Republic of the Philippines

Department of Justice
OFFICE OF THE CITY PROSECUTOR
Makati City

MICHELE PONZI y FRANCISCO,

Complainant,

- versus - NPS No. XV-05-INV-17E-1507

For: Physical injuries and
Slander

MARUHOM MAMYO y
MACADATU
Respondent.
x-----------------------------------------------------------------------------------------x

COUNTER-AFFIDAVIT

I, MARUHOM MAMYO y MACADATU, of legal age, Filipino

and a resident of Block 1, Lot 3, Tulip St., Pinagbuhatan, Pasig City,
hereby state under oath that:

1. Complainant Michele Ponzi y Francisco charges me with

the crime of physical injuries, presumably, under Art. 263 (serious
physical injuries), Art. 265 (less serious physical injuries), or Art. 266
(slight physical injuries) of the Revised Penal Code, and slander
under Art. 358 of the same law.

2. My counsel explained to me that the elements of the

offenses are similar except for the duration of the need for medical
attendance and/or period of incapacity:

a. that the offender has wounded, beaten, or

assaulted another; and

b. that the physical injuries inflicted shall have

caused the illness or incapacity for labor of the
injured person for:

i. more than 30 days for serious physical

injury;
 ii. ten days or more but less than 30 days
for less serious physical injury; or

iii. less than 10 days for slight physical

injury.

3. Moreover, my counsel also elucidated to me that, in order

to successfully lodge a case for slander, the following elements must
be proven:

a. There must be an imputation of a crime, or of

a vice or defect, real or imaginary, or any act,
omission, status or circumstances;

b. The imputation is made publicly;

c. The imputation must be made maliciously;

d. The imputation is directed against a natural or

juridical person or one who is dead; and

e. The imputation tends to cause dishonor,

discredit or contempt of a person or tends to
blacken the memory of one who is dead.

4. The charges against me are based on the following

allegations in the complaint:

a. That ... Marmayo came down from his

motorbike, take off his helmet and approached
me (sic) ... (cf. par. 5 of the Affidavit of
Complaint dated May 2, 2017);

b. That, while my attention was in the young

vendor ... Marmayo suddenly punched me in
my left face (sic) ... (cf. par. 6 of the Affidavit of
Complaint dated May 2, 2017);

c. That, I was not able to defend myself because

they attacking me from different angle and
punched me my back and head and face more
or less 6 times. They stopped only in attacking
me when the four Barangay personnel
wearing yellow T-shirt arrived (sic) ... (cf. par.

2
PAO-HMS
 7 of the Affidavit of Complaint dated May 2,
2017)

d. That, ... the owner Marmayo got angry and

shouting “GO AWAY, FUCK YOU, GO TO
YOUR COUNTRY, YOU WANT TO FIGHT”
(sic) ... (cf. par. 4 of the Affidavit of Complaint
dated May 2, 2017)

5. The charges against me are baseless.

6. First. I did not inflict any injury to complainant; hence,

the absence of the first element of the crime of physical injuries.

7. The truth of the matter is, when complainant came to my

store, he got interested in one of my goods. When he asked for a
discount, I could not give it to him because I will not be able to get a
profit. Complainant then got frustrated and started shouting at me. I
just ignored him thinking that he will just go away because I do not
want to scare away possible customers in the area.

8. Complainant, however, did not leave. Instead, he

shouted, "Fuck you Muslims." I am attaching copies of affidavits of my
witnesses to prove that complainant made such statement.

9. Not contented with shouting and cursing us, complainant

started to get violent. When he approached me, I pushed him back in
order to protect myself.

10. It is true that complainant and I got involved into a

heated argument thereafter but my wife rushed to my side and
restrained me from doing anything against complainant. I am
attaching a copy of my wife's affidavit as proof thereof.

11. When I was pulled away by my wife from complainant,

that is when complainant got more violent and angry. This caused
other Muslims earning a living to approach complainant in order to
pacify him.

12. Instead, complainant turned his anger at the other

Muslims, shouting at them and shoving them. The other Muslims
tried to pacify complainant. At this point in time, I was with my wife
behind my store.

3
PAO-HMS
 13. It is therefore not true that I suddenly punched
complainant's left face. As can be testified to by my wife, I was at her
side during the time when complainant was being pacified.

14. Second. Complainant did not sustain any injury; hence,

the absence of the second element of the crime of physical injuries.

15. To prove his alleged injury, complainant attached a

provisional medical certificate.

16. This very medical certificate attached to by complainant,

however, proves the imagined injury he sustained as can be gleaned
from the following:

a. the medical certificate does not show any

injury sustained by complainant;

b. to point the obvious, there is no finding of

injury to complainant's left side of his face,
contrary to his allegation that I punched him
there; and

c. the medical certificate underscored the word

"examined," consistent to the conclusion that
complainant was examined but no injury was
sustained.

17. Third. I did not shout “GO AWAY, FUCK YOU,

GO TO YOUR COUNTRY, YOU WANT TO FIGHT” at
complainant; hence, the absence of the first element of the crime
of slander.

18. For the crime of slander to attach, there must be an

imputation of a crime, vice, defect, act, omission, condition,
status or circumstance. In the instant case, there was no such
imputation since it was only complainant, as corroborated by
my witnesses, who shouted invectives to me.

19. Fourth. Complainant failed to substantiate his allegations;

hence, the complaint must be dismissed.

20. As explained to me by my counsel, bare allegations,

unsubstantiated by concrete evidence, are not equivalent to proof.
(Domingo vs. Robles, G.R. No. 153753, March 18, 2005)

4
PAO-HMS
 21. In this case, other than complainant's bare allegations, he
provided this Honorable Office no other proof to substantiate his
statements (e.g., affidavit of other persons who has personal
knowledge of the alleged incident, etc.) Other proof, assuming the
existence of any, submitted hereafter is therefore only a mere
afterthought and must not be considered by this Office.

22. In view of the foregoing, I humbly request the dismissal

of the instant complaint against me, which is clearly malicious. As I
was made to understand by my counsel, "the purpose of preliminary
investigation is not only to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been
committed and the respondent therein is probably guilty thereof ...
[but also] for the purpose of securing the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the trouble, expense
and anxiety of a public trial. (Okabe v. Judge Gutierrez, G.R. No.
150185, May 27, 2004; Emphasis supplied.)

23. I attest to the truthfulness of my statements herein, and,

with reservation to file other appropriate actions, civil or criminal, I
respectfully pray that the instant charge against me for physical
injuries be DISMISSED.

MARUHOM M. MAMYO
Affiant

Assisted by:

Public Attorney’s Office (PAO)

CERTIFICATION

SUBSCRIBED AND SWORN TO before me this 21st day of June

2017, by affiant. I certify that I personally examined the affiant and
that I am satisfied that he voluntarily executed and understood his
Counter-Affidavit.

5
PAO-HMS
 HON. BENJAMIN S. VERMUG, JR.
Senior Assistant City Prosecutor

6
PAO-HMS