SECOND DIVISION

[G.R. No. 140772. December 10, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL PEREZ Y
ADORNADO, appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the September 27, 1999 Decision [1] of
the Regional Trial Court of Pasig City, Branch 156, in Criminal Case
No. 110511-H, finding appellant Joel Perez y Adornado guilty
beyond reasonable doubt of murder for killing Agapito
Saballero. The trial court imposed upon him the penalty
of reclusion perpetua and ordered him to pay the heirs of the said
victim the amount of P50,000 as civil indemnity.
The accusatory portion of the Amended Information reads as
follows:
On or about April 25, 1996 in Pasig City and within the jurisdiction
of this Honorable Court, the accused, with intent to kill and with
treachery, did then and there willfully, unlawfully and feloniously
attack, assault and stab one Agapito Saballero on the chest and
abdomen, thereby inflicting the latter mortal stab wounds which
directly caused his death.
Contrary to law.[2]
The Case for the Prosecution
Isidro Donoga eked out a living as a shoemaker and repairer,
and resided with his wife, his daughter and his son-in-law in a
rented apartment in No. 112 Adia Compound, Dr. Sixto Antonio
St., Rosario, Pasig City.

On April 25, 1996 at around 8:00 p.m., Isidro was on his way
home from Mariwasa when he passed by a group, including his
neighbor Agapito Saballero,[3] Joel Perez and Aurelio Ariete, having a
drinking spree near their rented apartment. Agapito invited Isidro
to join the group. Isidro acceded to the invitation and ended up
drinking with the three.[4] By the time they had consumed about
two-and-a-half round bottles of gin, Joel started singing on top of
his lungs the song Si Aida, Si Lorna, o Si Fe. He was immediately
cautioned by Agapito to lower his voice as the singing might disturb
the neighborhood. Peeved, Joel confronted Agapito.[5] An altercation
ensued. Joel warned Agapito Babalikan kita. Makita mo, (Ill get back
at you. Youll see.)[6] then left in a huff. The group decided to end
their drinking spree.[7] By then, it was past 9:00 p.m.
Isidro advised Agapito to get inside their house. However,
Agapito was still upset about his argument with Joel and lingered
outside his house. Meanwhile, Isidro went inside their rented
apartment at the second floor of the house, while his wife prepared
his dinner. At around 10:00 p.m. while he was taking his supper,
Isidro heard somebody shouting Huwag, Joel! Saklolo, may tama
ako! Isidro then peeped outside and saw Joel pulling out from
Agapitos chest a bladed weapon.[8] Shocked, Isidro and his wife
went down to help Agapito. By then, Joel had already fled from the
scene. The couple woke up some of their neighbors to help them
carry Agapito and bring him to the hospital. Some neighbors
arrived and brought Agapito to the hospital. On the way, Agapito
expired.[9]
With the consent of John Saballero, the son of Agapito, [10] Dr.
Emmanuel Aranas, the Medico-Legal Officer of the PNP, performed
an autopsy on the cadaver of Agapito and incorporated his findings
in his report, thus:
FINDINGS:
Fairly nourished, fairly developed male cadaver, in rigor mortis,
with postmortem lividity at the dependent portions of the
body. Conjunctiva, lips, and nailbeds are pale.

TRUNK AND UPPER EXTREMITIES:

(1) Multiple abrasions, right deltoid, measuring 2 by 2 cms, 16 cms
from the anterior midline.
(2) Stab wound, left mammary region, measuring 2.4 by 0.6 cm, 5
cms from the anterior midline, 12 cms deep, directed
posteriorwards, downwards, and to the right, thru the 4th left
intercostal space, piercing the paricardial (sic) sac and right
ventricle.
(3) Stab wound, umbilical region, measuring 5 by 1.5 cm, bisected
by the anterior midline, directed posteriorwards, piercing the
mesentery and jejunal segment of the small intestines.
(4) Multiple abrasions, left scapular region, measuring 5 by 2 cms,
11 cms from the posterior midline.
(5) Multiple abrasions, right antecubital region, measuring 6 by 3
cms, 5 cms from its midline.
(6) Abrasion, middle 3rd of the right forearm, measuring 2.5 cms by
0.2 cm, 3 cms lateral to its anterior midline.
(7) Abrasion, left elbow, measuring 5 by 3 cms, 4 cms lateral to its
midline.
About 1000 ml of fluid and clotted blood recovered from the
thoracic cavity.
Stomach contains a glassful of partially digested food particles and
mixed with bloody fluid.
CONCLUSION:
Cause of death is stab wounds of the chest and abdomen.[11]
Dr. Aranas signed the Certificate of Death of Agapito. [12]

When apprised of the stabbing incident, the police

investigators, led by SPO1 Mario B. Garcia, learned that the victim
was Agapito and the suspect was Joel who fled from the scene after
stabbing Agapito three times with an improvised dagger at 10:00
p.m. on April 25, 1996. The police investigation was placed in the
police blotter.[13]
Isidro helped out during the burial of Agapito and failed to give
his statement to the police but on May 3, 1996, Isidro gave his
sworn statement to SPO1 Mario B. Garcia of the Pasig Police
Station.[14]
Shortly thereafter, an Amended Information[15] was filed
on September 15, 1997. The amendment consisted in the inclusion
of the allegation of treachery as a qualifying circumstance. [16]
Assisted by his counsel during arraignment, Joel entered a plea
of not guilty.[17] Trial thereafter ensued.
The Case for the Accused
Joel put up the defense of denial and alibi. He testified that he
was a regular employee of Hydro Resources Contractor Corporation
as a heavy equipment mechanic for four (4) years.[18]
On April 25, 1996 at around 3:00 p.m., his sister, Imelda Perez
de Venecia, called him from work and requested him to travel to
Bicol the following day to make a delivery of a package to which he
agreed. The siblings also agreed that Joel will go to her place at No.
749 Old Balara, Quezon City, after office hours to get the package
the following day because of his trip to Bicol.[19]
From his place of employment, he proceeded to Adia
Compound in Rosario, Pasig City, where he saw the victim Agapito
and Aurelio, one of his co-workers at Hydro Resources Contractor
Corporation, drinking gin.[20] He then joined the group and, in the
process, inquired from Aurelio about the status of his application for
a job.[21] Thereafter, Isidro arrived and joined the drinking spree
upon the invitation of Agapito. While they were drinking, an
argument ensued between Agapito and Isidro regarding rentals, as

the latter was a tenant of Agapitos sister. [22] Joel tried to pacify the
two by singing aloud the song Si Aida, Si Lorna, o Si Fe. Isidro and
Agapito stopped arguing with each other but Agapito told Joel to
stop singing. At around9:00 p.m., Joel bade the group goodbye and
proceeded to his sisters house in Old Balara, Quezon City. He
boarded four jeeps one after the other and one tricycle. It took him
an hour before he arrived at his sisters.

around 9:00 p.m., Joel bade them goodbye and left the
group. Aurelio also left the drinking spree a moment later, and slept
at Robertos house. At around 6:00 a.m. the following day, April 26,
1996, Aurelio was awakened by a commotion outside, in the street,
and when he checked the cause, he saw Agapito lying on the
ground. A policeman arrived at around 7:00 a.m. and investigated
the crime scene.[28]

The following day, April 26, 1996, Joel, together with his sister
Imelda, went to the Peafrancia Bus Station, confirmed the ticket
bought in advance by Imelda, and changed Imeldas name to that of
his name to enable him to use the ticket. [23] Upon his arrival in
Bicol, his wife gave him a letter from a company he had applied for
work earlier in January, asking him to report for work. Instead of
returning to Manila, Joel decided to accept the offer for
employment, and stayed in Bicol. Moreover, he tendered his
resignation from his work in Manila by sending a telegram to his
former employer. It was only when he was arrested on June 7,
1997 that Joel learned about Agapitos demise, and that he was the
suspect for his violent death.[24]

After trial, the trial court rendered a decision finding Joel guilty
beyond reasonable doubt of murder, and imposed upon him the
penalty of reclusion perpetua. The decretal portion of the decision
reads:

Imelda, the sister of Joel, corroborated his alibi that he went to

her house on the night of April 25, 1996 arriving thereat at around
9:30 p.m. to 10:30 p.m.[25] She confirmed that she, together with
her brother, left the house at around 5:00 a.m. of April 26, 1996
and went to the Peafrancia Bus Station as his brother will travel to
Bicol to deliver a package; and that her brother left for Bicol at
around 7:30 a.m.
Joel also presented Aurelio who corroborated his testimony.
Aurelio testified that he only reported for work for a half-day
from 8:00 a.m. to 12:00 noon on April 25, 1996. Thereafter, Aurelio
proceeded to Adia Compound located in Rosario, Pasig City, where
he met a certain Roberto Rocabo. Thereafter, they proceeded to the
office of one Mr. Dela Cruz located at the back of Mariwasa and
inquired about a machine which they were trying to contract. They
stayed there until 5:30 p.m., after which, Aurelio and Roberto went
back at the latters house.Aurelio hung about infront of Robertos
house, and there met Agapito who invited Roberto for a drink which
the latter accepted.[27] They were later joined by Joel and Isidro. At
[26]

Wherefore, the Court finds accused GUILTY beyond reasonable

doubt of the crime of murder, and hereby sentences him to suffer
the penalty of reclusion perpetua, to indemnify the heirs of Agapito
Aballero(sic) in the amount of P50,000.00 conformably with existing
jurisprudence. Costs against the accused.
SO ORDERED.[29]
Joel appealed from the decision and alleges that:
B.1. The trial court erred in giving credence to the
supposed lone prosecution eyewitness, Isidro
Donoga.
B.2. The trial court erred in not acquitting the accused
because his guilt was not proven beyond reasonable
doubt.[30]
Anent the first assigned error, he asserts that the trial court
erred in giving weight to the testimony of Isidro, the prosecutions
lone eyewitness, despite the inconsistencies in his statement to the
police investigators[31] and his testimony during trial. First, in his
sworn statement, Isidro declared that the appellant used an itak in
stabbing Agapito whereas when he testified before the court, he
declared that the appellant used a kutsilyo. Second, when Isidro
was asked during the trial if he voluntarily gave his sworn
statement to the police, he answered in the affirmative; but during

the preliminary investigation of the case, he declared that he gave

his sworn statement regarding the case when the policemen
arrived in their place.[32] Third, Isidro declared in his sworn
statement that he saw the appellant stab the victim, but during
clarificatory questioning by the public prosecutor during trial, he
declared that he only saw the extraction by the appellant of the
knife from the chest of the victim. Moreover, the appellant avers
that there is no allegation in the Information that the appellant
used any bladed weapon to stab the victim. Isidros testimony that
he heard shouts for help from Agapito at around 10:00 p.m. of April
25, 1996 was merely a fragment of his imagination because the
stabbing occurred on April 26, 1996 at around 6:00 a.m. as testified
to by Aurelio.
The appeal is without merit.
The inconsistencies catalogued by the appellant referred only
to peripheral or minor details which do not destroy or weaken the
credibility of the witness of the prosecution. [33] Such inconsistencies
are even indicia of honest and unrehearsed declarations and
responses of witnesses and thus enhanced their credibility. [34] We
note
that
Isidro
sufficiently
explained
his
use
of itak and kutsilyo when he was cross-examined by the appellants
counsel:
Q In your statement marked as Exhibit F, I am referring to
the statement given to the police, there is a question
and which I quote: Nasabi mo nakita si Joel Perez ang
siyang sumaksak kay Agapito, nakita mo rin ba naman
kung anong klaseng patalim ang ginamit niya? and
your answer was: Isa pong matulis na itak po ang
pinangsaksak niya kay Agapito. Do you remember
having given this statement?
A Yes, sir.
Q A while ago during the direct examination you were
asked what kind of weapon was used and you said, at
first kutsilyo then later on a pointed weapon. Which is
which now?

A Because in our place a knife is called Dipang. The

dipang, hindi itak na gaano yon. Dipang, this is the
smallest itak in our place, sir.
Q Did I get it from you that itak and kutsilyo are one and
the same in your place?
A Yes, sir. They are one and the same.[35]
Case law has it that an affidavit given to the police investigator
at the police station is generally not prepared by the affiant himself
but by another person invariably by the police investigator who
uses his own language. Omissions and misunderstandings by the
writer usually result. And in case of discrepancy between the sworn
statement and those made by the affiant on the witness stand, the
latter deserves full faith and credit.[36]
On the apparent inconsistency of Isidros testimony during the
preliminary investigation that his sworn statement to the police
investigators on May 3, 1996 was voluntary is not enfeebled by the
fact that it was given eight days after the crime was committed
when Isidro arrived at the police station to give his
statement. Isidro testified that he was then busy helping the family
in the burial of the victim.[37] A truth-telling witness is not always
expected to give an error-free testimony, considering the lapse of
time and the treachery of human memory.Witnesses are not
expected to remember every single detail of an incident with
perfect or total recall.[38]
Isidros testimony that he saw the appellant pull out the bladed
weapon from the chest of the victim is not inconsistent with his
sworn statement to the police that it was the appellant who
stabbed the victim. Even if Isidro did not see the appellant stab the
victim, there can be no other conclusion that it was the appellant
who stabbed the victim given the fact that it was the appellant who
pulled out the knife from the chest of the victim and fled from the
scene thereafter. Isidro saw no other person at the crime scene. He
categorically and positively identified the appellant as the assailant
of Agapito. He had known the appellant for about two years before
the latter stabbed the victim. He often saw the appellant at his

place of work where Isidro made some deliveries of shoes thereat.

[39]
He and the appellant never had any misunderstanding, thus no
ill motive can be attributed to Isidro for him to testify against the
appellant. This Court has held that absent evidence showing any
reason for the prosecution witness to perjure, the logical conclusion
is that no such improper motive exists, and his testimony is thus
worthy of full faith and credit. [40] With the positive and
straightforward identification by Isidro of the appellant as the
perpetrator, the latters defense of alibi must fall.[41]
That the Information does not describe the weapon used by the
appellant either an itak or kutsilyo in stabbing the victim is
inconsequential. The kind or nature of the weapon used in the
commission of the crime need not be alleged in the complaint or
Information. What must be alleged in the Information or complaint
are those enumerated in Section 6, Rule 110 of the Revised Rules of
Criminal Procedure, viz.:

are prima facie evidence of the facts therein stated.[44] It bears

stressing that the appellants witness Aurelio was a close friend of
his; hence, his testimony must be considered by the court with
extreme caution.
We agree with the appellant that the prosecution failed to
prove treachery. It behooved the prosecution to prove that the
appellant deliberately and consciously adopted such means,
method or manner of attack as would deprive the victim of an
opportunity for self-defense or retaliation.[45] In this case, Isidro, the
prosecutions lone eyewitness, testified as follows:
Q More or less, what time was that when you had that
dinner at that time?
A Passed (sic) 10:00 oclock, sir.
Q What time was that when you took your supper?

SEC. 6. Sufficiency of complaint or information. A complaint or

information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of
them shall be included in the complaint or information.
Aurelios testimony that the stabbing occurred on April 26, 1996
at 6:00 a.m. is belied by (a) the testimony of Isidro; (b) the request
for medico-legal examination[42] in which it is stated that the
stabbing incident occurred at around 9:45 p.m. of April 25, 1996
infront of House No. 112-G Dr. Sixto Antonio, Rosario, Pasig City; (c)
the spot investigation report[43] of SPO1 Mario Garcia that the crime
was committed on or about 10:00 p.m. of 25 April 1996. The police
investigator and the chief of police who prepared the request and
the spot investigation report, respectively, are disinterested
witnesses. Moreover, the entries therein were made by the police
investigator and the chief of police in their official capacities; thus,
such entries have in their favor the presumption of regularity and

A My wife, sir.
Q You mean to tell us that your wife was also with you
while you were taking your supper?
A No, sir. She was just with me in the table.
Q While eating on that said evening of April 25, 1996 which
you came around passed (sic) 10:00 oclock in the
evening, do you recall of any unusual incident that
happened in the vicinity of your house?
A Yes, sir.
Q And what was that unusual incident that took place while
you were taking your supper?
A I heard somebody shouted: Huwag, Joel. Saklolo, may
tama ako.

Q When you heard this shout of a person, what was your

reaction then?
A When I heard that, dumungaw po ako.
Q And what did you find out, if any, after taking that
gesture dungaw?
A I saw Joel Perez pulling out from the chest a bladed
weapon (isang patalim), sir.
Q And were there other persons aside from Joel Perez there
at that time?
A None, sir.
Q You claimed that you actually saw Joel Perez pulling out a
knife, as if as you were claiming that he had just
stabbed somebody?
A Upon peeping, I saw Joel Perez still pulling out a knife, a
pointed weapon, sir.
Q By claiming you actually observed this particular
incident, from where was Joel Perez pulling out this
pointed or bladed weapon?
A From Agapito, sir.

[46]

Irrefragably, Isidro failed to see how the attack started. When

he looked out through the window, he saw Joel pulling out his knife
from the chest of the victim. Isidro did not see the initial stage of
the stabbing and the particulars of the attack on the victim.
[47]
Treachery cannot thus be appreciated.[48]
The mere fact that Agapito was unarmed when he was stabbed
is not sufficient to prove treachery. The settled rule is that
treachery cannot be presumed. It must be proved by clear and
convincing evidence, as the crime itself. [49] Hence, the appellant is
guilty only of homicide and not murder.

The penalty for homicide is reclusion temporal which has a

range of twelve (12) years and one (1) day to twenty (20)
years. Applying the Indeterminate Sentence Law, the maximum of
the imposable penalty shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years,
eight (8) months and one (1) day to seventeen (17) years and four
(4) months, while the minimum of the said penalty shall be taken
from the penalty next lower in degree which is prision mayor, the
range of which is six (6) years and one (1) day to twelve (12) years,
in any of its periods. There being no modifying circumstance in the
commission of the crime, the appellant may be sentenced to an
indeterminate penalty of from ten (10) years and one (1) day
of prision mayor to fourteen (14) years, eight (8) months and one
(1) day of reclusion temporal in its medium period as maximum.
IN LIGHT OF ALL THE FOREGOING, the judgment appealed
from is AFFIRMED WITH MODIFICATION. The appellant Joel Perez y
Adornado is found guilty of homicide under Article 249 of the
Revised Penal Code, as amended, and there being no mitigating nor
aggravating circumstance in the commission of the crime, is
sentenced to an indeterminate penalty of ten (10) years and one
(1) day of prision mayor, as minimum, to fourteen (14) years, eight
(8) months and one (1) day of reclusion temporal in its medium
period, as maximum, and to pay the heirs of Agapito Saballero the
amount of P50,000 as civil indemnity. Costs de oficio.
SO ORDERED.

Department of Justice; HON. SIXTO BRILLANTES, .JR., in his

capacity as Chairperson of the Commission on Elections;
and the JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice;
HON. SIXTO S. BRILLANTES, JR., in his capacity as COMELEC
Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN
ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their capacity
as COMELEC COMMISSIONERS; CLARO A. ARELLANO,
GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND
MICHAEL D. VILLARET, in their capacity as CHAIRPERSON
AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND
2007 ELECTION FRAUD,Respondents.
x-----------------------x
G.R. No.199118

Republic of the Philippines

SUPREME COURT
Manila

GLORIA MACAPAGAL-ARROYO, Petitioner,

vs.
COMMISSION ON ELECTIONS, represented by Chairperson
Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE,
represented by Secretary Leila M. De Lima, JOINT DOJCOMELEC PRELIMINARY INVESTIGATION COMMITTEE,
SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.

EN BANC
G.R. No. 199082

September 18, 2012

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS;
HON. LEILA DE LIMA, in her capacity as Secretary of the

DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to resolve
justiciable controversies by applying the rule of law with due
deference to the right to due process, irrespective of the standing
in society of the parties involved. It is an assurance that in this

jurisdiction, the wheels of justice turn unimpeded by public opinion

or clamor, but only for the ultimate end of giving each and every
member of society his just due without distinction.
Before the Court are three (3) consolidated petitions and
supplemental petitions for Certiorari and Prohibition under Rule 65
of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in
G.R. No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No.
199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
Commission on Elections (Comelec) Resolution No. 9266 "In the
Matter of the Commission on Elections and Department of Justice
Joint Investigation on the Alleged Election Offenses Committed
during the 2004 and 2007 Elections Pursuant to Law"1 dated August
2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary Investigation
Committee [Joint Committee] and Fact-Finding Team on the 2004
and 2007 National Elections Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election
Fraud in the 2004 and 2007 National Elections (Joint Committee
Rules of Procedure)3 dated August 23, 2011; and (4) Initial Report of
the Fact-Finding Team dated October 20, 2011.4 The consolidated
petitions and supplemental petitions likewise assail the validity of
the proceedings undertaken pursuant to the aforesaid issuances.

On August 15, 2011, the Comelec and the DOJ issued Joint Order
No. 001-2011 creating and constituting a Joint Committee and FactFinding Team on the 2004 and 2007 National Elections electoral
fraud and manipulation cases. The Joint Committee and the FactFinding Team are composed of officials from the DOJ and the
Comelec. Section 2 of the Joint Order lays down the mandate of the
Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary
preliminary investigation on the basis of the evidence gathered and
the charges recommended by the Fact-Finding Team created and
referred to in Section 4 hereof. Resolutions finding probable cause
for election offenses, defined and penalized under the Omnibus
Election Code and other election laws shall be approved by the
Comelec in accordance with the Comelec Rules of Procedure. For
other offenses, or those not covered by the Omnibus Election Code
and other election laws, the corresponding criminal information
may be filed directly with the appropriate courts. 7
The Fact-Finding Team,8 on the other hand, was created for the
purpose of gathering real, documentary, and testimonial evidence
which can be utilized in the preliminary investigation to be
conducted by the Joint Committee. Its specific duties and functions
as enumerated in Section 4 of the Joint Order are as follows:
a) Gather and document reports, intelligence information,
and investigative leads from official as well as unofficial
sources and informants;

The Antecedents
Acting on the discovery of alleged new evidence and the surfacing
of new witnesses indicating the occurrence of massive electoral
fraud and manipulation of election results in the 2004 and 2007
National Elections, on August 2, 2011, the Comelec issued
Resolution No. 9266 approving the creation of a committee jointly
with the Department of Justice (DOJ), which shall conduct
preliminary investigation on the alleged election offenses and
anomalies committed during the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued Department
Order No. 6406 naming three (3) of its prosecutors to the Joint
Committee.

b) Conduct interviews, record testimonies, take affidavits of

witnesses, and collate material and relevant documentary
evidence, such as, but not limited to, election documents
used in the 2004 and 2007 national elections. For security
reasons, or to protect the identities of informants, the FactFinding Team may conduct interviews or document
testimonies discreetly;
c) Assess and evaluate affidavits already executed and other
documentary evidence submitted or may be submitted to
the Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of
their commission, individually or in conspiracy, and the
provisions of election and general criminal laws violated,
establish evidence for individual criminal and administrative

liability and prosecution, and prepare the necessary

documentation, such as complaints and charge sheets for
the initiation of preliminary investigation proceedings
against said individuals to be conducted by the Committee;
e) Regularly submit to the Committee, the Secretary of
Justice and the Chairman of the Comelec periodic reports
and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the
Committees basis for immediately commencing appropriate
preliminary investigation proceedings, as provided under
Section 6 of this Joint Order; and
f) Upon the termination of its investigation, make a full and
final report to the Committee, the Secretary of Justice, and
the Chairman of the Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23, 2011, the
Joint Committee promulgated its Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that
the subject of the Initial Report would be the electoral fraud and
manipulation of election results allegedly committed during the
May 14, 2007 elections. Thus, in its Initial Report 11 dated October
20, 2011, the Fact-Finding Team concluded that manipulation of the
results in the May 14, 2007 senatorial elections in the provinces of
North and South Cotabato and Maguindanao were indeed
perpetrated.12 The Fact-Finding Team recommended that petitioner
Abalos and ten (10) others13 be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate
the election results in North and South Cotabato. Twenty-six
(26)14 persons, including petitioners GMA and Abalos, were likewise
recommended for preliminary investigation for electoral sabotage
for manipulating the election results in Maguindanao. 15 Several
persons were also recommended to be charged administratively,
while others,16 including petitioner Mike Arroyo, were recommended
to be subjected to further investigation.17 The case resulting from
the investigation of the Fact-Finding Team was docketed as DOJComelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III
(Senator Pimentel) filed a Complaint-Affidavit18 for Electoral
Sabotage against petitioners and twelve others19 and several John
Does and Jane Does. The case was docketed as DOJ-Comelec Case
No. 002-2011.

On October 24, 2011, the Joint Committee issued two subpoenas

against petitioners in DOJ-Comelec Case Nos. 001-2011 and 0022011.20 On November 3, 2011, petitioners, through counsel,
appeared before the Joint Committee.21On that preliminary hearing,
the Joint Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their CounterAffidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate Petitions for
Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.23 The petitions
were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to
Defer Proceedings24 before the Joint Committee, in view of the
pendency of his petition before the Court. On the same day,
petitioner GMA filed before the Joint Committee an Omnibus Motion
Ad Cautelam25 to require Senator Pimentel to furnish her with
documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of
electoral sabotage. GMA contended that for the crime of electoral
sabotage to be established, there is a need to present election
documents allegedly tampered which resulted in the increase or
decrease in the number of votes of local and national
candidates.26 GMA prayed that she be allowed to file her counteraffidavit within ten (10) days from receipt of the requested
documents.27 Petitioner Abalos, for his part, filed a Motion to
Suspend Proceedings (Ex Abundante Ad Cautelam),28 in view of the
pendency of his petition brought before the Court.
In an Order29 dated November 15, 2011, the Joint Committee
denied the aforesaid motions of petitioners. GMA subsequently filed
a motion for reconsideration.30
On November 16, 2011, the Joint Committee promulgated a Joint
Resolution which was later indorsed to the Comelec.31 On
November 18, 2011, after conducting a special session, the
Comelec en banc issued a Resolution32approving and adopting the
Joint Resolution subject to modifications. The dispositive portion of
the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJCOMELEC Preliminary Investigation Committee in DOJ-COMELEC
Case No. 001-2011 and DOJ-COMELEC Case No. 002-2011, upon the

recommendation of the COMELECs own representatives in the

Committee, is hereby APPROVED and ADOPTED, subject to the
following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL SABOTAGE
under Section 42 (b) of R.A. 9369, amending Section 27 (b)
of R.A. 6646, be filed against GLORIA MACAPAGAL-ARROYO,
BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL
AMPATUAN, SR. and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO
FERRER, REUBEN BASIAO, JAIME PAZ and NORIE K. UNAS be
subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG
SERRANO, ALBERTO AGRA, ANDREI BON TAGUM, GABBY
CLAUDIO, ROMY DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a
BUTCH, be DISMISSED for insufficiency of evidence to
establish probable cause;
4. That the recommendation that ESTELITA B. ORBASE,
ELIZA A. GASMIN, ELSA Z. ATINEN, SALIAO S. AMBA,
MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH D.
AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG,
ASUNCION CORAZON P. RENIEDO, NENA A. ALID, MA. SUSAN
L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO, JEEHAN S.
NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN
M. DALOPE, and MACEDA L. ABO be administratively
charged be subjected to further review by this Commission
to determine the appropriate charge/s that may be filed
against them;
5. That the findings of lack of probable cause against LILIAN
S. SUAN-RADAM and YOGIE G. MARTIRIZAR be REJECTED by
reason of the pendency of their respective cases before the
Regional Trial Court of Pasay (Branch 114) and this
Commission for the same offense under consideration.
In the higher interest of justice and by reason of manifest attempts
to frustrate the governments right to prosecute and to obtain
speedy disposition of the present case pending before the
Commission, the Law Department and/or any COMELEC legal
officers as may be authorized by this Commission is hereby
ORDERED to IMMEDIATELY PREPARE and FILE the necessary
Information/s before the appropriate court/s

SO ORDERED.33 (Emphasis supplied.)

On even date, pursuant to the above Resolution, the Comelecs Law
Department filed with the Regional Trial Court (RTC), Pasay City, an
Information against petitioner GMA, Governor Andal Ampatuan, Sr.,
and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of
Republic Act (R.A.) No. 9369, amending Section 27 (b) of R.A. No.
6646, docketed as Criminal Case No. RPSY-11-04432-CR. 34 The case
was raffled to Branch 112 and the corresponding Warrant of Arrest
was issued which was served on GMA on the same day. 35
On November 18, 2011, petitioner GMA filed with the RTC an Urgent
Omnibus Motion Ad Cautelam36 with leave to allow the Joint
Committee to resolve the motion for reconsideration filed by GMA,
to defer issuance of a warrant of arrest and a Hold Departure Order,
and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam37 praying that its Resolution be vacated for being null and
void. The RTC nonetheless issued a warrant for her arrest which
was duly served. GMA thereafter filed a Motion for Bail which was
granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following
grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT
ORDER IS AT WAR WITH THE DUE PROCESS AND EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, HAVING BEEN
CREATED WITH THE SOLE END IN VIEW OF INVESTIGATING
AND PROSECUTING CERTAIN PERSONS AND INCIDENTS
ONLY, SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007
ELECTIONS TO THE EXCLUSION OF OTHERS, IN VIOLATION
OF THE DOCTRINE IN BIRAOGO V. TRUTH COMMISSION AND
COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO
CONDUCT PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES
THE COMMISSION ON ELECTIONS - A CONSTITUTIONALLY
INDEPENDENT BODY - WITH THE DEPARTMENT OF JUSTICE
A POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE

INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS

PROVIDED IN ARTICLE IX(A), SECTIONS 1 AND 2 AND IX(C)
OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC
PRONOUNCEMENTS OF THE PRESIDENT, HIS
SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT
CASES SHOULD BE FILED AGAINST PETITIONER AND HIS
FAMILY AND ALLEGED ASSOCIATES BY THE END OF 2011,
THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR
BEING PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO
AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT
COMMITTEE TRAMPLES UPON PETITIONERS RIGHT TO A FAIR
PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY
CITY, HAVE ASSUMED JURISDICTION OVER THE SUBJECT
MATTER SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING
THE JOINT COMMITTEE.38
In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJCOMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATON COMMITTEE VIOLATE PETITIONERS
CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE
LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJCOMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE VIOLATE PETITIONERS
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.

DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF

SEPARATION OF POWERS BY CREATING THE JOINT DOJCOMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON
THE POWERS OF THE LEGISLATURE AND THE REGIONAL
TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE HAVE THE POWER
AND LEGAL AUTHORITY TO CONDUCT A PRELIMINARY
INVESTIGATION OF THE SAME ELECTORAL SABOTAGE CASES
WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE
OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on the
following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ,
OSTENSIBLY ACTING "JOINTLY" WITH THE COMELEC, HAS
ACTED BEYOND THE LIMITS OF THE CONSTITUTION, IN THAT
IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS
CONSTITUTIONAL MANDATE "TO INVESTIGATE AND, WHERE
APPROPRIATE, PROSECUTE CASES OF VIOLATIONS OF
ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND
MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN
FAVOR OF THE EXECUTIVE DEPARTMENT, ACTING THROUGH
RESPONDENT JUSTICE SECRETARY DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE
JOINT COMMITTEE RULES HAVE NOT BEEN PUBLISHED
PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915 (29
DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS SHELL
PETROLEUM CORPORATION, G.R. No. 173918 (08 APRIL
2008), (SIC)40

We deferred the resolution of petitioners Motion for the Issuance of

a TRO and, instead, required the respondents to comment on the
petitions.41
We likewise scheduled the consolidated cases for oral argument for
which the parties were directed to limit their respective discussions
to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and
Constituting a Joint DOJ-COMELEC Preliminary Investigation
Committee and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation Cases" is constitutional
in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional
body
II. Whether or not the COMELEC has jurisdiction under the law to
conduct preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJCOMELEC Fact-Finding Team and Preliminary Investigation
Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panels Resolution.42
The Court, thereafter, required the parties to submit their
respective Memoranda.43
The Courts Ruling
Procedural Issues
Respondents claim that Mike Arroyos petition is moot and that of
GMA is moot and academic. They explain that the Mike Arroyo
petition presents no actual controversy that necessitates the
exercise by the Court of its power of judicial review, considering
that he was not among those indicted for electoral sabotage in the

2007 national elections as the Comelec dismissed the case against

him for insufficiency of evidence.44 Anent the 2004 national
elections, the Fact-Finding Team is yet to complete its investigation
so Mike Arroyos apprehensions are merely speculative and
anticipatory.45 As to the GMA petition, respondents aver that any
judgment of the Court will have no practical legal effect because an
Information has already been filed against her in Branch 112, RTC
of Pasay City.46 With the filing of the Information, the RTC has
already acquired jurisdiction over the case, including all issues
relating to the constitutionality or legality of her preliminary
investigation.47 Respondents also claim that the issues relating to
the constitutionality and validity of the conduct of the preliminary
investigation of GMA are best left to the trial court, considering that
it involves questions of fact.48 Respondents add that considering
that the RTC has concurrent jurisdiction to determine a
constitutional issue, it will be practical for the Court to allow the
RTC to determine the constitutional issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of
adjudication, there must be an actual case or controversy, that is,
one which involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution. 50 The case
must not be moot or academic or based on extra-legal or other
similar considerations not cognizable by a court of justice.51
A case becomes moot and academic when it ceases to present a
justiciable controversy so that a declaration on the issue would be
of no practical use or value.52 However, a case should not be
dismissed simply because one of the issues raised therein had
become moot and academic by the onset of a supervening event,
whether intended or incidental, if there are other causes which
need to be resolved after trial.53
Here, the consolidated cases are not rendered moot and academic
by the promulgation of the Joint Resolution by the Joint Committee
and the approval thereof by the Comelec. It must be recalled that
the main issues in the three petitions before us are the
constitutionality and legality of the creation of the Joint Committee
and the Fact-Finding Team as well as the proceedings undertaken
pursuant thereto. The assailed Joint Order specifically provides that
the Joint Committee was created for purposes of investigating the

alleged massive electoral fraud during the 2004 and 2007 national
elections. However, in the Fact-Finding Teams Initial Report, the
team specifically agreed that the report would focus on the
irregularities during the 2007 elections. Also, in its November 18,
2011 Resolution, the Comelec, while directing the filing of
information against petitioners Abalos and GMA, ordered that
further investigations be conducted against the other respondents
therein. Apparently, the Fact-Finding Teams and Joint
Committees respective mandates have not been fulfilled and they
are, therefore, bound to continue discharging their duties set forth
in the assailed Joint Order. Moreover, petitioners question the
validity of the proceedings undertaken by the Fact-Finding Team
and the Joint Committee leading to the filing of information, on
constitutional grounds. We are not, therefore, barred from deciding
on the petitions simply by the occurrence of the supervening
events of filing an information and dismissal of the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue
of jurisdiction to conduct preliminary investigation and at the same
time with the propriety of the conduct of preliminary investigation.
In Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG),54 the Court resolved two issues, namely: (1) whether or not
the PCGG has the power to conduct a preliminary investigation of
the anti-graft and corruption cases filed by the Solicitor General
against Eduardo Conjuangco, Jr. and other respondents for the
alleged misuse of coconut levy funds; and (2) on the assumption
that it has jurisdiction to conduct such a preliminary investigation,
whether or not its conduct constitutes a violation of petitioners
right to due process and equal protection of the law.55 The Court
decided these issues notwithstanding the fact that Informations
had already been filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the
propriety of the issuance of a warrant of arrest, the Court could not
ignore the undue haste in the filing of the information and the
inordinate interest of the government in filing the same. Thus, this
Court took time to determine whether or not there was, indeed,
probable cause to warrant the filing of information. This,
notwithstanding the fact that information had been filed and a
warrant of arrest had been issued. Petitioners therein came directly

to this Court and sought relief to rectify the injustice that they
suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of
the principle of hierarchy of courts. This principle requires that
recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.57 The Supreme Court
has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the RTC, a direct
invocation of this Courts jurisdiction is allowed when there are
special and important reasons therefor, clearly and especially set
out in the petition, as in the present case.58 In the consolidated
petitions, petitioners invoke exemption from the observance of the
rule on hierarchy of courts in keeping with the Courts duty to
determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws,
and that they have not abused the discretion given to them.59
It is noteworthy that the consolidated petitions assail the
constitutionality of issuances and resolutions of the DOJ and the
Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a
statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances
where the Court believes that resolving the issue of
constitutionality of a law or regulation at the first instance is of
paramount importance and immediately affects the social,
economic, and moral well-being of the people.60
This case falls within the exception. An expeditious resolution of the
issues raised in the petitions is necessary. Besides, the Court has
entertained a direct resort to the Court without the requisite motion
for reconsideration filed below or without exhaustion of
administrative remedies where there is an urgent necessity for the
resolution of the question and any further delay would prejudice
the interests of the government or of the petitioners and when
there is an alleged violation of due process, as in the present
case.61 We apply the same relaxation of the Rules in the present
case and, thus, entertain direct resort to this Court.

Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the
powers and functions of the Comelec. Paragraph (6) thereof vests
in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions
in court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses,
and malpractices.
This was an important innovation introduced by the 1987
Constitution, because the above-quoted provision was not in the
1935 and 1973 Constitutions.62
The grant to the Comelec of the power to investigate and prosecute
election offenses as an adjunct to the enforcement and
administration of all election laws is intended to enable the
Comelec to effectively insure to the people the free, orderly, and
honest conduct of elections. The failure of the Comelec to exercise
this power could result in the frustration of the true will of the
people and make a mere idle ceremony of the sacred right and
duty of every qualified citizen to vote.63
The constitutional grant of prosecutorial power in the Comelec was
reflected in Section 265 of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under
this Code, and to prosecute the same. The Commission may avail of
the assistance of other prosecuting arms of the government:
Provided, however, That in the event that the Commission fails to
act on any complaint within four months from his filing, the
complainant may file the complaint with the office of the fiscal
[public prosecutor], or with the Ministry Department of Justice for
proper investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary
investigation is vested exclusively with the Comelec. The latter,

however, was given by the same provision of law the authority to

avail itself of the assistance of other prosecuting arms of the
government.64 Thus, under Section 2,65 Rule 34 of the Comelec
Rules of Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to conduct
preliminary investigation of complaints involving election offenses
under election laws and to prosecute the same. The complaints
may be filed directly with them or may be indorsed to them by the
petitioner or its duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive
jurisdiction to conduct preliminary investigation had been lodged
with the Comelec, the prosecutors had been conducting preliminary
investigations pursuant to the continuing delegated authority given
by the Comelec. The reason for this delegation of authority has
been explained in Commission on Elections v. Espaol:67
The deputation of the Provincial and City Prosecutors is
necessitated by the need for prompt investigation and dispensation
of election cases as an indispensable part of the task of securing
fine, orderly, honest, peaceful and credible elections. Enfeebled by
lack of funds and the magnitude of its workload, the petitioner does
not have a sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla, 69 the prompt
and fair investigation and prosecution of election offenses
committed before or in the course of nationwide elections would
simply not be possible without the assistance of provincial and city
fiscals prosecutors and their assistants and staff members, and of
the state prosecutors of the DOJ.70
Section 265 of the Omnibus Election Code was amended by Section
43 of R.A. No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby
amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly
authorized legal officers, have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code,
and to prosecute the same.72

As clearly set forth above, instead of a mere delegated authority,

the other prosecuting arms of the government, such as the DOJ,
now exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute
the same.
It is, therefore, not only the power but the duty of both the Comelec
and the DOJ to perform any act necessary to ensure the prompt
and fair investigation and prosecution of election offenses. Pursuant
to the above constitutional and statutory provisions, and as will be
explained further below, we find no impediment for the Comelec
and the DOJ to create the Joint Committee and Fact-Finding Team
for the purpose of conducting a thorough investigation of the
alleged massive electoral fraud and the manipulation of election
results in the 2004 and 2007 national elections relating in particular
to the presidential and senatorial elections. 73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and FactFinding Team is in violation of the equal protection clause of the
Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there
is no substantial distinction between the allegations of massive
electoral fraud in 2004 and 2007, on the one hand, and previous
and subsequent national elections, on the other hand; and no
substantial distinction between petitioners and the other persons or
public officials who might have been involved in previous election
offenses. They insist that the Joint Panel was created to target only
the Arroyo Administration as well as public officials linked to the
Arroyo Administration. To bolster their claim, petitioners explain
that Joint Order No. 001-2011 is similar to Executive Order No. 1
(creating the Philippine Truth Commission) which this Court had
already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue
that the wide array of the possible election offenses and broad
spectrum of individuals who may have committed them, if any,
immediately negate the assertion that the assailed orders are
aimed only at the officials of the Arroyo Administration.

We agree with the respondents.

