Professional Documents
Culture Documents
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 168617
CRIMINAL PROCEDURE
the accused has already been arraigned in court. This is due to the
permissive language "may" utilized in Section 12 whereby the
Secretary has the discretion to entertain an appealed resolution
notwithstanding the fact that the accused has been arraigned.
Meanwhile, on 27 February 2003, the trial court issued an order
granting petitioners "Motion to Withdraw Information" and
dismissing Criminal Case No. 8782. No action was taken by
respondent or any party of the case from the said order of dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a Petition
for Certiorari before the Court of Appeals. Respondent raised the
following issues before the appellate court:
1. Whether or not the Department of Justice gravely abused its
discretion in giving due course to petitioners petition for review
despite its having been filed after the latter had already been
arraigned;
2. Whether or not there is probable cause that the crime of estafa
has been committed and that petitioner is probably guilty thereof;
3. Whether or not the petition before the Court of Appeals has been
rendered moot and academic by the order of the Regional Trial
Court dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted
respondents petition and reversed the Resolutions of the DOJ dated
11 July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily on
Section 7 of DOJ Circular No. 70 which states "[i]f an information
has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already
2
been arraigned," ruled that since petitioner was arraigned before she
filed the petition for review with the DOJ, it was imperative for the
DOJ to dismiss such petition. It added that when petitioner pleaded
to the charge, she was deemed to have waived her right to
reinvestigation and right to question any irregularity that surrounds
it.
Anent the second issue, the Court of Appeals declared that the
existence of probable cause or the lack of it, cannot be dealt with by
it since factual issues are not proper subjects of a Petition for
Certiorari.
In disposing of the last issue, the Court of Appeals held that the
order of the trial court dismissing the subject criminal case pursuant
to the assailed resolutions of the DOJ did not render the petition
moot and academic. It said that since the trial courts order relied
solely on the resolutions of the DOJ, said order is void as it violated
the rule which enjoins the trial court to assess the evidence
presented before it in a motion to dismiss and not to rely solely on
the prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case.
4. that the trial courts order of dismissal of the criminal case has
rendered the instant petition moot and academic;
5. that her arraignment was null and void it being conducted despite
her protestations; and
6. that despite her being arraigned, the supposed waiver of her right
to preliminary investigation has been nullified or recalled by virtue
of the trial courts order of reinvestigation.4
The Court of Appeals stood firm by its decision. This time,
however, it tried to construe Section 7 side by side with Section 12
of DOJ Circular No. 70 and attempted to reconcile these two
provisions. According to the appellate court, the phrase "shall not"
in paragraph two, first sentence of Section 7 of subject circular, to
wit:
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused
had already been arraigned. x x x. (Emphasis supplied.)
CRIMINAL PROCEDURE
option to grant or deny the same. It does not matter if this is done
before or after the arraignment of the accused or that the motion
was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.
(Emphasis supplied.)
To bolster her position, petitioner cites Roberts v. Court of
Appeals,6 which stated:
There is nothing in Crespo vs. Mogul which bars the DOJ from
taking cognizance of an appeal, by way of a petition for review, by
an accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, "as far as
practicable, refrain from entertaining a petition for review or appeal
from the action of the fiscal, when the complaint or information has
already been filed in Court. x x x. (Emphasis supplied.)
7
CRIMINAL PROCEDURE
MINITA V. CHICO-NAZARIO
Associate Justice
THIRD DIVISION
G.R. No. 188706
RESOLUTION
NACHURA, J.:
1
Genitalia - Parrous
- Healed vaginal laceration
- Vaginal introitus; admits 2 finger[s]
with ease
- Hymen with pemnants "caruncula
multiforma"
Labs; Vaginal Smear; Negative for Spermatozoa.5
Documento testified as the sole witness for the defense. He
asseverated that he pled guilty to the crime of Rape only because
Prosecutor Hector B. Salise convinced him to do so. Documento
contended that he did not rape AAA, and that, to the contrary, they
had a consensual, sexual relationship. He further alleged that the
incident did not happen in Butuan City, but in Clarin, Misamis
Occidental. Finally, on cross-examination, Documento disowned
the handwritten letters he had supposedly written to his wife and to
AAA, asking for their forgiveness.
