SECOND DIVISION
RENE BOTONA,
Petitioner,
G.R.
No.
120650
February 21, 2003 - versus -
COURT OF APPEALSAND PEOPLE OF THE
PHILIPPINES,
Respondents. chanrobles virtuallaw libraryred
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D E C I S I O N
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AUSTRIA-MARTINEZ,
J.: chanrobles virtuallaw libraryred
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Before us is a petition
for certiorari, prohibition and injunction assailing the Decision of
the
Court of Appeals in CA-G.R. No. 14416[1]
promulgated on November 9, 1994 and the Resolution dated May 24, 1995
denying
petitioner’s Motion for Reconsideration.chanrobles virtuallaw libraryred
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The facts of the case
as found by the lower court are as follows:chanrobles virtuallaw libraryred
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On February 20, 1991
at about 9:00 in the evening, Rito Bautista was at the waiting shed
near
the public market at Poblacion Barobo, Surigao del Sur talking with his
friends, Mayolito Cuizon and Bonifacio Fructuso. Suddenly, Rene Botona
came and pointed a .38 cal. paltik revolver at them and threatened to
shoot
them. Bautista grappled with Botona for the possession of the gun and
succeeded
in wresting it from Botona. Thereafter, Bautista rushed to the police
station
where he reported the incident and turned over said firearm.[2]chanrobles virtuallaw libraryred
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Botona rushed back
to his house, took an M-16 Armalite rifle, and strafed the house where
Bautista lives with his parents.[3]chanrobles virtuallaw libraryred
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Mayolito Cuizon
corroborated
the testimony of Bautista while SPO3 Leo Asuncion confirmed the fact
that
the paltik firearm was turned over to him by Bautista.[4]
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Botona was charged
with two counts of Illegal Possession of Firearms under P.D. No. 1866[5]
under Informations which read as follows:chanrobles virtuallaw libraryred
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Criminal Case No.
L-1112:chanrobles virtuallaw libraryred
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That on or about the
20th day of February, 1991, at 10:00 o’clock in the evening, more or
less,
in the boundary of Purok 3 and Purok 5 of Poblacion Barobo, Surigao del
Sur, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there willfully, unlawfully and
feloniously
had in his possession, custody and control one (1) armalite rifle M-16
bearing serial number 9037940, and two (2) pieces of long magazines
loaded
with 32 rounds of live ammunitions, 27 from one magazine and 5 from the
other magazine, without first securing the necessary license or permit
from the Director General of the Philippine National Police or
competent
authority therefore.chanrobles virtuallaw libraryred
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CONTRARY TO LAW.
(Violation
of P.D. 1866)[6]chanrobles virtuallaw libraryred
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Criminal Case No.
L-1129:chanrobles virtuallaw libraryred
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That on or about the
20th day of February, 1991, at 9:00 o’clock in the evening more or less
at the waiting shed in Purok 3, of poblacion Barobo, Surigao del Sur,
Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused
did then and there willfully, unlawfully and feloniously had in his
possession,
custody and control one (1) homemade revolver caliber 38, marked Smith
and Wesson, two (2) pieces live ammunitions, and three (3) pieces empty
shells, without first securing the necessary license or permit from the
Director General of the Philippine National Police or competent
authority
therefor.chanrobles virtuallaw libraryred
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CONTRARY TO LAW.
(Violation
of PD 1866).[7]chanrobles virtuallaw libraryred
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to both of which he
pleaded not guilty.chanrobles virtuallaw libraryred
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After trial, the
Regional
Trial Court of Lianga, Surigao del Sur exonerated accused Rene Botona
in
the first case but found him guilty in the second, thus:
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I. IN CRIMINAL CASE
NO. L-1112:chanrobles virtuallaw libraryred
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On the basis of
reasonable
doubt and for failure of the prosecution to establish beyond reasonable
doubt the guilt of the accused Rene Botona y Ubos, 25 years of age,
single,
a driver by occupation and resident of Barobo, Surigao del Sur, is
hereby
adjudged not guilty of the crime of Illegal Possession of Firearm &
Ammunitions, as penalized under Section 1, Presidential Decree No.