The equal protection clause is enshrined in Section 1, Article III of
the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.74
The concept of equal protection has been laid down in Biraogo v.
Philippine Truth Commission of 2010:75
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed. It requires public bodies and institutions to treat similarlysituated individuals in a similar manner. The purpose of the equal
protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statute or by its
improper execution through the state's duly-constituted authorities.
In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a
legitimate governmental objective.76
Unlike the matter addressed by the Courts ruling in Biraogo v.
Philippine Truth Commission of 2010, Joint Order No. 001-2011
cannot be nullified on the ground that it singles out the officials of
the Arroyo Administration and, therefore, it infringes the equal
protection clause. The Philippine Truth Commission of 2010 was
expressly created for the purpose of investigating alleged graft and

corruption during the Arroyo Administration since Executive Order

No. 177 specifically referred to the "previous administration"; while
the Joint Committee was created for the purpose of conducting
preliminary investigation of election offenses during the 2004 and
2007 elections. While GMA and Mike Arroyo were among those
subjected to preliminary investigation, not all respondents therein
were linked to GMA as there were public officers who were
investigated upon in connection with their acts in the performance
of their official duties. Private individuals were also subjected to the
investigation by the Joint Committee.

with the DOJ. The Comelec may even initiate, motu proprio,
complaints for election offenses.82

The equal protection guarantee exists to prevent undue favor or

privilege. It is intended to eliminate discrimination and oppression
based on inequality. Recognizing the existence of real differences
among men, it does not demand absolute equality. It merely
requires that all persons under like circumstances and conditions
shall be treated alike both as to privileges conferred and liabilities
enforced.78

B. Due Process

We once held that the Office of the Ombudsman is granted virtually

plenary investigatory powers by the Constitution and by law and
thus may, for every particular investigation, whether commenced
by complaint or on its own initiative, decide how best to pursue
each investigation. Since the Office of the Ombudsman is granted
such latitude, its varying treatment of similarly situated
investigations cannot by itself be considered a violation of any of
the parties rights to the equal protection of the laws.79 This same
doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of
enforcing and administering all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall,80 and tasked to ensure free, orderly, honest, peaceful, and
credible elections,81 the Comelec has the authority to determine
how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every
local or national elections setting forth the guidelines to be
observed in the conduct of the elections. This shows that every
election is distinct and requires different guidelines in order to
ensure that the rules are updated to respond to existing
circumstances.
Moreover, as has been practiced in the past, complaints for
violations of election laws may be filed either with the Comelec or

Pursuant to law and the Comelecs own Rules, investigations may

be conducted either by the Comelec itself through its law
department or through the prosecutors of the DOJ. These varying
procedures and treatment do not, however, mean that respondents
are not treated alike. Thus, petitioners insistence of infringement
of their constitutional right to equal protection of the law is
misplaced.

Petitioners claim that the Joint Panel does not possess the required
cold neutrality of an impartial judge because it is all at once the
evidence-gatherer, prosecutor and judge. They explain that since
the Fact-Finding Team has found probable cause to subject them to
preliminary investigation, it is impossible for the Joint Committee to
arrive at an opposite conclusion. Petitioners likewise express doubts
of any possibility that the Joint Committee will be fair and impartial
to them as Secretary De Lima and Chairman Brillantes had
repeatedly expressed prejudgment against petitioners through their
statements captured by the media.
For their part, respondents contend that petitioners failed to
present proof that the President of the Philippines, Secretary of
Justice, and Chairman of the Comelec actually made the
statements allegedly prejudging their case and in the context in
which they interpreted them. They likewise contend that assuming
that said statements were made, there was no showing that
Secretary De Lima had tried to intervene in the investigation to
influence its outcome nor was it proven that the Joint Committee
itself had prejudged the case. Lastly, they point out that Joint Order
No. 001-2011 created two bodies, the Fact-Finding Team and the
Joint Committee, with their respective mandates. Hence, they
cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like
court proceedings, subject to the requirements of both substantive
and procedural due process.83 Preliminary investigation is
considered as a judicial proceeding wherein the prosecutor or
investigating officer, by the nature of his functions, acts as a quasijudicial officer.84 The authority of a prosecutor or investigating

officer duly empowered to preside over or to conduct a preliminary

investigation is no less than that of a municipal judge or even an
RTC Judge.85 Thus, as emphasized by the Court in Ladlad v.
Velasco:86
x x x We 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 serving 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 public's
perception of the impartiality of the prosecutor be enhanced. 87
In this case, as correctly pointed out by respondents, there was no
showing that the statements claimed to have prejudged the case
against petitioners were made by Secretary De Lima and Chairman
Brillantes or were in the prejudicial context in which petitioners
claimed the statements were made. A reading of the statements
allegedly made by them reveals that they were just responding to
hypothetical questions in the event that probable cause would
eventually be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the
Joint Committee itself, tasked to conduct the requisite preliminary
investigation against petitioners, made biased statements that
would convey to the public that the members were favoring a
particular party. Neither did the petitioners show that the President
of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation
or exerted undue pressure on their subordinates to tailor their
decision with their public declarations and adhere to a predetermined result.88 Moreover, insofar as the Comelec is concerned,
it must be emphasized that the constitutional body is collegial. The
act of the head of a collegial body cannot be considered as that of
the entire body itself.89 In equating the alleged bias of the abovenamed officials with that of the Joint Committee, there would be no
arm of the government credible enough to conduct a preliminary
investigation.90
It must also be emphasized that Joint Order No. 001-2011 created
two bodies, namely: (1) the Fact-Finding Team tasked to gather real,
documentary and testimonial evidence which can be utilized in the
preliminary investigation to be conducted by the Joint Committee;

and (2) the Joint Committee mandated to conduct preliminary

investigation. It is, therefore, inaccurate to say that there is only
one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown
by its composition, the creation of its own Rules of Procedure, and
the source of funding for its operation. It is their position that the
power of the DOJ to investigate the commission of crimes and the
Comelecs constitutional mandate to investigate and prosecute
violations of election laws do not include the power to create a new
public office in the guise of a joint committee. Thus, in creating the
Joint Panel, the DOJ and the Comelec encroached upon the power of
the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and
Fact-Finding Team are not new public offices, but merely
collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members
of the Joint Panel are existing officers of the DOJ and the Comelec
who exercise duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to
investigate, and where appropriate, prosecute cases of election
offenses. This is necessary in ensuring free, orderly, honest,
peaceful and credible elections. On the other hand, the DOJ is
mandated to administer the criminal justice system in accordance
with the accepted processes thereof consisting in the investigation
of the crimes, prosecution of offenders and administration of the
correctional system.91 It is specifically empowered to "investigate
the commission of crimes, prosecute offenders and administer the
probation and correction system."92 Also, the provincial or city
prosecutors and their assistants, as well as the national and
regional state prosecutors, are specifically named as the officers
authorized to conduct preliminary investigation. 93 Recently, the
Comelec, through its duly authorized legal offices, is given the
power, concurrent with the other prosecuting arms of the
government such as the DOJ, to conduct preliminary investigation
of all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules of Court
and not the assailed Joint Order which give the DOJ and the

Comelec the power to conduct preliminary investigation. No new

power is given to them by virtue of the assailed order. As to the
members of the Joint Committee and Fact-Finding Team, they
perform such functions that they already perform by virtue of their
current positions as prosecutors of the DOJ and legal officers of the
Comelec. Thus, in no way can we consider the Joint Committee as a
new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has
effectively abdicated its constitutional mandate to investigate and,
where appropriate, to prosecute cases of violation of election laws
including acts or omissions constituting election frauds, offenses,
and malpractices in favor of the Executive Department acting
through the DOJ Secretary. Under the set- up, the Comelec
personnel is placed under the supervision and control of the DOJ.
The chairperson is a DOJ official. Thus, the Comelec has willingly
surrendered its independence to the DOJ and has acceded to share
its exercise of judgment and discretion with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly describes
all the Constitutional Commissions as independent. Although
essentially executive in nature, they are not under the control of
the President of the Philippines in the discharge of their respective
functions.96 The Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and credible
elections and to serve as the guardian of the peoples sacred right
of suffrage the citizenrys vital weapon in effecting a peaceful
change of government and in achieving and promoting political
stability.97
Prior to the amendment of Section 265 of the Omnibus Election
Code, the Comelec had the exclusive authority to investigate and
prosecute election offenses. In the discharge of this exclusive
power, the Comelec was given the right to avail and, in fact,
availed of the assistance of other prosecuting arms of the
government such as the prosecutors of the DOJ. By virtue of this
continuing authority, the state prosecutors and the provincial or
city prosecutors were authorized to receive the complaint for
election offense and delegate the conduct of investigation to any of
their assistants. The investigating prosecutor, in turn, would make a
recommendation either to dismiss the complaint or to file the

information. This recommendation is subject to the approval of the

state, provincial or city prosecutor, who himself may file the
information with the proper court if he finds sufficient cause to do
so, subject, however, to the accuseds right to appeal to the
Comelec.98
Moreover, during the past national and local elections, the Comelec
issued Resolutions99 requesting the Secretary of Justice to assign
prosecutors as members of Special Task Forces to assist the
Comelec in the investigation and prosecution of election offenses.
These Special Task Forces were created because of the need for
additional lawyers to handle the investigation and prosecution of
election offenses.
Clearly, the Comelec recognizes the need to delegate to the
prosecutors the power to conduct preliminary investigation.
Otherwise, the prompt resolution of alleged election offenses will
not be attained. This delegation of power, otherwise known as
deputation, has long been recognized and, in fact, been utilized as
an effective means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a vital role in
the conduct of preliminary investigation, in the resolution of
complaints filed before them, and in the filing of the informations
with the proper court.
As pointed out by the Court in Barangay Association for National
Advancement and Transparency (BANAT) Party-List v. Commission
on Elections,100 the grant of exclusive power to investigate and
prosecute cases of election offenses to the Comelec was not by
virtue of the Constitution but by the Omnibus Election Code which
was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses
concurrently with the Comelec and no longer as mere deputies. If
the prosecutors had been allowed to conduct preliminary
investigation and file the necessary information by virtue only of a
delegated authority, they now have better grounds to perform such
function by virtue of the statutory grant of authority. If deputation
was justified because of lack of funds and legal officers to ensure
prompt and fair investigation and prosecution of election offenses,
the same justification should be cited to justify the grant to the
other prosecuting arms of the government of such concurrent
jurisdiction.
In view of the foregoing disquisition, we find no impediment for the
creation of a Joint Committee. While the composition of the Joint

Committee and Fact-Finding Team is dominated by DOJ officials, it

does not necessarily follow that the Comelec is inferior. Under the
Joint Order, resolutions of the Joint Committee finding probable
cause for election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure. This shows that
the Comelec, though it acts jointly with the DOJ, remains in control
of the proceedings. In no way can we say that the Comelec has
thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the
Comelec the authority to investigate and prosecute election
offenses is to give the Comelec all the necessary and incidental
powers for it to achieve the objective of holding free, orderly,
honest, peaceful, and credible elections.101 The Comelec should be
allowed considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for which it
was created.102We may not agree fully with its choice of means, but
unless these are clearly illegal or constitute gross abuse of
discretion, this Court should not interfere.103 Thus, Comelec
Resolution No. 9266, approving the creation of the Joint Committee
and Fact-Finding Team, should be viewed not as an abdication of
the constitutional bodys independence but as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of
election offenses as an adjunct of its mandate of ensuring a free,
orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the agency
tasked to investigate crimes, prosecute offenders, and administer
the correctional system, the DOJ is likewise not barred from acting
jointly with the Comelec. It must be emphasized that the DOJ and
the Comelec exercise concurrent jurisdiction in conducting
preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the
same subject matter.104 Contrary to the contention of the
petitioners, there is no prohibition on simultaneous exercise of
power between two coordinate bodies. What is prohibited is the
situation where one files a complaint against a respondent initially
with one office (such as the Comelec) for preliminary investigation
which was immediately acted upon by said office and the re-filing
of substantially the same complaint with another office (such as the
DOJ). The subsequent assumption of jurisdiction by the second
office over the cases filed will not be allowed. Indeed, it is a settled
rule that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the

others.105 As cogently held by the Court in Department of Justice v.

Hon. Liwag:106
To allow the same complaint to be filed successively before two or
more investigative bodies would promote multiplicity of
proceedings. It would also cause undue difficulties to the
respondent who would have to appear and defend his position
before every agency or body where the same complaint was filed.
This would lead hapless litigants at a loss as to where to appear
and plead their cause or defense.
There is yet another undesirable consequence. There is the distinct
possibility that the two bodies exercising jurisdiction at the same
time would come up with conflicting resolutions regarding the guilt
of the respondents.
Finally, the second investigation would entail an unnecessary
expenditure of public funds, and the use of valuable and limited
resources of Government, in a duplication of proceedings already
started with the Ombudsman.107
None of these problems would likely arise in the present case. The
Comelec and the DOJ themselves agreed that they would exercise
their concurrent jurisdiction jointly. Although the preliminary
investigation was conducted on the basis of two complaints the
initial report of the Fact-Finding Team and the complaint of Senator
Pimentel both complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the preliminary
investigation was conducted by only one investigative body. Thus,
we find no reason to disallow the exercise of concurrent jurisdiction
jointly by those given such authority. This is especially true in this
case given the magnitude of the crimes allegedly committed by
petitioners. The joint preliminary investigation also serves to
maximize the resources and manpower of both the Comelec and
the DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that
the investigation conducted by the Comelec involving Radam and
Martirizar bars the creation of the Joint Committee for purposes of
conducting another preliminary investigation. In short, they claim
that the exercise by the Comelec of its jurisdiction to investigate
excludes other bodies such as the DOJ and the Joint Committee
from taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the Comelec as

the 2007 cases of Radam and Martirizar include several John Does
and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against
Radam, Martirizar and other unidentified persons, it only pertains to
election offenses allegedly committed in North and South Cotabato.
On the other hand, the preliminary investigation conducted by the
Joint Committee (involving GMA) pertains to election offenses
supposedly committed in Maguindanao. More importantly,
considering the broad power of the Comelec to choose the means
of fulfilling its duty of ensuring the prompt investigation and
prosecution of election offenses as discussed earlier, there is
nothing wrong if the Comelec chooses to work jointly with the DOJ
in the conduct of said investigation. To reiterate, in no way can we
consider this as an act abdicating the independence of the
Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by
the Rules of Court, while the Comelec is governed by the 1993
Comelec Rules of Procedure. There is, therefore, no need to
promulgate new Rules as may be complementary to the DOJ and
Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only
enables the Comelec and the DOJ to exercise powers which are
already vested in them by the Constitution and other existing laws,
it need not be published for it to be valid and effective. A close
examination of the Joint Committees Rules of Procedure, however,
would show that its provisions affect the public. Specifically, the
following provisions of the Rules either restrict the rights of or
provide remedies to the affected parties, to wit: (1) Section 1
provides that "the Joint Committee will no longer entertain
complaints from the public as soon as the Fact-Finding Team
submits its final report, except for such complaints involving
offenses mentioned in the Fact-Finding Teams Final Report"; (2)
Section 2 states that "the Joint Committee shall not entertain a
Motion to Dismiss"; and (3) Section 5 provides that a Motion for
Reconsideration may be availed of by the aggrieved parties against
the Joint Committees Resolution. Consequently, publication of the
Rules is necessary.

The publication requirement covers not only statutes but

administrative regulations and issuances, as clearly outlined in
Taada v. Tuvera:108 effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the
legislature. Covered by this rule are presidential decrees and
executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a
valid delegation. Interpretative regulations and those merely
internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published.
Neither is publication required of the so called letters of instructions
issued by administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance
of their duties.109
As opposed to Honasan II v. The Panel of Investigating Prosecutors
of the Department of Justice,110 where the Court held that OMB-DOJ
Joint Circular No. 95-001 is only an internal arrangement between
the DOJ and the Office of the Ombudsman outlining the authority
and responsibilities among prosecutors of both offices in the
conduct of preliminary investigation, the assailed Joint Committees
Rules of Procedure regulate not only the prosecutors of the DOJ and
the Comelec but also the conduct and rights of persons, or the
public in general. The publication requirement should, therefore,
not be ignored.
Publication is a necessary component of procedural due process to
give as wide publicity as possible so that all persons having an
interest in the proceedings may be notified thereof.111 The
requirement of publication is intended to satisfy the basic
requirements of due process. It is imperative for it will be the height
of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice
whatsoever.112
Nevertheless, even if the Joint Committees Rules of Procedure is
ineffective for lack of publication, the proceedings undertaken by
the Joint Committee are not rendered null and void for that reason,
because the preliminary investigation was conducted by the Joint
Committee pursuant to the procedures laid down in Rule 112 of the
Rules on Criminal Procedure and the 1993 Comelec Rules of
Procedure.

Validity of the Conduct of

Preliminary Investigation

We cannot dismiss the cases before us on the ground of forum

shopping.

In her Supplemental Petition,113 GMA outlines the incidents that

took place after the filing of the instant petition, specifically the
issuance by the Joint Committee of the Joint Resolution, the
approval with modification of such resolution by the Comelec and
the filing of information and the issuance of a warrant of arrest by
the RTC. With these supervening events, GMA further assails the
validity of the proceedings that took place based on the following
additional grounds: (1) the undue and unbelievable haste attending
the Joint Committees conduct of the preliminary investigation, its
resolution of the case, and its referral to and approval by the
Comelec, taken in conjunction with the statements from the Office
of the President, demonstrate a deliberate and reprehensible
pattern of abuse of inalienable rights and a blatant disregard of the
envisioned integrity and independence of the Comelec; (2) as it
stands, the creation of the Joint Committee was for the singular
purpose of railroading the proceedings in the prosecution of the
petitioner and in flagrant violation of her right to due process and
equal protection of the laws; (3) the proceedings of the Joint
Committee cannot be considered impartial and fair, considering
that respondents have acted as law enforcers, who conducted the
criminal investigation, gathered evidence and thereafter ordered
the filing of complaints, and at the same time authorized
preliminary investigation based on the complaints they caused to
be filed; (4) the Comelec became an instrument of oppression when
it hastily approved the resolution of the Joint Committee even if two
of its members were in no position to cast their votes as they
admitted to not having yet read the voluminous records of the
cases; and (5) flagrant and repeated violations of her right to due
process at every stage of the proceedings demonstrate a deliberate
attempt to single out petitioner through the creation of the Joint
Committee.114

Forum shopping is the act of a party against whom an adverse

judgment has been rendered in one forum, of seeking another and
possibly favorable opinion in another forum other than by appeal or
the special civil action of certiorari.116There can also be forum
shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the
courts to rule on the same and related causes and/or to grant the
same or substantially the same reliefs on the supposition that one
or the other court would make a favorable disposition or increase a
partys chances of obtaining a favorable decision or action.117

In their Supplement to the Consolidated Comment,115 respondents

accuse petitioners of violating the rule against forum shopping.
They contend that in filing the Supplemental Petition before the
Court, the Urgent Omnibus Motion Ad Cautelam with the RTC, and
the Motion to Vacate Ad Cautelam with the Comelec, GMA raises
the common issue of whether or not the proceedings before the
Joint Committee and the Comelec are null and void for violating the
Constitution. Respondents likewise claim that the issues raised in
the supplemental petition are factual which is beyond the power of
this Court to decide.

Indeed, petitioner GMA filed a Supplemental Petition before the

Court, an Urgent Omnibus Motion Ad Cautelam before the RTC, and
a Motion to Vacate Ad Cautelam before the Comelec, emphasizing
the unbelievable haste committed by the Joint Committee and the
Comelec in disposing of the cases before them. However, a plain
reading of the allegations in GMAs motion before the RTC would
show that GMA raised the issue of undue haste in issuing the Joint
Resolution only in support of her prayer for the trial court to hold in
abeyance the issuance of the warrant of arrest, considering that
her motion for reconsideration of the denial of her motion to be
furnished copies of documents was not yet acted upon by the Joint
Committee. If at all the constitutional issue of violation of due
process was raised, it was merely incidental. More importantly,
GMA raised in her motion with the RTC the finding of probable
cause as she sought the judicial determination of probable cause
which is not an issue in the petitions before us. GMAs ultimate
prayer is actually for the court to defer the issuance of the warrant
of arrest. Clearly, the reliefs sought in the RTC are different from the
reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the
Comelec, while the issues raised therein are substantially similar to
the issues in the supplemental petition which, therefore, strictly
speaking, warrants outright dismissal on the ground of forum
shopping, we cannot do so in this case in light of the due process
issues raised by GMA.118 It is worthy to note that the main issues in
the present petitions are the constitutionality of the creation of the
Joint Panel and the validity of the proceedings undertaken pursuant
thereto for alleged violation of the constitutional right to due
process. In questioning the propriety of the conduct of the
preliminary investigation in her Supplemental Petition, GMA only

raises her continuing objection to the exercise of jurisdiction of the

Joint Committee and the Comelec. There is, therefore, no
impediment for the Court to rule on the validity of the conduct of
preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained the nature
of preliminary investigation, to wit:
A preliminary investigation is held before an accused is placed on
trial to secure the innocent against hasty, malicious, and
oppressive prosecution; to protect him from an open and public
accusation of a crime, as well as from the trouble, expenses, and
anxiety of a public trial. It is also intended to protect the state from
having to conduct useless and expensive trials. While the right is
statutory rather than constitutional, it is a component of due
process in administering criminal justice. The right to have a
preliminary investigation conducted before being bound for trial
and before being exposed to the risk of incarceration and penalty is
not a mere formal or technical right; it is a substantive right. To
deny the accused's claim to a preliminary investigation is to
deprive him of the full measure of his right to due process. 120
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.121
In a preliminary investigation, the Rules of Court guarantee the
petitioners basic due process rights such as the right to be
furnished a copy of the complaint, the affidavits, and other
supporting documents, and the right to submit counter-affidavits,
and other supporting documents in her defense.122 Admittedly, GMA
received the notice requiring her to submit her counter-affidavit.
Yet, she did not comply, allegedly because she could not prepare
her counter-affidavit. She claimed that she was not furnished by
Senator Pimentel pertinent documents that she needed to
adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator Pimentel
to furnish her with documents referred to in his complaint-affidavit
and for production of election documents as basis for the charge of
electoral sabotage, GMA prayed that the Joint Committee issue an

Order directing the Fact-Finding Team and Senator Pimentel to

furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of
Senator Aquilino Pimentel III filed before the Commission on
Elections against Attys. Lilia Suan-Radam and Yogie
Martirizar, as well as the Informations filed in the Regional
Trial Court of Pasay City, Branch 114 in Criminal Case Nos. RPSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel
before the National Board of Canvassers, specifically in NBC
Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07163.
c. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Maguindanao."
d. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Lanao del Sur."
g. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Sulu."
h. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Basilan."
i. Documents which served as basis in the allegations of
"Significant findings specific to the protested municipalities
in the Province of Sultan Kudarat."124

GMA likewise requested the production of election documents used

in the Provinces of South and North Cotabato and Maguindanao. 125
The Joint Committee, however, denied GMAs motion which carried
with it the denial to extend the filing of her counter-affidavit.
Consequently, the cases were submitted for resolution sans GMAs
and the other petitioners counter-affidavits. This, according to
GMA, violates her right to due process of law.
We do not agree.
GMAs insistence of her right to be furnished the above-enumerated
documents is based on Section 3 (b), Rule 112 of the Rules on
Criminal Procedure, which reads:
(b) x x x
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.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants
the respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of
the complaint, affidavits and other supporting evidence, the
investigating officer finds no ground to continue with the inquiry, he
shall recommend the dismissal of the complaint and shall follow the
procedure prescribed in Sec. 8 (c) of this Rule. Otherwise, he shall
issue a subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting documents giving
said respondent ten (10) days from receipt within which to submit
counter-affidavits and other supporting documents. The respondent
shall have the right to examine all other evidence submitted by the
complainant.127

Clearly from the above-quoted provisions, the subpoena issued

against respondent therein should be accompanied by a copy of
the complaint and the supporting affidavits and documents. GMA
also has the right to examine documents but such right of
examination is limited only to the documents or evidence
submitted by the complainants (Senator Pimentel and the FactFinding Team) which she may not have been furnished and to copy
them at her expense.
While it is true that Senator Pimentel referred to certain election
documents which served as bases in the allegations of significant
findings specific to the protested municipalities involved, there
were no annexes or attachments to the complaint filed.128 As stated
in the Joint Committees Order dated November 15, 2011 denying
GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered
to furnish petitioners with all the supporting evidence 129 However,
Senator Pimentel manifested that he was adopting all the affidavits
attached to the Fact-Finding Teams Initial Report.130 Therefore,
when GMA was furnished with the documents attached to the Initial
Report, she was already granted the right to examine as
guaranteed by the Comelec Rules of Procedure and the Rules on
Criminal Procedure. Those were the only documents submitted by
the complainants to the Committee. If there are other documents
that were referred to in Senator Pimentels complaint but were not
submitted to the Joint Committee, the latter considered those
documents unnecessary at that point (without foreclosing the
relevance of other evidence that may later be presented during the
trial)131 as the evidence submitted before it were considered
adequate to find probable cause against her. 132 Anyway, the failure
of the complainant to submit documents supporting his allegations
in the complaint may only weaken his claims and eventually works
for the benefit of the respondent as these merely are allegations
unsupported by independent evidence.
We must, however, emphasize at this point that during the
preliminary investigation, the complainants are not obliged to prove
their cause beyond reasonable doubt. It would be unfair to expect
them to present the entire evidence needed to secure the
conviction of the accused prior to the filing of information. 133 A
preliminary investigation is not the occasion for the full and
exhaustive display of the parties respective evidence but the
presentation only of such evidence as may engender a wellgrounded belief that an offense has been committed and that the
accused is probably guilty thereof and should be held for

trial.134 Precisely there is a trial to allow the reception of evidence

for the prosecution in support of the charge.135
With the denial of GMAs motion to be furnished with and examine
the documents referred to in Senator Pimentels complaint, GMAs
motion to extend the filing of her counter-affidavit and
countervailing evidence was consequently denied. Indeed,
considering the nature of the crime for which GMA was subjected to
preliminary investigation and the documents attached to the
complaint, it is incumbent upon the Joint Committee to afford her
ample time to examine the documents submitted to the Joint
Committee in order that she would be able to prepare her counteraffidavit. She cannot, however, insist to examine documents not in
the possession and custody of the Joint Committee nor submitted
by the complainants. Otherwise, it might cause undue and
unnecessary delay in the disposition of the cases. This undue delay
might result in the violation of the right to a speedy disposition of
cases as enshrined in Section 16, Article III of the Constitution
which states that "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies." The constitutional right to speedy
disposition of cases is not limited to the accused in criminal
proceedings but extends to all parties in all cases, including civil
and administrative cases, and in all proceedings, including judicial
and quasi-judicial hearings.136 Any party to a case has the right to
demand on all officials tasked with the administration of justice to
expedite its disposition.137 Society has a particular interest in
bringing swift prosecutions, and the societys representatives are
the ones who should protect that interest.138
Even assuming for the sake of argument that the denial of GMAs
motion to be furnished with and examine the documents referred to
in Senator Pimentels complaint carried with it the denial to extend
the filing of her counter-affidavit and other countervailing evidence
rendering the preliminary investigation irregular, such irregularity
would not divest the RTC of jurisdiction over the case and would not
nullify the warrant of arrest issued in connection therewith,
considering that Informations had already been filed against
petitioners, except Mike Arroyo. This would only compel us to
suspend the proceedings in the RTC and remand the case to the
Joint Committee so that GMA could submit her counter-affidavit and
other countervailing evidence if she still opts to. However, to do so
would hold back the progress of the case which is anathema to the
accuseds right to speedy disposition of cases.

It is well settled that the absence or irregularity of preliminary

investigation does not affect the courts jurisdiction over the case.
Nor does it impair the validity of the criminal information or render
it defective. Dismissal is not the remedy.139 Neither is it a ground to
quash the information or nullify the order of arrest issued against
the accused or justify the release of the accused from
detention.140 The proper course of action that should be taken is to
hold in abeyance the proceedings upon such information and to
remand the case for the conduct of preliminary investigation.141
In the landmark cases of Cojuangco, Jr. v. Presidential Commission
on Good Government (PCGG)142 and Allado v. Diokno,143 we
dismissed the criminal cases and set aside the informations and
warrants of arrest. In Cojuangco, we dismissed the criminal case
because the information was filed by the PCGG which we declared
to be unauthorized to conduct the preliminary investigation and,
consequently, file the information as it did not possess the cold
neutrality of an impartial judge. In Allado, we set aside the warrant
of arrest issued against petitioners therein and enjoined the trial
court from proceeding further for lack of probable cause. For one,
there was serious doubt on the reported death of the victim in that
case since the corpus delicti had not been established nor had his
remains been recovered;and based on the evidence submitted,
there was nothing to incriminate petitioners therein. In this case,
we cannot reach the same conclusion because the Information filed
before the RTC of Pasay City was filed by the Comelec en banc
which had the authority to file the information for electoral
sabotage and because the presence or absence of probable cause
is not an issue herein. As can be gleaned from their assignment of
errors/issues, petitioners did not question the finding of probable
cause in any of their supplemental petitions. It was only in GMAs
memorandum where she belatedly included a discussion on the
"insufficiency" of the evidence supporting the finding of probable
cause for the filing of the Information for electoral sabotage against
her.144 A closer look at her arguments, however, would show that
they were included only to highlight the necessity of examining the
election documents GMA requested to see before she could file her
counter-affidavit. At any rate, since GMA failed to submit her
counter-affidavit and other countervailing evidence within the
period required by the Joint Committee, we cannot excuse her from
non-compliance.
There might have been overzealousness on the part of the Joint
Committee in terminating the investigation, endorsing the Joint
Resolution to the Comelec for approval, and in filing the information

in court. However, speed in the conduct of proceedings by a judicial

or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions.145 The orderly administration
of justice remains the paramount consideration with particular
regard to the peculiar circumstances of each case.146 To be sure,
petitioners were given the opportunity to present countervailing
evidence. Instead of complying with the Joint Committees
directive, several motions were filed but were denied by the Joint
Committee. Consequently, petitioners right to submit counteraffidavit and countervailing evidence was forfeited. Taking into
account the constitutional right to speedy disposition of cases and
following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint Committee
finally reached its conclusion and referred the case to the Comelec.
The latter, in turn, performed its task and filed the information in
court. Indeed, petitioners were given the opportunity to be heard.
They even actively participated in the proceedings and in fact filed
several motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases, unnecessary
delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was
already arraigned and entered a plea of "not guilty" to the charge
against her and thereafter filed a Motion for Bail which has been
granted. Considering that the constitutionality of the creation of the
Joint Panel is sustained, the actions of the Joint Committee and
Fact-Finding Team are valid and effective. As the information was
filed by the Commission authorized to do so, its validity is
sustained. Thus, we consider said entry of plea and the Petition for
Bail waiver on the part of GMA of her right to submit counteraffidavit and countervailing evidence before the Joint Committee,
and recognition of the validity of the information against her. Her
act indicates that she opts to avail of judicial remedies instead of
the executive remedy of going back to the Joint Committee for the
submission of the counter-affidavit and countervailing evidence.
Besides, as discussed earlier, the absence or irregularity of
preliminary investigation does not affect the courts jurisdiction
over the case nor does it impair the validity of the criminal
information or render it defective.
It must be stressed, however, that this supervening event does not
render the cases before the Court moot and academic as the main
issues raised by petitioners are the constitutionality of the creation
of the Joint Committee and the Fact-Finding Team and the validity of
the proceedings undertaken pursuant to their respective mandates.

The Court notes that the Joint Committee and the Comelec have
not disposed of the cases of the other respondents subjects of the
preliminary investigation as some of them were subjected to
further investigation. In order to remove the cloud of doubt that
pervades that petitioners are being singled out, it is to the best
interest of all the parties concerned that the Joint Committee and
the Comelec terminate the proceedings as to the other respondents
therein and not make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the
question about the credibility of the Comelec brought about by the
alleged professional relationship between Comelec Chairman
Brillantes on one hand and the complainant Senator Pimentel and
Fernando Poe, Jr. (FPJ), GMAs rival in the 2004 elections, on the
other hand; and by the other Commissioners147 reasons for their
partial inhibition. To be sure, Chairman Brillantes relationship with
FPJ and Senator Pimentel is not one of the grounds for the
mandatory disqualification of a Commissioner. At its most
expansive, it may be considered a ground for voluntary inhibition
which is indeed discretionary as the same was primarily a matter of
conscience and sound discretion on the part of the Commissioner
judge based on his or her rational and logical assessment of the
case.148 Bare allegations of bias and prejudice are not enough in the
absence of clear and convincing evidence to overcome the
presumption that a judge will undertake his noble role to dispense
justice according to law and evidence without fear or favor. 149 It
being discretionary and since Commissioner Brillantes was in the
best position to determine whether or not there was a need to
inhibit from the case, his decision to participate in the proceedings,
in view of higher interest of justice, equity and public interest,
should be respected. While a party has the right to seek the
inhibition or disqualification of a judge (or prosecutor or
Commissioner) who does not appear to be wholly free,
disinterested, impartial, and independent in handling the case, this
right must be weighed with his duty to decide cases without fear of
repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the Comelecs
decision against Javier when it was disclosed that one of the
Commissioners who had decided the case was a law partner of
Javiers opponent and who had refused to excuse himself from
hearing the case. Javier, however, is not applicable in this case.
First, the cited case involves the Comelecs exercise of its
adjudicatory function as it was called upon to resolve the propriety
of the proclamation of the winner in the May 1984 elections for

Batasang Pambansa of Antique. Clearly, the grounds for

inhibition/disqualification were applicable. Second, the case arose
at the time where the purity of suffrage has been defiled and the
popular will scorned through the confabulation of those in
authority.152 In other words, the controversy arose at the time when
the public confidence in the Comelec was practically nil because of
its transparent bias in favor of the administration. 153Lastly, in
determining the propriety of the decision rendered by the Comelec,
the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents
therein, Arturo F. Pacificador, and then Comelec Commissioner
Jaime Opinion (Commissioner Opinion) but also the general attitude
of the Comelec toward the party in power at that time. Moreover,
the questioned Comelec decision was rendered only by a division of
the Comelec. The Court thus concluded in Javier that Commissioner
Opinions refusal to inhibit himself divested the Comelecs Second
Division of the necessary vote for the questioned decision and
rendered the proceedings null and void.154
On the contrary, the present case involves only the conduct of
preliminary investigation and the questioned resolution is an act of
the Comelec En Banc where all the Commissioners participated and
more than a majority (even if Chairman Brillantes is excluded)
voted in favor of the assailed Comelec resolution. Unlike in 1986,
public confidence in the Comelec remains. The Commissioners
have already taken their positions in light of the claim of "bias and
partiality" and the causes of their partial inhibition. Their positions
should be respected confident that in doing so, they had the end in
view of ensuring that the credibility of the Commission is not
seriously affected.

actually intervened in the conduct of the preliminary investigation.

More importantly, considering that the Comelec is a collegial body,
the perceived prejudgment of Chairman Brillantes as head of the
Comelec cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices because
the Joint Committee and Fact-Finding Team perform functions that
they already perform by virtue of the Constitution, the statutes,
and the Rules of Court.1wphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot be
considered to have abdicated its independence in favor of the
executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the
prompt investigation and prosecution of election offenses as an
adjunct of its mandate of ensuring a free, orderly, honest, peaceful,
and credible elections. The role of the DOJ in the conduct of
preliminary investigation of election offenses has long been
recognized by the Comelec because of its lack of funds and legal
officers to conduct investigations and to prosecute such cases on
its own. This is especially true after R.A. No. 9369 vested in the
Comelec and the DOJ the concurrent jurisdiction to conduct
preliminary investigation of all election offenses. While we uphold
the validity of Comelec Resolution No. 9266 and Joint Order No.
001-2011, we declare the Joint Committees Rules of Procedure
infirm for failure to comply with the publication requirement.
Consequently, Rule 112 of the Rules on Criminal Procedure and the
1993 Comelec Rules of Procedure govern.

First, while GMA and Mike Arroyo were among those subjected to
preliminary investigation, not all respondents therein were linked to
GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.

Fifth, petitioners were given the opportunity to be heard. They were

furnished a copy of the complaint, the affidavits, and other
supporting documents submitted to the Joint Committee and they
were required to submit their counter-affidavit and countervailing
evidence. As to petitioners Mike Arroyo and Abalos, the pendency
of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their
failure to file the required counter-affidavits. With the foregoing
disquisitions, we find no reason to nullify the proceedings
undertaken by the Joint Committee and the Comelec in the
electoral sabotage cases against petitioners.

