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SUPREME COURT Manila THIRD DIVISION G.R. No.

111709 August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-appellants. MELO, J.: This is one of the older cases which unfortunately has remained in docket of the Court for sometime. It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated February 27, 2001. In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off the coast of Mindoro near Silonay Island. The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by seven fully armed pirates led by Emilio Changco, older brother of accusedappellant Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took complete control of the vessel. Thereafter, accused-appellant Loyola ordered three crew members to paint over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC logo on the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio messages to PNOC that the ship was undergoing repairs. PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy. However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and cruised around the area presumably to await another vessel which, however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea. On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in

receiving the cargo. The transfer, after an interruption, with both vessels leaving the area, was completed on March 30, 1991. On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo to "Navi Pride." On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On April 10, 1991, the members of the crew were released in three batches with the stern warning not to report the incident to government authorities for a period of two days or until April 12, 1991, otherwise they would be killed. The first batch was fetched from the shoreline by a newly painted passenger jeep driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective homes. The second batch was fetched by accusedappellant Changco at midnight of April 10, 1991 and were brought to different places in Metro Manila. On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC Shipping and Transport Corporation office to report the incident. The crew members were brought to the Coast Guard Office for investigation. The incident was also reported to the National Bureau of Investigation where the officers and members of the crew executed sworn statements regarding the incident. A series of arrests was thereafter effected as follows: a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K. Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was arrested and brought to the NBI headquarters in Manila. b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI agents as the latter were pursuing the mastermind, who managed to evade arrest. c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha Hotel in Batangas City. On October 24, 1991, an Information charging qualified piracy or violation of Presidential Decree No. 532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows: The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows: That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction of this Honorable Court, the said accused, then manning a motor launch and armed with high powered guns, conspiring and confederating together

and mutually helping one another, did then and there, wilfully, unlawfully and feloniously fire upon, board and seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum products, together with the complement and crew members, employing violence against or intimidation of persons or force upon things, then direct the vessel to proceed to Singapore where the cargoes were unloaded and thereafter returned to the Philippines on April 10, 1991, in violation of the aforesaid law. CONTRARY TO LAW. (pp. 119-20, Rollo.) This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of the National Capital Judicial Region stationed in Manila. Upon arraignment, accusedappellants pleaded not guilty to the charge. Trial thereupon ensued. Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having their own respective sources of livelihood. Their story is to the effect that on March 2, 1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from the three if they wanted to work in a vessel. They were told that the work was light and that each worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that period. They agreed even though they had no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee, and ran errands for the officers. They denied having gone to Singapore, claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00 each as salary for nineteen days of work, and were told that the balance would be remitted to their addresses. There was neither receipt nor contracts of employment signed by the parties. Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr. Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a "Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It owned four vessels, one of which was "Navi Pride." On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts, Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department of the Singapore government as the radio telephone operator on board the vessel "Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the contact vessel. The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of the oil and was given the amount of 300,000.00 Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer. Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass through the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons. On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he ask for the latter's personal card. Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to the company. Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from "M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong was told that that there were food and drinks, including beer, purchased by the company for the crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid in full for the transfer. On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked in at Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was thereafter arrested by NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The dispositive portion of said decision reads: WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the principals of said crime is mandatory death. However, considering that, under the 1987 Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit, jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00, Philippine Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the accused Cheong San Hiong has served his sentence, he shall be deported to Singapore. All the accused shall be credited for the full period of their detention at the National Bureau of Investigation and the City Jail of Manila during the pendency of this case provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the National Bureau of Investigation. With costs against all the accused. SO ORDERED. (pp. 149-150, Rollo.) The matter was then elevated to this Court. The arguments of accused-appellants may be summarized as follows: Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in allowing them to adopt the proceedings taken during the time they were being represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due process.

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had presented and examined seven witnesses for the accused. Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the custodial investigation, they were subjected to physical violence; were forced to sign statements without being given the opportunity to read the contents of the same; were denied assistance of counsel, and were not informed of their rights, in violation of their constitutional rights. Said accused-appellants also argue that the trial court erred in finding that the prosecution proved beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so these accused-appellants conclude, could have overpowered the alleged pirates. Cheong San Hiong In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts allegedly committed by him were done or executed outside of Philippine waters and territory, stripping the Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in making factual conclusions without evidence on record to prove the same and which in fact are contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by direct participation under said decree, thus violating his constitutional right to be informed of the nature and cause of the accusation against him. Cheong also posits that the evidence against the other accused-appellants do not prove any participation on his part in the commission of the crime of qualified piracy. He further argues that he had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of qualified piracy, and that he was not aware that the vessel and its cargo were pirated. As legal basis for his appeal, he explains that he was charged under the information with qualified piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In the case at bar, he argues that he was convicted for acts done outside Philippine waters or territory. For the State to have criminal jurisdiction, the act must have been committed within its territory. We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are the legal effects and implications of the absence of counsel during the custodial investigation?; (3) did the trial court err in finding that the prosecution was able to prove beyond reasonable doubt that accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be convicted as accomplice when he was not charged as such and when the acts allegedly committed by him were done or executed outside Philippine waters and territory? On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open court (tsn, February 11, 1992, pp. 7-59). It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy, but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]). However, we must quickly add that the right to counsel during custodial investigation may not be waived except in writing and in the presence of counsel. Section 12, Article III of the Constitution reads: SECTION 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services

of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-called Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the person must be warned that he has a right to remain silent, that any statement he gives may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement that the waiver must be in writing and made in the presence of counsel. Saliently, the absence of counsel during the execution of the so-called confessions of the accused-appellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the socalled "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accused-appellants, without a valid waiver of the right to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial judge, now Justice Romeo J. Callejo of the Court of Appeals . . . The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as among those who attacked and seized, the "M/T Tabangao" on March 2,

1991, at about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991. . . xxx xxx xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1) month. There can be no scintilla of doubt in the mind of the Court that the officers and crew of the vessel could and did see and identify the seajackers and their leader. In fact, immediately after the Accused were taken into custody by the operatives of the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said Accused as some of the pirates. xxx xxx xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the Court that they, in fact, boarded the said vessel in the evening of March 2, 1991 and remained on board when the vessel sailed to its destination, which turned out to be off the port of Singapore. (pp. 106-112, Rollo.) We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any hard evidence but their bare testimony. Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their companion) while said accused-appellants were conversing with one another along the seashore at Aplaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite period of time without even saying goodbye to their families, without even knowing their destination or the details of their voyage, without the personal effects needed for a long voyage at sea. Such evidence is incredible and clearly not in accord with human experience. As pointed out by the trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had to leave the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar place merely to recruit five (5) cooks or handymen (p. 113, Rollo)." Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite,

sleeping, suffice it to state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of work on the dates aforestated. It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]). We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy. As noted by the trial court, there are times when conspirators are assigned separate and different tasks which may appear unrelated to one another, but in fact, constitute a whole and collective effort to achieve a common criminal design. We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for their fare and food provisions on their way home. These acts had to be well-coordinated. Accusedappellant Cecilio Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective common to all other accusedappellants. Of notable importance is the connection of accused-appellants to one another. Accused-appellant Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said corporation. Their residences are approximately six or seven kilometers away from each other. Their families are close. Accused-appellant Tulin, on the other hand, has known Cecilio since their parents were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative of the Changco brothers by affinity. Besides, Loyola and Emilio Changco had both been accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time remained at large. As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended Article 122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532.

