COLLECTOR OF CUSTOMS V.

VILLALUZ
G.R. No. L-34038 / JUNE 18, 1976 / MAKASIAR, J.
CRIMPRO Return of property illegally seized/ GRACEGAR NATURE PETITIONERS Collector
of Customs RESPONDENTS Hon. Onofre Villaluz et. al.
SUMMARY. Collector of Customs, Salvador T. Mascardo, filed against Cesar T. Makapugay, a letter
complaint with respondent Judge of the Circuit Criminal Court for violation of: (a) Section 174 of the
National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central Bank Circular
No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central Bank Act,
and (c) Section 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and 2530 (m)
1 of the same Act. Respondent Judge ordered the return of the properties. Petitioner Collector of
Customs refused to obey the order due to the prior institution of seizure proceedings
thereon.
The refusal prompted respondent Makapugay to file a complaint for Open Disobedience
under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City. SC ruled in favor
of the Collector of Customs.
DOCTRINE. A circuit court judge cannot order return to importer of goods seized by the Collector of
Customs even if the criminal complaint against the importer is dismissed by said judge. Jurisdiction
to replevin seized imported articles belongs exclusively to the Bureau of Customs subject to appeal
to the Court of Tax Appeals.
FACTS. Petitioner Collector of Customs, Salvador T. Mascardo filed against Cesar T. Makapugay,
a letter complaint with respondent Judge of the Circuit Criminal Court for violation of NIRC, Central
Bank Circular 265 and RA 1937 claiming that Cesar T. Makapugay "with malicious intention to
defraud the government criminally, willfully and feloniously brought into the country FORTY (40)
cartons of "untaxed blue seal" Salem cigarettes and FIVE (5) bottles of Johny Walker Scotch
Whiskey, also "untaxed", without the necessary permit from the proper authorities. The respondent
submitted a Baggage Declaration Entry which did not declare the said articles. Respondent Judge
assumed jurisdiction to conduct and did conduct the preliminary investigation, and on July 6, 1971,
issued the challenged order, dismissing "the case with prejudice and ordering the return to private
respondent the amount of P2,280.00, his passport No. Ag-2456 FA - No. B103813, and one (1) box
of air-conditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal
Salem cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.). Armed with
said order, private respondent Makapugay demanded that petitioner release the articles so stated.
Petitioner Collector of Customs refused to obey the order due to the "prior institution of seizure
proceedings thereon." The refusal prompted respondent Makapugay to file a complaint for "Open
Disobedience" under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City.
Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order
dated July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary
investigation of criminal complaints directly filed with him, cannot legally order the dismissal "with
prejudice" of a criminal case after conducting a preliminary investigation thereon, and is without
authority to order the return of articles subject of seizure proceedings before Customs authorities.
In these six cases, one common legal issue is whether a Circuit Criminal Court possesses the power
to conduct preliminary investigations which is significant to determine whether items may be
returned or not.
ISSUE & RATIO. WON the items seized may be returned
NO The dismissal of a case, even with prejudice, during the stage of preliminary investigation does
not bar subsequent prosecution and conviction if the evidence warrants the re-filing of the same
becomes next to impossible. For the enforcement of such order would virtually deprive herein
petitioner Collector of Customs of the evidence indispensable to a successful prosecution of the
case against the private respondent. Worse, the order nullified the power of seizure of the customs
official. Respondent Judge ignored the established principle that from the moment imported goods
are actually in the possession or control of the Customs authorities, even if no warrant of seizure had
previously been issued by the Collector of Customs in connection with seizure and forfeiture
proceedings, the Bureau of Customs acquires exclusive jurisdiction over such imported goods for
the purpose of enforcing the Customs laws, subject to an appeal only to the Court of Tax Appeals
and to final review by the Supreme Court. Such exclusive jurisdiction precludes the Court of First
Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter and
divests such courts of the prerogative to replevin properties subject to seizure and forfeiture
proceedings for violation of the Tariff and Customs Code because proceedings for the forfeiture of
goods illegally imported are not criminal in nature since they do not result in the conviction of
wrongdoer nor in the imposition upon him of a penalty. DECISION. Petitions dismissed. Writs lifted.
NOTES. Fernando, J., concurring: Constitutional law; Preliminary examination; Constitution confers
of circuit criminal judge power to conduct preliminary examination, but said judges should curb any
eagerness to make use of such competence. It is my understanding then that the decision reached
is at most an affirmation that the present Constitution, as did the 1935 Constitution, confers the
power to conduct preliminary examination preparatory to issuing a warrant of arrest, to a circuit
criminal court judge. Even then, however, he should for sound policy reasons curb any eagerness or
propensity to make use of such competence. x x x As to his competence regarding a preliminary
investigation, it is my understanding that the question has been left open. Barredo, J., concurring in
result: Constitutional law; Preliminary examination; Congress did not intend to confer on circuit
criminal courts the power to conduct preliminary investigations. Notwithstanding the scholarly and
extended main opinion, I am not persuaded that the legislature ever intended to confer upon Circuit
Criminal Courts the power to conduct preliminary investigations. Not only the specific words of the
above provision, but the development of the law on preliminary investigations and circumstances
obtaining at the time R.A. 5179 was enacted point unmistakably, in my considered opinion, to this
conclusion.
 VIDUYA VS. VERDIAGO

o Except in the case of the search of a dwelling house, persons

exercising police authority under the customs law may effect search and
seizure without a search warrant in the enforcement of customs laws.

FACTS:

Respondent Berdiago is the owner of a Rolls Royce car, Model 1966, which arrived in
the Port of Manila on January 8, 1968. However, the petitioner, Jose Viduya, then
Collector of Customs of Manila, obtained reliable intelligence that fraudulent documents
were used by Berdiago in securing the release of the car from the Bureau of Customs,
making it appear therein that the car was a 1961 model instead of a 1966 one, thus
enabling respondent to pay a much lower customs duty.

There was, accordingly, a formal demand for the payment of the sum to cover the
deficiency, respondent manifesting his willingness to do so but failing to live up to his
promise. As the car was kept in a dwelling house at the Yabut Compound, two officials
of the Customs Police Service as duly authorized agents of petitioner, applied to
respondent Judge for a warrant to search said dwelling house and to seize the Rolls
Royce car found therein.

Berdiago filed a motion to quash the search warrant issued by the court based on lack
of probable cause to issue the warrant. Collector Viduya opposed, alleging that
Berdiago could not rely on the constitutional right against unreasonable search and
seizure because it was not shown that he owned the dwelling house which was
searched. Nonetheless, respondent Judge in the challenged order quashed such search
warrant.

Hence, this petition.

ISSUE:

o Whether or not respondent Judge committed grave abuse of discretion

in quashing the warrant
HELD:

The Court opined that except in the case of the search of a dwelling house, persons
exercising police authority under the customs law may effect search and seizure without
a search warrant in the enforcement of customs laws. There is justification then for the
insistence on the part of private respondent that probable cause be shown. So
respondent Judge found in issuing the search warrant.

Apparently, he was persuaded to quash it when he noted that the warrant for seizure
and detention came later than its issuance. In thus acting, respondent Judge apparently
overlooked that long before the search warrant was applied for, to be specific on April
15, 1968, the misdeclaration and underpayment was already noted and that thereafter
on April 24, 1968, private respondent himself agreed to make good the further amount
due but not in the sum demanded.

As the car was kept in a dwelling house, petitioner through two of his officers in the
Customs Police Service applied for and was able to obtain the search warrant. Had
there been no such move on the part of petitioner, the duties expressly enjoined on him
by law assess and collect all lawful revenues, to prevent and suppress smuggling and
other frauds and to enforce tariff and customs law would not have been performed.

While therefore, it is to be admitted that his warrant of seizure and detention came later
than the search warrant, there were indubitable facts in existence at that time to call for
its issuance. Certainly there was probable cause. There was evidently need for the
issuance of a search warrant. It ought not to have been thereafter quashed.
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant,
vs.
JOSE MA. VELOSO, defendant-appellant.

Claro M. Recto for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the accused, Jose
Ma. Veloso, guilty of the crime of resistance of the agents of the authority, in violation of article 252 of
the Penal Code, and sentencing him to four months and one day imprisonment, arresto mayor, with
the accessory penalties, to pay a fine of P200, with the corresponding subsidiary imprisonment in
case of insolvency, and to pay the costs. The errors assigned by counsel for the accused as
appellant, go to the proposition that the resistance of the police was justifiable on account of the
illegality of the John Doe search warrant.

In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an
organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the
House of Representative of the Philippine Legislature. He was also the manager of the club.

The police of Manila had reliable information that the so-called Parliamentary Club was nothing more
than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad,
had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo
of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge
Garduo of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a
little after three in the afternoon of the date above- mentioned. They found the doors to the premises
closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a
telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke
in the outer door.

Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of
them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him
the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not
John Doe, and that the police had no right to search the house. Townsend answered that Veloso
was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils,
Townsend required Veloso to show him the evidence of the game. About five minutes was consumed
in conversation between the policemen and the accused the policemen insisting on searching
Veloso, and Veloso insisting in his refusal to submit to the search.

At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only
to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another
part of the body, which injured the policeman quite severely. Through the combined efforts of
Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper,
of reglas de monte, cards, cardboards, and chips were taken from his pockets.

All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again
refused to obey and shouted offensive epithets against the police department. It was necessary for
the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three
policemen were needed to place him in the patrol wagon. 1awph!l.net

In the municipal court of the City of Manila, the persons arrest in the raid were accused of gambling.
All of them were eventually acquitted in the Court of First Instance for lack of proof, with the sole
exception of Veloso, who was found guilty of maintaining a gambling house. This case reached the
appellate court where the accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )

The foregoing are the principal facts taken mainly from the findings of the trial judge, the Honorable
Vicente Nepomuceno. Counsel for the appellant makes no effort to impugn these findings, except
that he stresses certain points as more favorable to the case of his client. The defense, as previously
indicated, is planted squarely on the contention that since the name of Veloso did not appear in the
search warrant, but instead the pseudonym John Doe was used, Veloso had a legal right to resist
the police by force. The nature of this defense makes it advisable to set forth further facts, relating
particularly to the search warrant, before passing to the law.

There are found in the record the application for search warrant, the affidavit for search warrant, and
the search warrant. The application reads:

UNITED STATES OF AMERICA

PHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILA

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant.

APPLICATION FOR (G)

SEARCH WARRANT

Testimony taken before Hon. L. Garduo, Judge, Municipal Court, Manila.

Andres Geronimo, being duly sworn, testifies as follows:

Q. What is your name, residence and occupation? A. Andres Geronimo, No. 47

Revellin, detective.

Q. Are you the applicant of this search warrant? A. Yes, sir.

Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C.,
City of Manila? A. Yes. sir.

Q. Do you know who occupies said premises? A. I do not know. According to the
best of my information the house is occupied by John Doe.

Q . What are your reasons for applying for this search warrant? A. It has been
reported to me by a person whom I consider to be reliable that in said premises there
are instruments and devices used in gambling games, such as cards, dice, chips,
lottery tickets, lists of drawing and lists used in prohibited games kept. It has been
reported to me by a person whom I consider to be reliable that there are or there will
 be gambling conducted in said premises. The aforesaid premises are known as
gambling house. I have watched the foregoing premises and believed it to be a
gambling house and a place where instruments and devices used in gambling
games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in
prohibited games are kept.

I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing
questions and answers and that I find the same to correct and true to the best of my
knowledge and belief.

(Sgd.) ANDRES GERONIMO

Subscribed and sworn to before me this 25th day of May, 1923.

(Sgd.) L. GARDUO Judge, Municipal Court

The affidavit and the search warrant are so nearly alike that it will suffice to copy the search warrant
alone. This document reads:

UNITED STATES OF AMERICA

PHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILA

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff,

vs.

JOHN DOE, Defendant.

SEARCH WARRANT (G)

The People of the Philippine Islands, to any member of the

Police Force of the City of Manila.

GREETING:

Proof by affidavit having this day been made before me by Andres Geronimo that he has
good reason to believe and does believe that John Doe has illegally in his possession in the
building occupied by him and which is under his control, namely in the building numbered
124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in
violation of the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and chairs
and other utensils used in connection with the game commonly known as monte and that the
said John Doe keeps and conceals said devices and effects with the illegal and criminal
intention of using them in violation of the Gambling Law.
 Now therefore, you are hereby commanded that at any time in the day or night within ten
(10) days on or after this date to make a search on the person of said John Doe and in the
house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the
above described devices and effects and if you find the same or any part thereof, you are
commanded to bring it forthwith before me as provided for by law.

Given under my hand, this 25th day of May, 1923.

(Sgd.) L. GARDUO
Judge, Municipal Court

Coming now to the legal aspects of the case it is first worthy of mention that by reason of the Fourth
Amendment to the United States Constitution and the eleventh and eighteenth paragraphs of the
Philippine Bill of Rights, as found in the present Organic Act, the security of the dwelling and the
person is guaranteed. The organic act provides "that the right to be secured against unreasonable
searches and seizures shall not be violated." It further provides "that no warrant shall issue but upon
probable cause, supported by oath or affirmation and particularly describing the place to be
searched and the person or things to be seized."

In the Philippine Code of Criminal Procedure are found provisions of the same import although
naturally entering more into detail. It is therein provided, among other things, that "a search warrant
shall not issue except for probable cause and upon application supported by oath particularly
describing the place to be searched and the person of thing to be seized." (Section 97.) After the
judge or justice shall have examined on oath the complainant and any witnesses he may produce,
and shall have taken their depositions in writing (section 98), and after the judge or justice is
satisfied of the existence of facts upon which the application is based, or that there is probable
cause to believe that they exist, he must issue the warrant which must be substantially in the
following form:

. . . You are, therefore, commanded, . . . to make immediate search on the person

of ............................, or in the house situated ...................................... (describing it or any
other place to be searched with reasonable particularity, as the case may be) for the
following property: . . . ." (Section 99.) It is finally provided that "a person charged with a
crime may be searched for dangerous weapons or anything which may be used as proof of
the commission of the crime. (Section 105).

A search warrant must conform strictly to the requirements of the constitutional and statutory
provisions under which it is issued. Otherwise it has rightly been held, must be absolutely legal, "for
there is not a description of process known to the law, the execution of which is more distressing to
the citizen. Perhaps there is none which excites such intense feeling in consequence of its
humiliating and degrading effect." The warrant will always be construed strictly without, however,
going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked
in aid of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.;
Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72
Ore., 276; Ann. Cas. 1916 D, 947.)

The search warrant has been likened to a warrant of arrest. Although apprehending that there are
material differences between the two, in view of the paucity of authority pertaining to John Doe
search warrants we propose to take into consideration the authorities relied upon by the appellant,
thus following the precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of
the issuance of the search warrant was also questioned.

In the lower court, and again in this court, the attorneys for the defense quoted from Wharton's
Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1 of the Tenth Edition, is
found the following:

Form and Sufficiency of Warrant. Technical accuracy is not required. . . .

xxx xxx xxx

Name and description of the accused should be inserted in the body of the warrant and
where the name is unknown there must be such a description of the person accused as will
enable the officer to identify him when found.

xxx xxx xxx

Warrant for apprehension of unnamed party, or containing a wrong name for the party to be
apprehended is void, except in those cases where it contains a descriptio personae such as
will enable the officer to identify the accused.

xxx xxx xxx

John Doe' Warrants. It follows, on principle, from what has already been said regarding the
essential requirements of warrants for the apprehension of persons accused, and about
blank warrants, that a warrant for the apprehension of a person whose true name is
unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in
unknown," is void, without other and further descriptions of the person to be apprehended,
and such warrant will not justify the officer in acting under it. Such a warrant must, in
addition, contain the best descriptio personae possible to be obtained of the person or
persons to be apprehended, and this description must be sufficient to indicate clearly the
proper person or persons upon whom the warrant is to be served; and should state his
personal appearance and peculiarities, give his occupation and place of residence, and any
other circumstances by means of which he can be identified.

Person apprehended in act of committing a crime, under a "John Doe" warrant, on the other
hand, the apprehension will not be illegal, or the officer liable, because under such
circumstances it is not necessary that a warrant should have been issued.

