Republic oI the Philippines

Supreme Court
Manila

THIRD DIVISION


NRIQU V. VIUD II,
Petitioner,




-versus-




TH COURT OF APPALS
and
HON. BASILIO R. GABO, 1R.,
in his capacity as Presiding Judge oI
Branch 11, Regional Trial Court,
Malolos, Bulacan,
Respondents.

G.R. No. 152889


Present:

YNARES-
SANTIAGO, J.,
Chairperson,
CARPIO,
*

CORONA,
**

NACHURA, and
PERALTA, JJ.



Promulgated:

June 5, 2009

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


D C I S I O N

PRALTA, .


This is a petition Ior review on .ertiorari under Section 1, Rule 45 oI the
1997 Rules oI Civil Procedure, with prayer Ior the issuance oI a temporary
restraining order and/or writ oI preliminary injunction oI the Decision
|1|
oI the
Court oI Appeals (CA) in CA-G.R. SP No. 67115 dismissing the petition
Ior .ertiorari Iiled by herein petitioner against Judge Basilio R. Gabo, Jr., in his
capacity as Presiding Judge oI Branch 11, Regional Trial Court (RTC) oI Malolos,
Bulacan.

The Iactual and procedural antecedents are as Iollows

Honorato Galvez and his driver were Iatally shot on June 9, 2000
in Barangay San Juan, San IldeIonso, Bulacan. On June 26, 2000, a complaint Ior
the alleged murder oI the said victims was Iiled by the 303
rd
Philippine National
Police Criminal Investigation Division (PNP CID) Team with the OIIice oI the
Provincial Prosecutor against the Iollowing Cirilo de la Cruz, Guilberto Chico,
Edmund Fernando, two persons named Ronald and Gerry, three (3) John Does, and
Eulogio Villanueva. Likewise, on July 14, 2000, a complaint Ior murder against
petitioner Enrique Viudez II was Iiled by Estrella Galvez, widow oI Mayor
Honorato Galvez, Ior the killing oI the latter and his driver.
|2|


On March 31, 2001, a Resolution was issued by the Investigating State
Prosecutor Iinding probable cause to indict the petitioner and others Ior the crime
oI murder. On September 19, 2001, two (2) InIormations
|3|
Ior murder were Iiled
with the RTC oI Malolos, Bulacan, which then issued warrants oI arrest on the
same day.
|4|


On September 21, 2001, petitioner Iiled a Motion to Suspend
Proceedings and to Suspend the Implementation
oI the Warrant oI Arrest, Pursuant to Department Circular No. 70 oI the
Department oI Justice (DOJ)
|5|
arguing that all the accused in the said criminal
cases had Iiled a timely petition Ior review with the Secretary oI Justice and,
pursuant to Section 9
|6|
oI Department Circular No. 70, the implementation oI the
warrant oI arrest against petitioner should be suspended and/or recalled pending
resolution oI the said petition Ior review.

In an Order
|7|
dated September 28, 2001, the RTC denied
petitioner`s Motion stating that, insoIar as the implementation oI the warrant oI
arrest against petitioner was concerned, said warrant had already been issued Ior
his apprehension. The court also added that there was no way Ior it to recall the
same in the absence oI any compelling reason, and that jurisdiction over his person
had not yet been acquired by it; hence, petitioner had no personality to Iile any
pleading in court relative to the case until he was arrested or voluntarily
surrendered himselI to the court. Thus, petitioner Iiled a motion Ior
reconsideration oI the said Order, but was denied in an Order dated October 10,
2001.

ThereaIter, petitioner Iiled with the CA on October 11, 2001, a
petition Ior .ertiorari with prayer Ior the issuance oI a temporary restraining
order (TRO) and/or writ oI preliminary injuction
|8|
claiming the Iollowing

x x x The Order oI September 28, 2001 and the Order oI October 10, 2001
denying the Motion Ior Reconsideration were issued with grave abuse oI
discretion amounting to lack oI jurisdiction. This is because oI the Iollowing
reasons

(a) The Iact that the petitioner has not voluntarily
surrendered nor arrested is not a legal impediment or obstacle
to the suspension oI the implementation oI the warrant oI arrest
issued against the petitioner.

(b) Precisely, the petitioner has prayed Ior the
suspension oI the implementation oI the warrant oI arrest
because iI he is arrested or voluntarily surrenders to the Court,
the issues on the suspension oI the implementation oI the
warrant oI arrest would become moot and academic. It is Ior
this reason that the petitioner has prayed Ior the suspension oI
the implementation oI the warrant oI arrest. The petitioner is
merely availing oI his rights under the law. There would be a
waiver on the part oI the petitioner iI he surrenders to the lower
court. Meantime, he would be deprived oI his provisional
liberty pending the resolution oI his petition Ior review. The
clear intention oI Department Circular No. 70 is to suspend all
proceedings including the implementation oI the warrant oI
arrest pending resolution by the Secretary oI Justice oI the
petition Ior review.

(c) The authority oI the Secretary oI Justice to entertain
the petition Ior review even aIter the Iiling oI the inIormations
is settled. In Solar Team Entertainment, In.. v. Hon. Rolando
How, the High Court ruled, 'the authority oI the Secretary oI
Justice to review resolutions oI his subordinates even aIter an
inIormation has already been Iiled in court does not present an
irreconcilable conIlict with the 30-day period prescribed by
Section 7 oI the Speedy Trial Act.

