SECOND DIVISION
[G.R. No. 120163. March 10, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
DATUKON BANSIL y ALOG, accused-appellant.
D E C I S I O N
QUISUMBING, J.:
This is an appeal from the
decision[1] of the Regional Trial Court of Manila, Branch 43, in
Criminal Case No. 93-128854 finding accused-appellant Datukon Bansil y Alog
guilty beyond reasonable doubt of the crime of illegal possession of firearms
under Presidential Decree No. 1866[2] for having in his possession a .45 cal. pistol and
six (6) live ammunitions without the required license, and sentencing him to
suffer the penalty of reclusion perpetua.
Appellant herein is a twenty-eight
(28) year-old construction worker
residing in Quiapo, Manila, who was arrested by a team of policemen allegedly
led by Major Jaime Ortega of Substation 3 of the Western Police District (WPD),
upon an informer’s tip that appellant was one of the suspects in the killing of
three persons some weeks before in Quiapo, Manila.
The facts as presented by the
prosecution show that on October 28, 1993 at around 5:00 o’ clock in the afternoon, the desk officer of
Sub-station 3 of the Western Police District (WPD) received information from an
informant (whose identity was not divulged) that a suspect in a killing in
Quiapo some weeks before was in the vicinity of the Muslim Mosque in Quiapo,
Manila.[3] Responding to
the information, Sub-station Commander Jaime Ortega, PO3 Liquido Delgado, Mario
Montes and SPO4 Oscar V. Clemente proceeded to the Muslim area where they saw
several persons conversing at the corner of Elizondo St.. One of said persons
had a suspicious bulge in his stomach, and when frisked, a .45 cal. pistol with
an extended magazine and six (6) live bullets was recovered from the center
front of his waist line. Major Ortega
took the gun and brought appellant to the sub-station.[4] SPO4 Redolfin Coloma notified SPO3 Jaime D. Mendoza
of the WPD Homicide Division to take custody of the appellant. That same day,
SPO3 Mendoza received the person of the accused and the subject firearm for
safekeeping.
The defense contradicts the
prosecution’s version. According to the
defense, prior to his arrest appellant was given by his cousin, Mike Mancupao,
the patrolman commander of precinct no. 3, to Major Ortega, one of the
arresting officers, as a “helper.”[5] On three occasions, Major Ortega asked appellant to
collect money from a certain Hadji Baddie allegedly arising from certain drug
deals. On the fourth occasion, appellant was unable to locate Hadji Baddie at
his residence near the Pasig River.[6] His further efforts to locate Hadji Baddie proved
futile, hence, appellant stopped reporting to Major Ortega. On October 28, 1993, at around 3:00 o’clock
in the afternoon, while appellant and his companions, Hidrain Soliman and
Teecaria, were having halo-halo at the Hadji Asia Restaurant at Elizondo St. in
Quiapo, Manila, Major Ortega came up to
him, companionably placed his hand on his shoulder and invited him to talk
outside.[7] The two then proceeded in the direction of the Barter
Trade Area. This exchange was witnessed by one of the waitresses in said
restaurant, Serabanon Angcob, who also testified in court that she knows both
appellant and Major Ortega since the two used to have halo-halo at the
restaurant where she worked.
Appellant claims that Major
Ortega asked him about the money from Hadji Baddie and appellant
explained that he could no longer find him, which made Major Ortega angry.
Major Ortega then brought appellant to the precinct where he was locked up.[8] Thereafter, according to appellant, several persons
showed him a gun; they insisted it belonged to him. He was told that to prevent
further harm on himself, he should sign a document admitting that he committed
a crime. When appellant adamantly refused to do so, some unidentified persons
mauled him before sending him back to jail.[9]
Appellant insists that he never
met the prosecution witness SPO4 Clemente prior to the court hearing, and that
the only person who arrested him was Major Ortega.[10] He categorically denies ever having in his possession
a gun at the time he was arrested by Major Ortega.
In an Information[11] dated November 4, 1993, Assistant City Prosecutor
Tomas R. Romaquin charged the accused-appellant with the crime of violation of
Presidential Decree No. 1866, allegedly committed as follows:
“That on or about October 28, 1993, in the City of Manila, Philippines, the said accused, did then and there wilfully and unlawfully have in his possession and under his control and custody a .45 Colt pistol with Serial No. FG-788041 with six (6) live ammunitions which was tucked in his waist, without first securing the necessary license or permit therefor from the proper authorities.
