Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68955 September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del
Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendantappellant Ruben Burgos y Tito of The crime of Illegal Possession of
Firearms in Furtherance of Subversion. The dispositive portion of the
decision reads:
WHEREFORE, finding the guilt of accused Ruben Burgos
sufficiently established beyond reasonable doubt, of the offense
charges , pursuant to Presidential Decree No. 9, in relation to
General Order No. 6, dated September 22, 1972, and General
Order No. 7, dated September 23, 1972, in relation further to
Presidential Decree No. 885, and considering that the firearm
subject of this case was not used in the circumstances as
embraced in paragraph I thereof, applying the provision of
indeterminate sentence law, accused Ruben Burgos is hereby
sentenced to suffer an imprisonment of twenty (20) years of
reclusion temporal maximum, as minimum penalty, to reclusion
perpetua, as maximum penalty, pursuant to sub-paragraph B,
of Presidential Decree No. 9, as aforementioned, with
accessory penalties, as provided for by law.
As a result of this judgment, the subject firearm involved in this
case (Homemade revolver, caliber .38, Smith and Wesson, with
Serial No. 8.69221) is hereby ordered confiscated in favor of
the government, to be disposed of in accordance with law.

Likewise, the subversive documents, leaflets and/or

propaganda seized are ordered disposed of in accordance with
law.
The information charged the defendant-appellant with the crime of illegal
possession of firearm in furtherance of subversion in an information which
reads as follows:
That in the afternoon of May 13, 1982 and thereabout at
Tiguman, Digos, Davao del Sur, Philippines, within the
jurisdiction of this Court, the above- named accused with intent
to possess and without the necessary license, permit or
authority issued by the proper government agencies, did then
and there wilfully, unlawfully and feloniously keep, possess,
carry and have in his possession, control and custody one (1)
homemade revolver, caliber .38, make Smith and Wesson, with
Serial No. 8.69221, which firearm was issued to and used by
the accused at Tiguman, Digos, Davao del Sur, his area of
operations by one Alias Commander Pol for the New People's
Army (NPA), a subversive organization organized for the
purpose of overthrowing the Government of the Republic of the
Philippines through lawless and violent means, of which the
accused had knowledge, and which firearm was used by the
accused in the performance of his subversive tasks such as the
recruitment of New Members to the NPA and collection of
contributions from the members.
CONTRARY TO LAW.
The evidence for the prosecution is summarized in the decision of the lower
court as follows:
xxx xxx xxx
. . . Through the testimony of Pat. Pepito Bioco, and Sgt.
Romeo Taroy, it appears that by virtue of an intelligent
information obtained by the Constabulary and INP units,
stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar
Masamlok personally and voluntarily surre0ndered to the
authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur
Constabulary Headquarters, stating that he was forcibly

recruited by accused Ruben Burgos as member of the NPA,

threatening him with the use of firearm against his life, if he
refused.
Along with his recruitment, accused was asked to contribute
one (1) chopa of rice and one peso (P1.00) per month, as his
contribution to the NPA TSN, page 5, Hearing-October 14,
1982).
Immediately, upon receipt of said information, a joint team of
PC-INP units, composed of fifteen (15) members, headed by
Captain Melchesideck Bargio, (PC), on the following day, May
13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest
accused Ruben Burgos. The team left the headquarter at 1:30
P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM
where through the help of Pedro Burgos, brother of accused,
the team was able to locate accused, who was plowing his field.
(TSN, pages 6-7, Hearing-October 14, 1982).
Right in the house of accused, the latter was caned by the team
and Pat. Bioco asked accused about his firearm, as reported by
Cesar Masamlok. At first accused denied possession of said
firearm but later, upon question profounded by Sgt. Alejandro
Buncalan with the wife of the accused, the latter pointed to a
place below their house where a gun was buried in the ground.
(TSN, page 8, Hearing-October 14, 1982).
Pat. Bioco then verified the place pointed by accused's wife and
dug the grounds, after which he recovered the firearm, Caliber
.38 revolver, marked as Exhibit "A" for the prosecution.
After the recovery of the firearm, accused likewise pointed to
the team, subversive documents which he allegedly kept in a
stock pile of qqqcogon at a distance of three (3) meters apart
from his house. Then Sgt. Taroy accordingly verified beneath
said cogon grass and likewise recovered documents consisting
of notebook colored maroon with spiral bound, Exhibit "B" for
the prosecution; a pamphlet consisting of eight (8) leaves,
including the front and back covers entitled Ang Bayan,
Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan

ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated

December 31, 1980, marked as Exhibit "C", and another
pamphlet Asdang Pamantalaang Masa sa Habagatang
Mindanao, March and April 1981 issue, consisting of ten (10)
pages, marked as Exhibit "D" for the prosecution.
Accused, when confronted with the firearm Exhibit "A", after its
recovery, readily admitted the same as issued to him by Nestor
Jimenez, otherwise known as a certain Alias Pedipol, allegedly
team leader of the sparrow unit of New People's Army,
responsible in the liquidation of target personalities, opposed to
NPA Ideological movement, an example was the killing of the
late Mayor Llanos and Barangay Captain of Tienda Aplaya
Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October
14,1982).
To prove accused's subversive activities, Cesar Masamlok, a
former NPA convert was presented, who declared that on
March 7, 1972, in his former residence at Tiguman Digos,
Davao del Sur, accused Ruben Burgos, accompanied by his
companions Landrino Burgos, Oscar Gomez and Antonio
Burgos, went to his house at about 5:00 o'clock P.M. and called
him downstair. Thereupon, accused told Masamlok, their
purpose was to ask rice and one (1) peso from him, as his
contribution to their companions, the NPA of which he is now a
member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).
Accused and his companions told Masamlok, he has to join
their group otherwise, he and his family will be killed. He was
also warned not to reveal anything with the government
authorities. Because of the threat to his life and family, Cesar
Masamlok joined the group. Accused then told him, he should
attend a seminar scheduled on April 19, 1982. Along with this
invitation, accused pulled gut from his waistline a .38 caliber
revolver which Masamlok really saw, being only about two (2)
meters away from accused, which make him easily Identified
said firearm, as that marked as Exhibit "A" for the prosecution.
(TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok,

accompanied by his father, Matuguil Masamlok, Isabel Ilan and
Ayok Ides went to the house of accused and attended the
seminar, Those present in the seminar were: accused Ruben
Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias
Pedipol and one alias Jamper.
The first speaker was accused Ruben Burgos, who said very
distinctly that he is an NPA together with his companions, to
assure the unity of the civilian. That he encouraged the group to
overthrow the government, emphasizing that those who
attended the seminar were already members of the NPA, and if
they reveal to the authorities, they will be killed.
Accused, while talking, showed to the audience pamphlets and
documents, then finally shouted, the NPA will be victorious.
Masamlok likewise Identified the pamphlets as those marked as
Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages
75, 76 and 77, Hearing-January 4, 1983)
Other speakers in said meeting were Pedipol, Jamper and
Oscar Gomez, who likewise expounded their own opinions
about the NPA. It was also announced in said seminar that a
certain Tonio Burgos, will be responsible for the collection of
the contribution from the members. (TSN, pages 78-79,
Hearing- January 4, 1983)
On May 12, 1982, however, Cesar Masamlok surrendered to
Captain Bargio of the Provincial Headquarters of the Philippine
Constabulary, Digos, Davao del Sur.
Assistant Provincial Fiscal Panfilo Lovitos was presented t
prove that on May 19, 1982, he administered the subscription of
th extra-judicial confession of accused Ruben Burgos, marked
as Exhibit "E " for the prosecution, consisting of five (5) pages.
Appearing voluntarily in said office, for the subscription of his
confession, Fiscal Lovitos, realizing that accused was not
represented by counsel, requested the services of Atty. Anyog,
whose office is adjacent to the Fiscal's Office, to assist accused
in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession

from English to Visayan language, resulting to the deletion of
question No. 19 of the document, by an inserted certification of
Atty. Anyog and signature of accused, indicating his having
understood, the allegations of his extra-judicial statement.
Fiscal Lovitos, before accused signed his statement, explained
to him his constitutional rights to remain silent, right to counsel
and right to answer any question propounded or not.
With the aid of Atty. Anyog, accused signed his confession in
the presence of Atty. Anyog and Fiscal Lovitos, without the
presence of military authorities, who escorted the accused, but
were sent outside the cubicle of Fiscal Lovitos while waiting for
the accused. (TSN, pages 36-40, nearing November 15, 1982)
Finally, in order to prove illegal possession by accused of the
subject firearm, Sgt. Epifanio Comabig in-charge of firearms
and explosives, NCO Headquarter, Philippine Constabulary,
Digos, Davao del Sur, was presented and testified, that among
the lists of firearm holders in Davao del Sur, nothing was listed
in the name of accused Ruben Burgos, neither was his name
included among the lists of persons who applied for the
licensing of the firearm under Presidential Decree No. 1745.
After the above-testimony the prosecution formally closed its
case and offered its exhibits, which were all admitted in
evidence, despite objection interposed by counsel for accused,
which was accordingly overruled.
On the other hand, the defendant-appellant's version of the case against
him is stated in the decision as follows:
From his farm, the military personnel, whom he said he cannot
recognize, brought him to the PC Barracks at Digos, Davao del
Sur, and arrived there at about 3:00 o'clock, on the same date.
At about 8:00 o'clock P.M., in the evening, he was investigated
by soldiers, whom he cannot Identify because they were
wearing a civilian attire. (TSN, page 14 1, Hearing-June 15,
1983)

The investigation was conducted in the PC barracks, where he

was detained with respect to the subject firearm, which the
investigator, wished him to admit but accused denied its
ownership. Because of his refusal accused was mauled, hitting
him on the left and right side of his body which rendered him
unconscious. Accused in an atmosphere of tersed solemnity,
crying and with emotional attachment, described in detail how
he was tortured and the ordeals he was subjected.
He said, after recovery of his consciousness, he was again
confronted with subject firearm, Exhibit "A", for him to admit and
when he repeatedly refused to accept as his own firearm, he
was subjected to further prolong (sic) torture and physical
agony. Accused said, his eyes were covered with wet black
cloth with pungent effect on his eyes. He was undressed, with
only blindfold, pungent water poured in his body and over his
private parts, making his entire body, particularly his penis and
testicle, terribly irritating with pungent pain.
All along, he was investigated to obtain his admission, The
process of beating, mauling, pain and/or ordeal was repeatedly
done in similar cycle, from May 13 and 14, 1982. intercepted
only whenever he fell unconscious and again repeated after
recovery of his senses,
Finally on May 15, 1982, after undergoing the same torture and
physical ordeal he was seriously warned, if he will still
adamantly refuse to accept ownership of the subject firearm, he
will be salvaged, and no longer able to bear any further the pain
and agony, accused admitted ownership of subject firearm.
After his admission, the mauling and torture stopped, but
accused was made to sign his affidavit marked as Exhibit "E"
for the prosecution, consisting of five (5) pages, including the
certification of the administering officer, (TSN, pages 141-148,
Hearing-June 15, 1983)
In addition to how he described the torture inflicted on him,
accused, by way of explanation and commentary in details, and
going one by one, the allegations and/or contents of his alleged

extrajudicial statement, attributed his answers to those

questions involuntarily made only because of fear, threat and
intimidation of his person and family, as a result of unbearable
excruciating pain he was subjected by an investigator, who,
unfortunately he cannot Identify and was able to obtain his
admission of the subject firearm, by force and violence exerted
over his person.
To support denial of accused of being involved in any
subversive activities, and also to support his denial to the truth
of his alleged extra-judicial confession, particularly questions
Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs
answers to those questions, involving Honorata Arellano ahas
Inday Arellano, said Honorata Arellano appeared and declared
categorically, that the above-questions embraced in the
numbers allegedly stated in the extrajudicial confession of
accused, involving her to such NPA personalities, as Jamper,
Pol, Anthony, etc., were not true because on the date referred
on April 28, 1982, none of the persons mentioned came to her
house for treatment, neither did she meet the accused nor able
to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)
She, however, admitted being familiar with one Oscar Gomez,
and that she was personally charged with subversion in the
Office of the Provincial Commander, Philippine Constabulary,
Digos, Davao del Sur, but said charge was dismissed without
reaching the Court. She likewise stated that her son, Rogelio
Arellano, was likewise charged for subversion filed in the
Municipal Trial Court of Digos, Davao del Sur, but was likewise
dismissed for lack of sufficient evidence to sustain his
conviction. (TSN, pages 121-122, in relation to her crossexamination, Hearing-May 18, 1983)
To support accused's denial of the charge against him,
Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador
qqqGalaraga was presented, who declared, he was not
personally aware of any subversive activities of accused, being
his neighbor and member of his barrio. On the contrary, he can
personally attest to his good character and reputation, as a law

abiding citizen of his barrio, being a carpenter and farmer

thereat. (TSl pages 128-129, Hearing-May 18, 1983)
He however, admitted in cross-examination, that there were a
lot of arrests made by the authorities in his barrio involving
subversive activities but they were released and were not
formally charged in Court because they publicly took their oath
of allegiance with the government. (TSN, pages 133-134, in
relation to page 136, Hearing-May 18, 1983)
Finally, to support accused's denial of the subject firearm, his
wife, Urbana Burgos, was presented and who testified that the
subject firearm was left in their house by Cesar Masamlok and
one Pedipol on May 10, 1982. It was night time, when the two
left the gun, alleging that it was not in order, and that they will
leave it behind, temporarily for them to claim it later. They were
the ones who buried it. She said, her husband, the accused,
was not in their house at that time and that she did not inform
him about said firearm neither did she report the matter to the
authorities, for fear of the life of her husband. (TSN, page 24,
November 22, 1983)
On cross-examination, she said, even if Masamlok during the
recovery of the firearm, was wearing a mask, she can still
Identify him. (TSN, page 6, Hearing-November 22, 1983)
After the above-testimony, accused through counsel formally
rested his case in support of accused's through counsel
manifestation for the demurrer to evidence of the prosecution,
or in the alternative for violation merely of simple illegal
possession of firearm, 'under the Revised Administrative Code,
as amended by Republic Act No. 4, reflected in the
manifestation of counsel for accused. (TSN, pages 113-114,
Hearing-May 18, 1983)
Accused-appellant Ruben Burgos now raises the following assignments of
error, to wit:
I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE
ARREST OF ACCUSED-APPELLANT WITHOUT VALID
WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN

THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM
WITHOUT VALID WARRANT TO BE LAWFUL.
III THE TRIAL COURT ERRED IN HOLDING ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT FOR
VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL
ORDERS NOS. 6 AND 7
Was the arrest of Ruben Burgos lawful? Were the search of his house and
the subsequent confiscation of a firearm and documents allegedly found
therein conducted in a lawful and valid manner? Does the evidence
sustaining the crime charged meet the test of proving guilt beyond
reasonable doubt?
The records of the case disclose that when the police authorities went to
the house of Ruben Burgos for the purpose of arresting him upon
information given by Cesar Masamlok that the accused allegedly recruited
him to join the New People's Army (NPA), they did not have any warrant of
arrest or search warrant with them (TSN, p. 25, October 14, 1982; and
TSN, p. 61, November 15, 1982).
Article IV, Section 3 of the Constitution provides:
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 not be
violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or
such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing
the place to be searched, and the persons or things to be
seized.
The constitutional provision is a safeguard against wanton and
unreasonable invasion of the privacy and liberty of a citizen as to his
person, papers and effects. This Court explained in Villanueva vs.
Querubin (48 SCRA 345) why this right is so important:

It is deference to one's personality that lies at the core of this

right, but it could be also looked upon as a recognition of a
constitutionally protected area, primarily one's home, but not
necessarily thereto confined. (Cf. Hoffa v. United States, 385
US 293 [19661) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In
that haven of refuge, his individuality can assert itself not only in
the choice of who shall be welcome but likewise in the kind of
objects he wants around him. There the state, however
powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation,
his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to
refrain from any invasion of his dwelling and to respect the
privacies of his life, (Cf. Schmerber v. California, 384 US 757
[1966], Brennan, J. and Boyd v. United States, 116 US 616,
630 [1886]). In the same vein, Landynski in his authoritative
work (Search and Seizure and the Supreme Court [1966], could
fitly characterize this constitutional right as the embodiment of a
'spiritual concept: the belief that to value the privacy of home
and person and to afford its constitutional protection against the
long reach of government is no legs than to value human
dignity, and that his privacy must not be disturbed except in
case of overriding social need, and then only under stringent
procedural safeguards.' (Ibid, p. 47).
The trial court justified the arrest of the accused-appelant without any
warrant as falling under one of the instances when arrests may be validly
made without a warrant. Rule 113, Section 6 * of the Rules of Court,
provides the exceptions as follows:
a) When the person to be arrested has committed, is actually committing,
or is about to commit an offense in his presence;
b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;
c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or

temporarily confined while his case is pending or has escaped while being
transferred from one confinement to another.
The Court stated that even if there was no warrant for the arrest of Burgos,
the fact that "the authorities received an urgent report of accused's
involvement in subversive activities from a reliable source (report of Cesar
Masamlok) the circumstances of his arrest, even without judicial warrant, is
lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court
and applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and seizure of the firearm and
the alleged subversive documents would become an incident to a lawful
arrest as provided by Rule 126, Section 12, which states:
A person charged with an offense may be searched for
dangerous weapons or anything which may be used as proof of
the commission of the offense.
The conclusions reached by the trial court are erroneous.
Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be committed
in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge
was possessed by the arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The location of the firearm was
given by the appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any
firearm or subversive document. Neither was he committing any act which
could be described as subversive. He was, in fact, plowing his field at the
time of the arrest.
The right of a person to be secure against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental
one. The statute or rule which allows exceptions to the requirement of
warrants of arrest is strictly construed. Any exception must clearly fall within
the situations when securing a warrant would be absurd or is manifestly
unnecessary as provided by the Rule. We cannot liberally construe the rule

on arrests without warrant or extend its application beyond the cases

specifically provided by law. To do so would infringe upon personal liberty
and set back a basic right so often violated and so deserving of full
protection.
The Solicitor General is of the persuasion that the arrest may still be
considered lawful under Section 6(b) using the test of reasonableness. He
submits that. the information given by Cesar Masamlok was sufficient to
induce a reasonable ground that a crime has been committed and that the
accused is probably guilty thereof.
In arrests without a warrant under Section 6(b), however, it is not enough
that there is reasonable ground to believe that the person to be arrested
has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed.
The test of reasonable ground applies only to the identity of the perpetrator.
In this case, the accused was arrested on the sole basis of Masamlok's
verbal report. Masamlok led the authorities to suspect that the accused had
committed a crime. They were still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the subject firearm on the basis of
information from the lips of a frightened wife cannot make the arrest lawful,
If an arrest without warrant is unlawful at the moment it is made, generally
nothing that happened or is discovered afterwards can make it lawful. The
fruit of a poisoned tree is necessarily also tainted.
More important, we find no compelling reason for the haste with which the
arresting officers sought to arrest the accused. We fail to see why they
failed to first go through the process of obtaining a warrant of arrest, if
indeed they had reasonable ground to believe that the accused had truly
committed a crime. There is no showing that there was a real apprehension
that the accused was on the verge of flight or escape. Likewise, there is no
showing that the whereabouts of the accused were unknown,
The basis for the action taken by the arresting officer was the verbal report
made by Masamlok who was not required to subscribe his allegations
under oath. There was no compulsion for him to state truthfully his charges
under pain of criminal prosecution. (TSN, p. 24, October 14, 1982).

Consequently, the need to go through the process of securing a search

warrant and a warrant of arrest becomes even more clear. The arrest of the
accused while he was plowing his field is illegal. The arrest being unlawful,
the search and seizure which transpired afterwards could not likewise be
deemed legal as being mere incidents to a valid arrest.
Neither can it be presumed that there was a waiver, or that consent was
given by the accused to be searched simply because he failed to object. To
constitute a waiver, it must appear first that the right exists; secondly, that
the person involved had knowledge, actual or constructive, of the existence
of such a right; and lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact
that the accused failed to object to the entry into his house does not
amount to a permission to make a search therein (Magoncia v. Palacio, 80
Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de
Garcia V. Locsin (supra)
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen
in the position of either contesting an officer's authority by force,
or waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or
an invitation thereto, but is merely a demonstration of regard for
the supremacy of the law. (56 C.J., pp. 1180, 1181).
We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional rights and that we
do not presume acquiescence in the loss of fundamental rights." (Johnson
v. Zerbst 304 U.S. 458).
That the accused-appellant was not apprised of any of his constitutional
rights at the time of his arrest is evident from the records:
A CALAMBA:
Q When you went to the area to arrest Ruben
Burgos, you were not armed with an arrest warrant?
A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.
Q As a matter of fact, Burgos was not present in his
house when you went there?
A But he was twenty meters away from his house.
Q Ruben Burgos was then plowing his field?
A Yes Sir.
Q When you called for Ruben Burgos you
interviewed him?
A Yes Sir.
Q And that you told him that Masamlok implicated
him?
A No Sir.
Q What did you tell him?
A That we received information that you have a
firearm, you surrender that firearm, first he denied
but when Sgt. Buncalan interviewed his wife, his
wife told him that it is buried, I dug the firearm which
was wrapped with a cellophane.
Q In your interview of Burgos you did not remind
him of his rights under the constitution considering
that he was purposely under arrest?
A I did not.
Q As a matter of fact, he denied that he has ever a
gun?
A Yes Sir.

