G.R. No.

201310

MARK REYNALD MARASIGAN y DEGUZMAN, Petitioner,

vs.
REGINALD FUENTES ALIAS "REGIE," ROBERT CALILAN ALIAS "BOBBY," AND ALAIN DELON
LINDO,Respondents.

DECISION

LEONEN, J.:

This resolves a Petition1 for Review on Certiorari under Rule 45 of the Rules of Court praying that (1) the
August 19, 2011 Decision2 and the February 21, 2012 Resolution3 of the Court of Appeals in CA-G.R. SP
No. 113116 be reversed and set aside and (2) the September 2, 2009 Resolution4 rendered by then
Department of Justice Undersecretary Linda L. Malenab-Hornilla (Undersecretary Malenab-Homilla) be
reinstated.5

The assailed August 19, 2011 Decision of the Court of Appeals dismissed the Petition for Certiorari under
Rule 65 of the Rules of Court filed by petitioner Mark Reynald Marasigan (Marasigan) and affirmed the
February 8, 2010 Resolution6 of then Department of Justice Secretary Agnes VST Devanadera (Secretary
Devanadera).7 The assailed February 21, 2012 Resolution of the Court of Appeals denied Marasigan’s
Motion for Reconsideration.8

The February 8, 2010 Resolution of Secretary Agnes VST Devanadera reversed and set aside
Undersecretary Linda L. Malenab-Hornilla’s September 2, 2009 Resolution and dismissed the criminal
complaints against respondents Reginald Fuentes (Fuentes) and Alain Delon Lindo (Lindo) and found
probable cause to charge respondent Robert Calilan (Calilan) with only less serious physical
injuries.9 Undersecretary Malenab-Hornilla’s September 2, 2009 Resolution partially granted
Marasigan’s Petition for Review and directed the filing of informations for attempted murder against
Fuentes, Calilan, and Lindo.10

Per Marasigan’s allegations, on December 20, 2006 at about 3:00 a.m., while he was walking on his way
home along Hebrew Street, Adelina I Subdivision, Barangay San Antonio, San Pedro, Laguna, and after
he had passed by Fuentes’ house where some merrymaking had been ongoing, Marasigan felt someone
throw an object at him from behind. Turning around, he saw Fuentes, who, upon noticing that he had
been seen, disappeared. A witness, Jefferson Pablo (Pablo), spoke with Marasigan and confirmed that it
was Fuentes who threw an object at him.11

While he and Pablo were speaking, Fuentes reappeared with Calilan and Lindo, as well as with another
unidentified individual. Fuentes suddenly punched Marasigan on the face, making his nose bleed. Calilan
and Lindo also hit him while their unidentified companion sought to stop them. Fuentes picked up a
stone (i.e., piece of a hollow block) and attempted to hit Marasigan’s head with it. Marasigan parried the
stone with his hand, causing his hand to fracture. Fuentes again picked up the stone. Lindo and Calilan
took hold of each of Marasigan’s arms. Several more men who were in Fuentes’ home joined in the
assault.12

Sensing that Fuentes, Calilan, and Lindo were determined to crush him with hollow blocks from a nearby
construction site, Marasigan shouted for help. Gregoria Pablo, Jefferson Pablo’s mother, came rushing
out of their house and tried to pacify Fuentes, Calilan, and Lindo. They, however, continued to assault
Marasigan. It was only upon the arrival of neighbors Marcelo Maaba and Lauro Agulto that Fuentes,
Calilan, and Lindo ceased their assault and fled.13

Assisted by his parents, Marasigan submitted himself to two (2) medico-legal examinations, and an x-ray
examination. He also filed reports/complaints in the barangay hall and police station. On December 28,
2006, he formally filed a criminal complaint for frustrated murder against Fuentes, Calilan, Lindo, and
one John Doe before Assistant Provincial Prosecutor Milaflor Tan Mancia.14

After conducting preliminary investigation, Assistant Provincial Prosecutor Christopher R. Serrano

(Assistant Provincial Prosecutor Serrano) issued the Resolution15 dated August 16, 2007 finding probable
cause for charging Fuentes and Calilan with less serious physical injuries and clearing Lindo of any
liability.16 He reasoned that there were no qualifying circumstances to support a charge for murder. He
added that the injuries suffered by Marasigan, including his fractured finger, required a healing period of
not more than 30 days.17

Aggrieved, Marasigan filed a Petition for Review before the Department of Justice. He argued that the
medical findings made on him as well as the qualifying circumstance of abuse of superior strength
justified prosecution for frustrated murder. He added that Lindo’s acts were unambiguous and indicated
his participation in a design to kill him.18

In the Resolution dated September 2, 2009, Undersecretary Malenab-Hornilla partially granted

Marasigan’s Petition for Review and ordered the provincial prosecutor of Laguna to file informations for
attempted murder against Fuentes, Calilan, and Lindo. Undersecretary Malenab-Hornilla faulted
Assistant Provincial Prosecutor Serrano for relying on the medico-legal findings to the exclusion of other
evidence. She reasoned that Fuentes, Calilan, and Lindo’s acts, as recounted by the witnesses Gregoria
Pablo, Marcelo Maaba, and Lauro Agulto, indicated a design to kill Marasigan, which was only stymied
by these witnesses’ arrival.19 She added, however, that precisely because of the arrival of these
witnesses, Fuentes, Calilan, and Lindo failed to complete "all the punching, kicking and stoning needed
to kill [Marasigan]."20 Thus, they could not be charged with frustrated murder, but only with attempted
murder.21

Fuentes, Calilan, and Lindo filed their Motion for Reconsideration to Undersecretary Malenab-Hornilla’s
Resolution.22

While the Motion for Reconsideration of Fuentes, Calilan, and Lindo was pending, the Provincial
Prosecutor’s Office filed the Information23 for attempted murder before Branch 93, Regional Trial Court,
San Pedro, Laguna.

On February 8, 2010, Secretary Devanadera issued a Resolution on Fuentes, Calilan, and Lindo’s Motion
for Reconsideration. This Resolution absolved Fuentes and Lindo of liability and deemed that Calilan
could only be charged with less serious physical injuries. Secretary Devanadera cited with approval
Assistant Provincial Prosecutor Serrano’s statement in his own Resolution that there was no sufficient
showing, or "clear and convincing evidence to prove that the herein respondents collectively intended
to kill [Marasigan]."24

Aggrieved, Marasigan filed a Petition for Certiorari under Rule 65 of the Rules of Court before the Court
of Appeals.25
In its assailed August 19, 2011 Decision, the Court of Appeals dismissed Marasigan’s Petition for
Certiorari. In its assailed February 21, 2012 Resolution, the Court of Appeals denied Marasigan’s Motion
for Reconsideration.

Hence, this Petition was filed.

For resolution is the sole issue of the proper crime, if any, for which any or all of the respondents must
stand trial.

