack of his "(Rutor's) conformity. The respondent Judge forthwith
denied the motion. 12
On 12 January 1994, the Provincial Prosecutor and the private prosecutor jointly filed another motion to
reconsider 13 the dismissal order of 22 December 1993. They alleged therein that:
2. This Honorable Court based its Order of dismissal on the Resolution of the Asst. Public
Prosecutor Edsel M. Rutor dated December 14, 1993, recommending for its dismissal;
3. Said Resolution of Asst. Pros. Edsel M. Rutor was not approved by the undersigned Provincial
Prosecutor as he is convinced that a prima facie case existed against the accused, instead, he
directed Asst. Pros. Edsel M. Rutor to proceed with the presentation of the prosecution evidence in
court;
4. The determination of the existence of a prima facie case by the Office of the Provincial
Prosecutor for the purposes of filing information in the court must be respected by this Honorable
Court, and it is beyond its jurisdiction to interfere with the said findings, more so when an
information had already been filed in court, as in the present case;
5. For another, accused were already arraigned on the crime charged in the Information dated June
18, 1993, yet this Honorable Court summarily dismissed the case solely based on the unapproved
Resolution of Pros. Rutor not on the evidence as no evidence has yet been presented by the
parties;
6. Under the Rules, after arraignment of the accused had been made, Pre-trial and Trial will follow;
They then prayed that on the order of dismissal be set aside and the case be set for pre-trial and trial.

In his order of 1 February 1994, 14 the respondent Judge denied the aforesaid motion for reconsideration for having
been filed out of time as a copy of the order of dismissal was received by Assistant Provincial Prosecutor Rutor on 22
December 1993, and he declared that the motion for reconsideration earlier filed by the private prosecutor "is of no
moment as [it] does not have the imprimatur of the Assistant Provincial Prosecutor and perforce does not affect the
running of the prescriptive period."
Hence, this petition which was filed on 25 March 1994 by the private complainant, through the private prosecutor, with
the approval of Provincial Prosecutor Liberato L. Reyes.
The petition is impressed with merit.
The rule is settled that once a criminal complaint or information is filed in court, any disposition thereof, such as its
dismissal or the conviction or acquittal of the accused, rests in the sound discretion of the court. While the prosecutor
retains the discretion and control of the prosecution of the case, he cannot impose his opinion on the court. The court
is the best and the sole judge on what to do with the case. Accordingly, a motion to dismiss the case filed by the
prosecutor before or after the arraignment, or after a reinvestigation, or upon instructions of the Secretary of Justice
who reviewed the records upon reinvestigation, should be addressed to the discretion of the court. The action of the
court must not, however, impair the substantial rights of the accused or the right of the People to due process of
law. 15
In the instant case, the respondent Judge granted the motion for reinvestigation and directed the Office of the
Provincial Prosecutor of Bulacan to conduct the reinvestigation. The former was, therefore, deemed to have deferred
to the authority of the prosecution arm of the Government to consider the so-called new relevant and material
evidence and determine whether the information it had filed should stand. Having done so, it behooved the
respondent Judge to wait for a final resolution of the incident. In Marcelo vs. Court of Appeals, 16 this Court ruled:
Accordingly, we rule that the trial court in a criminal case which takes cognizance of an accused's
motion for review of the resolution of the investigating prosecutor or for reinvestigation and defers
the arraignment until resolution of the said motion must act on the resolution of the said motion
must act on the resolution reversing the investigating prosecutor's finding or on a motion to dismiss
based thereon only upon proof that such resolution is already final in that no appeal was taken
thereon to the Department of Justice.
The resolution of Assistant Provincial Prosecutor Rutor recommending the dismissal of the case never became final,
for it was not approved by the Provincial Prosecutor. On the contrary, the latter disapproved it. As a consequence, the
final resolution with respect to the reinvestigation is that of the Provincial Prosecutor, for under Section 4, Rule 112 of
the Rules of Court, no complaint or information may be filed or dismissed by an investigating fiscal or chief state
prosecutor. Also, under Section 1(d) of R.A. No. 5180, 17 as amended by P.D. No. 77 and P.D. No. 911:
[N]o assistant fiscal or state prosecutor may file an information or dismiss a case except with the
prior authority or approval of the provincial or city fiscal or Chief State Prosecutor. . . .
The Provincial Prosecutor's opinion that the prosecution should present its "evidence that makes out a prima
facie case" clearly indicate that he was convinced that there is at the very least a reasonable ground to believe that
the crime of falsification was committed and the private respondents are probably guilty thereof. The findings and
conclusion of the Provincial Prosecutor, being the final disposition on the reinvestigation, should have been the sole
and only valid basis for the respondent Judge's final action with respect to the reinvestigation in the light of the
foregoing provisions of the Rules of Court and R.A. No. 5180, as amended, and the ruling in Marcelo. The
respondent Judge must have miscomprehended or misunderstood the notation of the Provincial Prosecutor that "the
court & not this office is in a better position to resolve the issue of whether the accused are the perpetrators of the
falsification" as a carte blanche to act on the resolution and recommendation of Rutor. He closed his eyes to the
Provincial Prosecutor's stand the prosecution should present its evidence "that makes out a prima faciecase and let
the court decide," which simply means that the case should not be dismissed on the basis of Rutor's
recommendation.
The Rutor resolution was rendered valueless because of the Provincial Prosecutor's approval thereof. In submitting it
nonetheless to the court and moving for the dismissal of the case, Rutor showed outright disregard of the
aforementioned provisions and ruling. So did the respondent Judge when he dismissed the case on the basis of that
resolution. Their disregard of the said provisions and ruling is condemnable, for it carries with it a whimsical and

capricious bent that taints the exercise of discretion with grave abuse, thereby rendering the whole act infirmed and
void.
Since the Provincial Prosecutor, to which the respondent Judge had deferred the matter of reinvestigation, had finally
resolved to stand on the information and to present evidence to prove the quilt of the private respondents for the
crime charged, the respondent Judge did not have the option to dismiss the case on the basis of the disapproved
resolution of Rutor. His only option was to proceed with the arraignment of the accused and, thereafter, conduct a
pre-trial and trial on the merits should they enter a plea of not guilty.
It must be observed that, although the respondent Judge was convinced of Rutor's recommendation to dismiss the
case on the ground of want of probable cause because of the "admission" of Feliza Constantino that the accused
spouses had no participation in the preparation of the questioned document, he still ordered the arraignment of the
private respondents. He seemed to have something in mind for the protection of the interest of the private
respondents. Presumably, he thought that the arraignment which was immediately followed by the dismissal of the
case would forever foreclose, on the ground of double jeopardy, any reopening of the case.
For having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction thereby depriving
the State of due process of law or a fair opportunity to present its evidence and prove its case, the challenged order
of the respondent Judge dismissing Criminal Case No. 1469-M-93 is a null and void. 18 We thus set it aside and order
the reinstatement of the information.
A few words are in order before we write finis to this case.
This Court wonders why Assistant Provincial Prosecutor Edsel M. Rutor disregarded the disapproval by his superior,
Provincial Prosecutor Liberato Reyes, of his resolution recommending the dismissal of Criminal Case No. 1469-M-93.
Additionally, he vigorously objected to the private prosecutor's motion to reconsider the dismissal. Something is
wrong somewhere. The attention of the Department of Justice must be called.
As stated in the beginning, the instant petition is defective in that it was initiated for the People by the private
prosecutor. The "conformity" given by the Provincial Prosecutor did not make it any less defective. This is an
opportune time to remind litigants that in cases of this nature, the Office of the Solicitor General must be consulted
and its assistance solicited. Prosecutors must not simply give conformity to privately initiated petitions; they should
also report the matter to the Office of the Solicitor General for appropriate action.
WHEREFORE, the instant petition is GRANTED. The challenged orders of the respondent Judge of 22 December
1993 dismissing Criminal Case No. 1469-M-93 and of 1 February 1994 denying the motion for reconsideration jointly
filed by the Provincial Prosecutor and the private prosecutor are hereby SET ASIDE for being null and void, and the
trial court is hereby directed to continue with the proceedings therein with purposeful dispatch.
Let a copy of this Decision be furnished the Secretary of the Department of Justice for him to take such appropriate
action as may be necessary against Assistant Provincial Prosecutor Edsel M. Rutor.
SO ORDERED.
G.R. No. 89989 January 28, 1991
EDEN D. PAREDES, petitioner, vs. SANDIGANBAYAN, respondent.
GRIO-AQUINO, J.:p
The issues in this habeas corpus case are: (1) whether the arrest and detention of the petitioner after a preliminary
investigation that was conducted by the Tanodbayan without notice to him, are valid, and (2) whether the crime
charged against him has already prescribed.
On January 21, 1976, Ceferino S. Paredes, Jr., then the Provincial Attorney of Agusan del Sur, applied for a free
patent for Lot No. 3097-A, PLS-67, with an area of 1,391 square meters, located beside the Washington Highway in

San Francisco, Agusan del Sur. His application was favorably acted upon by the Land Inspector, Armando Luison. On
May 11, 1976, OCT No. P-8379 was issued to him (p. 19, Rollo).
Eight (8) years later, on June 27, 1984, the Sangguniang Bayan of the Municipality of San Francisco passed
Resolution No. 40, requesting the Sangguniang Panlalawigan of Agusan del Sur to assist it in recovering Lot No.
3097 from Attorney Paredes because the land had been designated and reserved as a school site. The Sangguniang
Bayan requested the provincial fiscal to file a perjury charge against Attorney Paredes, Jr. (p. 15,Rollo). The
resolution was approved by the Sangguniang Panlalawigan (p. 16, Rollo). On March 28,1985, Civil Case No. 512, for
annulment of Attorney Paredes' title, was filed by the Republic in the Regional Trial Court, Branch 6, Agusan del Sur
(p. 17, Rollo).
During the pendency of Civil Case No. 512, Teofilo Gelacio, former vice-mayor of San Francisco, Agusan del Sur,
filed with the Tanodbayan on October 28, 1986, a criminal complaint charging Attorney Paredes with having violated
Section 3(a) of the Anti-Graft & Corrupt Practices Act (R.A. 3019) because he allegedly used his office as Provincial
Attorney to influence, persuade, and induce Armando Luison, Land Inspector of the District Land Office in Agusan del
Sur, to favorably indorse his free patent application. Section 3(a) of the Anti-Graft Law provides:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act constituting a
violation of rules and regulations duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing himself to be persuaded, induced or
influenced to commit such violation or offense.
On February 23, 1987, the Tanodbayan (now Ombudsman) referred the case to Fiscal Ernesto Brocoy of Butuan City
(TBP Case No. 86-03368) for preliminary investigation.
Fiscal Brocoy issued summons to Attorney Paredes, Jr. to appear at the preliminary investigation of the case on
August 29, 1987. However, the summons were served on November 19, 1987 upon the INP Station Commander of
San Francisco, instead of Atty. Paredes. The summons did not reach Attorney Paredes. Nevertheless, without waiting
for proof of service of the summons on the accused, Fiscal Brocoy proceeded to conduct the preliminary examination
of the complainant and his witnesses. On August 29, 1988, the fiscal issued a resolution finding aprima facie case of
violation of Section 3(a) of R.A. 3019 committed by the accused. The Fiscal's resolution was approved by
Tanodbayan Prosecutor Josephine Fernandez on June 26, 1989 (p. 22, Rollo).
Attorney Paredes filed a motion for reconsideration of the Tanodbayan's resolution. He assailed the validity of the
preliminary investigation that was conducted by Fiscal Brocoy without notice to him (pp. 23-25, Rollo). His motion for
reconsideration was denied.
In the local elections on January 18, 1988, Attorney Paredes was elected governor of Agusan del Sur.
On May 20, 1988, the Regional Trial Court of Agusan del Sur rendered a decision in Civil Case No. 512, annulling
Governor Paredes' Free Patent No. (X-8) 1253 and his OCT No. P-8379 and restoring the land "to the mass of public
domain" (pp. 85-98, Rollo).
On August 28,1988, an information was filed against Governor Paredes in the Sandiganbayan (Crim. Case No.
13800) and a warrant for his arrest, fixing bail of P20,000 for his provisional liberty, was issued on August 30, 1989
and served upon him (p. 12, Rollo). He refused to post bail in "protest against the injustice to him as Governor," (p.
68, Rollo). Consequently, he was detained in the municipal jail of San Francisco.
On September 20, 1989, this petition for habeas corpus was filed by his wife, Mrs. Eden Paredes, against the
Sandiganbayan. She alleged that the warrant for her husband's arrest was void because the preliminary investigation
was void, and, that the crime charged in the information against him had already prescribed.
In his return of the Writ, the Solicitor General, as counsel for the Sandiganbayan, agreed that lack of notice to
Governor Paredes of the preliminary investigation was "a fatal defect" invalidating not only the preliminary

investigation, but also the information prepared by the Tanodbayan, and the warrant of arrest issued by the
Sandiganbayan (p. 54, Rollo). The Solicitor General agreed with the petitioner's contention that the ten year
prescriptive period of the offense under Section 11 of R.A. 3019, assuming it was committed on January 21, 1976,
expired on January 21, 1986. Although the prescriptive period was increased to fifteen (15) years under Section 4,
B.P. Blg. 195 of March 16, 1982, the Solicitor General opined that the new law may not be applied retroactively to
Paredes.
On the other hand, the Ombudsman argued that the Sandiganbayan was improperly made respondent in this case
because it does not have custody of Governor Paredes; that the lack of preliminary investigation did not affect the
validity of the information nor the jurisdiction of the Sandiganbayan; and, that the crime has not yet prescribed
because the period of prescription commences to run not on the day the crime was committed but on the day it was
discovered by the offended party, the authorities, or their agents (Art. 91, Revised Penal Code).
At the hearing of the petition of September 27, 1989, the Court directed the petitioner to implead the Tanodbayan,
through the Special Prosecutor, as well as the Ombudsman, as respondents. The Clerk of Court was instructed to
furnish them with copies of the petition and to require them to answer within ten (10) days. The hearing of this case
was reset on October 18, 1989 at 9:30 o'clock in the morning and provisional liberty was granted Governor Ceferino
Paredes, Jr. on his own recognizance pending the determination of the petition.
On October 6, 1989, the Office of the Special Prosecutor filed its comment on the petition for habeas corpus. The
Special Prosecutor argued that since Paredes was charged in the Sandiganbayan for violation of Republic Act 3019,
and as the Sandiganbayan has jurisdiction over that offense, it is authorized to issue a warrant for his arrest and a
writ of habeas corpus may not issue to free him from the custody of the law.
After careful deliberation over the petition and the comments thereon of the Solicitor General, the Special Prosecutor
and the Ombudsman/Tanodbayan, the Court finds insufficient merit in the petition. The settled rule is that the writ
of habeas corpus will not issue where the person alleged to be restrained of his liberty is in custody of an officer
under a process issued by the court which has jurisdiction to do so (Luna vs. Plaza, 26 SCRA 310; Celeste vs.
People, 31 SCRA 391; Canary vs. Director of Prisons, 36 SCRA 39; Ventura vs. People, L-46576, November 6,
1978).
The petitioner alleges that the information against Governor Paredes is invalid because the preliminary investigation
was invalid and the offense charged has already prescribed. Those circumstances do not constitute valid grounds for
the issuance of a writ of habeas corpus. The absence of a preliminary investigation does not affect the court's
jurisdiction over the case nor impair the validity of the information or otherwise render it defective (People vs.
Casiano, L-15309, February 16, 1961; People vs. Figueroa, L-24273, April 30, 1969). The remedy of the accused in
such a case is to call the attention of the court to the lack of a preliminary investigation and demand, as a matter of
right, that one be conducted. The court, instead of dismissing the information, should merely suspend the trial and
order the fiscal to conduct a preliminary investigation. Thus did we rule in Ilagan vs.Enrile, 139 SCRA 349.
If the detained attorneys question their detention because of improper arrest, or that no preliminary
investigation has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a
Motion before the trial court to quash the Warrant of Arrest, and/or the Information on grounds
provided by the Rules, or to ask for an investigation / reinvestigation of the case. Habeas
corpuswould not lie after the Warrant of commitment was issued by the Court on the basis of the
Information filed against the accused. So it is explicitly provided for by Section 14, Rule 102 of the
Rules of Court. . . . (Emphasis supplied).
Ilagan was a reiteration of this Court's ruling in People vs. Casiano, 1 SCRA 478 (1961) that:
The absence of a preliminary investigation does not affect the court's jurisdiction over the case. Nor
does it impair the validity of the information or otherwise render it defective. If there was no
preliminary investigation and the defendant, before entering his plea, calls the attention of the court
to the absence of a preliminary investigation, the court, instead of dismissing the information,
should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior
court so that the preliminary investigation may be conducted.
The same rule was reiterated in the decision of this court in Doromal vs. Sandiganbayan, G.R. No. 85468,
September 7, 1989.