(d) Moreover, the authority oI the Secretary oI Justice to
review resolutions oI the ChieI State Prosecutor, Provincial or
City Prosecutors is recognized by Sec. 4 oI Rule 112 oI the
Revised Rules oI Criminal Procedure.

(e) Sec. 4, Rule 112 oI the Revised Rules oI Criminal
Procedure expressly recognizes the authority and power oI the
Department oI Justice to prescribe the rules to be Iollowed in
cases oI a petition Ior review oI a resolution oI the ChieI State
Prosecutor, Provincial or City Prosecutors. The rules provide
'iI upon petition by a proper party under such rules as the
Department oI Justice may prescribe, clearly recognizing the
power oI the Secretary oI Justice to promulgate rules to be
Iollowed in petitions Ior review oI appeals Irom resolutions oI
the ChieI State Prosecutor, Provincial or City Prosecutor.

(I) Pursuant to the rule-making power oI the Secretary
oI Justice, Department Circular No. 70 was promulgated by the
Secretary oI Justice providing that 'the appellant and the trial
prosecutor shall see to it that, pending resolution oI the appeal,
the proceedings in court are held in abeyance.

(g) The implementation oI the warrant oI arrest issued
against the petitioner is part oI the proceedings in court. Since
the circular unequivocally provides that the 'proceedings in
court are held in abeyance pending resolution oI the petition
Ior review or appeal, it Iollows that the lower court committed
grave abuse oI discretion amounting to lack oI jurisdiction
when it denied the motion to suspend the implementation oI
the warrant oI arrest. There is even no opposition by the trial
prosecutor to the motion to suspend the implementation oI the
warrant oI arrest against the petitioner.
|9|



In a Resolution
|10|
dated October 16, 2001, the CA Iound that the veriIied
petition oI petitioner suIIiciently showed that unless the implementation oI the
warrants oI arrest dated September 19, 2001 in Criminal Case Nos. 2492-M-2001
and 2693-M-2001 were temporarily enjoined beIore the application Ior a writ oI
preliminary injunction could be heard on notice, great or irreparable injury would
be visited upon the petitioner, as he could momentarily be arrested and detained
upon non-bailable charges. Thus, the CA granted a TRO, commanding respondent
RTC Judge Gabo to enjoin the implementation oI the said warrants oI arrest.

Respondents RTC Judge Basilio R. Gabo, Jr., in his capacity as Presiding
Judge oI the RTC, Branch II oI Malolos, Bulacan, and the OIIice oI the Solicitor
General (OSG) argued in their Comment (with motion to liIt temporary
restraining order and opposition to the application Ior the issuance oI a writ
oI preliminary injunction)
|11|
dated November 12, 2001, that the determination oI
whether to issue a warrant oI arrest aIter the Iiling oI an inIormation was a Iunction
that was exclusively vested in respondent Judge. Respondent Judge, thereIore, was
in no way obligated to deIer the implementation oI the service oI the warrant oI
arrest simply because a petition Ior review was Iiled by petitioner beIore the
Secretary oI Justice to question the Iiling oI the inIormation against the same
petitioner. As to their Opposition to the application Ior issuance oI preliminary
injunction with motion to liIt temporary restraining order, the public respondents
contended that the issue proposed by petitioner was the mere suspension oI the
implementation oI the warrant oI arrest to await the resolution oI the Department
oI Justice; hence, respondent Judge was under no obligation to suspend the
proceedings, because the issuance oI the warrant oI arrest was his exclusive
Iunction.

On December 19, 2001, the CA promulgated its Decision
|12|
dismissing the
petition Ior .ertiorari Ior lack oI merit and Iound no whimsicality or
oppressiveness in the exercise oI the respondent Judge's discretion in issuing the
challenged Orders. The court added that, since the premise oI petitioner's
conclusion was erroneous Ior said circular and the cases cited did not make it
obligatory Ior respondent Judge to grant petitioner's motion petitioner's cause
was lost. It also stated that nowhere in the Revised Rules oI Criminal Procedure,
or in any circular oI this Court, even in any oI its decision was it ever pronounced
that when a petition Ior review oI the resolution oI the investigating prosecutor --
Iinding probable cause to indict a respondent -- is Iiled with the OIIice oI the
Secretary oI Justice, the court which earlier issued warrants oI arrest, should
suspend their enIorcement.

In an Order
|13|
dated January 9, 2002, respondent Judge ordered the issuance
oI an alias warrant oI arrest Ior the apprehension oI petitioner by virtue oI the
expiration oI the eIIectivity oI the TRO issued by the CA.

Petitioner Iiled with the CA a Motion Ior Reconsideration
|14|
dated January
3, 2002 oI the Decision dated December 19, 2001, which was eventually denied
by the same court in its Resolution
|15|
dated April 11, 2002, stating, among others,
that it Iound nothing to justiIy a modiIication, much less a reversal, oI its
judgment. The court Iurther stated that the motion Ior reconsideration had not
presented any Iresh argument or raised any new matter that would need an
extended discussion, and that the points stressed were the same as those already
discussed in the petition and other papers oI the petitioner which were Iully
considered in the decision.