1866,
as charged in the information, and therefore, the criminal indictment
against
him is dismissed, with costs de oficio. As the M-16 Armalite Rifle with
SN 9037940 is covered by a memorandum receipt issued by PNP (formerly
PC)
authorities, the Court leaves the matter as to said firearm to the
sound
disposition of the nearest local PNP Unit. The property Bail Bond
posted
for the provisional release of said accused is ordered cancelled.chanrobles virtuallaw libraryred
II. IN CRIMINAL CASE
NO. L-1129:chanrobles virtuallaw libraryred
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The Court finds the
accused, Rene Botona y Ubos, 25 years of age, single, a driver and a
resident
of Barobo, Surigao del Sur, GUILTY beyond reasonable doubt of the crime
of Illegal Possession of Firearm and Ammunitions, penalized under
Section
1, Presidential Decree No.1866, as charged in the information, and is
hereby
accordingly sentenced to suffer the penalty of Eighteen (18) years,
Eight
(8) Months, and One (1) Day of reclusion temporal, as minimum, to
Twenty
(20) Years of reclusion temporal, as maximum, with costs. The .38 Cal.
Paltik Danao-made Revolver (Smith & Wesson) is ordered forfeited in
favor of the Government and should be turned over to the nearest PNP
Command
for proper disposition.chanrobles virtuallaw libraryred
IT IS SO ORDERED.chanrobles virtual law library[8]chanrobles virtuallaw libraryred
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Assailing his
conviction
in Criminal Case No. L-1129, the accused went to the Court of Appeals
which
affirmed the decision of the trial court in toto.[9]
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Hence, the present
petition for review on certiorari under Rule 45 of the Rules of Court.
Petitioner alleges that the appellate court acted with grave abuse of
discretion
amounting to lack of or in excess of jurisdiction when:chanrobles virtuallaw libraryred
I.
IT FAILED TO CONSIDER
THE TWO CONFLICTING FACTS AND CIRCUMSTANCES ONE OF WHICH IS CONSISTENT
WITH THE INNOCENCE OF THE PETITIONER HEREIN AND THE OTHER CONSISTENT
WITH
PETITIONER’S GUILT IN AFFIRMING THE DECISION OF THE LOWER COURT.chanrobles virtuallaw libraryred
II. chanrobles virtuallaw libraryred
IT RULED THAT THE
BURDEN
OF PROVING THE NEGATIVE ALLEGATIONS IN THE INFORMATION LIES WITH THE
ACCUSED
AND NOT WITH THE PROSECUTION, THUS, VIOLATING THE PROVISIONS OF SEC. 2,
RULE 133 OF THE RULES OF COURT AND THE RULINGS ON THE CASE OF PEOPLE
VERSUS
SAYAT, 222 SCRA 285 AND PEOPLE VERSUS PAJENADO, 31 SCRA 812.chanrobles virtuallaw libraryred
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III.chanrobles virtuallaw libraryred
IT AFFIRMED THE
JUDGMENT
OF THE LOWER COURT CONVICTING PETITIONER HEREIN OF ILLEGAL POSSESSION
OF
FIREARM WHEN THE ELEMENTS OF ILLEGAL POSSESSION AS SHOWN IN P.D. 1866
WERE
NOT ESTABLISHED.chanrobles virtuallaw libraryred
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IV.chanrobles virtuallaw libraryred
IT FAILED TO CONSIDER
THAT THERE WAS INCRIMINATION ON THE PART OF PETITIONER WHICH IS
STRICTLY
PROHIBITED BY LAW.[10]
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The Solicitor General
asserts that petitioner resorted to the wrong mode of appeal; that the
special civil action under Rule 65 is inappropriate because herein
petition
seeks to review errors of judgment and not of jurisdiction; that
petitioner
could not resort to Certiorari under Rule 65 when there is a plain,
speedy
and adequate remedy in the ordinary course of law which is by way of
petition
for review on certiorari under Rule 45 of the Rules of Court; that the
instant petition was filed beyond the fifteen (15) day period to appeal
from the order of denial, evincing that this petition was resorted to
as
a substitute for the lost or lapsed remedy of appeal;[11]
that therefore the instant petition should be outrightly dismissed
under
SC Circular No. 2-90, to wit:chanrobles virtuallaw libraryred
SC Circular 2-90 provides:chanrobles virtuallaw libraryred
Subject: Guidelines
to be observed in appeals to the Court of Appeals and to the Supreme
Courtchanrobles virtuallaw libraryred
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xxxxchanrobles virtuallaw libraryred
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(4) Erroneous Appeal
- An appeal taken to either the Supreme Court or the Court of Appeals
by
the wrong or inappropriate mode shall be dismissed.