The RTC rendered judgment convicting Documento of both counts
of Rape, to wit:
WHEREFORE, as a consequence of the foregoing, this Court finds
accused Oscar M. Documento GUILTY beyond reasonable doubt of
the two (2) counts of rape and correspondingly sentences him:
1. To suffer the penalty of DEATH in each of the two (2) rape cases
filed against him - Criminal Case No. 6899 and Criminal Case No.
6900;
11
SO ORDERED.8
Hence, this appeal, assigning the following errors:
I
THE TRIAL COURT GRAVELY ERRED IN DECIDING THE
CASE WITHOUT FIRST RESOLVING ITS TERRITORIAL
JURISDICTION OVER THE CRIME CHARGED AS THE
PROSECUTION FAILED TO ESTABLISH THAT THE TWO (2)
COUNTS OF RAPE WERE PERPETRATED IN BUTUAN CITY.
II.
THE TRIAL COURT GRAVELY ERRED IN FAILING TO
CONDUCT A SEARCHING
INQUIRY INTO
THE
VOLUNTARINESS AND FULL COMPREHENSION BY
ACCUSED-APPELLANT OF THE CONSEQUENCES OF HIS
PLEA.9
We find no cogent reason to disturb Documentos conviction. We
affirm the CA, but with modification.
On the issue of the trial courts territorial jurisdiction over the
crime, we completely agree with the appellate courts ruling
thereon. Contrary to the insistence of Documento that the
prosecution failed to establish that the two (2) counts of Rape were
perpetrated in Butuan City, the CA pointed to specific parts of the
records which show that, although AAA did not specifically
mention "Butuan City" in her testimony, the incidents in the present
cases transpired in Barangay Antongalon and on Ochoa Avenue,
both in Butuan City.
First. AAA in her Sworn Statement dated April 24, 1996 answered
CRIMINAL PROCEDURE
12
SO ORDERED.
This does not mean, however, that the case should be remanded to
the trial court. This course of action is appropriate only when the
appellants guilty plea was the sole basis for his conviction. As held
in People v. Mira, Notwithstanding the incautiousness that attended appellants guilty
plea, we are not inclined to remand the case to the trial court as
suggested by appellant. Convictions based on an improvident plea
of guilt are set aside only if such plea is the sole basis of the
judgment. If the trial court relied on sufficient and credible
evidence in finding the accused guilty, the judgment must be
sustained, because then it is predicated not merely on the guilty
plea of the accused but also on evidence proving his commission of
the offense charged.11
On the whole, we find that the appellate court committed no
reversible error in affirming the trial courts ruling convicting
Documento.
Lastly, on the matter of the appellate courts award of exemplary
damages, we increase the award fromP25,000.00 to P30,000.00 in
line with prevailing jurisprudence.
