FIRST DIVISION

[G.R. No. 118075. September 5, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

EMILIANO CATANTAN y TAYONG, accused-appellant.

DECISION
BELLOSILLO, J.:

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo"

were charged with violation of PD No. 532 otherwise known as the Anti-
Piracy and Highway Robbery Law of 1974 for having on 27 June 1993,
while armed with a firearm and a bladed weapon, acting in conspiracy with
one another, by means of violence and intimidation, wilfully and
feloniously attacked, assaulted and inflicted physical injuries on Eugene
Pilapil and Juan Pilapil Jr. who were then fishing in the seawaters of
Tabogon, Cebu, and seized their fishing boat, to their damage and
prejudice. [1]
The Regional Trial Court of Cebu, after trial, found both accused
Emiliano Catantan y Tayong and Jose Macven Ursal alias "Bimbo" guilty of
the crime charged and sentenced them to reclusion perpetua. [2] Of the duo
only Emiliano Catantan appealed.
In his appeal, accused Catantan contends that the trial court erred in
convicting him of piracy as the facts proved only constitute grave coercion
defined in Art. 286 of the Revised Penal Code and not piracy under PD No.
532.
The evidence for the prosecution is that at 3:00 o'clock in the morning
of 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were
fishing in the sea some 3 kilometers away from the shores of Tabogon,
Cebu. Suddenly, another boat caught up with them. One of them, later
identified as the accused Emiliano Catantan, boarded the pumpboat of the
Pilapils and leveled his gun at Eugene. With his gun, Catantan struck
Eugene on the left cheekbone and ordered him and Juan Jr.
to "dapa." [3] Then Catantan told Ursal to follow him to the pumpboat of the
Pilapils.There they hogtied Eugene, forced him to lie down at the bottom of
the boat, covered him with a tarpaulin up to his neck, stepped on him and
ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the other
pumpboat which the accused had earlier used together with its passengers
one of whom was visibly tied.
Noting that they were already far out into the sea, Eugene reminded
Catantan that they were now off-course but Catantan told Eugene to keep
quiet or he would be killed. Later, the engine conked out and Juan Jr. was
directed to row the boat. Eugene asked to be set free so he could help but
was not allowed; he was threatened with bodily harm instead.
Meanwhile Juan Jr. managed to fix the engine, but as they went farther
out into the open sea the engine stalled again. This time Eugene was
allowed to assist his brother. Eugene's hands were set free but his legs were
tied to the outrigger. At the point of a tres cantos [4] held by Ursal, Eugene
helped row the boat.
As they passed the shoreline of Nipa, they saw another boat. Catantan
asked whose boat that was and the Pilapils told him that it was operated by
a certain Juanito and that its engine was new. Upon learning this, Catantan
ordered the Pilapil brothers to approach the boat cautioning them however
not to move or say anything.
On the pretext that they were buying fish Catantan boarded the "new"
pumpboat. Once aboard he ordered the operator Juanito to take them to
Mungaz, another town of Cebu. When Juanito tried to beg-off by saying
that he would still pull up his net and harvest his catch, Catantan drew his
revolver and said, "You choose between the two, or I will kill
you." [5] Juanito, obviously terrified, immediately obeyed and Ursal hopped
in from the other pumpboat and joined Catantan.
But, as Ursal was transferring to the "new" pumpboat, its outrigger
caught the front part of the pumpboat of the Pilapils so he kicked hard its
prow; it broke. The jolt threw Eugene into the sea and he landed on the
water headlong. Juan Jr. then untied his brother's legs and the two swam
together clinging to their boat. Fortunately another pumpboat passed by
and towed them safely ashore.
Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or
seizure of any vessel, or the taking away of the whole or part thereof or its
cargo, equipment, or the personal belongings of the complement or
passengers, irrespective of the value thereof, by means of violence against
or intimidation of persons or force upon things, committed by any person,
including a passenger or member of the complement of said vessel, in
Philippine waters, shall be considered as piracy. The offenders shall be
considered as pirates and punished as hereinafter provided." And a vessel
is construed in Sec. 2, par. (b), of the same decree as "any vessel or
watercraft used for transport of passengers and cargo from one place to
another through Philippine waters. It shall include all kinds and types of
vessels or boats used in fishing (underscoring supplied).
On the other hand, grave coercion as defined in Art. 286 of the Revised
Penal Code is committed by "any person who, without authority of law,
shall, by means of violence, prevent another from doing something not
prohibited by law, or compel him to do something against his will,
whether it be right or wrong."
Accused-appellant argues that in order that piracy may be committed it
is essential that there be an attack on or seizure of a vessel. He claims that
he and his companion did not attack or seize the fishing boat of the Pilapil
brothers by using force or intimidation but merely boarded the boat, and it
was only when they were already on board that they used force to compel
the Pilapils to take them to some other place. Appellant also insists that he
and Ursal had no intention of permanently taking possession or depriving
complainants of their boat. As a matter of fact, when they saw another
pumpboat they ordered the brothers right away to approach that boat so
they could leave the Pilapils behind in their boat. Accordingly, appellant
claims, he simply committed grave coercion and not piracy.
We do not agree. Under the definition of piracy in PD No. 532 as well as
grave coercion as penalized in Art. 286 of the Revised Penal Code, this case
falls squarely within the purview of piracy. While it may be true that
Eugene and Juan Jr. were compelled to go elsewhere other than their place
of destination, such compulsion was obviously part of the act of seizing
their boat. The testimony of Eugene, one of the victims, shows that the
appellant actually seized the vessel through force and intimidation. The
direct testimony of Eugene is significant and enlightening -

Q: Now, while you and your younger brother were fishing at the seawaters
of Tabogon at that time, was there anything unusual that happened?

A: Yes.

Q: Will you please tell the Court what that was?

A: While we were fishing at Tabogon another pumpboat arrived and the
passengers of that pumpboat boarded our pumpboat.

Q: Now, that pumpboat which you said approached you, how many were
riding in that pumpboat?

A: Four.

Q: When you said the passengers of that pumpboat boarded your

pumpboat, how did they do that?

A: They approached somewhat suddenly and came aboard

the pumpboat (underscoring supplied).

Q: How many suddenly came aboard your pumpboat?

A: Only one.

Q: What did that person do when he came aboard your pumpboat?

A: When he boarded our pumpboat he aimed his revolver at

us (underscoring supplied).

Q: By the way, when he aimed his revolver to you, did he say anything to
you?

xxxx

A: He said, "dapa," which means lie down (underscoring supplied).

COURT:

Q: To whom did he aim that revolver?

A: He aimed the revolver on me.

TRIAL PROS. ECHAVEZ:

Q: What else did he do?

A: Then he ordered his companion to come aboard the pumpboat.

Q: What did he do with his revolver?

A: He struck my face with the revolver, hitting the lower portion of my left
eye.

Q: Now, after you were struck with the revolver, what did these persons do?

A: We were ordered to take them to a certain place.

Q: To what place did he order you to go?

A: To Daan Tabogon. [6]

To sustain the defense and convert this case of piracy into one of grave
coercion would be to ignore the fact that a fishing vessel cruising in
Philippine waters was seized by the accused by means of violence against or
intimidation of persons. As Eugene Pilapil testified, the accused suddenly
approached them and boarded their pumpboat and Catantan aimed his
revolver at them as he ordered complaining witness Eugene Pilapil
to "dapa" or lie down with face downwards, and then struck his face with a
revolver, hitting the lower portion of his left eye, after which, Catantan told
his victims at gun point to take them to Daan Tabogon.
The incident happened at 3:00 o'clock in the morning. The sudden
appearance of another pumpboat with four passengers, all strangers to
them, easily intimidated the Pilapil brothers that they were impelled to
submit in complete surrender to the marauders. The moment Catantan
jumped into the other pumpboat he had full control of his victims. The
sight of a drawn revolver in his hand drove them to submission. Hence the
issuance of PD No. 532 designed to avert situations like the case at bar and
discourage and prevent piracy in Philippine waters. Thus we cite the
succeeding "whereas" clauses of the decree -

Whereas, reports from law-enforcement agencies reveal that lawless

elements are still committing acts of depredations upon the persons and
properties of innocent and defenseless inhabitants who travel from one
place to another, thereby disturbing the peace, order and tranquility of the
nation and stunting the economic and social progress of the people;

Whereas, such acts of depredations constitute either piracy or highway

robbery/brigandage which are among the highest forms of lawlessness
condemned by the penal statutes of all countries; and,
Whereas, it is imperative that said lawless elements be discouraged from
perpetrating such acts of depredations by imposing heavy penalty on the
offenders, with the end in view of eliminating all obstacles to the economic,
social, educational and community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood
is fishing in sea waters. They brave the natural elements and contend with
the unknown forces of the sea to bring home a bountiful harvest. It is on
these small fishermen that the townspeople depend for the daily bread. To
impede their livelihood would be to deprive them of their very subsistence,
and the likes of the accused within the purview of PD No. 532 are the
obstacle to the "economic, social, educational and community progress of
the people." Had it not been for the chance passing of another pumpboat,
the fate of the Pilapil brothers, left alone helpless in a floundering,
meandering outrigger with a broken prow and a conked-out engine in open
sea, could not be ascertained.
While appellant insists that he and Ursal had no intention of depriving
the Pilapils permanently of their boat, proof of which they left behind the
brothers with their boat, the truth is, Catantan and Ursal abandoned the
Pilapils only because their pumpboat broke down and it was necessary to
transfer to another pumpboat that would take them back to their
lair. Unfortunately for the pirates their "new" pumpboat ran out of gas so
they were apprehended by the police soon after the Pilapils reported the
matter to the local authorities.
The fact that the revolver used by the appellant to seize the boat was not
produced in evidence cannot exculpate him from the crime. The fact
remains, and we state it again, that Catantan and his co-accused Ursal
seized through force and intimidation the pumpboat of the Pilapils while
the latter were fishing in Philippine waters.
WHEREFORE, finding no reversible error in the decision appealed
from, the conviction of accused-appellant EMILIANO CATANTAN y
TAYONG for the crime of piracy penalized under PD No. 532 and
sentencing him accordingly to reclusion perpetua, is AFFIRMED. Costs
against accused-appellant.
SO ORDERED.

SECOND DIVISION
 [G.R. Nos. 153524-25. January 31, 2005]

RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON.

ANIANO DESIERTO in his capacity as Head of the Office of
the Ombudsman, HON. ORLANDO C. CASIMIRO in his
capacity as Deputy Ombudsman for Military, P/INS.
JEFFREY T. GOROSPE, SPO2 ROLANDO G. REGACHO,
SPO1 ALFREDO B. ALVIAR, JR., PO3 JAIME D. LAZARO,
PO2 FLORANTE B. CARDENAS, PO1 JOSEPH A. BENAZA,
SPO1 FRANKLIN D. CABAYA and SPO4 PEDRO
PAREL, respondents.

DECISION
CHICO-NAZARIO, J.:

Yet again, we are tasked to substitute our judgment for that of the Office
of the Ombudsman in its finding of lack of probable cause made during
preliminary investigation. And, yet again, we reaffirm the time-honored
practice of non-interference in the conduct of preliminary investigations by
our prosecutory bodies absent a showing of grave abuse of discretion on
their part.
Petitioners, thru a special civil action for certiorari,[1] contend precisely
that the public respondents herein officers of the Office of the Ombudsman
gravely abused their discretion in dismissing the complaint for violation of
Article 125 of the Revised Penal Code (Delay in the delivery of detained
persons) against private respondents herein, members of the Philippine
National Police stationed at the Municipality of Santa, Ilocos Sur.
From the respective pleadings[2] of the parties, the following facts
appear to be indubitable:

1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the

day before the 14 May 2001 Elections[3]), petitioners were arrested without
a warrant by respondents police officers for alleged illegal possession of
firearms and ammunition;

2. Petitioner Soria was arrested for alleged illegal possession of .38 cal.
revolver (a crime which carries with it the penalty of prision correccional in
its maximum period) and for violation of Article 261 par. (f) of the Omnibus
Election Code in relation to the Commission on Election Resolution No.
3328 (which carries the penalty of imprisonment of not less than one [1]
year but not more than six [6] years);

3. Petitioner Bista was arrested for alleged illegal possession of sub-

machine pistol UZI, cal. 9mm and a .22 cal. revolver with ammunition;

4. Immediately after their arrest, petitioners were detained at the Santa,

Ilocos Sur, Police Station. It was at the Santa Police Station that petitioner
Bista was identified by one of the police officers to have a standing warrant
of arrest for violation of Batas Pambansa Blg. 6 issued by the Municipal
Trial Court (MTC) of Vigan, Ilocos Sur, docketed as Criminal Case No.
12272;

5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and
election day), petitioners were brought to the residence of Provincial
Prosecutor Jessica Viloria in San Juan, Ilocos Sur, before whom a Joint-
Affidavit against them was subscribed and sworn to by the arresting
officers. From there, the arresting officers brought the petitioners to the
Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at about 6:00
p.m. the Joint-Affidavit was filed and docketed;

6. At about 6:30 in the evening of the same day, 14 May 2001,

petitioner Soria was released upon the order of Prosecutor Viloria to
undergo the requisite preliminary investigation, while petitioner Bista was
brought back and continued to be detained at the Santa Police Station.
From the time of petitioner Sorias detention up to the time of his
release, twenty-two (22) hours had already elapsed;

7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was

brought before the MTC of Vigan, Ilocos Sur, where the case for violation of
Batas Pambansa Blg. 6 was pending. Petitioner Bista posted bail and an
Order of Temporary Release was issued thereafter;

8. At this point in time, no order of release was issued in connection with

petitioner Bistas arrest for alleged illegal possession of firearms. At 4:30
in the afternoon of the same day (15 May 2001), an information for
Illegal Possession of Firearms and Ammunition, docketed as Criminal Case
No. 4413-S, was filed against petitioner Bista with the 4th Municipal Circuit
Trial Court of Narvacan, Ilocos Sur. At 5:00 in the afternoon, informations
for Illegal Possession of Firearms and Ammunition and violation of Article
261 par. (f) of the Omnibus Election Code in relation to COMELEC
Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No.
2268-N, respectively, were filed in the Regional Trial Court at Narvacan,
Ilocos Sur;

9. On 08 June 2001, petitioner Bista was released upon filing of bail

bonds in Criminal Cases No. 2268-N and No. 4413-S. He was detained
for 26 days.

10. On 15 August 2001, petitioners filed with the Office of the Ombudsman
for Military Affairs a complaint-affidavit for violation of Art. 125 of the
Revised Penal Code against herein private respondents.

11. After considering the parties respective submissions, the Office of the
Ombudsman rendered the first assailed Joint Resolution dated 31 January
2002 dismissing the complaint for violation of Art. 125 of the Revised Penal
Code for lack of merit; and

12. On 04 March 2002, petitioners then filed their motion for

reconsideration which was denied for lack of merit in the second assailed
Resolution dated 25 March 2002.

Article 125 of the Revised Penal Code states:

Art. 125. Delay in the delivery of detained persons to the proper judicial
authorities. - The penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain any person
for some legal ground and shall fail to deliver such person to the proper
judicial authorities within the period of: twelve (12) hours, for crimes or
offenses punishable by light penalties, or their equivalent; eighteen (18)
hours, for crimes or offenses punishable by correctional penalties, or their
equivalent; and thirty-six (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his
detention and shall be allowed, upon his request, to communicate and
confer at any time with his attorney or counsel.

It is not under dispute that the alleged crimes for which petitioner Soria
was arrested without warrant are punishable by correctional penalties or
their equivalent, thus, criminal complaints or information should be filed
with the proper judicial authorities within 18 hours of his arrest. Neither is
it in dispute that the alleged crimes for which petitioner Bista was arrested
are punishable by afflictive or capital penalties, or their equivalent, thus, he
could only be detained for 36 hours without criminal complaints or
information having been filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of
the 12-18-36 periods. With respect specifically to the detention of petitioner
Soria which lasted for 22 hours, it is alleged that public respondents gravely
erred in construing Article 125[4] as excluding Sundays, holidays and
election days in the computation of the periods prescribed within which
public officers should deliver arrested persons to the proper judicial
authorities as the law never makes such exception. Statutory construction
has it that if a statute is clear and unequivocal, it must be given its literal
meaning and applied without any attempts at interpretation.[5] Public
respondents, on the other hand, relied on the cases of Medina v. Orozco,
Jr.,[6] and Sayo v. Chief of Police of Manila[7] and on commentaries[8] of
jurists to bolster their position that Sundays, holidays and election days are
excluded in the computation of the periods provided in Article 125,[9] hence,
the arresting officers delivered petitioners well within the allowable time.
In addition to the foregoing arguments and with respect specifically to
petitioner Bista, petitioners maintain that the filing of the information in
court against petitioner Bista did not justify his continuous detention. The
information was filed at 4:30 p.m. of 15 May 2001 but the orders for his
release were issued by the Regional Trial Court and Municipal Trial Court
of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that based on
law and jurisprudence, if no charge is filed by the prosecutor within the
period fixed by law, the arresting officer must release the detainee lest he be
charged with violation of Article 125.[10] Public respondents countered that
the duty of the arresting officers ended upon the filing of the informations
with the proper judicial authorities following the rulings in Agbay v.
Deputy Ombudsman for the Military,[11] and People v. Acosta.[12]
From a study of the opposing views advanced by the parties, it is evident
that public respondents did not abuse their discretion in dismissing for lack
of probable cause the complaint against private respondents.
Grave abuse of discretion is such capricious and whimsical exercise of
judgment on the part of the public officer concerned which is equivalent to
an excess or lack of jurisdiction. The abuse of discretion must be so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by reason
of passion or hostility.[13]
No grave abuse of discretion, as defined, can be attributed to herein
public respondents. Their disposition of petitioners complaint for violation
of Article 125 of the Revised Penal Code cannot be said to have been
conjured out of thin air as it was properly backed up by law and
jurisprudence. Public respondents ratiocinated thus:

As aptly pointed out by the respondents insofar as the complaint of Rodolfo

Soria is concerned, based on applicable laws and jurisprudence, an election
day or a special holiday, should not be included in the computation of the
period prescribed by law for the filing of complaint/information in courts in
cases of warrantless arrests, it being a no-office day. (Medina vs. Orosco,
125 Phil. 313.) In the instant case, while it appears that the complaints
against Soria for Illegal Possession of Firearm and Violation of COMELEC
Resolution No. 3328 were filed with the Regional Trial Court and Municipal
Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m., he
had already been released the day before or on May 14, 2001 at about 6:30
p.m. by the respondents, as directed by Prov. Prosecutor Jessica [Viloria].
Hence, there could be no arbitrary detention or violation of Article 125 of
the Revised Penal Code to speak of.[14]

Indeed, we did hold in Medina v. Orozco, Jr.,[15] that

. . . The arresting officers duty under the law was either to deliver him to the
proper judicial authorities within 18 hours, or thereafter release him. The
fact however is that he was not released. From the time of petitioners arrest
at 12:00 oclock p.m. on November 7 to 3:40 p.m. on November 10 when the
information against him for murder actually was in court, over 75 hours
have elapsed.

But, stock should be taken of the fact that November 7 was a Sunday;
November 8 was declared an official holiday; and November 9 (election
day) was also an official holiday. In these three no-office days, it was not an
easy matter for a fiscal to look for his clerk and stenographer, draft the
information and search for the Judge to have him act thereon, and get the
clerk of court to open the courthouse, docket the case and have the order of
commitment prepared. And then, where to locate and the uncertainty of
locating those officers and employees could very well compound the fiscals
difficulties. These are considerations sufficient enough to deter us from
declaring that Arthur Medina was arbitrarily detained. For, he was brought
to court on the very first office day following arrest.

And, in Sayo v. Chief of Police of Manila[16] --

. . . Of course, for the purpose of determining the criminal liability of an

officer detaining a person for more than six hours prescribed by the Revised
Penal Code, the means of communication as well as the hour of arrest and
other circumstances, such as the time of surrender and the material
possibility for the fiscal to make the investigation and file in time the
necessary information, must be taken into consideration.

As to the issue concerning the duty of the arresting officer after the
information has already been filed in Court, public respondents acted well
within their discretion in ruling thus:

In the same vein, the complaint of Edimar Bista against the respondents for
Violation of Article 125, will not prosper because the running of the thirty-
six (36)-hour period prescribed by law for the filing of the complaint
against him from the time of his arrest was tolled by one day (election day).
Moreover, he has a standing warrant of arrest for Violation of B.P. Blg. 6
and it was only on May 15, 2001, at about 2:00 p.m. that he was able to post
bail and secure an Order of Release. Obviously, however, he could only be
released if he has no other pending criminal case requiring his continuous
detention.

The criminal Informations against Bista for Violations of Article 125, RPC
and COMELEC Resolution No. 3328 were filed with the Regional Trial
Court and Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001
(Annexes G and I, Complaint-Affidavit of Edimar Bista) but he was released
from detention only on June 8, 2001, on orders of the RTC and MTC of
Narvacan, Ilocos Sur (Annexes J and K, Complaint-Affidavit). Was there a
delay in the delivery of detained person to the proper judicial authorities
under the circumstances? The answer is in the negative. The complaints
against him was (sic) seasonably filed in the court of justice within the
thirty-six (36)-hour period prescribed by law as discussed above. The duty
of the detaining officers is deemed complied with upon the filing of the
complaints. Further action, like issuance of a Release Order, then rests
upon the judicial authority (People v. Acosta [CA] 54 O.G. 4739).[17]
 The above disposition is in keeping with Agbay v. Deputy Ombudsman
for the Military,[18] wherein we ordained that

. . . Furthermore, upon the filing of the complaint with the Municipal Trial
Court, the intent behind Art. 125 is satisfied considering that by such act,
the detained person is informed of the crime imputed against him and,
upon his application with the court, he may be released on bail. Petitioner
himself acknowledged this power of the MCTC to order his release when he
applied for and was granted his release upon posting bail. Thus, the very
purpose underlying Article 125 has been duly served with the filing of the
complaint with the MCTC. We agree with the position of the Ombudsman
that such filing of the complaint with the MCTC interrupted the period
prescribed in said Article.

All things considered, there being no grave abuse of discretion, we have

no choice but to defer to the Office of the Ombudsmans determination that
the facts on hand do not make out a case for violation of Article 125 of the
Revised Penal Code.
As we have underscored in numerous decisions --

We have consistently refrained from interfering with the investigatory and

prosecutorial powers of the Ombudsman absent any compelling reason.
This policy is based on constitutional, statutory and practical
considerations. We are mindful that the Constitution and RA 6770
endowed the Office of the Ombudsman with a wide latitude of investigatory
and prosecutorial powers, virtually free from legislative, executive or
judicial intervention, in order to insulate it from outside pressure and
improper influence. Moreover, 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. Hence, if
the Ombudsman, using professional judgment, finds the case
dismissible, the Court shall respect such findings, unless clothed
with grave abuse of discretion. Otherwise, the functions of the courts
will be grievously hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it. In much the same
way, the courts will be swamped with cases if they will have to review the
exercise of discretion on the part of fiscals or prosecuting attorneys each
time the latter decide to file an information in court or dismiss a complaint
by a private complainant.[19] (Emphasis supplied)

WHEREFORE, premises considered, the petition dated 27 May 2002

is hereby DISMISSED for lack of merit. The Joint Resolution dated 31
January 2002 and the Order dated 25 March 2002 of the Office of the
Ombudsman are hereby AFFIRMED. No costs.
SO ORDERED.

