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G.R. No.

129069

October 17, 2001

PEOPLE OF THE PHILIPPINES, appellee,


vs.
JULIO RECTO y ROBEA, appellant.
PANGANIBAN, J.:
Treachery cannot be appreciated to qualify a killing to murder, if the accused h
as not deliberately sought to attack the vulnerability of the victim. In the pre
sent case, the latter evidently had the opportunity to escape or to defend himse
lf, but chose not to grab the opportunity; instead, he placed himself in a posit
ion more open to attack.
The Case
For automatic review by this Court is the Decision1 dated April 2, 1997, promulg
ated by the Regional Trial Court (RTC) of Romblon (Branch 81), which found Julio
Recto y Robea guilty beyond reasonable doubt of (1) two counts of the complex c
rime of qualified direct assault with frustrated homicide (Criminal Case Nos. 19
70 and 1971), (2) the complex crime of qualified direct assault with murder (Cri
minal Case No. 1972), and (3) homicide (Criminal Case No. 1973). The decretal po
rtion of the RTC Decision reads follows:
"WHEREFORE, in Criminal Case No. 1970, this Court finds accused JULIO RECTO GUIL
TY beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault
[w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the indetermin
ate penalty of from eight (8) years and one (1) day of prision mayor, as minimum
, to ten (10) years and one (1) day of prision mayor, as maximum, with the acces
sory penalties of the law, and to pay the costs.
"In Criminal Case No. 1971, this Court finds accused JULIO RECTO GUILTY beyond r
easonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [f]r
ustrated [h]omicide and hereby sentences him to suffer the indeterminate penalty
of from eight (8) years and one (1) day of prision mayor, as minimum, to ten (1
0) years and one (1) day of prision mayor, as maximum, with the accessory penalt
ies of the law, and to pay the costs.
"In Criminal Case No. 1972, this Court finds co-accused JULIO RECTO GUILTY beyon
d reasonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [
m]urder and hereby sentences him to suffer the supreme penalty of DEATH. He is o
rdered to pay the heirs of the victim ANTONIO MACALIPAY the sum of P50,000.00 as
indemnity for his death, without subsidiary imprisonment in case of insolvency,
and to pay the costs.
xxx

xxx

xxx

"In Criminal Case No. 1973, this Court finds co-accused JULIO RECTO GUILTY beyon
d reasonable doubt of the crime of [h]omicide and hereby sentences him to suffer
the indeterminate penalty of from eight (8) years and one (1) day of prision ma
yor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of re
clusion temporal, as maximum, with the accessory penalties of the law, and he is
ordered to pay the heirs of the victim EMILIANO 'RENATO' SANTOS, alias REY, the
sum of P50,000.00 as indemnity for his death. without subsidiary imprisonment i
n case of insolvency, and to pay the costs.
xxx

xxx

xxx

"The 'pugakang' or homemade shotgun with one (1) live ammunition (Exh. C); twelv
e (12) gauge live ammunition (Exh. C-1); the revolver together with the three (3

) live bullets and two (2) empty shells (Exhs. D, D-1 to D-5, respectively) are
confiscated in favor of the government.
"After the judgment shall have become final, the [o]fficer-in-[c]harge, Office o
f the Clerk of Court, this Court, is ordered to deliver and deposit all the fore
going exhibits to the [p]rovincial [d]irector, PNP, of the Province of Romblon p
roperly receipted. Thereafter, the receipt must be attached to any of the record
s of these cases and shall form part of these records.
"The period of preventive imprisonment both accused had undergone shall be credi
ted in their favor to its full extent and the penalties herein imposed shall be
served successively in accordance with Articles 29 and 70, respectively, of the
Revised Penal Code, as amended."2
On September 22, 1994, four (4) Informations,3 all signed by State Prosecutor II
Felix R. Rocero, were filed against appellant. The fifth Information was dated
October 18, 1994.
The Informations in Criminal Case Nos. 1970 and 1971 charged appellant with dire
ct assault with frustrated murder, as follows:
Criminal Case No. 1970
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afte
rnoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblo
n, Philippines, and within the jurisdiction of this Honorable Court, the said ac
cused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault, and shoot with a shotgun locally ca
lled 'pugakang' one MELCHOR RECTO, knowing that the latter is a duly appointed [
b]arangay [c]hief [t]anod of Ambulong, Magdiwang, Romblon, while he was engaged
in the performance of his official duties, inflicting upon the latter gunshot wo
unds in different parts of his body, thus performing all the acts of execution w
hich should produce the felony of murder as a consequence, but nevertheless, did
not produce it by reason of causes independent of the will of the accused and t
hat is by the timely and able medical assistance rendered to the victim which pr
evented his death."4
Criminal Case No. 1971
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afte
rnoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblo
n, Philippines, and within the jurisdiction of this Honorable Court, the said ac
cused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault, and shoot with a shotgun locally ca
lled 'pugakang' one Barangay Captain PERCIVAL ORBE, knowing that the latter is a
duly elected barangay captain of Ambulong, Magdiwang, Romblon, while he was eng
aged in the performance of his official duties, inflicting upon the latter gunsh
ot wounds in different parts of his body, thus performing all the acts of execut
ion which should produce the felony of murder as a consequence, but nevertheless
, did not produce it by reason of causes independent of the will of the accused
and that is by the timely and able medical assistance rendered to the victim whi
ch prevented his death."5
The Information6 in Criminal Case No. 1972, which charged appellant with direct
assault with murder, was worded thus:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afte
rnoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblo
n, Philippines, and within the jurisdiction of this [H]onorable Court, the said
accused with intent to kill, conspiring, confederating and mutually helping each

other, did then and there, by means of treachery, wilfully, unlawfully and felo
niously attack, assault and shoot with a shotgun locally called 'pugakang' and s
trike with a long bolo, one ANTONIO MACALIPAY, knowing that the latter is a duly
elected [b]arangay [k]agawad of Ambulong, Magdiwang, Romblon, while he was enga
ged in the performance of his official duties, inflicting upon the latter mortal
wounds in different parts of his body which were the cause of his untimely deat
h."7
In the Information8 in Criminal Case No. 1973, appellant was charged with murder
, as indicated hereunder:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afte
rnoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblo
n. Philippines, and within the jurisdiction of this Honorable Court, the said ac
cused, with intent to kill, did then and there, by means of treachery, wilfully,
unlawfully and feloniously attack, assault and shoot with a shotgun locally cal
led 'pugakang' and strike with a long bolo, one EMILIANO 'RENATO' SANTOS9 , alia
s EMY, inflicting upon the latter mortal injuries in different parts of his body
which were the direct and immediate cause of his death."10
Finally, appellant was charged with illegal possession of firearm and ammunition
in the Information in Criminal Case No. 1975, which we quote:
"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afte
rnoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblo
n, Philippines, and within the jurisdiction of this Honorable Court, the said ac
cused, with intent to kill, did then and there wilfully, unlawfully and feloniou
sly have in his possession and under his custody and control, one (1) handgun lo
cally called 'pugakang' with one live ammunition, which he used in killing Baran
gay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos and [which was] confi
scated by the police authorities."11
When arraigned on all the five charges on November 24, 1994, appellant, with the
assistance of his counsel,12 pleaded "not guilty."13 In due course, he was trie
d and, thereafter, sentenced.
The Facts
Version of the Prosecution
The Office of Solicitor General summarized the evidence for the prosecution in t
his wise:14
"In the early afternoon of April 18, 1994 at Ambulong, Magdiwang, Sibuyan Island
, Romblon, Barangay Captain Percival Orbe was in his residence together with Bar
angay Kagawad Antonio Macalipay and Barangay Tanod Melchor Recto, appellant's co
usin. They were trying to settle a land dispute involving Linda Rance and Cornel
io Regis, Jr. While the meeting was in progress, Orbe was summoned by SPO4 Fortu
nato Rafol to proceed to the bodega of Rance.
"There, they noticed that the padlock of the bodega was destroyed, and the palay
stored therein, stolen. Forthwith, Barangay Kagawad Macalipay, who happened to
be the chairman of the Barangay Agrarian Reform Committee (BARC), conducted an i
nvestigation.
"SPO4 Rafol and SPO1 Male, also made their investigation and reported their find
ings to Linda Rance. At this point, Barangay Tanod Melchor Recto passed by. He s
aw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito and Linda Rance at the bodega.
He went to Barangay Captain Orbe and inquired why they were there. Barangay Capt
ain Orbe told him that the padlock of the bodega was destroyed and the palay, st
olen. Orbe requested Melchor Recto to stay as he might be needed. Thereupon, Bar

angay Tanod Melchor Recto began his own ocular investigation.