WHEREFORE, premises considered, the Court of Appeals
Decision dated August 13, 2008 in CA-G.R. CRHC No. 00285 is
AFFIRMED with the MODIFICATION that the award of
exemplary damages is hereby increased from P25,000.00 to
CRIMINAL PROCEDURE
14
Asserting that the foregoing allegations are vague and are not
CRIMINAL PROCEDURE
16
three (3) charges was set aside and the Republic was required by
this Court to submit to Virata a bill of particulars containing the
facts prayed for by the latter insofar as to these first three (3)
'actionable wrongs' are concerned. 4
On August 20, 1993, the Office of the Solicitor General (OSG) filed
a manifestation and motion dated August 18, 1993 alleging, inter
alia, that the OSG and PCGG agreed that the required bill of
particulars would be filed by the PCGG since the latter is the
investigating body which has the complete records of the case,
hence, in a better position to supply the required pleading. The
Sandiganbayan took note of this manifestation in a Resolution
dated August 26, 1993. On the basis of this arrangement, the PCGG
submitted the bill of particulars dated November 3, 1993, which
was apparently signed by a certain Reynaldo G. Ros, who was
named in the bill of particulars as "deputized prosecutor" of the
PCGG. This bill of particulars, which incorporates by reference the
Limited Bill of Particulars of October 22, 1992, states, inter alia:
xxx xxx xxx
1. On the "Specific Averments of Defendant's Illegal Acts a (i)"
[paragraph 14 b (ii) of the expanded Second Amended Complaint]
Immediately after defendants Ferdinand E. Marcos and Benjamin
"Kokoy" Romualdez took complete control of Meralco and its
subsidiaries, defendant Ferdinand E. Marcos issued Presidential
Decree No. 551 on September 11, 1974 which effected the
reduction of electric franchise tax being paid by Meralco from 5%
to 2% as well as lowered tariff duty of fuel oil imports from 20% to
10 % and allowed Meralco to retain 3% reduction in franchise tax
rates thereby allowing it to save as much as P258 million as of
December 31, 1992.
Defendant Cesar Virata then Minister of Finance, supported PD 551
18
action exists even though the allegations therein are vague, and
dismissal of the action is not the proper remedy when the pleading
is ambiguous because the defendant may ask for more particulars.
As such, Section 1, Rule 12 of the Rules of Court, provides, inter
alia, that a party may move for more definite statement or for a bill
of particulars of any matter which is not averred with sufficient
definiteness or particularity to enable him properly to prepare his
responsive pleading or to prepare for trial. Such motion shall point
out the defects complained of and the details desired. Under this
Rule, the remedy available to a party who seeks clarification of any
issue or matter vaguely or obscurely pleaded by the other party, is
to file a motion, either for a more definite statement or for a bill of
particulars. 8 An order directing the submission of such statement or
bill, further, is proper where it enables the party movant
intelligently to prepare a responsive pleading, or adequately to
prepare for trial. 9
A bill of particulars is a complementary procedural document
consisting of an amplification or more particularized outline of a
pleading, and being in the nature of a more specific allegation of
the facts recited in the pleading. 10 It is the office of the bill of
particulars to inform the opposite party and the court of the precise
nature and character of the cause of action or defense which the
pleader has attempted to set forth and thereby to guide his
adversary in his preparations for trial, and reasonably to protect him
against surprise at the trial. 11 It gives information of the specific
proposition for which the pleader contends, in respect to any
material and issuable fact in the case, and it becomes a part of the
pleading which it supplements. 12 It has been held that a bill of
particulars must inform the opposite party of the nature of the
pleader's cause of action or defense, and it must furnish the required
items of the claim with reasonable fullness and precision. 13
Generally, it will be held sufficient if it fairly and substantially
gives the opposite party the information to which he is entitled, as
required by the terms of the application and of the order therefor. It
21
BRION, J.:
EN BANC
April 22, 2009
DECISION
That on or about the 13th day of May 2001 at about 4:00 oclock in
the afternoon, in [S]itio Bantauyan, [B]arangay Bantad,
Municipality of Boac, Province of Marinduque, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused did then and there, willfully, unlawfully and feloniously
carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with Serial No. 173-56836 outside his residence
during the election period, without authorization in writing from the
Commission on Election[s].
CONTRARY TO LAW.4
The accusation was based on Batas Pambansa Bilang 881 or the
28
the motion.
The RTC quashed the Information and ordered the police and the
prosecutors to return the seized articles to Pedro.10
The petitioner, private prosecutor Ariel Los Baos (Los Baos),
representing the checkpoint team, moved to reopen the case, as
Pedros Comelec Certification was a "falsification," and the
prosecution was "deprived of due process" when the judge quashed
the information without a hearing. Attached to Los Baos motion
were two Comelec certifications stating that: (1) Pedro was not
exempted from the firearm ban; and (2) the signatures in the
Comelec Certification of September 24, 2001 were forged.