The defense of prescription of the offense charged in the information should be pleaded in the criminal action
otherwise it would be deemed waived (U.S. vs. Serapio, 23 Phil. 584, 598 citing Aldeguer vs. Hoskyn, 2 Phil. 500;
Domingo vs. Osorio, 7 Phil. 405; Maxilom vs. Tabotabo, 9 Phil. 390; Harty vs. Luna, 13 Phil. 31; Sunico vs. Ramirez,
14 Phil. 500). It is a proper ground for a motion to quash which should be filed before the arraignment of the accused
(Secs. 1 & 2, Rule 117, 1985 Rules of Criminal Procedure; People vs. Castro, L-6407, July 29, 1954) for whether the
crime may still be prosecuted and penalized should be determined in the criminal case not in a special proceeding
of habeas corpus.
All questions which may arise in the orderly course of a criminal prosecution are to be determined
by the court to whose jurisdiction the defendant has been subjected by the law, and the fact that a
defendant has a good and sufficient defense to a criminal charge on which he is held will not entitle
him to his discharge on habeas corpus. (12 R.C.L. 1206.) (Emphasis ours)
WHEREFORE, finding no merit in the petition, the same is hereby denied. The accused, Ceferino Paredes, Jr. should
file a bail bond of P20,000, fixed by the Sandiganbayan for his provisional liberty. Costs against the petitioner.
SO ORDERED.

G.R. No. 102420 December 20, 1994


PROSPERO A. OLIVAS, petitioner, vs. OFFICE OF THE OMBUDSMAN (DEPUTY OMBUDSMAN-AFP), and ATTY.
BIENVENIDO C. BLANCAFLOR, in his capacity as Ombudsman Investigator, respondents.

MENDOZA, J.:
This is a petition for certiorari and prohibition to annul the order, dated October 25, 1991, of respondent Ombudsman
Investigator, requiring petitioner to submit his affidavit and those of his witnesses at the preliminary investigation of a
case for unexplained wealth against petitioner, despite the fact that the Presidential Commission on Good
Government, as complainant, had not reduced its evidence in the form of affidavits and submitted supporting
documents.
Petitioner, Major Gen. Prospero A. Olivas, was Commanding General of the PC Metrocom. He was retired from the
Armed Forces of the Philippines effective February 26, 1986. Shortly thereafter letters were sent to the Presidential
Commission on Good Government, some of them anonymous, charging him with violations of the Anti-Graft and
Corrupt Practices Act (Rep. Act No. 3019) and the Unexplained Wealth Act (Rep. Act No. 1379).
The letters were referred to the New Armed Forces of the Philippines Anti-Graft Board which the PCGG had created
for the purpose of investigating cases of unexplained wealth and corrupt practices against AFP personnel, whether
retired or in the active service.
On August 28, 1986, petitioner was informed by the Bank of the Philippine Islands, Greenhills Branch, that a freeze
order had been issued covering his current and savings accounts. In addition, a hold order was issued against him by
the PCGG.
Petitioner attended the hearings and filed his answer to the charges against him. On April 4, 1988, the Board
recommended that the case against petitioner be provisionally dismissed without prejudice to its revival should new
evidence be found. 1
Petitioner was informed of the findings of the Board in a letter sent to him by the Board on August 15, 1988. The letter
read in part:
The Board met and deliberated on your alleged unexplained wealth case in its regular meeting on
12 August 1988. In the deliberation of your case, the Board found that there is no prima facie case

of unexplained wealth against you under R.A. 3019, the Anti-Graft and Corrupt Practices Act and
thus resolved to have your case dropped and closed for insufficiency of evidence.
WHEREFORE, you are hereby officially informed that the Board has cleared you of the
unexplained wealth against you, without prejudice to have you re-investigated should new evidence
on graft and corrupt practices or unexplained wealth against you be brought to the attention of the
Board. 2
However, the PCGG disapproved the findings and recommendation of the AFP Anti-Graft Board and ordered a review
of the case. On February 6, 1989, it issued subpoenas to petitioner and to the AFP Anti-Graft Board, directing them to
appear before Fiscals Arturo T. De Guia and Peter T. Tabang on February 21, 1989, at 2:00 p.m.
On April 12, 1989, Fiscal Tabang recommended that the Board's findings be affirmed. In his memorandum to the
PCGG, Fiscal Tabang stated:
After our perusal and consideration of the records of this case, the Board's resolution of April 4,
1988 appears to be supported by the evidence on record. Furthermore, the Board, thru its counsel,
Col. Ernesto Punsalang, manifested that there are no new nor additional evidence against Gen.
Olivas (Hearing of February 21, 1988). Likewise, on March 15, 1989, Gen. Olivas, in his
Manifestation and Motion dated March 1, 1989, further clarified his position and established that the
balance of P32,725.00 (or supposed difference in the Financial Analysis of Capt. Samuel Padilla),
should be reduced to only P5,774.73. To the said Manifestation and Motion, the Board's counsel
offered no opposition, reply nor comment.
Thus, on the basis of the foregoing premises, it is hereby recommended that the Board's resolution
of April 4, 1988 be affirmed and approved. 3
Apparently the recommendation of Fiscal Tabang was disapproved because petitioner received another subpoena
ordering him to appear before Prosecutor Donato Sor. Suyat, Jr. on August 18, 1989. In that hearing, petitioner was
ordered to explain certain details regarding documents submitted by him. The directive was later embodied in an
order dated August 21, 1989.
Petitioner agreed, but subsequently he filed a "Motion for Clarification with Alternative Prayer for Dismissal" in which
he complained that, as of that date, no sworn complaint had been filed against him; that no affidavits and supporting
documents had been submitted in evidence against him to support the charge of unexplained wealth; that the case
was denominated as "AFP
Anti-Graft Board v. MGen. Prospero A. Olivas" and yet the Anti-Graft Board had not filed a complaint against him but,
on the contrary, had recommended the dismissal of the charges against him; that as there was no valid complaint,
there was no legal basis for conducting a preliminary investigation; and that the PCGG had no jurisdiction over his
person since it had not been alleged, as required under 2(a) of Executive Order No. 1, 4 that he was one of the
relatives, subordinates and close associates of former President Marcos and that the property which was the subject
of the investigation was ill-gotten wealth which had been acquired "by taking undue advantage of [his] public office
and/or using [his] power, authority, influence, connections, or relationship."
Petitioner prayed that a copy of the complaint, together with affidavits and other supporting documents, if any, be
furnished to him, otherwise the preliminary investigation should be terminated and the freeze and hold orders
previously issued lifted. 5
On November 2, 1989, Commissioner Maximo A. Maceren denied petitioner's motion and gave him five days from
notice within which to submit his written explanation/clarification.
Petitioner filed a motion for reconsideration, citing the fact that the charges against him had previously been
dismissed by the AFP Anti-Graft Board and by Fiscal Tabang and, therefore, there was no cause of action against
him. However, his motion was denied, and an order was issued directing him to submit his explanation on certain
matters as enumerated in the order dated August 21, 1989.
On February 22, 1990, petitioner filed a "Compliance with Reservations Ex Abundanti Causa," claiming that he had
submitted to the AFP Anti-Graft Board his income tax returns for the years from 1979 to 1985.

On November 23, 1990, the PCGG indorsed the records of the case, entitled "AFP Anti-Graft Board, Camp Crame,
Quezon City v. Maj. Gen. Prospero Olivas," to the Office of the Ombudsman.
On April 22, 1991 and June 17, 1991, the Ombudsman issued subpoenas duces tecum to BIR Commissioner Jose U.
Ong ordering him or his representative to appear before the Investigator and to bring the income tax returns of
petitioner for the years from 1978 to 1985.
On June 24, 1991, the BIR Commissioner forwarded petitioner's income tax returns for the years 1982 and 1983. It
certified that the BIR did not have any record of the income tax returns of petitioner for the years 1978, 1979, 1980,
1981, 1984 and 1985.
On September 12, 1991, petitioner received a subpoena 6 in the case, now entitled "Presidential Commission on
Good Government v. Maj. Gen. Prospero Olivas (Ret.)," for violation of Rep. Act No. 1379 (Unexplained Wealth),
ordering him to appear at a hearing on September 16, 1991 and to submit his affidavit and those of his
witnesses. 7 The subpoena stated:
A reinvestigation conducted by this office on the findings of the AFP Anti-Graft Board which was
endorsed to us by complainant, Presidential Commission on Good Government, shows that you
have failed to file income tax returns for the years 1978, 1979, 1980, 1981, 1984, and 1985.
Consequently, a recomputation of this unexplained wealth shows a balance of P1,477,044.54,
instead of P32,725.00 earlier found by the AFP
Anti-Graft Board. For this purpose, we enclose as Schedule "A," "B," and "C" the basis of our
revised computation of your unexplained wealth account.
Petitioner asked for a copy of the sworn complaint against him and to be shown the basis of the figures contained in
the schedules attached to the subpoena, as basis for filing his counter-affidavit. He asked for 10 days from receipt of
the documents within which to submit his evidence.
On October 25, 1991, respondent Bienvenido C. Blancaflor, Ombudsman Investigator in the Office of the
Ombudsman, issued the assailed order, reiterating the earlier finding that petitioner had failed to file his income tax
returns for the years 1978, 1979, 1980, 1981, 1984, and 1985, with the consequence of invalidating the computation
made by the AFP Anti-Graft Board of respondent's unexplained wealth and significantly increasing it from P32,725.00
to P1,477,044.54. The dispositive portion of the order reads:
WHEREFORE, premises considered, respondent is again directed for the last time to file his
counter-affidavit and supporting affidavits of his witnesses, if any, and any other evidence within the
inextendible period of five (5) days from receipt hereof; otherwise, failure on his part to comply with
this Order will compel this office to resolve this case based on the evidence on record.
Let this case be set for preliminary investigation on November 7, 1991 at 2:00 o'clock in the
afternoon.
SO ORDERED. 8
Hence this petition for certiorari and prohibition. Petitioner claims that the respondent Deputy Ombudsman committed
grave abuse of discretion amounting to lack or excess of jurisdiction in compelling him to submit his counter-affidavit
in the absence of a complaint and affidavits of witnesses against him.
We gave due course to the petition and, after considering the respondents' comment as their answer, required the
parties to file memoranda. They have done that and now we must decide this case.
The question for decision is whether the petitioner may be compelled to file his counter-affidavit notwithstanding the
fact that no sworn complaint or affidavit has been filed against him.
The gist of the petitioner's contention is that a sworn complaint is a mandatory requirement for the purpose of
conducting a preliminary investigation. He invokes Rule II, 4 of the Rules of Procedure of the Office of the
Ombudsman which provides:

Sec. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section
3, Rule 112 of the Rules of Court, subject to the following provisions:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
On the other hand, respondents in their Memorandum argue:
There is a substantial distinction between a criminal complaint filed by a private complainant with
the Office of the Ombudsman and one endorsed to the same Office by another Government
agency such as the PCGG, the NBI, the COA, and the AFP or PNP. In the case of a private
complainant, sub-paragraph (a), Section 4 of Administrative Order No. 07 provides that the
"investigating officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints." On the other hand, in the instant case which was referred to the
Office of the Ombudsman by the PCGG, Respondents maintain that the letter dated November 23,
1991 of the PCGG to the Office of the Ombudsman transmitting the entire records of the case to
respondents' Office serve as the complaint and the PCGG, as the complainant, in compliance with
existing procedure on preliminary investigation.
In support of their contention, they cite Rule I, 3 of the Rules of Procedure of the Office of the Ombudsman, which
states:
Sec. 3. Form of complaints, grievances or requests for
assistance. Complaints may be in any form, either verbal or in writing. For a speedier disposition
of the complaint, however, it is preferable that it be in writing and under oath. A complaint which
does not disclose the identity of the complainant will be acted upon only if it merits appropriate
consideration, or contains sufficient leads or parti-culars to enable the taking of further action.
Grievances or requests for assistance may likewise be verbal or in writing. In any case, the
requesting or complaining party must indicate his address and telephone number, if any.
Respondents contend that the present proceedings are merely a continuation of the investigation conducted by the
PCGG and so the petitioner cannot claim ignorance of the charges against him and that he freely participated in the
proceedings before the PCGG even without any affidavit or complaint. They call attention to the fact that this case
was indorsed by the PCGG, after this Court had ruled in Cojuangco, Jr. v. PCGG 9 that the PCGG, after acting as law
enforcer by gathering evidence against a party and filing a civil complaint against him, could not thereafter act as a
judge for the purpose of determining in a preliminary investigation whether there was probable cause for prosecuting
the same party.
Additionally, respondents contend that the procedure outlined in Rule II, 4 of the Rules of Procedure of the Office of
the Ombudsman refers to preliminary investigations conducted in criminal cases, whereas proceedings under Rep.
Act No. 1379 are civil in nature.
We find for petitioner. A useful starting point for a discussion of the issue in this case is the decision inCojuangco, Jr.
v. PCGG 10 in which we described the general power of investigation of the PCGG as consisting of two stages: the
first stage, called the criminal investigation, is a fact-finding inquiry conducted by law enforcement agents, whereby
they gather evidence and interview witnesses and afterwards assess the evidence so that, if they find sufficient basis,
they can file a complaint for the purpose of preliminary investigation. The second stage, called the preliminary
investigation stage, is conducted for the purpose of ascertaining if there is sufficient evidence to bring a person to
trial. 11 We held in that case that, having found petitionerprima facie guilty of violation of Rep. Act No. 3019, for which