Hence, the instant petition.

Petitioner claimed, among others, that the Decision oI the CA was issued
with grave abuse oI discretion amounting to lack oI jurisdiction when it ruled that
Department Circular No. 70 oI the Department oI Justice promulgated on July 3,
2000 was plainly a directive oI the Secretary oI Justice to the accused and the trial
prosecutor to ask the Court to suspend the proceedings thereon during the
pendency oI the appeal. According to petitioner, the said department circular had
the Iorce and eIIect oI law. He cited cases
|16|
wherein this Court ruled that
administrative regulations adopted pursuant to law had the Iorce and eIIect oI
law. Petitioner also pointed out that the same department circular stated that its
promulgation was in line with recent jurisprudence. Anent the prayer Ior the
issuance oI a TRO, petitioner argued that unless a TRO was issued enjoining the
implementation oI the warrant oI arrest dated September 19, 2001 and the alias
warrant oI arrest issued by virtue oI the Order oI January 9, 2002, he stood to
suIIer great and irreparable injury, as he would be deprived oI his liberty without
due process oI law.

In a Resolution
|17|
dated May 6, 2002, this Court resolved to issue the TRO
prayed Ior by petitioner and to direct respondent Judge to cease and desist Irom
implementing the warrant oI arrest dated September 19, 2001 against petitioner
and the alias warrant oI arrest issued pursuant to the Order oI January 9, 2002 in
Criminal Case Nos. 2492-M-2001 and 2493-M-2001, entitled 'People oI the
Philippines vs. Enrique V. Viudez II, et al., eIIective immediately until Iurther
orders Irom the same Court.

In its Comment
|18|
dated June 13, 2002, the OSG stated that the
determination oI whether to issue a warrant oI arrest aIter the Iiling oI an
inIormation was a Iunction that was exclusively vested in respondent
Judge. Respondent Judge, thereIore, was in no way obliged to deIer the
implementation oI the service oI the warrant simply because a petition Ior review
was Iiled by petitioner beIore the Secretary oI Justice to question the Iiling oI the
inIormation against him. The OSG Iurther argued that the respondent Judge did
not need to wait Ior the completion oI the preliminary investigation beIore issuing
a warrant oI arrest, Ior Section 4, Rule 113 oI the Rules oI Criminal Procedure
provides that the head oI the oIIice to whom the warrant oI arrest has been
delivered Ior execution shall cause the warrant to be executed within ten (10) days
Irom receipt thereoI. As an opposition to the application Ior issuance oI
preliminary injunction and as a motion to liIt the temporary restraining order, the
OSG stated that the petitioner did not challenge the Iinding oI probable cause oI
respondent Judge in the issuance oI the warrant oI arrest against him. Petitioner
simply wanted a deIerment oI its implementation by virtue oI Section 9 oI
Department Circular No. 70; hence, according to the OSG, the issuance oI the
TRO was tantamount to an abatement oI the criminal proceedings.

Petitioner, in its Opposition
|19|
to the motion to liIt temporary restraining
order dated September 5, 2002 stated that the discussion oI the evidence oI the
prosecution by the OSG was way oII the mark, because the only issue to be
resolved in the present petition was whether the implementation oI the warrant oI
arrest issued by the RTC should be suspended pending resolution by the Secretary
oI Justice oI the petition Ior review Iiled by petitioner. He also reiterated that the
liIting oI the TRO would cause grave and irreparable injury to his rights because
no bail had been recommended Ior his provisional liberty.

On September 19, 2002, petitioner Iiled a ManiIestation
|20|
inIorming this
Court that the Secretary oI Justice had already sustained his petition Ior review. A
photocopy oI the Resolution
|21|
oI the Secretary oI Justice, promulgated on
September 13, 2002, was attached to the said maniIestation, the dispositive portion
oI which reads, among others

|t|he ChieI State Prosecutor is directed to move, with leave oI court, Ior the
withdrawal oI the inIormation Ior murder (2 counts) against Mayor Enrique V.
Viudez II and Eulogio Villanueva immediately. In view oI the same resolution,
according to petitioner, the motion oI the OSG Ior the liIting oI the TRO issued
by this Court has no more legal basis and should be denied Ior lack oI merit.