The RTC reopened the case for further proceedings, as Pedro did
not object to Los Baos motion. 11 Pedro moved for the
reconsideration of the RTCs order primarily based on Section 8 of
Rule 117,12 arguing that the dismissal had become permanent. He
likewise cited the public prosecutors lack of express approval of
the motion to reopen the case.
The public prosecutor, however, manifested his express conformity
with the motion to reopen the case. The trial court, for its part,
rejected the position that Section 8, Rule 117 applies, and explained
that this provision refers to situations where both the prosecution
and the accused mutually consented to the dismissal of the case, or
where the prosecution or the offended party failed to object to the
dismissal of the case, and not to a situation where the information
was quashed upon motion of the accused and over the objection of
the prosecution. The RTC, thus, set Pedros arraignment date.
Pedro filed with the CA a petition for certiorari and prohibition to
nullify the RTCs mandated reopening.13 He argued that the RTC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that the dismissal contemplated under Section
29
8, Rule 117 refers to situations where either the prosecution and the
accused mutually consented to, or where the prosecution alone
moved for, the provisional dismissal of the case; in rejecting his
argument that the prescriptive periods under Article 90 of the
Revised Penal Code14 or Act No. 332615 find no application to his
case as the filing of the Information against him stopped the
running of the prescriptive periods so that the prescription
mandated by these laws became irrelevant; and, in setting the case
for arraignment and pre-trial conference, despite being barred under
Section 8 of Rule 117.
THE PETITION
Los Baos prays in his petition that the case be remanded to the
RTC for arraignment and trial, or that a new charge sheet be filed
against Pedro, or that the old information be re-filed with the RTC.
He contends that under Section 6 of Rule 117, an order sustaining a
motion to quash does not bar another prosecution for the same
offense, unless the motion was based on the grounds specified in
Section 3(g)16 and (i)17 of Rule 117. Los Baos argues that the
dismissal under Section 8 of Rule 117 covers only situations where
both the prosecution and the accused either mutually consented or
agreed to, or where the prosecution alone moved for the provisional
dismissal of the case; it can also apply to instances of failure on the
part of the prosecution or the offended party to object, after having
been forewarned or cautioned that its case will be dismissed. It does
not apply where the information was quashed. He adds that
although the trial court granted the motion to quash, it did not
categorically dismiss the case, either provisionally or permanently,
as the judge simply ordered the return of the confiscated arms and
ammunition to Pedro. The order was "open-ended," and did not
have the effect of provisionally dismissing the case under Section 8
of Rule 117.
Los Baos also contends that the CA gravely erred when: (1) it
ruled in effect that the Order dated November 22, 2001 granting the
motion to quash is considered a provisional dismissal, which
became permanent one year from the prosecutors receipt of the
order; the order to quash the Information was based on Section 3 of
Rule 117, not on Section 8 of this Rule; (2) it granted Pedros
motion for reconsideration and denied Los Baos motion for
modification of judgment, when Section 6 of Rule 117 clearly
provides that an order granting a motion to quash is not a bar to
another prosecution for the same offense.
He notes that the grounds Pedro relied upon in his motion to quash
31
are not subsections (g) or (i) of Rule 117, but its subsections (a)
that the facts charged do not constitute an offense, and (h) that it
contains averments which if true would constitute a legal
justification. Pedros cited grounds are not the exceptions that
would bar another prosecution for the same offense. 18 The dismissal
of a criminal case upon the express application of the accused
(under subsections [a] and [h]) is not a bar to another prosecution
for the same offense, because his application is a waiver of his
constitutional prerogative against double jeopardy.