"While SPO4 Rafol and SPO1 Male were leaving the premises, the group of [A]ppell
ant Julio Recto, Cornelio Regis, Jr., Dante Regis, Melvar Relox, Teodoro de la S
erna, Enrica Regis and Nida Regis arrived. The group stopped at the first 'tramp
a' near the bodega. Barangay Captain Orbe advised them not to create trouble, bu
t, Dante Regis pulled a piece of wood and threw it towards them. Thereafter, [A]
ppellant Recto, while holding a balisong or fan knife, approached Barangay Capta
in Orbe. The latter responded by telling the former to surrender the balisong. A
ppellant stepped backward, opened his jacket and pulled out a gun, a de sabog. U
pon seeing the gun, Barangay Captain Orbe retreated, while Barangay Kagawad Anto
nio Macalipay stepped forward with both arms raised and uttered the words: 'Do n
ot do it. We'll just settle this. (Ayoson ta lang ine).' Julio Recto, however, i
mmediately pulled the trigger, hitting Barangay Kagawad Macalipay, causing him t
o fall down on the ground. Then Cornelio Regis, Jr. approached the fallen Macali
pay and flipped his bolo at the latter who rolled and fell into the rice paddy.
"Melchor Recto saw the shooting from his hiding place behind a concrete pillar.
He then ran inside the old dilapidated bathroom of the bodega. Barangay Captain
Orbe also followed. Inside the bathroom, Melchor Recto peeped through the window
and saw [A]ppellant Recto fire his gun at Emilio Santos. Santos also fired his
revolver at appellant and later, turned around and crawled. While crawling, Sant
os fired another shot towards Regis, Jr[.], but, the latter was able to reach an
d hack the former with a bolo.
"Amidst the din, Percival Orbe and Melchor Recto heard [A]ppellant Julio Recto s
aying: 'Where is that kapitan?' When Melchor could no longer see Julio Recto, he
jumped out of the bathroom window and ran. While running, Julio Recto shot him
hitting the latter's thigh. Barangay Captain Orbe also got out of the bathroom t
hrough the top and landed [o]nto the ricefield. Before he could take a step, he
was also shot by [A]ppellant Julio Recto at his right elbow, but was still able
to continue running and cross the southern portion of the ricefield. He caught u
p with the wounded Melchor Recto and both went their separate ways. On the other
hand, both Barangay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos died
due to multiple wounds inflicted on them by herein appellant." (citations omitt
ed)
Version of the Defense
On the other hand, the trial court presented appellant's version of the incident
, as follows:15
"x x x Julio Recto interposed self-defense and defense of his co-accused Corneli
o Regis, Jr. . . . According to co-accused Julio Recto they were berated at abou
t 12 meters away from the bodega and it was there that the late Emiliano Santos
shot co-accused Cornelio Regis, Jr. and he was hit and he (Julio) retreated two
(2) steps backward. Then, he took two (2) steps forward and said why are you lik
e that. Alberto Rance, the son of Mrs. Linda Rance, shot him, hitting him on his
left side. He ran towards Alberto Rance who shot him with the latter behind the
concrete porch holding his gun with his two (2) hands resting on the concrete w
all (porch) of the bodega, and with Emiliano Santos also holding his gun [which]
he used in shooting Regis, Jr. The distance between Alberto Rance and the unarm
ed Julio Recto was 11 meters when x x x Julio Recto r[a]n towards Alberto Rance[;
] the latter ran and he saw Wilfredo Arce [turn] and [pick] up a gun and he grab
bed the gun and while pulling it, it fired and he did not know whether it hit so
mebody. Emiliano Santos incredibly was no longer there to shoot him. However, Ju
lio Recto was able to take possession of this gun from Wilfredo Arce, took cover
behind a post and still managed to shoot Santos who was somewhere else. He thre
w the gun later on the disputed land and ran to the direction of the banana plan
tation of Regis, Jr. and he reached his house. Both of them were outside the hou

se of Regis, Jr. x x x when [M]aritime [P]oliceman Morada and Galin arrived. x x


x" (citations omitted, underscoring in original)
Ruling of the Trial Court
The trial court found that appellant had fired at a barangay tanod, Melchor Rect
o, who was at the crime scene "on the occasion of the performance of his officia
l duties."16 It added that appellant had shot a barangay captain, Percival Orbe,
also "on the occasion of the performance of his official duties."17
The lower court ruled out treachery in the killing of Emiliano Santos, because t
here had been a gun duel between him and appellant. However, it convicted and se
ntenced appellant to death for the murder of Antonio Macalipay.
Because of the trial court's imposition of the death penalty, this review by the
Supreme Court is mandatory and automatic, without need of a notice of appeal.18
Assignment of Errors
In his Brief, appellant faults the court a quo with the following alleged errors
:19
I
"The lower court erred in finding the accused-appellant guilty of direct assault
in Criminal Case Nos. 1970 and 1972 which accordingly resulted in his being con
victed of complex crimes in those cases.
II
"The lower court erred in finding the presence of the qualifying circumstance of
treachery in Criminal Case No. 1972 which accordingly resulted in his being con
victed of murder in that case."
In the interest of justice and despite appellant's anemic Brief, we deem it wise
to review the entire assailed Decision, particularly the crimes imputed and the
penalties imposed by the trial court.
The Court's Ruling
The Decision of the trial court should be MODIFIED.
Self-Defense and Defense of a Relative
Appellant contends that he committed the crimes attributed to him in self-defens
e and in defense of his uncle, Cornelio Regis Jr.
By invoking self-defense and defense of a relative, appellant plainly admits tha
t he killed Antonio Macalipay and Emiliano "Renato" Santos and fired the shots t
hat injured Melchor Recto and Percival Orbe. Thus, appellant has shifted the bur
den of evidence to himself. Consequently, to escape criminal liability, he must
prove, by clear and convincing evidence, the existence of the essential requisit
es of self-defense; namely, (1) unlawful aggression on the part of the victim, (
2) reasonable necessity of the means employed to prevent or repel it, and (3) la
ck of sufficient provocation on the part of the person resorting to self-defense
.20 For defense of a relative21 to prosper, appellant must prove the concurrence
of the first and the second requisites of self-defense and "the further requisi
te, in case the provocation was given by the person attacked, that the one makin
g the defense had no part therein."22

Appellant miserably failed to discharge this burden. In fact, he was clearly the
aggressor. Without unlawful aggression on the part of the victim, there can be
no viable self-defense or defense of a relative.23
"There is unlawful aggression when the peril to one's life, limb or right is eit
her actual or imminent. There must be actual force or actual use of weapon."24 I
n this case, Antonio Macalipay was unarmed and actually trying to pacify appella
nt when the latter shot him. After shooting Antonio, appellant again cocked his
gun, pointed it at Emiliano Santos and shot him. The latter's act of drawing his
gun and firing at him was merely self-defense.
As for Melchor Recto and Percival Orbe, no aggression ever emanated from them du
ring the entire incident. They were unarmed and in fact already running away fro
m appellant when he shot them. Clearly, there was no unlawful aggression from an
y of the victims.
For purposes of clarity and simplicity, we deem it wise to discuss separately th
e crimes attributed to appellant and the proper penalties imposed by the trial c
ourt.
Crime and Punishment
The trial court convicted appellant of four (4) crimes: two counts of the comple
x crime of qualified direct assault with frustrated homicide, one count of the c
omplex crime of qualified direct assault with murder, and one count of homicide.
We will now discuss each of these crimes.
Qualified Direct Assault with Frustrated Homicide
(Criminal Case Nos. 1970 and 1971)
In these two cases, appellant claims that he "did not mind" the two victims beca
use they were not his enemies. He, however, testified that the de sabog gun had
merely misfired and hit them. The court a quo was correct in not giving credence
to his attempt to paint the victim's injuries as the result of an accident. Evi
dence to be believed must be credible in itself.25 His weak and incredible testi
mony cannot prevail over the positive and categorical testimonies of the prosecu
tion witnesses stating that he deliberately shot them.
However, the trial court erred in convicting appellant of qualified direct assau
lt with frustrated homicide.
Direct assault, a crime against public order, may be committed in two ways: firs
t, by "any person or persons who, without a public uprising, shall employ force
or intimidation for the attainment of any of the purposes enumerated in defining
the crimes of rebellion and sedition;" and second, by any person or persons who
, without a public uprising, "shall attack, employ force, or seriously intimidat
e or resist any person in authority or any of his agents, while engaged in the p
erformance of official duties, or on occasion of such performance."26 The first
mode is tantamount to rebellion or sedition, without the element of public upris
ing. The second mode, on the other hand, is the more common form of assault, and
is aggravated when: (a) the assault is committed with a weapon, or (b) when the
offender is a public officer or employee, or (c) when the offender lays a hand
upon a person in authority.27
An agent of a person in authority is "any person who, by direct provision of law
or by election or by appointment by competent authority, is charged with the ma
intenance of public order and the protection and security of life and property,
such as barrio councilman, barrio policeman and barangay leader, and any person
who comes to the aid of persons in authority."28 In the case at bar, the victim,

Melchor Recto29
being then the barangay chief tanod of Ambulong, Magdiwang, Rom
blon was clearly an agent of a person in authority. However, contrary to the fin
dings of the trial court, he was not "engaged in the performance of his official
duties" at the time he was shot. Neither was he attacked "on the occasion of su
ch performance," as we will now show.
It must be emphasized that Melchor Recto was on his way home when he happened to
pass by the bodega of the Rance couple. He testified as follows:
"PROSECUTOR MORTEL:
Q:
On April 18, 1994 at around 4:00 o'clock in the afternoon, you said y
ou were in the ricefield gathering the harvested palay[;] what time did you leav
e that place?
A:

Nearing 5:00 o'clock already.

Q:
And in going to your house, do you remember if you ha[d] to pass by t
he bodega of Rance?
ATTY. MONTOJO:
Leading, Your Honor.
COURT:
Leading.
PROSECUTOR MORTEL continuing:
Q:

Now, did you go to your house that afternoon?

A:

No, sir.

Q:

Why?

A:

Because when I pass[ed] in the bodega there were plenty of people.

Q:

Whose bodega are you referring to?

A:

Rance.

Q:

Do you know the name of the owner?

A:

Yes, sir.

Q:

Please give us the name?

A:

First owned by Jose Rance now owned by Crestito and Linda Rance.

Q:

What relation has this Crestito Rance to Jose Rance?

A:

Jose is the father of Crestito Rance.

Q:

And this Linda, what relation has she with Crestito Rance?

A:

Wife.

Q:
You said, that when you passed by the bodega on your way to your hous
e there were people in that bodega, please give us [the] names of the people the

reat whom you know?


A:
SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain Percival Orbe, Kag. Ant
onio Macalipay, Wilfredo Arce and Spouses Crestito and Linda Rance and those who
were threshing palay thereat."30
Melchor explained that when appellant's group arrived, it was Barangay Captain P
ercival Orbe and Kagawad Antonio Macalipay who talked to the group. Melchor did
not do anything to avert the tension. He only watched what was transpiring and l
ater hid himself when the first shot was fired. He continued:
"PROSECUTOR MORTEL continuing:
Q:

Because of that, what did Orbe tell you as a barangay tanod?

ATTY. MONTOJO:
Leading, Your Honor.
COURT: Leading.
PROSECUTOR MORTEL continuing:
Q:

What else did he say?