BAGUIO CITY

EN BANC

JUDGE DOLORES L. ESPAOL, A.M. No. 03-1462-MTJ

Regional Trial Court, Branch 90,
Dasmarias, Cavite,
Complainant, Present:

PUNO, C.J.,
-versus- QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
JUDGE LORINDA B. TOLEDO- AUSTRIA-MARTINEZ,
MUPAS, Municipal Trial Court, CORONA,
Dasmarias, Cavite, CARPIO-MORALES,
Respondent. CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
NACHURA, JJ.

Promulgated:
April 19, 2007
x ------------------------------------------------------------------------------------
x

DECISION

PER CURIAM:

Bizarre. The word would aptly describe this tale of the accuser turning out
to be the culprit.

This case started with Judge Lorinda B. Toledo-Mupas (Judge

Mupas) of the Municipal Trial Court (MTC) of Dasmarias, Cavite, filing an
administrative complaint (Administrative Matter No. OCA IPI No. 02-1515-
RTJ) against Judge Dolores L. Espaol (Judge Espaol) of the Regional Trial
Court (RTC), Branch 90, Dasmarias, Cavite, for Gross Ignorance of the
Law, Grave Abuse of Authority, Misconduct, and Conduct Prejudicial to the
Best Interest of the Service. She imputed these offenses against Judge
Espaol for allegedly illegally usurping the functions of the Executive Judge
of Dasmarias, Cavite, and for ordering her (Mupas) on April 18, 2002, in
connection with Criminal Case No. 9292-01 (People v. Belinda Ventura
Singello), to desist from accepting, for preliminary investigation,' criminal
cases falling within the exclusive jurisdiction of the Regional Trial Court,
where suspects are apprehended pursuant to Sec. 7, Rule 112 of the Revised
Rules of Criminal Procedure.

Judge Espaol filed her Comment dated September 16, 2002[1] stating that
since she was appointed to the single sala RTC of Dasmarias, Cavite, under
Supreme Court Administrative Order No. 6 of 1975, she ipso facto became
the Executive Judge exercising supervision over the MTC of
Dasmarias, Cavite. She further stated that her Order dated April 18, 2002,
directing the respondent to desist from conducting preliminary
investigation, did not deprive the latter of the authority to conduct
preliminary investigation butmerely stopped her from conducting the same
for being
violative of the Revised Rules of Criminal Procedure, Article 125 of the
Revised Penal Code and Republic Act No. 7438.

In the same Comment, Judge Espaol said that Judge Mupas operated the
MTC of Dasmarias, Cavite as a One-Stop Shop where criminal suspects
apprehended without a warrant are ordered detained in the municipal jail
by virtue of an unsigned Detention Pending Investigation of the Case, in
lieu of a waiver of the provisions of Article 125 of the Revised Penal Code, as
prescribed by R.A. No. 7438 and by Section 7, Rule 112 of the Revised Rules
of Criminal Procedure. Thus, according to Judge Espaol, the apprehended
persons were detained for a long time until Judge Mupas set the case for
preliminary investigation. If the detainee can post bail, Judge Mupas would
fix the amount of bail and require that the premium, usually equivalent to
20% or 30% thereof, be paid in cash. If the surety bond was secured outside
of the MTC, the bond would be rejected. Hence, the applicants for bail
bonds would go to the RTC of Dasmarias, Cavite to complain and apply for
the release of the detention prisoners.

This Court, acting on the Report dated July 4, 2003 of the Office of the
Court Administrator (OCA), issued on August 6, 2003 a Resolution,[2] the
dispositive portion of which reads:

(T)he Court Resolved to ADOPT the following

recommendations:

(a) to DISMISS the charges against Judge Dolores L.

Espaol for lack of merit;

(b) to TREAT the comment dated September 16, 2002 of

Judge Espaol as a SEPARATE ADMINISTRATIVE
COMPLAINT against Judge Lorinda Mupas of MTC,
Dasmarias, Cavite; and

(c) to REQUIRE Judge Toledo-Mupas to COMMENT on

the allegations against her, contained in Judge Espaols
comment.
Thus, a complaint against the respondent Judge Mupas was deemed filed,
and docketed as OCA IPI No. 03-1462-MTJ.

On September 8, 2003, Judge Mupas filed a motion seeking

reconsideration of this Courts Resolution. On October 1, 2003, this Court
required the OCA to file its comment thereon within 15 days from
notice. The OCA wrote a Memorandum dated April 15, 2004[3] to then Chief
Justice Hilario G. Davide, Jr. recommending the denial of the respondents
motion being a mere reiteration of her arguments already passed upon by
the Court. This Court adopted the said recommendation of the OCA in its
Resolution dated May 31, 2004.[4]

Accordingly, Judge Mupas faced the following charges: (1) violation of Rule
112, Section 7 of the Revised Rules of Criminal Procedure, Article 125 of the
Revised Penal Code, and Republic Act No. 7438; and (2) violation of the
rules on preliminary investigation (a) for the delay in the resolution of
preliminary investigation cases pending in [Judge Mupas]court; (b) for
failure to perform her ministerial duty of transmitting the records of the
case, including the resolution on the preliminary investigation, within 10
days from the issuance of the said resolution to the provincial prosecutor of
Cavite; and (c) for conducting preliminary investigation despite the fact
that there were many prosecutors in Cavite not indisposed to do the job.

On September 19, 2005, Judge Mupas filed her Reply[5] (should

be Comment) to Judge Espaols Comment which was treated as a separate
administrative complaint. She claimed that the August 6, 2003 Resolution
of this Court failed to consider relevant laws, rules, and pronouncements of
the Court itself. She further said that under Rule 112, Section 2 of the
Revised Rules of Criminal Procedure, she is expressly authorized to conduct
preliminary investigation. She questioned the authority of Judge Espaol in
ordering her to desist from conducting preliminary investigations in the
guise of supervising or reviewing her actions, as the said authority was
lodged in the provincial prosecutors. She pointed out that, in the case of
People vs. Belinda Ventura Singello (Criminal Case No. 9292-01), subject of
Judge Espaols Order dated April 18, 2002, the provincial prosecutor
affirmed her (Mupas) finding of probable cause against the accused without
any question on the manner in which the preliminary investigation was
conducted.

She likewise claimed that, pursuant to Administrative Order No. 59-99

dated 1 June 1999, while in single-sala stations the presiding judges are ex
officio executive judges, for purposes of supervision in the interest of the
service, their salas may be merged with multi-sala stations. Therefore, the
RTC of Dasmarias, Cavite had long been merged with the multi-sala station
of the RTC of Imus, Cavite. In support of this claim, Judge Mupas noted
that then Executive Judge Lucenito N. Tagle of the RTC of Imus, Cavite
issued a Memorandum to all judges within his supervision, including both
Judge Espaol and Judge Mupas, to submit periodic reports on detention
prisoners.

She further argued that none of the detention prisoners had filed an
administrative complaint against her. She said that it was her duty to
conduct preliminary investigation of complaints filed with her sala. In
addition, Judge Mupas posited that Judge Espaol could not entertain
applications for bail in the RTC because the cases were pending before the
MTC.

On January 30, 2006, the Court noted this Reply (should be Comment),
and referred the same to the OCA for evaluation, report, and
recommendation.

In the Memorandum dated July 26, 2006[6] addressed to then Chief Justice
Artemio V. Panganiban, the OCA found that the Reply of Judge Mupas was
merely a rehash of the arguments she raised in her Motion for
Reconsideration; it did not refute the specific allegations of Judge
Espaol. The OCA said that the explanation given by the respondent was
unsatisfactory and insufficient to absolve her from administrative
liability. However, the OCA recommended that this case be referred to an
Associate Justice of the Court of Appeals for investigation, report, and
recommendation. Eventually, this case was referred to Court of Appeals
Associate Justice Myrna Dimaranan-Vidal.
During the proceedings before Justice Vidal, Judge Espaol filed her
Rejoinder [Re: Reply dated September 19, 2005] dated December 8,
2006[7] reiterating that: (1) her Order dated April 18, 2002 was lawful and
within her authority to issue as the OCA declared that she was merely
performing her function as Executive Judge of Dasmarias, Cavite; (2) Judge
Mupas violated the rights of the accused whose preliminary investigation is
pending in her court, they being detained by virtue only of a "Detention
Pending Investigation of the Case" in place of a valid waiver signed in the
presence of counsel for considerable lengths of time; (3) there was no basis
for Judge Mupas counter-charge that she could not grant bail while
preliminary investigation was pending before the Mupas court, considering
the latter's absence upon the prisoners' applications for bail; and (4) Judge
Mupas failed to adequately explain her failure to forward the records and
the resolution of the preliminary investigation of accused Belinda Singello
in Criminal Case No. 9292-01.

Judge Mupas filed her Comment (Re: Rejoinder Dated December 8, 2006)
dated December 21, 2006[8] and averred that: (1) acts made in her judicial
capacity and in good faith could not be subject to disciplinary action; (2) as
judge, she enjoys the presumption of regularity in the performance of her
duties; (3) the preliminary investigation she conducted was within the
scope of her authority; and (4) the reason behind the seeming delay in the
conduct of preliminary investigation was the heavy congestion of the
dockets of the MTC of Dasmarias, Cavite.
Preliminary conferences were conducted by Justice Vidal on January
2, 2007 and January 9, 2007.[9] However, both parties opted not to present
any testimonial evidence. In fact, Judge Espaol filed on January 5, 2007 an
Urgent Manifestation and Motion to Resolve,[10] praying that, inasmuch as
the proceedings were summary in nature, the case be decided based on the
available records and pleadings submitted.
On the same day, Judge Espaol filed her Reply [Re: Comment dated
December 21, 2006],[11] arguing that: (1) Judge Mupas is guilty of gross
ignorance of the law even if she acted in good faith; and (2) the
presumption of regularity in the performance of her judicial function could
not cure the incompetence of the respondent.
Both the complainant[12] and the respondent[13] filed their respective
memoranda encompassing all the arguments they raised in their respective
pleadings. Judge Espaol also filed a Counter Memorandum (Re:
Memorandum of the Respondent dated January 18, 2007) dated January
29, 2007.[14]
In an undated Resolution filed with the OCA on February 9, 2007, Justice
Myrna Dimaranan-Vidal found, contrary to Judge Mupas claim, that the
document entitled "Detention Pending Investigation of Cases" cannot
validly be deemed to be an implied waiver of the rights of the accused under
Article 125 of the Revised Penal Code. Justice Vidal submits the following
findings:
Extant from the records, is Respondents admission of her
practice in the issuance of the document entitled Detention
Pending Investigation of Cases claiming, however, that such
document served as an implied waiver of the rights of the
accused under Article 125 of the Revised Penal Code.

The undersigned disagrees.

Sec. 2 e) of RA 7438 is in point, thus:

xxx Any waiver by a person arrested or

detained under the provisions of Article 125 of
the Revised Penal Code, or under custodial
investigation, shall be in writing and signed by
such person in the presence of his counsel;
otherwise the waiver shall be null and void
and of no effect. (Underscoring supplied)

The afore cited law is clear and simple. Thus, construction

is unnecessary. Clearly, what the said provision requires to
protect the rights of the accused is a written waiver signed by
the accused with the assistance of a counsel. However, the
procedure adopted by the Respondent runs counter thereto. She
resorted to the issuance of a commitment order dubbed as
Detention Pending Investigation of the Case to legally prolong
the detention of the accused pending the resolution of the
preliminary investigation. Obviously, this is not within the
 contemplation of the law. Thus, the practice is highly erroneous
a blatant manifestation of ignorance in the legal procedure.

The New Code of Judicial Conduct for the Philippine

Judiciary[15] provides:

Canon 6 Competence and Diligence

xxx
Sec. 3. Judges shall take reasonable steps to maintain
and enhance their knowledge, skills and personal
qualities necessary for the proper performance of
judicial duties, taking advantage for this purpose of
the training and other facilities which should be made
available, under judicial control, to judges.
xxx

Otherwise put, Respondent is presumed to know the basic

measures to protect the rights of the accused during
preliminary investigation. Sadly, Respondent failed in this
regard. Instead, she maintained the practice of issuing this
highly improper order, i.e., Detention Pending Investigation of
the Case, just to put a semblance of legality in the detention of
the accused.[16]

With respect to the other charges, Justice Vidal found the evidence
insufficient to support the accusations that Judge Mupas: (1) detained the
accused for a long period of time while the preliminary investigation was
pending in her court; (2) failed to transmit to the Provincial Prosecutor of
Cavite the records of the case within 10 days after preliminary
investigation; and (3) acted without authority to conduct preliminary
investigation because there were enough prosecutors in Cavite to conduct
the same.

Justice Vidal then concludes:

 However, the undersigned finds that Respondent should
still be held administratively liable. Respondents act of issuing
orders dubbed as Detention Pending Investigation of Cases
instead of requiring the accused to execute a written waiver,
with the assistance of counsel, pursuant to Article 125 of the
Revised Penal Code, fall [sic] short of the measure of
responsibility expected from a judge.

Respondent should be reminded that the actions of

everyone connected with an office charged with the
dispensation of justice, from the presiding judge to the clerk of
lowest rank, should be circumscribed with a high degree of
responsibility. The image of a court, as a true temple of justice,
is mirrored in the conduct, official or otherwise, of the men and
women who work thereat. Judicial personnel are expected to be
living examples of uprightness in the performance of official
duties [and] preserve at all times the good name and standing
of the courts in the community.[17]

Thus, the dispositive portion of her Resolution reads:

WHEREFORE, premises considered, and it appearing that this

is the first time the Respondent has committed the
infraction, supra, the undersigned respectfully recommends
that she be REPRIMANDED for her practice of issuing the
"Detention Pending Investigation of the Case" orders with
STERN WARNING that a repetition thereof or any similar act
will be dealt with more severely.

We agree with the findings of Justice Vidal, but We find the recommended
penalty too light, grossly disproportionate to the offense committed,
especially when viewed in the light of Judge Mupas record of incorrigible
misconduct.

There is no gainsaying that Judge Mupas practice of issuing "Detention

Pending Investigation of the Case" orders in lieu of a written waiver signed
by the accused with the assistance of counsel is, in the words of Justice
Vidal, "a blatant manifestation of ignorance in the legal procedure." It is
gross ignorance of the law, pure and simple.

Under Rule 140, Section 8, of the Rules of Court, as amended by A.M. No.
01-8-10 SC, gross ignorance of the law or procedure is classified as a serious
charge, and Section 11 thereof provides the sanctions, as follows:

SEC. 11. Sanctions. A. If the respondent is guilty of a serious

charge, any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the

benefits as the Court may determine, and disqualification from
reinstatement or appointment to any public office, including
government-owned or controlled corporations: Provided,
however, that the forfeiture of benefits shall in no case include
accrued leave credits;

2. Suspension from office without salary and other benefits for

more than three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding

P40,000.00.

While Justice Vidal considered the respondent's practice of issuing

"Detention Pending Investigation of the Case" orders as a first-time
infraction, We note that this case is not the first time the respondent was
charged and found guilty of gross ignorance of the law.

In Espaol v. Mupas,[18] the respondent judge was fined the amount of

P21,000.00 for violation of the Code of Judicial Conduct and for gross
ignorance of the law when she ordered the arrest of the accused in six
criminal cases before the expiration of the 10-day period she gave them to
file their counter-affidavits, and without any finding of probable cause.
 In Loss of Court Exhibits at MTC-Dasmarias, Cavite,[19] aside from
being found guilty of grave misconduct for refusing to turn over to the
National Bureau of Investigation (NBI) for ballistics examination a firearm
that a court employee surreptitiously took from the court's steel cabinet and
used to commit suicide, Judge Mupas was held administratively liable
for gross ignorance of the law for her failure to submit to the provincial
prosecutor her resolution and the records of the case within 10 days after
preliminary investigation. The Court imposed on the respondent the
penalty of suspension for three (3) months without pay, with a stern
warning that a similar infraction will be dealt with more severely.

In Bitoon, et al. v. Toledo-Mupas,[20] the respondent was also found

administratively liable for gross ignorance of the law for changing the
designation of the crime from a non-bailable offense to a bailable one, i.e.,
syndicated estafa to simple estafa, and granted bail without hearing on the
ground that the accused is entitled to it as a matter of right.The Court found
her to have exceeded her authority in the conduct of preliminary
investigation and to have failed to observe the elementary rules on bail. She
was meted the penalties of a fine in the amount of P40,000.00, suspension
for three (3) months without salaries and benefits, and a stern warning that
a same or similar offense will be dealt with more severely.

Upon motion for reconsideration, however, the penalty of fine of

P40,000.00 was deleted on the ground that the acts of the respondent in
the Espaol v. Mupas and the Loss of Court Exhibits cases were done after
the acts complained of in Bitoon. While the Court maintained that the
respondent's acts in Bitoon remain inexcusable, the respondent was not
found to be an incorrigible third-time offender deserving the penalty
originally imposed. The Court also noted that the respondent was not
motivated by malice, bad faith or corrupt motives and that there was an
absence of any serious damage to the complainants. However, the stern
warning of the Court should have been ample reminder that the penalty of
dismissal would be imposed should the respondent commit the same or a
similar infraction.[21]
In the present case, while the documents denominated "Detention Pending
Investigation of the Case" were issued during the same period of time that
the three (3) above-cited cases were decided, it is noteworthy that Judge
Mupas continued with the practice even after her attention had been
called. Worse, she remained insistent that the document was an implied
waiver of the rights of the accused under Article 125 of the Revised Penal
Code.[22] Judge Mupas must be reminded that although judges have in their
favor the presumption of regularity and good faith in the performance of
their official functions, a blatant disregard of the clear and unmistakable
terms of the law obviates this presumption and renders them susceptible to
administrative sanctions.[23] Being among the judicial front-liners who have
direct contact with the litigants, a wanton display of utter lack of familiarity
with the rules by the judge inevitably erodes the confidence of the public in
the competence of our courts to render justice. [24] It subjects the judiciary
to embarrassment. Worse, it could raise the specter of corruption.

When the gross inefficiency springs from a failure to consider so basic and
elemental a rule, a law, or a principle in the discharge of his or her duties, a
judge is either too incompetent and undeserving of the exalted position and
title he or she holds, or the oversight or omission was deliberately done in
bad faith and in grave abuse of judicial authority.[25]

All said, this Court finds the respondent, Judge Lorinda B. Toledo-Mupas,
administratively liable for gross ignorance of the law. Considering that this
is her fourth offense, she deserves to be meted the supreme penalty of
dismissal from the service, with all the accessory penalties appurtenant
thereto.

WHEREFORE, Judge Lorinda B. Toledo-Mupas of the Municipal Trial

Court of Dasmarias, Cavite is found guilty of gross ignorance of the
law. This being her fourth offense, she is hereby ORDERED DISMISSED
FROM THE SERVICE with forfeiture of all benefits due her, excluding
her accrued leave benefits, and with perpetual disqualification from
reinstatement or appointment to any public office, including government-
owned or controlled corporations.
This Decision is final and immediately executory.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and

J. BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL
OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE
ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto

Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with

preliminary mandatory and prohibitory injunction is the validity of two [2]
search warrants issued on December 7, 1982 by respondent Judge Ernani
Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the "Metropolitan Mail" and "We
Forum" newspapers, respectively, were searched, and office and printing
machines, equipment, paraphernalia, motor vehicles and other articles
used in the printing, publication and distribution of the said newspapers, as
well as numerous papers, documents, books and other written literature
alleged to be in the possession and control of petitioner Jose Burgos, Jr.
publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and

prohibitory injunction be issued for the return of the seized articles, and
that respondents, "particularly the Chief Legal Officer, Presidential Security
Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute
or successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to

answer the petition. The plea for preliminary mandatory and prohibitory
injunction was set for hearing on June 28, 1983, later reset to July 7, 1983,
on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing

petitioners' prayer for a writ of preliminary mandatory injunction,
manifested that respondents "will not use the aforementioned articles as
evidence in the aforementioned case until final resolution of the legality of
the seizure of the aforementioned articles. ..." 2 With this manifestation, the
prayer for preliminary prohibitory injunction was rendered moot and
academic.

Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the
quashal of the search warrants before respondent judge. Indeed,
petitioners, before impugning the validity of the warrants before this Court,
should have filed a motion to quash said warrants in the court that issued
them. 3 But this procedural flaw notwithstanding, we take cognizance of
this petition in view of the seriousness and urgency of the constitutional
issues raised not to mention the public interest generated by the search of
the "We Forum" offices, which was televised in Channel 7 and widely
publicized in all metropolitan dailies. The existence of this special
circumstance justifies this Court to exercise its inherent power to suspend
its rules. In the words of the revered Mr. Justice Abad Santos in the case
of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the
court [Supreme Court] to suspend its rules or to except a particular case
from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches.

Considerable stress is laid on the fact that while said search warrants were
issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than six [6]
months.

Laches is failure or negligence for an unreasonable and unexplained length

of time to do that which, by exercising due diligence, could or should have
been done earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert
it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay
in the filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer,

p. 3, Manifestation] with the fact that the Petition was filed on
June 16, 1983, more than half a year after the petitioners'
premises had been raided.

The climate of the times has given petitioners no other choice. If

they had waited this long to bring their case to court, it was
because they tried at first to exhaust other remedies. The events
of the past eleven fill years had taught them that everything in
this country, from release of public funds to release of detained
persons from custody, has become a matter of executive
benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of

persons close to the President, like Fiscal Flaminiano, sent a
letter to President Marcos, through counsel Antonio Coronet
asking the return at least of the printing equipment and
vehicles. And after such a letter had been sent, through Col.
Balbino V. Diego, Chief Intelligence and Legal Officer of the
Presidential Security Command, they were further encouraged
to hope that the latter would yield the desired results.
 After waiting in vain for five [5] months, petitioners finally
decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our

judicial system, We find no ground to punish or chastise them for an error
in judgment. On the contrary, the extrajudicial efforts exerted by
petitioners quite evidently negate the presumption that they had
abandoned their right to the possession of the seized property, thereby
refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr.
had used and marked as evidence some of the seized documents in
Criminal Case No. Q- 022872, he is now estopped from challenging the
validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can
do whatever he pleases with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify

the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an

examination under oath or affirmation of the applicant and his witnesses,
as mandated by the above-quoted constitutional provision as wen as Sec. 4,
Rule 126 of the Rules of Court .6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during
the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search
two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C
& D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is
interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was allegedly keeping and
concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon
City. This assertion is based on that portion of Search Warrant No. 20-
82[b] which states:
 Which have been used, and are being used as instruments and
means of committing the crime of subversion penalized under
P.D. 885 as amended and he is keeping and concealing the
same at 19 Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two

search warrants were applied for and issued because the purpose and intent
were to search two distinct premises. It would be quite absurd and illogical
for respondent judge to have issued two warrants intended for one and the
same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla
himself who headed the team which executed the search warrants, the
ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building,
Quezon Avenue, Quezon City, which address appeared in the opening
paragraph of the said warrant. 7 Obviously this is the same place that
respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to

be searched with sufficient particularity, it has been held "that the
executing officer's prior knowledge as to the place intended in the warrant
is relevant. This would seem to be especially true where the executing
officer is the affiant on whose affidavit the warrant had issued, and when he
knows that the judge who issued the warrant intended the building
described in the affidavit, And it has also been said that the executing
officer may look to the affidavit in the official court file to resolve an
ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles
b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal

properties that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. A search warrant may

be issued for the search and seizure of the following personal
property:
 [a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds

or fruits of the offense; and

[c] Property used or intended to be used as the

means of committing an offense.