In response to all these, respondent Pedro insists and fully relies on
the application of Section 8 of Rule 117 to support his position that
the RTC should not have granted Los Banos motion to reopen the
case.
THE ISSUES
The issue is ultimately reduced to whether Section 8, Rule 117 is
applicable to the case, as the CA found. If it applies, then the CA
ruling effectively lays the matter to rest. If it does not, then the
revised RTC decision reopening the case should prevail.
OUR RULING
We find the petition meritorious and hold that the case should be
remanded to the trial court for arraignment and trial.
Quashal v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused assails, before
entering his plea, the validity of the criminal complaint or the
criminal information filed against him for insufficiency on its face
CRIMINAL PROCEDURE
On the other hand, Section 8, Rule 117 that is at the center of the
dispute states that:
SEC.8. Provisional dismissal. A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable
by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of
the order without the case having been revived.
A case is provisionally dismissed if the following requirements
concur:
1) the prosecution with the express conformity of the accused, or
the accused, moves for a provisional dismissal (sin perjuicio) of his
case; or both the prosecution and the accused move for its
provisional dismissal;
2) the offended party is notified of the motion for a provisional
dismissal of the case;
3) the court issues an order granting the motion and dismissing the
case provisionally; and
4) the public prosecutor is served with a copy of the order of
provisional dismissal of the case.20
In People v. Lacson,21 we ruled that there are sine quanon
requirements in the application of the time-bar rule stated in the
CRIMINAL PROCEDURE
This feature must be read with Section 6 which provides for the
effects of sustaining a motion to quash the dismissal is not a bar
to another prosecution for the same offense unless the basis for
the dismissal is the extinction of criminal liability and double
jeopardy. These unique terms, read in relation with Sections 3(i)
and 7 and compared with the consequences of Section 8, carry
unavoidable implications that cannot but lead to distinctions
between a quashal and a provisional dismissal under Section 8.
They stress in no uncertain terms that, save only for what has been
provided under Sections 4 and 5, the governing rule when a motion
to quash is meritorious are the terms of Section 6. The failure of the
Rules to state under Section 6 that a Section 8 provisional dismissal
is a bar to further prosecution shows that the framers did not intend
a dismissal based on a motion to quash and a provisional dismissal
to be confused with one another; Section 8 operates in a world of its
own separate from motion to quash, and merely provides a time-bar
that uniquely applies to dismissals other than those grounded on
Section 3. Conversely, when a dismissal is pursuant to a motion to
quash under Section 3, Section 8 and its time-bar does not apply.
Other than the above, we note also the following differences
stressing that a motion to quash and its resulting dismissal is a
unique class that should not be confused with other dismissals:
First, a motion to quash is invariably filed by the accused to
question the efficacy of the complaint or information filed against
him or her (Sections 1 and 2, Rule 117); in contrast, a case may be
provisionally dismissed at the instance of either the prosecution or
the accused, or both, subject to the conditions enumerated under
Section 8, Rule 117.26
Second, the form and content of a motion to quash are as stated
under Section 2 of Rule 117; these requirements do not apply to a
provisional dismissal.
34
CRIMINAL PROCEDURE
36
CONTRARY TO LAW.17
On 2 October 2006, petitioner filed a motion to quash the
Information raising the following grounds: (1) the facts charged in
the information do not constitute an offense; (2) the information
does not conform substantially to the prescribed form; (3) the
constitutional rights of the accused to be informed of the nature and
cause of the accusations against them have been violated by the
inadequacy of the information; and (4) the prosecution failed to
determine the individual participation of all the accused in the
information in disobedience with the Resolution dated 27 March
2005.18
On 2 March 2007, the Sandiganbayan issued the first assailed
resolution denying petitioners motion to quash. We quote the said
resolution in part:
Among the accused-movants, the public officer whose participation
in the alleged offense is specifically mentioned in the May 30, 2006
CRIMINAL PROCEDURE
despite the fact that no such works were undertaken by A.C. Cruz
Construction as revealed by the Special Audit conducted by the
Commission on Audit."
