Counter-Affidavit/Answer

I. On Criminal Case OMB-P-C-16-0093 for Unlawful Arrest, Arbitrary Detention and

Incriminating Innocent Persons under Arts. 269, 124 and 363 of the RPC.

ADMISSION AND DENIAL

We, the undersigned, all in legal age, Filipino Citizen, after having been sworn in
accordance with law hereby depose and state that:

1. We are the respondents in the case entitled FERNANDO PAJARILLO, ET AL,

complainants vs COL. VINCENT S. CALANOGA, ET AL, repondents docketed
under Criminal Complaint OMB-P-C-16-0093 for Unlawful Arrest, Arbitrary
Detention and Incriminating Innocent Persons (Arts. 269, 124 and 363, of RPC)
and Administrative Complaint OMB-P-A-16-0121 for Misconduct and Abuse of
Authority.
2. We are the arresting officers in a criminal case filed against the herein
complainants (1) FERNANDO PAJARILLO Y BALUYOT; (2) ROWEL NOGOT Y
GOMEZ; (3) MANLITO MANUEL Y ROCHA; (4) JERMAINE GASPAR Y
PASCUA; (5) EVANGELINE “GIE’ GASPAR Y PASCUA; (6) ALLAN Y
TACQUIO; (7) VIRGILLO MANUEL Y ROCHA; (8) SONIA SANTOS Y LOPEZ;
AND (9) ANNABELLE ARNI DUANO, all inquested before the office of the City
Prosecutor of Marikina under XV-09-INQ-16A-00024 for violation of Art. 281 of
the Revised Penal Code (Other forms of trespass) with Inquest Disposition dated
January 12, 2016, signed by Asst. City Prosecutor of Marikina Mary Ann S.
Torres and Approved by the City Prosecutor of Marikina, Jason Antonio Amante,
the dispositive portion of which reads:

“WHEREFORE, the undersigned respectfully recommends

the filing of Information for Other Forms of Trespass to Dwelling
penalized under Article 281 against FERNANDO PAJARILLO y
BALUYOT, ALLAN CO y TACQUIO, ROWEL NOGOT y GOMEZ,
VIRGILIO MANUEL y ROCHA, MANOLITO MANUEL y ROCHA,
SONIA SANTOS y LOPEZ, JERMAINE GASPAR y PASCUA,
EVANGELINE GASPAR y PASCUA and ANNABELLE ARNI
DUANO, in proper Court”

3. Paragraph 2 of the Complaint-Affidavit hereby vehemently denied by the

undersigned.
a) The lawful owner of the parcel of land as described in TCT No. 163276-A is
Mr. Felipe A Frias. This fact was admitted by the complainants in their
Complaint-Affidavit, paragraph 7, to wit:

“XXX Ang dahilan ng pag aresto sa amin ay isinalaysay nila sa

“PINAGSAMA-SAMANG SALAYSAY NG PAG-ARESTO” na aming
sinasang-ayunan at aming inilalakip sa aming salaysay na ito bilang
“Annex 1”, Annex 1-a, Complaint Affidavit bilang “Annex 1-b, TCT163276-
A, bilang “Annex 1-c.””

4. Paragraph 3 of the Complaint-Affidavit is hereby partially admitted.

 a) The date of arrest of the herein complainants for violation of Art. 281, RPC is
January 11, 2016;
b) The time of arrest of the complainants is not about 11:00 AM but 1:00 PM as
indicated in our “PINAGSAMA-SAMANG SALAYSAY NG PAG-ARESTO” and
admitted by the same in their Complaint-Affidavit, paragraph 7.
c) The allegation of the complainants that they were within the premises of the
lot of Mr. Frias during the time of their arrest is hereby admitted.

5. Paragraph 4 of the Complaint-Affidavit is hereby admitted except for the time of

arrest as stated in the above paragraph.