Second, the due process clause is likewise not infringed upon by

the alleged prejudgment of the case as petitioners failed to prove
that the Joint Panel itself showed such bias and partiality against
them. Neither was it shown that the Justice Secretary herself

WHEREFORE, premises considered, the petitions and supplemental

petitions are DISMISSED. Comelec Resolution No. 9266 dated
August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011,
and the Fact-Finding Teams Initial Report dated October 20, 2011,

To recapitulate, we find and so hold that petitioners failed to

establish any constitutional or legal impediment to the creation of
the Joint DOJ-Comelec Preliminary Investigation Committee and
Fact-Finding Team.

are declared VALID. However, the Rules of Procedure on the

Conduct of Preliminary Investigation on the Alleged Election Fraud
in the 2004 and 2007 National Elections is declared INEFFECTIVE
for lack of publication.
In view of the constitutionality of the Joint Panel and the
proceedings having been conducted in accordance with Rule 112 of
the Rules on Criminal Procedure and Rule 34 of the Comelec Rules
of Procedure, the conduct of the preliminary investigation is hereby
declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch
112, where the criminal cases for electoral sabotage against
petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.
SECOND DIVISION
[A.M. No. RTJ-04-1879. January 17, 2005]
SPO4 EDUARDO ALONZO, complainant, vs. JUDGE CRISANTO
C. CONCEPCION, Presiding Judge, Regional Trial Court
of
Malolos
City,
Branch
12,
Province
of
Bulacan, respondent.
RESOLUTION
PUNO, J.:
The zeal to uphold justice, albeit an admirable and desirable
trait, must never be allowed to blind judges to the limits of judicial
power or to obscure the boundaries set by the law.
The facts are as follows:
On May 10, 2003, in the municipality of Paombong, Bulacan, a
wedding party was being celebrated behind the house of the newlymarried couple. At the party and drinking together at the same
table were SPO4 Eduardo Alonzo (SPO4 Alonzo), Jun Rances
(Rances), Zoilo Salamat (Salamat) and Rey Santos (Santos). While

waiting to be seated, Pedrito Alonzo (Pedrito) was introduced by

SPO4 Alonzo to Rances as his nephew and as the son of ex-Captain
Alonzo. SPO4 Alonzo then introduced him to Salamat. Pedrito and
his companions took their seats and started drinking at the table
across SPO4 Alonzos table. After some time, Pedrito stood up to
urinate at the back of the house. Santos passed a bag to Salamat,
and they followed Pedrito. Rances likewise followed them. A shot
rang out. Salamat was seen placing a gun inside the bag as he
hurriedly left. The wedding guests ran after Salamat. They saw him
and Rances board a vehicle being driven by Santos. Pedritos uncle,
Jose Alonzo, sought the help of SPO4 Alonzo to chase the culprits.
He refused and even disavowed any knowledge as to their identity.
Jose Alonzo filed a complaint for murder against Salamat,
Rances, Santos, SPO4 Alonzo and a certain Isidro Atienza. A
preliminary investigation1 was conducted by the Assistant
Provincial Prosecutor where Jose Alonzo and his four witnesses
testified. Upon review of the records of the case by the 3 rd Assistant
Provincial Prosecutor, it was recommended that Salamat be
charged with murder as principal, and Santos and Rances as
accessories. With regard to SPO4 Alonzo and Isidro Atienza, the
prosecutor found that no sufficient evidence was adduced to
establish their conspiracy with Salamat.2 Thereafter, under the
direction of the Officer-in-Charge,3 an Information4 was prepared,
charging Salamat as principal, and Rances and Santos as
accessories, for the murder of Pedrito. No bail was recommended.
The case was docketed as Criminal Case No. 4767-M-2003 with
Branch 12 of the Regional Trial Court of Malolos City, Bulacan,
under presiding judge Crisanto C. Concepcion. On December 17,
2003, Judge Concepcion issued an Order,5 where he stated:
The assassination of the victim has all the color of a planned
liquidation. Zoilo Salamat, not known in that place, appears to be a
hired killer with Rey Santos as the supplier of the death gun. SPO4
Alonzo appears to be the brain or mastermind, pointing Pedrito to
the assassin as the target of the planned killing. Jun Rances
appears to be the back-up of Salamat in executing and gunslaying.
A conspiracy clearly appears among them with the common design
to kill the victim. Their respective actions were concerted to attest
to that. Jun Rances and Rey Santos are not merely accessories-

after-the[-] fact, but as principals themselves who should be

charged as such along with gunman Zoilo Salamat and mastermind
SPO4 Eduardo Alonzo. This is very apparent from the facts on
record as borned [sic] out by the statements of witnesses given to
the police.
WHEREFORE, in the interest of justice that should be given the
victim in this case and prosecute all the persons against whom
probable cause exists as principals in this case of murder, the
Office of the Provincial Prosecutor of Bulacan is hereby directed to
amend the information, so as to include all the aforenamed persons
as accused in this case, all as principals, within five (5) days from
notice hereof.6
On January 5, 2004, SPO4 Alonzo filed his Motion for
Reconsideration7 to the Order, on the ground that the court had no
authority to review and reverse the resolution of the Office of the
Provincial Prosecutor or to find probable cause against a
respondent for the purpose of amending the Information. SPO4
Alonzo averred that the prosecutors resolution can only be
reviewed by the Department of Justice, by the Court of Appeals or
by the Supreme Court, when a case for certiorari is filed.
On January 12, 2004, SPO4 Alonzo filed an Urgent Motion for
Inhibitation [sic], 8 alleging that by issuing the aforementioned
Order, Judge Concepcion has shown his prejudice against him and
bias in favor of private complainant Jose Alonzo. He prayed that the
case be re-raffled to another judge.
On January 13, 2004, Judge Concepcion issued an
Order9 denying the Motion for Reconsideration and the Motion for
Inhibition. Judge Concepcion stated that SPO4 Alonzo had no
personality to file the said motions as he was not an accused in
that case. Respondent held that only the Office of the Provincial
Prosecutor could question the first Order.
On January 16, 2004, SPO4 Alonzo filed a verified affidavitcomplaint10 against Judge Concepcion for rendering the December
17, 2003 Order. Complainant averred that respondent x x x clearly
acted without any authority of law as the same clearly violated

Section 2, Article III of the 1987 constitution [sic] and Section 6,

Rule 112 of the Revised Rules of Criminal Procedure which only
authorizes him to determine if probable cause exist [sic] against
those accused impleaded in the information before issuing a
warrant of arrest against them. He accused respondent judge of: a)
gross ignorance of the law; b) violation of Section 2, Article 3 of the
1987 Constitution;11 c) abuse of authority under Section 6, Rule 112
of the Rules of Court; 12 d) knowingly rendering an unjust order; e)
conduct unbecoming of a judge; and f) oppression and partiality. 13
On February 26, 2004, respondent received the First
Indorsement14 from the Office of the Court Administrator (OCA),
requiring him to file his comment to the complaint within ten days
from receipt thereof. On March 4, 2004, respondent filed his
Comment.15 Respondent attached copies of the sworn statements
of the prosecution witnesses.16 He claimed that while evaluating the
records of the case, his curiosity was piqued as to why no bail was
recommended for the three accused. He noticed that the five
witnesses17 who testified during the preliminary investigation had
consistent accounts of the incidents leading to the death of Pedrito.
From these accounts, respondent concluded that SPO4 Alonzo and
all the accused conspired to kill Pedrito, thus the Office of the
Provincial Prosecutor erred when it merely charged Salamat as
principal, and Rances and Santos as accessories, while complainant
was exonerated. Respondent averred that [c]ourts speak thru order
issuances [sic].18 Hence, on December 17, 2003, he issued the
Order, directing the Office of the Provincial Prosecutor to amend the
Information to include complainant, Rances and Santos as principal
participants in the murder of Pedrito. Respondent stressed that he
bade the prosecution to amend the Information xxx without any
sanction even hinted, should it fail to do so. 19 After respondent
issued the Order, the prosecution stood pat on its position that
there was no compelling reason to disturb its original resolution or
to amend the Information.
The OCA recommended that the complaint be dismissed on the
ground that the Order and the acts complained of were done by
respondent in his judicial capacity and were not actuated by bad
faith, dishonesty or similar motive. In addition, the proper remedy
of the aggrieved party is to file a special civil action

for certiorari under Rule 65 of the Rules of Court, and not an

administrative complaint.
The Court cannot follow the recommendation of the OCA.
Respondent clearly erred when he rendered the assailed Order. The
rules set the proper procedure 20 for the investigation of complaints
and designate the prosecutor to conduct the preliminary
investigation.21 The function of a preliminary investigation is to
determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for
trial.22 It is through the conduct of a preliminary investigation that
the prosecutor determines the existence of a prima facie case that
would warrant the prosecution of a case. As a rule, courts cannot
interfere with the prosecutor's discretion and control of the criminal
prosecution.23 The reason for placing the criminal prosecution under
the direction and control of the fiscal is to prevent malicious or
unfounded prosecution by private persons. 24 However, while
prosecuting officers have the authority to prosecute persons shown
to be guilty of a crime,25 they have equally the legal duty not to
prosecute when after an investigation, the evidence adduced is not
sufficient to establish a prima facie case.26 Judges should not
unduly interfere with the exercise of the power to prosecute on the
part of fiscals.
It is not a sufficient excuse for respondent to aver that he did
not impose any sanction for non-compliance with his Order. In itself,
his Order does violence to the principle of separation of powers
enshrined in our Constitution. In a clash of views between the judge
who did not investigate and the prosecutor who did, or between the
fiscal and the offended party or the accused, that of the
prosecutor's should normally prevail.27 Thus, we held in People vs.
Pineda,28 viz.:
x x x A prosecuting attorney, by the nature of his office, is under no
compulsion to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments thereof,
or that the evidence at hand points to a different conclusion. This is
not to discount the possibility of the commission of abuses on the
part of the prosecutor. But we must have to recognize that a

prosecuting attorney should not be unduly compelled to work

against his conviction. In case of doubt, we should give him the
benefit thereof. A contrary rule may result in our courts being
unnecessarily swamped with unmeritorious cases. Worse still, a
criminal suspect's right to due process the sporting idea of fair play
may be transgressed. x x x
The impact of respondent Judge's orders is that his judgment is to
be substituted for that of the prosecutor's on the matter of what
crime is to be filed in court. The question of instituting a criminal
charge is one addressed to the sound discretion of the investigating
Fiscal. The information he lodges in court must have to be
supported by facts brought about by an inquiry made by him. It
stands to reason then to say that in a clash of views between the
judge who did not investigate and the fiscal who did, or between
the fiscal and the offended party or the defendant, those of the
Fiscal's should normally prevail. In this regard, he cannot ordinarily
be subject to dictation. We are not to be understood as saying that
criminal prosecution may not be blocked in exceptional cases. A
relief in equity may be availed of to stop a purported enforcement
of a criminal law where it is necessary (a) for the orderly
administration of justice; (b) to prevent the use of the strong arm of
the law in an oppressive and vindictive manner; (c) to avoid
multiplicity of actions; (d) to afford adequate protection to
constitutional rights; and (e) in proper cases, because the statute
relied upon is unconstitutional or was held invalid.
We understand respondents zeal in trying to uphold the ends of
justice. However, respondent overlooked the fact that there is a
remedy where a prosecutor errs in not charging a person in an
Information. The recourse is to appeal to the Secretary of
Justice.29 By ordering the prosecutor to include complainant, Rances
and Santos as principals in the Information, respondent arrogated
unto himself the executive power of supervision and control over
public prosecutors. His conduct is not only unbecoming of a judge;
more importantly, it transgresses our Constitution.
Yet, this is not all. Respondent judge also erred when he issued
warrants of arrest for Rances and Santos without bail. As the
Information has not yet been amended charging these two accused

as principals to the crime of murder, they are still entitled, as mere

accessories, to bail under Rule 114, Section 4 of the Revised Rules
of Criminal Procedure.30 The Court notes with approval that
respondent corrected this error by allowing Rances and Santos,
with the recommendation of the prosecution, to post bail.

In this special civil action for mandamus and prohibition with prayer
for a writ of preliminary injunction/restraining order, petitioner
seeks to enjoin herein public respondents from including the former
as an accused in Criminal Case No. 86-39 for multiple murder,
through a second amended information, and to restrain them from
prosecuting him.

For lack of evidence, respondent is exonerated of the other

charges brought against him.

The records disclose that on October 16, 1986, an information for

multiple murder was filed in the Regional Trial Court, Gingoog City,
against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo,
Eddie Torion, John Doe, Peter Doe and Richard Doe, for the deaths
on May 1, 1984 of Renato Bucag, his wife Melchora Bucag, and
their son Renato Bucag II. Venue was, however, transferred to
Cagayan de Oro City per Administrative Matter No. 87-2-244.

IN VIEW WHEREOF, respondent Judge Crisanto C. Concepcion

is found liable for conduct unbecoming of a judge and is
REPRIMANDED. He is sternly warned that a repetition of the same
or similar acts in the future shall be dealt with more severely. Let a
copy of this resolution be entered upon his record.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 96080

April 19, 1991

ATTY. MIGUEL P. PADERANGA petitioner,

vs.
HON. FRANKLIN M. DRILON, HON. SILVESTRE H. BELLO III,
ATTY. HENRICK F. GINGOYON, HELEN B. CANOY and REBECCA
B. TAN, respondent
Concordio C. Diel, Constantino G. Jaraula for petitioner.
Benjamin G. Guimong for private respondents.

REGALADO, J.: p

Only Felipe Galarion was tried and found guilty as charged. The rest
of the accused remained at large. Felipe Galarion, however,
escaped from detention and has not been apprehended since then.
In an amended information filed on October 6, 1988, Felizardo
Roxas, alias "Ely Roxas," "Fely Roxas" and "Lolong Roxas," was
included as a co-accused. Roxas retained petitioner Paderanga as
his counsel.
As counsel for Roxas, petitioner filed, among others, an Omnibus
Motion to dismiss, to Quash the Warrant of Arrest and to Nullify the
Arraignment on October 14, 1988. The trial court in an order dated
January 9, 1989, denied this omnibus motion but directed the City
Prosecutor "to conduct another preliminary investigation or
reinvestigation in order to grant the accused all the opportunity to
adduce whatever evidence he has in support of his defense."
In the course of the preliminary investigation, through a signed
affidavit, Felizardo Roxas implicated herein petitioner in the
commission of the crime charged.
The City Prosecutor of Cagayan de Oro City inhibited himself from
further conducting the preliminary investigation against petitioner
at the instance of the latter's counsel, per his resolution dated July
7, 1989. In his first indorsement to the Department of Justice, dated
July 24, 1989, said city prosecutor requested the Department of
Justice to designate a state prosecutor to continue the preliminary
investigation against herein petitioner.

In a resolution dated September 6, 1989,1 respondent State

Prosecutor Henrick F. Gingoyon, who was designated to continue
with the conduct of the preliminary investigation against petitioner,
directed the amendment of the previously amended information to
include and implead herein petitioner as one of the accused
therein. Petitioner moved for reconsideration, 2 contending that the
preliminary investigation was not yet completed when said
resolution was promulgated, and that he was deprived of his right
to present a corresponding counter-affidavit and additional
evidence crucial to the determination of his alleged "linkage" to the
crime charged. The motion was, however, denied by respondent
Gingoyon in his order dated January 29, 1990.3
From the aforesaid resolution and order, petitioner filed a Petition
for Review4 with the Department of Justice. Thereafter, he
submitted a Supplemental Petition with Memorandum,5 and then a
Supplemental Memorandum with Additional
Exculpatory/Exonerating Evidence Annexed,6 attaching thereto an
affidavit of Roxas dated June 20, 1990 and purporting to be a
retraction of his affidavit of March 30, 1990 wherein he implicated
herein petitioner.
On August 10, 1990, the Department of Justice, through respondent
Undersecretary Silvestre H. Bello III, issued Resolution No.
6487 dismissing the said petition for review. His motion for
reconsideration having been likewise denied, petitioner then flied
the instant petition for mandamus and prohibition.
Petitioner raises two basic issues, namely: (1) that the preliminary
investigation as to him was not complete; and (2) that there exists
no prima facie evidence or probable cause to justify his inclusion in
the second amended information.
Preliminary investigation is generally inquisitorial, and it is often the
only means of discovering the persons who may be reasonably
charged with a crime, to enable the fiscal to prepare his complaint
or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the
accused is guilty thereof, and it does not place the person against
whom it is taken in jeopardy.8
The institution of a criminal action depends upon the sound
discretion of the fiscal. He has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in

court.9 Hence, the general rule is that an injunction will not be

granted to restrain a criminal prosecution. 10 The case of Brocka, et
al. vs. Enrile, et al.11 cites several exceptions to the rule, to wit:
a. To afford adequate protection to the constitutional rights
of the accused;
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions;
c. When there is a pre-judicial question which is sub judice;
d. When the acts of the officer are without or in excess of
authority;
e. Where the prosecution is under an invalid law, ordinance
or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by
the lust for vengeance; and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
A careful analysis of the circumstances obtaining in the present
case, however, will readily show that the same does not fall under
any of the aforesaid exceptions. Hence, the petition at bar must be
dismissed.
1. Petitioner avers that he was deprived of a full preliminary
investigation by reason of the fact that at the time the resolution of
September 6, 1989 was issued, there were still several incidents
pending resolution such as the validity of the testimonies and
affidavits of Felizardo Roxas and Rogelio Hanopol as bases for
preliminary investigation, the polygraph test of Roxas which he
failed, and the clarificatory questions which were supposed to be

propounded by petitioner's counsel to Roxas and Hanopol.

Petitioner likwise claims that he was deprived of the opportunity to
file his counter-affidavit to the subpoena of April 25, 1989. These
contentions are without merit.
Firstly, it will be noted that petitioner had already filed his counteraffidavit, pursuant to the subpoena issued to him on April 17, 1989,
wherein he controverted the charge against him and dismissed it as
a malicious design of his political opponents and enemies to link
him to the crime. We hold that this is sufficient compliance with the
procedural requirement of the Rules of Court, specifically Section
3(b) of Rule 112 thereof. Besides, petitioner failed to show that the
subpoena issued on April 25, 1989 involved a separate complaint
charging an offense different and distinct from that charged in the
complaint attached to the first subpoena issued to him earlier.
Secondly, the veracity and credibility of the witnesses and their
testimonies are matters of defense best addressed to the trial court
for its appreciation and evaluation.
Thirdly, the right of petitioner to ask clarificatory questions is not
absolute.1wphi1 The fiscal has the discretion to determine
whether or not he will propound these questions to the parties or
witnesses concerned. As clearly provided for under Section 3(e),
Rule 112 of the Rules of Court.:
(e) If the investigating officer believes that there are matters
to be clarified, he may set a hearing to propound
clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to
be present but without the right to examine or crossexamine. If the parties so desire, they may submit questions
to the to the investigating officer which the latter may
propound to the parties or witnesses concerned.
Lastly, it has been held that "the proper forum before which
absence of preliminary investigation should be ventilated is the
Court of First Instance of a preliminary investigation does not go to
the jurisdiction of the court but merely to the regularity of the
proceedings. It could even be waived. Indeed, it is frequently
waived. These are matters to be inquired into by the trail court not
an appellate court."12
2. Petitioner further submits that there is no prima facie evidence,
or probable cause, or sufficient justification to hold him to a tedious

and prolonged public trial, on the basis of the following grounds:

the questioned resolution of respondent Gingoyon is full of factual
misrepresentations or misapprehensions; respondent's reliance on
the decision of the Regional Trial Court against Felipe Galarion
suffers from constitutional and procedural infirmities considering
that petitioner was not a party thereto, much less was he given any
opportunity to comment on or rebut the prosecution evidence;
reliance on Rogelio Hanopol's testimony is likewise "contemptible,"
it being merely hearsay in addition to the fact that petitioner was
never given the opportunity to cross-examine Hanopol at the time
he testified in court; and the affidavit of Roxas dated March 30,
1989, which is the only evidence against petitioner, has been
rendered nugatory by his affidavit of retraction dated June 20,
1990.
A preliminary investigation is defined as an inquiry or proceeding
for the purpose of determining whether there is sufficient ground to
engender a well founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is
probably guilty thereof, and should be held for trial.13 The quantum
of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief as to the fact
of the commission of a crime and the respondent's probable guilt
thereof. A preliminary investigation is not the occasion for the full
and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender a wen
grounded belief that an offense has been committed and that the
accused is probably guilty thereof. 14 We are in accord with the state
prosecutor's findings in the case at bar that there exists prima
facie evidence of petitioner's involvement in the commission of the
crime, it being sufficiently supported by the evidence presented
and the facts obtaining therein.
Likewise devoid of cogency is petitioner's argument that the
testimonies of Galarion and Hanopol are inadmissible as to him
since he was not granted the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses which the
complainant may present. Section 3, Rule 112 of the Rules of Court
expressly provides that the respondent shall only have the right to
submit a counter-affidavit, to examine all other evidence submitted
by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to
be afforded an opportunity to be present but without the right to

examine or cross-examine. Thus, even if petitioner was not given

the opportunity to cross-examine Galarion and Hanopol at the time
they were presented to testify during the separate trial of the case
against Galarion and Roxas, he cannot assert any legal right to
cross-examine them at the preliminary investigation precisely
because such right was never available to him. The admissibility or
inadmissibility of said testimonies should be ventilated before the
trial court during the trial proper and not in the preliminary
investigation.
Furthermore, the technical rules on evidence are not binding on the
fiscal who has jurisdiction and control over the conduct of a
preliminary investigation. If by its very nature a preliminary
investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary
rules. In addition, considering that under Section 8, Rule 112 of the
Rules of Court, the record of the preliminary investigation does not
form part of the record of the case in the Regional Trial Court, then
the testimonies of Galarion and Hanopol may not be admitted by
the trial court if not presented in evidence by the prosecuting fiscal.
And, even if the prosecution does present such testimonies,
petitioner can always object thereto and the trial court can rule on
the admissibility thereof; or the petitioner can, during the trial,
petition said court to compel the presentation of Galarion and
Hanopol for purposes of cross-examination.
WHEREFORE, the instant petition is hereby DISMISSED for lack of
merit.

DEPARTMENT OF JUSTICE, HON. RAUL

M. GONZALEZ, as Secretary of the
Department of Justice, NATIONAL
CAPITAL REGION - NATIONAL BUREAU
OF
INVESTIGATION,
PANEL
OF
INVESTIGATING
PROSECUTORS
created under Department of Justice
Department Order No. 165 dated 08
March 2006, LEO B. DACERA III, as
Chairman
of
the
Panel
of
Investigating
Prosecutors,
and
DEANA P. PEREZ, MA. EMILIA L.
VICTORIO, EDEN S. WAKAY-VALDES
and PETER L. ONG, as Members of the
Panel of Investigating Prosecutors,
the EVALUATING PANEL created under
Department of Justice Department
Order No. 90 dated 08 February
Promulgated:
2006, JOSELITA C. MENDOZA as
Chairman of the Evaluating Panel, January 29, 2008
and MERBA WAGA, RUEL LASALA and
ARNOLD ROSALES, as Members of the
Evaluating Panel,
Respondents.
x------------------------------------------------- - -x
DECISION

SO ORDERED.
SECOND DIVISION
MA.
ROSARIO
SANTOS-CONCIO,
MA. SOCORRO V. VIDANES, MARILOU
ALMADEN, CIPRIANO LUSPO, MORLY
STEWART NUEVA, HAROLD JAMES
NUEVA,
NORBERT
VIDANES,
FRANCISCO RIVERA, MEL FELICIANO,
and JEAN OWEN ERCIA,
Petitioners,
- versus -

G.R. No. 175057

Present:

CARPIO MORALES, J.:

On challenge via petition for review on certiorari are the Court of

Appeals May 24, 2006 Decision and October 10, 2006

QUISUMBING, J., Chairperson,
Resolution[1] in CA-G.R. SP No. 93763 dismissing herein petitioners
CARPIO,
CARPIO MORALES,
petition for certiorari and prohibition that sought to (i) annul
TINGA, and
respondent Department of Justice (DOJ) Department Order Nos.
VELASCO, JR., JJ.
90[2] and 165[3] dated February 8, 2006 and March 8, 2006,
respectively, and all orders, proceedings and issuances emanating

therefrom, and (ii) prohibit the DOJ from further conducting a

fact-finding team[5] to investigate the circumstances surrounding

preliminary investigation in what has been dubbed as the Ultra

the

Stampede case.

on February 7, 2006.

In the days leading to February 4, 2006, people started to gather in

By Department Order No. 90 of February 8, 2006, respondent DOJ

throngs at the Philsports Arena (formerly Ultra) in Pasig City, the

Secretary Raul Gonzalez (Gonzalez) constituted a Panel (Evaluating

publicized site of the first anniversary episode of Wowowee, a

Panel)[7] to evaluate the DILG Report and determine whether there

noontime game show aired by ABS-CBN Broadcasting Corporation

is sufficient basis to proceed with the conduct of a preliminary

(ABS-CBN). With high hopes of winning the bonanza, hundreds

investigation on the basis of the documents submitted.

stampede. The

team

submitted

its

report[6] to

the

DOJ

queued for days and nights near the venue to assure themselves of
securing tickets for the show. Little did they know that in taking a

The Evaluating Panel later submitted to Gonzalez a February 20,

shot at instant fortune, a number of them would pay the ultimate

2006 Report[8] concurring with the DILG Report but concluding that

wager and place their lives at stake, all in the name of bagging the

there was no sufficient basis to proceed with the conduct of a

prizes in store.

preliminary investigation in view of the following considerations:

Came the early morning of February 4, 2006 with thousands more

swarming to the venue. Hours before the show and minutes after
the people were allowed entry through two entry points at six
oclock in the morning, the obstinate crowd along Capt. Javier
Street jostled even more just to get close to the lower rate
pedestrian gate. The mad rush of the unruly mob generated much
force, triggering the horde to surge forward with such momentum
that led others to stumble and get trampled upon by the
approaching waves of people right after the gate opened. This fatal
stampede claimed 71 lives, 69 of whom were women, and left
hundreds

wounded[4] which

necessitated

emergency

medical

support and prompted the cancellation of the shows episode.

The Department of Interior and Local Government (DILG), through
then Secretary Angelo Reyes, immediately created an inter-agency

a) No formal complaint/s had been filed by any of the

victims and/or their relatives, or any law
enforcement agency authorized to file a
complaint, pursuant to Rule 110 of the Revised
Rules of Criminal Procedure;
b) While it was mentioned in the Fact-Finding Report
that there were 74 deaths and 687 injuries, no
documents were submitted to prove the
same, e.g. death certificates, autopsy reports,
medical certificates, etc.;
c) The Fact-Finding Report did not indicate the names
of the persons involved and their specific
participation in the Ultra Incident;
d) Most of the victims did not mention, in their sworn
statements, the names of the persons whom
they alleged to be responsible for the Ultra
Incident.[9]

Respondent

National

Bureau

of

Investigation-National

Capital

2006 a

Resolution[17] granting

the

issuance

of

temporary

Region (NBI-NCR), acting on the Evaluating Panels referral of the

restraining order,[18] conducted on April 24, 2006 a hearing on the

case to it for further investigation, in turn submitted to the DOJ an

application for a writ of preliminary injunction, and subsequently

investigation report, by a March 8, 2006 transmittal letter (NBI-NCR

promulgated the assailed two issuances.

Report

[10]

), with supporting documents recommending the conduct

of preliminary investigation for Reckless Imprudence resulting in

In the meantime, the Investigating Panel, by Resolution [19] of

Injuries [11] against

October 9, 2006, found probable cause to indict the respondents-

Multiple

Homicide

and

Multiple

Physical

petitioners and seven others[12] as respondents.

herein petitioners for Reckless Imprudence resulting in Multiple

Homicide and Physical Injuries, and recommended the conduct of a

Acting on the recommendation of the NBI-NCR, Gonzalez, by

separate preliminary investigation against certain public officials.

Department Order No. 165 of March 8, 2006, designated a panel of

[20]

state prosecutors[13] (Investigating Panel) to conduct the preliminary

2006 Resolution, filed on October 30, 2006 with abundance of

investigation of the case, docketed as I.S. No. 2006-291, NCR-NBI v.

caution, is pending resolution, and in the present petition they

Santos-Concio, et al., and if warranted by the evidence, to file the

additionally pray for its annulment.

Petitioners Motion for Reconsideration[21] of the said October 9,

appropriate information and prosecute the same before the

appropriate court. The following day or on March 9, 2006, the
Investigating

Panel

issued

subpoenas

[14]

directing

the

therein

respondents to appear at the preliminary investigation set on

In asserting their right to due process, specifically to a fair and

impartial preliminary investigation, petitioners impute reversible
errors in the assailed issuances, arguing that:

March 20 and 27, 2006.

At

the

initial

preliminary

investigation,

petitioners

sought

clarification and orally moved for the inhibition, disqualification or

desistance

of

the

Investigating

Panel

from

conducting

the

investigation.[15] The Investigating Panel did not formally resolve the

motion, however, as petitioners manifested their reservation to file
an appropriate motion on the next hearing scheduled on March 27,
2006, without prejudice to other remedies.[16]
On March 23, 2006, petitioners filed a petition for certiorari and
prohibition with the Court of Appeals which issued on March 27,

Respondents have already prejudged the case, as

shown by the public declarations of Respondent
Secretary and the Chief Executive, and have,
therefore, lost their impartiality to conduct
preliminary investigation.
Respondents have already prejudged the case as
shown by the indecent haste by which the
proceedings were conducted.
The alleged complaint-affidavits
Petitioners were not under oath.

filed

against

The supposed complaint-affidavits filed against

Petitioners failed to state the acts or omissions
constituting the crime.

petitioners trace the basis for the formation of the five-prosecutor

Investigating Panel to the NBI-NCR Report which was spawned by
the supposed criminal investigation[26] of the Evaluating Panel the

Although Respondents may have the power to

conduct
criminal
investigation or preliminary investigation,
Respondents do not have
the
power
to
conduct both in the same case.[22](Emphasis and
underscoring supplied)

members of which included two, albeit different, prosecutors. While

petitioners do not assail the constitution of the Evaluating Panel,
[27]

they claim that it did not just evaluate the DILG Report but went

further

and

conducted

its

own

criminal

investigation

by

interviewing witnesses, conducting an ocular inspection, and

The issues shall, for logical reasons, be resolved in reverse

perusing the evidence.

sequence.
Petitioners position does not lie. Cojuangco was borne out of a
different factual milieu.
On the Investigatory Power of the DOJ
In Cojuangco, this Court prohibited the Presidential Commission on
In the assailed Decision, the appellate court ruled that the

Good

Department Orders were issued within the scope of authority of the

investigation of the complaints for graft and corruption since it had

DOJ

earlier

1987

Secretary
[23]

pursuant

to

the

Administrative

Code

of

bestowing general investigatory powers upon the DOJ.

Government
found

(PCGG)

a prima

from

conducting

facie case basis

of

its

preliminary
issuance

of

sequestration/freeze orders and the filing of an ill-gotten wealth

case involving the same transactions. The Court therein stated that

Petitioners concede that the DOJ has the power to conduct

it is difficult to imagine how in the conduct of such preliminary

both criminal investigation and preliminary investigation but not in

investigation the PCGG could even make a turn about and take a

their case,

[24]

they invoking Cojuangco, Jr. v. PCGG.

[25]

They posit

position contradictory to its earlier findings of a prima facie case,

that in Cojuangco, the reshuffling of personnel was not considered

and

by this Court which ruled that the entity which conducted the

the criminal investigation,

so

held

that

the

law

enforcer

who

conducted

criminal investigation is disqualified from conducting a preliminary

investigation in the same case. They add that the DOJ cannot
circumvent the prohibition by simply creating a panel to conduct
the first, and another to conduct the second.
In insisting on the arbitrariness of the two Department Orders
which, so they claim, paved the way for the DOJs dual role,

gathered the evidence and thereafter filed the complaint for the
purpose of preliminary investigation cannot be allowed to conduct
the preliminary investigation of his own complaint. [28] The present
case deviates from Cojuangco.

The measures taken by the Evaluating Panel do not partake of a

criminal investigation, they having been done in aid of evaluation in
order to relate the incidents to their proper context. Petitioners own
video

footage

of

the

ocular

inspection

discloses

this

purpose. Evaluation for purposes of determining whether there is

sufficient basis to proceed with the conduct of a preliminary
investigation entails not only reading the report or documents in
isolation, but also deems to include resorting to reasonably
necessary means such as ocular inspection and physical evidence
examination. For, ultimately, any conclusion on such sufficiency or
insufficiency needs to rest on some basis or justification.

On the Alleged Defects of the Complaint

On the two succeeding issues, petitioners fault the appellate courts
dismissal of their petition despite, so they claim, respondents
commission of grave abuse of discretion in proceeding with the
preliminary investigation given the fatal defects in the supposed
complaint.
Petitioners point out that they cannot be compelled to submit their
counter-affidavits because the NBI-NCR Report, which they advert
to as the complaint-affidavit, was not under oath. While they admit

Had the Evaluating Panel carried out measures partaking of a

that there were affidavits attached to the NBI-NCR Report, the

criminal investigation, it would have gathered the documents that it

same, they claim, were not executed by the NBI-NCR as the

enumerated

purported complainant, leaving them as orphaned supporting

as

lacking. Notatu

dignum is

the

fact

that

the Evaluating Panel was dissolved functus oficio upon rendering its

affidavits without a sworn complaint-affidavit to support.

report. It was the NBI, a constituent unit [29] of the DOJ, which
conducted the criminal investigation. It is thus foolhardy to inhibit
the entire DOJ from conducting a preliminary investigation on the
sheer ground that the DOJs constituent unit conducted the criminal

These affidavits, petitioners further point out, nonetheless do not

qualify as a complaint[30] within the scope of Rule 110 of the Rules
of Court as the allegations therein are insufficient to initiate a
preliminary investigation, there being no statement of specific and

investigation.

individual acts or omissions constituting reckless imprudence. They

Moreover, the improbability of the DOJ contradicting its prior finding

bewail the assumptions or conclusions of law in the NBI-NCR Report

is hardly appreciable. It bears recalling that the Evaluating Panel

as well as the bare narrations in the affidavits that lack any

found no sufficient basis to proceed with the conduct of a

imputation relating to them as the persons allegedly responsible.

preliminary investigation. Since the Evaluating Panels report was

not adverse to petitioners, prejudgment may not be attributed
vicariously,

so

to

speak,

to

the

rest

of

the

state

prosecutors. Partiality, if any obtains in this case, in fact weighs

heavily in favor of petitioners.

IN FINE, petitioners contend that absent any act or omission

ascribed to them, it is unreasonable to expect them to confirm,
deny or explain their side.

complaint

for

purposes

of conducting

preliminary

As clearly worded, the complaint is not entirely the affidavit of the

investigation differs from a complaint for purposes of instituting a

complainant, for the affidavit is treated as a component of the

criminal prosecution. Confusion apparently springs because two

complaint. The phraseology of the above-quoted rule recognizes

complementary procedures adopt the usage of the same word, for

that all necessary allegations need not be contained in a single

lack of a better or alternative term, to refer essentially to a written

document. It is unlike a criminal complaint or information where the

charge. There should be no confusion about the objectives,

averments must be contained in one document charging only one

however, since, as intimated during the hearing before the

offense, non-compliance with which renders it vulnerable to a

appellate court, preliminary investigation is conducted precisely to

motion to quash.[34]

elicit further facts or evidence.[31] Being generally inquisitorial, the

preliminary investigation stage is often the only means of

The Court is not unaware of the practice of incorporating all

discovering the persons who may be reasonably charged with a

allegations in one document denominated as complaint-affidavit. It

crime, to enable the preparation of a complaint or information. [32]

does not pronounce strict adherence to only one approach,

however, for there are cases where the extent of ones personal

Consider the following pertinent provision of Rule 112 of the

Revised Rules on Criminal Procedure:

knowledge may not cover the entire gamut of details material to

the alleged offense. The private offended party or relative of the
deceased may not even have witnessed the fatality, [35] in which

SEC. 3. Procedure. The preliminary investigation

shall be conducted in the following manner:

case the peace officer or law enforcer has to rely chiefly on

(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.
[33]
(Emphasis and underscoring supplied)

attachment of a referral or transmittal letter similar to that of the

affidavits of witnesses. The Rules do not in fact preclude the

NBI-NCR. Thus, in Soriano v. Casanova,[36] the Court held:
A close scrutiny of the letters transmitted by the BSP
and
PDIC
to
the
DOJ
shows
that
these were not intended
to
be the complaint
envisioned under the Rules. It may be clearly
inferred from the tenor of the letters that the officers
merely intended to transmit the affidavits of the
bank employees to the DOJ. Nowhere in the
transmittal letters is there any averment on the part
of the BSP and PDIC officers of personal knowledge
of the events and transactions constitutive of the
criminal violations alleged to have been made by the
accused. In fact, the letters clearly stated that what
the OSI of the BSP and the LIS of the PDIC did was to
respectfully transmit to the DOJ for preliminary

investigation the affidavits and personal knowledge

of the acts of the petitioner. These affidavits were
subscribed under oath by the witnesses who
executed them before a notary public. Since
the affidavits, not the letters transmitting
them, were intended to initiate the preliminary
investigation, we hold that Section 3(a), Rule 112 of
the Rules of Court was substantially complied with.

In the present case, there is no doubt about the existence of

affidavits. The

appellate

court

found

that

certain

affidavits were already filed by some of the victims,

complaint[40]

a factual

finding to which this Court, by rule, generally defers.

A complaint for purposes of conducting preliminary investigation is

Citing the ruling of this Court in Ebarle v. Sucaldito,

the Court of Appeals correctly held that a complaint
for purposes of preliminary investigation by the fiscal
need not be filed by the offended party. The rule has
been that, unless the offense subject thereof is
one that cannot be prosecuted de oficio, the
same may be filed, for preliminary investigation
purposes, by any competent person. The crime of
estafa is a public crime which can be initiated by any
competent person. The witnesses who executed the
affidavits based on their personal knowledge of the
acts committed by the petitioner fall within the
purview of any competent person who may institute
the complaint for a public crime. x x x[37] (Emphasis
and underscoring supplied)

not required to exhibit the attending structure of a complaint or

information laid down in Rule 110 (Prosecution of Offenses) which
already speaks of the People of the Philippines as a party,[41] an
accused rather than a respondent, [42] and a court that shall
pronounce judgment.[43] If a complaint or information filed in court
does not comply with a set of constitutive averments, it is
vulnerable to a motion to quash.[44] The filing of a motion to dismiss
in lieu of a counter-affidavit is proscribed by the rule on preliminary
investigation, however.[45] The investigating officer is allowed to
dismiss outright the complaint only if it is not sufficient in form and
substance or no ground to continue with the investigation[46] is

A preliminary investigation can thus validly proceed on the basis of

an

affidavit

of any competent

person, without

the

referral

document, like the NBI-NCR Report, having been sworn to by the

law enforcer as the nominal complainant. To require otherwise is a
needless

exercise. The

cited

case

of Oporto,

Jr.

v.

Judge

Monserate[38] does not appear to dent this proposition. After all,

what is required is to reduce the evidence into affidavits, for
while reports and even raw information may justify the initiation of
an investigation, the preliminary investigation stage can be held
only after sufficient evidence has been gathered and evaluated
which may warrant the eventual prosecution of the case in court. [39]

appreciated.
The investigating fiscal, to be sure, has discretion to
determine the specificity and adequacy of averments
of the offense
charged. He may dismiss the
complaint forthwith if he finds it to beinsufficient in
form or substance or if he otherwise finds no ground to
continue with the inquiry, or proceed with the
investigation if the complaint is, in his view, in due and
proper form. It certainly is not his duty to require a
more particular statement of the allegations of the
complaint merely upon the respondents motion, and
specially where after an analysis of the complaint and
its supporting statements he finds it sufficiently
definite to apprise the respondents of the offenses
which they are charged. Moreover, the procedural
device of a bill of particulars, as the Solicitor General
points out, appears to have reference to informations
or criminal complaints filed in a competent court upon

which the accused are arraigned and required to

plead, and strictly speaking has no application to
complaints initiating a preliminary investigation which
cannot result in any finding of guilt, but only of
probable cause.[47] (Italics and ellipses in the original
omitted; underscoring supplied)

Petitioners claims of vague allegations or insufficient imputations

are thus matters that can be properly raised in their counteraffidavits to negate or belie the existence of probable cause.

discernible from the way by which talk

shows nila being conducted on people who talk
about liabilities of others.
The reason for this incident was the
program. If there was no program, there
would have been no stampede. There would
have been no people. There would have been
no attempt by people to queue there for days
and rush for the nearest entry point.
March 20, 2006: Ill bet everything I have that
they are responsible at least on the civil
aspect.[49] (Emphasis in the original)

On the Claim of Bias and Prejudgment

Continuing, petitioners point out that long before the conclusion of
On the remaining issues, petitioners charge respondents to have

any investigation, Gonzalez already ruled out the possibility that

lost the impartiality to conduct the preliminary investigation since

some other cause or causes led to the tragedy or that someone else

they had prejudged the case, in support of which they cite the

or perhaps none should be made criminally liable; and that Gonzalez

indecent haste in the conduct of the proceedings. Thus, they

had left the preliminary investigation to a mere determination of

mention the conduct of the criminal investigation within 24 working

who within ABS-CBN are the programs organizers who should be

days[48] and the issuance of subpoenas immediately following the

criminally prosecuted.

creation of the Investigating Panel.

Petitioners even cite President Arroyos declaration in a radio

Petitioners likewise cite the following public declarations made by

interview on February 14, 2006 that [y]ang stampede na iyan, Jo,

Gonzalez as expressing his conclusions that a crime had been

ay isang trahedya na pinapakita yung kakulangan at pagkapabaya

committed, that the show was the proximate cause, and that the

nagpabaya ng organisasyon na nag-organize nito.

shows organizers are guilty thereof:

To petitioners, the declarations admittedly[50] made by Gonzalez
February 6, 2006: [ ] should have anticipated it
because one week na iyan e. The crowds
started gathering since one week before. This
is simply negligence x x x on the part of
the organizers.
February 14, 2006: I think ABS-CBN is trying to
minimize its own responsibility and its

tainted the entire DOJ, including the Evaluating and Investigating

Panels, since the Department is subject to the direct control and
supervision of Gonzalez in his capacity as DOJ Secretary who, in
turn, is an alter ego of the President.

Petitioners thus fault the appellate court in not finding grave abuse

as the paramount and constant consideration, [55] with particular

of discretion on the part of the Investigating Panel members who

regard of the circumstances peculiar to each case.

refused to inhibit themselves from conducting the preliminary

The presumption of regularity[56] includes the public officers official

investigation despite the undeniable bias and partiality publicly

actuations

displayed by their superiors.

[51]

is the bias of the entire DOJ. [52] They thus conclude that the DOJ, as
an institution, publicly adjudged their guilt based on a prenotion

of

supposed

all

phases

of

work. [57] Consistent

presumption,

Pursuing, petitioners posit that the bias of the DOJ Secretary

determined

in

facts,

and

urge

that

the

Investigating Panel and the entire DOJ for that matter should inhibit
from presiding and deciding over such preliminary investigation
because they, as quasi-judicial officers, do not possess the cold
neutrality of an impartial judge.[53]
Responding to the claim of prejudgment, respondents maintain that
the above-cited statements of Gonzalez and the President merely
indicate that the incident is of such nature and magnitude as to
warrant a natural inference that it would not have happened in the
ordinary course of things and that any reasonable mind would
conclude that there is a causal connection between the shows
preparations and the resultant deaths and injuries.
Petitioners fears are speculatory.
Speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious
performance of functions.[54] For ones prompt dispatch may be
anothers undue haste. The orderly administration of justice remains

it

with

such
was

incumbent upon petitionersto present contradictory evidence other

than a
mere tallying of days or numerical calculation. [58] This, petitioners
failed to discharge. The swift completion of the Investigating Panels
initial task cannot be relegated as shoddy or shady without
discounting the presumably regular performance of not just one but
five state prosecutors.
As for petitioners claim of undue haste indicating bias, proof
thereof is wanting. The pace of the proceedings is anything but a
matter of acceleration. Without any objection from the parties,
respondents even accorded petitioners a preliminary investigation
even when it was not required since the case involves an alleged
offense where the penalty prescribed by law is below Four Years,
Two Months and One Day.[59]
Neither is there proof showing that Gonzalez exerted undue
pressure on his subordinates to tailor their decision with his public
declarations and adhere to a pre-determined result.The Evaluating
Panel in fact even found no sufficient basis, it bears emphatic
reiteration, to

proceed

with

the

conduct

of

preliminary

investigation, and one member of the Investigating Panel even

dissented to its October 9, 2006 Resolution.

the records of the preliminary investigation. There have been, as

the appellate court points out, no finding to speak of when the
To follow petitioners theory of institutional bias would logically

petition was filed, much less one that is subject to judicial review

mean that even the NBI had prejudged the case in conducting a

due to grave abuse.[64] At that incipient stage, records were wanting

criminal investigation since it is a constituent agency of the

if not nil since the Investigating Panel had not yet resolved any

DOJ. And if the theory is extended to the Presidents declaration,

matter brought before it, save for the issuance of subpoenas. The

there would be no more arm of the government credible enough to

Court

conduct a criminal investigation and a preliminary investigation.

court in dismissing

thus

finds no reversible error on the part of theappellate

petitioners petition for certiorari and prohibition and in refraining

On petitioners citation of Ladlad v. Velasco[60] where a public

from reviewing the merits of the case until a ripe and appropriate

declaration by Gonzalez was found to evince a determination to file

case is presented. Otherwise, court intervention would have been

the Information even in the absence of probable cause,[61] their

only pre-emptive and piecemeal.

attention is drawn to the following ruling of this Court in Roberts, Jr.

v. Court of Appeals:[62]
Ordinarily, the determination of probable cause is not
lodged with this Court. Its duty in an appropriate case
is confined to the issue of whether the executive or
judicial determination, as the case may be, of
probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion
amounting to want of jurisdiction. This is consistent
with the general rule that criminal prosecution may
not be restrained or stayed by injunction, preliminary
or final. There are, however, exceptions to this rule x
x x enumerated in Brocka vs. Enrile (192 SCRA 183,
188-189 [1990]) x x x. In these exceptional cases, this
Court may ultimately resolve the existence or nonexistence of probable cause by examining the records
of the preliminary investigation x x x.[63] (Emphasis
and underscoring supplied)

Oddly enough, petitioners eventually concede that they are

not asking for a reversal of a ruling on probable cause.[65]
A word on the utilization by petitioners of the video footages
provided by ABS-CBN. While petitioners deny wishing or causing
respondents to be biased and impartial, [66] they admit[67] that the
media, ABS-CBN included, interviewed Gonzalez in order to elicit
his opinion on a matter that ABS-CBN knew was pending
investigation and involving a number of its own staff. Gonzalezs
actuations may leave much to be desired; petitioners are not,
however, totally spotless as circumstances tend to show that they
were asking for or fishing from him something that could later be
used against him to favor their cause.