The authority most often cited to sustain the text, and quoted with approval by the United States
Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10 Allen [Mass.], 403). It there
appeared that one Peaslee had made a complaint to the police court Lee, charging that "John Doe
or Richard Roe, whose other or true name is to your complainant unknown," had committed an
assault and battery upon him; upon which complaint a warrant was issued against "John Doe or
Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing
complaint." Neither the complaint nor the warrant contained any further description or means of
identification of the person to be arrested. Crotty resisted the arrest upon the ground that the warrant
was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court of Massachusetts, said:
 We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of
the defendant at the time of the alleged riot was insufficient, illegal and void. It did not contain
the name of the defendant, nor any description or designation by which he could be known
and identified as the person against whom it was issued. It was in effect a general warrant,
upon which any other individual might as well have been arrested, as being included in the
description, as the defendant himself. Such a warrant was contrary to elementary principles,
and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of
Rights, article 14, which declares that every subject has a right to be secure from all
unreasonable searches and seizures of his person, and that all warrants, therefore, are
contrary to this right, if the order in the warrant to a civil officer to arrest one or more
suspected persons or to seize their property be not accompanied with a special designation
of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an
ancient common law right. It was always necessary to express the name or give some
description of a party to be arrested on a warrant; and if one was granted with the name in
blank, and without other designation of the person to be arrested, it was void. (1 Hale P. C.
577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow.,
332, and cases cited.)

This rule or principle does not prevent the issue and service of a warrant against a party
whose name is unknown. In such case the best description possible of the person to be
arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is
to be served, by stating his occupation, his personal appearance and peculiarities, the place
of his residence, or other circumstances by which he can be identified. (1 Chit. Crim. Law,
39, 40.)

The warrant being defective and void on its face, the officer had no right to arrest the person
on whom he attempted to serve it. He acted without warrant and was a trespasser. The
defendant whom he sought to arrest had a right to resist by force, using no more than was
necessary to resist the unlawful acts of the officer . . .

The defendants, therefore, in resisting the officer in making an arrest under the warrant in
question, if they were guilty of no improper or excessive force or violence, did not do an
unlawful act by lawful means, or a lawful act by unlawful means, and so could not be
convicted of the misdemeanor of a riot, with which they are charged in the indictment.

Appellant's argument, as based on these authorities, runs something like this. The law, constitutional
and statutory, requires that the search warrant shall not issue unless the application "particularly"
describe the person to be seized. A failure thus to name the person is fatal to the validity of the
search warrant. To justify search and arrest, the process must be legal. Illegal official action may be
forcibly resisted.

For the prosecution, however, as the arguments are advanced by the Attorney-General, and as the
law was summarized by the trial judge, there is much to be said. Careful and logical reflection brings
forth certain points of paramount force and exercising a decisive influence. We will now make
mention of them by correlating the facts and the law.

In the first place, the affidavit for the search warrant and the search warrant itself described the
building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands."
This, without doubt, was a sufficient designation of the premises to be searched. It is the prevailing
rule that a description of a place to be searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme
Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly
authorized to break down the door and enter the premises of the building occupied by the so-called
Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged
in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been
held that an officer making an arrest may take from the person arrested any money or property
found upon his person, which was used in the commission of the crime or was the fruit of the crime,
or which may furnish the person arrested with the means of committing violence or of escaping, or
which may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago Chi
[1909], 12 Phil., 439.)

Proceeding along a different line of approach, it is undeniable that the application for the search
warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso as the person to be
seized. But the affidavit and the search warrant did state that "John Doe has illegally in his
possession in the building occupied by him, and which is under his control, namely, in the building
numbered 124 Calle Arzobispo, City of Manila, Philippine Islands, certain devices and effects used in
violation of the Gambling Law." Now, in this connection, it must not be forgotten that the Organic Act
requires a particular description of the place to be searched, and the person or things to be seized,
and that the warrant in this case sufficiently described the place and the gambling apparatus, and, in
addition, contained a description of the person to be seized. Under the authorities cited by the
appellant, it is invariably recognized that the warrant for the apprehension of an unnamed party is
void, "except in those cases where it contains a description personae such as will enable the officer
to identify the accused." The description must be sufficient to indicate clearly the proper person upon
whom the warrant is to be served. As the search warrant stated that John Doe had gambling
apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of
Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could
identify John Doe as Jose Ma. Veloso without difficulty.

Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used for club
purposes. It was not the home of Veloso; not the place of abode of the family, which the law carefully
protects in all of its sanctity. It was a club partially public in nature. It was, moreover, a camouflaged
club with a high sounding name calculated to mislead the police, but intended for nefarious
practices. In a club of such a character, unlike in the home, there would commonly be varying
occupancy, a number of John Does and Richard Roes whose names would be unknown to the
police.

It is also borne out by the authorities that, in defense of himself, any member of his family or his
dwelling, a man has a right to employ all necessary violence. But even in the home, and much less
so in a club or public place, the person sought to be arrested or to be searched should use no more
force than is necessary to repel the unlawful act of the officers. To authorize resistance to the agents
of the authority, the illegality of the invasion must be clearly manifest. Here, there was possibly a
proper case for protest. There was no case for excessive violence to enforce the defendant's idea of
a debatable legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42
Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)

The trial judge deduced from the searched warrant that the accused Veloso was sufficiently
identified therein. Mention was made by his Honor of the code provision relating to a complaint or
information, permitting a fictitious name to be inserted in the complaint or information, in lieu of the
true name. The Attorney-General adds to this the argument that the police were authorized to arrest
without a warrant since a crime was being committed. We find it unnecessary to comment on this
contention.

John Doe search warrants should be the exception and not the rule. The police should particularly
describe the place to be searched and the person or things to be seized, wherever and whenever it
is feasible. The police should not be hindered in the performance of their duties, which are difficult
enough of performance under the best of conditions, by superficial adherence to technicality or far
fetched judicial interference.

We agree with the trial judge and with the Attorney-General in their conclusions to the effect that the
search warrant was valid, and that the defendant has been proved guilty beyond a reasonable
doubt, of the crime of resistance of the agents of the authority.

The information alleges that at the time of the commission of the crime, the accused was a member
of the House of Representatives. The trial court was led to consider this allegation in relation with the
facts as an aggravating circumstance, and to sentence the accused accordingly. We doubt, however,
that advantage was taken by the offender of his public position when he resisted the officers of the
law. The offender did not necessarily make use of the prestige of his office as a means to commit a
crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted the police just as
stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls within the medium of
that provided by the Penal Code.

Finding present no reversible error, agreeing in all respects with the findings of facts as made by the
trial judge, and concurring with the trial judge in his legal conclusion, with one exception, it results
that the judgment appealed from must be, as it is hereby, affirmed, with the sole modification that the
defendant and appellant shall be sentenced to two months and one day imprisonment, arresto
mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment
into effect issue.
 ELI LUI, ET AL. VS. MATILLANO, May 27, 2004
Right against unreasonable searches and seizures; Mission Order does not authorize an illegal
search. Waiver of the right against an unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of
a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain
entry into the house. Thereafter, they confiscated different personal properties therein which
were allegedly part of those stolen from the employer. They were in possession of a mission order
but later on claimed that the owner of the house gave his consent to the warrantless search. Are
the things admissible in evidence? Can they be sued for damages as a result of the said warrantless
search and seizure?

Held:

The right against unreasonable searches and seizures is a personal right which may be waived
expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear
and convincing evidence of an actual intention to relinquish the right. There must be proof of the
following:

a. that the right exists;

b. that the person involved had knowledge, either constructive or actual, of the existence
of said right;

c. that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is
to be valid.

The search was therefore held illegal and the members of the searching party held liable for
damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments
vs. CA.

e. General or roving warrants

Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued on different
dates against them and the corporations in which they are officers, directing the peace officer to
search the persons above-named and/or the premises of their offices, warehouses and to seize
and take possession of the following personal property, to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

typewriters and other documents or papers showing all business transactions including
disbursement receipts, balance sheets and profit and loss statements

since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND
CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the Constitutional
provision on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner provided for by
law.

Issue:

Were the searches and seizures made in the offices and residences of the petitioners valid?

a. As to the searches made on their offices, they could not question the same in their personal
capacities because the corporations have a personality separate and distinct with its officers. An
objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF BY
THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN
EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE OFFICES AND
PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE
INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL
CAPACITY.

b. As to the documents seized in the residences of the petitioners, the same may not be used in
evidence against them because the warrants issued were in the nature of a general warrant for
failure to comply with the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined by the judge in the
manner set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. They were issued
upon applications stating that the natural and juridical persons therein named had committed a
violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal
Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE
AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WEREABSTRACT. AS A
CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE
FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE INTRODUCTION
OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS PERFORMED
PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR
CRIMINAL LAWS.
 MICROSOFT CORPORATION AND ADOBE SYSTEMS INCORPORATED, Petitioners, v. SAMIR
FARAJALLAH, VIRGILIO D.C. HERCE, RACHEL P. FOLLOSCO, JESUSITO G. MORALLOS, AND MA.
GERALDINE S. GARCIA (DIRECTORS AND OFFICERS OF NEW FIELDS (ASIA PACIFIC),
INC.), Respondents.

DECISION

CARPIO, ACTING C.J.:

The Case

Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks to
reverse and set aside the Decision1 of the Court of Appeals (CA) dated 28 June 2012 in CA-G.R. SP No.
116771 and the Resolution2 of the CA dated 30 January 2013. The Decision and Resolution sustained the
orders of the Regional Trial Court of Manila, Branch 21 (RTC) quashing Search Warrant Nos. 10-15912 and
10-15913.

The Facts

Microsoft Corporation and Adobe Systems Incorporated (petitioners) are corporations organized and existing
under the laws of the United States. Microsoft Corporation is the owner of all rights including copyright
relating to all versions and editions of Microsoft software 3 and the corresponding users manuals, and the
registered owner of the Microsoft MS DOS trademarks in the Philippines. Adobe Systems Incorporated is
the owner of all rights including copyright relating to all versions and editions of Adobe Software. 4 cralawred

Samir Farajallah, Virgilio D.C. Herce, Rachel P. Follosco, Jesusito G. Morallos and Ma. Geraldine S. Garcia
(respondents) are the directors and officers of New Fields (Asia Pacific), Inc., a domestic corporation with
principal office at Unit 1603, East Tower, Philippine Stock Exchange Center, Exchange Road, Ortigas Center,
Pasig City.

Petitioners claim that in September 2009, they were informed that New Fields was unlawfully reproducing
and using unlicensed versions of their software. Orion Support, Inc. (OSI) was engaged by petitioners to
assist in the verification of this information. Two OSI Market Researchers, Norma L. Serrano (Serrano) and
Michael A. Moradoz (Moradoz) were assigned to confirm the informant's tip. Serrano and Moradoz were
trained to detect unauthorized copies of Adobe and Microsoft software. 5 cralawred

On 17 March 2010, counsel for petitioners filed a letter-complaint with the Chief of the Philippine National
Police Criminal Investigation and Detection Group. The case was assigned to Police Senior Inspector Ernesto
V. Padilla (Padilla).6
cralawre d

On 26 March 2010, Padilla, Serrano, and Moradoz went to the office of respondents. Using a legitimate
business pretext, they were able to use two computers owned by New Fields and obtained the following
information regarding the installed Microsoft and Adobe software: ChanRoblesVirtualawlibrary

First computer

Installed Software Product I.D./Serial Number

Microsoft Windows XP Pro V2002 SP2 55274-640-1582543-23775
Microsoft Office Word 2007 Enterprise 89388-707-0358973-65509
Edition 2007
Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Second computer
Installed Software Product I.D./Serial Number
Microsoft Windows XP Pro V2002 SP2 55274-640-1582543-23442
Microsoft Office Word 2007 Enterprise 89388-707-0358973-65709
Edition 2007
Adobe Acrobat 8 Pro (1) 1118-1061-0904-4874-2027

Padilla was trained to distinguish original from counterfeit software, 7 and he saw the screens of the
computers used by the OSI staff, including the product I.D. Nos. of the installed software.

In their Joint Affidavit, Serrano and Moradoz stated that: ChanRoblesVirtualawlibrary

There are at least two (2) computers using common product identification and/or serial numbers of
MICROSOFT and ADOBE software. This is one indication that the software being used is unlicensed or was
illegally reproduced or copied. Based on the training we attended, all ADOBE and MICROSOFT software
should only be installed in one computer, unless they avail of an Open Licese Agreement from the software
developer, which is not the case in NEW FIELDS. In this case, the first three sets of numbers of the Product
I.D. Nos. of the MICROSOFT Windows XP Pro operating System software program installed in the two (2)
computer units we used, i.e., 55274-640-1582543-xxxxx, were the same. We also observed that the first
three sets of numbers of the Product I.D Nos. of the MICROSOFT Office 2007 (Word) software in the two (2)
computers we used, i.e., 89388-707-0358973-xxxxx, were also the same. Ostensibly, this means that NEW
FIELDS only used one (1) installer of the MICROSOFT Windows XP operating system software and one (1)
installer of the MICROSOFT Office software program on two (2) computers. Based on our training, if the
first three sets of numbers of the Product I.D. Nos. of the MICROSOFT software installed are the
same, it signifies that it came from one installer. It does not matter [if] the last 5 digits of the
Product I.D. Nos. are different because this is computer-generated and therefore varies with
every installation. Apart from the MICROSOFT software, the serial numbers of the ADOBE
software installed in the computer units we used were also the same, signifying that NEW
FIELDS only used one (1) installer of the ADOBE software program on two (2)
computers.8(Emphasis supplied)

They also observed that New Fields had 90 computers in their office with Microsoft software, none of which
had the Certificate of Authenticity issued by Microsoft.

After being informed of the results of the investigation, petitioners then issued certifications that they have
not authorized New Fields to copy, print, reproduce and/or publish unauthorized copies of Microsoft and
Adobe software products.9 cralawred

An application for search warrants was filed by Padilla on 20 May 2010, before Judge Amor Reyes in her
capacity as Executive Judge of the RTC. Search Warrant Nos. 10-15912 and 10-15913 were issued on the
same date.10 cralawre d

The warrants were served on respondents on 24 May 2010. New Fields employees witnessed the search
conducted by the authorities. Several items were seized, including 17 CD installers and 83 computers
containing unauthorized copies of Microsoft and/or Adobe software.

On 6 June 2010, New Fields filed a motion seeking to quash one of the two warrants served (Search Warrant
No. 10-15912).11 The motion was received by petitioners on 10 June 2010 and was set for hearing on 11
June 2010. During the hearing on the motion, petitioners were allowed by the RTC to file their
Comment/Opposition on or before 21 June 2010.12 cralawre d

In their Comment/Opposition dated 21 June 2010,13 petitioners alleged that: ChanRoblesVirtualawlibrary

The Motion [to Quash] failed to comply with the mandatory 3-day notice rule under the Rules of Court.
Hence it is nothing but a worthless piece of paper.

xxxx

In this case, the Motion of Respondents was scheduled for hearing on 11 June 2010. However, Respondents
only furnished [petitioners] a copy of the Motion on 10 June 2010, or just 1 day before the scheduled
hearing, which was in clear violation of the 3-day notice rule. 14 cralawred
On 29 June 2010, the RTC issued an Order quashing both warrants and directing that all the items seized
from the respondents be returned x x x.15 According to the RTC, petitioners should have identified which
specific computer had the pirated software.16 The RTC added that no criminal charge has been filed yet,
despite the fact that the seized items have been in petitioners possession for several weeks since the
warrants were issued. Lastly, the RTC dismissed the petitioners contention that the three-day notice rule
was not complied with because petitioners were already notified of the motion personally.17 cralawre d

On 8 July 2010, petitioners received a copy of the Order, and Deputy Sheriff Edgardo Reyes of the RTC also
effected the return of the seized items, in compliance with the RTCs Order.18 cralawred

Petitioners filed an Urgent Manifestation and Motion for the Issuance of a Status Quo Order on 8 July 2010
wherein they alleged that: (1) they intend to file a Motion for Reconsideration of the Order; and (2) the
Order was not immediately executory.19 Respondents received a copy of the motion the day it was filed.