reason it issued a freeze order against him and filed a civil complaint for recovery of alleged ill-gotten wealth, the
PCGG could not thereafter act as an impartial judge in conducting a preliminary investigation of criminal complaints
based on the same facts found by it to constitute prima facie evidence against petitioner. We there said:
In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered
the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot
be allowed to conduct the preliminary investigation of his own complaint. It is to say the least
arbitrary and unjust.
It is in such instances that We say one cannot be "a prosecutor and judge at the same time."
Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to
handle with impartiality the preliminary investigation of his own complaint, this time as a public
prosecutor. 12
In accordance with this ruling, the PCGG indorsed the case at bar to the Office of the Ombudsman. It may be
assumed that the PCGG had found sufficient evidence against petitioner to warrant submitting the case for
preliminary investigation. For the rationale of Cojuangco, Jr. v. PCGG is that the role of law enforcer must not be
confounded with that of the public prosecutor who must determine whether there was probable cause for filing the
case in court. In this case, the PCGG had issued a freeze order against petitioner's bank accounts and a hold order
which it refused to lift despite the fact that the AFP panel had provisionally cleared him.
Respondents justify their order to petitioner to submit his evidence, even though there is no formal complaint, on the
basis of Rule I, 3 of the Rules of Procedure of the Office of the Ombudsman which provides that complaints filed
with that office may be "in any form, either verbal or in writing." The cases which the Ombudsman may investigate,
however, are not limited to criminal cases. They include those involving acts and omissions of public officials which
are alleged to be merely "unjust, improper or inefficient." 13 It is to such cases that Rule I, 3 applies primarily.
Indeed, as designated "protectors of the people," the Ombudsman and his deputies are required by the
Constitution 14 to "act promptly on complaints filed in any form or manner against public officials and employees."
Even in investigations looking to the prosecution of a party, Rule I, 3 can only apply to the general criminal
investigation, which in the case at bar was already conducted by the PCGG. But after the Ombudsman and his
deputies have gathered evidence and their investigation has ceased to be a general exploratory one and they decide
to bring the action against a party, their proceedings become adversary and Rule II, 4(a) then applies. This means
that before the respondent can be required to submit counter-affidavits and other supporting documents, the
complainant must submit his affidavit and those of his witnesses. This is true not only of prosecutions of graft cases
under Rep. Act No. 3019 but also of actions for the recovery of unexplained wealth under Rep. Act No. 1379,
because 2 of this latter law requires that before a petition is filed there must be a "previous inquiry similar to
preliminary investigation in criminal cases."
Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may be considered.
While reports and even raw information may justify the initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual
prosecution of the case in court. As this Court held in Cojuangco, Jr. v. PCGG.
Although such a preliminary investigation is not a trial and is not intended to usurp the function of
the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into
the facts concerning the commission of the crime with the end in view of determining whether or not
an information may be prepared against the accused. Indeed, a preliminary investigation is in effect
a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried, the trial court may not be bound as a matter of law
to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a
judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the
production and weighing of evidence, and a decision is rendered thereon. 15
The lack of a complaint and affidavits cannot be excused on the plea that this case originated in anonymous letters
sent to the PCGG. Because of leads furnished by those letters it would seem that the PCGG has found sufficient
evidence justifying its demand to petitioner to explain. It is incumbent upon it as complainant to reduce the evidence
into affidavits. For example, the subpoena issued to petitioner was accompanied by schedules showing how
petitioner was found to have unexplained wealth amounting to P1,477,044.54. The figures contained in these

schedules must be verified under oath by PCGG investigators who must certify to facts either of their own knowledge
or from official records. It is only after the PCGG has submitted its affidavits and other documents that petitioner may
be required to explain, also under oath. It is from such affidavits and counter-affidavits that respondents can then
determine whether there is probable cause for bringing the case in court against petitioner.
This is a requirement not only of Rule II, 4(a) of respondents' Rules of Procedure but also of due process in
adversary proceedings. While those engaged in the investigation of graft and corruption in the government must be
able to respond swiftly to complaints concerning public office, they must at the same time take care that their
investigation is not used to harass or wreak vengeance on those in public office. This was an abiding concern of the
Constitutional Commission 16 to which we must show equal concern.
To conclude, the PCGG has become the complainant in this case. Its case must stand or fall on the evidence it has.
Petitioner cannot be compelled to submit his evidence in the form of counter-affidavits and supporting documents
before the PCGG, as complainant, has embodied its evidence in affidavits or sworn statements.
WHEREFORE, the petition is GRANTED and the questioned order dated October 25, 1991 is SET ASIDE.
SO ORDERED.
G.R. No. 101978. April 7, 1993.
EDUARDO P. PILAPIL, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA and PEOPLE OF THE
PHILIPPINES, respondents.
NOCON, J p:
In this petition for certiorari and mandamus, petitioner seeks to annul the resolutions of respondent Sandiganbayan in
Criminal Case No. 16672, entitled "People of the Philippines vs. Eduardo P. Pilapil" dated June 27, 1991 denying his
motion to quash the information for Violation of Section 3(e) of Republic Act No. 3019, as amended. as well as the
resolution dated September 5, 1991 denying his motion for reconsideration. Petitioner predicated his motion to quash
on the ground of lack of jurisdiction over his person because the same was filed without probable cause. In addition
thereto, petitioner cites the fact that the information for violation of the Anti-Graft Law was filed although the complaint
upon which the preliminary investigation was conducted is for malversation.
The antecedent facts of the case are as follows:
On October 16, 1987, the Philippine Charity Sweepstakes Office (PCSO) donated one ambulance (a Mitsubishi L300) to the Municipality of Tigaon, Camarines Sur. Petitioner, who is the Congressman of the 3rd District of
Camarines Sur, received the ambulance in behalf of the municipality. However, he did not deliver the ambulance to
said municipality.
Unaware of the donation, the Sangguniang Bayan of the municipality passed a resolution (Resolution No. 16, Series
of 1988) requesting PCSO for an ambulance. Said request was reiterated in their Resolution No. 117, Series of 1988.
The mayor of the municipality, Eleanor P. Lelis, thereafter sought the intercession of Sandiganbayan Presiding
Justice Francis Garchitorena, who is from the said municipality, regarding said request. Thereafter, Justice
Garchitorena contacted the PCSO and learned about the ambulance previously donated by the latter to Tigaon
through petitioner. He accordingly informed Mayor Lelis that the municipality's request cannot be favorably acted
upon in view of the previous donation.
Mayor Lelis reiterated the municipality's request for an ambulance making reference to the certification of the
municipal treasurer that no vehicle from the PCSO or from anyone has been received.
Upon verification of the whereabouts of the Mitsubishi L-300 by the PCSO from the petitioner, the latter indicated his
willingness to return the ambulance. In a letter dated December 22, 1988, he requested that said vehicle be donated
instead to the Municipality of Tinambac, same province. Finally, on December 26. 1988, he personally returned the
ambulance, then already painted to cover the logo of the PCSO and the other markings thereon.

With the return of the Mitsubishi L-300 to the PCSO, the Municipality of Tigaon, through Mayor Lelis, finally received a
brand new Besta Kia Ambulance unit complete with all accessories.
On January 2, 1989, Justice Garchitorena wrote the then Chief Justice Marcelo B. Fernan relating to him the whole
story of the ambulance.
On January 25, 1989, Justice Garchitorena also sent Deputy Ombudsman Jose C. Colayco a letter-complaint against
petitioner regarding said ambulance. Said letter-complaint was referred by Ombudsman Conrado M. Vasquez to the
Deputy Ombudsman for Luzon, Manuel C. Domingo, for appropriate action. Thereupon, Deputy Ombudsman
Domingo required Justice Garchitorena to submit all relevant records and documents, as well as his affidavit and
those of his witnesses. Failing in this regard, Justice Garchitorena was requested anew to comply. In his stead,
Anthony D. Jamora, the Regional manager of the Special Projects Department of the PCSO and Mayor Lelis of
Tigaon, Camarines Sur, submitted their respective affidavits.
On October 3, 1990, Deputy Ombudsman Domingo issued an order requiring petitioner to submit his counteraffidavit, affidavits of his witnesses and other controverting evidence. This order was captioned as Case No. OMB-189-0168 for "Malversation of Public Property under Article 217 of the Revised Penal Code."
On October 22, 1990, petitioner submitted his counter-affidavit denying the imputation of said offense claiming that
the vehicle was not equipped with any medical attachments or facilities so he was constrained to request PAGCOR
for assistance to finance its conversion into a medical ambulance which is evidenced by his letter dated November
15, 1987 to Mrs. Alice Reyes. He claimed that it was only on April 28, 1988 that PAGCOR acted on his request, but in
lieu of financial assistance, said office donated accessories, which can be installed at an estimated cost of P5,000.00.
Thus, he allegedly made personal representations with PAGCOR for the latter to shoulder the expenses of the
installation. While awaiting for the financial assistance, petitioner claimed, in explanation why the logo of PCSO and
the other markings on the vehicle were removed, that he acceded to the suggestion of his staff to include the name of
PAGCOR on the sides of the ambulance in view of the substantial contribution of the latter.
On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino issued a resolution finding no probable cause for
malversation and recommended that the case be dismissed, which recommendation was approved by Deputy
Ombudsman Domingo.
On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr. recommended the disapproval of the aforesaid
resolution and instead, suggested the filing of criminal information for violation of Article 217 of the Revised Penal
Code. This was followed by another resolution to the same effect by Special Prosecution Officer Wilfredo Orencia
dated February 14, 1991.
On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution sustaining the finding of Ombudsman
Investigator Tolentino that there is no malversation but found in the same resolution, a prima facie case for violation of
Section 3(e) of Republic Act No. 3019, the dispositive part of which states:
"WHEREFORE, it is hereby directed that the information to be filed against the respondent should be for a violation of
Section 3(e) of R.A. 3019." 1
On April 3, 1991, an information for violation of Section 3(e) of Republic Act No. 3019, docketed as Criminal Case No.
16672, against petitioner was filed, to wit:
"The undersigned Special Prosecution Officer III accuses EDUARDO P. PILAPIL of the crime for 'Violation of Section
3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, committed
as follows:
'That on or about October 16, 1987 and subsequent thereto, in the Municipality of Tigaon, Province of Camarines Sur
and within the jurisdiction of this Honorable Court, the accused is a public officer, he being the Congressman of the
Third Congressional District of Camarines Sur, while in the discharge of his official functions and taking advantage of
his public position, acted with manifest partiality and evident bad faith, did then and there willfully cause undue injury
to the Municipality of Tigaon, Camarines Sur, when he failed to deliver the ambulance, Mitsubishi Van L-300, received
by him on behalf of the said municipality in a Deed of Donation executed by the Philippine Charity Sweepstakes
Office in its favor, to the prejudice and damage of the said municipal government.

CONTRARY TO LAW." 2
On April 12, 1991, a warrant of arrest was issued against petitioner. On April 18, 1991, he was allowed to deposit the
sum of P15,000.00 in court to be considered as bail bond and the warrant of arrest was recalled.
On May 2, 1991, petitioner filed a motion to quash on the ground that respondent Sandiganbayan has no jurisdiction
over his person because the information was filed without probable cause since there is absolutely no proof adduced
in the preliminary investigation of any of the elements of the crime defined in Section 3(e) of Republic Act No. 3019.
On June 27, 1991, respondent court denied the said motion to quash holding that the factual and legal issues and/or
questions raised are evidentiary in nature and are matters of defense, the validity of which can be best passed upon
after a full-blown trial on the merits. On September 5, 1991, respondent court denied petitioner's motion for
reconsideration of the said resolution and set the arraignment of petitioner on October 21, 1991 at 8:30 a.m.
On October 12, 1991, petitioner filed the present petition and by reason of such filing, respondent court ordered that
the arraignment be held in abeyance.
Petitioner enumerates the following as his reasons for filing the petition:
"I. THAT RESPONDENT COURT IS ACTING WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN DENYING THE MOTION TO QUASH.
II. THAT RESPONDENT COURT IS NEGLECTING A LEGAL DUTY IN NOT QUASHING THE INFORMATION OR
DISMISSING THE CASE.
III. THAT PETITIONER HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF
LAW EXCEPT THE PRESENT PETITION." 3
Stated otherwise, the issue in this case is whether or not the Sandiganbayan committed grave abuse of discretion in
denying petitioner's motion to quash and motion for reconsideration.
Petitioner harps on the lack of preliminary investigation on the specific charge of violation of Sec. 3(e), Republic Act
No. 3019, as amended, filed before the Sandiganbayan. He alleges that the preliminary investigation was conducted
for the charge of malversation.
At the outset, this Court bears mention of the rudimentary rule that the absence of a preliminary investigation is not a
ground to quash a complaint or information under Section 3, Rule 117 of the Rules of Court. The proper procedure in
case of lack of preliminary investigation is to hold in abeyance the proceedings upon such information and the case
remanded to the Office of the Provincial Fiscal or the Ombudsman, for that matter, for him or the Special Prosecutor
to conduct a preliminary investigation. 4 Thus, We enunciated in Sanciangco, Jr. vs. People, 5 and reiterated in
Doromal vs. Sandiganbayan, 6 that:
"The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the
validity of the information or otherwise render it defective, but, if there were no preliminary investigations and the
defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of
dismissing the Information, should conduct such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted . . ."
Petitioner takes exception to the doctrine and urges this Court to take a second look arguing that lack of preliminary
investigation affects the court's jurisdiction because it is violative of due process. He reasons out that jurisprudence
abounds with the rule that denial of due process is grave jurisdictional defeat rendering the judgment void.
We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised Rules of Court
refers to the lack of any law conferring upon the court the power to inquire into the facts, to apply the law and to
declare the punishment for an offense in a regular course of judicial proceeding. When the court has jurisdiction, as in
this case, any irregularity in the exercise of that power is not a ground for a motion to quash. Reason is not wanting
for this view. Lack of jurisdiction is not waivable but absence of preliminary investigation is waivable. In fact, it is
frequently waived.