Even assuming arguendo that petitioners case falls under the

A FINAL WORD. The Court takes this occasion to echo its disposition

exceptions enumerated in Brocka, any resolution on the existence

in Cruz v. Salva[68] where it censured a fiscal for inexcusably

or lack of probable cause or, specifically, any conclusion on the

allowing undue publicity in the conduct of preliminary investigation

issue of prejudgment as elucidated in Ladlad, is made to depend on

and appreciated the press for wisely declining an unusual probing

privilege. Agents of the law ought to recognize the buoys and

bounds of prudence in discharging what they may deem as an
earnest effort to herald the governments endeavor in solving a
case.

WHEREFORE, the petition is DENIED.

Costs against petitioners.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-53373 June 30, 1987
MARIO FL. CRESPO, petitioner,
vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT
CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE
PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR
GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a
motion to dismiss a criminal case filed by the Provincial Fiscal upon
instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on
the arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the

approval of the Provincial Fiscal filed an information for estafa
against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City
which was docketed as Criminal Case No. CCCIX-52 (Quezon)
'77.1 When the case was set for arraigment the accused filed a
motion to defer arraignment on the ground that there was a
pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the
information. In an order of August 1, 1977, the presiding judge, His
Honor, Leodegario L. Mogul, denied the motion. 2 A motion for
reconsideration of the order was denied in the order of August 5,
1977 but the arraignment was deferred to August 18, 1977 to
afford nine for petitioner to elevate the matter to the appellate
court. 3
A petition for certiorari and prohibition with prayer for a preliminary
writ of injunction was filed by the accused in the Court of Appeals
that was docketed as CA-G.R. SP No. 06978. 4 In an order of August
17, 1977 the Court of Appeals restrained Judge Mogul from
proceeding with the arraignment of the accused until further orders
of the Court. 5 In a comment that was filed by the Solicitor General
he recommended that the petition be given due course. 6 On May
15, 1978 a decision was rendered by the Court of Appeals granting
the writ and perpetually restraining the judge from enforcing his
threat to compel the arraignment of the accused in the case until
the Department of Justice shall have finally resolved the petition for
review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino
Macaraig, Jr., resolving the petition for review reversed the
resolution of the Office of the Provincial Fiscal and directed the
fiscal to move for immediate dismissal of the information filed
against the accused. 8 A motion to dismiss for insufficiency of
evidence was filed by the Provincial Fiscal dated April 10, 1978 with
the trial court, 9 attaching thereto a copy of the letter of
Undersecretary Macaraig, Jr. In an order of August 2, 1978 the
private prosecutor was given time to file an opposition
thereto. 10 On November 24, 1978 the Judge denied the motion
and set the arraigniment stating:

ORDER
For resolution is a motion to dismiss this rase filed by
the procuting fiscal premised on insufficiency of
evidence, as suggested by the Undersecretary of
Justice, evident from Annex "A" of the motion
wherein, among other things, the Fiscal is urged to
move for dismissal for the reason that the check
involved having been issued for the payment of a
pre-existing obligation the Hability of the drawer can
only be civil and not criminal.
The motion's thrust being to induce this Court to
resolve the innocence of the accused on evidence
not before it but on that adduced before the
Undersecretary of Justice, a matter that not only
disregards the requirements of due process but also
erodes the Court's independence and integrity, the
motion is considered as without merit and therefore
hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby
set for December 18, 1978 at 9:00 o'clock in the
moming.

Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set
aside, respondent judge be perpetually enjoined from enforcing his
threat to proceed with the arraignment and trial of petitioner in said
criminal case, declaring the information filed not valid and of no
legal force and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely
civil. 16
In a resolution of May 19, 1980, the Second Division of this Court
without giving due course to the petition required the respondents
to comment to the petition, not to file a motiod to dismiss, within
ten (10) days from notice. In the comment filed by the Solicitor
General he recommends that the petition be given due course, it
being meritorious. Private respondent through counsel filed his
reply to the comment and a separate conunent to the petition
asking that the petition be dismissed. In the resolution of February
5, 1981, the Second Division of this Court resolved to transfer this
case to the Court En Banc. In the resolution of February 26, 1981,
the Court En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while
the Solicitor General filed a Manifestation in lieu of brief reiterating
that the decision of the respondent Court of Appeals be reversed
and that respondent Judge be ordered to dismiss the information.

SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and
mandamus with petition for the issuance of preliminary writ of
prohibition and/or temporary restraining order in the Court of
Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January
23, 1979 a restraining order was issued by the Court of Appeals
against the threatened act of arraignment of the accused until
further orders from the Court. 13 In a decision of October 25, 1979
the Court of Appeals dismissed the petition and lifted the
restraining order of January 23, 1979. 14 A motion for
reconsideration of said decision filed by the accused was denied in
a resolution of February 19, 1980. 15

It is a cardinal principle that an criminal actions either commenced

by complaint or by information shall be prosecuted under the
direction and control of the fiscal. 17 The institution of a criminal
action depends upon the sound discretion of the fiscal. He may or
may not file the complaint or information, follow or not fonow that
presented by the offended party, according to whether the
evidence in his opinion, is sufficient or not to establish the guilt of
the accused beyond reasonable doubt. 18 The reason for placing
the criminal prosecution under the direction and control of the fiscal
is to prevent malicious or unfounded prosecution by private
persons. 19 It cannot be controlled by the
complainant. 20Prosecuting officers under the power vested in them
by law, not only have the authority but also the duty of prosecuting
persons who, according to the evidence received from the

complainant, are shown to be guilty of a crime committed within

the jurisdiction of their office. 21 They have equally the legal duty
not to prosecute when after an investigation they become
convinced that the evidence adduced is not sufficient to establish
a prima facie case. 22
It is through the conduct of a preliminary investigation 23 that the
fiscal determines the existence of a puma facie case that would
warrant the prosecution of a case. The Courts cannot interfere with
the fiscal's discretion and control of the criminal prosecution. It is
not prudent or even permissible for a Court to compel the fiscal to
prosecute a proceeding originally initiated by him on an
information, if he finds that the evidence relied upon by him is
insufficient for conviction. 24Neither has the Court any power to
order the fiscal to prosecute or file an information within a certain
period of time, since this would interfere with the fiscal's discretion
and control of criminal prosecutions. 25 Thus, a fiscal who asks for
the dismissal of the case for insufficiency of evidence has authority
to do so, and Courts that grant the same commit no error. 26 The
fiscal may re-investigate a case and subsequently move for the
dismissal should the re-investigation show either that the
defendant is innocent or that his guilt may not be established
beyond reasonable doubt. 27 In a clash of views between the judge
who did not investigate and the fiscal who did, or between the
fiscal and the offended party or the defendant, those of the Fiscal's
should normally prevail. 28 On the other hand, neither an injunction,
preliminary or final nor a writ of prohibition may be issued by the
courts to restrain a criminal prosecution 29 except in the extreme
case where it is necessary for the Courts to do so for the orderly
administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any
limitation or control. The same is subject to the approval of the
provincial or city fiscal or the chief state prosecutor as the case
maybe and it maybe elevated for review to the Secretary of Justice
who has the power to affirm, modify or reverse the action or
opinion of the fiscal. Consequently the Secretary of Justice may
direct that a motion to dismiss the rase be filed in Court or
otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal

action. The Court thereby acquires jurisdiction over the case, which
is the authority to hear and determine the case. 32 When after the
filing of the complaint or information a warrant for the arrest of the
accused is issued by the trial court and the accused either
voluntarily submited himself to the Court or was duly arrested, the
Court thereby acquired jurisdiction over the person of the
accused. 33
The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon the
filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal
action against the accused in Court. Should the fiscal find it proper
to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation
the finding and recommendations of the fiscal should be submitted
to the Court for appropriate action. 34 While it is true that the fiscal
has the quasi judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had
already been brought to Court whatever disposition the fiscal may
feel should be proper in the rase thereafter should be addressed for
the consideration of the Court, 35 The only qualification is that the
action of the Court must not impair the substantial rights of the
accused. 36or the right of the People to due process of law. 36a
Whether the accused had been arraigned or not and whether it was
due to a reinvestigation by the fiscal or a review by the Secretary of
Justice whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or
deny it and require that the trial on the merits proceed for the
proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion
to dismiss filed by the fiscal upon the directive of the Secretary of
Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the
Secretary of Justice who does not believe that there is a basis for
prosecution nor can the fiscal be expected to handle the

prosecution of the case thereby defying the superior order of the

Secretary of Justice.

information has already been filed in Court. The matter should be

left entirely for the determination of the Court.

The answer is simple. The role of the fiscal or prosecutor as We all

know is to see that justice is done and not necessarily to secure the
conviction of the person accused before the Courts. Thus, in spite
of his opinion to the contrary, it is the duty of the fiscal to proceed
with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal
should not shirk from the responsibility of appearing for the People
of the Philippines even under such circumstances much less should
he abandon the prosecution of the case leaving it to the hands of a
private prosecutor for then the entire proceedings will be null and
void. 37 The least that the fiscal should do is to continue to appear
for the prosecution although he may turn over the presentation of
the evidence to the private prosecutor but still under his direction
and control. 38

WHEREFORE, the petition is DISMISSED for lack of merit without

pronouncement as to costs.

The rule therefore in this jurisdiction is that once a complaint or

information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on
the trial court. The Court is the best and sole judge on what to do
with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
In order therefor to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may
be disregarded by the trial court, the Secretary of Justice should, as
far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or

SO ORDERED.
EN BANC

[G.R. No. 113930. March 5, 1996]

PAUL

G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS

LORENZO, SR., LUIS LORENZO, JR., AMAURY R.
GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR.,
ESTEBAN B. PALANNUAYAN, and WONG FONG
FUI, petitioners, vs. THE COURT OF APPEALS, THE
HON. MAXIMIANO ASUNCION, in his capacity as the
Presiding Judge of the Regional Trial Court, Quezon
City, Branch 104, HON. APOLINARIO G. EXEVEA, HON.
HENRICK F. GINGOYON, and HON. PHILIP A.
AGUINALDO, in their capacities as Members of the
Department of Judge 349 Committee, and the CITY
PROSECUTOR OF QUEZON CITY, respondents.

ROBERTO DELGADO, petitioner-intervenor.

DECISION
DAVIDE, JR., J.:
We are urged in this petition to set aside (a) the decision of the
Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226,
[1]
which dismissed the petition therein on the ground that it has
been mooted with the release by the Department of Justice of its
decision x x x dismissing petitioners petition for review; (b) the
resolution of the said court of 9 February 1994 [2]denying the
petitioners motion to reconsider the decision; (c) the order of 17
May 1993[3] of respondent Judge Maximiano C. Asuncion of Branch
104 of the Regional Trial Court (RTC) of Quezon City in Criminal
Case No. Q-93-43198 denying petitioners motion to suspend

proceedings and to hold in abeyance the issuance of the warrants

of arrest and the public prosecutors motion to defer arraignment;
and (d) the resolution of 23 July 1993 and 3 February 1994 [4] of the
Department of Justice, (DOJ) dismissing petitioners petition for the
review of the Joint Resolution of the Assistant City Prosecutor of
Quezon City and denying the motion to reconsider the dismissal,
respectively.
The petitioners rely on the following grounds for the grant of
the reliefs prayed for in this petition:
I
Respondent Judge acted with grave abuse of discretion when he
ordered the arrest of the petitioners without examining the record
of the preliminary investigation and in determining for himself on
the basis thereof the existence of probable cause.
II
The Department of Justice 349 Committee acted with grave abuse
of discretion when it refused to review the City Prosecutors Joint
Resolution and dismissed petitioners appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it
upheld the subject order directing the issuance of the warrants of
arrest without assessing for itself whether based on such records
there is probable cause against petitioners.
IV
The facts on record do not establish prima facie probable cause and
Criminal Case No. Q-93-43198 should have been dismissed.[5]
The antecedents of this petition are not disputed.
Several thousand holders[6] of 349 Pepsi crowns in connection
with the Pepsi Cola Products Phils., Inc.s (PEPSIs) Number Fever
Promotion[7] filed with the Office of the City Prosecutor of Quezon
City complaints against the petitioners in their respective capacities
as Presidents or Chief Executive Officers, Chairman of the Board,
Vice-Chairman of the Board, and Directors of PEPSI, and also
against other officials of PEPSI. The complaints respectively accuse

the petitioners and the other PEPSI officials of the following crimes:
(a) estafa; (b) violation of R.A. No. 7394, otherwise known as the
Consumer Act of the Philippines; (c) violation of E.O. No. 913; [8] and
(d) violation of Act No. 2333, entitled An Act Relative to Untrue,
Deceptive and Misleading Advertisements, as amended by Act No.
3740.[9]
After appropriate proceedings, the investigating prosecutor,
Ramon M. Gerona, released on 23 March 1993 a Joint
Resolution[10] where he recommended the filing of an information
against the petitioners and others for the violation of Article 3 18 of
the Revised Penal Code and the dismissal of the complaints for the
violation of Article 315, 2(d) of the Revised Penal Code; R.A. No.
7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913.
The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents
Paul G. Roberts, Jr., Rodolfo C. Salazar, Rosemarie R.
Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto
Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose
Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui,
Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa
under Article 318, Revised Penal Code, while the
complaint for violation of Article 315, 2(d), Revised
Penal Code against same respondents Juanito R.
Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G.
Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M.
Manalastas, Janette P. Pio de Roda, Joaquin W.
Sampaico, Winefreda 0. Madarang, Jack Gravey, Les G.
Ham, Corazon Pineda, Edward S. Serapio, Alex 0.
Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard
Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T.
Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin
Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H.
Adil, Eugenio Muniosguren, James Ditkoff and Timothy
Lane be dismissed;
2. The complaints against all respondents for violation of
R.A. 7394 otherwise known as the Consumer Act of the
Philippines and violation of Act 2333 as amended by Act
3740 and E 0. 913 be also dismissed for insufficiency of
evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving
Crowns Nos. 173; 401; and 117, 425, 703 and 373,
respectively, alleged to be likewise winning ones be

further investigated to afford respondents a chance to

submit their counter-evidence.[11]

Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of

Directors

and feloniously defraud the private complainants whose names

with their prizes claimed appear in the attached lists marked as
Annexes A to A-46; B to -33; C to C-281; D to D-238; E to E-3O and
F to F-244 in the following manner: on the date and in the place
aforementioned, said accused pursuant to their conspiracy,
launched the Pepsi Cola Products Philippines, Inc. Number Fever
Promotion from February 17 to May 8, 1992 later extended to May
11-June 12, 1992 and announced and advertised in the media that
all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew
and Seven-Up bearing the winning 3-digit number will win the full
amount of the prize printed on the crowns/caps which are marked
with a seven-digit security code as a measure against tampering or
faking of crowns and each and every number has its own unique
matching security code, enticing the public to buy Pepsi softdrinks
with aforestated alluring and attractive advertisements to become
millionaires, and by virtue of such representations made by the
accused, the said complainants bought Pepsi softdrinks, but, the
said accused after their TV announcement on May 25, 1992 that
the winning number for the next day was 349, in violation of their
aforecited mechanics, refused as they still refuse to redeem/pay
the said Pepsi crowns and/or caps presented to them by the
complainants, who, among others, were able to buy Pepsi
softdrinks with crowns/caps bearing number 349 with security
codes L-2560-FQ and L-3560-FQ, despite repeated demands made
by the complainants, to their damage and prejudice to the extent of
the amount of the prizes respectively due them from their winning
349 crowns/caps, together with such other amounts they spent
ingoing to and from the Office of Pepsi to claim their prizes and
such other amounts used in buying Pepsi softdrinks which the
complainants normally would not have done were it not for the
false, fraudulent and deceitful posters of Pepsi Cola Products, Inc.

Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board

CONTRARY TO LAW.

J. Roberto Delgado ) being then Members of the Board

Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )

On 14 April 1993, the petitioners filed with the Office of the

City Prosecutor a motion for the reconsideration of the Joint
Resolution[14] alleging therein that (a) there was neither fraud in the
Number Fever Promotion nor deviation from or modification of the
promotional rules approved by the Department of Trade and
industry (DTI), for from the start of the promotion, it had always
been clearly explained to the public that for one to be entitled to
the cash prize his crown must bear both the winning number and
the correct security code as they appear in the DTI list; (b) the
complainants failed to allege, much less prove with prima
facie evidence, the specific overt criminal acts or ommissions

On 6 April 1993, City Prosecutor Candido V. Rivera approved

the recommendation with the modification that Rosemarie Vera,
Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge
on the ground of insufficiency of evidence.[12]
The information for estafa attached to the Joint Resolution was
approved (on 7 April 1993) by Ismael P. Casabar, Chief of the
Prosecution Division, upon authority of the City Prosecutor of
Quezon City, and was filed with the RTC of Quezon City on 12 April
1993. It was docketed as Criminal Case No. Q-93-43198. [13] The
information reads as follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G.
ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P.
LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ,
BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR.
and WONG FONG FUI, of the crime of ESTAFA, committed as
follows:
That in the month of February, 1992, in Quezon
City, Philippines and for sometime prior and subsequent thereto,
the above-named accused Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar and Executive Officers

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with

one another, with intent of gain, by means of deceit, fraudulent
acts or false pretenses, executed prior to or simultaneously with
the commission of the fraud, did then and there willfully, unlawfully

purportedly committed by each of the petitioners; (c) the

compromise agreement entered into by PEPSI is not an admission
of guilt; and (d) the evidence establishes that the promo was
carried out with utmost good faith and without malicious intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition
for Review[15] wherein, for the same grounds adduced in the
aforementioned motion for reconsideration, they prayed that the
Joint Resolution be reversed and the complaints dismissed. They
further stated that the approval of the Joint Resolution by the City
prosecutor was not the result of a careful scrutiny and independent
evaluation of the relevant facts and the applicable law but of the
grave threats, intimidation, and actual violence which the
complainants had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q93-43198 Motions to Suspend Proceedings and to Hold in Abeyance
Issuance of Warrants of Arrest on the ground that they had filed the
aforesaid Petition for Review.[16]
On 21 April 1993, acting on the Petition for Review, Chief State
Prosecutor Zenon L. De Guia issued a 1st Indorsement, [17] directing
the City Prosecutor of Quezon City to inform the DOJ whether the
petitioners have already been arraigned, and if not, to move in
court for the deferment of further proceedings in the case and to
elevate to the DOJ the entire records of the case, for the case is
being treated as an exception pursuant to Section 4 of Department
Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to
Branch 104 of the RTC of Quezon City.[18]
In the morning of 27 April 1993, private prosecutor Julio
Contreras filed an Ex-Parte Motion for Issuance of Warrants of
Arrest.[19]
In the afternoon of that same day, petitioner Paul Roberts, Jr.,
filed a Supplemental Urgent Motion to hold in Abeyance Issuance of
Warrant of Arrest and to Suspend Proceedings. [20] He stressed that
the DOJ had taken cognizance of the Petition for Review by
directing the City Prosecutor to elevate the records of I.S. No. P4401 and its related cases and asserted that the petition for review
was an essential part of the petitioners right to a preliminary
investigation.
The next day, respondent Judge Asuncion, Presiding Judge of
Branch 104 of the RTC of Quezon City, issued an order advising the
parties that his court would be guided by the doctrine laid down by
the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462

and not by the resolution of the Department of Justice on the

petition for review undertaken by the accused.[21]
On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero
filed with the trial court a Motion to Defer Arraignment wherein he
also prayed that further proceedings be held in abeyance pending
final disposition by the Department of Justice.[22]
On 4 May 1993, Gavero filed an Amended Information,
accompanied by a corresponding motion[24] to admit it. The
amendments merely consist in the statement that the
complainants therein were only among others who were defrauded
by the accused and that the damage or prejudice caused amounted
to several billions of pesos, representing the amounts due them
from their winning 349 crowns/caps. The trial court admitted the
amended information on the same date.[25]
[23]

Later, the attorneys for the different private complainants filed,

respectively, an Opposition to Motion to Defer Arraignment, [26] and
Objection and Opposition to Motion to Suspend Proceedings and to
Hold in Abeyance the Issuance of Warrants of Arrest.[27]
On 14 May 1993, the petitioners filed a Memorandum in
support of their Motion to Suspend Proceedings and to Hold in
Abeyance the Issuance of the Warrants of Arrest. [28]
On 17 May 1993, respondent Judge Asuncion issued the
challenged order (1) denying the petitioners Motion to Suspend
Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest
and the public prosecutors Motion to Defer Arraignment and (2)
directing the issuance of the warrants of arrest after 21 June
1993 and setting the arraignment on 28 June 1993.[29]Pertinent
portions of the order read as follows:
In the Motion filed by the accused, it is alleged that
on April 15, 1993, they filed a petition for review seeking the
reversal of the resolution of the City Prosecutor of Quezon City
approving the filing of the case against the accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no
estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt
before the Department of Trade and Industry;

5. The evidence presented clearly showed no malicious

intent on the part of the accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer
Arraignment averred that there is a pending petition for review with
the Department of Justice filed by the accused and the Office of the
City Prosecutor was directed, among other things, to cause for the
deferment of further proceedings pending final disposition of said
petition by the Department of Justice.
The motions filed by the accused and the Trial Prosecutor are
hereby DENIED.
This case is already pending in this Court for trial. To follow
whatever opinion the Secretary of Justice may have on the matter
would undermine the independence and integrity of this Court. This
Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151,
pp. 471-472) stated as follows:
In order therefor to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may
be disregarded by the trial court, the Secretary of Justice should, as
far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or
information has already been filed in Court. The matter should be
left entirely for the determination of the Court.
WHEREFORE, let warrant of arrest be issued after June 21, 1993,
and arraignment be set on June 28, 1993, at 9:30 in the morning.
On 7 June 1993, the petitioners filed with the Court of Appeals
a special civil action for certiorari and prohibition with application
for a temporary restraining order, [30] which was docketed as CA-G.R.
SP No. 31226. They contended therein that respondent Judge
Asuncion had acted without or in excess of jurisdiction or with
grave abuse of discretion in issuing the aforementioned order of 17
May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD
OF PRELIMINARY INVESTIGATION BEFORE ORDERING
THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS
CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR
ANY OTHER OFFENSE.

III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN

SUSPENDED TO AWAIT THE SECRETARY OF JUSTICES
RESOLUTION OF PETITIONERS APPEAL, AND
IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary
restraining order to maintain the status quo.[31] In view thereof,
respondent Judge Asuncion issued an order on 28 June
1993[32] postponing indefinitely the arraignment of the petitioners
which was earlier scheduled on that date.
On 28 June 1993, the Court of Appeals heard the petitioners
application for a writ of preliminary injunction, granted the motion
for leave to intervene filed by J. Roberto Delgado, and directed the
Branch Clerk of Court of the RTC of Quezon City to elevate the
original records of Criminal Case No. Q-93-43198[33]
Upon receipt of the original records of the criminal case, the
Court of Appeals found that a copy of the Joint Resolution had in
fact been forwarded to, and received by, the trial court on 22 April
1993, which fact belied the petitioners claim that the respondent
Judge had not the slightest basis at all for determining probable
cause when he ordered the issuance of warrants of arrest. It ruled
that the Joint Resolution was sufficient in itself to have been relied
upon by respondent Judge in convincing himself that probable
cause indeed exists for the purpose of issuing the corresponding
warrants of arrest; and that the mere silence of the records or the
absence of any express declaration in the questioned order as to
the basis of such finding does not give rise to an adverse inference,
for the respondent Judge enjoys in his favor the presumption of
regularity in the performance of his official duty. The Court of
Appeals then issued a resolution [34] denying the application for a
writ of preliminary injunction.
On 8 June 1993, the petitioners filed a motion to
reconsider[35] the aforesaid resolution. The Court of Appeals
required the respondents therein to comment on the said motion. [36]
On 3 August 1993, the counsel for the private complainants
filed in CA-G.R. SP No. 31226 a Manifestation [37] informing the court
that the petitioners petition for review filed with the DOJ was
dismissed in a resolution dated 23 July 1993. A copy [38] of the
resolution was attached to the Manifestation.
On 21 September 1993, the public respondents filed in CA-G.R.
SP No. 31226 a motion to dismiss the petition [39] on the ground that
it has become moot and academic in view of the dismissal by the

DOJ of the petitioners petition to review the Joint Resolution. The

dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of
Appeals and prayed for the issuance of a writ of preliminary
injunction to restrain the Trial Judge from issuing any warrant of
arrest and from proceeding with the arraignment of the accused.
The appellate court in a resolution dated July 1, 1993, denied your
petition.
In view of the said developments, it would be an exercise in
futility to continue reviewing the instant cases for any further
action on the part of the Department would depend on the sound
discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an
exercise of its discretion. With the issuance of the order dated May
17, 1993, the Trial Court was in effect sending a signal to this
Department that the determination of the case is within its
exclusive jurisdiction and competence. The rule is that x x x once a
complaint or information is filed in Court, any disposition of the
case as to dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal
cases even while the case is already in Court, he cannot impose his
opinion on the trial court. The court is the best and sole judge on
what to do with the case before it. x x x (Crespo vs. Mogul, 151
SCRA 462).[40]
On 28 September 1993, the Court of Appeals promulgated a
decision[41] dismissing the petition because it had been mooted with
the release by the Department of Justice of its decision x x x
dismissing petitioners petition for review by inerrantly upholding
the criminal courts exclusive and unsupplantable authority to
control the entire course of the case brought against petitioners,
reiterating with approval the dictum laid down in the Crespo case.
The petitioners filed a motion to reconsider the DOJs dismissal
of the petition citing therein its resolutions in other similar cases
which were favorable to the petitioners and adverse to other 349
Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its 349
Committee, denied the motion and stated: The instant petition is
different from the other petitions resolved by this Department in
similar cases from the provinces. In the latter petitions, the
complaints against herein respondents [sic][42] were dismissed
inasmuch as the informations have not yet been filed or even if

already filed in court, the proceedings have been suspended by the

courts to await the outcome of the appeal with this Department.[43]
The petitioners likewise filed a motion to reconsider[44] the
aforesaid Court of Appeals decision, which the said court denied in
its resolution[45] of 9 February 1994. Hence, the instant petition.
The First Division of this Court denied due course to this
petition in its resolution of 19 September 1994.[46]
On 7 October 1994, the petitioners filed a motion for the
reconsideration[47] of the aforesaid resolution. Acting thereon, the
First Division required the respondents to comment thereon.
Later, the petitioners filed a supplemental motion for
reconsideration[48] and a motion to refer this case to the Court en
banc.[49] In its resolution of 14 November 1994,[50] the First Division
granted the latter motion and required the respondents to
comment on the supplemental motion for reconsideration
In the resolution of 24
banc accepted the referral.

November

1994,

the

Court en

On 10 October 1995, after deliberating on the motion for

reconsideration and the subsequent pleadings in relation thereto,
the Court en banc granted the motion for reconsideration;
reconsidered and set aside the resolution of 19 September 1994;
and reinstated the petition. It then considered the case submitted
for decision, since the parties have exhaustively discussed the
issues in their pleadings, the original records of Criminal Case No.
Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this
Court, and both the petitioners and the Office of the Solicitor
General pray, in effect, that this Court resolve the issue of probable
cause On the basis thereof.
The pleadings of the parties suggest for this Courts resolution
the following key issues:
1. Whether public respondent Judge Asuncion committed
grave abuse of discretion in denying, on the basis
of Crespo
vs.
Mogul, the
motions
to
suspend
proceedings and hold in abeyance the issuance of
warrants of arrest and to defer arraignment until after
the petition for review filed with the DOJ shall have been
resolved.
2. Whether public respondent Judge Asuncion committed
grave abuse of discretion in ordering the issuance of

warrants of arrest without examining the records of the

preliminary investigation.
3. Whether the DOJ, through its 349 Committee, gravely
abused its discretion in dismissing the petition for
review on the following bases: (a) the resolution of
public respondent Court of Appeals denying the
application for a writ of preliminary injunction and (b) of
public
respondent
Asuncions
denial
of
the
abovementioned motions.
4. Whether public respondent Court of Appeals committed
grave abuse of discretion (a) in denying the motion for a
writ of preliminary injunction solely on the ground that
public respondent Asuncion had already before him the
Joint Resolution of the investigating prosecutor when he
ordered the issuance of the warrants of arrest, and (b)
in ultimately dismissing the petition on the ground of
mootness since the DOJ has dismissed the petition for
review.
5. Whether this Court may determine in this proceedings
the existence of probable cause either for the issuance
of warrants of arrest against the petitioners or for their
prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth,
in the negative.

I.
There is nothing in Crespo vs. Mogul[51] which bars the DOJ from
taking cognizance of an appeal, by way of a petition for review, by
an accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, as far as
practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. More specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of
the Secretary of Justice who reviewed the action of the fiscal may
be disregarded by the trial court, the Secretary of Justice should, as
far as practicable, refrain from entertaining a petition for review or
appeal from the action of the fiscal, when the complaint or

information has already been filed in Court. The matter should be

left entirely for the determination of the Court. [52]
In Marcelo
declared:

vs.

Court

of

Appeals,[53] this

Court

explicitly

Nothing in the said ruling forecloses the power or authority of the

Secretary of Justice to review resolutions of his subordinates in
criminal cases. The Secretary of Justice is only enjoined to refrain
as far as practicable from entertaining a petition for review or
appeal from the action of the prosecutor once a complaint or
information is filed in court. In any case, the grant of a motion to
dismiss, which the prosecution may file after the Secretary of
Justice reverses an appealed resolution, is subject to the discretion
of the court.
Crespo could not have intended otherwise without doing
violence to, or repealing, the last paragraph of Section 4, Rule 112
of the Rules of Court[54] which recognizes the authority of the
Secretary of Justice to reverse the resolution of the provincial or
city prosecutor or chief state prosecutor upon petition by a proper
party.
Pursuant to the said provision, the Secretary of Justice had
promulgated the rules on appeals from resolutions in preliminary
investigation. At the time the petitioners filed their petition for the
review of the Joint Resolution of the investigating prosecutor, the
governing rule was Circular No. 7, dated 25 January 1990. Section 2
thereof provided that only resolutions dismissing a criminal
complaint may be appealed to the Secretary of Justice. Its Section
4,[55] however, provided an exception, thus allowing, upon a
showing of manifest error or grave abuse of discretion, appeals
from resolutions finding probable cause, provided that the accused
has not been arraigned.
The DOJ gave due course to the petitioners petition for review
as an exception pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department
Order No. 223[56] which superseded Circular No. 7. This Order,
however, retained the provisions of Section 1 of the Circular on
appealable cases and Section 4 on the non-appealable cases and
the exceptions thereto.
There is nothing in Department Order No. 223 which would
warrant a recall of the previous action of the DOJ giving due course
to the petitioners petition for review. But whether the DOJ would

affirm or reverse the challenged Joint Resolution is still a matter of

guesswork. Accordingly, it was premature for respondent Judge
Asuncion to deny the motions to suspend proceedings and to defer
arraignment on the following grounds:
This case is already pending in this Court for trial. To follow
whatever opinion the Secretary of Justice may have on the matter
would undermine the independence and integrity of this Court. This
Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of
this court is not the filing of the aforementioned motions at that
stage of the proceedings but the filing of a motion to dismiss or to
withdraw the information on the basis of a resolution of the petition
for review reversing the Joint Resolution of the investigating
prosecutor. Before that time, the following pronouncement
in Crespo did not yet truly become relevant or applicable:
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case as its
dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even
while the case is already in court he cannot impose his opinion on
the trial court. The court is the best and sole judge on what to do
with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the
case filed by the fiscal should be addressed to the Court who has
the option to grant or deny the same. It does not matter if this is
done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
[57]

However, once a motion to dismiss or withdraw the information is

filed the trial judge may grant or deny it, not out of subservience to
the Secretary of Justice, but in faithful exercise of judicial
prerogative. This Court pertinently stated so in Martinez vs. Court
of Appeals:[58]
Whether to approve or disapprove the stand taken by the
prosecution is not the exercise of discretion required in cases like
this. The trial judge must himself be convinced that there was
indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the

evidence in the possession of the prosecution. What was

imperatively required was the trial judges own assessment of such
evidence, it not being sufficient for the valid and proper exercise of
judicial discretion merely to accept the prosecutions word for its
supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing
to make an independent finding of the merits of the case and
merely anchoring the dismissal on the revised position of the
prosecution, the trial judge relinquished the discretion he was duty
bound to exercise. In effect, it was the prosecution, through the
Department of Justice which decided what to do and not the court
which was reduced to a mere rubber stamp in violation of the ruling
in Crespo vs. Mogul.

II.
Section 2, Article III of the present Constitution provides that no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by
the Metropolitan Trial Courts (MeTCs) except those in the National
Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit
Trial Courts (MCTCs) in cases falling within their exclusive original
jurisdiction;[59] in cases covered by the rule on summary procedure
where the accused fails to appear when required; [60] and in cases
filed with them which are cognizable by the Regional Trial Courts
(RTCs);[61] and (2) by the Metropolitan Trial Courts in the National
Capital Region (MeTCs-NCR) and the RTCs in cases filed with them
after appropriate preliminary investigations conducted by officers
authorized to do so other than judges of MeTCs, MTCs and MCTCs.
[62]

As to the first, a warrant can issue only if the judge is satisfied

after an examination in writing and under oath of the complainant
and the witnesses, in the form of searching questions and answers,
that a probable cause exists and that there is a necessity of placing
the respondent under immediate custody in order not to frustrate
the ends of justice.

As to the second, this Court held in Soliven vs. Makasiar[63] that

the judge is not required to personally examine the complainant
and the witnesses, but
[f]ollowing established doctrine and procedure, he shall: (1)
personally evaluate the report and supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the
fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence
of probable cause.[64]
Sound policy supports this procedure, otherwise judges would be
unduly laden with the preliminary examination and investigation of
criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts. It must be emphasized that
judges must not rely solely on the report or resolution of the fiscal
(now prosecutor); they must evaluate the report and the supporting
documents. In this sense, the aforementioned requirement has
modified paragraph 4(a) of Circular No. 12 issued by this Court
on 30 June 1987 prescribing the Guidelines on Issuance of Warrants
of Arrest under Section 2, Article III of the 1987 Constitution, which
provided in part as follows:
4. In satisfying himself of the existence of a probable cause
for the issuance of a warrant of arrest, the judge,
following established doctrine and procedure, may
either:
(a) Rely upon the fiscals certification of the existence of
probable cause whether or not the case is
cognizable only by the Regional Trial Court and on
the basis thereof, issue a warrant of arrest. x x x
This requirement of evaluation not only of the report or
certification of the fiscal but also of the supporting documents was
further explained in People vs. Inting,[65] where this Court specified
what the documents may consist of, viz., the affidavits, the
transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material
in assisting the Judge to make his determination of probable cause.
Thus:
We emphasize the important features of the constitutional mandate
that x x x no search warrant or warrant of arrest shall issue except

upon probable cause to be determined personally by the judge x x

x (Article III, Section 2, Constitution).
First, the determination of probable cause is a function of the
Judge. It is not for the Provincial Fiscal or Prosecutor nor the
Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not
bind the Judge. It merely assists him to make the determination of
probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutors certification of
probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutors certification which are material
in assisting the Judge to make his determination.
In adverting to a statement in People vs. Delgado[66] that the
judge may rely on the resolution of the Commission on Elections
(COMELEC) to file the information by the same token that it may
rely on the certification made by the prosecutor who conducted the
preliminary investigation in the issuance of the warrant of arrest,
this Court stressed in Lim vs. Felix[67] that
Reliance on the COMELEC resolution or the Prosecutors certification
presupposes that the records of either the COMELEC or the
Prosecutor have been submitted to the Judge and he relies on the
certification or resolution because the records of the investigation
sustain the recommendation. The warrant issues not on the
strength of the certification standing alone but because of the
records which sustain it.
And noting that judges still suffer from the inertia of decisions and
practice under the 1935 and 1973 Constitutions, this Court found it
necessary to restate the rule in greater detail and hopefully clearer
terms. It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge
does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should
be a report and necessary documents supporting the Fiscals bare
certification. All of these should be before the Judge.
The extent of the Judges personal examination of the report
and its annexes depends on the circumstances of each case. We
cannot determine beforehand how cursory or exhaustive the Judges

examination should be. The Judge has to exercise sound discretion

for, after all, the personal determination is vested in the Judge by
the Constitution. It can be as brief as or detailed as the
circumstances of each case require. To be sure, the Judge must go
beyond the Prosecutors certification and investigation report
whenever, necessary. He should call for the complainant and
witnesses themselves to answer the courts probing questions when
the circumstances of the case so require.
This Court then set aside for being null and void the challenged
order of respondent Judge Felix directing the issuance of the
warrants of arrest against petitioners Lim, et al., solely on the basis
of the prosecutors certification in the informations that there
existed probable cause without having before him any other basis
for his personal determination of the existence of a probable cause.
In Allado vs. Diokno,[68] this Court also ruled that before issuing
a warrant of arrest, the judge must satisfy himself that based on
the evidence submitted there is sufficient proof that a crime has
been committed and that the person to be arrested is probably
guilty thereof.
In the recent case of Webb vs. De Leon,[69] this Court rejected
the thesis of the petitioners of absence probable cause and
sustained the investigating panels and the respondent Judges
findings of probable cause. After quoting extensively from Soliven
vs. Makasiar,[70] this Court explicitly pointed out:
Clearly then, the Constitution, the Rules of Court, and our case law
repudiate the submission of petitioners that respondent judges
should have conducted searching examination of witnesses before
issuing warrants of arrest against them. They also reject petitioners
contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the
issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer as well as the
counter- affidavits of the petitioners. Apparently, the painstaking
recital and analysis of the parties evidence made in the DOJ Panel
Report satisfied both judges that there is probable cause to issue
warrants of arrest against petitioners. Again, we stress that before
issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of the guilt of an accused. In doing so,
judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial

determination of the prosecutor finding a probable cause to see if it

is supported by substantial evidence. The sufficiency of the review
process cannot be measured by merely counting minutes and
hours. The fact that it took the respondent judges a few hours to
review and affirm the Probable cause determination of the DOJ
Panel does not mean they made no personal evaluation of the
evidence attached to the records of the case. (italics supplied)
The
teachings
then
of Soliven,
Inting,
Lim,
Allado, and Webb reject the proposition that the investigating
prosecutors certification in an information or his resolution which is
made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the
issuance of a warrant of arrest. In Webb, this Court assumed that
since the respondent Judges had before them not only the 26-page
resolution of the investigating panel but also the affidavits of the
prosecution witnesses and even the counter-affidavits of the
respondents, they (judges) made personal evaluation of the
evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing
accompanied the information upon its filing on 12 April 1993 with
the trial court. As found by the Court of Appeals in its resolution of
1 July 1993, a copy of the Joint Resolution was forwarded to, and
received by, the trial court only on 22 April 1993. And as revealed
by the certification[71] of Branch Clerk of Court Gibson Araula, Jr., no
affidavits of the witnesses, transcripts of stenographic notes of the
proceedings during the preliminary investigation, or other
documents submitted in the course thereof were found in the
records of Criminal Case No. Q-93-43198 as of 19 May 1993.
Clearly, when respondent Judge Asuncion issued the assailed order
of 17 May 1993 directing, among other things, the issuance of
warrants of arrest, he had only the information, amended
information, and Joint Resolution as bases thereof. He did not have
the records or evidence supporting the prosecutors finding of
probable cause. And strangely enough, he made no specific finding
of probable cause; he merely directed the issuance of warrants of
arrest after June 21, 1993. It may, however, be argued that the
directive presupposes a finding of probable cause. But then
compliance with a constitutional requirement for the protection of
individual liberty cannot be left to presupposition, conjecture, or
even convincing logic.