Q As a matter of fact, the gun was not in his

possession?
A It was buried down in his horse.
Q As a matter of fact, Burgos did not point to where
it was buried?
A Yes Sir.
(TSN, pp. 25-26, Hearing-October 14, 1982)
Considering that the questioned firearm and the alleged subversive
documents were obtained in violation of the accused's constitutional rights
against unreasonable searches and seizures, it follows that they are
inadmissible as evidence.
There is another aspect of this case.
In proving ownership of the questioned firearm and alleged subversive
documents, the prosecution presented the two arresting officers who
testified that the accused readily admitted ownership of the gun after qqqs
wife pointed to the place where it was buried. The officers stated that it was
the accused himself who voluntarily pointed to the place where the alleged
subversive documents were hidden.
Assuming this to be true, it should be recalled that the accused was never
informed of his constitutional rights at the time of his arrest. So that when
the accused allegedly admitted ownership of the gun and pointed to the
location of the subversive documents after questioning, the admissions
were obtained in violation of the constitutional right against selfincrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides:
No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and
to be informed of such right.. . .
The Constitution itself mandates that any evidence obtained in violation of
this right is inadmissible in evidence. Consequently, the testimonies of the

arresting officers as to the admissions made by the appellant cannot be

used against him.
The trial court validly rejected the extra-judicial confession of the accused
as inadmissible in evidence. The court stated that the appellant's having
been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure
to present the investigator who conducted the investigation gives rise to the
"provocative presumption" that indeed torture and physical violence may
have been committed as stated.
The accused-appellant was not accorded his constitutional right to be
assisted by counsel during the custodial interrogation. The lower court
correctly pointed out that the securing of counsel, Atty. Anyog, to help the
accused when he subscribed under oath to his statement at the Fiscal's
Office was too late. It could have no palliative effect. It cannot cure the
absence of counsel at the time of the custodial investigation when the
extrajudicial statement was being taken.
With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the
only remaining proof to sustain the charge of Illegal Possession of Firearm
in Furtherance of Subversion is the testimony of Cesar Masamlok.
We find the testimony of Masamlok inadequate to convict Burgos beyond
reasonable doubt. It is true that the trial court found Masamlok's testimony
credible and convincing. However, we are not necessarily bound by the
credibility which the trial court attaches to a particular witness. As stated
in People vs.. Cabrera (100 SCRA 424):
xxx xxx xxx
. . .Time and again we have stated that when it comes to
question of credibility the findings of the trial court are entitled to
great respect upon appeal for the obvious reason th+at it was
able to observe the demeanor, actuations and deportment of
the witnesses during the trial. But we have also said that this
rule is not absolute for otherwise there would be no reversals of
convictions upon appeal. We must reject the findings of the trial
court where the record discloses circumstances of weight and

substance which were not properly appreciated by the trial

court.
The situation under which Cesar Masamlok testified is analogous to that
found in People vs. Capadocia (17 SCRA 98 1):
. . . The case against appellant is built on Ternura's testimony,
and the issue hinges on how much credence can be accorded
to him. The first consideration is that said testimony stands
uncorroborated. Ternura was the only witness who testified on
the mimeographing incident. . . .
xxx xxx xxx
. . .He was a confessed Huk under detention at the time. He
knew his fate depended upon how much he cooperated with
the authorities, who were then engaged in a vigorous antidissident campaign. As in the case of Rodrigo de Jesus, whose
testimony We discounted for the same reason, that of Ternura
cannot be considered as proceeding from a totally unbiased
source. . . .
In the instant case, Masamlok's testimony was totally uncorroborated.
Considering that Masamlok surrendered to the military certainly his fate
depended on how eagerly he cooperated with the authorities. Otherwise,
he would also be charged with subversion. The trade-off appears to be his
membership in the Civil Home Defense Force. (TSN, p. 83, January 4,
1983). Masamlok may be considered as an interested witness. It can not
be said that his testimony is free from the opportunity and temptation to be
exaggerated and even fabricated for it was intended to secure his freedom.
Despite the fact that there were other persons present during the alleged
NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok,
Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have
corroborated Cesar Masamlok's testimony that the accused used the gun
in furtherance of subversive activities or actually engaged in subversive
acts, the prosecution never presented any other witness.
This Court is, therefore, constrained to rule that the evidence presented by
the prosecution is insufficient to prove the guilt of the accused beyond
reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People
v. Dramayo (42 SCRA 59), where after stressing that
accusation is not, according to the fundamental law,
synonymous with guilt, it was made clear: 'Only if the judge
below and the appellate tribunal could arrive at a conclusion
that the crime had been committed precisely by the person on
trial under such an exacting test should the sentence be one of
conviction. It is thus required that every circumstance favoring
his innocence be duly taken into account. The proof against him
must survive the test of reason; the strongest suspicion must
not be permitted to sway judgment. The conscience must be
satisfied that on the defendant could be laid the responsibility
for the offense charged; that not only did he perpetrate the act
but that it amounted to a crime. What is required then is moral
certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People
v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144;
People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA
205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78
SCRA 513; People v. Nazareno, 80 SCRA 484; People vs.
Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and
People vs. Ibanga 124 SCRA 697).
We are aware of the serious problems faced by the military in Davao del
Sur where there appears to be a well-organized plan to overthrow the
Government through armed struggle and replace it with an alien system
based on a foreign ideology. The open defiance against duly constituted
authorities has resulted in unfortunate levels of violence and human
suffering publicized all over the country and abroad. Even as we reiterate
the need for all freedom loving citizens to assist the military authorities in
their legitimate efforts to maintain peace and national security, we must
also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569)
when this Court stated:
While the government should continue to repel the communists,
the subversives, the rebels, and the lawless with an the means
at its command, it should always be remembered that whatever
action is taken must always be within the framework of our
Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier

attitude towards constitutional liberties and protections will only fan the
increase of subversive activities instead of containing and suppressing
them.
WHEREFORE, the judgment of conviction rendered by the trial court is
REVERSED and SET ASIDE. The accused-appellant is hereby
ACQUITTED, on grounds of reasonable doubt, of the crime with which he
has been charged.
The subject firearm involved in this case (homemade revolver, caliber .38,
Smith and Wesson, with Serial No. 8.69221) and the alleged subversive
documents are ordered disposed of in accordance with law.
Cost de oficio.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 74189 May 26, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO ENRILE Y VILLAROMAN and ROGELIO ABUGATAL Y
MARQUEZ, accused-appellants.
The Solicitor General for plaintiff-appellee.
Felix O. Lodero, Jr. for accused-appellant.

CRUZ, J.:
Sentenced to life imprisonment and a fine of P30,000.00 for violation of the
Dangerous Drugs Act, Antonio Enrile faults the Regional Trial Court of
Quezon City for convicting him. 1 His co-accused, Rogelio Abugatal, was
killed in an attempted jailbreak and this appeal is dismissed as to him. 2 We
deal here only with Enrile.
The evidence for the prosecution showed that at about half past six in the
evening of October 25, 1985, a buy-bust team composed of Pat. Jaime
Flores and Pat. Wilson Rances of the Quezon City Police Anti-Narcotics
Unit was dispatched to entrap Rogelio Abugatal at Roosevelt Avenue in
San Francisco Del Monte, Quezon City. The plan was made on the
strength of a tip given by Renato Polines, a police informer, who was
himself to pose as the buyer.3
In their separate testimonies, 4 both policemen said that on the occasion
they saw Polines hand over to Abugatal the marked money representing
payment for the mock transaction. Abugatal left with the money and
returned ten minutes later with a wrapped object which he gave Polines.
The two policemen then approached Abugatal and placed him under arrest,
at the same time confiscating the wrapped object. Subsequent laboratory
examination revealed this to be marijuana with flowering tops weighing 22
grams. 5
The prosecution also showed that, upon providing Abugatal led the
policemen to a house at 20 De Vera Street, also in San Francisco Del
Monte, Quezon City, where he called out for Antonio Enrile. Enrile came
out and met them at the gate. Abugatal pointed to Enrile as the source of
the marijuana, whereupon the policemen immediately arrested and frisked
him. They found in the right front pocket of his trousers the marked money
earlier delivered to Abugatal, with Serial No. PJ966425. 6
At the police headquarters, Abugatal signed a sworn confession affirming
the above narration. 7 Enrile refused to make any statement pending
consultation with a lawyer.
In his defense, Enrile testified that the marked money was "planted" on him
by the police officers, who he said simply barged into his house without a
warrant and arrested him. He stoutly denied any knowledge of the
marijuana. He claimed that at the time of the alleged incident, he was

attending, as a dental technician, to a patient whom he was fitting for

dentures. 8 The supposed patient, Alicia Tiempo, corroborated him. 9
Enrile admitted that he had earlier been convicted of selling marijuana and
that he had a pending application for probation. He suggested that this
could be the reason the policemen sought to implicate him in the new
charge and thus weaken his application. 10
Abugatal contradicted his earlier sworn statement and declared on the
stand that he had not sold any marijuana to Polines. What really happened,
he said, was that two male teenagers approached him that evening and
told him to buy marijuana, giving him P50.00 for the purpose. When he said
he did not have any marijuana and did not know where to buy it, they
forced him to go to Enrile's house and to give him the marked money. He
did so because they had a knife. Enrile handed him a plastic bag which
was later found to contain dried marijuana fruiting tops. 11
Judge Willelmo C. Fortun erred when he gave credence to the sworn
statement of Abugatal, considering that it was made without compliance
with the requisites of a custodial investigation, including the right to the
assistance of counsel. The confession was clearly inadmissible. It did not
follow the ruling of this Court in Morales v. Enrile, 12promulgated on April
26, 1983, as reiterated in People v. Galit, 13 promulgated on March 20,
1985, where Justice Hermogenes Concepcion laid down the correct
procedure, thus:
7. At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and
he must be shown the warrant of arrest, if any. He shall be
informed of his constitutional rights to remain silent and to
counsel, and that any statement he might make could be used
against him. The person arrested shall have the right to
communicate with his lawyer, a relative, or anyone he chooses
by the most expedient means by telephone if possible or
by letter or messenger. It shall be the responsibility of the
arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested, by any
person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. The

right to counsel may be waived but the waiver shall not be valid
unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down, whether
exculpatory, in whole or in part, shall be inadmissible in
evidence.
The challenged decision of the trial court was promulgated on February 14,
1986, long after the above-cited decisions had become effective.
Even under the old doctrine, in fact, it is doubtful if Abugatal's confession
without the assistance of counsel could have been sustained. It was not
enough then to inform the suspect of his constitutional rights. The trial court
had to ascertain for itself that the accused clearly understood the import
and consequences of his confession and had the intelligence and mental
capacity to do so. 14 There is no showing in the record that this was done,
short of the statement in the decision that Abugatal had been informed of
his rights and had validly waived the assistance of counsel.
If the sworn statement of Abugatal was inadmissible against him, much
less was it admissible against Enrile.
The prosecution rejected Abugatal's testimony that he was forced to go to
Enrile's house and buy marijuana from him, insisting instead on the
extrajudicial confession. With that confession outlawed and the testimony
disowned by the prosecution itself, there is no evidence at all against Enrile
to tie him with Abugatal.
It was Abugatal who was allegedly caught red-handed by the policemen as
he sold the marijuana to Polines. Enrile was not even at the scene of the
entrapment at that time. Abugatal said he did lead the policemen to Enrile's
house where he pointed to Enrile as the source of the marijuana. Even
assuming this to be true, that circumstance alone did not justify Enrile's
warrantless arrest and search.
Under Rule 113, Section 5, of the Rules of Court, a peace officer or a
private person may make a warrantless arrest only under any of the
following circumstances :
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;.

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

has personal knowledge of facts indicating that the person to be
arrested has committed it; and.
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
Paragraphs (a) and (b) are clearly inapplicable. Paragraph (b) is also not in
point because the policemen who later arrested Enrile at his house had no
personal knowledge that he was the source of marijuana.
According to the policemen themselves, what happened was that they
asked Abugatal who gave him the marijuana and were told it was Enrile. It
was for this reason that they proceeded to Enrile's house and immediately
arrested him. 15
What the policemen should have done was secure a search warrant on the
basis of the information supplied by Abugatal, and then, with such
authority, proceeded to search and, if the search was fruitful, arrest Enrile.
They had no right to simply force themselves into his house on the bare
(and subsequently disallowed) allegations of Abugatal and bundle Enrile off
to the police station as if he had been caught in flagrante delicto.
The discovery of the marked money on him did not mean he was caught in
the act of selling marijuana. The marked money was not prohibited per se.
Even if it were, that fact alone would not retroactively validate the
warrantless search and seizure.
The principle has been honored through the ages in all liberty-loving
regimes that a man's house is his castle that not even the mighty monarch,
with all its forces, may violate. There were measures available under the
law to enable the authorities to search Enrile's house and to arrest him if he
was found in possession of prohibited articles. The police did not employ
these measures.
What they did was simply intrude into Enrile's house and arrest him without
the slightest heed to the injunctions of the Bill of Rights. By so doing, they
were using the tactics of the police state, where the minions of the

government place little value on human rights and individual liberties and
are obssessed only with the maintenance of peace and punishment of
crime.
These are laudible objectives in any well-ordered society. But it should
never be pursued at the cost of dismantling the intricate apparatus for the
protection of the individual from overzealous law-enforcers who mistakenly
believe that suspected criminals have forfeited the safeguards afforded
them by the Constitution. Law-enforcers are not licensed to themselves
break the law to apprehend and punish law-breakers. Such a practice only
leads to further defiance of the law by those who have been denied its
protection.
In the light of the proven circumstances of this case, the Court is not
convinced that there is enough evidence to establish Enrile's guilt beyond
the shadow of doubt. The paucity of such evidence only strengthens the
suspicion that the marked money was really "planted" on Enrile by the
police officers who were probably worried that their earlier efforts in
securing Enrile's conviction as a drug pusher would be thwarted by his
application for probation.
Whatever their motives, the fact is that Abugatal's sworn statement
implicating Enrile is inadmissible against Enrile, and so is the marked
money allegedly found on him as a result of the illegal search. The only
remaining evidence against the appellant is Abugatal's testimony, but this
has been questioned and discredited by the prosecution itself. Its case
against Enrile is thus left without a leg to stand on and must therefore be
dismissed.
Law-enforcement authorities are admonished that mere enthusiasm in the
discharge of their duties is not enough to build a case against a person
charged with a crime. They should build it with painstaking care, stone by
stone of provable fact, and with constant regard for the rights of the
accused, before they can hope to secure a conviction that can be sustained
in a court of justice.
WHEREFORE, the conviction of Antonio Enrile in the challenged decision
is hereby SET ASIDE and REVERSED. The accused-appellant is
ACQUITTED and shall be released immediately. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 90628 February 1, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE RAYRAY Y AREOLA, accused-appellant.

BELLOSILLO, J.:
After offering to sell 2.9452 grams of marijuana to a stranger in San
Fernando, La Union, who turned out to be the Chief Administrative Officer
of the Regional Integrated National Police (INP) Command stationed in
Baguio City, accused-appellant Jose Rayray y Areola was arrested, tried
and subsequently convicted of violation of Sec. 4, Art. II of R. A. No. 6425.
The antecedents as found by the trial court: At nine forty-five in the morning
of 12 September 1986 P/Lt. Ramon Ancheta was at the Friendly Shop
located at Ortega St., San Fernando, La Union, when accused-appellant
Jose Rayray y Areola approached him offering to sell marijuana. Making
the latter believe that he was interested in buying, Lt. Ancheta asked where
the merchandise was and accused-appellant responded by taking
marijuana wrapped in komiks from his pocket. Catching sight of the
marijuana fruiting tops and marijuana cigarette being offered him, Lt.
Ancheta immediately identified himself as a police officer, arrested
accused-appellant and brought him to the San Fernando Police Station
where he was turned-over to the desk officer, Sgt. Carmelito Leyga, who
entered the details of the arrest in the police blotter.
Accused-appellant denied making the offer to sell and instead testified that
he was at Dodies' Fishing Supply at Ortega Street with his friend Bonifacio
Chan to buy fish hooks when he was suddenly tapped on the shoulder by
somebody who whispered, "Don't try to involve somebody." After being

ordered to undress, he was made to face the stranger who was holding
something wrapped in paper and which he tried to pass off as that of
accused-appellant by saying, "You are selling marijuana." Afterwards,
accused-appellant was forced into a tricycle, brought to the municipal jail
and there incarcerated for no reason.
On 29 August 1989, rejecting the defense of frame-up and invoking the
presumption of regularity in the performance of official duties in favor of the
prosecution, Judge Benito A. Dacanay declared accused-appellant guilty of
the offense charged and sentenced him to suffer life imprisonment and to
pay a fine of P20,000.00. 1
Hence, this recourse to us. But for reasons set forth below, the appeal
should be denied.
Accused-appellant argues that his arrest was illegal because P/Lt. Ancheta
had no authority to arrest persons in San Fernando, La Union, being then
assigned at the Regional INP Command in Baguio City. 2
We cannot yield to appellant's view that just because Lt. Ancheta was
assigned in Baguio City he could not arrest persons caught in the act of
committing a crime in some other place, especially so where he was the
intended victim. A policeman cannot callously set aside his essential duty
of apprehending criminal offenders and of keeping peace and order on the
shallow excuse that he is not in his place of assignment. His responsibility
to protect the public by apprehending violators of the law, especially one
caught in flagrante delicto is not limited by territorial constraints. It follows
him wherever he goes. Moreover, Sec. 5, par. (a), Rule 113, of the Revised
Rules on Criminal Procedure authorities a warrantless arrest, otherwise
called a citizen's arrest, "when, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an
offense." Thus, although officially assigned in Baguio City, Lt. Ancheta's act
of arresting accused-appellant (after the latter offered to sell him marijuana
in San Fernando, La Union) is justified not only by his duty as a law
enforcer but also by Sec. 5 of Rule 113, which authorizes instances of
warrantless or citizens' arrests.
Second, accused-appellant takes exception to the fact that the trial judge
accepted the uncorroborated testimony of P/Lt. Ancheta over his which was
in fact corroborated by two other witnesses.

The argument is without merit. No rule exists which requires that a

testimony has to be corroborated to be adjudged credible. 3 Witnesses are
to be weighed, not numbered, 4 hence, it is not at all uncommon to reach a
conclusion of guilt on the basis of the testimony of a single witness and
despite the lack of corroboration where such testimony is found positive
and credible by the trial court. In such a case, the lone testimony is
sufficient to produce a conviction. 5 For although the number of witnesses
may be considered a factor in the appreciation of evidence, preponderance
is not necessarily with the greatest number 6 and conviction can still be had
on the basis of the credible and positive testimony of a single witness more
so when such testimony proceeds from the positive narration of a police
officer who, in addition, has to his credit the presumption of regularity in the
performance of official duty and obedience to law. 7 Narration of an incident
by prosecution witnesses who are police officers and who are presumed to
have regularly performed their duties is credible. 8
In the case at bench, while details of accused-appellant's offense came
from the lone testimony of P/Lt. Ancheta, that of the defense is admittedly
corroborated by the testimonies of witnesses Gabriel Galvez and Bonifacio
Chan. However, such fact failed to render the version offered by the
defense more credible and believable than that of the prosecution. Apart
from the fact that both Galvez and Chan are not entirely disinterested
witnesses, being a companion in the fishing business 9 and close friend
or barkada of accused-appellant, 10 respectively, a review of their
respective testimonies vis-a-vis that of accused-appellant reveals certain
points which render their corroboration not so reliable, as correctly
concluded by the court a quo.
Accused-appellant testified that in the morning of 12 September 1986 while
packing fish in the house of Junior Galvez (also known as Gabriel Galvez),
he suddenly remembered that somebody from Pangasinan requested him
to buy fish hooks and that was why he asked permission from Galvez to go
to Dodies Fishing Supply at Ortega Street. 11 However, Junior Galvez
testified that it was he himself who asked accused-appellant to buy the fish
hooks and that he did so in the same morning in question. 12 Secondly,
Galvez testified that he was informed about the arrest of accused-appellant
by the latters grandmother, an old woman called Isten (not presented as a
witness). 13 However, Bonifacio Chan claimed that it was from him that
Gabriel Galvez learned of the incident. 14 Third, while Bonifacio Chan
corroborated accused-appellant's defense by claiming to have witnessed

the alleged frame-up, it is curious to note that Chan did not even lift a finger
to help accused-appellant (his supposed close friend) while the latter was
allegedly being ordered to undress and forced into a vehicle by an
"unknown man" in civilian clothes for no apparent reason. Instead, Chan
appeared unaffecfed by his friend's fate for he just went home after the
incident 15 and did nothing except to inform Galvez (who even denied that
he learned about the incident from Chan) about the arrest, who in the same
manner, likewise did nothing by way of succor. 16 If the story about the
alleged frame-up is true, a friend as Chan claims himself to be would do
everything in his power to assist his friend and not abandon him as Chan
practically did. It even appears from the records that Bonifacio Chan initially
refused to testify for the defense (by refusing to receive the subpoena
being served on him) and denied any knowledge about the incident, nay,
even his close association with accused-appellant. 17
Third, accused-appellant argues that there was misappreciation of
evidence since the judge who decided the case was not the one who
conducted the trial. 18
Again, we cannot ascribe any merit to the argument since it is now well
recognized that the fact that the judge who heard the evidence is not
himself the one who prepared, signed and promulgated the decision, but
some other judge in his place, constitutes no compelling reason to jettison
his findings and conclusions 19 and does not per serender it
erroneous. 20 The trial judge's assessment of the credibility of a testimony is
not to be anchored solely on how the witness conducted himself on the
witness stand. Aside from the danger of being misled by appearance
inherent in such a case, a judge is supposed to render a decision on the
basis of the evidence before him, i.e., records and all. Although an
undeniable tool in arriving at the correct decision, the failure of the trial
judge to observe the witnesses testify on the stand in no way affects the
validity of the judgment rendered or ipso facto condemns it as erroneous
more so where the judgment appears to be fully supported by the evidence
on record as in the case at bench.
Finally, with respect to accused-appellant's contention that his
constitutional rights were violated during the custodial investigation
conducted by the San Fernando Police, we can only say that although he
was admittedly not informed of his constitutional rights, much less assisted
by counsel during the interrogation, such did not paralyze the cause for the

prosecution because the confession allegedly elicited from him that the
subject marijuana was indeed confiscated form him 21 does not constitute
the whole fabric of the evidence for the prosecution. It should be
remembered that accused-appellant's attempt at selling marijuana was
succinctly and clearly detailed by the positive testimony of P/Lt. Ancheta as
earlier pointed out. Thus, although the alleged admission is inadmissible in
evidence having been obtained from accused-appellant without the
assistance of counsel, the act constituting the offense (offer to sell
marijuana) was nevertheless credibly established by the prosecution
coupled with the presentation of the corpus delicti 22 of the offense making
accused-appellant's conviction inevitable.
But, a modification in the penalty imposed on accused-appellant is called
for in view of the amendments introduced by R.A. No. 7659. 23 The court a
quo sentenced accused-appellant to life imprisonment and to pay a fine of
P20,000.00. However, under Sec. 20 of R.A. No. 6425 (The Dangerous
Drugs Act of 1972) as amended by Sec. 17 of R.A. No. 7659, the illegal
sale of marijuana is now penalized with reclusion perpetua to death and a
fine ranging from P500,000.00 to P10,000.00 if the marijuana unlawfully
sold is 750 grams or more; otherwise, if the quantity is less than 750
grams, the penalty shall range from prision correccional to reclusion
temporal 24 without fine. Since the amount of marijuana confiscated from
accused-appellant is only 2.9452 grams, the proper imposable component
penalty is prision correctional to be applied in its medium period in view of
the absence of any mitigating or aggravating circumstance. Applying the
Indeterminate Sentence Law, the maximum penalty shall be taken; from
the medium period of prision correctional, which is two (2) years, four (4)
months and one (1) day to four (4) years and two (2) months, while the
minimum shall be taken from the penalty next lower in degree, which
is arresto mayor the range of which is one (1) month and one (1) day to six
(6) months.
WHEREFORE, the decision of the Regional Trial Court of San Fernando,
La Union, Br. 28, declaring accused-appellant JOSE RAYRAY Y AREOLA
guilty of violating Sec. 4, of Art. II, of R.A. No. 6425 is AFFIRMED with the
modification that he is sentenced to suffer an indeterminate prison term of
six (6) months of arresto mayor maximum as minimum to four (4) years and
two (2) months of prision correccional medium as maximum.

