Republic of the Philippines

DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT

PHILIPPINE NATIONAL POLICE
NATIONAL POLICE COMMISSION
ISABELA PROVINCIAL INTERNAL AFFAIRS SERVICE
Baligatan, Ilagan, Isabela

JOSEPH V. PANAGSAGAN,
Complainant, ADM CASE No. 05-17
FOR:
-versus- SIMPLE MISCONDUCT

Police Officer III TITO GALLARDO,

Respondent.
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MEMORANDUM/ POSITION PAPER

The Complainant, through counsel, in submitting this Position Paper unto this

Honorable Office, most respectfully states;

THE FACTS AND THE CASE IN A NUTSHELL

On 20 September 2004, Complainant Joseph Panagsagan filed an administrative

complaint for misconduct/ conduct unbecoming a police officer against Respondent

PO3 Tito Gallardo (Exh. ‘H’ of Complainant’s Evidence). Said administrative complaint

alleged that Respondent mauled, maltreated and nearly killed Complainant by boxing,

kicking, poking a Caliber .45 and threatening to kill the latter on the evening of

17 September 2004 at Baua, Gonzaga, Cagayan. This incident was supposed to have

transpired in the presence of Complainant’s three (3) minor children, some bystanders

and the public (Exh. ‘A’, ‘B’, ‘C’, ‘D’, and ‘E’ of Complainant’s Evidence). The

Complainant also alleged that Respondent was then drunk and playing cards.

Accordingly, Respondent submitted his Counter-Affidavit and he vehemently

denied having mauled, maltreated and threatened to kill Complainant. Respondent

asserted that he was merely performing a bounden duty to arrest Complainant for

disrespect and resistance. Besides, Respondent and his witnesses stated that the

former was not drunk and he did not participate whatsoever in any card game (Exh.‘1’,

‘2’, ‘3’, and ‘4’ of Respondent’s Evidence).

After the issues have been joined, a Pre-Charge Investigation was conducted.

The Investigation Report concluded and stated, “ Perusal on the records un-furl the

existence of probable cause in this instant complaint. It is believed that respondent

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inflicted the injuries to the complainant. IN VIEW HEREOF, the undersigned

recommends that this administrative complaint for alleged misconduct leveled against

PO3 Tito Gallardo be subjected for summary hearing (Exh. ‘I’ of Complainant’s

Evidence). The Regional Director of the Honorable Office approved said

recommendation on review (Exh. ‘K’ of Complainant’s Evidence). As a matter of course,

a Charge Sheet was filed against Respondent accusing the latter of Simple Misconduct

(Exh. ‘J’ of Complainant’s Evidence).

Preliminary Conference and Summary Hearing were conducted. During the

proceedings, Complainant testified relative to the allegations in his complaint and he

identified his Affidavit-Complaint (Exh. ‘A’ of Complainant’s Evidence). Complainant’s

three (3) minor children, namely Yvonne Faye, Vandyck and Xenia testified on what they

had witnessed relative to Respondent mauling, maltreating and threatening to kill their

father, the herein Complainant. They likewise identified their Joint-Affidavit (Exh. ‘B’ of

Complainant’s Evidence). Bystanders named Ryan Baje, Michael Dian and Ronald

Batario also testified relative to the fact that Respondent mauled, maltreated and

threatened to kill Complainant and that Respondent was drunk and he participated in

the cards game in the evening of 17 September 2004. They also identified their Joint-

Affidavit (Exh. ‘C’ of Complainant’s Evidence).

After the Complainant rested his case, Respondent testified on his behalf

denying all the allegations of misconduct imputed against him. He identified his

Counter-Affidavit (Exh. ‘1’ of Respondent’s Evidence). The Punong Barangay of Baua,

Gonzaga, Cagayan, Merlyn Pajas, likewise testified in favor of respondent. It appears

however that the testimony of Hon. Pajas is mostly hearsay and of limited extent. Hon.

Pajas identified his Affidavit dated 27 September 2004 (Exh. ‘3’, of Respondent’s

Affidavit). On cross-examination, Complainant introduced another Affidavit dated 27

September 2004 executed by Hon. Pajas and the latter likewise identified that it is his

affidavit (Exh. ‘L’ of Complainant’s Evidence).

After Respondent rested his case, the parties were required to submit their

respective Position Papers. Hence, Complainant submits this Position Paper.