Petitioner comes to us via a Petition for Review on Certiorari under Rule 45 of the Rules of Court
following the denial by the court of appeals of his Petition for Certiorari under Rule 65, the errors which
are properly correctible by each remedy are settled:

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only
errors of jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence such
as errors of judgment. Errors of judgment of the trial court are to be resolved by the appellate court in
the appeal by and of error or via a petition for review on certiorari in this Court under Rule 45 of the
Rules of Court. Certiorari will issue only to correct errors of jurisdiction. It is not a remedy to correct
errors of judgment. An error of judgment is one in which the court may commit in the exercise of its
jurisdiction, and which error is reversible only by an appeal. Error of jurisdiction is one where the act
complained of was issued by the court without or in excess of jurisdiction and which error is correctible
only by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by the trial court
in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and
its conclusions of law. As long as the court acts within its jurisdiction, any alleged errors committed in
the exercise of its discretion will amount to nothing more than mere errors of judgment, correctible by
an appeal or a petition for review under Rule 45 of the Rules of Court.26

The present, Rule 45 Petition calls upon us to examine whether the Court of Appeals committed an error
of judgment in resolving the question of whether Secretary Devanadera committed grave abuse of
discretion, amounting to lack or excess of jurisdiction in concluding the respondents ought to stand trial
only for the charge of less serious physical injuries. In her capacity as Secretary of Justice, Secretary
Devanadera was well within her jurisdiction to rule on the Petition for Review filed with the Department
of Justice. She is, however, not at liberty to flagrantly disregard the evidence and the records and to
insist on conclusions that stray dismally far from what the evidence warrants. Neither is she at liberty to
disregard evidentiary principles established in jurisprudence.

It is basic that petitions for review on certiorari under Rule 45 may only raise pure questions of law27 and
that findings of fact are generally binding and conclusive on this court. Nevertheless, there are
recognized exceptions that will allow this court to overturn the factual findings confronting it. These
exceptions are the following:

(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the findings of fact are conflicting;

(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same
is contrary to the admissions of both appellant and appellee;

(7) When the findings are contrary to those of the trial court;

(8) When the findings of fact are conclusions without citation of specific evidence on which they are
based;

(9) When the facts set forth in the petition as well as in the petitioners’ main and reply briefs are not
disputed by the respondents; and

(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record.28

Moreover, in Rule 45 petitions, which are appeals from petitions for certiorari under Rule 65, the
appealed ruling may be reversed and its factual moorings rejected if it can be shown that, in rendering
the act originally subject of the Rule 65 petition, "the tribunal acted capriciously and whimsically or in
total disregard of evidence material to the controversy[.]"29

A careful review of this case and of the evidence that were available for the prosecutors’ and the
Department of Justice’s appreciation will reveal that there was a gross misapprehension of facts on the
part of Assistant Provincial Prosecutor Serrano and Secretary Devanadera. It was, therefore, grave abuse
of discretion for Secretary Devanadera to conclude that respondent Calilan may only be prosecuted for
the crime of less serious physical injuries while his co-respondents, Fuentes and Lindo, may not be
prosecuted at all.

II

Secretary Devanadera was in grave error in citing with approval Assistant Provincial Prosecutor
Serrano’s having faulted petitioner for lack of "sufficient s[h]owing, [o]r clear and convincing
evidence to prove that the herein respondents collectively intended to kill [petitioner]."30

Assistant Provincial Prosecutor Serrano’s Resolution was issued pursuant to a preliminary investigation.
Preliminary investigation "ascertains whether the offender should be held for trial or be released."31 It
inquires only into the existence of probable cause: a matter which rests on likelihood rather than on
certainty. It relies on common sense rather than on "clear and convincing evidence":

Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been committed and that respondent is
probably guilty thereof. The term does not mean "actual and positive cause" nor does it import absolute
certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an
inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged.

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of guilt,
not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that the accused is probably
guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient
evidence to secure a conviction.32 (Emphasis supplied, citations omitted)

III

Secretary Devanadera is of the conclusion that "[t]he evidence is equivocal on whether respondents had
any homicidal intent in engaging in a scuffle with the complainant."33 In so doing, she makes much of
how "[t]he physical evidence starkly fails to demonstrate any homicidal motive[.]"34 She goes so far as to
virtually discredit the other available evidence vis-à-vis physical evidence, saying that "[p]hysical
evidence is evidence of the highest order and speaks more eloquently than a hundred witnesses."35

Specifically, Secretary Devanadera pointed out that the medico-legal findings36 indicated that petitioner
sustained nothing more than contusions and abrasions;37 and that while he suffered a fracture on the
metacarpal bone on the second digit of his right hand,38 it was found that his injuries would take less
than 30 days to heal.39

We disagree with this appreciation.

In Rivera v. People,40 this court noted that the fact that the wounds sustained by the victim were merely
superficial and not fatal did not negate the liability of the accused for attempted murder.41 The attack on
the victim in Rivera was described as follows:

In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of
petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell
to the ground, unable to defend himself against the sudden and sustained assault of petitioners,
Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but
still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral
contusions.42

The circumstances in Rivera are starkly similar with (though not entirely the same as) those in this case.
As in Rivera, several assailants took part in pummeling petitioner, and efforts were made to hit his head
with stones or pieces of hollow blocks. A difference is that, in this case, petitioner managed to parry an
attempted blow, thereby causing a fracture in his right hand, instead of a more serious and, possibly
fatal, injury on his head.

In any case, the fact that petitioner was successful in blocking the blow with his hand does not, in and of
itself, mean that respondents could not have possibly killed him. It does not negate any homicidal
intent. It remains that respondent Fuentes attempted to hit petitioner on the head with a hollow block
while respondents Calilan and Lindo made efforts to restrain petitioner.

There is also reasonable basis for appreciating how the attack on petitioner was made with respondents
taking advantage of their numerical superiority. Relevant portions of the witnesses’ sworn statements
are reproduced, as follows:
1. Marcelo T. Maaba

Na, pagkalabas ko ay nakita ko na may binubugbog ang apat na katao at nakilala ko ang isa na
nagngangalang BOBBY CALILAN, nasa hustong gulang, binata, at dating nakatira sa Block 11[,] Adelina I,
San Antonio, San Pedro, Laguna, at ang binubugbog nila aysi [sic] Mark Reynald Marasigan.