The other factual details which accused Lazarte, Jr. cited are
matters of evidence best threshed out in the course of the trial.20
Hence, the instant petition which is a reiteration of petitioners
submissions. Petitioner ascribes grave abuse of discretion
amounting to lack or excess of jurisdiction to the Sandiganbayan in:
(1) upholding the validity and sufficiency of the Information
despite its failure to make out an offense and conform to the
prescribed form; (2) denying his motion to quash considering that
the remaining averments in the Information have been rendered
unintelligible by the dismissal of the charges against some of his
co-accused; and (3) using as bases the Prosecutions Memoranda
dated 27 July 2004 and 30 May 2006 to supplement the
inadequacies of the Information. In addition, petitioner avers that
his constitutional right to be informed of the nature and cause of the
accusation against him had been violated for failure of the
Information to specify his participation in the commission of the
offense. Petitioner also argues that the facts charged in the
Information do not constitute an offense as no damage or injury had
been made or caused to any party or to the government. Finally,
petitioner maintains that the Sandiganbayan lost its jurisdiction
over him upon the dismissal of the charges against his co-accused
as the remaining accused are public officers whose salary grade is
below 27.
In its Comment21 dated 21 December 2007, the Office of the
Ombudsman, through the Office of the Special Prosecutor, counters
that separate allegations of individual acts perpetrated by the
conspirators are not required in an Information and neither should
they be covered by evidence submitted to establish the existence of
probable cause. Allegations regarding the nature and extent of
41
commit it. Conspiracy comes to life at the very instant the plotters
agree, expressly or impliedly, to commit the felony and forthwith to
actually pursue it. Verily, the information must state that the
accused have confederated to commit the crime or that there has
been a community of design, a unity of purpose or an agreement to
commit the felony among the accused. Such an allegation, in the
absence of the usual usage of the words "conspired" or
"confederated" or the phrase "acting in conspiracy," must aptly
appear in the information in the form of definitive acts constituting
conspiracy. In fine, the agreement to commit the crime, the unity of
purpose or the community of design among the accused must be
conveyed such as either by the use of the term "conspire" or its
derivatives and synonyms or by allegations of basic facts
constituting the conspiracy. Conspiracy must be alleged, not just
inferred, in the information on which basis an accused can aptly
enter his plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it. In
establishing conspiracy when properly alleged, the evidence to
support it need not necessarily be shown by direct proof but may be
inferred from shown acts and conduct of the accused.43
In addition, the allegation of conspiracy in the Information should
not be confused with the adequacy of evidence that may be required
to prove it. A conspiracy is proved by evidence of actual
cooperation; of acts indicative of an agreement, a common purpose
or design, a concerted action or concurrence of sentiments to
commit the felony and actually pursue it. A statement of the
evidence on the conspiracy is not necessary in the Information.44
The other details cited by petitioner, such as the absence of any
damage or injury caused to any party or the government, likewise
are matters of evidence best raised during trial.
As to the contention that the residual averments in the Information
have been rendered unintelligible by the dismissal of the charges
CRIMINAL PROCEDURE
against some of his co-accused, the Court finds that the Information
sufficiently makes out a case against petitioner and the remaining
accused.
With regard to the alleged irregular use by the Sandiganbayan of
the Prosecutions Memoranda dated 27 July 2004 and 30 May 2006
to supplement the inadequacies of the Information, the Court finds
adequate its explanation in the first assailed resolution, to wit:
It may be recalled that a reinvestigation of the case was ordered by
this Court because the prosecution failed to satisfactorily comply
with an earlier directive of the former Chairperson and Members of
the First Division, after noting the inadequacy of the information, to
clarify the participation of each of the accused. In ordering the
reinvestigation, the Court noted that the prosecutions July 27, 2004
Memorandum did not address the apprehensions of the former
Chairperson and Members of the First Division as to the
inadequacy of the allegations in the information.