It appearing that accused-appellant has already been detained at the New

Bilibid Prisons in Muntinlupa for more than seven (7) years; he is ordered
immediately released from custody unless he is held for some other lawful
cause.
SO ORDERED.
SECOND DIVISION
[G.R. No. L-8666. March 28, 1956.]
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:chanroblesvirtuallawlibrary Hajirul Appang, Rajah Appang and Awadi
Bagali, and 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:chanroblesvirtuallawlibrary In view of the foregoing considerations,
and considering 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;
chan
roblesvirtualawlibraryand to that end he may require the fiscal to submit such
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.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI,
and GODOFREDO L. MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional
Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE
BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY
FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL
OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF
THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF
JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE
SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F.
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No.
82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for
petitioner in G.R. Nos. 82827 and 83979.
RESOLUTION

PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether
or not petitioners were denied due process when informations for libel were
filed against them although the finding of the existence of a prima faciecase
was still under review by the Secretary of Justice and, subsequently, by the
President; (2) whether or not the constitutional rights of Beltran were
violated when respondent RTC judge issued a warrant for his arrest without
personally examining the complainant and the witnesses, if any, to
determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings
against the petitioners through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On
March 30, 1988, the Secretary of Justice denied petitioners' motion for
reconsideration and upheld the resolution of the Undersecretary of Justice
sustaining the City Fiscal's finding of a prima facie case against petitioners.
A second motion for reconsideration filed by petitioner Beltran was denied
by the Secretary of Justice on April 7, 1988. On appeal, the President,
through the Executive Secretary, affirmed the resolution of the Secretary of
Justice on May 2, 1988. The motion for reconsideration was denied by the
Executive Secretary on May 16, 1988. With these developments,
petitioners' contention that they have been denied the administrative
remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by
the fact that instead of submitting his counter- affidavits, he filed a "Motion
to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require
that the respondent in a criminal case actually file his counter-affidavits
before the preliminary investigation is deemed completed. All that is
required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded.
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 nder 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 responsible 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 warrants 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 procedure, 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 examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No.
12, setting down guidelines for the issuance of warrants of arrest. The
procedure therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the
prescribed procedure. Thus, with regard to the issuance of the warrants of
arrest, a finding of grave abuse of discretion amounting to lack or excess of
jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to
file suit." He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to
be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her
privilege of immunity from suit, as by testifying on the witness stand, she
would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from
suit is to assure the exercise of Presidential duties and functions free from
any hindrance or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of the office holder's
time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of
the office and may be invoked only by the holder of the office; not by any
other person in the President's behalf. Thus, an accused in a criminal case
in which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President
from waiving the privilege. Thus, if so minded the President may shed the
protection afforded by the privilege and submit to the court's jurisdiction.
The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and
imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held
liable for libel because of the privileged character or the publication, the
Court reiterates that it is not a trier of facts and that such a defense is best
left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.
The petitions fail to establish that public respondents, through their
separate acts, gravely abused their discretion as to amount to lack of
jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot
issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess
or lack of jurisdiction on the part of the public respondents, the Court
Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979.
The Order to maintain the status quo contained in the Resolution of the
Court en banc dated April 7, 1988 and reiterated in the Resolution dated
April 26, 1988 is LIFTED.

Burgos, Sr. vs. Chief of Staff, AFP, No. L-64261, 133 SCRA 800, December 26, 1984
Posted by Alchemy Business Center and Marketing Consultancy at 2:45
AM Labels: 133 SCRA 800, 1984, AFP, Burgos, December 26, No. L64261,Political Law, Sr. vs. Chief of Staff

Burgos, Sr. vs. Chief of Staff, AFP, No. L-64261, 133 SCRA 800,
December 26, 1984
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J.
BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE
CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER,
PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE
GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto
Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with
preliminary mandatory and prohibitory injunction is the validity of two [2]
search warrants issued on December 7, 1982 by respondent Judge Ernani
Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the "Metropolitan Mail" and "We
Forum" newspapers, respectively, were searched, and office and printing
machines, equipment, paraphernalia, motor vehicles and other articles
used in the printing, publication and distribution of the said newspapers, as
well as numerous papers, documents, books and other written literature
alleged to be in the possession and control of petitioner Jose Burgos, Jr.
publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that
respondents, "particularly the Chief Legal Officer, Presidential Security

Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute
or successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al.1
In our Resolution dated June 21, 1983, respondents were required to
answer the petition. The plea for preliminary mandatory and prohibitory
injunction was set for hearing on June 28, 1983, later reset to July 7, 1983,
on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing
petitioners' prayer for a writ of preliminary mandatory injunction, manifested
that respondents "will not use the aforementioned articles as evidence in
the aforementioned case until final resolution of the legality of the seizure of
the aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the
quashal of the search warrants before respondent judge. Indeed,
petitioners, before impugning the validity of the warrants before this Court,
should have filed a motion to quash said warrants in the court that issued
them. 3 But this procedural flaw notwithstanding, we take cognizance of this
petition in view of the seriousness and urgency of the constitutional issues
raised not to mention the public interest generated by the search of the
"We Forum" offices, which was televised in Channel 7 and widely
publicized in all metropolitan dailies. The existence of this special
circumstance justifies this Court to exercise its inherent power to suspend
its rules. In the words of the revered Mr. Justice Abad Santos in the case
of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the
court [Supreme Court] to suspend its rules or to except a particular case
from its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches.
Considerable stress is laid on the fact that while said search warrants were
issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than six
[6] months.
Laches is failure or negligence for an unreasonable and unexplained length
of time to do that which, by exercising due diligence, could or should have
been done earlier. It is negligence or omission to assert a right within a

reasonable time, warranting a presumption that the party entitled to assert

it either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay
in the filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983,
more than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had
waited this long to bring their case to court, it was because they tried at first
to exhaust other remedies. The events of the past eleven fill years had
taught them that everything in this country, from release of public funds to
release of detained persons from custody, has become a matter of
executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons
close to the President, like Fiscal Flaminiano, sent a letter to President
Marcos, through counsel Antonio Coronet asking the return at least of the
printing equipment and vehicles. And after such a letter had been sent,
through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the
Presidential Security Command, they were further encouraged to hope that
the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come
to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in
judgment. On the contrary, the extrajudicial efforts exerted by petitioners
quite evidently negate the presumption that they had abandoned their right
to the possession of the seized property, thereby refuting the charge of
laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr.
had used and marked as evidence some of the seized documents in
Criminal Case No. Q- 022872, he is now estopped from challenging the
validity of the search warrants. We do not follow the logic of respondents.
These documents lawfully belong to petitioner Jose Burgos, Jr. and he can
do whatever he pleases with them, within legal bounds. The fact that he
has used them as evidence does not and cannot in any way affect the
validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify
the search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an
examination under oath or affirmation of the applicant and his witnesses, as

mandated by the above-quoted constitutional provision as wen as Sec. 4,

Rule 126 of the Rules of Court . 6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during
the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search
two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C
& D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection
is interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was allegedly keeping and
concealing the articles listed therein, i.e., No. 19, Road 3, Project 6,
Quezon City. This assertion is based on that portion of Search Warrant No.
20- 82[b] which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended
and he is keeping and concealing the same at 19 Road 3, Project 6,
Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two
search warrants were applied for and issued because the purpose and
intent were to search two distinct premises. It would be quite absurd and
illogical for respondent judge to have issued two warrants intended for one
and the same place. Besides, the addresses of the places sought to be
searched were specifically set forth in the application, and since it was Col.
Abadilla himself who headed the team which executed the search warrants,
the ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building,
Quezon Avenue, Quezon City, which address appeared in the opening
paragraph of the said warrant. 7 Obviously this is the same place that
respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to
be searched with sufficient particularity, it has been held "that the executing
officer's prior knowledge as to the place intended in the warrant is relevant.
This would seem to be especially true where the executing officer is the
affiant on whose affidavit the warrant had issued, and when he knows that
the judge who issued the warrant intended the building described in the
affidavit, And it has also been said that the executing officer may look to the
affidavit in the official court file to resolve an ambiguity in the warrant as to
the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles
b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the
J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal
properties that may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant may be issued
for the search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of committing an
offense.
The above rule does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It may
or may not be owned by him. In fact, under subsection [b] of the abovequoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the
person in whose possession it may be at the time of the search and
seizure. Ownership, therefore, is of no consequence, and it is sufficient that
the person against whom the warrant is directed has control or possession
of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the
warrants.
4. Neither is there merit in petitioners' assertion that real properties were
seized under the disputed warrants. Under Article 415[5] of the Civil Code
of the Philippines, "machinery, receptables, instruments or implements
intended by the owner of the tenement for an industry or works which may
be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable
property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was
invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property
or plant, but not so when placed by a tenant, usufructuary, or any other
person having only a temporary right, unless such person acted as the
agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land
and/or building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant.

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

application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.
Metrocom. 10The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom
Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the
search warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned
documents could not have provided sufficient basis for the finding of a
probable cause upon which a warrant may validly issue in accordance with
Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, after examination under
oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or
things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a
search is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in
the place sought to be searched. And when the search warrant applied for
is directed against a newspaper publisher or editor in connection with the
publication of subversive materials, as in the case at bar, the application
and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is
intending to publish. Mere generalization will not suffice. Thus, the broad
statement in Col. Abadilla's application that petitioner "is in possession or
has in his control printing equipment and other paraphernalia, news
publications and other documents which were used and are all
continuously being used as a means of committing the offense of
subversion punishable under Presidential Decree 885, as amended
..." 12 is a mere conclusion of law and does not satisfy the requirements of
probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the
issuance of a search warrant and it was a grave error for respondent judge
to have done so.
Equally insufficient as basis for the determination of probable cause is the
statement contained in the joint affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, "that the evidence gathered and collated by our unit

clearly shows that the premises above- mentioned and the articles and
things above-described were used and are continuously being used for
subversive activities in conspiracy with, and to promote the objective of,
illegal organizations such as the Light-a-Fire Movement, Movement for
Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of
the complainant and the witnesses he may produce; 14the Constitution
requires no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be
justified. In Alvarez v. Court of First Instance,15 this Court ruled that "the
oath required must refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses, because the purpose thereof
is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of
probable cause." As couched, the quoted averment in said joint affidavit
filed before respondent judge hardly meets the test of sufficiency
established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in
this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM" newspaper and any and all documents communication,
letters and facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication
to promote the objectives and piurposes of the subversive organization
known as Movement for Free Philippines, Light-a-Fire Movement and April
6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM"
and other subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking
"Bagong Silang."

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

search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the
Communist Party in Texas," was declared void by the U.S. Supreme Court
for being too general. In like manner, directions to "seize any evidence in
connectionwith the violation of SDC 13-3703 or otherwise" have been held
too general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of
the Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore
invalid. 17 The description of the articles sought to be seized under the
search warrants in question cannot be characterized differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were
given roving commissions to search where they pleased in order to
suppress and destroy the literature of dissent both Catholic and Puritan
Reference herein to such historical episode would not be relevant for it is
not the policy of our government to suppress any newspaper or publication
that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum newspapers.
As a consequence of the search and seizure, these premises were
padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent
to the freedom of the press guaranteed under the fundamental law, 18 and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines
on the ground that they have been sequestered under Section 8 of
Presidential Decree No. 885, as amended, which authorizes "the
sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted
authorities ... in accordance with implementing rules and regulations as
may be issued by the Secretary of National Defense." It is doubtful
however, if sequestration could validly be effected in view of the absence of

any implementing rules and regulations promulgated by the Minister of

National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was
reported that no less than President Marcos himself denied the request of
the military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum
offices in Quezon City and took a detailed inventory of the equipment and
all materials in the premises.
Cendaa said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the
court. 19
That the property seized on December 7, 1982 had not been sequestered
is further confirmed by the reply of then Foreign Minister Carlos P. Romulo
to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall
addressed to President Marcos, expressing alarm over the "WE FORUM "
case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation
of our authorities to close the paper's printing facilities and confiscate the
equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 2082[b] issued by respondent judge on December 7, 1982 are hereby
declared null and void and are accordingly set aside. The prayer for a writ
of mandatory injunction for the return of the seized articles is hereby
granted and all articles seized thereunder are hereby ordered released to
petitioners. No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera,
Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.

Separate Opinions
ABAD SANTOS, J., concurring

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

the same time I wish to state my own reasons for holding that the search
warrants which are the subject of the petition are utterly void.
The action against "WE FORUM" was a naked suppression of press
freedom for the search warrants were issued in gross violation of the
Constitution.
The Constitutional requirement which is expressed in Section 3, Article IV,
stresses two points, namely: "(1) that no warrant shall issue but upon
probable cause, to be determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall particularly describe the things
to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383
[1967].)
Any search warrant is conducted in disregard of the points mentioned
above will result in wiping "out completely one of the most fundamental
rights guaranteed in our Constitution, for it would place the sanctity of the
domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)
The two search warrants were issued without probable cause. To satisfy
the requirement of probable cause a specific offense must be alleged in the
application; abstract averments will not suffice. In the case at bar nothing
specifically subversive has been alleged; stated only is the claim that
certain objects were being used as instruments and means of committing
the offense of subversion punishable under P.D. No. 885, as amended.
There is no mention of any specific provision of the decree. I n the words of
Chief Justice C Concepcion, " It would be legal heresy of the highest order,
to convict anybody" of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of particularity. Both search
warrants authorize Col. Rolando Abadilla to seize and take possession,
among other things, of the following:
Subversive documents, pamphlets, leaflets, books and other publication to
promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines, Light-a-Fire Movement and April
6 Movement.
The obvious question is: Why were the documents, pamphlets, leaflets,
books, etc. subversive? What did they contain to make them subversive?
There is nothing in the applications nor in the warrants which answers the
questions. I must, therefore, conclude that the warrants are general
warrants which are obnoxious to the Constitution.

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

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

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-59524 February 18, 1985
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First
Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO
ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch
XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City;
COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.

GUTIERREZ, JR., J.:

The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case
has been established to warrant the filing of an information for subversion
against him. Petitioner asks this Court to prohibit and prevent the

respondents from using the iron arm of the law to harass, oppress, and
persecute him, a member of the democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of
August, September and October of 1980. On September 6, 1980, one
Victor Burns Lovely, Jr., a Philippine-born American citizen from Los
Angeles, California, almost killed himself and injured his younger brother,
Romeo, as a result of the explosion of a small bomb inside his room at the
YMCA building in Manila. Found in Lovely's possession by police and
military authorities were several pictures taken sometime in May, 1980 at
the birthday party of former Congressman Raul Daza held at the latter's
residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his
wife were among those whose likenesses appeared in the group pictures
together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by
military and police authorities to the AFP Medical Center (V. Luna Hospital)
where he was placed in the custody and detention of Col. Roman P.
Madella, under the over-all direction of General Fabian Ver, head of the
National Intelligence and Security Authority (NISA). Shortly afterwards, Mr.
Lovely and his two brothers, Romeo and Baltazar Lovely were charged with
subversion, illegal possession of explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila
including one which resulted in the death of an American lady who was
shopping at Rustan's Supermarket in Makati and others which caused
injuries to a number of persons.
On September 20, 1980, the President's anniversary television radio press
conference was broadcast. The younger brother of Victor Lovely, Romeo,
was presented during the conference. In his interview, Romeo stated that
he had driven his elder brother, Victor, to the petitioner's house in
Greenhills on two occasions. The first time was on August 20, 1980.
Romeo stated that Victor did not bring any bag with him on that day when
he went to the petitioner's residence and did not carry a bag when he left.
The second time was in the afternoon of August 31, 1980 when he brought
Victor only to the gate of the petitioner's house. Romeo did not enter the
petitioner's residence. Neither did he return that day to pick up his brother.

The next day, newspapers came out with almost Identical headlines stating
in effect that petitioner had been linked to the various bombings in Metro
Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he
was held incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have
exploded at three big hotels in Metro Manila, namely: Philippine Plaza,
Century Park Sheraton and Manila Peninsula. The bombs injured nine
people. A meeting of the General Military Council was called for October 6,
1980.
On October 19, 1980, minutes after the President had finished delivering
his speech before the International Conference of the American Society of
Travel Agents at the Philippine International Convention Center, a small
bomb exploded. Within the next twenty-four hours, arrest, search, and
seizure orders (ASSOs) were issued against persons who were apparently
implicated by Victor Lovely in the series of bombings in Metro Manila. One
of them was herein petitioner. Victor Lovely offered himself to be a "state
witness" and in his letter to the President, he stated that he will reveal
everything he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of
the petitioner at the Manila Medical Center where he was confined due to
his recurrent and chronic ailment of bronchial asthma and placed him under
arrest. The arresting officer showed the petitioner the ASSO form which
however did not specify the charge or charges against him. For some time,
the petitioner's lawyers were not permitted to visit him in his hospital room
until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the petitioner's
right to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his objections
from his hospital arrest to an isolation room without windows in an army
prison camp at Fort Bonifacio, Makati. The petitioner states that he was not
informed why he was transferred and detained, nor was he ever
investigated or questioned by any military or civil authority.

Subsequently, on November 27, 1980, the petitioner was released for

humanitarian reasons from military custody and placed "under house arrest
in the custody of Mrs. Lydia Salonga" still without the benefit of any
investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a
"Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al.
(which included petitioner as a co-accused), stating that "the preliminary
investigation of the above-entitled case has been set at 2:30 o'clock p.m.
on December 12, 1980" and that petitioner was given ten (10) days from
receipt of the charge sheet and the supporting evidence within which to file
his counter-evidence. The petitioner states that up to the time martial law
was lifted on January 17, 1981, and despite assurance to the contrary, he
has not received any copies of the charges against him nor any copies of
the so-called supporting evidence.
On February 9, 1981, the records of the case were turned over by the
Judge Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint
accusing petitioner, among others of having violated Republic Act No.
1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to
Article 142 of the Revised Penal Code. The inquest court set the
preliminary investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend
a series of church conferences and undergo comprehensive medical
examinations of the heart, stomach, liver, eye and ear including a possible
removal of his left eye to save his right eye. Petitioner Salonga almost died
as one of the principal victims of the dastardly bombing of a Liberal Party
rally at Plaza Miranda on August 20, 1971. Since then, he has suffered
serious disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a piece
of shrapnel lodged one millimeter from his aorta. The petitioner has limited
use of his one remaining hand and arms, is completely blind and physical
in the left eye, and has scar like formations in the remaining right eye. He is
totally deaf in the right ear and partially deaf in the left ear. The petitioner's
physical ailments led him to seek treatment abroad.