6. Paragraph 5 of the Complaint-Affidavit is hereby partially admitted.

a) The date of arrest is admitted but the time is hereby denied.
b) The events alleged in this paragraph is hereby admitted. However the
contention of complainants that “Iligal ang inyong ginawa, dahil wala kayong
Court Order” (referring to the arrest) is baseless and blatantly misplaced. Well
entrenched in the Rules of Court the definition of arrest and how it is made to
be valid under Rule 113, to wit:

“Section 1. Definition of arrest. — Arrest is the taking of a

person into custody in order that he may be bound to answer
for the commission of an offense. (1)

Section 2. Arrest; how made. — An arrest is made by an

actual restraint of a person to be arrested, or by his
submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an

arrest. The person arrested shall not be subject to a greater
restraint than is necessary for his detention. (2a)

Section 3. Duty of arresting officer. — It shall be the duty of

the officer executing the warrant to arrest the accused and to
deliver him to the nearest police station or jail without
unnecessary delay. (3a)

Section 4. Execution of warrant. — The head of the office to

whom the warrant of arrest was delivered for execution shall
cause the warrant to be executed within ten (10) days from
its receipt. Within ten (10) days after the expiration of the
period, the officer to whom it was assigned for execution
shall make a report to the judge who issued the warrant. In
case of his failure to execute the warrant, he shall state the
reasons therefor. (4a)

Section 5. 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

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.”

The herein complainants admitted in paragraph 5 of their Complaint-Affidavit that

they are within the premises of Mr. Frias property which constitutes the crime of
Other Forms of Trespass to Dwelling under Art. 281, RPC. They were actually
committing the crime when they were arrested. Art. 281, RPC states:

“Art. 281. Other Forms of Trespass. — The penalty of

arresto menor or a fine not exceeding 200 pesos, or both,
shall be imposed upon any person who shall enter the
closed premises or the fenced estate of another, while
either of them are uninhabited, if the prohibition to enter
be manifest and the trespasser has not secured the
permission of the owner or the caretaker thereof.”

The elements of Art. 281, RPC:

(1) That the offender enters the closed premises or the fenced
estate of another;
(2) That the entrance is made while either of them is uninhabited;
(3) That the prohibition to enter be manifest;
(4) That the trespasser has not secured the permission of the
owner of the caretaker thereof.

It is glaring that all the elements of the under Art. 281, RPC were
present which consummates the crime, the reason for their arrest
and the subsequent Inquest proceeding and Inquest Disposition by
the City Prosecutor of Marikina. Nowhere found in the Rules that
a Court Order is a condition sine quanon to the arrest. What is
necessary is the attendance of the elements of the crime.

7. The undersigned cannot comment as to the veracity of paragraph 6

of Complaint-Affidavit due to the fact that the undersigned were at
other part of the premises.

8. Then again, the contention of the herein complainants that their

arrest were illegal because there is no Warrant of Arrest is totally
misplaced. To reiterate the rule when arrest without warrant is
lawful, Rule 113 Rules of Court Section 5 states:

XXX
 Section 5. 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

(c) When the person to be arrested is a prisoner who has

escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.”

XXX

The complainants were actually committing the crime of Other

Forms of Trespass under Art. 281, RPC. As established in
paragraph 6 herein.

9. The undersigned cannot comment as to the veracity of paragraph 8

of Complaint-Affidavit due to the fact that the undersigned were at
other part of the premises.

10. Paragraph 9 of the Complaint-Affidavit is hereby partially denied.

a) The allegation of the complainant that they were not
investigated upon is untenable. In the referral made by the
PCINSP EDUARDO S CAYETANO, chief of Marikina City
Police Station Investigation and Detective Management Branch
for the honorable City Prosecutor he recommended the
prosecution of the herein complainants for violation of Art. 281,
RPC (Other Forms of Trespass) attached therewith are the
pieces of evidence, to wit: (1) Sworn Statement of the
Complainant (Mr. Frias); (2) Sworn Statement of the Witnesses;
(3) Affidavit of SPO2 Julius Caesar Piñera et al.; and (4) Land
title of Mr. Frias together with the Investigation Date Form
received by Prosecutor Mary Ann S. Torres, Inquest of
Prosecutor. These facts clearly shows that there was indeed an
Investigation conducted against the herein complainants in
relation to their criminal case in violation of Art. 281, RPC,
otherwise they could not have been inquested for an
investigation is necessary prior to Inquest Proceeding.
b) The allegation of the herein complainants that they were
brought to Hall of Justice, Ground Floor of Marikina is hereby
admitted. The purpose of which is to process the case that
includes Investigation, taking Sworn Statements and preparing
necessary documents for Inquest Proceeding.
 11. Paragraph 10 and 11 of the Complaint-Affidavit are hereby
admitted.
12. Paragraph 12 of the Complaint-Affidavit has no bearing for the
instant case.