Na, sinigawan po namin (kasama si Lauro Agulto, Gregorio [sic] at Jeff Pablo) ang mga nambubugbog
kaya[’]t agad naman nila itong iniwan si Mark na duguan ang mukha at damit.43

2. Lauro M. Agulto

Maya-maya pa ay biglang sumugod ang grupo [ni] BOBBY CALILAN, nasa hustong gulang, binata at
dating nakatira sa Block 11[,] Adelina I, kasama ang pitong iba pa na hindi ko kilala at pinag-gugulpi si
Mark hanggang sa bumagsak ito. Lumapit si Ate Boyang sa mga nanggugulpi upang umawat ngunit
nagulat ito sa biglang pagdami ng grupo ni Bobby kaya’t napaatras si Ate Boyang at na out-balance at
napatumba. Sa tagpong ito ay lumabas ako upang tulungan si Ate Boyang;

Na, pagkalabas ko ay nakatagilid pahiga si Mark sa kalsada at nang papalapit na ako ay tinadyakan pa ito
ng isa pa, nakita ko rin na pinagtutulungan itong si Mark suntukin at sipain ng grupo ni Bobby kasama
ang pitong iba pa.44(Emphasis supplied)

3. Gregoria F. Pablo

Na, noong mga ganap na ika 3:00 ng madaling araw, nakita ko ang anak ng aking kapitbahay na si
Macmac (M[a]rk Reynald G. Marasigan) na kausap ang aking anak na si Jeff. Narinig ko na siya ay binato
ng napakalaki sa likod at matinding nasaktan. Noon ay nasa tapat ng bahay ang aking anak na
magsisimbang gabi. Lumabas ako at alamin ang pangyayari at yayaing pumasok na sa loob ng aming
bahay upang gamutin si Macmac. Subalit bigla na lamang su[m]ugod [a]ng apat na lalaki at sabay sabay
na sinaktan si Macmac. Marami pang nagdatingan sumusugod na matataas at malalaking kalalakihan na
tumulong pa sa pambubugbog kay Macmac. Naglakas loob ako na umawat dahil sa pag aakalang
igagalang nila ako. Ngunit ako ay kanilang itinulak na sanhi ng aking pagkatilapon at pagkasubsub at
nasugatan. . . . Nakita ko na balak na nilang patayin si Macmac dahil habang pinipigil ko ang iba, ay
nakita ko na hinihila pa siya ng mga anim o pitong malalaking kalalakihan habang nakahandusay na at
sabay-sabay pa siyang sinasaktan.45

From these, it is discernible that respondents took advantage of their superior strength or otherwise
employed means to weaken petitioner’s defense. With this qualifying circumstance, there is ample basis
for pursuing respondents’ prosecution for murder, albeit not in its consummated stage.1âwphi1

Similarly, it is apparent that respondents acted out of a common design and, thus, in conspiracy.

It is settled that direct proof of conspiracy is not imperative and that conspiracy may be inferred from
acts of the perpetrators. As explained in People v. Amodia:46

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. It arises on the very instant the plotters agree, expressly or impliedly, to
commit the felony and forthwith decide to pursue it. It may be proved by direct or circumstantial
evidence.
Direct proof of conspiracy is rarely found; circumstantial evidence is often resorted to in order to prove
its existence. Absent of any direct proof, as in the present case, conspiracy may be deduced from the
mode, method, and manner the offense was perpetrated, or inferred from the acts of the accused
themselves, when such acts point to a joint purpose and design, concerted action, and community of
interest. An accused participates as a conspirator if he or she has performed some overt act as a direct
or indirect contribution in the execution of the crime planned to be committed. The overt act may
consist of active participation in the actual commission of the crime itself, or it may consist of moral
assistance to his co-conspirators by being present at the commission of the crime, or by exerting moral
ascendancy over the other co-conspirators. Stated otherwise, it is not essential that there be proof of
the previous agreement and decision to commit the crime; it is sufficient that the malefactors acted in
concert pursuant to the same objective.47 (Citations omitted)

Thus, it has been held that a perpetrator’s act of holding the victim’s hand while another perpetrator is
striking a blow is indicative of conspiracy, as People v. Amodia, citing People v. Manalo,48 notes:

In People v. Manalo, we declared that the act of the appellant in holding the victim’s right hand while
the latter was being stabbed constituted sufficient proof of conspiracy:

Indeed, the act of the appellant of holding the victim’s right hand while the victim was being stabbed by
Dennis shows that he concurred in the criminal design of the actual killer. If such act were separate from
the stabbing, appellant’s natural reaction should have been to immediately let go of the victim and flee
as soon as the first stab was inflicted. But appellant continued to restrain the deceased until Dennis
completed his attack.49 (Citation omitted)

In this case, petitioner averred that respondents Calilan and Lindo took hold of each of his arms while
respondent Fuentes was about to strike him with a hollow block. It is, therefore, apparent that all three
of them acted out of a common design as is indicative of a conspiracy.

We sustain the conclusion of Undersecretary Malenab-Hornilla that there is basis for prosecuting
respondents for murder in its attempted, and not in its frustrated, stage.

The stages of commission of felonies are provided in Article 6 of the Revised Penal Code:

ARTICLE 6. Consummated, Frustrated, and Attempted Felonies. — Consummated felonies, as well as

those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

Rivera v. People discussed the elements that are determinative of a felony’s having reached (only) the
attempted stage:

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offender's act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.50 (Citations
omitted)

In this case, petitioner alleged that respondents coordinated in assaulting him and that this assault
culminated in efforts to hit his head with a stone or hollow block. Had respondents been successful, they
could have dealt any number of blows on petitioner. Each of these could have been fatal, or, even if not
individually so, could have, in combination, been fatal. That they were unable to inflict fatal blows was
only because of the timely arrival of neighbors who responded to the calls for help coming from
petitioner and witnesses Marcelo Maaba, Lauro M. Agulto, and Gregoria F. Pablo.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The August 19, 2011 Decision and the
February 21, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 113116 are REVERSED and SET
ASIDE. The September 2, 2009 Resolution rendered by former Department of Justice Undersecretary
Linda L. Malenab-Homilla is REINSTATED.

The Provincial Prosecutor of Laguna is directed to enforce the same September 2, 2009 Resolution with
dispatch.

SO ORDERED.

G.R. No. 205472

AMADO I. SARAUM,1 Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to reverse the
Decision2dated September 8, 2011 and Resolution3 elated December 19, 2012 of the Court of
Appeals (CA) in CAG. R. CEB CR No. 01199, which affirmed the judgment of conviction against petitioner
Amado I. Saraum (Saraum) rendered by the Regional Trial Court (RTC), Branch 57, Cebu City, in Criminal
Case No. CBU-77737.

Saraum was charged with violation of Section 12, Article II (Possession of Paraphernalia for Dangerous
Drugs) of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002. The
accusatory portion of the Information reads:

That on or about the 17th day of August, 2006, at about 12:45 A.M., in the City of Cebu, Philippines and
within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, and without
being authorized by law, did then and there have in his possession the following:

1 = One (1) lighter

2 = One (1) rolled tissue paper

3 = One (1) aluminum tin foil

which are instruments and/or equipments (sic) fit or intended for smoking, consuming, administering,
ingesting, or introducing any dangerous drug into the body.