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(d) No transfer of
appeals erroneously taken. - No transfers of appeals erroneously taken
to the Supreme Court or Court of Appeals to whichever of these
tribunals
has appropriate jurisdiction will be allowed; continued ignorance or
willful
disregard of law on appeals will not be tolerated.chanrobles virtuallaw libraryred
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Under ordinary
circumstances,
and pursuant to the above-quoted Circular, we would have upheld the
position
of the Solicitor General. However, considering that the present case
involves
the right to life and liberty of petitioner as enshrined in our
Constitution
and the assailed decision of the Court of Appeals violates existing
jurisprudence,
we shall consider this case as an exception to the rules herein invoked
by the Solicitor General. We held in Chua vs. Court of Appeals:
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"Certiorari is an
extraordinary
remedy available only when there is no appeal, nor any plain, speedy or
adequate remedy in the ordinary course of law. While ordinarily,
certiorari
is unavailing where the appeal period has lapsed, there are exceptions.
Among them are (a) when public welfare and the advancement of public
policy
dictates; (b) when the broader interest of justice so requires; (c)
when
the writs issued are null and void; (d) or when the questioned order
amounts
to an oppressive exercise of judicial authority. As early as Crisostomo
vs. Endencia, we held:chanrobles virtuallaw libraryred
The remedy by certiorari
may be successfully invoked both in cases wherein an appeal does not
lie
and in those wherein the right to appeal having been lost with or
without
the appellant’s negligence, the court has no jurisdiction to issue the
order or decision which is the subject matter of the remedy.’"[12]chanrobles virtuallaw libraryred
In the case of Republic
vs. PCGG, we added another exception to the rule, thus:chanrobles virtuallaw libraryred
Indeed, grave abuse
of discretion may arise when a lower court or tribunal violates or
contravenes
the Constitution, the law or existing jurisprudence. In one case, this
Court ruled that the lower court’s resolution was "tantamount to
overruling
a judicial pronouncement of the highest Court x x x and unmistakably a
very grave abuse of discretion."[13]chanrobles virtuallaw libraryred
In resolving the present
petition, the only question that really needs to be answered is:
Whether
or not the Court of Appeals committed grave abuse of discretion
amounting
to lack or excess of jurisdiction in affirming in toto the decision of
the trial court.chanrobles virtuallaw libraryred
Herein petition is based
on the following grounds: (1) the prosecution failed to prove the
elements
of the crime of Illegal Possession of Firearms because it did not
present
evidence that the paltik, subject of the charge, is not licensed by the
Firearms and Explosives Unit (FEU) of the Philippine National Police
(PNP);
(2) applying the equipoise doctrine, petitioner’s version of the story
should be given credence for it is the version favorable to the
accused;
(3) placing on the accused the burden of proving that he has license
for
the firearm is a violation of the constitutional presumption of
innocence;
and (4) since prosecution witness Rito Bautista was the one found with
the paltik, he should be presumed to be the owner of the same applying
Rule 131, Section 3(j) of the Rules of Court, and should be barred from
incriminating herein accused.chanrobles virtuallaw libraryred
As to ground (2) - that
the lower courts should have applied the equipoise rule - it is not
within
the jurisdiction of the Court to resolve as it involves questions of
fact.[14]chanrobles virtuallaw libraryred
As to ground (4) - that
under Sec. 3(j) Rule 131 of the Rules of Court, the person found in
possession
of the thing taken in the doing of a recent wrongful act is the taker
and
doer of the whole act - the rule is a mere disputable presumption which
was successfully refuted by the prosecution. Its evidence established
the
fact that Bautista merely turned over the paltik to the police
authorities
after he wrested it from appellant.chanrobles virtuallaw libraryred
Nevertheless, we find
the petition meritorious on grounds (1) and (3) above.chanrobles virtuallaw libraryred
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The Solicitor General