The above rule does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It may or
may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property.
Necessarily, stolen property must be owned by one other than the person in
whose possession it may be at the time of the search and seizure.
Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of
the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged
to have in relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were

seized under the disputed warrants. Under Article 415[5] of the Civil Code
of the Philippines, "machinery, receptables, instruments or implements
intended by the owner of the tenement for an industry or works which may
be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable
property. In Davao Sawmill Co. v. Castillo9 where this legal provision was
invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property
or plant, but not so when placed by a tenant, usufructuary, or any other
person having only a temporary right, unless such person acted as the agent
of the owner.

In the case at bar, petitioners do not claim to be the owners of the land
and/or building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon

application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.
Metrocom.10 The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom
Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the
search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned

documents could not have provided sufficient basis for the finding of a
probable cause upon which a warrant may validly issue in accordance with
Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue

except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law, 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.

We find petitioners' thesis impressed with merit. Probable cause for a

search is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for is
directed against a newspaper publisher or editor in connection with the
publication of subversive materials, as in the case at bar, the application
and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is
intending to publish. Mere generalization will not suffice. Thus, the broad
statement in Col. Abadilla's application that petitioner "is in possession or
has in his control printing equipment and other paraphernalia, news
publications and other documents which were used and are all
continuously being used as a means of committing the offense of
subversion punishable under Presidential Decree 885, as amended ..." 12 is
a mere conclusion of law and does not satisfy the requirements of probable
cause. Bereft of such particulars as would justify a finding of the existence
of probable cause, said allegation cannot serve as basis for the issuance of a
search warrant and it was a grave error for respondent judge to have done
so.

Equally insufficient as basis for the determination of probable cause is the

statement contained in the joint affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, "that the evidence gathered and collated by our unit clearly
shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive
activities in conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for Free
Philippines, and April 6 Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of
the complainant and the witnesses he may produce; 14 the Constitution
requires no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be
justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the
oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof is
to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of
probable cause." As couched, the quoted averment in said joint affidavit
filed before respondent judge hardly meets the test of sufficiency
established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration

constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in
this wise:

1] All printing equipment, paraphernalia, paper, ink, photo

(equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders,
dictaphone and the like used and/or connected in the printing
of the "WE FORUM" newspaper and any and all documents
communication, letters and facsimile of prints related to the
"WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other

publication to promote the objectives and piurposes of the
subversive organization known as Movement for Free
Philippines, Light-a-Fire Movement and April 6 Movement;
and,

3] Motor vehicles used in the distribution/circulation of the

"WE FORUM" and other subversive materials and propaganda,
more particularly,
 1] Toyota-Corolla, colored yellow with Plate No.
NKA 892;

2] DATSUN pick-up colored white with Plate No.

NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate

No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No.

NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the

search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the
Communist Party in Texas," was declared void by the U.S. Supreme Court
for being too general. In like manner, directions to "seize any evidence in
connectionwith the violation of SDC 13-3703 or otherwise" have been held
too general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of
the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. 17 The
description of the articles sought to be seized under the search warrants in
question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were given
roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein
to such historical episode would not be relevant for it is not the policy of
our government to suppress any newspaper or publication that speaks with
"the voice of non-conformity" but poses no clear and imminent danger to
state security.

As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent

to the freedom of the press guaranteed under the fundamental law, 18 and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines

on the ground that they have been sequestered under Section 8 of
Presidential Decree No. 885, as amended, which authorizes "the
sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted
authorities ... in accordance with implementing rules and regulations as
may be issued by the Secretary of National Defense." It is doubtful however,
if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of
National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was
reported that no less than President Marcos himself denied the request of
the military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus:

The President denied a request flied by government prosecutors

for sequestration of the WE FORUM newspaper and its printing
presses, according to Information Minister Gregorio S.
Cendana.

On the basis of court orders, government agents went to the We

Forum offices in Quezon City and took a detailed inventory of
the equipment and all materials in the premises.

Cendaa said that because of the denial the newspaper and its
equipment remain at the disposal of the owners, subject to the
discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is
further confirmed by the reply of then Foreign Minister Carlos P. Romulo
to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall
addressed to President Marcos, expressing alarm over the "WE FORUM "
case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the

recommendation of our authorities to close the paper's printing
facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-

82[b] issued by respondent judge on December 7, 1982 are hereby declared
null and void and are accordingly set aside. The prayer for a writ of
mandatory injunction for the return of the seized articles is hereby granted
and all articles seized thereunder are hereby ordered released to
petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,

Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At

the same time I wish to state my own reasons for holding that the search
warrants which are the subject of the petition are utterly void.

The action against "WE FORUM" was a naked suppression of press

freedom for the search warrants were issued in gross violation of the
Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV,

stresses two points, namely: "(1) that no warrant shall issue but upon
probable cause, to be determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall particularly describe the
things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383
[1967].)

Any search warrant is conducted in disregard of the points mentioned

above will result in wiping "out completely one of the most fundamental
rights guaranteed in our Constitution, for it would place the sanctity of the
domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the
requirement of probable cause a specific offense must be alleged in the
application; abstract averments will not suffice. In the case at bar nothing
specifically subversive has been alleged; stated only is the claim that certain
objects were being used as instruments and means of committing the
offense of subversion punishable under P.D. No. 885, as amended. There is
no mention of any specific provision of the decree. I n the words of Chief
Justice C Concepcion, " It would be legal heresy of the highest order, to
convict anybody" of violating the decree without reference to any
determinate provision thereof.

The search warrants are also void for lack of particularity. Both search
warrants authorize Col. Rolando Abadilla to seize and take possession,
among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other

publication to promote the objectives and purposes of the
subversive organizations known as Movement for Free
Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets,
books, etc. subversive? What did they contain to make them subversive?
There is nothing in the applications nor in the warrants which answers the
questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM

just as there is nothing subversive which has been published in MALAYA
which has replaced the former and has the same content but against which
no action has been taken.
Conformably with existing jurisprudence everything seized pursuant to the
warrants should be returned to the owners and all of the items are subject
to the exclusionary rule of evidence.

SECOND DIVISION

VICENTE P. LADLAD, G.R. Nos. 172070-72

NATHANAEL S. SANTIAGO,
RANDALL B. ECHANIS, and
REY CLARO C. CASAMBRE,
Petitioners,

- versus -

SENIOR STATE PROSECUTOR

EMMANUEL Y. VELASCO,
SENIOR STATE PROSECUTOR
JOSELITA C. MENDOZA,
SENIOR STATE PROSECUTOR
AILEEN MARIE S. GUTIERREZ,
STATE PROSECUTOR IRWIN
A. MARAYA, and STATE PROSECUTOR
MERBA A. WAGA, in their capacity
as members of the Department of Justice
panel of prosecutors investigating
I.S. Nos. 2006-225, 2006-226 and 2006-234,
JUSTICE SECRETARY RAUL M.
GONZALEZ, DIRECTOR GENERAL
ARTURO C. LOMIBAO, in his capacity
as Chief, Philippine National Police,
P/CSUPT. RODOLFO B. MENDOZA, JR.,
and P/SUPT. YOLANDA G. TANIGUE,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
LIZA L. MAZA, JOEL G. VIRADOR, G.R. Nos. 172074-76
SATURNINO C. OCAMPO,
TEODORO A. CASIO, CRISPIN B.
BELTRAN, and RAFAEL V. MARIANO,
Petitioners,

- versus -

RAUL M. GONZALEZ, in his capacity as

Secretary of the Department of Justice,
JOVENCITO R. ZUO, in his capacity as
Chief State Prosecutor, the Panel of
Investigating Prosecutors composed of
EMMANUEL Y. VELASCO, JOSELITA
C. MENDOZA, AILEEN MARIE S.
GUTIERREZ, IRWIN A. MARAYA and
MERBA A. WAGA (Panel), RODOLFO B.
MENDOZA, in his capacity as Acting Deputy
Director, Directorate for Investigation and
Detective Management (DIDM), YOLANDA
G. TANIGUE, in her capacity as Acting
Executive Officer of DIDM, the DEPARTMENT
OF JUSTICE (DOJ), and the PHILIPPINE
NATIONAL POLICE (PNP),
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

CRISPIN B. BELTRAN, G.R. No. 175013

Petitioner,
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
PEOPLE OF THE PHILIPPINES, VELASCO, JR., JJ.
SECRETARY RAUL M. GONZALEZ,
in his capacity as the Secretary of Justice
and overall superior of the Public Prosecutors,
HONORABLE ENCARNACION JAJA G.
MOYA, in her capacity as Presiding Judge
of Regional Trial Court of Makati City,
Branch 146, and HONORABLE ELMO M.
ALAMEDA, in his capacity as Presiding
Judge of Regional Trial Court of Makati Promulgated:
City, Branch 150,
Respondents. June 1, 2007
x-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:

The Case

These are consolidated petitions for the writs of prohibition and certiorari
to enjoin petitioners prosecution for Rebellion and to set aside the rulings
of the Department of Justice (DOJ) and
the Regional Trial Court of Makati City (RTC Makati) on the investigation
and prosecution of petitioners cases.

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners

in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador),
Saturnino C. Ocampo (Ocampo), Teodoro A. Casio (Casio), and Rafael V.
Mariano (Mariano),[1] are members of the House of Representatives
representing various party-list groups.[2] Petitioners in G.R. Nos. 172070-72
are private individuals. Petitioners all face charges for Rebellion under
Article 134 in relation to Article 135 of the Revised Penal Code in two
criminal cases pending with the RTC Makati.
 G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of

Presidential Proclamation No. 1017 on 24 February 2006 declaring a State
of National Emergency, police officers[3] arrested Beltran on 25 February
2006, while he was en route to Marilao, Bulacan, and detained him
in Camp Crame, Quezon City. Beltran was arrested without a warrant and
the arresting officers did not inform Beltran of the crime for which he was
arrested. On that evening, Beltran was subjected to an inquest at the
Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the
Revised Penal Code based on a speech Beltran allegedly gave during a rally
in Quezon City on 24 February 2006, on the occasion of the
20th anniversary of the EDSA Revolution. The inquest was based on the
joint affidavit of Beltrans arresting officers who claimed to have been
present at the rally. The inquest prosecutor[4] indicted Beltran and filed the
corresponding Information with the Metropolitan Trial Court of Quezon
City (MeTC).[5]
The authorities brought back Beltran to Camp Crame where, on 27
February 2006, he was subjected to a second inquest, with 1st Lt. Lawrence
San Juan (San Juan), this time for Rebellion. A panel of State
prosecutors[6] from the DOJ conducted this second inquest. The inquest
was based on two letters, both dated 27 February 2006, of Yolanda Tanigue
(Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting
Executive Officer of the Criminal Investigation and Detection Group
(CIDG), Philippine National Police (PNP), while Mendoza is the Acting
Deputy Director of the CIDG. The letters referred to the DOJ for
appropriate action the results of the CIDGs investigation implicating
Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several
others as leaders and promoters of an alleged foiled plot to overthrow the
Arroyo government. The plot was supposed to be carried out jointly by
members of the Communist Party of the Philippines (CPP) and the
Makabayang Kawal ng Pilipinas (MKP), which have formed a tactical
alliance.
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution
finding probable cause to indict Beltran and San Juan as leaders/promoters
of Rebellion. The panel then filed an Information with the RTC Makati. The
Information alleged that Beltran, San Juan, and other individuals
conspiring and confederating with each other, x x x, did then and there
willfully, unlawfully, and feloniously form a tactical alliance between the
CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its
armed regular members as Katipunan ng Anak ng Bayan (KAB) with the
Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take
up arms against the duly constituted government, x x x.[7]The Information,
docketed as Criminal Case No. 06-452, was raffled to Branch 137 under
Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of
probable cause against him.[8] Before the motion could be resolved, Judge
Delorino recused herself from the case which was re-raffled to Branch 146
under Judge Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of
probable cause against Beltran.[9] Beltran sought reconsideration but Judge
Moya also inhibited herself from the case without resolving Beltrans
motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re-
raffled, issued an Order on 29 August 2006 denying Beltrans motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May
2006 and 29 August 2006 and to enjoin Beltrans prosecution.

In his Comment to the petition, the Solicitor General claims that Beltrans
inquest for Rebellion was valid and that the RTC Makati correctly found
probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and

Ladlad Petitions)

Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to

petitioners on 6 March 2006 requiring them to appear at the DOJ Office
on 13 March 2006 to get copies of the complaint and its attachment. Prior
to their receipt of the subpoenas, petitioners had quartered themselves
inside the House of Representatives building for fear of being subjected to
warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel

for the CIDG presented a masked man, later identified as Jaime Fuentes
(Fuentes), who claimed to be an eyewitness against petitioners. Fuentes
subscribed to his affidavit before respondent prosecutor Emmanuel Velasco
who then gave copies of the affidavit to media members present during the
proceedings. The panel of prosecutors[10] gave petitioners 10 days within
which to file their counter-affidavits. Petitioners were furnished the
complete copies of documents supporting the CIDGs letters only on 17
March 2006.

Petitioners moved for the inhibition of the members of the prosecution

panel for lack of impartiality and independence, considering the political
milieu under which petitioners were investigated, the statements that the
President and the Secretary of Justice made to the media regarding
petitioners case,[11] and the manner in which the prosecution panel
conducted the preliminary investigation. The DOJ panel of prosecutors
denied petitioners motion on 22 March 2006. Petitioners sought
reconsideration and additionally prayed for the dismissal of the cases.
However, the panel of prosecutors denied petitioners motions on 4 April
2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March

2006 and 4 April 2006.

Acting on petitioners prayer for the issuance of an injunctive writ, the Court
issued a status quo order on 5 June 2006. Prior to this, however, the panel
of prosecutors, on 21 April 2006, issued a Resolution finding probable
cause to charge petitioners and 46 others with Rebellion. The prosecutors
filed the corresponding Information with Branch 57 of the RTC Makati,
docketed as Criminal Case No. 06-944 (later consolidated with Criminal
Case No. 06-452 in Branch 146), charging petitioners and their co-accused
as principals, masterminds, [or] heads of a Rebellion.[12] Consequently, the
petitioners in G.R. Nos. 172070-72 filed a supplemental petition to enjoin
the prosecution of Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General

submits that the preliminary investigation of petitioners was not tainted
with irregularities. The Solicitor General also claims that the filing of
Criminal Case No. 06-944 has mooted the Maza petition.

The Issues

The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran
for Rebellion was valid and (b) whether there is probable cause to indict
Beltran for Rebellion; and

2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors

should be enjoined from continuing with the prosecution of Criminal Case
No. 06-944.[13]

The Ruling of the Court

We find the petitions meritorious.

On the Beltran Petition

The Inquest Proceeding against

Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully
arrested without warrant.[14] Section 5, Rule 113 of the Revised Rules of
Criminal Procedure provides the instances when such warrantless arrest
may be effected, thus:

Arrest without warrant; when lawful. A peace officer

or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to
commit an offense;

(b) When an offense has just been committed and he has

probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and

xxxx

In cases falling under paragraphs (a) and (b) above, the

person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.

The joint affidavit of Beltrans arresting officers[15] states that the

officers arrested Beltran, without a warrant,[16] for Inciting to Sedition, and
not for Rebellion. Thus, the inquest prosecutor could only have conducted
as he did conduct an inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors subjected Beltran to a
second inquest proceeding for Rebellion, they overstepped their authority
rendering the second inquest void. None of Beltrans arresting officers saw
Beltran commit, in their presence, the crime of Rebellion. Nor did they have
personal knowledge of facts and circumstances that Beltran had just
committed Rebellion, sufficient to form probable cause to believe that he
had committed Rebellion. What these arresting officers alleged in their
affidavit is that they saw and heard Beltran make an allegedly seditious
speech on 24 February 2006.[17]

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the
initial duty of the inquest officer is to determine if the arrest of the detained
person was made in accordance with the provisions of paragraphs (a) and
(b) of Section 5, Rule 113.[18] If the arrest was not properly effected, the
inquest officer should proceed under Section 9 of Circular No. 61 which
provides:

Where Arrest Not Properly Effected. Should the Inquest

Officer find that the arrest was not made in accordance with the
Rules, he shall:

a) recommend the release of the person arrested or

detained;
b) note down the disposition on the referral document;
c) prepare a brief memorandum indicating the reasons for
the action taken; and
d) forward the same, together with the record of the case,
to the City or Provincial Prosecutor for appropriate action.

Where the recommendation for the release of the

detained person is approved by the City or Provincial
Prosecutor but the evidence on hand warrant the
conduct of a regular preliminary investigation, the
order of release shall be served on the officer having
custody of said detainee and shall direct the said
officer to serve upon the detainee the subpoena or
notice of preliminary investigation, together with the
copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other
supporting evidence. (Emphasis supplied)

For the failure of Beltrans panel of inquest prosecutors to comply with

Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJ Circular No.
61, we declare Beltrans inquest void.[19] Beltran would have been entitled to
a preliminary investigation had he not asked the trial court to make a
judicial determination of probable cause, which effectively took the place of
such proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is the existence of such facts and circumstances as would

excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted.[20] To accord respect to the discretion
granted to the prosecutor and for reasons of practicality, this Court, as a
rule, does not interfere with the prosecutors determination of probable
cause for otherwise, courts would be swamped with petitions to review the
prosecutors findings in such investigations.[21] However, in the few
exceptional cases where the prosecutor abused his discretion by ignoring a
clear insufficiency of evidence to support a finding of probable cause, thus
denying the accused his right to substantive and procedural due process, we
have not hesitated to intervene and exercise our review power under Rule
65 to overturn the prosecutors findings.[22] This exception holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed

[B]y rising publicly and taking arms against the Government

for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the
Philippines or any part thereof, or any body of land, naval, or
other armed forces or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or
prerogatives.

The elements of the offense are:

 1. That there be a (a) public uprising and (b) taking arms
against the Government; and

2. That the purpose of the uprising or movement is either

(a) to remove from the allegiance to said Government or its
laws:
(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives.[23]

Thus, by its nature, rebellion is a crime of the masses or multitudes

involving crowd action done in furtherance of a political end.[24]

The evidence before the panel of prosecutors who conducted the inquest of
Beltran for Rebellion consisted of the affidavits and other
documents[25] attached to the CIDG letters. We have gone over these
documents and find merit in Beltrans contention that the same are
insufficient to show probable cause to indict him for Rebellion. The bulk of
the documents consists of affidavits, some of which were sworn before a
notary public, executed by members of the military and some civilians.
Except for two affidavits, executed by a certain Ruel Escala (Escala), dated
20 Febuary 2006,[26] and Raul Cachuela (Cachuela), dated 23 February
2006,[27] none of the affidavits mentions Beltran.[28] In his affidavit, Escala
recounted that in the afternoon of 20 February 2006, he saw Beltran,
Ocampo, Casio, Maza, Mariano, Virador, and other individuals on board a
vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and
that after the passengers alighted, they were met by another individual who
looked like San Juan. For his part, Cachuela stated that he was a former
member of the CPP and that (1) he attended the CPPs 10th Plenum in 1992
where he saw Beltran; (2) he took part in criminal activities; and (3) the
arms he and the other CPP members used were purchased partly from
contributions by Congressional members, like Beltran, who represent
party-list groups affiliated with the CPP.
 The allegations in these affidavits are far from the proof needed to
indict Beltran for taking part in an armed public uprising against the
government. What these documents prove, at best, is that Beltran was in
Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years
earlier, he was present during the 1992 CPP Plenum. None of the affidavits
stated that Beltran committed specific acts of promoting, maintaining, or
heading a rebellion as found in the DOJ Resolution of 27 February
2006. None of the affidavits alleged that Beltran is a leader of a
rebellion. Beltrans alleged presence during the 1992 CPP Plenum does not
automatically make him a leader of a rebellion.

In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP
Plenum as Chairman, Kilusang Mayo Uno (KMU). Assuming that Beltran is
a member of the CPP, which Beltran does not acknowledge, mere
membership in the CPP does not constitute rebellion.[29] As for the alleged
funding of the CPPs military equipment from Beltrans congressional funds,
Cachuelas affidavit merely contained a general conclusion without any
specific act showing such funding. Cachuela merely alleged that ang mga
ibang mga pondo namin ay galing sa mga party list na naihalal sa
Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at
CRISPIN BELTRAN, x x x.[30] Such a general conclusion does not establish
probable cause.

In his Comment to Beltrans petition, the Solicitor General points to Fuentes

affidavit, dated 25 February 2006,[31] as basis for the finding of probable
cause against Beltran as Fuentes provided details in his statement
regarding meetings Beltran and the other petitioners attended in 2005 and
2006 in which plans to overthrow violently the Arroyo government were
allegedly discussed, among others.

The claim is untenable. Fuentes affidavit was not part of the

attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the
panel of inquest prosecutors did not have Fuentes affidavit in their
possession when they conducted the Rebellion inquest against Beltran on
that day. Indeed, although this affidavit is dated 25 February 2006, the
CIDG first presented it only during the preliminary investigation of the
other petitioners on 13 March 2006 during which Fuentes subscribed to his
statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect

by motu proprio submitting to Branch 137 of the RTC Makati Fuentes
affidavit as part of their Comment to Beltrans motion for judicial
determination of probable cause. Such belated submission, a tacit
admission of the dearth of evidence against Beltran during the inquest,
does not improve the prosecutions case. Assuming them to be true, what
the allegations in Fuentes affidavit make out is a case for Conspiracy to
Commit Rebellion, punishable under Article 136 of the Revised Penal Code,
not Rebellion under Article 134. Attendance in meetings to discuss, among
others, plans to bring down a government is a mere preparatory step to
commit the acts constituting Rebellion under Article 134. Even the
prosecution acknowledged this, since the felony charged in the Information
against Beltran and San Juanin Criminal Case No. 06-452 is Conspiracy to
Commit Rebellion and not Rebellion. The Information merely alleged that
Beltran, San Juan, and others conspired to form a tactical alliance to
commit Rebellion. Thus, the RTC Makati erred when it nevertheless found
probable cause to try Beltran for Rebellion based on the evidence before it.

The minutes[32] of the 20 February 2006 alleged meeting in Batangas

between members of MKP and CPP, including Beltran, also do not detract
from our finding. Nowhere in the minutes was Beltran implicated. While
the minutes state that a certain Cris attended the alleged meeting, there is
no other evidence on record indicating that Cris is Beltran. San Juan, from
whom the flash drive containing the so-called minutes was allegedly taken,
denies knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting,

maintaining, or heading a Rebellion. The Information in Criminal Case No.
06-452 itself does not make such allegation. Thus, even assuming that the
Information validly charges Beltran for taking part in a Rebellion, he is
entitled to bail as a matter of right since there is no allegation in the
Information that he is a leader or promoter of the Rebellion.[33] However,
the Information in fact merely charges Beltran for conspiring and
confederating with others in forming a tactical alliance to commit
rebellion. As worded, the Information does not charge Beltran with
Rebellion but with Conspiracy to Commit Rebellion, a bailable offense.[34]

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted

With Irregularities.