A:

He told me not to leave because he might need me.

Q:

And did you remain?

A:

Yes, sir.

Q:

As you were there, did you observe what [t]he policemen were doing?

A:

I observed [them] going there and through around [sic] the bodega.

xxx
Q:

xxx

xxx

Now later on, do you remember what the policemen did?

A:
I observed that the policemen were already passing the rice paddies t
owards the road.
Q:
And after they were gone . . . . By the way, who were these policemen
whom you observed going towards the road, will you please name them?
A:

SPO4 Fortunato Rafol and Male.

Q:

Do you know the first name of SPO1 Male?

A:

No sir.

Q:
arrived?

Now, after they were gone, do you remember if there were persons who

ATTY. MONTOJO:
Misleading
COURT:

Leading.
PROSECUTOR MORTEL (continuing):
Q:

After they were gone, what happened?

A:
I saw Cornelio Regis, Jr., Julio Recto, Melver Relox, Dante Regis, Te
odoro dela Serna, Nida Regis, Enrica Regis. I saw these seven (7) passing throug
h the rice paddies towards the bodega.
xxx

xxx

xxx

PROSECUTOR MORTEL continuing:


Q:

Were these group of people able to reach the bodega?

A:

No, sir.

Q:

Why?

A:

They stopped on the first trampa that they reached.

Q:

And upon reaching that place, what happened?

A:

Dante Regis thr[e]w a piece of wood.

Q:

Going to what direction?

A:

Towards the bodega.

Q:
And when Dante Regis thr[e]w that piece of wood towards the direction
of the bodega, what happened?
A:
The barangay captain, Percival Orbe, approached them and told them no
t to do it.
Q:
ptain?

And what did you observe . . . . By the way, who was that barangay ca

A:

Orbe.

Q:
And what did you observe when [B]arangay [C]aptain Orbe [told] them n
ot to do it?
A:

I observed that the group got angry so Percival Orbe retreated.

Q:
n?

And when Percival Orbe approached the group, did he have any companio

A:

Yes, sir.

Q:

Who?

A:

Kagawad Antonio Macalipay.

Q:

And when Percival Orbe retreated, what did Antonio Macalipay do?

A:
When the barangay captain retreated, Antonio Macalipay proceeded towa
rds the group and stop[ped] at the second trampa coming from the bodega.

Q:

Now, when you reached that place of the second trampa, what happened?

A:
Julio Recto raised his jacket and pulled out a gun and pointed it to
Antonio Macalipay.
INTERPRETER:
Witness standing and demonstrating.
PROSECUTOR MORTEL continuing:
Q:
And when the gun was pointed to Kagawad Antonio Macalipay, what did A
ntonio Macalipay do?
A:

He raised both hands.

INTERPRETER:
Witness demonstrating by raising his two (2) arms up with open palms as if in su
rrender, and said ['D]o not do it we will just settle this.[']
PROSECUTOR MORTEL continuing:
Q:

And after Macalipay had said that, what happened?

A:

Julio Recto shot him.

Q:

And what happened to Macalipay after being shot?

A:

Antonio Macalipay fell down backward.

INTERPRETER:
Witness demonstrating . . . fall[ing] backward.
PROSECUTOR MORTEL continuing:
Q:
o?

And when you saw Antonio Macalipay fall down backward, what did you d

A:

I hid behind a pil[l]ar?

xxx

xxx

xxx

Q:

After hiding behind the pil[l]r, what did you do?

A:

I ran towards an old broken down bathroom. . . . "31

Thinking that appellant had already left the bodega, Melchor, while hiding insid
e the old bathroom for several minutes, decided to jump out of a broken down win
dow32 and ran towards the national road.33
Clearly, from his arrival at the scene of the crime to his departure therefrom,
Melchor was not engaged in the performance of his official duties. Neither was h
e attacked on the occasion thereof.
This fact was corroborated further by the testimony of Linda Rance, who said tha
t it was Orbe and Macalipay who had pacified appellant and his six companions. S
he testified thus:

"PROSECUTOR VICTORIANO continuing:


Q:

While they were discussing, what happened?

A:

When they were discussing, Dante Regis thr[e]w a piece of wood.

Q:

To what direction was that piece of wood thr[own] by Dante Regis?

A:

Going towards our group.

Q:

And how is this Dante Regis related to Cornelio Regis Jr.?

A:

He is the son of Cornelio Regis, Jr.

Q:
dy hit?

When that piece of wood was thrown towards your direction, was somebo

A:

No, sir.

Q:

Where did that piece of wood land?

A:

In front of our bodega.

Q:

Was there anything hit by that piece of wood?

A:

No, sir.

Q:

When that piece of wood was thrown, what followed next?

A:

They were already agitated.

Q:

Now, because of the agitation, what happened?

A:

Bgy. Captain Orbe was trying to pacify them.

Q:

What about Bgy. Kagawad Antonio Macalipay, what did he do?

A:

He was trying to pacify but they would not be pacified.

Q:

Now, when they refused to be pacified, what did Julio Recto do?

A:
Julio Recto turned his way (witness turning to her left side) and ope
n[ed] his jacket and drew a gun.
Q:

When Julio Recto drew his gun, what did Antonio Macalipay do?

A:
Antonio Macalipay said, ["L]et us settle this (witness raising . . .
both [of her] hands) and do not do it. (at the same time raising . . . both [of
her] hands as if in surrender[)"].
INTERPRETER:
Witness demonstrating.
PROSECUTOR VICTORIANO continuing:
Q:
Now, [in] spite of what Barangay Kagawad Antonio Macalipay did, what
happened?
A:

Julio Recto shot him once."34

Unquestionably, Melchor Recto was a barangay chief tanod; however, at the crime
scene he was a mere bystander. Apparently, he was not acting and had no occasion
to act in the performance of his official duties that afternoon. Thus, the atta
ck on him did not amount to direct assault.35
We now determine the criminal liability of appellant with respect to the attack.
He shot Melchor only once, but the latter sustained five gunshot entry wounds36
all located at his backside, at the vicinity of his buttocks. Because the gun u
sed by the former was a de sabog,37 each bullet contained several pellets inside
.38 In other words, a single shot from a de sabog results in the spewing of seve
ral pellets. The nature of the weapon used for the attack and the direction at w
hich it was aimed
the victim's back
unmistakably showed appellant's intent to ki
ll.
However, for reasons other than his own desistance, appellant was not able to pe
rform all the acts of execution necessary to consummate the killing, since the w
ounds he inflicted were not mortal. In United States v. Eduave,39 this Court has
held that if the wounds would not normally cause death, then the last act neces
sary to produce homicide has not been performed by the offender. Thus, appellant
's liability amounted only to attempted, not frustrated, homicide.
The penalty that is lower by two degrees40 than that prescribed by law for consu
mmated homicide shall be imposed upon appellant. After applying the Indeterminat
e Sentence Law, it shall be taken from the medium period, since there were no ag
gravating or mitigating circumstances proven.
In Criminal Case No. 1971, the trial court was correct in ruling that the attack
on Percival Orbe then a barangay captain, a person in authority41 amounted to q
ualified direct assault, because he was attacked on the occasion of the performa
nce of his duty. At the time, he was attempting to pacify appellant and to keep
the peace between the two groups.
A felony "is frustrated when the offender performs all the acts of execution whi
ch would produce the felony as a consequence but which, nevertheless, do not pro
duce it by reason of causes independent of the will of the perpetrator." In this
case, the nature of the weapon used by appellant unmistakably shows that he int
ended to kill Orbe. However, like the wounds inflicted by the accused on Melchor
Recto, those on Orbe were not fatal.
As evidenced by the Medico-Legal Certificate42 prepared by Dr. Ramon D. Villanue
va of the Romblon Provincial Hospital and the testimony given by Dr. Giovannie C
. Fondevilla of the same hospital, Orbe sustained several gunshot wounds in the
vicinity of his right elbow. Those injuries could not have caused his death. Mor
eover, according to Dr. Fondevilla, no surgical intervention was required; only
medication was given to him43 to prevent any secondary infection from setting in
.44
Evidently, appellant had not yet been able to perform all the acts of execution
necessary to bring about the death of Orbe, because the latter was able to run a
way after being fired at. Although appellant had already directly commenced the
commission of a felony by overt acts (shooting Orbe with a de sabog), he was not
able to consummate that felony for some reason other than his spontaneous desis
tance. Thus, he committed attempted homicide.
Given these circumstances, appellant should therefore be convicted of the comple
x crime of qualified direct assault with attempted homicide. To be imposed there
for should be the penalty for the most serious crime in this case qualified dire
ct assault the same to be imposed in its maximum period.45 The Indeterminate Sen
tence Law should also be applied in this case.