CONTRARY TO LAW.4

In his arraignment, Saraum, with the assistance of a counsel, pleaded not guilty to the offense
charged.5 Trial ensued. Meantime, Saraum was released on bail.6

PO3 Jeffrey Larrobis and PO1 Romeo Jumalon testified for the prosecution while the defense presented
no witness other than Saraum.

According to the prosecution, on August 17, 2006, a telephone call was received by PO3 Larrobis
regarding the illegal drug activities in Sitio Camansi, Barangay Lorega, Cebu City. A buy-bust team was
then formed composed of PO3 Larrobis, PO1 Jumalon, PO2 Nathaniel Sta. Ana, PO1 Roy Cabahug, and
PO1 Julius Aniñon against a certain "Pata." PO2 Sta. Ana was designated as the poseur-buyer
accompanied by the informant, PO1 Jumalon as the back-up of PO2 Sta. Ana, and the rest of the team as
the perimeter security. PO1 Aniñon coordinated with the Philippine Drug Enforcement Agency (PDEA)
regarding the operation. After preparing all the necessary documents, such as the pre-operation report
and submitting the same to the PDEA, the team proceeded to the subject area.

During the operation, "Pata" eluded arrest as he tried to run towards his shanty. Inside the house, which
was divided with a curtain as partition, the buy-bust team also saw Saraum and Peter Esperanza, who
were holding drug paraphernalia apparently in preparation to have a "shabu" pot session. They
recovered from Saraum’s possession a lighter, rolled tissue paper, and aluminum tin foil (tooter). PO3
Larrobis confiscated the items, placed them in the plastic pack of misua wrapper, and made initial
markings ("A" for Saraum and "P" for Esperanza). At the police station, PO3 Larrobis marked as "AIS-08-
17-2006" the paraphernalia recovered from Saraum. After the case was filed, the subject items were
turned over to the property custodian of the Office of City Prosecutor.

By way of defense, Saraum denied the commission of the alleged offense. He testified that on the date
and time in question, he was passing by Lorega Cemetery on his way to the house of his parents-in-law
when he was held by men with firearms. They were already with "Antik" and "Pata," both of whom were
his neighbors. Believing that he had not committed anything illegal, he resisted the arrest. He learned of
the criminal charge only when he was brought to the court.

On May 5, 2009, the RTC rendered its Decision,7 the dispositive portion of which states:

WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of violation of
Section 12, Article II of R.A. 9165 and he is hereby sentenced to suffer the penalty of six (6) months and
one (1) day to two (2) years and to pay a fine of Php20,000.00 with subsidiary imprisonment in case of
insolvency.

The drug paraphernalias (sic) are ordered forfeited in favor of the government.

SO ORDERED.8

On appeal, the CA sustained the judgment of conviction; hence, this petition.

We deny.

Considering that Saraum failed to show any arbitrariness, palpable error, or capriciousness on the
findings of fact of the trial and appellate courts, such findings deserve great weight and are deemed
conclusive and binding.9 Besides, a review of the records reveals that the CA did not err in affirming his
conviction.

The elements of illegal possession of equipment, instrument, apparatus and other paraphernalia for
dangerous drugs under Section 12, Article II of R.A. No. 9165 are: (1) possession or control by the
accused of any equipment, apparatus or other paraphernalia fit or intended for smoking, consuming,
administering, injecting, ingesting, or introducing any dangerous drug into the body; and (2) such
possession is not authorized by law.10 In this case, the prosecution has convincingly established that
Saraum was in possession of drug paraphernalia, particularly aluminum tin foil, rolled tissue paper, and
lighter, all of which were offered and admitted in evidence.

Saraum was arrested during the commission of a crime, which instance does not require a warrant in
accordance with Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure.11 In arrest in
flagrante delicto, the accused is apprehended at the very moment he is committing or attempting to
commit or has just committed an offense in the presence of the arresting officer. To constitute a valid in
flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt
act indicating that he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the arresting officer.12

Here, the Court is unconvinced with Saraum’s statement that he was not committing a crime at the time
of his arrest. PO3 Larrobis described in detail how they were able to apprehend him, who was then
holding a disposable lighter in his right hand and a tin foil and a rolled tissue paper in his left
hand,13 while they were in the course of arresting somebody. The case is clearly one of hot pursuit of
"Pata," who, in eluding arrest, entered the shanty where Saraum and Esperanza were incidentally
caught in possession of the illegal items. Saraum did not proffer any satisfactory explanation with regard
to his presence at the vicinity of the buy-bust operation and his possession of the seized items that he
claims to have "countless, lawful uses." On the contrary, the prosecution witnesses have adequately
explained the respective uses of the items to prove that they were indeed drug paraphernalia.14 There
is, thus, no necessity to make a laboratory examination and finding as to the presence or absence of
methamphetamine hydrochloride or any illegal substances on said items since possession itself is the
punishable act.

The valid warrantless arrest gave the officers the right to search the shanty for objects relating to the
crime and seize the drug paraphernalia they found.1âwphi1 In the course of their lawful intrusion, they
inadvertently saw the various drug paraphernalia. As these items were plainly visible, the police officers
were justified in seizing them. Considering that Saraum’s arrest was legal, the search and seizure that
resulted from it were likewise lawful. The various drug paraphernalia that the police officers found and
seized in the shanty are, therefore, admissible in evidence for having proceeded from a valid search and
seizure. Since the confiscated drug paraphernalia are the very corpus delicti of the crime charged, the
Court has no choice but to sustain the judgment of conviction.

Even if We consider the arrest as invalid, Saraum is deemed to have waived any objection thereto when
he did not raise the issue before entering his plea. "The established rule is that an accused may be
estopped from assailing the legality of his arrest if he failed to move for the quashing of the Information
against him before his arraignment. Any objection involving the arrest or the procedure in the court's
acquisition of jurisdiction over the person of an accused must be made before he enters his plea;
otherwise the objection is deemed waived."15 In this case, counsel for Saraum manifested its objection
to the admission of the seized drug paraphernalia, invoking illegal arrest and search, only during the
formal offer of evidence by the prosecution.16

In ascertaining the identity of the illegal drugs and/or drug paraphernalia presented in court as the ones
actually seized from the accused, the prosecution must show that: (a) the prescribed procedure under
Section 21(1), Article II of R.A. No. 9165 has been complied with or falls within the saving clause
provided in Section 21(a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No.
9165;17 and (b) there was an unbroken link (not perfect link) in the chain of custody with respect to the
confiscated items.18

Although Section 21(1) of R.A. No. 9165 mandates that the apprehending team must immediately
conduct a physical inventory of the seized items and photograph them, non-compliance therewith is not
fatal as long as there is a justifiable ground and as long as the integrity and the evidentiary value of the
confiscated/seized items are properly preserved by the apprehending team.19 While nowhere in the
prosecution evidence show the "justifiable ground" which may excuse the police operatives involved in
the buy-bust operation from making the physical inventory and taking a photograph of the drug
paraphernalia confiscated and/or seized, such omission shall not render Saraum's arrest illegal or the
items seized/confiscated from him as inadmissible in evidence. Said "justifiable ground" will remain
unknown in the light of the apparent failure of Saraum to specifically challenge the custody and
safekeeping or the issue of disposition and preservation of the subject drug paraphernalia before the
trial court. He cannot be allowed too late in the day to question the police officers' alleged non-
compliance with Section 21 for the first time on appeal.20

The chain of custody rule requires the identification of the persons who handled the confiscated items
for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug
paraphernalia from the time they were seized from the accused until the time they are presented in
court.21 Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002, implementing R.A. No.
9165, defines chain of custody as follows:
Chain of Custody means the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in
court for destruction. Such record of movements and custody of seized item shall include the identity
and signature of the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and use in court as evidence, and the
final disposition.