In his Reply
|22|
to the Comment oI the OSG, dated November 6, 2002,
petitioner reiterated that the Secretary oI Justice had already issued a resolution on
the petition Ior review that he Iiled with the said oIIice, and that the State
Prosecutor had already Iiled with the RTC a motion to withdraw the inIormation
against him and his co-accused; hence, the instant petition may already be moot
and academic because oI the said developments.
On December 2, 2002, this Court resolved to give due course to the present
petition and required the parties to submit their respective
memoranda.
|23|
Petitioner eventually Iiled his Memorandum
|24|
dated February 4,
2003, while the OSG Iiled its Memorandum on March 24, 2003.
BeIore this Court shall delve into its disquisition on the issue propounded by
petitioner, it is worth noting that in his Memorandum
|25|
dated February 4, 2003,
petitioner reiterated that the Secretary oI Justice had already resolved the petition
Ior review and ordered the withdrawal oI the inIormations Ior murder Iiled against
the same petitioner with the RTC oI Malolos, Bulacan, ruling that there was no
probable cause Ior the Iiling oI the said inIormations. Accordingly, as contained
in the same Memorandum, the OIIice oI the State Prosecutor Iiled a Motion
|26|
to
Withdraw the InIormations, which the RTC granted on October 23,
2002.
|27|
Furthermore, in a Resolution dated May 6, 2002, this Court already
resolved to issue a TRO as prayed Ior by petitioner. These developments would
necessarily render the instant petition moot and academic; however, as implored by
petitioner, this Court will render its decision on the merits oI the case in the interest
oI justice.
The basic issue propounded by petitioner is whether a pending resolution oI
a petition Ior review Iiled with the Secretary oI Justice concerning a Iinding oI
probable cause will suspend the proceedings in the trial court, including the
implementation oI a warrant oI arrest.
Petitioner cites DOJ Department Circular No. 70, speciIically paragraph 2 oI
Section 9 thereoI, which provides that the appellant and the trial prosecutor shall
see to it that, pending resolution oI the appeal, the proceedings in court are held in
abeyance. Somehow, petitioner is oI the opinion that the suspension oI
proceedings in court, as provided in the said circular, includes the suspension oI
the implementation oI warrants oI arrest issued by the court.
Petitioner's contention is wrong.
It is well to remember that there is a distinction between the preliminary
inquiry, which determines probable cause Ior the issuance oI a warrant oI arrest;
and the preliminary investigation proper, which ascertains whether the oIIender
should be held Ior trial or be released. The determination oI probable cause Ior
purposes oI issuing a warrant oI arrest is made by the judge. The preliminary
investigation proper whether or not there is reasonable ground to believe that the
accused is guilty oI the oIIense charged is the Iunction oI the investigating
prosecutor.
|28|


As enunciated in Balta:ar v. People,
|29|
the task oI the presiding judge
when the InIormation is Iiled with the court is Iirst and Ioremost to determine the
existence or non-existence oI probable cause Ior the arrest oI the
accused. Probable cause is such set oI Iacts and circumstances as would lead a
reasonably discreet and prudent man to believe that the oIIense charged in the
InIormation or any oIIense included therein has been committed by the person
sought to be arrested. In determining probable cause, the average man weighs the
Iacts and circumstances without resorting to the calibrations oI the rules oI
evidence oI which he has no technical knowledge. He relies on common
sense. A Iinding oI probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than suspicion; it requires less than
evidence that would justiIy conviction.
|30|


The purpose oI the mandate oI the judge to Iirst determine probable cause
Ior the arrest oI the accused is to insulate Irom the very start those Ialsely charged
with crimes Irom the tribulations, expenses and anxiety oI a public trial.
|31|


The Iunction oI the judge to issue a warrant oI arrest upon the determination
oI probable cause is exclusive; thus, the consequent implementation oI a warrant oI
arrest cannot be deIerred pending the resolution oI a petition Ior review by the
Secretary oI Justice as to the Iinding oI probable cause, a Iunction that is executive
in nature. To deIer the implementation oI the warrant oI arrest would be an
encroachment on the exclusive prerogative oI the judge. It must be emphasized
that petitioner Iiled with the trial court a motion to suspend proceedings and to
suspend the implementation oI the warrant oI arrest in pursuance oI a DOJ circular,
and not a motion to quash the warrant oI arrest questioning the issuance
thereoI. Thus, there is no contest as to the validity or regularity oI the issuance oI
the warrant oI arrest. Petitioner merely wanted the trial court to deIer the
implementation oI the warrant oI arrest pending the resolution by the Secretary oI
Justice oI the petition Ior review that he Iiled citing the Iollowing directive
contained in Section 9 oI DOJ Department Circular

x x x x
The appellant and the trial prosecutor shall see to it that, pending
resolution oI the appeal, the proceedings in court are held in abeyance.
|32|



The above provision oI the Department Circular is directed speciIically at the
appellant and the trial prosecutor, giving them latitude in choosing a remedy to
ensure that the proceedings in court are held in abeyance. However,

nowhere in
the said provision does it state that the court must hold the proceedings in
abeyance. ThereIore, the discretion oI the court whether or not to suspend the
proceedings or the implementation oI the warrant oI arrest, upon the motion oI the
appellant or the trial prosecutor, remains unhindered. This is in consonance with
the earlier ruling
|33|
oI this Court that once a complaint or inIormation is Iiled in
court, any disposition oI the case as to its dismissal, or the conviction or acquittal
oI the accused, rests on the sound discretion oI the said court, as it is the best and
sole judge oI what to do with the case beIore it. In the instant case, the judge oI
the trial court merely exercised his judicial discretion when he denied petitioner's
motion to suspend the implementation oI the warrant oI arrest. Consequently, the
CA was correct when it Iound no whimsicality or oppressiveness in the exercise oI
the trial judge's discretion in issuing the challenged orders.

Neither does this Court Iind any applicability oI the cases cited by the
petitioner to the instant case.