This time, despite a reinvestigation, the prosecutions Memorandum
dated May 30, 2006 still failed to specify the participation of
accused-movants Balao, Angsico and Dacalos. The most recent
findings of the prosecution still do not address the deficiency found
by the Court in the information. The prosecution avers that pursuant
to Section 3, Rule 117 of the Rules of Court, in determining the
viability of a motion to quash based on the ground of "facts charged
in the information do not constitute an offense," the test must be
whether or not the facts asseverated, if hypothetically admitted,
would establish the essential elements of the crime as defined by
law. The prosecution contends that matter aliunde should not be
considered. However, in the instant case, the Court has found the
information itself to be inadequate, as it does not satisfy the
requirements of particularly alleging the acts or omissions of the
said accused-movants, which served as the basis of the allegation of
conspiracy between the aforementioned accused-movants and the
45
DANTE O. TINGA
Associate Justice
46
47
of ABRITFG.5
(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC
investigator, executed an affidavit corroborating the material
allegations of delos Reyes. Dela Cruz claimed that she was with
delos Reyes from the time the eleven (11) KBG members were
arrested up to the time they were killed in Commonwealth Avenue.6
(5) On May 31, 1995, Armando Capili, a reporter of Remate,
executed an affidavit stating that he was present when the KBG
members were arrested in Superville Subdivision.7
(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP
Director for Investigation, filed murder charges with the Office of
the Ombudsman against ninety-seven (97) officers and personnel of
ABRITFG. The next-of-kin of the slain KBG members also filed
murder charges against the same officers and personnel.8
(7) Ombudsman Aniano Desierto then created a panel of
investigators to conduct a preliminary investigation of the murder
charges. The panel was headed by Deputy Ombudsman for Military
Affairs Bienvenido Blancaflor. On October 20, 1995, the panel
issued a resolution recommending the dismissal of the charges for
lack of probable cause.
(8) Ombudsman Desierto referred the resolution for review by a
panel composed of Over-all Deputy Ombudsman Francisco Villa as
head, and Special Prosecutor Leonardo Tamayo and Assistant
Ombudsman Abelardo Aportadera as members. On November 20,
1995, the review panel reversed the Blancaflor resolution and found
probable cause for the prosecution of multiple murder charges
against twenty-six (26) officers and personnel of ABRITFG.9
(9) On November 2, 1995, the Ombudsman filed before the
Sandiganbayan eleven (11) Informations for MURDER, docketed
48
where the Supreme Court said that the general rule is that 'if the
Information is valid on its face and there is no showing of manifest
error, grave abuse of discretion or prejudice on the part of the
public prosecutor, courts should not dismiss it for want of evidence,
because evidentiary matters should be presented and heard during
the trial', and that the ruling in Allado vs. Diokno 'is an exception to
the general rule and may be invoked only if similar circumstances
are clearly shown to exist.'
This Court holds that the circumstances in the case at bench clearly
make an exception to the general rule.
WHEREFORE, in view of the foregoing, the Court finds no
probable cause for the issuance of the warrants of arrest against the
accused or to hold them for trial. Accordingly, the Informations in
the above-numbered cases are hereby ordered dismissed."
SO ORDERED."26
(20) On March 27, 2001, PNP Director Leandro R. Mendoza
indorsed to the Department of Justice the new affidavits of P/Insp.
Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the
Kuratong Baleleng incident for preliminary investigation. On the
strength of this indorsement, Secretary of Justice Hernando B.