On or around March 26, 1981, the counsel for petitioner was furnished a
copy of an amended complaint signed by Gen. Prospero Olivas, dated
March 12, 1981, charging the petitioner, along with 39 other accused with
the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg.
31 and P.D. 1736. Hearings for preliminary investigation were conducted.
The prosecution presented as its witnesses Ambassador Armando
Fernandez, the Consul General of the Philippines in Los Angeles,
California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal
Panel of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss
the charges against petitioner for failure of the prosecution to establish a
prima facie case against him.
On December 2, 1981, the respondent judge denied the motion. On
January 4, 1982, he issued a resolution ordering the filing of an information
for violation of the Revised Anti-Subversion Act, as amended, against forty
(40) people, including herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and
January 4, 1982 are now the subject of the petition. It is the contention of
the petitioner that no prima facie case has been established by the
prosecution to justify the filing of an information against him. He states that
to sanction his further prosecution despite the lack of evidence against him
would be to admit that no rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence
offered by the prosecution utterly insufficient to establish a prima facie case
against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of
a motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain,
speedy and adequate remedy in the ordinary course of law; and that public
interest dictates that criminal prosecutions should not be enjoined.

The general rule is correctly stated. However, the respondents fail to

appreciate or take into account certain exceptions when a petition for
certiorari is clearly warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a motion to quash
filed by an accused in a criminal case shall be denied, the
remedy of the accused-movant is not to file a petition for
certiorari or mandamus or prohibition, the proper recourse
being to go to trial, without prejudice to his right to reiterate the
grounds invoked in his motion to quash if an adverse judgment
is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill v. People, et
al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of the rule
invoked by the respondents. However, it is also recognized
that, under certain situations, recourse to the extraordinary
legal remedies of certiorari, prohibition or mandamus to
question the denial of a motion to quash is considered proper in
the interest of "more enlightened and substantial justice", as
was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30,
1969."
Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very
face of the record no evidence linking him to the alleged conspiracy exists.
Ex-Senator Jovito Salonga, himself a victim of the still unresolved and
heinous Plaza Miranda bombings, was arrested at the Manila Medical
Center while hospitalized for bronchial asthma. When arrested, he was not
informed of the nature of the charges against him. Neither was counsel
allowed to talk to him until this Court intervened through the issuance of an

order directing that his lawyers be permitted to visit him (Ordonez v. Gen.
Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four
months of detention was the petitioner informed for the first time of the
nature of the charges against him. After the preliminary investigation, the
petitioner moved to dismiss the complaint but the same was denied.
Subsequently, the respondent judge issued a resolution ordering the filing
of an information after finding that a prima facie case had been established
against an of the forty persons accused.
In the light of the failure to show prima facie that the petitioner was
probably guilty of conspiring to commit the crime, the initial disregard of
petitioner's constitutional rights together with the massive and damaging
publicity made against him, justifies the favorable consideration of this
petition by this Court. With former Senator Benigno Aquino, Jr. now
deceased, there are at least 38 other co-accused to be tried with the
petitioner. The prosecution must present proof beyond reasonable doubt
against each and every one of the 39 accused, most of whom have varying
participations in the charge for subversion. The prosecution's star witness
Victor Lovely and the only source of information with regard to the alleged
link between the petitioner and the series of terrorist bombings is now in the
United States. There is reason to believe the petitioner's citation of
international news dispatches * that the prosecution may find it difficult if
not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand jury
how could he possibly be made to testify when the charges against the
respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at
this stage the issue of whether or not the respondent judge gravely abused
his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional
evidence during the trial and if the evidence, by then, is not sufficient to
prove the petitioner's guilt, he would anyway be acquitted. Yes, but under
the circumstances of this case, at what cost not only to the petitioner but to
the basic fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to
establish the facts, or to counter-balance the presumption of innocence to
warrant a conviction. The question raised before us now is: Were the

evidences against the petitioner uncontradicted and if they were

unexplained or uncontradicted, would they, standing alone, sufficiently
overcome the presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the
respondent judge relied only on the testimonies of Col. Balbino Diego and
Victor Lovely. Ambassador Armando Fernandez, when called upon to
testify on subversive organizations in the United States nowhere mentioned
the petitioner as an organizer, officer or member of the Movement for Free
Philippines (MFP), or any of the organizations mentioned in the complaint.
Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely
"that it was the residence of ex-Senator Salonga where they met together
with Renato Taada, one of the brains of the bombing conspiracy ... and
the fact that Sen. Salonga has been meeting with several subversive
personnel based in the U.S.A. was also revealed to me by Victor Burns
Lovely; 11 and on the group pictures taken at former Congressman Raul
Daza's birthday party. In concluding that a conspiracy exists to overthrow
by violent means the government of the Philippines in the United States,
his only bases were "documentary as well as physical and sworn
statements that were referred to me or taken by me personally," which of
course negate personal knowledge on his part. When asked by the court
how he would categorize petitioner in any of the subversive organizations,
whether petitioner was an organizer, officer or a member, the witness
replied:
A. To categorize former Senator Salonga if he were an
organizer, he is an officer or he is a member, your Honor,
please, we have to consider the surrounding circumstances and
on his involvement: first, Senator Salonga wanted always to
travel to the United States at least once a year or more often
under the pretext of to undergo some sort of operation and
participate in some sort of seminar. (t.s.n., April 21, 1981, pp14-15)
Such testimony, being based on affidavits of other persons and purely
hearsay, can hardly qualify as prima facie evidence of subversion. It should
not have been given credence by the court in the first place. Hearsay

evidence, whether objected to or not, -has no probative value as the affiant

could not have been cross-examined on the facts stated therein. (See
People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661).
Moreover, as Victor Lovely, himself, was personally examined by the court,
there was no need for the testimony of Col. Diego. Thus, the inquest judge
should have confined his investigation to Victor Burns Lovely, the sole
witness whose testimony had apparently implicated petitioner in the
bombings which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing
mission is found in his sworn statement made before Col. Diego and Lt.
Col. Madella and taken on October 17, 1980 at the AFP Medical Center.
Lovely was not presented as a prosecution or state witness but only as
a defense witness for his two younger brothers, Romeo and Baltazar, who
were both included in the complaint but who were later dropped from the
information. Victor Lovely was examined by his counsel and crossexamined by the fiscal. In the process, he Identified the statement which he
made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the
prosecution made a manifestation before the court that it was adopting
Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila
Hotel or the Plaza Hotel where somebody would
come to contact me and give the materials needed
in the execution of my mission. I thought this was
not safe so I disagreed with him. Mr. Psinakis
changed the plan and instead told me to visit the
residence of Ex-Sen. Jovito Salonga as often as I
can and someone will meet me there to give the
materials I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980 and
stayed at the residence of Mr. Johnny Chua,
husband of my business partner, then I went to the
Hospital where I visited my mother and checked-in

at Room 303 of the YMCA at Concepcion Street,

Manila.
38. Q. Did you visit the residence of former Senator
Jovito Salonga as directed by Psinakis?
A. I visited Sen. Salonga's place three (3) times, the
first visit was August 20 or 21, and the last was 4:00
P.M. of August 31, 1980. In addition to these visits, I
TALKED to him on the phone about three or four
times. On my first visit, I told him "I am expecting an
attache case from somebody which will be delivered
to your house," for which Sen. Salonga replied
"Wala namang nagpunta dito at wala namang
attache case para sa iyo." However, if your attache
case arrives, I'll just call you." I gave him my
number. On my second visit, Salonga said, "I'll be
very busy so just come back on the 31st of August
at 4 P.M." On that date, I was with friends at
Batulao Resort and had to hurry back to be at
Salonga's place for the appointment. I arrived at
Salonga's place at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga and
after five minutes, Sen. Salonga joined me in the
sala. Sen. Salonga informed me that somebody will
be coming to give me the attache case but did not
tell me the name.
40. Q. Are there any subject matters you discuss
while waiting for that somebody to deliver your
materials?
A. Yes, Salonga asked if Sen. Aquino and I have
met, I explained to him the efforts of Raul Daza in
setting up that meeting but I have previous business
commitments at Norfolk, Virginia. I told him,
however, that through the efforts of Raul Daza, I
was able to talk with Ninoy Aquino in the airport

telephone booth in San Francisco. He also asked

about Raul Daza, Steve Psinakis and the latest
opposition group activities but it seems he is well
informed.
41. Q. How long did you wait until that somebody
arrived?
A. About thirty (30) minutes.
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised to
see Atty. Renato Taada Jovy Salonga was the one
who met him and as I observed parang nasa
sariling bahay si Taada nung dumating. They
talked for five (5) minutes in very low tones so I did
not hear what they talked about. After their
whispering conversations, Sen. Salonga left and at
this time Atty. "Nits" Taada told me "Nasa akin ang
kailangan mo, nasa kotse."
43. Q. Were the materials given to you?
A. When Sen. Salonga came back, we asked to be
permitted to leave and I rode in Atty. "Nits" Taadas
old Pontiac car colored dirty brown and proceeded
to Broadway Centrum where before I alighted, Atty.
Taada handed me a "Puma" bag containing all the
materials I needed.
xxx xxx xxx
45. Q. What were the contents of the Puma bag?
A. Ten (10) pieces of Westclox pocket watch with
screw and wirings, ten (10) pieces electrical blasting
caps 4" length, ten (10) pieces non-electrical
blasting caps 1 " length, nine (9) pieces volts dry
cell battery, two (2) improvised electrical testers. ten

(10) plastic packs of high explosive about 1 pound

weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence
by the accused, Lovely gave a different story which negates the above
testimony insofar as the petitioner's participation was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in
Manila and for what purpose?
A. Before I left for the Philippines, Mr. Psinakis told
me to check in at the Manila Hotel or the Plaza
Hotel, and somebody would just deliver the
materials I would need. I disapproved of this, and I
told him I would prefer a place that is familiar to me
or who is close to me. Mr. Psinakis suggested the
residence of Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1
made a call to Sen. Salonga, but he was out. The
next day I made a call again. I was able to contact
him. I made an appointment t see him. I went to
Sen. Salonga's house the following day. I asked
Sen. Salonga if someone had given him an attache
case for me. He said nobody. Afterwards, I made
three calls to Sen. Salonga. Sen. Salonga told me
"call me again on the 31st of August. I did not call
him, I just went to his house on the 31st of August
at 4 P.M. A few minutes after my arrival Atty.
Renato Taada arrived. When he had a chance to
be near me, he (Atty. Tanada) whispered to me that
he had the attache case and the materials I needed
in his car. These materials were given to me by
Atty. Tanada When I alighted at the Broadway
Centrum. (Emphasis supplied)

During the cross-examination, counsel for petitioner asked Lovely about the
so-called destabilization plan which the latter mentioned in his sworn
statement:
Q. You mentioned in your statement taken on
October 17, 1980, marked Exhibit "G" about the socalled destabilization plan of Aquino. When you
attended the birthday party of Raul Daza wherein
Jovito Salonga was also present, was this
destabilization plan as alleged by you already
formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be present
in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but then it
became political. Was there any political action
taken as a result of the party?
A. Only political discussion, your Honor. (TSN, July
8, 1981, pp. 69-84).
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated
petitioner in any of the bombings that occurred in Metro Manila. The fiscal
objected without stating any ground. In sustaining the objection, the Court
said:

Sustained . . . The use of the word 'implicate' might expand the

role of Mr. Salonga. In other words, you are widening the
avenue of Mr. Salonga's role beyond the participation stated in
the testimony of this witness about Mr. Salonga, at least, as far
as the evidence is concerned, I supposed, is only being in the
house of Mr. Salonga which was used as the contact point. He
never mentions Mr. Salonga about the bombings. Now these
words had to be put in the mouth of this witness. That would be
unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67)
Respondent judge further said:
COURT:
As the Court said earlier, the parts or portions
affecting Salonga only refers to the witness coming
to Manila already then the matter of . . . I have gone
over the statement and there is no mention of
Salonga insofar as activities in the United States is
concerned. I don't know why it concerns this crossexamination.
ATTY. YAP:
Because according to him, it was in pursuance of
the plan that he came to Manila.
COURT:
According to him it was Aquino, Daza, and Psinakis
who asked him to come here, but Salonga was
introduced only when he (Lovely) came here. Now,
the tendency of the question is also to connect
Salonga to the activities in the United States. It
seems to be the thrust of the questions.
COURT:
In other words, the point of the Court as of the time
when you asked him question, the focus on Salonga
was only from the time when he met Salonga at

Greenhills. It was the first time that the name of

Salonga came up. There was no mention of
Salonga in the formulation of the destabilization
plan as affirmed by him. But you are bringing this up
although you are only cross-examining for Salonga
as if his (Lovely's) activities in the United States
affected Salonga. (TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper
perspective by limiting the petitioner's alleged "participation" in the bombing
mission only to the fact that petitioner's house was used as a "contact
point" between Lovely and Taada, which was all that Lovely really stated
in his testimony.
However, in the questioned resolution dated December 2, 1981, the
respondent judge suddenly included the "activities" of petitioner in the
United States as his basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness,
Lovely, in one of his statements declared: 'To the best of my
recollection he mentioned of some kind of violent struggle in the
Philippines being most likely should reforms be not instituted by
President Marcos immediately.
It is therefore clear that the prosecution's evidence has
established facts and circumstances sufficient for a finding that
excludes a Motion to Dismiss by respondent Salonga. The
Movement for Free Philippines is undoubtedly a force born on
foreign soil it appears to rely on the resources of foreign
entities, and is being (sic) on gaining ascendancy in the
Philippines with the use of force and for that purpose it has
linked itself with even communist organizations to achieve its
end. It appears to rely on aliens for its supporters and
financiers.
The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without
foundation.
The respondents admit that no evidence was presented directly linking
petitioner Salonga to actual acts of violence or terrorism. There is no proof

of his direct participation in any overt acts of subversion. However, he is

tagged as a leader of subversive organizations for two reasons(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines
being most likely should reforms be not instituted by President Marcos
immediately."
The "contact point" theory or what the petitioner calls the guilt by visit or
guilt by association" theory is too tenuous a basis to conclude that Senator
Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have
somehow met in his house or office would be to establish a dangerous
precedent. The right of citizens to be secure against abuse of governmental
processes in criminal prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Taada could not have
whispered to one another because the petitioner is almost totally deaf.
Lovely could not have met Senator Salonga at a Manglapus party in
Washington, D.C. in 1977 because the petitioner left for the United States
only on November, 1978. Senator Salonga denies having known Mr. Lovely
in the United States or in the Philippines. He states that he has hundred of
visitors from week to week in his residence but cannot recall any Victor
Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's
birthday party in Los Angeles where Senator Salonga was a guest is not
proof of conspiracy. As stated by the petitioner, in his many years in the
turbulent world of politics, he has posed with all kinds of people in various
groups and various places and could not possibly vouch for their conduct.
Commenting on the matter, newspaper columnist Teodoro Valencia stated
that Filipinos love to pose with important visitors and the picture proves
nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting
his home or office. If a rebel or subversive happens to pose with the
petitioner for a group picture at a birthday party abroad, or even visit him
with others in his home, the petitioner does not thereby become a rebel or

subversive, much less a leader of a subversive group. More credible and

stronger evidence is necessary for an indictment. Nonetheless, even if we
discount the flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still inadequate to
establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which
could positively link the petitioner to any proscribed activities of the
Movement for Free Philippines or any subversive organization mentioned in
the complaint. Lovely had already testified that during the party of former
Congressman Raul Daza which was alleged to have been attended by a
number of members of the MFP, no political action was taken but only
political discussion. Furthermore, the alleged opinion of the petitioner about
the likelihood of a violent struggle here in the Philippines if reforms are not
instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man
deserves punishment for his thoughts. Cogitationis poenam memo
meretur. And as the late Justice Oliver W. Holmes stated in the case
of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the
Constitution that more imperatively calls for attachment than any other it is
the principle of free thought not free thought for those who agree with us
but freedom for the thought that we hate."
We have adopted the concept that freedom of expression is a "preferred"
right and, therefore, stands on a higher level than substantive economic or
other liberties. The primacy, the high estate accorded freedom of
expression is a fundamental postulate of our constitutional system.
(Gonzales v. Commission on Elections, 29 SCRA 835). As explained by
Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so
because the lessons of history, both political and legal, illustrate that
freedom of thought and speech is the indispensable condition of nearly
every other form of freedom. Protection is especially mandated for political
discussions. This Court is particularly concerned when allegations are
made that restraints have been imposed upon mere criticisms of
government and public officials. Political discussion is essential to the
ascertainment of political truth. It cannot be the basis of criminal
indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even

moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v.
United States (394 U.S. 705), the American court distinguished between
criminal threats and constitutionally protected speech.
It stated:
We do not believe that the kind of political hyperbole indulged in
by petitioner fits within that statutory term. For we must interpret
the language Congress chose against the background of a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide open and
that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public officials.
New York Times Co. v. Sullivan (376 U.S. 254). The language
of the political arena, like the language used in labor disputed is
often vituperative abusive, and inexact. We agree with
petitioner that his only offense was a kind of very crude
offensive method of stating a political opposition to the
President.
In the case before us, there is no teaching of the moral propriety of a resort
to violence, much less an advocacy of force or a conspiracy to organize the
use of force against the duly constituted authorities. The alleged remark
about the likelihood of violent struggle unless reforms are instituted is not a
threat against the government. Nor is it even the uninhibited, robust,
caustic, or unpleasantly sharp attack which is protected by the guarantee of
free speech. Parenthetically, the American case of Brandenburg v.
Ohio (395 U.S. 444) states that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action. The words which petitioner allegedly used
according to the best recollections of Mr. Lovely are light years away from
such type of proscribed advocacy.
Political discussion even among those opposed to the present
administration is within the protective clause of freedom of speech and
expression. The same cannot be construed as subversive activities per se
or as evidence of membership in a subversive organization. Under

Presidential Decree No. 885, Section 3, paragraph 6, political discussion

will only constitute, prima facie evidence of membership in a subversive
organization if such discussion amounts to:
(6) Conferring with officers or other members of such
association or organization in furtherance of any plan or
enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization.
Even if we lend credence to Lovely's testimony that a political discussion
took place at Daza's birthday party, no proof whatsoever was adduced that
such discussion was in furtherance of any plan to overthrow the
government through illegal means. The alleged opinion that violent struggle
is likely unless reforms are instituted by no means shows either advocacy
of or incitement to violence or furtherance of the objectives of a subversive
organization.
Lovely also declared that he had nothing to do with the bombing on August
22, 1980, which was the only bombing incident that occurred after his
arrival in Manila on August 20, and before the YMCA explosion on
September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified
that:
WITNESS:
Actually, it was not my intention to do some kind of
bombing against the government. My bombing
mission was directed against the particular family
(referring to the Cabarrus family [TSN, p. 11, July 9,
1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or subversive
assignment which Lovely was supposed to have been commissioned to
perform upon the orders of his co- accused and which was the very reason
why they answer charged in the first place. The respondent judge also
asked Lovely about the possible relation between Cabarrus and petitioner:
COURT:

Q. Did you suspect any relation between Cabarrus

and Jovito Salonga, why did you implicate Jovito
Salonga?
A. No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested
to the court that it was adopting him as a prosecution witness. Therefore,
the prosecution became irreversively bound by Lovely's disclaimers on the
witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga",
especially since Lovely is the sole witness adopted by the prosecution who
could supposedly establish the link between the petitioner and the bombing
incidents.
The respondent court should have taken these factors into consideration
before concluding that a prima facie case exists against the petitioner.
Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation
of mankind can approve as probable under the circumstances. (People v.
Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even
present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded
such credibility by the respondent judge as if they had already been proved
beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent against
hasty, malicious and oppressive prosecution, and to protect him 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. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil.
216). The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process. (See People
v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is conducted in the

sense of making sure that a transgressor shall not escape with impunity. A
preliminary investigation serves not only the purposes of the State. More
important, it is a part of the guarantees of freedom and fair play which are
birthrights of all who live in our country. It is, therefore, imperative upon the
fiscal or the judge as the case may be, to relieve the accused from the pain
of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or
opinion of the judge conducting the examination, such a finding should not
disregard the facts before the judge nor run counter to the clear dictates of
reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391).
The judge or fiscal, therefore, should not go on with the prosecution in the
hope that some credible evidence might later turn up during trial for this
would be a flagrant violation of a basic right which the courts are created to
uphold. It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been before. It
should continue to be so. Mercado v. Court of First Instance of Rizal, 116
SCRA 93).
The Court had already deliberated on this case, a consensus on the
Court's judgment had been arrived at, and a draft ponencia was circulating
for concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City
Fiscal Sergio Apostol to drop the subversion case against the petitioner.
Pursuant to instructions of the Minister of Justice, the prosecution restudied
its evidence and decided to seek the exclusion of petitioner Jovito Salonga
as one of the accused in the information filed under the questioned
resolution.
We were constrained by this action of the prosecution and the respondent
Judge to withdraw the draft ponencia from circulating for concurrences and
signatures and to place it once again in the Court's crowded agenda for
further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of
subversion charges is concerned, this decision has been rendered moot
and academic by the action of the prosecution.

Respondent Fiscal Sergio Apostol correctly points out, however, that he is

not precluded from filing new charges for the same acts because the
petitioner has not been arraigned and double jeopardy does not apply. in
that sense, the case is not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void,
escaped from the provincial jail while his petition was pending. The petition
became moot because of his escape but we nonetheless rendered a
decision and stated:
The fact that the case is moot and academic should not
preclude this Tribunal from setting forth in language clear and
unmistakable, the obligation of fidelity on the part of lower court
judges to the unequivocal command of the Constitution that
excessive bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center
of the Philippines could validly be created through an executive order was
mooted by Presidential Decree No. 15, the Center's new charter pursuant
to the President's legislative powers under martial law. Stan, this Court
discussed the constitutional mandate on the preservation and development
of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2
of the Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during
the pendency of the case, 26 petitioners were released from custody and
one withdrew his petition. The sole remaining petitioner was facing charges

of murder, subversion, and illegal possession of firearms. The fact that the
petition was moot and academic did not prevent this Court in the exercise
of its symbolic function from promulgating one of the most voluminous
decisions ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case against
the petitioner, either as a co-conspirator of a destabilization plan to
overthrow the government or as an officer or leader of any subversive
organization. They have taken the initiative of dropping the charges against
the petitioner. We reiterate the rule, however, that this Court will not
validate the filing of an information based on the kind of evidence against
the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.