Petitioner has put emphasis on his argument that the suspension oI the
proceedings in court, including the suspension oI the implementation oI a warrant
oI arrest pending a resolution oI an appeal by the Secretary oI Justice, is in
consonance with jurisprudence laid down by this Court in ar.elo v. Court of
Appeals,
|34|
Roberts, Jr. v. Court of Appeals,
|35|
Ledesma v. Court of
Appeals,
|36|
Dimatula. v. Jillon,
|37|
and Solar Team Entertainment, In.. v. How.
|38|


A close reading oI the Iactual antecedents in Ledesma, Solar Team
Entertainment, In.., Dimatula. and ar.elo clearly show that a common issue
among them is whether the arraignment oI an accused may be deIerred pending
resolution by the Secretary oI Justice oI a petition Ior review on the Iinding oI
probable cause, to which this Court ruled in the aIIirmative. Nowhere in the said
decisions did it state that the implementation or enIorcement oI the warrant oI
arrest was also deIerred or suspended, as herein petitioner prays Ior. Thus, as
ruled in Ledesma
|39|


Where the secretary oI justice exercises his power oI review only aIter an
inIormation has been Iiled, trial courts should deIer or suspend arraignment and
Iurther proceedings until the appeal is resolved. Such deIerment or suspension,
however, does not signiIy that the trial court is ipso fa.to bound by the resolution
oI the secretary oI justice. Jurisdiction, once acquired by the trial court, is not lost
despite a resolution by the secretary oI justice to withdraw the inIormation or to
dismiss the case.

It was also decided in Solar Team Entertainment, In..
|40|
that


Procedurally speaking, aIter the Iiling oI the inIormation, the court is in
complete control oI the case and any disposition therein is subject to its sound
discretion. The decision to suspendarraignment to await the resolution oI an
appeal with the Secretary oI Justice is an exercise oI such discretion.

The ruling in Dimatula.,
|41|
as well, reads

We do not then hesitate to rule that Judge Villon committed grave abuse oI
discretion in rushing the arraignment oI the Yabuts on the assailed inIormation
Ior homicide. Again, the State and the oIIended parties were deprived oI due
process.


And in ar.elo,
|42|
this Court enunciated that

Accordingly, we rule that the trial court in a criminal case which takes
cognizance oI an accused's motion Ior review oI the resolution oI the
investigating prosecutor or Ior reinvestigation and deIers the arraignment until
resolution oI the said motion must act on the resolution reversing the investigating
prosecutor's Iinding or on a motion to dismiss based thereon only upon prooI that
such resolution is already Iinal in that no appeal was taken thereIrom to the
Department oI Justice.


Finally, in Roberts, petitioner claimed that this Court, in the dispositive
portion oI its decision, clearly directed the deIerment oI the issuance oI the warrant
oI arrest pending resolution oI the petition Ior review by the Secretary oI Justice
when it ruled that, in the meantime, respondent Judge Asuncion was directed to
cease and desist Irom Iurther proceeding with Criminal Case No. Q-93-43198 and
to deIer the issuance oI warrants oI arrest against the petitioner. According to
petitioner, the said dispositive portion is borne out by the Iinding oI this Court that

x x x |I|t was premature Ior respondent Judge Asuncion to deny the motions to
suspend proceedings and to deIer arraignment on the Iollowing grounds

'This case is already in this Court Ior trial. To Iollow
whatever the opinion the Secretary oI Justice may have on the
matter would undermine the independence and integrity oI this
Court. This Court is still capable oI administering justice. The real
and ultimate test oI the independence and integrity oI his court is
not the Iiling oI the aIorementioned motions at that stage oI the
proceedings but the Iiling oI a motion to dismiss or to withdraw the
inIormation on a basis oI a resolution oI the petition Ior review
reversing the Joint Resolution oI the investigating
prosecutor. Once a motion to dismiss or withdraw the inIormation
is Iiled the trial judge may grant or deny it, not out oI subservience
to the Secretary oI Justice, but in IaithIul exercise oI judicial
prerogative.
|43|



However, the above observation oI petitioner is inaccurate, iI not erroneous.

What this Court adjudged as premature in Roberts was the respondent
judge's denial oI the motions to suspend proceedings and to deIer arraignment on
the ground that the case was already in his court Ior trial and to Iollow whatever
opinion the Secretary oI Justice may have on the matter would undermine the
independence and integrity oI his court, which was still capable oI administering
justice. In dispelling the ground relied upon by the respondent judge, this Court
ruled that the Iiling oI a motion to dismiss or to withdraw the inIormation, on the
basis oI a resolution oI the petition Ior review reversing the Iinding oI the
investigating prosecutor, was the real and ultimate test oI the independence and
integrity oI his court. ThereIore, what was disapproved by this Court was not the
denial per se oI the motions, but the reasoning behind it. It was Irom that premise
that this Court ordered in the dispositive portion oI its decision to deIer the
issuance oI the warrants oI arrest. OI more importance still was the Iact that,
whereas the questioned motions in Roberts were Ior the suspension oI proceedings
and deIerment oI arraignment, the issue in the instant case is the suspension oI the
implementation oI a warrant oI arrest, which this Court did not rule upon in the
Iormer case.