III.

As earlier stated, per its 1st Indorsement of 21 April 1993, the

DOJ gave due course to the petitioners petition for review pursuant
to the exception provided for in Section 4 of Circular No. 7, and
directed the Office of the City Prosecutor of Quezon City to forward
to the Department the records of the cases and to file in court a
motion for the deferment of the proceedings. At the time it issued
the indorsement, the DOJ already knew that the information had
been filed in court, for which reason it directed the City Prosecutor
to inform the Department whether the accused have already been
arraigned and if not yet arraigned, to move to defer further
proceedings. It must have been fully aware that, pursuant
to Crespo vs. Mogul, a motion to dismiss a case filed by the
prosecution either as a consequence of a reinvestigation or upon
instructions of the Secretary of Justice after a review of the records
of the investigation is addressed to the trial court, which has the
option to grant or to deny it. Also, it must have been still fresh in its
mind that a few months back it had dismissed for lack of probable
cause other similar complaints of holders of 349 Pepsi crowns.
[72]
Thus, its decision to give due course to the petition must have
been prompted by nothing less than an honest conviction that a
review of the Joint Resolution was necessary in the highest interest
of justice in the light of the special circumstances of the case. That
decision was permissible within the as far as practicable criterion
in Crespo.
Hence, the DOJ committed grave abuse of discretion when it
executed on 23 July 1993 a unilateral volte-face, which was even
unprovoked by a formal pleading to accomplish the same end, by
dismissing the petition for review. It dismissed the petition simply
because it thought that a review of the Joint Resolution would be an
exercise in futility in that any further action on the part of the
Department would depend on the sound discretion of the trial
court, and that the latters denial of the motion to defer arraignment
filed at the instance of the DOJ was clearly an exercise of that
discretion or was, in effect, a signal to the Department that the
determination of the case is within the courts exclusive jurisdiction
and competence. This infirmity becomes more pronounced because
the reason adduced by the respondent Judge for his denial of the
motions to suspend proceedings and hold in abeyance issuance of
warrants of arrest and to defer arraignment finds, as yet, no
support in Crespo.

IV.

If the only issue before the Court of Appeals were the denial of
the petitioners Motion to Suspend Proceedings and to Hold in
Abeyance Issuance of Warrants of Arrest and the public prosecutors
Motion to Defer Arraignment, which were both based on the
pendency before the DOJ of the petition for the review of the Joint
Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of
the dismissal by the DOJ of the petition for review might have been
correct. However, the petition likewise involved the issue of
whether respondent Judge Asuncion gravely abused his discretion
in ordering the issuance of warrants of arrest despite want of basis.
The DOJs dismissal of the petition for review did not render moot
and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners
application for a writ of preliminary injunction to restrain
respondent Judge Asuncion from issuing warrants of arrest, the
Court of Appeals ,justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon
by respondent Judge in convincing himself that probable cause
indeed exists for the purpose of issuing the corresponding warrants
of arrest. The mere silence of the records or the absence of any
express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause
does not give rise to any adverse inference on his part. The fact
remains that the Joint Resolution was at respondent Judges disposal
at the time he issued the Order for the issuance of the warrants of
arrest. After all, respondent Judge enjoys in his favor the
presumption of regularity in the performance of official actuations.
And this presumption prevails until it is overcome by clear and
convincing evidence to the contrary. Every reasonable intendment
will be made in support of the presumption, and in case of doubt as
to an officers act being lawful or unlawful it should be construed to
be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of
Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228;
Government of the P.I. vs. Galarosa, 36 Phil. 338).
We are unable to agree with this disquisition, for it merely
assumes at least two things: (1) that respondent Judge Asuncion
had read and relied on the Joint Resolution and (2) he was
convinced that probable cause exists for the issuance of the
warrants of arrest against the petitioners. Nothing in the records
provides reasonable basis for these assumptions. In his assailed
order, the respondent Judge made no mention of the Joint
Resolution, which was attached to the records of Criminal Case No.
Q-93-43198 on 22 April 1993. Neither did he state that he found

probable cause for the issuance of warrants of arrest. And, for an

undivinable reason, he directed the issuance of warrants of
arrest only after June 21, 1993. If he did read the Joint Resolution
and, in so reading, found probable cause, there was absolutely no
reason at all to delay for more than one month the issuance of
warrants of arrest. The most probable explanation for such delay
could be that the respondent Judge had actually wanted to wait for
a little while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr.
Justice Reynato S. Puno that whatever doubts may have lingered on
the issue of probable cause was dissolved when no less than the
Court of Appeals sustained the finding of probable cause made by
the respondent Judge after an evaluation of the Joint Resolution. We
are not persuaded with that opinion. It is anchored on erroneous
premises. In its 1 July 1993 resolution, the Court of Appeals does
not at all state that it either sustained respondent Judge Asuncions
finding of probable cause, or found by itself probable cause. As
discussed above, it merely presumed that Judge Asuncion might
have read the Joint Resolution and found probable cause from a
reading thereof. Then too, that statement in the dissenting opinion
erroneously assumes that the Joint Resolution can validly serve as
sufficient basis for determining probable cause. As stated above, it
is not.

V.
In criminal prosecutions, the determination of probable cause
may either be an executive or a judicial prerogative. In People vs.
Inting,[73] this Court aptly stated:
And third, Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from a preliminary investigation
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable
cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper - whether or not there is
reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial- is the
function of the Prosecutor.

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished
as to whether it is an investigation for the determination of a
sufficient ground for the filing of the information or it is an
investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the prosecutions
job. The second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature and is
lodged with the judge x x x.
Ordinarily, the determination of probable cause is not lodged
with this Court. Its duty in an appropriate case is confined to the
issue of whether the executive or judicial determination, as the
case may be, of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion amounting to want of
jurisdiction. This is consistent with the general rule that criminal
prosecutions may not be restrained or stayed by injunction,
preliminary or final. There are, however, exceptions to this rule.
Among the exceptions are enumerated in Brocka vs. Enrile[74] as
follows:
a. To afford adequate protection to the constitutional rights
of the accused (Hernandez vs. Albano, et al., L-19272,
January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions
(Dimayuga, et al. vs. Fernandez, 43 Phil. 304;
Hernandez vs. Albano, supra; Fortun vs.Labang, et al., L38383, May 27, 1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub
judice (De Leon vs. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of
authority (Planas vs. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance
or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong
Eng vs. Trinidad, 47 Phil. 385, 389);
f. When
double
jeopardy
is
clearly
apparent
(Sangalang vs. People and Avendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense

(Lopez vs. City Judge, L-25795, October 29, 1966, 18
SCRA 616);
h. Where it is a case of persecution rather than prosecution
(Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by
the
lust for
vengeance
(Recto vs. Castelo,
18
L.J., [1953], cited in Raoa vs. Alvendia, CA-G.R. No.
30720-R, October 8, 1962; Cf. Guingona,et al. vs. City
Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied (Salonga vs. Pao, et al., L-59524, February 18,
1985, 134 SCRA 438).
7. Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of
petitioners (Rodriguez vs. Castelo, L-6374, August 1,
1953). (cited in Regalado, Remedial Law Compendium,
p. 188, 1988 Ed.)
In these exceptional cases, this Court may ultimately resolve the
existence or non-existence of probable cause by examining the
records of the preliminary investigation, as it did in Salonga vs.
Pao,[75] Allado, and Webb.
There can be no doubt that, in light of the several thousand
private complainants in Criminal Case No. Q-93-43198 and several
thousands more in different parts of the country who are similarly
situated as the former for being holders of 349 Pepsi crowns, any
affirmative holding of probable cause in the said case may cause or
provoke, as justly feared by the petitioners, the filing of several
thousand cases in various courts throughout the country. Inevitably,
the petitioners would be exposed to the harassments of warrants of
arrest issued by such courts and to huge expenditures for
premiums on bailbonds and for travels from one court to another
throughout the length and breadth of the archipelago for their
arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial
calendar of our overburdened judges and take much of their
attention, time, and energy, which they could devote to other
equally, if not more, important cases. Such a frightful scenario
would seriously affect the orderly administration of justice, or cause
oppression or multiplicity of actions - a situation already long
conceded by this Court to be an exception to the general rule that

criminal prosecutions may not

injunction.[76]

be restrained or stayed

by

We shall not, however, reevaluate the evidence to determine if

indeed there is probable cause for the issuance of warrants of
arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the
respondent Judge did not, in fact, find that probable cause exists,
and if he did he did not have the basis therefor as mandated
by Soliven, Inting, Lim, Allado, and even Webb.Moreover, the
records of the preliminary investigation in Criminal Case No. Q-9343198 are not with this Court. They were forwarded by the Office of
the City Prosecutor of Quezon City to the DOJ in compliance with
the latters 1st Indorsement of 21 April 1993. The trial court and the
DOJ must be required to perform their duty.
WHEREFORE, the instant petition is granted and the following
are hereby SET ASIDE:
(a) Decision of 28 September 1993 and Resolution of 9
February 1994 of respondent Court of Appeals in CAG.R. SP No. 31226;
(b) The Resolution of the 349 Committee of the
Department of Justice of 23 July 1993 dismissing the
petitioners petition for review and of 3 February
1994 denying the motion to reconsider the dismissal;
and
(c) The Order of respondent Judge Maximiano C. Asuncion
of 17 May 1993 in Criminal Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the
merits, within sixty (60) days from notice of this decision, the
petitioners petition for the review of the Joint Resolution of
Investigating Prosecutor Ramon Gerona and thereafter to file the
appropriate motion or pleading in Criminal Case No. Q-93-43198,
which respondent Judge Asuncion shall then resolve in light
of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs.
Felix, Allado vs. Diokno, and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to
cease and desist from further proceeding with Criminal Case No. Q93-43198 and to defer the issuance of warrants of arrest against
the petitioners.
No pronouncement as to costs.
SO ORDERED.
THIRD DIVISION

placed
JOSE ANTONIO C. LEVISTE,
Petitioner,

G.R. No. 182677

Present:

- versus HON. ELMO M. ALAMEDA, HON. RAUL

M. GONZALEZ, HON. EMMANUEL Y.
VELASCO, HEIRS OF THE LATE RAFAEL
DE LAS ALAS,
Respondents.

under

police

custody

while

confined

at

the Makati Medical Center.[5]

After petitioner posted a P40,000 cash bond which the trial court

CARPIO MORALES, Chairperson,

approved,[6] he was released from detention, and his arraignment
NACHURA,*
was set on January 24, 2007.
BERSAMIN,
**
ABAD, and
VILLARAMA, JR., JJ.
The private complainants-heirs of De las Alas filed, with the
conformity
Promulgated:
August 3, 2010

of

the

public

prosecutor,

an

Urgent

Omnibus

Motion[7] praying, inter alia, for the deferment of the proceedings to

allow the public prosecutor to re-examine the evidence on record or

x-------------------------------------------------x

to conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24,

DECISION

2007

[8]

deferring

petitioners

arraignment

and

allowing

the

prosecution to conduct a reinvestigation to determine the proper

offense and submit a recommendation within 30 days from its

CARPIO MORALES, J.:

inception, inter alia; and (2) Order of January 31, 2007[9] denying

Jose Antonio C. Leviste (petitioner) assails via the present petition

reconsideration of the first order.Petitioner assailed these orders

for

via certiorari and prohibition before the Court of Appeals.

review

filed

on

May

30,

2008

the

August

30,

2007 Decision[1] and the April 18, 2008 Resolution[2] of the Court of
Appeals in CA-G.R. SP No. 97761 that affirmed the trial courts
Orders of January 24, 31, February 7, 8, all in 2007, and denied the
Meantime, petitioner filed an Urgent Ex-Parte Manifestation

motion for reconsideration, respectively.

and Motion before the trial court to defer acting on the public
2007, charged

prosecutors recommendation on the proper offense until after the

with homicide for the death of Rafael de las Alas on January 12,

appellate court resolves his application for injunctive reliefs, or

2007 before the Regional Trial Court (RTC) ofMakati City. Branch 150

alternatively, to grant him time to comment on the prosecutors

to which the case was raffled, presided by Judge Elmo Alameda,

recommendation and thereafter set a hearing for the judicial

forthwith issued a commitment order[4] against petitioner who was

determination of probable cause.[10] Petitioner also separately

Petitioner

was,

by

Information[3] of January

16,

AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR

MATERIAL NEW EVIDENCE BEING ADDUCED DURING
THE REINVESTIGATION, RESPONDENT JUDGE SHOULD
HAVE AT LEAST ALLOWED PETITIONERS MOTION FOR
A HEARING FOR JUDICIAL DETERMINATION OF
PROBABLE CAUSE.[15] (emphasis in the original
omitted)

moved for the inhibition of Judge Alameda with prayer to defer

action on the admission of the Amended Information.[11]
The trial court nonetheless issued the other assailed orders,
viz: (1) Order of February 7, 2007[12] that admitted the Amended
Information[13] for murder and directed the issuance of a warrant of
the

Records show that the arraignment scheduled on March 21,

arraignment on February 13, 2007. Petitioner questioned these two

2007 pushed through during which petitioner refused to plead,

orders via supplemental petition before the appellate court.

drawing the trial court to enter a plea of not guilty for him.

arrest;

and

(2) Order

of February

8,

2007[14] which

set

The appellate court dismissed petitioners petition, hence,

his present petition, arguing that:

Prior thereto or on February 23, 2007, petitioner filed an Urgent

Application for Admission to Bail Ex Abundanti Cautela[16] which the
trial court, after hearings thereon, granted by Order of May 21,
2007,[17] it finding that the evidence of guilt for the crime

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO

CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE
BELOW WHEN THE CRIMINAL INFORMATION HAD
ALREADY
BEEN
FILED
WITH
THE LOWER
COURT. HENCE, THE COURT OF APPEALS COMMITTED
A GRAVE ERROR IN FINDING THAT RESPONDENT
JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION
DESPITE HAVING NO BASIS IN THE RULES OF COURT[;]

of murder is not strong. It accordingly allowed petitioner to post bail

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF

DISCRETION IN ADMITTING STATE PROSECUTOR
VELASCOS AMENDED INFORMATION, ISSUING A
WARRANT OF ARREST, AND SETTING THE CASE
BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE
VALIDITY AND LEGALITY OF HIS ORDERS DATED 24
AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED
BY THIS HONORABLE COURT (sic); [AND]

petitioner

CONSIDERING
THAT
PROSECUTOR
VELASCOS
FINDINGS IN HIS RESOLUTION DATED 2 FEBRUARY
2007 ARE BLATANTLY BASED ON MERE SPECULATIONS

in the amount of P300,000 for his provisional liberty.

The trial court, absent any writ of preliminary injunction from the
appellate court, went on to try petitioner under the Amended
Information. By Decision of January 14, 2009, the trial court found
guilty

of

homicide,

sentencing

him

to

suffer

an

indeterminate penalty of six years and one day of prision mayor as

minimum to 12 years and one day ofreclusion temporal as
maximum. From the Decision, petitioner filed an appeal to the
appellate court, docketed as CA-G.R. CR No. 32159, during the
pendency of which he filed an urgent application for admission to
bail

pending

appeal. The

appellate

court

denied

petitioners

application which this Court, in G.R. No. 189122, affirmed by

Decision ofMarch 17, 2010.

The Office of the Solicitor General (OSG) later argued that

the present petition had been rendered moot since the presentation

The

principle

that

the

accused

is

precluded

after

of evidence, wherein petitioner actively participated, had been

arraignment from questioning the illegal arrest or the lack of or

concluded.[18]

irregular

preliminary

investigation applies only

if

hevoluntarily enters his plea and participates during trial, without

be

previously invoking his objections thereto.[19] There must be clear

distinguished from mootness of the petition, for in the present

and convincing proof that petitioner had anactual intention to

case, petitioner did not, by his active participation in the trial, waive

relinquish

his stated objections.

cause. When the only proof of intention rests on what a party does,

Waiver

on

the

part

of

the

accused must

his

right

to

question

the

existence

of

probable

his act should be so manifestly consistent with, and indicative of,

Section 26, Rule 114 of the Rules of Court provides:

an intent to voluntarily and unequivocally relinquish the particular

right that no other explanation of his conduct is possible.[20]

SEC. 26. Bail not a bar to objections on illegal arrest,

lack of or irregular preliminary investigation. An
application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or
the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of
a preliminary investigation of the charge against him,
provided that he raises them before entering his plea.
The court shall resolve the matter as early as
practicable but not later than the start of the trial of
the case.

From the given circumstances, the Court cannot reasonably

infer a valid waiver on the part of petitioner to preclude him from
obtaining a definite resolution of the objections he so timely
invoked. Other than its allegation of active participation, the OSG
offered no clear and convincing proof that petitioners participation
in the trial was unconditional with the intent to voluntarily and
unequivocally

abandon

his

petition. In

fact, on January

26,

2010, petitioner still moved for the early resolution of the present
By applying for bail, petitioner did not waive his right

petition.[21]

to challenge the regularity of the reinvestigation of the charge

against him, the validity of the admission of the Amended

Whatever delay

arising

from

petitioners

availment

of

Information, and the legality of his arrest under the Amended

remedies against the trial courts Orders cannot be imputed to

Information, as he vigorously raised them prior to his arraignment.

petitioner to operate as a valid waiver on his part.Neither can the

During the arraignment on March 21, 2007, petitioner refused to

non-issuance of a writ of preliminary injunction be deemed as a

enter his plea since the issues he raised were still pending

voluntary relinquishment of petitioners principal prayer. The non-

resolution by the appellate court, thus prompting the trial court to

issuance of such injunctive relief only means that the appellate

enter a plea of not guilty for him.

court did not preliminarily find any exception [22] to the long-

standing doctrine that injunction will not lie to enjoin a criminal

prosecution.[23] Consequently, the trial of the case took its course.

After going over into the substance of the petition and the
assailed issuances, the Court finds no reversible error on the part of
the appellate court in finding no grave abuse of discretion in the

The petition is now moot, however, in view of the trial courts

issuance of the four trial court Orders.

rendition of judgment.
In his first assignment of error, petitioner posits that the
A moot and academic case is one that ceases to present a

prosecution has no right under the Rules to seek from the trial court

justiciable controversy by virtue of supervening events, so that a

an investigation or reevaluation of the case except through a

declaration thereon would be of no practical use or value.

[24]

petition for review before the Department of Justice (DOJ). In cases

when an accused is arrested without a warrant, petitioner contends

The judgment convicting petitioner of homicide under the

Amended Information for murder operates as a supervening event
that

mooted

the

present

petition. Assuming

that

there

practical

use

or

value in

abrogating

the

accused.

is

ground[25] to annul the finding of probable cause for murder, there

is no

that the remedy of preliminary investigation belongs only to the

The contention lacks merit.

concluded

proceedings and retrying the case under the original Information

Section 6,[27] Rule 112 of the Rules of Court reads:

for homicide just to arrive, more likely or even definitely, at the

same conviction of homicide. Mootness would have also set in had
petitioner been convicted of murder, for proof beyond reasonable
doubt, which is much higher than probable cause, would have been
established in that instance.
Instead, however, of denying the petition outright on the
ground of mootness, the Court proceeds to resolve the legal issues
in order to formulate controlling principles to guide the bench, bar
and public.[26] In the present case, there is compelling reason to
clarify the remedies available before and after the filing of an
information in cases subject of inquest.

When a person is lawfully arrested without a warrant

involving an offense which requires a preliminary
investigation, the complaint or information may be
filed by a prosecutor without need of such
investigation provided an inquest has been conducted
in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint
may be filed by the offended party or a peace officer
directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125 of
the Revised Penal Code, as amended, in the presence
of his counsel. Notwithstanding the waiver, he may

apply for bail and the investigation must be

terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court
without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as
provided in this Rule. (underscoring supplied)

the arresting officer and the inquest officer during the latters
conduct of inquest. Meanwhile, the arrested person has the option
to avail of a 15-day preliminary investigation, provided he duly
signs a waiver of any objection against delay in his delivery to the
proper judicial authorities under Article 125 of the Revised Penal
Code. For obvious reasons, this remedy is not available to the
private complainant since he cannot waive what he does not

A preliminary investigation is required before the filing of a

have. The benefit of the provisions of Article 125, which requires

complaint or information for an offense where the penalty

the filing of a complaint or information with the proper judicial

prescribed by law is at least four years, two months and one day

authorities within the applicable period, [32] belongs to the arrested

without regard to fine.[28] As an exception, the rules provide that

person.

there is no need for a preliminary investigation in cases of a lawful

The accelerated process of inquest, owing to its summary

arrest without a warrant[29]involving such type of offense, so long as

an inquest, where available, has been conducted.[30]

nature and the attendant risk of running against Article 125, ends
with either the prompt filing of an information in court or the

Inquest is defined as an informal and summary investigation

conducted by a public prosecutor in criminal cases involving

immediate release of the arrested person.[33] Notably, the rules on

inquest do not provide for a motion for reconsideration.[34]

persons arrested and detained without the benefit of a warrant of

arrest issued by the court for the purpose of determining whether

Contrary to petitioners position that private complainant

said persons should remain under custody and correspondingly be

should have appealed to the DOJ Secretary, such remedy is not

charged in court.[31]

immediately available in cases subject of inquest.

It is imperative to first take a closer look at the predicament

of both the arrested person and the private complainant during the
brief period of inquest, to grasp the respective remedies available
to them before and after the filing of a complaint or information in
court.

Noteworthy is the proviso that the appeal to the DOJ

Secretary is by petition by a proper party under such rules as the
Department of Justice may prescribe. [35] The rule referred to is the
2000 National Prosecution Service Rule on Appeal, [36] Section 1 of
which provides that the Rule shall apply to appeals from resolutions

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN

COURT, the private complainant may proceed in coordinating with

in cases

subject

of

preliminary

investigation/

reinvestigation. In cases subject of inquest, therefore, the private

party

should

first

avail

of

preliminary

investigation

or

reinvestigation, if any, before elevating the matter to the DOJ

Secretary.

In fact, the DOJ instructs that before the arraignment of the

accused, trial prosecutors must examine the Information vis--vis

In case the inquest proceedings yield no probable cause, the

the resolution of the investigating prosecutor in order to make the

private complainant may pursue the case through the regular

necessary

corrections

or

revisions

and

to

course of a preliminary investigation.

information is sufficient in form and substance.[41]

ensure

that

the

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT,

the rules yet provide the accused with another opportunity to ask

x x x Since no evidence has been presented at that

stage, the error would appear or be discoverable from
a review of the records of the preliminary
investigation. Of course, that fact may be perceived
by the trial judge himself but, again, realistically it
will be the prosecutor who can initially
determine the same. That is why such error need
not be manifest or evident, nor is it required that such
nuances as offenses includible in the offense charged
be taken into account. It necessarily follows,
therefore, that the prosecutor can and should
institute remedial measures[.][42] (emphasis and
underscoring supplied)

for a preliminary investigation within five days from the time he

learns of its filing. The Rules of Court and the New Rules on
Inquest are silent, however, on whether the private complainant
could invoke, as respondent heirs of the victim did in the present
case, a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition.
All

criminal

actions

commenced

by

complaint

or

information shall be prosecuted under the direction and control of

the public prosecutor.[37] The private complainant in a criminal case
is merely a witness and not a party to the case and cannot, by
himself, ask for the reinvestigation of the case after the information
had been filed in court, the proper party for that being the public
prosecutor who has the control of the prosecution of the case.
[38]

Thus, in cases where the private complainant is allowed to

intervene by counsel in the criminal action, [39] and is granted the

authority to prosecute,

[40]

the private complainant, by counsel and

with the conformity of the public prosecutor, can file a motion for
reinvestigation.

The prosecution of crimes appertains to the executive

department

of

the

government

whose

principal

power

and

responsibility is to see that our laws are faithfully executed. A

necessary component of this power to execute our laws is the right
to prosecute their violators.

The right to prosecute vests the

prosecutor with a wide range of discretion the discretion of what

and whom to charge, the exercise of which depends on a
smorgasbord of factors which are best appreciated by prosecutors.
[43]

The prosecutions discretion is not boundless or infinite,

While Abugotal v. Judge Tiro[47] held that to ferret out the

however.[44] The standing principle is that once an information is

truth, a trial is to be preferred to a reinvestigation, the Court

filed in court, any remedial measure such as a reinvestigation must

therein recognized that a trial court may, where the interest of

be addressed to the sound discretion of the court. Interestingly,

justice so requires, grant a motion for reinvestigation of a criminal

petitioner supports this view.

[45]

Indeed, the Court ruled in one case

case pending before it.

that:
The rule is now well settled that once a
complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or
the conviction or the acquittal of the accused, rests in
the sound discretion of the court. Although the
prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is
already in court, he cannot impose his opinion upon
the tribunal. For while it is true that the prosecutor
has the quasi-judicial discretion to determine whether
or not a criminal case should be filed in court, once
the case had already been brought therein any
disposition the prosecutor may deem proper
thereafter

Once the trial court grants the prosecutions motion for

reinvestigation, the former is deemed to have deferred to the
authority of the prosecutorial arm of the Government. Having
brought the case back to the drawing board, the prosecution is thus
equipped with discretion wide and far reaching regarding the
disposition thereof,[48]subject to the trial courts approval of the
resulting proposed course of action.
Since a reinvestigation may entail a modification of the
criminal information as what happened in the present case, the
Courts holding is bolstered by the rule on amendment of an

should be addressed to the court for its consideration

and approval. The only qualification is that the action
of the court must not impair the substantial rights of
the accused or the right of the People to due process
of law.
xxxx
In such an instance, before a re-investigation
of the case may be conducted by the public
prosecutor, the permission or consent of the court
must be secured. If after such re-investigation the
prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the
case, such proposed course of action may be taken
but shall likewise be addressed to the sound
discretion of the court.[46] (underscoring supplied)

information under Section 14, Rule 110 of the Rules of Court:

A complaint or information may be amended, in
form or in substance, without leave of court, at
any time before the accused enters his plea.
After the plea and during the trial, a formal
amendment may only be made with leave of court
and when it can be done without causing prejudice to
the rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in or
excludes any accused from the complaint or
information, can be made only upon motion by the
prosecutor, with notice to the offended party and with
leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.

If it appears at any time before judgment 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 section 11, Rule
119, provided the accused would not be placed in
double jeopardy. The court may require the witnesses
to give bail for their appearance at the trial.
(emphasis supplied)

Any remedial measure springing from the reinvestigation be it a

complete disposition or an intermediate modification [53] of the
charge is eventually addressed to the sound discretion of the trial
court, which must make an independent evaluation or assessment
of the merits of the case. Since the trial court would ultimately
make the determination on the proposed course of action, it is for

In fine, before the accused enters a plea, a formal or substantial

the prosecution to consider whether a reinvestigation is necessary

amendment of the complaint or information may be made without

to adduce and review the evidence for purposes of buttressing the

leave of court.[49] After the entry of a plea, only a formal

appropriate motion to be filed in court.

amendment may be made but with leave of court and only if it

does not prejudice the rights of the accused. After arraignment, a

More importantly, reinvestigation is required in cases involving a

substantial amendment is proscribed except if the same is

substantial amendment of the information. Due process of law

beneficial to the accused.[50]

demands that no substantial amendment of an information may be

admitted

It must be clarified though that not all defects in an information are

without

investigation. In Matalam

curable by amendment prior to entry of plea. An information which

Sandiganbayan,

is void ab initio cannot be amended to obviate a ground for

an

quashal.

[51]

An amendment which operates to vest jurisdiction upon

the trial court is likewise impermissible.

[52]

conducting

information

[54]

v.

another or
The

2nd

a new
Division

preliminary
of

the

the Court ruled that a substantial amendment in

entitles

an

accused

to

another

preliminary

investigation, unless the amended information contains a charge

related to or is included in the original Information.
The question to be resolved is whether the amendment of the
Information from homicide to murder is considered a substantial
amendment, which would make it not just a right but a duty of the

Considering the general rule that an information may be

prosecution to ask for a preliminary investigation.

amended even in substance and even without leave of court at any

time before entry of plea, does it mean that the conduct of a
reinvestigation at that stage is a mere superfluity?
It is not.

The Court answers in the affirmative.

A substantial amendment consists of the recital
of facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form. The following have

been held to be mere formal amendments: (1) new

allegations which relate only to the range of the
penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge
another offense different or distinct from that charged
in the original one; (3) additional allegations which do
not alter the prosecutions theory of the case so as to
cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment
which does not adversely affect any substantial right
of the accused; and (5) an amendment that
merely adds specifications to eliminate vagueness in
the information and not to introduce new and material
facts, and merely states with additional precision
something which is already contained in the original
information and which adds nothing essential for
conviction for the crime charged.
The test as to whether a defendant is prejudiced by
the amendment is whether a defense under the
information as it originally stood would be available
after the amendment is made, and whether any
evidence defendant might have would be equally
applicable to the information in the one form as in the
other. An amendment to an information which does
not change the nature of the crime alleged therein
does not affect the essence of the offense or cause
surprise or deprive the accused of an opportunity to
meet the new averment had each been held to be
one of form and not of substance. [55] (emphasis and
underscoring supplied)

In one case,[56] it was squarely held that the amendment of

the Information from homicide to murder is one of substance with
very serious consequences.[57] The amendment involved in the
present case consists of additional averments of the circumstances
of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and
material element of the offense, petitioner should be given the
chance to adduce evidence on the matter. Not being merely
clarificatory, the amendment essentially varies the prosecutions
original theory of the case and certainly affects not just the form
but the weight of defense to be mustered by petitioner.
The

Court

distinguishes

the

factual

milieus

in Buhat

v.

CA[58] and Pacoy v. Cajigal,[59] wherein the amendment of the

caption of the Information from homicide to murder was not
considered substantial because there was no real change in the
recital of facts constituting the offense charged as alleged in the
body

of

the

Information,

as

the

allegations

of

qualifying

circumstances were already clearly embedded in the original

Information. Buhat pointed out that the original Information for
homicide

already

alleged

the

use

of

superior

strength,

while Pacoy states that the averments in the amended Information

Matalam adds that the mere fact that the two charges are

for murder are exactly the same as those already alleged in the

related does not necessarily or automatically deprive the accused

original

Information

for

homicide. None

of his right to another preliminary investigation.Notatu dignum is

circumstances obtains in the present case.

of

these

peculiar

the fact that both the original Information and the amended
Information in Matalam were similarly charging the accused with

Considering that another or a new preliminary investigation is

violation of Section 3(e) of theAnti-Graft and Corrupt Practices Act.

required, the fact that what was conducted in the present case was
a reinvestigation does not invalidate the substantial amendment of
the Information. There is no substantial distinction between a

preliminary investigation and a reinvestigation since both are

[63]

conducted in the same manner and for the same objective of

of February

15,

determining whether there exists sufficient ground to engender a

temporary

restraining

well-founded belief that a crime has been committed and the

injunction. Supplementary efforts to seek injunctive reliefs proved

respondent is probably guilty thereof and should be held for trial.

futile.[65] The appellate court thus did not err in finding no grave

[60]

abuse of discretion on the part of the trial court when it proceeded

What is essential is that petitioner was placed on guard to

defend himself from the charge of murder

[61]

after the claimed

The

appellate

court,

2007,[64] denied
order

by

petitioners
and

Resolution

application

writ

of

for

preliminary

with the case and eventually arraigned the accused on March 21,

circumstances were made known to him as early as the first

2007,

there

being

no

injunction

order

from

the

appellate

motion.

court. Moreover, petitioner opted to forego appealing to the DOJ

Secretary, a post-inquest remedy that was available after the

Petitioner did not, however, make much of the opportunity to

reinvestigation and which could have suspended the arraignment.

present

[66]

countervailing

evidence

on

the

proposed

amended

charge. Despite notice of hearing, petitioner opted to merely

observe the proceedings and declined to actively participate, even

Regarding petitioners protestations of haste, suffice to state

with extreme caution, in the reinvestigation. Mercado v. Court of

that the pace in resolving incidents of the case is not per se an

Appeals states

indication of bias. In Santos-Concio v. Department of Justice,[67] the

that

the

rules

do

not

even

require,

as

condition sine qua non to the validity of a preliminary investigation,

Court held:

the presence of the respondent as long as efforts to reach him were

made and an opportunity to controvert the complainants evidence
was accorded him.[62]
In his second assignment of error, petitioner basically assails
the hurried issuance of the last two assailed RTC Orders despite the
pendency before the appellate court of the petition for certiorari
challenging

the

first

two

trial

court

Orders

allowing

reinvestigation.
The Rules categorically state that the petition shall not
interrupt the course of the principal case unless a temporary
retraining order or a writ of preliminary injunction has been issued.

Speed in the conduct of proceedings by a judicial or

quasi-judicial officer cannot per se be instantly
attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers
undue haste. The orderly administration of justice
remains
as
the
paramount
and
constant
consideration, with particular regard of the
circumstances peculiar to each case.
The presumption of regularity includes the public
officers official actuations in all phases of
work. Consistent with such presumption, it was
incumbent upon petitioners to present contradictory
evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to
discharge. The swift completion of the Investigating
Panels initial task cannot be relegated as shoddy or
shady without discounting the presumably regular

performance of
prosecutors.[68]

not

just

one

but

five

state

The statements of the DOJ Secretary do not evince a

determination to file the Information even in the absence of
probable

cause.[73] On

the

contrary,

the

remarks

merely

There is no ground for petitioners protestations against the DOJ

underscored the importance of securing basic investigative reports

Secretarys

Prosecutor

to support a finding of probable cause. The original Resolution even

Emmanuel Velasco as Acting City Prosecutor of Makati City for the

recognized that probable cause for the crime of murder cannot be

present case[69] and the latters conformity to the motion for

determined based on the evidence obtained [u]nless and until a

reinvestigation.

more

sudden

designation

of

Senior

State

thorough

investigation

[is/]are presented in evidence[.]

is

conducted and

eyewitness/es

[74]

In granting the reinvestigation, Judge Alameda cannot choose the

or

The trial court concluded that the wound sustained by the victim at

preliminary investigation.[70] There is a hierarchy of officials in the

the back of his head, the absence of paraffin test and ballistic

prosecutory arm of the executive branch headed by the Secretary

examination,

of Justice[71] who is vested with the prerogative to appoint a special

rationalized by the prosecution in its motion, are sufficient

prosecutor or designate an acting prosecutor to handle a particular

circumstances that require further inquiry.

public

prosecutor

who

will

conduct

the

reinvestigation

and

the

handling

of

physical

evidence, [75] as

case, which broad power of control has been recognized by

That the evidence of guilt was not strong as subsequently

jurisprudence.[72]

assessed

in

the

bail

hearings

does

not

affect

the

prior

Secretarys

determination of probable cause because, as the appellate court

uncontested statements to the media which aired his opinion that if

correctly stated, the standard of strong evidence of guilt which is

the assailant merely intended to maim and not to kill the victim,

sufficient to deny bail to an accused is markedly higher than the

one bullet would have sufficed the DOJ Secretary reportedly uttered

standard of judicial probable cause which is sufficient to initiate a

that the filing of the case of homicide against ano against

criminal case.[76]

As

for

the

trial

courts

ignoring

the

DOJ

Leviste lintek naman eh I told you to watch over that case there
should be a report about the ballistics, about the paraffin, etc., then

In his third assignment of error, petitioner faults the trial

thats not a complete investigation, thats why you should use that

court for not conducting, at the very least, a hearing for judicial

as a ground no abuse of discretion, much less a grave one, can be

determination of probable cause, considering the lack of substantial

imputed to it.

or material new evidence adduced during the reinvestigation.

Petitioners argument is specious.

with the court is first andforemost to determine the existence or

There

are

two

kinds

of

cause: executive and judicial. The

determination
executive

of

probable

non-existence of probable cause for the arrest of the accused.[80]

determination of

probable cause is one made during preliminary investigation. It is a

function that properly pertains to the public prosecutor who is given
a broad discretion to determine whether probable cause exists and
to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether
or not a criminal case must be filed in court. Whether that function
has been correctly discharged by the public prosecutor, i.e.,
whether he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does
not and may not be compelled to pass upon. [77]

What the Constitution underscores is the exclusive

and personal responsibility of the issuing judge to
satisfy himself of the existence of probable
cause. But the
judge
is
not
required
to
personally examine the complainant and his
witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report
and the supporting documents submitted by the
prosecutor regarding the existence of probable
cause, and on the basis thereof, he may already
make a personal determination of the existence of
probable cause; and (2) if he is not satisfied that
probable cause exists, he may disregard the
prosecutors report and require the submission of
supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of
probable cause.[81] (emphasis and underscoring
supplied)

The judicial determination of probable cause is one made by

the judge to ascertain whether a warrant of arrest should be issued
against the accused. The judge must satisfy himself that based on
the evidence submitted, there is necessity for placing the accused
under custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced to issue
the arrest warrant.[78] Paragraph (a), Section 5,[79] Rule 112 of the
Rules of Court outlines the procedure to be followed by the RTC.

The rules do not require cases to be set for hearing to determine

probable cause for the issuance of a warrant of arrest of the
accused before any warrant may be issued.[82]Petitioner thus
cannot, as a matter of right, insist on a hearing for judicial
determination

of

probable

cause. Certainly,

petitioner cannot

determine beforehand how cursory or exhaustive the [judge's]

examination of the records should be [since t]he extent of the
judges examination depends on the exercise of his sound discretion

To move the court to conduct a judicial determination of

probable cause is a mere superfluity, for with or without such
motion, the judge is duty-bound to personally evaluate the
resolution of the public prosecutor and the supporting evidence. In
fact, the task of the presiding judge when the Information is filed

as the circumstances of the case require.[83] In one case, the Court

emphatically stated:
The periods provided in the Revised Rules of Criminal
Procedure are mandatory, and as such, the judge
must determine the presence or absence of probable
cause within such periods. The Sandiganbayans
determination of probable cause is made ex

parte and is summary in nature, not adversarial. The

Judge should not be stymied and distracted
from his determination of probable cause by
needless
motions
for
determination
of
probable
cause
filed
by
the
accused.
[84]
(emphasis and underscoring supplied)

In a petition for certiorari, like that filed by petitioner before

the appellate court, the jurisdiction of the court is narrow in
scope. It is limited to resolving only errors of jurisdiction. It is not to
stray at will and resolve questions and issues beyond its
competence, such as an error of judgment. [87] The courts duty in the
pertinent case is confined to determining whether the executive

Petitioner proceeds to discuss at length evidentiary matters,

and judicial determination of probable cause was done without or in

arguing that no circumstances exist that would qualify the crime

excess of jurisdiction or with grave abuse of discretion. Although it

from homicide to murder.

is possible that error may be committed in the discharge of lawful

The allegation of lack of substantial or material new

evidence deserves no credence, because new pieces of evidence
are not prerequisites for a valid conduct of reinvestigation. It is not
material that no new matter or evidence was presented during the

functions, this does not render the act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any
showing of grave abuse of discretion amounting to excess of
jurisdiction.[88]

reinvestigation of the case. It should

be stressed that reinvestigation, as the word itself implies, is

merely a repeat investigation of the case. New matters or evidence
are not prerequisites for a reinvestigation, which is simply a chance

WHEREFORE, the

petition

is DENIED. The

assailed

for the prosecutor to review and re-evaluate its findings and the

Decision and Resolution of the Court of Appeals in CA-G.R. SP No.

evidence already submitted.[85]

97761 are AFFIRMED.

Moreover, under Rule 45 of the Rules of Court, only

SO ORDERED.

questions of law may be raised in, and be subject of, a petition for
review on certiorari since this Court is not a trier of facts. The Court
cannot thus review the evidence adduced by the parties on the

Republic of the Philippines

Supreme Court
Manila

issue of the absence or presence of probable cause, as there exists

no exceptional circumstances to warrant a factual review. [86]

SECOND DIVISION

RODEL LUZ y ONG,

Petitioner,

G. R. No. 197788
Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

- versus -

PEOPLE OF THE PHILIPPINES,[1]

Respondent.