Qualified Direct Assault with Murder


(Criminal Case No. 1972)
In Criminal Case No. 1972, appellant does not question the finding of the trial
court that he shot Antonio Macalipay. However, he submits that it erred in findi
ng the presence of the qualifying circumstance of treachery. We agree.
First, the victim's companions outnumbered those of appellant. As shown by the p
leadings and records of the case, his group consisted of seven individuals; the
victims, sixteen.46
Second, the heated confrontation on April 18, 1994 arose as a consequence of an
earlier judgment47 of the trial court in favor of appellant's group. This case s
trained the relations of the parties who, after all, were related by blood and m
arriage. In fact, prior to this event, appellant
believing that his uncle Cornel
io Regis Jr. should get the landlord's share of the palay or rice harvest
attemp
ted to harvest the fields thrice: (1) in October 1993; (2) in December 1993; and
, (3) in March 1994.48 All of these attempts failed, because Linda Rance hired a
group of bodyguards headed by the victim, Emiliano "Renato" Santos.49 In short,
the confrontation was not totally unexpected.
Third, both groups were armed. The exchange of gunfire was substantiated by the
Medico-legal Certificates presented by both the prosecution and the defense.50 M
oreover, the deceased Santos carried a gun which Alberto Rance, son of Crestito
and Linda, had given him for his protection.51
Fourth, appellant's group asked the police station commander to assemble the wor
kers of the disputed rice field on April 15, 1994 at the Municipal Building of M
agdiwang, Romblon, to inform them of the trial court's Decision awarding the lan
d to Cornelio Regis Jr. For this reason, the members of the group were to start
collecting the landlord's share starting April 18, 1994.52
Fifth, appellant was seen holding a balisong or fan knife during the heated conf
rontation, before he pulled out the shutgun and pointed it at the other group.53
Macalipay, in a bold yet foolish attempt, stepped forward in front of appellant
and told him: "Ayosan ta lang ini?54 (No, don't, because we will just settle th
is)."55 And "[s]imultaneously with the last word in the phrase [']don't because
we will just settle this, [']"56 appellant fired his gun, killing the victim.
Evidently, the victim had all the opportunity to escape or defend himself from t
he aggression that was to ensue, yet chose not to grab the opportunity and inste
ad placed himself in a position more open to attack.57 Equally important, his vu
lnerable position had not been deliberately sought by appellant. It was thrust o
n the latter by the former himself. In short, appellant did not deliberately cho
ose the mode of attack to kill the victim with impunity and without risk to hims
elf.
Jurisprudence teaches us:
"Treachery does not exist [when] the evidence does not show that appellant delib
erately adopted a mode of attack intended to ensure the killing of [the victim]
with impunity, and without giving the victim an opportunity to defend himself. F
urther, the shooting took place after a heated exchange of words and a series of
events that forewarned the victim of aggression from appellant. In this case, i
t appears to have occurred on sudden impulse but preceded by acts of appellant s
howing hostility and a heated temper that indicated an imminent attack and put t
he deceased on guard.58

"If the decision to kill was sudden, there is no treachery, even if the position
of the victim was vulnerable, because it was not deliberately sought by the acc
used, but was purely accidental.59
"When there is no evidence that the accused has, prior to the moment of the kill
ing, resolved to commit the crime, or there is no proof that the death of the vi
ctim was the result of meditation, calculation or reflection, treachery cannot b
e considered."60
Section 16 of Article 14 of the Revised Penal Code states that
ry when the offender commits any of crimes against the person,
methods, or forms in the execution thereof which tend directly
insure its execution, without risk to himself arising from the
offended party might make."

"there is treache
employing means,
and specially to
defense which the

In this case, appellant was out in the open during the entire span of time from
the heated discussion, to the brewing of the violence, and up to the shooting of
Macalipay. At the time, his every action, which indicated the imminence of more
violence, was visible to them
to the victim and the latter's companions. Appell
ant was actually vulnerable to any attack that they could have made at the time,
had they chosen to. His mode of attack was therefore not without risk to himsel
f. Absent treachery, the killing is homicide, not murder.
Considering that Antonio Macalipay was a kagawad who was in the actual performan
ce of his duties when he was shot, the attack on him constituted direct assault.
Applying the provisions of Articles 148 (direct assault), 249 (homicide) and 48
(penalty for complex crimes), appellant should be held liable for the complex cr
ime of qualified direct assault with homicide. The penalty to be imposed on him
should be for homicide, which is the more serious crime, to be imposed in the ma
ximum period. This penalty shall comprise the maximum of his indeterminate sente
nce, and the minimum shall be within the range of the penalty next lower than th
at prescribed for homicide.
Homicide (Criminal Case No. 1973)
We sustain appellant's conviction for homicide in Criminal Case No. 1973 because
, in the words of the trial judge: "The late Emiliano Santos was only beaten to
the draw by co-accused Julio Recto). It was a gun duel between the two."61 In hi
s Brief, appellant hardly disputed this holding. Neither do we. The maximum of t
he penalty imposed by the court a quo in this case was, however, taken from the
minimum period of the penalty for homicide. Considering that no mitigating or ag
gravating circumstances were proven, the maximum of the indeterminate sentence i
n this case should be taken from the medium period.
WHEREFORE, the Decision dated April 2, 1997, issued by the Regional Trial Court
of Romblon, is hereby MODIFIED as follows:
First, in Criminal Case No. 1970, appellant is hereby CONVICTED of attempted hom
icide and sentenced to suffer imprisonment for an indeterminate penalty of four
(4) months of arresto mayor as minimum, to four (4) years and two (2) months of
prision correccional as maximum.
Second, in Criminal Case No. 1971, appellant is hereby CONVICTED of the complex
crime of qualified direct assault with attempted homicide and is hereby sentence
d to suffer an indeterminate penalty, of six (6) months of arresto mayor as mini
mum, to six (6) years of prision correctional as maximum.
Third, in Criminal Case No. 1972, appellant is hereby CONVICTED of qualified dir
ect assault with homicide aggravated by the use of a weapon and is sentenced to

suffer an indeterminate penalty of twelve (12) years of prision mayor as minimum


, to twenty (20) years of reclusion temporal as maximum. We AFFIRM the award of
P50,000 as indemnity ex delicto.
Fourth, in Criminal Case No. 1973, the trial court's judgment convicting appella
nt of homicide and awarding to the victim's heirs an indemnity ex delicto of P50
,000 is AFFIRMED; but the maximum of the penalty imposed is increased to fourtee
n (14) years, eight (8) months and one (1) day of reclusion temporal.
All other portions of the trial court's disposition that were not modified in th
e above pronouncement are deemed AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Davide Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, B
uena, Ynares-Santiago, De Leon Jr. and Sandoval-Gutierrez, JJ., concur.
Vitug, J., on official leave.

[G.R. Nos. 136149-51. September 19, 2000]


PEOPLE OF THE PHILIPPINES, appellee, vs. WALPAN LADJAALAM y MIHAJIL alias
appellant.

WARPAN,

D E C I S I O N
PANGANIBAN, J.:
Republic Act No. 8294 penalizes simple illegal possession of firearms, provided
that the person arrested committed no other crime. Furthermore, if the person is h
eld liable for murder or homicide, illegal possession of firearms is an aggravat
ing circumstance, but not a separate offense. Hence, where an accused was convic
ted of direct assault with multiple attempted homicide for firing an unlicensed
M-14 rifle at several policemen who were about to serve a search warrant, he can
not be held guilty of the separate offense of illegal possession of firearms. Ne
ither can such unlawful act be considered to have aggravated the direct assault.
The Case
Walpan Ladjaalam y Mihajil, also known as Warpan, appeals before us the September
17, 1998 Decision[1] of the Regional Trial Court (RTC) of Zamboanga City (Branch
16), which found him guilty of three out of the four charges lodged against him
.
Filed against appellant were four Informations,[2] all signed by Assistant Regio
nal State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first
Information[3] was for maintaining a den for the use of regulated drugs. It read
s as follows:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and w
ithin the jurisdiction of this Honorable Court, the above-named accused, Walpan
Ladjaalam being then the owner of a residential house located at Rio Hondo,[4] t
his City, conspiring and confederating together, mutually aiding and assisting x
x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did th

en and there wilfully, unlawfully and feloniously, maintain said house as a den,
where regulated drug [was] used in any form. [5]
The second Information[6] charged appellant with illegal possession of firearms
and ammunition. We quote it below:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and w
ithin the jurisdiction of this Honorable Court, the above-named accused, conspir
ing and confederating together, mutually aiding and assisting with one another,
without any justifiable reason or purpose other than to use it in the commission
of crime, did then and there, wilfully, unlawfully, and feloniously have in the
ir possession and under their custody and control, the following weapons, to wit
: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live
ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of l
ive [ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammun
ition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s];
one (1) home made caliber .38 with SN-311092 with five live ammunition and one e
mpty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik rev
olver with Serial Number 311092 and one defaced M79 grenade launcher paltik, wit
hout first having obtained the necessary license and or permit therefor from aut
horities concerned, in flagrant violation of the aforementioned law. [7]
The third Information,[8] for multiple attempted murder with direct assault, was
worded thus:
That on or about September 24, 1997, in the City of Zamboanga, Philippines, and w
ithin the jurisdiction of this Honorable Court, the above-named accused being th
en armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted fire
arms and explosives, conspiring and confederating together, mutually aiding and
assisting x x x one another and with intent to kill, did then and there wilfully
, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR.,
PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1 RICARDO J. LACAST
ESANTOS, in the following manner, to wit: by then and there firing their M-14 x
x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explos
ives, aimed and directed at the fatal parts of the bodies of the above-named pol
ice officers, well known to the accused as members of the Philippine National Po
lice, Zamboanga City Police Office, and as such, agents of a person in authority
, who at the time of the attack were engaged in the performance of their duties,
that is, on the occasion when said officers were about to serve the Search Warr
ant legally issued by the Regional Trial Court, this City, to the person of the
accused thus commencing the commission of crime of multiple murder directly by o
vert acts, and if the accused did not accomplish their unlawful purpose, that is
, to kill the above-named Police Officers, it was not by reason of their own vol
untary desistance but rather because of the fact that all the above-named police
officers were able to seek cover during the firing and were not hit by the bull
ets and explosives fired by the accused and also by the fact said police officer
s were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mi
hajil a.k.a. Warpan and Ahmad Sailabbi y Hajairani, who were subdued and subsequen
tly placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to mak
e good his escape and has remained at-large. [9]
In the fourth Information, appellant was charged with illegal possession of drug
s.[10]
On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Ha
jaraini were dismissed upon motion of the Office of the City Prosecutor, which h
ad conducted a reinvestigation of the cases as ordered by the lower court. The a
ccused were consequently released from jail.
The arraignment of appellant on all four (4) charges took place on January 6, 19

98, during which he entered a plea of not guilty.[11] After pretrial, the assail
ed Decision was rendered, the dispositive part of which reads:
WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a.