As in the determination of probable cause, this Court is similarly loath to

enjoin the prosecution of offenses, a practice rooted on public interest as
the speedy closure of criminal investigations fosters public
safety.[35] However, such relief in equity may be granted if, among others,
the same is necessary (a) to prevent the use of the strong arm of the law in
an oppressive and vindictive manner[36] or (b) to afford adequate protection
to constitutional rights.[37] The case of the petitioners in G.R. Nos. 172070-
72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at

least four years, two months and one day is outlined in Section 3, Rule 112
of the Revised Rules of Criminal Procedure, thus:

Procedure.The preliminary investigation shall be

conducted in the following manner:

(a) The complaint shall state the address of the

respondent and shall be accompanied by the affidavits
of the complainant and his witnesses, as well as other
supporting documents to establish probable cause.
They shall be in such number of copies as there are
respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability,
before a notary public, each of whom must certify that he
personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the

complaint, the investigating officer shall either dismiss
it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its
supporting affidavits and documents.

The respondent shall have the right to examine the

evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense. If the evidence
is voluminous, the complainant may be required to specify
those which he intends to present against the respondent, and
these shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but

shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed,

does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts
and issues to be clarified from a party or a witness. The parties
can be present at the hearing but without the right to examine
or cross-examine. They may, however, submit to the
 investigating officer questions which may be asked to the party
or witness concerned.

The hearing shall be held within ten (10) days from submission
of the counter-affidavits and other documents or from the
expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating
officer shall determine whether or not there is sufficient ground
to hold the respondent for trial. (Emphasis supplied)

Instead of following this procedure scrupulously, as what this Court

had mandated in an earlier ruling, so that the constitutional right to liberty
of a potential accused can be protected from any material
damage,[38] respondent prosecutors nonchalantly disregarded
it. Respondent prosecutors failed to comply with Section 3(a) of Rule 112
which provides that the complaint (which, with its attachment, must be of
such number as there are respondents) be accompanied by the affidavits of
the complainant and his witnesses, subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public. Respondent prosecutors
treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP
as complaints[39] and accepted the affidavits attached to the letters even
though some of them were notarized by a notary public without any
showing that a prosecutor or qualified government official was unavailable
as required by Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after
receiving the complaint, must determine if there are grounds to continue
with the investigation. If there is none, he shall dismiss the case, otherwise
he shall issue a subpoena to the respondents. Here, after receiving the
CIDG letters, respondent prosecutors peremptorily issued subpoenas to
petitioners requiring them to appear at the DOJ office on 13 March 2006 to
secure copies of the complaints and its attachments. During the
investigation, respondent prosecutors allowed the CIDG to present a
masked Fuentes who subscribed to an affidavit before respondent
prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes
affidavit not to petitioners or their counsels but to members of the media
who covered the proceedings. Respondent prosecutors then required
petitioners to submit their counter-affidavits in 10 days. It was only four
days later, on 17 March 2006, that petitioners received the complete copy of
the attachments to the CIDG letters.

These uncontroverted facts belie respondent prosecutors statement in the

Order of 22 March 2006 that the preliminary investigation was done in
accordance with the Revised Rules o[f] Criminal Procedure.[40] Indeed, by
peremptorily issuing the subpoenas to petitioners, tolerating the
complainants antics during the investigation, and distributing copies of a
witness affidavit to members of the media knowing that petitioners have
not had the opportunity to examine the charges against them, respondent
prosecutors not only trivialized the investigation but also lent credence to
petitioners claim that the entire proceeding was a sham.

A preliminary investigation is the crucial sieve in the criminal justice

system which spells for an individual the difference between months if not
years of agonizing trial and possibly jail term, on the one hand, and peace of
mind and liberty, on the other hand. Thus, we have characterized the right
to a preliminary investigation as not a mere formal or technical right but a
substantive one, forming part of due process in criminal justice.[41] This
especially holds true here where the offense charged is punishable
by reclusion perpetua and may be non-bailable for those accused as
principals.

Contrary to the submission of the Solicitor General, respondent

prosecutors filing of the Information against petitioners on 21 April
2006 with Branch 57 of the RTC Makati does not moot the petitions in G.R.
Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot
be frustrated by the simple filing of the Information with the trial court.

On Respondent Prosecutors Lack of Impartiality

 We find merit in petitioners doubt on respondent prosecutors
impartiality. Respondent Secretary of Justice, who exercises supervision
and control over the panel of prosecutors, stated in an interview on 13
March 2006, the day of the preliminary investigation, that, We [the DOJ]
will just declare probable cause, then its up to the [C]ourt to
decide x x x.[42] Petitioners raised this issue in their petition,[43] but
respondents never disputed the veracity of this statement. This clearly
shows pre-judgment, a determination to file the Information even in the
absence of probable cause.
A Final Word

The obvious involvement of political considerations in the actuations of

respondent Secretary of Justice and respondent prosecutors brings to mind
an observation we made in another equally politically charged case. We
reiterate what we stated then, if only to emphasize the importance of
maintaining the integrity of criminal prosecutions in general and
preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should

not allow, and should avoid, giving the impression that their
noble office is being used or prostituted, wittingly or
unwittingly, for political ends, or other purposes alien to, or
subversive of, the basic and fundamental objective of observing
the interest of justice evenhandedly, without fear or favor to any
and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established
procedure may be publics perception of the impartiality of the
prosecutor be enhanced.[44]

WHEREFORE, we GRANT the petitions. In G.R. No. 175013,

we SET ASIDE the Order dated 31 May 2006 of the Regional Trial
Court, Makati City, Branch 146 and the Order dated 29 August 2006 of the
Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and
172074-76, we SET ASIDE the Orders dated 22 March 2006and 4 April
2006 issued by respondent prosecutors. We ORDER the Regional Trial
Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452
and 06-944.
 SO ORDERED.

EN BANC

LT. (SG) EUGENE GONZALES, G.R. No. 164007

LT. (SG) ANDY TORRATO, LT.
(SG) ANTONIO TRILLANES IV, Present:
CPT. GARY ALEJANO, LT. (SG)
JAMES LAYUG, CPT. GERARDO PANGANIBAN, C.J.,
GAMBALA, CPT. NICANOR PUNO,
FAELDON, LT. (SG) MANUEL QUISUMBING,
CABOCHAN, ENS. ARMAND YNARES-SANTIAGO,
PONTEJOS, LT. (JG) ARTURO SANDOVAL-GUTIERREZ,
PASCUA, and 1LT. JONNEL CARPIO,
SANGGALANG, AUSTRIA-MARTINEZ,
Petitioners, CORONA,
CARPIO MORALES,
- versus - CALLEJO, SR.,
AZCUNA,
TINGA,
GEN. NARCISO ABAYA, in his CHICO-NAZARIO,
capacity as Chief of Staff of the GARCIA, and
Armed Forces of the Philippines, VELASCO, JJ.
and B. GEN. MARIANO M.
SARMIENTO, JR., in his capacity Promulgated:
as the Judge Advocate General of
the Judge Advocate Generals August 10, 2006
Office (JAGO),
Respondents.
x---------------------------------------------------------------------------------------------
x

DECISION

SANDOVAL-GUTIERREZ, J.:
 For our resolution is the Petition for Prohibition (with prayer for a
temporary restraining order) filed by the above-named members of the
Armed Forces of the Philippines (AFP), herein petitioners, against the AFP
Chief of Staff and the Judge Advocate General, respondents.

The facts are:

On July 26, 2003, President Gloria Macapagal Arroyo received

intelligence reports that some members of the AFP, with high-powered
weapons, had abandoned their designated places of assignment. Their aim
was to destabilize the government. The President then directed the AFP and
the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed
junior officers and enlisted men of the AFP mostly from the elite units of
the Armys Scout Rangers and the Navys Special Warfare Group entered the
premises of the Oakwood Premier Luxury Apartments on Ayala
Avenue, Makati City. They disarmed the security guards and planted
explosive devices around the building.

Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red
armbands emblazoned with the emblem of the Magdalo faction of
the Katipunan.[1] The troops then, through broadcast media, announced
their grievances against the administration of President Gloria Macapagal
Arroyo, such as the graft and corruption in the military, the illegal sale of
arms and ammunition to the enemies of the State, and the bombings
in Davao City intended to acquire more military assistance from
the US government. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resign as President of the
Republic. They also called for the resignation of her cabinet members and
the top brass of the AFP and PNP.

About noontime of the same day, President Arroyo

issued Proclamation No. 427 declaring a state of rebellion, followed by
General Order No. 4 directing the AFP and PNP to take all necessary
measures to suppress the rebellion then taking place in Makati City. She
then called the soldiers to surrender their weapons at five oclock in the
afternoon of that same day.

In order to avoid a bloody confrontation, the government sent

negotiators to dialogue with the soldiers. The aim was to persuade them to
peacefully return to the fold of the law. After several hours of negotiation,
the government panel succeeded in convincing them to lay down their arms
and defuse the explosives placed around the premises of the Oakwood
Apartments. Eventually, they returned to their barracks.

A total of 321 soldiers, including petitioners herein, surrendered to

the authorities.

The National Bureau of Investigation (NBI) investigated the incident

and recommended that the military personnel involved be charged
with coup detat defined and penalized under Article 134-A of the Revised
Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of
the Department of Justice (DOJ) recommended the filing of the
corresponding Information against them.

Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles

of War, respondent General Narciso Abaya, then AFP Chief of Staff,
ordered the arrest and detention of the soldiers involved in the Oakwood
incident and directed the AFP to conduct its own separate investigation.

On August 5, 2003, the DOJ filed with the Regional Trial Court
(RTC), Makati City an Information for coup detat[2] against those soldiers,
docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch
61, presided by Judge Romeo F. Barza.[3] Subsequently, this case was
consolidated with Criminal Case No. 03-2678, involving the other accused,
pending before Branch 148 of the RTC, Makati City, presided by Judge
Oscar B. Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a

reinvestigation of Criminal Case No. 03-2784.
 On the same date, respondent Chief of Staff issued Letter Order No.
625 creating a Pre-Trial Investigation Panel tasked to determine the
propriety of filing with the military tribunal charges for violations of the
Articles of War under Commonwealth Act No. 408,[4] as amended, against
the same military personnel. Specifically, the charges are: (a) violation of
Article 63 for disrespect toward the President, the Secretary of National
Defense, etc., (b) violation of Article 64 for disrespect toward a superior
officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of
Article 96 for conduct unbecoming an officer and a gentleman, and (e)
violation of Article 97 for conduct prejudicial to good order and military
discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243
(including petitioners herein) filed with the RTC, Branch 148 an Omnibus
Motion praying that the said trial court assume jurisdiction over all the
charges filed with the military tribunal. They invoked Republic Act (R.A.)
No. 7055.[5]

On September 15, 2003, petitioners filed with the Judge Advocate

Generals Office (JAGO) a motion praying for the suspension of its
proceedings until after the RTC shall have resolved their motion to assume
jurisdiction.

On October 29, 2003, the Pre-Trial Investigation Panel submitted its

Initial Report to the AFP Chief of Staff recommending that the military
personnel involved in the Oakwood incident be charged before a general
court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles
of War.

Meanwhile, on November 11, 2003, the DOJ, after conducting a

reinvestigation, found probable cause against only 31 (petitioners included)
of the 321 accused in Criminal Case No. 03-2784. Accordingly, the
prosecution filed with the RTC an Amended Information.[6]
 In an Order dated November 14, 2003, the RTC admitted the
Amended Information and dropped the charge of coup detat against the
290 accused.

Subsequently, or on December 12, 2003, the Pre-Trial Investigation

Panel submitted its Final Pre-Trial Investigation Report[7] to the JAGO,
recommending that, following the doctrine of absorption, those charged
with coup detat before the RTC should not be charged before the military
tribunal for violation of the Articles of War.

For its part, the RTC, on February 11, 2004, issued an Order[8] stating
that all charges before the court martial against the accusedare hereby
declared not service-connected, but rather absorbed and in furtherance
of the alleged crime of coup detat. The trial court then proceeded to hear
petitioners applications for bail.

In the meantime, Colonel Julius A. Magno, in his capacity as officer-

in-charge of the JAGO, reviewed the findings of the Pre-Trial Investigation
Panel. He recommended that 29 of the officers involved in the Oakwood
incident, including petitioners, be prosecuted before a general court martial
for violation of Article 96 (conduct unbecoming an officer and a gentleman)
of the Articles of War.

On June 17, 2004, Colonel Magnos recommendation was approved by

the AFP top brass. The AFP Judge Advocate General then directed
petitioners to submit their answer to the charge. Instead of complying, they
filed with this Court the instant Petition for Prohibition praying that
respondents be ordered to desist from charging them with violation of
Article 96 of the Articles of War in relation to the Oakwood incident.[9]

Petitioners maintain that since the RTC has made a determination in

its Order of February 11, 2004 that the offense for violation of Article 96
(conduct unbecoming an officer and a gentleman) of the Articles of War is
not service-connected, but is absorbed in the crime of coup detat, the
military tribunal cannot compel them to submit to its jurisdiction.

The Solicitor General, representing the respondents, counters that

R.A. No. 7055 specifies which offenses covered by the Articles of
War are service-connected. These are violations of Articles 54 to 70, 72 to
92, and 95 to 97. The law provides that violations of these Articles are
properly cognizable by the court martial. As the charge against petitioners
is violation of Article 96 which, under R.A. No. 7055 is a service-connected
offense, then it falls under the jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental

Petition raising the additional issue that the offense charged before the
General Court Martial has prescribed.Petitioners alleged therein that
during the pendency of their original petition, respondents proceeded with
the Pre-Trial Investigation for purposes of charging them with violation of
Article 96 (conduct unbecoming an officer and a gentleman) of the Articles
of War; that the Pre-Trial Investigation Panel then referred the case to the
General Court Martial; that almost two years since the Oakwood incident
on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned,
and this was done under questionable circumstances;[10]that in the hearing
of July 26, 2005, herein petitioners moved for the dismissal of the case on
the ground that they were not arraigned within the prescribed period of two
(2) years from the date of the commission of the alleged offense, in
violation of Article 38 of the Articles of War;[11] that the offense
charged prescribed on July 25, 2005;[12] that the General Court Martial
ruled, however, that the prescriptive period shall end only at 12:00
midnight of July 26, 2005;[13] that (a)s midnight of July 26, 2005 was
approaching and it was becoming apparent that the accused could not be
arraigned, the prosecution suddenly changed its position and asserted that
23 of the accused have already been arraigned;[14] and that petitioners
moved for a reconsideration but it was denied by the general court martial
in its Order dated September 14, 2005.[15]

In his Comment, the Solicitor General prays that the Supplemental

Petition be denied for lack of merit. He alleges that contrary to
petitioners pretensions, all the accused were duly arraigned on
July 13 and 18, 2005.[16] The (r)ecords show that in the hearing on July
13, 2005, all the 29 accused were present and, (o)n that day, Military
Prosecutor Captain Karen Ong Jags read the Charges and Specifications
from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005).[17]

The sole question for our resolution is whether the petitioners are
entitled to the writ of prohibition.

There is no dispute that petitioners, being officers of the AFP, are

subject to military law. Pursuant to Article 1 (a) of Commonwealth Act No.
408, as amended, otherwise known as the Articles of War, the
term officer is construed to refer to a commissioned officer. Article 2
provides:
Art. 2. Persons Subject to Military Law. The following
persons are subject to these articles and shall be understood as
included in the term any person subject to military law or
persons subject to military law, whenever used in these
articles:
(a) All officers and soldiers in the active service
of the Armed Forces of the Philippines or of the
Philippine Constabulary, all members of the reserve
force, from the dates of their call to active duty and
while on such active duty; all trainees undergoing
military instructions; and all other persons lawfully
called, drafted, or ordered into, or to duty or for
training in the said service, from the dates they are
required by the terms of the call, draft, or order to
obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:

SEC. 1. Members of the Armed Forces of the Philippines

and other persons subject to military law, including members
of the Citizens Armed Forces Geographical Units, who commit
crimes or offenses penalized under the Revised Penal Code,
other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims,
 or offended parties, which may be natural or juridical
persons, shall be tried by the proper civil court, except
when the offense, as determined before arraignment
by the civil court, is service-connected, in which case,
the offense shall be tried by court-martial, Provided,
That the President of the Philippines may, in the interest of
justice, order or direct at any time before arraignment that any
such crimes or offenses be tried by the proper civil courts.
As used in this Section, service-connected crimes or
offenses shall be limited to those defined in Articles
54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended.
In imposing the penalty for such crimes or offenses, the court-
martial may take into consideration the penalty prescribed
therefor in the Revised Penal Code, other special laws, or local
government ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it
lays down the general rule that members of the AFP and other persons
subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the
Revised Penal Code (like coup detat), other special penal laws, or local
ordinances shall be tried by the proper civil court. Next, it provides
the exception to the general rule, i.e., where the civil court, before
arraignment, has determined the offense to be service-connected, then
the offending soldier shall be tried by a court martial. Lastly, the
law states an exception to the exception, i.e., where the President of
the Philippines, in the interest of justice, directs before arraignment
that any such crimes or offenses be tried by the proper civil court.

The second paragraph of the same provision further identifies

the service-connected crimes or offenses as limited to those
defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to
97 of the Articles of War. Violations of these specified Articles are triable
by court martial. This delineates the jurisdiction between the civil courts
and the court martial over crimes or offenses committed by military
personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to

preserve the peculiar nature of military justice system over military
personnel charged with service-connected offenses. The military justice
system is disciplinary in nature, aimed at achieving the highest form of
discipline in order to ensure the highest degree of military
efficiency.[18] Military law is established not merely to enforce discipline in
times of war, but also to preserve the tranquility and security of the State in
time of peace; for there is nothing more dangerous to the public peace and
safety than a licentious and undisciplined military body.[19] The
administration of military justice has been universally practiced. Since time
immemorial, all the armies in almost all countries of the world look upon
the power of military law and its administration as the most effective means
of enforcing discipline. For this reason, the court martial has become
invariably an indispensable part of any organized armed forces, it being the
most potent agency in enforcing discipline both in peace and in war.[20]

Here, petitioners are charged for violation of Article 96 (conduct

unbecoming an officer and a gentleman) of the Articles of War before the
court martial, thus:
All persons subject to military law, did on or about 27
July 2003 at Oakwood Hotel, Makati City, Metro Manila,
willfully, unlawfully and feloniously violate their solemn
oath as officers to defend the Constitution, the law
and the duly-constituted authorities and abused their
constitutional duty to protect the people and the
State by, among others, attempting to oust the incumbent
duly-elected and legitimate President by force and violence,
seriously disturbing the peace and tranquility of the people and
the nation they are sworn to protect, thereby causing
dishonor and disrespect to the military profession,
 conduct unbecoming an officer and a gentleman, in
violation of AW 96 of the Articles of War.
CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War[21] provides:

ART. 96. Conduct Unbecoming an Officer and
Gentleman. Any officer, member of the Nurse Corps, cadet,
flying cadet, or probationary second lieutenant, who is
convicted of conduct unbecoming an officer and a gentleman
shall be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of

War is service-connected. This is expressly provided in Section 1 (second
paragraph) of R.A. No. 7055. It bears stressing that the charge against the
petitioners concerns the alleged violation of their solemn oath as
officers to defend the Constitution and the duly-constituted
authorities. Such violation allegedly caused dishonor and disrespect
to the military profession. In short, the charge has a bearing on
their professional conduct or behavioras military officers. Equally
indicative of the service-connected nature of the offense is the penalty
prescribed for the same dismissal from the service imposable only by
the military court. Such penalty is purely disciplinary in character,
evidently intended to cleanse the military profession of misfits and to
preserve the stringent standard of military discipline.

Obviously, there is no merit in petitioners argument that they can no

longer be charged before the court martial for violation of Article 96 of the
Articles of War because the same has been declared by the RTC in its Order
of February 11, 2004 as not service-connected, but rather absorbed and in
furtherance of the alleged crime of coup detat, hence, triable by said court
(RTC). The RTC, in making such declaration, practically amended the law
which expressly vests in the court martial the jurisdiction over service-
connected crimes or offenses. What the law has conferred the court should
not take away. It is only the Constitution or the law that bestows
jurisdiction on the court, tribunal, body or officer over the subject matter or
nature of an action which can do so.[22] And it is only through a
constitutional amendment or legislative enactment that such act can be
done. The first and fundamental duty of the courts is merely to apply the
law as they find it, not as they like it to be.[23] Evidently, such declaration by
the RTC constitutes grave abuse of discretion tantamount to lack or excess
of jurisdiction and is, therefore, void.

In Navales v. Abaya.,[24] this Court, through Mr. Justice Romeo J.

Callejo, Sr., held:
We agree with the respondents that the sweeping declaration made
by the RTC (Branch 148) in the dispositive portion of its Order
dated February 11, 2004 that all charges before the court-
martial against the accused were not service-connected, but
absorbed and in furtherance of the crime of coup detat, cannot
be given effect. x x x, such declaration was made without or in
excess of jurisdiction; hence, a nullity.
The second paragraph of the above provision (referring to
Section 1 of R.A. No. 7055) explicitly specifies what are
considered service-connected crimes or offenses under
Commonwealth Act No. 408, as amended, also known as the
Articles of War, to wit:
Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.
Art. 56. False Muster.
Art. 57. False Returns.
Art. 58. Certain Acts to Constitute Desertion.
Art. 59. Desertion.
Art. 60. Advising or Aiding Another to Desert.
Art. 61. Entertaining a Deserter.
Art. 62. Absence Without Leave.
 Art. 63. Disrespect Toward the President, Vice-
President,
Congress of the Philippines, or Secretary of
National
Defense.
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Art. 70. Arrest or Confinement.

Articles 72 to 92:
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public Service.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 83. Spies.
Art. 84. Military Property.Willful or Negligent Loss,
Damage
or wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of Military
Property
Issued to Soldiers.
Art. 86. Drunk on Duty.
Art. 87. Misbehavior of Sentinel.
Art. 88. Personal Interest in Sale of Provisions.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 89. Intimidation of Persons Bringing Provisions.
Art. 90. Good Order to be Maintained and Wrongs
Redressed.
Art. 91. Provoking Speeches or Gestures.
 Art. 92. Dueling.
Articles 95 to 97:

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and
Gentleman.
Art. 97. General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the
military courts the jurisdiction over the foregoing offenses. x x
x.
It is clear from the foregoing that Rep. Act No. 7055 did
not divest the military courts of jurisdiction to try cases
involving violations of Articles 54 to 70, Articles 72 to 92, and
Articles 95 to 97 of the Articles of War as these are considered
service-connected crimes or offenses. In fact, it mandates that
these shall be tried by the court-martial.