DISCUSSION

THE CASE OF UNLAWFUL ARREST, ART 269, RPC

13. Article 269 of the Revised Penal Code provides:

“Art. 269. Unlawful Arrest. — The penalty of arresto mayor

and a fine not exceeding 500 pesos shall be imposed upon
any person who, in any case other than those authorized
by law, or without reasonable ground therefor, shall
arrest or detain another for the purpose of delivering him to
the proper authorities.”

Hence the elements are:

(1) That the offender arrests or detains another person;
(2) That the purpose of the offender is to deliver him to the proper authorities;
(3) That the arrest or detention is not authorized by law or there is no
reasonable ground therefor.

The undersigned have not committed the crime of Unlawful Arrest there being
non-attendant of the third element as stated above. The arrest of the herein
complainants is authorized by law or there is reasonable ground therefor
for they were actually committing the crime of Other Forms of Trespass
under Art. 281, RPC when they were arrested by the undersigned. Their
arrest was not unlawful and therefore valid even without warrant for they were
caught in flagrate delicto, which falls under Section 5, Rule 113 of the Rules of
Court as held by the Supreme Court in People vs Ng Yik Bun et al, G.R.
No. 180452, January 19, 2011. To do otherwise is to deviate from the solemn
duty of the undersigned in maintaining peace and order and preventing and
controlling the commission of crimes. The wisdom of Supreme Court in
warrantless arrests in People vs Gerente, G.R. No. 95847-48, March 10, 1993
citing People vs. Malasugui, 63 Phil. 221, 228 is enlightening, in this wise:

"To hold that no criminal can, in any case, be arrested and

searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy of
the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances."

No less than the City Prosecutor of Marikina himself in his Inquest

Disposition NPS No. XV-09-INQ-16A-00024 dated January 12, 2016 stated
that “xxx We now resolve the case. After a careful review of the facts of the
case, there exists probable cause to indict the respondents of the acts
complained of.” The dispositive portion of which reads:

XXX
 “WHEREFORE, the undersigned respectfully
recommends the filing of Information for Other Forms of
Trespass to Dwelling penalized under Article 281 against
FERNANDO PAJARILLO y BALUYOT, ALLAN CO y
TACQUIO, ROWEL NOGOT y GOMEZ, VIRGILIO MANUEL
y ROCHA, MANOLITO MANUEL y ROCHA, SONIA
SANTOS y LOPEZ, JERMAINE GASPAR y PASCUA,
EVANGELINE GASPAR y PASCUA and ANNABELLE ARNI
DUANO, in proper Court”

XXX

The fact that an Inquest proceeding was conducted and there was probable
cause that the herein complainants committed the crime of Other Forms of
Trespass under Art. 281. RPC shows that there was reasonable ground or that
their arrest was authorized by law. The thing speaks for itself!.

On August 29, 2001, the Ombudsman recommended the approval of the CPO
Resolution. Specifically, the Review and Recommendation[7] of the Ombudsman reads:

After giving a careful look at the records of the case and the facts
and incidents that transpired, the undersigned Ombudsman Prosecutor
agrees with prosecutor Vibandor that there is doubtful merit of the
offenses filed for Violation of Section 3 (e), RA 3019 against the accused.
It appears that the arresting policemen have in fact filed a case for
Violation of Ordinance against the three (3) complainants which was
indorsed for Inquest Investigation and later filed in court. This shows that
there was substantial basis, of their performance of official duty, for
otherwise, it would not have passed the inquest. Hence, the presence of
manifest partiality or evident bad faith is gravely questionable to warrant
filing of Violation of Section 3(e), RA 3019.