He reasons out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither members of the complement or passengers of the vessel, hence, excluding him from the coverage of the law. Article 122 of the Revised Penal Code, used to provide: ARTICLE 122. Piracy in general and mutiny on the high seas. The penalty of reclusion temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. (Italics supplied.) Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads: ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. (Italics ours) On the other hand, Section 2 of Presidential Decree No. 532 provides: SECTION 2. Definition of Terms. The following shall mean and be understood, as follows: d. Piracy. Any attack upon or seizure of any vessel or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided (Italics supplied). To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy must be committed on the high seas by any person not a member of its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was widened to include offenses committed "in Philippine waters." On the other hand,

under Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered by the law. Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist harmoniously as separate laws. As regards the contention that the trial court did not acquire jurisdiction over the person of accused-appellant Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged, not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]). However, does this constitute a violation of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal by direct participation under Section 2 of said law? The trial court found that there was insufficiency of evidence showing: (a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T Tabangao" and its cargo; (c) and that his act was indispensable in the attack on and seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court found that accusedappellant Hiong's participation was indisputably one which aided or abetted Emilio Changco and

his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides: SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal officers and be punished in accordance with Rules prescribed by the Revised Penal Code. It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven. The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]). Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532 which presumes that any person who does any of the acts provided in said section has performed them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy, received property taken by such pirates and derived benefit therefrom. The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and verified the quantity of the petroleum products, connived with Navi Marine Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities, and supplied, the pirates with food, beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134). We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered the illegal activities that took place and this would have resulted in his arrest and prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have been effected.

We completely uphold the factual findings of the trial court showing in detail accused-appellant Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no passengers on board, and the purpose of the voyage was for "cargo operation" and that the vessel was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was not the Master of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid P150,000.00 but did not require any receipt for the amount; that Emilio Changco also did not issue one; and that in the requisite "General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as discussed above. It was likewise supervised by accused-appellant Cheong from his end while Emilio Changco supervised the transfer from his end. Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that he has no knowledge of the illegality of the source of the cargo. First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a highly educated mariner, he should have avoided any participation in the cargo transfer given the very suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill of sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met for the first time nor did he check the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted with Paul Gan involving a large sum of money without any receipt issued therefor; he was not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should also be noted that the value of the cargo was P40,426,793.87 or roughly more than US$1,000,000.00 (computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its value. Accused-appellant Hiong should have been aware of this irregularity. Nobody in his right mind would go to far away Singapore, spend much time and money for transportation only to sell at the aforestated price if it were legitimate sale involved. This, in addition to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware that the cargo that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his superiors." An individual is justified in performing an act in obedience to an order issued by a superior if such order, is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international law. Such violation was committed on board a Philippineoperated vessel. Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and the trial court was convinced, that he was an intelligent and articulate Port Captain. These circumstances show that he must have realized the nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the deal and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which reason, he must now suffer the consequences of his actions. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto. SO ORDERED. Vitug, Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 116488 May 31, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AARON FLORES @ "RONITO", SULPECIO SILPAO y ORTEGA @ "SULPING" and EDGAR VILLERAN y MAGBANUA, accused-appellants. YNARES-SANTIAGO, J.: Sgt. Wennie Tampioc, Detachment Commander of the 7th Infantry Brigade detailed at Barangay Tabu, Ilog, Negros Occidental, and three (3) members of the local Citizen Armed Force Geographical Unit (CAFGU) under his supervision, namely, Aaron Flores alias "Ronito", Sulpecio Silpao y Ortega alias "Sulping" and Edgar Villeran y Magbanua, were charged before the Regional Trial Court of Kabankalan, Negros Occidental, Branch 61, with Kidnapping and Serious Illegal Detention. The information charged as follows: That on or about the 29th day of September, 1992, in the Municipality of Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with high powered firearms conspiring, confederating and helping one another, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously take, kidnap, detain and keep under guard one SAMSON SAYAM y GEPANAO from Km 117, Hda. Shangrella (sic), Brgy. Tabu, of the above-named municipality, and bring the latter to their detachment at Brgy. Tabu, under restraint and against his will, without proper authority thereof, thereby depriving said victim of his civil liberty since then up to the present. CONTRARY TO LAW.1 All the four accused pleaded "Not Guilty" when arraigned. Trial ensued and, based on the testimonial evidence presented, the trial court found the following antecedent facts to be undisputed. On the night of September 29, 1992, the victim, Samson Sayam, was drinking beer at the store owned by Terry Cabrillos located at Barangay Tabu, Ilog, Negros Occidental. Sgt. Wennie Tampioc, Aaron Flores, Sulpecio Silpao and Edgar Villeran were at the same store drinking beer. Sayam joined the four accused at their table. Sometime later, all the accused and the victim left the store and walked towards the direction of the military detachment headquarters. After the accused left the store with Samson Sayam, witnesses heard a single gunshot followed by rapid

firing coming from the direction of the detachment headquarters.2 That was the last time Samson Sayam was seen, and despite diligent efforts of Sayam's mother and relatives, he has not been found. It was the prosecution's contention that on that fateful evening, all four accused hatched a conspiracy to kidnap the victim and thereafter detain him at the detachment headquarters. They allegedly succeeded in their plot and, the prosecution avers, to this day the accused have not released Samson Sayam. All the accused, however, vehemently denied committing the acts charged. The trial court held that the testimonial evidence failed to prove beyond reasonable doubt the existence of a conspiracy among the four accused. More specifically, the prosecution failed to show an apparent common design by and among the accused to kidnap and detain Samson Sayam against his will. Thus, the trial court proceeded to determine the individual liabilities of the four accused based on the degree of their participation in the commission of the offense charged. The trial court gave credence to the prosecution's evidence that Samson Sayam was seen being forcibly dragged out of the store and pulled towards the direction of the detachment headquarters by accused Aaron Flores, Sulpecio Silpao and Edgar Villeran. Since Samson Sayam had not been seen nor heard from since then, the trial court held that the three accused were responsible for the former's disappearance. As regards Wennie Tampioc, the trial court found that he left the store ahead of the three (3) coaccused and, thus, had nothing to do with the disappearance of Samson Sayam. Notably, none of the prosecution witnesses specifically or categorically mentioned Tampioc as among those who actively participated in bringing Samson Sayam by force to their headquarters. Unlike his coaccused who are natives of the place of the incident, Wennie Tampioc was newly assigned as Detachment Commander and did not know Samson Sayam, such that no ill-motive was attributed to him by the trial court. Likewise, the testimonies of prosecution witnesses Nelson Golez, on the one hand, and that of Carlos Manlangit, on the other hand, conflict as to the kind of firearm allegedly carried by Tampioc. While Golez stated that he was armed with an Armalite rifle,3 Manlangit testified that Tampioc was armed with a short firearm.4 More importantly, the trial court found that the identity of Sgt. Tampioc as one of the perpetrators of the crime was doubtful, because notwithstanding the fact that Nelson Golez knew Wennie Tampioc even before September 29, 1992,5 the original complaint filed before the Municipal Circuit Trial court of Ilog Candoni, dated October 21, 1992, which was based on the affidavits of Golez and Carlito Manlingit, did not mention Wennie Tampioc as one of the respondents. The said affidavits merely mentioned an "unidentified member of the 7th IB, Philippine Army, assigned at Brgy. Tabu, detachment." At the time of the execution of the affidavits, the witnesses could have known that Wennie Tampioc was a sergeant, and that he was a commander of the detachment. Finally, the straightforward and emphatic manner in which Wennie Tampioc testified inspired belief in the trial court's mind.6