Promulgated:
February 29, 2012

x-------------------------------------------------x

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45
seeking to set aside the Court of Appeals (CA) Decision in CA-G.R.
CR No. 32516 dated 18 February 2011[2]and Resolution dated 8 July

that on March 10, 2003 at around 3:00 oclock in the

morning, he saw the accused, who was coming from
the direction of Panganiban Drive and going to
Diversion Road, Naga City, driving a motorcycle
without a helmet; that this prompted him to flag
down the accused for violating a municipal ordinance
which requires all motorcycle drivers to wear helmet
(sic) while driving said motor vehicle; that he invited
the accused to come inside their sub-station since
the place where he flagged down the accused is
almost in front of the said sub-station; that while he
and SPO1 Rayford Brillante were issuing a citation
ticket for violation of municipal ordinance, he noticed
that the accused was uneasy and kept on getting
something from his jacket; that he was alerted and
so, he told the accused to take out the contents of
the pocket of his jacket as the latter may have a
weapon inside it; that the accused obliged and slowly
put out the contents of the pocket of his jacket which
was a nickel-like tin or metal container about two (2)
to three (3) inches in size, including two (2)
cellphones, one (1) pair of scissors and one (1) Swiss
knife; that upon seeing the said container, he asked
the accused to open it; that after the accused
opened the container, he noticed a cartoon cover
and something beneath it; and that upon his
instruction, the accused spilled out the contents of
the container on the table which turned out to be
four (4) plastic sachets, the two (2) of which were
empty while the other two (2) contained
suspected shabu.[3]

2011.
Arraigned on 2 July 2003, petitioner, assisted by counsel,
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which
sustained the version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then
assigned at the Sub-Station 1 of the Naga City Police
Station as a traffic enforcer, substantially testified

entered a plea of Not guilty to the charge of illegal possession of

dangerous drugs. Pretrial was terminated on 24 September 2003,
after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a
forensic chemist testified for the prosecution. On the other hand,
petitioner testified for himself and raised the defense of planting of
evidence and extortion.

In its 19 February 2009 Decision,[4] the RTC convicted

petitioner of illegal possession of dangerous drugs

[5]

committed on

Petitioner raised the following grounds in support of his

Petition:

10 March 2003. It found the prosecution evidence sufficient to show

that he had been lawfully arrested for a traffic violation and then

(i)

THE SEARCH AND SEIZURE OF THE

ALLEGED SUBJECT SHABU IS INVALID.

(ii)

THE PRESUMPTION OF REGULARITY

IN THE PERFORMANCE OF DUTY OF THE
POLICE OFFICER CANNOT BE RELIED
UPON IN THIS CASE.

(iii)

THE INTEGRITY AND EVIDENTIARY

VALUE
OF
THE
ALLEGED
SUBJECT
SPECIMEN HAS BEEN COMPROMISED.

(iv)

THE
GUILT
OF
THE
ACCUSEDPETITIONER WAS NOT PROVEN BEYOND
THE REASONABLE DOUBT (sic).[7]

subjected to a valid search, which led to the discovery on his

person of two plastic sachets later found to contain shabu. The RTC
also found his defense of frame-up and extortion to be weak, selfserving and unsubstantiated. The dispositive portion of its Decision
held:
WHEREFORE, judgment is hereby rendered,
finding accused RODEL LUZ y ONG GUILTY beyond
reasonable doubt for the crime of violation of Section
11, Article II of Republic Act No. 9165 and sentencing
him to suffer the indeterminate penalty of
imprisonment ranging from twelve (12) years and (1)
day, as minimum, to thirteen (13) years, as
maximum, and to pay a fine of Three Hundred
Thousand Pesos (300,000.00).
The subject shabu is hereby confiscated for
turn over to the Philippine Drug Enforcement Agency
for its proper disposition and destruction in
accordance with law.
SO ORDERED.

[6]

Upon review, the CA affirmed the RTCs Decision.

On 12 September 2011, petitioner filed under Rule 45 the
instant Petition for Review on Certiorari dated 1 September 2011. In
a Resolution dated 12 October 2011, this Court required respondent
to file a comment on the Petition. On 4 January 2012, the latter
filed its Comment dated 3 January 2012.

Petitioner claims that there was no lawful search and seizure,

because there was no lawful arrest. He claims that the finding that
there was a lawful arrest was erroneous, since he was not even
issued a citation ticket or charged with violation of the city
ordinance. Even assuming there was a valid arrest, he claims that
he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully
arrested, the RTC held thus:
It is beyond dispute that the accused was flagged
down and apprehended in this case by Police Officers
Alteza and Brillante for violation of City Ordinance
No. 98-012, an ordinance requiring the use of crash
helmet by motorcycle drivers and riders thereon in
the City of Naga and prescribing penalties for
violation thereof. The accused himself admitted that
he was not wearing a helmet at the time when he
was flagged down by the said police officers, albeit
he had a helmet in his possession. Obviously, there is

legal basis on the part of the apprehending officers

to flag down and arrest the accused because the
latter was actually committing a crime in their
presence, that is, a violation of City Ordinance No.
98-012. In other words, the accused, being caught
inflagrante delicto violating the said Ordinance, he
could therefore be lawfully stopped or arrested by
the apprehending officers. x x x.[8]

We find the Petition to be impressed with merit, but not for the
particular reasons alleged. In criminal cases, an appeal throws the
entire case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or
even reverse the trial courts decision based on grounds other than
those that the parties raised as errors.[9]
First, there was no valid arrest of petitioner. When he was
flagged down for committing a traffic violation, he was not, ipso
facto and solely for this reason, arrested.
Arrest is the taking of a person into custody in order that he
or she may be bound to answer for the commission of an offense.
[10]

It is effected by an actual restraint of the person to be arrested

or by that persons voluntary submission to the custody of the one

making the arrest. Neither the application of actual force, manual
touching of the body, or physical restraint, nor a formal declaration
of arrest, is required. It is enough that there be an intention on the
part of one of the parties to arrest the other, and that there be an
intent on the part of the other to submit, under the belief and
impression that submission is necessary.[11]

Under R.A. 4136, or the Land Transportation and Traffic

Code, the general procedure for dealing with a traffic violation is
not the arrest of the offender, but the confiscation of the drivers
license of the latter:
SECTION 29. Confiscation of Driver's License.
Law enforcement and peace officers of other
agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or
any regulations issued pursuant thereto, or of local
traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the
driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize
the driver to operate a motor vehicle for a period not
exceeding seventy-two hours from the time and date
of issue of said receipt. The period so fixed in the
receipt shall not be extended, and shall become
invalid thereafter. Failure of the driver to settle his
case within fifteen days from the date of
apprehension will be a ground for the suspension
and/or revocation of his license.

Similarly,
Manual

[12]

the

Philippine

National

Police

(PNP)

Operations

provides the following procedure for flagging down

vehicles during the conduct of checkpoints:

SECTION 7. Procedure in Flagging Down or
Accosting Vehicles While in Mobile Car. This rule is a
general concept and will not apply in hot pursuit
operations. The mobile car crew shall undertake the
following, when applicable: x x x
m. If it concerns traffic violations, immediately issue
a Traffic Citation Ticket (TCT) or Traffic
Violation Report (TVR). Never indulge in
prolonged, unnecessary conversation or
argument with the driver or any of the
vehicles occupants;

At the time that he was waiting for PO3 Alteza to write his
citation ticket, petitioner could not be said to have been under
arrest. There was no intention on the part of PO3 Alteza to arrest
him, deprive him of his liberty, or take him into custody. Prior to the
issuance of the ticket, the period during which petitioner was at the
police station may be characterized merely as waiting time. In fact,
as found by the trial court, PO3 Alteza himself testified that the
only reason they went to the police sub-station was that petitioner
had been flagged down almost in front of that place. Hence, it was
only for the sake of convenience that they were waiting there.
There was no intention to take petitioner into custody.
In Berkemer v. McCarty,[13] the United States (U.S.) Supreme
Court discussed at length whether the roadside questioning of a
motorist detained pursuant to a routine traffic stop should be
considered custodial interrogation. The Court held that, such
questioning does not fall under custodial interrogation, nor can it be
considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and
the length of time the procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a
traffic stop significantly curtails the freedom of action
of the driver and the passengers, if any, of the
detained vehicle. Under the law of most States, it is a
crime either to ignore a policemans signal to stop
ones car or, once having stopped, to drive away
without permission. x x x
However, we decline to accord talismanic
power to the phrase in the Miranda opinion
emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced
strictly, but only in those types of situations in which
the concerns that powered the decision are
implicated. Thus, we must decide whether a traffic
stop exerts upon a detained person pressures that

sufficiently impair his free exercise of his privilege

against self-incrimination to require that he be
warned of his constitutional rights.
Two features of an ordinary traffic stop
mitigate the danger that a person questioned will be
induced to speak where he would not otherwise do
so freely, Miranda v. Arizona, 384 U. S., at 467. First,
detention of a motorist pursuant to a traffic
stop is presumptively temporary and brief. The
vast majority of roadside detentions last only a few
minutes. A motorists expectations, when he sees a
policemans light flashing behind him, are that he will
be obliged to spend a short period of time answering
questions and waiting while the officer checks his
license and registration, that he may then be given a
citation, but that in the end he most likely will be
allowed to continue on his way. In this respect,
questioning incident to an ordinary traffic stop is
quite different from stationhouse interrogation, which
frequently is prolonged, and in which the detainee
often is aware that questioning will continue until he
provides his interrogators the answers they seek. See
id., at 451.
Second, circumstances associated with
the typical traffic stop are not such that the
motorist feels completely at the mercy of the
police. To be sure, the aura of authority surrounding
an armed, uniformed officer and the knowledge that
the officer has some discretion in deciding whether
to issue a citation, in combination, exert some
pressure on the detainee to respond to questions.
But other aspects of the situation substantially offset
these forces. Perhaps most importantly, the typical
traffic stop is public, at least to some degree. x x x
In both of these respects, the usual traffic
stop is more analogous to a so-called Terry
stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a
formal
arrest. x
x
x
The
comparatively
nonthreatening character of detentions of this sort
explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates
of Miranda. The similarly noncoercive aspect of
ordinary traffic stops prompts us to hold that persons

temporarily detained pursuant to such stops are not

in custody for the purposes of Miranda.

This ruling does not imply that there can be no arrest for a traffic

xxxxxxxxx

officer to deprive the motorist of liberty, or to take the latter into

We are confident that the state of affairs

projected by respondent will not come to pass. It is
settled that the safeguards prescribed by Miranda
become applicable as soon as a suspects freedom of
action is curtailed to a degree associated with formal
arrest. California v. Beheler, 463 U. S. 1121, 1125
(1983) (per curiam). If a motorist who has been
detained pursuant to a traffic stop thereafter is
subjected to treatment that renders him in custody
for practical purposes, he will be entitled to the full
panoply of protections prescribed by Miranda. See
Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per
curiam). (Emphasis supplied.)

custody, the former may be deemed to have arrested the motorist.

violation. Certainly, when there is an intent on the part of the police

In this case, however, the officers issuance (or intent to issue) a

traffic citation ticket negates the possibility of an arrest for the
same violation.
Even if one were to work under the assumption that
petitioner was deemed arrested upon being flagged down
for a traffic violation and while awaiting the issuance of his
ticket, then the requirements for a valid arrest were not
complied with.

The U.S. Court in Berkemer thus ruled that, since the motorist
therein was only subjected to modest questions while still at the
scene of the traffic stop, he was not at that moment placed under
custody

(such

that

he

should

have

been

apprised

of

his Miranda rights), and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered under arrest at
the time that his traffic citation was being made.
It also appears that, according to City Ordinance No. 98-012, which
was violated by petitioner, the failure to wear a crash helmet while
riding a motorcycle is penalized by a fine only. Under the Rules of
Court, a warrant of arrest need not be issued if the information or
charge was filed for an offense penalized by a fine only. It may be
stated as a corollary that neither can a warrantless arrest be made
for such an offense.

This Court has held that at the time a person is arrested, it

shall be the duty of the arresting officer to inform the latter of the
reason for the arrest and must show that person the warrant of
arrest, if any. Persons shall be informed of their constitutional rights
to remain silent and to counsel, and that any statement they might
make could be used against them. [14] It may also be noted that in
this case, these constitutional requirements were complied with by
the police officers only after petitioner had been arrested for illegal
possession of dangerous drugs.
In Berkemer,

the

U.S.

Court

also

noted

that

the Miranda warnings must also be given to a person apprehended

due to a traffic violation:
The purposes of the safeguards prescribed by
Miranda are to ensure that the police do not coerce
or trick captive suspects into confessing, to relieve
the inherently compelling pressures generated by the
custodial setting itself, which work to undermine the
individuals will to resist, and as much as possible to

free courts from the task of scrutinizing individual

cases to try to determine, after the fact, whether
particular confessions were voluntary.
Those
purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors
as they are by questioning of persons suspected of
felonies.

otherwise illegal search; that is, the consent must be unequivocal,

specific, intelligently given and uncontaminated by any duress or
coercion. While the prosecution claims that petitioner acceded to
the instruction of PO3 Alteza, this alleged accession does not
suffice to prove valid and intelligent consent. In fact, the RTC found
that petitioner was merely told to take out the contents of his
pocket.[18]

If it were true that petitioner was already deemed arrested when he

was flagged down for a traffic violation and while he waiting for his
ticket, then there would have been no need for him to be arrested
for a second timeafter the police officers allegedly discovered the
drugsas he was already in their custody.

Whether consent to the search was in fact voluntary is a

question of fact to be determined from the totality of all the
circumstances. Relevant to this determination are the following
characteristics of the person giving consent and the environment in
which consent is given: (1) the age of the defendant; (2) whether

Second, there being no valid arrest, the warrantless search

the defendant was in a public or a secluded location; (3) whether

that resulted from it was likewise illegal.

the defendant objected to the search or passively looked on; (4) the
education and intelligence of the defendant; (5) the presence of

The following are the instances when a warrantless search is

coercive police procedures; (6) the defendants belief that no

allowed: (i) a warrantless search incidental to a lawful arrest; (ii)

incriminating evidence would be found; (7) the nature of the police

search of evidence in plain view; (iii) search of a moving vehicle;

questioning; (8) the environment in which the questioning took

(iv) consented warrantless search; (v) customs search; (vi) a stop

place; and (9) the possibly vulnerable subjective state of the person

and frisk search; and (vii) exigent and emergency circumstances.

consenting. It is the State that has the burden of proving, by clear

[15]

and positive testimony, that the necessary consent was obtained,

None of the above-mentioned instances, especially a search

incident to a lawful arrest, are applicable to this case.

and was freely and voluntarily given. [19] In this case, all that was
alleged was that petitioner was alone at the police station at three

It must be noted that the evidence seized, although alleged to be

in the morning, accompanied by several police officers. These

inadvertently discovered, was not in plain view. It was actually

circumstances weigh heavily against a finding of valid consent to a

concealed inside a metal container inside petitioners pocket.

warrantless search.

Clearly, the evidence was not immediately apparent.

[16]

Neither does the search qualify under the stop and frisk rule. While
Neither was there a consented warrantless search. Consent to a

the rule normally applies when a police officer observes suspicious

search is not to be lightly inferred, but shown by clear and

or unusual conduct, which may lead him to believe that a criminal

convincing evidence.[17] It must be voluntary in order to validate an

act may be afoot, the stop and frisk is merely a limited protective
search of outer clothing for weapons.[20]
In Knowles v. Iowa,

[21]

the U.S. Supreme Court held that when a

police officer stops a person for speeding and correspondingly

issues a citation instead of arresting the latter, this procedure does
not authorize the officer to conduct a full search of the car. The
Court therein held that there was no justification for a full-blown
search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the
motorist to alight from the car or doing a patdown:
In Robinson, supra, we noted the two
historical rationales for the search incident to arrest
exception: (1) the need to disarm the suspect in
order to take him into custody, and (2) the need to
preserve evidence for later use at trial. x x x But
neither of these underlying rationales for the search
incident to arrest exception is sufficient to justify the
search in the present case.
We
have
recognized
that
the
first
rationaleofficer safetyis both legitimate and weighty,
x x x The threat to officer safety from issuing a traffic
citation, however, is a good deal less than in the case
of a custodial arrest. In Robinson, we stated that a
custodial arrest involves danger to an officer because
of the extended exposure which follows the taking of
a suspect into custody and transporting him to the
police station. 414 U. S., at 234-235. We recognized
that [t]he danger to the police officer flows from the
fact of the arrest, and its attendant proximity, stress,
and uncertainty, and not from the grounds for arrest.
Id., at 234, n. 5. A routine traffic stop, on the
other hand, is a relatively brief encounter and
is more analogous to a so-called Terry stop . . .
than to a formal arrest. Berkemer v. McCarty, 468
U. S. 420, 439 (1984). See also Cupp v. Murphy, 412
U. S. 291, 296 (1973) (Where there is no formal
arrest . . . a person might well be less hostile to the

police and less likely to take conspicuous, immediate

steps to destroy incriminating evidence).
This is not to say that the concern for
officer safety is absent in the case of a routine
traffic stop. It plainly is not. See Mimms, supra, at
110; Wilson, supra, at 413-414. But while the
concern for officer safety in this context may
justify the minimal additional intrusion of
ordering a driver and passengers out of the
car, it does not by itself justify the often
considerably greater intrusion attending a full
fieldtype search. Even without the search authority
Iowa urges, officers have other, independent bases
to search for weapons and protect themselves from
danger. For example, they may order out of a vehicle
both the driver, Mimms, supra, at 111, and any
passengers, Wilson, supra, at 414; perform a
patdown of a driver and any passengers upon
reasonable suspicion that they may be armed and
dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct
a Terry patdown of the passenger compartment of a
vehicle upon reasonable suspicion that an occupant
is dangerous and may gain immediate control of a
weapon, Michigan v. Long, 463 U. S. 1032, 1049
(1983); and even conduct a full search of the
passenger compartment, including any containers
therein, pursuant to a custodial arrest, New York v.
Belton, 453 U. S. 454, 460 (1981).
Nor has Iowa shown the second justification for the
authority to search incident to arrestthe need to
discover and preserve evidence. Once Knowles was
stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had
been obtained. No further evidence of excessive
speed was going to be found either on the person of
the offender or in the passenger compartment of the
car. (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he
may have failed to object to the illegality of his arrest at the earliest
opportunity, a waiver of an illegal warrantless arrest does not,

THIRD DIVISION

however, mean a waiver of the inadmissibility of evidence seized

during the illegal warrantless arrest.[22]
The Constitution guarantees the right of the people to be
secure in their persons, houses, papers and effects against
unreasonable searches and seizures.[23] Any evidence obtained in
violation of said right shall be inadmissible for any purpose in any

G.R. No. 191532

August 15, 2012

MARGARITA AMBRE Y CAYUNI, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES Respondent.
PEREZ,*

proceeding. While the power to search and seize may at times be

necessary to the public welfare, still it must be exercised and the

REYES,**

law implemented without contravening the constitutional rights of

DECISION

citizens, for the enforcement of no statute is of sufficient

importance to justify indifference to the basic principles of

MENDOZA, J.:

government.[24]
The subject items seized during the illegal arrest are
inadmissible.[25] The drugs are the very corpus delicti of the crime
of illegal possession of dangerous drugs. Thus, their inadmissibility
precludes conviction and calls for the acquittal of the accused. [26]
WHEREFORE, the Petition is GRANTED. The 18 February
2011 Decision of the Court of Appeals in CA-G.R. CR No. 32516
affirming the judgment of conviction dated 19 February 2009 of the
Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in
Criminal Case No. RTC 2003-0087, is hereby REVERSED and SET
ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and
ordered immediately released from detention, unless his continued
confinement is warranted by some other cause or ground.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

This is a petition for review on certiorari seeking to reverse and set

aside the November 26, 2009 Decision 1 and the March 9, 2010
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 31957,
which affirmed the September 1, 2008 Decision3 of the Regional
Trial Court, Branch 123, Caloocan City, (RTC) in Criminal Case No ..
C-73029, finding petitioner Margarita Ambre y
Cayuni (Ambre) guilty beyond reasonable doubt of the crime of
violation of Section 15, Article II of Republic Act (R.A.) No. 9165.
THE FACTS
Two separate Informations were filed against Ambre, and coaccused, Bernie Castro (Castro) and Kaycee Mendoza (Mendoza),
before the RTC charging them with illegal possession of drug
paraphernalia docketed as Criminal Case No. C-73028, and illegal
use of methylamphetamine hydrochloride, otherwise known as
shabu, docketed as Criminal Case No. C-73029. The Informations
indicting the accused read:
Criminal Case No. C-73028
That on or about 20th day of April 2005 in Caloocan City, Metro
Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then

and there willfully, unlawfully and feloniously have in his

possession, custody and control one (1) unsealed transparent
plastic sachet containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum
foil strip containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded
aluminum foil strip containing traces of white crystalline substance,
(METHYLAMPHETAMINE HYDROCHLORIDE) and two (2) disposable
plastic lighters, knowing the same are paraphernalias instruments
apparatus fit or intended for smoking, consuming, administering,
ingesting or introducing dangerous drug (METHYLAMPHETAMINE
HYDROCHLORIDE) into the body.
Contrary to law.4
Criminal Case No. C-73029
That on or about the 20th of April 2005 in Caloocan City, Metro
Manila and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping
with one another, without being authorized by law, did then and
there willfully, unlawfully and feloniously use and sniff
Methylamphetamine Hydrochloride (Shabu), knowing the same to
be a dangerous drug under the provisions of the above-cited law.
Contrary to law.5
When arraigned, Castro and Mendoza pleaded guilty to both
charges. Consequently, they were meted the penalty of
imprisonment of six (6) months and one (1) day to one (1) year and
eight (8) months and a fine of P25,000.00 in Criminal Case No. C73028. For their conviction in Criminal Case No. C-73029, the RTC
ordered their confinement at the Center for the Ultimate
Rehabilitation of Drug Dependents (CUREDD) for a period of six (6)
months.6
Ambre, on the other hand, entered a plea of not guilty to the
charges.7 Trial on the merits ensued.
The Version of the Prosecution

From the testimonies of prosecution witnesses PO3 Fernando

Moran (PO3 Moran), PO1 Ronald Allan Mateo(PO1 Mateo), PO2
Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa
(P/Insp. dela Rosa), it appeared that on April 20, 2005, the Caloocan
Police Station Anti-Illegal Drug-Special Operation Unit conducted a
buy-bust operation pursuant to a tip from a police informant that a
certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were
engaged in the selling of dangerous drugs at a residential
compound in Caloocan City; that the buy-bust operation resulted in
the arrest of Aderp and a certain Moctar Tagoranao (Tagoranao);
that Sultan ran away from the scene of the entrapment operation
and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him; that in the
course of the chase, Sultan led the said police officers to his house;
that inside the house, the police operatives found Ambre, Castro
and Mendoza having a pot session; that Ambre, in particular, was
caught sniffing what was suspected to be shabu in a rolled up
aluminum foil; and that PO3 Moran ran after Sultan while PO2 Masi
and PO1 Mateo arrested Ambre, Castro and Mendoza for illegal use
of shabu.
The items confiscated from the three were marked and, thereafter,
submitted for laboratory examination. Physical Science Report No.
DT-041-05 to DT-043-05 stated that the urine samples taken from
Ambre and her coaccused were positive for the presence of shabu
while Physical Science Report No. D-149-05 showed that the items
seized from them were all found positive for traces of shabu.8
The Version of the Defense
Ambre vehemently denied the charges against her. Through the
testimonies of Ambre, Mendoza and Lily Rosete(Rosete), the
defense claimed that on the afternoon of April 20, 2005, Ambre was
inside the residential compound in Caloocan to buy malong; that
her mother asked Rosete to accompany her because Rosetes
daughter-in-law, Nancy Buban (Buban), was a resident of Phase 12,
Caloocan City, an area inhabited by Muslims; that when they failed
to buy malong, Rosete and Buban left her inside the residential
compound to look for other vendors; that ten minutes later, the
policemen barged inside the compound and arrested her; that she
was detained at the Caloocan City Jail where she met Castro,

Mendoza and Tagoranao; and that she was not brought to the
Philippine National Police (PNP) Crime Laboratory for drug testing.
Rosete further testified that after she had left Ambre inside the
compound to find other malong vendors, she returned fifteen
minutes later and learned that the policemen had arrested people
inside the compound including Ambre.
Mendoza, who was convicted in Criminal Case No. C-73029,
claimed that no pot session took place on the afternoon of April 20,
2005. She averred that she and Ambre were merely inside the
residential compound, when policemen suddenly came in and
pointed guns at them.9

The shabu subject of these cases is hereby confiscated in favor of

the government to be disposed of in accordance with the rules
governing the same.
Costs against the accused.
SO ORDERED.10
The Decision of the Court of Appeals
Undaunted, Ambre appealed the judgment of conviction before the
CA professing her innocence of the crime. On November 26, 2009,
the CA rendered the assailed decision, the dispositive portion of
which reads:

The Ruling of the Regional Trial Court

On September 1, 2008, the RTC rendered its decision declaring that
the prosecution was able to establish with certitude the guilt of
Ambre for illegal use of methylamphetamine hydrochloride or
violation of Section 15, Article II of R.A. No. 9165. The RTC,
however, acquitted her of the crime of violation of Section 12,
Article II of R.A. No. 9165 for failure of the prosecution to prove with
particularity the drug paraphernalia found in her possession. The
trial court adjudged:
WHEREFORE, premises considered, judgment is hereby rendered as
follows:
1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE
Y CAYUNI not guilty of the crime of Violation of Section 12, Article II,
RA 9165;
2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y
CAYUNI guilty beyond reasonable doubt of the crime of Violation of
Sec. 15, Art. II RA 9165 and hereby sentences her to be confined
and rehabilitated at the government rehabilitation center in
Bicutan, Taguig, Metro Manila for a period of six (6) months. The six
(6) month period of rehabilitation shall commence only from the
time that she is brought inside the rehabilitation center and its
promulgation by this court for which the accused shall be notified.

WHEREFORE, premises considered, the appeal is hereby DENIED.

The Decision dated September 1, 2008 of the Regional Trial Court,
Branch 123, Caloocan City is AFFIRMED.
SO ORDERED.11
Ambre's motion for reconsideration was denied by the CA in its
March 9, 2010 Resolution. Hence, she filed this petition
THE ISSUES
Ambre raised the following issues:
1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE
AGAINST THE PETITIONER ON APRIL 20, 2005 (THAT YIELDED
ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH THE
MANDATED LEGAL PROCEDURES IN CONDUCTING A BUY-BUST
OPERATION.
2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE
AGAINST THE PETITIONER WERE PART AND PARCEL OF THE
DISMISSED AND DISCREDITED BUY-BUST OPERATIONS OF THE
POLICE AND/OR "FRUITS OF THE POISONOUS TREE" AND HENCE,
WERE ILLEGAL.

3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE

SEIZED DURING THE ILLEGAL BUY-BUST OPERATION ARE
ADMISSIBLE AS EVIDENCE.

maintains that she was not subjected to a confirmatory test and,

hence, the imposition of the penalty of six months rehabilitation
was not justified.

4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE

FAVORABLE TESTIMONY OF PETITIONER'S WITNESS, HER COACCUSED, KAYCEE MENDOZA, ON THE GROUND THAT THE LATTER
EARLIER PLED GUILTY TO SUCH ILLEGAL USE, HAD VIOLATED THE
RULE ON INTER ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE
RULES OF COURT.

For the State, the Office of the Solicitor General (OSG) urges this
Court to affirm the challenged decision for failure of Ambre to show
that the RTC committed any error in convicting her of illegal use of
shabu. The OSG insists that Ambre was lawfully arrested in
accordance with Section 5, Rule 113 of the Rules of Court. It is of
the opinion that the credible and compelling evidence of the
prosecution could not be displaced by the empty denial offered by
Ambre.

5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6)

MONTHS REHABILITATION IN A GOVERNMENT CENTER IS A NULLITY
GIVEN THE LACK OF CONFIRMATORY TEST AS REQUIRED UNDER
R.A. 9165 ("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002").12

THE COURT'S RULING

The conviction of Ambre stands.

A perusal of the pleadings filed by the parties leads the Court to

conclude that the case revolves on the following core issues:
1.) Whether the warrantless arrest of Ambre and the search
of her person was valid; and
2.) Whether the items seized are inadmissible in evidence.
Essentially, Ambre insists that the warrantless arrest and search
made against her were illegal because no offense was being
committed at the time and the police operatives were not
authorized by a judicial order to enter the dwelling of Sultan. She
argues that the alleged "hot pursuit" on Sultan which ended in the
latter's house, where she, Mendoza and Castro were supposedly
found having a pot session, was more imaginary than real. In this
regard, Ambre cites the April 29, 2005 Resolution of the
Prosecutor's Office of Caloocan City dismissing the case against
Aderp and Sultan for insufficiency of evidence because the April 20,
2005 buy-bust operation was highly suspicious and doubtful. She
posits that the items allegedly seized from her were inadmissible in
evidence being fruits of a poisonous tree. She claims that the
omission of the apprehending team to observe the procedure
outlined in R.A. No. 9165 for the seizure of evidence in drugs cases
significantly impairs the prosecutions case. Lastly, Ambre

Section 2, Article III13 of the Constitution mandates that a search

and seizure must be carried out through or on the strength of a
judicial warrant predicated upon the existence of probable cause,
absent which such search and seizure becomes "unreasonable"
within the meaning of said constitutional provision. Evidence
obtained and confiscated on the occasion of such an unreasonable
search and seizure is tainted and should be excluded for being the
proverbial fruit of a poisonous tree. In the language of the
fundamental law, it shall be inadmissible in evidence for any
purpose in any proceeding.14
This exclusionary rule is not, however, an absolute and rigid
proscription. One of the recognized exception established by
jurisprudence is search incident to a lawful arrest. 15 In this
exception, the law requires that a lawful arrest must precede the
search of a person and his belongings. As a rule, an arrest is
considered legitimate if effected with a valid warrant of arrest.
Section 5, Rule 113 of the Rules of Criminal Procedure, however,
recognizes permissible warrantless arrests:
"Sec. 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 in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from
a penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
(Emphasis supplied)
Section 5, above, provides three (3) instances when warrantless
arrest may be lawfully effected: (a) arrest of a suspect in flagrante
delicto; (b) arrest of a suspect where, based on personal knowledge
of the arresting officer, there is probable cause that said suspect
was the perpetrator of a crime which had just been committed; (c)
arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his case
or has escaped while being transferred from one confinement to
another.
In arrest in flagrante delicto, the accused is apprehended at the
very moment he is committing or attempting to commit or has just
committed an offense in the presence of the arresting officer.
Clearly, to constitute a valid in flagrante delicto arrest, two
requisites must concur: (1) the person to be arrested must execute
an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt
act is done in the presence or within the view of the arresting
officer.16

In the case at bench, there is no gainsaying that Ambre was caught

by the police officers in the act of using shabu and, thus, can be
lawfully arrested without a warrant. PO1 Mateo positively identified
Ambre sniffing suspected shabu from an aluminum foil being held
by Castro.17 Ambre, however, made much of the fact that there was
no prior valid intrusion in the residence of Sultan. The argument is
specious.
Suffice it to state that prior justification for intrusion or prior lawful
intrusion is not an element of an arrest in flagrante delicto. Thus,
even granting arguendo that the apprehending officers had no legal
right to be present in the dwelling of Sultan, it would not render
unlawful the arrest of Ambre, who was seen sniffing shabu with
Castro and Mendoza in a pot session by the police officers.
Accordingly, PO2 Masi and PO1 Mateo were not only authorized but
were also duty-bound to arrest Ambre together with Castro and
Mendoza for illegal use of methamphetamine hydrochloride in
violation of Section 15, Article II of R.A. No. 9165.
To write finis to the issue of validity and irregularity in her
warrantless arrest, the Court holds that Ambre is deemed to have
waived her objections to her arrest for not raising them before
entering her plea.18
Considering that the warrantless arrest of Ambre was valid, the
subsequent search and seizure done on her person was likewise
lawful. After all, a legitimate warrantless arrest necessarily cloaks
the arresting police officer with authority to validly search and seize
from the offender (1) dangerous weapons, and (2) those that may
be used as proof of the commission of an offense.19
Further, the physical evidence corroborates the testimonies of the
prosecution witnesses that Ambre, together with Castro and
Mendoza, were illegally using shabu. The urine samples taken from
them were found positive for the presence of shabu, as indicated in
Physical Science Report No. DT-041-05 to DT-043-05. It was likewise
found that the items seized from the three were all positive for
traces of shabu as contained in Physical Science Report No. D-14905 dated April 21, 2005. These findings were unrebutted.

Ambre's assertion that her conviction was incorrect, because the

evidence against her was obtained in violation of the procedure laid
down in R.A. No. 9165, is untenable.

paraphernalia as prima facie evidence that the possessor has

smoked, ingested or used a dangerous drug and creates a
presumption that he has violated Section 15 of R.A. No. 9165. 22

While ideally the procedure on the chain of custody should be

perfect and unbroken, in reality, it is not as it is almost always
impossible to obtain an unbroken chain.20 This Court, however, has
consistently held that the most important factor is the preservation
of the integrity and evidentiary value of the seized items. 21 In this
case, the prosecution was able to demonstrate that the integrity
and evidentiary value of the confiscated drug paraphernalia had
not been compromised. Hence, even though the prosecution failed
to submit in evidence the physical inventory and photograph of the
drug paraphernalia with traces of shabu, this will not render
Ambre's arrest illegal or the items seized from her inadmissible.

Secondly, the testimonies of the police officers have adequately

established with moral certainty the commission of the crime
charged in the information and the identity of Ambre as the
perpetrator. At this juncture, the Court affirms the RTC's finding that
the police officers' testimonies deserve full faith and credit.
Appellate courts, generally, will not disturb the trial court's
assessment of a witness' credibility unless certain material facts
and circumstances have been overlooked or arbitrarily
disregarded.23 The Court finds no reason to deviate from this rule in
this case.

Records bear out that after the arrest of Ambre with Castro and
Mendoza, the following items were confiscated from them: one (1)
unsealed sachet with traces of suspected shabu; one (1) strip of
rolled up aluminum foil with traces of suspected shabu; one (1)
folded piece of aluminum foil with traces of white crystalline
substance also believed to be shabu; and two (2) yellow disposable
lighters. Upon arrival at the police station, PO3 Moran turned over
the seized items to PO2 Hipolito who immediately marked them in
the presence of the former. All the pieces of evidence were placed
inside an improvised envelope marked as "SAID-SOU EVIDENCE 0420-05." With the Request for Laboratory Examination, PO2 Hipolito
brought the confiscated items to the PNP Crime Laboratory and
delivered them to P/Insp. dela Rosa, a forensic chemist, who found
all the items, except the disposable lighters, positive for traces of
shabu. Verily, the prosecution had adduced ample evidence to
account for the crucial links in the chain of custody of the seized
items.
Even if the Court strikes down the seized drug paraphernalia with
traces of shabu as inadmissible, Ambre will not be exculpated from
criminal liability. First, let it be underscored that proof of the
existence and possession by the accused of drug paraphernalia is
not a condition sine qua non for conviction of illegal use of
dangerous drugs. The law merely considers possession of drug

Likewise, the Court upholds the presumption of regularity in the

performance of official duties. The presumption remains because
the defense failed to present clear and convincing evidence that
the police officers did not properly perform their duty or that they
were inspired by an improper motive. The presumption was not
overcome as there was no showing that PO3 Moran, PO1 Mateo,
PO2 Hipolito, and P/Insp. dela Rosa were impelled with improper
motive to falsely impute such offense against Ambre.
As against the positive testimonies of the prosecution witnesses,
the defense of denial offered by Ambre must simply fail. Bare
denials cannot prevail over positive identification made by the
prosecution witnesses.24 Besides, this Court has held in a catena of
cases that the defense of denial or frame-up has been viewed with
disfavor for it can just as easily be concocted and is a common and
standard ploy in most prosecutions for violation of the Dangerous
Drugs Act.25
Finally, Ambre contends that the penalty of six months of
rehabilitation in a government center imposed on her was a nullity,
in view of the alleged lack of confirmatory test. The Court is not
persuaded.
It must be emphasized that in no instance did Ambre challenge, at
the RTC, the supposed absence of confirmatory drug test conducted

on her. Ambre only questioned the alleged omission when she

appealed her conviction before the CA. It was too late in the day
for her to do so. Wellentrenched is the rule that litigants cannot
raise an issue for the first time on appeal as this would contravene
the basic rules of fair play and justice.26
WHEREFORE, the petition is DENIED. The assailed November 26,
2009 Decision and the March 9, 2010 Resolution of the Court of
Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 188133

July 7, 2014

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
OLIVER RENATO EDAO y EBDANE, Appellant.
DECISION
BRION, J.:
We resolve in this appeal the challenge to the October 16, 2008
Decision1 and the December 23, 2008 resolution2of the Court of
Appeals (CA) in CA-G.R. CR HC No. 01142. The challenged CA
decision affirmed the April 22, 2004 joint decision 3 of the Regional
Trial Court (RTC), Branch 103, Quezon City, finding appellant Oliver
Renato Edafio guilty beyond reasonable doubt of violating Section
11, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive
Dangerous Drugs Act of 2002), and imposing on him the penalty of
life imprisonment. The assailed resolution, on the other hand,
denied the appellant's motion for reconsideration.
BACKGROUND FACTS

The prosecution charged the appellant and Godofredo Siochi with

violation of Section 11, Article II of R.A. No. 9165 under two
separate Informations, docketed as Criminal Case Nos. Q-02111200 and Q-02-112104.
The appellant and Siochi pleaded not guilty to the charge on
arraignment. Joint trial on the merits followed.
The prosecution presented, as itswitnesses, Police Inspector
(P/Insp.) Aylin Casignia and Police Officer (PO) 3 Elmer Corbe. The
appellant, Siochi and Ruben Forteza took the witness stand for the
defense.
The evidence for the prosecution established that on the evening of
August 6, 2002, members of the Metro Manila Drugs Enforcement
Group, composed of PO3 Corbe, PO3 Nelson Javier, PO3 Dennis
Padpad, PO3 Marcelo Alcancia, Jr., together with a female
informant, went to the parking area of McDonalds, West Avenue to
conduct an entrapment operation against a certain alias "Nato."4
At around 7:00 p.m., the appellant arrived on board a space wagon
driven by Siochi.5 The informant approached the appellant and
talked to him inside the vehicle. Afterwards, the informant waved at
PO3 Corbe.6 When PO3 Corbe was approaching the appellant, the
latter went out of the vehicle and ran away. PO3 Corbe, PO3 Padpad
and PO3 Alcancia chased the appellant; PO3 Corbe was able to
grab the appellant, causing the latter to fall on the ground. PO3
Corbe recovered a "knot-tied" transparent plastic bag from the
appellants right hand, while PO3 Alcancia seized a gun tucked in
the appellants waist. The other members of the police arrested
Siochi. Thereafter, the police brought the appellant, Siochi and the
seized items to the police station for investigation.7
P/Insp. Casignia, the Forensic Chemical Officer of the Western Police
District Crime Laboratory, examinedthe seized items and found
them positive for the presence of shabu.8
The appellant, for his part, testified that at around 4:00 p.m. on
August 6, 2002, he called Siochi on the phone, and informed him
that the motorbike starter the latter needed was already

available.9 On the same day, Vanessa Paduada called the appellant,

and asked for the directions to McDonalds, West Avenue.10 At
around 6:00 p.m., Siochi and Ruben arrived at the gate of Philam
Homes on board a space wagon. The appellant met them at the
subdivision gate, and showed the starter to Siochi. Thereafter,
Vanessa called on the appellants cellular phone. The appellant
then boarded the vehicle, and told Siochi that he would just talk to
a person at McDonalds.11 When the space wagon arrived at
McDonalds, the appellant alighted from the vehicle and proceeded
towards the restaurants entrance. Afterwards, Vanessa called him
from inside a parked car. The appellant approached Vanessa who,
for her part, alighted from the car. Vanessa told the appellant to get
inside the cars rear. The appellant did as instructed; Vanessa went
to the front passenger seat, beside a male driver.12 Immediately
after, the male driver alighted from the vehicle and entered the
cars rear. The appellant went out of the car, but the male driver
followed him and grabbed his hand. The appellant resisted, and
wrestled with the driver along West Avenue. During this
commotion, the appellant heard a gunfire; four (4) persons
approached him, and then tied his hands with a masking
tape.13 The police placed him on board a pick-up truck, and then
brought him to Bicutan. In Bicutan, the police brought him to the
interrogation room, where they punched him and placed a plastic
on his head.14
In its joint decision dated April 22, 2004, the RTC found the
appellant guilty beyond reasonable doubt of illegal possession of
shabu under Section 11, Article II of R.A. No. 9165, and sentenced
him to suffer the penalty of life imprisonment. It also ordered him
to pay a P500,000.00 fine.
The RTC, however, acquitted Siochi on the ground of reasonable
doubt.
On appeal, the CA affirmed the RTC decision in toto. The CA found
PO3 Corbe to be a credible witness. The CA also found the
appellants warrantless arrest to be valid; it explained that the
appellants act of running when PO3 Corbe was approaching him
reinforced the latters suspicion that "something was amiss." 15

The CA added that strict compliance with Section 21, Article II of

R.A. No. 9165 was not required as long asthe integrity of the seized
item had been ensured. It further held that the police officers were
presumed to have regularly performed their official duties.
Finally, the CA held that the prosecution was able to establish all
the elements of illegal possession of shabu.
The appellant moved to reconsider this decision, but the CA denied
his motion in its resolution dated December 23, 2008.
In his brief16 and supplemental brief,17 the appellant essentially
alleged that PO3 Corbes testimony was "vague and equivocal;"18 it
lacked details on how the appellant was lured to sell shabu to the
informant, and how the entrapment operation had been planned.
The appellant also argued that his warrantless arrest was illegal
since he was not committing any crime when the police arrested
him. He alsoclaimed that the police did not mark and photograph
the seized items, and that there was a broken chain of custody over
the confiscated drugs.
The Office of the Solicitor General (OSG) counters with the
argument that the testimony of PO3 Corbe was clear and
convincing; the inconsistencies in his court testimony pertained
only to minor details. It also claimed that the appellants arrest was
valid, and the seized shabu was admissible in evidence. Finally, the
OSG maintained that there was no break in the chain of custody
over the seized plastic bag containing shabu.19
THE COURTS RULING
After due consideration, we resolve to ACQUITthe appellant.
Warrantless arrest invalid; seized
items inadmissible
Section 5(a), Rule 113 of the Rules of Criminal Procedure provides
that a peace officer or a private person may, without a warrant,
arrest a person when, in his presence, the person to be arrested

has committed, is actually committing, or is attempting to commit

an offense. This is known an arrest in flagrante delicto.20

Q: What was she doing?