WARPAN -

1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation of Sec
tion 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangero
us Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty of R
ECLUSION PERPETUA and to pay a fine of FIVE HUNDRED THOUSAND (P500,000.00) and t
o pay the costs;
2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III
, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise kno
wn as the Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime
with costs de oficio;
3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime of Ill
egal Possession of Firearm and Ammunition penalized under Presidential Decree No
. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to suff
er an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum
to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY THO
USAND (P30,000.00) and pay the costs;
4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime of Dir
ect Assault with Multiple Attempted Homicide and SENTENCES said accused to an in
determinate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision correccional
as minimum to SIX (6) YEARS of prision correccional as maximum and to pay a fin
e of ONE THOUSAND (P1,000.00) and to pay the costs. (emphasis in the original)
Hence, this appeal.[12]
The Facts
Prosecution s Version
In its Brief,[13] the Office of the Solicitor General presents the facts in this
wise:
At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application fo
r the issuance of a search warrant against appellant, his wife and some John Doe
s (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day,
a briefing was conducted inside the office of the Anti-Vice/Narcotics Unit of t
he Zamboanga City Police Office in connection with the service of the search war
rant. The briefing was conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vic
e/Narcotics Unit. During the briefing, PO3 Renato Dela Pea was assigned as presen
tor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were desig
nated to conduct the search. Other policemen were assigned as perimeter guards (
TSN, March 3, 1998, pp. 33-36).
After the briefing, more than thirty (30) policemen headed by Police Superintende
nt Edwin Soledad proceeded to the house of appellant and his wife at Rio Hondo o
n board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 5
4). Before they could reach appellant s house, three (3) persons sitting at a near
by store ran towards the house shouting, [P]olice, raid, raid (Ibid., March 3, 199
8, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about ten (10)
meters from the main gate of the house, they were met by a rapid burst of gunfir
e coming from the second floor of the house. There was also gunfire at the back
of the house (Ibid., March 5, 1998, pp. 14-16).
SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Pea who were with the f
irst group of policemen saw appellant fire an M14 rifle towards them. They all k

new appellant. When they were fired upon, the group, together with SPO2 Gagantin
g, PO3 Obut and Superintendent Soledad, sought cover at the concrete fence to ob
serve the movements at the second floor of the house while other policemen surro
unded the house (Ibid., March 4, 1998, pp. 50-51).
In front of the house was an extension building connected to the concrete fence (
Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, an
d Obut entered the door of the extension building. Gaganting opened the main (st
eel) gate of the house. The other members of the team then entered. Lacastesanto
s and Mirasol entered the house through the main door and went inside the sala o
f the ground floor while other policemen surrounded the house. Two (2) old women
were in the sala together with a young girl and three (3) children. One of the
old women took the children to the second floor while the young girl remained se
ated at the corner (Ibid., pp. 19-21).
Lacastesantos and Mirasol proceeded to the second floor where they earlier saw ap
pellant firing an M14 rifle at them through the window. While they were going up
stairs, appellant noticed their presence. He went inside the bedroom and, after
breaking and removing the jalousies, jumped from the window to the roof of a nei
ghboring house. Seeing this, Mirasol rushed downstairs and asked help from the o
ther members of the raiding team to arrest appellant. Lacastesantos went to the
second floor and shouted to the policemen outside not to fire in the direction o
f the second floor because there were children. Mirasol and SPO1 Cesar Rabuya ar
rested appellant at the back of his house after a brief chase (Ibid., pp. 21-23)
.
At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on t
op of the sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Se
rial No. 1555225. He removed the magazine from the rifle and the bullet inside t
he chamber of the rifle. He counted seventeen (17) live ammunition inside the ma
gazine. He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20
) live ammunition (Exh. G-3) and another with twenty-one (21) live ammunition (E
xh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a corner a
t the second floor (TSN, March 5, 1998, pp. 23-32, 53-57).
After Lacastesantos and Mirasol entered appellant s house, Rivera, Dela Pea, Gregori
o and Obut followed and entered the house. After identifying themselves as membe
rs of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy o
f the search warrant. Dela Pea and Rivera then searched appellant s room on the gro
und floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp. 4143). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminu
m foils inside (Exhs. J-1 to J-50), each containing methamphetamine hydrochlorid
e or shabu .
Other items were found during the search, namely, assorted coins in different den
ominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 calibe
r revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle
with [a] pouch containing five (5) empty shells of an M79 rifle (Exh. B-4), and
one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).
Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamb
oanga Police. [O]n the morning of September 24, 1997, he was instructed by SPO2
Gaganting to go to appellant s house to buy shabu. Locson knew appellant as a seller
of shabu (TSN, April 22, 1998, p. 5) and had been to appellant s house about fiftee
n (15) times before. He went to Rio Hondo and arrived at appellant s house at 3:20
p.m. He bought P300.00 worth of shabu from appellant. The latter got three (3) de
cks of shabu from his waist bag. Appellant instructed Locson to go behind the cu
rtain where there was a table. There were six (6) persons already smoking. There
was a lighted kerosene lamp made of a medicine bottle placed on the table. They
asked Locson to smoke shabu and Locson obliged. He placed the three (3) decks of s

habu

he bought on the table (Ibid., pp. 8-15).

While they were smoking shabu, Locson heard gunfire coming from appellant s house. Th
ey all stood and entered appellant s compound but were instructed to pass [through
] the other side. They met appellant at the back of his house. Appellant told th
em to escape because the police are already here. They scampered and ran away becau
se there were already shots. Locson jumped over the fence and ran towards the sea
shore. Upon reaching a place near the Fisheries School, he took a tricycle and w
ent home (Ibid., pp. 17-19).
The following day, September 25, 1997, he went to the police station and executed
an affidavit (Exh. M) narrating what transpired at appellant s house [o]n the aft
ernoon of September 24, 1997.
After the search and before returning to the police station, P03 Dela Pea prepared
a Receipt for Property Seized (Exh. P & 3) listing the properties seized during t
he search. The receipt was signed by Dela Pea as the seizure officer, and by Puno
ng Barangay Hadji Hussin Elhano and radio reporter Jun Cayona as witnesses. A co
py of the receipt was given to appellant but he refused to acknowledge the prope
rties seized (TSN, April 23, 1998, pp. 11-12).
An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemis
t of the PNP Crime Laboratory Service Office 9, on the paraffin casts taken from
both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giv
ing rise to the possibility that appellant had fired a gun before the examinatio
n (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on Septe
mber 26, 1997 showed that the following firearms were fired (Exh. B-5): a .38 cali
ber revolver (homemade) with Serial No. 311092 (Exh. B-1), another .38 caliber r
evolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. r
ifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial numbe
r (Exh. B-4). They were fired within five (5) days prior to the examination (TSN
, March 3, 1998, pp. 16-21).
With respect to the crystalline substances, an examination conducted by Police In
spector Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laborato
ry Service Office 9, on the fifty (50) pieces of folded aluminum foils each cont
aining white crystalline granules with a total weight of 1.7426 grams (Exh. J-1
to J-50) yielded positive results for the presence of methamphetamine hydrochlor
ide (shabu) (Exh. L). However, the examination of one (1) crystalline stone weig
hing 83.2674 grams (Exh. K) yielded negative results for the presence of methamp
hetamine hydrochloride (Exh. L).
The records of the Regional Operation and Plans Division of the PNP Firearm and E
xplosive Section show that appellant had not applied/filed any application for li
cense to possess firearm and ammunition or x x x been given authority to carry [
a] firearm outside of his residence (Exh. X) [14]
Defense s Version
Appellant Ladjaalam agrees with the narration of facts given by the lower court.
[15] Hence, we quote the pertinent parts of the assailed Decision:
Accused Walpan Ladjaalam y Mihajil a.k.a. Warpan , 30 years old, married, gave his o
ccupation as smuggling (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malays
ia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41,
id). He said that his true name [was] Abdul Nasser Abdurakman and that Warpan o
r Walpan Ladjaalam [was] only his alias . However, he admitted that more people kn[
e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40;
46-47, id). He testified that [o]n the afternoon of September 24, 1997, when he
was arrested by the police, he was sleeping in the house of Dandao, a relative

of his wife. He was alone. He slept in Dandao s house and not in his house because
they ha[d] a sort of a conference as Dandao s daughter was leaving for Saudi Arabia
. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo
when he heard shots. He woke up and went out of the house and that was the time
that he was arrested. He said he was arrested xxx [at] the other side of my house
; at the other side of the fence where I was sleeping. xxx. At the back of my ho
use (tsn, p. 7, id.). He does not know who arrested him considering that the one w
ho arrested me does not have nameplate. He was arrested by four (4) persons. Not
one of those who arrested him testified in Court. He was handcuffed and placed i
nside a jeep parked at Rio Hondo Elementary School. According to him, he did not
fire a gun at the policemen from [t]he second floor of his house. He said the po
licemen [were] the one[s] who fire[d] at us (tsn, p. 5, id.). If he fired a gun at
the policemen for sure they [would] die [b]ecause the door is very near x x x the
vicinity of my house . He does not own the M14 rifle (Exh. B-3 ) which according to
policemen, he used in firing at them. The gun does not belong to him. He does no
t have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but
he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle
(Exh. B-4 ), the three (3) empty M16 rifle magazines (Exh. G ; G-1 to G-2 ), the two (2
14 magazines with live ammunition (Exh. G-3 ; G-4 ); the two (2) caliber .38 revolvers
(Exhs. B-1 ; B-2 ), the fifty (50) aluminum foils each containing shabu (Exhs. J-1 to J
50 ) placed inside a pencil case (Exh. J , the assorted coins placed inside a blue ba
g (Exh. W ) and the white crystalline stone (Exh. K ) all do not belong to him. He sai
d that the policemen just produced those things as their evidence. The firearms
do not belong to him. They were brought by the policemen (tsn, p. 43, May 4, 199
8). Regarding the blue bag containing assorted coins, he said: that is not ours,
I think this (is) theirs, xxx they just brought that as their evidence (tsn, pp.
15-24, id.)
Walpan Ladjaalam declared there were occupants who were renting his extension hou
se. He affirmed that he owns that house. Four (4) persons were staying in the ex
tension house. He could only recognize the husband whose name is Momoy. They are
from Jolo. They left the place already because they were afraid when the police
raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution wi
tness Rino Locson y Bartolome. Although Locson recognized him, in his case he do
es not know Locson and he does not recognize him (tsn, p.11, id). He did not sel
l anything to Locson and did not entertain him. He is not selling shabu but he k
nows for a fact that there are plenty of person who are engaged in selling shabu
in that place , in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi
(tsn, pp.11-14, id).
After his arrest Walpan Ladjaalam was brought to the police station where he stay
ed for one day and one night before he was transferred to the City jail. While a
t the police station, he was not able to take a bath. He smokes two packs of cig
arette a day. While he was at the police station, he smoked [a] cigarette given
to him by his younger sister. He lighted the cigarettes with [a] match. From the
police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard
where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).
During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, a
nd Jecar (Sikkal) Usman, the younger brother of his wife were killed. Walpan Lad
jaalam said that he saw that it was the policeman who shot them[,] only I do not
know his name. They were killed at the back of his house. He said that no charges
were filed against the one responsible for their death (tsn, pp. 30-33- May 4,
1998).
Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan La
djaalam whom he calls Hadji Id at the time the police raided the house. She is the
mother of Ahma Sailabbi. She was together with Babo Dandan, two small children
and a helper when soldiers entered the house. (W)hen they arrived, they kept on fir
ing (their guns) even inside the house (tsn, p.5, May 5, 1998). They were armed w