claims that mere possession of the paltik revolver without any serial
number
is illegal per se; that said firearm bears no serial number and
therefore
it could not have been registered with the PNP (FEU); that it is very
logical
to conclude that this paltik revolver was not covered by any license or
permit, and mere possession of it is deemed illegal per se; that the
prosecution
need not present any document or witness from the FEU in order to prove
that petitioner was not allowed by law to possess a firearm; and that
the
fact that petitioner was in possession of an unregistered paltik
revolver
and his subsequent failure to present his authority or permit to
possess
the same constitute sufficient evidence to hold him liable for illegal
possession of firearm.[15]chanrobles virtuallaw libraryred
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We find the position
of the Solicitor General utterly devoid of merit. The prosecution
failed
to prove that the subject "paltik" is not duly licensed by the PNP
(FEU).
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In the recent case
of People vs. Liad,[16]
we enunciated that:chanrobles virtuallaw libraryred
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In cases involving
illegal possession of firearm, the requisite elements are: (a) the
existence
of the subject firearm and (b) the fact that the accused who owned or
possessed
the firearm does not have the corresponding license or permit to
possess.
The latter is a negative fact that constitutes an essential ingredient
of the offense of illegal possession, and it is the duty of the
prosecution
not only to allege it but also to prove it beyond reasonable doubt.xxxchanrobles virtuallaw libraryred
xxx xxx xxxchanrobles virtuallaw libraryred
"We do not agree with
the contention of the Solicitor General that since a paltik is a
homemade
gun, is illegally manufactured as recognized in People vs. Fajardo, and
cannot be issued a license or permit, it is no longer necessary to
prove
that it is unlicensed. This appears to be, at first blush, a very
logical
proposition. We cannot, however, yield to it because Fajardo did not
say
that paltiks can in no case be issued a license or a permit, and that
proof
that a firearm is a paltik dispenses with proof that it is unlicensed."[17]chanrobles virtuallaw libraryred
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For failure of the
prosecution to present evidence that the paltik was unlicensed, we
acquitted
the accused in said case for insufficiency of evidence.
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In Mallari vs. Court
of Appeals,[18]
we specifically ruled:chanrobles virtuallaw libraryred
"xxx In the case at
bench, the testimony of a representative of, or a certification from
the
PNP (FEU) that petitioner was not a licensee of the said firearm would
have sufficed for the prosecution to prove beyond reasonable doubt the
second element of the crime of illegal possession. The absence of the
foregoing
is fatal to the prosecution's case and renders petitioner's conviction
erroneous."[19]chanrobles virtuallaw libraryred
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In the present case,
the prosecution only presented the following as witnesses: Rito
Bautista,
Mayolito Cuizon and SPO3 Leo Asuncion.[20]
Bautista and Cuizon testified that accused pointed a paltik at them on
the night in question and Bautista was able to grab the gun from the
accused.
SPO3 Asuncion meanwhile merely testified that he was on duty at the
police
station that night when Bautista turned over to him said paltik.[21]
He even admitted that he was not an expert on firearms.[22]
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In People vs. Dorimon,[23]
we reiterated:chanrobles virtuallaw libraryred
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"xxx While no license
or permit may be issued for a `paltik,’ we have already ruled that this
mere fact alone does not dispense with proof that it is unlicensed.
Indeed,
the prosecution failed to present this vital piece of evidence and the
trial court overlooked such requirement and proceeded to convict the
accused."[24]
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The Solicitor General
did not refute the failure of the prosecution to present a
representative
from the PNP (FEU) so as to prove the lack of license of the accused.