CONTRARY TO LAW.”
Upon arraignment on December 22, 1993,
appellant, assisted by counsel de oficio, Atty. Bonifacio M. Macabaya,[12] entered a plea of “not guilty”.
During trial, the prosecution
presented four (4) witnesses, namely: (1) SPO3 Romeo T. de Guzman, a
representative from the Firearms and Explosives Unit of Camp Crame, whose
testimony was dispensed with when the defense stipulated with the
prosecution that the certification
(Exh. “A”) dated January 21, 1994 (that the accused is not a licensed/
registered firearms holder of any kind and caliber) was duly issued and signed
by the proper authorities;[13] (2) SPO4 Oscar V. Clemente, one of the apprehending
officers; (3) SPO3 Jaime D. Mendoza,
the investigating officer; and (4) Police Chief Inspector Manolo G. Martinez,
who testified that his participation in the case is limited to the fact that
the firearm allegedly confiscated from the appellant was turned over to his
division for safekeeping purposes only.[14]
On the other hand, the defense
presented two witnesses: (1) appellant Datukon Bansil himself, and (2) Serabanon Angcob, the waitress at the Hadji
Asia Restaurant.
After trial, the lower court
rendered a decision[15] finding appellant guilty as charged, the dispositive
portion of which reads:
“WHEREFORE, premises considered, the accused is hereby found guilty beyond reasonable doubt of Violation of P.D. 1866 as charged and therefore, the accused, Datukon Bansil y Alog is hereby sentenced to suffer the penalty of reclusion perpetua.
SO ORDERED.”
Hence, the present appeal.
Appellant seeks reversal of his conviction on the following grounds:
I.
THE COURT A QUO ERRED IN NOT HOLDING THAT PRESIDENTIAL DECREE NO. 1866 VIOLATES SECTION 19 OF ARTICLE III OF THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES.
II.
THE COURT A QUO ERRED IN HOLDING THAT THE BULGING WAISTLINE OF APPELLANT DATUKON BANSIL MADE THE SEARCH AND ARREST LEGAL.
III.
THE COURT A QUO ERRED IN NOT HOLDING THAT THE ARREST OF APPELLANT DATUKON BANSIL WAS UNLAWFUL.
IV.
THE COURT A QUO ERRED IN FINDING APPELLANT DATUKON BANSIL GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF PRESIDENTIAL DECREE NO. 1866 AND IN THUS NOT ACQUITTING APPELLANT DATUKON BANSIL.
V.
THE COURT A QUO ERRED IN NOT HOLDING THAT MAJOR JAIME ORTEGA ALONE ARRESTED APPELLANT DATUKON BANSIL.
VI.
THE COURT A QUO ERRED IN NOT HOLDING THAT JAIME ORTEGA FELT ILL WILL ON APPELLANT DATUKON BANSIL.
VII.
THE COURT A QUO ERRED IN NOT HOLDING THAT THE PROSECUTION FAILED TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE GUN IDENTIFIED BY SENIOR POLICE INSPECTOR MARTINEZ WAS CONFISCATED FROM APPELLANT DATUKON BANSIL.
Concisely put, the issues are first,
whether or not P.D. No. 1866 is unconstitutional considering that the penalty
imposed therein is allegedly disproportionate to the offense committed in
violation of the constitutional proscription against “excessive fines” and
“cruel, degrading and inhuman punishment” under Article III, Section 19 of the
1987 Constitution. Second, whether or not the trial court correctly gave
credence to the testimony of the prosecution witnesses over the denial of the
appellant. Third, whether or not appellant was lawfully arrested.
The question of proportionality of
penalty to the crime charged has been rendered moot and academic with the
passage of Republic Act No. 8294,[16] which lowered the penalty for the crime of illegal
possession of firearms from the previous “reclusion temporal in its
maximum period to reclusion perpetua” under P.D. No. 1866 to “prision
mayor in its minimum period and a fine of P30,000.00” in cases
involving high powered firearms under R.A. No. 8294. We also deem it not necessary to delve into the
constitutionality of P.D. No. 1866 considering that it has long been settled by
this Court in
no less than two en banc
decisions - Misolas v. Panga, 181 SCRA 648 (1990), and Baylosis v.