Moreover, the observation made by Mr. Justice Antonio T. Carpio

during the deliberation of this case is worth quoting, thus:
The trial court aggravated its error when it justified its ruling by
holding that the charge of Conduct Unbecoming an Officer and
a Gentleman is absorbed and in furtherance to the alleged
crime of coup detat. Firstly, the doctrine of absorption of
crimes is peculiar to criminal law and generally applies to
crimes punished by the same statute,[25] unlike here where
different statutes are involved. Secondly, the doctrine applies
only if the trial court has jurisdiction over both offenses. Here,
Section 1 of R.A. 7055 deprives civil courts of jurisdiction over
service-connected offenses, including Article 96 of the Articles
of War.Thus, the doctrine of absorption of crimes is not
applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]),
applicable only to military personnel because the military
constitutes an armed organization requiring a system of
discipline separate from that of civilians (see Orloff v.
 Willoughby, 345 U.S. 83 [1953]). Military personnel carry
high-powered arms and other lethal weapons not allowed to
civilians. History, experience, and the nature of a military
organization dictate that military personnel must be subjected
to a separate disciplinary system not applicable to unarmed
civilians or unarmed government personnel.
A civilian government employee reassigned to another place by his
superior may question his reassignment by asking a temporary
restraining order or injunction from a civil court. However, a
soldier cannot go to a civil court and ask for a restraining or
injunction if his military commander reassigns him to another
area of military operations. If this is allowed, military
discipline will collapse.
xxx
This Court has recognized that courts-martial are instrumentalities
of the Executive to enable the President, as Commander-in-
Chief, to effectively command, control, and discipline the
armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946],
citing Winthrops Military Law and Precedents, 2nd edition, p.
49). In short, courts-martial form part of the disciplinary
system that ensures the Presidents control, and thus civilian
supremacy, over the military. At the apex of this disciplinary
system is the President who exercises review powers over
decisions of courts-martial (citing Article 50 of the Articles of
War; quoted provisions omitted).
xxx
While the Court had intervened before in courts-martial
or similar proceedings, it did so sparingly and only to release a
military personnel illegally detained (Ognir v. Director of
Prisons, 80 Phil. 401 [1948] or to correct objectionable
procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The
Court has never suppressed court-martial proceedings on the
ground that the offense charged is absorbed and in furtherance
of another criminal charge pending with the civil courts. The
Court may now do so only if the offense charged is not one of
 the service-connected offenses specified in Section 1 of RA
7055. Such is not the situation in the present case.

With respect to the issue of prescription raised by petitioners in their

Supplemental Petition, suffice it to say that we cannot entertain the
same. The contending parties are at loggerheads as to (a) who among the
petitioners were actually arraigned, and (b) the dates of their
arraignment. These are matters involving questions of fact, not within
our power of review, as we are not a trier of facts. In a petition for
prohibition, such as the one at bar, only legal issues affecting the
jurisdiction of the tribunal, board or officer involved may be resolved on
the basis of the undisputed facts.[26]

Clearly, the instant petition for prohibition must fail. The office of
prohibition is to prevent the unlawful and oppressive exercise of authority
and is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or
other plain, speedy, and adequate remedy in the ordinary course of
law.[27] Stated differently, prohibition is the remedy to prevent inferior
courts, corporations, boards, or persons from usurping or exercising a
jurisdiction or power with which they have not been vested by law.[28]

In fine, this Court holds that herein respondents have the authority in
convening a court martial and in charging petitioners with violation of
Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

Republic of the Philippines

Supreme Court
 Manila

FIRST DIVISION

LYDIA C. GELIG, G.R. No. 173150

Petitioner,

Present:

CORONA, C. J.,
Chairperson
- versus - VELASCO, JR.,
LEONARDO-DE CASTRO,
DEL CASTILLO, and
PEREZ, JJ.

PEOPLE OF Promulgated:
THE PHILIPPINES,
Respondent. July 28, 2010
x--------------------------------------------------x

DECISION

DEL CASTILLO, J.:

An examination of the entire records of a case may be explored for the purpose of
arriving at a correct conclusion, as an appeal in criminal cases throws the whole
case open for review, it being the duty of the court to correct such error as may be
found in the judgment appealed from.[1]

Petitioner Lydia Gelig (Lydia) impugns the Decision[2] promulgated on January

10, 2006 by the Court of Appeals (CA) in CA-G.R. CR No. 27488 that vacated
and set aside the Decision[3] of the Regional Trial Court (RTC), Cebu City, Branch
23, in Criminal Case No. CU-10314. The RTC Decision convicted Lydia for
committing the complex crime of direct assault with unintentional abortion but
the CA found her guilty only of the crime of slight physical injuries.

Factual Antecedents

On June 6, 1982, an Information[4] was filed charging Lydia with Direct Assault
with Unintentional Abortion committed as follows:

That on the 17th day of July, 1981 at around 10:00 oclock in the
morning, at Barangay Nailon, Municipality of Bogo, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did, then and there, willfully,
unlawfully, and feloniously assault, attack, employ force and
seriously intimidate one Gemma B. Micarsos a public classroom
teacher of Nailon Elementary School while in the performance
of official duties and functions as such which acts consequently
caused the unintentional abortion upon the person of the said
Gemma S. Micarsos.

CONTRARY TO LAW.

Lydia pleaded not guilty during her arraignment. Thereafter, trial ensued.

The Prosecutions Version

Lydia and private complainant Gemma B. Micarsos (Gemma), were public

school teachers at the Nailon Elementary School, in Nailon, Bogo, Cebu. Lydias
son, Roseller, was a student of Gemma at the time material to this case.

On July 17, 1981, at around 10:00 oclock in the morning, Lydia confronted
Gemma after learning from Roseller that Gemma called him a sissy while in
class. Lydia slapped Gemma in the cheek and pushed her, thereby causing her to
fall and hit a wall divider. As a result of Lydias violent assault, Gemma suffered a
contusion in her maxillary area, as shown by a medical certificate[5]issued by a
doctor in the Bogo General Hospital. However, Gemma continued to experience
abdominal pains and started bleeding two days after the incident. On August 28,
1981, she was admitted in the Southern Islands Hospital and was diagnosed, to
her surprise, to have suffered incomplete abortion. Accordingly, a medical
certificate[6] was issued.

The Defenses Version

Lydia claimed that she approached Gemma only to tell her to refrain from calling
her son names, so that his classmates will not follow suit. However, Gemma
proceeded to attack her by holding her hands and kicking her. She was therefore
forced to retaliate by pushing Gemma against the wall.

Ruling of the Regional Trial Court

On October 11, 2002, the trial court rendered a Decision convicting Lydia of the
complex crime of direct assault with unintentional abortion. The dispositive
portion reads:

WHEREFORE, the court finds the accused LYDIA GELIG, guilty

beyond reasonable doubt of the crime of direct assault with
unintentional abortion, and she is hereby sentenced to suffer an
Indeterminate Penalty of SIX (6) MONTHS OF ARRESTO MAYOR
AS MINIMUM TO FOUR (4) YEARS, TWO (2) MONTHS OF
PRISION CORRECCIONAL AS MAXIMUM. She is likewise
ordered to pay the offended party the amount of Ten Thousand
(P10,000.00) Pesos as actual damages and Fifteen Thousand
(P15,000.00) Pesos for moral damages.
SO ORDERED.[7]

Thus, Lydia filed an appeal.

Ruling of the Court of Appeals

The CA vacated the trial courts judgment. It ruled that Lydia cannot be
held liable for direct assault since Gemma descended from being a person in
authority to a private individual when, instead of pacifying Lydia or informing
the principal of the matter, she engaged in a fight with Lydia.[8] Likewise, Lydias
purpose was not to defy the authorities but to confront Gemma on the alleged
name-calling of her son.[9]
 The appellate court also ruled that Lydia cannot be held liable for
unintentional abortion since there was no evidence that she was aware of
Gemmas pregnancy at the time of the incident.[10] However, it declared
that Lydia can be held guilty of slight physical injuries, thus:

WHEREFORE, premises considered, the appealed Decision of the

Regional Trial Court-Branch 23 of Cebu City, dated October 11,
2002 is hereby VACATED AND SET ASIDE. A new one is
entered CONVICTING the accused-appellant for slight physical
injuries pursuant to Article 266 (1) of the Revised Penal Code and
sentencing her to suffer the penalty of arresto menor minimum of
ten (10) days.

SO ORDERED.[11]

Issues

Still dissatisfied, Lydia filed this petition raising the following as errors:

1. The Honorable Court of Appeals erred in finding that

the petitioner is liable for Slight Physical Injuries pursuant to Article
266 (1) of the Revised Penal Code and sentencing her to suffer the
penalty of arrestomenor minimum of ten days.

2. The Honorable Court of Appeals erred in finding that

the petitioner can be convicted of Slight Physical Injuries under the
information charging her for Direct Assault with Unintentional
Abortion.[12]
Our Ruling

The petition lacks merit.

When an accused appeals from the judgment of his conviction, he waives his
constitutional guarantee against double jeopardy and throws the entire case
open for appellate review. We are then called upon to render such judgment as
law and justice dictate in the exercise of our concomitant authority to review and
sift through the whole case to correct any error, even if unassigned.[13]
The Information charged Lydia with committing the complex crime of direct
assault with unintentional abortion. Direct assault is defined and penalized
under Article 148 of the Revised Penal Code. The provision reads as follows:

Art. 148. Direct assaults. - Any person or persons who, without a

public uprising, shall employ force or intimidation for the
attainment of any of the purposes enumerated in defining the
crimes of rebellion and sedition, or shall attack, employ force, or
seriously intimidate or resist any person in authority or any of his
agents, while engaged in the performance of official duties, or on
occasion of such performance, shall suffer the penalty of prision
correccional in its medium and maximum periods and a fine not
exceeding 1,000 pesos, when the assault is committed with a
weapon or when the offender is a public officer or employee, or
when the offender lays hands upon a person in authority. If none of
these circumstances be present, the penalty of prision
correccional in its minimum period and a fine not exceeding 500
pesos shall be imposed.

It is clear from the foregoing provision that direct assault is an offense against
public order that may be committed in two ways: first, by any person or persons
who, without a public uprising, shall employ force or intimidation for the
attainment of any of the purposes enumerated in defining the crimes of rebellion
and sedition; and second, by any person or persons who, without a public
uprising, shall attack, employ force, or seriously intimidate or resist any person
in authority or any of his agents, while engaged in the performance of official
duties, or on
occasion of such performance.[14]

The case of Lydia falls under the second mode, which is the more common
form of assault. Its elements are:

1. That the offender (a) makes an attack, (b) employs force, (c)
makes a serious intimidation, or (d) makes a serious resistance.

2. That the person assaulted is a person in authority or his

agent.
 3. That at the time of the assault the person in authority or his
agent (a) is engaged in the actual performance of official duties, or
[b] that he is assaulted by reason of the past performance of official
duties.

4. That the offender knows that the one he is assaulting is a

person in authority or his agent in the exercise of his duties.

4. That there is no public uprising.[15]

On the day of the commission of the assault, Gemma was engaged in the
performance of her official duties, that is, she was busy with paperwork while
supervising and looking after the needs of pupils who are taking their recess in
the classroom to which she was assigned. Lydia was already angry when she
entered the classroom and accused Gemma of calling her son a
sissy.Lydia refused to be pacified despite the efforts of Gemma and instead
initiated a verbal abuse that enraged the victim. Gemma then proceeded towards
the principals office but Lydia followed and resorted to the use of force by
slapping and pushing her against a wall divider. The violent act resulted in
Gemmas fall to the floor.

Gemma being a public school teacher, belongs to the class of persons in

authority expressly mentioned in Article 152 of the Revised Penal Code, as
amended. The pertinent portion of the provision reads as follows:

Art. 152. Persons in Authority and Agents of Persons in

Authority Who shall be deemed as such.

xxxx
In applying the provisions of articles 148 and 151 of this Code,
teachers, professors, and persons charged with the supervision of
public or duly recognized private schools, colleges and universities,
and lawyers in the actual performance of their professional duties or
on the occasion of such performance shall be deemed persons in
authority. (As amended by Batas Pambansa Bilang 873, approved
June 12, 1985).[16]
 Undoubtedly, the prosecution adduced evidence to establish beyond
reasonable doubt the commission of the crime of direct assault. The appellate
court must be consequently overruled in setting aside the trial courts verdict. It
erred in declaring that Lydia could not be held guilty of direct assault since
Gemma was no longer a person in authority at the time of the assault because
she allegedly descended to the level of a private person by fighting
with Lydia. The fact remains that at the moment Lydia initiated her tirades,
Gemma was busy attending to her official functions as a teacher. She tried to
pacify Lydia by offering her a seat so that they could talk
properly,[17] but Lydia refused and instead unleashed a barrage of verbal
invectives. When Lydia continued with her abusive behavior, Gemma merely
retaliated in kind as would a similarly situated person. Lydia aggravated the
situation by slapping Gemma and violently pushing her against a wall divider
while she was going to the principals office. No fault could therefore be
attributed to Gemma.

The prosecutions success in proving that Lydia committed the crime of

direct assault does not necessarily mean that the same physical force she
employed on Gemma also resulted in the crime of unintentional abortion. There
is no evidence on record to prove that the slapping and pushing of Gemma
by Lydia that occurred on July 17, 1981 was the proximate cause of the
abortion. While the medical certificate of Gemmas attending physician, Dr.
Susan Jaca (Dr. Jaca), was presented to the court to prove that she suffered an
abortion, there is no data in the document to prove that her medical condition
was a direct consequence of the July 17, 1981 incident.[18] It was therefore vital for
the prosecution to present Dr. Jaca since she was competent to establish a link, if
any, between Lydias assault and Gemmas abortion. Without her testimony,
there is no way to ascertain the exact effect of the assault on Gemmas abortion.

It is worth stressing that Gemma was admitted and confined in a hospital

for incomplete abortion on August 28, 1981, which was 42 days after the July 17,
1981 incident. This interval of time is too lengthy to prove that the discharge of
the fetus from the womb of Gemma was a direct outcome of the assault. Her
bleeding and abdominal pain two days after the said incident were not
substantiated by proof other than her testimony. Thus, it is not unlikely that the
abortion may have been the result of other factors.

The Proper Penalty

Having established the guilt of the petitioner beyond reasonable doubt for the
crime of direct assault, she must suffer the penalty imposed by law. The penalty
for this crime is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000.00, when the offender is a public officer or employee,
or when the offender lays hands upon a person in authority.[19] Here, Lydia is a
public officer or employee since she is a teacher in a public school. By slapping
and pushing Gemma, another teacher, she laid her hands on a person in
authority.

The penalty should be fixed in its medium period in the absence of

mitigating or aggravating circumstances.[20] Applying the Indeterminate
Sentence Law,[21] the petitioner should be sentenced to an indeterminate term,
the minimum of which is within the range of the penalty next lower in
degree, i.e., arresto mayor in its maximum period to prision correccional in its
minimum period, and the maximum of which is that properly imposable under
the Revised Penal Code, i.e., prision correccional in its medium and maximum
periods.

Thus, the proper and precise prison sentence that should be imposed must
be within the indeterminate term of four (4) months and one (1) day to two (2)
years and four (4) months of arresto mayor, maximum to prision
correccional minimum to three (3) years, six (6) months and twenty-one (21)
days to four (4) years, nine (9) months and ten (10) days of prision
correccional in its medium and maximum periods. A fine of not more
than P1,000.00 must also be imposed on Lydia in accordance with law.

WHEREFORE, the Decision of the Court of Appeals finding petitioner

Lydia Gelig guilty beyond reasonable doubt of the crime of slight physical
injuries is REVERSED and SET ASIDE. Judgment is hereby rendered
finding Lydia Gelig guilty beyond reasonable doubt of the crime of direct assault
and is ordered to suffer an indeterminate prison term of one (1) year and one (1)
day to three (3) years, six (6) months and twenty-one (21) days of prision
correccional. She is also ordered to pay a fine of P1,000.00.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100231. April 28, 1993.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUEZ Y
TABANAS @ MABI; ALVIN DOE @ AL @ KA ALVIN; ROGER DOE @ KA
JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI @ KA ROEL @ KA
GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO
ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO
MAGASIN @ BOBBY, accused, RODRIGO DASIG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Kinaadman and Archival for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE,

ADMISSIBLE; EXCEPTION; NOT APPLICABLE IN CASE AT BAR. The
settled jurisprudence on the matter is that a confession is admissible until
the accused successfully proves that it was given as a result of violence,
intimidation, threat or promise of reward or leniency. Appellant relies on
the much abused claim that his extra-judicial confession was legally
defective and hence, should not have been admitted and considered by the
trial judge. This accusation is whimsical and obviously a mere refuge for
appellant's turnabout. In an attempt to avoid criminal liability, he now
questions the integrity of the police authorities and the reputation of the
lawyer who stood by him during the investigation. Indubitably established
and now a matter of record is the fact that appellant was assisted by Atty.
Parawan who even signed the former's sworn declarations. It is likewise a
matter of record that before appellant made his extra-judicial confession,
he was first asked if he was amenable to the services of Atty. Parawan to
which query he answered affirmatively. Finally, the alleged use of force and
intimidation has not been substantiated by evidence other than his self-
serving testimony. as has been pointed out, such allegation is another naive
effort of appellant to back track from his prior voluntary admission of guilt.
Evidently, the taking of his extra-judicial confession was done with
regularity and legality.

2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT

ASSAULT WHEN DONE IN FURTHERANCE THEREOF. The crime of
rebellion consists of may acts. It is a vast movement of men and a complex
net of intrigues and plots. Acts committed in furtherance of rebellion
though crimes in themselves are deemed absorbed in one single crime of
rebellion. The act of killing a police officer, knowing too well that the victim
is a person in authority is a mere component or ingredient of rebellion or
an act done in furtherance of the rebellion. It cannot be made a basis of a
separate charge.

3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A.

4203). The Indeterminate Sentence Law is not applicable to persons
convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the
Solicitor General. Article 135 of the Revised Penal Code imposes the penalty
of prision mayor and a fine not exceeding P20,000.00 to any person who
promotes, maintains, or heads a rebellion.

DECISION

NOCON, J p:

Appellant, Rodrigo Dasig is now before Us to plead the reversal of his

conviction by the Regional Trial Court, Branch 28, Mandaue City finding
him guilty of Murder with Direct Assault.

He was charged together with Edwin Nuez and 6 others who are still at
large, in an information which reads:

"That on or about the 4th day of August, 1987, in the city of Mandaue, of
this Honorable Court, the aforenamed accused, conspiring and
confederating together and helping one another, with intent to kill,
treachery, evident premeditation, abuse of superior strength and use of
motor vehicle, all armed with unlicensed firearms, did then and there
wilfully, unlawfully and feloniously attack, assault and shoot one Redempto
Manatad, a police officer on traffic duty, at his vital portion which caused
his death soon thereafter, knowing beforehand that the victim was a
policeman who was then in the performance of his official duties."

Upon arraignment, appellant and Edwin Nues entered a plea of "not

guilty." However, after the prosecution had presented its first witness,
accused Nues changed his plea of "not guilty" to "guilty." Hence, the lower
court held in abeyance the promulgation of a judgment against said accused
until the prosecution had finished presenting its evidence. While trial was
still ongoing, Nuez died on March 10, 1989, thereby extinguishing his
criminal liability.

The facts surrounding this case show that in the afternoon of August 4,
1987, Pfc. Redempto Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora
were tasked by their commanding officer to assist in canning the traffic at
M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon controlled
the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc.
Catamora acted as back-up and posted himself at Norkis Trading building.

At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8)
persons, one of whom he identified as Edwin Nuez, acting suspiciously.
He noticed one of them giving instructions to two of the men to approach
Pfc. Manatad. He followed the two, but sensing that they were being
followed, they immediately proceeded to the middle of the road and
engaged Pfc. Catamora to a gun battle. At that instant, Pfc. Catamora heard
a series of shots from the other group and thereafter saw Pfc. Manatad
sprawled on the ground. Being out-numbered and to save his own life, Pat.
Catamora sought refuge at the nearby BIR Office from where he saw two (2)
persons take Pfc. Manatad's gun and again fired at him to make sure that he
is dead while the rest of the group including Nues acted as back up.
Thereafter, the Nues group commandeered a vehicle and fled from the
scene of the shooting. Pfc. Rene Catamora testified that he can identify
accused-appellant Nues because of a mole at the bridge of his nose near
the left eye which he noticed when the accused passed 2 or 3 meters in front
of him together with his companions.

On August 16, 1987, two teams of police officers were tasked to conduct
surveillance on a suspected safehouse of members of the sparrow unit
located in Peace Valley, Cebu City. Upon reaching the place, the group saw
Rodrigo Dasig and Edwin Nues trying to escape. The team of Capt.
Antonio Gorre captured Nues and confiscated a .45 caliber revolver with 3
magazines and ammunitions, while the group of Sgt. Ronald Arnejo
pursued Dasig, who threw a grenade at his pursuers, but was shot on his
left upper arm and subsequently apprehended. A .38 caliber revolver with
17 live ammunitions were confiscated from him.

Thereafter, Dasig was brought to the hospital for treatment, while Nues
was turned over to the Metrodiscom for investigation. Meanwhile, Dasig
was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation
Service on August 19, 1987 at his hospital bed at the Lapulapu Army
Hospital in Cebu City. Assisting Dasig during the interrogation was Atty.
Fortunato Parawan of the Creer Law Office, who was requested by the
military to represent appellant who did not have a lawyer. Before the start
of the interrogation, Atty. Parawan asked appellant whether he was willing
to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised
Dasig of his constitutional rights. The interrogation was conducted in
Cebuano upon appellant's request.

Dasig confessed that he and the group of Edwin Nues killed Pfc. Manatad.
He likewise admitted that he and Nues were members of the sparrow unit
and the their aliases were "Armand" and "Mabi," respectively. The extra-
judicial confession of appellant marked as Exhibit "J" 2 was signed by him
on every page thereof with the first page containing a certification likewise
signed by him, which states: "I hereby certify that the herein statement is
free and voluntary, and that I am assisted by my counsel in the course of
this investigation" followed by the signed conformity of Atty. Parawan. The
extra-judicial confession was subscribed and sworn to before Cebu City
Asst. Fiscal Salvador Solima.

In the present appeal, Dasig contends that the procedure by which his
extra-judicial confession was taken was legally defective, and contrary to
his Constitutional rights. He further contends that assuming he conspired
in the killing of Pfc. Manatad, he should be convicted at most of simple
rebellion and not murder with direct assault.

Appellant also claims that the custodial interrogation was done while he
was still very sick and consequently, he could not have fully appreciated the
wisdom of admitting such a serious offense. That even with the presence of
counsel, his extra-judicial confession is inadmissible in evidence as said
counsel did not actively assist him and advise him of his rights. In effect, his
presence was merely to give a semblance of legality to the proceedings and
not to protect appellant against possible abuses of the investigator. Dasig,
likewise questions the sincerity of Atty. Parawan in protecting his rights
considering that the latter is a known anti-Communist advocate and that
the law firm to which he belongs has represented high ranking officers of
the Armed Forces of the Philippines.

We find the argument specious. Fiscal Salvador Solima in his certification,

Exhibit "J-7-B," stated that he had personally examined the affiant and that
he is convinced that the latter's statement was free and voluntary and that
the affiant signed the same in his presence and swore under oath as to the
veracity of everything therein. Atty. Fortunato L. Parawan also testified that
he assisted the affiant from the start of the investigation up to its
termination. Atty. Parawan testified thus:

"Q Who introduced Rodrigo Dasig to you?

A I inquired from the personnel of the hospital the whereabout of Rodrigo

Dasig and I introduced myself as a lawyer. So they informed me the room of
Rodrigo Dasig. At that time I introduced myself as a lawyer who came to
assist the person of Rodrigo Dasig. Once we had a confrontation with
Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer
in that investigation. Then he told me yes.

Q Did he tell you whether he as a counsel of his own choice?

A No.

xxx xxx xxx

Q In other words he accepted your services as counsel in connection with

that investigation which was about to be made?

A Yes.

Q Who are the persons present at that time?

A There were guards outside and inside. There was a man from the CIS in
the person of Sgt. Ira, myself and Dasig.

Q What happened after that?