We now come to the question of whether there was no preliminary investigation conducted in this case necessitating
the suspension of the proceedings in the case until after the outcome of such preliminary investigation.
The facts on record show that in an order dated October 3, 1990, Deputy Ombudsman Domingo required petitioner to
answer the charges against him as stated in the affidavits-complaints and supporting documents thereto. Petitioner
fully complied with said order and filed his and his witnesses' affidavits. In other words, petitioner was properly
apprised of the act complained of and given ample opportunity to rebut the same. Thus, petitioner could not validly
raise violation of his right to due process because the bases for the information filed by the Ombudsman were all
reflected in the complaint and the evidence supporting it. In Cinco vs. Sandiganbayan, 7 this Court held that
preliminary investigation is nothing more than the submission of the parties' respective affidavits, counter-affidavits
and evidence to buttress their separate allegations.
Petitioner attaches significance to the fact that the preliminary investigation conducted by the Ombudsman against
him was under the title of "malversation." According to him, this is not sufficient to justify the filing of the charge of
violation of Anti-Graft and Corrupt Practices Law.
Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of
discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his
complaint or information. The preliminary designation of the offense in the directive to file a counter-affidavit and
affidavits of one's witnesses is not conclusive. Such designation is only a conclusion of law of Deputy Ombudsman
Domingo. The Ombudsman is not bound by the said qualification of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation and on the basis of which, he may formulate and designate the
offense and direct the filing of the corresponding information. In fact, even, the designation of the offense by the
prosecutor in the information itself has been held inconclusive, to wit:
". . . the real nature of the criminal charge is determined not from the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual
recital of facts in the complaint or information . . . it is not the technical name given by the Fiscal appearing in the title
of the information that determines the character of the crime but the facts alleged in the body of the Information." 8
Petitioner cites the case of Luciano vs. Mariano, 9 in support of its view that a new preliminary investigation is
needed. In said case, however, the original charge for falsification was dismissed for being without any factual or
legal basis and the category of the offense was raised as the alleged violation of the Anti-Graft Law was a graver
charge. In the case at bar, there is no dismissal to speak of because under the rules of procedure of the office of the
Ombudsman, a complaint may be dismissed only upon the written authority or approval of the Ombudsman. Besides,
even the petitioner admits that the violation of the Anti-Graft law did not raise the category of the offense of
malversation.
The case of Doromal vs. Sandiganbayan, 10 also cited by petitioner as another authority, is likewise inapplicable as
in said case, the information was annulled as the then incumbent Tanodbayan was without authority to conduct
preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the
Ombudsman. With the annulment of the information, this Court held that a new preliminary investigation of the charge
was in order not only because the first was a nullity but also because the accused demands it as his right. In the case
at bar, there is no old or new information. Only one information was filed as a result of the preliminary investigation
conducted by the office of the Ombudsman.
Even on the assumption that no preliminary investigation was conducted for the information filed, petitioner waived
his right thereto for failure to ask the Sandiganbayan or the Ombudsman for a new preliminary investigation. On this
score again, petitioner's case is different from the Luciano and Doromal cases where the attention of the lower court
was called to the lack of a new preliminary investigation. Petitioner bewailed the absence of a new preliminary
investigation only before this Court. It is noteworthy that his only basis for quashing the information is the alleged lack
of jurisdiction of the court over his person because there is no probable cause for the filing of the information.
It is well-settled that the right to a preliminary investigation is not a fundamental right and may be waived expressly or
by silence. 11 Failure of accused to invoke his right to a preliminary investigation constituted a waiver of such right
and any irregularity that attended it. 12 The right may be forfeited by inaction and can no longer be invoked for the
first time at the appellate level. 13

Petitioner's argument that he could not have asked for a new preliminary investigation in the Office of the
Ombudsman since he came to know about the charge only after the information was filed in the Sandiganbayan, is
not tenable. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for
preliminary investigation is recognized even after the case has already been filed, to wit:
"If the case has been filed in court without a preliminary Investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the
same right to adduce evidence to his favor in the manner prescribed in this Rule."
Clearly, the alleged lack of a valid preliminary investigation came only as an afterthought to gain a reversal of the
denial of the motion to quash. Sad to say, this last ditch effort came a bit late. His failure to invoke this right below
constituted a waiver of such right.
As aforesaid, what was submitted for consideration below was the motion to quash of petitioner on the ground of
want of jurisdiction by the trial court over his person because of the filing of an information without probable cause.
There being no probable cause, according to petitioner, then there could be no basis to issue a warrant of arrest and
hence, the respondent court had no jurisdiction over his person.
Contesting the findings of respondent court that probable cause exists in this case, petitioner insists that there is no
competent proof that all the elements of Section 3(e) of the Anti-Graft law are present, namely: that an act was done
(1) causing undue injury to the government, (2) with manifest partiality or evident bad faith, and (3) by a public officer
in the discharge of his official duties.
Petitioner argues that the injury contemplated under the law is real or actual damage and since there is absolutely no
proof of real or actual damages suffered by the municipality, the finding of undue injury by the Ombudsman has no
factual basis. Concomitantly, he says that since there is no undue injury, then, there can be no bad faith, as bad faith
is inseparable from undue injury for undue injury must be through bad faith. He claims that failure to inform the mayor
of the donation, that he returned the vehicle after one year; that he kept the vehicle in storage; and that he caused
the repainting to erase the words PCSO are not evidence of bad faith since they cannot manifest a deliberate intent
to do wrong or cause damage.
Finally, petitioner claims that the element of "public office in the discharge of official duties" is also absent as his
acceptance of the vehicle in question from PCSO and its non-delivery to the municipality of Tigaon was not done in
the discharge of his duty as a congressman tasked with enacting laws. If at all, he admits, the act was done in his
private capacity as political leader in his district.
We agree with respondent court that the presence or absence of the elements of the crime are evidentiary in nature
and are matters of defense, the truth of which can best be passed upon after a full-blown trial on the merits.
Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban 14 as 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.
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts
in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so" 15 The term does not mean "actual and positive cause" nor does it
import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does
not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.
Whether an act was done causing undue injury to the government and whether the same was done with manifest
partiality or evident bad faith can only be made out by proper and sufficient testimony. Necessarily, a conclusion can
be arrived at when the case has already proceeded on sufficient proof.
At the moment, in passing on a motion to set aside an information on the ground that the accused has been charged
without probable cause, the court should not be guided by the rule that accused must be shown to be guilty beyond a

reasonable doubt, but rather whether there is sufficient evidence which inclines the mind to believe, without
necessarily leaving room for doubt, that accused is guilty thereof.
Having thus found that respondent court has not acted in excess of jurisdiction nor with grave abuse of discretion in
finding the existence of probable cause in the case at bar and consequently, in denying the motion to quash and
motion for reconsideration of petitioner, We dismiss as clearly unfounded the insinuations of petitioner that Presiding
Justice Francis Garchitorena used the influence of his office in initiating the complaint against him. We agree with
respondent court that the act of bringing to the attention of appropriate officials possible transgression of the law is as
much an obligation of the highest official of the land as it is the responsibility of any private citizen.
WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 101689. March 17, 1993.
CARLITO U. ALVIZO, petitioner, vs. THE SANDIGANBAYAN (THIRD DIVISION), respondent.
REGALADO, J p:
This petition for certiorari and prohibition with preliminary injunction seeks to annul and set aside the resolutions of
respondent Sandiganbayan, dated November 22, 1990 1 and June 20, 1991, 2 for allegedly having been issued with
grave abuse of discretion and in excess of jurisdiction, and to restrain respondent court from proceeding with
petitioner's arraignment and trial in Criminal Case No. 14893 thereof.
The records show that in a communication dated May 4, 1989, 3 then Congressman Ernesto T. Estrella of the
Second District of Surigao del Sur called the attention of then Secretary of Justice Sedfrey A. Ordoez to the
apparent inability of the Provincial Fiscal of Surigao del Sur to prosecute herein petitioner Carlito Y. Alvizo, who was
then a member of the Surigao del Sur Sangguniang Panlalawigan. It appears that petitioner had been dismissed as
Clerk of Court of the Court of First Instance of Surigao del Sur when he was found to have incurred a deficiency in his
accounts in the amount of P31,612.50, pursuant to a decision of the Supreme Court in Administrative Matter No. 818TEL, promulgated on April 18, 1979. Petitioner's dismissal was without prejudice to his criminal prosecution. 4
Acting on Congressman Estrella's letter, on June 7, 1989 then Chief State Prosecutor Fernando de Leon, on behalf of
Justice Secretary Ordoez, referred the matter to the Provincial Fiscal of Surigao del Sur for appropriate action.
Consequently, a preliminary investigation, docketed as OMB-0-89-01717, was conducted by Second Assistant
Provincial Prosecutor Vicente L. Suarez who thereafter recommended the filing of an information for malversation
against herein petitioner. This recommendation was, however, reversed by Provincial Prosecutor Pretextato
Montenegro but whose recommendation was in turn overruled by Ombudsman Conrado M. Vasquez. 5 Thus, on May
17, 1990 an information 6 was accordingly filed with respondent Sandiganbayan, initiating the present Criminal Case
No. 14893 which charges petitioner with malversation of public funds.
On August 29, 1990, petitioner filed a motion to quash the information 7 allegedly for failure of the same to include a
certification by the investigating fiscal that he conducted a personal examination of the complainant and his witnesses
during the preliminary investigation. Then, on October 17, 1990, petitioner filed a supplemental motion to quash 8 this
time contending that the filing of the information in this case is violative of his constitutional rights to due process and
the speedy disposition of the case against him, as enunciated in Tatad vs. Sandiganbayan, 9 in an obvious appeal to
libertarian inclinations or affectations.
Petitioner avers therein that as early as 1979, a criminal investigation had already been commenced against him for
malversation of public funds by the then Tanodbayan, which was docketed as TBP Case No. 8003-05-05. However, it
was only on May 17, 1990, or twelve years after the initial preliminary investigation was conducted, that an
information was filed against him with the Sandiganbayan. Hence, petitioner claims, by allowing the preliminary
investigation to remain pending for eleven years without taking any action whatsoever, the Tanodbayan clearly
violated his rights to due process and speedy disposition of his cases.

In a resolution promulgated on November 22, 1990, respondent Sandiganbayan denied petitioner's motion and
supplemental motion to quash. Petitioner's motion for reconsideration was likewise denied in a resolution dated June
20, 1991.
Consequent thereto, petitioner is now before us contending that respondent court committed a grave abuse of
discretion in denying his aforestated motions despite the timely objection to the lack of a certification in the
information that the complainant and his witnesses had been personally examined by the investigating officer, and in
spite of the inordinate delay in the filing of the information in violation of petitioner's constitutional rights to due
process and speedy trial.
The petition is devoid of merit and the extraordinary writs sought by petitioner cannot justifiably issue.
Petitioner initially avers that the information is defective because it does not contain a certification by the investigating
prosecutor that the latter personally examined the complainant and his witnesses, in contravention of the requirement
under Section 4, Rule 112 of the Rules of Court which provides:
"Sec. 4. Duty of the investigating fiscal. If the investigating fiscal finds cause to hold the respondent for trial he
shall prepare the resolution and corresponding information. He shall certify under oath that he has examined the
complainant and his witnesses, . . ."
Contrary to petitioner's submission, respondent court made a finding that the investigating officer who conducted the
preliminary investigation personally examined the witness for the prosecution. Thus:
"With respect to the ground raised in the Motion to Quash that the Certification appearing in the Information failed to
state that the Special Prosecutor or any authorized officer has personally examined the complainant and his
witnesses, the records of the Office of the Ombudsman disclose that Nereo A. Sales, COA Auditor, who examined the
cash and accountabilities of the accused, was personally examined by Second Assistant Provincial Prosecutor
Vicente L. Suarez of Surigao del Sur, by taking down his statement which the witness subscribed and swor(e) to
before said assistant prosecutor on December 8, 1989, and who certified as follows:
'THIS IS TO CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed
and understood his affidavit.'
"Actually, therefore, Second Assistant Provincial Prosecutor Vicente L. Suarez who conducted the preliminary
investigation in this case personally examined the witnesses of the prosecution. That the fact was not stated in the
Information itself is merely a formal defect which does not prejudice the substantial rights of the accused and, hence,
does not warrant the quashal of the information . . ." 10
It bears mention that this finding of the Sandiganbayan was never convincingly refuted nor controverted with cogency
by herein petitioner.
The certification appearing in the information filed in Criminal Case No. 14893 of the Sandiganbayan reads as
follows:
"THIS IS TO CERTIFY that a preliminary investigation has been conducted in this case; that there is reasonable
ground to engender a well-founded belief that the crime charged has been committed; and that the accused is
probably guilty thereof." 11
Definitely settled is the rule that notwithstanding the absence in the information of a certification as to the holding of a
preliminary investigation, the information is nonetheless considered valid for the reason that such certification is not
an essential part of the information itself and its absence cannot vitiate it as such. 12 Accordingly, we held in People
vs. Marquez 13 that:
". . . It should be observed that section 3 of Rule 110 defines an information as nothing more than 'an accusation in
writing charging a person with an offense subscribed by the fiscal and filed with the court.' Thus, it is obvious that
such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as
already stated, section 14 of Rule 112 enjoins that 'no information . . . shall be filed without first giving the accused a
chance to be heard in a preliminary investigation', but, as can be seen, the injunction refers to the non-holding of the

preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the
information without a preliminary investigation having been previously conducted, and the injunction that there should
be a certification is only a consequence of the requirement that a preliminary investigation should first be
conducted . . ."
In the case at bar, it is clear that there is a certification to the effect that a preliminary investigation had been
conducted. What is allegedly lacking is the statement that the investigating prosecutor has personally examined the
complainant and his witnesses. We find no compelling reason why the aforementioned doctrinal rules should not be
made applicable to the present case where the alleged violation alluded to by petitioner merely consists of a failure to
state compliance with a part of the proceedings involved in the conduct of a preliminary investigation, that is, the
personal examination by the fiscal of the complainant and his witnesses but which examination was actually
conducted. The fact alone that the certification contains a statement that a preliminary investigation had been
conducted renders nugatory petitioner's arguments on the supposed nullity of the indictment.
We now proceed to the second issue raised by petitioner.
Invoking the ruling enunciated in the Tatad case, petitioner asseverates that his right to speedy trial has been violated
when the information was filed before respondent court only after the lapse of eleven years from the time the
preliminary investigation of the present criminal charge against him was supposedly conducted in 1979. Petitioner's
theory is erroneously premised.
He insists that the preliminary investigation which led to the filing of the information in Criminal Case No. 14893 was
commenced way back in 1979. But there is nothing in the records to show that indeed a preliminary investigation was
initiated and/or conducted in that year. The documents 14 presented by petitioner purporting to be the records of the
alleged earlier preliminary investigation do not show that such an investigation has in fact been conducted in 1979. If
at all, a perusal thereof reveals that the documents merely contain a directive for the transmittal of the pertinent
records to the investigating fiscal and an authority for him to conduct a preliminary investigation. It utterly fails,
however, to establish that a preliminary investigation had been actually commenced and conducted.
For the same reason, and further based on negative considerations of both its admissibility and weight, neither does
the additional evidence adduced on this score by petitioner advance his lost cause, as aptly demonstrated by
respondent court in denying his motion for reconsideration:
"To support his said Motion for Reconsideration, the accused, per his Manifestation/Motion to Admit, dated December
20, 1990, submitted to this Court the Affidavit dated December 3, 1990 of the Provincial Prosecutor of Surigao del
Norte, Hon. Quintin E.L. Paredes, who stated therein that sometime in 1980 when he was the Senior Deputized
Tanodbayan Special Prosecutor of that province, he began the preliminary investigation of TBP Case No. 8003-05-05
against herein accused Carlito Alvizo, for malversation of funds; that he sent out subpoena(e) to witnesses but the
complainant and his witnesses failed to appear; that eventually the then Tanodbayan, Hon. Vicente Ericta deputized
the Provincial Fiscal of Surigao del Sur as Tanodbayan Special Prosecutor so that he forwarded the record of the
case to said Tanodbayan in Manila who in turn directed the deputized Tanodbayan Prosecutor/Provincial Fiscal of
Surigao del Sur, sometime in the middle of 1980, to conduct the preliminary investigation of this case against the
herein accused. However, the said affidavit of Prosecutor Quintin E.L. Paredes is considered hearsay because he
was not presented on the witness stand to be cross-examined by the prosecution; moreover, it has also to be taken
with caution inasmuch as it was executed only on December 3, 1990 or after the promulgation of our Resolution of
November 22, 1990 which is now sought to be reconsidered." 15
Perforce, the Tatad case may not properly be invoked in this case. There was no violation of petitioner's right to
speedy trial for the simple reason that a fair and rational consideration on both counts of the aforestated evidence on
records shows that the preliminary investigation in the present case was begun not in 1979 but only in 1989, and the
corresponding information was in due time filed in 1990.
Nor are we persuaded by petitioner's pretension that in this case the prosecution arm of the Government allowed
itself to be used for political purposes as to put this case within the ambit of the pronouncements in Tatad. The mere
fact here it was a congressman who called the attention of the then Secretary of Justice to the failure of the
corresponding prosecutorial agency to comply with its duty, although that was pointedly indicated by this Court itself
in Administrative Matter No. 818-TEL, does not mean that the prosecution spurred thereby was politically motivated.
Assuming arguendo the existence of personal differences between petitioner and Congressman Estrella, the

unassailable fact remains that the latter's communication to the Secretary of Justice primarily and justifiedly sought a
clarification and gave a reminder of the directive of this Court which had not then been complied with.
Petitioner insistently harps on his main thesis that he was denied his constitutional right to the speedy disposition of
his case. He admits, however, that delays per se are understandably attendant to all prosecutions and are
constitutionally permissible, 16 with the monition that the attendant delay must not be oppressive. 17 Withal, it must
not be lost sight of that the concept of speedy disposition of cases is a relative term and must necessarily be a
flexible concept. 18 Hence, the doctrinal rule is that in the determination of whether or not that right has been
violated, the factors that may be considered and balanced are the length of delay, the reasons for such delay, the
assertion or failure to assert such right by the accused, and the prejudice caused by the delay. 19
While, regrettably, the prosecuting officers appear to have been enmeshed in bureaucratic ennui and
miscommunications in pursuing the prosecution of this case, we are not oblivious of the confusion and handicaps
under which they had to operate and with which they had to contend under a marital law regime during the parlous
period material to this case. We take judicial cognizance of the frequent amendments of procedural laws by
presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by
executive fiat, 20 resulting in changes of personnel, preliminary jurisdiction, functions and powers of prosecuting
agencies.
Petitioner was definitely not unaware of the projected criminal prosecution posed against him by the indication of this
Court as a complementary sanction in its resolution of his administrative case. He appears, however, to have been
insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the
disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been
without his objection hence impliedly with his acquiescence.
We recognize the concern often invoked that undue delay in the disposition of cases may impair the ability of the
accused to defend himself, 21 the usual advertence being to the possible loss or unavailability of evidence for the
accused. We do not apprehend that such a difficulty would arise here. The records of this Court in the administrative
case earlier discussed refer to the same offense charged in the present criminal case, with identical facts and
evidence being involved, aside from the significant consideration that the determinative evidence therein presented
and which would necessarily be submitted in the prospective proceedings before respondent court are principally
documentary in nature.
Consequently, whatever apprehension petitioner may have over the availability of such documents for his defense is
inevitably shared in equal measure by the prosecution for building its case against him. This case, parenthetically, is
illustrative of the situation that what is beneficial speed or delay for one side could be harmful speed or delay for the
other, and vice-versa. Accordingly, we are not convinced at this juncture that petitioner has been or shall be
disadvantaged by the delay complained of or that such delay shall prove oppressive to him. The just albeit belated
prosecution of a criminal offense by the State, which was enjoined by this very Court, should not be forestalled either
by conjectural supplications of prejudice or by dubious invocations of constitutional rights.
WHEREFORE, there being no showing that the impugned resolutions of respondent Sandiganbayan are tainted by
grave abuse of discretion or jurisdictional defect, the instant petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 111399 November 14, 1994
ODON PECHO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J.:
Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No. 3019, 1 as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, punishable? If it is not, may an accused be, nevertheless,
convicted for an offense penalized by the Revised Penal Code which is included in that of the former as charged?
These are the core issues in this case. The first was resolved in the affirmative by the Sandiganbayan. The petitioner
and the Office of the Solicitor General disagree. The second is an outcrop of the first.

In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose Catre were charged in an
information 2 with the violation of Section 3(e) of R.A. No. 3019, as amended, allegedly committed as follows:
That on or about March 16, 1989 and/or sometime prior thereto at Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused ODON PECHO, a public officer
being then the Customs Guard, Miscellaneous Bonded Warehouse Division, Bureau of Customs,
South Harbor, Manila, with the indispensable cooperation and assistance of the accused JOSE
CATRE, whose position, whether public or private, and address are unknown but representing
himself to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm
or partnership which turned-out to be non-existent, fake or fictitious as it is not registered in the
Department of Trade and Industry nor in the Securities and Exchange Commission and with a fake,
spurious or fictitious Tax Account No. as it was not issued by the Revenue Information Systems,
Inc., Bureau of Internal Revenue, acting in the capacities aforesaid, with the former taking
advantage of his official position and both accused, motivated and impelled by personal gain,
financial and pecuniary interest, with deliberate intent to cause damage and undue injury to the
Government, through manifest partiality and evident bad faith, conspiring, confabulating, conniving,
confederating and mutually helping one another, did then and there wilfully, unlawfully and
feloniously act, pretend and feign to be agents or representatives of Eversun Commercial Trading
in the importation of 5 x 20 foot containers STC agricultural disc blades and irrigation water pumps,
and engage, solicit and contract the services of one Constantino Calica of Labatique, a CPA
Customs Broker for the release of said shipment and/or preparation of the necessary import entry
with the two (2) accused, furnishing, presenting and producing the necessary shipping documents
such as packing list, commercial invoice, bill of lading and import entry declaration, which led and
prompted said Customs Broker to file BOC Import Entry No. 14081-89 with the computed taxes and
duties amounting to P53,164.00 declaring the shipment as five (5) containers STC agricultural disc
blades and irrigation water pumps, more particularly described as follows:
5 CONTAINERS STC:
200 pcs. Agricultural Disc Blades 24 inches in diameter
100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump 5 HP
25 sets Centrifugal Water Pump Diesel Engine 10 H.P.
100 sets Centrifugal Water Pump Diesel engine 25 H.P.
but contrary to the entry declaration, the subject shipment before its release, upon examination was
found and/or discovered to contain 300 units diesel engines Model 4DR50A, to wit, viz.:
1. Contr. No. EKLU-2673966 20' containing 60 pcs./units 4DR50A diesel
engines
2. Contr. No. ITLU-6078177 20' containing 60 pcs./units 4DR50A diesel
engines
3. Contr. No. UFCO-3976925 20' containing 60 pcs./units 4DR50A diesel
engines
4. Contr. No. KLTU-1010988 20' containing 60 pcs./units 4DR50A diesel
engines
5. Contr. No. KXTU-2027369 20' containing 60 pcs./units 4DR50A diesel
engines
and the correct taxes and duties is P1,080,485.00, to the damage and prejudice of the government
in the difference of said amounts or to be exact in the amount of P1,027,321.00, said offense
having been committed in relation to the office of the above-named accused.
CONTRARY TO LAW.

The investigating prosecutor 3 made the following certification in the information:


This is to certify that a preliminary investigation has been conducted in this case; that there is a
reasonable ground to engender a well-founded belief that a crime has been committed and that the
accused are probably guilty thereof. 4
Warrants for the arrest of the accused were issued. Only the petitioner was brought under the Sandiganbayan's
jurisdiction when he voluntarily surrendered on 15 March 1991. He posted bail. 5
After the petitioner had pleaded not guilty at his arraignment on 20 March 1991, 6 trial on the merits as against him
ensued.
In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second Division) found the petitioner guilty as
charged and, applying the Indeterminate Sentence Law, sentenced him "to suffer imprisonment for an indeterminate
period of Six (6) years and One (1) month as minimum penalty,
to Ten (10) years and One (1) day, as maximum penalty, with perpetual disqualification to hold public office; and to
pay the Bureau of Customs, by way of civil liability, the sum of P1,027,321.00 and to pay the costs." 8
The petitioner's motion for reconsideration based on the following grounds, to wit:
(1) Invalidity of the information as a consequence of non-compliance with the mandatory provisions
of Sections 3 and 4, Rule 112, 9 Rules of Court, and of Sections 6 and 7, Rules of Procedure of the
Office of the Ombudsman (Administrative Order No. 07);
(2) Failure of the prosecution to overcome by proof beyond reasonable doubt the presumption of
innocence in favor of accused Odon Pecho;
(3) Failure of the prosecution to establish the attendance of the concurring essential elements of
the crime charged; and
(4) There is no such crime as attempted violation of Section 3(e), RA 3019. 10
having been denied in the resolution of the Sandiganbayan of 12 August 1993, 11 he now comes before us
with a reiteration of the said grounds.
In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of time to file its Comment, or for
a total of one hundred and fifty days, the Office of the Solicitor General submits that there is no merit to the
petitioner's claim that the information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the Rules of
Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman (Administrative Order No. 07), but
agrees with the petitioner that the prosecution failed to prove the elements of the crime charged and the
consummation thereof, and, hence, he should be acquitted. However, it recommends that the petitioner be charged
administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known as the Civil Service Decree of
the Philippines.
In the challenged resolution, the Sandiganbayan rejected the first ground invoked by the petitioner in his motion for
reconsideration because of waiver, having voluntarily entered his plea of not guilty, participated at the trial, and
offered his evidence. As to the second and third grounds, it ruled that the decision "is supported with proof beyond
reasonable doubt." And as to the fourth ground, it held that the provisions of the Revised Penal Code on attempted or
frustrated felonies do not apply to offenses penalized by special laws, like the Anti-Graft and Corrupt Practices Act;
hence:
violation of Section 3(e) of RA 3019 is always consummated irrespective of whether or not the
accused has achieved his purpose. The accused's argument that he did not realize his purpose of
depriving the government in the form of customs tax and duties is of no moment. It is enough that
the accused committed an act that would cause undue injury to the government to make him
liable. 13

We agree with the respondent Sandiganbayan and the Office of the Solicitor General that, indeed, the procedural
issue raised is without merit. Firstly, the certification of the investigating Prosecutor in the information is sufficient. His
failure to state therein that the accused was informed of the complaint and of the evidence submitted against him and
that he was given an opportunity to submit controverting evidence, which the petitioner claims is fatal because it is
mandatorily required by Sections 3 and 4, Rule 112 of the Rules of Court, is untenable. When the Prosecutor stated
under oath that, inter alia, "a preliminary investigation has been conducted in this case," he gave the solemn
assurance that such preliminary investigation conformed with the requirements set forth in the said sections. The
certification in question is similarly worded as that involved in Alvizo vs. Sandiganbayan 14which this Court explicitly
declared to be sufficient. This Court also reiterated therein the doctrine laid down in People vs. Marquez15 that the
absence of a certification as to the holding of a preliminary investigation does not invalidate an information because
such certification is not an essential part of the information itself. In Marquez, this Court held:
It should be observed that section 3 of Rule 110 defines an information as nothing more than "an
accusation in writing charging a person with an offense subscribed by the fiscal and filed with the
court." Thus, it is obvious that such certification is not an essential part of the information itself and
its absence cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that
"no information . . . shall be filed, without first giving the accused a chance to be heard in a
preliminary investigation," but, as can be seen, the injunction refers to the non-holding of the
preliminary investigation, not the absence of the certification. In other words, what is not allowed is
the filing of the information without a preliminary investigation having been previously conducted,
and the injunction that there should be a certification is only a consequence of the requirement that
a preliminary investigation should first be conducted.
If the absence of a certification would not even invalidate the information, then its presence, although deficient
because of some missing clauses or phrases required under Section 4, Rule 112 of the Rules of Court, can do
nothing worse than the former.
The rule is also settled that the right to a preliminary investigation may be waived by the failure to invoke the right
prior to or at least at the time of the accused's plea. 16 Where the accused pleaded to the charge, he is deemed to
have foregone the right of preliminary investigation and the right to question any irregularity that surrounds it. 17 The
right to a preliminary investigation is not a fundamental right and may be waived expressly or by silence. 18
Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of the Rules of Procedure of the
Office of the Ombudsman. The presumption of regularity in the performance of official duty 19 on the part of the
investigating Prosecutor was not rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse
resolution pursuant to Section 6 which reads:
Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally
approved by the Ombudsman or by the proper Deputy Ombudsman.
does not affect the validity of an information thereafter filed even if a copy of the resolution upon which the
information is based was not served upon the respondent. The contention that the provision is mandatory in order to
allow the respondent to avail of the 15-day period to file a motion for reconsideration or reinvestigation is not
persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed and acted upon by the
Ombudsman if so directed by the court where the information was filed. Finally, just as in the case of lack of or
irregularity in the conduct of the preliminary investigation, a party, like the petitioner herein, should have seasonably
questioned the procedural error at any time before he entered his plea to the charge. His failure to do so amounted to
a waiver or abandonment of what he believed was his right under Sections 6 and 7, Rule II of the Rules of Procedure
of the Office of the Ombudsman.
We shall now direct our attention to the core issue in this case, viz., whether the attempted or frustrated stage of the
crime defined in Section 3(e) of R.A. No. 3019 is punishable. From the facts proved by the prosecution, the plan of
the petitioner and his co-conspirators to defraud the government was foiled. The Sandiganbayan stated:
However, the felonious plan of the two accused to defraud the government was exposed and foiled
through the combined efforts of the employees of the Bureau of Customs. A spot check on the
shipment was conducted on March 9, 1989 by the Customs Senior Agent Ruperto Santiago. They
discovered that the contents are automotive diesel engines instead of agricultural disc blades and