On 9 July 2010, respondents moved to expunge petitioners motion for reconsideration, saying that
petitioners failed to comply with the three-day notice rule. 20 The hearing on the motion was set on 13 July
2010. A copy of the motion was received by petitioners on 20 July 2010. 21 cralawred

On 15 July 2010, petitioners filed a motion for reconsideration of the Order.22 Respondents filed their
Comment/Opposition23 to the motion, which was received by petitioners on 12 August 2010. 24 cralawre d

The RTC denied petitioners motion for reconsideration in its Order dated 27 August 2010. 25 cralawred

Petitioners filed a petition for certiorari 26 under Rule 65 on 8 November 2010 before the Court of Appeals.
Petitioners alleged that the RTC committed grave abuse of discretion in granting the Motion to Quash
despite: (1) respondents failure to comply with the three-day notice requirement; and (2) the existence of
probable cause, and personal knowledge of the warrant applicant.

The Ruling of the CA

The CA denied the petition for certiorari . The appellate court held that: ChanRoblesVirtualawlibrary

In the instant case, when the court a quo ordered petitioners to submit their comment on the motion to
quash, it was, in effect, giving petitioners their day in court. Thus, while the [three]-day notice rule was not
strictly observed, its purpose was still satisfied when respondent judge did not immediately rule on the
motion giving petitioners x x x the opportunity to study and oppose the arguments stated in the motion. 27 cralawred

Hence, this petition.

The Issue

The instant petition raised only one issue, to wit: ChanRoblesVirtualawlibrary

The Honorable Court of Appeals erred in ruling that Judge Amor Reyes of Branch 21, Regional Trial Court of
Manila did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its
Orders dated 29 June 2010 and 27 August 2010, quashing Search Warrant Nos. 10- 15912 and 10-15913 and
directing the immediate release of the items seized pursuant to the said warrants, despite the pendency of
appellate proceedings.28

The Ruling of the Court

We rule that strict compliance with the three-day notice rule may be relaxed in this case. However, we
sustain petitioners contention that there was probable cause for issuance of a warrant, and the RTC and CA
should have upheld the validity of both warrants.

Compliance with the three-day notice rule

In Anama v. Court of Appeals,29 we ruled that the three-day notice rule is not absolute. The purpose of the
rule is to safeguard the adverse partys right to due process. Thus, if the adverse party was given a
reasonable opportunity to study the motion and oppose it, then strict compliance with the three-day notice
rule may be dispensed with.

As correctly pointed out by the CA: ChanRoblesVirtualawlibrary

In the instant case, when the court a quo ordered petitioners to submit their comment on the motion to
quash, it was, in effect, giving petitioners their day in court. Thus, while the [three]-day notice rule was not
strictly observed, its purpose was still satisfied when respondent judge did not immediately rule on the
motion giving petitioners x x x the opportunity to study and oppose the arguments stated in the motion. 30 cralawred

Existence of probable cause

Under Section 1 of Rule 45 of the Rules of Court, petitions for review by certiorari shall raise only questions
of law. A question of fact exists when there is a doubt as to the truth of certain facts, and it can only be
resolved through a reexamination of the body of evidence. 31 cralawre d

In Microsoft Corporation v. Maxicorp, Inc.,32 we ruled that the existence of probable cause is a question of
fact.33 In the same case, we also stated that: ChanRoblesVirtualawlibrary

Probable cause is dependent largely on the opinion and findings of the judge who conducted the examination
and who had the opportunity to question the applicant and his witnesses. For this reason, the findings of the
judge deserve great weight. The reviewing court should overturn such findings only upon proof that the
judge disregarded the facts before him or ignored the clear dictates of reason. 34

This Court is not a trier of facts. As a general rule, we defer to the lower courts appreciation and evaluation
of evidence.35 This general rule, however, is not absolute. We will review the factual findings of the CA in any
of the following instances: ChanRoblesVirtualawlibrary

(1) when the factual findings of the Court of Appeals and the trial court are contradictory;
(2) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken,
absurd, or impossible;
(4) when there is a grave abuse of discretion in the appreciation of facts;
(5) when the Appellate Court, in making its findings, went beyond the issues of the case and such findings
are contrary to the admissions of both appellant and appellee;
(6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;
(7) when the Court of Appeals failed to notice certain relevant facts which, if properly considered, would
justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
(9) when the findings of fact are conclusions without citation of the specific evidence on which they are
based; and
(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such
findings are contradicted by the evidence on record.36

In this case, we find reason to overturn the rulings of the RTC and CA, since there was grave abuse of
discretion in the appreciation of facts. The CA sustained the quashal of the warrant because the witnesses
had no personal knowledge of the facts upon which the issuance of the warrants may be justified,37 and
the applicants and the witnesses merely relied on the screen shots acquired from the confidential
informant.38cralawred

We disagree with the conclusions of the CA. The assailed CA Decision itself stated: ChanRoblesVirtualawlibrary

Initial hearsay information or tips from confidential informants could very well serve as basis for the
issuance of a search warrant, if followed up personally by the recipient and validated. 39 cralawred

Looking at the records, it is clear that Padilla and his companions were able to personally verify the tip of
their informant. In his Affidavit submitted to Judge Amor Reyes prior to the issuance of the warrant, Padilla
stated that:ChanRoblesVirtualawlibrary

At the time that I was inside the office premises of the NEW FIELDS, I saw the Product Keys or Product
Identification Numbers of the ADOBE and MICROSOFT computer software programs installed in some of the
computer units. Ms. Serrano and Mr. Moradoz were able to pull up these data since they were allowed to use
some of the computers of the target companies in line with the pretext that we used to gain entry into NEW
FIELDS. I actively read and attentively observed the information reflected from the monitor display unit of
the computers that Ms. Serrano and Mr. Moradoz were able to use. x x x. 40

As mentioned earlier, Padilla has been trained to distinguish illegally reproduced Adobe and Microsoft
software. Thus, in his Affidavit, he stated that:
ChanRoblesVirtualawlibrary

xxxx

6. I suspect that the ADOBE and MICROSOFT computer software programs that are being used in the
premises of NEW FIELDS are unauthorized, illegal or unlicensed copies because of the following reasons: ChanRoblesVirtualawlibrary

6.1. At least two (2) computer units are using a common Product Identification Number of MICROSOFT and
ADOBE software. This is one indication that the software being used is unlicensed or was illegally reproduced
or copied. All ADOBE and MICROSOFT computer software programs should only be used in one computer
unit, unless they avail of an Open License Agreement from the computer software developer, which [was not
obtained by] NEW FIELDS. x x x.41

The evidence on record clearly shows that the applicant and witnesses were able to verify the information
obtained from their confidential source. The evidence likewise shows that there was probable cause for the
issuance of a search warrant. Thus, the requirement of personal knowledge of the applicant and witnesses
was clearly satisfied in this case.

WHEREFORE, the petition is GRANTED. The Decision dated 28 June 2012 and the Resolution dated 30
January 2013 of the Court of Appeals, upholding the 29 June 2010 and 27 August 2010 Orders of the
Regional Trial Court, are hereby REVERSED and SET ASIDE. Search Warrant Nos. 10-15912 and 10-15913
are declared valid.

SO ORDERED. cral
Leviste v. Alameda, et. al., G.R. No. 182677, Aug. 3,
2010
Crim Pro - Rule 110

Facts:
On January 16, 2007, an Information was filed against Jose Antonio Leviste charging him with
homicide for the death of Rafael de las Alas on January 12, 2007 before the RTC of Makati. The private
complainants-heirs of de las Alas filed an Urgent Omnibus Motion praying for the deferment of the
proceedings to allow the public prosecutor to re-examine the evidence on record or to conduct a
reinvestigation to determine the proper offense. The RTC thereafter issued the Order granting the motion
by the complainants, thus, allowing the prosecution to conduct a reinvestigation. Later, the trial court
issued the other order that admitted the Amended Information for murder and directed the issuance of a
warrant of arrest. Petitioner questioned these two orders before the appellate court.

Upon arraignment, the petitioner refused to plead. The trial court entered the plea of "not guilty"
for him. Prior to this, the petitioner filed an Urgent Application for Admission to Bail Ex Abundanti Cautela,
which the trial court granted on the ground that the evidence of guilt of the crime of murder is not strong.
The trial court went on to try the petitioner under the Amended Information. Then, the trial court found the
petitioner guilty of homicide. From the trial court's decision, the petitioner filed an appeal to the CA. The
appellate court confirmed the decision of the trial court. The petitioner's motion for reconsideration was
denied. Hence, this petition to the SC.

Issue: Whether or not 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 prosecution to ask for a
preliminary investigation.

Held: Yes. 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 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. here is no
substantial distinction between a preliminary investigation and a reinvestigation since both are conducted
in the same manner and for the same objective of determining whether there exists 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.

What is essential is that petitioner was placed on guard to defend himself from the charge of
murder after the claimed circumstances were made known to him as early as the first motion. Petitioner
did not, however, make much of the opportunity to present countervailing evidence on the proposed
amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and
declined to actively participate, even with extreme caution, in the reinvestigation.
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, which dismissed
[1]

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 denying the
[2]

petitioners motion to reconsider the decision; (c) the order of 17 May 1993 of [3]

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 of [4]

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 of 349 Pepsi crowns in connection with the
[6]

Pepsi Cola Products Phils., Inc.s (PEPSIs) Number Fever Promotion filed with [7]

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; and (d) violation of Act No.
[8]

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 where he [10]

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]

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. The information reads as follows:
[13]

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

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

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

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 )

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 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.

CONTRARY TO LAW.

On 14 April 1993, the petitioners filed with the Office of the City Prosecutor
a motion for the reconsideration of the Joint Resolution alleging therein that
[14]

(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
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 wherein, for the same grounds adduced in the aforementioned
[15]

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. Q-93-43198
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, directing the City Prosecutor of
[17]

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. He stressed that the DOJ had taken
[20]

cognizance of the Petition for Review by directing the City Prosecutor to

elevate the records of I.S. No. P-4401 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 [23]

a corresponding motion to admit it. The amendments merely consist in the

[24]

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]

Later, the attorneys for the different private complainants filed,

respectively, an Opposition to Motion to Defer Arraignment, and Objection [26]

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. Pertinent [29]

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, which was docketed as CA-G.R. SP No. 31226. They
[30]

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. In view thereof, respondent Judge Asuncion
[31]

issued an order on 28 June 1993 postponing indefinitely the arraignment of

[32]

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 denying the application for a writ of
[34]

preliminary injunction.
On 8 June 1993, the petitioners filed a motion to reconsider the aforesaid
[35]

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 informing the court that the petitioners
[37]

petition for review filed with the DOJ was dismissed in a resolution dated 23
July 1993. A copy of the resolution was attached to the Manifestation.
[38]

On 21 September 1993, the public respondents filed in CA-G.R. SP No.

31226 a motion to dismiss the petition on the ground that it has become
[39]

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 dismissing the petition because it had been mooted with the release
[41]

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
theCrespo 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] were [42]

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 the aforesaid Court

[44]

of Appeals decision, which the said court denied in its resolution of 9 [45]

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 of the aforesaid resolution. Acting thereon, the First Division
[47]

required the respondents to comment thereon.

Later, the petitioners filed a supplemental motion for reconsideration and [48]

a motion to refer this case to the Court en banc. In its resolution of14
[49]

November 1994, the First Division granted the latter motion and required the
[50]

respondents to comment on the supplemental motion for reconsideration

In the resolution of 24 November 1994, the Court en banc accepted the
referral.
On 10 October 1995, after deliberating on the motion for reconsideration
and the subsequent pleadings in relation thereto, the Court en bancgranted
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 which bars the DOJ from taking
[51]

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 vs. Court of Appeals, this Court explicitly declared:

[53]

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 which recognizes the authority of the Secretary of Justice to reverse
[54]

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, dated25
January 1990. Section 2 thereof provided that only resolutions dismissing a
criminal complaint may be appealed to the Secretary of Justice. Its Section 4,
 however, provided an exception, thus allowing, upon a showing of manifest
[55]

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 which superseded Circular No. 7. This Order, however, retained the
[56]

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; in cases
[59]

covered by the rule on summary procedure where the accused fails to appear
when required; and in cases filed with them which are cognizable by the
[60]

Regional Trial Courts (RTCs); and (2) by the Metropolitan Trial Courts in the
[61]

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 that the judge is
[63]

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 inPeople vs.
Inting, where this Court specified what the documents may consist
[65]

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 that the judge may rely
[66]

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 that
[67]

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, this Court also ruled that before issuing a warrant of
[68]

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, this Court rejected the thesis of
[69]

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, this Court explicitly pointed out:
[70]

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 of Branch Clerk of Court Gibson Araula, Jr.,
[71]

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 1993directing, 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. Thus, its decision to give due course to the petition
[72]

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, this Court aptly
[73]

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 as follows:
[74]

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., L-38383, 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, Allado, and Webb.
[75]
 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 be restrained or stayed by
injunction.
[76]

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-93-43198 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 CA-G.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 1994denying
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. Q-93-43198 and to
defer the issuance of warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
SKECHERS, U.S.A., INC., Petitioner,
vs.
INTER PACIFIC INDUSTRIAL TRADING CORP. and/or INTER PACIFIC TRADING CORP. and/or
STRONG SPORTS GEAR CO., LTD., and/or STRONGSHOES WAREHOUSE and/or STRONG
FASHION SHOES TRADING and/or TAN TUAN HONG and/or VIOLETA T. MAGAYAGA and/or
JEFFREY R. MORALES and/or any of its other proprietor/s, directors, officers, employees
and/or occupants of its premises located at S-7, Ed & Joes Commercial Arcade, No. 153
Quirino Avenue, Paraaque City, Respondents.

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

TRENDWORKS INTERNATIONAL CORPORATION, Petitioner-Intervenor,

vs.
INTER PACIFIC INDUSTRIAL TRADING CORP. and/or INTER PACIFIC TRADING CORP. and/or
STRONG SPORTS GEAR CO., LTD., and/or STRONGSHOES WAREHOUSE and/or STRONG
FASHION SHOES TRADING and/or TAN TUAN HONG and/or VIOLETA T. MAGAYAGA and/or
JEFFREY R. MORALES and/or any of its other proprietor/s, directors, officers, employees
and/or occupants of its premises located at S-7, Ed & Joes Commercial Arcade, No. 153
Quirino Avenue, Paraaque City, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure,
assailing the Decision1 of the Court of Appeals in CA-G.R. SP No. 77269, dated 17 November 2003,
which denied petitioners Petition for Certiorari seeking to annul the Order2 of the Regional Trial
Court (RTC) of Manila, Branch 24 dated 7 November 2002, quashing Search Warrant No. 02-2827
and directing National Bureau of Investigation (NBI) Special Investigator Carlos N. Borromeo III to
return the seized items to respondents and the Order dated 6 March 2003 denying petitioners
Motion for Reconsideration.

Petitioner is a foreign corporation existing under the laws of the State of California, United States of
America and engaged in the manufacture of footwear. Petitioner is not doing business in the
Philippines and is suing before the trial court only to protect its intellectual property rights. In the
course of business, petitioner registered the trademark "SKECHERS" with the Intellectual Property
Office (IPO) under Registration No. 63364, Class 25 on 30 August 1996, and the trademark "S"
(within an oval design) under Registration No. 4-1996-110182, Class 25 on 12 July 2000, both to be
used in mens, womens, and childrens footwear, namely, shoes, boots and slippers of all kinds, and
mens, womens and childrens clothing, namely, t-shirts, sweat shirts, sweat pants, socks, shorts,
and hats. Petitioner also has a pending application for the trademark "S" and design to be used for
the same kinds of goods.