G.R. No. L-27511, In re Application for Writ of Habeas Corpus. Luna v.

Plaza, Beberino and Provincial Warden of Surigao del Sur, 26 SCRA 310
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
November 29, 1968
G.R. No. L-27511
IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS
CORPUS, SIMON LUNA, petitioner-appellant,
vs.
HON. LORENZO M. PLAZA, as Judge of the Municipal Court of
Tandag, Surigao del Sur; HON. SANTOS B. BEBERINO as Provincial

Fiscal of Surigao del Sur; and THE PROVINCIAL WARDEN of Surigao

del Sur, respondents- appellees.
Sisenando Villaluz and Juan T. David for petitioner-appellant.
Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor
Augusto M. Amores for other respondents-appellees.
Provincial Fiscal Santos B. Beberno in his own behalf as respondentappellee.
ZALDIVAR, J.:
Appeal from the decision of the Court of First Instance of Surigao del Sur,
dated April 20, 1967, dismissing the petition for a writ of habeas corpus,
filed by herein petitioner-appellant Simon Luna hereinafter referred to
simply as petitioner who was charged with murder in Criminal Case No.
655-New of the same court.
The criminal action was commenced by T-Sgt. Candido Patosa, PC
investigator of Tandag, Surigao del Sur, by filing with respondent Municipal
Judge Lorenzo M. Plaza, of the Municipal Court of Tandag, criminal case
No. 1138 charging the accused, herein petitioner, with the crime of murder.
Supporting the complaint were sworn statements of the witnesses for the
prosecution, in the form of questions and answers taken by T-Sgt. Patosa,
and subscribed and sworn to before the respondent Judge at the time of
the filing of the complaint. The respondent Judge examined the prosecution
witnesses by reading to them "all over again the questions and answers" in
their statements in writing, and the witnesses-affiants declared before said
Judge that the questions were propounded by T-Sgt. Candido Patosa, and
that the answers were made by them. The affiants further declared before
respondent Judge that their answers were true, and were freely and
voluntarily made; that they fully understood the questions and answers, and
that they were willing to sign their respective affidavits. The affiants signed
their respective affidavits in the presence of the respondent Judge, who
also signed after the usual procedure of administering the oath.
Considering the answers of the affiants to the questions contained in their
sworn statements, together with the post-mortem and autopsy report on the

dead body of the victim Jaime Diaz Ng, the certificate of death, the sketch
showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12,
and 13 of herein respondents, the respondent Judge opined that there was
reasonable ground to believe that the crime of murder had been committed
and the accused was probably guilty thereof. Respondent Judge issued the
order and warrant of arrest, specifying therein that no bail should be
accepted for the provisional release of the accused. On February 20, 1967,
upon motion of petitioner that he be admitted to bail upon the ground that
the evidence of guilt was not strong, respondent Judge issued an order
granting bail, fixing it at P30,000.00; which order, however, respondent
Judge later revoked, and petitioner was denied bail.
The case was subsequently remanded to the Court of First Instance of
Surigao del Sur, after petitioner filed a waiver of his right to preliminary
investigation. On March 9, 1967 respondent Provincial Fiscal filed an
information charging herein petitioner with the crime of murder. The
petitioner was detained in the provincial jail of Surigao del Sur under the
custody of respondent Provincial Warden.
On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with
the Court of First Instance of Surigao del Sur, therein docketed as Special
Proceedings No. 105-New, claiming that he was being deprived of liberty
without the due process of law, on the ground that the imprisonment and
detention was the result of a warrant of arrest issued by respondent Judge
in violation of Republic Act No. 3828, and praying for the annulment of the
order for his arrest and his discharge from confinement.
Herein respondents filed their answer, alleging that Republic Act No.
3828 had been substantially complied with; that a motion to quash, and not
a petition for habeas corpus was the proper remedy; and that petitioner's
application for bail constituted a waiver of the right to question the validity
of the arrest.
After trial, the Court of First Instance of Surigao del Sur rendered its
decision, dated April 20, 1967, holding that respondent Municipal Judge

had substantially complied with Republic Act No. 3828, and consequently
denied the application for the writ ofhabeas corpus, and dismissed the
case. Hence this appeal.
Petitioner, in his assignment of errors, claims that the trial court erred, as
follows:
1. In giving absolute credence to the oral testimony of the respondent
Judge to the effect that he adopted and made his own the questions and
answers taken by T-Sgt. Patosa, PC Investigator, one of the prosecution
witnesses, because the records show the contrary;
2. In denying the writ of habeas corpus and in dismissing the petition.
1. In support of his first assignment of error, petitioner contends
that Republic Act No. 3828 imposes on a municipal judge, before he can
issue a warrant of arrest, two specific duties, to wit: (1) personally examine
the complainant and witnesses with "searching questions and answers",
which means that the judge must cross-examine them in case their
affidavits are presented; and (2) said examination must be reduced to
writing and form part of the records of the case. The record of the instant
case, according to petitioner, does not show said examination was
performed by respondent Judge. Petitioner urges that the absence of any
document in the record that shows that respondent Judge had performed
the examination is positive proof that respondent Judge did not perform his
duty, notwithstanding his testimony before the Court of First Instance of
Surigao del Sur, during the hearing of this case, to the effect that he
adopted the questions propounded to each of the prosecution witnesses by
T-Sgt. Patosa. Petitioner maintains that this testimony, being self-serving
intended to cover up the failure to comply with the law, should not have
been believed by the Court of First Instance, and said court thereby
committed errors when, believing said testimony, it found that there had
been substantial compliance with the requirement that the municipal judge
should personally examine the witnesses. Petitioner further maintains that
assuming that the adoption of the questions made by T-Sgt. Patosa

constituted substantial compliance with the requirement that the judge

should examine the witnesses by asking searching questions, still the
second requirement, that of reducing to writing the said procedure of
adoption, has not been complied with; and so, Republic Act No. 3828 was
still violated, and the issuance of the warrant of arrest was in violation of
said Act and the Constitution and constituted denial of due process.
Petitioner contends that the trial court erred in giving absolute credence to
the testimony of respondent Municipal Judge. Regarding credibility of
witnesses, this Court has consistently held that, as a general rule, the lower
court's findings as to the credibility of witnesses will not be interfered with
by appellate courts. Thus, in the case of People vs. Sinaon[[1]] this Court
said:
Time and again, we have held that as a rule where the issue is one of
credibility of witnesses, appellate courts will not generally disturb the
findings of the trial court, considering that it is in a better position to decide
the question, having seen and heard the witnesses themselves and
observed their deportment and manner of testifying during the trial, unless
there is a showing that it has overlooked certain facts of substance and
value, that if considered, might affect the result of the case.
Petitioner has appealed "from the decision/order" of the trial court "to the
Honorable Supreme Court of the Philippines, on the ground that the same
is contrary to law and the Philippine Constitution" and prayed that "all the
records of the proceeding and the evidence, oral and documentary, be
transmitted or forwarded to the Honorable Supreme Court ...".[[2]] Since
petitioner appealed directly to this Court he must, therefore, raise only
questions of law and he has thereby waived the right to raise any question
of fact,[[3]] and the findings of facts of the trial court, under the rules and
precedents, must be deemed final and binding upon this Court.[[4]]
The findings of facts of the trial court are found in the following portion of
the decision appealed from, to wit:

There is no dispute that there is a valid complaint charging the accused

Simon Luna, the herein petitioner with the crime of Murder filed with the
respondent Judge authorized to conduct the examination of the witnesses
for the prosecution for the purpose of determining the existence of probable
cause before the issuance of the corresponding warrant of arrest; that the
complaint is supported by the statements of the witnesses under oath in
writing in the form of questions and answers and other documents attached
to the complaint; that before the issuance of the corresponding warrant of
arrest, the respondent judge personally examined the witnesses for the
prosecution on their statements taken by T-Sgt. Candido Patosa by reading
the questions and answers all over again to the affiants who confirmed to
the respondent Judge that the statements contained in their sworn
statements are true; that being satisfied that the questions and answers
contained in the sworn statements taken by T-Sgt Patosa partake of the
nature of his searching questions and answers as required by law, the
respondent Judge adopted them as his own personal examination of the
witnesses for the purpose of determining the existence of probable cause,
the order and the warrant of arrest were issued to take the accused into
custody for the commission of the offense charged (Exhibits "H", "H-1", "I",
and "I-1"-petitioner); and that the petitioner waived his right to the
preliminary investigation (Exhibit "12"-respondent) and applied to be
admitted to bail.
Petitioner, however, claims that the failure of respondent Judge to put in
writing that he adopted the questions asked by T-Sgt. Patosa and his
failure to ask "searching questions" violated Republic Act No. 3828.
Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (e)
of theJudiciary Act of 1948 the following paragraph:
No warrant of arrest shall be issued by any justice of the peace in any
criminal case filed with him unless he first examines the witness or
witnesses personally, and the examination shall be under oath and reduced
to writing in the form of searching questions and answers.

Before a municipal judge may issue a warrant of arrest, the following

conditions must first be fulfilled: (1) he must examine the witnesses
personally; (2) the examination must be under oath; (3) the examination
must be reduced to writing in the form of searching questions and answers.
Were these conditions fulfilled in the instant case?
The first condition was fulfilled. The trial court found as a fact that "the
respondent judge personally examined the witnesses for the prosecution
...;" that respondent judge adopted as his own personal examination the
questions asked by T-Sgt. Patosa as appearing in the written statements,
which he read over again to the witnesses together with the answers given
therein, asking the witnesses whether said answers were theirs, and
whether the same answers were true, to which the witness answered in the
affirmative. Republic Act No. 3828 does not prohibit the municipal Judge
from adopting the questions asked by a previous investigator.
It appears that the sworn statements[[5]] of the witnesses state at the
beginning that the sworn statement was "taken by T-Sgt. Candido L.
Patosa", and does not state that it was taken by the respondent municipal
Judge himself. This circumstance is explained by the fact that said written
statements already taken by T-Sgt. Patosa were delivered to respondent
Municipal Judge who adopted the questions therein in his examination,
because he considered them searching questions. Respondent Judge
presumably did not consider it necessary to change the introductory
remarks in each of the written statements. But that he made the
examination personally cannot be doubted; it is so stated in the order dated
February 18, 1967, which recites:
After examining the witness personally and under oath there is reasonable
ground to believe that an offense for murder has been committed and that
the accused, Simon Luna, is probably guilty thereof. (Exh. H)
The ruling in Doce vs. Branch II of the Court of First Instance of Quezon, et
al.,[[6]] wherein this Court held that the warrant of arrest issued therein was

irregularly issued is not applicable to the case at bar for the simple reason
that the facts are different. This Court in that case said:
There is merit in the assertion that the warrant of arrest was irregularly
issued. Section 87 of the Judiciary Act as amended by Republic Act
3828 requires that the Municipal Judge issuing the
same, personally examine under oath the witnesses, and
by searching questions and answers which are to be reduced to writing.
Here, instead of searching questions and answers, we have only the
affidavits of respondent and her one witness. Moreover, said affidavits were
sworn to before Judge Cabungcal, not before Judge Juntereal who issued
the warrant of arrest.
In the instant case, as stated above, the respondent Municipal Judge
personally examined under oath the witnesses by asking questions, that
were adopted from a previous investigation, and considered by him as
sufficiently searching and which questions and the answers thereto were in
writing and sworn to before him prior to his issuance of the order of arrest.
The second condition required by Republic Act No. 3828 for the issuance
of a warrant of arrest was also fulfilled. The trial court found that the
complaint was "supported by statements of the witnesses under oath." The
record also shows the following documents to have been subscribed and
sworn to before respondent Judge, namely: Exhibit B, sworn statement of
herein petitioner Simon Luna y Albay; Exhibit C, sworn statement of
Eusebio Corpuz; Exhibit D, sworn statement of Bruno M. Zafra; Exhibit E,
sworn statement of Martiliano J. Bautista; Exhibit F, sworn statement of
Janedina Diaz y Bandoy.
The third condition required by Republic Act No. 3828 was likewise fulfilled.
The examination of the witnesses was written down, in the form of
searching questions and answers. The term "searching questions and
answers" means only, taking into consideration the purpose of the
preliminary examination which is to determine "whether there is a
reasonable ground to believe that an offense has been committed and the
accused is probably guilty thereof so that a warrant of arrest may be issued

and the accused held for trial",[[7]] such questions as have tendency to
show the commission of a crime and the perpetrator thereof. What would
be searching questions would depend on what is sought to be inquired into,
such as: the nature of the offense, the date, time, and place of its
commission, the possible motives for its commission; the subject, his age,
education, status, financial and social circumstances, his attitude toward
the investigation, social attitudes, opportunities to commit the offense; the
victim, his age, status, family responsibilities, financial and social
circumstances, characteristics, etc. The points that are the subject of
inquiry may differ from case to case. The questions, therefore, must to a
great degree depend upon the Judge making the investigation. At any rate,
the court a quo found that respondent judge was "satisfied that the
questions and answers contained in the sworn statements taken by T-Sgt.
Patosa partake of the nature of his searching questions and answers as
required by law," so the respondent Judge adopted them.
Petitioner's further contention that the issuance of the warrant of arrest was
a violation of the constitution and of procedural due process is likewise
untenable. The Constitution, in Section 1(3), Article III, 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. The constitutional requirement of examination
of witnesses under oath was, as shown above, fulfilled. The existence of
probable cause depended to a large degree upon the finding or opinion of
the judge conducting the examination. Respondent judge found that there
was probable cause, as stated in his order of arrest, that "after examining
the witnesses personally and under oath there is a reasonable ground to
believe that an offense of murder has been committed and that the
accused, Simon Luna, is probably guilty thereof."
Petitioner's last contention that the warrant of arrest issued was a violation
of procedural due process because of the alleged defective preliminary
examination has no leg to stand on, in view of what we have hereinbefore
stated. Moreover, this Court has held that preliminary examination is not an

essential part of due process of law.[[8]]Preliminary examination may be

conducted by the municipal judge, prior to the issuance of the warrant of
arrest, either in the presence, or in the absence, of the accused. The record
shows that herein petitioner waived the preliminary investigation before
respondent Municipal Judge, and instead, he filed a petition for bail. The
petition for bail was at first granted by respondent Judge, but later the order
granting bail was revoked. This conduct of petitioner indicates that he had
waived his objection to whatever defect, if any, in the preliminary
examination conducted by respondent Judge prior to the issuance of the
warrant of arrest. Indeed, petitioner has no substantial much less legal
ground to complain that he was denied the due process of law.
We find that the trial Judge committed no error when he held that, based
upon the facts shown during the hearing of this case, respondent Municipal
Judge had substantially complied with the requirements of the law
specifically Republic Act 3828 before issuing the warrant of arrest in this
case.
2. In the light of what has been said above, it appears clear that petitioner's
second assignment of error, that the trial court erred in denying the writ
of habeas corpus, is untenable. Moreover, Section 4 of Rule 102; of the
Rules of Court provides in part, as follows:
SEC. 4. When writ not allowed or discharge authorized. If it appears that
the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge ... and that the court or
judge had jurisdiction to issue the process ... or make the order the writ,
shall not be allowed..
All the conditions, in the afore-quoted Section 4, set forth to deny the writ,
are present in the instant case. It is shown that petitioner is detained and is
in the custody of the respondent Provincial Warden by virtue of the order of
arrest dated February 18, 1967, and the order dated February 21, 1967, of
respondent Judge, to confine petitioner in the provincial jail. It is not
disputed by petitioner that respondent Judge had jurisdiction to issue the
warrant of arrest and the order of commitment under the provisions of
Section 47, Republic Act No. 409, as amended by Republic Act No. 1201,

although petitioner did question the validity of the warrant of arrest for
allegedly having been issued in violation of Republic Act No. 3828 which
claim We have found to be untenable. Consequently, the trial Judge did not
commit an error in denying the writ of habeas corpus prayed for.
At any rate, we believe that, if at all, the remedy available to the petitioner
herein, under the circumstances stated in this opinion, is not a petition for a
writ of habeas corpus but a petition to quash the warrant of arrest or a
petition for a reinvestigation of the case by the respondent Municipal Judge
or by the Provincial Fiscal.
We wish to stress, however, that what has been stated in this opinion is
certainly not intended to sanction the return to the former practice of
municipal judges of simply relying upon affidavits or sworn statements that
are made to accompany the complaints that are filed before them, in
determining whether there is a probable cause for the issuance of a
warrant of arrest. That practice is precisely what is sought to be voided by
the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of
1948) which requires that before a municipal judge issues a warrant of
arrest he should first satisfy himself that there is a probable cause by
examining the witnesses personally, and that the examination must be
under oath and reduced to writing in the form of searching questions and
answers. It is obvious that the purpose of this amendment is to prevent the
issuance of a warrant of arrest against a person based simply upon
affidavits of witnesses who made, and swore to, their statements before a
person or persons other than the judge before whom the criminal complaint
is filed. We wish to emphasize strict compliance by municipal or city judges
of the provision of Section 87 (c) of the Judiciary Act of 1948, as amended
by Republic Act 3828, in order to avoid malicious and/or unfounded
criminal prosecution of persons.[[9]]
In the case now before Us, while it is true that the respondent Municipal
Judge did not himself personally cause to be reduced to writing in the form
of questions and answers the examination of witnesses presented before
him by the person who filed the criminal complaint, We are satisfied that, as
shown by the evidence, respondent Judge had personally examined the

witnesses under oath and that the questions asked by the Judge and the
answers of the witnesses were reflected in writings which were actually
subscribed and sworn to before him. Moreover, We are of the considered
view that no substantial right of the petitioner had been violated because,
as hereinbefore adverted to, petitioner waived his right to preliminary
investigation after he was arrested, and he took the step of applying for bail
before respondent Municipal Judge. These acts of the petitioner
subsequent to his arrest, constitute an implied admission on his part that
here was a probable cause for the issuance of the warrant of arrest against
him. Those acts of the petitioner constitute a waiver of whatever
irregularity, if any there was, that attended his arrest.[[10]]
WHEREFORE, the decision of the trial court dated April 20, 1967,
appealed from, is affirmed. Costs against petitioner-appellant. It is so
ordered.
Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando and
Capistrano, JJ., concur.
Reyes, J.B.L., J., concurs in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. R-368-MTJ September 30, 1987
BENJAMIN C. UY petitioner,
vs.
HON. RENATO S. MERCADO, respondent.