HRFOR, the petition Ior review on .ertiorari with prayer Ior the
issuance oI a temporary restraining order and/or writ oI preliminary injunction
dated April 25, 2002 is DNID -- the petition Ior review, Ior lack oI merit; and
the issuance oI TRO and/or preliminary injunction, Ior being moot and academic.

SO ORDRD.

SCOND DIVISION

POPL OF TH PHILIPPINS,
Appellee,



- versus -


RAUL NU y RVILLA,
Appellant.
G.R. No. 177148

Present

QUISUMBING, J., Chairperson,
YNARES-SANTIAGO,

CHICO-NAZARIO,

LEONARDO-DE CASTRO,

and
BRION, JJ.

Promulgated
June 30, 2009
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
DCISION
QUISUMBING, .:

This petition Ior certiorari seeks the reversal oI the Decision
1]
dated January
19, 2007 oI the Court oI Appeals in CA G.R. CR. H.C. No. 02420. The appellate
court aIIirmed the Decision
2]
dated February 11, 2002 oI the Regional Trial Court
(RTC) oI Calamba, Laguna, Branch 36, which convicted appellant in Criminal
Case No. 8614-01-C Ior violation oI Section 16, Article III oI Republic Act No.
6425, also known as the Dangerous Drugs Act oI 1972, as amended by Rep. Act
No. 7659.
]

On June 25, 2001, Raul R. Nuez was Iormally charged with violation oI
Section 16, Article III oI Rep. Act No. 6425, as amended. The InIormation reads
That at around 600 o`clock in the morning oI the 24
th
day oI April 2001
4]
at
Brgy. San Antonio, Municipality oI Los Ba||os, Province oI Laguna and within the
jurisdiction oI the Honorable Court, the above-named accused, without any authority
oI law, and in a search conducted at his residence as stated above, did then and there
willIully, unlawIully and Ieloniously have in his possession, control and custody
thirty|-|one (31) heat sealed transparent plastic sachets containing
methamp|h|etamine hydrochloride otherwise known as 'shabu, a regulated drug,
with a total weight oI 2.9 grams in violation oI the aIorementioned provision oI
law.
CONTRARY TO LAW.
5]

The Iacts are as Iollows
At 600 a.m. on April 26, 2001, operatives oI the Sta. Cruz, Laguna Police
Detectives in coordination with the Los Baos Police Station (LBPS) and IID
Mobile Force conducted a search in the house oI Raul R. Nuez based on reports
oI drug possession. The group, led by Commanding OIIicer Arwin Pagkalinawan,
included SPO1 Odelon Ilagan, SPO3 Eduardo Paz, PO1 Ronnie OrIano, PO2
Gerry Crisostomo, PO2 Alexander Camantigue, PO2 Joseph Ortega and Senior
Inspector Uriquia.
BeIore proceeding to appellant`s residence in Barangay San Antonio, the
group summoned Barangay Captain Mario Mundin and ChieI Tanod AlIredo
Joaquin to assist them in serving the search warrant. Upon arriving at appellant`s
house, Mundin called on appellant to come out. ThereaIter, Commanding OIIicer
Pagkalinawan showed Nuez the warrant. SPO1 Ilagan and PO2 Crisostomo then
surveyed appellant`s room in his presence while his Iamily, PO2 Ortega and the two
barangay oIIicials remained in the living room. SPO1 Ilagan Iound thirty-one (31)
packets oI shabu, lighters, improvised burners, tooters, and aluminum Ioil
withshabu residue and a lady`s wallet containing P4,610 inside appellant`s
dresser. The group also conIiscated a component, camera, electric planer, grinder,
drill, jigsaw, electric tester, and assorted carpentry tools on suspicion that they were
acquired in exchange Ior shabu. Following the search, SPO1 Ilagan issued a Receipt
Ior Property Seized
]
and a CertiIication oI Orderly Search
7]
which appellant
signed.
In a Decision dated February 11, 2002, the RTC convicted appellant and
sentenced him as Iollows
WHEREFORE, this court Iinds the accused guilty, beyond reasonable
doubt Ior Violation oI Republic Act 6425 as amended and is hereby sentenced to
suIIer the penalty oI reclusion perpetua and all its accessory penalties under the
law. Accused is ordered to pay the Iine oI two million pesos.
SO ORDERED.
8]

Appellant elevated the case to this Court on appeal, but the case was
transIerred to the Court oI Appeals on May 2, 2006, pursuant to our ruling
in People v. ateo.
9]
On January 19, 2007, the Court oI Appeals rendered its
decision aIIirming appellant`s conviction. The appellate court dismissed
appellant`s deIense oI Irame-up and upheld the credibility oI SPO1 Ilagan and PO2
Ortega. It observed that the inconsistencies in their testimony were minor at best,
and did not relate to the elements oI the crime.
The appellate court in its decision decreed as Iollows
HRFOR, premises considered, the assailed Decision
dated February 11, 2002 oI the Regional Trial Court, Branch 36, Calamba,
Laguna is hereby AFFIRMD.
SO ORDRD.
10]