A The CIS started the investigation.

Q You mean this Ariston Ira?

A Yes.

Q Before Ariston Ira conducted the investigation was Dasig informed of his
constitutional rights to remain silent, to counsel and if he chooses to testify
or say something, that statement of his will be used against or in his favor
in the court of justice?

A Yes. He was willing to get me as counsel in that investigation.

Q After he was informed of his constitutional rights what transpired next?

A The investigation started.

Q Were you present at the very start of that investigation?

A Yes. I was present from the start until it was finished.

Q Was that reduced to writing?

A Yes.

xxx xxx xxx

Q You said you were present during the entire investigation. Were the
answers of the accused, Rodrigo Dasig, to the questions propounded by the
investigator voluntary?

A Yes, they voluntary.

Q After the investigation was finished what transpired next?

A After the investigation, I think that was already past 3:00 or 4:00, we
proceeded to the office of the City Fiscal at F. Ramos St., Cebu City and
then we proceeded to the Office of Fiscal Solema (sic) and then it was
subscribed there before Fiscal Solema (sic).

Q Were you present during the proceeding?

A I was also present."

We do not find any reason to doubt the factual findings and conclusions of
the trial court that the extra-judicial confession of the appellant was
voluntarily made. Said the trial court:

"The prosecution's evidence clearly shows that herein accused during his
investigation was properly informed and appraised of his constitutional
right to remain silent and to have a competent and independent counsel
preferably of his own choice but since at that time he did not signify his
intention to retain a lawyer of his own choice, so he was provided with a
lawyer in the person of Atty. Fortunato Parawan of the Creer Law Office
who was available at that time, to assist him during the custodial
investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp
Lapulapu Army Station Hospital, Cebu City where he was confined after
being hit on his upper left arm and in fact, Atty. Parawan only consented to
assist herein accused after the latter has answered in the affirmative to his
question as to whether he would be amenable to be assisted by him as his
counsel of his own choice.

"The prosecution's evidence further show that Atty. Fortunato Parawan

after consenting to be his counsel was with him when his extra-judicial
confession or sworn statement was subscribed and sworn to by him before
Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office
who, before accused has actually affixed his signature on each and every
pages of his extra-judicial confession, has informed him (accused) of his
constitutional rights and has explained the contents of his extra-judicial
confession.

"Moreover, per certification made by Assistant City Fiscal Salvador O.

Solima of the Cebu City Fiscal's Office, clearly shows that accused in
executing the same has done so voluntarily and after having understood the
contents thereof which is in the visayan language, a language known to him,
found on the last page thereof now marked as Exhibit "J-7-B."

"Furthermore, this sworn statement of accused Dasig is collaborated by the

sworn statement of his co-accused Edwin Nues dated August 18, 1987
which is sworn and subscribed to before City Fiscal Jopelinito Pareja of the
city Fiscal's Office of Cebu City."

The settled jurisprudence on the matter is that a confession is admissible

until the accused successfully proves that it was given as a result of
violence, intimidation, threat or promise of reward or leniency. 5 The case
of People of the Philippines v. Parojinog is four square to the case at bar. In
Parojinog this court had this to say:

"Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of
Article III of the 1987 Constitution provides:

'Sec. 12(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 provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.'

"It is very clear from the aforequoted provision that a person under
investigation for the commission of an offense may choose his own counsel
but if he cannot afford the services of counsel, he must be provided with
one. While the initial choice of the lawyer in the latter case is naturally
lodged in the police investigators, the accused really has the final choice as
he may reject the counsel chosen for him and ask for another one. In the
instant case, the records show that no objection was voiced by the accused
throughout the entire proceedings of the investigation and afterwards when
he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus,
he apparently acquiesced to the choice of the investigators. He complained
for the first time that Atty. Fuentes was not his choice only during trial.
Thus it was too late."

Appellant relies on the much abused claim that his extra-judicial confession
was legally defective and hence, should not have been admitted and
considered by the trial judge. This accusation is whimsical and obviously a
mere refuge for appellant's turnabout. In an attempt to avoid criminal
liability, he now questions the integrity of the police authorities and the
reputation of the lawyer who stood by him during the investigation.
Indubitably established and now a matter of record is the fact that
appellant was assisted by Atty. Parawan who even signed the former's
sworn declarations. It is likewise a matter of record that before appellant
made his extra-judicial confession, he was first asked if he was amenable to
the services of Atty. Parawan to which query he answered affirmatively.
Finally, the alleged use of fore and intimidation has not been substantiated
by evidence other than his self-serving testimony. As has been pointed out,
such allegation is another naive effort of appellant to back track from his
prior voluntary admission of guilt. Evidently, the taking of his extra-judicial
confession was done with regularity and legality.

Nevertheless, there is merit in appellant's argument that granting he is

guilty, what he committed was a political crime of simple rebellion, and
hence he should not be convicted of murder with direct assault.

The Solicitor General agrees with the accused-appellant on this point as

manifested in the People's brief, which We quote:

"However, as correctly pointed by appellant, the lower court erroneously

convicted him of Murder with Assault Upon a Person in Authority, instead
of Rebellion.

"Rebellion is committed by taking up arms against the government, among

other means. (Article 135, Revised Penal Code). In this case, appellant not
only confessed voluntarily his membership with the sparrow unit but also
his participation and that of his group in the killing of Pfc. Manatad while
manning the traffic in Mandaue City in the afternoon of August 4, 1987. It
is of judicial notice that the sparrow unit is the liquidation squad of the
New People's Army with the objective of overthrowing the duly constituted
government. It is therefore not hard to comprehend that the killing of Pfc.
Manatad was committed as a means to or in furtherance of the subversive
ends of the NPA. Consequently, appellant is liable for the crime of rebellion,
not murder with direct assault upon a person in authority."

The crime of rebellion consists of many acts. It is a vast movement of men

and a complex net of intrigues and plots. Acts committed in furtherance of
rebellion though crimes in themselves are deemed absorbed in one single
crime of rebellion. 9 The act of killing a police officer, knowing too well that
the victim is a person in authority is a mere component or ingredient of
rebellion or an act done in furtherance of the rebellion. It cannot be made a
basis of a separate charge.

Moreover, in the case of People v. Mangallan 10 We held that where the

accused who was charged with murder admitted his membership with the
NPA and the killing of a suspected PC informer, the crime committed is not
murder but rebellion punishable under Articles 134 and 135 of the Revised
Penal Code.
As to the proper imposable penalty, the Indeterminate Sentence Law is not
applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to
the insinuation of the Solicitor General. Article 135 of the Revised Penal
Code imposes the penalty of prision mayor and a fine not exceeding
P20,000.00 to any person who promotes, maintains, or heads a rebellion.
However, in the case at bar, there is no evidence to prove that appellant
Dasig headed the crime committed. As a matter of fact he was not
specifically pinpointed by Pfc. Catamora as the person giving instructions to
the group which attacked Pfc. Manatad.

Appellant merely participated in committing the act, or just executed the

command of an unknown leader. Hence, he should be made to suffer the
penalty of imprisonment of eight (8) years of prision mayor. For the
resulting death, appellant is likewise ordered to pay the heirs of Pfc.
Manatad FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity.

Premises considered, We uphold the findings of the trial court that the
extra-judicial confession was legally obtained. However, appellant being a
confessed member of the sparrow unit, the liquidation squad of the New
People's Army whose objective is to overthrow the duly constituted
government, the crime committed is simple rebellion and not murder with
direct assault.

WHEREFORE, accused Rogelio Dasig is found guilty of participating in an

act of rebellion beyond reasonable doubt and is hereby sentenced to suffer
the penalty of imprisonment of eight (8) years of prision mayor, and to pay
the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.

SO ORDERED.

SECOND DIVISION

[G.R. No. 88189. July 9, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

TIBURCIO ABALOS, accused-appellant.

DECISION
REGALADO, J.:

In this appeal, accused-appellant Tiburcio Abalos seeks absolution from

the judgment of conviction rendered by the Regional Trial Court, Branch
27, of Catbalogan, Samar which pronounced him guilty of the complex
crime of direct assault with murder in Criminal Case No. 2302. His
arguments in the present appeal turn on the central question of
unwarranted credence allegedly extended by the trial court to the version of
the criminal incident narrated by the sole prosecution witness. The totality
of the evidence adduced, however, indubitably confirms appellant' s guilt of
the offense charged. Accordingly, we affirm.
An information filed in the trial court, dated April 21, 1983, imputed the
crime of direct assault with murder to herein appellant Tiburcio Abalos,
alias "Ewet," with the allegations
"That on or about the 20th day of March, 1983, at nighttime, in the
Municipality of Catbalogan, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill, with treachery and evident premeditation and
knowing fully well that one Sofronio Labine was an agent of a person in
authority being a member of the Integrated National Police with station at
Catbalogan, Samar, did then and there wilfully, unlawfully and feloniously
attack, assault and strike said Sofronio Labine with a piece of wood, which
said accused ha(d) conveniently provided himself for the purpose while said
P/Pfc. Sofronio Labine, a duly appointed and qualified member of the said
INP, was engaged in the performance of his official duties or on the
occasion of such performance, that is, maintaining peace and order during
the barangay fiesta of Canlapwas, of said municipality, thereby inflicting
upon him 'Lacerated wound 2 inches parietal area right. Blood oozing from
both ears and nose' which wound directly caused his death.
"That in the commission of the crime, the aggravating circumstance of
nocturnity was present."[1]
At his arraignment on June 7, 1983 appellant with the assistance of
counsel, entered a plea of not guilty.[2] The trial conducted thereafter
culminated in the decision[3] of the trial court on February 3, 1989 finding
appellant guilty as charged and meting out to him the penalty of "life
imprisonment, with the accessories of the law." Appellant was likewise
ordered to indemnify the heirs of the victim in the sum of P30,000.00;
actual and compensatory damages in the amount of P2,633.00, with
P15,000.00 as moral damages; and to pay the costs.[4]
 As recounted by prosecution witness Felipe Basal, a farmer residing in
Barangay Pupua, Catbalogan, Samar, appellant assaulted the victim, Pfc.
Sofronio Labine, at around 8:00 P.M. of March 20, 1983, which was then
the day of the barangay fiesta celebrations in Barangay Canlapwas,
Catbalogan, Samar. The incident transpired near the house of appellant at
the said barangay. Felipe Basal was then having a drinking session in front
of the shanty of one Rodulfo Figueroa, Jr. which was situated just a few
meters from the residence of appellant.
According to Basal, at about that time he noticed the father of appellant,
Police Major Cecilio Abalos, scolding his employees in his transportation
business for turning in only two hundred pesos in earnings for that
day. While Major Abalos was thus berating his employees, appellant arrived
and asked his father not to scold them and to just let them take part in
the barangayfestivities. This infuriated the elder Abalos and set off a
heated argument between father and son.[5]
While the two were thus quarreling, a woman shouted "Justicia, boligue
kami! Adi in mag-a-aringasa," meaning, "Police officer, help us!
Somebody's making trouble here." The victim, Pfc. Sofronio Labine, then
appeared on the scene and asked Major Abalos, "What is it, sir?" The victim
saluted Abalos when the latter turned around to face him. As Major Abalos
leveled his carbine at Labine, appellant hurriedly left and procured a piece
of wood, about two inches thick, three inches wide and three feet long, from
a nearby Ford Fiera vehicle.
He then swiftly returned and unceremoniously swung with that wooden
piece at Labine from behind, hitting the policeman at the back of the right
side of his head. Labine collapsed unconscious in a heap, and he later
expired from the severe skull fracture he sustained from that blow. Felipe
Basal and his wife took flight right after appellant struck the victim, fearful
that they might be hit by possible stray bullets[6] should a gunfight ensue.
Appellant's testimony, on the other hand, is of a different tenor. He
admits having struck Labine with a piece of wood during the incident in
question but claims that he did so in the erroneous belief that his father was
being attacked by a member of the New People's Army (NPA). According to
appellant, he was then seated inside their family-owned Sarao jeepney
parked beside the store of Rodulfo Figueroa, Jr. near their home in
Barangay Canlapwas when he noticed a man in fatigue uniform suddenly
accost his father. At that time, appellant's father had just arrived from a trip
from Wright, Samar and had just alighted from his service vehicle, a Ford
Fiera.
The man tried to disarm Major Abalos of his firearm but the latter
resisted and while the two were grappling for possession of the gun,
appellant instinctively went to the rescue of his father. He got a piece of
wood from Figueroa's store with which he then clubbed Labine whom he
did not recognize at that point. When Labine fell to the ground from the
blow, appellant immediately fled to Barangay Mercedes nearby, fearing that
the man had companions who might retaliate. When he came to know of
the identity of his victim the following morning, he forthwith surrendered
to the authorities.[7]
As mentioned at the outset, the foregoing version of the factual
antecedents as presented by appellant was roundly rejected by the lower
court which found the same unworthy of belief.Appellant ascribes
reversible errors to the trial court (a) in not giving credence to the evidence
adduced by the defense, (b) in believing the evidence presented by the
prosecution, (c) in relying on the prosecution's evidence which falls short of
the required quantum of evidence that would warrant a conviction; (d) in
finding that treachery attended the commission of the crime and failing to
credit in appellant's favor his voluntary surrender; and (e) in finding
appellant guilty beyond reasonable doubt of the crime charged.[8]
In the main, appellant insists that the trial court should not have given
credence to the story of the lone eyewitness for the prosecution. He also
contends that since the testimony of that witness bore clear traces of
incredibility, particularly the fact that he could not have had a clear view of
the incident due to poor visibility, the prosecution should have presented as
well the woman who had called for help at the height of the incident if only
to corroborate Basal's narration of the events. Appellant also assails as
inherently incredible the fact that it took quite a time for witness Felipe
Basal to come forward and divulge what he knew to the authorities. All
these, unfortunately, are flawed arguments.
From the evidence in the case at bar, the prosecution has convincingly
proved, through the clear and positive testimony of Basal, the manner in
which the victim was killed by herein appellant.The record is bereft of any
showing that said prosecution witness was actuated by any evil motivation
or dubious intent in testifying against appellant. Moreover, a doctrine of
long standing in this jurisdiction is that the testimony of a lone eyewitness,
if credible and positive, is sufficient to convict an accused.[9] There was thus
no need, as appellant would want the prosecution to do, to present in court
the woman who shouted for assistance since her testimony would only be
corroborative in nature.
The presentation of such species of evidence in court would only be
warranted when there are compelling reasons to suspect that the
eyewitness is prevaricating or that his observations were
inaccurate.[10] Besides, it is up to the People to determine who should be
presented as prosecution witness on the basis of its own assessment of the
necessity for such testimony.[11] Also, no unreasonable delay could even be
attributed to Felipe Basal considering that during the wake for Pfc. Labine,
Basal came and intimated to the widow of the victim that he was going to
testify regarding her husband's slaying.[12]
Appellant's contention that the deceased had attacked and attempted to
divest his father of his firearm is rather preposterous considering that no
reason was advanced as to why the deceased patrolman would assault a
police officer of superior rank. Parenthetically, the condition of visibility at
the time of the incident was conducive not only to the clear and positive
identification of appellant as the victim's assailant but likewise to an actual
and unobstructed view of the events that led to the victim's violent death.
Basal was seated just a few meters away from the protagonists whom he
all knew, he being also a long-time resident of that municipality. There was
a twelve-foot high fluorescent lamppost located along the road and which,
by appellant's own reckoning, was just seventeen meters away from
them.[13] Notwithstanding the fact that a couple of trees partly obstructed
the post, the illumination cast by the fluorescent lamp and the nearby
houses provided sufficient brightness for the identification of the
combatants.
Curiously enough, appellant's assertion that there was poor visibility is
ironically contradicted by his testimony which is detailed on facts that one
could readily recall after witnessing an event in broad daylight. While
appellant considers unbelievable Basal's identification of him supposedly
because of inadequate lighting, he himself, under the same conditions,
could clearly see his father's assailant wearing a fatigue uniform which was
different from that worn by policemen. He even asserts that he saw his
father clutching the carbine with his hands holding the butt while his
purported assailant held on tightly to the rifle.[14] What these facts establish
is that the lights in the area at the time of the incident were enough to
afford Basal an excellent view of the incident, contrary to appellant's
pretense. Appellant's testimony is thus negated by the rule that evidence, to
be believed, must have been given not only by a credible witness, but that
the same must also be reasonably acceptable in itself.
Appellant's flight right after he had assaulted the victim is also corrosive
of his testimony. For, if it were true that he had merely labored under the
wrong notion that his father was being attacked by a member of the NPA,
and that it was an innocent case of error in personae, he could have readily
surrendered to his father right then and there. After all, Cecilio Abalos was
a police major and was the Station Commander of the Integrated National
Police (INP) in Wright, Samar. Further, there was no necessity at all for
him to flee from the crime scene for fear of retaliation considering that he
was in the company of his own father who, aside from his position, was
then armed with a carbine. Appellant's explanation is, therefore, absurd
and should be considered as self-serving evidence with no weight in law.
On the offense committed by appellant, the trial court correctly
concluded that he should be held accountable for the complex crime of
direct assault with murder. There are two modes of committing atentados
contra la autoridad o sus agentes under Article 148 of the Revised Penal
Code. The first is not a true atentado as it is tantamount to rebellion or
sedition, except that there is no public uprising. On the other hand the
second mode is the more common way of committing assault and is
aggravated when there is a weapon employed in the attack, or the offender
is a public officer, or the offender lays hands upon a person in authority.[15]
Appellant committed the second form of assault, the elements of which
are that there must be an attack, use of force, or serious intimidation or
resistance upon a person in authority or his agent; the assault was made
when the said person was performing his duties or on the occasion of such
performance; and the accused knew that the victim is a person in authority
or his agent, that is, that the accused must have the intention to offend,
injure or assault the offended party as a person in authority or an agent of a
person in authority.[16]
Here, Labine was a duly appointed member of the then INP in
Catbalogan, Samar and, thus, was an agent of a person in authority
pursuant to Article 152 of the Revised Penal Code, as amended. There is
also no dispute that he was in the actual performance of his duties when
assaulted by appellant, that is, he was maintaining peace and order during
the fiesta in Barangay Canlapwas. Appellant himself testified that he
personally knew Labine to be a policeman[17] and, in fact, Labine was then
wearing his uniform. These facts should have sufficiently deterred appellant
from attacking him, and his defiant conduct clearly demonstrates that he
really had the criminal intent to assault and injure an agent of the law.
When the assault results in the killing of that agent or of a person in
authority for that matter, there arises the complex crime of direct assault
with murder or homicide.[18] The killing in the instant case constituted the
felony of murder qualified by alevosia through treacherous means
deliberately adopted. Pfc. Labine was struck from behind while he was
being confronted at the same time by appellant's father. The evidence
shows that appellant deliberately went behind the victim whom he then hit
with a piece of wood which he deliberately got for that purpose.
Obviously, appellant resorted to such means to avoid any risk to
himself, knowing fully well that his quarry was a policeman who could
readily mount a defense. The aggravating circumstances of evident
premeditation and nocturnity, however, were not duly proven, as correctly
ruled by the court below. On the other hand, appellant's voluntary
surrender even if duly taken into account by the trial court would have been
inconsequential.
The offense is a complex crime, the penalty for which is that for the
graver offense, to be imposed in the maximum period. Considering that the
more serious crime of murder then carried the penalty of reclusion
temporal in its maximum period to death, the imposable penalty should
have been death. The mitigating circumstance, in that context, would have
been unavailing and inapplicable since the penalty thus imposed by the law
is indivisible.[19] At all events, the punishment of death could not be
imposed as it would have to be reduced to reclusion perpetua due to the
then existing proscription against the imposition of the death penalty.[20]
However, the designation by the trial court of the imposable penalty as
"life imprisonment" is erroneous, as the same should properly be
denominated as reclusion perpetua.[21] Also, the death indemnity payable
to the heirs of the victim, under the present jurisprudential policy, is
P50,000.00.
ACCORDINGLY, with the MODIFICATION that the penalty imposed
upon accused-appellant Tiburcio Abalos should be reclusion perpetua, and
that the death indemnity is hereby increased to P50,000.00, the judgment
of the court a quo in Criminal Case No. 2302 is AFFIRMED in all other
respects, with costs against accused-appellant.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5803 November 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO
CAPINO, defendants-appellants.

Jose P. Laurel, Cipriano Primicias, Alejo Mabanag, Manuel Concordia,

P.M. Stuart Del Rosario, Tomas R. Umali, Eufemio E. De Mesa and
Edmundo T. Zepeda for appellants.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for
appellee.

MONTEMAYOR, J.:

Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing

directly to this Tribunal from a decision of the Court of First Instance of
Quezon province finding them guilty of the complex crime of rebellion with
multiple murder, frustrated murder, arson and robbery, and sentencing
each of them to "life imprisonment, other accessories of the law, to
indemnify jointly and severally Marcial Punsalan in the amount of P24,023;
Valentin Robles in the amount of P10,000; Yao Cabon in the amount of
P700; Claro Robles in the amount of P12,800; Pocho Guan in the amount
of P600; the heirs of Domingo Pisigan in the amount of P6,000; the heirs
of Locadio Untalan in the amount of P6,000; Patrolman Pedro Lacorte in
the amount of P500; Lazaro Ortega in the amount of P300; Hilarion Aselo
in the amount of P300; Calixto Rivano in the amount P50; Melecio Garcia
in the amount of P60; and Juanito Lector in the amount of P90, each to pay
one fifteenth of the costs, without subsidiary imprisonment in case of
insolvency due to the nature of the principal penalty that is imposed upon
them."
The complex crime of which appellants were found guilty was said to have
been committed during the raid staged in the town of Tiaong, Quezon,
between 8:00 and 9:00 in the evening of November 14, 1951, by armed
men. It is not denied that such a raid took place resulting in the burning
down and complete destruction of the house of Mayor Marcial Punzalan
including its content valued at P24,023; the house of Valentin Robles
valued at P10,000, and the house of one Mortega, the death of Patrolman
Domingo Pisigan and civilians Vicente Soriano and Leocadio Untalan, and
the wounding of Patrolman Pedro Lacorte and five civilians; that during
and after the burning of the houses, some of the raiders engaged in looting,
robbing one house and two Chinese stories; and that the raiders were
finally dispersed and driven from the town by the Philippine Army soldiers
stationed in the town led by Captain Alzate.

To understand the reason for and object of the raid we have to go into the
political situation in Tiaong not only shortly before that raid but one year or
two years before it. Narciso Umali and Marcial Punzalan were old time
friends and belonged to the same political faction. In the general elections
of 1947 Umali campaigned for Punzalan who later was elected Mayor of
Tiaong. In the elections of 1949 Punzalan in his turn campaigned and
worked for Narciso Umali resulting in the latter's election as Congressman.
However, these friendly relations between the two did not endure. In the
words of Punzalan, Narciso Umali who as Congressman regarded himself
as the political head and leader in that region including Tiaong, became
jealous because of his (Punzalan's) fast growing popularity among the
people of Tiaong who looked to him instead of Umali for political guidance,
leadership, and favors. In time the strain in their relations became such
that they ceased to have any dealings with each other and they even filed
mutual accusations. According to Punzalan, in May 1950, Umali induced
about twenty-six special policemen of his (Punzalan's) to flee to the
mountains with their arms and join the Huks, this is in order to discredit
Punzalan's administration; that he was later able to contact two of his
twenty-six policemen and tried to persuade them to return to the town and
to the service, but they told him that they and their companions would not
surrender except and with through the intervention of Congressman Umali,
and so Punzalan had to seek Umali's intervention which resulted in the
surrender of the 26 men with their firearms; that thereafter Umali wanted
to have their firearms, claiming that they all belonged to him from his
guerrilla days when he was a colonel, and that after liberation he had
merely loaned them to the municipal authorities of Tiaong to help keep
peace and order; and that the refusal of Punzalan to grant Umali's request
further strained their relations, and thereafter Umali would not speak to
him even when they happened to meet at parties.