PER CURIAM:

Municipal Trial Court Judge Renato S. Mercado of Cabarrogue Quirino

Province, later Municipal Circuit Trial Court Judge of Aglipay-Sagaday,
Quirino Province, is administratively charged with abuse of judicial power
and discretion and gross ignorance of the law.
The records show that, on 3 May 1985, former Mambabatas Pambansa
(MP) Orlando C. Dulay of Quirino Province filed a complaint for libel with
the Municipal Trial Court of Cabarroguis, Quirino Province, presided over
by respondent judge, against herein complainant Benjamin C. Uy, Apolonio
Batalla and Ulpiano Quizon, based on a publication in
the Tempo newspaper, dated 28, April 1985, implicating said former MP
Orlando C. Dulay, along with several others, who were charged before the
Provincial Fiscal of Cavite with the crime of robbery in band.
The records further show that respondent judge conducted the preliminary
investigation on former MP Orlando C. Dulay, as complainant on 3 May
1985, and issued the warrant for the arrest of the accused in the libel case
on the same day, without any evidence or proof that there was immediate
necessity of placing the accused under custody of the court and without
proof or evidence to warrant a conclusion that the accused may frustrate
the ends of justice by their non-appearance in the trial, as mandated by
Rule 112, Section 6(b) of the 1985 Rules on Criminal Procedure. As a
result, complainant Benjamin C. Uy, on 14 May 1985, while in the vicinity of
the City Hall in Quezon City, was arrested and ordered detained in
Cabarroguis, Quirino Province. The issuance of said warrant of arrest
caused incalculable damage and suffering to complainant and his family,
particularly because of the unusual arrest effected by the military elements
under the control and supervision of then MP Orlando C. Dulay.
Complainant alleges that respondent judge gave due course to the
complaint of libel despite the fact that, under Rep. Act No. 1289, as
amended by Rep. Act No. 4363, the proper jurisdiction and venue of the
case is Quezon City, where former MP Orlando C. Dulay held office or in
Manila where the allegedly libelous article was printed and first published.
Respondent judge, in his Comment, admits having conducted the
preliminary investigation in the libel case. He claims, however, that from the
preliminary examination made, along with what he gleaned from the news
item, there was reason to believe that there was probable cause for
issuance of the warrant of arrest and the court, over which he presided,

was of the behalf that the three accused were probably guilty of said libel.
Citing the cases of US vs. Ocampo, 18 Phil. 1, and Amarga vs. Abbas, 98
Phil. 739, respondent judge case that the judicial determination of probable
cause is final and conclusive and that whether probable cause exists or not
is discretionary for the court. He asks for the dismissal of the administrative
complaint.
Under Sec. 37 of Batas Pambansa No. 129, judges of Metropolitan Trial
Courts, except those in the National Capital Region, Municipal Trial Courts
and Municipal Circuit Trial Courts have authority to conduct preliminary
investigation of crimes alleged to have been committed within their
respective territorial jurisdictions and cognizable by the Regional Trial
Courts. And, Art. 360 of the Revised Penal Code on held, as amended by
Rep. Act No. 1289 and further amended by Rep. Act No. 4363, provides
that, where one of the offended parties is a public officer, the action shall
be filed in the Court of First Instance (now Regional Trial Court) of the
province or city where he holds office at the time of the commission of the
offense or of the province or city where the libelous article was printed and
first published. It is also provided that preliminary investigation of criminal
actions for written defamations shall be conducted by the provincial or city
fiscal of the province or city, or by the municipal court of the city or capital
of the province where such actions may be instituted in accordance with
the provisions of the above article. The limitation of choice of venue is
clearly intended to minimize or limit the filing of out-of-town libel suits to
protect the alleged offender from hardship, inconvenience, and harassment
and to protect the interest of the public service where one of the offended
parties is a public officer. 1 Hence, the proper court to hear the libel case,
in this instance, was either the court in Quezon City where former MP
Orlando C. Dulay held Office, or the court in Manila where the allegedly
libelous matter was printed and final published, but not the court in Qurino
Province.
When respondent judge, in the libel case filed by MP Dulay, conducted the
preliminary investigation on Dulay, he issued the warrant of arrest against
the accused on the same day. While it is mandated by law that preliminary
investigations should be simple, speedy and should not drag on for weeks
and months, to protect the substantial rights of the accused, and that the
investigating judge acts only upon probable cause and reasonable belief in
issuing a warrant of arrest, it is equally mandated that preliminary
investigations should secure the innocent against hasty, malicious and

oppressive prosecution to protect him from public accusation of crime, from

the trouble, expense and anxiety of public trial and to protect the State from
useless and expensive prosecutions. 2
Considering that libel suits are often intended to harass an alleged
offender, respondent judge should have satisfied himself not only that
probable cause exists, but likewise made certain that venue is properly laid
and jurisdiction legally acquired before taking cognizance of the case and
issuing the warrant of arrest. This, he did not do. Reference may be made,
at this point, to cases where despite the existence of probable cause, the
investigating judge does not issue a warrant of arrest when there appears
to be no necessity therefor. 3
It should be noted that the accused in the held case filed a motion to
dismiss, raising the issue of venue and jurisdiction, thus affording
respondent Judge an opportunity to rectify his previous stand, but
respondent fitted and refused to dismiss the libel suit, 4 even as it was clear
that the court, over which he presided, really had no jurisdiction over the
case. With this unjustified action, respondent judge placed his integrity
under a heavy cloud, leading the Court to believe that he went "out of his
way" to accommodate and favor the then influential and powerful former
Governor and later Mambabatas Pambansa of Quirino Province, Orlando
C. Dulay. As held by this Court in Montemayor vs. Judge Collado. 5
... The conduct and behavior of everyone connected with an
office charged with the position of justice, like the courts below,
from the presiding judge to the lowest clerk, should be
circumscribed with the heavy burden of responsibility. His
conduct, at all times, must not only be character with propriety
and above all must be above suspicion. Although every office in
the government service is a public trust, no position acts a
greater demand on momentarily righteousness and uprightness
of an individual than a seat in the judiciary. ...
It appearing that the records of the case sufficiently provide a clear basis
for the determination of charges. 6 The unjustified and irregular acts of
respondent judge in the premises constitute serious misconduct or at least,
gross ignorance of the law. Ordinarily, the misconduct of the respondent
would have warranted his dismissed from the service in view of its gravity.
However, this penalty may no longer be imposed because of his automatic

separation from the service upon his filing of a certificate of candidacy for
the position of Congressman for the province of Quirino in the elections of
11 May 1987. But, his actions cannot be allowed to go unpunished.
WHEREFORE, the Court orders the forfeiture of respondent's accrued
retirement benefits as well as leave and other privileges, if any, with
prejudice to re-employment in any branch or agency of the government,
including government-owned or controlled corporations. Respondent is
further required to show cause, within ten (10) days from notice hereof, why
he should not be disbarred for the misconduct referred to in this resolution.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-69899 July 15, 1985
ROMMEL CORRO, petitioner,
vs.
HON. ESTEBAN LISING Presiding Judge, Regional Trial Court,
Quezon City, Branch XCV HON. REMIGIO ZARI Regional Trial Court,
Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT.
COL. BERLIN A. CASTILLO and 1ST LT. GODOFREDO M.
IGNACIO, respondents,
Reynaldo L. Bagatsing for petitioner.
RELOVA, J.:
On September 29, 1983, respondent Regional Trial Court judge Esteban
Lising of Quezon City, upon application filed by Lt. Col. Berlin Castillo of the
Philippine Constabulary Criminal Investigation Service, issued Search
Warrant No. Q-00002 authorizing the search and seizure of
1. Printed copies of Philippine Times;

2. Manuscripts/drafts of articles for publication in the Philippine

Times;
3. Newspaper dummies of the Philippine Times;
4. Subversive documents, articles, printed matters, handbills,
leaflets, banners;
5. Typewriters, duplicating machines, mimeographing and tape
recording machines, video machines and tapes
which have been used and are being used as instrument and means of
committing the crime of inciting to sedition defined and penalized under
Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24,
Rollo)
On November 6, 1984, petitioner filed an urgent motion to recall warrant
and to return documents/personal properties alleging among others that:
2. ... the properties seized are typewriters, duplicating
machines, mimeographing and tape recording machines, video
machines and tapes which are not in any way, inanimate or
mute things as they are, connected with the offense of inciting
to sedition.
3. More so, documents or papers seized purporting to do the
body of the crime has been rendered moot and academic due
to the findings of the Agrava Board that a military conspiracy
was responsible for the slaying of the late Senator Benigno
Aquino, Jr. on August 21, 1983 at the Manila International
Airport. The Agrava Board which has the exclusive jurisdiction
to determine the facts and circumstances behind the killing had
virtually affirmed by evidence testamentary and documentary
the fact that soldiers killed Benigno Aquino, Jr.
4. More so, the grave offense of libel, RTC, Q.C. Branch XCV
has dismissed said case against the accused on all documents
pertinent and more so as we repeat, rendered moot and
academic by the recent Agrava Report. (p. 27, Rollo)

On January 28, 1985, respondent Judge Lising denied the motion in a

resolution, pertinent portions of which state:
... The said articles presently form part of the evidence of the
prosecution and they are not under the control of the
prosecuting arm of the government. Under these
circumstances, the proper forum from which the petition to
withdraw the articles should be addressed, is the Office of the
City Fiscal, Quezon City and not with this Branch of the Court. It
is to be further noted that it is not even with this Branch of the
Court that the offense of inciting to sedition is pending. (p
29, Rollo)
Hence, this petition for certiorari and mandamus, with application for
preliminary injunction and restraining order to enjoin respondent Regional
Trial Court, National Capital Region, Branch 98 from proceeding with the
trial of Criminal Case No. S3-Q-29243, praying (a) that Search Warrant No.
Q-00002 issued by respondent Judge Esteban M. Lising be declared null
and void ab initio and that a mandatory injunction be issued directing
respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo
and 1st Lt. Godofredo Ignacio jointly and severally to return immediately
the documents/properties illegally seized from herein petitioner and that
final injunction be issued enjoining respondents City Fiscal's Office of
Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio from utilizing said
documents/properties as evidence in Criminal Case No. 29243; and (b) that
respondent PC-CIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo
Ignacio be directed to reopen the padlocked office premises of the
Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M.,
Kalaw, Ermita, Manila.
In Our Resolution of February 19, 1985, respondents were required to file
their comment. The plea for temporary restraining order was granted and
respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and
1st Lt. Godofredo Ignacio were enjoined from introducing as evidence for
the state the documents/properties seized under Search Warrant No. Q00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner),
pending before the Regional Trial Court of Quezon City, Branch 98,
effective immediately and continuing until further orders from the Court.

Respondents would have this Court dismiss the petition on the ground that
(1) the present action is premature because petitioner should have filed a
motion for reconsideration of respondent Judge Lising's order of January
28, 1985; (2) probable cause exists justifying the issuance of a search
warrant; (3) the articles seized were adequately described in the search
warrant; (4) a search was conducted in an orderly manner; (5) the
padlocking of the searched premises was with the consent of petitioner's
wife; (6) the findings of the Agrava Board is irrelevant to the issue of the
validity of the search warrant; (7) press freedom is not an issue; and, (8)
the petition is barred by laches.
There is merit in the petition.
Respondents contend that petitioner should have filed a motion for
reconsideration of the order in question before coming to Us. This is not
always so. When the questions raised before the Supreme Court are the
same as those which were squarely raised in and passed upon by the
lower court, the filing of the motion for reconsideration in said court before
certiorari can be instituted in the Supreme Court is no longer a prerequisite. As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he
rule requiring the filing of a motion for reconsideration before an application
for a writ of certiorari can be entertained was never intended to be applied
without considering the circumstances. The rule does not apply where, the
deprivation of petitioners' fundamental right to due process taints the
proceeding against them in the court below not only with irregularity but
also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and
in Gonzales vs. Court of Appeals, 3 SCRA 465, this Court ruled that "it is
only when questions are raised for the first time before the high court in a
certiorari case that the writ shall not issue, unless the lower court had first
been given an opportunity to pass upon the same." Further, in the case
of Matute vs. Court of Appeals, 26 SCRA 768, We held that "while as a
matter of policy a motion for reconsideration in the lower court has often
been considered a condition sine qua non for the granting of a writ of
certiorari, this rule does not apply where the proceeding in which the error
occurred is a patent nullity or where 'the deprivation of petitioner's
fundamental right to due process ... taints the proceeding against him in the
court below not only with irregularity but with nullity (Luzon Surety Co. v.
Marbella et al., L-16038, Sept. 30, 1960), or when special circumstances
warrant immediate and more direct action. ..." The records of this petition

clearly disclose that the issues herein raised have already been presented
to and passed upon by the court a quo.
Section 3, Article IV of the 1973 Constitution provides:
SEC. 3. ...no search warrant or warrant of arrest issue except
upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
and, Section 3, Rule 126 of the New Rules of Court, states that:
SEC. 3. Requisites for issuing search warrant. A search
warrant shall not issue but upon probable cause in connection
with one specific offense to be determined by the judge or
justice of the peace 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.
Probable cause may be defined as "such reasons, supported by facts and
circumstances, as will warrant a cautious man in the belief that his actions,
and the means taken in prosecuting it, are legally just and proper (Burton
vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28
Phil. 566)." Thus, an application for search warrant must state with
particularly the alleged subversive materials published or intended to be
published by the publisher and editor of the Philippine Times, Rommel
Corro. As We have stated in Burgos, Sr. vs. Chief of Staff of the Armed
Forces of the Philippines, 133 SCRA 800, "mere generalization will not
suffice." A search warrant should particularly describe the place to be
searched and the things to be seized. "The evident purpose and intent of
this requirement is to limit the things to be seized to those, and only those,
particularly described in the search warrant- to leave the officers of the law
with no discretion regarding what articles they should seize, to the end that
unreasonable searches and seizures may not be committed, that
abuses may not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The
affidavit of Col. Castillo states that in several issues of the Philippine Times:

... we found that the said publication in fact foments distrust and
hatred against the government of the Philippines and its duly
constituted authorities, defined and penalized by Article 142 of
the Revised Penal Code as amended by Presidential Decree
No. 1835; (p. 22, Rollo)
and, the affidavit of Lt. Ignacio reads, among others
... the said periodical published by Rommel Corro, contains
articles tending to incite distrust and hatred for the Government
of the Philippines or any of its duly constituted authorities. (p.
23, Rollo)
The above statements are mere conclusions of law and will not satisfy the
requirements of probable cause. They can not serve as basis for the
issuance of search warrant, absent of the existence of probable cause. In
fact, as a consequence of the search warrant issued, the items confiscated
from the premises of the office of the Philippine Times at 610 Mezzanine
Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following:
1. One bundle of assorted negative;
2. One bundle of assorted lay out;
3. Three folders of assorted articles/writings used by Philippine
Times news and other paraphernalias;
4. Four tape alleged speech of Mayor Climaco, two alleged
speeches of Aquino and a speech of one various artist;
5. One bundle Dummies;
6. Ten bundles of assorted copies of Philippine Times issued
on different dates (Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15):
7. One Typewriter Remington Brand Long Carriage with No. J2479373;
8. OneTypewriterAdler-short with No. 9003011;

9. Three (3) bundles of Philippine Times latest issue for Baguio

City (p. 26, Rollo)
In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants
authorizing the seizure of books of accounts and records "showing all the
business transactions" of certain persons, regardless of whether the
transactions were legal or illegal, contravene the explicit comment of the
Bill of Rights that the things to be seized should be particularly described
and defeat its major objective of eliminating general warrants. In the case
at bar, the search warrant issued by respondent judge allowed seizure of
printed copies of the Philippine Times, manuscripts/drafts of articles for
publication, newspaper dummies, subversive documents, articles, etc., and
even typewriters, duplicating machines, mimeographing and tape recording
machines. Thus, the language used is so all embracing as to include all
conceivable records and equipment of petitioner regardless of whether they
are legal or illegal. The search warrant under consideration was in the
nature of a general warrant which is constitutionally objectionable.
Respondents do not deny the fact that the business office of the "Philippine
Times" of which petitioner was the publisher-editor was padlocked and
sealed. The consequence is, the printing and publication of said newspaper
were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of
the Philippines, supra, We held that "[sluch closure is in the nature of
previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and
even militant press is essential for the political enlightenment and growth of
the citizenry."
Finally, respondents argue that while the search warrant was issued on
September 29, 1983 and was executed on the very same day, it was only
on November 6, 1984, or one (1) year, one (1) month and six (6) days
when petitioner filed his motion for the recall of the warrant and the return
of the documents/personal properties. Having failed to act seasonably,
respondents claim that petitioner is guilty of laches.
Laches is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which by exercising due diligence, could or should
have been done earlier. The negligence or omission to assert a right within

a reasonable time, warranting a presumption that the party entitled to

assert it either has abandoned it or declined to assert it (Tijam vs.
Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35).
In his petition, Corro alleged that on October 1, 1983, less than forty-two
(42) hours after the military operatives shut down his newspaper on
September 29, 1983, he was invited by the Director-General PC/INP, and
subsequently detained. Thereafter, he was charged with the crime of
inciting to sedition before the City Fiscal's Office in Quezon City, and on
October 7, 1983, a preventive detention action was served upon him.
Consequently, he had to file a petition for habeas corpus. It was only on
November 8, 1984 when this Court issued its Resolution in G.R. No.
68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel
Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel
Corro on recognizance of his lawyers, Attys. Humberto B. Basco, Reynaldo
Bagatsing and Edilberto Balce, In the same month, November 1984,
petitioner filed his motion to recall warrant and to return the seized
documents. When respondent judge denied the motion, he came to Us.
Considering the above circumstances, the claim that petitioner had
abandoned his right to the possession of the seized properties is incorrect.
WHEREFORE, Search Warrant No. Q-00002 issued by the respondent
judge on September 29, 1983 is declared null and void and, accordingly,
SET ASIDE.
The prayer for a writ of mandatory injunction for the return of the seized
articles is GRANTED and all properties seized thereunder are hereby
ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A.
Castillo and lst Lt. Godofredo M. Ignacio are ordered to RE-OPEN the
padlocked office premises of the Philippine Times at 610 Mezzanine Floor,
Gochengco Bldg., T.M. Kalaw, Ermita, Manila.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. Nos. 101216-18 June 4, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REDENTOR DICHOSO y DAGDAG, SONIA DICHOSO y VINERABLE
and JAIME PAGTAKHAN y BICOMONG,accused.
REDENTOR DICHOSO y DAGDAG, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo M. Alcantara for accused-appellant.

DAVIDE, JR., J.:

Accused Redentor Dichoso y Dagdag appeals from the 11 June 1991
Decision of Branch 30 of the Regional Trial Court (RTC) of San Pablo City
in Criminal Case No. 6711-SP (91) and Criminal Case No. 6712-SP
(91) 1 finding him guilty beyond reasonable doubt of violating Section 15,
Article III and Section 4, Article II, respectively, of the Dangerous Drugs Act
of 1972 (R.A. No. 6425), as amended, and sentencing him in each of the
said cases to suffer the penalty of "reclusion perpetua with all its accessory
penalties, to pay a fine of P20,000.00 and the costs of the suit."
The informations in the above criminal cases were filed against Redentor
Dichoso and his wife Dichoso y Vinerable on 8 March 1991.
The accusatory portion of the information in Criminal Case No. 6711-SP
(91) reads as follows:
That on about February 23, 1991, in the City of San Pablo,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the accused above-named, conspiring,
confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously sell, deliver, give way

(sic) to another and distribute 1.3 grams of methamphetamine

hydrochloride (sic) (shabu) and 6 decks of aluminun foil of
shabu, a regulated drug without being authorized by law.
CONTRARY TO LAW. 2
while that in Criminal Case No. 6712-SP (91) states:
That on or about February 23, 1991, in the City of San Pablo,
Republic of the Philippines and within the jurisdiction of this
Honorable Court, the accused above-named, conspiring,
confederating and mutually helping one another, did then and
there wilfully, unlawfully and feloniously sell, deliver, give way
(sic) to another and distribute dried marijuana fruiting tops,
leaves and seeds, a dangerous drug, without being authorized
by law.
CONTRARY TO LAW. 3
Accused Jaime Pagtakhan was charged with illegally possessing a
regulated drug (shabu) and, thus, violating Section 16, Article III of the
Dangerous Drugs Act, as amended, in an information which was docketed
as Criminal Case No. 6710-SP (91) in the court a quo.
Accused Sonia Dichoso y Vinerable could not be arrested because, in the
words of the trial court, she "cannot be located." 4 The records do not show
that the trial court took further steps to have her arrested.
The three (3) cases were consolidated for joint trial in Branch 30 of the
RTC of San Pablo City and trial proceeded as against accused Jaime
Pagtakhan and Redentor Dichoso after the two had entered a plea of not
guilty upon arraignment. NARCOM agents S/Sgt. Iluminado Evangelista,
Sgt. Fabian Gapiangao, CIC Rolando Bisenio and P/Maj. Rosalinda
Royales, the forensic chemist, testified for the prosecution. Accused
Redentor Dichoso and Jaime Pagtakhan, as well as barangay captain
Francisco Calabia, testified for the defense. The latter identified
aSinumpaang Salaysay 5 in which he denounced the veracity of Exhibits
"B," "C" and "D" and his signatures therein.
The evidence for the prosecution is summarized by the trial court as
follows:

On February 22, 1991, the Narcotics Command of the 4th

Regional Unit stationed at Interior M. Paulino St., San Pablo
City applied for a search warrant to be issued on the house of
spouses Redentor Dichoso and Sonia Dichoso located at
Farconville Subd., Phase II, San Pablo City. After searching
questions on the applicant and his deponent the Court was
satisfied that there existed probable cause to believe that
indeed said spouses were keeping, selling and using an
undetermined quantity of methamphetamine hydrochloride (sic)
(shabu) and marijuana in said residence. Consequently, Search
Warrant No. 028 was issued by the Court (Exhibit "A").
On February 23, 1991, (Saturday) at about 2:00 P.M. at the
local NARCOM stationed at Interior M. Paulino St., San Pablo
City, T/Sgt. Iluminado Evangelista, the local District
Commander organized a team to serve Search Warrant No.
028 upon the spouses Redentor Dichoso and Sonia Dichoso
residing at Farconville Subd., Phase II, San Pablo City.
Evangelista, the team leader, was with S/Sgt. Fabian
Gapiangao, Sgt. Antonio Tila, CIC Rolando Besinio, Police
Officer Michael Exconde and a driver. Upon approaching said
residence the team met an old man and Evangelista introduced
himself and his companions as Narcom agents duly armed with
a search warrant. Evangelista asked for Redentor and Sonia
and the old man opened the gate into the Dichoso compound
for the Narcom Agents. The old man led them to the Nipa
house where inside Redentor, Jaime Pagtakhan and two other
persons were sitting near a small table with suspected shabu
and paraphernalia on top thereof. Taken aback the foursome
did not move. Evangelista told them that they were Narcom
agents, and that they should not make any move and they had
with them a search warrant to serve. He then asked Sgt. Tila, a
team member, to fetch for the barangay chairman (sic). In the
meantime Evangelista served a copy of the search warrant to
Redentor. After about 15 to 20 minutes Chairman Francisco
Calabia arrived and was met by Evangelista who forthwith
showed him a copy of the said warrant. Calabia read the search
warrant and explained the contents thereof to Redentor.

Thereafter, the search ensued inside the nipa house.