PREMISES CONSIDERED, undersigned respectfully recommends

for the APPROVAL of the instant Resolution of Atty. Vibandor and
the RECALL of the Informations filed with the Pasay City Regional Trial
Court.

THE CASE OF ARBITRARY DETENTION, ART. 124, RPC

14. Article 124 of the Revised Penal Code provides:

“Art. 124. Arbitrary Detention. — Any public officer or employee

who, without legal grounds, detains a person, shall suffer:

1. The penalty of arresto mayor in its maximum period to prisión

correccional in its minimum period, if the detention has not
exceeded three days;

2. The penalty of prisión correccional in its medium and maximum

periods, if the detention has continued more than three but not
more than fifteen days;

3. The penalty of prisión mayor, if the detention has continued for

more than fifteen days but not more than six months; and
 4. That of reclusión temporal, if the detention shall have exceeded
six months.

The commission of a crime, or violent insanity or any other

ailment requiring the compulsory confinement of the patient in a
hospital, shall be considered legal grounds for the detention of
any person.”

The provision of the law is explicit. THE COMMISSION OF THE CRIME

SHALL BE CONSIDERED LEGAL GROUNDS FOR THE DETENTION OF
ANY PERSON. As established in paragrapgh 6, and 13, the herein
complainants were arrested in flagrante delicto. They were actually
committing the crime of Other Forms of Trespass under Art. 281, RPC,
hence, their arrest is not unlawful and their detention is a consequence of
their arrest by committing a crime hence the same shall also be considered
legal ground.

THE CASE OF INCRIMINATING INNOCENT PERSON, ART. 363, RPC

15. Article 363 of the Revised Penal Code provides:

“Art. 363. Incriminating Innocent Person. — Any person who, by

any act not constituting perjury, shall directly incriminate or impute
to an innocent person the commission of a crime, shall be punished
by arresto mayor.”

Hence, the elements are:

(1) That the offender perform an act;
(2) That by such act he directly incriminates or imputes to an
innocent person the commission of a crime; and
(3) That such act does constitute perjury.

In the long line of cases decided by no less than the Supreme Court, way back from
People vs Rivera 59 Phil. 236 up to Campanano Jr vs Datuin, G.R. No. 172142,
October 17, 2007 held that this article of the Revised Penal Code is limited to the
acts of “planting” evidence and the like, which do not in themselves constitute false
prosecutions but tend directly to cause false prosecution. In the latter case, the
Court ruled in definitive through these words:

“Article 363 does not, however, contemplate the idea of malicious

prosecution someone prosecuting or instigating a criminal charge in
court. It refers to the acts of PLANTING evidence and the like,
which do not in themselves constitute false prosecution but tend
directly to cause false prosecutions.”

Likewise in the former case, the Supreme Court held that Article 363 of the Revised
Penal Code, which penalizes any person who by any act not constituting perjury
shall directly incriminate or impute to an innocent person the commission of a crime,
does not apply to false accusations, but to acts tending directly to cause false
accusations, such as “planting” of evidence and the like.
It is noteworthy that, no planting of evidence and or the like was alleged by the
herein complainants in their Complaint-Affidavit. In fact, it is impossible for the
undersigned to plant evidence to impute them for the crime of Other Forms of
Trespass under Art. 281, RPC. This is because of the glaring obvious reason of the
incompatibility of planting evidence with the elements of the commission of Art. 28,
to wit:

The elements of Art. 281, RPC:

(1) That the offender enters the closed premises or the fenced estate of another;
(2) That the entrance is made while either of them is uninhabited;
(3) That the prohibition to enter be manifest;
(4) That the trespasser has not secured the permission of the owner of the
caretaker thereof.

As culled from the records, the undersigned neither directly (not even indirectly)
incriminate nor impute the herein complainants to the commission of a crime. They
themselves committed the crime of Other Forms of Trespass under Art. 281, RPC
which is affirmed by the City Prosecutor of Marikina City..