I, MOHAMMAD BANDAHALA y (middle name), of legal age,
married, Filipino citizen and a resident of Ruste San Roque, Zamboanga City, Philippines, after having been duly sworn to in accordance with law hereby depose and say that;
1. I am one of the Respondents in NPS Docket No. IX-06-INQ-
16G-00660 for alleged Violation of Sections 5 and 11, of Republic Act 9165 otherwise known as the Comprehensive Dangerous Drugs Act, Violation of Republic Act 10591 otherwise known as the Illegal Possession of Firearm and Ammunitions and Republic Act 9516 otherwise known as the Illegal Possession of Explosive pending before the Office of the City Prosecutor of Zamboanga City. I received the copy of Subpoena of the Honorable Office dated 29 July 2016 on the same day. However, I was able to engage the services of a counsel only last 08 August 2016, thus, on the same day, I filed through counsel an Ex-Parte Motion for Extension of Time to file and submit my Counter-Affidavit and Affidavit of Witnesses and/or supporting documents praying for additional ten (10) days or until 18 August within which to file and submit the same. In connection therewith, I was able to sign and submit a waiver of Article 125 of the Revised Penal Code before the Honorable Office. Hence, in compliance with the Subpoena of the Honorable Office, I hereby submit my Counter Affidavit and in support hereof, it is most respectfully alleges that: 2. Foremost, I vehemently deny and condemn the baseless and unfounded accusations leveled against me by SPO4 AMADO A. MIRASOL, JR., SPO4 MONTASIL H. AMIRUL and SPO3 GLENN A. BINARAO considering that at the time of my arrest, my Constitutional Rights were violated and that I was not even engaged in the selling or in possession of any illegal drug and I was not in possession of any firearm or fragmentation grenade that were allegedly confiscated from my possession. The truth of the whole incident is narrated hereunder as follows:
3. I am an operator/driver of a rented Public Utility Van (PUV for
brevity) for more or less twelve (12) years now; 4. On 27 July 2016, I was watching a television at our house of the entire morning while waiting for my wife to come home. Thereafter, I suddenly received a phone call from my friend named KAWSAL who is my friend for seven (7) years now 2
and also a driver of a PUV in Ayala, this city. He asked me if I
can meet him down town to accompany him to get his motor- vehicle, to which I agreed. Thereafter, I immediately called my friend JONATHAN I. FERNANDEZ (JONATHAN for brevity) to confirm if he was also invited by KAWSAL to go with us which he answered in the affirmative;
5. Thereafter, on or about 1:00 oclock in the afternoon, I left the
house to meet KAWSAL down town. When I arrived at the city proper, I proceeded to Masters Bake Shop and immediately gave JONATHAN a call purposely to ask his location. Thereafter, he answered my call and told me that he was already in a nearby store so I waited for him at the bakeshop;
6. JONATHAN and I decided to wait KAWSAL at the fire station
at Mayor Climaco Avenue, this City. After more or less (5) minutes, KAWSAL arrived together with his companion named MARK. Thereafter, KAWSAL told us that we are going to get his motor-vehicle at Triplet Street, San Jose Road, this City. Before we proceeded to get said motor-vehicle, I heard KAWSAL calling someone named JUN/JUL on his mobile phone, while saying in a Tausug dialect HARAP MAWUN NA KAMI which in English more or less means we are on our way;
7. Thereafter, we boarded on a Yamaha motor-vehicle? Or
motorcycle? Naa ba SUV Yamaha? and proceeded to Triplet Street, this City, while leaving MARK behind considering that according to him he was suffering from stomachache, thus, he cannot go with us;
8. On or about 4:00 oclock in the afternoon after passing through