irrigation pumps as declared in the import entry and revenue declaration (Exh. A-6) filed with the
Bureau of Customs, more particularly as follows:
xxx xxx xxx
On March 30, 1989, a random computation was made by Customs Appraiser
Mamerto Fernandez based on the information provided by the Legal Division and
he found out that a discrepancy exists in the total amount of taxes equivalent to
P1,627,321.00 20(Exh. E). Consequently, a hold order and also a warrant of
seizure and detention were issued by the District Collector of Customs covering
said goods. 21
The evidence for the prosecution, as summarized in the challenged decision 22 and in the Manifestation of the Office
of the Solicitor General, 23 established beyond doubt how the petitioner and his co-accused, Jose Catre, carried out
their plan to defraud the Government.
The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre and the petitioner, then a Customs
Guard of the Bureau of Customs assigned at the Miscellaneous Bonded Warehouse Division, South Harbor, Manila,
went to the office of Constantino Calica, a certified public accountant and a customs broker, at Magallanes Street,
Intramuros, Manila. They introduced themselves to Calica as the duly authorized representatives of Eversun
Commercial Trading, and then engaged him, for an amount equal to fifty percent (50%) of the authorized brokerage
fee, to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration
covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing list (Exhibit "A-3"), the
commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-5"), and the sworn import entry declaration (Exhibit "A6"). The shipment was declared as agricultural disc blades and irrigation water pumps more particularly described as
follows:
200 pcs. Agricultural Disc Blades 24 inches in diameter
100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump Diesel engine 5 HP
25 sets Centrifugal Water Pump Diesel engine 10 HP
100 sets Centrifugal Water Pump Diesel engine 25 HP
Based on the foregoing information and the unit HCV in currency per invoice, the customs duties and taxes due were
computed at P53,164.00.
On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to file the documents with the Manila
International Container Port (MICP) and to proceed to K-Line Shipping in Makati, Metro Manila, for the processing of
the delivery permits. Dennis first dropped by at K-Line Shipping where he was approached by the petitioner and
Catre who introduced themselves as the clients of his father. They invited Dennis to ride with them in petitioner's car
in going to the MICP. Dennis agreed. Upon arrival at the MICP, Dennis proceeded to the Entry Processing Division of
the Bureau of Customs and filed the import entry and internal revenue declaration (Exhibit "A") and other supporting
documents. Dennis handed to the petitioner and Catre a copy of the import entry and internal revenue declaration.
They then proceeded to Section 6, the Examiner's Group, of the Bureau of Customs for further processing.
Two days after the documents were submitted to the Entry Processing Division, Catre called up Calica and requested
Calica to assist him and the petitioner when the cargo will be submitted for actual examination. Calica agreed.
On 21 March 1989 Dennis met again with Catre for the processing of the examination request. After filing the request
with the arrastre operator, Dennis checked the respective serial numbers of each container. Dennis did not join
anymore in the actual examination of the containers.
On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the Bureau of Customs, addressed a formal
request (Exhibit "B") to the District Intelligence Officer of the Bureau for a 100% examination of the shipment
consigned to Eversun Commercial Trading.
On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot check on the questioned shipment to
verify the contents of the container van. It was discovered that the contents were automotive diesel engines instead

of agricultural disc blades and irrigation pumps as declared in the import entry and revenue declaration. The engines
are more particularly described as follows:
1. Contr. No. EKLU-2673966 20' containing 60 pcs./units DR50A diesel engine
2. Contr. No. ITLU-6078177 20' containing 60 pcs./units 4DR50A diesel engine
3. Contr. No. UFCO-3976925 20' containing 60 pcs./units 4DR50A diesel engine
4. Contr. No. KLTU-1010988 20' containing 60 pcs./units 4DR50A diesel engine
5. Contr. No. KXTU-2027369 20' containing 60 pcs./units 4DR50A diesel engine
The computation of the taxes due thereon made on 30 March 1989 by Mamerto Fernandez, Customs Appraiser,
showed a discrepancy in the total amount of P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of
seizure and detention were issued by the District Collector of Customs.
Per the directive of the Commissioner of Customs dated 20 April 1989, Attys. Cesar Tugday and Crisanto Tamparong
of the Internal Inquiry and Prosecution Division conducted an investigation on the circumstances surrounding the
interception and seizure of the shipment. Their verification with the Securities and Exchange Commission (SEC) and
the Department of Trade and Industry (DTI) disclosed that Eversun Commercial Trading is a non-existent firm and
that the tax account number used by Eversun in making the Import Entry Declaration was non-existent.
During their investigation, Tugday and Tamparong issued two subpoenas to the petitioner to appear before them. He
did not appear to explain his side. As a result, Tugday and Tamparong prepared an Investigation Report (Exhibit "I")
containing their findings and recommendations, among which were the filing of criminal charges against the
petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section 3602 of the Tariff and Customs Code of the
Philippines and the filing of criminal charges against the petitioner under Section 3610, in relation to Section 3512.
Subsequently, after appropriate preliminary investigation, the information was filed with the Sandiganbayan.
On the basis of the evidence, the Sandiganbayan concluded that all the elements of Section 3 (e) of R.A. No. 3019,
to wit:
1. The accused is a public officer or private person charged in conspiracy with him;
2. Said public officer commits the prohibited acts during the
performance of his official duties or in relation to his public position;
3. He causes undue injury to any party, whether the government or private party;
4. Such undue injury is caused by giving unwarranted benefits, advantage or preference to such
parties; and
5. The public officer has acted with manifest partiality, evident bad faith or gross inexcusable
negligence. 24
are present in this case. More specifically, it said:
Accused Odon Pecho acted in bad faith from the very start when he conspired with his co-accused
Mr. Jose Catre in misleading the government on the actual contents of the shipments belonging to
Eversun Commercial Trading and thereby evading the payment of correct taxes due to the
government. "Bad faith" does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty
through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel vs. Beacon
Participations 8 NE 2nd Series, 895, 1007). It contemplates a statement of mind affirmatively

operating with furtive design or some motive of self-interest or ill will for ulterior purposes (Air
France vs. Carrascoso, 18 SCRA 155). Evident bad faith connotes a manifest deliberate intent on
the part of accused to do wrong or cause damage.
As Customs Guard, the accused is supposed to safeguard the interest of the government
particularly the Bureau of Customs to which he is employed. Nonetheless, he allowed himself to be
used in this illegal scheme to give unwarranted benefits or advantage to the importer at the
expense of the government. The accused's participation is positively established by the testimonies
of Messrs. Constantino Calica and his son Dennis Calica. These two represent the Calica
Brokerage contracted by the two accused Mr. Pecho and Mr. Catre to prepare and file with the
Bureau of Customs the required import entry declaration. The two accused went straight to Mr.
Calica's office and introduced themselves as the duly authorized representatives of Eversun
Commercial Trading which is based at Surigao del Norte. The contract of services entered into by
the two accused and Mr. Constantino Calica may be said to be peculiar from the usual contract of
this kind. It is limited only to the preparation of the import entry declaration, the computation of
taxes due to the Bureau of Customs and filing the same with the latter. It was the two accused who
handed
Mr. Calica the shipping documents necessary for the preparation of an import entry declaration
such as the packing list (Exh. A-3), the commercial invoice (Exh. A-4), bill of lading (Exh. A-3) and
the importer's sworn statement. These documents declare the shipment as five (5) containers of
STC agricultural disc blades and irrigation water pumps more particularly described as follows:
xxx xxx xxx
Based on the information given by the two accused, the taxes and duties was computed at
P53,164.00.
As the customs representative of Calica Brokerage, Dennis Calica is in-charge with the filing and
posting of documents with the Bureau of Customs. On March 16, 1989, his father instructed him to
file the import entry declaration covering the importations of Eversun Commercial Trading with the
Bureau of Customs. He dropped first at the head office of K Line Shipping Company in Makati to
process the delivery permits. While he was there, two men approached him and introduced
themselves as Mr. Pecho and Mr. Catre, the clients of his father. The two accused invited him to go
with them and they boarded Mr. Pecho's car and the three of them proceeded to the Manila
International Container Port. The two accused accompanied him when the import entry declaration
(Exh. A-6) was filed with the Entry Processing Division, Bureau of Customs. The services of the
Calica Brokerage were again solicited by the two accused in the actual examination of the goods.
So, on March 21, 1989, Dennis Calica met again with the two accused for the said purpose.
There is a deliberate intent on the part of the accused to do wrong or cause damage to the
government. This may be inferred from the actuations of two accused. Their concerted actions
show that they cooperated with each other towards the accomplishment of a common felonious
purpose, in this case, the defraudation of the government through non-payment of the correct
amount of taxes and duties to the latter (People vs. Catubig, 195 SCRA 505). Accused Pecho
assisted his co-accused Catre in his official capacity as a customs guard in processing the
documents required to insure that the goods consigned to Eversun Commercial Trading be
released without delay and without arousing suspicion from the government authorities. Accused
Pecho's act defeats the very objective of the government to upgrade the system of collection with
regard to taxes and duties due to the government. Moreover, this is tantamount to an act of
betrayal of the confidence reposed in him when he was employed as Customs Guard of the Bureau
of Customs. 25
There is no doubt in our minds that without the early discovery of the fraud through the timely recommendation by the
Chief Intelligence Officer for a 100% examination of the shipment and the spot check of the shipment by Customs
Senior Agent Ruperto Santiago, the Government would have been defrauded in the sum of P1,027,321.00
corresponding to the deficiency in taxes. Such discovery and the immediate issuance of a hold order and a warrant of
seizure and detention by the District Collector of Customs against the said articles effectively prevented the
consummation of the offense. The Government incurred no undue injury or damage. At most then, the violation of
Section 3(e) of R.A. No. 3019 reached only the attempted stage because the perpetrators had commenced the
commission of the offense directly by overt acts but failed to perform all the acts of execution which would have

produced the felony as a consequence by reason or some cause other than their own spontaneous
desistance, 26 namely, the timely intervention of alert customs officials before the release of the cargoes.
Except then as to the third requisite of the offense penalized by Section 3 (e) of R.A. No. 3019, as amended, viz.:
"causing undue injury to any party, including the Government," we agree with the findings and conclusion of the
Sandiganbayan that the requisites thereof, as laid down in Ponce de Leon vs. Sandiganbayan, 27 are present in this
case. Would the absence of the third requisite, which, therefore, makes the petitioner's act only an attempted violation
of Section 3(e), subject him to the same penalty as if he had committed the consummated crime? The answer would
depend on whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by special laws, like
R.A. No. 3019, as amended, more specifically to that covered by Section 3(e) thereof, which is involved in this case.
In United States vs. Basa, 29 this Court held that the last paragraph of Article 3 of the Old Penal Code relating to
attempts to commit crimes is not applicable to offenses punished "by acts of the Commission," i.e., special laws.
In People vs. Ngan Te, 30this Court also held that an accused cannot be convicted of a frustrated violation of a crime
punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30 January 1934).
In People vs. Jolliffe, 31 involving a prosecution for the violation of Section 34 of R.A. No. 265, in relation to Section 4
of Central Bank Circular No. 21 which provides:
Any person desiring to export gold in any form, including jewelry, whether for refining abroad or
otherwise, must obtain a license from the Central Bank. Applicants for export licenses must present
satisfactory evidence that the import of the gold into the country of the importer will not be in
violation of the rules and regulations of such country.
this Court, in rejecting the contention of the defense that the penalty for violations of the circular refer to
consummated exportation not to "attempted or frustrated exportation," declared:
This section explicitly applies to "any person desiring to export gold" and, hence, it contemplates
the situation existing prior to the consummation of the exportation. Indeed, its purpose would be
defeated if the penal sanction were deferred until after the article in question had left the
Philippines, for jurisdiction over it, and over the guilty party, would be lost thereby.
It may thus be said that the application of Article 6 of the Revised Penal Code to offenses penalized by special laws
would depend on how the latter defines the offense. This would give life to Article 10 thereof which provides that the
Code shall be supplementary to special laws, unless the latter should specifically provide the contrary. In the case of
Section 4 of Central Bank Circular No. 21, it is clear from the phrase "desiring to export" that even a mere attempt to
export which is necessarily included in desiring is punishable.
There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can be said to penalize only
consummated offenses. Firstly, the penalty imposed therefor per Section 9 is "imprisonment for not less than six
years and one month nor more than fifteen years, perpetual disqualification from office, and confiscation or forfeiture
in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary
and other lawful income." The imposable imprisonment penalty does not have the nomenclature and duration of any
specific penalty in the Revised Penal Code. Accordingly, there can be no valid basis for the application of, inter alia,
Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and attempted felony. The penalty of
perpetual disqualification is only from office, unlike either the perpetual absolute and perpetual special
disqualifications under Articles 30 and 31 of the Revised Penal Code. Secondly, the third requisite of Section
3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage
which must be established by evidence. The word causing is the present participle of the word cause. As a verb, the
latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make to
induce; to compel." 32 The word undue means "more than necessary; not proper; illegal." 33 And the
word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The
invasion of any legally protected interest of another." 34 Taken together, proof of actual injury or damage is required.
Thus, in Alejandro vs. People, 35 which involves a prosecution for the violation of Section 3(e) of R.A. No. 3019, as
amended, this Court, in acquitting the accused declared:
Moreover, one of the elements of the crime described in Sec. 3(e) of the Anti-Graft and Corrupt
Practices Act is that there should be undue injury caused to any party. However, in the 30 July 1987
decision of the respondent Sandiganbayan, it is recognized that there was no proof of damage

caused to the employees of the hospital since they were in fact paid on 27 October 1982 their
salaries for the entire third quarter of 1982.
In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in Alejandro, also stated:
There is no evidence whatsoever to show that the acts of the petitioners were done with evident
bad faith or gross negligence. Neither is there proof that there was undue injury caused to any
party. Who is the party injured? There is nothing in the records to show injury to any party, least of
all the government. The urgent repairs were completed. The Bureau of Customs personnel and the
public dealing with them were benefited but nobody was injured. But most of all, there was no
evident partiality.
No actual injury or damage having been caused to the Government due to the timely 100% examination of the
shipment and the subsequent issuance of a hold order and a warrant of seizure and detention, the petitioner must,
perforce, be acquitted of the violation of Section 3(e) of R.A. No. 3019. Fortunately, for the State, the offense charged
in the information in Criminal Case No. 14844 necessarily includes the complex crime of estafa (under paragraph
2(a), Article 315, Revised Penal Code) through falsification of public documents (under Article 171, Revised Penal
Code). Article 315 reads:
Art. 315. Swindling (estafa). Any person who shall defraud another by any of the means
mentioned herein below.
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.
The information alleges in no uncertain terms the essential ingredients of estafa under said paragraph 2
(a), viz., (1) false or fraudulent representation of co-accused Jose Catre that he was the duly authorized
representative of Eversun Commercial Trading, the alleged importer of agricultural disc blades and irrigation
water pumps in the container van when, in truth and in fact, said importer is non-existent or fictitious with an
equally spurious Tax Account Number, and that the cargoes imported were not as declared but 300 units of
diesel engines, which fraudulent acts were done with the use of falsified documents such as import entry
declaration, packing list, commercial invoice and bill of lading; (2) the false pretenses or fraudulent acts were
executed prior to the commission of the fraud; and (3) the defraudation of the Government in the amount of
P1,027,321.00 in taxes representing the difference between the correct taxes and duties due and that earlier
computed on the basis of the false declaration. In other words some of the essential ingredients of the
offense charged constitute the essential requisites of estafa through falsification of official documents. If duly
proved by the evidence for the prosecution that satisfies the quantum of proof required for conviction, the
petitioner can, under the information be convicted of estafa through falsification of official and commercial
documents, an offense which is, as stated earlier, included in that which is charged.
Section 4, Rule 120 of the Rules of Court provides:
Sec. 4. Judgment in case of variance between allegation and proof. When there is variance
between the offense charged in the complaint or information, and that proved or established by the
evidence, and the offense as charged is included in or necessarily includes the offense proved, the
accused shall be convicted of the offense proved included in that which is charged, or of the
offense charged included in that which is proved.
Analyzing this provision, this Court stated in Esquerra vs. People: 37
Stated differently, an accused may be convicted of an offense provided it is included in the charge,
or of an offense charged which is included in that proved. Still stated differently, an accused can be