On September 19, 1951, the Chief of Police of Punzalan disarmed four of

Umali's men, including his bodyguard Isidro Capino who were then
charged with illegal possession of firearms. Umali interceded for his men
and Col. Gelveson, Provincial Commander, sent a telegram stating that the
firearms taken away from the men were licensed. As a result the complaint
was dismissed. This incident was naturally resented by Umali and spurred
him to have a showdown with Punzalan.

Then the elections of 1951 (November 13) approached and Punzalan ran for
reelection. To oppose him, and to clip his political wings and definitely blast
his ambition for continued power and influence in Tiaong, Umali picked
Epifanio Pasumbal, his trusted leader.

The pre-election campaign and fight waged by both factions Punzalan

and Pasumbal, was intense and bitter, even ruthless. The election was to be
a test of political strength and would determine who was who in Tiaong,
Umali or Punzalan. Umali spoke at political meetings, extolling the virtues
of Pasumbal and the benefits and advantages that would accrue to the town
if he was elected, at the same time bitterly attacking Punzalan, accusing
him of dishonesty, corruption in office, abuse of power, etc. At one of those
meetings he told the audience not to vote for Punzalan because he would
not be elected and that even if he won the election, he would not sit for
blood will flow, and that he (Umali) had already prepared a golden coffin
for him (Punzalan). After denying the charges, in retort, Punzalan would
say that Umali as a Congressman was useless, and that he did not even
attend the sessions and that his chair in Congress had gathered dust, even
cobwebs.

To help in the Umali-Pasumbal campaign, Amado Mendoza who later was

to play the role of star witness for the prosecution, was drafted. He was a
compadre of Pasumbal and had some experience in political campaigns,
and although he was not exactly a model citizen, being sometimes given to
drunkenness, still, he had the gift of speech and persuasion. In various
political meetings he delivered speeches for Pasumbal. He was ever at the
back and call of Umali and Pasumbal, and naturally he frequented the
latter's houses or headquarters. The result of the elections plainly showed
that Punzalan was the political master and leader in Tiaong. He beat
Pasumbal by an overwhelming majority of 2,221 votes. Naturally, Umali
and Pasumbal were keenly disappointed, and according to the evidence,
adopted measures calculated to frustrate Punzalan's victory, even as
prophesied by Umali himself in one of his pre-election speeches about
blood flowing and gold coffin.

Going back to the raid staged in Tiaong on November 14, 1951, it is well to
make a short narration of the happenings shortly before it, established by
the evidence, so as to ascertain and be informed of the reason or purpose of
said raid, the persons, behind it, and those who took part in it. According to
the testimony of Amado Mendoza, in the morning of November 12th, that
is, on the eve of the election, at the house of Pasumbal's father, then being
used as his electoral headquarters, he heard Umali instruct Pasumbal to
contact the Huks through Commander Abeng so that Punzalan will be
killed, Pasumbal complying with the order of his Chief (Umali) went to the
mountains which were quite near the town and held a conference with
Commander Abeng. It would seem that Umali and Pasumbal had a feeling
that Punzalan was going to win in the elections the next day, and that his
death was the surest way to eliminate him from the electoral fight.

The conference between Pasumbal and Commander Abeng on November

12th was witnessed and testified to by Nazario Anonuevo, a Huk who was
under Commander Abeng, and who later took an active part in the raid. In
the evening of the same day, Mendoza heard Pasumbal report to Umali
about his conference with Commander Abeng, saying that the latter was
agreeable to the proposition and had even outlined the manner of attack,
that the Huks would enter the town (Tiaong) under Commander Lucio and
Aladin, the latter to lead the sector towards the East; but that Commander
Abeng had suggested that the raid be postponed because Pasumbal may yet
win the election the following day, thereby rendering unnecessary the raid
and the killing of Punzalan.

Continuing with the testimony of Amado Mendoza, he told the court that as
per instructions of Umali he went to the house of the latter, in the evening
of November 14th, the day following the election, with the result of the
election already known, namely, the decisive victory of Punzalan over
Pasumbal. He was told by Umali to come with him, and Pasumbal and the
three boarded a jeep with Pasumbal at the wheel. They drove toward the
Tiaong Elementary School and once there he (Mendoza) was left at the
school premises with instructions by Umali to wait for Commander Abeng
and the Huks and point to them the house of Punzalan. After waiting for
sometime, Abeng and his troops numbering about fifty, armed with
garands and carbines, arrived and after explaining his identity and his
mission to Abeng, he had led the dissidents or part of the contingent in the
direction of Punzalan's house and on arriving in front of the bodega of
Robles, he pointed out Punzalan's house and then walked toward his home,
leaving the Huks who proceeded to lie flat in a canal. Before reaching his
house, he already heard shots, so, he evacuated his family to their dugout in
his yard. While doing so he and his wife Catalina Tinapunan saw armed
men in the lanzones grove just across the street from their house, belonging
to the father of Umali, and among those men they saw Congressman Umali
holding a revolver, in the company of Huk Commander Torio and about 20
armed men. Afterwards they saw Umali and his companions leave in the
direction of Taguan, by way of the railroad tracks.

It would appear from the evidence that the raid was well-planned. As a
diversionary measure, part of the attacking force was deployed toward the
camp or station of the Army (part of 8th B.C.T.) in the suburbs and the
camp was fired upon, not exactly to destroy or drive out that Army unit but
to keep it from going to the rescue and aid of the main objective of the raid.
The rest of the raiding party went toward Punzalan's house and attacked it
with automatic weapons, hand grenades, and even with bottles filled with
gasoline (popularly known as Molotov's cocktail). It was evident that the
purpose of the attack on Punzalan's house was to kill him. Fortunately,
however, and apparently unknown to the attackers and those who designed
the raid, at six o'clock that morning of November 14th Punzalan and his
Chief of Police had left Tiaong to go to Lucena, the capital, to report the
results of the election to the Governor.

The attack on the house of Punzalan was witnessed and described by

several persons, including policemen who happened to be near the house.
Policeman Tomas Maguare who was in front of the house saw Epifanio
Pasumbal, Isidro Umali (brother of Congressman Umali) and Moises
Escueta enter the gate of Punzalan's house and take part in the firing.
Policeman Pedro Lacorte who was stationed as guard at the gate of Mayor
Punzalan's house recognized defendant Isidro Capino as one of those firing
at the house. Lacorte said that he was guarding the house of Punzalan when
he suddenly heard shots coming from the sides of the house and going over
to the place to investigate, he saw armed men in fatigue and shouting "burn
the house of Mayor Punzalan"; that he was hit on the left check and later
Isidro Capino threw at him a hand grenade and he was hit in the right
forearm and in the right eye and became permanently blind in said eye.
Mateo Galit, laundryman who was sitting inside a jeep parked in front of
the house of Punzalan recognized defendant Pasumbal as one of the
attackers who, once in the yard said ina loud voice as though addressing
somebody in the house "Pare, come down." Mrs. Punzalan who was then
inside the house related to the court that at about eight in the evening while
she was resting she heard shots and rapid firing. As a precaution she took
her children to the bathroom. Then she noticed that her house was being
fired at because the glass window panes were being shattered and she heard
the explosion of a hand grenade inside the house, followed by flares in the
sala and burning of blankets and mosquito nets in the bedrooms and she
noticed the smell of smoke of gasoline. Realizing the great danger, she and
the children ran out of the house and went to hide in the house of a
neighbor.

Nazario Aonuevo declared in court that he was a farmer and was picked
up and seized by Huk Commander Tommy sometime in August 1951, and
was taken to Mt. Banahaw in Laguna and mustered in the ranks of the
Huks; that just before the elections of November 13, 1951, he saw Pasumbal
come to the mountains near Tiaong and talk to Commander Abeng; that on
November 14th by order of Commander Abeng he with other Huks left Mt.
Banahaw for Tiaong; that when they crossed the Osiw River already near
Tiaong, they were met by Pasumbal and Capino; that when they were at the
outskirts of the town, he and the party were told by Commander Tommy to
attack the 8th BCT camp in Tiaong to prevent the sending of army help to
the town proper; that he took part in firing on the camp which returned the
fire in the course of which he was wounded; and that because of his wound
he could not escape with his companions to the mountains when the Army
soldiers dispersed and drove them out of the town and so he was finally
captured by said soldiers.

As to defendants Pasumbal and Capino, their participation in and

responsibility for the raid was duly established not only by the going of
Pasumbal on November 12th to the mountains following instructions of
Umali, and conferring with Commander Abeng asking him to raid Tiaong
and kill Punzalan, but also by the fact that Pasumbal and Capino in the
afternoon or evening of November 14th met the Huks at the Osiw River as
the dissidents were on their way to Tiaong and later Pasumbal and Capino
were seen in the yard of Punzalan firing at the house with automatic
weapons and hand grenades.
What about Umali? His criminal responsibility was also established, tho
indirectly. We have the testimony of Amado Mendoza who heard him
instructing Pasumbal to contact Commander Abeng and ask him to raid
Tiaong and kill Punzalan. The rest of the evidence is more or less
circumstantial, but nonetheless strong and convincing. No one saw him
take part in the firing and attack on the house of Punzalan; nor was he seen
near or around said house. Because of his important position as
Congressman, perchance he did not wish to figure too prominently in the
actual raid. Besides, he would seem to have already given out all the
instructions necessary and he could well stay in the background. However,
during the raid, not very far from Punzalan's house he was seen in the
lanzonesan of his father, holding a revolver and in the company of about 20
armed men with Huk Commander Torio, evidently observing and waiting
for developments. Then he and his companions left in the direction of
Taguan.

Umali and Pasumbal, however, claim that during the raid, they were in the
home of Pasumbal in Taguan, about seven kilometers away from Tiaong
where a consolation party was being held. There is ample evidence however
to the effect that they arrived in Pasumbal's home only around midnight.
An Army soldier named Cabalona who happened to be in Pasumbal's home
arriving there earlier in the evening and who was invited to take some
refreshments said that he did not see the two men until they arrived about
midnight when the Army reinforcements from Lucena passed by on their
way to Tiaong. Thus, we have this chain of circumstances that does not
speak in favor of Umali, or Pasumbal for that matter. But this is not all.
There is the rather strange and unexplained, at least not satisfactorily,
behaviour of Umali and Pasumbal that evening of November 14th.
Assuming for a moment as they claim, that the two were not in Tiaong at
the commencement of the raid between 8:00 and 9:00 p.m., and during the
whole time the raid lasted, and that they were all that time in the home of
Pasumbal in Taguan, still, according to their own evidence, they were
informed by persons coming or fleeing from Tiaong that there was a raid
going on there, and that some houses were burning. As a matter of fact,
considering the promixity of Taguan to Tiaong, a distance of about seven
kilometers and the stillness and darkness of the night, the fire and the glow
produced by the burning of three houses and the noise produced by the
firing of automatic weapons and the explosion of the hand grenades and
bottles of gasoline, could and must have been seen and heard from Taguan.
The natural and logical reaction on the part of Umali and Pasumbal would
have been to rush to Tiaong, see what had really happened and then render
help and give succor to the stricken residents, including their own relatives.
It will be remembered that the houses of the fathers of Umali and Pasumbal
were in Tiaong and their parents and relatives were residing there. And yet,
instead of following a natural impulse and urge to go to Tiaong, they fled in
the opposite direction towards Candelaria. And Umali instead of taking the
road, purposely avoided the same and preferred to hike through coconut
groves so that upon arriving in Candelaria, he was wet, and spattered and
very tired. Had they wanted to render any help to Tiaong they could have
asked the police authorities of Candelaria to send a rescue party to that
town. Or better still, when the army reinforcements from Lucena sent at the
instance of Punzalan, who at about eight or nine that evening was returning
to Tiaong from Lucena, found at the barrio or sitio of Lusakan near Tiaong
that there was fighting in the town, he immediately returned to Lucena to
get army reinforcements to relieve his town, was passing by Taguan, where
they were, Umali and Pasumbal could have joined said reinforcements and
gone to Tiaong. Instead the two continued on their way to the capital
(Lucena) where before dawn, they went and contacted Provincial Fiscal
Mayo, a first cousin of Umali, and Assistant Fiscal Reyes and later had
these two officials accompany them to the Army camp to see Col. Gelveson,
not for the purpose of asking for the sending of aid or reinforcement to
Tiaong but presumably to show to the prosecution officials, specially the
Army Commander that they (Umali and Pasumbal) had nothing to do
whatsoever with the raid. Umali said he was trying to avoid and keep clear
of Tiaong because he might be suspected of having had some connection
with the raid and might be the object of reprisal. As a matter of fact,
according to Umali himself, while still in Taguan that evening and before he
went to Candelaria, somebody had informed him that Col. Legaspi of the
Army was looking for him. Instead of seeking Col. Legaspi and find out
what was wanted of him, he left in the opposite direction and fled to
Candelaria and later to Lucena, and the next day he took the train for
Manila. This strange act and behaviour of the two men, particularly Umali,
all contrary to impulse and natural reaction, and what other people would
ordinarily have done under the circumstances, prompted the trial court in
its decision to repeat the old saying "The guilty man flees even if no one
pursues, but the innocent stands bold as a lion." We might just as well
reproduce that portion of the decision of the trial court, to wit:

. . . Considering the fact that Taguan is very near Tiaong so that even
taking it for granted as true, for the sake of argument, that the said
 accused were really at the party of Pasumbal on the night in question,
that would not prevent them from being in Tiaong between 8 and 9.
Besides, why was it that night the hasaglamp was replaced with
candles when the reinforcements passed through Taguan about
midnight of November 14, 1951. Why did Congressman Umali and
company instead of going to Tiaong which was the scene of the attack
hurried towards Candelaria, after the reinforcement has passed and
went to the house of Felix Ona walking through a muddy path under
the coconut groves? Why was Umali afraid to pass through the
provincial road and preferred a muddy road instead? Was he trying to
conceal himself? Why did Pasumbal and company also go to the
house of Ona? Why did they go to the house of Felix Ona instead of
going to the house of Manalo who could have given them better
protection? And again why did Congressman Umali and the other co-
accused repaired and sought the company of Fiscal Reyes in going at
such an early hour to the Army authorities, did they fear any reprisal?
From whom? Why did Umali go to Manila from Lucena on November
16, 1951? "The guilty man flees even if no one pursues, but the
innocent stands bold as a lion."

At first blush it would appear rather unbelievable that Umali and Pasumbal,
particularly the former should seek the aids of the Huks in order to put
down and eliminate their political enemy Punzalan. It would seem rather
strange and anomalous that a member of Congress should have friendly
relations with this dissidents whom the Government had been fighting all
these years. But if we study the evidence, it will be found that the reason
and the explanation are there. As already stated, during the Japanese
occupation, to further the resistance movement, guerillas were organized in
different parts of the Philippines. One of these was the guerilla unit known
as President Quezon's Own Guerillas (PQOG) operating in the provinces of
Tayabas (now Quezon) and Laguna. Umali, Pasumbal, Commander Abeng
and even Punzalan himself were officers in this guerilla unit, Umali
attaining the rank of colonel, and Pasumbal and Punzalan that of
Lieutenant-colonel, Pasumbal then being known as "Panzer". After
Liberation, Abeng joined the dissidents, and became a Huk Commander. It
was not unnatural that Umali and Pasumbal should continue their
friendship and association with Commander Abeng and seek his aid when
convenient and necessary. Umali admitted that he knew Huk Commander
Kasilag. Graciano Ramos, one of the witnesses of the prosecution told the
court that way back in May 1950, in a barrio of San Pablo City he saw Umali
confer with Commander Kasilag, which Commander after the conference
told his soldiers including Ramos that Umali wanted the Huks to raid
Tiaong, burn the presidencia and kidnap Punzalan. Of course, the last part
of the testimony may be regarded as hearsay, but the fact is that Umali
conferred with a Huk commander as early as 1950. Then we have the fact
that on November 18 of the same year Punzalan wrote to President Quirino
denouncing the congressman Umali for fraternizing with the Huks and
conducting a campaign among them in preparation for the elections the
following year. And we may also consider the fact that the town of Tiaong
stands at the foothills of Mt. Banahaw where the dissidents under
Commander Abeng, Tommy, Lucio, Aladin, and others had their hideout,
so that it was not difficult for residents of Tiaong like Umali and Pasumbal
to communicate and even associate with dissidents in that region.

After carefully considering all the evidence in the case, we are constrained
to agree with the trial court that the three appellants are guilty. Besides, the
determination of this case, in great measure, hinges on the credibility of
witnesses. The learned trial court which had the opportunity of observing
the demeanor of witnesses on the stand and gauging their sincerity and
evaluating their testimony, decided the Government witnesses, including
Amado Mendoza, to be more credible and reliable. And we find nothing in
the record to warrant correction or reversal of the stand and finding of the
trial court on the matter. We have not overlooked the rather belated
retraction of Amado Mendoza made on October 31, 1952, about a year and
9 months after he testified in court. Considering the circumstances
surrounding the making of this affidavit or retraction, the late date at which
it was made, the reasons given by him for making it and the fact that when
he testified in court under the observation and scrutiny of the trial court
bearing in mind that he was the star witness for the prosecution and his
testimony naturally extremely important, and the trial court after the
opportunity given to it of observing his demeanor while on the witness
stand had regarded him as a witness, sincere, and his testimony truthful,
and considering further the case with which affidavits of retraction of this
nature are obtained, we confess that we are not impressed with such
retraction of Mendoza.

The last point to be determined is the nature of the offense of offenses

committed. Appellants were charged with and convicted of the complex
crime of rebellion with multiple murder, frustrated murder, arson and
robbery. Is there such a complex crime of rebellion with multiple murder,
etc? While the Solicitor General in his brief claims that appellants are guilty
of said complex crime and in support of his stand "asks for leave to
incorporate by reference" his previous arguments in opposing Umali's
petition for bail, counsel for appellants considered it unnecessary to discuss
the existence or non-existence of such complex crime, saying that the
nature of the crime committed "is of no moment to herein appellants
because they had absolutely no part in it whatsoever". For that present, and
with respect to this particular case, we deem it unnecessary to decide this
important and controversial question, its consideration and determination
to another case or occasion more opportune, when it is more directly and
squarely raised and both parties given an opportunity to discuss and argue
the question more adequately and exhaustively. Considering that, assuming
for the moment that there is no such complex crime of rebellion with
murder, etc., and that consequently appellants could not have been legally
charged with, much less convicted of said complex crime, and the
information should therefore, be regarded as having charged more than one
offense, contrary to Rule 106, section 12 and Rule 113, section 2 (e), of the
Rules of Court, but that appellants having interposed no objection thereto,
they were properly tried for and lawfully convicted if guilty of the several,
separate crimes charged therein, we have decided and we rule that the
appellants may properly be convicted of said several and separate crimes,
as hereinafter specified. We feel particularly supported and justified in this
stand that we take, by the result of the case, namely, that the prison
sentence we impose does not exceed, except perhaps in actual duration,
that meted out by the Court below, which is life imprisonment.

We are convinced that the principal and main, tho not necessarily the most
serious, crime committed here was not rebellion but rather that of sedition.
The purpose of the raid and the act of the raiders in rising publicly and
taking up arms was not exactly against the Government and for the purpose
of doing the things defined in Article 134 of the Revised Penal code under
rebellion. The raiders did not even attack the Presidencia, the seat of local
Government. Rather, the object was to attain by means of force,
intimidation, etc. one object, to wit, to inflict an act of hate or revenge upon
the person or property of a public official, namely, Punzalan was then
Mayor of Tiaong. Under Article 139 of the same Code this was sufficient to
constitute sedition. As regards the crime of robbery with which appellants
were charged and of which they were convicted, we are also of the opinion
that it was not one of the purposes of the raid, which was mainly to kidnap
or kill Punzalan and destroy his house. The robberies were actually
committed by only some of the raiders, presumably dissidents, as an
afterthought, because of the opportunity offered by the confusion and
disorder resulting from the shooting and the burning of the three houses,
the articles being intended presumably to replenish the supplies of the
dissidents in the mountains. For these robberies, only those who actually
took part therein are responsible, and not the three appellants herein. With
respect to the crime of multiple frustrated murder, while the assault upon
policeman Pedro Lacorte with a hand grenade causing him injuries
resulting in his blindness in one eye, may be regarded as frustrated murder;
the wounding of Ortega, Anselo, Rivano, Garcia and Lector should be
considered as mere physical injuries. The crimes committed are, therefore,
those of sedition, multiple murder, arson, frustrated murder and physical
injuries. The murders may not be qualified by evident premeditation
because the premedition was for the killing of Punzalan. The result was the
killing of three others intended by the raiders (People vs. Guillen, 47 Off).
The killing may, however, be qualified by treachery, the raiders using
firearms against which the victims were defenseless, with the aggravating
circumstance of abuse of superior strength. The three murders may be
punished with the penalty of death. However, because of lack of the
necessary votes, the penalty should be life imprisonment.

We deem it unnecessary to discuss the other points raised by the appellants

in their brief.

In conclusion, we find appellants guilty of sedition, multiple murder, arson,

frustrated murder and physical injuries. For the crime of sedition each of
the appellants is sentenced to 5 years of prision correctional and to pay a
fine of P4,000; for each of the three murders, each of the appellants is
sentenced to life imprisonment and to indemnify the heirs of each victim in
the sum of P6,000; and for the arson, for which we impose the maximum
penalty provided in Article 321, paragraph 1, of the Revised Penal Code, for
the reason that the raiders in setting fire to the buildings, particularly the
house of Punzalan they knew that it was then occupied by one or more
persons, because they even and actually saw an old lady, the mother of
Punzalan, at the window, and in view of the aggravating circumstances of
nighttime, each of the appellants is sentenced to reclusion perpetua and to
pay the indemnities mentioned in the decision of the lower court. It shall be
understood, however, the pursuant to the provisions of Article 70 of the
Revised Penal Code the duration of all penalties shall not exceed 40 years.
In view of the heavy penalties already imposed and their long duration, we
find it unnecessary to fix and impose the prison sentences corresponding to
frustrated murder and physical injuries; however, the sums awarded the
victims (Lacorte, Ortega, Anselo, Rivano, Garcia and Lector), by the court
below will stand. With these modifications, the decision appealed from is
hereby affirmed, with costs.

SECOND DIVISON

G.R. No. 125796, Promulgated: December 27, 2000

OFFICE OF THE PROVINCIAL PROSECUTOR OF ZAMBOANGA

DEL NORTE, Petitioners,
vs.
COURT OF APPEALS, ATICO ABORDO, JUDY CATUBIG, PETER
MOLATO, and FLORENCIO CANDIA,Respondents.