On December 8, 1993, the trial court rendered the assailed judgment, the dispositive of which states: WHEREFORE, premises considered, this Court finds the accused Aaron Flores, Edgar Villeran and Sulpecio Silpao GUILTY beyond reasonable doubt of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code and are each sentenced to suffer the penalty of Reclusion Perpetua; and there being no proof that Samson Sayam is dead, they are ordered to pay him jointly and severally, or in the alternative, his heirs the sum of Fifty Thousand (P50,000.00) Pesos as damages, without subsidiary imprisonment in case of insolvency and to pay the costs of this suit. The accused Wennie Tampioc is ACQUITTED on grounds of reasonable doubt. The bail bonds of the said accused are ordered cancelled and the convicted accused ordered confined pending appeal if they so file an appeal, in accordance with Administrative Circular No. 2-92, dated January 20, 1992 of the Supreme Court. SO ORDERED.7 Two (2) separate appeals were brought before us. Accused-appellant Sulpecio Silpao raised the following errors: I. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT SULPECIO SILPAO OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION, UNDER ARTICLE 267, REVISED PENAL CODE. II. THE TRIAL COURT ERRED IN HOLDING THE ACCUSED-APPELLANT CAFGU SULPECIO SILPAO, AS AMONG THOSE WHO FORCIBLY BROUGHT SAMSON SAYAM TO THEIR HEADQUARTERS IN THE EVENING OF 29 SEPTEMBER 1992 AND RESPONSIBLE FOR SAMSON SAYAM'S DISAPPEARANCE. III. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT CAFGU SULPECIO SILPAO GUILTY BEYOND REASONABLE DOUBT OF THE OFFENSE CHARGED. On the other hand, accused-appellants Aaron Flores and Edgar Villeran interposed a joint appeal based on the sole error that: THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANTS AARON FLORES AND EDGAR VILLERAN GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION BASED ON CIRCUMSTANTIAL AND INSUFFICIENT EVIDENCE.

After a thorough review of the facts and evidence adduced before the trial court, we find that accused-appellants should be acquitted of the offense charged against them. The crime of Kidnapping and Serious Illegal Detention is defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. The elements of the offense are: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances are present: (a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped is a minor, female or public officer.8 Clearly, accused-appellants cannot be charged with or convicted of the crime of Kidnapping and Serious Illegal Detention, since the first element of the said crime is that the offender must be a private individual. In the case at bar, accused-appellants were members of the local CAFGU at the time the alleged crime was committed. The CAFGU was created pursuant to Executive Order No. 264 for the purpose of complementing the operations of the regular force formations in a locality.9 It was composed of civilian volunteers who were tasked to maintain peace and order in their localities, as well as to respond to threats to national security. As such, they were provided with weapons, and given the authority to detain or order detention of individuals.10 The Solicitor General recognizes the error of charging and convicting accused-appellants of Kidnapping and Serious Illegal Detention for the reason that the appellants are not private individuals, but public officers. As such, the Solicitor General submits that, under the facts alleged, accused-appellants can only be liable for the crime of Arbitrary Detention, defined and penalized in Article 124 of the Revised Penal Code. The prosecution maintains that inasmuch as all the other elements of Arbitrary Detention were alleged in the criminal information filed against the accused-appellants, they may still be convicted of said crime. Arbitrary detention is committed by any public officer or employee who, without legal grounds, detains a person.11 Since it is settled that accused-appellants are public officers, the question that

remains to be resolved is whether or not the evidence adduced before the trial court proved that Samson Sayam was arbitrarily detained by accused-appellants. As far back as the case of U.S. v. Cabanag,12 it was held that in the crime of illegal or arbitrary detention, it is essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved,13 just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof.14 In the more recent case of People v. Fajardo,15 this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction. Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty.16 A careful review of the records of the instant case shows no evidence sufficient to prove that Samson Sayam was detained arbitrarily by accusedappellants. While the prosecution witnesses testified that accused-appellants were seen walking with Samson Sayam toward the direction of the detachment headquarters, there is no shred of evidence that he was actually confined there or anywhere else. The fact that Samson Sayam has not been seen or heard from since he was last seen with accused-appellants does not prove that he was detained and deprived of his liberty. The prosecution, however, argues that Samson Sayam was deprived of his liberty when accused-appellants forced him to go with them when they left the store of Jerry Cabrillos and brought him to the detachment headquarters. We assayed the testimonies of the prosecution's main witnesses, namely, Carlito Manlangit and his son Jerry Manlangit. Carlito Manlangit's testimony was offered to prove that Samson Sayam was forcibly taken from the store and that the latter tried his best to free himself from his abductors. And yet, all that Carlito testified to was that he saw Samson Sayam crossing the street alone from the store of a certain Moleng; that the four accused, who were armed, followed Sayam and asked for his residence certificate; that the four accused apprehended Samson Sayam and brought him to the detachment headquarters; and that he went home after he saw Samson Sayam talking to the accused.17 It is readily apparent that Carlito Manlangit's testimony failed to prove the stated purpose thereof, i.e., that Samson Sayam was taken forcibly to the detachment headquarters. To be sure, the witness did not state that Samson Sayam was pulled, dragged, or coerced to go with accusedappellants. Neither did he say that Samson Sayam was taken at gunpoint. There is also no relevant testimony to the effect that Samson Sayam tried his best to free himself from the clutches of accused-appellants. For if that were the truth, the reactions of Carlito Manlangit do not conform to human experience. If he really witnessed Samson Sayam being apprehended, forcibly taken, and trying to free himself, it cannot be logically explained why Carlito Manlangit just went home,18 instead of doing anything to help Samson Sayam. He admitted that he did not immediately report the incident to the authorities.19 More telling is the absence of testimony to the effect that Samson Sayam was being taken to the detachment headquarters against his will, that he was protesting his apprehension, or that he was asking for help, considering that there were other people within hearing and seeing distance. Most damaging is Carlito Manlangit's statement that he did not see Samson Sayam in the detachment headquarters with any or all of

the accused.20 In fine, Carlito Manlangit's testimony failed to prove that Samson Sayam was arbitrarily detained or deprived of his liberty. Jerry Manlangit, son of Carlito, also testified for the prosecution. According to him, he and Samson Sayam went to Barangay Tabu to have a sack of palay milled on September 29, 1992. At around six in the evening, while on their way home, they passed by the store of Terry Cabrillos to buy kerosene. There, he saw the four accused drinking beer. Samson Sayam told him to go home because he had to show his residence certificate and barangay clearance to accusedappellant Aaron Flores. Jerry Manlangit then proceeded to his residence in Hacienda Shangrila, located about half a kilometer away from the center of Barangay Tabu. Later, he told his father that Samson Sayam stayed behind and asked him to fetch Samson. He also testified that he heard gunshots coming from the direction of the detachment headquarters.21 The testimony of Jerry Manlangit does not prove any of the elements of the crime of arbitrary detention. Neither does it support nor corroborate the testimony of his father, Carlito, for they dealt on a different set of facts. Jerry Manlangit did not see any of accused-appellant apprehend or detain Samson Sayam. He did not even see if accused-appellant Flores really inspected the residence certificate and barangay clearance of Samson Sayam. The rest of his testimony comprised of hearsay evidence,22 which has no probative value.23 In summary, Jerry Manlangit's testimony failed to establish that accused-appellants were guilty of arbitrary detention. The prosecution also presented the testimony of Nelson Golez, who identified the four accused as the persons with Samson Sayam, drinking inside the store of Terry Cabrillos. He also stated that following a heated argument, the accused and Samson Sayam left the store and went towards the direction of the detachment headquarters. He said that the accused were "holding and pulling" Samson Sayam "towards the road." Ten minutes later, Nelson Golez heard a single gunshot followed by rapid firing.24 On cross-examination, however, Nelson Golez did not affirm his earlier statement that the accused and Samson Sayam were engaged in a heated argument. Rather, he said he did not hear them arguing as they were leaving the store. Although Nelson Golez attested that Samson Sayam was protesting while the accused were dragging him, he did not do anything to help Samson Sayam, who happened to be his cousin.25 Again, no conclusion of guilt can be inferred from Nelson Golez's testimony. First of all, he was unsure of his assertion that there was an argument. The mere fact that Samson Sayam was being dragged towards the road does not constitute arbitrary detention. There is no showing that Samson Sayam was completely deprived of his liberty such that he could not free himself from the grip of the accused, if he was indeed being held against his will. The incident transpired in a public place, where there were people milling about, many of whom were his friends. It is puzzling that Samson Sayam did not cry out for help. Nobody bothered to report the incident, if indeed it happened, to the barangay authorities. No one else came forward to corroborate the testimony of Nelson Golez.