It
merely stood its ground that such requisite is not necessary.[25]chanrobles virtuallaw libraryred
Thus, we uphold the
arguments of petitioner that the Court of Appeals acted with grave
abuse
of discretion when it ruled that the burden of proving the negative
allegations
in the Information lies with the accused and not with the prosecution.
It is the duty of the prosecution, in charges of illegal possession of
firearm, to prove that the possession is illegal, that is, to present a
witness from the PNP (FEU) to show that the firearm in question has
never
been licensed to any person particularly to the accused.[26]
Absent such proof, the prosecution has not established its case against
petitioner, hence he is entitled to an acquittal.[27]chanrobles virtuallaw libraryred
As we have held in Republic
vs. PCGG,[28]
the decision of the lower court overruled a judicial pronouncement of
this
Tribunal which obviously constitutes grave abuse of discretion
correctible
by the present petition for certiorari.chanrobles virtuallaw libraryred
WHEREFORE, the petition
is GRANTED. For failure of the prosecution to prove the guilt of the
accused
beyond reasonable doubt, the decision of the Regional Trial Court of
Lianga,
Surigao del Sur (Branch 28) in Criminal Case No. L-1129 is REVERSED and
SET ASIDE. Petitioner Rene Botona is ACQUITTED of the charge of Illegal
Possession of Firearm.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Bellosillo, J.,
(Chairman),
Mendoza, Quisumbing and Callejo, Sr., JJ., concur.chan
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____________________________
Endnotes:
[1]
Entitled: "People of the Philippines vs. Rene Botona @ Tiktik."chanrobles virtuallaw libraryred
[2]
Rollo, p. 23.chanrobles virtuallaw libraryred
[3]
Id., at p. 25.chanrobles virtuallaw libraryred
[4]
Id., at p. 23.chanrobles virtuallaw libraryred
[5]
"CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING
IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES
OR
INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES;
AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR
RELEVANT
PURPOSES" as amended by Republic Act No. 8249, which took effect on
July
6, 1997.chanrobles virtuallaw libraryred
[6]
CA Rollo, pp. 10-11.chanrobles virtuallaw libraryred
[7]
CA Rollo, p. 4.chanrobles virtuallaw libraryred
[8]
Per RTC Decision dated January 20, 1993; Rollo, p. 58.chanrobles virtuallaw libraryred
[9]
Id., at p. 30.chanrobles virtuallaw libraryred
[10]
Rollo, p. 6.chanrobles virtuallaw libraryred
[11]
Id., at pp. 82-83.chanrobles virtuallaw libraryred
[12]
344 SCRA 136, 147-148 (2000).chanrobles virtuallaw libraryred
[13]
G.R. No. 147062-64, December 14, 2001.chanrobles virtuallaw libraryred
[14]
Arriola vs. Mahilum, 337 SCRA 464 (2000).chanrobles virtuallaw libraryred
[15]
Rollo, pp. 93.chanrobles virtuallaw libraryred
[16]
355 SCRA 11(2001).chanrobles virtuallaw libraryred
[17]
Id. at pp. 27-28.chanrobles virtuallaw libraryred
[18]
265 SCRA 456 (1996).chanrobles virtuallaw libraryred
[19]
Id. at p. 465.chanrobles virtuallaw libraryred
[20]
TSN June 17, 1992, p. 35.chanrobles virtuallaw libraryred
[21]
Id., at p. 24.chanrobles virtuallaw libraryred
[22]
Id., at p. 31.chanrobles virtuallaw libraryred
[23]
321 SCRA 43 (1999).chanrobles virtuallaw libraryred
[24]
Id. at p. 50.chanrobles virtuallaw libraryred
[25]
Rollo, p. 94.chanrobles virtuallaw libraryred
[26]
Id., at p. 10-11.chanrobles virtuallaw libraryred
[27]
Petitioner is out on bail.chanrobles virtuallaw libraryred
[28]
G.R. No. 147062-64, December 14, 2001.chanrobles virtuallaw libraryred |