From the appellate court`s decision, appellant timely Iiled a notice oI
appeal. This Court required the parties to submit supplemental brieIs iI they so
desire. However, both the OIIice oI the Solicitor General (OSG) and the appellant
maniIested that they are adopting their brieIs beIore the appellate court.
In his brieI, appellant contends that
I.
THE TRIAL COURT ERRED IN ACCORDING GREATER WEIGHT TO THE
EVIDENCE ADDUCED BY THE PROSECUTION AND DISREGARDING
THE DEFENSE OF FRAME-UP INTERPOSED BY |THE| ACCUSED-
APPELLANT.
II.
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE IMPUTED CRIME DESPITE THE
INHERENT WEAKNESS OF THE PROSECUTION`S EVIDENCE.
11]

Simply, the issue is whether appellant is guilty beyond reasonable doubt oI
Possession oI Regulated Drugs under the Dangerous Drugs Act oI 1972.
Appellant insists that the shabu Iound in his room was planted. He points out
variances in the testimonies oI the prosecution witnesses which cast doubt on his
culpability Iirst, SPO1 Ilagan testiIied that they picked up the barangay oIIicials
beIore going to appellant`s house but PO2 Ortega claimed that ChieI Tanod Joaquin
was already with them when they leIt the police station; second, while SPO1 Ilagan
conIirmed the presence oI the accused during the search, PO2 Ortega related
otherwise. More importantly, appellant assails the validity oI the search warrant as
it did not indicate his exact address but only the barangay and street oI his
residence. He maintains that none oI the occupants witnessed the search as they
were all kept in the living room. Finally, appellant questions why the prosecution
did not call the barangay oIIicials as witnesses to shed light on the details oI the
search.
Conversely, the OSG argues that appellant`s guilt has been proven beyond
reasonable doubt. It agrees with the trial court that appellant Iailed to overcome
the presumption that the law enIorcement agents regularly perIormed their
duties. Further, the OSG brands the testimonies oI appellant, his wiIe and their
child as selI-serving, absent ill-motives ascribed to the search team. It brushes
aside appellant`s protest, on the validity oI the search warrant, Ior having been
belatedly made.
AIter considering careIully the contentions oI the parties and the records oI
this case, we are in agreement that appellant`s petition lacks merit.
Appellant was indicted Ior possession oI regulated drugs under Section 16 oI
Rep. Act No. 6425 as amended which provides
SEC. 16. Possession or Use of Regulated Drugs. The penalty
oI re.lusion perpetua to death and a Iine ranging Irom Iive hundred thousand
pesos to ten million pesos shall be imposed upon any person who shall possess or
use any regulated drug without the corresponding license or prescription, subject
to the provisions oI Section 20 hereoI.
To be liable Ior the crime, the Iollowing elements must concur (a) the
accused is Iound in possession oI a regulated drug; (b) the person is not authorized
by law or by duly constituted authorities; and (c) the accused has knowledge that
the said drug is a regulated drug.
12]
All these were Iound present in the instant
case.
While appellant interposes the deIense oI Irame-up, we view such claim
with disIavor as it can easily be Iabricated and is commonly used as a Iacile reIuge
in drug cases.
1]
In cases involving violations oI the Dangerous Drugs Act,
credence is given to the narration oI the incident by the prosecution witnesses
especially when they are police oIIicers who are presumed to have perIormed their
duties in a regular manner, unless there is evidence to the contrary.
14]

In this case, SPO1 Ilagan Iound shabu in appellant`s room; but appellant
retorts that it was planted. The latter`s daughter, Liezel Nuez, testiIied on the
alleged planting oI evidence as Iollows
x x x x
Q While you were walking towards the direction oI your bath room at that
time have you notice anything which catches your attention?
A I saw a man inside the room taking a plastic Irom his bag, sir.
Q Did you also notice, what did that man do with that plastic in the bag?
A He put under the bed Ironting the door, sir.
x x x x
Q Can you describe to this Honorable Court what was that something that
the man took out Irom his bag and placed the same underneath your
parents` bed?
A It is a plastic containing like a tawas, sir.
Q Have you noticed Miss Witness about how many plastic bag (sic) did the
man take Irom his bag?
A Only one, sir.
15]
|Emphasis supplied.|

x x x x
Assuming arguendo that an oIIicer placed a sachet oI shabu under
appellant`s bed, appellant had not advanced any reason to account Ior the thirty-
one (31) packets oI shabu and drug paraphernalia collected Irom the dresser in his
room. Instead, he readily signed the Receipt Ior Property Seized and the
CertiIication oI Orderly Search. Neither did appellant`s daughter identiIy the
police oIIicer who allegedly planted evidence. Absent any compelling prooI why
SPO1 Ilagan would Ialsely testiIy against appellant, the presumption oI regularity
in the perIormance oI oIIicial duty stands and we agree that his testimony is
worthy oI Iull Iaith and credit.
1]