The testimony of Nelson Golez, by itself, lacks credibility. He wavered on material points, even as the prosecution failed to substantiate by direct or corroborative evidence the bare testimony of Nelson Golez. It is basic and elemental that in criminal prosecutions, before the accused may be convicted of a crime, his guilt must be proven beyond reasonable doubt. Although the findings of fact made by trial courts are generally not disturbed on appeal, if there are substantial facts which were overlooked but which may alter the results of the case in favor of the accused, such facts should be taken into account by the appellate court.26 And where it appears that the trial court erred in the appreciation of the evidence on record or the lack of it, the factual findings of the trial court may be reversed.27 After thoroughly reviewing the records of this case and weighing the testimonial evidence on the scale of creditworthiness and materiality, this Court finds the evidence of the prosecution grossly insufficient to sustain a conviction. Again, the fact of detention, whether illegal or arbitrary, was not clearly established by credible evidence. There was no showing that Samson Sayam was locked up, restrained of his freedom, or prevented from communicating with anyone. Likewise, there was no proof that there was actual intent on the part of accused-appellants to arbitrarily deprive Samson Sayam of his liberty. It is necessary that there must be a purposeful or knowing action by accused-appellants to restrain the victim by or with force, because taking coupled with intent completes the crime of illegal or arbitrary detention.28 The prosecution, however, maintains that the evidence, even though circumstantial, sufficiently establishes the guilt of the accused-appellants. It cites the following circumstances: 1. On September 29, 1992, at about 6:00 o'clock in the evening, accused-appellants, together with their companions Sergeant Tampioc and fellow CAFGU Sulpecio Silpao, were seen with Samson at the store of Terry Cabrillos. Accused-appellants were having a drinking spree. Later, they were seen engaged in a heated argument. 2. Thereafter, Samson was forcibly brought out of the store by accused-appellants by holding and pulling him towards the road. From another angle, another prosecution witness saw accused-appellants on the road arresting Samson. 3. Accused-appellants brought Samson towards the direction of the detachment of Brgy. Tabu. 4. Ten (10) minutes later, a gunshot was heard coming from the direction of the detachment followed by rapid firing. 5. After the incident, Samson was never seen again or heard from.29 As already discussed, the above-enumerated circumstances were not established by clear and convincing evidence. And even if these acts were proven to be true, the combination of all these circumstances would still not be able to produce a conviction beyond reasonable doubt. To our

mind, the totality of these circumstantial evidence do not constitute an unbroken chain pointing to the fair and reasonable conclusion that the accused-appellants are guilty of the crime charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with the hypothesis that the accused-appellants are guilty, and inconsistent with the possibility that they are innocent.30 Thus: SECTION 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.31 The rule is clear that there must be at least two proven circumstances which in complete sequence leads to no other logical conclusion than that of the guilt of the accused.32 It is admitted that Samson Sayam was seen drinking with accused-appellants on that fateful night. However, the circumstances that there was a heated argument among them, and that the accused-appellants held and pulled Samson Sayam to the road and brought him towards the direction of the detachment headquarters was not sufficiently proven by material or relevant testimony. Moreover, the circumstance that gunshots were heard on that night have no relevancy to the case. Even if it were, it cannot be concluded that the gunshots came from the direction of the detachment headquarters. The witnesses who testified that they heard the gunshots were at least half a kilometer away from the center of the barangay, while the detachment headquarters itself was also some distance from the barangay. At night, especially in the rural areas when all is quiet, loud sounds such as gunshots reverberate and would seem to come from every direction. An ordinary person a kilometer away cannot, with certainty, point to the exact location where the gunshots would be coming from. That would otherwise be attributing expertise on such matters to the prosecution witnesses. That Samson Sayam was never seen or heard from again cannot be the basis for the trial court to render judgment convicting the accused-appellants. In fact, it has no bearing in this case because it is not one of the elements of the crime of arbitrary detention. Consequently, only one relevant circumstance was proved, i.e., that accused-appellants were the last persons seen with Samson Sayam. However, said circumstance does not necessarily prove that they feloniously abducted him, then arbitrarily detained him.33 Moreover, mere suspicion that the disappearance of Samson Sayam was a result of accusedappellants' alleged criminal acts and intentions is insufficient to convict them. Proof beyond reasonable doubt is the required quantum of evidence.34 An uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt.35 The prosecution was not able to prove a possible motive why accused-appellants would

arbitrarily detain Samson Sayam. In sum, there is no unbroken chain of circumstances leading to the conclusion that accused-appellants are guilty. Since the pieces of circumstantial evidence do not fulfill the test of moral certainty that is sufficient to support a judgment or conviction, the Court must acquit the accused.36 In the recent case of People v. Comesario,37 we had occasion to rule that: Accused-appellant's conviction by the trial court hinged on circumstantial evidence. To validly invoke circumstantial evidence, it must be shown that there is more than one circumstance and the facts from which the inferences are derived are proven. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The circumstances must constitute an unbroken chain of events that can lead reasonably to the conclusion pointing to the accused to the exclusion of all others as the author of the crime. Logically, it is where the evidence is purely circumstantial that there should be an even greater need than usual to apply with vigor the rule that the prosecution cannot depend on the weakness of the defense and that any conviction must rest on nothing less than a moral certainty of guilt of the accused. Like a tapestry made of strands which create a pattern when interwoven, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person. Accused-appellants enjoy the presumption of innocence until the contrary is proved. In the case at bar, the pieces of testimonial evidence relied on by the prosecution and the trial court to support a conviction have failed to overcome the constitutional precept of the presumed innocence of accused-appellants. Among other grounds, not only is there a lot of room for reasonable doubt in regard to their guilt, there is a virtual dearth of convincing evidence to prove that a crime had been committed. There is no need even to assess the evidence of the defense, for the prosecution bears the onus to distinctly and indubitably prove that a crime had been committed by accused-appellants.38 It is incumbent upon the prosecution to establish its case with that degree of proof which leads to no other conclusion but conviction in an unprejudiced mind. The evidence for the prosecution must stand or fall on its own merits for it cannot be allowed to draw strength from the weakness of the evidence for the defense.39 Clearly, the prosecution in this case has failed to prove the guilt of accused-appellants beyond reasonable doubt. In similar cases, this Court has often and consistently ruled that it is better to acquit a guilty person than to convict an innocent one.40 WHEREFORE, the assailed decision is REVERSED and SET ASIDE. Accused-appellants are ACQUITTED. Unless being held or detained for some lawful reason, accused-appellants are ORDERED RELEASED immediately. The Director of Prisons is DIRECTED to inform this Court, within five (5) days from notice, of the date and time when accused-appellants are released pursuant to this Decision. SO ORDERED.