Sometime in March 2002, petitioner engaged the services of Zetetic Far East, Inc. (Zetetic), a private
investigative firm, to conduct an investigation on Inter Pacific Industrial Trading Corporation (Inter
Pacific) in coordination with the NBI to confirm if Inter Pacific is indeed engaged in the importation,
distribution and sale of unauthorized products bearing counterfeit or unauthorized trademarks owned
by petitioner.
On 11 April 2002, Mr. Alvin Ambion, a Market Researcher for Zetetic, visited the business address of
Inter Pacific/Strongshoes Warehouse and/or Strong Fashion Shoes Trading at S-7 No. 153 Quirino
Avenue, Paraaque City. Located at said business address was Warehouse No. 7 of Ed & Joes
Commercial Arcade. Upon entering said warehouse, Mr. Ambion saw different kinds and models of
rubber shoes including shoes bearing the "S" logo. During the visit, Mr. Ambion allegedly talked with
the caretakers of said warehouse who informed him that Inter Pacific directly imports the goods from
China and that their company distributes them to wholesalers and retailers in the Baclaran area. One
of the caretakers allegedly claimed that the shoes bearing the "Strong" name with the "S" logo have
the same style as Skechers shoes. Another caretaker purportedly informed Mr. Ambion that they
have an outlet located at Stall C-11, Baclaran Terminal, Plaza 2 Shopping Center, Taft Avenue Ext.,
Pasay City, managed by Violeta T. Magayaga, which sells the same footwear products.

Together with his colleague, Ms. Amelita Angeles, Mr. Ambion again visited respondents warehouse
on 12 April 2002 and purchased four pairs of rubber shoes bearing the "Strong" mark containing the
"S" logo for P730.00, for which he was issued Sales Invoice No. 0715. On the same day, Mr. Ambion
and Ms. Angeles visited respondents outlet store in Baclaran.

On 17 May 2002, counsel for petitioner filed a letter complaint with the Office of the NBI Director
requesting their assistance in stopping the illegal importation, manufacture and sale of counterfeit
products bearing the trademarks owned by petitioner, and in prosecuting the owners of the
establishments engaged therein. Thus, on 21 May 2002 Mr. Ambion and Ms. Angeles, together with
NBI Special Investigator Carlos N. Borromeo III of the Intellectual Property Rights Division of the
NBI, visited respondents warehouse located at Ed & Joes Commercial Arcade and purchased 24
pairs of rubber shoes bearing the "Strong" name and the "S" logo. Afterwards, they went to
respondents outlet store in Baclaran and therein purchased a pair of rubber shoes also bearing the
"Strong" name and the "S" logo.

On 11 June 2002, Special Investigator Borromeo of the NBI, with Mr. Ambion as witness, proceeded
to Branch 24, RTC, Manila, to apply for search warrants against the warehouse and outlet store
being operated and managed by respondent for infringement of trademark under Section 155 3 in
relation to Section 1704 of Republic Act No. 8293, otherwise known as The Intellectual Property
Code of the Philippines.

After personally examining the search warrant applicant and his witness, the court a quo found
probable cause to issue the search warrants applied for and thus issued on the same day Search
Warrant Nos. 02-2827 and 02-2828 to be served on the warehouse and retail outlet of respondent.
That same afternoon, the search warrants were simultaneously served by the operatives of the
Intellectual Property Rights Division of the NBI and seized from the warehouse 71 boxes containing
36 pairs of rubber shoes each or 2,556 pairs of rubber shoes bearing the "S" logo, 147 boxes
containing 24 pairs per box or 3,528 pairs of rubber shoes bearing the "S" logo and six pages of
various documents evidencing the sale and distribution of similar merchandise; and from the outlet
store, 295 pairs of rubber shoes bearing the "S" logo and five pieces of rubber shoes bearing the "S"
logo.

In compliance with the Order dated 9 July 2002 of the RTC directing respondents to file their
Comment on the issuance of the search warrant, respondents filed their Compliance and Comment
with Prayer to Quash the search warrants. On 28 August 2002, respondents filed their Amended
Comment with Motion to Quash Search Warrants on the ground that there is no confusing similarity
between the petitioners Skechers rubber shoes and respondents Strong rubber shoes.
On 7 November 2002, the lower court issued the assailed Order quashing Search Warrant No. 02-
2827 and directing the NBI to return to respondents the items seized by virtue of said search
warrant. According to the courta quo:

The question to be posed in this case is this: Will the purchaser be deceived or likely to be deceived
into purchasing respondents Strong Rubber Shoes because of the belief that they are Skechers
shoes in the ordinary course of purchase? We answer in the negative.

A careful perusal of the Strong Rubber Shoes and Skechers shoes presented by both respondents
and private complainants reveals glaring differences that an ordinary prudent purchaser would not
likely be mislead or confused in purchasing the wrong article. Some of these are;

1. The mark "S" found in Strong Shoes is not enclosed in an "oval design";

2. The word "Strong" is conspicuously placed at the backside and insoles;

3. The hang tags and labels attached to the shoes bears the word "Strong" for respondent
and "Sketchers U.S.A." for private complainant;

4. Strong Shoes are modestly priced compared to the costs of Sketchers Shoes.

xxxx

Similarly as in this case, although the mark "S" is prominent on both products, the same should be
considered as a whole and not piecemeal. Factoring the variables already cited make the
dissimilarities between the two marks conspicuous, noticeable and substantial.

Further, the products involved in the case at bar are not your ordinary household items. These are
shoes which vary in price. The casual buyer is predisposed to be more cautious and discriminating
and would prefer to mull over his purchase. Confusion and deception is less likely.

Finally, like beer and maong pants and jeans, the average consumer generally buys his rubber
shoes by brand. He does not ask the sales clerk for rubber shoes but for, say Adidas, Reebok, or
Nike. He is, more or less, knowledgeable and familiar with his preference and will not easily be
distracted. (Emerald Garment Manufacturing Corp., v. Court of Appeals, 251 SCRA 600, supra)

ACCORDINGLY, respondents Inter Pacific Industrial Trading Corporation, Motion to Quash Search
[Warrant] is hereby granted. Search Warrant No. 02-2827 is quashed. The applicant, Carlos N.
Borromeo of the National Bureau of Investigation is hereby directed to return to respondents the
seized items.5

Petitioners Motion for Reconsideration was subsequently denied in an Order dated 6 March 2003.
Aggrieved, petitioner filed a Petition for Certiorari under Rule 65 of the Rules of Court before the
Court of Appeals assailing the Orders of the court a quo on the ground that public respondent court
committed grave abuse of discretion amounting to lack and/or excess of jurisdiction in ruling that the
act of private respondents in selling and distributing rubber shoes which contain the trademarks and
designs owned by petitioner does not constitute trademark infringement.

On 17 November 2003, the appellate court denied the petition in this wise:
In the instant case, after examining and evaluating the foregoing factual milieu and the respective
arguments of the parties, We are inclined to agree with the ruling of the public respondent that the
holistic test is better suited to the present case and consequently, hold that the private respondents
appropriation and use of the letter "S" on their rubber shoes did not constitute an infringement of the
trademark of the petitioner. Hence, the instant petition must necessarily fail.

A careful appreciation of the products in question readily reveals that these products are not the
ordinary household items like catsup, coffee or candy which are commonly inexpensive. As such, the
ordinary purchaser would be naturally inclined to closely examine specific details and would prefer to
mull over his purchase. The case of Del Monte Corp. vs. Court of Appeals (181 SCRA 410), is clear
on this point:

Among these, what essentially determines the attitudes of the purchaser, specifically his inclination
to be cautious, is the cost of the goods. To be sure, a person who buys a box of candies will not
exercise as much care as one who buys an expensive watch. As a general rule, an ordinary buyer
does not exercise as much prudence in buying an article for which he pays a few centavos as he
does in purchasing a more valuable thing. Expensive and valuable items are normally bought only
after deliberate, comparative and analytical investigation. But mass products, low priced articles in
wide use, and matters of everyday purchase requiring frequent replacement are bought by the
casual consumer without care x x x.

In his context, although one of the essential features of the private respondents shoes is the letter
"S", suffice it to state that this alone would not likely cause confusion, deception or mistake on the
part of the ordinary buying public. For it must be stressed that an ordinary purchaser of a product like
a pair of rubber shoes is an intelligent buyer, who "is accustomed to buy, and therefore to some
extent familiar with the goods" (Dy Buncio vs. Tan Tiao Bok, 42 Phil. 190). x x x.

xxxx

Going further, contrary to the contention of the petitioner, the case of Converse Rubber Corp. vs.
Universal Rubber Products, Inc. (147 SCRA 154) is in no way controlling in the instant case
considering that it involved a different factual milieu in contrast with that of the instant case. In said
case, the respondent sought for the registration of the trademark "UNIVERSAL CONVERSE AND
DEVICE" used on rubber shoes. Petitioner opposed on the ground that respondents trademark is
confusingly similar to petitioners corporate name which is CONVERSE RUBBER CORPORATION
and that it would likely deceive purchasers of products on which it is to be used to an extent that said
products may be mistaken by the unwary public to be manufactured by the petitioner, i.e.
"CONVERSE CHUCK TAYLOR," "CONVERSE ALL STAR," "ALL STAR CONVERSE CHUCK
TAYLOR," OR "ALL STAR DEVICE." The High Court denied the application for registration of
respondents trademark ratiocinating as follows:

The similarity in the general appearance of respondents trademark and that of petitioner would
evidently create a likelihood of confusion among the purchasing public. But even assuming
arguendo, that the trademark sought to be registered by respondent is distinctively dissimilar from
those of the petitioner, the likelihood of confusion would still subsists, not on the purchasers
perception of the goods but on the origins thereof. By appropriating the world "CONVERSE,"
respondents products are likely to be mistaken as having been produced by petitioner. The risk of
damage is not limited to a possible confusion of goods but also includes confusion of reputation if
the public could reasonably assume that the goods of the parties originated from the same source.
Verily, the foregoing ruling does not apply on all fours in the instant case. The word "CONVERSE" is
highly identified not only to the products of Converse Rubber Corporation but to the corporate entity
most importantly such that the mere appropriation of the word "CONVERSE" on products like rubber
shoes, regardless of whether or not it was compounded with other letters, symbols or words; would
not only likely but actually cause one to be mistaken that such rubber shoes had been produced by
Converse Rubber Corporation.

On the other hand, the letter "S" used on private respondents rubber shoes in the instant case could
hardly be considered as highly identifiable to the products of petitioner alone. For it is not amiss to
state that the letter "S" has been used in many existing trademarks, the most popular of which is the
trademark "S" enclosed by an inverted triangle, which is extremely and profoundly identifiable to the
well-known comics action hero, Superman. And perhaps it is due to the existence of these
trademarks containing letter "S" that the petitioner was prompted to accessorize that letter "S" in its
trademark with an outer oval design and accompany it with the word "SKECHERS" in order to make
it distinct from the rest and identifiable only to its products. As such, the dominancy test as applied in
the Converse case could not be applied in the instant case inasmuch as the letter "S," although a
dominant feature in petitioners trademark; is neither extremely and profoundly identifiable to the
products of petitioner alone nor has it acquired a certain connotation to mean the rubber shoes
produced by the petitioner. What is extremely and profoundly identifiable to the products of the
petitioner is the whole trademark consisting of the letter "S" enclosed by a uniquely designed oval.
Further, confusion and deception are less likely in the instant case considering that the private
respondents rubber shoes were distinctly and conspicuously marked "STRONG" at their front side,
back side and insoles. Furthermore their hang tags and labels attached to the shoes bear the word
"STRONG." In view of these, the dissimilarities between the private respondents and petitioners
shoes became more striking and noticeable to the ordinary purchaser who could not in any way be
deceived or misled that the shoes he buys is produced by the petitioner. With this, the holistic test is
squarely applicable.

xxxx

As set out in the decision, the foregoing case involves a peculiar factual milieu in stark contrast with
the instant case. As such, it finds no application in the controversy in the instant case.

Taking off from the foregoing premises, the public respondent judge did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in ruling that the act of the private respondent in
selling and distributing rubber shoes which contain the trademarks and designs owned by the
petitioners does not constitute trademark infringement. After all, the public respondent judge was
merely exercising his judgmental call conformably with the factual and legal issues proferred and
presented before him. Suffice it to state, it is a hornbook doctrine in our jurisdiction that certiorari will
not be issued to cure errors in proceedings or to correct erroneous conclusions of law and fact. The
special civil action for certiorari is not a remedy for errors of judgment, which are correctible by
appeal (Montecillo vs. Civil Service Commission, 360 SCRA 99).

WHEREFORE, in consideration of the foregoing premises, the instant petition is perforce denied.[6]

Petitioners Motion for Reconsideration having been denied in an Order dated 18 June 2004,
petitioner filed the instant case contending that the Court of Appeals committed grave abuse of
discretion in considering matters of defense in a criminal trial for trademark infringement in passing
upon the validity of the search warrant and in concluding that respondents are not guilty of
trademark infringement in the case where the sole triable issue is the existence of probable cause to
issue a search warrant.

For its part, respondent maintains that it is logical for the Court of Appeals to touch on the issue of
whether or not there was trademark infringement since it was the very issue raised in the Petition
for Certiorari. According to respondent, petitioner failed to qualify whether or not the determination of
the Court of Appeals should be limited to whether or not there was probable cause to issue the
search warrants. Furthermore, respondent claims that the trial court may not be faulted for quashing
the search warrants it had issued after finding that there was no basis for its issuance in the first
place. According to respondent, after full appreciation of the trademarks and logos depicted in the
rubber shoes presented before the court a quo for close comparison, it was only prudent for the
lower court to correct itself and quash the search warrant following a finding that probable cause
does not exist for the offense of trademark infringement.

At this juncture, it is paramount to stress that the power to issue search warrants is exclusively
vested with the trial judges in the exercise of their judicial function. 7 And inherent in the courts power
to issue search warrants is the power to quash warrants already issued. 8 After the judge has issued
a warrant, he is not precluded to subsequently quash the same, if he finds upon re-evaluation of the
evidence that no probable cause exists.9Though there is no fixed rule for the determination of the
existence of probable cause since the existence depends to a large degree upon the finding or
opinion of the judge conducting the examination,10 however, the findings of the judge should not
disregard the facts before him nor run counter to the clear dictates of reason. 11

In the determination of probable cause, the court must necessarily resolve whether or not an offense
exists to justify the issuance or quashal of the search warrant.12 In the case at bar, the subject search
warrant was issued allegedly in connection with trademark infringement, particularly the
unauthorized use of the "S" logo by respondent in their Strong rubber shoes. After conducting the
hearing on the application for a search warrant, the court a quo was initially convinced that there was
sufficient reason to justify the issuance of the search warrant. However, upon motion of respondent
to quash the search warrant, the lower court changed its position and declared that there was no
probable cause to issue the search warrant as there was no colorable imitation between
respondents trademark and that of petitioner.

Based on its appreciation of the respective parties arguments and the pieces of evidence,
particularly the samples of the original Skechers rubber shoes vis--vis respondents Strong rubber
shoes, the trial court concluded that respondents appropriation of the symbol "S" on their rubber
shoes does not constitute an infringement on the trademark of petitioner. This exercise of judgment
was further strengthened by the affirmation of the Court of Appeals that public respondent judge did
not commit grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that the
acts of respondent do not constitute trademark infringement in light of the factual and legal issues
presented before it for consideration.

In ruling that there was no colorable imitation of petitioners trademark in light of the factual milieu
prevalent in the instant case, the trial court may not be faulted for reversing its initial finding that
there was probable cause. Based on the courts inherent power to issue search warrants and to
quash the same, the courts must be provided with the opportunity to correct itself of an error
inadvertently committed. After reevaluating the evidence presented before it, the trial court may
reverse its initial finding of probable cause in order that its conclusion may be made to conform to
the facts prevailing in the instant case.
Furthermore, the court was acting reasonably when it went into a discussion of whether or not there
was trademark infringement, this is so because in the determination of the existence of probable
cause for the issuance or quashal of a warrant, it is inevitable that the court may touch on issues
properly threshed out in a regular proceeding.13 This finding that there was no colorable imitation of
petitioners trademark is merely preliminary and did not finally determine the merits of the possible
criminal proceedings that may be instituted by petitioner. As held in the case of Solid Triangle Sales
Corp. v. Sheriff, RTC, Q.C., Br. 93:14
1wphi1

When the court, in determining probable cause for issuing or quashing a search warrant, finds that
no offense has been committed, it does not interfere with or encroach upon the proceedings in the
preliminary investigation. The court does not oblige the investigating officer not to file an information
for the courts ruling that no crime exists is only for the purposes of issuing or quashing the warrant.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the
Court of Appeals in CA-G.R. SP No. 77269, dated 17 November 2003 is hereby AFFIRMED. Costs
against petitioner.