Chavez, 202 SCRA 405 (1991).[17]
The decisive issue then is whether
or not the trial court erred in relying
on the testimony of the prosecution witnesses, in particular the testimony of
SPO4 Oscar V. Clemente, one of the apprehending officers, in convicting
appellant. After a thorough scrutiny of SPO4 Clemente’s testimony, we find the same insufficient to
prove beyond reasonable doubt the culpability of the appellant for the crime
charged.
Generally, the issue of
credibility of witnesses is best ascertained by the trial court which had the
opportunity to observe the witnesses directly and to test their credibility by
their demeanor on the stand.[18] Hence, the general rule is that factual findings of the
trial court are accorded respect and are not disturbed on appeal.[19] However, a review of the records of the case compels
us to take exception to the aforesaid rule. We believe that the trial court
erred in adopting the prosecution’s story “hook, line and sinker” albeit
riddled with patent inconsistencies and improbabilities on material points.
We find the testimony of SPO4
Clemente full of inconsistencies on material points, such as how the arresting
team was able to single out appellant as the suspect, and among them who
actually recovered the firearm from appellant. Initially, SPO4 Clemente
testified that they were able to identify appellant because the informant told
the desk officer the attire of the accused, yet upon further questioning, he
could not even remember the supposed attire of the appellant used in
identifying the latter at the time of arrest.[20] Further, on direct examination, SPO4 Clemente
initially testified that he was the one who recovered the subject firearm from
the appellant;[21] however, on cross-examination, he testified that it
was actually another operative whose name he can no longer recall who recovered
the firearm from the appellant.[22] Considering that there were only four members of the
arresting team, including himself, his memory lapses renders his credibility
suspect.
While a police officer is not
expected to remember every single detail regarding the arrest, he is supposed
to remember the important details relating to the commission of the crime, most
especially when such incident occurred in his presence and with his active
involvement. Further, no seizure receipt was issued by the arresting team for
the gun, if indeed it was taken from the accused. Receipts for seized items are
mandatory on the part of apprehending and seizing police officers.[23]
We are aware of the time-honored
rule that “credence should be given to the narration of an incident by
prosecution witnesses who are police officers and presumed to have performed
their duties in a regular manner, in the absence of evidence to the contrary.”[24] However the instant case calls for the application of
the exception rather than the rule. The testimony of the prosecution witness
who was a member of the arresting team is replete with inconsistencies and
contradictions that reliance thereon by the trial court seems to be
misplaced.
While the trial court found that
appellant was lawfully arrested without a warrant since he was actually
committing a crime in the presence of a peace officer under Section 5 of Rule
113 of the 1985 Rules on Criminal Procedure based on the informant’s tip and
the “bulging waistline” of the appellant, we find that there was no probable
cause for the arrest of the appellant. The arresting team was only armed
with the knowledge of the suspect’s
“attire” which the prosecution witness admitted during trial he cannot even
remember. The team did not have a
physical description of the suspect nor his name. They were not even given a
specific place within which to target their search of the suspect, only a
vicinity of the Muslim Area in Quiapo, near the Muslim Mosque. Yet the
arresting team directly zeroed in on the accused and his companions who were
only eating halo-halo at a small restaurant, surely not a crime in itself.
While SPO4 Clemente claims that accused had a “bulging waistline”, this alone,
in the light of the availing circumstances, is insufficient to constitute
probable cause for the arrest of the accused.
Moreover, in crimes involving
illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz: (a) the existence of the subject firearm and (b) the
fact that the accused who owned or possessed it does not have the license or
permit to possess the same.[25] The essence of the crime of illegal possession is the
possession, whether actual or constructive, of the subject firearm, without
which there can be no conviction for illegal possession. After possession is
established by the prosecution, it would only be a matter of course to
determine whether the accused has a license to possess the firearm. In the
instant case, the link of the accused to the subject firearm is tenuous at
best. The prosecution failed to prove
beyond reasonable doubt that the gun which was allegedly recovered from the
accused is the same gun which was examined by its corroborating witnesses,
Jaime Mendoza and Manolo Martinez.