Davide, Jr., C .J ., Puno and Pardo, JJ ., concur. Kapunan, J ., is on leave. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 154130 October 1, 2003

BENITO ASTORGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001,1 as well as its Resolutions dated September 28, 2001 and July 10, 2002. On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito Astorga, Mayor of Daram, Samar, as well as a number of his men for Arbitrary Detention: That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality of Daram, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being the Municipal Mayor of Daram, Samar, in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with unidentified persons, who are herein referred to under fictitious names JOHN DOES, who were armed with firearms of different calibers, with deliberate intent, did then and there willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato Militante and Crisanto Pelias, DENR Employees, at the Municipality of Daram, by not allowing them to leave the place, without any legal and valid grounds thereby restraining and depriving them of their personal liberty for nine (9) hours, but without exceeding three (3) days. CONTRARY TO LAW.2 On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment and Natural Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western Samar to conduct intelligence gathering and forest protection operations in line with the governments campaign against illegal logging. The team was composed of Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato

Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief of the Forest Protection and Law Enforcement Section, as team leader. The team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian.3 The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-like boats being constructed. After consulting with the local barangay officials, the team learned that the boats belonged to a certain Michael Figueroa. However, since Figueroa was not around at the time, the team left Brgy. Bagacay.4 En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in the vicinity of Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and investigate. Thus, Maniscan and Militante disembarked from the DENRs service pump boat and proceeded to the site of the boat construction. There, they met Mayor Astorga. After conversing with the mayor, Militante returned to their boat for the purpose of fetching Simon, at the request of Mayor Astorga.5 When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor Astorga to try and explain the purpose of their mission, Simon was suddenly slapped hard twice on the shoulder by Mayor Astorga, who exclaimed, "Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka maaram nga natupa ako? Natupa baya ako. Diri kamo makauli yana kay puwede kame e charge ha misencounter." (I can make you swim back to Tacloban. Dont you know that I can box? I can box. Dont you know that I can declare this a misencounter?)6 Mayor Astorga then ordered someone to fetch "reinforcements," and forty-five (45) minutes later, or between 5:00-6:00 p.m., a banca arrived bearing ten (10) men, some of them dressed in fatigue uniforms. The men were armed with M-16 and M14 rifles, and they promptly surrounded the team, guns pointed at the team members.7 At this, Simon tried to explain to Astorga the purpose of his teams mission.8 He then took out his handheld ICOM radio, saying that he was going to contact his people at the DENR in Catbalogan to inform them of the teams whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simons radio, saying, "Maupay nga waray kamo radio bis diri somabut an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig." (Its better if you have no radio so that your office would not know your whereabouts and so that you cannot ask for help).9 Mayor Astorga again slapped the right shoulder of Simon, adding, "Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay diri kamo puwede ha akon." (If you are tough guys in Leyte, do not bring it to Samar because I will not tolerate it here.)10 Simon then asked Mayor Astorga to allow the team to go home, at which Mayor Astorga retorted that they would not be allowed to go home and that they would instead be brought to Daram.11 Mayor Astorga then addressed the team, saying, "Kon magdakop man la kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay puwede ko liwat ipadakop an akon." (If you really want to confiscate anything, you start with the big-time. If you confiscate the boats of Figueroa at Brgy. Bagacay, I will surrender mine.)12 Simon then tried to reiterate his request for permission to leave, which just succeeded in irking Mayor Astorga, who angrily said, "Diri kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita mag uro istorya." (You cannot go home now because I will bring you to Daram. We will have many things to discuss there.)13

The team was brought to a house where they were told that they would be served dinner. The team had dinner with Mayor Astorga and several others at a long table, and the meal lasted between 7:00-8:00 p.m.14 After dinner, Militante, Maniscan and SPO1 Capoquian were allowed to go down from the house, but not to leave the barangay.15 On the other hand, SPO3 Cinco and the rest just sat in the house until 2:00 a.m. when the team was finally allowed to leave.161awphi1.nt Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men, which led to the filing of the above-quoted Information. Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the offenses charged.17 At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as their Joint Affidavit.18 However, the presentation of Simons testimony was not completed, and none of his fellow team members came forward to testify. Instead, the members of the team sent by the DENR RSOG executed a Joint Affidavit of Desistance.19 On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows: WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y BOCATCAT guilty of Arbitrary Detention, and in the absence of any mitigating or aggravating circumstances, applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months of arresto mayor as minimum to one (1) year and eight (8) months of prision correctional as maximum. SO ORDERED.20 The accused filed a Motion for Reconsideration dated July 11, 200121 which was denied by the Sandiganabayan in a Resolution dated September 28, 2001.22 A Second Motion for Reconsideration dated October 24, 200123 was also filed, and this was similarly denied in a Resolution dated July 10, 2002.24 Hence, the present petition, wherein the petitioner assigns a sole error for review: 5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and penalized under Article 124 of the Revised Penal Code, based on mere speculations, surmises and conjectures and, worse, notwithstanding the Affidavit of Desistance executed by the five (5) complaining witnesses wherein the latter categorically declared petitioners innocence of the crime charged.25 Petitioner contends that the prosecution failed to establish the required quantum of evidence to prove the guilt of the accused,26 especially in light of the fact that the private complainants executed a Joint Affidavit of Desistance.27 Petitioner asserts that nowhere in the records of the case is there any competent evidence that could sufficiently establish the fact that restraint was employed upon the persons of the team members.28 Furthermore, he claims that the mere presence of armed men at the scene does not qualify as competent evidence to prove that fear

was in fact instilled in the minds of the team members, to the extent that they would feel compelled to stay in Brgy. Lucob-Lucob.29 Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a person.30 The elements of the crime are: 1. That the offender is a public officer or employee. 2. That he detains a person. 3. That the detention is without legal grounds.31 That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is undeniably present. Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal purpose. On the contrary, he admitted that his acts were motivated by his "instinct for self-preservation" and the feeling that he was being "singled out."32 The detention was thus without legal grounds, thereby satisfying the third element enumerated above. What remains is the determination of whether or not the team was actually detained. In the case of People v. Acosta,33 which involved the illegal detention of a child, we found the accused-appellant therein guilty of kidnapping despite the lack of evidence to show that any physical restraint was employed upon the victim. However, because the victim was a boy of tender age and he was warned not to leave until his godmother, the accused-appellant, had returned, he was practically a captive in the sense that he could not leave because of his fear to violate such instruction.34 In the case of People v. Cortez,35 we held that, in establishing the intent to deprive the victim of his liberty, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. At the time of her rescue, the offended party in said case was found outside talking to the owner of the house where she had been taken. She explained that she did not attempt to leave the premises for fear that the kidnappers would make good their threats to kill her should she do so. We ruled therein that her fear was not baseless as the kidnappers knew where she resided and they had earlier announced that their intention in looking for her cousin was to kill him on sight. Thus, we concluded that fear has been known to render people immobile and that appeals to the fears of an individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence.36 The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victims liberty need not involve any physical restraint upon the victims person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in

accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will. In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and the complainants were not allowed by petitioner to go home.37 This refusal was quickly followed by the call for and arrival of almost a dozen "reinforcements," all armed with militaryissue rifles, who proceeded to encircle the team, weapons pointed at the complainants and the witnesses.38 Given such circumstances, we give credence to SPO1 Capoquians statement that it was not "safe" to refuse Mayor Astorgas orders.39 It was not just the presence of the armed men, but also the evident effect these gunmen had on the actions of the team which proves that fear was indeed instilled in the minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the complainants and witnesses against their will is thus clear. Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that the principles governing the use of such instruments in the adjudication of other crimes can be applied here. Thus, in People v. Ballabare, it was held that an affidavit of desistance is merely an additional ground to buttress the defenses of the accused, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge. Here, there are no such circumstances.40 Indeed, the belated claims made in the Joint Affidavit of Desistance, such as the allegations that the incident was the result of a misunderstanding and that the team acceded to Mayor Astorgas orders "out of respect," are belied by petitioners own admissions to the contrary.41 The Joint Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the material points alleged in the information and proven at the trial, but a mere expression of the lack of interest of private complainants to pursue the case.1awphi1.nt This conclusion is supported by one of its latter paragraphs, which reads: 11. That this affidavit was executed by us if only to prove our sincerity and improving DENR relations with the local Chiefs Executive and other official of Daram, Islands so that DENR programs and project can be effectively implemented through the support of the local officials for the betterment of the residence living conditions who are facing difficulties and are much dependent on government support.42 Petitioner also assails the weight given by the trial court to the evidence, pointing out that the Sandiganbayans reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the private complainants in the case.43 He also makes much of the fact that prosecution witness SPO1 Capoquian was allegedly "not exactly privy to, and knowledgeable of, what exactly transpired between herein accused and the DENR team leader Mr. Elpidio E. Simon, from their alleged confrontation, until they left Barangay Lucob-Lucob in the early morning of 2 September 1997."44 It is a time-honored doctrine that the trial courts factual findings are conclusive and binding upon appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.45 Nothing in the case at bar prompts us to deviate