ith short and long firearms. They searched the house and scattered things and go
t what they wanted. They entered the room of Walpan Ladjaalam. They tried to ope
n a bag containing jewelry. When Anilhawa tried to bring the bag outside the roo
m, they grabbed the bag from her and poked a gun at her. At that time Walpan Lad
jaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search
Warrant was shown to Anilhawa after the search was conducted and just before th
e policemen left the place. Anilhawa Ahamad said that it was already late in the
afternoon[;] before they left that was the time the Search Warrant (was) given t
o us by xxx Barangay Captain Hussin Elhano (tsn, pp.6-8, May 5, 1998). Barangay C
hairman Elhano arrived already late in the afternoon, almost sundown (tsn, p. 9, i
d). Anilhaw declared that aside from a bag containing jewelry and a bag full of
money, she had not seen anything else that was taken from Walpan Ladjaalam s house
(tsn, pp. 9-12, id).
Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o clock [o]
n the afternoon of September 24, 1997, ha was standing in front of his house whe
n policemen arrived and immediately arrested him. He was about to go to the City
Proper to buy articles he was intending to bring to Sabah. He had around P50,000
.00 placed inside a waist bag tied around his waist. The policemen told him to li
e down in prone position and a policeman searched his back. They pulled his wais
t bag and took his DiaStar wrist watch. He was shot three times and was hit on t
he forehead leaving a scar. His injury was not treated. He was taken to the poli
ce station where he was detained for one day and one night. He was detained at t
he City Jail for three months and five days after which he was released (tsn, pp
. 25-29, May 5, 1998).
Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September
24, 1997, she was in the house of her parents lying together with her husband S
ikkal Usma. There is only one house between her parents house and the house of Wa
lpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Wal
pan s wife. When Melba heard shots, she went downstairs. A policeman was looking f
or her husband. The policeman called her husband. When her husband went down, he
was instructed by the policeman to lie down in prone position. Then the policem
an shot her husband. The policeman had two other companions who also shot her hu
sband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).
Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of Septemb
er 24, 1997, she was sitting at the door of her house watching her children play
ing when a motorcyle, driven by a person, stopped near her house. The driver was
Gaganting whom she called a soldier. He went down from his motorcycle, pulled a
gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her
children and when she was about to enter the room of her house, Gaganting again
poked a gun at her and there was a shot. As a result of firing, three persons die
d, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May
5, 1998).
Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o cl
ock [o]n the afternoon of September 24, 1997, he was fetched by two policemen at
Catabangan where he was attending a seminar. Because of traffic along the way,
they arrived at the Rio Hondo already late in the afternoon. He saw policemen we
re already inside the house. Upon entering the gate, he saw Walpan at the gate a
lready handcuffed. Walpan called him but the police advised him not to approach
Walpan. The search was already over and things were already taken inside the hou
se. When he went inside the house, he saw the things that they (policemen) search
ed, the firearms and the shabu (tsn, p. 17. May 8, 1998). He did not see the Sear
ch Warrant. What was shown to him were the things recovered during the search wh
ich were being listed. They were being counted and placed on a table. Upon seeing
the things that were recovered during the search, I just signed the receipt (Ex
h. P ; P-1 ) of the things x x x taken during the search (tsn, pp. 17-18. May 8, 1998).
He saw three dead bodies at the side of the fence when he went to the other sid

e of the house. The three persons were killed outside the fence of Walpan Ladjaa
lam (tsn, p. 18, id). [16]
The Trial Court s Ruling
The trial court observed that the house of appellant was raided on September 24,
1997 by virtue of Search Warrant No. 20 issued on the same day. However, the lo
wer court nullified the said Warrant because it had been issued for more than on
e specific offense,[17] in violation of Section 3, Rule 126 of the Rules of Cour
t.[18] The court a quo ruled:
It should be stated at the outset that Search Warrant No. 20 is totally null and v
oid because it was issued for more than one specific offense x x x contrary to Se
ction 3, Rule 1[2]6 of the Rules of Court which provides that A search warrant sh
all not issue but upon probable cause in connection with one specific offense xx
x . In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a se
arch warrant for more than one offense - a scatter shot warrant - violates Section
3, Rule 126 of the [R]evised Rules of Court and is totally null and void. [19] (emp
hasis in the original)
Nevertheless, the trial court deemed appellant s arrest as valid. It emphasized th
at he had shot at the officers who were trying to serve the void search warrant.
This fact was established by the testimonies of several police officers,[20] wh
o were participants in the raid, and confirmed by the laboratory report on the p
araffin tests conducted on the firearms and appellant.[21] Additionally, the jud
ge noted that Appellant Ladjaalam, based on his statements in his Counter Affida
vit, impliedly contradicted his assertions in open court that there had been no
exchange of gunfire during the raid.[22] The trial court concluded that the test
imonies of these officers must prevail over appellant s narration that he was not
in his house when the raid was conducted.
Prescinding from this point, the court a quo validated the arrest of appellant,
reasoning thus:
Under the circumstances, the policemen had authority to pursue and arrest Walpan L
adjaalam and confiscate the firearm he used in shooting at the policemen and to
enter his house to effect said arrest and confiscation of the firearm. Under Rule
113, Section 5 (a), of the Rules of Court, A peace officer or a private person m
ay, without a warrant, arrest a person xxx (w)hen in his presence, the person to
be arrested has committed, is actually committing, or is attempting to commit a
n offense. An offense is committed in the presence or within the view of an offic
er, within the meaning of the rule authorizing an arrest without a warrant, when
the officer sees the offense, although at a distance, or hears the disturbances
created thereby and proceeds at once to the scene thereof. At the time the poli
cemen entered the house of accused Walpan Ladjaalam after he had fired shots at
the policemen who intended to serve the Search Warrant to him, the accused was e
ngaged in the commission of a crime, and was pursued and arrested after he commi
tted the crime of shooting at the policemen who were about to serve the Search W
arrant. [23]
As a consequence of the legal arrest, the seizure of the following was also deem
ed valid: the M14 rifle (with a magazine containing seventeen live ammunition)[2
4] used by appellant against the police elements, two M14 magazines, and three o
ther M16 rifle magazines.[25] The trial court observed that these items were in p
lain view of the pursuing police officers. Moreover, it added that these same ite
ms were evidence [of] the commission of a crime and/or contraband and therefore,
subject to seizure [26] since appellant had not applied for a license to possess fi
rearm and had not been given authority to carry firearm outside his residence. [27
]

For being incredible and unsupported by evidence, appellant s claim that the items
that were seized by the police officers had been planted was disbelieved by the
trial court. It ruled that if the police officers wanted to plant evidence to i
ncriminate him, they could have done so during the previous raids or those condu
cted after his arrest. To its mind, it was unbelievable that they would choose t
o plant evidence, when they were accompanied by the barangay chairman and a radi
o reporter who might testify against them. It then dismissed these allegations,
saying that frame-up, like alibi, was an inherently weak defense.[28]
The trial court also convicted the accused of the crime of maintaining a drug de
n. It reasoned as follows:
The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesanto
s and SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated
and maintained a drug den in his extension house where shabu or methamphetamine
hydrochloride, a regulated drug, was sold, and where persons or customers bough
t and used shabu or methamphetamine hydrochloride by burning the said regulated
drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den
is a lair or hideaway where prohibited or regulated drugs are used in any form o
r are found. Its existence [may be] proved not only by direct evidence but may a
lso be established by proof of facts and circumstances, including evidence of th
e general reputation of the house, or its general reputation among police office
rs. The uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan that h
e did not maintain an extension house or a room where drug users who allegedly b
uy shabu from him inhales or smokes shabu cannot prevail over the testimonies of
Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He admitted that he is the owner
of the extension house but he alleged that there were four (4) occupants who ren
ted that extension house. He knew the name of only one of the four occupants who
are allegedly from Jolo, a certain Momoy, the husband. Aside from being uncorro
borated, Walpan s testimony was not elaborated by evidence as to when or for how l
ong was the extension house rented, the amount of rental paid, or by any other d
ocument showing that the extension house was in fact rented. The defense of deni
al put up by accused Walpan Ladjaalam a.k.a. 'Warpan is a weak defense. Denial is
the weakest defense and cannot prevail over the positive and categorical testim
onies of the prosecution witnesses. Denials, if unsubstantiated by clear and con
vincing evidence, are negative and self-serving evidence which deserve no weight
in law and cannot be given evidentiary weight over the testimony of credible wi
tnesses who testify on affirmative matters. As between the positive declaration
of the prosecution witnesses and the negative statements of the accused, the for
mer deserve more credence. [29]
In conclusion, the trial court explained appellant s liability in this manner:
x x x. The act of the accused in firing an M14 rifle to the policemen who were ab
out to enter his house to serve a search warrant constitutes the crime of direct
assault with multiple attempted homicide[,] not multiple attempted murder with
direct assault[,] considering that no policeman was hit and injured by the accus
ed and no circumstance was proved to qualify the attempted killing to attempted
murder.
The accused Walpan Ladjaalam a.k.a. Warpan cannot be held liable [for] the crime of
Violation of Section 16, Article III, in relation to Section 21, Article IV, of
Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amende
d, because the fifty (50) pieces of folded aluminum foils having a total weight
of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly
found in his house are inadmissible as evidence against him considering that the
y were seized after [a] search conducted by virtue of Search Warrant No. 20 whic
h is totally null and void as it was issued for more than one offense, and were
not found in plain view of the police officers who seized them. Neither could the
accused be held liable for illegal possession of firearms and ammunition except