In Mallillin v. People,22 the Court discussed how the chain of custody of seized items should be
established, thus:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness’ possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.23

While the procedure on the chain of custody should be perfect and unbroken, in reality, it is almost
always impossible to obtain an unbroken chain.24 Thus, failure to strictly comply with Section 21(1),
Article II of R.A. No. 9165 does not necessarily render an accused person's arrest illegal or the items
seized or confiscated from him inadmissible.25

x x x Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the
issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted
subject only to the evidentiary weight that will be accorded it by the courts. x x x

We do not find any provision or statement in said law or in any rule that will bring about the non-
admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic
Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility,
but of weight - evidentiary merit or probative value - to be given the evidence. The weight to be given by
the courts on said evidence depends on the circumstances obtaining in each case.26

The most important factor is the preservation of the integrity and evidentiary value of the seized
items.27 In this case, the prosecution was able to demonstrate that the integrity and evidentiary value of
the confiscated drug paraphernalia had not been compromised because it established the crucial link in
the chain of custody of the seized items from the time they were first discovered until they were
brought to the court for examination. Even though the prosecution failed to submit in evidence the
physical inventory and photograph of the drug paraphernalia, this will not render Saraum's arrest illegal
or the items seized from him inadmissible. There is substantial compliance by the police as to the
required procedure on the custody and control of the confiscated items. The succession of events
established by evidence and the overall handling of the seized items by specified individuals all show
that the evidence seized were the same evidence subsequently identified and testified to in open court.
Certainly, the testimonies of the police officers who conducted the buy-bust operation are generally
accorded full faith and credit in view of the presumption of regularity in the performance of official
duties and especially so in the absence of ill-motive that could be attributed to them.28 The defense
failed to show any odious intent on the part of the police officers to impute such a serious crime that
would put in jeopardy the life and liberty of an innocent person.29 Saraum’s mere denial cannot prevail
over the positive and categorical identification and declarations of the police officers. The defense of
denial, frame-up or extortion, like alibi, has been invariably viewed by the courts with disfavor for it can
easily be concocted and is a common and standard defense ploy in most cases involving violation of the
Dangerous Drugs Act.30 As evidence that is both negative and self-serving, this defense cannot attain
more credibility than the testimonies of prosecution witnesses who testify clearly, providing thereby
positive evidence on the various aspects of the crime committed.31 To merit consideration, it has to be
substantiated by strong, clear and convincing evidence, which Saraum failed to do for presenting no
corroborative evidence.32

Settled is the rule that, unless some facts or circumstances of weight and influence have been
overlooked or the significance of which has been misinterpreted, the findings and conclusion of the trial
court on the credibility of witnesses are entitled to great respect and will not be disturbed because it has
the advantage of hearing the witnesses and observing their deportment and manner of testifying.33 The
rule finds an even more stringent application where said findings are sustained by the CA as in this
case.34 In this case, the quantum of evidence necessary to prove Saraum 's guilt beyond reasonable
doubt had been sufficiently met since the prosecution stood on its own strength and did not rely on the
weakness of the defense. 'The prosecution was able to overcome the constitutional right of the accused
to be presumed innocent until proven guilty.

WHEREFORE, premises considered, the petition is DENIED. The Decision elated September 8, 2011 and
Resolution dated December 19, 2012 of the Court of Appeals in CA-G.R. CEB CR No. 01199, which
sustained the judgment of conviction rendered by the Regional Trial Court, Branch 57, Cebu City, in
Criminal Case No. CBU-77737, is AFFIRMED.

SO ORDERED.

G.R. No. 179287

PCI JIMMY M. FORTALEZA and SPO2 FREDDIE A. NATIVIDAD, Petitioners,

vs.
HON. RAUL M. GONZALEZ in his capacity as the Secretary of Justice and ELIZABETH N. OROLA VDA. DE
SALABAS, Respondents.

x-----------------------x

G.R. No. 182090

ELIZABETH N. OROLA VDA. DE SALABAS, Petitioner,

vs.
HON. EDUARDO R. ERMITA, HON. MANUEL B. GAITE, P/INSP. CLARENCE DON GAIL, P/INSP.
JONATHAN LORILLA,1 PO3 ALLEN WINSTON HULLEZA and PO2 BERNARDO CIMATU, Respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

The consolidated petitions in the case at bar stem from the October 2, 2006 Resolution2 of Secretary of
Justice Raul Gonzalez, ordering the Provincial Prosecutor of Negros Oriental to file an amended
Information for Kidnapping and Murder against the following persons:

1. P/lnsp. Clarence Dongail;

2. Manolo G. Escalante;

3. Ronnie Herrera;

4. SP02 Freddie Natividad;

5. SP04 Jimmy Fortaleza;

6. July ("Kirhat" Dela Rosa) Flores;

7. Carlo "Caloy" De Los Santos;

8. POl Bernardo Cimatu;

9. PO2 Allen Winston Hulleza;

10. Insp. Jonathan Laurella;

11. Lorraine "Lulu" Abay;

12. Manerto Cafiete;

13. Elma Cafiete

14. Elson Cafiete; and

15. Jude Montilla3

From this Resolution, Jimmy Fortaleza and Freddie Natividad filed a Petition for Certiorari with the
Court of Appeals, while Clarence Dongail, Jonathan Lorilla, Allen Winston Hulleza, and Bernardo
Cimatu appealed to the Office of the President. When the Court of Appeals dismissed4 the Petition
for Certiorari, Fortaleza and Natividad filed a Petition for Review with this Court, which was docketed as
G.R. No. 179287. The Office of the President, on the other hand, set aside the October 2, 2006
Resolution of the Department of Justice. To assail this Decision5dated September 19, 2007 and the
subsequent Resolution6 dated January 9, 2008 denying her Motion for Reconsideration, complainant
Elizabeth Orola-Salabas filed a Petition for Certiorari with this Court which was docketed as G.R. No.
182090.