SO ORDERED.
MILLER VS. SECRETARY OF JUSTICE

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, assailing the Decision[1]dated June 14, 2004 and
Resolution[2] dated September 14, 2004 of the Court of Appeals (CA) in CA-G.R.
SP No. 72395. The CA dismissed the petition for certiorari after finding no grave
abuse of discretion on the part of public respondent Secretary of Justice in issuing
his Resolution[3] dated March 21, 2002 which ordered the exclusion of respondent
Giovan Bernardino (Bernardino) from the Information for attempted murder.

The facts as culled from the records:

Petitioner George Miller is a British national and an inmate at the Maximum

Security Compound of the New Bilibid Prison (NBP) inMuntinlupa City. In
November and December 1998, while serving as Acting Secretary General of the
Inmates Crusade Against Drugs (ICAD) based at NBP, petitioner wrote two
confidential letters[4] addressed to then NBP Superintendent Col. Gregorio Agalo-
os. The letters contained a detailed report of the alleged irregularities and drug
trading activities of respondent Bernardino and Rodolfo Bernardo (Bernardo), both
inmates at the Medium Security Compound and ICAD Treasurer and Chairman,
respectively. Petitioner also recommended the transfer of Bernardino and Bernardo
to the Maximum Security Compound.

On January 6, 1999, at around 2:30 p.m., while proceeding towards the volleyball
court at the Medium Security Compound, petitioner felt a crushing blow at the
back of his head. As blood oozed from his head, petitioner ran to the Infirmary for
first aid treatment. Later, petitioner was transferred to the NBP
hospital. On January 17, 1999, Dr. Ma. Corazon S. Alvarez, Medical Specialist at
the NBP hospital, issued a Medical Certificate[5] with the following findings:
 - lacerated wound, one (1), about 8 to 9 cms. long,
1 cm. deep, on parietal area of the head.

- Barring unforseen (sic) circumstances, healing period is

from 7 to 10 days.

Investigation of the incident was immediately ordered by Supt. Agalo-os. PGIII

Cecilio M. Lopez conducted the investigation and submitted to the NBP Director
his Report[6] dated January 5, 1999. Based on the sworn statement of petitioner and
the verbal admissions made by inmates Constantino Quirante, Jr. (Quirante) and
Roberto Ceballos (Ceballos), it was found that a few days before the incident,
Bernardo and Bernardino confronted petitioner regarding the letters he wrote
reporting the alleged illegal drug activities of Ace Aprid (Aprid), Bernardo and
Bernardino at ICAD. Bernardo and Bernardino were furious when petitioner
admitted having authored the letters, threatening him with the words Mamamatay
ka, which petitioner fully understood: he is going to die. Petitioner discovered that
another inmate (Valeroso) to whom he confided the matter, had divulged the
existence of the letters to Bernardo and Bernardino. At the time he was hit at the
back of his head, petitioner was able to turn around and saw his assailant, later
identified as Quirante, who ran away through the gate leading to the talipapawhere
petitioner lost sight of him. Petitioner then saw two persons standing near the
entrance of the talipapa and shouted at one of them asking for the identity of his
assailant and if he saw the incident. However, the man just kept mum. As
petitioner realized that blood was oozing from his head, he immediately went to
the Infirmary.

The day after the incident, Bernardo and Bernardino along with fellow
inmates Aprid, Virgilio Adrales, Rogelio Aguilar, Amable Bendoy, Arnel Modrigo,
Alfred Magno and Vergel Bustamante, were brought to the investigation section.

In the course of the investigation, Quirante and Ceballos admitted their

participation in the attack on petitioner and the information they provided was
summarized by the investigating officer as follows:
xxxx
 While the investigation was in progress, inmates Roberto Ceballos
and Constantino Quirante voluntarily surfaced admitting their
participation in the clubbing of Miller. After having been informed of
their constitutional rights, the two during interrogation and without
second thought, narrated in detail how and why they attempted to kill
Miller in the following manner:

At around 10:30 A.M. of January 6, 1999, in whiling the time

under the shade of a tree in a basketball court of the Medium Security
Camp, Quirante and Ceballos were approached by Aprid and Bernardino
to engage their services and offered an amount of P1,500.00 to kill
Miller. Being in dire need of money at the very moment, Quirante and
Ceballos accepted the offer. Quirante admitted treacherously hitting
Miller at the back of his head with a piece of wood but for failing to get
him with one blow, he had to flee. On the other hand, Ceballos admitted
as the lookout and was asked by Miller the identity of his assailant right
after he was clubbed. Accordingly, what motivated them to reveal
everything is the fact that only P100.00 was paid in advance to them by
Bernardino and Aprid and the balance of P1,400.00 as promised to be
paid sooner was never fulfilled. The duo even signified their intention to
reduce their participation in writing to authenticate the admission of their
guilt. However, in the absence of a lawyer to assist them and to
safeguard their constitutional rights, the officer on case opted not to do
so.

To ascertain the veracity of Ceballos and Quirantes confession, a

confrontation was made at the Directors Office. Several inmates were
lined-up with Ceballos and Quirante. Miller when asked to identify his
assailant, he spontaneously pointed to Quirante as the one who clubbed
him on the head and likewise pointed to Ceballos as the man whom he
had shouted at asking for the identity of his assailant.

x x x x[7]

On the basis of the foregoing, PGIII Lopez recommended that Quirante and
Ceballos be charged with Frustrated Murder and the case be placed under further
investigation pending the establishment of sufficient evidence to indict inmates
Rodolfo Bernardo, Giovan Bernardino and Ace Aprid.[8] On February 10, 1999, the
case was endorsed to the Office of the City Prosecutor submitting to the said office
the following documents: (1) Investigation Report of PGIII Lopez; (2) Sworn
Statement of petitioner; (3) Medical Certificate; (4) Routing Slip of Supt. Agalo-
os; and (5) petitioners letters dated November 21, 1998 and December 27, 1998
addressed to the NBP Superintendent.[9] The case was docketed as I.S. No. 99-B-
01314.

On March 30, 1999, Prosecutor Antonio V. Padilla issued his

resolution[10] finding the evidence sufficient to charge Quirante with attempted
murder while dismissing the case against Ceballos for insufficiency of evidence,
thus:
Anent the charge against Giovan Bernardino and Rodolfo
Bernardo, we noticed that the same is merely anchored on suspicion and
conjecture.Except the bare allegations of the complainant, nothing would
link them to the assault against the complainant. In fact, their names
were not even mentioned in the referral letter, dated February 10, 1999,
of the Bureau of Corrections addressed to our Office.

WHEREFORE, premises considered, the undersigned respectfully

recommends that the attached Information be filed in court. Further, it is
recommended that the charge against Ceballos be dismissed on ground
of insufficiency of evidence. As to the charge against Bernardino and
Bernardo the same is likewise recommended dismissed on ground of
insufficiency of evidence without prejudice to the refilling of same in the
event that evidence against them may be unearthed by concerned
authorities.[11] (Italics supplied.)

Thereafter, an information for attempted murder was filed against Quirante only in
the Regional Trial Court (RTC) of Muntinlupa City(Branch 256), docketed as
Criminal Case No. 99-452.

On or about April 14, 1999, Quirante and Ceballos executed a joint affidavit
in Tagalog (Pinagsamang Sinumpaang Salaysay[12]) which was sworn to before
Prosecutor Padilla. They declared that at noontime of January 6, 1999, their
services were engaged through theirBosyo or Commander, Rodrigo Toledo
(Toledo), who told them that if they hit (paluin) petitioner they will be paid P1,500
by Bernardino and Bernardo. Hence, they carried out the clubbing of petitioner
by 2:00 in the afternoon of the same day infront of the volleyball court of the
Medium Security Compound while petitioner was walking from
the talipapa. Quirante struck at petitioner from behind using a piece of wood and
then ran away towards the talipapa. Petitioner turned around and saw Ceballos
whom he asked for the identity of his assailant. In pain and with bleeding wound
on his head, petitioner momentarily sat down and then brought himself to the
infirmary. Ceballos thought that petitioner did not recognize him since his face was
then covered with shirt cloth. A day later, Toledo handed them P100 as initial
payment, the balance to be paid by Bernardo and Bernardino also
through Toledo. However, three days passed without the P1,400 being paid to
them, until they were called to appear before the Directors office. When questioned
during the investigation, they readily owned up to the assault on petitioner because
Bernardino and Bernardo did not pay the agreed amount.

The sworn statement of Quirante and Ceballos was corroborated by Toledo who
likewise executed a Sinumpaang Salaysay[13] on even date stating that as early as
December 1998, Bernardo and Bernardino have been talking to him about their
plan to have petitioner killed. Toledobeing the leader of their group (BC 45) at the
Medium Security Compound, Bernardo and Bernardino promised that they will
pay whoever among his (Toledo) men can do it. Toledo claimed that he initially
declined but due to the daily conversations with Bernardo and Bernardino who also
gave him food, he finally called on two of his men, Quirante and Ceballos, to carry
out the plan to kill petitioner. He was confident that everything will be alright since
Bernardo and Bernardino committed to pay P1,500 for the job. A day after the
clubbing of petitioner, he gave Quirante and Ceballos P100 as initial payment by
Bernardo and Bernardino for their services. Three days later, he learned that
Quirante and Ceballos were summoned before the Directors Office in connection
with the incident. He affirmed the truth of the admissions made by Quirante and
Ceballos because Bernardo and Bernardino failed to comply with their
undertaking.

On December 2, 1999, Quirante, Ceballos and Toledo executed new affidavits[14] in

English, which were sworn to before Bureau of Corrections Assistant Director
Joselito A. Fajardo and Prosecutor Leopoldo B. Macinas. These new affidavits
gave a more detailed narration of the incident and pointed to Bernardo and
Bernardino as the masterminds with Aprid being an accomplice. Bernardo and
Aprid allegedly planned the killing of petitioner together with Toledo, the BC 45
Gang Commander, wherein Quirante agreed to be the one to kill petitioner while
another gang member, Ceballos, would act as his lookout. The affidavits also
mentioned what transpired during the preliminary investigation conducted by
Prosecutor Padilla and the earlier April 1999 Tagalog affidavits they executed
before Prosecutor Padilla. These documents were submitted during the
reinvestigation conducted by Prosecutor Macinas.

Bernardo and Bernardino submitted their Joint Counter-Affidavit [15] dated January
19, 2000, stating that it was the second time they were being implicated in the case
and pointing out that both investigations by the Investigation Section of the Bureau
of Corrections and the Office of the City Prosecutor, Muntinlupa City showed that
they have no participation in the commission of the offense. They asserted that the
charges against them have no basis and the fruit of the wrong and malicious
imputations of the witnesses. They denied having committed any violation of the
rules and regulations of ICAD, of which Bernardo is Chairman while Bernardino is
the Treasurer. They claimed that in the three years they have been serving the
ICAD, the organization has more than progressed and benefitted their fellow
inmates at the NBP. As to the statements given by Quirante, Ceballos and Toledo,
and other witnesses, these are conflicting and muddled, showing so much evidence
of them having been tutored.

Bernardo and Bernardino likewise presented a Sinumpaang Salaysay[16] executed

by their witnesses, co-inmates Arnel Modrigo, Virgilio Adrales and Rogelio
Aguilar. Said affiants declared that when petitioner approached them and asked if
Aprid and Bernardo had anything to do with the incident, they plainly answered in
the negative and told petitioner he should ask those persons instead. Everyday,
petitioner goes to them asking them to pinpoint Aprid, Bernardo and Bernardino as
the masterminds in order to strengthen the case against them. Petitioner even asked
them to sign a handwritten letter[17] prepared by petitioner himself, addressed to
Supt. Agalo-os and which, while requesting for their transfer to the Medium
Security dormitories, also affirmed the culpability of Aprid, Bernardo and
Bernardino for the attempt on the life of petitioner. However, they refused to do so
as they know there was no truth to the contents of said letter.

On March 20, 2000, Prosecutor Leopoldo Macinas issued his

[18]
Memorandum addressed to the City Prosecutor finding probable cause against
Quirante, Ceballos and Toledo in conspiracy with Bernardino, Aprid and Bernardo,
for the crime of attempted murder. Prosecutor Macinas was convinced that the
detailed account given by Quirante, Ceballos and Toledo were executed freely and
voluntarily, and found no reason why they would incriminate their co-inmates
other than the truth of the statements in their affidavits. On the other hand, the
defenses proffered by Bernardo and Bernardino are evidentiary matters which can
be best passed upon after a full-blown trial.
WHEREFORE, it is respectfully recommended that respondents
Giovan Bernardino, Rod[o]lfo Bernardo, Rodrigo Toledo, Ace Aprid and
Roberto Ceballos be all indicted by way of the herein attached amended
information as co-conspirators of accused Constantino Quirante in
attempting to kill George Miller, prima facie case having been
established.[19]

Consequently, an Amended Information was filed with the RTC which included the
names of Bernardino, Aprid, Bernardo, Toledo and Ceballos as co-conspirators in
the crime of attempted murder.

Bernardino filed a petition for review[20] with the Department of Justice (DOJ)
arguing that there was no sufficient evidence presented to support a claim of
conspiracy, which was based merely on conflicting testimonies or affidavits in a
language foreign to the affiants. He noted that the English affidavits pointed to
three people as the masterminds when originally only two have been implicated by
the perpetrators (Quirante and Ceballos).

Petitioner filed his opposition,[21] alleging that contrary to the claim of Bernardino,
the Bureaus investigation was far from complete as the Report of PGIII Lopez
itself stated that the case is recommended for further investigation pending the
establishment of sufficient evidence to indict inmates Rodolfo Bernardo, Giovan
Bernardino and Ace Aprid. As to the Tagalog affidavits, petitioner pointed out that
these could not have been produced during the preliminary investigation conducted
by Prosecutor Padilla since the documents were executed only on April 14, 1999,
two weeks after Prosecutor Padilla rendered his resolution. Further investigation by
the Bureau led to the execution of two affidavits in Tagalog (Quirante, Ceballos
and Toledo) without the knowledge of petitioner. However, said Tagalog affidavits
disappeared and petitioner was not allowed access to the Investigation Sections file
despite his complaints to Director Sistoza, the Bureau and DOJ. Prior to the
November 25, 1999 hearing on reinvestigation, petitioner had new affidavits in
English prepared with the assistance of a former Supreme Court interpreter (inmate
Chua) and these were subsequently signed by Toledo, Quirante and Ceballos and
sworn to before Prosecutor Macinas. Hence, the said documentary evidence was
already considered in the March 20, 2000 Resolution of Prosecutor
Macinas. Petitioner further alleged that Bernardo and Bernardino received thru
registered mail copy of the March 20, 2000 Resolution on June 16, 2000 but the
petition for review before the DOJ was actually filed only on July 27, 2000 but
conveniently dated July 14, 2000.

On March 21, 2002, public respondent, then Secretary of Justice Hernando B.

Perez, issued his Resolution[22] finding merit in the petition.According to Secretary
Perez, the new affidavits of Quirante, Ceballos and Toledo are not credible
considering the length of time they were executed since the commission of the
crime and also because said documents cannot be considered newly discovered
evidence. He further noted that the affidavits were executed by the same persons
investigated by the Bureau of Corrections and who all participated in the
preliminary investigation of the case. At most, said affidavits can only be
considered as afterthought or made upon the prodding or influence of other
persons. Public respondent thus ordered:
WHEREFORE, the questioned resolution is MODIFIED. The
City Prosecutor of Muntinlupa City is directed to amend the information
to exclude accused Giovan Bernardino therefrom, and to report action
taken within ten (10) days from receipt hereof.