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 ISSUE

The lone issue to be resolved is whether or not Respondent committed the

administrative offense of Simple Misconduct for which he can be subjected to

disciplinary action

COMPLAINANT’S POSITION, ARGUMENTS AND DISCUSSION

It is the Complainant’s submission that Respondent committed Simple

Misconduct in office. Complainant was able to adduce, submit and offer overwhelming

evidence to prove the culpability of Respondent for simple misconduct. Respondent was

not able to adduce any credible evidence to refute Complainant’s overwhelming

evidence.

It bears to stress out that Simple Misconduct in office was defined as any

unlawful behavior by a public officer in relation to the duties of his office, willful in

character [GUILLEN VS. CONSTANTINO, 282 SCRA 583]. To constitute an

administrative offense, misconduct should relate to or be connected with the

performance of the official functions and duties of a public officer [ONG VS. ROSALES,

325 SCRA 689].

It is also a settled rule that in cases filed before administrative or quasi-judicial

bodies, a fact may be deemed established if it is supported by substantial evidence, or

that amount of relevant evidence, which a reasonable mind might accept as adequate to

justify a conclusion [Section 5 Rule 133, Rules of Court]. In administrative proceedings,

the complainant has the burden of proving, by substantial evidence, the allegations in

the complaint. Substantial evidence does not necessarily import preponderance of

evidence as is required in an ordinary civil case; rather, it is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion [TAPIADOR VS.

OFFICE OF THE OMBUDSMAN, 379 SCRA 322].

As per the Pre-Charge Investigation Report of the Honorable Regional Internal

Affairs Service Director, probable cause exists on the offense of Misconduct against

Respondent (Exh. ‘I’, ‘J’ and ‘K’ of Complainant’s Evidence).

Due to such finding, Complainant is duty bound to prove, by substantial evidence

at least, his allegations in the Complaint in order to hold Respondent liable for Simple

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Misconduct. The Honorable Office is set to determine whether Complainant was able to

satisfy this duty.

It is crystal-clear that Respondent’s acts of boxing, kicking, collaring and poking a

gun accompanied by threats to kill against the person of Complainant constitute

unlawful behavior that were committed in relation to the official functions of the former. It

is Respondent’s duty, as police officer, to maintain peace and order in the community at

all times. He must observe maximum tolerance in dealing with confrontations and

altercations among the people in the community at all times. In this case, it is the

Respondent who disrupted peace and order. He committed an act which, he is

inceptively bound to prevent. This happened because Respondent was then drunk.

Undoubtedly, he committed misconduct in office at least.

Going to the evidence of the Complainant, it is believed that the quantum of proof

in administrative cases-substantial evidence- was satisfied. This is so because

substantial evidence does not require proof beyond reasonable doubt, or even

preponderance of evidence. The Complainant is only burdened to establish that

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion (emphasis ours).

The Transcript of Stenographic Notes of the proceedings during the Summary

Hearing will bear out that witnesses Yvonne Faye, Vandick and Xenia Panagsagan,

clearly, unequivocally and in a straight-forward manner, point to the Respondent as the

person who boxed, mauled, poked a gun and threatened to kill their father. Theirs is an

eyewitness account of what transpired during the incident. An eyewitness account of an

incident, delivered in a straightforward manner is evidence in its strongest state.

Jurisprudence likewise teaches us that children of sound mind are likely to be

more observant of incidents, which take place within their view than older persons, so

their testimony is likely to be more correct or truthful than that of older persons, and

where once established that they have fully understood the nature and character of an

oath, their testimony should be given full faith and credit. Indeed, an intelligent child is

undoubtedly the best observer and witness in the world. [PEOPLE VS. BUSTOS, ET.

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AL., 45 PHIL. 9; PEOPLE VS. PEDROSA, 169 SCRA 545; PEOPLE VS. LIBUNGAN,

MARCH 22, 1993].

The Transcript will likewise show that eyewitnesses Ryan Baje, Michael Dian and

Ronald Batario consistently and unequivocally testified that Respondent played cards

with them, that Respondent was drunk and that Respondent mauled, maltreated, poked

a gun and threatened to kill Complainant. The same consistency and clearness

characterized the testimony of Complainant.

It bears to emphasize that the testimonies of Complainant and his witnesses are

affirmative testimonies. Hence, it is Complainant’s submission that he was able to

adduce substantial evidence at least, to prove that Respondent committed Simple

Misconduct.