Perez formed a panel to investigate the matter. On April 17, 2001,
the respondent was subpoenaed to attend the investigation of
Criminal Cases Nos. Q-99-81679 to Q-99-81689.27
(21) On May 28, 2001, respondent Lacson, et al., invoking, among
others, their constitutional right against double jeopardy, filed a
petition for prohibition with application for temporary restraining
order and/or writ of preliminary injunction with the Regional Trial
Court of Manila, primarily to enjoin the State prosecutors from
conducting the preliminary investigation. The petition was docketed
as Civil Case No. 01-100933 and raffled to Branch 40, presided by
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gang were filed before the Regional Trial Court of Quezon City and
were docketed as Criminal Cases Nos. 01-101102 to 01-101112.
The new Informations charged as principals thirty-four (34) people,
including respondent Lacson and his twenty-five (25) other coaccused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. The
criminal cases were assigned to Judge Ma. Theresa L. Yadao.
(24) On the same day, respondent Lacson filed before the Court of
Appeals a petition for certiorari31 against Judge Pasamba, the
Secretary of Justice, the PNP Chief, State Prosecutors Ong and
Zacarias, 2nd Assistant City Prosecutor Jamolin, and the People of
the Philippines. The said petition was amended to implead as
additional party-respondents State Prosecutor Claro Arellano and
the RTC, Quezon City, Branch 81 in which the Informations in
Criminal Cases Nos. 01-101102 to 01-101112 were filed.32
(25) The Second Amended Petition33 dated June 14, 2001 and
admitted by the Court of Appeals on June 26, 2001, alleged:
"The reliefs of certiorari, prohibition and injunction against the
questioned Order (Annex A) and the new Informations in Criminal
Cases Nos. 01-101102 to 01-101112 pending before respondent
Yadao (Annex B) are founded upon the grave abuse of discretion
by respondent Judge Pasamba of her discretion in its issuance, the
illegality of the proceedings of the respondent State Prosecutors as
they cannot revive complaints which had been dismissed over two
(2) years from the date the dismissal order was issued, and the
invalidity of the new Informations for Murder filed against
petitioners and others, all in defiance of law and jurisprudence as
shown by the following:
(a) Respondent judge had ruled on the merits of the main
prohibition action a quo rendering the same moot and academic by
concluding that the dismissal of Criminal Cases Nos. Q-99-81679Q-99-81689 by the QC RTC was not final and executory, hence [i]
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provided therein.
xxx
xxx
Like any other favorable procedural rule, this new rule can be given
retroactive effect. However, this Court cannot rule on this jugular
issue due to the lack of sufficient factual bases. Thus, there is need
of proof of the following facts, viz: (1) whether the provisional
dismissal of the cases had the express consent of the accused; (2)
whether it was ordered by the court after notice to the offended
party, (3) whether the 2-year period to revive has already lapsed,
and (4) whether there is any justification for the filing of the cases
beyond the 2-year period.
There is no uncertainty with respect to the fact that the provisional
dismissal of the cases against respondent Lacson bears his express
consent. It was respondent Lacson himself who moved to dismiss
the subject cases for lack of probable cause before then Judge
Agnir, hence, it is beyond argument that their dismissal bears his
express consent.
SO ORDERED."37
The issue is whether Section 8, Rule 117 bars the filing of the
eleven (11) informations against the respondent Lacson involving
the killing of some members of the Kuratong Baleleng gang. This
rule which took effect on December 1, 2000 provides:
"SEC. 8. Provisional dismissal.- A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable
by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of
CRIMINAL PROCEDURE
The records of the case, however, do not reveal with equal clarity
and conclusiveness whether notices to the offended parties were
given before the cases against the respondent Lacson were
dismissed by then Judge Agnir. It appears from the resolution of
then Judge Agnir that the relatives of the victims who desisted did
not appear during the hearing to affirm their affidavits. Their
affidavits of desistance were only presented by Atty. Godwin
Valdez who testified that he assisted the private complainants in
preparing their affidavits and he signed them as a witness. It also
appears that only seven (7) persons submitted their affidavits of
desistance, namely:
a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey
Abalora
b. Carmelita Elcamel, wife of Wilbur Elcamel;
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CRIMINAL PROCEDURE
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