SO ORDERED.[23]

On March 25, 2002, a Motion to Admit Second Amended Information, which

dropped the name of respondent Bernardino as one of the accused, was filed in
court.[24]

Petitioner filed a motion for reconsideration which was denied under

Resolution[25] dated August 1, 2002.
 Aggrieved, petitioner elevated the case to the CA via a Petition for Certiorari
under Rule 65. Petitioner argued that public respondent gravely abused his
discretion in disregarding all material evidence presented which clearly showed
that the affidavits of Quirante, Ceballos and Toledo had not been submitted during
the preliminary investigation conducted by Prosecutor Padilla. Contrary to the
pronouncement of the Secretary of Justice, the absence of said affidavits could not
be construed as an irregularity in the conduct of preliminary investigation.This
must be so since the March 30, 1999 resolution of Prosecutor Padilla explicitly
stated that if and when evidence be unearthed by the concerned authorities, the
case may still be re-filed against the other suspects, including Bernardo and
Bernardino, for conspiracy in the attempted murder of petitioner. Petitioner also
faulted the public respondent in granting the petition for review despite the same
having been filed out of time, more than one month after receipt of the DOJ
resolution.[26]

On June 14, 2004, the CA rendered its Decision sustaining the ruling of the
Secretary of Justice, finding no grave abuse of discretion in the issuance of the
questioned resolutions. Petitioners motion for reconsideration was likewise denied
by the CA.

Petitioner is now before this Court, alleging that

THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERRORS OF LAW, AND AS SUCH THE INSTANT
PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE
DECISION OF THE SECRETARY OF JUSTICE DISREGARDING
THE AFFIDAVITS OF THE WITNESSES DATED APRIL 14, 1999
AND DECEMBER 2, 1999, IT RELIED HEAVILY ON A MERE
INFERENCE BASED NOT ON ESTABLISHED FACTS BUT ON
ANOTHER INFERENCE.

THE HONORABLE COURT OF APPEALS COMMITTED

SERIOUS ERRORS OF LAW, AND AS SUCH THE INSTANT
PETITION SHOULD BE ALLOWED, WHEN, IN AFFIRMING THE
DECISION OF THE SECRETARY OF JUSTICE REVERSING THE
INVESTIGATING PROSECUTORS FINDINGS OF PROBABLE
CAUSE AGAINST THE PRIVATE RESPONDENT, IT DEPARTED
FROM THE ESTABLISHED FACTS, AND IN THE PROCESS,
 FAILED TO MAKE AN INDEPENDENT AND THOROUGH
DETERMINATION OF THE EXISTENCE OF PROBABLE CAUSE
IN LIGHT OF APPLICABLE LAWS, RULES AND
[27]
JURISPRUDENCE.

Petitioner contends that the CA erred in concluding that the decision of the
Secretary of Justice was supported with factual basis notwithstanding that its
conclusion that the new affidavits were executed upon the influence of persons
who merely wanted to indict respondent Bernardino, was based merely on another
inference - that there was considerable length of time before the said affidavits
were executed. He assails the CA which, like the Secretary of Justice, closed its
eyes on the clear indications of culpability appearing on the faces of the affidavits
presented during the reinvestigation. The CA disregarded these pieces of evidence
despite the same having established prima facie that respondent Bernardino is
probably guilty of the charge, for the reason alone that since the Secretary of
Justice himself doubts the veracity of the affidavits of Quirante, Ceballos and
Toledo, it would be embarrassing to compel [him] to prosecute the case.

On the other hand, respondent Bernardino in his Comment argued that the plain,
speedy and adequate remedy of petitioner from the ruling of the Secretary of
Justice should have been the trial courts resolution of the Motion for Leave to File
Second Amended Information which had been set for hearing, and not the petition
for certiorari he filed before the CA. He also insists that only one copy of the
March 20, 2000 Memorandum of Prosecutor Macinas was sent to the NBP which
was addressed to petitioner. It was only on July 4, 2000 that his family was able to
secure a copy from the Office of the City Prosecutor. As to the resolution of public
respondent Secretary, respondent Bernardino maintains that the Secretary of
Justice was correct in disregarding the new English affidavits as they were
subscribed by unlettered affiants who can hardly speak Filipino and know only the
Visayan dialect.

On its part, the Office of the Solicitor General (OSG) prays for the dismissal of the
petition as the Secretary of Justice committed no grave abuse of discretion in
modifying the ruling of Prosecutor Macinas by ordering the exclusion of
respondent Bernardino from the Information.Considering that the affidavits
indicting respondent Bernardino were executed after the initial preliminary
investigation and after an information was already filed in court, the Secretary of
Justice was justified in giving less credence to the said evidence.

We find the petition meritorious.

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

would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted.[28] To determine the existence of probable cause, there is
need to conduct preliminary investigation. A preliminary investigation constitutes a
realistic judicial appraisal of the merits of a case. [29] Its purpose is to determine
whether (a) a crime has been committed; and (b) whether there is a probable cause
to believe that the accused is guilty thereof. It is a means of discovering which
person or persons may be reasonably charged with a crime.[30]

It is well-settled that the determination of probable cause for the purpose of

filing an information in court is an executive function which pertains at the first
instance to the public prosecutor and then to the Secretary of Justice. [31] The
Secretary of Justice may reverse or modify the resolution of the prosecutor, after
which he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties.[32]

The Court considers it sound judicial policy to refrain from interfering in the
conduct of preliminary investigations and to leave the Department of Justice ample
latitude of discretion in the determination of what constitutes sufficient evidence to
establish probable cause for the prosecution of supposed offenders.[33] 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 abuse of discretion amounting to want of jurisdiction.[34]

However, this Court may ultimately resolve the existence or non-existence

of probable cause by examining the records of the preliminary investigation when
necessary for the orderly administration of justice.[35] Although policy
considerations call for the widest latitude of deference to the prosecutors findings,
courts should never shirk from exercising their power, when the circumstances
warrant, to determine whether the prosecutors findings are supported by the facts,
or by the law.[36]

In this case, Secretary Perez disregarded the new (English) affidavits

executed by Quirante, Ceballos and Toledo, saying it was an afterthought or made
simply upon the prodding or influence of other persons. He also stated that
Quirante, Ceballos and Toledo all participated in the investigations of the Bureau
of Corrections. No mention, however, was made of the fact that said new affidavits
firmly reiterated what Quirante, Ceballos and Toledo declared in their earlier
Tagalog affidavits and their verbal admissions during the investigation proceedings
conducted by PGIII Lopez. These Tagalog affidavits in turn, although executed two
weeks after the initial preliminary investigation conducted by Prosecutor Padilla,
were properly admitted and considered by the investigating officer, Prosecutor
Macinas who took over during the reinvestigation of the case. The
recommendation of Prosecutor Padilla which initially found probable cause only
against Quirante, explicitly reserved the inclusion of Bernardo and Bernardino
whose complicity may eventually be established, by qualifying the dismissal of the
case as against them for insufficiency of evidence, with the words without
prejudice to the refiling of the same in the event that evidence against them may be
unearthed by concerned authorities. The reservation made by Prosecutor Padilla for
the inclusion of other persons who may have had complicity in the commission of
the crime was grounded on reasonable belief that there were other conspirators or
masterminds, on the basis of the findings of PGIII Lopez during the investigation
by the Bureau, the verbal admissions of Quirante and Ceballos as to their
culpability and the alleged masterminds they identified. Hence, the English
affidavits submitted during the reinvestigation cannot be considered an
afterthought and executed merely upon the influence of certain persons, and
Prosecutor Macinas properly admitted those in evidence.

Indeed, the English affidavits contained a reiteration and more detailed

account of the clubbing incident earlier given by Quirante, Ceballos and Toledo in
the Tagalog affidavits. In these affidavits executed on December 2, 1999, as well as
in the Tagalog affidavits datedApril 14, 1999, they were consistent in pointing to
Bernardo and Bernardino as the masterminds with Aprid as accomplice, in the
crime charged. Further, the English affidavits fully explained the circumstances as
to why they were not able to give sworn statements during the Bureau investigation
and initial preliminary investigation conducted by Prosecutor Padilla, before whom
they subscribed their Tagalog affidavits, and the reason for the execution of new
affidavits in English which were subscribed before Prosecutor Macinas. Thus, the
pertinent portions of their individual affidavits in English read:

Affidavit of Roberto Ceballos

xxxx

On January 9th 1999 at around 10:00 a.m. inmate Constantino

Quirante was arrested by the ICA (Inmates Custodial Aide) who took
him to the Overseers Office for interrogation. I was arrested shortly
afterwards by the ICA and taken to their office also for
investigation. Inmate Constantino Quirante and I were then confined to
the Bartolina (disciplinary cell) where we remained for two months and
twenty one days (2 mos. 21 days) before being transferred to the
Maximum Security Compound.

Shortly after being confined in the disciplinary cell at the Medium

Security Compound, inmate Quirante and I were summoned to the
Maximum Security Compound for interrogation. We first went to the
office of Superintendent Agalo-os and made a joint statement which we
did not sign as we were nervous and a lawyer (Ace Aprids counsel I
think) was present. We were then taken to the ante-room of the Directors
office where inmate Dr. George Miller was with an Inspector Lopez
from the Bureaus Investigation Section and an [illegible] Inspector
Lopezs questions in Tagalog and Dr. Miller asked why those people from
ICAD wished to have him killed. We told him it was because he had
informed on them with a report to the Superintendent. While confined in
the Medium Security Compounds Bartolina we were visited by Giovan
Bernardino who told us to keep quiet about what had happened and gave
us hamburgers. He also promised us money but this never materialized.

Later in the beginning of March we were escorted to the

Muntinlupa City Prosecutors Office for a preliminary hearing. We were
surprised nobody from ICAD was there but Miller said he would not
prefer charges against us provided we turned States witnesses and
deposed to a counter-affidavit exposing the masterminds, those in fact
who had commissioned the crime. Quirante and I requested the Asst.
Prosecutor Padilla for a few days within which to think about submitting
a counter-affidavit. The Asst. Prosecutor Padilla arranged a second
preliminary hearing which was on the 11th March 1999 when we
informed him we were still thinking it over. Afterwards when we were
transferred to the Maximum Security Compound we discovered the
Bureau of Corrections Investigation Section had commenced an inquiry
into the management of ICAD. We were summoned to the Penal
Superintendents office with inmate Rudy Toledo, when Quirante and I
gave a joint affidavit with Toledo giving another of his own account. All
three of us were then escorted to Assistant Prosecutor Padillas office
in Muntinlupa City when we swore in our respective affidavits. I
understand from Dr. Miller these affidavits have been misplaced and he
is unable to access copies from the Bureau of Corrections. I therefore
agreed to execute another deposition which differs from the joint
affidavit sworn earlier in that this is more thorough. [37]

Affidavit of Constantino Quirante

xxxx

On January 9th, I was urinating in front of building 5 when I was

called to the office of Inspector Del Prado. I changed into my issue
uniform at the brigada and proceeded to Inspector Del Prados office
where I was arrested. I admitted to the hit on Miller and that I was acting
on orders received from Boy Bernardo and Giovan Bernardino of ICAD
given to the BC 45 gang commander, Rudy Toledo. I was then confined
at the Medium Security Compounds disciplinary cell. Roberto Ceballos,
who had been arrested and interrogated by the ICA joined me in the
bartolina. Giovan Bernardino later visited us in the bartolina bringing
hamburgers but no money. Upon his request I promised to keep quiet
about the involvement of inmate Boy Bernardo and himself. He assured
me not to worry and that everything would be taken care of.

Round about Jan. 29th, Roberto Ceballos and I were escorted to

the office of Superintendent Agalo-os at the Maximum Security
Compound.We gave Superintendent Agalo-os a statement but did not
sign it. I believe the attorney of Ace Aprid was present so Ceballos and I
were nervous of signing. We were then taken to the ante room of the
Directors office where inmate Miller was present with Inspector Lopez
of the Investigation Section and an interpreter. We were asked a number
of questions in Tagalog by Inspector Lopez and Dr. Miller asked why
Bernardino and Bernardo wished him to be killed [illegible] myself
provided we completed a counter-affidavit naming Bernardo and
Bernardino as the masterminds. Asst. CityProsecutor Padilla said he
 would give us some time to consider and he arranged a second
preliminary hearing for March 11th 1999. At the second meeting we
refused to give a counter-affidavit as we had not yet decided and also we
were worried.

Thereafter we were transferred to the Maximum Security

Compound on the 30th of March. Approximately one month later we
were called to the office of Superintendent Agalo-os with inmate Rudy
Toledo. Ceballos and I prepared a joint affidavit for the Bureaus
Investigation section and Rudy Toledo completed a sep[a]rate
affidavit. These handwritten affidavits were photocopied in
Super[intendent] Agalo-oss office by the Investigation Section Officer
and at approximately 4:00 p.m. we were escorted into Assistant City
Prosecutor Padillas office w[h]ere the affidavits were sworn.

This further affidavit is made at the request of Dr. Miller, as I

understand the prior affidavits sworn in front of Attorney Padilla have
disappeared and he has not been allowed access to the Bureau of
Correction[s] file copies with the Investigation Section. This affidavit is
more comprehensive and better than our first joint affidavit which was
hurriedly completed in manuscript.[38]

Toledos affidavit not only dovetailed with the above-mentioned

circumstances surrounding the execution of the two sets of affidavits, but also
positively identified Bernardo, Bernardino and Aprid as the masterminds and
detailed how the crime was planned and carried out onJanuary 6, 1999. Thus:
xxxx

On or about December 15th, 1998 I had a meeting with inmate

Giovan Bernardino at the Inmates Crusade Against Drugs restaurant in
the Medium Security Compound of Camp Sampaguita. The meeting was
arranged by Giovan Bernardino when he spoke to me in my capacity as
commander of the BC 45 Gang (Medium Security Compound)
requesting that I arrange for some of my members to kill Dr. George
Miller of the Inmates Crusade Against Drugs. He offered the sum of one
thousand five hundred pesos (PHP 1,500.00) to be paid after the task was
accomplished.Initially, I refused to accept this mission. Thereafter, we
met several times in ICADs premises mainly, at the billiard table. At
each meeting, he endeavoured to persuade me of that which he required
earlier, namely to have some of my gang members kill inmate George
Miller. Everytime I refused inmate Bernardino said there was no need to
worry he was able to take care of everything afterwards. In January he
contacted me again when I was invited to ICADs offices where I
remember seeing a computer. Inmate Rodolfo Boy Bernardo, the
Chairman of the Inmates Crusade Against Drugs was present with
another ICAD member inmate, Ace Aprid, who was the Sigue Sigue
Sputnik commander of the Medium Security Compound.Inmates
Bernardo and Aprid were the colleagues of inmate Bernardino and all of
them wanted Miller killed as they stated he had submitted a report
concerning their activities in ICAD to Superintendent Agalo-os and was
responsible for ICADs premises being subjected to a search by sniffer
dogs at the Superintendents direction. Later I arranged for two of my
gang members, inmates Constantino Quirante and Roberto Ceballos,
who agreed to do as ICADs Bernardo, Bernardino and Aprid had
requested. This was the morning of the 6th of January and it was agreed
that Quirante would be the assassin while Ceballos was to be the
lookout. At the meeting it was planned that I would arrange for a
distraction to take place simultaneously when Quirante and Ceballos
where [sic] killing Miller. Inmate Millers movements to the High School
and elsewhere that day were closely monitored and in the afternoon he
went to the store of inmate Boy Sabater at the talipapa. I organized
Sinulog Dancing for the BC 45 Gang anniversary at Camp Sampaguitas
Plaza Compound with gang members to divert attention from Quirantes
and C[e]ballos assassination of Miller. When the dancing was finished
one of my men informed me that Miller was still alive and had been sent
to the NBP Hospital from the Camp Sampaguita Infirmary. Quirante had
struck Miller on the head from behind when he left the talipapa but
failed to kill him. Afterwards inmates Giovan Bernardino and Ace Aprid
gave Quirante and Ceballos the sum of one hundred pesos
(PHP100.00). They were not paid the promised one thousand five
hundred pesos (PHP1,500.00) as their mission was not completed in that
they failed to kill Miller.