convicted of an offense only when it is both charged and proved. If it is not charged although
proved, or if it is not proved although charged, the accused cannot be convicted thereof. In other
words, variance between the allegation and proof cannot justify conviction for either the offense
charged or the offense proved unless either is included in the other.
Section of Rule 120 states when an offense includes or is included in the other:
Sec. 5. When an offense includes or is included in another. An offense charged necessarily
includes that which is proved, when some of the essential elements or ingredients of the former, as
this is alleged in the complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients of the former constitute
or form a part of those constituting the latter.
In view of the aforesaid rules, it follows then that:
a. When the offense proved is less serious than, and is necessarily included in, the offense
charged (as when the offense proved is homicide and the offense charged is murder), in which
case the defendant shall be convicted of the offense proved (U.S. vs. Macalintal, 2 Phil.
448; . . .).
b. When the offense proved is more serious than and includes the offense charged (as when the
offense proved is serious physical injuries and the offense charged is slight physical injuries), in
which case the defendant shall be convicted only of the offense charged (U.S. vs. Guzman, 8 Phil.
21 . . .). 38
As earlier adverted to, the evidence established by the prosecution proves beyond reasonable doubt that the crime of
estafa was only at its attempted stage and that it was sought to be consummated through the falsification of the
following documents: the packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to be prepared by the
exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its general manager; Bill of Lading (Exhibit "A-5")
which appears to be issued in Yokohama by the Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A-6")
all of which show that the cargoes imported were "agricultural disc blades and irrigation water pumps; as well as the
Import Entry and Internal Revenue Declaration signed by customs broker Constantino Calica and prepared on the
basis of the foregoing documents. The falsifications consist in making it appear that the importer-consignee indicated
is a legitimate importer or an existing importer which had participated in such importation and authorized the accused
to request the release of the imported articles although, in truth, it is non-existent and, therefore, had no participation
in the importation; and in the untruthful statements that what were imported were agricultural disc blades and
irrigation water pumps when in truth they were automotive diesel engines.
The information in this case can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No.
3019 and the complex crime of attempted estafa through falsification of official and commercial documents. The
accused having failed to object before trial to the duplicitous information, he may be validly convicted of both or either
of the offenses charged and proved. 39
The Import Entry Declaration (Exhibit "A-6"), a public and official document, is required by Section 1301 of the
Revised Tariff and Customs Code of the Philippines. 40 Under the said section, the parties authorized to make the
import entry are (a) the importer, being the holder of the bill of lading, (b) a duly licensed customs broker acting under
authority from a holder of the bill of lading, or (c) a person duly empowered to act as agent or attorney in fact for such
holder. If the entry is filed by a party other than the importer, the importer shall himself be required to declare under
oath and under penalties for falsification or perjury that the declarations and statements contained in the entry are
true and correct. Such statements under oath shall constituteprima facie evidence of knowledge and consent of the
importer of a violation against applicable provisions of the Code should the importation turn out to be unlawful or
irregular.
The falsifications then of the aforesaid official and commercial documents were the necessary means for the
commission of the attempted estafa.
There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were the authors of the falsification.
Nevertheless, since it was shown with moral certainty from the testimony of the Calicas that the petitioner and Catre
were in possession of the falsified documents and personally delivered them to Dennis Calica and that they showed

extraordinary personal interest in securing the release of the cargoes for a fictitious importer, then the petitioner and
Catre are presumed to be the authors of the falsified documents. A rule, well-buttressed upon reason, is that in the
absence of satisfactory explanation one found in possession of and who used a forged document is the forger and
therefore guilty of falsification. 41 It is, however, essential that the use must be so closely connected in time with the
forging such that the utterer or user may be proved to have the capacity of forging, or such close connection with the
forger that it becomes, when so accomplished, probable proof of complicity in the forgery. 42
In People vs. Sendaydiego, 43 this Court reiterated the rule thus:
The rule is that if a person had in his possession a falsified document and he made use of it
(uttered it), taking advantage of it and profiting thereby, the presumption is that he is the material
author of the falsification. This is especially true if the use or uttering of the forged documents was
so closely connected in time with the forgery that the user or possessor may be proven to have the
capacity of committing the forgery, or to have close connection with the forgers, and, therefore, had
complicity in the forgery. (U.S. vs. Castillo, 6 Phil. 453; People vs. De Lara, 45 Phil. 754; People vs.
Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who is found in possession of a forged document
and who used or uttered it is presumed to be the forger (Alarcon vs. Court of Appeals, L-21846,
March 31, 1967, 19 SCRA 688; People vs. Caragao, L-28258, December 27, 1969, 30 SCRA 993).
No explanation at all having been given by the petitioner as to why he and his co-accused were in possession of and
used the falsified official and commercial documents, they are deemed to be the forgers thereof.
Accordingly, the petitioner is liable for and can be validly convicted of the complex crime of attempted estafa through
falsification of official and commercial documents under paragraph 2(a) of Article 315 and Article 171 of the Revised
Penal Code. Pursuant to Article 48, the penalty for the more serious crime shall be applied in its maximum period.
If the crime of estafa had been consummated, the Government would have been defrauded in the amount of
P1,027,321.00. Hence, the applicable penalty under Article 315 of the Revised Penal Code would have beenprision
correccional in its maximum period to prision mayor in its minimum period, with an additional one (1) year for every
P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not exceed twenty years.
Since what was established was only attempted estafa, then the applicable penalty would be that which is two
degrees lower than that prescribed by law for the consummated felony pursuant to Article 51, in relation to Article
61(5), of the Revised Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum period.
On the other hand, the penalty for falsification under Article 171 is prision mayor and a fine not exceeding P5,000.00.
Obviously then, this is the more serious crime which shall be imposed upon the petitioner pursuant to Article 48.
Since he is entitled to the benefits of the Indeterminate Sentence Law, 44 he can be sentenced to an indeterminate
penalty ranging from two (2) years, four (4) months, and one (1) day of prision correccional medium as minimum to
ten (10) years and one (1) day of prision mayor maximum as maximum and a fine of P2,000.00. The maximum of the
duration is in conformity with Article 48 which mandates that the penalty for the more serious crime shall be applied in
its maximum period.
The foregoing disquisitions clearly suggest that those in charge of investigating criminal complaints against public
officials and employees and of filing the corresponding informations in court must carefully determine under what law
the offenders should be prosecuted. They should note that the offenses enumerated in Section 3 of the Anti-Graft and
Corrupt Practices Act (R.A.
No. 3019, as amended) are but in addition to acts or omissions of public officers already penalized by existing law.
Thus, to attain the very purpose of said law and further enhance the constitutional mandate that a public office is a
public trust and all public officers and employees "must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency," 45 prosecutors should not limit their action to the additional
offenses. To be more logical, they should initially consider if the questioned acts are already penalized by the Revised
Penal Code and should the rule on double jeopardy be inapplicable, to exhaust all the available remedies of the State
against the offender. It is a cardinal rule that the protection against double jeopardy may be invoked only for the same
offense. 46

WHEREFORE, the instant petition is DENIED; however, the judgment of the Sandiganbayan in Criminal Case No.
14844 is modified, and, as modified, the petitioner is hereby declared guilty beyond reasonable doubt of the complex
crime of attempted estafa through falsification of official and commercial documents and, applying the Indeterminate
Sentence Law, is hereby sentenced to suffer an imprisonment penalty ranging from TWO (2) YEARS, FOUR (4)
MONTHS, and ONE (1) DAY of prision correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY
of prision mayor maximum as maximum, with the accessories thereof and to pay a fine of Two Thousand Pesos
(P2,000.00).
Costs against the petitioner.
SO ORDERED.
G.R. No. L-34285 March 8, 1989
B. JOSE CASTILLO, petitioner, vs. HON. ONOFRE A. VILLALUZ, Judge, Circuit Criminal Court, 7th Judicial
District, RENATO MONTES and JOSE DE SILVA, respondents.

NARVASA, J.:
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary
investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of
Court of 1964, 1 was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1,
1985,2 which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v.
Court of Appeals,143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct
of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the
executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts
are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted
does not necessarily mean that it should be indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988 3 did not
restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers
or courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make apreliminary
examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of
arrest (or search warrant). Such a power indeed, it is as much a duty as it is a power has been and remains
vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions
securing the people against unreasonable searches and seizures, 4 thereby placing it beyond the competence of
mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no
longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, 5 he retains the authority, when such a pleading is filed with his court, to determine whether
there is probable cause justifying the issuance of a warrant of arrest. 6 It might be added that this distinction accords,
rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to
order arrest, recognize that function to be judicial in nature. 7
The proceedings at bar have reference to the law in 1971, at which time a preliminary investigation (now in question)
was conducted by respondent Judge of the Circuit Criminal Court. 8 He did so with respect to a complaint dated July
9, 1971 (and Joint Affidavit dated July 21, 1971) filed directly with his Court by Renato Montes and Jose de Silva
against Manuel Laconico The complaint charged the latter with estafa in the amount of P1,000.00. The investigation
culminated in the issuance by respondent Judge of an Order on July 28, 1971 9 containing the following dispositive
portion:
WHEREFORE, there being a preliminary examination and investigation conducted by the Court
and considering that the respondent was given a chance to defend himself, let a warrant be issued
for his apprehension. The respondent is hereby ordered to post a bond in the amount of P3,000.00
for his provisional release.

Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation to Section 13, Rule 112
thereto, the Provincial Fiscal of Rizal is hereby ordered to file the corresponding information against
the respondent before the court of competent jurisdiction within TWENTY-FOUR (24) hours from
receipt hereof.
SO ORDERED.
Notice of the Order was served on the Provincial Fiscal of Rizal, herein petitioner, on July 29, 1971, but he failed to
file the information required within the time appointed, or at any time thereafter. Consequently, on October 1, 1971, he
was directed by His Honor to explain within ten (10) days "why he should not be punished for contempt of court for
delaying the speedy administration of justice for disobeying a lawful order of the Court." 10 The Fiscal filed a motion
for reconsideration, 11 but this was denied, by Order dated October 19, 1971. 12 Hence, this petition for certiorariand
prohibition was presented by petitioner Fiscal, seeking annulment of the aforesaid orders.
Petitioner submits that1) His Honor had no jurisdiction to conduct preliminary investigations, because the law creating
Circuit Criminal Courts, R.A. No. 5179, conferred on said courts only the power to try and decide,
concurrently with the regular courts of first instance, certain specific criminal cases, but not the
power to conduct preliminary investigations;
2) a preliminary investigation is not a part of a trial or the rendition of a decision; it is a function
which may very well be left to the public prosecutors as its discharge would unduly burden judges;
3) even assuming power in the respondent to conduct preliminary investigations, the power does
not include the compulsion of a provincial fiscal, under sanction of contempt, to file an information
in court without conducting his own preliminary investigation; the conduct thereof is a primary duty
of his; as the official charged with the responsibility of instituting and prosecuting criminal cases in
court, the determination of the sufficiency of the evidence to warrant such institution and
prosecution is made to rest by law upon his sound discretion.
During the time that it existed, 13 the Circuit Criminal Court had the same power as a Court of First Instance to
conduct preliminary investigations of offenses cognizable by it. So we have ruled in two (2) cases: Collector of
Customs v. Villaluz, 71 SCRA 356, 14 and de Guzman v. Villaluz, 117 SCRA 182. 15
Now, His Honor was evidently of the view that his determination of the existence of probable cause, founded on the
results of his own preliminary investigation, was the last word on the matter, and the Provincial Fiscal had no option
except to draw up and file the information on the basis of said preliminary investigation. This is why respondent Judge
gave petitioner Fiscal only twenty-four (24) hours "to file the corresponding information."
The Judge is mistaken. It is the fiscal who is given by law "direction and control" of all criminal actions. 16 It is he who
initiates all prosecutions in the name of the People of the Philippines, by information or complaint, against all persons
who appear to be responsible for the offense involved. 17 It is he (or other public prosecutor), therefore, who is
primarily responsible for ascertaining through a preliminary inquiry or proceeding "whether there is reasonable ground
to believe that an offense has been committed and the accused is probably guilty thereof." 18 That function, to repeat,
is not judicial but executive. When a preliminary investigation is conducted by a judge, the judge performs a nonjudicial function, as an exception to his usual judicial duties. The assignment of that function to judges of inferior
courts and to a very limited extent to courts of first instance was dictated by "necessity and practical considerations,"
and the consequent policy, as we said in Salta, was that "wherever there were enough fiscals or prosecutors to
conduct preliminary investigations, courts were to leave that job which is essentially executive to them." It follows that
the conclusions derived by a judge from his own investigation cannot be superior to and conclusively binding on the
fiscal or public prosecutor, in whom that function is principally and more logically lodged. These considerations argue
against giving the term "refer" used in Section 13 of the former Rule 112-which provided that if the judge, after
conducting a preliminary investigation finds probable cause against a defendant," ... be shall issue a warrant for his
arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information"-the effect of imposing
upon the fiscal the mandatory duty to file an information merely upon such reference being made; and this, even
without regard to the fact that in its ordinary sense, the word "refer" conveys no such import nor connotes any
compulsion. And it was no doubt on account of these obvious considerations that, as Salta further observes, Section
37 of Batas Pambansa Blg. 129 reiterated" the removal from Judges of Metropolitan Trial Courts in the National

Capital Region of the authority to conduct preliminary investigations" and "Section 2 of Rule 112 of the 1985 Rules on
Criminal Procedure no longer authorizes Regional Trial Judges to conduct preliminary investigations." It may not be
amiss to point out, in this connection, that the 1988 Amendments to the 1985 Rules on Criminal Procedure (Sec. 5,
Rule 112) explicitly provide inter alia that "(s)hould the provincial or city fiscal disagree with the findings of the
investigating judge on the existence of probable cause, the fiscal's ruling shall prevail." 19
Be it noted, however, that once the fiscal files an information with the Court and the Court thereby acquires
jurisdiction over the case, the case may not be dismissed at the fiscal's instance except only by consent of the Court,
which may grant or withhold it in its discretion. 20
It was therefore grave abuse of discretion amounting to lack of jurisdiction on His Honor's part to seek to foreclose
the petitioner fiscal's prerogative to conduct his own preliminary investigation to determine for himself the existence or
nonexistence of probable cause, and to require him to show cause for not filing the information within twenty-four (24)
hours, on the sole basis of the Judge's conclusions. The fiscal was not bound to a blind, uncritical and unavoidable
acceptance of those conclusions. He had the duty to satisfy himself of the existence of probable cause, and could not
shirk or be made to evade it by an unreasoning and indiscriminate reliance on the judge's investigation.
Since the controversy at bar arose, many years have passed during which Circuit Criminal Courts were abolished, as
already stated, 21 the petitioner Fiscal's public service was ended by compulsory retirement, and the respondent's
stint as Judge, ended by his promotion to a higher court. It is time, too, that this case is ended.
WHEREFORE, the challenged Orders are hereby annulled and set aside. This resolution is immediately executory.
No costs.
Gancayco, Grio-Aquino and Medialdea, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur as long it is understood that the fiscal prevails over the judge only in the determination of the existence of
a prima facie case to justify the filing of a complaint or information. This task is concededly executive. But the
determination of probable cause to justify the issuance of a search warrant or a warrant of arrest is the constitutional
prerogative of the judge and may not be withdrawn from him or even only limited by statute or the Rules of Court.
This task is undoubtedly judicial. The findings of the fiscal in the preliminary investigation do not control or foreclose
the exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights. That power is his
alone.