The procedural antecedents of the case are as follows:

Maximo Lomoljo, Jr., Ricardo Suganob, and Eleuterio Salabas were allegedly kidnapped in Bacolod City
on August 31, 2003. A few days later, their dead' bodies were found in different places in Negros
Oriental. Several criminal complaints were filed in relation to this incident. The first was filed
against Police Inspector (P/Insp.) Clarence Dongail alias Dodong and fifteen other John Does before the
Bacolod City Prosecution Office. Investigating Prosecutor Rosanna V. Saril-Toledano issued a Resolution
dated October 24, 2003 dismissing the complaint for lack of probable cause.

On October 16, 2003, Elizabeth Orola-Salabas, wife of Eleuterio, filed an Amended Criminal Complaint
against P/Insp. Dongail, Manolo Escalante and fifteen other John Does for Kidnapping with Murder
before the Municipal Trial Court (MTC) of Guihulngan, Negros Oriental. The complaint was docketed as
Criminal Case No. 10-03 437. However, on January 13, 2004, the MTC issued a Resolution7 dismissing the
Amended Criminal Complaint for lack of factual and legal merit.

On March 1, 2004, Orola-Salabas filed another Amended Affidavit Complaint for Kidnapping with
Murder before the Negros Oriental Provincial Prosecution Office against P/Insp. Dongail, Ramonita
Estanislao, Manolo Escalante, Ronnie Herrera, Senior Police Officer (SPO) 2 Freddie Natividad, PCI
Jimmy Fortaleza, Police Officer (PO) 1 Bernardo Cimatu, PO2 Allen Winston Hulleza, Insp. Jonathan
Lorilla, SPO1 Agustilo Hulleza, Jr., Lorraine Abay, July Flores, Carlo de los Santos, Mamerto Cañete, Elma
Cañete, Bruno Cañete, Elson Cañete and Warlito Cañete. The Complaint was docketed as I.S. Case No.
2004-78. On August 9, 2004, Asst. Provincial Prosecutor Joseph A. Elmaco issued a Resolution finding
probable cause against P/Insp. Dongail and Ramonita Estanislao and "15 other 'John Does' for the death
of victim Eleuterio Salabas." The case against respondents Manolo Escalante, Ronnie Herrera, SPO2
Freddie

Natividad, SPO4 Jimmy Fortaleza, POl Bernard Cimatu, PO2 Allen Winston Hulleza, Inspector Jonathan
Lorilla, SPOl Agustilo (SOLA) Hulleza, Jr., Lorraine 'Lulu' Abay, July 'Kirhat' Flores, Carlos de los Santos,
Mamerto Cafiete, Elma Cafiete, Bruno Cafiete, Elson Cafiete, and Warlito Cafiete were dismissed for
insufficiency of evidence.

P/Insp. Dongail filed a Motion for Reconsideration. On October 1, 2004, Asst. Provincial Prosecutor
Elmaco issued an Order discharging P/Insp. Dongail from the criminal complaint. An Information for
Kidnapping with Murder was thereafter filed against Ramonita Estanislao and fifteen John Does before
the Regional Trial Court of Guihulngan, Negros Oriental. The case was assigned to Branch 64 and
docketed as Crim. Case No. 04-094-G.

On December 2, 2004, Orola-Salabas filed an Urgent Motion for Reinvestigation, praying for the
inclusion in the Information of P/Insp. Dongail, Manolo Escalante, Ronnie Herrera, SPO2 Freddie
Natividad, PCI Jimmy Fortaleza, POl Bernardo Cimatu, PO2 Allen Winston Hulleza, Insp. Jonathan
Lorilla, SPOl Agustilo Hulleza, Jr., Lorraine Abay, July Flores, Carlo de los Santos, Mamerto Cañete, Elma
Cañete, Bruno Cañete,

Elson Cañete, and Warlito Cañete. The RTC issued an Order directing Asst. Provincial Prosecutor
Macarieto I. Trayvilla to conduct the reinvestigation.

On December 13, 2004, the Department of Justice sent a letter directing the Negros Oriental Provincial
Prosecution Office to forward the records of I.S. Case No. 2004-78 to the DOJ for automatic review.
On December 28, 2004, the Negros Oriental Provincial Prosecution Office, without conducting a
reinvestigation, issued a Resolution affirming in toto the August 9, 2004 and October 1, 2004 Resolutions
of Asst. Provincial Prosecutor Joseph A. Elmaco.

On January 24, 2005, Orola-Salabas filed an Urgent Motion to Compel Prosecutor Macareto I. Trayvilla
to Conduct Reinvestigation. On January 27, 2005, the RTC issued an Order granting said Motion. Upon
the failure of Prosecutor Trayvilla to conduct the reinvestigation, Orola-Salabas filed an Urgent Motion
Directing Prosecutor Trayvilla to Explain Why He Should Not Be Cited For Contempt.

On October 2, 2006, Justice Secretary Raul Gonzalez issued the aforementioned Resolution modifying
the August 9, 2004 resolution of the Negros Oriental Provincial Prosecution Office (which found
probable cause against P/lnsp. Dongail and Estanislao only and dismissed the case against the other
respondents). The dispositive portion of the Resolution of the Secretary of Justice states:

WHEREFORE, premises considered, the assailed resolution is hereby MODIFIED. The Provincial
Prosecutor of Negros Oriental is hereby ordered to file an amended Information for Kidnapping with
Murder against the following respondents: P/INSP. CLARENCE DONGAIL, MANOLO G. ESCALANTE,
RONNIE HERRERA, SPO2 FREDDIE NATIVIDAD, SP04 JIMMY FORTALEZA, JULY ("Kirhat" dela Rosa)
FLORES, CARLO "Caloy" DE LOS SANTOS, POl BERNARDO CIMATU, PO2 ALLEN WINSTON HULLEZA, INSP.
JONATHAN [LORILLA], LORRAINE "LULU" ABA Y, MANERTO, ELMA, ELSON ALL SURNAME(D) CANETE, and
JUDE MONTILLA and report the action taken within ten (10) days from receipt hereof. 8

PCI Jimmy Fortaleza and SPO2 Freddie Natividad filed a Petition for Certiorari under Rule 65 with the
Court of Appeals challenging the October 2, 2006 Resolution of the Secretary of Justice on the following
grounds: (1) the Secretary of Justice erred in entertaining the case despite the fact that complainant
Orola-Salabas did not file a Petition for Review; (2) the August 9, 2004 resolution of the Negros Oriental
Provincial Prosecution Office had already become final; and (3) PCI Jimmy Fortaleza and SPO2 Freddie
Natividad were not informed of the alleged Petition for Review. The Petition was docketed as CA-G.R.
CEB-SP No. 02203.