In February I was transferred to the Maximum Security

Compound where I met Dr. Miller and informed him that I was prepared
to testify regarding the foregoing. Inmates Quirante and C[e]ballos had
been transferred earlier to the Maximum Security Compound after
confessing their involvement. Later the Bureau of Corrections carried
out an investigation regarding the affairs of ICAD when Quirante,
C[e]ballos and myself where[sic] summoned to the Penal
Superintendent Agalo-oss office. The Bureaus Investigation Section then
took an affidavit from me and a joint affidavit was completed by
 Quirante and C[e]ballos. Thereafter we were escorted to the City
Prosecutor[s] Office in Muntinlupa City where the affidavits were sworn
in before the Assistant Prosecutor Padilla. Copies were taken for the
Investigation Sections file. I was informed by Dr. Miller that the
affidavits in the City Prosecutor[s] Office have disappeared and he had
been prevented to date from accessing the Bureau of Corrections file,
hence this further affidavit.[39]

Confronted with these evidence clearly showing prima facie that respondent
Bernardino was among those involved in the crime committed against petitioner,
Prosecutor Macinas was correct in finding probable cause, upon reinvestigation, to
include respondent Bernardino along with Bernardo, Aprid, Quirante, Ceballos and
Toledo as those who will be formally charged with attempted murder and
recommending the filing of an amended information for this purpose. In modifying
the said amended information by dropping the name of respondent Bernardino,
Secretary Perez gravely abused his discretion, his conclusion that the new
affidavits were mere afterthought being contrary to the facts on record. Besides, the
Secretarys act of absolving respondent Bernardino arbitrarily ignored the
consistent and categorical declarations of Quirante, Ceballos and Toledo that
respondent Bernardino together with Bernardo and Aprid instigated, planned and
ordered the attack on petitioner, harping solely on their belated execution of
affidavits even if such delay have been satisfactorily explained.

We need not over-emphasize that in a preliminary investigation, the public

prosecutor merely determines whether there is probable cause or sufficient ground
to engender a well-founded belief that a crime has been committed, and that the
respondent is probably guilty thereof and should be held for trial. [40] In a
preliminary investigation, a full and exhaustive presentation of the parties evidence
is not required, but only such as may engender a well-grounded belief that an
offense has been committed and that the accused is probably guilty
thereof. Certainly, it does not involve the determination of whether or not there is
evidence beyond reasonable doubt pointing to the guilt of the person. Onlyprima
facie evidence is required; or that which is, on its face, good and sufficient to
establish a given fact, or the group or chain of facts constituting the party's claim or
defense; and which, if not rebutted or contradicted, will remain
sufficient. Therefore, matters of evidence, such as who are the conspirators, are
more appropriately presented and heard during the trial.[41]

The term probable cause does not mean actual and positive cause nor does it
import absolute certainty. It is merely based on opinion and reasonable
belief. Thus, a finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of the
charge.[42]

While it is this Courts general policy not to interfere in the conduct of

preliminary investigations, leaving the investigating officers sufficient discretion to
determine probable cause, courts are nevertheless empowered to substitute their
judgment for that of the Secretary of Justice when the same was rendered without
or in excess of authority.[43] Where the Secretary of Justice dismissed the complaint
against the respondent despite sufficient evidence to support a finding of probable
cause, such clearly constitutes grave error, thus warranting a reversal. [44] The CA
thus clearly erred in sustaining the ruling of Secretary Perez for the exclusion of
respondent Bernardino from the charge of attempted murder despite a prima
facie case against him having been established by the evidence on record.

WHEREFORE, the petition for review on certiorari is GRANTED. The

Decision dated June 14, 2004 and Resolution datedSeptember 14, 2004 of the
Court of Appeals in CA-G.R. SP No. 72395 are hereby REVERSED and SET
ASIDE. The Secretary of Justice is hereby DIRECTED to REINSTATE or RE-
FILE with deliberate dispatch the Amended Information which included Giovan
Bernardino as accused in Criminal Case No. 99-452 of the National Capital
Judicial Region, Regional Trial Court of Muntinlupa City, Branch 256.

No costs.

SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Topacio and Topacio for accused-appellants.

MELO, J.:

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth
Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in
Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under
two informations reading, respectively, as follows:

Criminal Case No. 236-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly have in his possession and control a homemade (paltik)caliber .22
revolver with three (3) live ammunition.

Contrary to law.

Criminal Case No. 237-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
without legal authority, did, then and there, willfully, unlawfully, feloniously and
knowingly sell to a poseur buyer an aluminum foil containing Methamphetamine
Hydrochloride also known as "Shabu", a regulated drug.

Contrary to law.

(pp. 20-21, Rollo.)

Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the
two cases, the court a quo rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del
Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he
is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation
of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal, as maximum and
in Crim. Case No. 237-91 for a violation of Section 15, Article III of Republic Act
 6425, as amended of life imprisonment and to pay a fine of P30,000.00, without
subsidiary imprisonment in case of insolvency and to pay the costs in both cases.

The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered
confiscated in favor of the government.

(pp. 28-29, Rollo.)

From said decision, the instant appeal has been interposed.

The prosecution's version of the case, as set forth in appellee's brief, is as follows:

Upon application of SPO3 Raymundo Untiveros of the Philippine National Police

(PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the
morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and seizure of
an "undetermined quantity of Methamphetamine Hydrochloride commonly known as
shabu and its paraphernalias" in the premises of appellant's house located at 828 R.
Basa St., San Roque, Cavite City. However, the search warrant was not implemented
immediately due to the lack of police personnel to form the raiding team (pp. 4, 7,
tsn., Feb. 4, 1992).

At about 9 o'clock in the evening of that day, a raiding team was finally organized.
SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1
Eduardo Novero, SPO3 Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio
and SPO2 Villegas as members
(pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).

In the final briefing of the raiding team at the police station, it was agreed upon that
PO1 Venerando Luna will buy shabu from appellant and after his return from
appellant's house, the raiding team will implement the search warrant (p. 10, tsn.,
Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100
bill bearing serial no. PQ 329406
(Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and entered
in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion proceeded to
appellant's house to implement the search warrant. Barangay Capt. Maigue, Norma
del Rosario and appellant witnessed the search at appellant's house (p. 10, tsn.,
Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister
containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set,
three used ammunitions in a cup and three wallets (Exhs. Q, R, S), one containing
the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found
inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992).
SPO3 de la Cruz turned over the wallet containing the marked money to PO3
Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items were photographed thereat
by Fred Agana and then turned over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992).
SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized items
with Barangay Capt. Maigue and appellant's sister Norma as signing witnesses. He
also made a return (Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155,
tsn., Feb. 18, 1992.).
 At police station, the seized items were taped and initialed by SPO3 de la Cruz (p.
33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded
to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil
(Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna from
appellant in the
buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.)
containing suspected marijuana which were confiscated by virtue of the search
warrant.

The findings of NBI Forensic Chemist Aranas disclosed that all the specimen
submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave
positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991;
Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).

(pp. 102-105, Rollo.)

Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove the
guilt of accused-appellant. Much is to be desired in the manner the police authorities effected the
arrest of accused-appellant and the same observation may be made with regard to the way the
prosecution conducted its case.

Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1
Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish
the purported sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer.
The omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place.

The trial court gave much weight to the testimonies of the police members of the buy-
bust operation. However, the prosecution did not present as witness the supposed
poseur-buyer. Such omission casts serious doubt on appellant's guilt because
without the testimony of the
poseur-buyer, there is no convincing evidence to show that appellant sold marijuana.
The testimonies of the rest of the buy-bust operation are hearsay in view of the fact
that the poseur-buyer, was never presented at the trial. There was even no testimony
that when the accused-appellant handed the stuff to the poseur-buyer that the latter
in turn handed the marked money. The failure of the prosecution to present the
alleged buyer of the marijuana was a fatal flaw in the case against the accused.

(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged
Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly
told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without
any evidentiary weight whatsoever. Likewise, the statements of prosecution witnesses Policemen
Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu
are hearsay, without weight, as all of them were not present during the alleged sale.

According to the version of the prosecution, during the alleged buy-bust operation, accused-
appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna
in turn paid accused-appellant a marked P100 bill and then returned to the police station and
informed the raiding team that he had already bought the shabu from accused-appellant. Thereupon,
the raiding team proceeded to the house of accused-appellant to implement the search warrant. The
version of the prosecution is highly incredible. The record is devoid of any reason why the police
officers did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu
to Veneracion Luna who was accompanied by another police officer. That was the opportune
moment to arrest accused-appellant. The version foisted by the prosecution upon this Court is
contrary to human experience in the ordinary course of human conduct. The usual procedure in a
buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he
hands over the dangerous drug to the poseur-buyer. That is the very reason why such a police
operation is called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the
pusher and "busts" (arrests) him the moment the pusher hands over the drug to the police officer.

We thus entertain serious doubts that the shabu contained in a small canister was actually seized or
confiscated at the residence of accused-appellant. In consequence, the manner the police officers
conducted the subsequent and much-delayed search is highly irregular. Upon bargaining into the
residence of accused-appellant, the police officers found him lying down and they immediately
arrested and detained him in the living room while they searched the other parts of the house.
Although they fetched two persons to witness the search, the witnesses were called in only after the
policemen had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991),
and, therefore, the policemen had more than ample time to plant the shabu. Corollary to the
constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the Philippines) is the
rule that in order to convict an accused the circumstances of the case must exclude all and each and
every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People
vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case
do not rule out the hypothesis that accused- appellant is innocent.

At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a

canister and allegedly seized at his house, for the charge against him was for selling shabu with the
information alleging that the "accused, without legal authority did . . . sell to a poseur buyer an
aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting
parties obligates himself to transfer the ownership of and to deliver a determine thing, and the other
to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing
or the enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be
convicted of a crime which is not charged in the information for to do so would deny him the due
process of law (People vs. Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382
[1974]).

Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The
search warrant implemented by the raiding party authorized only the search and seizure of ". . . the
described quantity of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize only
shabu and paraphernalia for the use thereof and no other. A search warrant is not a sweeping
authority empowering a raiding party to undertake a finishing expedition to seize and confiscate any
and all kinds of evidence or articles relating to a crime. The Constitution itself (Section 2, Article III)
and the Rules of Court (Section 3, Rule 126) specifically mandate that the search warrant must
particularly describe the things to be seized. Thus, the search warrant was no authority for the police
officers to seize the firearm which was not mentioned, much less described with particularity, in the
search warrant. Neither may it be maintained that the gun was seized in the course of an arrest, for
as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having
been illegally seized, the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383
[1967]). The Constitution expressly ordains the exclusion in evidence of illegally seized articles.

Any evidence obtained in violation of this or the preceding section shall be

inadmissible for any purpose in any proceeding.

(Section 3[2], Article III, Constitution of the Republic of the Philippines).

With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of
evidence to support the charge of illegal possession of firearm, against accused-appellant.

The same may be said of the charge of illegal possession of ammunition.

WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby
ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.

The immediate release of accused-appellant is hereby ordered unless there exists a pending valid
cause against him.

The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of
the government.

SO ORDERED.
DOLORES DELOS SANTOS, NICOLAS DELOS SANTOS and RICARDO DELOS SANTOS,
petitioners,
vs.
HON. JUDGE CAMILO MONTESA, JR. and JUANA DELOS SANTOS, respondents.

Jose C. Patalinjug for petitioners.

Leonardo O. Mancao for private respondent.

SYLLABUS

1. REMEDIAL LAW CIVIL PROCEDURE; SUMMONS; DEFENDANT'S VOLUNTARY

APPEARANCE IN THE ACTION EQUIVALENT TO SERVICE OF SUMMONS; CASE AT BAR. At
first blush, it would appear that the recourse pursued by petitioners could elicit a favorable response
from us in as much as the proof of service of the summons upon petitioners does not indicate
impossibility of personal service, a condition precedent for resorting to substituted service. Even
then, and assuming in gratia argumenti that the statutory norms on service of summons have not
been strictly complied with, still, any defect in form and in the manner of effecting service thereof
were nonetheless erased when petitioners' counsel moved to re-examine the impugned decision and
posed a subsequent bid on appeal to impede immediate execution (Boticano vs. Chu. Jr., 145 SCRA
541 [1987]); 1 Regalado, Remedial Law Compendium, 1988 Fifth Rev. Ed., p. 136). Indeed, such
demeanor is tantamount to voluntary submission to the competencia of the court within the purview
of Section 23, Rule 14 of the Revised Rules of Court since any mode of appearance in court by a
defendant or his lawyer is equivalent to service of summons, absent any indication that the
appearance of counsel for petitioner was precisely to protest the jurisdiction of the court over the
person of defendant (Carballo vs. Encarnacion, 49 O.G. 1383; 1 Regalado, supra, p. 144; Flores vs.
Zurbito, 37 Phil. 746 [1918]; 1 Martin, Rules of Court in the Philippines, 1989 Rev. Ed., p. 473 Sison,
et al. vs. Gonzales, 50 O.G. 4756; 1 Moran, Comments on the Rules of Court, 1970 Ed., p. 467).
Neither can We treat the motion for reconsideration directed against the unfavorable disposition as a
special appearance founded on the sole challenge on invalid service of summons since the
application therefor raised another ground on failure to state a cause of action when conciliation
proceedings at the barangay level were allegedly bypassed, nay, disregarded (Republic vs. Ker and
Co., Ltd., 64 O.G. 3761; Regalado, supra, p. 152).

2. ID APPEAL; ONLY QUESTIONS OF LAW MAY BE RAISED IN PETITION FOR REVIEW ON

CERTIORARI UNDER RULE 45; CASE AT BAR The fact that petitioners are supposedly occupying
a parcel of land other than the realty claimed by private respondent deserves scant consideration
since a clarification on a factual query of this nature is proscribed by the second paragraph, Section
2 of Rule 45 of the Revised Rules of Court. Verily, counsel for petitioners' assertion in the notice of
appeal filed with respondent judge that the grievance to be elevated to this Court will focus "fully on
a question of law" (p. 32 Rollo) is a self-defeating posture and operates as a legal bar for us to dwell
into the truth or falsehood of such factual premise (Article 1431, New Civil Code; Section 4, Rule
129; Section 2(a), Rule 131, Revised Rules on Evidence).

3. ID; JUDGMENT; EXECUTION PENDING APPEAL; PREVAILING PARTY MOVING FOR

EXECUTION PENDING APPEAL OBLIGED TO SERVE COPY OF MOTION ON ADVERSE
PARTY'S COUNSEL. Petitioners argue next that execution pending appeal was ordered without
any prior notice to them (p. 3, Petition; p. 7, Rollo). This notion is also devoid of substance since it
erroneously suggests that the court is duty-bound to notify petitioners of the immediate enforcement
of the appealed decision. A contrario, it is the prevailing party moving for execution pending appeal
under Section 2, Rule 39 of the Revised Rules of Court who is obliged to serve a copy of such
motion on the adverse party's counsel, which, on the face of the subject motion, was effected by
personal delivery (p. 23, Rollo; Lao vs. Mencias, 21 SCRA 1021 [1967]; 2 Martin, Rules of Court in
the Philippines, 1973 Ed., p. 288).

DECISION

MELO, J p:

In the suit for desahucio initiated below by herein private respondent against petitioners, the court of
origin ordered petitioners to vacate the lot in question to pay P5,000.00 per year as reasonable
rental from 1985 until possession is surrendered, and to pay P1,000.00 as attorney's fees and the
costs of the suit (pp. 37-38, Rollo). Upon appeal, Branch XIX of the Regional Trial Court of the Third
Judicial Region stationed in Malolos and presided over by herein respondent judge, granted private
respondents motion for execution pending appeal on account of petitioners' failure to post a
supersedeas bond (p. 21, Rollo). To set aside the proceedings below, the petition at hand was
instituted anchored on the supposition that petitioners were deprived of their day in court.

Petitioners' mental distress started when private respondent, who supposedly owns Lot 39 of the
Cadastral survey of Bustos with an area of 5,358 square meters covered by Original Certificate of
Title No. U-7924 a portion of which petitioners entered and occupied, lodged the complaint geared
towards petitioners' eviction. Summons was served through the mother of petitioners when the
process server was unable to locate Dolores, Nicolas, and Ricardo delos Santos in Talampas,
Bustos, Bulacan. For failure of petitioners to submit the corresponding answer, judgment was
rendered pursuant to the rules on summary procedure (pp. 2-3, Decision; pp. 37-38, Rollo).

Upon learning of said decision, petitioners sought to reconsider on the principal thesis that they were
never served notice of the conciliation meeting at the barangay level, as well as the summons. They
insist that private respondent was referring to a different piece of realty because petitioners actually
occupied Lot No. 3568 owned by Nicolas delos Santos under Original Certificate of Title No. F-
10418. Moreover, petitioners advanced the proposition that Dolores' husband should have been
impleaded. All of these arguments were to no avail. As indicated earlier, execution pending appeal
was ordered due to petitioners' failure to post a supersedeas bond.