A: She was talking to Alias Nato[,] sir.

"For a warrantless arrest of an accused caught in flagrante delictoto

be valid, two requisites must concur: (1) the person to be arrested
must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the
arresting officer."21
In the present case, there was no overt act indicative of a felonious
enterprise that could be properly attributed to the appellant to
rouse suspicion in the mind of PO3 Corbe that he (appellant) had
just committed, was actually committing, or was attempting to
commit a crime. In fact, PO3 Corbe testified that the appellant and
the informant were just talking with each otherwhen he approached
them. For clarity and certainty, we reproduce PO3 Corbes court
testimony dated February 21, 2003, thus:

Q: Did you hear what they are talking? (sic)

A: I was still in the car[.] I was not able to hear[,] sir.
Q: How would you know that they are talking, Mr. Witness? (sic)
A: I could see them, sir.
Q: What did you see?
A: They were talking, sir.
Q: They were not exchanging stuff and money, Mr. witness?
A: Not yet, sir.

ATTY. RENATO SARMIENTO:

Q: You and the informant were not able to approach Nato because
he sense[d] that you are (sic) a policeman?
PO3 CORBE:
A: Our informant first approached Renato Edano[,] and they talked
but when he (sic) called me, Renato run (sic), sir.
Q: You said tinawag ka[,] who was that that call (sic) you?
A: Team informant, sir.
xxxx
Q: How did she call you?
A: She waived (sic) her had (sic), sir.

Q: While talking[,] the female informant call[ed] you, Mr. Witness?

A: Yes, sir.22 (emphases ours)
As testified to by PO3 Corbe himself, the appellant and the
informant were just talking to each other; there was no exchange of
money and drugs when he approached the car. Notably,while it is
true that the informant waved at PO3 Corbe, the latter admitted
that this was not the pre-arranged signal to signify that the sale of
drugs had been consummated. PO3 Corbe also admitted on crossexamination that he had no personal knowledge on whether there
was a prohibited drug and gun inside the space wagon when he
approached it.
That the appellant attempted to run away when PO3 Corbe
approached him is irrelevant and cannot by itself be construed as
adequate to charge the police officer with personal knowledge that
the appellant had just engaged in, was actually engaging in or was
attempting to engage in criminal activity.

As the Court explained in People v. Villareal:23

Furthermore, appellants act of darting away when PO3 de Leon
approached him should not be construed against him. Flight per
seis not synonymous with guilt and must not always be attributed
to ones consciousness of guilt.It is not a reliable indicator of guilt
without other circumstances, for even in high crime areas there are
many innocent reasons for flight, including fear of retribution for
speaking to officers, unwillingness to appear as witnesses,and fear
of being wrongfully apprehended as a guilty party.Thus, appellants
attempt to run away from PO3 de Leon is susceptible of various
explanations; it could easily have meant guilt just as it could
likewise signify innocence.24

custody over the seized drug tainted the integrity and evidentiary
value of the confiscated shabu.
First, we find it highly unusual and irregular that the police officers
would let the appellant mark the drugs seized from him, instead of
doing the marking themselves. To directly quote from the records:
ATTY. SARMIENTO:
Q: This item was not marked at the place allegedly where you
apprehended the suspect at McDonalds, West Avenue, Quezon
City, am I correct to say that?
PO3 CORBE:

In other words, trying to run awaywhen no crime has been overtly

committed, and without more, cannot be evidence of guilt.
Considering that the appellants warrantless arrest was unlawful,
the search and seizure that resulted from it was likewise illegal.
Thus, the alleged plastic bag containing white crystalline
substances seized from him is inadmissible in evidence, having
comefrom an invalid search and seizure.
Corpus delicti not proved with moral
certainty
Even granting, for the sake ofargument, that the appellants
warrantless arrest was valid, the latters acquittal is still in order
due to the prosecutions failure to establish the evidence of the
corpus delictiwith moral certainty.

A: Yes, sir.
Q: You are also required not only tomark it but to put your initial to
it, my question did you place your initial in this evidence? (sic)
A: No, sir.
Q: You did not, Mr. Witness?
A: No, sir.
Q: You were also required to put the date of apprehension, being
the arresting officer, did you put the date in this evidence, Mr.
Witness?
A: No, sir.

We stress that "[t]he existence of dangerous drugs is a condition

sine qua nonfor conviction for the illegal sale and possession of
dangerous drugs, it being the verycorpus delictiof the
crimes."25 Thus, the evidence of the corpus delictimust be
established beyond reasonable doubt.

Q: Why did you not do that, Mr. Witness?

In the present case, the various lapses enumerated and discussed

below committed by the police in the handling, safekeeping and

A: He was the one, sir.

A: What I remembered there is an initial of the accused, sir.

Q: Who put the initial, Mr. Witness?

Q: At your station?

Second, the police did not inventory or photographthe seized

drugs, whether at the place of confiscation or at the police
station.1avvphi1 These omissions were admitted by the
prosecution during pre-trial.29

A: Yes, sir.
Q: You did not put your initial?

The required procedure on the seizure and custody of drugs is

embodied in Section 21, paragraph 1,Article II of R.A. No. 9165,
which states:

A: No, sir.
Q: Why did you not put your initial?
A: I was not able to put sir.

26

(emphases ours)

Marking, as used in drug cases, means the placing by the

apprehending officer or the poseur-buyerof his/her initials and
signature on the item/s seized. "Consistency with the "chain of
custody" rule requires that the "marking" of the seized items - to
truly ensure that they are the same items that enter the chain and
are eventually the ones offered in evidence - should be done (1) in
the presence of the apprehended violator (2) immediately upon
confiscation."27 The Court clarified in People v. Resurreccion28 that
marking upon immediate confiscation contemplates even marking
at the nearest police station or office of the apprehending team.
Thus, while marking of the seized drugs at the police station is
permitted, the marking should be done by the police, and not by
the accused. The appellants participation inthe marking procedure
should only be as a witness. Why the police failed to do a basic
police procedure truly baffles us.
We also point out that per the testimony of P/Insp. Casignia, the
Forensic Chemical Officer, the police forwarded two (2) plastic bags
containing white crystalline substances to the crime laboratory for
examination one marked with the initials "OR" and the other
marked with "GS." Both plastic bags were used asevidence against
the appellant. The records, however, did not indicate who marked
the plastic bag with "GS," who witnessed this marking, and
whenthis marking had been made. As with the bag that had been
marked "OR," we express doubts on whether the plastic bag
containing white crystalline substances marked as "GS" was the
same plastic bag taken from the appellants co-accused, Siochi.

(1) The apprehending team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically
inventoryand photograph the same in the presence of the accused
or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from
the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the
inventory and be given a copy thereof[.] [emphases ours]
This is implemented by Section 21 (a), Article II of theImplementing
Rules and Regulations(IRR) of R.A. No. 9165, which reads:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventoryand photograph the same in the
presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of
Justice (DOJ), and any elected public official who shall berequired to
sign the copies of the inventory and be given a copy thereof:
Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at
the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items[.]
[emphasis ours]

To be sure, Section 21(a), Article II of the IRR offers some flexibility

in complying with the express requirements under paragraph 1,
Section 21, Article II of R.A. No. 9165, i.e.,"non-compliance with
these requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items[.]"This
saving clause, however, applies only where the prosecution
recognized the procedural lapses and thereafter explained the cited
justifiable grounds, and when the prosecution established that the
integrity and evidentiary value of the evidence seized had been
preserved.30
These conditions were not met in the present case, as the
prosecution did not even attempt to offer any justification for its
failure to follow the prescribed procedures in the handling and
safekeeping of the seized items. "We stress that it is the
prosecution who has the positive duty to establish that earnest
efforts were employed in contacting the representatives
enumerated under Section 21[a] of R.A. No. 9165, or that there was
a justifiable ground for failing to do so."31 The Court cannot simply
presume what these justifications are.
Although the Court has recognized that minor deviations from the
procedures under R.A. No. 9165 would not automatically exonerate
an accused, we have also declared that when there is gross
disregard of the procedural safeguards prescribed inthe substantive
law (R.A. No. 9165), serious uncertainty is generated about the
identity of the seized items that the prosecution presented in
evidence. This doubt cannot be remedied by simply invoking the
presumption of regularity in the performance of official duties, for a
gross, systematic, or deliberate disregard of the procedural
safeguards effectively produces an irregularity in the performance
of official duties.32
In sum, we hold that the appellants acquittal is in order since
theshabupurportedly seized from him is inadmissible in evidence
for being the proverbial fruit of the poisonous tree. Corollarily, the
prosecution's failure to comply with Section 21, Article II of R.A. No.
9165, and with the chain of custody requirement of this Act,

compromised the identity of the item seized, leading to the failure

to adequately prove the corpus delictiof the crime charged.
WHEREFORE, premises considered, we REVERSEand SET ASIDEthe
October 16, 2008 decision and the December 23, 2008 resolution of
the Court of Appeals in CA-G.R. CR HC No. 01142. Appellant Oliver
Renato Edao y Ebdane is hereby ACQUITTEDfor failure of the
prosecution to prove his guilt beyond reasonable doubt. He is
ordered immediately RELEASEDfrom detention unless heis
otherwise legally confined for another cause.
Let a copy of this Decision be sent to the Director of the Bureau of
Corrections, Muntinlupa City, for immediate
implementation.1wphi1 The Director of the Bureau of Corrections
is directed to report the action he has taken to this Court within five
(5) days from receipt of this Decision.
SO ORDERED.
EN BANC
[G.R. No. 128222. June 17, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA
HO SAN @ TSAY HO SAN, accused-appellant.
DECISION
DAVIDE, JR., C.J.:
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his
acquittal and the reversal of the judgment of 10 February 1997 of
the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66,
finding him guilty of transporting, without appropriate legal
authority,
the
regulated
substance
methamphetamine
hydrochloride, in violation of Section 15, [1] Article III of Republic Act
No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as
further amended by R.A. No. 7659,[2] and sentencing him to "die by
lethal injection." In view thereof, the judgment was brought to this

Court for automatic review pursuant to Article 47 of the Revised

Penal Code, as amended by Section 11 of R.A. No. 7659.
In response to reports of rampant smuggling of firearms and
other contraband, Jim Lagasca Cid (hereafter CID), as Chief of Police
of the Bacnotan Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While monitoring the coastal
area of Barangay Bulala on 29 March 1995, he intercepted a radio
call at around 12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao requesting police
assistance regarding an unfamiliar speedboat the latter had
spotted. According to ALMOITE, the vessel looked different from the
boats ordinarily used by fisherfolk of the area and was poised to
dock at Tammocalao shores. CID and six of his men led by his Chief
Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded
forthwith to Tammocalao beach and there conferred with
ALMOITE. CID then observed that the speedboat ferried a lone male
passenger. As it was routine for CID to deploy his men in strategic
places when dealing with similar situations, he ordered his men to
take up positions thirty meters from the coastline. When the
speedboat landed, the male passenger alighted, and using both
hands, carried what appeared a multicolored strawbag. He then
walked towards the road. By this time, ALMOITE, CID and BADUA,
the latter two conspicuous in their uniform and issued side-arms,
became suspicious of the man as he suddenly changed direction
and broke into a run upon seeing the approaching officers. BADUA,
however, prevented the man from fleeing by holding on to his right
arm. Although CID introduced themselves as police officers, the
man appeared impassive. Speaking in English, CID then requested
the man to open his bag, but he seemed not to understand. CID
thus tried speaking Tagalog, then Ilocano, but still to no avail.CID
then resorted to what he termed sign language; he motioned with
his hands for the man to open the bag. This time, the man
apparently understood and acceded to the request. A search of the
bag yielded several transparent plastic packets containing
yellowish crystalline substances. CID then gestured to the man to
close the bag, which he did. As CID wished to proceed to the police
station, he signaled the man to follow, but the latter did not to
comprehend. Hence, CID placed his arm around the shoulders of
the man and escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the

facial features of the man, that he was probably Taiwanese. CID
then "recited and informed the man of his constitutional rights" to
remain silent, to have the assistance of a counsel, etc. Eliciting no
response from the man, CID ordered his men to find a resident of
the area who spoke Chinese to act as an interpreter. In the
meantime, BADUA opened the bag and counted twenty-nine (29)
plastic packets containing yellowish crystalline substances which he
and CID suspected was shabu. The interpreter, Mr. Go Ping Guan,
finally arrived, through whom the man was "apprised of his
constitutional rights." The police authorities were satisfied that the
man and the interpreter perfectly understood each other despite
their uncertainty as to what language was spoken. But when the
policemen asked the man several questions, he retreated to his
obstinate reticence and merely showed his I.D. with the name Chua
Ho San printed thereon. CHUA's bag and its contents were sent to
the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San
Fernando, La Union for laboratory examination. In the meantime,
CHUA was detained at the Bacnotan Police Station.
Later that same day, Police Chief Inspector and Forensic
Chemist Theresa Ann Bugayong Cid of the Philippine National
Police, Region I, received a letter request [3] from CID incidentally her
husband to conduct a laboratory examination of twenty-nine (29)
plastic packets placed inside a multicolored strawbag. In her
Chemistry Report No. D-025-95,[4] she stated that her qualitative
examination established the contents of the plastic packets,
weighing 28.7 kilos, to be positive of methamphetamine
hydrochloride or shabu, a regulated drug.
CHUA was initially charged with illegal possession of
methamphetamine hydrochloride before the RTC which docketed
the case as Criminal Case No. 4037. However, pursuant to the
recommendation of the Office of the Provincial Prosecutor of San
Fernando, La Union, that the facts of the case could support an
indictment for illegal transport of a regulated drug, the information
was subsequently amended to allege that CHUA "willfully,
unlawfully
and
feloniously
transpor(ted)
28.7
kilos
of
[m]ethamphetamine [h]ydrochloride (shabu) without the necessary

permit or authority to transport the same" in violation of Section

15, Article III of R.A. 6425 as amended by R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not
guilty. The RTC was satisfied that CHUA understood the amended
information read to him in Fukien by the Fukien-speaking
interpreter, Thelma Sales Go.
Thereafter, the RTC exerted all efforts to obtain the services of
a Taiwanese Interpreter through the auspices of the Department of
Foreign Affairs. However, it was only after directing the request to
the Taipei Economic and Cultural Office in the Philippines
that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence tending to
establish the above narration of facts which were culled chiefly
from the testimony of CID, its first witness, and whose testimony, in
turn, was substantially corroborated by witnesses BADUA and
ALMOITE.
Expert witness Theresa Ann Cid, confirmed the entries of her
chemistry report in that the contents of the 29 plastic packets
weighing 28.7 kilos sent to her for chemical analysis were pure,
unadulterated methamphetamine hydrochloride or shabu. She also
explained that they were unwashed, hence they appeared
yellowish.
For the defense, CHUA testified in his own behalf through
interpreter Steven Yu. He disclosed that he hails from Taiwan and
was employed in a shipbuilding and repairing company. On 21
March 1995, he was instructed by his employer Cho Chu Rong
(hereafter RONG) to board the latters 35-tonner ship which would
embark for Nan Au Port, Mainland China where they would buy
fish. Upon arrival at their destination, RONG left the ship, came
back without the fish, but with two bags, the contents of which he
never divulged to CHUA. RONG then showed to CHUA a document
purportedly granting them authority to fish on Philippine waters. So
they sailed towards the Philippines and reached Dagupan,
Pangasinan on 29 March 1995. At around 10:30 a.m., they
disembarked on a small speedboat with the two bags RONG

brought with him from China. While sailing, RONG made several
phone calls using his mobile phone. CHUA heard RONG asked the
person on the other side of the line if he could see the speedboat
they were riding. Apparently, the person on shore could not see
them so they cruised over the waters for about five hours more
when finally, low on fuel and telephone battery, they decided to
dock.CHUA anchored the boat while RONG carried the bags to
shore. The tasks completed, RONG left to look for a telephone while
CHUA rested and sat one and half (1 1/2) meters away from one
bag. A child thereafter pointed out to him that one bag was missing
much to RONGs dismay when he learned of it. When a crowd
started to mill around them, the police arrived. CHUA then realized
that RONG was nowhere to be found. The police immediately
approached CHUA, and with nary any spoken word, only gestures
and hand movements, they escorted him to the precinct where he
was handcuffed and tied to a chair. Later, the police, led by an
officer who CHUA guessed as the Chief of Police arrived with the
motor engine of the speedboat and a bag. They presented the bag
to him, opened it, inspected and weighed the contents, then
proclaimed them as methamphetamine hydrochloride.
CHUA denounced the prosecutions story as a distortion of the
truth. He denied he was ever favored with an interpreter or
informed of his "constitutional rights," particularly of his right to
counsel.Consequently, his arrest was tainted with illegality and the
methamphetamine hydrochloride found in the bag should have
been regarded inadmissible as evidence. He also maintained that
CID never graced the occasion of his setting foot for the first time
at Tammocalao beach. BADUA certainly never prevented him from
running away, as such thought failed to make an impression in his
mind. Most significantly, he denied ownership and knowledge of the
contents of the bag, emphasizing that RONG alone exercised
dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan
member, recalled that on the date in question, he arrived at the
beach with the police. He saw CHUA standing with a bag beside
him. He also remembered hearing from the people congregating at
the beach that CHUA arrived with a companion and a certain
policeman Anneb had chased the latters car. He additionally

claimed that when the crowd became unruly, the police decided to
bring CHUA to police headquarters. There, the mayor took charge
of the situation -- he opened CHUA's bag with the assistance of the
police, he called for a forensic chemist surnamed CID to take a
sample of the contents of the bag, and he ordered his officials to
find an interpreter. Throughout the proceedings, photographers
were busy taking pictures to document the event.
Last to testify was Arsenio CRAIG, a farmer and resident of
Tammocalao who narrated that he was standing with CHUA on the
beach when two men and a lady arrived. They were about to get a
bag situated near CHUA when they detected the arrival of the local
police. They quickly disappeared. CRAIG then noticed ALMOITE and
PARONG at the beach but not CID.
In a decision promulgated on 10 February 1997, the RTC found
that the prosecution successfully discharged its burden of proving
that CHUA transported 28.7 kilos of methamphetamine
hydrochloride without legal authority to do so. Invoking People v.
Tagliben[5] as authority, the RTC characterized the search as
incidental to a valid in flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride as corpus
delicti. The RTC also noted the futility of informing CHUA of his
constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the
language barrier and the observation that such irregularity was
rectified when accused was duly arraigned and (afterwards)
participated in the trial of this case. The RTC then disregarded the
inconsistencies and contradictions in the testimonies of the
prosecution witnesses as these referred to minor details which did
not impair the credibility of the witnesses or tarnish the credence
conferred on the testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his
alleged employer RONG and the Captain of the 35-tonner vessel in
the illegal trade of prohibited drugs on Philippine shores, but with
several other members of an organized syndicate bent on
perpetrating said illicit traffic. Such predilection was plainly evident
in the dispositive portion, to wit:

WHEREFORE, and in view of all the foregoing, as proven and

established by convincing and satisfactory evidence that the
accused had conspired and acted in concert with one Cho Chu
Rong, not to mention Chen Ho Fa, the Skipper of the 35-tonner ship
they used in coming to the Country from China and Taiwan, this
Court finds the accused Chua Ho San @ Tsay Ho San guilty beyond
reasonable doubt of the offense of Violation of Sec. 15, Art. III of
R.A. No. 6425, as amended by R.A. No. 7659 as charged in the
Information, and considering the provisions of Sec. 20 of R.A. No.
7659 that the maximum penalty shall be imposed if the quantity
sold/possessed/transported is 200 grams or more in the case of
Shabu, and considering, further that the quantity involved in this
case is 28.7 kilograms which is far beyond the weight ceiling
specified in said Act, coupled with the findings of conspiracy or that
accused is a member of an organized syndicated crime group, this
Court, having no other recourse but to impose the maximum
penalty to accused, this Court hereby sentences the said accused
Chua Ho San @ Tsay Ho San to die by lethal injection; to pay a fine
of Ten Million Pesos (P10,000,000.00); and to pay the costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the
Philippine National Police to immediately form an investigating
Committee to be composed by [sic] men of unimpeachable
integrity, who will conduct an exhaustive investigation regarding
this case to determine whether there was negligence or conspiracy
in the escape of Cho Chu Rong and the two (2) or three (3) persons
who approached the accused in the seashore of Tammocalao,
Bacnotan, La Union, and attempted to take the remaining bag from
accused, as well as the whereabouts of the other bag; and to
furnish this Court a copy of the report/result of the said
investigation in order to show compliance herewith sixty (60) days
from receipt hereof.
The confiscated 28.7 kilograms of Methamphetamine Hydrochloride
or Shabu is ordered turned over immediately to the Dangerous
Drugs Board for destruction in accordance with the law.

The fiberglass boat with its motor engine is hereby ordered

confiscated in favor of the government and to be turned over to the
Philippine National Police, La Union Command, for use in their
Bantay-Dagat operations against all illegal seaborne activities.
SO ORDERED.[6]
Before this Court, CHUA posits that the RTC erred in (1)
admitting as competent evidence the 29 plastic packets of
methamphetamine hydrochloride since they were indubitably
"forbidden fruits;" (2) granting weight and credence to the
testimonies
of
prosecution
witnesses
despite
glaring
inconsistencies on material points; and in (3) appreciating
conspiracy between him and an organized syndicate in the illicit
commerce of prohibited drugs since this was not alleged in the
information.
The Solicitor General traverses CHUA's contentions by
asserting that: (1) the search was licitly conducted despite the
absence of search and seizure warrants as circumstances
immediately preceding to and contemporaneous with the search
necessitated and validated the police action; and (2) that there was
an effective and valid waiver of CHUA's right against unreasonable
searches and seizures since he consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy of
home and person. It explicitly ordains that people have the right to
be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any
purpose.[7] Inseparable, and not merely corollary or incidental to
said right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in
violation of said right is inadmissible for any purpose in any
proceeding.[8]
The Constitutional proscription against unreasonable searches
and seizures does not, of course, forestall reasonable searches and
seizure. What constitutes a reasonable or even an unreasonable

search in any particular case is purely a judicial question,

determinable from a consideration of the circumstances involved.
[9]
Verily, the rule is, the Constitution bars State intrusions to a
person's body, personal effects or residence except if conducted by
virtue of a valid search warrant issued in compliance with the
procedure outlined in the Constitution and reiterated in the Rules of
Court; otherwise such search and seizure become unreasonable
within the meaning of the aforementioned constitutional provision.
[10]
This interdiction against warrantless searches and seizures,
however, is not absolute and such warrantless searches and
seizures have long been deemed permissible by jurisprudence [11] in
instances of (1) search of moving vehicles, (2) seizure in plain view,
(3) customs searches, (4) waiver or consent searches, (5) stop and
frisk situations (Terry search),[12] and (6) search incidental to a
lawful arrest. The last includes a valid warrantless search and
seizure pursuant to an equally valid warrantless arrest, for, while as
a rule, an arrest is considered legitimate if effected with a valid
warrant of arrest, the Rules of Court recognize permissible
warrantless arrests, to wit: (1) arrests in flagrante delicto, (2)
arrests effected in hot pursuit, and (3) arrests of escaped prisoners.
[13]

This Court is therefore tasked to determine whether the

warrantless arrest, search and seizure conducted under the facts of
the case at bar constitute a valid exemption from the warrant
requirement.Expectedly and quite understandably, the prosecution
and the defense painted extremely divergent versions of the
incident. But this Court is certain that CHUA was arrested and his
bag searched without the benefit of a warrant.
In cases of in flagrante delicto arrests, a peace officer or a
private person may without a warrant, arrest a person, when, in his
presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The arresting
officer, therefore, must have personal knowledge of such fact [14] or
as recent case law[15] adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable
cause. The term probable cause had been understood to mean a
reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious mans belief

that the person accused is guilty of the offense with which he is

charged.[16] Specifically with respect to arrests, it is such facts and
circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person
sought to be arrested.[17] In People v. Montilla,[18] the Court
acknowledged that the evidentiary measure for the propriety of
filing criminal charges, and correlatively, for effecting warrantless
arrest, has been reduced and liberalized. Noting that the previous
statutory and jurisprudential evidentiary standard was "prima
facie evidence" and that it had been dubiously equated with
probable cause, the Court explained:
[F]elicitously, those problems and confusing concepts (referring to
prima facie evidence and probable cause) were clarified and set
aright, at least on the issue under discussion, by the 1985
amendment of the Rules of Court which provides in Rule 112
thereof that the quantum of evidence required in preliminary
investigation is such evidence as suffices to engender as well
founded belief as to the fact of the commission of the crime and
the respondents probable guilt thereof. It has the same meaning as
the related phraseology used in other parts of the same Rule, that
is, that the investigating fiscal finds cause to hold the respondent
for trial, or where a probable cause exists. It should, therefore, be
in that sense, wherein the right to effect a warrantless arrest
should be considered as legally authorized. (emphasis supplied)[19]
Guided by these principles, this Court finds that there are no
facts on record reasonably suggestive or demonstrative of CHUAs
participation in an ongoing criminal enterprise that could have
spurred police officers from conducting the obtrusive search. The
RTC never took the pains of pointing to such facts, but predicated
mainly its decision on the finding that "accused was caught redhanded carrying the bagful of [s]habu when apprehended. In short,
there is no probable cause. At least in People v. Tangliben, the
Court agreed with the lower court's finding that compelling reasons
(e.g., accused was acting suspiciously, on the spot identification by
an informant that accused was transporting prohibitive drug, and
the urgency of the situation) constitutive of probable cause
impelled
police
officers
from
effecting
an in
flagrante
delicto arrest. In the case at bar, the Solicitor General proposes that

the following details are suggestive of probable cause -- persistent

reports of rampant smuggling of firearm and other contraband
articles, CHUA's watercraft differing in appearance from the usual
fishing boats that commonly cruise over the Bacnotan seas, CHUAs
illegal entry into the Philippines (he lacked the necessary travel
documents or visa), CHUAs suspicious behavior, i.e. he attempted
to flee when he saw the police authorities, and the apparent ease
by which CHUA can return to and navigate his speedboat with
immediate dispatch towards the high seas, beyond the reach of
Philippine laws.
This Court, however, finds that these do not constitute
probable cause. None of the telltale clues, e.g., bag or package
emanating the pungent odor of marijuana or other prohibited drug,
[20]
confidential report and/or positive identification by informers of
courier(s) of prohibited drug and/or the time and place where they
will transport/deliver the same,[21] suspicious demeanor or
behavior[22] and suspicious bulge in the waist[23]-- accepted by this
Court as sufficient to justify a warrantless arrest exists in this
case. There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on the
date in question. CHUA was not identified as a drug courier by a
police informer or agent. The fact that the vessel that ferried him to
shore bore no resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense. And despite claims by CID and BADUA that CHUA
attempted to flee, ALMOITE testified that the latter was merely
walking and oblivious to any attempt at conversation when the
officers approached him. This cast serious doubt on the truthfulness
of the claim, thus:
Q How far were you when the accused put the bag on his
shoulder?
A We were then very near him about three meters away from
the male person carrying the bag.
Q To what direction was he facing when he put the bag on his
shoulder?

A To the east direction.

A No, sir.

Q In relation to you, where were you.

Q No, so there was no reason for you to approach the accused

because he was not doing anything wrong?

A With the company of Sgt. Reynoso and Maj. Cid we

approached the accused and when Maj. Cid went near him,
he spoke in Tagalog, English and Ilocano which accused did
not understand because he did not respond.
Q When Maj. Cid was talking, what was the accused doing at
that time?
A He was walking.
Q To what direction he was walking?

A No, sir, that is our objective, to approach the person and if

ever or whatever assistance that we can give we will give. [25]
The search cannot therefore be denominated as incidental to
an arrest. While a contemporaneous search of a person arrested
may be effected to deliver dangerous weapons or proofs or
implements used in the commission of the crime and which search
may extend to the area within his immediate control where he
might gain possession of a weapon or evidence he can destroy, [26] a
valid arrest must precede the search. The process cannot be
reversed.

A He was walking to the east direction. (sic)

Q He was walking away from you or going near you?
A He was going away from us. That is why Sgt. Reynoso held the
right arm of the accused.
Q Was Sgt. Badua able to hold the right arm of the accused?
A Yes sir and he stopped.

[24]

True, CHUA entered Philippine territory without a visa. This was

not obvious to the police. But gossamer to the officers sense
perception and view were CHUA disembarking from a speedboat,
CHUA walking casually towards the road, and CHUA carrying a
multicolored strawbag. These acts did not convey any impression
that he illegally entered Philippine shores. Neither were these overt
manifestations of an ongoing felonious activity nor of CHUAs
criminal behavior as clearly established in CIDs testimony, thus:
Q Was the accused committing a crime when you introduced
yourselves:

In a search incidental to a lawful arrest, as the precedent arrest

determines the validity of the incidental search, the legality of the
arrest is questioned in a large majority of these cases, e.g., whether
an arrest was merely used as a pretext for conducting a search. In
this instance, the law requires that there be first a lawful arrest
before a search can be made - the process cannot be reversed. [27]
To reiterate, the search was not incidental to an arrest. There
was no warrant of arrest and the warrantless arrest did not fall
under the exemptions allowed by the Rules of Court [28] as already
shown.From all indications, the search was nothing but a fishing
expedition. It is worth mentioning here that after introducing
themselves, the police officers immediately inquired about the
contents of the bag. What else could have impelled the officers
from displaying such inordinate interest in the bag but to ferret out
evidence and discover if a felony had indeed been committed by
CHUA -- in effect to "retroactively establish probable cause and
validate an illegal search and seizure."
The State then attempted to persuade this Court that there
was a consented search, a legitimate waiver of the constitutional
guarantee against obtrusive searches. It is fundamental, however,
that to constitute a waiver, it must first appear that the right exists;

secondly, that the person involved had knowledge, actual or

constructive, of the existence of such a right; and lastly, that said
person had an actual intention to relinquish the right. [29] CHUA
never exhibited that he knew, actually or constructively of his right
against unreasonable searches or that he intentionally conceded
the same. This can be inferred from the manner by which the
search was performed, thus:

A I used sign language sir.

Q Will you demonstrate to this Honorable Court how you
demonstrated that sign language of opening the bag mr.
(sic) witness?
A I pointed to the zipper of the bag and then made an action like
this sir.

Q Together with your Chief Investigator, what was the first thing
that you did when you approached him (CHUA)?

***

A We introduced ourselves as police officers, sir.

SHERIFF:

Q Okey, in the first place why did you introduce yourselves?

The witness demonstrating (sic) by pointing to the straw bag

and then manifesting a sign to open the zipper of the straw
bag moving his right hand from left to right or from the
opening to the end of the zipper.

A That is normal practice in our part, sir.

***
Q If it is possible . Okey (sic) now, after introducing yourselves
what did you do?

COURT: From the start of the zipper where you open it up to the
end of the zipper.
Witness: Yes, sir, and then I made a motion like this.

A He did not answer me and he did not utter any word,

(The witness repeating the motion described on record.)
Q When he did not utter any word. What else did he do?
COURT: Did you open that personally?
A I asked again a question that if he can open his bag sir.
WITNESS:
Q And did he understand your question when you requested him
to open his bag?
A No, sir, there is no answer.

A No, your honor.

Q Now, mr. (sic) witness, why did you request the accused to
open the bag?

Q No answer?
A Because it is our duty also to inspect his belongings sir.
A Yes, sir, no answer.
Q And when there was no answer what did you do next?

Q Why, why was it - no, I reform my question your honor. Is it

normal procedure for you to examine anybody or to request
anybody to open his bag?

A The fact that he was a foreigner, sir, it is also our duty to

inspect the baggage, it is our routine duty of a police (sic),
sir.
Q Is that the normal duty of a police officer to request a person
to open his bag?
A yes, sir.
Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to
open his bag?
A No, sir.
Q But you simply requested him to open the nag?
A Yes, sir.[30]
CHUA obviously failed to understand the events that overran
and overwhelmed him. The police officers already introduced
themselves to CHUA in three languages, but he remained
completely deadpan.The police hence concluded that CHUA failed
to comprehend the three languages. When CHUA failed to respond
again to the polices request to open the bag, they resorted to what
they called sign language. They claimed that CHUA finally
understood their hand motions and gestures. This Court
disagrees. If CHUA could not understand what was orally articulated
to him, how could he understand the polices sign language. More
importantly, it cannot logically be inferred from his alleged
cognizance of the sign language that he deliberately, intelligently,
and consciously waived his right against such an intrusive
search. This Court is not unmindful of cases upholding the validity
of consented warrantless searches and seizure. But in these cases,
the police officers' request to search personnel effects was orally
articulated to the accused and in such language that left no room
for doubt that the latter fully understood what was requested. In
some instances, the accused even verbally replied to the request
demonstrating that he also understood the nature and
consequences of such request.[31]

It was eventually discovered that the bag contained the

regulated substance. But this is a trifling matter. If evidence
obtained during an illegal search even if tending to confirm or
actually confirming initial information or suspicion of felonious
activity is absolutely considered inadmissible for any purpose in
any proceeding, the same being the fruit of a poisonous tree [32] how
much more of "forbidden fruits" which did not confirm any initial
suspicion of criminal enterprise as in this case - because the police
admitted that they never harbored any initial suspicion. Casting
aside the regulated substance as evidence, the remaining evidence
on record are insufficient, feeble and ineffectual to sustain CHUAs
conviction.
Indeed, the likelihood of CHUA having actually transported
methamphetamine hydrochloride cannot be quickly dispelled. But
the constitutional guarantee against unreasonable searches and
seizures cannot be so carelessly disregarded as overzealous police
officers are sometimes wont to do. Fealty to the Constitution and
the rights it guarantees should be paramount in their minds,
otherwise their good intentions will remain as such simply because
they have blundered. "There are those who say that 'the criminal is
to go free because the constable has blundered.' In some cases this
will undoubtedly be the result. But 'there is another consideration -the imperative of judicial integrity.' The criminal goes free, if he
must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or
worse, its disregard of the charter of its own existence."[33]
As to the averred glaring inconsistencies in the testimonies of
the prosecution witnesses, this Court considers them trivial as they
refer to insignificant details which will not affect the outcome of the
case.On a passing note, this Court calls the attention of the trial
court regarding its erroneous appreciation of conspiracy. This
aggravating circumstance is without question unsupported by the
records. Conspiracy was not included in the indictment nor raised in
the pleadings or proceedings of the trial court. It is also
fundamental that conspiracy must be proven just like any other
criminal accusation, that is, independently and beyond reasonable
doubt.[34]

WHEREFORE, for all the foregoing, the decision of the

Regional Trial Court, Branch 66, San Fernando, La Union in Criminal
Case No. 4037 is hereby REVERSED and SET ASIDE and accusedappellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of
the crime charged, the evidence not being sufficient to establish his
guilt beyond reasonable doubt.

Gaces (Gaces), Jerry Hernandez (Hernandez), and Ronald Mufioz

(Mufioz), and respondent Atty. Moreno Generoso (Atty. Generoso)
were waiting for the water supply on Kasiyahan Street. Pestilos and
Macapanas got into an altercation with Atty. Generoso that involved
physical violence. Immediately after the incident, Pestilos and
Macapanas went to the barangay hall to seek help from the local
barangay officials.2

Costs de oficio.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

At the barangay hall, Pestilos reported the incident and wanted to

have it inscribed in the barangay blotter. The barangay tanod
advised them to secure a medical certificate first before Pestilos
and Macapanas could register their complaint in the barangay
blotter.3 Pestilos and Macapanas requested the barangay tanod to
accompany them on their way back to their residences on
Kasiyahan Street, "to avoid further trouble."4

SECOND DIVISION
G.R. No. 182601

November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES,

JERRY FERNANDEZ and RONALD MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE
PHILIPPINES, Respondents.
DISSENTING OPINION
LEONEN, J.:
I regret that I cannot bring myself to agree that the warrantless
arrest was valid.
To review, the facts as established are as follows:
Both petitioners and respondent are residents of Kasiyahan Street,
Barangay Holy Spirit, Quezon City.1
On February 20, 2005, at around 3:00 to 3:15 a.m., petitioners Joey
M. Pestilo.s (Pestilos ), Dwight Macapanas (Macapanas ), Miguel

At around 5:30 a.m., Pestilos and Macapanas arrived with the

barangay tanod on Kasiyahan Street. Bythen, officers from Batasan
Hills Police Station were present. Atty. Generoso pointed to Pestilos
and Macapanas as perpetratorsof his alleged mauling.5 The two
began complaining about Atty. Generosos attack against them. The
police officers, led by SPO2 Dominador Javier (SPO2 Javier), brought
Pestilos, Macapanas, and Atty. Generoso to the police station. The
other petitioners, Gaces, Hernandez, and Muoz, were brought by
Pestilos and Macapanas to act as their witnesses.
Macapanas left the police station for a while to get a medical
certificate from the East Avenue Medical Center, as advised by the
barangay tanod earlier.6 Meanwhile, at the police station, Atty.
Generoso filed charges against all petitioners (Pestilos, Macapanas,
Gaces, Hernandez, and Muoz) for frustrated murder. 7
Macapanas also filed charges against Atty. Generoso for slight
physical injuries.8 The police officers in the Batasan Hills Police
Station rendered reports for both charges. Inaddition to the reports,
SPO2 Javier executed an affidavit of arrestwith respect to
petitioners.9
At the Office of the Prosecutor,the prosecutor subjected all the
petitioners to inquest, while the complaint against Atty. Generoso

was treated as a case subject topreliminary investigation.10 Two

days after the incident, the prosecutor filed an information against
petitioners for attempted murder.11
Before arraignment, petitioners filed an urgent motion for regular
preliminary investigation. However, the Regional Trial Court of
Quezon City, Branch 96, denied the motion.12 They filed a motion
for reconsideration, but the motion was denied.13
On appeal via Rule 65, the Court ofAppeals sustained the order of
the Regional Trial Court: WHEREFORE, the instant petition for
certiorari is hereby DISMISSEDfor lack of merit.

warrant would be absurd or is manifestly unnecessary as provided

by the Rule. We cannot liberally construe the rule on arrests
without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal
liberty and set back a basic right so often violated and so deserving
of full protection.18 (Emphasis supplied).
The limited circumstances for the conduct of reasonable
warrantless arrests are enumerated in Rule 113, Section 5 of the
Rules of Court.
SEC. 5. Arrest without warrant; when lawfulA peace officer or a
private person may, without a warrant, arrest a person:

SO ORDERED.14
The Court of Appeals denied petitioners motion for reconsideration
in the resolution dated April 17, 2008.15 They came to this court via
a petition for review on certiorari. They argue that they are entitled
to preliminary investigation. Subjecting them to inquest
proceedings was irregular because they were not properly arrested.
Assuming that their decision to go to the police station was an
"arrest," the arrest was invalid because it was not made in
compliance with the ruleon warrantless arrests.
I vote that the petition be granted. Petitioners are entitled to a
preliminary investigation because the warrantless arrest was not
valid.
The right of a person to his or her liberties in the form of
protections against unreasonable searches and seizures enjoys a
high degree of protection.16 The Constitution only allows for
reasonable searches and seizures. As a general rule, courts decide
whether there is probable cause to issue a search warrant or
warrant of arrest. In People v. Burgos,17 this court stated that:
The right of a person to be secure against any unreasonable seizure
of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed.Any
exception must clearly fall within the situations when securing a

(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 arrestedis a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his
case ispending, or has escaped while being transferred from
one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 12, Section 7.
This case does not fall under the first and third exceptions. The
question is whether this falls under the special circumstances of
Section 5(b) of Rule 113 of the Rules of Court. The elements of a
valid warrantless arrest under Rule113, Section 5(b) are the
following: (1) the offense has just been committed; (2) the arresting
officer has personal knowledge of facts orcircumstances; and (3)

these facts and circumstances give riseto probable cause that the
person to be arrested has committed the offense.
The first element requires that there are facts leading to a
conclusion that an offense has been committed. Being based on
objectivity, the first element requires the occurrence of facts that,
when taken together, constitutes the commission of an offense.
If we accepted the version of Atty. Generoso, it appears that he was
a victim of an attack from petitioners. The facts that he narrated
may, thus, constitute the possible offenses of physical injuries or
even attempted or frustrated homicide or murder. The offense
should be evaluated from the facts and circumstances as it
appearedto the person making the warrantless arrest. The element
that the offense had "just been committed" was introduced in the
1985 revision of the Rules of Criminal Procedure. This element must
be read in relation to the general requirement that a warrant of
arrest must be procured to ensure a more impartial determination
of the existence of facts and circumstances. This element, however,
acknowledges the necessities of law enforcement. At times, the
police officer arrives at the scene of the crime after the crime just
happened and there are facts and circumstances such as the
sudden flight of a person or the wielding of a weapon by a person
near the incident that reasonably lead the police officer to
believe that the person is the perpetrator. In such cases, to ensure
that the right person can be put withinthe jurisdiction of a court,
the rules allow a valid warrantless arrest.
This necessity is wanting in this case. Petitioners themselves,
together with a barangay tanod, voluntarily went to the police
station. They did so after they had gone to the barangay hall to
report the incident and had their own complaints entered into the
barangay blotter.
There was no urgency to arrest petitioners. Theywere not planning
to flee. They voluntarily presented themselves as complainants
against private respondent. For reasons not clear in the record,
they were subjected to a warrantless arrest and thento inquest.
Private respondent, on the other hand, was allowed to be a
respondent in a preliminary investigation. He was not arrested.