Triplet Street, we reached DIAMOND pension house situated in Canelar Moret, this City. We entered said pension house and proceeded to room number three (3) and KAWSAL immediately opens the sliding wooden gate of the garage and I noticed that there was no motor-vehicle inside, so I immediately asked KAWSAL if where was his motor-vehicle, however, he told me that it was just there and commanded us to just go inside of the room; 9. Thereafter, we went inside the room and when I sat down on the other side of the bed, to my surprise, I suddenly saw more or less five (5) unidentified persons went outside of the comfort room and another three (3) persons swiftly appeared in front of us. I immediately asked KAWSAL what was happening, but he just ignored me while saying to the one of the unidentified persons in a Tagalaog dialect YAN NA ANG TINUTUKOY KO SA INYO, YANG DALAWA, which in English more or less 3
means THOSE ARE THE TWO PERSONS I AM REFERRING
TO. One of them shouted on us while asking me and JONATHAN to duck. One of them also asked me if I was in possession of a gun which I answered in the negative; 10. Thereafter, they handcuffed me together with JONATHAN. They loaded us on a certain Crosswind motor-vehicle while KAWSAL boarded on the other motor-vehicle. While inside the said motor-vehicle, they covered our eyes using a packing tape and later on found out that they brought us to Police Regional Office 09 (PRO 09 for brevity), this City. When we arrived at PRO 09, they immediately frisked us, however, they found nothing. Thereafter, one of the personnel swiftly put a gun inside the blue sling bag which I did not give much attention because I saw KAWSAL from the window of the nearby office being freed and they immediately covered again my eyes using a packing tape and detained us at the said station;
11. On 28 July 2016 in the morning, they brought us to
Zamboanga City Police Station 11, this City. Thereafter, upon arrival at the said station they showed me a piece of plastic containing a white crystalline substance, one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade and which they insisted that it was confiscated in our possession which I strongly deny considering that I have no knowledge of all of those alleged pieces of evidence; 12. I hereby declare under oath that I did not violate Section 5 and 11 of Republic Act 9165, Violation of Republic Act 10591 and Republic Act 9516 considering that at the time of my arrest, I was not even engaged in the selling of any illegal drug and I was not in possession of any firearm or fragmentation grenade; 13. Moreover, it is respectfully submitted that I was illegally arrested, considering that the arresting officers were not armed with a Warrant of Arrest and that the circumstances surrounding my arrest does not fall under any of the conditions set forth in Section 5, Rule 113 of the Revised Rules of Criminal Procedure which provides that: A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and 4
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
14. From the above-quoted provision, it is clear therefore that my
arrest was illegally done, considering that based on the foregoing facts and circumstance surrounding my arrest that I was just asked by KAWSAL to help him get his motor-vehicle at Triplet Street, San Jose Road which he later brought me together with JONATHAN to Diamond Pension House where we were arrested by unidentified personnel which later identified themselves as Police Officers. It is submitted that I did not commit the crime and/or offense for which I am being charged; 15. In the case of People of the Philippines vs. Idel Aminuddin (G.R. No. 74869 July 6, 1988), the Supreme Court held: In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. 16. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, herein Respondent was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court.
17. Moreover, the act of searching my person and my bag was a
violation of Section 2 and Section 3(2) of Article III of the 1987 Constitution which provides, to wit: 5
Section 2. 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.
Section 3 (2). Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding.