Separate Opinions
CRUZ, J., concurring:
I concur as long it is understood that the fiscal prevails over the judge only in the determination of the existence of a
prima facie case to justify the filing of a complaint or information. This task is concededly executive. But the
determination of probable cause to justify the issuance of a search warrant or a warrant of arrest is the constitutional
prerogative of the judge and may not be withdrawn from him or even only limited by statute or the Rules of Court.
This task is undoubtedly judicial. The findings of the fiscal in the preliminary investigation do not control or foreclose
the exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights. That power is his
alone.
G.R. No. 106632 October 9, 1997
DORIS TERESA HO, petitioner,
vs.

PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and
the SANDIGANBAYAN (Second Division), respondents.
G.R. No. 106678 October 9, 1997
ROLANDO S. NARCISO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and
the SANDIGANBAYAN (Second Division), respondents.

PANGANIBAN, J.:
May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating
prosecutor, without personally determining probable cause by independently examining sufficient evidence submitted
by the parties during the preliminary investigation?
The Case
This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of Court
challenging the Sandiganbayan's August 25, 1992 Resolution 1 which answered the said query in the affirmative.
The Facts
Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft League of the Philippines,
represented by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the
Ombudsman a complaint 2 against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and
106678, respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoo. The complaint was for
alleged violation of Section 3 (g) of Republic Act 3019 3 prohibiting a public officer from entering into any contract or
transaction on behalf of the government if it is manifestly and grossly disadvantageous to the latter, whether or not
the public officer profited or will profit thereby. After due notice, all respondents therein filed their respective counteraffidavits with supporting documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador (hereafter,
"GIO Labrador") submitted his resolution 4 with the following recommendations:
WHEREFORE, all premises considered, it is respectfully recommended that an information for
violation of Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso
before the Sandiganbayan.
It is likewise recommending that the case against the other respondents be DISMISSED for
insufficiency of evidence.
However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter "SPO
Tamayo") recommended that
both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution of
GIO Labrador, as modified by the memorandum 5 of SPO Tamayo, was approved by Ombudsman Conrado M.
Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an
information 6 filed on May 18, 1992. Attached to the information were the resolution of GIO Labrador and the
memorandum of SPO Tamayo. The said information reads:
The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses
ROLANDO NARCISO and DORIS TERESA HO, President of National Marine Corporation, of
violation of Section 3(e) of RA 3019, as amended, committed as follows:
That on or about April 4, 1989, and for sometime prior and/or subsequent thereto,
in the City of Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused ROLANDO NARCISO, a public officer, being

then the Vice-President of the National Steel Corporation (NSC), a governmentowned or controlled corporation organized and operating under the Philippine
laws, and DORIS TERESA HO, a private individual and then the President of
National Marine Corporation (NMC), a private corporation organized and
operating under our Corporation law, conspiring and confederating with one
another, did then and there wilfully, unlawfully and criminally, with evident bad
faith and through manifest partiality, cause undue injury to the National Steel
Corporation (NSC), by entering without legal justification into a negotiated
contract of affreightment disadvantageous to the NSC for the haulage of its
products at the rate of P129.50/MT, from Iligan City to Manila, despite their full
knowledge that the rate they have agreed upon was much higher than those
offered by the Loadstar Shipping Company, Inc. (LSCI) and Premier Shipping
Lines, Inc. (PSLI), in the amounts of P109.56 and P123.00 per Metric Ton,
respectively, in the public bidding held on June 30, 1988, thereby giving
unwarranted benefits to the National Marine Corporation, in the total sum of One
Million One Hundred Sixteen Thousand Fifty Two Pesos and Seventy Five
Centavos (P1,116,052.75), Philippine Currency, to the pecuniary damage and
prejudice of the NSC in the aforestated sum. The said offense was committed by
Rolando S. Narciso in the performance of his official functions as Vice-President
of the National Steel Corporation.
CONTRARY TO LAW.
Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against
Petitioners Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an "Urgent Motion to Recall
Warrant of Arrest/Motion for Reconsideration" which was adopted by Petitioner Narciso. They alleged that the
Sandiganbayan, in determining probable cause for the issuance of the warrant for their arrest, merely relied on the
information and the resolution attached thereto, filed by the Ombudsman without other supporting evidence, in
violation of the requirements of Section 2, Article III of the Constitution, and settled jurisprudence. Respondent
Sandiganbayan denied said motion in the challenged Resolution. It ratiocinated in this wise.
Considering, therefore, that this Court did not rely solely on the certification appearing in the
information in this case in the determination of whether probable cause exists to justify the
issuance of the warrant of arrest but also on the basis predominantly shown by the facts and
evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then
the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and substance based on the
facts and evidence adduced by both parties during preliminary investigation. To require this Court
to have the entire record of the preliminary investigation to be produced before it, including the
evidence submitted by the complainant and the accused-respondents, would appear to be an
exercise in futility.
Thus, these petitions.
The Issue
Petitioner Ho raises this sole issue:
May a judge determine probable cause and issue [a] warrant of arrest solely on the basis of the
resolution of the prosecutor (in the instant case, the Office of the Special Prosecutor of the
Ombudsman) who conducted the preliminary investigation, without having before him any of the
evidence (such as complainant's affidavit, respondent's counter-affidavit, exhibits, etc.) which may
have been submitted at the preliminary investigation? 7
In his separate petition, Rolando S. Narciso adopts the foregoing and raised no other distinct issue.
Petitioners Ho and Narciso similarly contend that a judge, in personally determining the existence of probable cause,
must have before him sufficient evidence submitted by the parties, other than the information filed by the investigating
prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence should not be

"merely described in a prosecutor's resolution." Citing People vs. Inting, 8 petitioners insist that the judge "must have
before him 'the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents
which are material in assisting the judge to make his determination.'"
The Court's Ruling
The petitions are meritorious.
The pertinent provision of the Constitution reads:
Sec. 2 [Article III]. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce and particularly describing the place to be searched and the
persons or things to be seized. (Emphasis supplied.)
In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the authority
of judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar 9:
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge
to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally
examined the complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as
to the existence of probable cause. 10 [emphasis supplied]
We should stress that the 1987 Constitution requires the judge to determine probable cause "personally." The word
"personally" does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows the
present Constitution's intent to place a greater degree of responsibility upon trial judges than that imposed under the
previous Charters.
While affirming Soliven, People vs. Inting 11 elaborated on what "determination of probable cause" entails,
differentiating the judge's object or goal from that of the prosecutor's.
First, the determination of probable cause is a function of the Judge. It is not for the Provincial
Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists
him to make the determination of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual.
It is the report, the affidavits the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutor's certification which are material in assisting the Judge to
makehis determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for trial or released. Even if the two
inquiries are conducted in the course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable cause for the warrant of arrest is
made by the Judge. The preliminary investigation proper whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial is the function of the
Prosecutor. 12

And clarifying the statement in People vs. Delgado 13 that the "trial court may rely on the resolution of the
COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who
conducted the preliminary investigation, in the issuance of the warrant of arrest" this Court underscored in Lim
Sr. vs. Felix 14 that "[r]eliance on the COMELEC resolution or the Prosecutor's certification presupposes that the
records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification
or resolution because the records of the investigation sustain the recommendation." We added, "The warrant issues
not on the strength of the certification standing along but because of the records which sustain it." Summing up, the
Court said:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine
the complainant and his witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the
Judge's examination should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed
as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for [the] complainant and
[the] witnesses themselves to answer the court's probing questions when the circumstances of the
case so require. 15 [emphasis supplied]
The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno 16 where we explained again what
probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been
committed by the person sought to be arrested. 17 Hence, the judge, before issuing a warrant of arrest, "must satisfy
himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the
person to be arrested is probably guilty thereof." 18 At this stage of the criminal proceeding, the judge is not yet tasked
to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally
evaluates such evidence in determining probable cause. 19 In Webb vs. De Leon, 20 we stressed that the judge merely
determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de
novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is
supported by substantial evidence.
In the recent case of Roberts Jr. vs. Court of Appeals, 21 this Court's application of the dictum laid down in Soliven
affirmed and fortified in Inting, Lim Sr., Allado and Webb should lay to rest the issue raised in the instant petitions.
In Robets Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent judge
directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not personally
determine the existence of probable cause, since he had "only the information, amended information, and Joint
Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable
cause."
In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman,
the thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer,
when it issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar
recommendations the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone should
have prompted the public respondent to verify, in the records and other documents submitted by the parties during
the preliminary investigation, whether there was sufficient evidence to sustain the Ombudsman's action charging both
petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant, the
Sandiganbayan simply said:
JUSTICE ESCAREAL:
xxx xxx xxx
But in this particular case we believe there is prima facie case based on our examination of the
resolution because we believe, we think the Ombudsman will not approve a resolution just like that,
without evidence to back it up. 22

In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution.
In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic)
emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19,
respectively, Record) which clearly and indubitably established, firstly, the conduct of a due and
proper preliminary investigation, secondly, the approval by proper officials clothed with statutory
authority; and thirdly, the determination and ascertainment of probable caused based on the
documentary evidence submitted by the complainant (Anti-Graft League of the Philippines),
foremost among which is the Contract of Affreightment entered into between National Steel
Corporation (NSC), and National Marine Corporation (NMC) and the COA-NSC audit report,
together with the counter-affidavits of accused Rolando Narciso and NMC officials, among whom is
accused-movant. Outlined in detail in the aforesaid Resolution of Titus P. Labrador, Graft
Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director,
Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts
leading to the questioned transaction between NSC and NMC, together with an evaluation of the
propriety and legality of the bidding process involved therein and which revealed that there were
supposed non-compliance with proper bidding procedures. GIO Labrador's findings and
recommendations, extensively set out in his thirteen-page resolution, is complemented by the
three-page Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which
meticulously delved into the merits and demerits of the evidence presented by the complainant and
accused-respondents and which resulted in their respective recommendation which led the
Honorable Conrado M. Vasquez to approve the recommendations of Deputy Special
Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filling of the
information in the case at bar.
xxx xxx xxx
Considering, therefore, that this Court did not rely solely on the certification appearing in the
information in this case in the determination of whether probable cause exists to justify the
issuance of the warrant of arrest but also on the basis predominantly shown by the facts and
evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then
the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient in form and substance based on the
facts and evidence adduced by both parties during the preliminary investigation. To require this
Court to have the entire record of the preliminary investigation to be produced before it, including
the evidence submitted by the complainant and the accused-respondents, would appear to be an
exercise in futility. 23
In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only
wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the
prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground
to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the
accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends
of justice. 24 Thus, even if both should base their findings on one and the same proceeding or evidence, there should
be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding
probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold
him for trial. However, the judge must decide independently. Hence, he must have supporting evidence,other than the
prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of
probable cause to issue an arrest order. This responsibility of determining personally and independently the existence
or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only
the information and his bare resolution finding probable cause, but also so much of the records and the evidence on
hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of
arrest. 25

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


case during the preliminary investigation be submitted to and examined by the judge. 26 We do not intend to unduly
burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose
of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of
stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify
the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on
the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution we repeat, commands the judge to personallydetermine probable cause in
the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies
merely on the certification or the report of the investigating officer.
True, in Webb vs. De Leon, we found that "the painstaking recital and analysis of the parties' evidence made in the
DOJ Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against
petitioners." This statement may have been wrongly construed by the public respondent to mean that the narration or
description of portions of the evidence in the prosecutor's report may serve as sufficient basis to make its own
independent judgment. What it should bear in mind, however, is that, aside from the 26-page report of the DOJ panel,
the sworn statements of three witnesses and counter-affidavits of the petitioners in Webb were also submitted to the
trial court, and the latter is presumed to have reviewed these documents as well, prior to its issuance of the warrants
of arrest.
In the instant case, the public respondent relied fully and completely upon the resolution of the graft investigation
officer and the memorandum of the reviewing prosecutor, attached to the information filed before it, and its conjecture
that the Ombudsman would not have approved their recommendation without supporting evidence. It had no other
documents from either the complainant (the Anti-Graft League of the Philippines) or the People from which to sustain
its own conclusion that probable cause exists. Clearly and ineluctably, Respondent Court's findings of "the conduct of
a due and proper preliminary investigation" and "the approval by the proper officials clothed with statutory authority"
are not equivalent to the independent and personal responsibility required by the Constitution and settled
jurisprudence. At least some of the documentary evidence mentioned (Contract of Affreightment between National
Steel Corporation and National Marine Corporation, the COA-NSC audit report, and counter-affidavits of Rolando
Narciso and NMC officials), upon which the investigating officials of the Ombudsman reportedly ascertained the
existence of probable cause, should have been physically present before the public respondent for its examination, to
enable it to determine on its own whether there is substantial evidence to support the finding of probable cause. But
is stubbornly stood pat on its position that it had essentially complied with its responsibility. Indisputably, however, the
procedure it undertook contravenes the Constitution and settled jurisprudence. Respondent Court palpably committed
grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutor's
findings and recommendation, and without determining on its own the issue of probable cause based on evidence
other than such bare findings and recommendation.
WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the
Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho
and Rolando Narciso is hereby declared NULL AND VOID.
SO ORDERED.