In the meantime, PS/lnsp. Clarence Dongail, P/lnsp. Jonathan Laurella, PO3 Allen Winston
Hulleza and PO2 Bernardo Cimatu appealed the same October 2, 2006 Resolution of the Secretary of
Justice before the Office of the President. The appeal was docketed as O.P. Case No. 06-J-380.

On August 16, 2007, the Court of Appeals rendered its Decision dismissing the Petition for Certiorari for
lack of merit. The appellate court held that the Secretary of Justice has the power of supervision and
control over prosecutors and therefore can motu proprio take cognizance of a case pending before or
resolved by the Provincial Prosecution Office. The Court of Appeals also noted that the power of
supervision and control over prosecutors applies not only in the conduct of the preliminary
investigation, but also in the conduct of the reinvestigation. Pursuant to the Order of the RTC ordering
reinvestigation, it is clear that the reinvestigation stage has not been terminated, and the power of
control of the Secretary of Justice, allowing it to act on the reinvestigation motu proprio, continues to
apply. Finally, since the case involves the exercise of the Secretary of Justice's power of control and does
not involve a Petition for Review, the requirement of furnishing copies of said Petition for Review to the
respondents do not apply in the case at bar.
PCI Jimmy Fortaleza and SPO2 Freddie Natividad filed with this Court a Petition for Review under Rule
45 challenging the August 16, 2007 Decision of the Court of Appeals. The Petition was docketed as G.R.
No. 179287.

On September 19, 2007, the Office of the President, through Executive Secretary Eduardo Ermita,
rendered its Decision in O.P. Case No. 06-J-380 setting aside the October 2, 2006 Resolution of the
Secretary of Justice. The pertinent portions of the Decision read:

Even if the DOJ has the power of control and supervision over its provincial prosecutor and any decision
rendered by the latter may be reviewed by the former, there is yet no new decision in this case to be
reviewed. The second investigation has yet to be commenced by the provincial prosecutor when the
DOJ ordered the transmittal of the case for its automatic review. At the outset, DOJ's Resolution of 02
October 2006 was in defiance of the order of the court which had already acquired jurisdiction over the
case. Besides, the DOJ should have exercised its automatic power of review after the October 1, 2004
Resolution of the Provincial Prosecutor of Negros Oriental and not after the proper Information was
filed with court and the latter has properly acquired its jurisdiction over the case.

xxxx

WHEREFORE, premises considered, the 02 October 2006 Resolution of the Department of Justice is
hereby set aside. The Provincial Prosecutor of Negros Oriental is hereby directed to comply with the
January 27, 2005 Order of the Regional Trial Court of Guihulngan, Negros Oriental and to immediately
proceed with the reinvestigation of the case. 9

On January 9, 2008, the Office of the President, through Deputy Executive Secretary Manuel B. ·Gaite,
denied Orola-Salabas's Motion for Reconsideration. 10

On March 31, 2008, Orola-Salabas filed with this Court a Petition for Certiorari assailing the Decision
dated September 19, 2007 and Resolution dated January 9, 2007 of the Office of the President. The
Petition was docketed as G.R. No. 182090.

On April 30, 2008, this Court issued a Resolution11 in G.R. No. 179287 denying the Petition for Review for
failure of petitioners to sufficiently show that the Court of Appeals committed any reversible error in the
challenged decision as to warrant the exercise of this Court's appellate jurisdiction.

On June 2, 2008, this Court resolved to consolidate G.R. No. 179287 with G.R. No. 182090.12

PCI Jimmy Fortaleza and SPO2 Freddie Natividad did not file a Motion for Reconsideration of this
Court's April 30, 2008 Resolution denying the Petition in G.R. No. 179287. Consequently, said Resolution
of this Court has become final and executory. We shall therefore proceed to rule on the Petition in G.R.
No. 182090.

In her Petition for Certiorari, Orola-Salabas assail the September 19, 2007 Decision and January 9, 2008
Resolution of the Office of the President on the following grounds:

PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION IN PROCEEDING WITH THE APPEAL AFTER THE REGIONAL TRIAL COURT HA[D] ACQUIRED
JURISDICTION OVER THE CASE, AN ACT WHICH [WA]S CLEARLY AND UNMISTAKABLY OUTSIDE THEIR
POWERS AS IT CONSTITUTE AN ENCROACHMENT UPON JUDICIAL POWER.

II

PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION IN DISREGARDING THE DECISION OF
THE COURT OF APPEALS UPHOLDING THE POWER AND AUTHORITY OF THE SECRETARY OF JUSTICE IN
ISSUING HIS RESOLUTION INDICTING PRIVATE RESPONDENTS OF THE CRIME CHARGED.13

Orola-Salabas assert the settled doctrine in the leading case of Crespo v. Mogul14 that:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. The determination of the case
is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should
be addressed to the Court who has the 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.

Thus, according to Orola-Salabas, when the Informations were filed by the Provincial Prosecutor of
Negros Oriental in the RTC of Guihulngan City, Negros Oriental, Branch 64, in compliance with the
October 2, 2006 Resolution of the Secretary of Justice, the RTC acquired jurisdiction over the case to the
exclusion of all other courts or agencies.

We disagree with petitioner on this point. In People v. Espinosa, 15 we stressed that the court does not
lose control of the proceedings by reason of a reinvestigation or review conducted by either the DOJ or
the Office of the President. On the contrary, the court, in the exercise of its discretion, may grant or
deny a motion to dismiss based on such reinvestigation or review:

Under Section 11 (c) of Rule 116 of the Rules of Court, the arraignment shall be suspended for a period
not exceeding 60 days when a reinvestigation or review is being conducted at either the Department of
Justice or the Office of the President. However, we should stress that the court does not lose control of
the proceedings by reason of such review. Once it had assumed jurisdiction, it is not handcuffed by any
resolution of the reviewing prosecuting authority. Neither is it deprived of its jurisdiction by such
resolution. The principles established in Crespo v. Mogul still stands, as follows:

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal
or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the
Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the
merits proceed for the proper determination of the case. 16

In her second Assignment of Error, Orola-Salabas claims that the Office of the President, through
Executive Secretary Ermita and Deputy Executive Secretary Gaite, acted in grave abuse of discretion in
issuing the assailed September 19, 2007 Decision and January 9, 2008 Resolution as it disregarded the
August 16, 2007 Decision of the Court of Appeals which, incidentally, has been affirmed by this Court in
its final and executory April 30, 2008 Resolution in G.R. No. 179287.
The second assignment of error in effect argues that the determination by the Court of Appeals on the
question of the validity of the Secretary of Justice Resolution should be considered the law of the
case and should remain established in all other steps of the prosecution process. The doctrine of the law
of the case is well settled in jurisprudence:

Law of the case has been defined as the opinion delivered on a former appeal, and means, more
specifically, that whatever is once irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law of the case, whether correct on
general principles or not, so long as the facts on which such decision was predicated continue to be the
facts of the case before the court.