Evangelista discovered 200 grams more or less of suspected
marijuana wrapped in plastic inside a cabinet which was
standing on the right side upon entering the door of the nipa
house. Likewise discovered by him inside the cabinet are six (6)
decks of suspected shabu wrapped in an aluminun foil and the
"Golden Gate" notebook (Exhibit F) containing the list of
suspected customers of dangerous and regulated drugs
together with the corresponding quantity and prices. From
Pagtakhan's right hand, Evangelista recovered a small quantity
of suspected shabu.
Then, the search was shifted to the main house of the
Dichosos. However, the search produced negative results.
Evangelista instructed Besinio to collect the confiscated items
recovered at the nipa house of the Dichosos. Besinio
separately wrapped the items whereupon he and Gapiangao
made markings on the same. Besinio also put the names of
Redentor and Sonia inside some of the pages of Exhibit "F".
The team then got from the main house a plastic bag where all
the confiscated items were put. Besinio sat in a corner of the
nipa house and prepared in his own handwriting the
PAGPAPATUNAY (Exhibit "B") attesting to the result of the
search conducted by the NARCOM team listing thereon the
different confiscated items, another PAGPAPATUNAY (Exhibit
"C") attesting to the lawful manner the search was conducted,
and the Receipt (Exhibit "D"), all dated February 23, 1991. Said
exhibits were alternately given to Calabia who read the
contents thereof before voluntarily affixing his signatures
thereon. Then, he explained to Redentor and Pagtakhan the
contents of said exhibits. Afterwhich, Redentor likewise
voluntarily affixed his signatures thereon. (Exhibits B-1, C-1 and
D-3). Pagtakhan also affixed his signatures on Exhibit "B" and
"D" opposite the items confiscated in his possession by
Evangelista. A certain Angelito Ancot affixed his signature on
Exhibits B and C also as witness. Redentor was then given a
copy each of Exhibits B, C and D (Exhibits B-4, C-4 and D-4).
Subsequently, Calabia and the Narcom team left the Dichoso
residence. Said team brought with them for further investigation

at their headquarters Redentor, Pagtakhan and the two other

persons found inside the nipa house. Said two other persons
who were later known to be a certain "Jun" and a certain Bayani
Salamat were set free by the Narcom after having convinced
the investigators that they were innocent visitors or house
guests of Redentor. Evangelista prepared a letter addressed to
the PNP Crime Laboratory, Camp Vicente Lim, Calamba,
Laguna, requesting examination of the confiscated drugs. At
about 9:50 P.M. of that same day accused Redentor and
Pagtakhan executed their separate waivers under Article 125 of
the Revised Penal Code with the assistance of counsel
(Exhibits "J" and "K").
On February 25, 1991 (Monday) the Narcom made a return of
the search warrant and inventory to the Court (Exhibit E).
On February 26, 1991 (Tuesday) Besinio handcarried the
confiscated items to the PNP Crime Laboratory (Exhibits "L"
and "L-2") for examination. That same day P/Major Rosalinda L.
Royales, Forensic Chemist concluded, after qualitative
examination, that the one (1) transparent plastic bag containing
1.3 grams of suspected methamphetamine hydrochloride (sic)
(shabu) placed in a plastic bag with markings and the six (6)
foils containing 0.3 grams of suspected metamphetamine
hydrochloride (sic) (shabu) wrapped in a foil and placed in a
plastic bag with markings gave positive results for
methamphetamine hydrochloride (sic) (shabu). Additionally, the
one (1) aluminum foil containing 0.02 grams of
methamphetamine hydrochloride (sic) (shabu) placed in a
plastic bag with markings as confiscated from Pagtakhan gave
positive results for methamphetamine hydrochloride [sic]
(shabu) and the one (1) light green plastic bag containing 103.7
grams of suspected dried marijuana fruiting tops, crushed
leaves and seeds wrapped in a newspaper gave positive
results for marijuana (Exhibits M, series). 6
On 17 June 1991, the trial court promulgated its decision, 7 dated 11 June
1991, finding Jaime Pagtakhan and Redentor Dichoso guilty as charged.
The dispositive portion of the decision reads:

On the basis of the evidence on record, the Court finds that

Redentor Dichoso violated Section 15, Article III and Section 4,
Article II of the Dangerous Drugs Act. Also, it is the finding of
the Court that Jaime Pagtakhan violated Section 16 of said Act.
Both of them should be made to suffer the consequences of
their unlawful acts.
WHEREFORE, premises considered, the Court hereby renders
judgment in Criminal Case No. 6710-SP finding JAIME
PAGTAKHAN guilty beyond reasonable doubt of the offense
charged in the Information, hereby sentences him to suffer the
straight penalty of Six (6) years and one (1) of prision
mayor and to pay the costs. In case he files an appeal, the
bailbond for his provisional liberty is hereby fixed at double the
amount of his present bailbond.
In Criminal Cases Nos. 6711-SP and 6712-SP, the Court
hereby renders judgment finding accused REDENTOR
DICHOSO y DAGDAG guilty beyond reasonable doubt of the
offenses charged in the Informations, hereby sentences him to
suffer the penalty of reclusion perpetua with all its accessory
penalties, to pay a fine of P20,000.00 and the costs of suit. 8
Acting upon the ex-parte motion of the Assistant City Prosecutor, the trial
court, in its Order of 25 June 1991, 9clarified the sentence imposed on
accused Dichoso by declaring that the sentence of reclusion
perpetua refers to each of the two (2) cases against him, and amended the
decision by inserting the words "in each case" after the words "to suffer"
and before the words "the penalty" in the decretal portion thereof.
Accused Redentor Dichoso filed a Notice of Appeal. 10
The records does not disclose that accused Jaime Pagtakhan appealed
from the decision. The transmittal letter of the clerk of court of the RTC,
dated 7 August 1991, does not make any reference to Criminal Case No.
6710-SP(91) and its original record was not forwarded to this Court. 11
Nevertheless, the docket section of this Court entered in the docket the
three (3) criminal cases in the court below and numbered them as G.R.
Nos. 101216-18, erroneously including in the cover of the rollo the name of
Jaime Pagtakhan as an accused-appellant.

In the Appellant's Brief filed on 5 February 1992, 12 accused Redentor

Dichoso, henceforth referred to as the Appellant, urges this Court to
reverse the decision because the trial court erred in:
I. . . . NOT QUASHING SEARCH WARRANT NO. 028 AND
DISMISSING THE CASE AGAINST THE ACCUSED.
II. . . . CONVICTING THE ACCUSED ON THE BASIS OF
ILLEGALLY SEIZED AND/OR PLANTED EVIDENCE.
III. . . . ADMITTING PROSECUTION'S EXHIBITS B, C AND D
WITHOUT THE ACCUSED BEING ASSISTED BY COUNSEL.
IV. . . . CONVICTING THE ACCUSED ON THE BASIS OF
EVIDENCE INSUFFICIENT TO PROVE THE GUILT OF THE
ACCUSED BEYOND REASONABLE DOUBT.
V. . . . COMPLETELY DISREGARDING ACCUSED'S
EVIDENCE THAT THE LAND AND NIPA HUT FROM WHERE
THE PROHIBITED, REGULATED (sic) AND SETS OF
PARAPHERNALIAS (sic) WERE ALLEGEDLY CONFISCATED
BELONG TO ANOTHER PERSON. 13
In support of the first and second assigned errors which are jointly
discussed, appellant contends that Search Warrant No. 028, obtained and
executed by the NARCOM agents, is a general warrant because it was
issued for "Violation of RA 6425 known as the Dangerous Drugs Act of
1972 as amended" and did not specify the particular offense which he
violated under the said law, contrary to the requirements prescribed by the
Constitution and the Rules of Court, and that it was issued in violation of
Section 3, Rule 126 of the Rules of Court which provides that "no search
warrant shall issue for more than one specific offense." It was, he asserts,
issued for three (3) possible offenses, viz.: (a) illegal possession of
marijuana dried leaves, (b) illegal possession of methamphetamine
hydrochloride, and (c) illegal possession of opium pipe and other
paraphernalia for prohibited drug. He then argues, following this Court's
ruling in Stonehill vs. Diokno 14 which condemned general warrants and
barred the admission of any evidence obtained by virtue thereof, that the
articles seized from the nipa house could not be used as evidence against
him and be made the basis of his conviction.

Appellant further claims that he was framed by the police officers. He states
that a certain Jun planted the deck of shabu found on the table where he
and his companions were gathered around. Jun allegedly placed the shabu
there after asking permission to use it, then he went out to meet Sgt.
Evangelista and the members of the NARCOM team outside the house.
Jun purportedly did not return to the hut anymore, leaving his friend Bayani
Salamat behind. Appellant and Jaime Pagtakhan were also allegedly
handcuffed immediately, while Salamat was not and was, in fact, released
without being interrogated. To bolster his claim, appellant cites the
testimony of Barangay Captain Calabia that the search which yielded the
shabu, marijuana and drug paraphernalia was conducted even before his
arrival, that when he arrived, the seized articles were already on the table,
and that the appellant was already handcuffed. Calabia also assailed the
veracity of Exhibits "B," "C" and "D".
In his third assignment of error, appellant contends that (1) Exhibit "B"
(a "Pagpapatunay" attesting to the result of the search conducted by the
NARCOM team and listing the items confiscated), (2) Exhibit "C"
(a "Pagpapatunay" attesting to the lawful manner of the search), and (3)
Exhibit "D" (the Receipt for Property Seized) are inadmissible in evidence
since he signed them while under police custody without having been
accorded his Constitutional rights to remain silent and to counsel. These
exhibits, he argues, constitute uncounselled extrajudicial confessions.
In his fourth assignment of error, appellant alleges that he cannot be
convicted for violation of R.A. No. 6425, as amended, for unlawfully selling,
delivering and giving away to another, and distributing 1.3 grams of
methamphetamine hydrochloride (shabu) and dried marijuana leaves, fruit
tops and seeds since he was not caught "in flagrante." He posits the view
that in the light of the definition of "delivering" and "selling" in Section 2 of
the Act, only the overt acts of unlawfully selling, delivering, dispensing,
transporting and distributing prohibited and regulated drugs are punishable
under Sections 4 and 15 of the said Act, respectively. He points out that
according to Article 3 of the Revised Penal Code, mere intention is not a
crime. He further argues that Exhibit "F" cannot be a basis for his
conviction because (1) the alleged transactions mentioned therein are
undetermined and could refer to a loan, chattel mortgage or sale, but not to
the dispensing and delivering of shabu and marijuana as the lower court
presumed; (2) the names of Redentor Dichoso of "Redy Dichoso" and
Sonia Dichoso appearing in the said notebook were entered or written by

CIC Orlando Besinio himself, and without such entry, there is nothing
therein which would associate it with the appellant; and (3) it is inadmissible
in evidence because it is not among the items particularized in the search
warrant. He concludes this assigned error with a claim that the trial court
erred in holding that a considerable quantity of shabu and marijuana was
found in his residence because 1.3 grams of shabu and six (6) decks of
aluminum foil of shabu can by no means be characterized as
"considerable," especially taking into account his admission that he
sometimes uses shabu.
In his last assigned error, appellant asserts that the nipa house and the lot
where it is located do not belong to him but to his brother, Abner Dichoso,
hence, the search conducted therein was unconstitutional and illegal and
the items obtained thereby are inadmissible in evidence against him.
Appellee, thru the Office of the Solicitor General, refutes the arguments
raised by the appellant and prays that We affirm the assailed decision.
We shall now pass upon the assigned errors and the arguments adduced
in support thereof.
On the validity of the search warrant: In its entirety, the search warrant in
question reads as follows:
Republic of the Philippines
REGIONAL TRIAL COURT
4th Judicial Region, Branch 30
San Pablo City
People of the Philippines,
Plaintiff,
-versus- SEARCH WARRANT No. 028
REDENTOR DICHOSO -forand SONIA DICHOSO
of Farconville Sub., VIOLATION OF RA 6425
Phase II, San Pablo known as the "Dangerous
City, Drugs Act of 1972" as amended
Respondents.

SEARCH WARRANT
TO ANY OFFICER OF THE LAW:
G r e e t i n g s:
It appearing to the satisfaction of the undersigned after
examining under oath, T/Sgt. Iluminada S. Evangelista and his
witness Marlon Alcayde that there is probable cause to believe
that the above-named defendants are illegally in possession of
undetermined quantity/amount of dried marijuana leaves and
Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalias (sic) stored inside the nipa hut within the
compound of their residence at Farconville Sub., Phase II, San
Pablo City which should be seized and brought to the
undersigned.
You are hereby commanded to make an immediate search at
reasonable hour of the day or night of the premises abovedescribed and forthwith seize and take possession of the
above-stated marijuana leaves, shabu and sets of
paraphernalias (sic) and bring the same to the undersigned to
be dealt with as the law directs.
Witness my hand this 22nd day of February, 1991, at San
Pablo City.
(SGD.) J. AUSBERTO B.
JARAMILLO, JR.
(TYP) J. AUSBERTO B.
JARAMILLO, JR.
Judge 15
It is clear that the search warrant cannot be assailed as a general search
warrant because while it is for "Violation of RA 6425 known as the
"Dangerous Drugs Act of 1992 as amended," the body thereof, which is
controlling, particularizes the place to be searched and the things to be
seized, and specifies the offense involved, viz., illegal possession of
marijuana and shabu and paraphernalia in connection therewith. These are
evident from the clause, "are illegally in possession of undetermined
quantity/amount of dried marijuana leaves and methamphetamine

Hydrochloride (Shabu) and sets of paraphernalias stored inside the nipa

hut within the compound of their residence at Farconville Sub., Phase II,
San Pablo City."
Appellant's contention that the search warrant in question was issued for
more than one (1) offense, hence, in violation of Section 3, Rule 126 of the
Rules of Court, is unpersuasive. He engages in semantic juggling by
suggesting that since illegal possession of shabu, illegal possession of
marijuana and illegal possession of paraphernalia are covered by different
articles and sections of the Dangerous Drugs Act of 1972, the search
warrant is clearly for more than one (1) specific offense. In short, following
this theory, there should have been three (3) separate search warrants,
one for illegal possession of shabu, the second for illegal possession of
marijuana and the third for illegal possession of paraphernalia. This
argument is pedantic. The Dangerous Drugs Act of 1972 is a special law
that deals specifically with dangerous drugs which are subsumed into
"prohibited" and "regulated" drugs and defines and penalizes categories of
offenses which are closely related or which belong to the same class or
species. Accordingly, one (1) search warrant may thus be validly issued for
the said violations of the Dangerous Drugs Act.
In Olaes vs. People, 16 which was cited by the Solicitor General, We
sustained a search warrant similarly captioned and rejected the argument
of the petitioner therein that it was a general warrant, thus:
The petitioners claim that the search warrant issued by the
respondent judge is unconstitutional because it does not
indicate the specific offense they are supposed to have
committed. There is, therefore, according to them, no valid
finding of probable cause as a justification for the issuance of
the said warrant in conformity with the Bill of Rights. In support
of this argument, they cite Stonehill v. Diokno, where Chief
Justice Concepcion struck down the search warrants issued
therein for being based on the general allegation that the
petitioners had committed violations of "Central Bank Laws,
Tariff and Customs Laws, Internal Revenue Code and Revised
Penal Code." . . .
xxx xxx xxx

We have examined the search warrant issued in the instant

case and find it does not come under the strictures of the
Stonehill doctrine. In the case cited, there was a bare reference
to the laws in general, without any specification of the particular
sections thereof that were alleged to have been violated out of
the hundreds of prohibitions contained in such codifications.
There is no similar ambiguity in the instant case.
While it is true that the caption of the search warrant states that
it is in connection with "Violation of RA 6425, otherwise known
as the Dangerous Drugs Act of 1972," it is clearly recited in the
text thereof that 'There is probable cause to believe that Adolfo
Olaes alias "Debie" and alias "Baby" of No. 628 Comia St.,
Filtration, Sta. Rita, Olongapo City, has in their possession and
control and custody of marijuana dried
stalks/leaves/seeds/cigarettes and other regulated/prohibited
and exempt narcotics preparations which is the subject of the
offense stated above." Although the specific section of the
Dangerous Drugs Act is not pinpointed, there is no question at
all of the specific offense alleged to have been committed as a
basis for the finding for probable cause. The search warrant
also satisfies the requirement in the Bill of Rights of the
particularity of the description to be made of the "place to be
searched and the persons or things to be seized."
The rationale We laid down in Prudente vs. Dayrit 17 holds true in the
instant case. There, We upheld the validity of a search warrant assailed as
having been allegedly issued for more than one (1) offense since it did not
contain any reference to any particular provision of P.D. No. 1866 that was
violated, when allegedly P.D. No. 1866 punishes several offenses. We
said:
In the present case, however, the application for search warrant
was captioned: "For violation of PD No. 1866 (Illegal
Possession of Firearms, etc.)." While the said decree punishes
several offenses, the alleged violation in this case was,
qualified by the phrase "illegal possession of firearms, etc." As
explained by respondent Judge, the term, "etc." referred to
ammunitions and explosives. In other words, the search
warrant was issued for the specific offense of illegal possession

of firearms and explosives. Hence, the failure of the search

warrant to mention the particular provision of PD No. 1866 that
was violated is not of such a gravity as to call for its invalidation
on this score.
Besides, while illegal possession of firearms is penalized under
Section 1 of PD No. 1866 and illegal possession of explosives
is penalized under Section 3 thereof, it cannot be overlooked
that said decree is a codification of the various laws on illegal
possession of firearms, ammunitions and explosives; such
illegal possession of items destructive of life and property are
related offenses or belong to the same species, as to be
subsumed within the category of illegal possession of firearms,
etc. under P.D. No. 1866. . . .
We, therefore, agree with the Solicitor General that the search warrant in
question contains fatal infirmity that may justify its invalidation.
Since Search Warrant No. 028 is valid, the articles seized by virtue of its
execution may be admitted in evidence. Consequently, the trial committed
no error in denying the appellant's motion to quash the said warrant and
refusing to dismiss the informations filed against him.
Frame-Up: This Court rejects the appellant's claim that he was framed. This
defense requires strong and convincing evidence because of the
presumption that the law enforcement agents acted in the regular
performance of their official duties. 18 Appellant failed to rebut this
presumption. He did not even attempt to prove that the NARCOM agents
who obtained the search warrant, conducted the search and recovered the
prohibited drugs had motives other than to enforce the law and stem the
menace of drug addiction and trafficking which has already reached an
alarming level and has spawned a network of incorrigible, cunning and
dangerous operations. 19 It may be stressed here that the defense of frameup can be easily fabricated and the accused in drugs cases almost always
take refuge in such a defense. 20
Furthermore, as correctly noted by the Solicitor General, appellant's claim
of a frame-up only concerns the deck of shabu allegedly taken out of the
pocket of one Jun who asked for and was readily permitted by the appellant
to use shabu on that occasion. It does not concern, much less explain, the

origin of the other prohibited drugs and paraphernalia seized during the
search.
Admissibility of Exhibits "B," "C" and "D": There is merit to the appellant's
claim that Exhibits "B," "C" and "D" partake of the nature of uncounselled
extrajudicial confessions made while under the custody of the NARCOM
agents and, therefore, violative of Section 12, Article III of the 1987
Constitution. 21 These exhibits are not "simply inventories or receipts of
articles seized from appellant" as the appellee wants this Court to
believe. 22 A clearer examination thereof shows that CIC Rolando Bisenio,
who prepared them, deliberately wrote, in bold letters below the name
REDENTOR D. DICHOSO (over which the appellant was made to sign) the
words "MAY-ARI" in Exhibit "B" and "MAY-ARI BAHAY" in Exhibit "C,"
while the word "OWNER" is printed below the sub-heading "COPY OF THE
RECEIPT RECEIVED" in Exhibit "D." By such descriptive words, appellant
was in fact made to admit that he is the owner of the articles seized (Exhibit
"B"), the house searched (Exhibit "C") and the articles inventoried in the
receipt (Exhibit "D"). Thus, while it may be true that the appellant was not
asked specific questions regarding the vital issue of ownership, Bisenio
obtained an admission from the former through the said exhibits. This was
a clever way of circumventing the aforesaid Constitutional rights to counsel
and to remain silent. Admittedly, at the time Bisenio prepared the exhibits,
the appellant was already in the effective custody of the NARCOM agents
deprived in a significant way of his freedom of action. The preparation of
the exhibits substituted, for all legal intents and purposes, the custodial
interrogation.
There was no need of requiring the appellant to sign documents similar to
Exhibits "B" and "C." As to Exhibit "D," which is the receipt for property
seized, it is a document required by Section 10, Rule 126 of the Rules of
Court to begiven by the seizing officer to the lawful occupant of the
premises in whose presence the search and seizure were made. It is true
that in People vs. Olivares, 23 We made the following statements:
Exhibits "A" and "L" which identically show the specimen
signatures, are also admissible. These documents are part and
parcel of a mandatory and normal procedure followed by the
apprehending and seizing police officers. In these three
Exhibits, the accused-appellant did not give any statement
against his own interest. The mere signing of documents did

not amount to Olivares' subjection to a custodial investigation

wherein an accused is required to give statements about his
involvement in the offense and wherein the right to be informed
of his rights to silence and to counsel would otherwise be
invoked. (People v. Rualo, 152 SCRA 635 [1987]). Guilt is
proved by other evidence.
Yet, as explicitly indicated therein, Olivares "did not give any statement
against his own interest," unlike in the case of the appellant whose name
Bisenio described as the owner.
Nevertheless, the above discussions do not alter the result of this appeal.
As correctly stated by the appellee, these exhibits were not appreciated by
the trial court as extrajudicial confessions but merely as proof that the
articles therein enumerated were obtained during the search which, by the
way, was sufficiently established by the testimonies of the NARCOM
agents independently of the said exhibits.
Seizure of Exhibit "F": It is contended by the appellant that Exhibit "F," the
brown notebook containing the entries of names and figures, should not
have been admitted in evidence because it was not one of those
specifically mentioned in the warrant, hence, its seizure was unjustified.
This so-called warrant rule that only those listed in the search warrant
may be seized which the appellant claims to have been enunciated in
1920 in Uy Khetin vs. Villareal. 24 and which he now summons to his
rescue, is not without exceptions. Among such exceptions is the plain view
doctrine enunciated in Harris vs. United States 25 and Coolidge vs. New
Hampshire 26 which has been adopted in our jurisdiction. 27
In Harris, the Federal Supreme Court of the United States of America ruled:
It has long been settled that objects falling in the plain view of
an officer who has a right to be in the position to have that view
are subject to seizure and may be introduced in evidence. Ker
v. California, 374 US 23, 42-43, 10 L ed 2nd 726, 743, 83 S Ct
1623 (1963); United States v. Lee, 274 US 559, 71 L ed 2nd
1202, 47 S Ct 746 (1927); Hestor v. United States, 265 US 57,
68 L ed 2d 898, 44 S Ct 445 (1924).
We are not, however, inclined to rule that the foregoing exception applies to
this case, for the reason that the search warrant was not for unlawful sale