from this doctrine. Indeed, the fact that SPO1 Capoquian is not one of the private complainants is completely irrelevant. Neither penal law nor the rules of evidence requires damning testimony to be exclusively supplied by the private complainants in cases of Arbitrary Detention. Furthermore, Mayor Astorgas claim that SPO1 Capoquian was "not exactly privy" to what transpired between Simon and himself is belied by the evidence. SPO1 Capoquian testified that he accompanied Simon when the latter went to talk to petitioner.46 He heard all of Mayor Astorgas threatening remarks.47 He was with Simon when they were encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles.48 In sum, SPO1 Capoquian witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor Astorga. Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-Lucob or whether they had simply decided to "while away the time" and take advantage of the purported hospitality of the accused.49 On the contrary, SPO3 Cinco clearly and categorically denied that they were simply "whiling away the time" between their dinner with Mayor Astorga and their departure early the following morning.50 SPO1 Capoquian gave similar testimony, saying that they did not use the time between their dinner with Mayor Astorga and their departure early the following morning to "enjoy the place" and that, given a choice, they would have gone home.51 Petitioner argues that he was denied the "cold neutrality of an impartial judge", because the ponente of the assailed decision acted both as magistrate and advocate when he propounded "very extensive clarificatory questions" on the witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter during a trial. It can propound clarificatory questions to witnesses in order to ferret out the truth. The impartiality of the court cannot be assailed on the ground that clarificatory questions were asked during the trial.52 Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable doubt of Arbitrary Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention has not exceeded three days, the penalty shall be arresto mayor in its maximum period to prision correccional in its minimum period, which has a range of four (4) months and one (1) day to two (2) years and four (4) months. Applying the Indeterminate Sentence Law, petitioner is entitled to a minimum term to be taken from the penalty next lower in degree, or arresto mayor in its minimum and medium periods, which has a range of one (1) month and one (1) day to four (4) months. Hence, the Sandiganbayan was correct in imposing the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum. Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion in Lino v. Fugoso, wherein he decried the impunity enjoyed by public officials in committing arbitrary or illegal detention, and called for the intensification of efforts towards bringing them to justice: The provisions of law punishing arbitrary or illegal detention committed by government officers form part of our statute books even before the advent of American sovereignty in our country. Those provisions were already in effect during the Spanish regime; they remained in effect under

American rule; continued in effect under the Commonwealth. Even under the Japanese regime they were not repealed. The same provisions continue in the statute books of the free and sovereign Republic of the Philippines. This notwithstanding, and the complaints often heard of violations of said provisions, it is very seldom that prosecutions under them have been instituted due to the fact that the erring individuals happened to belong to the same government to which the prosecuting officers belong. It is high time that every one must do his duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging of the shoulders the complaints of the victims of arbitrary or illegal detention. Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The responsible officials should be prosecuted, without prejudice to the detainees right to the indemnity to which they may be entitled for the unjustified violation of their fundamental rights.53 WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is AFFIRMED in toto. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur. Azcuna, J., on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 123595 December 12, 1997 SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.: In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities.

At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5 At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the

Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving very fast." 6 Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8 On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner. 9 Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 11 On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in evidence. 12 Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he "[f]ound that [the] major components

consisting of [a] high filler and fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13 Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented. 14 The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information." 15 Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence." 18 The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt. In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21 In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST." 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto. 24 In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner's eyes "moving very fast." Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel. Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

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

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6) a "stop and frisk." 35 In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a search can be made the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38 Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman

and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 41 Finally, a "stop-andfrisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and selfpreservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid: First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared." Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing? A They were merely standing. Q You are sure of that? A Yes, sir.

Q And when you saw them standing, there were nothing or they did not create any commotion. A None, sir. Q Neither did you see them create commotion? A None, sir. 42

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43

What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ., concur.

Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that: 1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and 2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision. I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs. Court of Appeals, 1 People vs. Encinada, 2 People vs. Lacerna 3 and People vs. Cuizon, 4 all of which were promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a background on each. Manalili Involved a Valid Stop-and-Frisk In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two were products of the illegal search. Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk. Lawmen Had Sufficient Opportunity to Secure Warrant in Encinada In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the driver to

stop. After introducing themselves, the policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence. Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw intelligence information was not a sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's] receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant. 7 . . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 8

Consent Validated an Otherwise Illegal Search in Lacerna In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched when they passed through the checkpoint he was manning, making him suspect that something was amiss. He signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights. The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely consented to the search. Although appellant and his companion were stopped by the police on mere suspicion without probable cause that they were engaged in a felonious enterprise, the Court stressed that their permission for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver being a generally recognized

exception to the rule against warrantless search. 9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of." Mere Suspicion of Criminal Activity Did Not Justify Search of Cuizon Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and seizure. Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No offense had just been committed or was actually being committed or attempted by him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11 The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was

effectively denied his right to counsel; for although he was provided with one, he could not understand and communicate with him concerning his defense. After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 12 Instant Case Correlated with Four Cited Now to the correlation with the case at bar. (1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the policemen are not specially trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him. The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stop-and-frisk. (2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his

subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house unhampered by the police. There was considerable interruption between the supposed commission of the crime and his subsequent arrest in his house where he was already resting. Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant. It is not for the police to make such determination. As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit so as to have obtained a lawful arrest warrant that hindered his valid seizure thereafter. (3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a search on his person. Mengote Supports Present Ponencia Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. 14

In closing, the Court lamented and thus warned:


It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman. WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

Separate Opinions PANGANIBAN, J., separate opinion: I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that: 1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and 2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision. I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs. Court of Appeals, 1 People vs. Encinada, 2 People vs. Lacerna 3

and People vs. Cuizon, 4 all of which were promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a background on each. Manalili Involved a Valid Stop-and-Frisk In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two were products of the illegal search. Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk. Lawmen Had Sufficient Opportunity to Secure Warrant in Encinada In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence. Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw intelligence information was not a sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence

did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's] receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant. 7 . . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 8

Consent Validated an Otherwise Illegal Search in Lacerna In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched when they passed through the checkpoint he was manning, making him suspect that something was amiss. He signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights. The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely consented to the search. Although appellant and his companion were stopped by the police on mere suspicion without probable cause that they were engaged in a felonious enterprise, the Court stressed that their permission for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver being a generally recognized exception to the rule against warrantless search. 9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of." Mere Suspicion of Criminal Activity Did Not Justify Search of Cuizon Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to

Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and seizure. Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No offense had just been committed or was actually being committed or attempted by him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11 The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was effectively denied his right to counsel; for although he was provided with one, he could not understand and communicate with him concerning his defense. After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions

raised or probable cause established, and should effect the arrests and searches without any delay. 12 Instant Case Correlated with Four Cited Now to the correlation with the case at bar. (1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the policemen are not specially trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him. The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stop-and-frisk. (2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house unhampered by the police. There was considerable interruption between the supposed commission of the crime and his subsequent arrest in his house where he was already resting. Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it

is important to bring one's evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant. It is not for the police to make such determination. As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit so as to have obtained a lawful arrest warrant that hindered his valid seizure thereafter. (3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a search on his person. Mengote Supports Present Ponencia Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife. The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were 'suspicious-looking' persons in that vicinity who were about

to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. 14

In closing, the Court lamented and thus warned:


It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman. WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. No. 134503 July 2, 1999 JASPER AGBAY, petitioner, vs. THE HONORABLE DEPUTY OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO NATIVIDAD, JR. and SPO2 ELEAZAR M. SOLOMON, respondent.