Faced with outright denial of the
accused of the possession of the gun, the prosecution had all the opportunity
to cross-examine the accused and his witness
in order to ferret out the truth and expose the falsity of their allegations.
This the public prosecution failed to do. On the other hand, we find the
testimony of the accused and his witness delivered in a spontaneous, natural,
and consistent manner. No ulterior
motive was ascribed to witness Serabanon Angcob to testify in favor of
accused.
In a criminal case, the accused is
entitled to an acquittal, unless his guilt is shown beyond doubt. Proof beyond
reasonable doubt does not mean such a degree of proof as, excluding possibility
of error, produces absolute certainty. Moral certainty only is required, or
that degree of proof which produces conviction in an unprejudiced mind.[26] On the whole, the meager evidence for the prosecution
casts serious doubts as to the guilt of accused. It does not pass the test of
moral certainty and is insufficient to rebut the constitutional presumption of
innocence.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE, and
appellant DATUKON BANSIL is hereby ACQUITTED for insufficiency of evidence to
prove his guilt beyond reasonable doubt. Appellant’s immediate release is
ordered unless he is detained for some other lawful cause.
SO ORDERED.
Bellosillo (Chairman), Puno, Mendoza, and Buena, JJ., concur.
[1]
Penned by Judge Angel Valera Colet.
[2] “Codifying the laws on illegal/unlawful
possession, manufacture, dealing in, acquisition or disposition of firearms,
ammunition or explosives or instruments used in the manufacture of firearms,
ammunitions or explosives, and imposing stiffer penalties for certain
violations thereof, and for relevant purposes.”
[3] TSN, March 4, 1994,
p. 3.
[4] Ibid., p. 4.
[5] TSN, July 15, 1994,
p. 3.
[6] Ibid., p. 6.
[7] Ibid., p. 7.
[8] Ibid., p. 8.
[9] Id., p. 9.
[10] TSN, September 2,
1994, pp. 7-8.
[11] Rollo, p.5
[12]
Later replaced during trial by counsel de parte Atty. Reynaldo Y. Sarmiento.
[13]
TSN, March 04, 1994, p. 2.
[14] TSN, April 4, 1994,
p. 5.
[15] Rollo, p. 86.
[16] An Act Amending the
Provisions of Presidential Decree No. 1866, as amended, entitled “Codifying the
laws on illegal/unlawful possession, manufacture, dealing in, acquisition or
disposition of firearms, ammunition or explosives or instruments used in the
manufacture of firearms, ammunitions or explosives, and imposing stiffer
penalties for certain violations thereof, and for relevant purposes.”
[17] In Misolas v.
Panga, the Court, speaking through Justice Cortes, upheld the constitutionality
of the third paragraph of Section 1 of P.D. No. 1866 against the challenge that
said law violates substantive due process. Justices Cruz and Sarmiento
dissented on the grounds that P.D. No. 1866 constitutes a bill of attainder and
a violation of the constitutional proscription against double jeopardy. The
Misolas ruling was strongly reiterated in another en banc decision in Baylosis v.
Chavez, 202 SCRA 405 (1991). Justice Narvasa said that “[s]ince it does not
seem that the passage of time has infused any validity into those arguments,
they shall again be struck down as specious, and the second constitutional
challenge, like the first, repulsed.”
[18] People v.
Villanueva, 275 SCRA 489 (1997); People v. Errojo, 229 SCRA 49 (1994);
People v. Gomez, 229 SCRA 138 (1994).
[19] Del Mundo v.
Court of Appeals, 252 SCRA 432 (1996); Lim v. Court of Appeals, 229 SCRA
616 (1994).
[20] TSN, March 4, 1994,
p. 8.
[21] TSN, March 4, 1994,
pp. 3-4.
[22] TSN, March 4, 1994,
p.9.
[23] People v.
Rosas, 149 SCRA 464 at p. 469.
[24] People v.
Boholst, 152 SCRA 263 at p. 270, citing People v. Gamayon, 121 SCRA 642;
People v. Campana, 124 SCRA 271; People v. Rosas, 149 SCRA 464.
[25] People v.
Villanueva, supra.
[26] Rule 133, Section 2,
Revised Rules of Court.