In a Iurther eIIort to impeach the credibility oI the policemen, appellant
questions the non-presentation oI the barangay oIIicials who purportedly observed
the search. The matter oI presentation oI witnesses, however, is neither Ior
accused nor even Ior the trial court to decide. Discretion belongs to the prosecutor
as to how the State should present its case. The prosecutor has the right to choose
whom he would present as witness.
17]
It bears stressing that by no means did
the barangayoIIicials become part oI the prosecution when they were asked to
witness the search. Hence, even the accused could have presented them to testiIy
thereon.
Appellant alleges that SPO1 Ilagan veriIied his presence inside the room
during the search in contrast to PO2 Ortega`s account. The records, however,
disclose otherwise. On direct examination, PO2 Ortega recounted
FISCAL
Q What did you do next?
WITNESS
A Capt. Mundin together with Raul and then the three oI us went to the room
oI Raul Nuez, sir.
x x x x
Q So, among the group that went to the room oI Raul Nuez who went
inside?
A It was Raul Nuez, Sgt. Ilagan, Crisostomo who are inside the room. I
stayed near the door along with Brgy. Capt. Mundin and ChieI Tanod who
were looking at what was going on, sir.
18]
|Emphasis supplied.|
On cross-examination, PO2 Ortega did not Ialter
x x x x
Q Who among you went inside the room oI Raul Nuez?
A Sgt. Ilagan, Crisostomo, Raul Nuez, myselI, ChieI Tanod AlIredo and
Capt. Mundin, sir.
19]
|Emphasis supplied.|
Besides, any objection to the legality oI the search warrant and the
admissibility oI the evidence obtained thereby was deemed waived when no
objection was raised by appellant during trial. For sure, the right to be secure Irom
unreasonable searches and seizures, like any other right, can be waived and the
waiver may be made expressly or impliedly.
20]

As regards the contradiction in the testimonies oI SPO1 Ilagan and PO2
Ortega as to whether they picked up ChieI Tanod Joaquin at the barangay hall, the
same is inconsequential. AIter all, the witnesses` testimonies need only
corroborate one another on material details surrounding the actual commission oI
the crime.
21]

Here, we Iind the testimonies oI SPO1 Ilagan and PO2 Ortega believable
and consistent on material points appellant was shown the search warrant; the
search was conducted in the latter`s presence; and SPO1 Ilagan Iound shabu in
appellant`s dresser. It has been ruled that an aIIirmative testimony coming Irom
credible witnesses without motive to perjure is Iar stronger than a negative
testimony. Records show that appellant and the police oIIicers were strangers to
each other. Hence, there is no reason to suggest that the police oIIicers were ill-
motivated in apprehending appellant.
22]

Turning to the objects which may be conIiscated during the search, Section
3, Rule 126 oI the Rules oI Court is pertinent
SEC. 3. Personal property to be sei:ed. A search warrant may be issued
Ior the search and seizure oI personal property
(a) Subject oI the oIIense;
(b) Stolen or embezzled and other proceeds, or Iruits oI the oIIense; or
(c) Used or intended to be used as the means oI committing an oIIense.
As a rule, only the personal properties described in the search warrant may
be seized by the authorities.
2]
In the case at bar, Search Warrant No.
42
24]
speciIically authorized the taking oI methamphetamine hydrochloride (shabu)
and paraphernalia(s) only. By the principle oI efusdem generis, where a statute
describes things oI a particular class or kind accompanied by words oI a generic
character, the generic word will usually be limited to things oI a similar nature with
those particularly enumerated, unless there be something in the context oI the
statement which would repel such inIerence.
25]

Thus, we are here constrained to point out an irregularity in the search
conducted. Certainly, the lady`s wallet, cash, grinder, camera, component, speakers,
electric planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not
encompassed by the word paraphernalia as they bear no relation to the use or
manuIacture oI drugs. In seizing the said items then, the police oIIicers exercised
their own discretion and determined Ior themselves which items in appellant`s
residence they believed were 'proceeds oI the crime or 'means oI committing the
oIIense. This is, in our view, absolutely impermissible.
2]

The purpose oI the constitutional requirement that the articles to be seized be
particularly described in the warrant is to limit the things to be taken to those, and
only those particularly described in the search warrant -- to leave the offi.ers of the
law with no dis.retion regarding what arti.les they should sei:e. A search warrant
is not a sweeping authority empowering a raiding party to undertake a Iishing
expedition to conIiscate any and all kinds oI evidence or articles relating to a
crime.
27]
Accordingly, the objects taken which were not speciIied in the search
warrant should be restored to appellant.
Lastly, we Iind the penalty imposed by the trial court as aIIirmed by the
appellate court proper. Under Section 20(3)
28]
oI Rep. Act No. 6425 as amended
by Rep. Act No. 7659, possession oI 200 grams or more
oI shabu (methamphetamine hydrochloride) renders the accused liable to suIIer the
maximum penalty under Section 16 oI Rep. Act No. 6425, which is re.lusion
perpetua to death and a Iine ranging Irom P500,000 to P10,000,000.
In the case at bar, appellant was Iound in possession oI 233.93 grams
oI shabu. Hence there being no modiIying circumstance proven, the penalty
oI re.lusion perpetua with its accessory penalties, and P2,000,000 Iine which the
Court oI Appeals meted on appellant is in order.
HRFOR, the Decision dated January 19, 2007 oI the Court oI
Appeals in CA G.R. CR. H.C. No. 02420 is AFFIRMD, with
the MODIFICATIONthat the oIIicial custodian oI the objects taken during the
search which are not otherwise regulated drugs or drug paraphernalia,
is ORDRD to return them to appellant.
SO ORDRD.