of shabu or marijuana but for unlawful possession thereof as shall be

hereinafter discussed and that the notebook per se is not an article
possession of which is illegal or criminal. Exhibit "F" proves neither sale nor
possession.
Ownership of the House Searched: The view of the appellant that the
search was illegal and the articles seized thereby cannot be used against
him in evidence since he does not own the nipa house searched or the lot
wherein it was built, is unmeritorious. It is not necessary that the property to
be searched or seized should be owned by the person against whom the
search warrant is issued; it is sufficient that the property is under his control
or possession. 28 It was established, even by the defense's own evidence,
that the appellant and his spouse have been using the said nipa house. He
admitted that the nipa house is actually part of and adjacent to the big or
main house in the Dichoso residential compound, and that he and his
family have been using the nipa house as a resting place even before the
search.29
Any doubt as to the appellant's control over the nipa house where the
seized articles were recovered is wiped out by the testimony of the
defense's own witness, Francisco Calabia, who affirmed that the appellant
and his wife Sonia Dichoso actually reside therein while Redentor's parents
and brother reside in the big house. 30
And now to the culpability of the appellant. He contends that he could not
be held guilty under Section 15, Article III (for unlawful sale of shabu) and
under Section 4, Article II (unlawful sale of marijuana) of the Dangerous
Drugs Act in Criminal Case No. 6711-SP (91) and Criminal Case No. 6712SP(91), respectively, because he was not caught in the act of selling or
delivering shabu and marijuana, and that the finding of guilt against him
was based solely on Exhibit "F" which, according to the trial court, "contains
conclusive proof of Redentor's unlawful business of selling shabu and
marijuana to customers, which included Pagtakhan and Bayani Salamat."
After a careful review and evaluation of the evidence on record, this Court
finds that the evidence of the prosecution is insufficient to sustain a
conviction for unlawful sale of shabu in Criminal Case No. 6711-SP (91)
and for unlawful sale of marijuana in Criminal Case No. 6712-SP (91).
There is, however, overwhelming evidence which establishes with moral
certainty the guilt of the appellant for illegal possession of shabu and

marijuana under Section 16, Article III and Section 8, Article II, respectively,
of the Dangerous Drugs Act of 1972, as amended.
In convicting the appellant as charged, the trial court relied mainly on
Exhibit "F", which it considered as "conclusive proof" of the appellant's drug
pushing, and the ruling in People vs. Toledo. 31 It said:
Redentor may claim that no evidence exists to show that he
was drug pushing i.e., selling, delivering, giving way (sic) to
another and distributing shabu and marijuana. The Court is not
convinced. Exhibits "F" among other things was found inside his
nipa house where, according to Calabia, the said spouses
reside. Redentor exercised control and custody of Exhibit F. He
is commonly referred to by his nickname "Redy" which
incidentally appears in some pages of Exhibits F. Pagtakhan,
on the other hand, answers to the nickname "Jimmy" which also
appears in Exhibit F. Bayani Salamat, one of the companion
(sic) of Redentor inside the nipa house at the time the Narcom
agents arrived, also appears to be a customer of Redentor (see
pages 2 and 3 reverse side of page 5, Exhibits "F"). Redentor,
according to Pagtakhan, is called for (sic) his nickname "Redy".
That name appears on Exhibit F (see pages 2, 3, 4, and 5,
thereof). The Court finds and so holds that Exhibit F contains
conclusive proof of Redentor's unlawful business of selling
shabu and marijuana to customers which includes Pagtakhan
and Bayani Salamat. . . .. Furthermore, there is a considerable
quantity of shabu and marijuana taken by the Narcom agents
from the residence of Redentor which strongly indicates an
intention of the part of Redentor to sell, distribute and deliver
said dangerous and regulated drugs without being authorized
by law (People vs. Toledo, 140 SCRA 259). 32
We find, however, that the conclusions drawn from Exhibit "F" are merely
conjectural. For one, the prosecution did not attempt, and thus failed, to
prove that the handwritten entries therein were made by the appellant. It
could have easily done so by presenting, in accordance with the Rules,
either a handwriting expert or an ordinary witness familiar with the
handwriting of the appellant. 33 There is, as well, no competent proof that
the said entries refer to transactions regarding shabu or marijuana and that
the figures appearing therein pertain to prices of dangerous drugs.

The facts in the instant case do not warrant the application of People vs.
Toledo, 34 which the trial court and the appellee cited as authority. While in
that case, this Court stated that the possession of a considerable amount of
a prohibited drug (three (3) plastic bags of marijuana) coupled with the fact
that the accused was not a user of the prohibited drug, indicate nothing
except the intention to sell and distribute it, the conviction of Toledo for
violation of Section 4 of the Dangerous Drugs Act of 1972, as amended,
was not based on that ground alone, but on the accused's extrajudicial
confession, held to be valid and admissible, wherein he disclose the details
of his transactions of buying and selling marijuana by narrating how and
from whom he bought the three (3) plastic bags of marijuana found in his
possession, to whom he would sell it, and for how long he had been
engaged in pushing prohibited drugs. In the instant case, appellant
disclaims ownership of Exhibit "F" and avers that the names Redentor and
Sonia Dichoso written on several pages thereof were actually written by
prosecution witness CIC Orlando Bisenio. 35 Other than exhibit "F," there is
no evidence of sale, delivery, distribution or transportation of prohibited
drugs by the appellant.
The other case cited by the appellee, People vs. Claudio, 36 is of no help to
the prosecution. In that case, the accused was convicted of the violation of
Section 4 of R.A. No. 6425 for her act of transporting marijuana and not of
selling or delivering the same, thus:
Claudio contends that there was no delivery as there was no
recipient of the prohibited drugs. Therefore, she may not be
convicted under Sec. 4 of Rep. Act No. 6425.
The contention is without merit. A closer perusal of the subject
provision shows that it is not only delivery which is penalized
but also the sale, administration, distribution and transportation
of prohibited drugs. Claudio was caught transporting 1.1 kilos of
marijuana, thus the lower court did not err in finding her guilty of
violating Sec. 4. 37
In a prosecution for illegal sale of marijuana, what is material is the proof
that the selling transaction transpired coupled with the presentation in court
of the corpus delicti as evidence, 38 and that to sustain a conviction for
selling prohibited drugs, the sale must be clearly and unmistakably
established. 39

In the case at bar, not a single witness of the prosecution, not even Sgt.
Evangelista, claims to have seen the appellant sell or deliver shabu or
marijuana to anybody. Although Sgt. Evangelista testified that he was sold
by his civilian informer or agent that the latter was able to buy shabu from
and was offered marijuana by the appellant, the said civilian informer, who
was presented by the NARCOM when it applied for a search warrant, was
not presented in court during the trial of the cases below.
The unlawful sale of shabu or marijuana must be established by
unequivocal and positive evidence. 40
There is no doubt, however, that the appellant is guilty of unlawful
possession of shabu under Section 16, Article III and unlawful possession
of marijuana under Section 8, Article II of the Dangerous Drugs Act of
1972, as amended, in Criminal Case No. 6711-SP (91) and Criminal Case
No. 6712-SP (91), respectively. The crime of unlawful possession of shabu,
a regulated drug, under Section 16 is necessarily included in the crime of
unlawful sale thereof under Section 15. Similarly, the crime of unlawful
possession of marijuana under Section 8 is necessarily included in the
crime of unlawful sale of marijuana under Section 4 of the Act. 41
The appellant cannot evade liability for illegal possession of dangerous
drugs by his admission that he sometimes uses shabu. Section 30 of R.A.
No. 6425, which provides that a drug dependent who voluntarily submits
himself for confinement, treatment and rehabilitation in a center, shall not
be criminally liable for any violation of Section 8 and Section 16 of the law,
does not apply to the appellant because occasional "use" of a dangerous
drug is not the same as "drug dependence" which is defined as "a state of
psychic or physical dependence, or both, on a dangerous drug, arising in a
person following administration or use of that drug on a periodic or
continuous basis." 42Throughout the trial of the case below, the appellant,
whose petition for bail due to health reasons was denied, he has not been
shown to be a drug dependent and even if he was, indeed, a drug
dependent, he did not voluntarily submit himself for rehabilitation as
required by the law.
On the contrary, appellant's admission during the trial that he used shabu
"once in a while" 43 only helps ensure his conviction for violation of Section
16 of the Dangerous Drugs Act because the unauthorized use of a

regulated drug like shabu is one of the acts punishable under the said
section.
The penalty for illegal possession of regulated drugs like shabu is
"imprisonment ranging from six years and one day to twelve years and a
fine ranging from six thousand to twelve thousand pesos." 44 The same
penalty is provided for illegal possession of marijuana, a prohibited
drug. 45 The Indeterminate Sentence Law 46 should, however, be applied. It
provides that in imposing a prison sentence for an offense punished by a
law other than the Revised Penal Code, the court shall sentence the
accused to an indeterminate sentence, the minimum term of which shall not
be less than the minimum fixed by law and the maximum of which shall not
exceed the maximum term prescribed by the same.
WHEREFORE, in view of all the foregoing, the appealed Decision of the
Regional Trial Court of San Pablo City, dated 11 June 1991, in Criminal
Cases Nos. 6711-SP (91) and 6712-SP (91) is hereby modified. As
modified, accused-appellant REDENTOR DICHOSO y DAGDAG is hereby
found guilty beyond reasonable doubt of violation of Section 16, Article III of
the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, in Criminal
Case No. 6711-SP (91) and Section 8 of Article II of the said Act in Criminal
Case No. 6712-SP (91). Applying the Indeterminate Sentence Law, he is
hereby sentenced in each case to suffer the penalty of imprisonment
ranging from eight (8) years as minimum to twelve (12) years as maximum,
and to pay a fine of Twelve Thousand Pesos (P12,000.00).
Costs against the accused-appellant.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 89103 July 14, 1995

LEON TAMBASEN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL
PROSECUTOR GLORIA LASTIMOSA MARCOS and HON. CICERO U.
QUERUBIN in his capacity as Presiding Judge of the Regional Trial
Court of Negros Occidental, Branch 44, Bacolod City, respondents.

QUIASON, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised
Rules of Court to set aside the Order dated July 20, 1989 of the Regional
Trial Court (RTC), Branch 44, Bacolod City in Civil Case No. 5331, which
nullified the order earlier issued by the Municipal Trial Circuit Court (MTCC)
of the City of Bacolod. The MTCC Order directed the return to petitioner of
the amount of P14,000.00 which had been seized by the police.
I
On August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a
search warrant from the MTCC, alleging that he received information that
petitioner had in his possession at his house at the North Capitol Road,
Bacolod City, "M-16 Armalite Rifles (Mags & Ammos), Hand Grenades, .45
Cal. Pistols (Mags & Ammos), Dynamite Sticks and Subversive
Documents," which articles were "used or intended to be used" for illegal
purposes (Rollo, p. 14). On the same day, the application was granted by
the MTCC with the issuance of Search Warrant No. 365, which allowed the
seizure of the items specified in the application (Rollo, p. 15).
At around 6:30 P.M. of September 9, 1988, a police team searched the
house of petitioner and seized the following articles:
(1) Two (2) envelopes containing cash in the total amount of
P14,000.00 (one envelope P10,000.00 and another P4,000.00);
(2) one (1) AR 280 handset w/antenae (sic) SN-00485;
(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);
(4) one (1) ALINCO ELH 230D Base;

(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP 128

VAC;
(6) one (1) brown Academy Notebook & Assorted papers; and
(7) Four (4) handsets battery pack (Rollo, p. 16).
On September 19, 1988, the MTCC, acting on petitioner's urgent motion for
the return of the seized articles, issued an order directing Sgt. Natuel to
make a return of the search warrant. The following day, Sgt. Natuel
submitted a report to the court. Not considering the report as a "return in
contemplation of law," petitioner filed another motion praying that Sgt.
Natuel be required to submit a complete and verified inventory of the
seized articles. Thereafter, Sgt. Natuel manifested that although he was the
applicant for the issuance of the search warrant, he was not present when
it was served.
On October 7, 1988, petitioner filed before the MTCC a motion praying that
the search and seizure be declared illegal and that the seized articles be
returned to him. In his answer to the motion, Lt. Col. Nicolas Torres, the
station commander of the Bacolod City Police, said that the amount of
P14,000.00 had been earmarked for the payment of the allowance of the
Armed City Partisan (ACP) and other "known NPA personalities" operating
in the City of Bacolod.
On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres
to return the money seized to petitioner. The court opined that in the
implementation of the search warrant, any seizure should be limited to the
specific items covered thereby. It said that the money could not be
considered as "subversive documents"; it was neither stolen nor the effects
of gambling.
Three months later, the Solicitor General filed before the RTC, Branch 44,
Bacolod City a petition for certiorariseeking the annulment of the order of
the MTCC (Civil Case No. 5331). The petition alleged that assuming that
the seizure of the money had been invalid, petitioner was not entitled to its
return citing the rulings in Alih v. Castro, 151 SCRA 279 (1987) and Roan
v. Gonzales, 145 SCRA 687 (1986). In those cases, the Court held that
pending the determination of the legality of the seizure of the articles, they
should remain in custodia legis. The petition also averred that a criminal
complaint for "any of the crimes against public order as provided under

Chapter I, Title III of the Revised Penal Code" had been filed with the City
Fiscal (BC I.S. No. 88-1239) and therefore, should the money be found as
having been earmarked for subversive activities, it should be confiscated
pursuant to Article 45 of the Revised Penal Code.
On July 20, 1989, RTC, Branch 44 issued an order granting the petition
for certiorari and directing the clerk of court to return to the MTCC the
money pending the resolution of the preliminary investigation being
conducted by the city prosecutor on the criminal complaint. In said order,
the RTC held:
The Court observed that private respondent Leon Tambasen
never questioned the validity of the search warrant issued by
respondent Judge Demosthenes L. Magallanes. A perusal of
private respondent's "Motion to Declare Search and Seizure
Illegal and to Return Seized Properties" dated October 7, 1988
shows that respondent Tambasen questions not the validity of
the search warrant issued by respondent Judge Demosthenes
Magallanes, but rather, the execution or implementation of the
said warrant principally on the ground that the articles seized
are not allegedly mentioned in the search warrant. However,
the question thus raised involves matters determinative of the
admissibility in evidence and the legality of the articles seized.
These matters, it is submitted, go beyond the immediate and
limited jurisdiction of the respondent Judge to inquire into the
validity of the search warrant he issued. These issues which
relate exclusively or principally with the intrinsic and substantive
merits of the case or cases which are being prepared against
respondent Tambasen, and insofar as Tambasen is concerned
involve matters of defense which should be properly raised at
the criminal action or actions that may be filed against
respondent Leon Tambasen (see DOH v. Sy Chi Siong Co.,
Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They cannot be
addressed to the respondent Judge because the respondent
Judge has no jurisdiction over the said issue. It is clear
therefore that respondent Judge has transcended the
boundaries of his limited jurisdiction and had in effect
encroached upon the jurisdiction of the appropriate trial court or
courts that will try the criminal case or cases against
respondent Leon Tambasen, in issuing the assailed order dated

December 23, 1988. Ostensibly, the assailed order, if not

corrected, will unduly deprive the prosecution of its right to
present the evidence in question and, consequently, will
improperly oust the trial court, which will try the criminal case or
cases against private respondent Leon Tambasen of its original
and exclusive jurisdiction to rule on the admissibility and legality
of the said evidence. This order of respondent court is
tantamount to a denial of due process. It may be considered as
a grave abuse of discretion reviewable
by certiorari (Esparagoza v. Tan, 94 Phil. 749) (Rollo, pp.
47-48).
Consequently, petitioner filed the instant petition for certiorari and
prohibition praying for the issuance of a temporary restraining order
commanding the city prosecutor to cease and desist from continuing with
the preliminary investigation in BC I.S. No. 88-1239 and the RTC from
taking any step with respect to Civil Case No. 5331. He also prayed that
Search Warrant No. 365 and the seizure of his personal effects be declared
illegal and that the Order of July 20, 1989 be reversed and annulled.
Petitioner contended that the search warrant covered three offenses: "(1)
illegal possession of armalite rifle and .45 cal. pistol; (2) illegal possession
of hand grenade and dynamite sticks; and (3) illegal possession of
subversive documents" (Rollo, pp. 3-4) in violation of Section 3 of Rule 126
of the Revised Rules of Court. He assailed the legality of the seizure of the
articles which were not mentioned in the search warrant. Moreover, since a
complaint against him was filed only after his house had been searched,
petitioner claimed that the police were "on a fishing expedition."
During the pendency of the instant petition, a series of events related to the
questioned search and seizure transpired. At around 10:30 P.M. of March
1, 1990, petitioner, who was then on board a passenger vehicle, was
arrested by intelligence operatives in Barangay Mandalagan, Bacolod City
and forthwith detained. On the strength of sworn statements of two rebel
returnees, the police filed a complaint for subversion against petitioner with
the Office of the City Prosecutor. The following day, the City Prosecutor
filed an information for violation of the Anti-Subversion Law against
petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517). An
order for the arrest of petitioner was issued on March 2, 1990.

On March 6, 1990, petitioner filed a motion to quash the information in

Criminal Case No. 8517.
On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash
and recalled the warrant of arrest. The court also directed the City
Prosecutor to resolve BC-I.S. Case No. 88-1239.
On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa
Marcos manifested before RTC, Branch 42 that petitioner had been
"dropped" from BC-I.S. No. 88-1239. However, the City Prosecutor had, by
then, filed a motion for the reconsideration of said Resolution of March 15,
1990. The motion was denied.
Under this factual matrix, this Court is confronted with the question of
whether RTC, Branch 44 gravely abused its discretion in directing that the
money seized from petitioner's house, specifically the amount of
P14,000.00, be retained and kept in custodia legis.
On its face, the search warrant violates Section 3, Rule 126 of the Revised
Rules of Court, which prohibits the issuance of a search warrant for more
than one specific offense. The caption of Search Warrant No. 365 reflects
the violation of two special laws: P.D. No. 1866 for illegal possession of
firearms, ammunition and explosives; and R.A. No. 1700, the AntiSubversion Law. Search Warrant No. 365 was therefore a "scatter-shot
warrant" and totally null and void (People v. Court of Appeals, 216 SCRA
101 [1992]).
Moreover, by their seizure of articles not described in the search warrant,
the police acted beyond the parameters of their authority under the search
warrant. Section 2, Article III of the 1987 Constitution requires that a search
warrant should particularly describe the things to be seized. "The evident
purpose and intent of the requirement is to limit the things to be seized to
those, and only those, particularly described in the search warrant to
leave the officers of the law with no discretion regarding what articles they
should seize, to the end that unreasonable searches and seizures may not
be made and that abuses may not be committed" (Corro v. Lising, 137
SCRA 541, 547 [1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37 SCRA 823
[1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional
provision is also aimed at preventing violations of security in person and
property and unlawful invasions of the sanctity of the home, and giving

remedy against such usurpations when attempted (People v. Damaso, 212

SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).
Clearly then, the money which was not indicated in the search warrant, had
been illegally seized from petitioner. The fact that the members of the
police team were doing their task of pursuing subversives is not a valid
excuse for the illegal seizure. The presumption juris tantum of regularity in
the performance of official duty cannot by itself prevail against the
constitutionally protected rights of an individual (People v. Cruz, 231 SCRA
759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public
welfare is the foundation of the power to search and seize, such power
must be exercised and the law enforced without transgressing the
constitutional rights of the citizens (People v. Damaso, supra, citing
Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts
it in Bagalihog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the pursuit of
criminals cannot ennoble the use of arbitrary methods that the Constitution
itself abhors."
For the retention of the money seized by the police officers, approval of the
court which issued the search warrant is necessary (People v. Gesmundo,
219 SCRA 743 [1993]). In like manner, only the court which issued the
search warrant may order their release (Temple v. Dela Cruz, 60 SCRA
295 [1974]; Pagkalinawan v. Gomez, 21 SCRA 1275 [1967]).
Section 3(2) of Article III of the 1987 Constitution provides that evidence
obtained in violation of the right against unreasonable searches and
seizures shall be inadmissible for any purpose in any proceeding.
The information in Criminal Case No. 8517, with petitioner as the sole
accused, was ordered quashed by the trial court and the prosecution's
motion for the reconsideration of the quashal order had been denied. Even
in BC I.S. Case No. 88-1239, which was being investigated by Assistant
Provincial Prosecutor Marcos, petitioner was dropped as a respondent.
Hence, there appears to be no criminal prosecution which can justify the
retention of the seized articles in custodia legis.
A subsequent legal development added another reason for the return to
him of all the seized articles: R.A. No. 1700, the Anti-Subversion Law, was
repealed by R.A. No. 7636 and, therefore, the crimes defined in the
repealed law no longer exist.

WHEREFORE, the petition is GRANTED and the People of the Philippines

is ORDERED to RETURN the money seized to petitioner.
SO ORDERED.