GONZAGA-REYES, J.: This petition for certiorari seeks to nullify the Resolution of the Deputy Ombudsman for the Military dated 19 January 1998 1 which recommended the dismissal of the criminal complaint filed by petitioner against herein private respondents for violation of Article 125 of the Revised Penal Code for delay in the delivery of detained persons, and the Order of April 13, 1998 2 which denied his motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are as follows: On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was arrested and detained at the Liloan Police Station, Metro Cebu for an alleged violation of R.A. 7610, the "Special Protection of Children Against Child abuse, Exploitation and Discrimination Act." 3 The following day, or on September 8, 1997, a Complaint for violation of R.A. 7610 was filed against petitioner and Jugalbot before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by one Joan Gicaraya for and in behalf of her daughter Gayle 4. The complaint, insofar as pertinent, reads as follows:
That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan, Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, feloniously and unlawfully, conspiring, confederating, helping with one another, while accused JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA AMIGABLE GICAYARA, his companion block the sight of the Private Complainant, Mrs. JOAN A. GICAYARA, while on board a tricycle going their destinations. Upon initial investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN JUGALBOT was released and accused JASPER AGBAY is presently detain Liloan Police Station Jail. Medical Certificate issued from Don Vicente Sotto Memorial Medical Center, Cebu City is hereto attached.

On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan demanding the immediate release of petitioner considering that the latter had "failed to deliver the detained Jasper Agbay to the proper judicial authority within thirty-six (36) hours from September 7, 1997." 5 Private respondents did not act on this letter and continued to detain petitioner. 6 On September 12; 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu issued an order, denominated as "Detention During the Pendency of the Case", committing petitioner to the jail warden of Cebu City. 7 Five (5) days later, or on September 17, 1997, petitioner was ordered released by the said court after he had posted bond. 8 On September 26, 1997, petitioner filed a complaint for delay in the delivery of detained persons against herein private respondents SPO4 Nemesio Natividad, Jr., SPO2 Eleazar M. Salomon and other unidentified police officers stationed at the Liloan Police Substation, before the Office of the Deputy Ombudsman for the Visayas. 9 Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution containing the following dispositive portion:
WHEREFORE, finding probable cause for the crime in Violation of Republic Act 7610, it is hereby recommended that an INFORMATION be filed against the two aforenamed accused. Forward the record of this case to the Provincial Fiscal's Office for appropriate action. 10

By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995 of the Office of the Ombudsman, 11 the case for delay in delivery filed by petitioner against herein private respondents before the Deputy Ombudsman for the Visayas was transferred to the Deputy Ombudsman for the Military for its proper disposition. Thus, it was this office which acted on the complaint, now denominated as OMB-VIS-CRIM-970786, and which issued the questioned Resolution dated January 19, 1998 recommending its dismissal against herein private respondents. Petitioner moved for reconsideration of this Resolution but this motion was denied in an Order dated April 13, 1998. Hence, this petition for certiorari. The grounds relied upon in the present petition 12 are as follows:
I. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN RELYING ON MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED 10 OCTOBER 1995, OF THE OFFICE OF THE OMBUDSMAN IN HOLDING THAT IT HAS COMPETENCE TO ACT ON THE ABOVE-ENTITLED CASE BEFORE IT, THE SAID CIRCULAR BEING UNCONSTITUTIONAL AND ILLEGAL, HENCE, NULL AND VOID.

II. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT IT IS BEYOND ITS COMPENCE TO DETERMINE WHETHER OR NOT THE MUNICIPAL CIRCUIT TRIAL COURT OF LILOAN-COMPOSTELA HAS IN FACT NO JURISDICTION TO TRY THE CASE FILED AGAINST HEREIN PETITIONER. III. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A PRELIMINARY INVESTIGATION, IS NOT THE "PROPER JUDICIAL AUTHORITY " CONTEMPLATED IN ARTICLE 125 OF THE REVISED PENAL CODE AND, HENCE, THE FILING OF THE COMPLAINT BEFORE IT FOR THE PURPOSE OF CONDUCTING A PRELIMINARY INVESTIGATION DID NOT INTERRUPT THE PERIOD PRESCRIBED BY ART. 125. IV. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLIDING THAT THE ISSUE OF THE VALIDITY OF THE ORDER OF DETENTION IS IRRELEVANT TO THE ISSUE OF CRIMINAL LIABILITY OF PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF DETAINED PERSONS. V. THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLDING THAT THE DUTY OF PRIVATE RESPONDENTS TO FILE THE NECESSARY COMPLAINT IN COURT WAS FULFILLED WHEN THEY FILED A FORMAL COMPLAINT ON 8 SEPTEMBER 1997 WITH THE 7TH MCTC OF LILOANCOMPOSTELA.

On the first issue, petitioner argues that due to the civilian character of the Philippine National Police, the Office of the Deputy Ombudsman for the Military, by virtue of the description of the Office, has no competence or jurisdiction to act on his complaint against private respondents who are members of the PNP. Petitioner also questions the constitutionality of Memorandum Circular No. 14 insofar as it purports to vest the Office of the Deputy Ombudsman for Military Affairs with jurisdiction to investigate all cases against personnel of the Philippine National Police.1wphi1.nt There is no dispute as to the civilian character of our police force. The 1987 Constitution, in Section 6, Article XVI, has mandated the establishment of "one police force, which shall be national in scope and civilian character (emphasis supplied)." Likewise, R.A. 6975 13 is categorical in describing the civilian character of the police force. 14 The only question now is whether Memorandum Circular No. 14, in vesting the Office of the Deputy Ombudsman for the Military with jurisdiction to investigate complaints against members of the PNP, violates the latter's civilian character. As opined by the Office of the Solicitor General in its Comment dated 7 December 1998 15 , the issue as to whether the Deputy Ombudsman for the Military has the authority to investigate civilian personnel of the government was resolved in the affirmative in the

case of Acop v. Office of the Ombudsman. 16 In that case, the petitioners, who were members of the Philippine National Police questioned the jurisdiction of the Deputy Ombudsman to investigate the alleged shootout of certain suspected members of the "Kuratong Baleleng" robbery gang; this Court held that:
The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel. On the contrary, a review of the relevant Constitutional provisions reveal otherwise. As previously established, the Ombudsman "may exercise such other powers or perform such functions or duties" as Congress may prescribe through legisiation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment. In this light, Section 11 of R.A. No. 6770 provides: Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have supervision and control of the said Office.