for the (1) M14 rifle with Serial Number 1555225 and with magazine containing fi
fteen (15) live ammunition and two more M14 rifle magazines with twenty (20) and
twenty-one (21) live ammunition respectively considering that the policemen who
recovered or seized the other firearms and ammunition did not testify in court.
The blue bag containing assorted coins cannot be returned to the accused Walpan
Ladjaalam a.k.a. Warpan because according to the accused the blue bag and assorte
d coins do not belong to him[;] instead the said assorted coins should be turned
over to the National Treasury. [30]
The Issues
In his Brief, appellant submits the following Assignment of Errors:
I
The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil
[had] fired first at the police officers who went to his house to serve a searc
h warrant upon him which led to an exchange of fire between Ladjaalam and the po
lice officer.
II
The trial court erred when it denied the appellant the right and opportunity for
an ocular inspection of the scene of the firefight and where the house of the ap
pellant [was] located.
III
The trial court erred when it ruled that the presumption of regularity in the per
formance of their duties [excluded] the claim of the appellant that the firearms
and methamphetamine hydrochloride (i.e. shabu) were planted by the police. [31]
In the interest of simplicity, we shall take up these issues seriatim: (a) denia
l of the request for ocular inspection, (b) credibility of the prosecution witne
sses, and (c) the defense of frame-up. In addition, we shall also discuss the pr
oper crimes and penalties to be imposed on appellant.
The Court s Ruling
The appeal has no merit.
First Issue: Denial of Request for Ocular Inspection
Appellant insists that the trial court erred in denying his request for an ocula
r inspection of the Ladjaalam residence. He argues that an ocular inspection wou
ld have afforded the lower court a better perspective and an idea with respect to
the scene of the crime. [32] We do not agree.
We fail to see the need for an ocular inspection in this case, especially in the
light of the clear testimonies of the prosecution witnesses.[33] We note in par
ticular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the
subject premises to give the lower court a fairly good idea of appellant s house.
[34] Viewing the site of the raid would have only delayed the proceedings.[35] M
oreover, the question whether to view the setting of a relevant event has long b
een recognized to be within the discretion of the trial judge.[36] Here, there i
s no reason to disturb the exercise of that discretion.[37]
Second Issue: Credibility of Prosecution Witnesses
Appellant, in essence, questions the credibility of the prosecution witnesses.[3

8] Suffice it to state that the trial court s assessment of their credibility is g


enerally accorded respect, even finality.[39] After carefully examining the reco
rds and finding no material inconsistencies to support appellant s claim, we canno
t exempt this case from the general rule.[40] Quite the contrary, the testimonie
s of these witnesses positively showed that appellant had fired upon the approac
hing police elements, and that he had subsequently attempted to escape. SPO1 Ama
do Mirasol Jr.[41] testified thus:
PROSECUTOR NUVAL:
Q: And, this trail is towards the front of the house of the accused?
A: Yes.
Q: And it s there where you were met by a volley of fire?
A: Yes, Your Honor.
COURT:
Q: How far were you from the concrete fen[c]e when you were met by a volley of f
ire? ... You said you were fired upon?
A: More or less, five (5) meters.
x x x x x x x x x
PROSECUTOR NUVAL:
Q: Now, you said you were able to enter the house after the gate was opened by y
our colleague Felipe Gaganting ... I will reform that question.
Q: Who opened the gate Mr. Witness?
A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.
Q: And, at that time you were hiding at the concrete fence?
A: Yes.
Q: Now, when this gate was opened, you said you went inside the house, right?
A: Yes.
Q: What did you see inside the house?
A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the hou
se of Walfran [sic] Ladjaalam at the ground floor. We went inside the sala on th
e ground floor of his house[;] I saw two old woman.
x x x x x x x x x
PROSECUTOR NUVAL:
Q: Now, what did you do with these two old women?
A: I did not mind those two old women because those two women were sitting on th
e ground floor. I was concentrating on the second floor because Ladjaalam was fi
ring towards our group so, I, together with Ricardo Lacastesantos, went upstairs
to the second floor of the house.

Q: Were you able to go to the second floor of the house?


A: Yes.
Q: What happened when you were already on the second floor?
A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed
our presence and immediately went inside the bedroom [o]n the second floor and
he went immediately and jumped from the window of his house x x x leading to the
roof of the neighbor s house.
x x x x x x x x x
COURT:
Reform. That is leading
Q: What happened when you entered and he jumped to the roofing of the neighbor s h
ouse?
A: Immediately, I myself, we immediately went downstairs and asked the assistanc
e of the members of the raiding team to arrest Walfan Ladjaalam.
x x x x x x x x x
PROSECUTOR NUVAL:
Q: Were you able to go down?
A: Yes.
Q: What happened when you were there?
A: We immediately went out and I asked the assistance of the members of the raid
ing team and the investigator of the unit especially SPO1 Cesar Rabuya. I was ab
le to manage to arrest Walfan Ladjaalam. [42]
What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesa
ntos,[43] as follows:
Q: What did you notice [o]n the second floor?
A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted fro
m the outside, do not fire at the second floor because there [are] a lot of child
ren here.
Q: Now, that rifle you said [was an] M14, where did you find this?
A: At the sala set.
Q: This sala set where is this located?
A: Located [on] the second floor of the house.
Q: Is there a sala [o]n the second floor?
A: Yes.
Q: Can you still identify that M14 rifle which you said you recovered from the s

ale set?
A: Yes.
Q: Why can you identify that?
A: The Serial No. of M14 is 1555225 and I marked it with my initial.
Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No.
of this?
A: 1555225 and I put my initial, RJL.
FISCAL NUVAL:
This is already marked as our Exhibit
und [ammunition].

B-3

with magazine, one magazine and seven ro

Q: After recovering this, what did you do with this firearm?


A: When I recovered it I removed the bullets inside the chamber[.] I removed the
magazine and I turned it over to the investigator.
Q: Where did you turn it over?
A: At the crime scene.
Q: Now, that magazine, can you still identify this?
A: Yes.
Q: Why?
A: I put x x x markings.
x x x x x x x x x
COURT:
So, a[si]de from the magazine attached to the M14 rifle you found six more magaz
ines?
A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three
M14.
Q: The M16 magazines [were] empty?
A: Empty.
Q: How about the M14?
A: Found with [ammunition].
x x x x x x x x x
Q: So, where are the three M16 magazines?
A: In the corner.
Q: What did you do with [these] three magazines of M16?

A: I turned [them] over to the investigator.


Q: Can you identify them?
A: Yes, because of my initials[.]
Q: Where are your initials?
A: On the magazines.
Q: RJL?
A: RJL. [44]
These were confirmed by the results of the paraffin tests conducted on appellant
and on the weapons seized during the raid. Both of his hands as well as the wea
pons, particularly the M-14 which he had used, were positive for gunpowder nitra
te. Police Inspector Mercedes Delfin-Diestro explained in open court:
Q: Okay. Now, what was the result of your examination, Madam Witness?
A: The result of the examination [was] that both hands of the subject person, ha
[d] presence of gun powder nitrates.
Q: What do you mean Madam Witness, what does that indicate?
A: It indicates there is presence of powder nitrates.
Q: Can we conclude that he fired a gun?
A: I cannot conclude that he fired a gun because there are so many circumstances
[why] a person [would be] positive on his hands for gun powder nitrates.
Q: But, most likely, he fired a gun?
A: Yes.
x x x x x x x x x
PROSECUTOR NUVAL:
Q: What about, Madam Witness this Exhibit
u do with this?

B-3 , which is the M14 rifle. What did yo

A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observ
ed there [were] black and traces of brown residue on the bolt, chamber and in th
e barrel.
Q: And, that indicates Madam Witness...?
A: It indicates that the gun was fired.
Q: Recently?
A: Because of the traces of brown residue, it could be possible that the gun was
fired before the incident x x x.
COURT:

Q: There is also black residue?


A: Yes.
Q: What does it indicate?
A: It indicates that the firearm was recently fired.
Q: And, where is this swab used at the time of the swabbing of this Exhibit?
A: This one.
PROSECUTOR NUVAL:
May we ask that this be marked as Exhibit

B-3-A .