Several cases qualified the time element of "just been committed"

to range from three (3) hours19 to 14 days.20This is not the correct
approach.
In Re Petition for Habeas Corpus of Laurente C. Ilagan21 and Umil v.
Ramos,22 cited by the majority, were decided under the dark days
of Martial Law. The dissents in those cases were clarion calls for the
protection of our liberties.
Former Chief Justice Claudio Teehankee, in his dissent in In Re
Ilagan, was of the opinion that "just been committed" "connotes
immediacy in point of time."23 Former Associate Justice Florenz
Regalado24 emphasized the requirement of immediacy:
The brevity in the interval of time between the commission of the
crime and the arrest, as now required by Section 5(b), must have
been dictated by the consideration, among others, that by reason
of such recency of the criminal occurrence, the probability of the
arresting officer acquiring personal and/or reliable knowledge of
such fact and the identity of the offender is necessarily enhanced, if
not assured. The longer the interval, the more attenuated are the
chances of his obtaining such verifiable knowledge.25
In the same case, Associate Justice Florentino Feliciano illustrated
how a hot pursuit warrantless arrest should be made:
Turning to Section 5 (b), two (2) elements must coincide before a
warrantless arrest may be sustained under this subsection: 1) the
offense must have "just been committed" when the arresting officer
arrived in the scene; and 2)the officer must have "personal
knowledge" of facts indicating that the person to be arrested has
committed the offense. In somewhat different terms, the first
requirement imports that the effects or corpus of the offense which
has just been committed are still visible: e.g. a person sprawled on
the ground, dead of a gunshot wound; or a person staggering
around bleeding profusely from stab wounds.The arresting officer
may not have seen the actual shooting or stabbing of the victim,
and therefore the offense can not be said to have been committed
"in [his] presence." The requirement of "personal knowledge" on
the part of the arresting officer is a requirement that such

knowledge must have been obtained directly from sense perception

by the arresting officer.That requirement would exclude information
conveyed by another person, no matter what his reputation for
truth and reliability might be. Thus, where the arresting officer
comes upon a person dead on the streetand sees a person running
awaywith a knife from where the victim is sprawled on the ground,
he has personal knowledge of facts which rendered it highly
probable that the person fleeing was the doer of the criminal deed.
The arresting officer must, in other words, perceive through his own
senses some act which directly connects the person to be arrested
with the visible effects or corpus of a crime which has "just been
committed."26 (Emphasis supplied)
The second element under Rule 113, Section 5(b) is that the
arresting officer has personal knowledge of facts and
circumstances. Personal knowledge is "derived from the [persons]
own perception."27
On the other hand, information not of personal knowledge is
hearsay. Hearsay is "evidence not of what the witness knows
himself but of what he has heard from others."28
The arresting officers must obtain personal knowledge of the facts
and circumstances that lead to the conclusion that an offense has
just been committed. They must also perceivefacts and
circumstances that would substantiate the probable liability of the
person. The accused is usually identified when he or she is seen
fleeing the scene because the act of fleeing suggests the attempt
to evade authority. A person in possession of a weapon could also
be perceived as the one liable for an offense.
There must be a reasonable amount offacts short of seeing the
entire offense being committed. A collection offacts, on the other
hand, is a set of circumstances. If the arresting officer saw facts
and circumstances indicating that an offense has just been
committed and the person is probably liable for that offense, a
warrantless arrest is justified under Rule 113, Section 5(b). If the
arresting officer saw the offense being committed, then the
warrantless arrest will be justified under Rule 113, Section 5(a), not
under subsection (b).

Facts or circumstances relating tothe nature of the offense cannot

substitute for personal knowledge of facts or circumstances relating
to the liability of the person who probably committed the offense.
One pertains to the object and the other the method of perception.
SPO2 Javier had personal knowledgeof the injuries of private
respondent. This is only personal knowledge with respect to the
offense, not yet as to the identity of the perpetrators.
On the other hand, the information obtained by the police officers
when private respondent pointed to petitioners as the perpetrators
of the crime was hearsay. Private respondents act of pointing to
petitioners communicated that petitioners committed the mauling.
It becomes hearsay on the part of the police officers who did not
see petitioners mauling private respondent. The only personal
knowledge obtained by the police officers was that private
respondent pointed to petitioners.
According to petitioners, they returned to the crime scene and saw
the police officers. They also informed the police officers that
private respondent attacked them. That is another hearsay
received by the police officers at the crime scene.
The police officers perceived limited facts while investigating at the
crime scene. These limited facts do not provide sufficient bases for
the liability of anyone at the scene. No one was reported holding a
weapon allegedly used against private respondent. None of the
petitioners fled at the sight of the police officers.
There were only facts relating to the offense, such as the sight of
an injured private respondent. This fact cannot substitute for the
personal knowledge of facts and circumstances relating to the
liability of petitioners.
Parenthetically, the police officers also had hearsay knowledge that
private respondent was the perpetrator against petitioners. For
reasons not clear in the records, however, the police officers
preferred not to arrest him.
The third element requires that these facts and circumstances must
lead to the conclusion that there is probable cause to believe that

the person to be arrested committed the offense. Rule 113, Section

5(b) requires that "probable cause" or "actual belief or reasonable
grounds of suspicion" must be supported by personal knowledge of
facts or circumstances that, when taken together, builds the
suspicion thatan individual committed the offense.

In Posadas v. Ombudsman,35 the National Bureau of Investigation

officers arrested two students identified bywitnesses as the
perpetrators of a killing during a fraternity rumble. The arrest was
made without a warrant, and this court declared the warrantless
arrest invalid.

The plurality in the phrasing suggests that there should be more

than one fact or circumstance. In People v. Cogaed,29 we ruled that
for there to be a "genuine reason" to execute a warrantless arrest
or search, there should be more than one suspicious circumstance
to infer that there was criminal activity.30

Rule 113, Section 5(b) did not apply in People v. Briones36 where the
accused was arrested after one eyewitness had identified him as
the murderer. This court declared that the warrantless arrest was
invalid "because the police officer who effected the arrest
indubitably had no personal knowledge of facts indicating that the
person to be arrested has committed the crime. It is [the]
eyewitness . . . who had such personal knowledge."37

In most cases that found the validity of the warrantless arrest,

there was the presence of more than one circumstance that formed
part of the personal knowledge of the police officers.
In People v. Jayson,31 police officers were summoned immediately to
the crime scene. They found the victim, and saw the accused
fleeing. These are two facts that show that the offense was
committed and that the person arrested was probably responsible
because he attempted to escape.
In People v. Tonog,32 there was a murder. Police officers at the crime
scene saw the following: the body of the victim and a motorcab
that was driven by Tonog that day. Tonog voluntarily went to the
police station, and one of the police officers noticed that he had
blood splatters on his jeans. All three facts and circumstances were
observed by the police officers during the arrest, thereby building
the probable cause that Tonog committed the murder. 33 On the
other hand, this court ruled that there are instances when there is
no personal knowledge of the police officers; hence, there is no
valid warrantless arrest.
In People v. Burgos,34 a source informed the police officers that
Ruben Burgos was engaged in subversive activities. This court held
that the report was not enough to enact a warrantless arrest under
Rule 113, Section 5(b), especially since there were no facts
personally known to the police officers that a crime was committed.

Jurisprudence often repeats the doctrine summarized in Umil v.

Ramos:38
It has been ruled that "personal knowledge of facts", in arrests
without warrant must be based upon probable cause, which means
an actual belief or reasonable ground of suspicion.
The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers,the suspicion that the person
to be arrested is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances sufficiently strong
in themselves to create the probable cause of guilt of the person to
be arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace
officers making the arrest.39 (Citations omitted)
The confusion with this treatment is that it qualifies personal
knowledge with probable cause, not the other way around. The rule
states that "probable cause . . . [is] based on personal knowledge of
facts and circumstances."40It does not state personal knowledge of
facts based on probable cause or reasonable suspicion.The import
of the text is that reasonable suspicion and probable cause is built
by personal knowledge of facts and circumstances. Personal
knowledge is the method of perceiving facts. Probable cause is the
conclusion of all the facts so perceived. Flight of the accused is
often a sign that there is probable cause that he or she committed

the offense. When he or she attempts to escape from authorities,

the authorities must act immediately because not doing so might
compromise the investigation.
If there is no personal knowledge offacts and circumstances on the
part of the police officers, a warrantless arrest under Rule 113,
Section 5(b) will be unreasonable because there is nothing to base
probable cause on that the accused committed the offense.
Here, there was no flight of the accused. On the contrary,
petitioners returned to the crime scene41 because they felt that
they were the victims, not the perpetrators.
The police officers were still investigating the matter when
petitioners were brought to the police station. The circumstances of
the situation did not call for an exception to the rulerequiring a
warrant of arrest. The statement made by private respondent on
the identity of his perpetrators, as communicated to the police,
could have been reduced to an affidavit used to support an
application for a warrant of arrest. The statements made by
petitioners were other pieces of evidence to be considered for the
issuance of a warrant of arrest.
The police officers were not threatened by the immediate flight of
the alleged perpetrators who believed that they also have a right to
vindicate since they were cooperating with the police. All facts
point to the reasonability of obtaining a warrant ofarrest. There was
no exigency to cause the warrantless arrest of petitioners.
It bears stressing that petitioners went with the police officers in
their capacity as complainants against private respondent. They did
not know that they were already being arrested. Totheir mind, the
police officers just wanted to continue the investigation at the
police station. This is shown by the police report dated February
20,2005 regarding the complaint of petitioner Macapanas against
private respondent Atty. Generoso. In this report, petitioner
Macapanas was the complainant, and private respondent Atty.
Generoso was the accused. To wit:

It is worthy to mentioned [sic] that complainant voluntarily [sic]

appeared to this Station wherein he was identified by complainant
at [sic] the one who punched him(,) which also causing [sic] him to
be bitten (by) a dog thereat.42
The existence of two police reportsfor two separate crimes
committed during one incident one with petitioners as
accused43 and the other with private respondent as accused44
proves that at the time that petitioners were taken into custody,
the police officers were still uncertain about what happened. This
negates the presenceof probable cause, required by Rule 113,
Section 5(b).
Probable cause must exist at the time of the warrantless arrest.
Otherwise, any form of uncertainty should be resolved through the
exercise of judicial caution.
When the police officers becamemore convinced that private
respondents version was more believable than petitioners, the
police officers should have applied for a warrant of arrest. SPO2
Javier expedited procedure when he executed an affidavit of arrest.
He made it appear that there was a valid warrantless arrest,
instead of applying for a warrant of arrest. This is unacceptable in
our Constitution.
Strict standards should be imposed on law enforcement. It is said
that "the prosecution can bring the full resources of the state to
bear on winning. Imposing a heavy burden of proof on the
prosecution diminishes this advantage."45
Relaxing our standards in taking individuals under custody
enhances the advantage of the prosecution, tothe detriment of the
individual. Compared to the state, the accused does not have the
resources to question the legitimacy of an arrest. Some of them do
not even know that they are already being arrested. Many arrested
individuals may not even be able to afford lawyers until the public
attorney steps in during custodial investigation or, worse, during
arraignment. By then, the accused would have already been
deprived of his or her liberty.

The circumstances of this case requirethe vigilance of this court in

protecting the neglected rights of petitioners. Petitioners were just
in their 20s when the altercation occurred. Pestilos was a student,
Macapanas and Muoz were unemployed, Gaces was a driver, and
Fernandez was a printing press operator. Petitioners havebeen
certified as indigents.46 They are of limited means. At the time that
they were trying to vindicate their rights at the police station, they
did not have counsel.
On the other hand, it is easier for the police officers to be
persuaded by private respondent, a member of the bar who is fully
aware of his constitutional rights. The police officers became more
inclined to believe his story because he is a lawyer, while
petitioners were all non-lawyers. Petitioners were not expected to
know that a detention was an arrest. The affidavit of arrest stated
that SPO2 Javier "informed all the suspects of the charges imputed
against themby complainant Atty. Generoso."47 To an ordinary
citizen, they were just complaints. An invitation is really just an
invitation for petitioners. They did not go to the police station
because they were being arrested.
With the absence of a valid warrantless arrest, petitioners are
entitled to preliminary investigation. Preliminary investigation is "an
inquiry or a proceeding the purpose of which is to determine
whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is probably
guilty thereof, and should be held for trial."48 The right to
preliminary investigation is statutory in character.49 Being
mandated by statute, a preliminary investigation becomes part of
the constitutional due process rights accorded to the accused. 50
Under Rule 112, a preliminary investigation is required if an offense
has a penalty of at least four (4) years, two (2) months, and one (1)
day. However, under Section 6 of the same rules, a preliminary
investigation is no longer necessary if the person accused was
arrested lawfully without a warrant. If there was a valid warrantless
arrest under Rule 113, Section 5, inquest proceedings are required.
Based on the Manual for Prosecutors, inquests are conducted by a
public prosecutor assigned as an Inquest Officer. An inquest is

conducted only at the police stations or headquarters of the

Philippine National Police, unless otherwise directed. 51
Here, petitioners alleged that theywere brought from Batasan Hills
Police Station to the Office of the Prosecutor. At the Office of the
Prosecutor, it was decided that petitioners would be subjected to
inquest, while respondent would undergo preliminary investigation.
This irregularly conducted inquest aggravates the fact that
petitioners were subjected to an inquest despite lack of a valid
warrantless arrest.
Considering that petitioners were not arrested in accordance with
the strict guidelines of our Constitution and the Rules of Court,
petitioners' statutory right to preliminary investigation is
mandatory.
ACCORDINGLY, the petition should be GRANTED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 201363

March 18, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.
DECISION
PERLAS-BERNABE, J.:
This is an appeal from the May 25, 2011 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CR No. 31320 which affirmed in toto the
December 11, 2007 Decision2
of the Regional Trial Court of Caloocan City, Branch 123 (RTC),
convicting appellant Nazareno Villareal y Lualhati (appellant) of

violation of Section 11, Article II of Republic Act No. 9165 3 (RA

9165) and sentencing him to suffer the penalty of imprisonment for
twelve (12) years and one (1) day to fourteen (14) years and eight
(8) months and to pay a fine of P300,000.00.
The Factual Antecedents
On December 25, 2006 at around 11:30 in the morning, as PO3
Renato de Leon (PO3 de Leon) was driving his motorcycle on his
way home along 5th Avenue, he saw appellant from a distance of
about 8 to 10 meters, holding and scrutinizing in his hand a plastic
sachet of shabu. Thus, PO3 de Leon, a member of the Station AntiIllegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City,
alighted from his motorcycle and approached the appellant whom
he recognized as someone he had previously arrested for illegal
drug possession.4
Upon seeing PO3 de Leon, appellant tried to escape but was quickly
apprehended with the help of a tricycle driver. Despite appellants
attempts to resist arrest, PO3 de Leon was able to board appellant
onto his motorcycle and confiscate the plastic sachet of shabu in
his possession. Thereafter, PO3 de Leon brought appellant to the
9th Avenue Police Station to fix his handcuffs, and then they
proceeded to the SAID-SOU office where PO3 de Leon marked the
seized plastic sachet with "RZL/NV 12-25-06," representing his and
appellants initials and the date of the arrest.5
Subsequently, PO3 de Leon turned over the marked evidence as
well as the person of appellant to the investigator, PO2 Randulfo
Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment
receipt6 and prepared a letter request7 for the laboratory
examination of the seized substance. PO2 Hipolito personally
delivered the request and the confiscated item to the Philippine
National Police (PNP) Crime Laboratory, which were received by
Police Senior Inspector Albert Arturo (PSI Arturo), the forensic
chemist.8
Upon qualitative examination, the plastic sachet, which contained
0.03 gram of white crystalline substance, tested positive for
methylamphetamine hydrochloride, a dangerous drug. 9

Consequently, appellant was charged with violation of Section 11,

Article II of RA 9165 for illegal possession of dangerous drugs in an
Information10 which reads:
That on or about the 25th day of December, 2006 in Caloocan City,
Metro Manila and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then
and there willfully, unlawfully and feloniously have in his
possession, custody and control, METHYLAMPHETAMINE
HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when
subjected to chemistry examination gave positive result of
METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous drug.
CONTRARY TO LAW.
When arraigned, appellant, assisted by counsel de oficio, entered a
plea of not guilty to the offense charged.11
In his defense, appellant denied PO3 de Leons allegations and
instead claimed that on the date and time of the incident, he was
walking alone along Avenida, Rizal headed towards 5th
Avenue when someone who was riding a motorcycle called him
from behind. Appellant approached the person, who turned out to
be PO3 de Leon, who then told him not to run, frisked him, and took
his wallet which containedP1,000.00.12
Appellant was brought to the 9th Avenue police station where he
was detained and mauled by eight other detainees under the
orders of PO3 de Leon. Subsequently, he was brought to the
Sangandaan Headquarters where two other police officers, whose
names he recalled were "Michelle" and "Hipolito," took him to the
headquarters firing range. There, "Michelle" and "Hipolito" forced
him to answer questions about a stolen cellphone, firing a gun right
beside his ear each time he failed to answer and eventually
mauling him when he continued to deny knowledge about the
cellphone.13 Thus, appellant sustained head injuries for which he
was brought to the Diosdado Macapagal Hospital for proper
treatment.14

The following day, he underwent inquest proceedings before one

Fiscal Guiyab, who informed him that he was being charged with
resisting arrest and "Section 11."15 The first charge was eventually
dismissed.
The RTC Ruling
After trial on the merits, the RTC convicted appellant as charged
upon a finding that all the elements of the crime of illegal
possession of dangerous drugs have been established, to wit: (1)
the appellant is in possession of an item or object which is
identified to be a prohibited drug; (2) that such possession is not
authorized by law; and (3) that the accused freely and consciously
possesses said drug. Finding no ill motive on the part of PO3 de
Leon to testify falsely against appellant, coupled with the fact that
the former had previously arrested the latter for illegal possession
of drugs under Republic Act No. 642516 (RA 6425), the RTC gave full
faith and credit to PO3 de Leons testimony. Moreover, the RTC
found the plain view doctrine to be applicable, as the confiscated
item was in plain view of PO3 de Leon at the place and time of the
arrest.
On the other hand, the RTC gave scant consideration to the
defenses of denial and frame-up proffered by the appellant, being
uncorroborated, and in the light of the positive assertions of PO3 de
Leon. It refused to give credence to appellants claim that PO3 de
Leon robbed him of his money, since he failed to bring the incident
to the attention of PO3 de Leons superiors or to institute any
action against the latter.
Consequently, the RTC sentenced appellant to suffer the penalty of
imprisonment of twelve (12) years and one (1) day to fourteen (14)
years and eight (8) months and to pay a fine of P300,000.00.
The CA Ruling
In its assailed Decision, the CA sustained appellants conviction,
finding "a clear case of in flagrante delicto warrantless arrest" 17 as
provided under Section 5, Rule 113 of the Revised Rules of Criminal
Procedure. The CA held that appellant "exhibited an overt act or

strange conduct that would reasonably arouse

suspicion,"18aggravated by the existence of his past criminal
citations and his attempt to flee when PO3 de Leon approached
him.
Citing jurisprudence, the appellate court likewise ruled that the
prosecution had adequately shown the continuous and unbroken
chain of custody of the seized item, from the time it was
confiscated from appellant by PO3 de Leon, marked at the police
station, turned over to PO2 Hipolito and delivered to the crime
laboratory, where it was received by PSI Arturo, the forensic
chemist, up to the time it was presented in court for proper
identification.
The Issue
The sole issue advanced before the Court for resolution is whether
the CA erred in affirming in toto the RTCs Decision convicting
appellant of the offense charged.
The Ruling of the Court
The appeal is meritorious.
Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays
down the basic rules on lawful warrantless arrests, either by a
peace officer or a private person, as follows:
Sec. 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.

PO3 DE LEON: Yes Maam.

Q: What was this incident?
A: While I was on board my motorcycle on my home, I saw a man
looking at the shabu in his hand, Maam.

xxx
Q: And exactly what time was this?
For the warrantless arrest under paragraph (a) of Section 5 to
operate, two elements must concur: (1) the person to be arrested
must execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view of the
arresting officer.19 On the other hand, paragraph (b) of Section 5
requires for its application that at the time of the arrest, an offense
had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the appellant had
committed it.20
In both instances, the officers personal knowledge of the fact of
the commission of an offense is absolutely required. Under
paragraph (a), the officer himself witnesses the crime while under
paragraph (b), he knows for a fact that a crime has just been
committed.
In sustaining appellants conviction in this case, the appellate court
ratiocinated that this was a clear case of an "in flagrante delicto
warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule
113 of the Revised Rules on Criminal Procedure, as above-quoted.
The Court disagrees.
A punctilious assessment of the factual backdrop of this case shows
that there could have been no lawful warrantless arrest. A portion
of PO3 de Leons testimony on direct examination in court is
revelatory:
FISCAL LARIEGO: While you were there at 5th
Avenue, was there anything unusual that transpired?

A: Around 11:30 in the morning, Maam.

Q: How far were you from this person that you said was verifying
something in his hand?
A: Eight to ten meters, Maam.
Q: What exactly did you see he was verifying? A: The shabu that he
was holding, Maam.
Q: After seeing what the man was doing, what did you do next?
A: I alighted from my motorcycle and approached him, Maam.
Q: In the first place why do you say that what he was examining
and holding in his hand was a shabu?
A: Because of the numerous arrests that I have done, they were all
shabu, Maam.21 (Underscoring supplied)
On the basis of the foregoing testimony, the Court finds it
inconceivable how PO3 de Leon, even with his presumably perfect
vision, would be able to identify with reasonable accuracy, from a
distance of about 8 to 10 meters and while simultaneously driving a
motorcycle, a negligible and minuscule amount of powdery
substance (0.03 gram) inside the plastic sachet allegedly held by
appellant. That he had previously effected numerous arrests, all
involving shabu, is insufficient to create a conclusion that what he
purportedly saw in appellants hands was indeed shabu.

Absent any other circumstance upon which to anchor a lawful

arrest, no other overt act could be properly attributed to appellant
as to rouse suspicion in the mind of PO3 de Leon that he (appellant)
had just committed, was committing, or was about to commit a
crime, for the acts per se of walking along the street and examining
something in ones hands cannot in any way be considered criminal
acts. In fact, even if appellant had been exhibiting unusual or
strange acts, or at the very least appeared suspicious, the same
would not have been sufficient in order for PO3 de Leon to effect a
lawful warrantless arrest under paragraph (a) of Section 5, Rule
113.
Neither has it been established that the rigorous conditions set
forth in paragraph (b) of Section 5, Rule 113 have been complied
with, i.e., that an offense had in fact just been committed and the
arresting officer had personal knowledge of facts indicating that the
appellant had committed it.
The factual circumstances of the case failed to show that PO3 de
Leon had personal knowledge that a crime had been indisputably
committed by the appellant. It is not enough that PO3 de Leon had
reasonable ground to believe that appellant had just committed a
crime; a crime must in fact have been committed first, which does
not obtain in this case.
Without the overt act that would pin liability against appellant, it is
therefore clear that PO3 de Leon was merely impelled to apprehend
appellant on account of the latters previous charge22 for the same
offense. The CA stressed this point when it said:
It is common for drugs, being illegal in nature, to be concealed from
view.1wphi1 PO3 Renato de Leon saw appellant holding and
scrutinizing a piece of plastic wrapper containing a white powderly
substance. PO3 Renato de Leon was quite familiar with appellant,
having arrested him twice before for the same illegal possession of
drug. It was not just a hollow suspicion. The third time around, PO3
de Leon had reasonably assumed that the piece of plastic wrapper
appellant was holding and scrutinizing also contained shabu as he
had personal knowledge of facts regarding appellants person and
past criminal record. He would have been irresponsible to just wait

and see and give appellant a chance to scamper away. For his part,
appellant being, in fact, in possession of illegal drug, sensing
trouble from an equally familiar face of authority, ran away. Luckily,
however, PO3 de Leon caught up with him through the aid of a
tricycle driver. Appellants act of running away, indeed, validated
PO3 de Leons reasonable suspicion that appellant was actually in
possession of illegal drug. x x x23
However, a previous arrest or existing criminal record, even for the
same offense, will not suffice to satisfy the exacting requirements
provided under Section 5, Rule 113 in order to justify a lawful
warrantless arrest. "Personal knowledge" of the arresting officer
that a crime had in fact just been committed is required. To
interpret "personal knowledge" as referring to a persons reputation
or past criminal citations would create a dangerous precedent and
unnecessarily stretch the authority and power of police officers to
effect warrantless arrests based solely on knowledge of a persons
previous criminal infractions, rendering nugatory the rigorous
requisites laid out under Section 5.
It was therefore error on the part of the CA to rule on the validity of
appellants arrest based on "personal knowledge of facts regarding
appellants person and past criminal record," as this is
unquestionably not what "personal knowledge" under the law
contemplates, which must be strictly construed.24
Furthermore, appellants act of darting away when PO3 de Leon
approached him should not be construed against him. Flight per se
is not synonymous with guilt and must not always be attributed to
ones consciousness of guilt.25 It is not a reliable indicator of guilt
without other circumstances,26 for even in high crime areas there
are many innocent reasons for flight, including fear of retribution
for speaking to officers, unwillingness to appear as witnesses, and
fear of being wrongfully apprehended as a guilty party. 27 Thus,
appellants attempt to run away from PO3 de Leon is susceptible of
various explanations; it could easily have meant guilt just as it
could likewise signify innocence.
In fine, appellants acts of walking along the street and holding
something in his hands, even if they appeared to be dubious,

coupled with his previous criminal charge for the same offense, are
not by themselves sufficient to incite suspicion of criminal activity
or to create probable cause enough to justify a warrantless arrest
under Section 5 above-quoted. "Probable cause" has been
understood to mean a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man's belief that the person accused is guilty of the
offense with which he is charged.28 Specifically with respect to
arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has
been committed by the person sought to be arrested,29 which
clearly do not obtain in appellants case.
Thus, while it is true that the legality of an arrest depends upon the
reasonable discretion of the officer or functionary to whom the law
at the moment leaves the decision to characterize the nature of the
act or deed of the person for the urgent purpose of suspending his
liberty,30 it cannot be arbitrarily or capriciously exercised without
unduly compromising a citizens constitutionally-guaranteed right
to liberty. As the Court succinctly explained in the case of People v.
Tudtud:31
The right of a person to be secure against any unreasonable seizure
of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the
requirement of warrants of arrest is strictly construed. Any
exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided
by the Rule. We cannot liberally construe the rule on arrests
without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal
liberty and set back a basic right so often violated and so deserving
of full protection.
Consequently, there being no lawful warrantless arrest, the shabu
purportedly seized from appellant is rendered inadmissible in
evidence for being the proverbial fruit of the poisonous tree. As the
confiscated shabu is the very corpus delicti of the crime charged,
appellant must be acquitted and exonerated from all criminal
liability.

WHEREFORE, the assailed Decision of the Court of Appeals in CAG.R. CR No. 31320 is REVERSED and SET ASIDE. Appellant
Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of
the offense charged and ordered immediately released from
detention, unless his continued confinement is warranted by some
other cause or ground.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28129

October 31, 1969

ELIAS VALCORZA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
Nemesio G. Beltran for petitioner.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor
General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for
respondent.
DIZON, J.:
Elias Valcorza was charged with homicide in the Court of First
Instance of Bukidnon where, after trial, he was found guilty thereof,
with the mitigating circumstances of lack of intention to commit so
grave a wrong as the one committed and voluntary surrender, and
sentenced to suffer an indeterminate sentence of not less than two
years, four months and one day of prision correccional, nor more
than eight years and one day of prision mayor, to indemnify the
heirs of Roberto Pimentel in the amount of 6,000, but without
subsidiary imprisonment in case of insolvency, and to pay the
costs. He appealed to the Court of Appeals where, on August 16,
1967, judgment was rendered modifying the decision of the trial
court, as follows:

WHEREFORE, the judgment is modified as to the prison term

and appellant Elias Valcorza is declared guilty of homicide
with the mitigating circumstances of voluntary surrender
and passion and obfuscation and, accordingly, he is
sentenced to serve an indeterminate penalty of four (4)
months and one (1) day ofarresto mayor, as minimum, to
two (2) years, four (4) months and one (1) day of prision
correccional, as maximum, with the accessories of the law;
to pay the heirs of the deceased, Roberto Pimentel, in the
sum of six thousand pesos (P6,000.00), together with the
costs.
In all other respects, the appealed judgment is affirmed.
From the above decision the present appeal by certiorari was taken,
it being petitioner's claim that the Court of Appeals committed the
following errors:
ASSIGNMENT OF ERRORS
I
THAT THE HONORABLE COURT OF APPEALS (MAJORITY
DECISION) ERRED IN HOLDING THAT PETITIONER ALTHOUGH
IN THE PERFORMANCE OF HIS DUTY AS PEACE OFFICER WAS
NOT JUSTIFIED IN SHOOTING THE DECEASED BECAUSE
THERE WAS NO DANGER TO HIS LIFE OR LIMB, A RULING
WHICH IS BEYOND THE CONTEXT OF ARTICLE 11,
PARAGRAPH 5 OF THE REVISED PENAL CODE AND
CONTRARY TO THE RULING LAID BY THIS HONORABLE
SUPREME COURT IN PEOPLE VERSUS DELIMA, 46 PHIL. 738;
II
THAT THE HONORABLE COURT OF APPEALS (MAJORITY
DECISION) ERRED IN LIKING PETITIONER TO A TRIGGERHAPPY POLICEMAN AND IN HOLDING THAT THE DECEASED
HAS NOT SHOWN TO BE A DANGEROUS PERSON, A RULING
WHICH IS CONTRARY TO ITS FINDING OF FACTS;

III
THAT THE HONORABLE COURT OF APPEALS (MAJORITY
DECISION) ERRED IN NOT ACQUITTING THE PETITIONER
BASED ON THE FACTS IN RELATION TO ARTICLE 11,
PARAGRAPH 5 OF THE REVISED PENAL CODE.
The facts found by the Court of Appeals which must be deemed
conclusive for the purpose of this appeal are as follows:
The deceased, Roberto Pimentel, was confined an June 4,
1960 in the municipal jail of Maramag, Bukidnon, as a
detention prisoner to answer a charge of stealing a chicken.
At about 1:00 p.m. when appellant was the police guard on
duty, Roberto Pimentel escaped. The following day a police
patrol team composed of Police Sgt. Federico Daiton and
Patrolmen Melquiades Caas, Pablo Lubido and the
appellant himself went to a place called Poultry Area in
barrio Cuya, Maramag, Bukidnon, where the accused had
been reported to be hiding, for the purpose of bringing him
back to jail. Their efforts to locate and apprehend Roberto
Pimentel having been fruitless, they decided to pass the
night in the house of one Gavino Tirayosa intending to
return to town the following morning.
At about five o'clock in the morning of the next day, June 6,
1960, Sgt. Daiton went down from the house of Gavino
Tirayosa to answer a call of nature. He went to a nearby
bridge and squatted thereon to defecate. While he was in
that position, he saw a person approaching slowly and he
ordered him to halt. The latter instead of doing so, jumped
down into the creek spanned by the bridge. He yelled for his
companions, saying that the person who jumped into the
creek could be their quarry. Patrolmen Caas, Lubido and
the appellant rushed out of the house of Gavino Tirayosa,
Caas and appellant going to the place at the creek where
the person had jumped down.
Sgt. Daiton stationed himself near the bridge and Patrolman
Lubido went to the other side of the creek. Appellant and

Caas followed the course of the creek and after covering a

distance of 100 meters they came across footprints which
they examined separately. While they were doing so,
Roberto Pimentel emerged suddenly from the bushes and
lunged at the appellant, hitting him with a stone at the right
cheek and causing him to fall to the ground. When appellant
Valcorza was on the ground, Roberto Pimentel again struck
him with a stone on the right arm. Fearing that Pimentel
might grab his service revolver, appellant Valcorza
summoned Patrolman Caas who dashed towards the place
but Pimentel ran away. Appellant Valcorza regained his
composure and immediately chased the deceased, firing a
shot into the air and ordering him to stop. As the deceased
did not heed his order, appellant fired four times into the air,
at the same time pursuing the prisoner for a distance of
about 100 meters. At that point, fearing that the patrol team
might fail in apprehending the deceased, appellant Valcorza
fired a fifth shot at Pimentel as the latter was in an act of
again jumping down into another part of the creek and when
the distance between the two was only three meters.
Patrolman Ca__as could not be of much help in the chase
because his revolver got entangled with some vines and he
dropped it. After recovering his revolver he joined Valcorza
but Pimentel had already jumped down into the water of the
creek.
The members of the patrol team went down into the water
to locate Pimentel and they saw him floating, with a wound
on his back. As Pimentel was still alive, he was placed in the
police jeep and taken to the poblacion of Maramag for
treatment, but he died a few minutes after arrival in the
municipal building.
The physician who examined the cadaver of the victim gave
the opinion that the missile from the gun fired against the
victim entered at the right side of the back but the slug was
lodged inside the body. The gray discoloration at the edge or
rim of the wound of entry showed the presence of powder
burns which, in the opinion of the physician, indicates that
the gun was fired at close range.

Elias Valcorza surrendered himself and his firearm to the

Chief of Police upon arrival in the municipal building of
Maramag.
Appellant seeks to justify his firing the shot against the
deceased by stating that he tried to hit him only at the leg,
after he had disregarded his several warning shots and
orders to stop running away. He claims that he did so at the
spur of the moment probably because he feared that his
patrol team might not succeed in apprehending the
deceased and bringing him back to jail. Furthermore, he also
claims that he only fired at the deceased when the latter
was in the act of jumping down into the creek which had
water of 8 feet deep, and if the deceased succeeded in
crossing the creek the patrol team might not be able to
apprehend him. In brief the appellant conveys idea that he
had to fire at the deceased in order that he may not
continue escaping.
The above version of the appellant was given in open court
when he testified on October 4, 1962 (t.s.n. pp. 9, 76).
However, he claims that he aimed only at the leg of the
deceased is not consistent with what he said in his sworn
statement, Exhibit A. 'Question and Answer No. 7' (p. 1,
Criminal Case Record), given to the Constabulary soldiers on
the afternoon of the day of the incident, or at 3:15 p.m. of
June 6, 1960. In narrating how the deceased was shot,
appellant Valcorza stated in part as follows:
"But said Roberto Pimentel tried his very best to
make another escape then he ran away cause I was
fell down on the ground during the time I wrestled
him, Roberto Pimentel. Then I still follow him and fire
my revolver four (4) times up in the sky to stop him
but still he continue running, so what I did I fired him
one direct hit shot on his back then he tried dive
escape into the water, and because he could not do
anything cause he was already suffering from a
gunshot wound we pick him up and bring him to our
headquarters in the Office of the Chief of Police of

Maramag, Bukidnon, for the necessary treatment of

the gunshot wound on his right side back ... ."
What the appellant said on June 6, 1960 in his statement,
Exhibit A, which he subscribed and sworn to before the
Justice of the Peace of Maramag, Bukidnon, on June 7, 1960,
is an unadulterated narration of what happened on the day
of the incident more than two years before he took the
witness stand. This first narration is more reliable because it
was made when there was yet no time for reflection so as to
make his story fit into the facts of the incident. After the
lapse of two years during which he could deliberate and
analyze the occurrence and prepare his defense, his
testimony in court no longer jibed with what he said shortly
after the event. This inconsistency affects his credibility and
wrecks his theory that he had no intention to kill the
deceased but only meant to disable him from further
escaping. It also seriously impairs his defense as it shows
that there was no reasonable necessity for appellant to
shoot the deceased at the time he was running away with
no weapon in his hands which he could use for aggression
against the appellant in case he desired to turn back and
face the latter. (pp. 3-7, Annex "A", Petitioner's brief.)
There is no question, therefore, that: on June 4, 1960, the deceased
Roberto Pimentel was a detention prisoner confined in the
municipal jail of Maramag, Bukidnon, from which he escaped at
about one o'clock p.m. that day when petitioner was on guard duty;
the following day four members of the police force of the
municipality, petitioner included, went after him to a place called
Poultry Area in barrio Cuya, their first efforts to locate him there
being unsuccessful; early the following morning, while Sgt. Daiton,
who led the patrol, was squatting on a bridge to answer a call of
nature, he saw a man approaching slowly and he ordered him to
stop; the latter, who happened to be the escaped detainee, instead
of doing so, jumped into the creek spanned by the bridge,
whereupon Sgt. Daiton summoned his three companions who all
rushed out of the house where they had spent the night, and went
after the escaping prisoner; petitioner and policeman Ca__as,
while following the course of the creek and examining certain

footprints they had found, saw their quarry suddenly emerging from
nearby bushes; the latter lunged at petitioner hitting him with a
stone on the right cheek, as a consequence of which he fell down,
and while in that position on the ground he was struck again with a
stone by the escaping detainee; thereafter the latter ran away
pursued by petitioner and his companion; in the course of the
pursuit the former fired a warning shot into the air, and as the
escaping detainee paid no heed to this, petitioner fired into the air
four times more and kept on pursuing him; as the latter was
apparently widening the distance between them, and fearing that
he might finally be able to elude arrest, petitioner fired directly at
him while he was in the act of jumping again into another part of
the creek, the shot having hit him on the back; as a result of the
wound thus inflicted upon him, Pimentel died a few minutes after
arrival at the municipal building to which he was taken.
While We have not lost sight of the fact that the deceased Pimentel
was charged with a relatively minor offense, namely, stealing a
chicken; and while We do not in any way wish to encourage law
enforcing officers to be trigger-happy nor to employ force and
violence upon persons under their custody, We cannot, in the
consideration of this case, disregard the following facts: the said
deceased, in violation of the law, had escaped from detention;
when ordered to stop by Sgt. Daiton whom he must have
recognized as a peace officer in his pursuit he ran away and then
threw himself into a creek to elude his pursuer; after sometime he
suddenly emerged from bushes near which petitioner and a fellow
policeman were and assaulted the former twice with a stone and
then ran away again pursued by petitioner and his companion; that
petitioner does not appear to be a trigger-happy policeman as
shown by the fact that he had fired five cautionary shots into the
air and decided to aim directly at the escaping detainee only when
he had already reasons to fear that the latter would be able to
elude him and his companions. These facts and circumstances
constrain Us to hold that the act thus performed by petitioner
and which unfortunately resulted in the death of the escaping
detainee was committed in the performance of his official duty
and was more or less necessary to prevent the escaping prisoner
from successfully eluding the officers of the law. To hold him guilty
of homicide may have the effect of demoralizing police officers

discharging official functions identical or similar to those in the

performance of which petitioner was engaged at the time he fired
at the deceased Pimentel, with the result that thereafter We would
have half-hearted and dispirited efforts on their part to comply with
such official duty. This of course, would be to the great detriment of
public interest.

CONSEQUENTLY, in the spirit of our decision in People vs. Delima,

46 Phil. 738, the decision appealed from is hereby reversed and, as
a consequence, petitioner is acquitted, with costs de officio.