MENDOZA, J.:

The issue in this case is whether, even before the start of trial, the
prosecution can be ordered to change the information which it had filed on
the ground that the evidence presented at the preliminary investigation
shows that the crime committed is not murder with multiple frustrated
murder, but rebellion. The trial court ruled that the power to determine
what crime to charge on the basis of the evidence gathered is the
prerogative of the public prosecutor. The Court of Appeals, however, while
agreeing with the trial court, nevertheless found the prosecutor to have
gravely abused his discretion in charging murder with frustrated murder on
the ground that the evidence adduced at the preliminary investigation
shows that the crime committed was rebellion. Accordingly, it ordered the
prosecutor to substitute the information filed by him. Hence, this petition
brought by the provincial prosecutor of Zamboanga del Norte for a review
of the decision of the Court of Appeals.
The facts are not in dispute. On August 3, 1993, the provincial prosecutor of
Zamboanga del Norte1 filed with the Regional Trial Court, Branch 8,
Dipolog City, an information (docketed as Criminal Case No, 6427)
charging private respondents and 10 other individuals with murder and
multiple frustrated murder. The Information reads:

The undersigned, Provincial Prosecutor, accuses ATICO OBODO alias

"Dondoy," NACENCIANO PACA-LIUGA, JR., ELEAZAR FLORENDO,
NESTOR BASES alias Beses/Belly, FLORENCIO CANDIA alias "Bimbo,"
JUDY CATUBIG alias Elboy/Al," PETER MOLATO alias, Joker, ALBERTO
CATUBIG alias "Blacky", ALMARIO CATUBIG alias Nixon, JIMMY
BENGAL alias "Macoboy," ENRICO SIMBULAN alias Monstop, JIMMY
GARIG alias "Gino" and BERNIDO QUENCAS alias "Digoy of the crime of
MURDER WITH MULTIPLE FRUSTRATED MURDER, committed as
follows:

That, in the morning, on or about the 1st day of May, 1988, in the
Municipality of Katipunan, Zamboanga del Norte, within the jurisdiction of
this Honorable Court, the above-named accused armed with the high
caliber firearms, conspiring, confederating together and mutually helping
one another and with intent to kill by means of treachery and evident
premeditation did then and there willfully, unlawfully, unlawfully and
feloniously attack, assault and fire several shots to one Cpl. ALFREDO
DELA CRUZ PA, which accused his instantaneous death and causing
injuries to the following victims namely: SGT. RODRIGO ALVIAR PA, SGT.
RODRIGO BARADI, SGT. LINOGAMAN PIATOS and SGT. BELLIZAR PA,
which injuries would ordinarily cause their death; thus performing all the
acts of execution which would have produced the crime of MURDER, as a
consequence, but which nevertheless did not produce it for reason of causes
independent of the will of the herein accused, that is the timely and able
medical attendance rendered to the said victims which prevented their
death; that as a result of the commission of the said crime the heirs of Cpl.
Alfredo de la Cruz and the herein victims suffered the following damages,
vis:

On victim CPL ALFREDO DELA CRUZ:

a. Indemnity for

Victims death .. P50, 000.00

b. Loss of earning

Capacity 30,000.00

P80, 000.00

SGT. RODRIGO ALVIAR:

a) Hospitalization P10, 000.00

c. Loss of earning

Capacity .. 10,000.00

P20, 000.00

SGT. LINOGAMAN PIATOS:

a) Hospitalization P10, 000.00

d. Loss of earning

Capacity .. 10,000.00

P20,000.00

SGT. RODRIGO BARADI;

a) Hospitalization P10,000.00

e. Loss of earning

Capacity .. 10,000.00

P20,000.00

SGT. BELLIZAR:

a) Hospitalization P10,000.00

f. Loss of earning

Capacity .. 10,000.00
 P20,000.00

CONTR ARY TO LAW (Viol. Of Art. 248, in relation or Art. 48 of the

Revised Penal Code), with the aggravating circumstance of superior
strength and with the qualifying circumstances of treachery and evident
premeditation.2

The foregoing information is based on a joint affidavit executed on June 1,

1993 by five individuals, who claim to be former members of the New
Peoples Army (NPA), before the Municipal Trial Court of Katipunan,
Zamboanga del Norte. The affiants stated that on May 1, 1988, their group,
which included private respondents, figured in an armed encounter with
elements of the Philippine Army in Campo Uno, Femagas, Katipunan,
Zamboanga del Norte, as a result of which one solider, Cpl. Alfredo de la
Cruz, was killed while four others, Sgts. Rodrigo Alviar, Linomagan Piatos,
Rodrigo Baradi, and a certain Bellizar, were seriously wounded. Although
private respondents did not appear nor submit affidavits in the preliminary
investigation, they appealed the resolution of the provincial prosecutor to
the Secretary of Justice on the ground that, in accusing them of murder and
multiple frustrated murder, the provincial prosecutor disregarded the
political motivation which made the crime committed rebellion. When the
case was filed in court, private respondents reiterated their contention and
prayed that the provincial prosecutor be ordered to change the charge from
murder with multiple frustrated murder to rebellion.

On September 29, 1995, the trial court issued an order denying private
respondents motion for the correction or amendment of the information.
The trial court said.3

Be it recalled, that as pointed out by the Asst. Provincial Prosecutor, the

same moving counsel sometime on July 22, 1993 filed a notice of appeal
assailing the resolution of the provincial prosecutor dated July 16, 1993
finding probable cause against all the above-named accused for the crime of
Murder and Multiple frustrated Murder, to the Honorable Secretary of
Justice, by raising the same issue that "instead of recommending the filing
of a political crime such as subversion or rebellion, the investigating
prosecutor is recommending the filing of the common crime of murder to
cover-up the apparent political color of the alleged crime committed. Until
the Secretary of Justice therefore resolves the appeal by the movant, this
court will have no basis to order the public prosecutor to amend or change
the crime charged in the information. Besides, this Court recognizes and
respects the prerogative of the fiscal to determine whether or not a prima
facie case exists in a given case against the accused. This power vested in
the fiscal cannot be interfered with even by the courts.

But since the case has already been filed with this Court, jurisdiction
therefor now lies with the court. It may not even be bound by the ruling of
the Secretary of Justice

Private respondents twice moved for reconsideration and twice were

rebuffed. They then filed a petition for certiorari with this Court to set aside
the orders dated September 29, October 24, and November 3, 1995 of the
trial court. They impleaded the provincial prosecutor of Zamboanga del
Norte as co-respondent of Judge Pacifico Garcia of the Regional Trial
Court, Branch 8, Dipolog City.

Without ruling on the petition, this Court referred the case to the Court of
Appeals, which, in decision4 dated July 24, 1996, the subject of this review,
found the provincial prosecutor guilty of grave abuse of discretion in
charging private respondents with murder with multiple frustrated murder.
The Court of Appeals held:

The New Peoples Army (NPA) is the armed component of the

Communist Party in this country called the national Democratic
Front (NDF). The ultimate objective of the NPA/NDF is to
overthrow the constitutional democratic plant it with a
government anchored on the communist ideology.

It is common practice of the military and police to charge captured or

arrested members f the NPA with capital offenses like murder, robbery with
homicide, illegal possession of firearms used in the commission of
homicide or murder, arson resulting in death rather than on simple
rebellion.

If an NPA fighter (terrorist, according to the military lexicon) commits

homicide, murder, arson, robbery, illegal possession of firearms and
ammunition in furtherance or on the occasion of his revolutionary pursuit,
the only crime he has committed is rebellion because all those common
crimes are absorbed in the latter one pursuant to the ruling in People v.
Hernandez, 99 Phil. 515 and several subsequent cases.
The reason why instead of charging the NPA fighter with capital offenses
mentioned supra and not the proper offense of rebellion is obvious.
Rebellion is a bailable offense and given the resources of the NPA, it is the
easiest thing for it to bail out its members facing rebellion charges in court.
Once out, the NPA fighter goes back to his mountain lair and continues the
fight against the government. If he is accused of a capital offense where the
granting of bail is a matter of discretion, his chances of securing provisional
liberty during the pendency of the trial are very much lessened.

Since, the military and the police carry the brunt of fighting the NPAs and
in so doing they put their limbs and lives on the line, it is easy for Us to
understand why they usually charge the captured or arrested NPAs with
capital offenses instead of the proper offense which is rebellion. The police
or military practice is of course wrong, but it is not much of a problem
because it is at most recommendatory in nature. It is the prosecutory
service that ultimately decides the offense to be charged.

No one disputes the well-entrenched principle in criminal procedure that

the public prosecutor has the discretion to determine the crime to be
charged in a criminal action. But like all discretions, his must be exercised
soundly, meaning, reasonably, responsibly, and fairly. As stated by the
Supreme Court in Misola v. Panga cited in respondents Comment (p. 61,
Rollo); "The question of instituting a criminal charge is one addressed to
the sound discretion of the investigating Fiscal. The information must be
supported by the facts brought about by an inquiry made by
him." (Underscoring supplied).

If then, a public prosecutor deliberately ignores or suppresses an evidence

in his hands which palpably indicates the chargeable offense and files an
information charging a more serious one, he departs from the precinct of
discretion and treads on the forbidden field or arbitrary action.

This was what happened in the case at bench. The evidentiary bases of the
criminal action against petitioners are the Joint Affidavit and the recorded
testimony earlier adverted to. It is not at all disputed that based upon these
two documents, the proper offense to charge petitioners with is rebellion.
No amount of legalistic sophistry can make those documents support
murder for these offenses in the factual milieu in this case were all
absorbed by rebellion.
We vehemently reject respondents contention that the petitioners do not
suffer any prejudice because they can use their theory that the chargeable
offense is only rebellion as a defense in the trial on the merits and if the
trial court finds that the evidence establishes only rebellion, then, it can
convict them under the Information for just that lesser crime. This
argument is not only wrong but betrays insensitivity to violation of human
rights. If prosecutory discretion is twisted to charge a person of an
unbailable offense and, therefore, keeps him under detention when the
truly chargeable offense is a bailable one, the prosecutor transgresses upon
the human rights of the accused.5

The appeals court was more kindly disposed toward the trial court. It said:

Respecting the respondent court, the situation is different

The Joint Affidavit and the recorded testimony mentioned earlier are not
part of the records. The trial has not yet been started and, therefore, no
evidence has yet been adduced. There is no basis then for the trial court
even to call the attention of the prosecutor to a mistake in the crime
charged.

We hold that respondent court did not commit an error in issuing the
assailed orders, much less gravely abused its discretion in issuing them.6

Accordingly, the Court of Appeals ordered:

WHEREFORE, with the foregoing premises, We a) dismiss the petition as

against respondent court for lack of merit; and b) order the respondent
office of Provincial Prosecutor to file a substitute Information in Criminal
Case No. 6472 charging the petitioners with rebellion only.7

Petitioner contends that the Court of Appeals erred

I. IN MAKING DISPARATE AND IRRECONCILABLE RULINGS

CONCERNING THE CORRECTNESS OF THE ACTION OF
PETITIONER AND THE LOWER COURT.
II. IN HOLDING THAT PETITIONER GRAVELY ABUSED ITS
DISCRETION IN CHARGING PRIVATE RESPONDENTS
WITH MURDER AND MULTIPLE FRUSTRATED MURDER.8
 We find the contentions to be well taken.

First. It was improper for the Court of Appeals to consider the record of the
preliminary investigation as basis for finding petitioner provincial
prosecutor guilty of grave abuse of discretion when such record was not
presented before the trial court and, therefore, was not part of the record of
the case. Rule 112, 8 of the Revised Rules of Criminal procedure provide;

SEC. 8. Record of preliminary investigation. The record of the

preliminary investigation whether conducted by a judge or a fiscal, shall not
form part of the record of the case in the Regional Trial Court. However, the
said court, on its own initiative or that of any party, may order the
production of the record of any part thereof whenever the same shall be
necessary in the resolution of the case or any incident therein, or shall be
introduced as evidence by the party requesting for its production.

The certiorari proceedings in the Court of Appeals was limited to the record
of the trial court and indeed the Court of Appeals recognized this by
absolving the trial court of any liability for abuse of its discretion. It is
petitioner provincial prosecutor, which it found guilty of grave abuse of
discretion in filing a case for murder with multiple frustrated murder
against private respondents because, in its view, the crime committed is
rebellion. The Court of Appeals based its ruling on the joint affidavit of five
prosecution witnesses and their testimonies relating to such affidavit before
the Municipal Trial Court of Katipunan, Zamboanga del Norte, which had
conducted the preliminary investigation. But this could not be done
because the petition before it was a petition for certiorari to set aside orders
of the Regional Trial Court denying private respondents motion to compel
petitioner to change the charge against them from murder with frustrated
murder to rebellion.

To sustain the procedure followed by the Court of Appeals of considering

evidence dehors the record of the trial court would be to set a bad precedent
whereby the accused in any case can demand, upon the filing of the
information, a review of the evidence presented during the preliminary
investigation for the purpose of compelling the trial court to change the
charge to a lesser offense. Such a ruling would undermine the authority of
the prosecutor and impose and intolerable burden on the trial court. As
held in Depamaylo v. Brotario.9
The Court in a number of cases has declared that a municipal judge has no
legal authority to determine the character of the crime but only to
determine whether or not the evidence presented supported prima facie the
allegation of facts contained in the complaint. He has no legal authority to
determine the character of the crime and his declaration upon that point
can only be regarded as an expression of opinion in no wise binding on the
court (People vs. Gorospe, 53 Phil. 960; de Guzman vs. Escalona, 97 SCRA
619). This power belongs to the fiscal Bais vs. Tugaoen, 89 SCRA 101).

It is to be noted that private respondents did not even attend the

preliminary investigation during which they could have shown that the
crime committed was rebellion because the killing and wounding of the
government troopers was made in furtherance of rebellion and not for some
private motive.

Second. Indeed, it is not at all clear that the crime as made out by the facts
alleged in the Joint Affidavit of witnesses is rebellion and not murder with
multiple murder. The affidavit reads:

REPUBLIC OF THE PHILIPPINES

PROVINCE OF ZAMBOANGA DEL NORTE) S.S

Municipality of Jose Dalman)

X---------------------------------------------------------------------------------------
-------------------------------------------------------x

JOINT AFFIDAVIT

I..Teofilo D. Sarigan, 31 years old, Manuel A. Cuenca, 28 yrs.

Old, Romulo A. Pacaldo, 25 years old, Carmelito Carpe, 36 yrs.
Old, all married and Pablo D. Maladia, 20 yrs. old and with
postal address of Brgy. Lopero, Brgy. Lumaping, of Jose
Dalman, Brgy. Villahermosa, Roxas, all of ZDN, Brgy. Sigamok,
Dumingag, ZDS and Brgy. Lipay. Jose Dalman, ZDN after
having been duly sworn to an oath in accordance to law do
hereby depose and answer questions propounded:

QUESTIONS AND ANSWERS:

1. Q Why are you here now in this office?

A To render statement regarding the alleged incident wherein

we were previously involved when we were still with the
underground movement of CPP/NPA that transpired on or
about 011000H May 1988 at vicinity Campo Uno, Femagas,
Katipunan, ZDN against the government troops of 321B.

2. Q Since when the five (5) of you entered the underground

movement of CPP.NPA?

A Since May 16, 1980, August 12, 1980, March 12, 1981, May
7, 1983 and August 27, 2987, sir.

3. Q What is your previous position?

A CO, FCOM (Front Command) and second deputy secretary

of FC-1 "BBC, the Vice CO, FCOM, the CO, FCOM after @
Bebeth surrender, a Unit Militia (YM) member, GYP element
under squad Lion all of FC-1 "BBC" in which we are operating
within the Province of ZDN.

4. Q Will you narrate to me what and how the incident you are
referring to all about?

A Actually sir, last 30 April 1988 our main force of FGU, FC-1
"BBC" had a meeting at vicinity basketball court of vicinity
Campo Uno, Femagas, Katipunan ZDN. While on that status
our security group left at the high ground portion of the place
and engaged the advancing government troops of 321B after
which we then decided to postpone the meeting hence, the
government troops presence. However, on the following day of
01 May 1988 at about 10:00 oclock in the morning when we
assembled again at the aforesaid place, firefight occurred
between us and the government troops of 321B which resulted
to inflict casualties to the 321B troopers, KIA one (1) Cpl.
Alfredo Dela Cruz and wounding four (4) others, Sgt. Rodrigo
Alviar, Sgt. Linogaman Piatos, Sgt. Rodrigo Baradi and Sgt.
Bellizar while on our side with one wounded @ TOY.
 5. Q Can you still recall the names of those other NPAs that
participated in that encounter against the government troops?

A Yes, sir. ATICO OBORDO @ DONDOY,

NACENCIANO PACALIUGA JR., @ ALFIE/IGI,
ELEAZAT FLOREDO, NESTOR BASES @
BELOY/BELLY. FLORENCIO CANDIA @ BIMBO, JUDY
CATUBIG @ ELBOY/AL, PETER MOLATO @ JOKER,
BIENVENIDO CATUBIG @ RASTY, ALBERTO CATUBIG
@ BLACKY/RENATO, ALMARIO CATUBIG @ NOEL,
ROGER CATUBIG @ JAMSE, JOEL CATUBIG @
NIXON, JIMMY DINGAL @ MACBOY, ENRICO
SIMBULAN @ NONSTOP, @ DANDY, @ WAWAY, @
ALBA/JONAS, JIMMY GARIG @ NONOY, NILO
CATUNGAN @ GINO, BERNIDO QUENECAS @ DIGOY,
@ CRISTINE/LFA @ MARILOU @ ELNA, @ BENIGNO
PAULINO CORPUZ @ JR/PAWA, BENJAMIN
SANTANDER @ JAKE, @NESTOR, @ JAY, @ ISAGANI,
@ RONIE, ESMAEL OBORDO @ ANICIO, @ FREDO, @
RUEL, @ DODONG, JULITA ADJANAN @ GENIE, @
TONY, @ RJ, @ LANNIE @ DEMET, @ RENDON,
@JESS, @ SAMSON AND many others, sir.

Q Then what transpired next?

A Right after the encounter, we withdraw our

troops towards vicinity SVR, complex, Sergio
Osmea, Sr., ZDN.

Q Do you have something more to say?

A Nothing more, sir.

Q Are you willing to sign you statement without being forced, coerced or
intimidated?

A Yes, sir.

IN WITNESS WHEREOF, WE hereunto affix our signature this 1st day of

June 1993 at Katipunan, ZN Philippines.
 (SGD.) TEOFILO D. SARIGAN

Affiant

(SGD,) MANUEL A. CUENCA

Affiant

(SGD,) ROMULO A. PACALDO

Affiant

(SGD.) CARMELITO L. CARPE

Affiant

(SGD.) PABLO G. MALADIA

Affiant

SUBSCRIBED and SWORN to before me this 1st day of June 1993 at

Katipunan, ZN, Philippines.

(SGD.) ADELA S. GANDOLA

Municipal Trial Judge

Nowhere is the political motivation for the commission of the crime

indicated in foregoing affidavit. Merely because it is alleged that private
respondents were members of the CCP/NPA who engaged government
troops in a firefight resulting in the death of a government trooper and the
wounding of four others does not necessarily mean that the killing and
wounding of the victims was made in furtherance of a rebellion. The
political motivation for the crime must be shown in order to justify finding
the crime committed to be rebellion. Otherwise, as in People v.
Ompad,10although it was shown that the accused was an NPA commander,
he was nonetheless convicted of murder for the killing of a person
suspected of being a government informer. At all events, as this Court said
in Balosis v. Chanvez:11

Certainly, the public prosecutors should have the option to ascertain which
prosecutions should be initiated on the basis of the evidence at hand. That a
criminal act may have elements common to more than one offense does not
rob the prosecutor of that option (or discretion) and mandatory require
him to charge the lesser offense although the evidence before him may
warrant prosecution of the more serious one.12

In Baylosis v. Chavez, the accused, who were NPA members, assailed the
constitutionality of P.D. No. 1866 under which they were charged with
illegal possession of firearm and ammunition on the ground that it gave
prosecutors the discretion to charge an accused either with rebellion or
with other crimes committed in furtherance thereof. In rejecting their
contention, this Court said:

The argument is not tenable. The fact is that the Revised Penal Code trets
rebellion or insurrection as a crime distinct from murder, homicide, arson,
or other felonies that might conceivably be committed in the course of
rebellion. It is the Code, therefore, in relation to the evidence in the hands
of the public prosecutor, and not the latters whim or caprice, which gives
the choice. The Code allows, for example, separate prosecutions for either
murder or rebellion, although not for both where the indictment alleges
that the former has been committed in furtherance of or in connection with
the latter.13

The burden of proving that the motivation for the crime is political and not
private is on the defense. This is the teaching of another case.14 in which it
was held;

In deciding if the crime is rebellion, not murder, it becomes imperative for

our courts to ascertain whether or not the act was done in furtherance of a
political end. The political motive of the act should be conclusively
demonstrated.

In such cases the burden of demonstrating political motive falls on the

defense, motive, being a state of mind which the accused better than any
individual knows.

Its not enough that the overt acts of rebellion are duly proven. Both
purpose and overt acts are essential components of the crime. With either
of these elements wanting, the crime of rebellion legally does not exist.
The proceedings in the case at bar is still in the pre-arraignment stage. The
parties have yet to present their respective evidence. If during the trial,
private respondents are able to show proof which would support their
present contention, then they can avail of the remedy provided under the
second paragraph of Rule 110, 1415which provides:

If it appears at any time before judgement that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint
or information upon the filing of a new one charging the proper offense in
accordance with Rule 119, Section 11, provided the accused would not be
placed thereby in double jeopardy

Until then, however, petitioner provincial prosecutor is under no obligation

to change against private respondents.

Third. The Court of Appeals says it is a common practice of the military and
the police to charge captured members of the NPA with capital offenses like
murder, robbery with homicide, or illegal possession of firearms rather
than rebellion. The alleged purpose is to deny them bail only if it can be
shown that the evidence against them is not strong, whereas if the charge is
rebellion, private respondents would have an absolute right to bail.

As already stated, however, given the Joint affidavit of the prosecution

witnesses alone, it is not possible to determine at this stage of the criminal
proceeding that in engaging the government troops in a "firefight," private
respondents were acting in pursuance of rebellion. It could be that the
"firefight" was more of an ambush staged by the NPA, as shown by the fact
that while the government troop suffered one dead and four wounded, the
CPP/NPA suffered only one wounded.

The charge that it is "common practice for the military and the police to
charge suspected rebels with murder in order to prevent them from going
on bail can be laid equally at the door of the accused. As noted in Enrile v.
Salazar:16

It may be that in the light of contemporary events, the act of rebellion has
lost that quintessentially quixotic quality that justifies the relative leniency
with which it is regarded and punished by law, that present-day rebels are
less impelled by love of country than by lust for power and have become no
better than mere terrorists to whom nothing, not even the sancity of human
life, is allowed to stand in the way of their ambitions. Nothing so c this
aberration as the rash of seemingly senseless killings, bombings,
kidnappings and assorted mayhem so much in the news these days, as often
perpetrated against innocent civilians as against the military, but by and
large attributable to, or even claimed by so called rebels to be part of, an
ongoing rebellion.17

What the real crime is must await the presentation of evidence at the trial
or at the hearing on the application for bail. Those accused of common
crimes can then show proof that the crime with which they were charged is
really rebellion. They are thus not without any remedy.

WHEREFORE, the decision of the Court of Appeals, dated July 24, 1996,
is REVERSED insofar as it orders petitioner to file a substitute
information for rebellion in Criminal Case No. 6427. In other respects, it
is AFFIRMED.1wphi1.nt

SO ORDERED.