Evaluating the evidence of Respondent, Complainant objected during the formal

offer of evidence of Exhibit ‘2’, consisting of the Joint-affidavit of Rolex Maon and Erwil

Baje and Exhibit ‘4’, consisting of the Police Blotter reported by Crisanto Medina on

grounds that the same are mere hearsay and hence, inadmissible in evidence.

The Supreme Court, in Tapiador vs. Office of the Ombudsman, 379 SCRA 322,

held that, “ Where the affiant did not appear during the administrative

investigation to identify his sworn statement, his affidavit is hearsay and

inadmissible in evidence.” (emphasis ours). Hence, the Joint Affidavit of Rolex Maon

and Erwil Baje is inadmissible in evidence. The same holds true with the police blotter

issued by the Gonzaga Police Station, containing the incident as reported by Crisanto

Medina (Exh. ‘4’ of Respondent’s Evidence). This is because Medina never appeared

during the Summary Hearing to confirm and testify as to the truth of his declarations

with the police. His confirmation should have been very important in the light of the

existence of another police blotter issued by the same Police Station involving the same

incident (Exh. ‘D’ of Complainant’s Evidence). Exhibit ‘D’ of Complainant’s evidence was

confirmed and testified to by the Complainant himself and therefore, the only admissible

evidence relative to the entry of said incident before the Gonzaga Police Station.

The only testimonies which this Honorable may consider as evidence of the

Respondent is the latter’s testimony and the testimony of Punong Barangay Merlyn

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Pajas. Even then, Respondent’s testimony was self-serving, it consists of bare denials,

it lacks credibility and it can never prevail over and above Complainant’s evidence. The

same holds true with the testimony of Hon. Pajas. His testimony is biased, mostly

consisting of hearsay, lacks credibility and deserves scant consideration.

A review of Respondent’s testimony reveals that he engaged in various

inconsistencies ranging from his reason why he was at the wake during the time of the

incident, he said that he was on a foot patrol and incidentally dropped by the wake but

he said in the next instance that he was at the wake because somebody reported to him

that the Complainant initiated a commotion during the wake and he merely responded

to the call of duty.

In another instance, when Respondent was asked about the time when he would

usually return to his post after the foot patrol, he answered that he returns to his post at

one (1) o’ clock early morning. During the incident on September 17, 2004, Respondent

said that he was on foot patrol and he, with Crisanto Medina, was about to return to his

post at the Pulisya ti Umili when they chanced upon Complainant who is about to go

home with his children. Therefore, it is not true that Respondent is already returning

from foot patrol when he chanced upon Complainant because it was only eleven (11)

o’clock in the evening. It only lends credence to the fact as alleged in the complaint that

Respondent purposely followed the Complainant for a confrontation when the latter was

about to go home. In other words, Respondent is merely using his supposed

performance of official duty in order to save his neck from being held administratively or

criminally liable for acts he had done against Complainant.

The Supreme Court has something to say about the weight of bare denials like

the defense of Respondent, as compared to affirmative testimony such as the testimony

of the Complainant and his witnesses. In Zanoria vs. Court of Appeals, 283 SCRA 258,

the High Court said, “ The affirmative testimonies of the witnesses for the

prosecution must be given due weight over the bare denials of the respondent for

it is a rule of ancient respectability that positive evidence prevails over the

negative one.” (emphasis ours).

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 Verily, the witness who testifies affirmatively that something did happened and

that he saw it, like the fact that Respondent boxed, mauled and threatened to kill the

Complainant by poking his gun upon the latter, should be believed, because it is unlikely

that a witness will remember what never happened.

Meanwhile, a person denying that something did ever happened is the easiest

thing to do most especially if that person is accused of committing a wrongful act.

It is important to remember though that Respondent’s bare denial, without more,

cannot prevail over the positive and affirmative testimonies of Yvonne Faye, Vandyck,

Xenia and Joseph Panagsagan and of Ryan Baje, Michael Dian and Ronald Batario.

Also to be considered, is the Police Blotter duly confirmed by Complainant (Exh. ‘D’)

and the Medico-legal Certificate of the Complainant (Exh. ‘E’).

Even the testimony of Hon. Pajas is pregnant with inconsistencies, anomaly,

hearsay and it lacks credibility.

During his testimony, Pajas admitted that he had no personal knowledge on the

allegations as to whether Respondent played cards with the Complainant; whether

Respondent or Complainant was drunk; whether Complainant was unruly or noisy; and

whether Complainant and Crisanto Medina had a fight. This is so because he himself

admitted that he was then playing mahjong. Pajas also admitted that even when there

was already a commotion, he did not immediately investigate because he knew that

respondent Gallardo and the other Barangay Tanods were present and he believed that

they could handle the situation.