The concept of law of the case is well explained in Mangold v. Bacon, an American case, thusly:

The general rule, nakedly and boldly put, is that legal conclusions announced on a first appeal, whether
on the general law or the law as applied to the concrete facts, not only prescribe the duty and limit the
power of the trial court to strict obedience and conformity thereto, but they become and remain the
law of the case in all other steps below or above on subsequent appeal. The rule is grounded on
convenience, experience, and reason. Without the rule there would be no end to criticism, reagitation,
reexamination, and reformulation. In short, there would be endless litigation. It would be intolerable if
parties litigants were allowed to speculate on changes in the personnel of a court, or on the chance of
our rewriting propositions once gravely ruled on solemn argument and handed down as the law of a
given case. An itch to reopen questions foreclosed on a first appeal would result in the foolishness of the
inquisitive youth who pulled up his com to see how it grew. Courts are allowed, if they so choose, to act
like ordinary sensible persons. The administration of justice is a practical affair. The rule is a practical
and a good one of frequent and beneficial use. 17

The doctrine of the law of the case applies even if the prior resort to the appellate court is in
a certiorari proceeding, 18 as in the case at bar. If this doctrine were to be applied, the previous opinion
by the Court of Appeals - that the October 2, 2006 Resolution of the Secretary of Justice was valid should
govern on subsequent appeal.

However, the doctrine of the law of the case requires that the appeal be that of the same parties, and
that the pronouncement by the appellate court be with full opportunity to be heard accorded to said
parties:

The doctrine of law of the case simply means, therefore, that when an appellate court has once declared
the law in a case, its declaration continues to be the law of that case even on a subsequent appeal,
notwithstanding that the rule thus laid down may have been reversed in other cases. For practical
considerations, indeed, once the appellate court has issued a pronouncement on a point that was
presented to it with full opportunity to be heard having been accorded to the parties, the
pronouncement should be regarded as the law of the case and should not be reopened on remand of
the case to determine other issues of the case, like damages. But the law of the case, as the name
implies, concerns only legal questions or issues thereby adjudicated in the former appeal. 19

G.R. No. 179287 and G.R. No. 182090 do not, however, involve the same parties. Of the fifteen persons
required by the October 2, 2006 Resolution of the Secretary of Justice to be included in the Information
for Kidnapping and Murder, only Jimmy Fortaleza and Freddie Natividad filed a Petition
for Certiorari with the Court of Appeals, were heard thereon, and whose arguments were considered in
the Resolution dated April 30, 2008 in G.R. No. 179287. Clarence Dongail, Jonathan Lorilla, Allen
Winston Hulleza and Bernardo Cimatu, on the other hand, appealed to the Office of the President, and
are the parties in G.R. No. 182090, to the exclusion of Jimmy Fortaleza and Freddie Natividad and the
other respondents. The doctrine of the law of the case does not, therefore, apply here in G.R No.
182090.

Corollary thereto, however, the Office of the President cannot order the reinvestigation of the charges
with respect to Jimmy Fortaleza, Freddie Natividad, and the nine other accused who did not participate
in the appeal before the Office of the President, namely: Jimmy Fortaleza, Freddie Natividad, Manolo G.
Escalante, Ronnie Herrera, July ("Kirhat" Dela Rosa) Flores, Carlo "Caloy" De Los Santos, Lorraine "Lulu"
Abay, Manerto Cafiete, Elma Cafiete, Elson Cafiete, and Jude Montilla. Due process prevents the grant of
additional awards to parties who did not appeal20 or who resorted to other remedies and such
additional award constitutes grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the Office of the President.

On a more substantive point, we cannot adhere to the position of the Office of the President that
the entire case should be remanded to the Provincial Prosecutor of Negros Oriental on the ground that
the Secretary of Justice may not exercise its power to review where there was allegedly no new
resolution rendered by the local prosecutor. As can be gleaned from the records, the Secretary of Justice
conducted an automatic review of the Provincial Prosecutor's affirmance of former resolutions issued by
previous investigating prosecutors without conducting an actual reinvestigation of the case.

It is established in jurisprudence that the Secretary of Justice has the statutory power of control and
supervision over prosecutors.1âwphi1 In the recent case of Department of Justice v. Alaon,21 we
reiterated that:

There is no quarrel about the Secretary of Justice's power of review over the actions of his subordinates,
specifically public prosecutors. This power of review is encompassed in the Secretary of Justice's
authority of supervision and control over the bureaus, offices, and agencies under him, subject only to
specified guidelines.

Chapter 7, section 38, paragraph 1 of Executive Order No. 292 or The Administrative Code of 1987,
defines the administrative relationship that is supervision and control:

SECTION 38. Definition of Administrative Relationships. - Unless otherwise expressly stated in the Code
or in other laws defining the special relationships of particular agencies, administrative relationships
shall be categorized and defined as follows:

(1) Supervision and Control. - Supervision and control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the performance of
duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of
subordinate officials or units; determine priorities in the execution of plans and programs; and
prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in
the specific law governing the relationship of particular agencies, the word "control" shall encompass
supervision and control as defined in this paragraph.
In Noblejas v. Judge Salas, we defined control as the power (of the department head) to alter, modify or
nullify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. The power of control implies the right of the
President (and, naturally, of his alter ego) to interfere in the exercise of such discretion as may be vested
by law in the officers of the national government, as well as to act in lieu of such officers. (Citations
omitted.)

Moreover, Section 4, Rule 112 of the Rules of Court recognizes the Secretary of Justice's power to
review the actions of the investigating prosecutor, even motu proprio, to wit:

SECTION 4. Resolution of Investigating Prosecutor and its Review. - If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify
under oath in the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an opportunity to submit
controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable
by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within
ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct another assistant prosecutor or state prosecutor to do
so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied.)

Verily, the Secretary of Justice was empowered to review the actions of the Provincial Fiscal during the
preliminary investigation or the reinvestigation. We note by analogy, however, that in Department of
Justice v. Alaon, the Court declared that respondents should be given due notice of the review
proceedings before the Secretary of Justice and be afforded adequate opportunity to be heard therein.

In the case at bar, we find that there is nothing on record to show that respondents were given notice
and an opportunity to be heard before the Secretary of Justice. For this reason, we remand the case to
the Secretary of Justice with respect to respondents Dongail, Lorilla, Hulleza, and Cimatu for further
proceedings, with the caveat that any resolution of the Secretary of Justice on the matter shall be
subject to the approval of the trial court.

WHEREFORE, the Decision of the Office of the President dated September 19, 2007 and its Resolution
dated January 9, 2008 are hereby SET ASIDE. The case is REMANDED to the Secretary of Justice for
further proceedings with respect to respondents Clarence Dongail, Jonathan Lorilla, Allen Winston
Hulleza and Bernardo Cimatu.

No pronouncement as to costs.

SO ORDERED.