COURT:
Q: The firing there indicates that the gun was recently fired, during the incide
nt?
A: Yes.
Q: And also before the incident it was fired because of the brown residue?
A: Yes, Your Honor. [45] (emphasis supplied)
Duly proven from the foregoing were the two elements[46] of the crime of illegal
possession of firearms. Undoubtedly, the established fact that appellant had fi
red an M-14 rifle upon the approaching police officers clearly showed the existe
nce of the firearm or weapon and his possession thereof. Sufficing to satisfy th
e second element was the prosecution s Certification[47] stating that he had not f
iled any application for license to possess a firearm, and that he had not been
given authority to carry any outside his residence.[48] Further, it should be po
inted out that his possession and use of an M-14 rifle were obviously unauthoriz
ed because this weapon could not be licensed in favor of, or carried by, a priva
te individual.[49]
Third Issue: Defense of Frame-up
From the convoluted arguments strewn before us by appellant, we gather that the
main defense he raises is frame-up. He claims that the items seized from his hou
se were planted, and that the entire Zamboanga police force was out to get him at
all cost.
This Court has invariably held that the defense of frame-up is inherently weak,
since it is easy to fabricate, but terribly difficult to disprove.[50] Absent an
y showing of an improper motive on the part of the police officers,[51] coupled
with the presumption of regularity in the performance of their duty, such defens
e cannot be given much credence.[52] Indeed, after examining the records of this
case, we conclude that appellant has failed to substantiate his claim. On the c
ontrary, his statements in his Counter Affidavit are inconsistent with his testi
mony during the trial.[53] He testified thus:
Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affid
avit?
A I could not remember.
Q I have here a Counter-Affidavit and it was signed before this representation o

n the 8th day of December 1997[;] tell us whose signature is this appearing abov
e the typewritten name
FISCAL NUVAL:
Q . . . . Walpan Ladjaalam, whose signature is this?
(Showing)
A Yes, Sir. This is mine.
Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit
which I quote: that I was resting and sleeping when I heard the gunshots and I n
oticed that the shots were directed towards our house.. and I inspected and x x
x we were attacked by armed persons.. and I was apprehended by the persons who a
ttacked x x x our house ; [the] house you are referring to [in] this paragraph, wh
ose house [are you] referring to, is this [what] you are referring to [as] your
house or the house of your neighbors [from] which you said you heard gunshots?
A Our house.
Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: that [o]n
that afternoon of September 24, 1997, I was at home in my house Aplaya, Riohond
o, Bo. Campo Muslim, my companions in my house [were] the two old women and my c
hildren, is this correct?
A They were not there.
Q Now, in that statement Mr. Witness, you said that you were at home in [your] h
ouse at Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in yo
ur house or you were in your neighbors[ ] house at that time when you heard gunsho
ts?
A I was in the house near my house.
Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you
were at home in [your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not
correct?
A Yes, Sir. This is not correct. [54]
Crime and Punishment
The trial court convicted appellant of three crimes: (1) maintenance of a drug d
en, (2) direct assault with attempted homicide, and (3) illegal possession of fi
rearms. We will discuss each of these.
Maintenance of a Drug Den
We agree with the trial court that appellant was guilty of maintenance of a drug
den, an offense for which he was correctly sentenced to reclusion perpetua. His
guilt was clearly established by the testimony of Prosecution Witness Rino Bart
olome Locson, who himself had used the extension house of appellant as a drug de
n on several occasions, including the time of the raid. The former s testimony was
corroborated by all the raiding police officers who testified before the court.
That appellant did not deny ownership of the house and its extension lent crede
nce to the prosecution s story.
Direct Assault with Multiple Attempted Homicide

The trial court was


ith multiple counts
[of] firing an M14
e to serve a search

also correct in convicting appellant of direct assault[55] w


of attempted homicide. It found that [t]he act of the accused
rifle [at] the policemen[,] who were about to enter his hous
warrant x x x constituted such complex crime.[56]

We note that direct assault with the use of a weapon carries the penalty of pris
ion correccional in its medium and maximum periods, while attempted homicide car
ries the penalty of prision correccional.[57] Hence, for the present complex cri
me, the penalty for direct assault, which constitutes the most serious crime, shou
ld be imposed and applied in its maximum period.[58]
Illegal Possession of Firearms
Aside from finding appellant guilty of direct assault with multiple attempted ho
micide, the trial court convicted him also of the separate offense of illegal po
ssession of firearms under PD 1866, as amended by RA 8294, and sentenced him to
6 years of prision correccional to 8 years of prision mayor.
The Office of the Solicitor General (OSG) disagrees, on the ground that the tria
l court should not have applied the new law. It contends that under the facts of
the case, the applicable law should have been PD 1866, as worded prior to its a
mendment by RA 8294.
The trial court s ruling and the OSG s submission exemplify the legal community s diff
iculty in grappling with the changes brought about by RA 8294. Hence, before us
now are opposing views on how to interpret Section 1 of the new law, which provi
des as follows:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby furth
er amended to read as follows:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition Instruments Used or Intended to be Used in the Manufactur
e of Firearms or Ammunition. -- The penalty of prision correccional in its maxim
um period and a fine of not less than Fifteen thousand pesos (P15,000) shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire, disp
ose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 an
d other firearm of similar firepower, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the manufacture of any firear
m or ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand
pesos (P30,000) shall be imposed if the firearm is classified as high powered fi
rearm which includes those with bores bigger in diameter than .30 caliber and 9
millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms
but considered powerful such as caliber .357 and caliber .22 centerfire magnum
and other firearms with firing capability of full automatic and by burst of two
or three: Provided, however, That no other crime was committed by the person arr
ested.
If homicide or murder is committed with the use of an unlicensed firearm, such us
e of an unlicensed firearm shall be considered as an aggravating circumstance.
If the violation of this Section is in furtherance of or incident to, or in conne
ction with the crime of rebellion or insurrection, sedition, or attempted coup d e
tat, such violation shall be absorbed as an element of the crime of rebellion or
insurrection, sedition, or attempted coup d etat.
The same penalty shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company, corporation o

r entity, who shall willfully or knowingly allow any of the firearms owned by su
ch firm, company, corporation or entity to be used by any person or persons foun
d guilty of violating the provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or firearms without any
legal authority to be carried outside of their residence in the course of their
employment.
The penalty of arresto mayor shall be imposed upon any person who shall carry any
licensed firearm outside his residence without legal authority therefor.
Citing People v. Jayson,[59] the OSG argues that the foregoing provision does no
t cover the specific facts of this case. Since another crime -- direct assault w
ith multiple unlawful homicide -- was committed, appellant cannot be convicted o
f simple illegal possession of firearms under the second paragraph of the aforec
ited provision. Furthermore, since there was no killing in this case, illegal po
ssession cannot be deemed as an aggravating circumstance under the third paragra
ph of the provision. Based on these premises, the OSG concludes that the applica
ble law is not RA 8294, but PD 1866 which, as worded prior the new law, penalize
s simple illegal possession of firearms even if another crime is committed at th
e same time.[60]
Applying a different interpretation, the trial court posits that appellant shoul
d be convicted of illegal possession of firearms, in addition to direct assault
with multiple attempted homicide. It did not explain its ruling, however. Consid
ering that it could not have been ignorant of the proviso[61] in the second para
graph, it seemed to have construed no other crime as referring only to homicide an
d murder, in both of which illegal possession of firearms is an aggravating circ
umstance. In other words, if a crime other than murder or homicide is committed,
a person may still be convicted of illegal possession of firearms. In this case
, the other crime committed was direct assault with multiple attempted homicide;
hence, the trial court found appellant guilty of illegal possession of firearms
.
We cannot accept either of these interpretations because they ignore the plain l
anguage of the statute. A simple reading thereof shows that if an unlicensed fir
earm is used in the commission of any crime, there can be no separate offense of
simple illegal possession of firearms. Hence, if the other crime is murder or hom
icide, illegal possession of firearms becomes merely an aggravating circumstance
, not a separate offense. Since direct assault with multiple attempted homicide
was committed in this case, appellant can no longer be held liable for illegal p
ossession of firearms.
Moreover, penal laws are construed liberally in favor of the accused.[62] In thi
s case, the plain meaning of RA 8294 s simple language is most favorable to herein
appellant. Verily, no other interpretation is justified, for the language of th
e new law demonstrates the legislative intent to favor the accused.[63] Accordin
gly, appellant cannot be convicted of two separate offenses of illegal possessio
n of firearms and direct assault with attempted homicide. Moreover, since the cr
ime committed was direct assault and not homicide or murder, illegal possession
of firearms cannot be deemed an aggravating circumstance.
We reject the OSG s contention that PD 1866, as worded prior to its amendment by R
A 8294, should be applied in this case. When the crime was committed on Septembe
r 24, 1997, the original language of PD 1866 had already been expressly supersed
ed by RA 8294 which took effect on July 6, 1997.[64] In other words, no longer i
n existence was the earlier provision of PD 1866, which justified a conviction f
or illegal possession of firearms separate from any other crime. It was replaced
by RA 8294 which, among other amendments to PD 1866, contained the specific pro
viso that no other crime was committed.

Furthermore, the OSG s reliance on People v. Jayson[65] is misplaced. True, this C


ourt sustained the conviction of appellant for illegal possession of firearms, a
lthough he had also committed homicide. We explained, however, that the criminal
case for homicide [was] not before us for consideration.
Just as unacceptable is the interpretation of the trial court. We find no justif
ication for limiting the proviso in the second paragraph to murder and homicide.
The law is clear: the accused can be convicted of simple illegal possession of
firearms, provided that no other crime was committed by the person arrested. If th
e intention of the law in the second paragraph were to refer only to homicide an
d murder, it should have expressly said so, as it did in the third paragraph. Ve
rily, where the law does not distinguish, neither should we.
The Court is aware that this ruling effectively exonerates appellant of illegal
possession of an M-14 rifle, an offense which normally carries a penalty heavier
than that for direct assault. While the penalty for the first is prision mayor,
for the second it is only prision correccional. Indeed, the accused may evade c
onviction for illegal possession of firearms by using such weapons in committing
an even lighter offense,[66] like alarm and scandal[67] or slight physical inju
ries,[68] both of which are punishable by arresto menor.[69] This consequence, h
owever, necessarily arises from the language of RA 8294, whose wisdom is not sub
ject to the Court s review. Any perception that the result reached here appears un
wise should be addressed to Congress. Indeed, the Court has no discretion to giv
e statutes a new meaning detached from the manifest intendment and language of t
he legislature. Our task is constitutionally confined only to applying the law a
nd jurisprudence[70] to the proven facts, and we have done so in this case.
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that a
ppellant is found guilty only of two offenses: (1) direct assault and multiple a
ttempted homicide with the use of a weapon, for which he is sentenced to 2 years
and 4 months to 6 years of prision correccional; and (2) maintaining a drug den
, for which he was correctly sentenced by the trial court to reclusion perpetua.
Costs against appellant.
Let a copy of this Decision be furnished the Congress of the Philippines for a p
ossible review, at its sound discretion, of RA 8294.
SO ORDERED.