18. After cursory reading of the above-mentioned
Constitutional provisions, assuming without admitting that the alleged one (1) piece of plastic containing a white crystalline substance, one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade were allegedly confiscated from my person, the same must be deemed inadmissible in evidence considering the acts perpetrated by the Arresting Police Officers were in violation of the above- quoted constitutional provisions as they were not even armed with any search warrant; 19. Moreover, assuming arguendo, that I was in possession of an illegal drug, one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade, it is important to note that possession is defined as a state of mind on the part of the possessor whereby he intends to exercise, and a consequence of which, he does exercise a right of possession, whether that right be legal or otherwise; and while the intention and the will to possess may be, and usually are, inferred from the fact that the thing in question is under the apparent power and control of the alleged possessor, nevertheless, the existence of the animus possidendi is subject to contradiction, and may be rebutted by evidence which tends to prove that the thing in question appears to be does not in fact exercise such power of control and does not intend to do so. Hence, it is apparent in this case, that I had no power or control over the alleged illegal drug nor the drug paraphernalia as it was never taken and/or confiscated from my person; 20. Assuming arguendo that the alleged one (1) heat-sealed sachet containing crystalline substance one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade which were allegedly confiscated from my person, said allegation is deemed questionable, considering that the 6
arresting officers failed to comply with the requisites set forth in
Sec. 21 Paragraph 1 of R.A. 9165, which provides:
The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ) and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. 21. The above-mentioned provision is essential in the determination of the authenticity of the evidence at hand, which in this case would be the one (1) piece heat-sealed sachet containing white crystalline substance confirmed to be shabu; 22. The above-quoted provision is mandatory and it is respectfully submitted that the inventory was not immediately conducted at the place of arrest and that I was not even present during the alleged inventory if any was indeed conducted nor was I even notified that such inventory was made and I was not even made to sign said inventory. Moreover, assuming arguendo that an alleged inventory was made, the procedure runs contrary to the provisions of Sec. 21 Paragraph 1 of R.A. 9165 considering that same was conducted at the Zamboanga City Police Office 11, Governor Lim Avenue, this city and not at the time and place of my arrest and that no representative from the Department of Justice nor a representative from the Media were present at the time when the inventory was conducted. Hence, culled from this facts, it is submitted that the Police Officers miserably failed to present clear, concrete and convincing pieces of evidence that would establish a proper chain of custody that would link me to the one (1) piece heat-sealed sachet containing white crystalline substance, one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade. No evidence was presented to that effect;
23. In the case of the People of the Philippines vs. Ale, (145 SCRA 50), the Supreme court held:
24. XXX By the very nature of anti-narcotics operations, the
need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Court must also be extra 7
vigilant in trying drug charges lest an innocent person is made
to suffer the unusually severe penalties for drug offenses.
25. After cursory reading of the above-mentioned
jurisprudence, it is submitted that I was not selling nor was I in possession of any illegal drug at the time of my arrest and that the only time I saw the one (1) piece heat-sealed sachet containing white crystalline substance allegedly confirmed to be shabu and drug paraphernalia was when one of the Arresting Officer showed it to me and when I was brought to the Central Police Station, Governor Lim, this city;
26. Further, at the time of my arrest I was not even informed
of my constitutional rights which is in clear violation of Section 12 of Article III of the 1987 Constitution which provides that:
(1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
XXXX
(2) Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in evidence against him.
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27. I hereby declare under oath that there was no Buy-Bust
Operation conducted last 3 June 2015 and I was not engaged in the sale of any illegal drug nor was I in possession of any illegal drug, one (1) cal.38 revolver with six (6) rounds live ammunitions and one (1) fragmentation grenade and that I am person of good moral character and shall never allow myself to do such an unlawful acts;
28. I execute this Counter-Affidavit to attest to the truth of the
foregoing facts based on personal knowledge and authentic records in compliance with the Subpoena of the Honorable Office. It is thus requested that the instant case docketed as NPS Docket No. IX-06-INQ-15F-00537 be dismissed for utter lack of merit as the foregoing facts may constitute. 8
IN WITNESS WHEREOF, I have hereunto set my hand on this
___ day of August 2016 at Zamboanga City, Philippines.
IBRAHIM D. JAWADI Affiant
SUBSCRIBED AND SWORN to before me this ___ day of
August 2016 in the City of Zamboanga, Philippines.
CERTIFICATION
I HEREBY CERTIFY that I have personally examined herein
Affiant and that I am satisfied that he voluntarily executed and understood the contents of his Counter-Affidavit.
United States of America Ex Rel. William A. Wynn v. Walter H. Wilkins, As Warden of Attica State Prison, Attica, New York, 342 F.2d 777, 2d Cir. (1965)