On this premise, the testimony of Pajas was only limited to the actual

confrontation between Respondent and Complainant. He cannot therefore testify as to

any other matter as the same would be hearsay. Whenever Crisanto Medina made a

report to Hon. Pajas relative to the incident, as stated in paragraphs 10 and 11 of the

latter’s Affidavit, the same is hearsay because Crisanto Medina never testified during

the Summary Hearing. Additionally, if indeed Hon. Pajas inquired on what really

transpired, why was there no blotter or report before the barangay about the incident?

Why did Hon. Pajas fail to present any barangay record about the incident? Was there a

cover-up of the incident? It is not difficult to see that there is no barangay record

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involving the incident because the alleged report of Crisanto Medina was merely a

product of an afterthought. Had Complainant opted to suffer his injury in silence, just like

many other people do, the incident could have just died a natural death and that is the

reason why no record of the incident appears in the barangay. When Complainant

chose to seek redress for the wrong committed against him, Respondent, with cohort

Medina, and with the help of Pajas, had now fabricated stories to exculpate them from

any liability.

During his testimony, Hon. Pajas admitted that he executed two (2) separate

affidavits executed on the same date and before the same Notary Public. These

affidavits were marked as Exh. ‘L’ for Complainant and Exh. ‘3’ for Respondent. Pajas

testified that he executed the affidavit marked as Exh. ‘L’ in the morning of September

27, 2004 while he executed the affidavit marked as Exh. ‘3’ in the afternoon of the same

day. A careful scrutiny of both affidavits would reveal that they contain almost the same

statements except the glaring discrepancy that in the earlier affidavit (Exh. ‘L’), Pajas

mentioned the Respondent poking a gun at the Complainant, in consonance with what

other witnesses observed. In the latter affidavit (Exh. ‘3’), Pajas changed his statement

by saying that Respondent merely pulled out his gun out of its holster and pointed it in

the air for possible warning shot. When asked whether he was alone when he executed

said affidavits before the notary public, Pajas said that the Respondent accompanied

him. With the Respondent accompanying Pajas, there is no doubt that the credibility

and independence of the latter was compromised. This holds true when Pajas amended

his affidavit to revoke his prior statement that the Respondent poked a gun upon the

Complainant. In short, the second affidavit was tainted with bias and influence. It should

deserve scant consideration. It is not in accordance with human nature to state one fact

and later to contradict the same unless there was a grave mistake in committing the

same. In the case of Pajas, he did not commit any mistake. He was merely cowed and

influenced by Respondent into changing his statement.

Ergo, it is the position of Complainant that there was more than sufficient

substantial evidence to hold Respondent liable administratively for Simple Misconduct.

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 Premises considered, it is respectfully prayed of this Honorable Office to issue an

Order declaring Respondent Tito Gallardo guilty of Simple Misconduct and to impose

the proper penalty allowed by law taking into account the aggravating circumstance of

the use of his service firearm to commit the offense.

Respectfully submitted, Tuguegarao City, Cagayan for Ilagan, Isabela,

September 20, 2005.

ATTY. HAXLEY M. GALANO

Counsel for the Complainant
PTR. No. 0804588-01/03/05
IBP No. 614903-04/19/04
Roll No. 48802-05/03/04
38 Tamaray St. Atulayan Sur,
Tuguegarao City, Cagayan

VERIFICATION

I, JOSEPH V. PANAGSAGAN, of legal age, married and a resident of Baua, Gonzaga,

Cagayan, under oath, depose and state that:

1. I am the complainant in the above-entitled case;

2. I caused the preparation of this Memorandum/Position Paper; and

3. All the contents thereof are true to the best of my knowledge and based on
authentic records.

JOSEPH V. PANAGSAGAN
Complainant

NOTICE

The Receiving Officer

Isabela Provincial Internal Affairs Service
Baligatan, Ilagan, Isabela

PO3 Tito Gallardo

Centro West, Sta. Teresita, Cagayan
Registry Receipt No. _____________

GREETINGS!

Please take notice that Complainant is requesting the Receiving Officer to submit
this Memorandum/ Position Paper for the consideration of the Honorable Office
immediately upon receipt of the same. Copy of respondent PO3 Tito Gallardo shall be
served through registered mail, personal service being impossible due to Respondent’s
hostile attitude upon Complainant.

ATTY. HAXLEY M. GALANO