To stave off the impending eviction of petitioners, this Court issued a restraining order on April 28,
1986 directed against the reviewing authority and private respondent until further orders (p. 52,
Rollo).

At first blush, it would appear that the recourse pursued by petitioners could elicit a favorable
response from us in as much as the proof of service of the summons upon petitioners does not
indicate impossibility of personal service, a condition precedent for resorting to substituted service.
Even then, and assuming in gratia argumenti that the statutory norms on service of summons have
not been strictly complied with, still, any defect in form and in the manner of effecting service thereof
were nonetheless erased when petitioners' counsel moved to re-examine the impugned decision and
posed a subsequent bid on appeal to impede immediate execution (Boticano vs. Chu. Jr., 145 SCRA
541 [1987]); 1 Regalado, Remedial Law Compendium, 1988 Fifth Rev. Ed., p. 136). Indeed, such
demeanor is tantamount to voluntary submission to the competencia of the court within the purview
of Section 23, Rule 14 of the Revised Rules of Court since any mode of appearance in court by a
defendant or his lawyer is equivalent to service of summons, absent any indication that the
appearance of counsel for petitioner was precisely to protest the jurisdiction of the court over the
person of defendant (Carballo vs. Encarnacion, 49 O.G. 1383; 1 Regalado, supra, p. 144; Flores vs.
Zurbito, 37 Phil. 746 [1918]; 1 Martin, Rules of Court in the Philippines, 1989 Rev. Ed., p. 473 Sison,
et al. vs. Gonzales, 50 O.G. 4756; 1 Moran, Comments on the Rules of Court, 1970 Ed., p. 467).

Neither can We treat the motion for reconsideration directed against the unfavorable disposition as a
special appearance founded on the sole challenge on invalid service of summons since the
application therefor raised another ground on failure to state a cause of action when conciliation
proceedings at the barangay level were allegedly bypassed, nay, disregarded (Republic vs. Ker and
Co., Ltd., 64 O.G. 3761; Regalado, supra, p. 152).

The fact that petitioners are supposedly occupying a parcel of land other than the realty claimed by
private respondent deserves scant consideration since a clarification on a factual query of this nature
is proscribed by the second paragraph, Section 2 of Rule 45 of the Revised Rules of Court. Verily,
counsel for petitioners' assertion in the notice of appeal filed with respondent judge that the
grievance to be elevated to this Court will focus "fully on a question of law" (p. 32 Rollo) is a self-
defeating posture and operates as a legal bar for us to dwell into the truth or falsehood of such
factual premise (Article 1431, New Civil Code; Section 4, Rule 129; Section 2(a), Rule 131, Revised
Rules on Evidence).

Petitioners argue next that execution pending appeal was ordered without any prior notice to them
(p. 3, Petition; p. 7, Rollo). This notion is also devoid of substance since it erroneously suggests that
the court is duty-bound to notify petitioners of the immediate enforcement of the appealed .appeal
under Section 2, Rule 39 of the Revised Rules of Court who is obliged to serve a copy of such
motion on the adverse party's counsel, which, on the face of the subject motion, was effected by
personal delivery (p. 23, Rollo; Lao vs. Mencias, 21 SCRA 1021 [1967]; 2 Martin, Rules of Court in
the Philippines, 1973 Ed., p. 288).

In fine, petitioners may not press the idea that they were deprived of their day in court amidst the
implicit forms of waiver performed by their lawyer in submitting every conceivable defense for
petitioners via the two motions for reconsideration below.

WHEREFORE, the petition is hereby DISMISSED for lack of merit and the restraining order issued
on April 28, 1986 LIFTED.

SO ORDERED.
VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,
vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR

NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for
petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:

May a Judge without ascertaining the facts through his own personal determination and relying
solely on the certification or recommendation of a prosecutor that a probable cause exists issue a
warrant of arrest?

On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the
Masbate Domestic Airport, located at the municipality of Masbate province of Masbate,
Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio
Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante
Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot,
although, he himself suffered a gunshot wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O.
Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an
amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim,
Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio
T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in
G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the
airport incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating
therein that:

. . . after weighing the affidavits and answers given by the witnesses for the prosecution
during the preliminary examination in searching questions and answers, concludes that a
probable cause has been established for the issuance of a warrant of arrest of named
accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon
Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor
 Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla aliasTidoy. (Rollo, p. 58,
G.R. Nos. 94054-57)

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was
granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except
for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages
were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C.
Alfane was designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima
facie case against the petitioners but differed in the designation of the crime in that the ruled that
". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but
for a case of MURDER for each of the killing of the four victims and a physical injuries case for
inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane,
p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente
Lim, Sr. and Mayor Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate
informations of murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition
for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the
Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of
justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812,
5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial
Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for
transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the
Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate,
Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional
Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the
Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said
cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and
manifestations which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry
or investigation conducted by the Municipal Judge Barsaga of Masbate for the best
 enlightenment of this Honorable Court in its personal determination of the existence of a
probable cause or prima facie evidence as well as its determination of the existence of guilt,
pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the
issuing magistrate shall have himself been personally convinced of such probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a
matter of right; and

3. In the event that this court may later be convinced of the existence of a probable cause, to
be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R.
Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there
really exists aprima facie case against them in the light of documents which are recantations of
some witnesses in the preliminary investigation. The motions and manifestations were opposed by
the prosecution.

On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and
manifestations and issued warrants of arrest against the accused including the petitioners herein.
The respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court
of Masbate, Masbate which found the existence of probable cause that the offense of
multiple murder was committed and that all the accused are probably guilty thereof, which
was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional
Trial Court four separate informations for murder. Considering that both the two competent
officers to whom such duty was entrusted by law have declared the existence of probable
cause, each information is complete in form and substance, and there is no visible defect on
its face, this Court finds it just and proper to rely on the prosecutor's certification in each
information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY
RESTRAINING ORDER, effective immediately and continuing until further orders from this Court,
ordering the respondent judge or his duly authorized representatives or agents to CEASE and
DESIST from enforcing or implementing the warrant of arrest without bail issued against the
petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing

the respondent judge to recall/set aside and/or annul the legal effects of the warrants of
arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez,
Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at
PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from this Court, ordering
 the respondent judge or his duly authorized representatives or agents, to CEASE AND
DESIST from enforcing or implementing the warrants of arrest without bail issued against
petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a
warrant of arrest without bail by simply relying on the prosecution's certification and recommendation
that a probable cause exists.

This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that
a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis
thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with
the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973
Constitution which provides:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may
produce . . .

We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of
judicial discretion on the part of the issuing magistrate. This is clear from the following
provisions of Section 6, Rule 112 of the Rules of Court.

Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination
conducted by him or by the investigating officer that the offense complained of has been
committed and that there is reasonable ground to believe that the accused has committed it,
he must issue a warrant or order for his arrest.

Under this section, the judge must satisfy himself of the existence of probable cause before
issuing a warrant or order of arrest. If on the face of the information the judge finds no
probable cause, he may disregard the fiscal's certification and require the submission of the
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable
cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98
Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned
orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the
prosecution witnesses and other evidence which, as a matter of long-standing practice had
been attached to the information filed in his sala, respondent found the informations
inadequate bases for the determination of probable cause. For as the ensuing events would
show, after petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987
Constitution. We stated:

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose
 shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as
may be authorized by law", has apparently convinced petitioner Beltran that the Constitution
now requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine
and procedures, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examinations and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990),
reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge . . ." (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 for the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The preliminary investigation
proper whether or not there is reasonable ground to believe that the accused is guilty of
 the offense charged and, therefore, whether or not he should be subjected to the expense,
rigors and embarrassment of trial is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in
them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964,
(See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in
Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from
them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985,
(Promulgated on November 11, 1984) which deleted all provisions granting that
power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals,
143 SCRA 228, and to stress as well certain other basic propositions, namely: (1)
that the conduct of a preliminary investigation is "not a judicial function . . . (but) part
of the prosecution's job, a function of the executive," (2) that whenever "there are
enough his or prosecutors to conduct preliminary investigations, courts are
counseled to leave this job which is essentially executive to them," and the fact "that
a certain power is granted does not necessary mean that it should be indiscriminately
exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective
on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin
Today of October 29, 1988) did not restore that authority to Judges of Regional Trial
Courts; said amendments did not in fact deal at all with the officers or courts having
authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the
power to make a preliminary examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of arrest (or search
warrant). Such a power indeed, it is as much a duty as it is a power has been
and remains vested in every judge by the provisions in the Bill of Rights in the 1935,
the 1973 and the present [1987] Constitutions securing the people against
unreasonable searches and seizures, thereby placing it beyond the competence of
mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear
while an RTC Judge may no longer conduct preliminary investigations to ascertain
whether there is sufficient ground for the filing of a criminal complaint or information,
he retains the authority, when such a pleading is filed with his court, to determine
whether there is probable cause justifying the issuance of a warrant of arrest. It might
be added that this distinction accords, rather than conflicts, with the rationale of Salta
because both law and rule, in restricting to judges the authority to order arrest,
recognize the function to be judicial in nature.

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
prosecution's job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990)
there is a statement that the judge may rely on the resolution of 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. We, however, also reiterated that
". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy
itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2,
Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the
Judge and he relies on the certification or resolution because the records of the investigation sustain
the recommendation. The warrant issues not on the strength of the certification standing alone but
because of the records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are
still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are
sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore,
restate the rule in greater detail and hopefully clearer terms.

There is no problem with search warrants which are relatively fewer and far between and where
there is no duplication of work between the Judge and the Prosecutor. The problem lies with
warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally
question each complainant and witness or go over the records of the Prosecutor's investigation page
by page and word for word before he acts on each of a big pile of applications for arrest warrants on
his desk, he or she may have no more time for his or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ".
. . probable cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of
the investigation are in Masbate, he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and
reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the
warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his
own personal determination regarding the existence of a probable cause for the issuance of a
warrant of arrest as mandated by the Constitution. He could not possibly have known what
transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge
denied the petitioners' motion for the transmittal of the records on the ground that the mere
certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient
for him to issue a warrant of arrest.

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine
the complainant and his witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the
1wphi1

Judge's examination should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as
the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case
so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent
Judge documents of recantation of witnesses whose testimonies were used to establish a prima
facie case against them. Although, the general rule is that recantations are not given much weight in
the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al.
G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the
respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over
the records of the preliminary examination conducted earlier in the light of the evidence now
presented by the concerned witnesses in view of the "political undertones" prevailing in the cases.
Even the Solicitor General recognized the significance of the recantations of some witnesses when
he recommends a reinvestigation of the cases, to wit:

It must be pointed out, however, that among the documents attached to this Petition are
affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and
an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato
and Romeo Sanano. It was precisely on the strength of these earlier written statements of
these witnesses that the Municipal Trial Court of Masbate found the existence of a prima
facie case against petitioners and accordingly recommended the filing of a Criminal
Information. Evidently, the same written statements were also the very basis of the "Fiscal's
Certification", since the attached affidavits of recantation were not yet then available. Since
the credibility of the prosecution witnesses is now assailed and put in issue and, since the
petitioners have not yet been arraigned, it would be to the broader interest of justice and fair
play if a reinvestigation of this case be had to secure the petitioners against hasty
prosecution and to protect them from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the State from useless and
expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos.
94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from
relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends
on the circumstances of each case and is subject to the Judge's sound discretion. However, the
Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated July 5, 1990 without having before him any other
basis for his personal determination of the existence of a probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent
Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared
NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory
Injunction issued in the instant Petitions are made PERMANENT.

SO ORDERED.
 NATALIO P. AMARGA, provincial fiscal of Sulu, Petitioner, vs. HONORABLE
MACAPANTON ABBAS, as Judge, of the Court of First Instance of
Sulu, Respondent.

DECISION
PARAS, C.J.:
The Petitioner, the Provincial Fiscal of Sulu, filed in the Court of First Instance of Sulu
an information for murder (criminal case No. 1131, People of the Philippines vs.
Madpirol, Awadi, Rajah, Sali, Insa and Maharajah Bapayani). At the foot of the
information the Petitioner certified under oath that he has conducted the
necessary preliminary investigation pursuant to the provisions of Republic Act No.
732. As the only supporting affidavit was that of Iman Hadji Rohmund Jubair, to the
effect that the latter was told that the deceased was shot and killed by three
persons named: Hajirul Appang, Rajah Appang and Awadi Bagali, and
chanroblesvirt uallawlibrary

the Petitioner had failed or refused to present other evidence sufficient to make out
a prima facie case, theRespondent judge issued an order the dispositive part of
which reads as follows: In view of the foregoing considerations, and considering
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that the only affidavit supporting the information does not make out a prima facie
case, this case is hereby ordered dismissed without prejudice to reinstatement
should the provincial fiscal support his information with record of his investigation
which in the opinion of the court may support a prima facie case.
Whereupon the Petitioner instituted in this court the present petition for certiorari
and mandamus, wherein it is contended that, as he had already conducted a
preliminary investigation, it became the ministerial function of
the Respondent judge to issue the corresponding warrant of arrest upon the filing of
the information in criminal case No. 1131.
Upon the other hand, the Respondent judge argues that the issuance of a warrant of
arrest involves a judicial power which necessarily imposes upon him the legal duty
of first satisfying himself that there is probable cause, independently of and
notwithstanding the preliminary investigation made by the provincial fiscal under
Republic Act No. 732; and to that end he may require the fiscal to submit such
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evidence as may be sufficient to show at least a prima facie case.

Section 1, paragraph 3, of Article III of the Constitution provides that no warrant
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce. As was said in the case of U.S. vs. Ocampo, 18 Phil., 1, 41-42, The
question whether probable cause exists or not must depend upon the judgment
and discretion of the judge or magistrate issuing the warrant. It does not mean that
particular facts must exist in each particular case. It simply means that sufficient
facts must be presented to the judge or magistrate issuing the warrant to convince
him, not that the particular person has committed the crime, but that there is
probable cause for believing that the person whose arrest is sought committed the
crime charged. No rule can be laid down which will govern the discretion of the
court in this matter. If he decides, upon the proof presented, that probable cause
exists, no objection can be made upon constitutional grounds against the issuance
of the warrant. His conclusion as to whether probable cause existed or not is final
and conclusive. If he is satisfied that probable cause exists from the facts stated in
the complaint, made upon the investigation by the prosecuting attorney, then his
conclusion is sufficient upon which to issue the warrant for arrest. He may, however,
if he is not satisfied, call such witnesses as he may deem necessary before issuing
the warrant. The issuance of the warrant of arrest is prima facie evidence that, in
his judgment at least, there existed probable cause for believing that the person
against whom the warrant is issued is guilty of the crime charged. There is no law
which prohibits him from reaching the conclusion that probable cause exists from
the statement of the prosecuting attorney alone, or any other person whose
statement or affidavit is entitled to credit in the opinion of the judge or magistrate.
The preliminary investigation conducted by the Petitioner under Republic Act No.
732 which formed the basis for the filing in the Court of First Instance of Sulu of
criminal case No. 1131 does not, as correctly contended by the Respondent judge,
dispense with the latters duty to exercise his judicial power of determining, before
issuing the corresponding warrant of arrest, whether or not probable cause exists
therefor. The Constitution vests such power in the Respondent judge who, however,
may rely on the facts stated in the information filed after preliminary investigation
by the prosecuting attorney.
While the Respondent Judge was within his right in requiring the Petitioner to submit
further evidence so as to show probable cause for the issuance of a warrant of
arrest, he exceeded his jurisdiction in dismissing the case which was filed with the
Court of First Instance of Sulu not merely for purposes of preliminary investigation.
In other words, the failure or refusal of thePetitioner to present further evidence,
although good as a ground for the Respondent Judge not to issue a warrant of
arrest, is not a legal cause for dismissal.
Wherefore, the petition is granted and the Respondent Judge ordered to proceed
with criminal case No. 1131 in accordance with law, it being understood that, if
within ten days after notice by the Respondent Judge, the Petitioner still fails or
refuses to present other necessary evidence, the dismissal will stand for lack of
prosecution. Without costs.