While Section 31 thereof declares:


Sec. 31. Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate or deputize any fiscal, state prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him herein shall be under his supervision and control. Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. In these cases at bench, therefore, no irregularity attended the referral by the Acting Ombudsman of the Kurutong Baleleng case to respondent Casaclang who, in turn, created a panel of investigators. 17

The cited case is determinative of the issue. However, petitioner, in his Reply to Comment dated February 1, 1999, argues that the ruling in the Acop case is not on all fours with the case at bar 18. Petitioner states that the doctrine laid down in the said case is simply that "the Ombudsman may refer cases involving non-military personnel for investigation by the Deputy for Military Affairs. This doctrine, petitioner argues, "applies only to isolated or individual cases involving non-military personnel referred by the Ombudsman to the Deputy for Military Affairs" and does not apply when, as in this case, there is a wholesale or indiscriminate referral of such cases to the Deputy Ombudsman for Military Affairs in the form of an Office Memorandum Circular. Petitioner's arguments do not convince as there is no basis for the distinction. There is no basis in the above-cited decision to limit the referral of cases involving nonmilitary personnel to the Deputy Ombudsman for Military Affairs to isolated or individual cases. The Office of the Ombudsman, in issuing Memorandum Circular No. 15, is simply exercising the power vested in the Ombudsman "to utilize the personnel of his

office and/or designate or deputize any fiscal, state prosecutor or the or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases." This Court, absent any grave abuse of discretion, may not enterfere with the exercise by the Ombudsman of his power of supervision and control over the said Office. Petitioner further argues that Memorandum Circular No. 14 violates the clear intent and policy of the Constitution and of R.A. 6975 to maintain the civilian character of the police force and "would render nugatory and meaningless the distinction between cases involving civilian and military personnel and the creation of separate divisions of the Ombudsman." 19 Said contentions are misplaced. The Deputy Ombudsman for the Military, despite his designation as such, is by no means a member of the military establishment. The said Office was established "to extend the Office of the Ombudsman to the military establishment just as it champions the common people against bureaucratic indifference". The Office was intended to help the "ordinary foot soldiers" to obtain redress for their grievances against higher authorities and the drafters of the Constitution were aware that the creation of the Office, which is seemingly independent of the President, to perform functions which constitutionally should be performed by the President, might be in derogation of the powers of the President as Commander-In-Chief of the Armed Forces 20. It must be borne in mind that the Office of the Ombudsman was envisioned by the framers of the 1987 Constitution as the "eyes and ears of the people" 21 and "a champion of the citizen. 22" Sec. 12, Art. XI of the 1987 Constitution describes the Ombudsman and his deputies as "protectors of the people." Thus, first and foremost, the Ombudsman and his deputies, including the Deputy Ombudsman for the Military owe their allegiance to the people and ordinary citizens, it is clearly not a part of the military. We fail to see how the assumption of jurisdiction by the said office over the investigation of cases involving the PNP would detract from or violate the civilian character of the police force when precisely the Office of the Ombudsman is a civilian office. The other issues raised by petitioner concerns the application of Art. 125 of the Revised Penal Code which provides as follows:
Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person for the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six hours (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.

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

In the case at bar, petitioner was arrested and detained at the Liloan Police Station on 7 September 1997 for an alleged violation of R.A. 7610, specifically section 5 (b) thereof 23 . This crime carries a penalty of reclusion temporal in its medium period to reclusion perpetua, an afflictive penalty. Under these circumstances, a criminal complaint or information should be filed with the proper judicial authorities within thirty six (36) hours of his arrest. As borne by the records before us the mother of private complainant, Joan Gicaraya, filed a complaint on 8 September 1997 against petitioner for violation of R.A. 7610 before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu. Petitioner contends that the act of private complainant in filing the complaint before the MCTC was for purposes of preliminary investigation as the MCTC has no jurisdiction to try the offense. This act of private complainant petitioner argues, was unnecessary, a surplusage which did not interrupt the period prescribed by Art. 125 24 considering that under the Rules it is the Regional Trial Court which has jurisdiction to try the case against him. As such, upon the lapse of the thirty-six hours given to the arresting officers to effect his delivery to the proper Regional Trial Court, private respondents were already guilty of violating Art. 125. Thus, petitioner argues, when the JudgeDesignate of the 7th MCTC issued a Commitment Order on September 12, 1997, he was acting contrary to law since by then there was no basis for the continued detention of petitioner. 25 In addressing the issue, the Office of the Deputy Ombudsman for the Military in its 13 April 1998 Order, stated that the duty of filing the corresponding complaint in court was "fulfille by respondent when the formal complaint was filed on September 8, 1997 with the 7th MCTC of Liloan-Compostela, barely 20 hours after the arrest of herein complainant of September 7, 1997." 26 The Solicitor General, for his part, argues that while a municipal court judge may conduct preliminary investigations as an exception to his normal judicial duties, he still retains the authority to issue an order of release or commitment. As such, upon the filing of the complaint with the MCTC, there was already compliance with the very purpose and intent of Art. 125 27. The core issue is whether the filing of the complaint with the Municipal Trial Court constitutes to a "proper judicial authority" as contemplated by Art. 125 of the Revised Penal Code. Art. 125 of the Revised Penal Code is intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail 28. More specifically, it punishes public officials or employees who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the periods prescribed by law. The continued detention of the

accused becomes illegal upon the expiration of the periods provided for by Art. 125 without such detainee having been delivered to the corresponding judicial authorities 29. The words "judicial authority" as contemplated by Art. 125 mean "the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, the Supreme Court and other such inferior courts as may be established by law. 30" Petitioner takes great pains in arguing that when a municipal trial court judge, as in the instant case, conducts a preliminary investigation, he is not acting as a judge but as a fiscal. In support, petitioner cites the cases of Sangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260 SCRA 561, and Castillo vs. Villaluz, 171 SCRA 39, where it was held that "when a preliminary investigation is conducted by a judge, he performs a nonjudicial function as an exception to his usual duties." Thus, petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862, that the city fiscal is not the proper judicial authority referred to in Art. 125 is applicable. Petitioner's reliance on the cited cases is misplaced. The cited cases of Sangguniang Bayan and Castillo dealt with the issue of whether or not the findings of the Municipal Court Judge in a preliminary investigation are subject to review by provincial and city fiscals. There was no pronoucement in these cases as to whether or not a municipal trial court, in the exercise of its power to conduct preliminary investigations, is a proper judicial authority as contemplated by Art. 125. Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police, supra, since the facts of this case are different. In Sayo, the complainant was filed with the city fiscal of Manila who could not issue an order of release or commitment while in the instant case, the complaint was filed with a judge who had the power to issue such an order. Furthermore, in the Resolution denying the Motion for Reconsideration of the Sayo case 31, this Court even made a pronouncement that the delivery of a detained person "is a legal one and consists in making a charge or filing a complaint against the prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing by the city fiscal of an information with the corresponding city courts after an investigation if the evidence against said person warrants." The power to order the release or confinement of an accused is determinative of the issue. In contrast with a city fiscal, it is undisputed that a municipal court judge, even in the performance of his function to conduct preliminary investigations, retains the power to issue an order of release or commitment 32. Furthermore, upon the filing of the complaint with the Municipal Trial Court, the intent behind art. 125 is satisfied considering that by such act, the detained person is informed of the crime imputed against him and, upon his application with the court, he may be released on bail 33. Petitioner himself acknowledged this power of the MCTC to order his release when he applied for and was granted his release upon posting bail 34. Thus, the very purpose underlying Article 125 has been duly served with the filing of the complaint with the

MCTC. We agree with the postion of the Ombudsman that such filing of the complaint with the MCTC interrupted the period prescribed in said Article. Finally, we note that it was the mother of private complainant who filed the complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If tere was any error in this procedure, private respondents should not be held liable. In the same manner, petitioner's argument that the controversial orders issued by the MCTC are contrary' to law does not give rise to criminal liability on the part of the respondents. Respondent police officers may have rendered themselves open to sanctions if they had released petitioners without the order of the court, knowing fully well that a complainant was a already filed with it. WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed January 19, 1998 Resolution and the April 13, 1998 Order of the Office of the Deputy Ombudsman for the Military, the Court resolves to DISMISS the petition. No pronouncement as to costs. SO ORDERED. Vitug, Panganiban and Purisima, JJ., concur. Romero, J., abroad on official business leave.